EXHIBIT 10.14
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
("Amendment") is made and entered into this 1st day of December, 2002, but
effective as of December 1, 2002 (the "Amendment Date"), by and among XETA
Technologies, Inc., an Oklahoma corporation (the "Borrower"), Bank One,
Oklahoma, N.A., and U.S. Bank National Association, as Lenders under the Credit
Agreement referred to below (the "Lenders"), and Bank One, Oklahoma, N.A., as
Agent (in such capacity, the "Agent"), with reference to the following:
A. The Borrower, the Lenders and the Agent are parties to that certain
Amended and Restated Credit Agreement dated as of October 31, 2001, as amended
by that certain First Amendment to Amended and Restated Credit Agreement dated
effective as of June 1, 2002, and as further amended by that certain Second
Amendment to Amended and Restated Credit Agreement dated effect as of September
10, 2002 (the "Credit Agreement").
B. The Borrower has requested that the Lenders and the Agent (i) extend
the availability of the Revolving Credit Facility and the maturity of the
Revolving Loans, and (ii) waive certain Defaults arising by virtue of the
Borrower's failure to comply with certain financial covenants set forth in the
Credit Agreement at October 31, 2002. The Lenders and the Agent have agreed to
the foregoing requests, subject to the terms and conditions set forth in this
Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereby amend the Credit Agreement, effective as of the Amendment Date,
as follows:
1. DEFINITIONS. Capitalized terms used herein (including capitalized terms used
in the recitals above) but not otherwise defined have the respective meanings
assigned to them in the Credit Agreement.
2. WAIVERS. Effective as of the Amendment Date, and subject to the Borrower's
satisfaction of the conditions precedent set forth in Section 4 of this
Amendment, the Lenders and the Agent agree to waive the Borrower's
non-compliance with Sections 6.24.2 (Debt Service Coverage Ratio) of the Credit
Agreement at October 31, 2002, and any consequences of such non-compliance
(other than as set forth in this Amendment). The foregoing waivers do not extend
to any other existing Default or Unmatured Default (whether or not known to the
Borrower, the Lenders or the Agent) or to any Default or Unmatured Default that
may arise or occur after the Amendment Date. Nothing contained in this Amendment
shall be construed as waiving any other term or condition of the Credit
Agreement or any of the other Loan Documents or as obligating the Lenders or the
Agent to waive any future noncompliance or Default.
3. MODIFICATION OF FACILITIES. Effective as of the Amendment Date, and subject
to the Borrower's satisfaction of the conditions precedent set forth in this
Amendment:
A. Extension of Revolving Credit Facility. The availability of the
Revolving Credit Facility and the maturity of the Revolving Loans are hereby
extended from November 30, 2002 to March 31, 2003. Accordingly, the definition
of the term "Revolving Credit Facility Termination Date" appearing in Section
1.1 of the Credit Agreement is hereby amended by replacing the reference to the
date "October 31, 2002" (as subsequently amended to "November 30, 2002.") with
the date "March 31, 2003."
B. No Obligation to Grant Further Extensions. The Borrower acknowledges
that, notwithstanding the references in the Credit Agreement and this Amendment
to dates or periods of time subsequent to March 31, 2003, (i) the Lenders will
not be obligated to further extend the availability of the Revolving Credit
Facility, (ii) the Lenders have given no assurances or commitment that any
extension request will be approved, (iii) the Lenders may refuse any extension
request in the exercise of their sole and absolute discretion, and (iv) if any
extension request is approved, the Lenders may condition such approval on the
Borrower's satisfaction of certain requirements, including the making of further
modifications to the Credit Agreement and/or the terms of the Facilities.
C. Renewal Note. The Borrower agrees to make, execute and deliver to
each Lender a renewal Revolving Note (each, a "Renewal Revolving Note"),
substantially in the form attached hereto as Exhibit "F-1B." The Renewal
Revolving Notes are hereinafter collectively referred to as the "Renewal Notes."
