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EXHIBIT 10.29
Execution Copy
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as
of December 20, 1996 by and among PNI SYSTEMS, LLC, a Georgia limited liability
company (the "Company"), PREFERRED NETWORKS, INC., a Delaware corporation (the
"Parent", the Parent, together with the Company, the "Borrowers"), and
NATIONSBANK, N.A. (SOUTH) (the "Lender").
WHEREAS, the Borrowers and the Lender have entered into that certain
Credit Agreement dated as of August 8, 1996 (the "Credit Agreement); and
WHEREAS, the Borrowers and the Lender desire to amend certain
provisions of the Credit Agreement on the terms and conditions contained
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Specific Amendments to Credit Agreement. The parties hereto
agree that the Credit Agreement is amended as follows:
(a) The Credit Agreement is amended by deleting Schedules 5.1, 5.4,
5.9, 5.10, 5.11, 5.13, 5.14, 5.16, 5.17, and 5.18 in their entirety and
substituting in their place the Schedules with identical designations attached
hereto.
(b) The Credit Agreement is amended by deleting Section 2.12(a) in its
entirety and substituting in its place the following:
(a) The Company may only use the proceeds of Company Loans to
finance (i) the cash portion of the consideration paid by the Company
to finance paging or other communications related Acquisitions,
including without limitation, paging network Acquisitions, tower and
site Acquisitions and page repair Acquisitions; (ii) capital
expenditures of the Company and (iii) intercompany loans to the Parent
and any other Guarantor which (x) the Parent will use to finance the
cash portion of the consideration paid by the Parent to finance paging
network Acquisitions or (y) such other Guarantor will use for working
capital purposes (the "Intercompany Loans"). All Intercompany Loans
must be evidenced by a promissory note executed by the Parent or any
Guarantor receiving the proceeds of each Intercompany Loan in favor of
the Company and substantially in the form of Exhibit J hereto (each an
"Intercompany Note" and collectively the "Intercompany Notes"). All
Intercompany Notes shall be pledged by the Company to the Lender as
further security for the Obligations of the Company.
(c) The Credit Agreement is amended by deleting Section 4.1(h)
in its entirety and substituting in its place the following:
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(h) Pledge Agreements. The Lender shall have received each of
the Pledge Agreements duly executed by the Parent, PNI Georgia, Inc.
and the Company. In addition, the Lender shall have received each of
the following: (i) all certificates, if any, representing all of the
issued and outstanding capital stock, membership interest and other
equity interest of each of the Company, the License Subsidiary and any
other Subsidiary of the Parent, (ii) stock powers duly endorsed in
blank relating to all such certificates, (iii) if such Pledge
Agreement covers membership interest in a limited liability company,
the consent of such Person and each of its members substantially in
the form attached to the Pledge Agreement and (iv) all the
Intercompany Notes pledged pursuant to the Company's Pledge Agreement
and duly endorsed by the Company to the Lender.
(d) The Credit Agreement is amended by deleting the last paragraph of
Section 6.12 in its entirety and substituting in its place the following:
With respect to a Significant Acquisition, the items referred to in
the preceding subsections (a) through (d) and subsections (f) and (h)
must be delivered to the Lender at least 20 days prior to the
execution and delivery of the definitive Acquisition Documents for
such Acquisition while the balance of the items referred to in all of
the other subsections must be delivered to the Lender not later than
the date of the consummation of such Acquisition. With respect to any
other Acquisition, the items referred to in subsections (a), (b) and
(h) must be delivered to the Lender prior to the execution and
delivery of the definitive Acquisition Documents for such Acquisition
while the balance of the items referred to in all of the other
subsections (other than the certificate referred to in the preceding
subsection (c) and the Assignment of Acquisition Documents, neither of
which shall be required) must be delivered to the Lender not later
than 30 days following the date of the consummation of such
Acquisition. If the Lender shall have received only drafts of the
Acquisition Documents for an Acquisition on the date of the
consummation thereof, the Borrowers shall deliver to the Lender
complete fully executed copies of such Acquisition Documents
(including all exhibits and schedules thereto) not later than 5 days
after such date. The Borrowers agree not to amend, supplement, restate
or otherwise modify the terms of any Acquisition Document prior to
the consummation of the applicable Acquisition, or waive any condition
to the effectiveness of such Acquisition contained in such Acquisition
Documents, without the Lender's prior written consent, such consent
not to be unreasonably withheld.
