EXHIBIT F
FORM OF PARENT GUARANTY
THIS PARENT GUARANTY (the "GUARANTY") is made as of the 14th day of
May, 1999, by ADVANCED COMMUNICATIONS GROUP, INC., a Delaware corporation (the
"GUARANTOR"), in favor of the Lenders (as defined in the Loan Agreement
described below) and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
administrative agent (the "ADMINISTRATIVE AGENT") for itself and on behalf of
the Lenders.
W I T N E S S E T H:
WHEREAS, Great Western Directories, Inc. (the "BORROWER"), the Lenders
and the Administrative Agent are parties to that certain Loan Agreement dated as
of even date herewith (as amended, modified, restated or supplemented from time
to time, the " LOAN AGREEMENT"); and
WHEREAS, pursuant to the terms of the Loan Agreement, the Guarantor is
required to execute and deliver this Guaranty; and
WHEREAS, the Borrower is a Subsidiary of the Guarantor; and
WHEREAS, the Borrower, the Guarantor and other Subsidiaries of the
Guarantor are mutually dependent on each other in the conduct of their
respective businesses as an integrated operation, and the Guarantor has as one
of its corporate purposes assisting the Borrower to obtain financing needed from
time to time by the Guarantor, the Borrower and other Subsidiaries of the
Guarantor; and
WHEREAS, the Borrower's ability to obtain such financing is dependent,
in part, on the successful operations of the properties owned by the Guarantor
and the Guarantor's ability to supply capital and financing, including, without
limitation this Guaranty; and
WHEREAS, the Guarantor has determined that its execution, delivery and
performance of this Guaranty directly benefit, and are within the corporate
purposes and in the best interests of, the Guarantor; and
WHEREAS, as a condition to the extension of the Loans by the Lenders
and pursuant to the Loan Agreement, the Lenders have required the Guarantor to,
and the Guarantor is willing to, execute this Guaranty guaranteeing the payment
and performance by the Borrower of its obligations and covenants under the Loan
Agreement, the Notes and the other Loan Documents (the Loan Agreement, the Notes
and the other Loan Documents, as executed on the date hereof and as they may be
amended, restated, modified, supplemented or extended from time to time being
hereinafter referred to collectively as the "GUARANTEED AGREEMENTS");
NOW, THEREFORE, in consideration of the above premises, Ten Dollars
($10.00) in hand paid and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereby
unconditionally guarantees to the Lenders and the
Administrative Agent full and prompt payment and performance when due whether
at maturity, by acceleration or otherwise of all Obligations. Each Obligation
shall rank PARI PASSU with each other Obligation.
The Guarantor hereby further agrees, for the benefit of the Lenders and
the Administrative Agent, that:
1. DEFINED TERMS.
(a) Capitalized terms used herein and not otherwise defined herein
shall have the meaning ascribed thereto in the Loan Agreement.
(b) For purposes of this Guaranty, the following defined terms shall
have the meaning ascribed thereto in the Loan Agreement except that in each such
definition the terms "BORROWER" and "BORROWER'S SUBSIDIARIES" (or similar terms
including, without limitation, "ITS SUBSIDIARIES", "ANY OF ITS SUBSIDIARIES" and
"ANY SUBSIDIARY OF THE BORROWER") shall be deemed to be replaced with the terms
"PARENT" and "AFFILIATE GUARANTORS", respectively: "ACQUISITION", "INVESTMENT",
"MATERIALLY ADVERSE EFFECT" and "RESTRICTED PAYMENTS".
(c) For purposes of this Guaranty, the terms "LICENSES", "NET DEBT
PROCEEDS", "NET EQUITY PROCEEDS", "PERMITTED LIENS" and "SUBORDINATED NOTES"
shall have the following meanings:
(i) "LICENSES" shall mean any license, authorization or
certificate issued by the FCC or any state regulatory authority in
connection with the operation of the CLEC Business and held by the
Parent or an Affiliate Guarantor, substantially all of which are listed
as of the Agreement Date on SCHEDULE 1 hereto.
(ii) "NET DEBT PROCEEDS" shall mean, with respect to the
issuance of Indebtedness (other than Indebtedness permitted under
Section 5(l) hereof) by the Parent or any Affiliate Guarantor, the
difference between (a) the gross principal amount of such Indebtedness
issued and (b) reasonable and customary transaction costs payable by
the Parent or any Affiliate Guarantor, as the case may be, in
connection with such issuance.
(iii) "NET EQUITY PROCEEDS" shall mean, with respect to any
primary sale or issuance of any securities or equity of the Parent or
any Affiliate Guarantor (other than in connection with the acquisition
of or merger or consolidation with the YP Tel Entities, the payment in
full of the Subordinated Notes or in connection with any employee stock
option plans, stock purchase plans and 401(k) plans maintained or
established by the Parent or any Affiliate Guarantor) the difference
between (a) the gross sales price for the securities or equity being
sold and (b) reasonable and customary transaction costs payable by the
Parent or any Affiliate Guarantor, as the case may be, in connection
with such sale.
