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Exhibit 10.18a
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT is dated as of April
8, 1998 (this "SECOND AMENDMENT"), is entered into by and among SYGNET
COMMUNICATIONS, INC., an Ohio corporation (the "BORROWER"), the Lenders which
are parties to the Credit Agreement referred to below (collectively the
"LENDERS"), TORONTO DOMINION (TEXAS), INC. as the Administrative Agent and PNC
BANK, NATIONAL ASSOCIATION as the Documentation Agent and as the Collateral
Agent, and amends the Credit Agreement dated as of October 9, 1996, as
previously amended by that certain Consent, Waiver and Amendment dated March 28,
1997 (the foregoing herein referred to collectively as the "ORIGINAL CREDIT
AGREEMENT"), entered into by and among the Borrower, the Lenders and the Agents
(as that term is defined in the Original Credit Agreement).
WITNESSETH:
WHEREAS, the Borrower and the Lenders have agreed to make
certain changes to the interest rates set forth in the Original Credit
Agreement, to provide for a swing line in the principal amount of $5,000,000 to
be made available by PNC Bank, National Association, and to make certain other
changes to the Original Credit Agreement, upon the terms and conditions set
forth herein.
NOW THEREFORE, in consideration of the premises, the mutual
covenants and agreements contained herein and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and with the intent to
be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO ORIGINAL CREDIT AGREEMENT
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SECTION 1.01 AMENDMENT TO SECTION 1.1 OF THE ORIGINAL CREDIT
AGREEMENT. Section 1.1 of the Original Credit Agreement is hereby amended as
follows:
(a) The following defined terms and the definitions therefor
are added to Section 1.1 in appropriate alphabetical order:
FIRST AMENDMENT: The Consent, Waiver and
Amendment dated March 28, 1997 entered into by and between the
Borrower and the Documentation Agent, for and on behalf of the
Lenders.
PNC BANK: PNC Bank, National Association,
and its successors and assigns.
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RATABLE SHARE: The proportion that a
Lender's Commitment bears to the Commitments of all the
Lenders.
SECOND AMENDMENT: The Second Amendment to
Credit Agreement dated as of April 8, 1998 entered into by and
among the Borrower, the Lenders and the Agents.
SWING LOAN: Any loan made by PNC Bank to the
Borrower pursuant to Section 2.1a(ii) hereof.
SWING LOAN COMMITMENT: PNC Bank's commitment
to make Swing Loans to the Borrower pursuant to Section
2.1a(ii) hereof in an aggregate Dollar amount not to exceed at
any one time outstanding $5,000,000.
SWING LOAN NOTE: The Swing Loan Note of the
Borrower in the form of Exhibit "A" to the Second Amendment
evidencing the Swing Loans, together with all extensions,
renewals, amendments, substitutions and replacements thereto
and thereof.
SWING LOAN RATE: For any day, a floating
rate of interest per annum equal to the sum of (i) the Federal
Funds Rate on the day a Swing Loan is requested by the
Borrower, plus (ii) (A) the Applicable Margin then in effect
with respect to Euro-Rate Loans less (B) the Commitment Fee
then in effect pursuant to Section 2.7a. For purposes of this
definition only, (i) "Federal Funds Rate" shall mean, for any
day, (A) the interest rate per annum (rounded upward, if
necessary, to the nearest 1/100 of 1%) determined by PNC Bank
(such determination shall be conclusive absent manifest error)
to be equal to the weighted average of rates on federal funds
transactions among members of the Federal Reserve System
arranged by Federal funds brokers at or about 9:00 a.m.
(Eastern time) on such day; provided, however, that if such
day is not a Business Day, the Federal Funds Rate for such day
shall be such rate for such transactions on the immediately
preceding Business Day or (B) if no such rates shall be quoted
by Federal funds brokers at such time, such other rate as
determined by PNC Bank in accordance with its usual procedures
(such determination shall be conclusive absent manifest
error), and (ii) "Business Day" shall mean any day other than
a Saturday or Sunday or a legal holiday on which commercial
banks are authorized or required to be closed for business in
Philadelphia, Pennsylvania.
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SWING LOAN REQUEST: A request for Swing
Loans made in accordance with Section 2.4b hereof.
(b) The definitions of the following defined terms are hereby
amended and restated to read as follows:
LOAN: An individual borrowing by the
Borrower under the Revolving Credit Commitment or any Swing
Loan.
