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THIRD MODIFICATION, RENEWAL AND EXTENSION AGREEMENT
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THIS THIRD MODIFICATION, RENEWAL AND EXTENSION AGREEMENT ("Agreement") is
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entered into effective February 1, 2005, by and between THE FROST NATIONAL BANK,
a national banking association ("Lender"), and CONTEMPORARY CONSTRUCTORS, INC.,
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a Texas corporation ("Borrower").
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R E C I T A L S:
A. Lender is the sole owner and holder of that one certain Promissory
Note (Floating Rate) (the "Note") dated November 24, 2003, executed by Borrower
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and payable to the order of Lender in the original principal amount of TWO
MILLION ONE HUNDRED SEVENTY SEVEN THOUSAND EIGHTY THREE AND 45/100 DOLLARS
($2,177,083.45).
B. The Note was issued pursuant to a Loan Agreement, dated November 24,
2004, between Borrower and Lender, as amended by a First Amendment to Loan
Agreement, dated May 24, 2004, as further amended by a Second Amendment to Loan
Agreement of even date (as amended, the "Loan Agreement").
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C. The Note is secured by (i) a Security Agreement, dated November 24,
2003, executed by Borrower in favor of Lender, (ii) a Security Agreement, dated
November 24, 2003, executed by Berkshire Wireless, Inc., in favor of Lender,
(iii) a Security Agreement, dated November 24, 2003, executed by CCI Integrated
Solutions Inc., in favor of Lender, (iv) a Security Agreement, dated May 24,
2004, executed by Borrower in favor of Lender, (v) a Security Agreement, dated
May 24, 2004, executed by Berkshire Wireless, Inc., in favor of Lender, and (vi)
a Security Agreement, dated May 24, 2004, executed by CCI Integrated Solutions,
Inc., in favor of Lender (collectively, the "Security Agreements").
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D. The Note is guaranteed pursuant to (i) a Commercial Guaranty dated
May 26, 2003, executed by Xxxxxxx X. Xxxxx in favor of Lender, (ii) a Commercial
Guaranty dated May 26, 2003, executed by CCI Telecom, Inc., in favor of Lender,
(iii) a Commercial Guaranty dated May 26, 2003, executed by Berkshire Wireless,
Inc., in favor of Lender, (iv) a Guaranty Agreement executed by Xxxxxxx X.
Xxxxx, dated November 24, 2003, (v) a Guaranty Agreement executed by CCI Telecom
Inc., dated November 24, 2003, (vi) a Guaranty Agreement executed by Berkshire
Wireless, Inc., dated November 24, 2003, and (vii) a Guaranty Agreement executed
by CCI Integrated Solutions, Inc., dated November 24, 2003 (collectively, the
"Guaranty Agreements").
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E. The Note has been modified pursuant to (i) a Modification, Renewal
and Extension Agreement effective May 24, 2004 and (ii) a Second Modification,
Renewal and Extension Agreement effective September 21, 2004. The Note, the Loan
Agreement, the Security Agreements, the Guaranty Agreements, and any and all
modifications, renewals, and extensions are hereinafter collectively referred to
as the "Loan Documents").
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F. Borrower has requested that Lender modify certain provisions of the
Note, as previously modified, and the Loan Agreement, all as hereinafter
provided, and in consideration thereof Borrower has made certain agreements with
Lender as hereinafter more fully set forth.
G. Lender has agreed to such requests, subject to the terms and
conditions set forth herein.
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and agreed, Borrower and Lender hereby agree as follows:
1. Acknowledgment of Outstanding Balance. The parties hereto
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acknowledge that the outstanding principal balance of the Note as of the
effective date, February 1, 2005, is ONE MILLION, SEVEN HUNDRED NINE THOUSAND,
TWO HUNDRED ONE AND 51/100 DOLLARS ($1,709,201.51).
2. Acknowledgement of Current Interest Rate. The parties hereto
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acknowledge that the current interest rate, as of February 1, 2005, computed in
accordance with the terms of the Note, as modified, is eight and one-fourth
percent (8 and 1/4%).
3. Maturity. The maturity of the Note remains September 20, 2005 (the
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"Maturity Date").
