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EXHIBIT 10.8(a)
THIRD AMENDMENT
TO
LOAN AGREEMENT
AMONG
BANK OF AMERICA, N.A.
AND
▇▇▇▇▇▇▇, INC.,
▇▇▇▇▇▇▇/STC, INC.,
▇▇▇▇▇▇▇ WIRELESS, INC.
AND (WITH THIS AMENDMENT)
▇▇▇▇▇▇▇ OCS, INC.
This AMENDMENT to LOAN AGREEMENT (the "Amendment") is entered
into as of June 25, 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 (excluding ▇▇▇▇▇▇▇ OCS, Inc.) 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 (as it may be amended, restated, extended, renewed,
replaced, or otherwise modified from time to time, the "Loan Agreement").
B. Borrower anticipates that it will violate certain of its financial
covenants in the Loan Agreement and has requested to amend the Loan Agreement to
avoid such violation, which Bank is willing to do upon the terms and conditions
contained herein and if ▇▇▇▇▇▇▇ OCS, Inc. becomes a Borrower under the Loan
Agreement.
Therefore, in consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby acknowledged, Borrower
(including ▇▇▇▇▇▇▇ OCS, Inc.) 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 June 25, 1999.
3. AMENDMENTS TO LOAN AGREEMENT.
3.1 ▇▇▇▇▇▇▇ OCS, INC. By its execution of this Amendment, ▇▇▇▇▇▇▇
OCS, Inc. has become a Borrower under the Loan Agreement as amended hereby and
all references to "Borrower" in the Loan Agreement as amended hereby shall be
deemed and treated as including ▇▇▇▇▇▇▇ OCS, Inc. ▇▇▇▇▇▇▇ OCS, Inc. hereby
assumes and agrees to pay and perform all of the Loan Obligations as provided in
the Loan Agreement and the other Loan Documents to the same extent as if it had
been a Borrower as of the original date of the Loan Agreement.
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3.2 ACCOUNTING TERMS. Section 2.5 of the Loan Agreement is hereby
amended by replacing the body thereof with the following:
"Unless the context otherwise requires, accounting terms
herein that are not defined herein shall be calculated under GAAP. All
financial measurements contemplated hereunder respecting "Borrower"
shall be made and calculated for Borrower and all of its Subsidiaries
(including ▇▇▇▇▇▇▇ Properties, Inc.), unless otherwise expressly
provided otherwise herein, on a consolidated basis in accordance with
GAAP."
3.3. REVISED LIMITATION ON REVOLVING ADVANCES. Section 3.1.2 of the
Loan Agreement is hereby amended by deleting the final two sentences added by
the Amendment thereto effective March 20, 1997, and replacing them with the
following sentence:
"The "Maximum Available Amount" for any Revolving Advance shall be a
Dollar amount equal to (i) the lesser of the Revolving Commitment or
the Borrowing Base on such date, minus (ii) the sum of (x) the Letter
of Credit Exposure (except to the extent that such Revolving Advance
will be used immediately to reimburse Lender for unreimbursed draws on
a Letter of Credit) plus (y) the Term Loan."
3.4. 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 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.
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."
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3.5. LIBOR INCREMENTS AND CBR DECREMENTS. The table in Section 4.3
of the Loan Agreement is hereby replaced with the following table, in which the
symbol ">" means "greater than", the symbol "<" means "equal to or less than",
and the symbol "=" means "equal to":
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If the ratio of Senior Debt The LIBOR Increment the CBR
(excluding Real Estate Debt) to shall be: Increment
EBITDA is: shall be:
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> 2.50 to 1.00 2.75% 0%
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< 2.50 to 1.00 and > 2.00 to 1.00 2.25% 0%
-
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< 2.00 to 1.00 and > 1.50 to 1.00 1.75% 0%
-
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< 1.50 to 1.00 and > 1.25 to 1.00 1.25% 0%
-
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< 1.25 to 1.00 0.75% 0%
-
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3.6. COMMITMENT FEE. Section 5.2 of the Loan Agreement is hereby
amended by deleting the table and replacing it with the following table, in
which the symbol ">" means "greater than", the symbol "<" means "equal to or
less than", and the symbol "=" means "equal to":
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If the ratio of Senior Debt (excluding Real Estate Debt) to The Commitment Fee
EBITDA is: Percentage shall be:
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> 2.00 to 1.00 0.375%
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< 2.00 to 1.00 and > 1.25 to 1.00 0.250%
-
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< 1.25 to 1.00 0.200%
-
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3.7. MANDATORY PREPAYMENTS. The following additional sentence is
added at the end of Section 7.2 of the Loan Agreement:
"Immediately upon every receipt thereof, Borrower shall pay over to
Lender, as a prepayment of the Term Loan, all TransMedica Proceeds.
