Exhibit 10(a)
Comerica
Amendment to Credit Agreement
This Amendment to Credit Agreement ("Amendment") is made, delivered, and
effective as of October 14, 2004, by and between MICROWAVE TRANSMISSION SYSTEMS,
INC. (herein referred to with all successors, assigns, and/or personal
representatives as the "Parent"), MTSI, INC., a Texas corporation ("MTSI"), EPIC
COMMUNICATIONS, INC., a Texas corporation ("ECI"), a Texas corporation ("ECI"),
CKS MANAGEMENT, INC., a Texas corporation ("CKS"), VIPER COMMUNICATION SYSTEMS,
INC., a Texas corporation ("VCS")(Parent, MTSI, ECI, CKS, and VCS, each
individually a "Borrower" and collectively the "Borrowers") and COMERICA BANK
("Bank")
WHEREAS, PURSUANT TO the terms and conditions of that certain Credit Agreement
("Credit Agreement") dated as of July 30, 2004 by and between Borrower and Bank,
Bank made certain loans and credit accommodations to Borrower (the "Loans"); and
WHEREAS, repayment of the Loans is guaranteed by the Xxxxxxx X. Xxxxxxx
("Guarantor") pursuant to that certain Guaranty Agreement dated as of July 30,
2004 (the "Guaranty").
WHEREAS, Bank and Borrower desire to amend the Credit Agreement as set forth
below;
NOW, THEREFORE, in consideration of the premises and the mutual promises
contained in this Amendment, Borrower and Bank agree as follows:
1. For the fiscal quarter ending December 31, 2004 only, Bank shall add
Borrower's goodwill write down, up to $3,000,000.00 to the numerator in
its calculation of Borrower's "Cash Flow Coverage Ratio" as defined in
Section 4.3 of the Credit Agreement. Thereafter , the Cash Flow
Coverage Ratio shall be calculated in accordance with the definition
currently described in the Credit Agreement.
2. The execution of this Amendment shall not be deemed to be a waiver of
any Default or Event of Default.
3. All the terms used in this Amendment which are defined in the Credit
Agreement shall have the same meaning as used in the Credit Agreement,
unless otherwise defined in this Amendment.
4. Borrower waives, discharges, and forever releases Bank, Bank's
employees, officers, directors, attorneys, stockholders, and their
successors and assigns, from and of any and all claims, causes of
action, allegations or assertions that Borrower has or may have had at
any time up through and including the date of this Amendment, against
any or all of the foregoing, regardless of whether any such claims,
causes of action, allegations or assertions are known to Borrower or
whether any such claims, causes of action, allegations or assertions
arose as result of Bank's actions or omissions in connection with the
Loans, or any amendments, extensions or modifications thereof, or
Bank's administration of the Loans or otherwise, INCLUDING ANY CLAIMS
CAUSES OF ACTION, ALLEGATIONS OR ASSERTIONS RESULTING FROM BANK'S OWN
NEGLIGENCE, except and to the extent (but only to the extent) caused by
Bank's gross negligence or willful misconduct.
5. This Amendment is not an agreement to any further or other amendment of
the Loans or Credit Agreement.
6. Borrower expressly acknowledges and agrees that except as expressly
amended in this Amendment, the Credit Agreement, as amended, remain in
full force and effect and is ratified, confirmed and restated. This
Amendment shall neither extinguish nor constitute a novation of any
notes relating to the Loans or the Indebtedness evidenced thereby.
7. THIS AMENDMENT AND THE OTHER "LOAN AGREEMENTS" (AS DEFINED IN SECTION
26.02(A)(2) OF THE TEXAS BUSINESS & COMMERCE CODE, AS AMENDED)
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES, AND THIS AMENDMENT
AND THE OTHER WRITTEN LOAN AGREEMENTS MYA NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment on
the date set forth above.
BORROWERS: BANK
MICROWAVE TRANSMISSION SYSTEMS, INC., COMERICA BANK
A Texas corporation
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxx
Preston Xxxxx Xxxxxxx, Chief Executive Officer Xxxxxxx Xxxxx, Vice President
MTSI, INC., a Texas corporation
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxx Xxxxxxx, President
EPIC COMMUNICATIONS, INC.,
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxx Xxxxxxx, President
CKS MANAGEMENT, INC.,
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxx Xxxxxxx, President
VIPER COMMUNICATION SYSTEMS, INC., a Texas corporation
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxx Xxxxxxx, President
