Exhibit 10.61
[EXECUTION]
FOURTH AMENDMENT TO LOAN AGREEMENT
of
CAPROCK FIBER NETWORK , LTD.
THIS FOURTH AMENDMENT TO LOAN AGREEMENT (this "Amendment") is made as of
July 9, 1998 by and between CapRock Fiber Network, Ltd. ("Borrower") and Bank
One, Texas, N.A. ("Bank").
W I T N E S S E T H:
WHEREAS, Borrower and Bank have entered into that certain Loan Agreement
dated as of July 1, 1996 (as supplemented or amended to the date hereof, the
"Original Agreement"), for the purposes and consideration therein expressed,
pursuant to which Bank became obligated to make and made loans to Borrower as
therein provided; and
WHEREAS, Borrower and Bank desire to amend the Original Agreement for the
purposes set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Bank to Borrower, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I. - DEFINITIONS AND REFERENCES
Section 1.1 TERMS DEFINED IN THE ORIGINAL AGREEMENT. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
Section 1.2. OTHER DEFINED TERMS. Unless the context otherwise requires,
the following terms when used in this Amendment shall have the meanings assigned
to them in this Section 1.2.
"AMENDMENT" means this Fourth Amendment to Loan Agreement.
"AMENDMENT DOCUMENTS" means this Amendment and the
Guarantor Consents.
"GUARANTOR CONSENT" means a Guarantor Consent and Agreement,
substantially in the form of Exhibit A hereto.
"LOAN AGREEMENT" means the Original Agreement as amended
hereby.
ARTICLE II. - AMENDMENTS TO ORIGINAL AGREEMENT
Section 2.1. AFFIRMATIVE COVENANTS. Section 9(k) is hereby amended by
deleting the present such section in its entirety and substituting therefor the
following:
"(k) MANDATORY PREPAYMENT IN FULL. On or before August 31,
1998, with the proceeds of the Note Offering, Borrower shall prepay the
Loan in full, together will all interest accrued thereon and unpaid. As
used herein "Note Offering" shall mean the note offering by Borrower in
the amount of at least $100,000,000 or more and "Merger" shall mean the
merger of CapRock Communications Corporation, Borrower and IWL
Communications Incorporated with CapRock Communications Corporation
being the surviving entity."
ARTICLE III. - CONDITIONS OF EFFECTIVENESS
Section 3.1. EFFECTIVE DATE. This Amendment shall become effective as of
the date first above written when and only when Bank shall have received, at
Bank's office, and executed by, if applicable, Borrower or any Guarantor:
a. this Amendment;
b. a certificate of the Secretary of Borrower dated the date of this
Amendment certifying that attached thereto is a true and complete copy
of resolutions adopted by the Board of Directors of Borrower
authorizing the execution, delivery and performance of this Amendment,
certifying the names and true signatures of the officers of Borrower
authorized to sign this Amendment and certifying that all of the
representations and warranties set forth in Article IV hereof are true
and correct at and as of the time of such effectiveness;
c. a Guarantor Consent from each Guarantor; and
d. such supporting documents as Bank may reasonably request.
ARTICLE IV. - REPRESENTATIONS AND WARRANTIES
Section 4.1. REPRESENTATIONS AND WARRANTIES OF BORROWER. In order to
induce Bank to enter into this Amendment, Borrower represents and warrants to
Bank that:
(a) The representations and warranties contained in
Section 7 of the Original Agreement are true and correct at and as of
the time of the effectiveness hereof.
(b) Borrower and each Guarantor is duly authorized to
execute and deliver each Amendment Document to which it is a party and
Borrower is and will continue to be duly authorized to borrow and to
perform its obligations under the Loan Agreement. Borrower and each
Guarantor which is a corporation has duly taken all corporate action
necessary to authorize the execution and delivery of each Amendment
Document to which it is a party and to authorize the performance of its
obligations thereunder.
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(c) The execution and delivery by Borrower and each
Guarantor of each Amendment Document to which it is a party, the
performance by Borrower and each Guarantor of their obligations
thereunder and the consummation of the transactions contemplated thereby
do not and will not conflict with any provision of law, statute, rule or
regulation or any organizational document of Borrower or any Guarantor,
or of any material agreement, judgment, license, order or permit
applicable to or binding upon Borrower or any Guarantor, or result in
the creation of any lien, charge or encumbrance upon any assets or
properties of Borrower or any Guarantor. Except for those which have
been duly obtained, no consent, approval, authorization or order of any
court or governmental authority or third party is required in connection
with the execution and delivery by Borrower and each Guarantor of each
Amendment Document to which it is a party or to consummate the
transactions contemplated hereby.
(d) When duly executed and delivered, the Loan Agreement
and each Amendment Document will be a legal and binding instrument and
agreement of Borrower and each Guarantor, to the extent each is a party
thereto, enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency and similar laws applying to creditors' rights
generally and by principles of equity applying to creditors' rights
generally.
ARTICLE V. - MISCELLANEOUS
Section 5.1. RATIFICATION OF AGREEMENTS. The Original Agreement as hereby
amended is hereby ratified and confirmed in all respects. All Loan Documents,
as they may be amended or affected by the various Amendment Documents, are
hereby ratified and confirmed in all respects. Any reference to the Loan
Agreement in any Loan Document shall be deemed to refer to this Amendment also.
The execution, delivery and effectiveness of the Amendment Documents shall not,
except as expressly provided herein or therein, operate as a waiver of any
right, power or remedy of Bank under the Loan Agreement or any other Loan
Document nor constitute a waiver of any provision of the Loan Agreement or any
other Loan Document, including without limitation Borrower's obligation to
comply with Section 12(a) of the Loan Agreement.