Such application of TransMedica Proceeds shall be applied to the amount
of the Term Loan otherwise due and payable on the Maturity Date and the
principal installments on the Term Loan required under Section 6.3 in
the inverse order of their due dates."
3.8. DEFINITION OF SENIOR DEBT AND EBITDA. The last sentence of
Section 4.3 of the Loan Agreement is hereby deleted and the following definition
is added to Section 16.1:
"`Senior Debt'" means the amount of all Funded Debt (excluding all
Subordinated Indebtedness)."
The definition of EBITDA in Section 16.1 of the Loan Agreement is changed to
read in its entirety as follows:
"`EBITDA'" means, for any period of calculation, an amount equal to the
sum of the following, calculated without duplication and after
exclusion of any amount that has been allocated to Borrower from
NotiCom L.L.C.: (i) net income, (ii) federal, state and local income
tax expense, (iii) interest expense, (iv) depreciation and amortization
expense, (v) losses on the sale or other disposition of assets, (vi)
extraordinary losses, and (vii) the one-time write-off, in the fiscal
year ended in 1999 only, of the investment in TransMedica
International, Inc., minus (a) gains on
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the sale or other disposition of assets, and (b) extraordinary gains,
all calculated for such period.
A following new definition is added in the appropriate alphabetical order in
Section 16.1:
"`Real Estate Debt' means the Indebtedness of ▇▇▇▇▇▇▇ Properties, Inc.
which is payable to Lender."
3.9. BORROWING BASE CERTIFICATE. Section 14.14 of the Loan
Agreement is hereby amended by deleting the words "while the ratio of Borrower's
Funded Debt to EBITDA calculated as of the end of any fiscal quarter in
accordance with Section 16.6 of this Agreement, exceeds 1.5 to 1.0".
3.10 SECURITY. A new Section 14.19 is added to the Loan Agreement,
as follows:
"14.19. SECURITY. As security for the payment and performance of the
Loan Obligations, Borrower shall execute and deliver to Lender, or
cause to be executed and delivered to Lender, before November 1, 1999,
all of the following documents, with each being satisfactory to Lender
(the "Security Documents"):
14.19.1. MORTGAGES. Deeds of trust satisfactory to
Lender and (i) granting to Lender a Security Interest in all
of the real property and fixtures owned by Borrower or on the
leasehold interest of Borrower in all real property leased by
Borrower(other than the real property on which Lender has a
lien to secure the Real Estate Debt defined herein) and all
improvements thereon and any appurtenant easements and rights
and all income and proceeds thereof, and (ii) assigning to
Lender all of Borrower's rights, title, and interest in, to,
and under all leases affecting any part of the Real Property
Collateral and all income and proceeds thereof, which Security
Interests shall be subject only to Permitted Security
Interests affecting the property covered thereby and existing
on the Execution Date. If Borrower acquires or leases any real
property after the June 25, 1999, Borrower shall notify Lender
thereof and shall deliver to Lender a deed of trust or
mortgage, or leasehold deed of trust or mortgage, as
appropriate, on each parcel of such real property or
Borrower's leasehold interest therein promptly upon request by
Lender.
14.19.2. SECURITY AGREEMENTS. Security agreements
from Borrower satisfactory to Lender and granting to Lender,
as security for payment and performance of the Loan
Obligations, a Security Interest under the UCC in all of the
Goods, Equipment, Accounts, Inventory, Instruments, Documents,
Chattel Paper, General Intangibles and other personal property
and Fixtures of Borrower, whether now owned or hereafter
acquired, and all proceeds thereof, subject only to Permitted
Security Interests.
