EXHIBIT 4(i)(f)
FIRST AMENDMENT TO PARENT GUARANTY
THIS FIRST AMENDMENT TO PARENT GUARANTY (the "AMENDMENT"), dated as of
the 19th day of November, 1999, by and among ADVANCED COMMUNICATIONS GROUP,
INC., a Delaware corporation (the "GUARANTOR"), and BANK OF AMERICA, N.A., as a
Lender and as Administrative Agent;
W I T N E S S E T H:
WHEREAS, the Great Western Directories, a Texas corporation and a
wholly-owned Subsidiary of the Guarantor (the "BORROWER"), the Lender and the
Administrative Agent are parties to that certain Loan Agreement dated as of May
14, 1999, as amended by that certain First Amendment to Loan Agreement dated as
of October 21, 1999 and that certain Second Amendment to Loan Agreement dated as
of November 19, 1999 (the "LOAN AGREEMENT"); and
WHEREAS, the Guarantor was required to execute and deliver the Parent
Guaranty pursuant to the terms of the Loan Agreement; and
WHEREAS, the Guarantor has requested, and the Lender has agreed,
subject to the conditions and on the terms set forth in this Amendment, to make
certain amendments to the Parent Guaranty, as provided in this Amendment;
NOW, THEREFORE, in consideration of the premises set forth above, the
covenants and agreements set forth in this Amendment, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree that all capitalized terms used in
this Amendment and not otherwise defined herein shall have the meanings ascribed
thereto in the Parent Guaranty, and further hereby agree as follows:
1. AMENDMENT TO SECTION 5. Section 5 of the Parent Guaranty,
COVENANTS, is hereby amended by deleting the existing subsections (f), (g), (i),
(j), (n), (o) and (q) thereof in their entirety and substituting in lieu thereof
the following new subsections (f), (g), (i), (j), (n), (o) and (q) in
appropriate order:
"(f) Within ninety (90) days immediately following (i) the
purchase by the Guarantor or any Affiliate Guarantor of any interests
in any new Subsidiary or (ii) the formation of any new Subsidiary by
the Guarantor or any Affiliate Guarantor, the Guarantor will, and will
cause each Affiliate Guarantor, as appropriate, to provide to the
Administrative Agent, for itself and on behalf of the Lenders, with
respect to each such new Subsidiary of such Person, a duly executed (A)
Affiliate Guaranty, (B) Affiliate Security Agreement, together with
appropriate Uniform Commercial Code financing
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statements, (C) Affiliate Pledge Agreement, together with
appropriate stock certificates and undated stock powers executed in
blank, and (D) loan certificate, substantially in the form of
EXHIBIT O attached to the Loan Agreement, together with appropriate
attachments thereto, each of which shall constitute both a Security
Document and a Loan Document for purposes of the Loan Agreement and
this Agreement."
"(g) The Guarantor will use the aggregate proceeds of any
loan received from the Borrower or the Borrower's Subsidiaries pursuant
to Sections 7.6 (b) of the Loan Agreement, directly or indirectly for
working capital needs of the Guarantor (including, without limitation,
the fees and expenses incurred in connection with the sale of the CLEC
Business or the acquisition of, or merger or consolidation with or
into, the YP Tel Entities, but expressly excluding any loans to,
investments in or other distributions to any Person that is not an
Affiliate Guarantor)."
"(i) [INTENTIONALLY OMMITTED]."
"(j) [INTENTIONALLY OMMITTED]."
"(n) The Guarantor shall not, and shall not permit any
Affiliate Guarantor to, at any time sell, transfer, lease, abandon or
otherwise dispose of any assets."
"(o) The Parent shall not, and shall not permit any
Affiliate Guarantor to, at any time liquidate or dissolve itself (or
suffer any liquidation or dissolution) or otherwise wind up, or enter
into any merger, other than (i) a merger or consolidation among the
Guarantor and one or more of Affiliate Guarantors, PROVIDED the
Guarantor is the surviving corporation, (ii) a merger between or among
two or more Affiliate Guarantors, (iii) in connection with an
Acquisition permitted hereunder effected by a merger in which the
Guarantor or, in a merger in which the Guarantor is not a party, an
Affiliate Guarantor is the surviving corporation or the surviving
corporation becomes an Affiliate Guarantor, (iv) in connection with the
acquisition of or merger or consolidation with one or more of the YP
Tel Entities by the Guarantor or (v) the dissolution of any
Non-Material Subsidiary."