The Renewal Notes shall be in renewal, extension and replacement of, but not in
satisfaction or as a novation of, the respective Notes delivered pursuant to the
Credit Agreement, and from and after the Amendment Date, unless the context
otherwise requires, all references to the "Revolving Notes" appearing in the
Credit Agreement or any other Loan Documents shall mean and refer to the Renewal
Revolving Notes.
4. CONDITIONS PRECEDENT. This Amendment shall become effective as of the
Amendment Date, subject to the Borrower's satisfaction of the following
conditions precedent (in addition to the conditions precedent set forth in
Article IV of the Credit Agreement):
A. Execution of Documents. The Borrower shall have duly and validly
authorized, executed and delivered to the Agent and the Lenders the following
documents, each in form and substance satisfactory to the Lenders:
(i) this Amendment; and
(ii) the Renewal Revolving Notes;
B. Resolutions. The Agent shall have received a copy of the resolutions
of the Board of Directors of the Borrower authorizing the execution and delivery
of this Amendment and the performance by the Borrower of its obligations under
this Amendment, the Credit Agreement (as amended by this Amendment) and the
Renewal Notes.
2
C. Consent of Guarantor. The "Consent of Guarantor" appearing after the
Borrower's signature to this Amendment shall have been duly and validly
authorized, executed and delivered to the Lender by the Guarantor.
D. Accuracy of Representations and Warranties. All representations and
warranties made by the Borrower in the Credit Agreement and the other Loan
Documents shall be true and correct in all material respects as of the Amendment
Date (except to the extent any of such representations and warranties with
respect to the financial condition of the Borrower refer to an earlier specified
date).
E. No Default. There shall not have occurred any additional Default or
Unmatured Default as of the Amendment Date, and the Borrower shall be current in
payment of all principal, interest and fees due and owing to the Agent or the
Lenders as of the Amendment Date.
F. Waiver/Amendment Fee. The Borrower shall have paid to the Agent, for
the account of each Lender in accordance with each Lender's Pro Rata Share, a
waiver/amendment fee of $16,579.32 (which amount is equal to 1/10th of 1% of the
remaining aggregate Commitments).
5. REPRESENTATIONS AND WARRANTIES. All representations and warranties of
Borrower contained in Article V of the Credit Agreement remain true and correct
(except to the extent any representations and warranties as to the Borrower's
financial condition relate solely to an earlier specified date) and are hereby
remade and restated as the date hereof and shall survive the execution and
delivery of this Amendment. The Borrower further represents and warrants as
follows:
A. Authority. The Borrower has all requisite power and authority and
has been duly authorized to execute, deliver and perform its obligations under
this Amendment, the Credit Agreement (as amended by this Amendment) and the
Renewal Notes.
B. Binding Obligations; Enforceability. This Amendment, the Credit
Agreement (as amended by this Amendment) and the Renewal Notes are valid and
legally binding obligations of the Borrower, enforceable in accordance with
their respective terms, except as limited by applicable bankruptcy, insolvency
or other laws affecting the enforcement of creditors' rights generally.
C. No Conflict; Government Consent. Neither the execution and delivery
by the Borrower of this Amendment and the Renewal Notes, nor the consummation of
the transactions therein contemplated, nor compliance with the provisions
thereof, will violate (i) any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any of its Subsidiaries,
or (ii) the Borrower's or any Subsidiary's articles or certificate of
incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or operating or other management
agreement, as the case may be, or (iii) the provisions of any indenture,
instrument or agreement to which the Borrower or any of its Subsidiaries is a
party or is subject, or by which it, or its Property, is bound, or conflict with
or constitute a default thereunder, or result in, or require, the creation or
imposition of any Lien in, of or on the
3
Property of the Borrower or any of its Subsidiaries pursuant to the terms of any
such indenture, instrument or agreement. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has
not been obtained by the Borrower or any of its Subsidiaries, is required to be
obtained by the Borrower or any of its Subsidiaries in connection with the
execution and delivery of this Amendment, the borrowings under the Credit
Agreement (as amended hereby), the payment and performance by the Borrower of
the Obligations, or the legality, validity, binding effect or enforceability of
this Amendment, the Credit Agreement (as amended by this Amendment) or the
Renewal Notes.