LOAN DOCUMENT: Any of this Agreement, any
Revolving Credit Note, the Swing Line Note, any Security
Document, any Subsidiary Guaranty Agreement, any Fee Letter,
any Interest Hedge Agreement entered into with a Lender, the
Management Agreement and all other agreements, documents and
instruments executed and delivered to govern, evidence or
secure the Obligations, and the statements, reports,
certificates and other documents required by, or related to,
any of the foregoing, together with all extensions, renewals,
amendments, substitutions and replacements to and of any of
the foregoing.
OBLIGATIONS: Collectively, (i) all unpaid
principal and accrued and unpaid interest (including, without
limitation, any interest accruing subsequent to the
commencement of a bankruptcy, insolvency or similar proceeding
with respect to the Borrower, whether or not such interest
constitutes an allowed claim in such proceeding) under the
Loans and the Swing Loans, (ii) all accrued and unpaid Fees,
(iii) any other amounts due hereunder or under any of the
other Loan Documents, including all reimbursements,
indemnities, Fees, costs, expenses, prepayment premiums,
break-funding costs and other obligations of the Borrower, any
Subsidiary of the Borrower or Wireless to any Agent, any
Lender or any indemnified party hereunder and thereunder, (iv)
any obligations owed by the Borrower to any Lender or to any
Affiliate of any Lender pursuant to an Interest Hedge
Agreement and (v) all out-of-pocket costs and expenses
incurred by the Agents and the Lenders in connection with this
Agreement and the other Loan Documents, including but not
limited to the reasonable fees and expenses of the Agents'
counsel, which the Borrower is responsible to pay pursuant to
the terms of this Agreement and the other Loan Documents.
REQUIRED LENDERS: Prior to the termination
of the Revolving Credit Commitment, the Lenders whose
Commitment
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Percentages aggregate at least sixty-six and two-thirds
percent (66 2/3%) of the aggregate Commitment Percentages of
all the Lenders, and after the termination of the Revolving
Credit Commitment, whether on the stated Maturity Date, by
acceleration or otherwise, the Lenders whose outstanding
principal amounts of the Loans (including Swing Loans)
aggregate at least sixty-six and two-thirds (66 2/3%) of the
aggregate principal amount of the outstanding Loans.
SECTION 1.02 AMENDMENTS TO SECTION 2.1 OF THE ORIGINAL CREDIT
AGREEMENT.
(a) The heading of Section 2.1 is hereby amended and restated
to read as follows:
2.1 REVOLVING CREDIT COMMITMENT; SWING LOAN COMMITMENT.
(b) Subsection 2.1a is hereby amended and restated to read as
follows:
2.1a LOANS.
(i) REVOLVING CREDIT LOANS. The Lenders
agree, subject to the terms and conditions hereof and relying
upon the representations and warranties herein set forth, that
the Borrower shall have the right to borrow, repay and
reborrow, from the date hereof until the Maturity Date, a
principal amount not to exceed in the aggregate the Revolving
Credit Commitment at any one time outstanding.
(ii) SWING LOAN COMMITMENT. Subject to the
terms and conditions hereof and relying upon the
representations and warranties herein set forth, PNC Bank may,
at its option, cancelable at any time for any reason
whatsoever, make Swing Loans to the Borrower at any time or
from time to time to, but not including, the Maturity Date, in
an aggregate principal amount not to exceed at any one time
$5,000,000; provided that (A) the sum of the aggregate
principal amount of PNC Bank's Swing Loans and the Loans of
PNC Bank outstanding under the Revolving Credit Commitment
shall not exceed at any time PNC Bank's Commitment, and (B)
the aggregate principal amount of PNC Bank's Swing Loans and
the Loans of all the Lenders at any one time outstanding shall
not exceed the Revolving Credit Commitments of all the
Lenders. Within such limits of time and
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amount and subject to the other provisions of this Agreement,
the Borrower may borrow, repay and reborrow pursuant to this
Section 2.1a(ii).
(c) Subsection 2.1d is hereby amended and restated in its
entirety to read as follows:
2.1d AMOUNT OF LOANS AND REPAYMENTS. Each Base Rate Loan shall
be in a minimum amount of $1,000,000, or if in excess of
$1,000,000, in integral multiples of $100,000. Each Euro-Rate
Loan shall be in a minimum amount of $1,000,000, or if in
excess of $1,000,000, in integral multiples of $500,000. Each
repayment of a Loan (except for repayments relating to
mandatory or voluntary reductions of the Revolving Credit
Commitment described in Section 2.1c and repayments due on the
Maturity Date) shall be in a minimum amount of $1,000,000.