(iv) "PERMITTED LIENS" shall mean, with respect to any
person:
- 2 -
(A) any Lien in favor of the Administrative Agent or
any Lender given to secure the Obligations or any other Liens in
existence on the Agreement Date and disclosed on SCHEDULE 2 attached
hereto;
(B) (1) Liens on real estate or other property for
taxes, assessments, governmental charges or levies not yet delinquent
and (2) Liens for taxes, assessments, judgments, governmental charges
or levies or claims the non-payment of which is being contested in
good faith by appropriate proceedings and for which adequate reserves
have been set aside on such Person's books, but only so long as no
foreclosure, distraint, sale or similar proceedings have been
commenced with respect thereto;
(C) Liens of carriers, warehousemen, landlords,
mechanics, vendors, (solely to the extent arising by operation of law)
laborers and materialmen incurred in the ordinary course of business
for sums not yet due or being diligently contested in good faith, if
reserves or appropriate provisions shall have been made therefor;
(D) Liens incurred in the ordinary course of business
in connection with worker's compensation and unemployment insurance,
social security obligations, assessments or government charges which
are not overdue for more than sixty (60) days;
(E) restrictions on the transfer of assets of such
Person imposed by the Communications Act and any regulations
thereunder, or any state public utilities or comparable law with
respect to telecommunications or related companies and any regulations
thereunder;
(F) easements, rights-of-way, zoning restrictions,
licenses, reservations or restrictions on use and other similar
encumbrances on the use of real property which do not materially
interfere with the ordinary conduct of the business of such Person or
the use of such property;
(G) Liens reflected by Uniform Commercial Code
financing statements filed in respect of Capitalized Lease Obligations
in effect on the Agreement Date or permitted under Section 5(l) hereof
and true leases of the Guarantor and the Affiliate Guarantors;
(H) Liens to secure performance of statutory
obligations, surety or appeal bonds, performance bonds, bids, tenders
or escrow deposits in connection with Acquisitions; and
(I) judgment Liens which do not result in an Event of
Default under Section 8.1(h) of the Loan Agreement or hereunder.
(iv) "SUBORDINATED NOTES" shall mean, collectively, (a) that
certain $8,400,000.00 5% Subordinated Note due February 18, 2000 made
by the Guarantor in
- 3 -
favor of Xxxxxxx X'Xxxx and dated as of February 18, 1998, (b) that
certain $3,750,000.00 5% Subordinated Note due February 18, 2000 made
by the Guarantor in
favor of Xxxxx Xxxxxxx and dated as of February 18, 1998, (c) that
certain $1,050,000.00 5% Subordinated Note due February 18, 2000
made by the Guarantor in favor of Xxxxx Xxxxxx and dated as of
Xxxxxxxx 00, 0000, (x) that certain $1,050,000.00 5% Subordinated
Note due February 18, 2000 made by the Guarantor in favor of Xxx
Xxxxxxx and dated as of February 18, 1998, (e) that certain
$750,000.00 5% Subordinated Note due February 18, 2000 made by the
Guarantor in favor of Xxxxxx Xxxxxxx and dated as of February 18,
1998, (f) that certain $552,983.00 10% Convertible Subordinated Note
due February 18, 2000 made by the Guarantor in favor of Xxxx X.
Xxxxxxx dated as of February 18, 1998, (g) that certain $552,984.00
10% Convertible Subordinated Note due February 18, 2000 made by the
Guarantor in favor of Xxxxx X. Xxxxx dated as of February 18, 1998,
(h) that certain $240,427.00 10% Convertible Subordinated Note due
February 18, 2000 made by the Guarantor in favor of X. Xxxxxxx Van
Leur dated as of February 18, 1998, (i) that certain $288,513.00 10%
Convertible Subordinated Note due February 18, 2000 made by the
Guarantor in favor of Xxxxxxx Xxxxxx dated as of February 18, 1998,
(j) that certain $288, 513.00 10% Convertible Subordinated Note due
February 18, 2000 made by the Guarantor in favor of Xxxx Vanden
Xxxxx dated as of February 18, 1998, (k) that certain $26,037.00 10%
Convertible Subordinated Note due February 18, 2000 made by the
Guarantor in favor of Xxxx X. Xxxxx dated as of February 18, 1998,
(l) that certain $26,037.00 10% Convertible Subordinated Note due
February 18, 2000 made by the Guarantor in favor of J. Xxxxxxx Xxxx
dated as of February 18, 1998, (m) that certain $15,316.00 10%
Convertible Subordinated Note due February 18, 2000 made by the
Guarantor in favor of Xxxxxxxx, Inc. dated as of February 18, 1998,
and (n) that certain $9,190.00 10% Convertible Subordinated Note due
February 18, 2000 made by the Guarantor in favor of Xxxxxxx X.
Xxxxxx dated as of February 18, 1998.
2. OBLIGATIONS SEVERAL. Regardless of whether any proposed guarantor or
any other Person or Persons is, are or shall become in any other way responsible
to the Lenders and the Administrative Agent, or any of them, for or in respect
of the Obligations or any part thereof, and regardless of whether or not any
Person or Persons now or hereafter responsible to the Lenders and the
Administrative Agent, or any of them, for the Obligations or any part thereof,
whether under this Guaranty or otherwise, shall cease to be so liable, the
Guarantor hereby declares and agrees that this Guaranty is and shall continue to
be a several obligation, shall be a continuing guaranty and shall be operative
and binding, and that the Guarantor shall have no right of subrogation with
respect to this Guaranty until the Obligations have been paid or otherwise
satisfied in full.
3. GUARANTY FINAL. Upon the execution and delivery of this Guaranty to
the Administrative Agent, this Guaranty shall be deemed to be finally executed
and delivered by the Guarantor and shall not be subject to or affected by any
promise or condition affecting or limiting the Guarantor's liability, and no
statement, representation, agreement or promise on the part of the Lenders and
the Administrative Agent, the Borrower, or any of them, or any officer, employee
or agent thereof, unless contained herein forms any part of this Guaranty or has
- 4 -
induced the making hereof or shall be deemed in any way to affect the
Guarantor's liability hereunder.
4. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby agrees,
represents and warrants, upon the Agreement Date, in favor of the Administrative
Agent and each Lender, that:
(a) The Guarantor is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The Guarantor has the
corporate power and authority to own its properties and to carry on its business
as now being and as proposed hereafter to be conducted. The Guarantor and each
Affiliate Guarantor are duly qualified, in good standing and authorized to do
business in each jurisdiction in which the character of their respective
properties or the nature of their respective businesses requires such
qualification or authorization, except where failure to be so qualified, in the
aggregate, could not reasonably be expected to have a Materially Adverse Effect.
