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EIGHTH AMENDMENT TO REVOLVING CREDIT LOAN AGREEMENT
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THIS EIGHTH AMENDMENT TO REVOLVING CREDIT LOAN AGREEMENT
("Eighth Amendment") is made and entered into effective as of the 28th day
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of June, 1996, by and among MEGACARDS, INC., a Missouri corporation with its
principal place of business at 0000 X. Xxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000
("Borrower"), and XXXX XXXXX BANK, a Missouri state chartered banking
corporation, with an office at 00000 Xxxxxxxxx Xxxxxxxxx Xxxxx, Xx. Xxxxx,
Xxxxxxxx 00000 ("Bank").
W.I.T.N.E.S.S.E.T.H.:
WHEREAS, Borrower and Bank have heretofore entered into that certain
Revolving Credit Loan Agreement dated as of August 24, 1990, a First
Amendment to Revolving Credit Loan Agreement dated as of March 12, 1991
("First Amendment"), a Second Amendment to Revolving Credit Loan Agreement
dated as of July 30, 1991 ("Second Amendment"), a Third Amendment to
Revolving Credit Loan Agreement dated as of December 31, 1991 ("Third
Amendment"), a Fourth Amendment to Revolving Credit Loan Agreement dated as
of March 31, 1992 ("Fourth Amendment"), a Fifth Amendment to Revolving Credit
Loan Agreement dated as of June 15, 1993 ("Fifth Amendment"), a Sixth
Amendment to Revolving Credit Loan Agreement dated as of January 1, 1995
("Sixth Amendment"), and a Seventh Amendment to Revolving Credit Loan
Agreement dated as of July 17, 1995 ("Seventh Amendment"), pursuant to which
Bank agreed to make loans for the account of Borrower (hereinafter
collectively referred to as the "Loan Agreement");
WHEREAS, certain of the loans made pursuant to the Loan Agreement are
evidenced by that certain Revolving Credit Note dated as of July 17, 1995,
executed by Borrower to the order of Bank (the"Note");
WHEREAS, Borrower desires to modify the provisions of the Note and
other provisions of the Loan Agreement; and
WHEREAS, Bank is willing to consent to a modification of the Note and
other provisions of the Loan Agreement, upon the terms and conditions as
provided herein.
NOW, THEREFORE, for and in consideration of the foregoing premises and
mutual covenants contained herein and as a material inducement to Bank to
enter into this Eighth Amendment, Borrower and Bank, intending to be legally
bound, hereby agree as follows:
1. The recitals to this Eighth Amendment are material provisions
hereof, and are incorporated herein as if fully set forth herein. Unless
otherwise provided herein, all capitalized terms used herein shall have the
respective meanings assigned to them in the Loan Agreement.
2. The obligation of Bank to enter into this Eighth Amendment is
subject to the satisfaction or fulfillment by Borrower of each of the
following conditions precedent prior to Bank's execution hereof:
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(a) The Bank shall have received the following documents, duly
executed, acknowledged, attested and delivered by all parties thereto, and
otherwise satisfactory in form and content to the Bank and its counsel,
consisting of:
(i) Eighth Amendment. This Eighth Amendment.
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(ii) Borrower's Approvals. A copy of the resolutions of
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the board of directors of Borrower approving the execution and delivery of,
and Borrowers' performance of, its obligations under this Eighth Amendment,
together with all other documents or instruments to be executed in connection
with or to carry out the purposes thereof (collectively the "Eighth Amendment
Loan Documents").
(iii) Certificate of Borrower's Secretary. A certificate
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executed by the duly elected Secretary of Borrower dated the date hereof and
certifying (i) that the copies of Borrower's certificate and articles of
incorporation and bylaws now or heretofore furnished to Bank are true,
accurate and complete and contain all amendments thereto as of the date of
this Eighth Amendment, (ii) that the resolutions of the board of directors
have been duly adopted and are in full force and effect as of the date of
this Eighth Amendment, and (iii) the names, titles and true signatures of
such Borrower's officers who are authorized to sign the Eighth Amendment and
the Eighth Amendment Loan Documents.
(iv) Certificates of Good Standing. A certificate of
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good standing for Borrower issued by the Secretary of State of Borrower's
state of incorporation, and any jurisdiction in which it is licensed to do
business as a foreign corporation;
(b) Payment at closing of the fees and expenses of Bank in
connection with the transactions contemplated hereby including the fees and
expenses of counsel to Bank relating to the preparation, negotiation and
documentation of this Eighth Amendment, together with the other Eighth
Amendment Loan Documents not to exceed $1,500.