(e) The Credit Agreement is amended by deleting Section 7.3 in its
entirety and substituting in its place the following:
7.3 INDEBTEDNESS
Create, incur or suffer to exist any Indebtedness except (a)
Indebtedness to the Lender under any of the Loan Documents; (b)
Indebtedness existing on the Effective Date and described on Schedule
5.13. which is acceptable to the Lender; (c) Indebtedness under the
Intercompany Notes in an aggregate principal amount not to exceed
$18,000,000 at any time outstanding; (d) Indebtedness in an aggregate
amount not to exceed $250,000 during any fiscal year of the Borrowers;
(e) Indebtedness otherwise permitted by Section 7.4 and (f) loans and
advances to employees of the Borrowers for moving, entertainment,
travel and other similar expenses in the ordinary course of business
consistent with past practices.
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(f) The Credit Agreement is amended by deleting the address for the
Borrowers from Section 10.2 and substituting in its place the following:
To a Borrower:
000 Xxxxxx Xxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telephone No: (000) 000-0000
Telescope No: (000) 000-0000
(g) The Credit Agreement is amended by deleting Section 1 of Exhibit C
in its entirety and substituting in its place the following:
Section 1. Pledge. The Pledgor hereby pledges, hypothecates,
assigns, transfers, sets over and delivers unto the Pledgee, and
grants to the Pledgee a security interest in, all of the Pledgor's
right, title and interest in, to and under the following, whether now
owned or hereafter acquired or arising (collectively, the "Pledged
Collateral"): (a) all of the common stock, shares, membership
interests, equity interests and other securities (collectively,
"Securities") of each Person (each an "Issuer") described in Schedule
I attached hereto; (b) any additional Securities of any of such
Issuers as may from time to time be issued to the Pledgor or otherwise
acquired by the Pledgor; (c) any additional Securities of any Issuer
as may hereafter at any time be delivered to the Pledgee by or on
behalf of the Pledgor; [Include the following if Debtor is PNI
Systems, LLC - (d) the Intercompany Notes, together with (i) all books
and accounts, papers and documents in any way evidencing or relating
to such Intercompany Notes, (ii) the Pledgor's right (A) to give all
consents, waivers and releases thereunder, (B) to take all action upon
the happening of any breach or default giving rise to any right
(including rights to payment of money, rights of indemnification and
setoff, and rights to defer payment of amounts or to compel specific
performance) in the Pledgor's favor under such Intercompany Notes, and
(C) to do any and all other things whatsoever which the Pledgor is or
may become entitled to do under such Intercompany Notes;] (e) all of
the rights of the Pledgor as a member of any Issuer that is a limited
liability company to: (i) capital of, profits of (in each case whether
or not distributed) and distributions of or from such Issuer, whether
cash or noncash, and whether prior to or in connection with the
liquidation of such Issuer; (ii) operate the business of such Issuer
and deal with and receive the benefit from such Issuer's assets; (iii)
receive proceeds of any indemnity, warranty or guaranty under any
agreement between the Pledgor, the other members of such Issuer and
such Issuer, or any of them; (iv) have access to such Issuer's books
and records and to other information concerning or affecting such
Issuer; (f) any cash or additional Securities or other property at any
time and from time to time receivable or otherwise distributable in
respect of, in exchange for, or in substitution of, any of the
property referred to in any of the immediately preceding clauses (a)
through (e); and (g) any and all products and proceeds of the
foregoing, together with all other rights, titles, interests, powers,
privileges and preferences pertaining to said property.