(b) The Guarantor has the corporate power and has taken all necessary
corporate action to authorize it to borrow hereunder, to execute, deliver and
perform this Agreement and each of the other Loan Documents to which it is a
party in accordance with their respective terms, and to consummate the
transactions contemplated hereby and thereby. This Agreement has been duly
executed and delivered by the Guarantor and is, and each of the other Loan
Documents to which the Guarantor is party is, a legal, valid and binding
obligation of the Guarantor enforceable against the Guarantor in accordance with
its terms, subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity.
(c) To the extent that any Affiliate Guarantors exist, the Guarantor
has the unrestricted right to vote the issued and outstanding equity of the
Affiliate Guarantors owned by the Guarantor and such equity of such Affiliate
Guarantors has been duly authorized and issued and is fully paid and
nonassessable. Each Affiliate Guarantor, if any, has the power and has taken all
necessary action to authorize it to execute, deliver and perform each of the
Loan Documents to which it is a party in accordance with their respective terms
and to consummate the transactions contemplated by this Agreement and by such
Loan Documents. Each of the Loan Documents to which any Affiliate Guarantor is
party is a legal, valid and binding obligation of such Affiliate Guarantor
enforceable against such Affiliate Guarantor in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity. The Guarantor's ownership interest in each
Affiliate Guarantor represents a direct or indirect controlling interest of such
Affiliate Guarantor for purposes of directing or causing the direction of the
management and policies of each Affiliate Guarantor.
(d) The Guarantor and each of the Affiliate Guarantors have secured all
material Necessary Authorizations and all such Necessary Authorizations are in
full force and effect. No
- 5 -
material Necessary Authorization is the subject of any pending or, to the
best of the Guarantor's knowledge, threatened revocation.
(e) The Guarantor and each of the Affiliate Guarantors are in
compliance with all Applicable Law, except where the failure to be in compliance
would not individually or in the aggregate have a Materially Adverse Effect.
(f) As of the Agreement Date, the Guarantor and each of the Affiliate
Guarantors have good, legal and marketable title to, or a valid leasehold
interest in, all of its material assets. None of the properties or assets of the
Guarantor or any of the Affiliate Guarantors is subject to any Liens, except for
Permitted Liens. Except for financing statements evidencing Permitted Liens, no
financing statement under the Uniform Commercial Code as in effect in any
jurisdiction and no other filing which names the Guarantor or any of the
Affiliate Guarantors as debtor or which covers or purports to cover any of the
assets of the Guarantor or any of the Affiliate Guarantors is currently
effective and on file in any state or other jurisdiction, and neither the
Guarantor nor any of the Affiliate Guarantors has signed any such financing
statement or filing or any security agreement authorizing any secured party
thereunder to file any such financing statement or filing.
(g) As of the date hereof, except as set forth on SCHEDULE 3 attached
hereto, there is no action, suit, proceeding or investigation pending against,
or, to the knowledge of the Guarantor, threatened against or in any other manner
relating adversely to, the Guarantor or any of the Affiliate Guarantors or, to
the knowledge of the Guarantor, any of their respective properties, in any court
or before any arbitrator of any kind or before or by any governmental body. No
action, suit, proceeding or investigation (i) calls into question the validity
of this Agreement or any other Loan Document or, (ii) individually or
collectively, involves the possibility of any judgment or liability not fully
covered by insurance which, if determined adversely to the Guarantor or any of
the Affiliate Guarantors, would have a Materially Adverse Effect.
(h) All material federal, state and other tax returns of the Guarantor
and each of the Affiliate Guarantors required by law to be filed have been duly
filed and all federal, state and other taxes, including, without limitation,
withholding taxes, assessments and other governmental charges or levies required
to be paid by the Guarantor or any Affiliate Guarantor or imposed upon the
Guarantor or any Affiliate Guarantor or any of their respective properties,
income, profits or assets, which are due and payable, have been paid, except any
such taxes (i) (x) the payment of which the Guarantor or any Affiliate Guarantor
is diligently contesting in good faith by appropriate proceedings, (y) for which
adequate reserves have been provided on the books of the Guarantor or the
Affiliate Guarantor involved, and (z) as to which no Lien other than a Permitted
Lien has attached and no foreclosure, distraint, sale or similar proceedings
have been commenced, or (ii) which may result from audits not yet conducted. The
charges, accruals and reserves on the books of the Guarantor and each Affiliate
Guarantor in respect of taxes are, in the judgment of the Guarantor, adequate.
- 6 -
(i) There has occurred no event, condition or other change since
December 31, 1998 which has had, or which could reasonably be expected to have,
a Materially Adverse Effect.
(j) The Guarantor and the Affiliate Guarantors are in compliance in all
respects with all of the material provisions of their respective certificates or
articles of incorporation and by-laws, as the case may be, and no event has
occurred or failed to occur (including, without limitation, any matter which
could create a Default hereunder by cross-default) which has not been remedied
or waived, the occurrence or non-occurrence of which constitutes, (i) a Default
or (ii) a material default by the Guarantor or any Affiliate Guarantor under any
indenture, agreement or other instrument relating to Indebtedness of the
Guarantor or any Affiliate Guarantors in the amount of $1,000,000.00 or more in
the aggregate (other than Indebtedness owing to the Borrower or its Subsidiaries
in connection with any loan made pursuant to Section 7.6(b) of the Loan
Agreement), any material license, or any judgment, decree or order to which the
Guarantor or any Affiliate Guarantor is a party or by which the Guarantor or any
Affiliate Guarantor or any of their respective properties may be bound or
affected.