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4. Required Payments. From and after the effective date of this
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Agreement, principal and interest under the Note shall be due and payable as
follows:
Interest only, computed on the unpaid principal balance hereof, shall
be payable monthly as it accrues, on the 21st day of each calendar
month beginning February 21, 2005, and continuing regularly thereafter
until September 20, 2005, when the entire amount hereof, principal and
interest then remaining unpaid, shall be due and payable; interest
being calculated on the unpaid principal each day principal is
outstanding and all payments made credited to any collection costs and
late charges, to the discharge of interest accrued and to the
reduction of the principal, in such order as Lender shall determine.
5. Interest Rate. The annual interest rate provided for in the Note
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shall be amended such that interest shall be charged from and after the
effective date of this Agreement as follows:
Interest on the outstanding and unpaid principal balance of this Note shall
be computed at a per annum rate equal to the lesser of (a) a rate equal to the
Prime Rate of Lender, plus three percent (3%) per annum, with said rate to be
adjusted to reflect any change in said Prime Rate at the time of any such change
or (b) the highest rate permitted by applicable law; but in no event shall
interest contracted for, charged or received hereunder plus any other charges in
connection herewith which constitute interest exceed the maximum interest
permitted by applicable law. The "Prime Rate" shall mean the prime rate of
interest charged by Lender as established from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer.
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Interest shall be computed on a per annum basis of a year of 360 days and
for the actual number of days elapsed, unless such calculation would result in a
rate greater than the highest rate permitted by applicable law, in which case
interest shall be computed on a per annum basis of a year of 365 days or 366
days in a leap year, as the case may be.
Matured unpaid principal and interest shall bear interest from date of
maturity until paid at (a) the highest rate permitted by applicable law, or (b)
if no such maximum rate is established by applicable law, at the rate stated
above plus five percent (5%) per annum.
6. Usury. No provisions of this Agreement or the Loan Documents shall
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require the payment or permit the collection, application or receipt of interest
in excess of the maximum permitted by applicable state or federal law. If any
excess of interest in such respect is herein or in any such other instrument
provided for, or shall be adjudicated to be so provided for herein or in any
such instrument, the provisions of this paragraph shall govern, and neither
Borrower nor any endorsers of the Note nor their respective successors, assigns
or personal representatives shall be obligated to pay the amount of such
interest to the extent it is in excess of the amount permitted by applicable
law. It is expressly stipulated and agreed to be the intent of Borrower and
Lender to at all times comply with the usury and other laws relating to the Loan
Documents and any subsequent revisions, repeals or judicial interpretations
thereof, to the extent applicable thereto. In the event Lender or other holder
of the Note ever receives, collects or applies as interest any such excess, such
amount which would be excessive interest shall be applied to the reduction of
the unpaid principal balance of the Note and, if upon such application the
principal balance of the Note is paid in full, any remaining excess shall be
forthwith paid to Borrower and the provisions of the Loan Documents shall
immediately be deemed reformed and the amounts thereafter collectible thereunder
reduced, without the necessity of execution of any new document, so as to comply
with the then applicable law, but so as to permit the recovery of the fullest
amount otherwise called for thereunder. In determining whether or not the
interest paid or payable under any specific contingency exceeds the maximum
interest allowed to be charged by applicable law, Borrower and Lender or other
holder hereof shall, to the maximum extent permitted under applicable law,
amortize, prorate, allocate and spread the total amount of interest throughout
the entire term of the Note so that the amount or rate of interest charged for
any and all periods of time during the term of the Note is to the greatest
extent possible less than the maximum amount or rate of interest allowed to be
charged by law during the relevant period of time. Notwithstanding any of the
foregoing, if at any time applicable laws shall be changed so as to permit a
higher rate or amount of interest to be charged than that permitted prior to
such change, then unless prohibited by law, references in the Note to
"applicable law" for purposes of determining the maximum interest or rate of
interest that can be charged shall be deemed to refer to such applicable law as
so amended to allow the greater amount or rate of interest.