D. No Material Adverse Change. Since October 31, 2002 (the date of the
latest financial statements of the Borrower which have been delivered to the
Agent and the Lenders), there has been no adverse change in the business,
Property, prospects, condition (financial or otherwise) or results of operations
of the Borrower and its Subsidiaries which could reasonably be expected to have
a Material Adverse Effect.
6. MISCELLANEOUS.
A. Effect of Amendment. The terms of this Amendment shall be
incorporated into and form a part of the Credit Agreement. Except as amended,
modified and supplemented by this Amendment, the Credit Agreement shall continue
in full force and effect in accordance with its original stated terms, all of
which are hereby reaffirmed in every respect as of the date hereof. In the event
of any irreconcilable inconsistency between the terms of this Amendment and the
terms of the Credit Agreement, the terms of this Amendment shall control and
govern, and the agreements shall be interpreted so as to carry out and give full
effect to the intent of this Amendment. All references to the "Credit Agreement"
appearing in any of the Loan Documents shall hereafter be deemed references to
the Credit Agreement as amended, modified and supplemented by this Amendment.
B. Descriptive Headings. The descriptive headings of the several
sections of this Amendment are inserted for convenience only and shall not be
used in the construction of the content of this Amendment.
C. Governing Law. This Amendment shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Oklahoma.
D. Reimbursement of Expenses. The Borrower agrees to pay the reasonable
fees and out-of-pocket expenses of The ▇▇▇▇▇▇▇▇ Law Firm, counsel to the Agent,
incurred in connection with the preparation of this Amendment and the
consummation of the transactions contemplated hereby.
E. Release by Borrower. In consideration of the waivers and other
agreements of the Lenders and the Agent contained herein, the Borrower, for
itself and its officers, directors, agents, employees, successors and assigns,
hereby releases, acquits and forever discharges each of the Lenders and the
Agent, and each of their respective parent, subsidiary and affiliated companies
and each of their respective officers, directors, agents, employees, successors,
and
4
assigns, and all other persons acting for or on behalf of the Lenders and/or
the Agent, of and from any and all manner of actions, causes of actions, suits,
debts, accounts, conveyances, agreements, damages, claims, demands, liabilities,
costs, and expenses of whatsoever kind or nature, including attorney's fees, in
law or in equity, known or unknown, anticipated or unanticipated and howsoever
arising or accruing, which the Borrower may now have or may claim to have
against the parties released or any of them, including, without limitation,
those arising out of or relating in any way to the Credit Agreement or the
administration of the Facilities thereunder, any other Loan Document or any
other agreement or document relating to the Facilities. It is understood and
agreed by the Borrower that this is a full and final release covering any and
all of the Borrower's actions, claims, debts, judgment, damages, objections,
costs, attorney's fees, demands or liabilities, whether known or unknown,
undisclosed and/or unanticipated, which may have arisen, or may arise from any
act or omission, prior to the date of the execution and delivery of this
Amendment.
F. No Course of Dealing. This Amendment shall not establish a course of
dealing or be construed as evidence of any willingness or commitment on the part
of the Agent or the Lenders to grant other or future waivers or consents, should
any be requested, or to agree to other or future amendments to or modifications
of the Credit Agreement or the terms and conditions applicable to the
Facilities.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
SIGNATURES APPEAR ON FOLLOWING PAGE.]
5
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed and delivered this Amendment on the day and year first set forth above.
