FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
FIFTH
AMENDMENT
TO
This
Fifth Amendment to Loan and Security Agreement (this "Amendment") is dated
as of
September 25, 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 by that certain First
Amendment to Loan and Security Agreement dated as of November 30, 2005, that
certain Second Amendment to Loan and Security Agreement dated as of February
17,
2006, that certain waiver letter dated as of May 11, 2006, that certain Third
Amendment to Loan and Security Agreement dated as of May 30, 2006, and that
certain Fourth Amendment to Loan and Security Agreement dated as of July 28,
2006 (collectively, the "Agreement"). The parties desire to amend the Agreement
in accordance with the terms of this Amendment.
NOW,
THEREFORE, the parties agree as follows:
1. Notwithstanding
anything to the contrary in the Agreement, during the period commencing
May
1,
September
302006
through and including November 30, 2006, Borrowers shall not be required to
comply with Sections 6.7 (a), (b), (c) or (d) of the Agreement.
2. The
Agreement hereby is amended to add new Section 6.7(e), as follows:
“(e) Cash
to Bank Debt.
At all
times during the period commencing September 30, 2006 through and including
November 30, 2006, Borrowers shall maintain an unrestricted cash balance on
deposit with Bank of at least $2,500,000 greater than the outstanding
Indebtedness owing to Bank during such period.
3. Borrowers
may request additional Credit Extensions from and after such time as Borrowers
are in pro-forma compliance with Sections 6.7 (a), (b), (c), and (d) of the
Agreement.
4. Unless
otherwise defined, all initially capitalized terms in this Amendment shall
be as
defined in the Agreement. The Agreement, as amended hereby, shall be and remain
in full force and effect in accordance with its respective terms and hereby
is
ratified and confirmed in all respects. Except as expressly set forth herein,
the execution, delivery, and performance of this Amendment shall not operate
as
a waiver of, or as an amendment of, any right, power, or remedy of Bank under
the Agreement, as in effect prior to the date hereof.
5. Borrowers
represent and warrant that the Representations and Warranties contained in
the
Agreement are true and correct as of the date of this Amendment, and that no
Event of Default has occurred and is continuing.
6. As
a
condition to the effectiveness of this Amendment, Bank shall have received,
in
form and substance satisfactory to Bank, the following:
(a) this
Amendment, duly executed by Borrowers;
(b) all
reasonable Bank Expenses incurred through the date of this Amendment, which
may
be debited from any of Borrowers' accounts; and
(c) such
other documents, and completion of such other matters, as Bank may reasonably
deem necessary or appropriate.
7. This
Amendment may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one
instrument.
[Balance
of page intentionally left blank.]
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the first
date above written.
|
PAC-WEST
TELECOMM, INC.
|
|
|
By:
/s/ Xxxxx Xxxxxxxxx
|
|
|
Title:
CEO
|
|
|
PAC-WEST
TELECOM OF VIRGINIA, INC.
|
|
|
By:
/s/ Xxxx Xxxx
|
|
|
Title:
CEO
|
|
|
PWT
SERVICES, INC.
|
|
|
By:
/s/ Xxxx Xxxx
|
|
|
Title:
CEO
|
|
|
PWT
OF NEW YORK, INC.
|
|
|
By:
/s/ Xxxx Xxxx
|
|
|
Title:
CEO
|
|
|
COMERICA
BANK
|
|
|
By:
/s/ Xxxxxx
Xxxxx
|
|
|
Title:
Senior
Vice President and Regional Managing
Director
|
[Signature
Page to Fifth Amendment to Loan & Security
Agreement]