7. RELEASE AND WAIVER OF CLAIMS. IN CONSIDERATION OF (i) THE
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MODIFICATION OF CERTAIN PROVISIONS OF THE NOTE, AS HEREIN PROVIDED, AND (ii) THE
OTHER BENEFITS RECEIVED BY BORROWER HEREUNDER, BORROWER HEREBY RELEASES,
RELINQUISHES AND FOREVER DISCHARGES LENDER, AS WELL AS ITS PREDECESSORS,
SUCCESSORS, ASSIGNS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES AND REPRESENTATIVES,
OF AND FROM ANY AND ALL CLAIMS, DEMANDS, ACTIONS AND CAUSES OF ACTION OF ANY AND
EVERY KIND OR CHARACTER, PAST OR PRESENT, WHICH BORROWER MAY HAVE AGAINST LENDER
AND ITS PREDECESSORS, SUCCESSORS, ASSIGNS, AGENTS, OFFICERS,
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DIRECTORS, EMPLOYEES AND REPRESENTATIVES ARISING OUT OF OR WITH RESPECT TO (a)
ANY RIGHT OR POWER TO BRING ANY CLAIM AGAINST LENDER FOR USURY OR TO PURSUE ANY
CAUSE OF ACTION AGAINST LENDER BASED ON ANY CLAIM OF USURY, AND (b) ANY AND ALL
TRANSACTIONS RELATING TO THE LOAN DOCUMENTS OCCURRING PRIOR TO THE DATE HEREOF,
INCLUDING ANY LOSS, COST OR DAMAGE, OF ANY KIND OR CHARACTER, ARISING OUT OF OR
IN ANY WAY CONNECTED WITH OR IN ANY WAY RESULTING FROM THE ACTS, ACTIONS OR
OMISSIONS OF LENDER, AND ITS PREDECESSORS, SUCCESSORS, ASSIGNS, AGENTS,
OFFICERS, DIRECTORS, EMPLOYEES AND REPRESENTATIVES, INCLUDING ANY BREACH OF
FIDUCIARY DUTY, BREACH OF ANY DUTY OF FAIR DEALING, BREACH OF CONFIDENCE, BREACH
OF FUNDING COMMITMENT, UNDUE INFLUENCE, DURESS, ECONOMIC COERCION, CONFLICT OF
INTEREST, NEGLIGENCE, BAD FAITH, MALPRACTICE, INTENTIONAL OR NEGLIGENT
INFLICTION OF MENTAL DISTRESS, TORTUOUS INTERFERENCE WITH CONTRACTUAL RELATIONS,
TORTUOUS INTERFERENCE WITH CORPORATE GOVERNANCE OR PROSPECTIVE BUSINESS
ADVANTAGE, BREACH OF CONTRACT, DECEPTIVE TRADE PRACTICES, LIBEL, SLANDER OR
CONSPIRACY, BUT IN EACH CASE ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
8. Reaffirmation of Representations, Etc. Borrower hereby reaffirms to
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Lender each of the representations, warranties, covenants and agreements of
Borrower set forth in the Loan Documents.
9. Enforceable Obligations. Borrower hereby ratifies, affirms,
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reaffirms, acknowledges, confirms and agrees that the Loan Documents represent
valid and enforceable obligations of Borrower, and Borrower further acknowledges
that there are no existing claims, defenses, personal or otherwise, or rights of
setoff whatsoever with respect to the Note, and Borrower further acknowledges
and represents that no event has occurred and no condition exists which would
constitute a default under the Loan Documents or this Agreement, either with or
without notice or lapse of time, or both.
10. No Release of Liens. This Agreement in no way acts as a release or
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relinquishment of the liens, security interests and rights (the "Liens") created
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or evidenced by the Security Agreements. The Liens are hereby ratified and
confirmed by Borrower in all respects and are extended to secure (i) the
principal amount of the Note, (ii) all interest, charges and other sums payable
with respect thereto, and (iii) the performance of all other obligations under
the Security Agreements.
11. Additional Renewals and Extensions. Notwithstanding anything to
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the contrary contained herein or inferred hereby or in any other instrument
executed by Borrower or in any other action or conduct undertaken by Borrower on
or before the date hereof, the agreements, covenants and provisions contained
herein shall constitute the only evidence of Lender's consent to extend the
terms and provisions of the Loan Documents in the manner set forth herein. No
express or implied consent to any further extensions and/or modifications
involving any of the matters set forth in this Agreement or otherwise, shall be
inferred or implied from Lender's execution of this Agreement. Further,
Lender's execution of this Agreement shall not constitute a waiver (either
express or implied) of the requirement that any further extensions and/or
modifications of the Loan Documents shall require the express written approval
of Lender, no such approval (either express or implied) having been given as of
the date hereof.