Subject to the other terms and provisions hereof relating to
Swing Loans, Swing Loans and repayments of Swing Loans may be
in any amount.
(d) Subsection 2.1e is hereby amended and restated in its
entirety to read as follows:
2.1e REPAYMENT ON MATURITY DATE. On the Maturity Date the
entire outstanding principal balance of the Loans and the
Swing Loans, plus all accrued and unpaid interest thereon, any
unpaid Fees relating thereto and any other outstanding
Obligations shall be due and payable, in immediately available
funds.
(e) Subsection 2.1f is hereby amended and restated in its
entirety to read as follows:
2.1f NOTES. The obligations of the Borrower to repay, on or
before the Maturity Date, the aggregate unpaid principal
amount of the Loans shall be evidenced by Revolving Credit
Notes, each substantially in the form of EXHIBIT "A", (i)
drawn by the Borrower to the order of a Lender in the maximum
amount of that Lender's Commitment Percentage of the
Revolving Credit Commitment, (ii) duly executed by the
Borrower and (iii) delivered to the Administrative Agent for
redelivery to such Lender. The obligation of the Borrower to
repay, on or before the Maturity Date, the aggregate unpaid
principal amount of the Swing Loans shall be evidenced by the
Swing Loan Note substantially in the form of EXHIBIT "A" to
the Second Amendment, (i) drawn by the Borrower to the order
of PNC Bank in the maximum amount of PNC Bank's Swing Loan
Commitment, (ii) duly executed by the
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Borrower and (iii) delivered to PNC Bank. The principal amount
actually due and owing each Lender under the Revolving Credit
Note payable to it shall be the aggregate unpaid principal
amount of all Loans made by such Lender, and the principal
amount actually due and owing PNC Bank under the Swing Loan
Note payable to it shall be the aggregate unpaid principal
amount of all Swing Loans made by PNC Bank, all as shown on
the Loan Accounts established pursuant to Section 2.6.
(f) The following new Subsection 2.1g is hereby added to the
Original Credit Agreement, immediately following subsection 2.1f:
2.1g OTHER PROVISIONS RELATING TO SWING LOANS.
(i) PNC Bank may, at its option, exercisable
at any time for any reason whatsoever, demand repayment of the
Swing Loans, and each Lender shall make a Loan in an amount
equal to such Lender's Ratable Share of the aggregate
principal amount of the outstanding Swing Loans, plus, if PNC
Bank so requests, accrued interest thereon; PROVIDED that no
Lender shall be obligated in any event to make Loans in excess
of its Commitment, and PROVIDED, FURTHER, that PNC Bank may
not demand repayment of any Swing Loan, and the Lenders shall
not be required to make Loans equal to their respective
Ratable Shares of such Swing Loan, if, at the time such Swing
Loan was originally made by PNC Bank, PNC Bank had actual
knowledge that any of the conditions to lending contained in
Subsections 7.1b, 7.1c and 7.1d hereof had not been met. Loans
made by the Lenders pursuant to the preceding sentence shall
initially bear interest at the Base Rate Option (unless and
until converted to another Interest Rate Option hereunder) and
shall be deemed to have been properly requested in accordance
with Section 2.4(a) without regard to any of the requirements
of that provision. PNC Bank shall provide notice to the
Administrative Agent (which may be telephonic or written
notice by letter, facsimile or telex) that such Loans are to
be made under this Subsection 2.1g. Upon receipt of such
notice, the Administrative Agent shall provide prompt notice
to the Lenders (which may be telephonic or written notice by
letter, facsimile or telex) that such Loans are to be made
under this Subsection 2.1g, and of the apportionment among the
Lenders, and the Lenders shall be unconditionally obligated to
fund such Loans (whether or not the conditions specified in
Section 2.4(a) are then satisfied) by the time and on the day
PNC Bank so requests, which shall not be earlier than 3:00
p.m. Eastern time on the Business Day next after
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the date the Lenders receive such notice from the
Administrative Agent.
(ii) If at any time the aggregate
outstanding principal amount of Loans made by PNC Bank under
the Revolving Credit Commitment exceeds an amount equal to PNC
Bank's Commitment less its Swing Loan Commitment, or if any
request by the Borrower for Loans would cause the aggregate
outstanding principal amount of the Loans made by PNC Bank
under the Revolving Credit Commitment to exceed an amount
equal to PNC Bank's Commitment less its Swing Loan Commitment,
then (A) the outstanding Swing Loans shall be reduced by a
Dollar amount necessary so that Loans under the Revolving
Credit Commitment can be made by PNC Bank in an aggregate
outstanding principal amount in excess of an amount equal to
PNC Bank's Commitment less its Swing Loan Commitment, and (B)
the Dollar amount of Swing Loans so reduced shall be
automatically converted by PNC Bank to Loans made by it under
the Revolving Credit Commitment.
