EXHIBIT 10(b)
FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
("Amendment") is made and entered into and effective this 1st day of May, 2003
(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, as further amended by that certain Second
Amendment to Amended and Restated Credit Agreement dated effective as of
September 10, 2002, as further amended by that certain Third Amendment to
Amended and Restated Credit Agreement dated effective as of December 1, 2002,
and as further amended by that certain Fourth Amendment to Amended and Restated
Credit Agreement dated effective as of March 1, 2003 (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 from May 1, 2003 until December 31, 2003, (ii) extend the
maturity of the Term Loan Facilities from November 30, 2003 until December 31,
2003, and extend the maturity of the R/E Term Loan Facilities from November 30,
2003 until December 31, 2003, (iii) amend and restate the Revolving Credit
Facilities so as to increase the facilities' cumulative amount from
$2,000,000.00 to $7,500,000.00, (iv) reduce the Term Loan Facilities by a
cumulative amount of $6,500,000.00 after Borrower reduces its obligations under
these facilities by applying certain funds from the Revolving Loans and from
existing cash reserves, (v) modify the term "Eligible Accounts" for the
Borrowing Base to include within "Accrued Accounts Receivable" all Inventory
shipped to the Borrower's customer(s) that are legally billable but not yet
billed, (vi) modify the Borrowing Base by including the Service Inventory
located at Borrower's Tulsa Warehouse, (vii) modify and reduce the advance rate
for Accrued Receivables from 80% to 40%, (viii) modify the Borrowing Base
Calculation by eliminating eligible funding based on the then current
outstanding principal balance of the unsecured term loan and (ix) waive certain
Defaults arising by virtue of the Borrower's failure to comply with the fixed
charge coverage financial covenant set forth in the Credit Agreement through and
until December 31, 2003 in return for maintaining a quarterly Consolidated EBIDA
of a minimum of $700,000.00. 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
(Conditions Precedent) of this Amendment, the Lenders and the Agent agree to
waive the Borrower's non-compliance with its fixed charge coverage covenant
generally associated with Section 6.24.2 (Debt Service Coverage Ratio) of the
Credit Agreement, and any consequences of such non-compliance (other than as set
forth in this Amendment). In lieu of this waiver, Borrower shall maintain a
quarterly Consolidated EBIDA of a minimum of $700,000.00; however, Borrower may
include the tax deduction for the amortization of goodwill in its calculation of
EBIDA. As such, the definition of the term "Consolidated EBIDA " appearing in
Section 1.1 of the Credit Agreement is hereby amended by permitting this
goodwill amortization deduction.
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 May 1, 2003 to December 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," "March 31,
2003" and "May 1, 2003") with the date "December 31, 2003."
B. Amended and Restated, as well as renewed, Revolving Note. The
Borrower agrees to make, execute and deliver to each Lender an amended and
restated Revolving Note (each, a "Renewal Revolving Note"), substantially in the
form attached hereto as Exhibit "F-1C." The Amended and Restated Revolving Notes
are hereinafter collectively referred to as the "Renewal Notes." The Renewal
Notes shall be in renewal, extension, replacement, amended and restatement 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. The Revolving Notes shall increase in a
cumulative amount from $2,000,000.00 to $7,500,000.00. Of this new funding,
Borrower shall apply $2,500,000.00 to reduction in principal of the Term Note,
and Borrower shall apply an additional $4,000,000.00 of existing cash reserves
toward the reduction in principal of the Term Note.
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C. Extension of Term Loan Facility and R/E Term Loan Facility.
The availability of the Term Loan Facility and the maturity of the Term Loans
are hereby extended from November 30, 2003 to December 31, 2003, and Borrower
agrees to simultaneously pay down of the same in the cumulative amount of
$6,500,000.00 from the Revolving Loans and from accumulated cash reserves. The
availability of the R/E Term Loan Facility and the maturity of the R/E Term
Loans are hereby extended from November 30, 2003 to December 31, 2003,
substantially in the form attached hereto as Exhibit "F-3C" which the Borrower
agrees to make, execute and deliver to each Lender.
