Exhibit 10.1
FIFTH AMENDMENT
TO
SENIOR SECURED LOAN AGREEMENT
This FIFTH AMENDMENT, dated as of June 29, 2001 (this "Amendment"), to
SENIOR SECURED LOAN AGREEMENT, dated as of March 2, 1999, as amended by a First
Amendment to Senior Secured Loan Agreement, dated as of March 31, 1999, as
further amended by a Second Amendment to Senior Secured Loan Agreement, dated as
of June 10, 1999 as further amended by a Third Amendment to Senior Secured Loan
Agreement, dated as of June 19, 2000, as further amended by a letter agreement,
dated as of July 27, 2000, as further amended by a Fourth Amendment and Waiver
to Senior Secured Loan Agreement (as amended, the "Loan Agreement"), is entered
into by and among GATX CAPITAL CORPORATION ("Lender") and CHADMOORE WIRELESS
GROUP, INC. ("Chadmoore") (which is also successor by merger to certain former
subsidiaries of Chadmoore which were original signatories to the Loan
Agreement).
RECITALS
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A. Chadmoore has entered into an Agreement and Plan of
Reorganization, dated as of August 21, 2000 (the "Acquisition Agreement"), with
Nextel Communications, Inc. and Nextel Finance Company.
B. Chadmoore has requested that Lender amend the Loan Agreement
as provided herein and Lender has agreed to do so subject to the terms and
conditions of this Amendment.
AGREEMENT
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NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrowers and Lender hereby agree as follows:
1. Definitions; Interpretation. Unless otherwise defined herein,
all capitalized terms used herein and defined in the Loan Agreement shall have
the respective meanings given to those terms in the Loan Agreement. Other rules
of construction set forth in the Loan Agreement, to the extent not inconsistent
with this Amendment, apply to this Amendment and are hereby incorporated by
reference.
2. Amendment to Loan Agreement. Effective upon the satisfaction
of the conditions set forth in Section 3 hereof, Chadmoore and Lender hereby
agree as follows:
(a) Section 2.01(f) of the Loan Agreement is hereby
amended to add the following proviso at the end
thereof:
"; provided, however, that the payments of principal
due on the Payment Date closest to June 30, 2001 and
on the Payment Date closest to September 30, 2001 may
be deferred and shall be payable on the earliest of
(i) December 31, 2001, (ii) the prepayment of the
Loans pursuant to Section 2.02(e) upon the closing of
the transactions contemplated under the Acquisition
Agreement, or (iii) at the option of Lender, upon the
occurrence of an Event of Default; provided, further,
that payments of accrued and unpaid interest shall be
made on each of the
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Payment Date closest to June 30, 2001 and the
Payment Date closest to September 30, 2001."
(b) The Loan Agreement is hereby amended to add a new
Section 2.06 to read in its entirety as follows:
"2.05 Deferral Fee. In partial consideration for
Lender's agreement to permit the deferral of the
payments of principal described in Section 2.01(f),
Chadmoore will pay to Lender a fee (the "Deferral
Fee") in the amount of One Million Dollars
($1,000,000) which shall be payable on the earliest
of (i) December 31, 2001, (ii) the prepayment of the
Loans pursuant to Section 2.02(e) upon the closing of
the transactions contemplated under the Acquisition
Agreement, or (iii) at the option of Lender, upon the
occurrence of an Event of Default. The Deferral Fee
shall be deemed fully earned whether or not the
payment due on the Payment Date closest to September
30, 2001 is actually deferred."
(c) The last sentence of Section 7.02 of the Loan
Agreement is hereby amended to read in its entirety
as follows:
"Notwithstanding the foregoing set forth in this
Section 7.02, until the termination of the
Acquisition Agreement for any reason, compliance with
the covenants set forth in this Section 7.02 is
waived."
(d) Section 9.01 of the Loan Agreement is hereby amended
to amend Section 9.01(m) to read in its entirety as
follows:
"(m) The Acquisition Agreement shall have been
terminated for any reason."
3. Condition to Effectiveness. The Amendment shall be effective
as of the date hereof, upon the satisfaction of the following conditions no
later than the date hereof:
(a) the delivery to Lender of this Amendment duly
executed by each Borrower;
(b) the delivery to Borrower of this Amendment duly
executed by Lender;
(c) the delivery to Lender of copies, certified by the
Secretary of Chadmoore, as of the date hereof, of
Chadmoore's corporate resolutions authorizing the
execution and delivery of this Amendment; and
(d) the delivery to Lender of a letter of credit issued
by a bank satisfactory to Lender in the form of
Exhibit A hereto.