(iii) So long as PNC Bank elects to make
Swing Loans, PNC Bank shall, after receipt by it of a request
for a Swing Loan pursuant to Section 2.4b, fund such Swing
Loan to the Borrower by funding the account of the Borrower
maintained at PNC Bank or by PNC Bank making a wire transfer
into an account of the Borrower designated by the Borrower in
such request.
SECTION 1.03 AMENDMENTS TO SECTION 2.2 OF ORIGINAL CREDIT
AGREEMENT.
(a) Subsection 2.2a of the Original Credit Agreement is hereby
amended and restated in its entirety to read as follows:
2.2a INTEREST RATES. During the term hereof the Borrower, in
accordance with the provisions of this Section 2.2, shall have
the option of electing from time to time one or more of the
Interest Rate Options set forth below to be applied by the
Lenders to the Loans outstanding hereunder; PROVIDED, HOWEVER,
that only the Swing Loan Rate shall apply to the Swing Loans,
and PROVIDED, FURTHER, that if PNC Bank demands repayment of
the Swing Loans pursuant to Subsection 2.1g and the Lenders
are required to make Loans in the amount of their Ratable
Share of the Swing Loans, such Loans shall bear interest at
the Base Rate Option, until converted to another Interest Rate
Option:
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(i) BASE RATE AND EURO-RATE OPTIONS.
Interest (A) under the Base Rate Option shall accrue at a rate
per annum equal to the sum of (1) the Base Rate plus (2) the
Applicable Margin, as set forth below, and (B) under the
Euro-Rate Option shall accrue at a rate per annum equal to the
sum of (1) the Euro-Rate plus (2) the Applicable Margin, as
set forth below. In all cases the Applicable Margin shall
fluctuate in accordance with the Total Indebtedness to
Adjusted Annualized Operating Cash Flow Ratio, as follows:
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TOTAL INDEBTEDNESS TO ADJUSTED ANNUALIZED APPLICABLE MARGIN
OPERATING CASH FLOW RATIO AS OF THE LAST
DAY OF THE IMMEDIATELY PRECEDING FISCAL
QUARTER
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BASE RATE EURO-RATE
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Greater than 10.00:1.00 1.500% 2.500%
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Less than or equal to 10.00:1.00 but 1.250% 2.250%
greater than 8.00:1.00
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Less than or equal to 8.00:1.00 but greater 1.000% 2.000%
than 7.00:1.00
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Less than or equal to 7.00:1.00 but greater .750% 1.750%
than 6.00:1.00
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Less than or equal to 6.00:1.00 but greater .500% 1.500%
than 5.00:1.00
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Less than or equal to 5.00:1.00 but greater .250% 1.250%
than 4.00:1.00
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Less than or equal to 4.00:1.00 0.000% 1.000%
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(b) Subsection 2.2b(i) of the Original Credit Agreement is
hereby amended and restated in its entirety to read as follows:
(i) CHANGES IN TOTAL INDEBTEDNESS TO ADJUSTED
ANNUALIZED OPERATING CASH FLOW RATIO. Interest rate
adjustments resulting from changes in the Total Indebtedness
to Adjusted Annualized Operating Cash Flow Ratio shall be made
without notice to the Borrower, based on such ratio as of the
end of the most recently completed Fiscal Quarter. All
adjustments shall be determined when the Borrower's quarterly
financial statements
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and Compliance Certificate indicating such adjustment to be
warranted have been delivered to the Administrative Agent
pursuant to Section 5.2, and such adjustments will be
effective on the third Business Day following the date on
which such statements and Compliance Certificate were
delivered.
(c) Subsection 2.2h of the Original Credit Agreement is hereby
amended and restated in its entirety to read as follows:
2.2h INTEREST PAYMENT DATES. Interest due on all outstanding
Base Rate Loans and Swing Loans shall be payable quarterly in
arrears on the last day of each calendar quarter for the
calendar quarter just ended. The first payment of interest
under the Base Rate Option shall be due on December 31, 1996
and shall be for the actual number of days elapsed between the
Closing Date and such date. Interest due on all outstanding
Euro-Rate Loans shall be payable on the last day of each
Euro-Rate Interest Period and, for Euro-Rate Interest Periods
of six months or more, also quarterly in arrears on the last
day of each successive three-month period following the first
day of such Euro-Rate Interest Period. All accrued and unpaid
interest on the Loans and the Swing Loans shall be due and
payable on the Maturity Date and, after any maturity of the
Revolving Credit Notes, the Swing Note or the Obligations,
whether by acceleration or otherwise, on demand until all
amounts due hereunder are paid in full.