(k) The Security Interest granted under the Parent Security Agreement
and any Affiliate Security Agreement is a valid and, upon filing of appropriate
Uniform Commercial Code financing statements and/or mortgages, will be a
perfected first priority security interest in the Collateral in favor of the
Administrative Agent, for the benefit of itself and the Lenders, securing, in
accordance with the terms of such Security Documents, the Obligations, and the
Collateral is subject to no Liens other than Permitted Liens. The Liens created
by the Security Documents to which the Guarantor and the Affiliate Guarantors,
or any of them, are a party are enforceable as security for the Obligations in
accordance with their terms with respect to the Collateral subject, as to
enforcement of remedies, to the following qualifications: (i) an order of
specific performance and an injunction are discretionary remedies and, in
particular, may not be available where damages are considered an adequate remedy
at law; (ii) enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganization, reconstruction and other similar laws affecting enforcement of
creditors' rights generally (insofar as any such law relates to the bankruptcy,
insolvency or similar event of the Guarantor or any Affiliate Guarantor, as the
case may be); (iii) enforcement may require FCC and state agency approvals as to
any transfer of control of the Affiliate Guarantors and as to exercise of any
rights with respect to the Licenses; and (iv) enforcement may be subject to
limitations set forth in the Communications Act and regulations thereunder and
state regulatory and comparable law applicable to telecommunications and related
companies and regulations thereunder.
(l) Except as described on SCHEDULE 4 attached hereto, and except for
any Indebtedness owed to the Borrower and its Subsidiaries in connection with
any loan made by the Borrower or any of its Subsidiaries pursuant to Section
7.6(b) of the Loan Agreement, neither the Guarantor nor any Affiliate Guarantor
has outstanding, as of the Agreement Date, any Indebtedness for Money Borrowed.
(m) As of the Agreement Date and after giving effect to the
transactions contemplated by the Loan Documents: (i) the property of the
Guarantor, at a fair valuation, will exceed its debt; (ii) the capital of the
Guarantor will not be unreasonably small to conduct its business;
- 7 -
(iii) the Guarantor will not have incurred debts, or have intended to incur
debts, beyond its ability to pay such debts as they mature; and (iv) the
present fair salable value of the assets of the Guarantor will be greater
than the amount that will be required to pay its probable liabilities
(including debts) as they become absolute and matured. For purposes of this
Section 4(m), "debt" means any liability on a claim, and "claim" means (i)
the right to payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, undisputed,
legal, equitable, secured or unsecured, or (ii) the right to an equitable
remedy for breach of performance if such breach gives rise to a right to
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, undisputed, secured or
unsecured.
(n) The Guarantor and the Affiliate Guarantors have reviewed the areas
within their business and operations which could be adversely affected by, and
have developed or are developing a program to address on a timely basis, the
"YEAR 2000 PROBLEM" (that is, the risk that computer applications used by the
Guarantor and the Affiliate Guarantors may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999). Based on such review and program, the Guarantor
reasonably believes that the Year 2000 Problem will not have a Materially
Adverse Effect.
5. COVENANTS. So long as any of the Obligations is outstanding and
unpaid or the Lenders have an obligation to fund Advances under the Loan
Agreement (whether or not the conditions to borrowing have or can be fulfilled),
and unless the Required Lenders, or such greater number of Lenders as may be
expressly provided herein, shall otherwise consent in writing:
(a) Except as permitted under Section 5(o) hereof, the Guarantor will,
and will cause each Affiliate Guarantor to:
(i) preserve and maintain its existence, and its material
rights, franchises, licenses and privileges in the state of its
incorporation, including, without limiting the foregoing, all other
Necessary Authorizations; and
(ii) qualify and remain qualified and authorized to do
business in each jurisdiction in which the character of its properties
or the nature of its business requires such qualification or
authorization, except for such failure to so qualify and be so
authorized as could not reasonably be expected to have a Materially
Adverse Effect.
(b) The Guarantor will, and will cause each Affiliate Guarantor to,
maintain or cause to be maintained in the ordinary course of business in good
repair, working order and condition (reasonable wear and tear excepted) all
material properties used in their respective businesses (whether owned or held
under lease), other than obsolete equipment or unused assets and from time to
time make or cause to be made all needed and appropriate repairs, renewals,
replacements, additions, betterments and improvements thereto.
(c) The Guarantor will, and will cause each Affiliate Guarantor to:
- 8 -
(i) Maintain insurance including, but not limited to,
business interruption coverage and public liability coverage insurance from
responsible companies in such amounts and against such risks to the Guarantor
and each Affiliate Guarantor as is prudent for similarly situated companies
engaged in similarly situated industries.
(ii) Keep their respective assets insured by insurers on
terms and in a manner reasonably acceptable to the Administrative Agent
against loss or damage by fire, theft, burglary, loss in transit, explosions
and hazards insured against by extended coverage, in amounts which are
prudent for companies in similarly situated industries and reasonably
satisfactory to the Administrative Agent, all premiums thereon to be paid by
the Guarantor and the Affiliate Guarantors.
(iii) Require that each insurance policy provide for at least
thirty (30) days' prior written notice to the Administrative Agent of any
termination of or proposed cancellation or nonrenewal of such policy and, other
than in connection with any liability policy, name the Administrative Agent as
additional named lender loss payee and, as appropriate, additional insured, to
the extent of the Obligations.
(d) Subject to any provisions in this Guaranty, the Loan Agreement or
in any other Loan Document, the Guarantor will, and will cause each Affiliate
Guarantor to, pay any and all of their respective Indebtedness when and as it
becomes due, other than amounts diligently disputed in good faith and for which
adequate reserves have been set aside in accordance with GAAP. Notwithstanding
the foregoing, the Guarantor shall not, and shall not permit any Affiliate
Guarantor to make any payment of principal in respect of any Subordinated Note
other than payments of principal made through the issuance of Capital Stock of
the Guarantor.
