WAIVER AND AMENDMENT NO. 4 TO
LOAN AND SECURITY AGREEMENT
THIS WAIVER AND AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT
("Amendment") is dated as of August 12, 1998 and is entered into by and between
BankAmerica Business Credit, Inc. ("Lender") and Intellicell Corp. ("Borrower").
All capitalized terms used herein but not otherwise defined shall have the
meanings ascribed to them in the Agreement (as hereinafter defined).
WITNESSETH
WHEREAS, the Borrower and the Lender have entered into that certain Loan
and Security Agreement dated as of January 12, 1998, as amended and supplemented
(the "Agreement"); and
WHEREAS, an Events of Default has occurred under the Agreement; and
WHEREAS, the Borrower desires to have the Events of Default waived and to
amend the Agreement and the Lender is willing to do so, subject to the terms and
conditions stated herein; and
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Borrower and Lender hereby agree as follows:
Section 1. Waiver of Default. The Lender hereby waives the Events of
Default arising from the failure of the Borrower to comply with the minimum
Adjusted Tangible Net Worth requirement for the months ending April 30, 1998,
May 31, 1998 and June 30, 1998 as required by Section 10.23 of the Agreement and
the minimum EBITDA requirement for the months ending April 30, 1998, May 31,
1998 and June 30, 1998 as required by Section 10.22 of the Agreement. This
waiver is only applicable and shall only be effective for the specific
instances, for the specific purposes, and for the specific period for which
given. Such waiver is expressly limited to the facts and circumstances referred
to herein and shall not operate (a) as a waiver of or consent to non-compliance
with any other section of the Agreement or any other Loan Document, (b) as a
waiver of or a restriction on or prejudice with respect to, any right, power or
remedy of the Lender under the Agreement or any other Loan Document, or (c) as a
waiver of or consent to any other Event of Default or Event under the Agreement
or any other Loan Document.
Section 2. Amendment to the Agreement. The Lender and Borrower agree that
Section 14 the Agreement is amended in its entirety to read as follows:
"The initial term of this Agreement shall expire on October
31, 1998 ("Stated Termination Date") and shall automatically be
renewed thereafter for successive monthly terms unless the Agreement
is Terminated as
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provided below. Each of the Borrower and the Lender shall have the
right to terminate the Agreement, without premium or penalty, at the
end of the initial term or any monthly term by giving the other
written notice not less than ten (10) days prior to the end of such
initial or monthly term. The Lender may also terminate this
Agreement without notice upon and at any time during the
continuation of an Event of Default. Upon the effective date of
termination of this Agreement for any reason whatsoever, all
Obligations shall become immediately due and payable and Borrower
shall immediately arrange for the cancellation of Letters of Credit
then outstanding. Notwithstanding the termination of this Agreement,
until all Obligations are paid and performed in full, the Lender
shall retain all its rights and remedies hereunder (including,
without limitation, in all then existing and after-arising
Collateral)."
Section 3. Conditions. The effectiveness of this Amendment is subject to
the satisfaction of the following conditions precedent:
A. Amendment. Fully executed copies of this Amendment signed by the
Borrower.
B. Resolution. A certificate executed by the Secretary or Assistant
Secretary of Borrower certifying that the Borrower's Board of Directors
has adopted resolutions authorizing the execution, delivery and
performance by Borrower of the Amendment shall be delivered to Lender.
C. Other Documents. Borrower shall have executed and delivered to
Lender such other documents and instruments as Lender may require.
Section 4. Miscellaneous.
A. Survival of Representations and Warranties. All representations
and warranties made in the Agreement or any other document or documents
relating thereto, including, without limitation, any Loan Document
furnished in connection with this Amendment, shall survive the execution
and delivery of this Amendment and the other Loan Documents, and no
investigation by Lender or any closing shall affect the representations
and warranties or the right of Lender to rely thereon.
B. Reference to Agreement. The Agreement, each of the Loan
Documents, and any and all other agreements, documents or instruments now
or hereafter executed and delivered pursuant to the terms hereof, or
pursuant to the terms of the Agreement as amended hereby, are hereby
amended so that any reference therein to the Agreement shall mean a
reference to the Agreement as amended hereby.
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C. Agreement Remains in Effect. The Agreement and the Loan Documents
remain in full force and effect and the Borrower ratifies and confirms its
agreements and covenants contained therein.
D. Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
E. APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS
EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE
PERFORMABLE IN THE STATE OF CALIFORNIA AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
F. Successors and Assigns. This Amendment is binding upon and shall
inure to the benefit of Lender and Borrower and their respective
successors and assigns; provided, however, that Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior
written consent of Lender.
G. Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and
the same instrument.
H. Headings. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
I. Expenses of Lender. Borrower agrees to pay or demand (i) all
costs and expenses reasonably incurred by Lender in connection with the
preparation, negotiation and execution of this Amendment and the other
Loan Documents executed pursuant hereto and any and all subsequent
amendments, modifications, and supplements hereto or thereto, including,
without limitation, the costs and fees of Lender's legal counsel and the
allocated cost of Lender's in-house counsel and (ii) all costs and
expenses reasonably incurred by Lender in connection with the enforcement
or preservation of any rights under the Agreement, this Amendment and/or
other Loan Documents, including, without limitation, the costs and fees of
Lender's legal counsel and the allocated cost of Lender's in house
counsel.
J. NO ORAL AGREEMENTS. THIS AMENDMENT, TOGETHER WITH THE OTHER LOAN
DOCUMENTS AS WRITTEN, REPRESENTS THE FINAL AGREEMENT BETWEEN LENDER AND
BORROWER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
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PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN LENDER AND BORROWER.
IN WITNESS WHEREOF, the parties have executed this Amendment under seal on
the date first written above.
INTELLICELL CORP.
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Signature
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Title
BANKAMERICA BUSINESS CREDIT, INC.
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Signature
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Title
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