(d) Subsection 2.2i of the Original Credit Agreement is hereby
amended and restated in its entirety to read as follows:
2.2i CALCULATION OF INTEREST. Interest under the Base Rate
Option and under the Swing Loan Rate shall be calculated on
the basis of the actual number of days elapsed, using a year
of 365 or 366 days, as the case may be. Interest under the
Euro-Rate Option shall be calculated on the basis of the
actual number of days elapsed, using a year of 360 days.
Interest for any period shall be calculated from and including
the first day thereof to but not including the last day
thereof.
SECTION 1.04 AMENDMENT TO SECTION 2.4 OF ORIGINAL CREDIT
AGREEMENT. Section 2.4 of the Original Credit Agreement is hereby amended and
restated in its entirety to read as follows:
2.4 REQUESTS FOR LOANS, INTEREST RATE OPTIONS AND CONVERSIONS.
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(a) REVOLVING CREDIT LOANS. Each request for
a Loan and for the election, renewal or conversion to or of an
Interest Rate Option shall be made to the Administrative Agent
orally or in writing by an Authorized Officer no later than
12:00 noon (Eastern time) (i) at least one (1) Business Day
prior thereto, with respect to Base Rate Loans and (ii) at
least three (3) Business Days prior thereto, with respect to
Euro-Rate Loans. Any oral request for a Loan shall be followed
immediately by the Borrower's written confirmation of such
request, executed by an Authorized Officer, which confirmation
must set forth the amount and date of the Loan, the Interest
Rate Option selected and, if applicable, the Euro-Rate
Interest Period being selected. All written requests and
confirmations shall be in the form of Exhibit "B". A request
from the Borrower pursuant to this Section 2.4 with respect to
a Euro-Rate Loan shall irrevocably commit the Borrower to
accept such Euro-Rate Loan on the date specified in such
request. The Administrative Agent shall notify the Lenders of
each request for a Base Rate Loan or a Euro-Rate Loan as soon
as practicable, but not later than 12:00 noon (Eastern time)
on the date on which such Loan is to be made. Each Lender
shall make its Commitment Percentage of such Loan available to
the Borrower in immediately available funds at the principal
office of the Administrative Agent prior to 1:00 p.m. (Eastern
time) on the date such Loan is to be made.
(b) SWING LOANS. Except as otherwise
provided herein, the Borrower may from time to time prior to
the Maturity Date request PNC Bank to make Swing Loans by
delivering to PNC Bank not later than 12:00 o'clock noon
Eastern time on the proposed borrowing date a duly completed
request therefor or a request by telephone immediately
confirmed in writing by letter, facsimile or telex. Each Swing
Loan Request shall be irrevocable and shall specify the
proposed borrowing date and the principal amount of such Swing
Loan, which shall be in the amounts specified in Section 2.1d
hereof.
SECTION 1.05 AMENDMENT TO SECTION 2.5 OF ORIGINAL CREDIT
AGREEMENT. Section 2.5 of the Original Credit Agreement is hereby amended and
restated in its entirety to read as follows:
2.5 METHOD OF DISBURSEMENTS AND PAYMENTS. All Loans (except
for Swing Loans, which shall be disbursed according to
Subsection 2.1g(i)) shall be made by the
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Administrative Agent funding the account of the Borrower
maintained at the Administrative Agent, if any, or by the
Administrative Agent making a wire transfer into an account of
the Borrower designated by the Borrower or as otherwise
directed by the Borrower to the Administrative Agent in
writing. All payments of principal, interest, Fees, costs and
other amounts due hereunder and under the other Loan Documents
relating to the Loans and the Revolving Credit Commitment
shall be made by the Borrower to the Administrative Agent at
the Administrative Agent's principal office at 000 Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000 not later than 2:00 p.m.
(Eastern time) on the due date. All payments of principal,
interest, Fees, costs and other amounts due hereunder and
under the other Loan Documents relating to the Swing Loans
shall be made by the Borrower to PNC Bank at PNC Bank's office
at 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000 no later than 2:00 p.m. (Eastern time) on the due date.