(e) The Guarantor will indemnify and hold harmless each Lender, the
Administrative Agent, and each of their respective affiliates, employees,
representatives, shareholders, officers and directors (any of the foregoing
shall be an "INDEMNITEE") from and against any and all claims, liabilities,
losses, damages, actions, reasonable attorneys' fees and expenses (as such fees
and expenses are incurred) and demands by any party, including the costs of
investigating and defending such claims, whether or not the Guarantor, any
Affiliate Guarantor or the Person seeking indemnification is the prevailing
party: (a) resulting from any breach or alleged breach by the Guarantor or any
Affiliate Guarantor of any representation or warranty made hereunder; or (b)
otherwise arising out of (i) the Commitment, the Loans or otherwise under this
Guaranty, the Loan Agreement, any other Loan Document or any transaction
contemplated hereby or thereby, including, without limitation, the use of the
proceeds of Loans hereunder in any fashion by the Guarantor or the performance
of their respective obligations under the Loan Documents by the Guarantor or any
Affiliate Guarantor, (ii) allegations of any participation by the Lenders, the
Administrative Agent, or any of them, in the affairs of the Guarantor or any
Affiliate Guarantor, or allegations that any of them has any joint liability
with the Guarantor or any Affiliate Guarantor for any reason, (iii) any claims
against the Lenders, the Administrative Agent, or any of them, by any
shareholder or other investor in or lender to the Guarantor or any Affiliate
Guarantor, by any brokers or finders or investment advisers or investment
bankers
- 9 -
retained by the Borrower or by any other third party, arising out of the
Commitments or otherwise under this Guaranty, the Loan Agreement or any other
Loan Document; or (c) in connection with taxes (not including federal or
state income or franchise taxes or other taxes based solely upon the revenues
or income of such Persons), fees, and other charges payable in connection
with the Loans, or the execution, delivery, and enforcement of this Guaranty,
the Loan Agreement, any other Loan Document, and any amendments thereto or
waivers of any of the provisions thereof; unless the Person seeking
indemnification hereunder is determined in such case to have acted with gross
negligence or willful misconduct, in any case, by a final, non-appealable
judicial order. The obligations of the Guarantor under this Section 5(e) are
in addition to, and shall not otherwise limit, any liabilities which the
Guarantor might otherwise have in connection with any warranties or similar
obligations of the Guarantor in any other Loan Document.
(f) At the time of (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 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, and will cause each Affiliate Guarantor to, 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:
(i) to retire the CIBC Facility;
(ii) for working capital needs and other corporate
purposes in connection with the operation of the CLEC business; and
(iii) for working capital needs and other corporate
purposes of the Guarantor.
(h) The Guarantor will, and will cause each Affiliate Guarantor to,
issue instruments representing any loan made to the Guarantor and the Affiliate
Guarantors, or any of them, on the one hand, and the Borrower and its
Subsidiaries, or any of them, on the other hand, pursuant to Section 7.6(b) of
the Loan Agreement, and assign and deliver such instruments to the
Administrative Agent, for itself and on behalf of the Lenders, as additional
Collateral to secure the Obligations.
(i) The Guarantor hereby agrees that it shall, and shall cause the
Affiliate Guarantors to, not sell, transfer or otherwise dispose of the CLEC
Business other than (i) for cash or other
- 10 -
consideration reasonably satisfactory to the Administrative Agent and (ii)
otherwise on terms and conditions reasonably satisfactory to the
Administrative Agent.
(j) On the date of the sale, transfer or other disposition of all or
any part of the CLEC Business by the Guarantor and the Affiliate Guarantors, or
any of them, (i) the Guarantor and each Affiliate Guarantors making such sale,
transfer or other disposition shall make a repayment of the principal amount of
any loan made to such Person by the Borrower and its Subsidiaries, or any of
them, pursuant to Section 7.6(b) of the Loan Agreement in an amount equal to the
aggregate CLEC Net Proceeds received by such Person, and (ii) the Guarantor
shall cause any CLEC Net Proceeds remaining after the application thereof set
forth in clause (i) of this Section 5(j)to be contributed as equity to the
Borrower in an amount not less than the Loans outstanding after application of
amounts under clause (i) of this Section 5(j) in reduction of the Loans.
(k) On the date of (i) any issuance of equity interests of the
Guarantor or any Affiliate Guarantor (other than in connection with the
acquisition of or merger or consolidation with one or more of the YP Tel
Entities, the payment in full and termination of the Subordinated Notes or in
connection with any employee stock option plans, stock purchase plans and 401(k)
plans maintained or established by the Parent or any Affiliate Guarantor) or
(ii) the issuance of Indebtedness (other than Indebtedness permitted under
Section 5(l) hereof) by the Guarantor or any Affiliate Guarantor, the Guarantor
shall make a contribution of equity to the Borrower in an amount equal to, (A)
with respect to any such issuance of equity, the Net Equity Proceeds received by
the Guarantor or any Affiliate Guarantor, and (B) with respect to any such
issuance of such Indebtedness, the Net Debt Proceeds received by the Guarantor
or any Affiliate Guarantor.
(l) The Guarantor shall not, and shall not permit any Affiliate
Guarantor to, create, assume, incur or otherwise become or remain obligated in
respect of, or permit to be outstanding, any Indebtedness except:
(i) the Obligations;
(ii) Indebtedness secured by Permitted Liens;
(iii) Indebtedness of the Guarantor or any Affiliate
Guarantor to any such Affiliate Guarantor or to the Guarantor or any other
Affiliate Guarantor, respectively, so long as the corresponding debt
instruments, if any, are pledged to the Administrative Agent as security for
the Obligations;
(iv) the Subordinated Notes;
(v) reimbursement obligations with respect to letters of
credit incurred in the ordinary course of business, Capitalized Lease
Obligations incurred after the Agreement Date in the ordinary course of
business, surety bonds and other unsecured Indebtedness for Money Borrowed in an
aggregate amount not to exceed $500,000.00; and
- 11 -
(vi) Indebtedness of the YP Tel Entities existing on
the date of the consummation of, but not incurred in connection with, the
acquisition of or merger or consolidation with one or more of the YP Tel
Entities.
(m) The Guarantor shall not, and shall not permit any Affiliate
Guarantor to, create, assume, incur or permit to exist or to be created,
assumed, incurred or permitted to exist, directly or indirectly, any Lien on any
of its properties or assets, whether now owned or hereafter acquired, except for
Permitted Liens. The Guarantor shall not, and shall not permit any Affiliate
Guarantor to, undertake, covenant or agree with any third party that it will not
create, assume, incur or permit to exist any lien in favor of the Administrative
Agent or the Lenders securing the Obligations on any of its assets or
properties, whether now owned or hereafter acquired, except for Permitted Liens.