(c) Such other approvals, opinions, or documents as the Bank
may reasonably request.
3. As a material inducement to Bank to enter into this Eighth
Amendment, Borrower hereby represents, warrants and covenants to Bank, which
said representations, warranties and covenants shall survive the execution
and delivery of this Eighth Amendment, that as of the effective date of this
Eighth Amendment:
(a) All of the recitals to this Eighth Amendment are true and
correct.
(b) As of date, the execution and delivery of, and the
performance by Borrower of its obligations under, the Eighth Amendment Loan
Documents are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action taken as of the date on which
this Eighth Amendment has been executed and delivered to
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Bank, and do not contravene (i) the Borrower's articles of incorporation or
by-laws, or (ii) any law or contractual restriction binding on or affecting
the Borrower or its properties and do not result in or require the creation of
any lien, encumbrance or other charge upon or with respect to any of its
assets or properties other than in favor of Bank.
(c) No authorization or approval or other action by, and no
notice to or filing with, any person or any governmental authority or other
regulatory body is required for the due execution, delivery and performance
by the Borrower of the Eighth Amendment or any of the other Eighth Amendment
Loan Documents, or the exercise by the Bank of its rights thereunder.
(d) The Eighth Amendment and the other Eighth Amendment Loan
Documents, and the Loan Agreement, as amended by the First Amendment, the
Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth
Amendment, the Sixth Amendment, the Seventh Amendment and this Eighth
Amendment are the legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally.
(e) All financial statements of Borrower heretofore delivered
to Bank are complete and accurate, have been prepared in accordance with
generally accepted accounting principles, consistently applied and fairly
present the financial condition and results of Borrower's operations as of
the dates and for the periods stated therein.
(f) No event has occurred and is continuing, or would result
from entering into this Eighth Amendment or any other Eighth Amendment Loan
Documents, which constitutes an Event of Default or would constitute an Event
of Default but for the requirement of the giving of notice or the passage of
time, or both.
(g) No consent, permit, license, approval or authorization of,
or notice to any person is necessary or required in connection with the
execution, delivery or performance by Borrower of its obligations under this
Eighth Amendment and/or any of the Eighth Amendment Loan Documents, or the
exercise by Bank of its rights and remedies under the Loan Agreement or any
of the Loan Documents.
(h) The chief executive office and principal place of business
and the office where Borrower keeps all of its records concerning accounts
receivable and inventory is at: 0000 X. Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000,
and each location at which Borrower maintains any inventory is completely and
accurately set forth in Schedule 3(i) attached hereto and incorporated
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herein by this reference.
4. Section 1.01(a) of the Loan Agreement is hereby amended effective
as of April 1, 1996 by deleting Section 1.01(a) in its entirety, and
inserting in lieu thereof, new Section 1.01(a) to read in words and figures
as follows:
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SECTION 1.01. Revolving Credit Loans.
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(a) Revolving Credit Loans. The Bank may, on the terms and
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conditions hereinafter set forth, make revolving credit loans to the Borrower
from time to time after the date hereof and prior to the earlier of July 17,
1996, or the occurrence of any Event of Default, in the aggregate amount not
to exceed at any time outstanding the LESSER of: (a) the Borrowing Base as
defined in Section 4.01(c) hereof, or (b) Two Million Five Hundred Thousand
Dollars ($2,500,000) (such lesser amount being referred to herein as the
"Commitment"). Within said limits, the Borrower may borrow, repay and
reborrow under this Section 1.01(a).
5. Section 1.05 of the Loan Agreement is hereby amended effective
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as of April 1, 1996 by deleting from said Section 1.05 the language "(a) the
Revolving Credit Note, as hereafter amended and/or restated from time to
time, shall bear interest at a rate per annum equal to two percent (2%) in
excess of the Prime Rate (as hereinafter defined) of the Bank," in its
entirety and substituting therefor, the new language in said Section 1.05, to
read in words and figures as follows: "(a) the Revolving Credit Note, as
hereafter amended and/or restated from time to time, shall bear interest at a
rate per annum equal to one and one-half percent (1 1/2%) in excess of the
Prime Rate (as hereinafter defined) of the Bank."
6. Modification to Revolving Credit Note. The headings and the
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first and second paragraphs on page 1 of the Revolving Credit Note are hereby
amended effective as of April 1, 1996 by deleting and replacing the same with
the following:
REVOLVING CREDIT NOTE
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$2,500,000.00 April 1, 0000
Xx. Xxxxx, Xxxxxxxx
FOR VALUE RECEIVED, the undersigned, MEGACARDS, INC., a Missouri
corporation, with its principal place of business at 0000 X. Xxxxxx Xxxx, Xx.
