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EXHIBIT 10.6
SECOND AMENDMENT
TO
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
This Second Amendment to Fourth Amended and Restated Loan Agreement
(this "Amendment") is entered into effective as of June 17, 1998, by and
between the following parties:
a. BEARCOM OPERATING, L.P. (the "Company"), and
x. XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION (the
"Bank").
RECITALS:
a. On August 29, 1997, the Company and the Bank entered
into that certain Fourth Amended and Restated Loan Agreement (the "Fourth
Restatement") in which the Bank agreed to provide certain loans and other
accommodations to the Company upon the conditions and in accordance with the
covenants set forth therein.
b. On March 27, 1998, the parties to the Fourth
Restatement entered into that certain First Amendment to Fourth Amended and
Restated Loan Agreement (with the Fourth Restatement, the "Loan Agreement", and
terms defined in the Loan Agreement and used herein shall have the definitions
herein as ascribed in the Loan Agreement, unless otherwise defined herein), in
which, among other things, the Bank consented to the Parent IPO (as defined
therein) which was expected to occur prior to June 1998.
c. As of the date hereof, the Parent IPO has not
occurred, and the Company has requested that Bank consent to the occurrence of
the Parent IPO at any time subsequent to June, 1998.
d. On the terms and conditions of this Amendment, the
Bank consents to the Parent IPO.
e. The parties hereto further agree to amend the Loan
Agreement, as set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Consents.
A. The Bank hereby consents to the Company's
departure from Subsection 15(k) of the Loan Agreement to the
extent such covenant is violated by the Parent IPO
SECOND AMENDMENT TO FOURTH AMENDED
AND RESTATED LOAN AGREEMENT - Page 1
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provided (i) the amount of the net proceeds from the Parent
IPO are equal to or greater than the total amount of the loans
outstanding under the Loan Agreement as of the effective date
of the Parent IPO and (ii) the net proceeds from the Parent
IPO are used immediately to prepay all loans outstanding under
the Loan Agreement as of the effective date of the Parent IPO.
B. (i) The Bank hereby waives the Company's
compliance with the covenant set forth in Subsection 16(b) of
the Loan Agreement from the date hereof up to, but not
including, the date (if any) on which there are no loans
outstanding under the Loan Agreement. The Company's
obligation to comply with the covenant set forth in subsection
16(b) shall be reinstated and fully effective on and at all
times after such date.
(ii) Notwithstanding anything to the
contrary contained in the Loan Agreement, the Revolving Note,
the Acquisition Note or any other Loan Document, if (a) as of
July 31, 1998, the ratio of Total Structured Indebtedness to
Tangible Net Worth (as such terms are defined in subsection
16(b) of the Loan Agreement) is greater than 2.0 to 1.0 and
(b) on or before July 31, 1998, the Parent IPO has not
occurred, then (x) the interest rate applicable to all Prime
Rate Loans (as defined in the Revolving Note or the
Acquisition Note, as applicable) outstanding under the Loan
Agreement from August 1, 1998, through the maturity date of
such loans shall be the Prime Rate (as defined in the
Revolving Note or the Acquisition Note, as applicable) plus
1.75%, (y) the interest rate applicable to all LIBOR Loans (as
defined in the Revolving Note or the Acquisition Note, as
applicable) outstanding under the Loan Agreement from August
1, 1998, through the maturity date of such loans shall be the
Adjusted LIBOR Rate (as defined in the Revolving Note or the
Acquisition Note, as applicable) plus 3.00% and (z) the
Company shall immediately pay Bank a fee of $25,000.
(iii) If (a) the interest rate applicable
to loans outstanding under the Loan Agreement is increased
pursuant to clause (ii) above, and (b) as of the last day of
any calendar month after July 31, 1998, the ratio of Total
Structured Indebtedness to Tangible Net Worth is greater than
2.0 to 1.0, and (c) the Parent IPO has not occurred as of such
date, then the interest rate applicable to all outstanding
loans after such date shall be increased by 0.20%, provided,
however that the maximum interest rate applicable to any Prime
Rate Loan (as defined in the Revolving Note or the Acquisition
Note, as applicable) shall be the lesser of (m) the Prime Rate
(as defined in the Revolving Note or the Acquisition Note, as
applicable) plus 2.75% or (n) the Highest Lawful Rate (as
defined in the Revolving Note or the Acquisition Note, as
applicable) and the maximum interest rate applicable to any
LIBOR Loan (as defined in the Revolving Note or the
Acquisition Note, as applicable) shall be the lesser of (y)
the Adjusted LIBOR Rate (as defined in the Revolving Note or
the Acquisition Note, as applicable) plus 4.00% and (z) the
Highest Lawful Rate (as defined in the Revolving Note or the
Acquisition Note, as applicable).
C. The consent and waiver specifically described
in this Section 1 shall not constitute and shall not be deemed
a waiver of any Event of Default or a consent to the departure
from provisions of the Loan Agreement other than as
specifically described above, or a waiver of any rights or
remedies arising as a result of any Events of Default.