XETA TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary and Chief Financial
Officer
Revolving Loan Commitment BANK ONE, OKLAHOMA, N.A.,
from and after Amendment Date: Individually and as Agent
$1,100,000.00
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
Revolving Loan Commitment U.S. BANK NATIONAL ASSOCIATION
from and after Amendment Date: (formerly known as Firstar Bank, N.A.,
$900,000.00 successor by merger to Firstar Bank
Missouri, National Association)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
EXHIBITS
Exhibit F-1B - Form of Renewal Revolving Note
6
CONSENT OF GUARANTOR
The undersigned hereby (i) acknowledges and consents to the execution
and delivery of the above and foregoing Third Amendment to Credit Agreement,
(ii) confirms that the Subsidiary Guaranty of the undersigned will continue in
full force and effect as security for payment and performance of all of the
"Guaranteed Obligations," as such term is used in the Subsidiary Guaranty, and
(iii) ratifies and reaffirms the Subsidiary Guaranty.
No inference shall be drawn from the undersigned's execution of this
Consent that consent or approval of the undersigned is required for this or any
future modification or amendment of or supplement to the Credit Agreement or
other Loan Document, or for this or any future increase, decrease, extension or
renewal of the Guaranteed Obligations.
Capitalized terms used in this Consent and not otherwise defined have
the respective meanings assigned to them in the Credit Agreement referred to in
the above and foregoing Second Amendment to Credit Agreement.
U.S. TECHNOLOGIES SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: Vice President
------------------------
7
RENEWAL REVOLVING NOTE
(Exhibit F-1B)
$ December 1, 2002
----------------- Tulsa, Oklahoma
XETA Technologies, Inc., an Oklahoma corporation (the "Borrower"),
promises to pay to the order of _________________ (the "Lender"), the aggregate
unpaid principal amount of all Revolving Loans made by the Lender to the
Borrower pursuant to Section 2.1.1 of the Agreement (as hereinafter defined), in
immediately available funds at the main office of Bank One, Oklahoma, N.A.,
Tulsa, Oklahoma, as Agent, together with interest on the unpaid principal amount
hereof at the rates and on the dates set forth in the Agreement. The Borrower
shall pay the principal of and accrued and unpaid interest on the Revolving
Loans in full on the Revolving Credit Facility Termination Date and shall make
such mandatory payments as are required to be made under the terms of Article II
of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Revolving Loan and the date and amount of each
principal payment hereunder.
This Note is one of the Revolving Notes issued pursuant to, and is
entitled to the benefits of, the Amended and Restated Credit Agreement dated as
of October 31, 2001, as amended by that certain First Amendment to Amended and
Restated Credit Agreement dated effective as of June 1, 2002, as further amended
by that certain Second Amendment to Amended and Restated Credit Agreement dated
effective as of September 10, 2002, and as further amended by that certain Third
Amendment to Amended and Restated Credit Agreement dated effective as of
December 1, 2002 (which, as it may be further amended or modified and in effect
from time to time, is herein called the "Agreement"), among the Borrower, the
lenders party thereto, including the Lender, and Bank One, Oklahoma, N.A., as
Agent. Capitalized terms used herein and not otherwise defined herein are used
with the meanings attributed to them in the Agreement. Reference is made to the
Agreement for a statement of the terms and conditions governing this Note,
including the terms and conditions under which this Note may be prepaid or its
maturity date accelerated.
This Note is secured pursuant to the Collateral Documents, as more
specifically described in the Agreement, and reference is made thereto for a
statement of the terms and provisions thereof.
This Note is made, executed and delivered by the Borrower and delivered
to the Lender in renewal, extension and replacement for that certain Revolving
Note dated as of October 31, 2001, executed by the Borrower payable to the order
of the Lender in the stated principal amount of $__________ (the "Prior Note").
All liens and security interests in Property securing payment of the Prior Note
shall continue in full force and effect, uninterrupted and unabated, as security
for payment of this Note.
XETA TECHNOLOGIES, INC., an Oklahoma corporation
By:
------------------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary and Chief Financial Officer