Xxxxx, Xxxxxxxx 00000 (the "Borrower"), PROMISES TO PAY to the order of XXXX
XXXXX BANK (the "Bank") the principal sum of Two Million Five Hundred
Thousand Dollars ($2,500,000.00), or if less, the amount outstanding under
Section 1.01 of the Loan Agreement (as hereinafter defined) on the
Termination Date (as defined in the Loan Agreement), together with interest
on any and all principal amounts outstanding hereunder from the date hereof
until this Note is paid in full, payable on the last business day of each
month during the term hereof, commencing April 30, 1996, and at maturity of
this Note by termination, acceleration, scheduled maturity or otherwise, at a
fluctuating interest rate per annum which at all times shall be one and one
half percent (1.5%) above the Prime Rate (as defined in the Loan Agreement
referenced below) of the Bank in effect from time to time (calculated on the
basis of a 360-day year for the actual number of days [including the first
day but not excluding the last day] elapsed). Each change in the fluctuating
interest rate hereunder shall take effect simultaneously with the
corresponding change in the Prime Rate. Both principal and interest are
payable in lawful money of the United States of America to the Bank at its
office at 00000 Xxxxxxxxx Xxxxxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, in
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immediately available funds or by Bank charging Borrower's deposit account at
the Bank. All advances made by the Bank to the Borrower pursuant to the Loan
Agreement and all payments made on account of principal hereof shall be
recorded by the Bank on its books. The unpaid principal balance set forth on
the books of the Bank shall be rebuttably presumptive evidence of the
principal amount owing and unpaid on this Note.
This Revolving Credit Note ("Note") is the Revolving Credit Note
referred to in, and is entitled to the benefits of, the Revolving Credit Loan
Agreement dated August 24, 1990, between the Borrower and the Bank, as
amended by that certain First Amendment to Revolving Credit Loan Agreement
dated as of March 12, 1991, that certain Second Amendment to Revolving Credit
Loan Agreement dated as of July 30, 1991, that certain Third Amendment to
Revolving Credit Loan Agreement dated as of December 31, 1991, that certain
Fourth Amendment to Revolving Credit Loan Agreement dated as of March 31,
1992, that certain Fifth Amendment to Revolving Credit Loan Agreement dated
as of June 15, 1995, that certain Sixth Amendment to Revolving Credit Loan
Agreement dated January 1, 1995, that certain Seventh Amendment to Revolving
Credit Loan Agreement dated July 17, 1995, and that certain Eighth Amendment
to Revolving Credit Loan Agreement of even date herewith, as the same may
hereafter be amended, modified, extended or restated from time to time
(collectively the "Loan Agreement") which Loan Agreement, among other things,
contains provisions for reborrowings hereunder prior to maturity upon the
provisions therein specified. All capitalized terms used not otherwise
defined herein shall have the same meaning given them in the Loan Agreement.
7. Name Change. Bank hereby consents to Borrower amending its
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Articles of Incorporation solely for the purpose of changing its legal name
to "Bentley International, Inc." which is scheduled to be approved by
Borrowers' shareholders at their annual meeting held on June 21, 1996. Within
15 days from the date hereof, Borrower shall deliver to Bank and its counsel,
a certified copy of the Amendment to Articles of Incorporation duly filed and
certified by the Missouri Secretary of State. Failure to deliver a certified
copy of the Amendment to Articles of Incorporation as aforesaid shall
constitute an Event of Default under the Loan Agreement. Borrower agrees to
pay all costs and fees incurred by Bank in connection with such change in
name, and the further shall execute all documents, instruments, UCC-3
Amendments and other instruments and shall take all further action as Bank
may require to confirm said change in name.
8. Confirmation of Obligations, Liens and Security Interests. The
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Borrower hereby ratifies and confirms that except as expressly set forth
herein, or referred to herein, the Loan Agreement and all liens, security
interests and other rights in favor of Bank as provided therein and all
agreements delivered by or on behalf of Borrower to Bank in connection
therewith remain in full force and effect and remain enforceable against
Borrower in accordance with their respective terms.
8. Release. In consideration of the agreement of Bank to modify
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the terms of the Loan Agreement as set forth in this Eighth Amendment,
Borrower hereby releases, discharges and acquits forever the Bank and any of
its officers, directors, servants, agents, employees and attorneys, past and
present, from any and all claims, demands and causes of
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action, of whatever nature, whether in contract or tort accrued or to accrue,
contingent or vested, known or unknown, arising out of or relating to the
loans evidenced by the Loan Agreement, as hereby amended, or Bank's
administration of same or any other actions taken pursuant to the Loan
Agreement or under any other documents or instruments evidencing loans made by
Bank to Borrowers or the administration of same through the date hereof.