SECOND AMENDMENT TO FOURTH AMENDED
AND RESTATED LOAN AGREEMENT - Page 2
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The failure to comply with the covenant described in Sections
1A or B above for any date, or any period ending on any date,
or for any activity other than as specifically described above
shall constitute an Event of Default.
2. Amendments to the Loan Agreement. As of the date
hereof, the Loan Agreement is hereby amended as follows:
A. The first 3 sentences of subsection 1(a) of
the Loan Agreement are amended and restated in their
entireties to read as follows:
(a) Subject to, and upon the terms,
conditions, covenants and agreements contained
herein, the Bank agrees to loan the Company, (i) at
any time, and from time to time prior to July 31,
1998, such amounts as the Company may request up to
but not exceeding an aggregate principal sum at any
time outstanding equal to $27,000,000, (ii) at any
time, and from time to time during the period from
and including August 1, 1998, through and including
March 31, 1999, such amounts as the Company may
request up to but not exceeding an aggregate
principal sum at any time outstanding equal to
$25,000,000, and (iii) thereafter, at any time, and
from time to time prior to the maturity of the
Company's promissory note executed in conjunction
with this Agreement, such amounts as the Company may
request up to but not exceeding an aggregate
principal sum at any time outstanding equal to
$22,000,000 (the "Revolving Line of Credit"); within
such limits and during such period, the Company may
borrow, repay, and re-borrow hereunder. All loans
under the Revolving Line of Credit shall be evidenced
by the Company's Renewal Master Revolving Credit Note
dated June 17, 1998 (the "Revolving Note"), in form
and substance satisfactory to the Bank, payable to
the order of the Bank, and bearing interest upon the
terms provided therein (but in no event to exceed the
maximum non-usurious interest rate permitted by law).
The principal of and interest on the Revolving Note
shall be due and payable as set forth on the face of
the Revolving Note; provided that if at any time the
aggregate principal amount of the outstanding loans
under the Revolving Line of Credit exceeds the
maximum amount permitted by this subsection 1(a) for
such time, the Company shall immediately repay the
excess principal amount of such loans to the Bank.
B. Exhibit B-2 to the Loan Agreement is amended
in its entirety to read as set forth in Exhibit B-2 attached
hereto.
3. Conditions. The effectiveness of this Amendment is
subject to the satisfaction of each of the following conditions precedent:
A. Documents. Bank shall have received each of
the following duly executed documents, in form and substance
satisfactory to the Bank:
SECOND AMENDMENT TO FOURTH AMENDED
AND RESTATED LOAN AGREEMENT - Page 3
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(1) A Revolving Note dated as of the
date hereof;
(2) A consent to this Amendment, and a
reaffirmation of the applicable guaranty agreement,
each executed by Parent, Page-Com GP, Inc. and Bear
Communications, Inc.; and
(3) Such other documents as Agent may
request.
B. Payment of Bank's Costs. The Company agrees
to pay within ten (10) days of receipt of a statement, the
reasonable legal fees and expenses incurred by the Bank in
connection with this Amendment and the associated
documentation.
C. Additional Information. The Bank shall have
received such additional information and materials as the Bank
may reasonably request, including, without limitation,
evidence of the authority of Company to enter into this
Amendment and the documents contemplated hereby.
4. Representations and Warranties. The Company hereby
represents and warrants that (i) the execution, delivery and performance by the
Company of this Amendment have been duly authorized by all necessary corporate
action and will not violate the certificate of incorporation or bylaws of the
Company; (ii) this Amendment is a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except to
the extent that such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights generally, or by
general principles of equity limiting the availability of certain remedies;
(iii) the representations and warranties set forth in the Loan Agreement, as
amended hereby, and all Loan Documents are true and correct on and as of the
date hereof as though made on and as of the date hereof; (iv) no Event of
Default or event that with the giving of notice or lapse of time or both would
be an Event of Default has occurred and is continuing other than the Existing
Defaults; and (v) there are no claims or offsets against or defenses or
counterclaims to the terms and provisions of any obligations of the Company
created or evidenced by the Loan Agreement or other Loan Documents.
5. Year 2000 Compliance. The Company shall perform all
acts reasonably necessary to ensure that (i) the Company and any business in
which the Company holds a substantial interest, and (ii) all customers,
suppliers and vendors that are material to the Company's business, become Year
2000 Compliant in a timely manner. Such acts shall include, without
limitation, performing a comprehensive review and assessment of all of the
Company's systems and adopting a detailed plan, with itemized budget, for the
remediation, monitoring and testing of such systems. As used in this
paragraph, "Year 2000 Compliant" shall mean, in regard to any entity, that all
software, hardware, firmware, equipment, goods or systems utilized by or
material to the business operations or financial condition of such entity, will
properly perform date sensitive functions before, during and after the year
2000. The Company shall, immediately upon request, provide to the Bank such
certifications or other evidence of the Company's compliance with the terms of
this paragraph as the Bank may from time to time require.