14.19.3. COLLATERAL ASSIGNMENTS. Collateral
assignments and pledges satisfactory to Lender and assigning
or pledging to Lender, as security for payment and performance
of the Loan Obligations, (i) all rights, title and interest of
Borrower under all leases of real property in which Borrower
is the tenant or lessee, (ii) the economic rights of ▇▇▇▇▇▇▇
Wireless, Inc. as a member of ▇▇▇▇▇▇▇ Clayco Wireless, L.L.C.,
a Missouri limited liability company, and the economic rights
of Borrower as a member of Noticom, L.L.C., a Georgia
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limited liability company, (iii) all of ▇▇▇▇▇▇▇, Inc.'s stock
in its Subsidiaries, (iv) all of Borrower's patents, (v) all
Transmedica Proceeds, (vi) all rights, title and interest of
Borrower in, to and under the note, security agreement, and
patent security agreement executed and delivered to Borrower
by Transmedica International, Inc., and (vii) all of
Borrower's trademarks, trade names, and service marks, each
subject to no other Security Interests except Permitted
Security Interests. If Borrower or any Subsidiary of Borrower
leases any real property after June 25, 1999, Borrower shall
execute and deliver to Lender, or cause to be executed and
delivered to Lender, as further security for payment and
performance of the Loan Obligations, a collateral assignment
of all rights, title and interest of Borrower under such
lease.
14.19.4. FINANCING STATEMENTS. UCC financing
statements in legally sufficient form for filing in every
office where such filing is necessary to perfect the Security
Interests granted pursuant to the Security Documents."
3.10. CAPITAL EXPENDITURES. Section 16.2 of the Loan Agreement is
hereby amended by adding the following proviso after the first sentence thereof:
"provided, however, that for purposes of the foregoing, Capital
Expenditures shall not be deemed to include any expenditures from
proceeds of the Permitted Indebtedness described in Section 15.2.6."
3.11. MAXIMUM SENIOR DEBT TO EBITDA RATIO. Section 16.6 of the
Loan Agreement is hereby amended to read in its entirety as follows:
"16.6 MAXIMUM SENIOR DEBT TO EBITDA RATIO. The ratio of Borrower's
Senior Debt to Borrower's EBITDA calculated at the end of each fiscal
quarter of Borrower on the basis of the twelve consecutive calendar
months then ended shall not be greater than the ratio specified in the
table below:
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For each fiscal quarter ended: The Senior Debt to EBIDTA ratio
shall not be greater than:
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On June 30, 2000 4.00 to 1.00
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On or after September 30, 2000, and 3.50 to 1.00
before December 31, 2001
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On or after December 31, 2001 3.00 to 1.00
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3.12. MINIMUM FIXED CHARGE COVERAGE. Section 16.3 of the Loan
Agreement is replaced entirely by the following:
"16.3 MINIMUM FIXED CHARGED COVERAGE. The ratio of Borrower's EBITDA
to Fixed Charges, calculated at the end of each fiscal quarter of
Borrower ended on or after September 30, 2000, on the basis of the four
consecutive fiscal quarters then ended, shall not be less than 1.20 to
1.00."
3.13. MINIMUM EBITDA. Section 16.5 of the Loan Agreement regarding
Borrower's minimum current ratio is entirely replaced with the following:
"16.7 MINIMUM EBITDA. Borrower's EBITDA for the period beginning on
July 1, 1999, and ended as of the end of each fiscal quarter of
Borrower ended
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after June 30, 1999, shall not be less than the amount listed for each
such period in the following table:
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As of the fiscal quarter ended Cumulative EBITDA for the period July 1, 1999,
through such fiscal quarter end shall not be
less than
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September 30, 1999 ($750,000)
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December 31, 1999 $1,200,000
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March 31, 2000 $4,000,000
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June 30, 2000 $7,700,000
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3.14. RESTORATION OF PREVIOUSLY DELETED PROVISIONS OF LOAN AGREEMENT
Except as expressly provided below, all of the deletions, replacements, and
changes made in the following sections of the Loan Agreement, including deletion
of certain of the following sections, by the amendment thereto dated March 20,
1997, are hereby rescinded as of the effective date of this Amendment, and the
Loan Agreement shall be read from the date of this Amendment to include all of
such sections as they appeared before such amendment dated March 20, 1997,
became effective: (i) Section 9, except that Section 9.1 thereof shall remain
deleted; (ii) Section 10.1.4; (iii) Section 12.27; (iv) Section 12.27.1; (v)
Section 12.27.2; (vi) 12.27.3; (vi) Section 12.27.4; Section 12.27.5; (vii)
Section 12.28.3; (viii) Section 12.29; (ix) Section 12.30, except Section
12.30.2 thereof shall remain deleted; (x) Section 14.3; (xi) Section 14.5; (xii)
Section 14.11; (xiii) Section 17.1.16; (xiv) Section 17.2.4; (xv) Section
17.2.5; (xvi) Section 17.2.6; (xvii) Section 17.2.7; (xviii) Section 18.1;
(xvix) Section 18.4.4; and (xx) Section 18.6.