All such Loans and Swing Loans and payments thereof shall be
immediately good funds when either transferred by the
Administrative Agent or PNC Bank, as the case may be, to the
Borrower, or when delivered by the Borrower to the
Administrative Agent or PNC Bank, as the case may be.
SECTION 1.06 AMENDMENT TO SECTION 2.5 OF ORIGINAL CREDIT
AGREEMENT. Section 1.05 of the Original Credit Agreement is hereby amended and
restated in its entirety to read as follows:
2.6 LOAN ACCOUNTS. Each Lender shall open and maintain on its
books a Loan Account in the Borrower's name with respect to
Loans and Swing Loans made, repayments, prepayments, the
computation and payment of interest and other amounts due and
sums paid to such Lender hereunder and under the other Loan
Documents. Except in the case of manifest error in
computation, such records shall be presumed correct as to the
amount at any time due to such Lender from the Borrower. The
failure of any Lender to make an entry in its Loan Account
shall not abrogate the Borrower's duty to repay the
Obligations owned to such Lender.
SECTION 1.07 AMENDMENT TO SUBSECTION 2.7A OF ORIGINAL CREDIT
AGREEMENT. Subsection 2.7a of the Original Credit Agreement is hereby amended
and restated in its entirety to read as follows:
2.7a COMMITMENT FEE. (i) The Borrower shall pay to the
Administrative Agent, for the Pro Rata benefit of the Lenders,
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on the last day of each calendar quarter during the term of
the Revolving Credit Commitment for the calendar quarter just
ended and on the Maturity Date, a Commitment Fee calculated on
the basis of the actual number of days elapsed, using a year
of 365 or 366 days, as the case may be, at the following
rates:
At all times when the ratio of 0.375%
Total Indebtedness to Adjusted
Annualized Operating Cash Flow
is greater than or equal to 6.00 to 1.00
At all times when the ratio of 0.250%
Total Indebtedness to Adjusted
Annualized Operating Cash Flow
is less than 6.00 to 1.00
computed on the average daily (computed at the opening of
business) unused amount of the Revolving Credit Commitment;
PROVIDED, HOWEVER, that the Borrower shall not pay the
Commitment Fee with respect to PNC Bank's Swing Loan
Commitment. The first payment of the Commitment Fee shall be
due on December 31, 1996 and shall be for the actual number of
days elapsed between the Closing Date and such date.
(ii) Commitment fee adjustments resulting from
changes in the Total Indebtedness to Adjusted Annualized
Operating Cash Flow Ratio shall be made without notice to the
Borrower, based on such ratio as of the end of the most
recently completed Fiscal Quarter. All adjustments shall be
determined when the Borrower's quarterly financial statements
and Compliance Certificate indicating such adjustment to be
warranted have been delivered to the Administrative Agent
pursuant to Section 5.2, and such adjustments will be
effective on the third Business Day following the date on
which such statements and Compliance Certificate were
delivered.
SECTION 1.08 AMENDMENT TO SUBSECTION 8.1A. Subsection 8.1a of
the Original Credit Agreement is hereby amended and restated to read as follows:
8.1a NONPAYMENT OF BORROWER'S OBLIGATIONS. The Borrower shall
default (i) in any payment or required prepayment of principal
of the Loans or the Swing Loans when due or any scheduled
Revolving Credit Commitment reduction when due, or (ii) in the
payment of interest on any Loans or Swing Loans when
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due, or in the payment of any of the Fees, expenses or other
amounts due hereunder or under any of the other Loan Documents
when due, and such default in payment of interest, Fees,
expenses or other amounts shall have continued for a period of
five (5) Business Days after such due date.
SECTION 1.09 AMENDMENTS TO SECTION 8.2. Subsections 8.2a and
8.2b of the Original Credit Agreement are hereby amended and restated to read as
follows:
8.2a EVENTS OF DEFAULT UNDER SECTIONS 8.1C AND 8.1D. Upon the
occurrence of an Event of Default set forth in Sections 8.1c
and 8.1d, the Revolving Credit Commitment shall automatically
terminate and automatically the Revolving Credit Notes, the
Swing Loan Note, interest accrued thereon, all other
Obligations of the Borrower and all obligations, if any, of
any Subsidiary of the Borrower or Wireless under any Loan
Document to the Lenders and the Agents shall all become
immediately due and payable, without the necessity of demand,
presentation, protest, notice of dishonor or notice of
default, all of which are hereby expressly waived and deemed
to be waived by the Borrower, any Subsidiary of the Borrower
or Wireless. Thereafter, the Lenders shall have no further
obligation to make any additional Loans hereunder and PNC Bank
shall have no further obligation to make any additional Swing
Loans hereunder. In addition, during any 60-day period
described in Section 8.1c(i), the Lenders shall not have any
obligation to make any additional Loans (except in accordance
with Subsection 2.1g(i) hereof) and PNC Bank shall not have
any obligation to make any additional Swing Loans hereunder.