4. Release.
(a) Chadmoore, on behalf of itself, and its respective
present and former officers, directors, employees,
affiliates, subsidiary corporations or companies,
agents, attorneys, investors, shareholders, partners,
members, administrators, predecessor and successor
entities, and assigns, hereby fully and forever
release and discharge the Lender and its respective
present and officers, directors, employees,
affiliates, subsidiary corporations or companies,
agents, attorneys, investors, shareholders, partners,
members, administrators, participants,
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predecessor and successor entities, and loan
participants and assigns, of and from any claim,
damages, duty, obligation or cause of action relating
to any matters of any kind that any of them may
possess arising from any omissions, acts or facts
that have occurred up until and including the date
hereof, of every nature, kind and description
whatsoever, whether known or unknown, xxxxxx or
inchoate, direct or indirect, and whether suspected
or unsuspected, either at law, in equity or
otherwise, which may have arisen under or by virtue
of the laws of any jurisdiction and which arise from
or in connection with or relating in any way to the
Loan Agreement, the Operative Documents or the
transactions contemplated thereby.
(b) Waiver of California Civil Code Section 1542. Section
1542 of the California Civil Code provides as
follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor."
Chadmoore expressly waives the provisions of Section
1542 of the California Civil Code and elect to and do
assume all risk for claims heretofore arising, known
or unknown, suspected to exist or not suspected to
exist, as described above, and voluntarily and
expressly release the Lender from all liability on
claims arising out of such matters as described
above.
5. Exculpation. Chadmoore acknowledges and agrees that Lender is
entering into this Amendment as an accommodation to Chadmoore and that neither
Lender nor any Indemnified Party (as defined below) shall be liable for any
action taken or omitted to be taken by it or them in connection with any
exercise of Lender's remedies under the Loan Agreement regardless of the effect
of such exercise on Chadmoore or on the Acquisition Agreement and the
transactions contemplated thereunder.
6. Expenses; Indemnification. Chadmoore shall pay on demand (i)
all reasonable fees and expenses, including reasonable attorneys' fees and
expenses, incurred by Lender in connection with the preparation, execution and
delivery of, and the exercise of its duties under, this Amendment, the
transactions contemplated hereby and under the Acquisition Agreement and all
other matters related in any way to the acquisition of the assets of Chadmoore
by Nextel, whether or not such acquisition is consummated, (ii) all reasonable
fees and expenses, including reasonable attorneys' fees and expenses, incurred
by Lender in connection with the preparation, execution and delivery of
amendments and waivers hereunder and (iii) all reasonable fees and expenses,
including reasonable attorneys' fees and expenses, incurred by Lender in
connection with the enforcement or attempted enforcement of Loan Agreement or
any of the Obligations or in preserving any of Lender's rights and remedies
(including, without limitation, all such fees and expenses incurred in
connection with any "workout" or restructuring affecting the Operative Documents
or the Obligations or any bankruptcy or similar proceeding involving any
Borrower or any of its Affiliates). Chadmoore shall indemnify, reimburse and
hold Lender, each of Lender's members, and each of their respective successors,
assigns, agents, officers, directors, shareholders, servants, agents,
participants and employees (each, an "Indemnified Party") harmless from and
against all liabilities, losses, damages, actions, suits, demands, claims of any
kind and nature (including claims relating to environmental discharge, cleanup
or compliance), all costs and expenses whatsoever to the extent they may be
incurred or suffered by such indemnified party in connection therewith
(including reasonable attorneys' fees and expenses), fines, penalties (and other
charges of applicable governmental authorities) (each, a "Claim"), directly or
indirectly relating to or arising out of any matter relating to the subject of
this Amendment, the acquisition of the assets of Chadmoore by
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Nextel, whether or not such acquisition is consummated and however such
acquisition may be structured. The foregoing indemnity shall cover, without
limitation any Claim for tortious interference with contract or similar matter.