3.15. DEFINITIONS. All of the deletions, replacements, and changes
made in Exhibit 2.1 to the Loan Agreement (Glossary and Index of Defined Terms)
by the amendment thereto dated March 20, 1997, are hereby rescinded as of the
effective date of this Amendment, and the Loan Agreement shall be read from the
date of this Amendment to include all of such definitions as they appeared
before such amendment dated March 20, 1997, became effective. In addition, the
following definitions are added in appropriate alphabetical order in Exhibit 2.1
to the Loan Agreement (Glossary and Index of Defined Terms):
"`Real Estate Debt' is defined in Section 16.1.
`Senior Debt' is defined in Section 16.1.
`TransMedica Proceeds': proceeds from any judgment in favor of
Borrower against TransMedica International, Inc. or any other party
in cause number 98CC-003559 pending in the Circuit Court of St.
Louis County, Missouri, or from any settlement thereof, or otherwise
arising from a claim by Borrower against TransMedica International,
Inc. or any other party arising from the facts alleged in the petition
or any amendment thereof filed by Borrower against TransMedica
International, Inc. in such legal proceedings."
3.16. OTHER REFERENCES TO COLLATERAL. In all places in the Loan
Agreement where the words "the assets of Borrower" or "the personal property
assets of Borrower" remain, such words shall be deemed to mean "Collateral" and
"Personal Property Collateral", respectively, as of the date of this Amendment
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4. FIELD AUDIT; ADVANCE RATES AND ELIGIBILITY. Borrower agrees that Lender
may conduct a field audit of Borrower's Inventory and Accounts. Borrower further
agrees that Lender may change the advance rate percentages in Sections 3.1.4.1
and 3.1.4.2 of the Loan Agreement and/or the definitions of Eligible Accounts
and/or Eligible Inventory in Section 3.1.5 and 3.1.6 effective immediately upon
notice to Borrower after the field audit is concluded so that such revised
advance rates and/or definitions accurately reflect the actual quality and value
of Borrower's Inventory and Accounts as collateral for repayment of the
Revolving Loan in light of the risk to Lender that any of the Accounts might not
be paid timely in full and that any Inventory may not be readily saleable, as
determined by Lender based upon its current criteria for determining such
quality, value and risk.
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.
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.
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11. 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.
12. 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]
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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
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notice Address: Notice Address:
C/▇ ▇▇▇▇▇▇▇, Inc. C/▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
FAX # ▇▇▇-▇▇▇▇ FAX # ▇▇▇-▇▇▇▇
TEL # ▇▇▇-▇▇▇▇ TEL # ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, INC. ▇▇▇▇▇▇▇ OCS, INC.
by its President by its President
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notice Address: Notice Address:
▇▇▇▇▇▇▇, Inc. C/▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
FAX # ▇▇▇-▇▇▇▇ FAX # ▇▇▇-▇▇▇▇
TEL # ▇▇▇-▇▇▇▇ TEL # ▇▇▇-▇▇▇▇
BANK OF AMERICA, N.A.
By its Assistant Vice President
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▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
Notice Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
FAX # ▇▇▇-▇▇▇▇
TEL # ▇▇▇-▇▇▇▇
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EXHIBIT A
Additions to the Disclosure Schedule in the Loan Agreement
None if nothing listed.