8.2b REMAINING EVENTS OF DEFAULT. Upon the occurrence and
during the continuance of any Event of Default set forth in
Sections 8.1a, 8.1b, 8.1e, 8.1f, 8.1g, 8.1h, 8.1i, 8.1j, 8.1k,
8.1l or 8.1m, the Required Lenders may, at their option,
declare the Revolving Credit Commitment terminated and the
Revolving Credit Notes, the Swing Note, interest accrued
thereon, all other Obligations of the Borrower and all
obligations, if any, of any Subsidiary of the Borrower or
Wireless under any Loan Document to the Lenders and the Agents
to be due and payable, without the necessity of demand,
presentation, protest, notice of dishonor or notice of
default, all of which are hereby expressly waived and deemed
to be waived by the Borrower, any Subsidiary of the Borrower
or Wireless. Thereafter, the Lenders shall have no further
obligation to make any additional Loans hereunder (except
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in accordance with Subsection 2.1g(i) hereof), and PNC Bank
shall have no further obligation to make any additional Swing
Loans hereunder.
SECTION 1.10 AMENDMENT TO SECTION 10.1. Section 10.1 of the
Original Credit Agreement is hereby amended by adding the following paragraph
(iv) immediately following paragraph (iii):
(iv) The foregoing provisions of this
Section 10.1 notwithstanding, PNC Bank and the Borrower may,
without the consent or approval of any Lender or any Agent,
take the following actions with respect to the Swing Loans and
the Swing Loan Commitment:
(A) Adjust the Swing Loan Rate; and
(B) Make changes to the methods of
payments of and disbursements of Swing Loans.
SECTION 1.11 AMENDMENTS TO EXHIBITS. The Original Credit
Agreement is hereby amended to include EXHIBIT "A" which is attached to this
Second Amendment.
SECTION 1.12 NO OTHER AMENDMENTS OR WAIVERS. The amendments to
the Original Credit Agreement set forth above do not either implicitly or
explicitly alter, waive or amend, except as expressly provided in this Second
Amendment, the provisions of the Original Credit Agreement. The amendments set
forth above do not waive, now or in the future, compliance with any other
covenant, term or condition to be performed or complied with nor do they impair
any rights or remedies of the Lenders or the Agents under the Original Credit
Agreement or any other Loan Document with respect to any such violation. Nothing
in this Second Amendment shall be deemed or construed to be a waiver or release
of, or a limitation upon, the Agents' or the Lenders' exercise of any of their
respective rights and remedies under the Original Credit Agreement and the other
Loan Documents, whether arising as a consequence of any Events of Default which
may now exist or otherwise, and all such rights and remedies are hereby
expressly reserved.
ARTICLE II
BORROWER'S SUPPLEMENTAL REPRESENTATIONS
---------------------------------------
SECTION 2.01. INCORPORATION BY REFERENCE. As an inducement to
the Lenders and the Agents to enter into this Second Amendment, the Borrower
hereby repeats herein for the
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benefit of the Lenders and the Agents the representations and warranties made by
the Borrower in Article 4 of the Original Credit Agreement, as amended hereby,
except that for purposes hereof such representations and warranties shall be
deemed to extend to and cover this Second Amendment and the Swing Loan Note.
ARTICLE III
CONDITIONS PRECEDENT
--------------------
SECTION 3.01 CONDITIONS PRECEDENT. Each of the following shall
be a condition precedent to the effectiveness of this Second Amendment:
(i) The Documentation Agent shall have received, on or before
the Amendment Effective Date (as hereinafter defined), the following items,
each, unless otherwise indicated, dated on or before the Amendment Effective
Date and in form and substance satisfactory to the Documentation Agent and its
special counsel, Xxxxxx Xxxxxxxxx, P.C.:
(A) Counterpart originals of this Second Amendment
duly executed by the Borrower, each Lender and each Agent;
(B) The Swing Loan Note, duly executed by the
Borrower; and
(C) A certified copy of the corporate action of the
Borrower authorizing the execution and delivery of and the performance under
this Second Amendment and the Swing Loan Note.