D. Renewal of Term Note. The Borrower agrees to make, execute and
deliver to each Lender a renewal Term Note (each, a "Renewal Term Note"),
substantially in the form attached hereto as Exhibit "F-2C." The Renewal Term
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 "Term Notes" appearing in the Credit
Agreement or any other Loan Documents shall mean and refer to the Renewal Term
Notes. The Borrower shall pay down the Term Notes in the cumulative amount of
$6,500,000.00, resulting in a cumulative Term Note obligation of $4,674,041 with
monthly payments continuing on the last day of each calendar month to and
including November 30, 2003, with each installment (except the final installment
due at maturity) to be in the aggregate principal amount of $259,861.44 and with
the final installment due at maturity to be equal to the then outstanding
principal balance of the Term Loans and all other unpaid Obligations arising
under or relating to the Term Loan Facility.
E. 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 December 31, 2003, (i)
the Lenders will not be obligated to further extend the availability of the
Revolving Credit Facility or the Term Loan 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.
F. Cross Collateralization of Notes. Notwithstanding language to
the contrary or consistent with the same, the Borrower agrees and acknowledges
that all assets pledged as collateral for any one term, real estate or revolving
credit facility hereby collateralizes all and any other credit facility in favor
of Lenders.
G. Modification of Terms. The Borrower agrees to certain
modification of terms as follows:
(1) Eligible Accounts. The Borrower may broaden and
include within its Borrowing Base's "Eligible Accounts" all "Accrued Accounts
Receivable" that represent its legally billable but not yet billed inventory
shipped by Borrower to its customer(s). Accordingly, the definition of the term
"Eligible Account " appearing in Section 1.1 of the Credit Agreement
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is hereby amended by including at the end of subparagraph (d) "or is legally
billable but has not yet been billed."
(2) Service Inventory. The Borrower may broaden and
include within its Borrowing Base's "Eligible Inventory" all "Service Inventory"
that is located at Borrower's Tulsa Warehouse. Accordingly, the definition of
the term "Eligible Inventory" appearing in Section 1.1 of the Credit Agreement
is hereby amended by including at the end of subparagraph (b) ", inclusive of
the Service Inventory located at Borrower's Tulsa Warehouse."
(3) Advance Rate for Accrued Receivables. The Borrower's
ability to receive advance rate funding on its Accrued Accounts Receivables
shall be reduced from 80% to 40%. Accordingly, the definition of the term
"Borrowing Base" appearing in Section 1.1 of the Credit Agreement is hereby
amended within subparagraph (i) by replacing the reference to the advance rate
of "80%" with the rate of "40%".
(4) Removal of Funding Restriction. The Borrower is
presently limited in its eligible funding within the Borrowing Base calculation
based on the then current outstanding principal balance of the unsecured term
loan. The restriction is hereby removed, and the Borrowing Base Calculation
Worksheet is modified accordingly.
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;
(ii) the Amended and Restated Revolving Notes; and,
(iii) the Renewal Terms 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, both Term and Revolving.
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
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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. Restructuring 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 restructuring fee of $15,000.00.
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, both Term and Revolving.
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 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
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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 March 31, 2003 (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 in the
amount of $2,500.00 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 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
6
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.
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: __________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary and Chief Financial
Officer
Revolving Loan Commitment BANK ONE, OKLAHOMA, N.A.,
from and after Amendment Date: Individually and as Agent
$4,125,000.00
Term Loan Commitment By: __________________________________
from and after Amendment Date: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
$2,427,799.30 Title: First Vice President
Revolving Loan Commitment U.S. BANK NATIONAL ASSOCIATION
from and after Amendment Date: (formerly known as Firstar Bank, N.A.,
$3,375,000.00 successor by merger to Firstar Bank
Missouri, National Association)
Term Loan Commitment
From and after Amendment Date: By: __________________________________
$1,986,381.24 Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
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EXHIBITS
Exhibit F-1C - Form of Renewal Revolving Note (in two forms)
Exhibit F-2C - Form of Renewal Term Note (in two forms)
Exhibit F-3C Form of Renewal R/E Term Note (in two forms)
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: _____________________________
Name: ___________________________
Title: __________________________
AMENDED AND RESTATED REVOLVING NOTE
(Exhibit F-1C)
$3,375,000 May 1, 2003
Tulsa, Oklahoma
XETA Technologies, Inc., an Oklahoma corporation (the "Borrower"),
promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION (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, as further amended by that certain Third
Amendment to Amended and Restated Credit Agreement dated effective as of
December 1, 2002, as further amended by that certain Fourth Amendment to Amended
and Restated Credit Agreement dated effective as of March 1, 2003 and as further
amended by that certain Fifth Amendment to Amended and Restated Credit Agreement
dated effective May 1, 2003 (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. All assets of Borrower are
cross-pledged to all other facilities in the Credit Agreement.