(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 other than (i) in connection with the sale, transfer or other
disposition or discontinuation of operations of the CLEC Business, the
dissolution of Non-Material Subsidiaries or (ii) the sale, transfer or other
disposition or discontinuation of operations of Tele-Systems, Inc.
(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 sale, transfer or other disposition or
dissolution or liquidation of the CLEC Business, (v) in connection with the
acquisition of or merger or consolidation with one or more of the YP Tel
Entities by the Guarantor, PROVIDED that on the effective date of such merger or
consolidation, the Guarantor shall have received a signed commitment (which
commitment remains in effect on the effective date of such acquisition, merger
or consolidation) reasonably satisfactory to the Administrative Agent to provide
financing to the Parent or its Subsidiaries to repay in full the Obligations,
(vi) the dissolution of any Non-Material Subsidiary or (vii) the sale, transfer
or other disposition or discontinuation of operations of Tele-Systems, Inc.
(p) The Guarantor shall not, and shall not permit any Affiliate
Guarantor to, at any time Guaranty, assume, be obligated with respect to, or
permit to be outstanding any Guaranty of, any obligation of any other Person
other than (a) a guaranty by endorsement of negotiable instruments for
collection in the ordinary course of business, or (b) Guaranties constituting
Indebtedness permitted pursuant to Section 5(l) hereof, or (c) as may be
contained in any Loan Document including, without limitation, any Subsidiary
Guaranty or any Affiliate Guaranty.
- 12 -
(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, 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, and provided that, on or prior to the
effective date of such acquisition, the Guarantor shall have received a
signed commitment reasonably satisfactory in all respects to the
Administrative Agent (which commitment remains in effect on the effective
date of such acquisition) to provide financing to the Parent or its
Subsidiaries to repay in full the Obligations, the Guarantor or any Affiliate
Guarantor may acquire any or all of the YP Tel Entities.
(r) The Guarantor shall not, and shall not permit any Affiliate
Guarantor to, directly or indirectly declare or make any Restricted Payment
other than to the Guarantor.
6. AMENDMENT AND WAIVER. No alteration or waiver of this Guaranty or of
any of its terms, provisions or conditions shall be binding upon the Persons
against whom enforcement is sought unless made in writing and signed by an
authorized officer of such Person.
7. DEALINGS WITH BORROWER. The Lenders and the Administrative Agent, or
any of them, may, from time to time, without exonerating or releasing the
Guarantor in any way under this Guaranty, (i) take such further or other
security or securities for the Obligations or any part thereof as the Lenders
and the Administrative Agent, or any of them, may deem proper, consistent with
the Loan Agreement, or (ii) release, discharge, abandon or otherwise deal with
or fail to deal with any guarantor of the Obligations or any security or
securities therefor or any part thereof now or hereafter held by the Lenders and
the Administrative Agent, or any of them, or (iii) consistent with the Loan
Agreement, amend, modify, extend, accelerate or waive in any
- 13 -
manner any of the provisions, terms, or conditions of the Guaranteed
Agreements, all as the Lenders and the Administrative Agent, or any of them,
may consider expedient or appropriate in their sole discretion. Without
limiting the generality of the foregoing, or of Section 6 hereof, it is
understood that the Lenders and the Administrative Agent, or any of them,
may, without exonerating or releasing the Guarantor, give up, or modify or
abstain from perfecting or taking advantage of any security for the
Obligations and accept or make any compositions or arrangements, and realize
upon any security for the Obligations when, and in such manner, as the
Lenders and the Administrative Agent, or any of them, may deem expedient,
consistent with the Loan Agreement, all without notice to the Guarantor,
except as required by Applicable Law.
8. GUARANTY UNCONDITIONAL. The Guarantor acknowledges and agrees that
no change in the nature or terms of the Obligations or any of the Guaranteed
Agreements, or other agreements, instruments or contracts evidencing, related to
or attendant with the Obligations (including any novation), nor any
determination of lack of enforceability thereof, shall discharge all or any part
of the liabilities and obligations of the Guarantor pursuant to this Guaranty;
it being the purpose and intent of the Guarantor, the Lenders and the
Administrative Agent that the covenants, agreements and all liabilities and
obligations of the Guarantor hereunder are absolute, unconditional and
irrevocable under any and all circumstances. Without limiting the generality of
the foregoing, the Guarantor agrees that until each and every one of the
covenants and agreements of this Guaranty is fully performed, the Guarantor's
undertakings hereunder shall not be released, in whole or in part, by any action
or thing which might, but for this paragraph of this Guaranty, be deemed a legal
or equitable discharge of a surety or guarantor, or by reason of any waiver,
omission of the Lenders and the Administrative Agent, or any of them, or their
failure to proceed promptly or otherwise, or by reason of any action taken or
omitted by the Lenders and the Administrative Agent, or any of them, whether or
not such action or failure to act varies or increases the risk of, or affects
the rights or remedies of, the Guarantor or by reason of any further dealings
between the Borrower, the Lenders and the Administrative Agent, or any of them,
or any other guarantor or surety, and the Guarantor, to the extent permitted by
Applicable Law, hereby expressly waives and surrenders any defense to its
liability hereunder, or any right of counterclaim or offset of any nature or
description which it may have or which may exist based upon, and shall be deemed
to have consented to, any of the foregoing acts, omissions, things, agreements
or waivers.