SECOND AMENDMENT TO FOURTH AMENDED
AND RESTATED LOAN AGREEMENT - Page 4
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6. Miscellaneous.
A. Effectiveness. Except as specified herein, all
terms and conditions of the Loan Agreement and all other Loan Documents
shall remain unmodified and in full force and effect. The parties
hereto agree and acknowledge that neither the Bank's consent to, nor
its knowledge of, the execution of the agreements, bills of sale and
other documents described in the Recitals to this Amendment shall be
construed as an express or implied amendment or waiver of any term,
condition or restriction set forth in the Loan Agreement or other Loan
Documents, except as expressly amended or waived hereinabove.
Further, the Company hereby ratifies and reaffirms the Company's
obligations and agreements under the Loan Documents, agrees that the
Loan Documents shall remain in full force and effect, notwithstanding
execution of this Amendment, and agrees that the Loan Documents shall
continue to be the legal, valid and binding obligations of the
Company, enforceable in accordance with the terms therein. In
furtherance of the foregoing, the Company agrees that the
"Obligations" as defined in the Security Agreement, include, without
limitation, the obligations, indebtedness and liability of the Company
to the Bank under the Loan Agreement, this Amendment and the Revolving
Note executed pursuant hereto.
B. Survival of Representations and Warranties. All
representations and warranties made in this Amendment or in any other
Loan Document shall survive the execution and delivery of this
Amendment and any other Loan Documents and no investigation by the
Bank or any closing shall affect the representations and warranties or
the right of the Bank to rely upon them.
C. Reference to Agreement. Each of the Loan Documents
are hereby amended so that any reference in such Loan Documents to the
Loan Agreement shall mean a reference to the Loan Agreement as amended
hereby.
D. Severability. Any provision of this Amendment held
by a court of competent jurisdiction to be invalid or enforceable
shall not impair or invalidate the remainder of this Amendment and any
effect thereof shall be confined to the provisions so held to be
invalid or unenforceable.
E. Successors and Assigns. This Amendment is binding
upon and shall inure to the benefit of the Company and the Bank and
their respective successors and assigns, except that the Company may
not assign or transfer any of its rights or obligations hereunder
without the prior written consent of the Bank.
F. Effective Waiver. No consent or waiver expressed
or implied by the Bank to or for any breach of or deviation from any
convent, condition or duty by the Company shall be deemed a consent or
waiver to or of any other breach of the same or any other covenant,
condition or duty.
SECOND AMENDMENT TO FOURTH AMENDED
AND RESTATED LOAN AGREEMENT - Page 5
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G. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of Texas.
H. Counterparts. This Amendment may be executed in
any number of counterparts, all of which taken together shall
constitute one and the same agreement and any of the parties hereto
may execute this Amendment by signing any such counterpart.
I. NO ORAL AGREEMENTS. THIS AMENDMENT CONSTITUTES A
WRITTEN AGREEMENT THAT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES RELATING TO THE
LOAN DOCUMENTS.
IN WITNESS WHEREOF, the Company and the Bank have caused this
Amendment to be duly executed as of the day and year first above written.
BEARCOM OPERATING, L.P.
By: Page-Com GP, Inc., its general
partner
By:
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Xxxx X. Xxxxxx
President
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By:
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Xxxxx Xxxxxx
Vice President
SECOND AMENDMENT TO FOURTH AMENDED
AND RESTATED LOAN AGREEMENT - Page 6
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EXHIBIT B-2
BEARCOM OPERATING, L.P.
DRAW REQUEST FORM
FROM: BEARCOM OPERATING, L.P.
00000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
TO: Xxxxx Fargo Bank (Texas), National Association
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
RE: $27,000,000 Revolving Line of Credit
DATE: __________________, 199__
This Draw Request is delivered pursuant to Subsection 16(e) of that
certain Fourth Amended and Restated Loan Agreement, dated as of August 29,
1997, executed by BEARCOM OPERATING, L.P. ("Borrower") and XXXXX FARGO BANK
(TEXAS), NATIONAL ASSOCIATION, formerly First Interstate Bank of Texas, N.A.
("Bank") (as amended from time to time, the "Loan Agreement"). All terms
defined in the Loan Agreement shall have the same meaning herein, except as
expressly stipulated otherwise herein.
Loan Activity
Total Availability is limited to the lower of $27,000,000 or
Borrowing Base Availability as of ___________, 199__: $___________
Preceding Day Loan Balance $___________
Less: Funds Swept by Bank from Lockbox Acct.
4008332027 ($__________)
Plus: Advance Requested with this Certificate: $___________
Letters of Credit Outstanding : $___________
New Loan Balance as of: $___________
Availability
Lesser of Borrowing Base or $27,000,000 $___________
Less: New Loan Balance ($__________)
Availability Remaining: $___________
EXHIBIT B-2, Page 1
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Executed and delivered this _____ day of ________________, 199__.
PAGE-COM GP, INC.,
in its capacity as general
partner of BearCom Operating, L.P.
By:
----------------------------
Name:
--------------------------
Title:
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EXHIBIT B-2, Page 2
