SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
SECOND
AMENDMENT TO LOAN AND SECURITY AGREEMENT
This
Second Amendment to Loan and Security Agreement (the “Amendment" ) is entered
into as of February 17, 2006, by and between COMERICA BANK ("Bank") and PAC-WEST
TELECOMM, INC., PAC- WEST TELECOM OF VIRGINIA, INC., PWT SERVICES, INC.,
and PWT
OF NEW YORK, INC. (each a "Borrower" and collectively, "Borrowers").
RECITALS
Borrowers
and Bank are parties to that certain Loan and Security Agreement dated as
of
November 9, 2005 (as amended from time to time, including without limitation
by
that certain First Amendment to Loan and Security Agreement dated as of November
30, 2005, together with any related agreements, the " Agreement"). Hereinafter,
all indebtedness owing by Borrowers to Bank shall be referred to as the "
Indebtedness." The parties desire to amend the Agreement in accordance with
the
terms of this Amendment.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties agree as follows:
AGREEMENT
I.
Incorporation
bv Reference. The
Recitals and the documents referred to therein are incorporated herein by
this
reference. Except as otherwise noted, the terms not defined herein shall
have
the meaning set forth in the Agreement.
II.
Amendment
to the Agreement. Subject
to the satisfaction of the conditions precedent as set forth in Article IV
hereof, the Agreement is hereby amended as set forth below.
A.
Section 2.I(c)(ii) of the Agreement is hereby amended and restated in its
entirety to read as follows:
"
(ii)
Interest shall accrue from the date the first Term Loan is made at the rate
specified in Section 2.3(a), and shall be payable in accordance with Section
2.3(c). Any Term Loans that are outstanding under Tranche A on the Tranche
A
Availability End Date shall be payable in thirty (30) equal monthly installments
of principal, plus all accrued interest, beginning on July 1,2006, and
continuing on the same day of each month thereafter until paid in full. Any
Term
Loans that are outstanding under Tranche B on the Tranche B Availability
End
Date shall be payable in twenty-three (23) equal monthly installments of
principal, plus all accrued interest, beginning on February 1,2007 , and
continuing on the same day of each month thereafter through the Term Loan
Maturity Date, at which time all amounts owing under this Section 2.I(c)
and any
other amounts due under this Agreement shall be immediately due and payable.
The
Term Loans, once repaid, may not be reborrowed. Borrowers may prepay the
Term
Loans without penalty or premium."
B.
Section 7.12 of the Agreement is hereby amended and restated in its entirety
to
read as follows:
"7
.12
Capital
Expenditures. Notwithstanding
any other provision in this Agreement, incur Capital Expenditures in excess
of
(i) Twelve Million Five Hundred Thousand Dollars ($12,500,000) for fiscal
year
2005; (ii) Nineteen Million Five Hundred Thousand Dollars ($19,500,000) for
fiscal year 2006; and (iii) Ten Million Dollars ($10,000,000) for fiscal
year
2007; in each case, in the aggregate in the respective fiscal year of
Borrowers."
AMENDMENT
PAGE 1OF3
C.
Section II of the Agreement is hereby amended and restated in its entirety
to
read as follows:
“II.
CHOICE
OF LAW AND VENUE: JURY TRIAL WAIVER.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of California, without regard to principles of conflicts
of
law. Jurisdiction shall lie in the State of California. THE UNDERSIGNED
ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT
THAT IT
MAY BE WAIVED UNDER CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW,
EACH
PARTY , AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH
COUNSEL
OF ITS, HIS OR HER CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL
BENEFIT
OF ALL PARTIES, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER DOCUMENT, INSTRUMENT
OR
AGREEMENT BETWEEN THE UNDERSIGNED PARTIES."
III.
Legal
Effect.
A.
The
Agreement is hereby amended wherever necessary to reflect the changes described
above. Each Borrower agrees that it has no defenses against the obligations
to
pay any amounts under the Indebtedness.
B.
Each
Borrower understands and agrees that in modifying the existing Indebtedness,
Bank is relying upon each Borrower's representations, warranties, and
agreements, as set forth in the Agreement. Except as expressly modified pursuant
to this Amendment, the terms of the Agreement remain unchanged, and in full
force and effect. Bank's agreement to modifications to the existing Indebtedness
pursuant to this Amendment in no way shall obligate Bank to make any future
modifications to the Indebtedness. Nothing in this Amendment shall constitute
a
satisfaction of the Indebtedness. It is the intention of Bank and each Borrower
to retain as liable parties, all makers and endorsers of Agreement, unless
the
party is expressly released by Bank in writing. No maker, endorser, or guarantor
will be released by virtue of this Amendment. The terms of this paragraph
apply
not only to this Amendment, but also to all subsequent loan modification
requests.
C.
This
Amendment may be executed in two or more counterparts, each of which shall
be
deemed an original, but all ofwhich together shall constitute one instrument.
This is an integrated Amendment and supersedes all prior negotiations and
agreements regarding the subject matter hereof. All modifications hereto
must be
in writing and signed by the parties.
IV
.Conditions
Precedent. Except
as
specifically set forth in this Amendment, all of the terms and conditions
of the
Agreement remain in full force and effect. The effectiveness of this Agreement
is conditioned upon receipt by Bank of this Amendment, and any other documents
which Bank may require to carry out the terms hereof, including but not limited
to the following:
A.
This
Amendment, duly executed by Borrowers;
B.
A
legal fee from the Borrowers in the amount of $250; and
C.
Such
other documents, and completion of such other matters, as Bank may reasonably
deem
necessary
or appropriate.
AMENDMENT
PAGE 2 0F 3
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the first
date above written.
PAC-WEST
TELECOMM, INC. PWT
OF
NEW YORK, INC.
By: /s/
Xxxx
Xxxx
By:
/s/
Xxxx
Xxxx
Title:
CFO Title:
PAC-
WEST
TELECOM OF VIRGINIA, INC. COMERICA
BANK
By: /s/
Xxxx Xxxx
By: /s/ Xxxxx Xxxxx
Title: Title:
SVP
PWT
SERVICES, INC. By:
By:
/s/ Xxxx Xxxx
Title:
AMENDMENT
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