9. SET-OFF. The Lenders and the Administrative Agent, or any of them,
may, without demand or notice of any kind upon or to the Guarantor, at any time
or from time to time when any amount shall be due and payable hereunder by the
Guarantor, if the Borrower shall not have timely paid its Obligations, set off
and appropriate any property, balances, credit accounts or moneys of the
Guarantor (other than those held in a trust) in the possession of the Lenders
and the Administrative Agent, or any of them, or under the control of any of
them for any purpose, which property, balances, credit accounts or moneys shall
thereupon be turned over and remitted to the Administrative Agent, to be held
and applied to the Obligations by the Administrative Agent in accordance with
the Loan Agreement, and the Guarantor hereby grants to the Lenders and the
Administrative Agent, a security interest in all such property. The
Administrative Agent shall give written notice to the Borrower of the exercise
of any of the foregoing rights within one (1) Business Day following the
exercise thereof.
- 14 -
10. BANKRUPTCY. Upon the bankruptcy or winding up or other distribution
of assets of the Borrower or any Subsidiary of the Borrower or of any surety or
guarantor for the Obligations, the rights of the Lenders and the Administrative
Agent, or any of them, against the Guarantor shall not be affected or impaired
by the omission of the Lenders and the Administrative Agent, or any of them, to
prove its or their claim, as appropriate, or to prove its or their full claim,
as appropriate, and the Lenders and the Administrative Agent may prove such
claims as they see fit and may refrain from proving any claim and in their
respective discretion they may value as they see fit or refrain from valuing any
security held by the Lenders and the Administrative Agent, or any of them,
without in any way releasing, reducing or otherwise affecting the liability to
the Lenders and the Administrative Agent of the Guarantor.
11. APPLICATION OF PAYMENTS. Any amount received by the Lenders and the
Administrative Agent, or any of them, from whatsoever source and applied toward
the payment of the Obligations shall be applied in such order of application as
is set forth in the Loan Agreement.
12. WAIVERS BY GUARANTOR. The Guarantor hereby expressly waives, to the
extent permitted by Applicable Law: (a) notice of acceptance of this Guaranty,
(b) notice of the existence or creation of all or any of the Obligations, (c)
presentment, demand, notice of dishonor, protest, and all other notices
whatsoever, (d) all diligence in collection or protection of or realization upon
the Obligations or any part thereof, any obligation hereunder, or any security
for any of the foregoing and (e) all rights of subrogation, indemnification,
contribution and reimbursement against the Borrower, all rights to enforce any
remedy the Lenders and the Administrative Agent, or any of them, may have
against the Borrower and any benefit of, or right to participate in, any
collateral or security now or hereinafter held by the Lenders and the
Administrative Agent, or any of them, in respect of the Obligations, until
payment in full of the Obligations. Any money received by the Guarantor in
violation of this Section 12 shall be held in trust by the Guarantor for the
benefit of the Lenders and the Administrative Agent. If a claim is ever made
upon the Lenders and the Administrative Agent, or any of them, for the repayment
or recovery of any amount or amounts received by any of them in payment of any
of the Obligations and such Person repays all or part of such amount by reason
of (a) any judgment, decree, or order of any court or administrative body having
jurisdiction over such Person or any of its property, or (b) any good faith
settlement or compromise of any such claim effected by such Person with any such
claimant, including, without limitation, the Borrower, then in such event the
Guarantor agrees that any such judgment, decree, order, settlement, or
compromise shall be binding upon the Guarantor, notwithstanding any revocation
hereof or the cancellation of any promissory note or other instrument evidencing
any of the Obligations, and the Guarantor shall be and remain obligated to such
Person hereunder for the amount so repaid or recovered to the same extent as if
such amount had never originally been received by such Person.
13. ASSIGNMENT BY THE LENDERS AND THE ADMINISTRATIVE AGENT. To the
extent permitted under the Loan Agreement, the Lenders and the Administrative
Agent may each, and without notice of any kind, except as otherwise required by
the Loan Agreement, sell, assign or transfer all or any of the Obligations, and
in such event each and every immediate and successive
- 15 -
assignee, transferee, or holder of all or any of the Obligations, shall have
the right to enforce this Guaranty, by suit or otherwise, for the benefit of
such assignee, transferee or holder as fully as if such assignee, transferee
or holder were herein by name specifically given such rights, powers and
benefits.
14. REMEDIES CUMULATIVE. No delay by the Lenders and the Administrative
Agent, or any of them, in the exercise of any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by the Lenders and the
Administrative Agent, or any of them, of any right or remedy shall preclude
other or further exercise thereof or the exercise of any other right or remedy.
No action by the Lenders and the Administrative Agent, or any of them, permitted
hereunder shall in any way impair or affect this Guaranty. For the purpose of
this Guaranty, the Obligations shall include, without limitation, all
Obligations of the Borrower to the Lenders and the Administrative Agent
notwithstanding any right or power of any third party, individually or in the
name of the Borrower or any other Person, to assert any claim or defense as to
the invalidity or unenforceability of any such Obligation, and no such claim or
defense shall impair or affect the obligations of the Guarantor hereunder.
15. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon the
Guarantor, its successors and assigns and inure to the benefit of the successors
and assigns of the Guarantor, the Lenders and the Administrative Agent. The
Guarantor shall not assign its rights or obligations under this Guaranty without
the consent of all the Lenders and the Administrative Agent, nor shall the
Guarantor amend this Guaranty, without the consent of the Administrative Agent
and the Required Lenders.
16. MISCELLANEOUS. This is a Guaranty of payment and not of collection.
In the event of a demand upon the Guarantor under this Guaranty, the Guarantor
shall be held and bound to the Lenders and the Administrative Agent directly as
debtor in respect of the payment of the amounts hereby guaranteed. All
reasonable costs and expenses, including, without limitation, attorneys' fees
and expenses, incurred by the Lenders and the Administrative Agent, or any of
them, in obtaining performance of or collecting payments due under this Guaranty
shall be deemed part of the Obligations guaranteed hereby. Any notice or demand
which the Lenders and the Administrative Agent, or any of them, may wish to give
shall be served upon the Guarantor in the fashion prescribed for notices in
Section 11.1 of the Loan Agreement in care of the Borrower at the address for
the Borrower set forth in or otherwise provided pursuant to Section 11.1 of the
Loan Agreement, and the notice so sent shall be deemed to be served as set forth
in Section 11.1 of the Loan Agreement.