"(q) The Guarantor shall not, and shall not permit any
Affiliate Guarantor to, directly or indirectly make any loan or
advance, or otherwise acquire for consideration evidences of
Indebtedness, capital stock or other securities of any Person or other
assets or property (other than assets or property in the ordinary
course of business), or make any Acquisition or Investment, except
that:
(i) the Guarantor and the Affiliate Guarantors
may, directly or through a brokerage account, (A) purchase
marketable, direct obligations of the United States of
America, its agencies and instrumentalities maturing within
three hundred sixty-five (365) days of the date of purchase,
(B) purchase commercial paper, money-market funds and business
savings accounts issued by corporations,
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each of which shall have a combined net worth of at least
$100,000,000.00 and each of which conducts a substantial
part of its business in the United States of America,
maturing within two hundred seventy (270) days from the
date of the original issue thereof, and rated "P-2" or
better by Xxxxx'x Investors Service, Inc. or "A-2" or
better by Standard and Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc., and (C) purchase repurchase agreements,
bankers' acceptances, and domestic and Eurodollar
certificates of deposit maturing within three hundred
sixty-five (365) days of the date of purchase which are
issued by, or time deposits maintained with, a United
States national or state bank the deposits of which are
insured by the Federal Deposit Insurance Corporation or the
Federal Savings and Loan Insurance Corporation and having
capital, surplus and undivided profits totaling more than
$100,000,000.00 and rated "A" or better by Xxxxx'x
Investors Service, Inc. or Standard and Poor's Ratings
Group, a division of XxXxxx-Xxxx, Inc.; and
(ii) so long as no Default or Event of Default
then exists or would be caused thereby, the Guarantor or any
Affiliate Guarantor may acquire any or all of the YP Tel
Entities."
2. NO OTHER AMENDMENT OR CONSENT. Except for the amendments set
forth above, the text of the Parent Guaranty and all other Loan Documents shall
remain unchanged and in full force and effect. No waiver or consent by the
Administrative Agent or the Lender under the Parent Guaranty or any other Loan
Document is granted or intended except as expressly set forth herein, and the
Administrative Agent and the Lenders expressly reserve the right to require
strict compliance in all other respects (whether or not in connection with any
Requests for Advance). Except as set forth herein, the amendments agreed to
herein shall not constitute a modification of the Parent Guaranty or any of the
other Loan Documents, or a course of dealing with the Administrative Agent and
the Lenders at variance with the Parent Guaranty or any of the other Loan
Documents, such as to require further notice by the Administrative Agent or the
Lender to require strict compliance with the terms of the Parent Guaranty and
the other Loan Documents in the future.
3. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. The
effectiveness of this Amendment is subject to:
(a) the execution and delivery of this Amendment by the
Borrower, the Administrative Agent and the Lender;
(b) all of the representations and warranties of the
Parent under Section 4 hereof, which are made as of the date hereof, being true
and correct in all material respects; and
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(c) receipt by the Administrative Agent of the
Pre-Xxxxxxx CLEC Net Proceeds (as defined in that certain consent dated as of
the even date herewith by and between the Borrower, the Administrative Agent and
the Lender).
4. REPRESENTATIONS AND WARRANTIES. The Parent hereby represents
and warrants that each representation and warranty set forth in Article 4 of the
Parent Guaranty (other than those relating to the Agreement Date or a specific
prior date) is true and correct as of the date hereof in all material respects.
5. LOAN DOCUMENTS. This Amendment shall be deemed to be a Loan
Document for all purposes under the Parent Guaranty and the other Loan
Documents.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
7. GOVERNING LAW. This Amendment shall be construed in accordance
with and governed by the laws of the State of California.
8. SEVERABILITY. Any provision of this Amendment which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
PARENT: ADVANCED COMMUNICATIONS GROUP, INC.
By: //Xxxxxxx X. Xxxxx//
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Name: Xxxxxxx X. Xxxxx
Title: Vice President and CFO
ADMINISTRATIVE AGENT
AND LENDER: BANK OF AMERICA, N.A., as Administrative
Agent and as Lender
By: //Xxxxxx X. Xxxxxxx//
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ADVANCED COMMUNICATIONS GROUP, INC.
FIRST AMENDMENT TO PARENT GUARANTY
Signature Page