12. Miscellaneous. (a) As modified hereby, the provisions of the Note
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and the other Loan Documents shall continue in full force and effect, and the
Borrower acknowledges and
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reaffirms its liability to Lender thereunder. In the event of any inconsistency
between this Agreement and the terms of the Loan Documents, this Agreement shall
govern.
(b) Borrower hereby agrees to pay all costs and expenses incurred by
Lender in connection with the execution and administration of this Agreement and
the modification of the Loan Documents including, but not limited to, all
appraisal costs, title insurance costs, legal fees incurred by Lender and filing
fees.
(c) Any default by Borrower in the performance of its obligations
herein contained shall constitute a default under the Loan Documents and shall
allow Lender to exercise all of its remedies set forth in the Loan Documents.
(d) Lender does not, by its execution of this Agreement, waive any
rights it may have against any person not a party to this Agreement.
(e) In case any of the provisions of this Agreement shall for any
reason be held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
(f) This Agreement and the Loan Documents shall be governed and
construed according to the laws of the State of Texas (without regard to any
conflict of laws principles) and the applicable laws of the United States.
(g) This Agreement shall be binding upon and inure to the benefit of
Lender, Borrower and their respective successors, assigns and legal
representatives.
(h) Borrower hereby acknowledges and agrees that it has entered into this
Agreement of its own free will and accord and in accordance with its own
judgment after advice of its own legal counsel, and states that it has not been
induced to enter into this Agreement by any statement, act or representation of
any kind or character on the part of the parties hereto, except as expressly set
forth in this Agreement.
(i) This Agreement may be executed in multiple counterparts, each of which
shall constitute an original instrument, but all of which shall constitute one
and the same agreement.
(j) Except as modified herein, all other terms, conditions and provisions
of Loan Documents shall remain in full force and effect as of the date thereof
and Borrower acknowledges and reaffirms its liability to Lender thereunder.
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EXECUTED as of the day and year first above written.
BORROWER: LENDER:
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CONTEMPORARY CONSTRUCTORS, INC., THE FROST NATIONAL BANK,
a Texas corporation a national banking association
By: /s/ Xxxxxxx X. Xxxxx By:
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Xxxxxxx X. Xxxxx Name:
President --------------------------
Title:
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Debtor Ratification of Agreement
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By executing this Agreement, Berkshire Wireless, Inc., as "Debtor" in a
Security Agreement dated November 24, 2003, and a Security Agreement dated May
24, 2004, hereby expressly agrees to the provisions herein applicable to said
"Debtor", hereby expressly modifies, extends and carries forward the Liens on
the Property as provided herein and hereby joins in the provisions of Section 7
hereof.
BERKSHIRE WIRELESS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President
Debtor Ratification of Agreement
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By executing this Agreement, CCI Integrated Solutions Inc., as "Debtor" in
a Security Agreement dated November 24, 2003, and a Security Agreement dated May
24, 2004, hereby expressly agrees to the provisions herein applicable to said
"Debtor", hereby expressly modifies, extends and carries forward the Liens on
the Property as provided herein and hereby joins in the provisions of Section 7
hereof.
CCI INTEGRATED SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President
Guarantor Ratification of Agreement
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By executing this Agreement, Xxxxxxx X. Xxxxx, as a Guarantor of the
indebtedness evidenced by the Note, as set forth in a Commercial Guaranty dated
May 26, 2003, and a Guaranty Agreement dated November 24, 2003,(collectively,
the "Guaranty"), hereby expressly agrees (a) to all of the terms and provisions
of this Agreement, (b) to the continuing validity of the Guaranty and all duties
and obligations thereunder, (c) that his liability under the Guaranty shall not
be reduced, altered, limited, lessened or in any way affected by the execution
and delivery of this Agreement by the parties hereto, (d) that the Guaranty
shall remain in full force and effect and enforceable in accordance with its
terms and (e) to join in the provisions of Section 7 hereof.