Section 5.2. SURVIVAL OF AGREEMENTS. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Loans, and shall further survive until
all of the Obligations are paid in full. All statements and agreements
contained in any certificate or instrument delivered by Borrower or General
Partner hereunder or under the Loan Agreement to Bank shall be deemed to
constitute representations and warranties by, or agreements and covenants of,
Borrower under this Amendment and under the Loan Agreement.
Section 5.3. LOAN DOCUMENTS. The Amendment Documents are Loan Documents,
and all provisions in the Loan Agreement pertaining to Loan Documents apply
hereto and thereto.
Section 5.4. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and any applicable
laws of the United States of America in all respects, including construction,
validity and performance.
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Section 5.5. COUNTERPARTS. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT 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 OF THE PARTIES.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
BANK ONE, TEXAS, N.A.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Assistant Vice President
CAPROCK FIBER NETWORK, LTD.
By: CapRock Systems, Inc., General Partner
By: /s/ Xxxx X. Xxxxxxxx, Xx.
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Xxxx X. Xxxxxxxx, Xx.
President
EXHIBIT A
CONSENT AND AGREEMENT
THIS CONSENT AND AGREEMENT (this "Consent") is made of July 9, 1998, by
CapRock Systems, Inc. ("Guarantor") in favor of Bank One, Texas, N.A.
("Bank"). Guarantor, who is a Guarantor under that certain Loan Agreement (as
so amended, the "Loan Agreement") dated as of July 1, 1996 between CapRock
Fiber Network, Ltd. ("Borrower") and Bank, hereby consents and agrees to the
following.
1. Guarantor hereby consents to the provisions of that certain
Fourth Amendment to Loan Agreement of even date herewith between Bank and
Borrower (the "Amendment").
2. Guarantor hereby consents the transactions contemplated in the
Amendment.
3. Guarantor hereby ratifies and confirms all of its obligations and
covenants under that certain guaranty (the "Guaranty") dated as of July 1,
1996 made by it for the benefit of Bank (including without limitation its
obligation to guaranty the payment and performance of all of the
obligations and undertakings of Borrower owing to Bank until the Guaranty
expires according to the terms set forth in Section 13 of the Guaranty).
4. Guarantor hereby agrees that its obligations and covenants under
the Guaranty are unimpaired by the provisions of the Amendment and the
transactions contemplated therein and shall continue to remain in full
force and effect after the date hereof.
IN WITNESS WHEREOF, this Consent and Agreement is executed as of the date
first above written.
CAPROCK SYSTEMS, INC.
By:
-----------------------------------
Xxxx X. Xxxxxxxx, Xx.
President
CONSENT AND AGREEMENT
THIS CONSENT AND AGREEMENT (this "Consent") is made of July 9, 1998, by
Xxxx Xxxxxxxx ("Guarantor") in favor of Bank One, Texas, N.A. ("Bank").
Guarantor, who is a Guarantor under that certain Loan Agreement (as so amended,
the "Loan Agreement") dated as of July 1, 1996 between CapRock Fiber Network,
Ltd. ("Borrower") and Bank, hereby consents and agrees to the following.
1. Guarantor hereby consents to the provisions of that certain
Fourth Amendment to Loan Agreement of even date herewith between Bank and
Borrower (the "Amendment").
2. Guarantor hereby consents the transactions contemplated in the
Amendment.
3. Guarantor hereby ratifies and confirms all of its obligations and
covenants under that certain guaranty (the "Guaranty") dated as of July 1,
1996 made by it for the benefit of Bank (including without limitation its
obligation to guaranty the payment and performance of all of the
obligations and undertakings of Borrower owing to Bank until the Guaranty
expires according to the terms set forth in Section 13 of the Guaranty).
4. Guarantor hereby agrees that its obligations and covenants under
the Guaranty are unimpaired by the provisions of the Amendment and the
transactions contemplated therein and shall continue to remain in full
force and effect after the date hereof.
IN WITNESS WHEREOF, this Consent and Agreement is executed as of the date
first above written.
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Xxxx Xxxxxxxx
CONSENT AND AGREEMENT
THIS CONSENT AND AGREEMENT (this "Consent") is made of July 9, 1998, by
Xxxx X. Xxxxxxxx, Xx. ("Guarantor") in favor of Bank One, Texas, N.A. ("Bank").
Guarantor, who is a Guarantor under that certain Loan Agreement (as so amended,
the "Loan Agreement") dated as of July 1, 1996 between CapRock Fiber Network,
Ltd. ("Borrower") and Bank, hereby consents and agrees to the following.
1. Guarantor hereby consents to the provisions of that certain
Fourth Amendment to Loan Agreement of even date herewith between Bank and
Borrower (the "Amendment").
2. Guarantor hereby consents the transactions contemplated in the
Amendment.
3. Guarantor hereby ratifies and confirms all of its obligations and
covenants under that certain guaranty (the "Guaranty") dated as of July 1,
1996 made by it for the benefit of Bank (including without limitation its
obligation to guaranty the payment and performance of all of the
obligations and undertakings of Borrower owing to Bank until the Guaranty
expires according to the terms set forth in Section 13 of the Guaranty).
4. Guarantor hereby agrees that its obligations and covenants under
the Guaranty are unimpaired by the provisions of the Amendment and the
transactions contemplated therein and shall continue to remain in full
force and effect after the date hereof.
IN WITNESS WHEREOF, this Consent and Agreement is executed as of the date
first above written.
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Xxxx X. Xxxxxxxx, Xx.