Borrower hereby further indemnifies and holds Bank, any officers, directors,
servants, agents, employees and attorneys of Bank, past or present, harmless
from any and all such claims, demands and causes of action by Borrower or
anyone claiming by, through or under Borrower or any of them, said indemnity
to cover all losses, expenses incurred by the Bank, its officers, directors,
servants, agents, employees or attorneys, past or present, in connection with
any such claims, demands, or cause of action, including all attorneys' fees
and costs. The Bank acknowledges, however, that the foregoing release and
indemnification shall not apply to any losses or expenses resulting from
Bank's gross negligence or willful misconduct.
10. Course of Dealing. No course of dealing heretofore or hereafter
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between Bank and Borrower and no failure or delay on the part of Bank in
exercising any rights or remedies under the Loan Agreement or existing at law
or in equity, including without limitation, any determination by Bank not to
exercise rights or remedies arising from any Event of Default, shall operate
as a waiver of any right or remedy of Bank with respect to the Borrower's
obligations.
Subsequent to the date on which the Amended Articles of Incorporation
are filed with the Secretary of State and certified copies thereof are
delivered to Bank, and its counsel, then all references in the Loan Agreement
and the other Eighth Amendment Loan Documents and the Loan Agreement (and all
agreements and documents delivered in connection with the Loan Agreement,
including the Revolving Credit Note) to Megacards, Inc. shall mean Bentley
International, Inc.
11. Incorporation by Reference. The Loan Agreement, (and all
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agreements and documents delivered in connection with the Loan Agreement
including the Eighth Amendment), and the exhibits attached hereto and thereto
are incorporated by reference into this Eighth Amendment.
12. Reaffirmation. This Eighth Amendment is executed as a
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modification of the Note, and not as a novation. Except as expressly provided
herein, all provisions of the Note are hereby reaffirmed in their entirety
and shall remain in full force and effect.
13. Governing Law. This Eighth Amendment shall be governed by, and
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construed and enforced in accordance with, the internal laws of the State of
Missouri without regard to conflict of law rules.
14. No Oral Agreements. The following notice is given pursuant to
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Section 432.045 of the Missouri Revised Statutes; nothing contained in such
notice shall be deemed to limit or modify the provisions hereof or the Loan
Agreement:
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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 (BANK)
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.
IN WITNESS WHEREOF, the parties hereto, by and through their duly
authorized representatives, have caused this Eighth Amendment to be executed
this 28th day of June, 1996, to be effective on the day and year first
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written above.
MEGACARDS, INC.
By: /s/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
ATTEST:
(SEAL)
By:/s/Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Secretary
XXXX XXXXX BANK
By:
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Xxxxxx X. Xxx
President
Commercial Finance Division
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ACKNOWLEDGMENTS
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STATE OF MISSOURI )
) ss.
COUNTY OF ST. LOUIS )
On this 28th day of June, 1996, before me appeared Xxxxx X. Xxxxxx
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and Xxxxx Xxxxxx, to me personally known, who, being by me duly sworn, did say
that they are the President and Chief Executive Officer and Secretary,
respectively, of Megacards, Inc., a corporation organized under the laws of
the State of Missouri, and that the seal affixed to the foregoing instrument
is the corporate seal of said corporation, and that said instrument was
signed and sealed in behalf of said corporation, by authority of its Board of
Directors, and said Xxxxx X. Xxxxxx and Xxxxx Xxxxxx acknowledged said
instrument to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the County and State aforesaid, the day and year first above
written.
/s/ Xxxx Xxx Xxxxxxxx
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Notary Public
My term expires:
STATE OF MISSOURI )
) ss.
OF ST. LOUIS )
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On this day of June, 1996, before me appeared Xxxxxx X. Xxx, to
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me personally known, who, being by me duly sworn, did say that he is the
President of Xxxx Xxxxx Bank, Commercial Finance Division, a corporation of
the State of Missouri, and that the seal affixed to the foregoing instrument
is the corporate seal of said corporation, and that said instrument was
signed and sealed in behalf of said corporation, by authority of its Board of
Directors; and said Xxxxxx X. Xxx acknowledged said instrument to be the free
act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the County and State aforesaid, the day and year first above
written.
My term expires:
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Notary Public
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SCHEDULE 3(j)
Inventory Locations
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0000 Xxxxxxxxx Xxxx
Xxxx, Xxxxxxxxxxxx 00000
0000 X. Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
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