This Note is made, executed and delivered by the Borrower and delivered
to the Lender in renewal, extension, replacement, amendment, restatement and
increase of 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 $2,250,000 (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
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
AMENDED AND RESTATED REVOLVING NOTE OF XETA TECHNOLOGIES, INC.
DATED MAY 1, 2003
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
--------------------------------------------------------------------------------------------------------
May 1, 2003
RENEWAL REVOLVING NOTE
(Exhibit F-1C)
$4,125,000.00 May 1, 2003
Tulsa, Oklahoma
XETA Technologies, Inc., an Oklahoma corporation (the "Borrower"),
promises to pay to the order of BANK ONE, OKLAHOMA, N.A. (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, as further amended by that certain Third
Amendment to Amended and Restated Credit Agreement dated effective as of
December 1, 2002, as further amended by that certain Fourth Amendment to Amended
and Restated Credit Agreement dated effective as of March 1, 2003 and as further
amended by that certain Fifth Amendment to Amended and Restated Credit Agreement
dated effective May 1, 2003 (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. All assets of Borrower are
cross-pledged to all other facilities in the Credit Agreement.
This Note is made, executed and delivered by the Borrower and delivered
to the Lender in renewal, extension, replacement, amendment, restatement and
increase of 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 $2,750,000.00 (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
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
AMENDED AND RESTATED REVOLVING NOTE OF XETA TECHNOLOGIES,
INC.
DATED MAY 1, 2003
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
-------------------------------------------------------------------------------------------------------
May 1, 2003
RENEWAL TERM NOTE
(Exhibit F-2C)
$1,986,381.24
May 1, 2003
Tulsa, Oklahoma
XETA Technologies, Inc., an Oklahoma corporation (the "Borrower"),
promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION (the "Lender"),
the aggregate unpaid principal amount of the Term Loans made by the Lender to
the Borrower pursuant to Section 2.1.2 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 Term Loans in full on December 31, 2003, and prior to maturity
shall make such payments, including mandatory prepayments, as are required to by
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 Term Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Term 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, as further amended by that certain Third
Amendment to Amended and Restated Credit Agreement dated effective as of
December 1, 2002, as further amended by that certain Fourth Amendment to Amended
and Restated Credit Agreement dated effective as of March 1, 2003 and as further
amended by that certain Fifth Amendment to Amended and Restated Credit Agreement
dated effective May 1, 2003 (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. All assets of Borrower are
cross-pledged to all other facilities in the Credit Agreement.
This Note is made, executed and delivered by the Borrower and delivered
to the Lender in renewal, extension and replacement of that certain Term Note
dated as of October 31, 2001, executed by the Borrower payable to the order of
the Lender in the stated principal amount (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
2
RENEWAL TERM NOTE
(Exhibit F-2C)
$2,427,799.30
May 1, 2003
Tulsa, Oklahoma
XETA Technologies, Inc., an Oklahoma corporation (the "Borrower"),
promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION (the "Lender"),
the aggregate unpaid principal amount of the Term Loans made by the Lender to
the Borrower pursuant to Section 2.1.2 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 Term Loans in full on December 31, 2003, and prior to maturity
shall make such payments, including mandatory prepayments, as are required to by
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 Term Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Term 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, as further amended by that certain Third
Amendment to Amended and Restated Credit Agreement dated effective as of
December 1, 2002, as further amended by that certain Fourth Amendment to Amended
and Restated Credit Agreement dated effective as of March 1, 2003 and as further
amended by that certain Fifth Amendment to Amended and Restated Credit Agreement
dated effective May 1, 2003 (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. All assets of Borrower are
cross-pledged to all other facilities in the Credit Agreement.