Notwithstanding the foregoing, Chadmoore shall not indemnify an Indemnified
Party for any liability incurred by an Indemnified Party as a result of such
Indemnified Party's gross negligence or willful misconduct. Such indemnities
shall continue in full force and effect, notwithstanding the expiration or
termination of the Loan Agreement. Upon an Indemnified Party's written demand,
Chadmoore shall assume and diligently conduct, at its sole cost and expense, the
entire defense of such Indemnified Party, using counsel reasonably acceptable to
such indemnitee against any indemnified Claim. Chadmoore shall not settle or
compromise any Claim against or involving an Indemnified Party without first
obtaining such Indemnified Party's and Lender's written consent thereto, which
consent shall not be unreasonably withheld. If an Indemnified Party elects to
assume its own defense in connection with an indemnified Claim, then such
Indemnified Party shall not settle or compromise such Claim without first
obtaining Chadmoore's written consent thereto, which consent shall not be
unreasonably withheld, provided that if Chadmoore does not consent thereto, then
Chadmoore shall post security or a bond in the amount of such Claim for the
benefit of the Indemnified Party.
7. Effect of Amendment. On and after the date hereof, each
reference to the Loan Agreement in the Loan Agreement or in any other document
shall mean the Loan Agreement as amended by this Amendment. The execution,
delivery and effectiveness of this Amendment shall not operate as a waiver of
any right, power, or remedy of Lender, nor constitute a waiver of any provision
of the Loan Agreement which is not specifically waived hereunder. Upon the
termination of any period during which a waiver was effective, the provision so
waived shall be reinstated in full force and effect. Lender retains its rights
to exercise its remedies under the Loan Agreement or otherwise upon the
occurrence of any Event of Default under the Loan Agreement.
8. Representations and Warranties. Each Borrower hereby
represents and warrants to Lender that:
(a) such Borrower is a corporation or limited liability
company duly organized, validly existing and in good
standing under the laws of its state of incorporation
or formation;
(b) such Borrower has the full corporate or company
power, authority and legal right and has obtained all
necessary approvals, consents and given all notices
to execute and deliver this Amendment and perform the
terms thereof;
(c) there is no action, proceeding or claim pending or,
insofar as such Borrower knows, threatened against
such Borrower or any of its subsidiaries before any
court or administrative agency which might have a
materially adverse effect on the business, condition
or operations of such Borrower;
(d) this Amendment has been duly executed and delivered
by such Borrower and constitutes the valid, binding
and enforceable obligation of such Borrower;
(e) Chadmoore has delivered to Lender a true and correct
copy of the Acquisition Agreement;
(f) After giving effect to the waivers set forth in this
Fifth Amendment, no Default or Event of Default under
the Loan Agreement has occurred which has not been
waived; and
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(g) Schedule 1 hereto constitutes a complete and accurate
list of all deposit accounts, securities accounts or
other accounts holding cash, cash equivalents or
other marketable securities of Chadmoore.
9. Post Closing Covenants.
(a) Pursuant to Section 4 of the Security Agreement,
Chadmoore shall use its good faith efforts to deliver
to Lender by July 10, 2001, and shall deliver in any
case by July 30, 2001, instruments intended to
perfect Lender's security interest in the accounts
listed on Schedule 1 hereto in the forms attached as
Exhibits B and C hereto or such other forms which are
acceptable to Lender. The failure to comply with the
covenant set forth in this Section 9(a) shall
constitute an Event of Default under the Loan
Agreement.
(b) Chadmoore, in cooperation with Nextel, shall place on
file with the FCC no later than July 6, 2001, the
application seeking assignment of substantially all
of the 800 and 900 MHz SMR licenses to Nextel under
the Acquisition Agreement. The failure to comply with
the covenant set forth in this Section 9(b) shall
constitute an Event of Default under the Loan
Agreement.
10. Draws under Letter of Credit. Lender agrees that it will not
draw under the letter of credit delivered pursuant to this Amendment prior to
the earlier to occur of (i) December 31, 2001, or (ii) the occurrence of an
Event of Default.
11. Full Force and Effect. Except as amended above, the Loan
Agreement remains in full force and effect.
12. Headings. Headings in this Amendment are for convenience of
reference only and are not part of the substance hereof.
13. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of California without
reference to conflicts of law rules.
14. Counterparts. This Amendment may be executed in any number of
identical counterparts, any set of which signed by all of the parties hereto
shall be deemed to constitute a complete, executed original for all purposes.
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IN WITNESS WHEREOF, Borrower and Lender have caused this Amendment to
be executed as of the day and year first above written.
Lender: GATX CAPITAL CORPORATION
By:
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Name:
Title:
Borrower: CHADMOORE WIRELESS GROUP, INC.
By:
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Name:
Title:
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