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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Guarantor Ratification of Agreement
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By executing this Agreement, CCI Integrated Solutions Inc., as a Guarantor
of the indebtedness evidenced by the Note, as set forth in a Guaranty Agreement
(the "Guaranty") dated November 24, 2003, hereby expressly agrees (a) to all of
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the terms and provisions of this Agreement, (b) to the continuing validity of
the Guaranty and all duties and obligations thereunder, (c) that its liability
under the Guaranty shall not be reduced, altered, limited, lessened or in any
way affected by the execution and delivery of this Agreement by the parties
hereto, (d) that the Guaranty shall remain in full force and effect and
enforceable in accordance with its terms and (e) to join in the provisions of
Section 7 hereof.
CCI INTEGRATED SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
Guarantor Ratification of Agreement
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By executing this Agreement, Berkshire Wireless, Inc., as a Guarantor of
the indebtedness evidenced by the Note, as set forth in a Commercial Guaranty
dated May 26, 2003, and a Guaranty Agreement dated November 24, 2003
(collectively, the "Guaranty"), hereby expressly agrees (a) to all of the terms
and provisions of this Agreement, (b) to the continuing validity of the Guaranty
and all duties and obligations thereunder, (c) that its liability under the
Guaranty shall not be reduced, altered, limited, lessened or in any way affected
by the execution and delivery of this Agreement by the parties hereto, (d) that
the Guaranty shall remain in full force and effect and enforceable in accordance
with its terms and (e) to join in the provisions of Section 7 hereof.
BERKSHIRE WIRELESS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
Guarantor Ratification of Agreement
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By executing this Agreement, CCI Telecom, Inc., as a Guarantor of the
indebtedness evidenced by the Note, as set forth in a Commercial Guaranty dated
May 26, 2003, and a Guaranty Agreement dated November 24, 2003 (collectively,
the "Guaranty"), hereby expressly agrees (a) to all of the terms and provisions
of this Agreement, (b) to the continuing validity of the Guaranty and all duties
and obligations thereunder, (c) that its liability under the Guaranty shall not
be reduced, altered, limited, lessened or in any way affected by the execution
and delivery of this Agreement by the parties hereto, (d) that the Guaranty
shall remain in full force and effect and enforceable in accordance with its
terms and (e) to join in the provisions of Section 7 hereof.
CCI TELECOM, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
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THE STATE OF TEXAS }
}
COUNTY OF BEXAR }
This instrument was acknowledged before me on the ______ day of
_______________, 2005, by ________________, __________________ of THE FROST
NATIONAL BANK, a national banking association, on behalf of said banking
association.
___________________________________________
Notary Public in and for the State of Texas
THE STATE OF TEXAS }
}
COUNTY OF BEXAR }
This instrument was acknowledged before me on the ______ day of
_______________, 2005, by Xxxxxxx X. Xxxxx.
___________________________________________
Notary Public in and for the State of Texas
THE STATE OF TEXAS }
}
COUNTY OF BEXAR }
This instrument was acknowledged before me on the ______ day of
_______________, 2005, by Xxxxxxx X. Xxxxx, President of CONTEMPORARY
CONSTRUCTORS, INC., a Texas corporation, on behalf of said corporation.
___________________________________________
Notary Public in and for the State of Texas
THE STATE OF TEXAS }
}
COUNTY OF BEXAR }
This instrument was acknowledged before me on the ______ day of
_______________, 2005, by Xxxxxxx X. Xxxxx, President of CCI INTEGRATED
SOLUTIONS, INC., a Texas corporation, on behalf of said corporation.
___________________________________________
Notary Public in and for the State of Texas
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THE STATE OF TEXAS }
}
COUNTY OF BEXAR }
This instrument was acknowledged before me on the ___ day
of_________________, 2005, by Xxxxxxx X. Xxxxx, President of CCI TELECOM, INC.,
a Nevada corporation, on behalf of said corporation.
___________________________________________
Notary Public in and for the State of Texas
THE STATE OF TEXAS }
}
COUNTY OF BEXAR }
This instrument was acknowledged before me on the ___ day of
_________________, 2005, by Xxxxxxx X. Xxxxx, President of BERKSHIRE WIRELESS,
INC., a Massachusetts corporation, on behalf of said corporation.
___________________________________________
Notary Public in and for the State of Texas
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