For purposes of this Second Amendment the term "Amendment
Effective Date" means the date on which the Documentation Agent and its counsel
have determined that each of the conditions set forth in this Section 3.01 has
been satisfied by the Borrower or waived by the Lenders.
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ARTICLE IV
GENERAL PROVISIONS
------------------
SECTION 4.01 RATIFICATION OF TERMS. Except as expressly
amended by this Second Amendment, the Original Credit Agreement and each and
every representation, warranty, covenant, term and condition contained therein
is specifically ratified and confirmed by the Borrower.
SECTION 4.02 REFERENCES. All notices, communications,
agreements, certificates, documents or other instruments executed and delivered
after the execution and delivery of this Second Amendment in connection with the
Original Credit Agreement, any of the other Loan Documents or the transactions
contemplated thereby may refer to the Original Credit Agreement without making
specific reference to this Second Amendment, but nevertheless all such
references shall include this Second Amendment unless the context requires
otherwise. From and after the Amendment Effective Date, all references in the
Original Credit Agreement and each of the other Loan Documents to the
"Agreement" shall be deemed to be references to the Original Credit Agreement as
amended hereby.
SECTION 4.03 INCORPORATION INTO AGREEMENT. This Second
Amendment is deemed incorporated into the Agreement. To the extent that any term
or provision of this Second Amendment is or may be deemed expressly inconsistent
with any term or provision of the Agreement, the terms and provisions hereof
shall control.
SECTION 4.04 COUNTERPARTS. This Second Amendment may be
executed in any number of separate counterparts, each of which, when so executed
and delivered, shall be regarded as an original, and all such counterparts shall
together constitute one and the same instrument.
SECTION 4.05 CAPITALIZED TERMS. Except for proper nouns and as
otherwise defined herein, capitalized terms used herein as defined terms shall
have the meanings ascribed to them in the Original Credit Agreement, as amended
hereby.
SECTION 4.06 COSTS AND EXPENSES. The Borrower will pay all
costs and expenses of the Documentation Agent (including, without limitation,
the reasonable fees and the disbursements of the Documentation Agent's special
counsel, Xxxxxx Xxxxxxxxx, P.C.) in connection with the preparation, execution
and delivery of this Second Amendment and the other documents, instruments and
certificates delivered in connection herewith.
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SECTION 4.07 GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICTS OF
LAW, EXCEPTING APPLICABLE FEDERAL LAW AND EXCEPT ONLY TO THE EXTENT PRECLUDED BY
THE MANDATORY APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
SECTION 4.08 HEADINGS. The headings of the sections in this
Second Amendment are for purposes of reference only and shall not be deemed to
be a part hereof.
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IN WITNESS WHEREOF, the parties hereto, with the intent to be
legally bound hereby, have caused this Second Amendment to Credit Agreement to
be duly executed by their respective proper and duly authorized officers as a
document under seal, as of the day and year first above written.
ATTEST/WITNESS: SYGNET COMMUNICATIONS, INC.
By: (SEAL)
--------------------------------- -------------------------------
Name: Name:
Title: Title:
TORONTO DOMINION (TEXAS), INC.,
in its capacity as Administrative Agent
By: (SEAL)
---------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
in its capacities as Documentation Agent and
Collateral Agent and as a Lender
By: (SEAL)
--------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK
By: (SEAL)
--------------------------------
Name:
Title:
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CIBC, INC.
By: (SEAL)
--------------------------------
Name:
Title:
CORESTATES BANK, N.A.
By: (SEAL)
--------------------------------
Name:
Title:
FLEET NATIONAL BANK
By: (SEAL)
------------------------------
Name:
Title:
CREDIT LYONNAIS
By: (SEAL)
-----------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
MARYLAND
By: (SEAL)
-----------------------------
Name:
Title:
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By: (SEAL)
-----------------------------
Name:
Title:
BANK OF MONTREAL, CHICAGO BRANCH
By: (SEAL)
-----------------------------
Name:
Title:
ROYAL BANK OF CANADA
By: (SEAL)
-----------------------------
Name:
Title:
NATIONAL CITY BANK,
successor-in-interest to
National City Bank Northeast
By: (SEAL)
-----------------------------
Name:
Title:
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XXXXXX XXXX XXX - XXX XXXX BRANCH
By: (SEAL)
-----------------------------
Name:
Title:
By: (SEAL)
-----------------------------
Name:
Title:
THE MAHONING NATIONAL BANK OF
YOUNGSTOWN
By: (SEAL)
-----------------------------
Name:
Title:
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