(h) The Credit Agreement is amended by deleting Exhibit J in its
entirety and substituting in its place Exhibit J attached hereto.
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Section 2. Conditions Precedent. The effectiveness of this Amendment
is subject to receipt by the Lender of each of the following, each in form and
substance satisfactory to the Lender:
(a) A counterpart of this Amendment duly executed by the Company, the
Parent and the Lender, and
(b) Such other documents, instruments and agreements as the Lender
may reasonably request.
Section 3. Representations. Each of the Borrowers represents and
warrants to the Lender that:
(a) Authorization; No Conflict. The execution and delivery by the
Borrowers of this Amendment and the performance by the Borrowers of this
Amendment and the Credit Agreement, as amended by this Amendment in accordance
with their respective terms (a) have been duly authorized by all requisite
corporate and, to the extent required, stockholder action (or membership action
in the case of a limited liability company) on the part of each Borrower and
(b) will not (i) violate any provision of Applicable Law, or any order of any
Governmental Authority or any provision of the certificate in incorporation,
articles of organization or other comparable organizational instrument or
by-laws or operating agreement of either Borrower, (ii) violate, conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or
both) a default or an event of default under any Material Contract to which
either Borrower is a party or which each Borrower or any of its property is or
may be bound, or (iii) result in the creation or imposition of any Lien upon
any property or assets of the Borrowers.
(b) Enforceability. This Amendment has been duly executed and
delivered by a duly authorized officer of each Borrower and each of this
Amendment and the Credit Agreement, as amended by this Amendment, is a legal,
valid and binding obligation of the Borrowers enforceable against the Borrowers
in accordance with its respective terms except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other laws affecting generally the enforcement of creditors' rights and by
general principles of equity (regardless of whether considered in a proceeding
in equity or at law).
Section 4. Reaffirmation. Each Borrower hereby repeats and reaffirms
all representations and warranties made by such Borrower to the Lender in the
Credit Agreement and the other Loan Documents to which it is a party on and as
of the date hereof with the same force and effect as if such representations
and warranties were set forth in this Amendment in full.
Section 5. Certain References. Each reference to the Credit Agreement
in any of the Loan Documents shall be deemed to be a reference to the Credit
Agreement as amended by this Amendment.
Section 6. Expenses. The Company shall reimburse the Lender upon
demand for all costs and expenses (including attorneys' fees) incurred by the
Lender in connection with the preparation, negotiation and execution of this
Amendment and the other agreements and documents executed and delivered in
connection herewith.
Section 7. Benefits. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respect successors and
assigns.
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Section 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 9. Effect. Except as expressly herein amended, the terms and
conditions of the Credit Agreement and the other Loan Documents remain in full
force and effect. The amendments contained herein shall be deemed to have
prospective application only, unless otherwise specifically stated herein.
Section 10. Counterparts. This Agreement may be executed in any number
of counterparts, each of which need not contain the signature of more than one
party and all of which taken together shall constitute one and the same
original instrument.
Section 11. Definitions. All capitalized terms not otherwise defined
herein are used herein with the respective definitions given them in the Credit
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Firm Amendment to
Credit Agreement to be executed as of the date first above written.
THE PARENT:
PREFERRED NETWORKS, INC.
By: /s/ Xxx Xxxxx Xxxxxx
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Name: Xxx Xxxxx Xxxxxx
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Title: Chief Financial Officer
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THE COMPANY:
PNI SYSTEMS, LLC
By: Preferred Networks, Inc., its Manager
By: /s/ Xxx Xxxxx Xxxxxx
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Name: Xxx Xxxxx Xxxxxx
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Title: Chief Finanical Officer
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THE LENDER:
NATIONSBANK, N.A. (SOUTH)
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Assistant Vice President
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