This Note is made, executed and delivered by the Borrower and delivered
to the Lender in renewal, extension and replacement of that certain Term Note
dated as of October 31, 2001, executed by the Borrower payable to the order of
the Lender in the stated principal amount (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
3
RENEWAL R/E TERM NOTE
(Exhibit F-3C)
$1,262,250.12
May 1, 2003
Tulsa, Oklahoma
XETA Technologies, Inc., an Oklahoma corporation (the "Borrower"),
promises to pay to the order of BANK ONE, OKLAHOMA, N.A. (the "Lender") the
aggregate unpaid principal amount of the R/E Term Loan made by the Lender to the
undersigned pursuant to Section 2.1.3 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 undersigned
shall pay the principal of and accrued and unpaid interest on the R/E Term Loan
in full on the December 31, 2003, and prior to maturity shall make such
payments, including mandatory prepayments, 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 the R/E Term Loan and the date and amount of each
principal payment hereunder.
This Note is one of the R/E Term 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, as further amended by that certain Third
Amendment to Amended and Restated Credit Agreement dated effective as of
December 1, 2002, as further amended by that certain Fourth Amendment to Amended
and Restated Credit Agreement dated effective as of March 1, 2003 and as further
amended by that certain Fifth Amendment to Amended and Restated Credit Agreement
dated effective May 1, 2003 (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, to which Agreement reference is hereby made 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. Capitalized terms used herein and not otherwise defined herein are
used with the meanings attributed to them in the Agreement.
This Note is secured pursuant to the Collateral Documents, all as more
specifically described in the Agreement, and reference is made thereto for a
statement of the terms and provisions thereof. All assets of the Borrower are
cross-pledged to all other facilities in the Credit Agreement.
This Note is made, executed and delivered by the Borrower and delivered
to the Lender to evidence a portion of the indebtedness outstanding under that
certain Acquisition Term Note dated November 30, 2000, executed by the Borrower
payable to the order of the Lender (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 this Note.
XETA TECHNOLOGIES, INC.,
an Oklahoma corporation
By: ________________________________________
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary and Chief Financial Officer
RENEWAL R/E TERM NOTE
(Exhibit F-3C)
$1,032,750.00
May 1, 2003
Tulsa, Oklahoma
XETA Technologies, Inc., an Oklahoma corporation (the "Borrower"),
promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION (the "Lender")
the aggregate unpaid principal amount of the R/E Term Loan made by the Lender to
the undersigned pursuant to Section 2.1.3 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 undersigned shall pay the principal of and accrued and unpaid
interest on the R/E Term Loan in full on the December 31, 2003, and prior to
maturity shall make such payments, including mandatory prepayments, 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 the R/E Term Loan and the date and amount of each
principal payment hereunder.
This Note is one of the R/E Term 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, as further amended by that certain Third
Amendment to Amended and Restated Credit Agreement dated effective as of
December 1, 2002, as further amended by that certain Fourth Amendment to Amended
and Restated Credit Agreement dated effective as of March 1, 2003 and as further
amended by that certain Fifth Amendment to Amended and Restated Credit Agreement
dated effective May 1, 2003 (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, to which Agreement reference is hereby made 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. Capitalized terms used herein and not otherwise defined herein are
used with the meanings attributed to them in the Agreement.
This Note is secured pursuant to the Collateral Documents, all as more
specifically described in the Agreement, and reference is made thereto for a
statement of the terms and provisions thereof. All assets of the Borrower are
cross-pledged to all other facilities in the Credit Agreement.
This Note is made, executed and delivered by the Borrower and delivered
to the Lender to evidence a portion of the indebtedness outstanding under that
certain Acquisition Term Note dated November 30, 2000, executed by the Borrower
payable to the order of the Lender (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 this Note.
XETA TECHNOLOGIES, INC.,
an Oklahoma corporation
By: ________________________________________
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary and Chief Financial Officer