17. LOANS BENEFIT GUARANTOR. The Guarantor expressly represents and
acknowledges that any financial accommodations by the Lenders and the
Administrative Agent, or any of them, to the Borrower, including, without
limitation, the extension of the Loans, are and will be of direct interest,
benefit and advantage to the Guarantor.
18. VISITS AND INSPECTIONS. The Guarantor covenants and agrees that so
long as any amount is owing on account of Obligations or otherwise pursuant to
this Guaranty, the Guarantor shall permit representatives of the Lenders and the
Administrative Agent, or any of them, to visit
- 16 -
and inspect properties of the Guarantor to the extent set forth in Section
5.8 of the Loan Agreement.
19. GOVERNING LAW. This Guaranty shall be construed in accordance with
and governed by the internal laws of the State of California applicable to
contracts made and to be performed in the State of California.
20. JURISDICTION AND VENUE. If any action or proceeding shall be
brought by the Agent in order to enforce any right or remedy under this
Guaranty, the Guarantor hereby consents to the jurisdiction of any state or
federal court of competent jurisdiction sitting within the area comprising the
Southern District of California on the date of this Guaranty. The Guarantor
hereby agrees, to the extent permitted by Applicable Law that service of the
summons and complaint and all other process which may be served in any such
suit, action or proceeding may be effected by mailing by registered mail a copy
of such process to the offices of the Borrower, as set forth in or otherwise
provided pursuant to Section 11.1 of the Loan Agreement, and that personal
service of process shall not be required. Nothing herein shall be construed to
prohibit service of process by any other method permitted by law, or the
bringing of any suit, action or proceeding in any other jurisdiction. The
Guarantor agrees that final judgment in such suit, action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by Applicable Law.
21. WAIVER OF JURY TRIAL. EACH OF THE GUARANTOR, THE ADMINISTRATIVE
AGENT AND THE LENDERS WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING
ARISING OUT OF THIS GUARANTY.
22. TIME OF THE ESSENCE. Time is of the essence with regard to the
Guarantor's performance of its obligations hereunder.
23. ADMINISTRATIVE AGENT. Each reference herein to any right granted
to, benefit conferred upon or power exercisable by the "Administrative Agent"
shall be a reference to the Administrative Agent for the benefit of all the
Lenders and the Administrative Agent, and each action taken or right exercised
hereunder shall be deemed to have been so taken or exercised by the
Administrative Agent for the benefit of and on behalf of itself and the Lenders.
24. RATIFICATIONS. The Guarantor hereby ratifies and affirms each
representation, warranty, covenant and other agreement made on its behalf by the
Borrower in the Loan Agreement.
25. NOTICE. All notices and other communications under this Guaranty
shall be in writing and shall be deemed to have been given three (3) Business
Days after deposit in the mail, designated as certified mail, return receipt
requested, postage-prepaid, or one (1) Business Day after being entrusted to a
reputable commercial overnight delivery service for next day delivery, or when
sent on a Business Day prior to 5:00 p.m. (Los Angeles, California time) by
telecopy addressed to the party to which such notice is directed at its address
determined as provided in
- 17 -
this Section 25. All notices and other communications under this Agreement
shall be given to the parties hereto at the following addresses:
(a) If to the Guarantor or any Affiliate Guarantor,
to it (or them) at:
Advanced Communications Group, Inc.
000 Xxxxx Xxxxxxxx Xxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx, III
Facsimile: (000) 000-0000
WITH COPY TO:
Blackwell, Sanders, Xxxxx & Xxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx, Esq.
Xxxx Xxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to the Administrative Agent, to it at:
Bank of America National Trust and
Savings Association
000 X. Xxxxxx Xxxxxx
11th Floor, Unit 3283
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
WITH A COPY TO:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
Sixteenth Floor
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(iii) If to the Lenders, to them at the addresses set
forth on Schedule 7 to the Loan Agreement.
- 18 -
The failure to provide copies shall not affect the validity of the notice given
to the primary recipient. Any party hereto may change the address to which
notices shall be directed under this Section 25 by giving ten (10) days' written
notice of such change to the other parties.
26. FCC CONSENT. Notwithstanding anything herein which may be construed
to the contrary, no action shall be taken by the Administrative Agent or any of
the Lenders with respect to the Licenses (or any Collateral relating to such
Licenses) unless and until all requirements of Applicable Law, including,
without limitation, any state law, or any required approval under the
Communications Act, and any applicable rules and regulations thereunder,
requiring the consent to or approval of such action by the FCC or any
governmental or other authority, have been satisfied. The Guarantor covenants
that upon request of the Administrative Agent or any of the Lenders after and
during the continuance of an Event of Default it will cause to be filed such
applications and take such other action as may be requested by such Person or
Persons to obtain consent or approval of the FCC or any governmental or other
authority which has granted any License to the Guarantor to any action
contemplated by this Guaranty and to give effect to the Security Interest of the
Administrative Agent, including, without limitation, the execution of an
application for consent by the FCC to a change in ownership or control pursuant
to the provisions of the Communications Act. To the extent permitted by
Applicable Law, the Administrative Agent is hereby irrevocably appointed the
true and lawful attorney-in-fact of the Guarantor, in its name and stead, to
execute and file, upon the occurrence and during the continuance of any Event of
Default after ten (10) Business Days prior notice to Guarantor, all necessary
applications with the FCC and with any governmental or other authority. The
power of attorney granted herein is coupled with an interest and shall be
irrevocable for so long as any of the Guaranteed Obligations remains unpaid or
unperformed or any of the Lenders have any obligation to make Advances under the
Loan Agreement, regardless of whether the conditions precedent to the making of
any such Advances has been or can be fulfilled.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
- 19 -
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed by an Authorized Signatory as of the date first above written.
GUARANTOR: ADVANCED COMMUNICATIONS GROUP, INC.
By:
-------------------------------
Name:
--------------------
Title:
-------------------
