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EXHIBIT 10.2
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VIASOURCE COMMUNICATIONS, INC.
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TERM B CONVERTIBLE NOTE
AND
WARRANT PURCHASE AGREEMENT
Dated as of August 3, 2001
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TABLE OF CONTENTS
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Article I
DEFINITIONS
Section 1.01. Interpretation.........................................................................1
Section 1.02. Definitions............................................................................2
Article II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 2.01. Incorporation by Reference.............................................................4
Section 2.02. Disclosure.............................................................................4
Section 2.03. Reservation of Common Stock............................................................4
Article III
SALE, REPAYMENT AND CONVERSION
Section 3.01. Sale of the Term B Notes and the Term B Warrants.......................................4
Section 3.02. Closing................................................................................4
Section 3.03. Legends................................................................................5
Section 3.04. Method of Payment on the Term B Notes; Payment and Prepayment..........................6
Section 3.05. Conversion.............................................................................6
Article IV
COVENANTS
Section 4.01. Further Instruments and Acts...........................................................6
Section 4.02. Authorizations and Approvals...........................................................6
Section 4.03. Registration and Listing of Common Stock...............................................7
Section 4.04. Board of Directors.....................................................................7
Article V
CONDITIONS OF THE PURCHASERS' OBLIGATIONS
Section 5.01. Conditions of the Purchasers' Obligations..............................................7
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Article VI
TRANSFERS
Section 6.01. Transfers of the Term B Notes..........................................................8
Section 6.02. Transfers of the Term B Warrants.......................................................8
Article VII
REPRESENTATIONS OF THE PURCHASERS
Section 7.01. Representations and Warranties and other Agreements of the Purchasers..................9
Article VIII
AMENDMENTS
Section 8.01. Amendments............................................................................10
Section 8.02. Payment for Consent...................................................................10
Article IX
MISCELLANEOUS
Section 9.01. Notices...............................................................................11
Section 9.02. Parties...............................................................................11
Section 9.03. Governing Law.........................................................................11
Section 9.04. Replacement Term B Note or Term B Warrant.............................................12
Section 9.05. Successors and Assigns................................................................12
Section 9.06. Severability Clause...................................................................12
Section 9.07. Representations, Warranties and Agreements to Survive Delivery........................12
Section 9.08. Waivers and Remedies..................................................................12
Section 9.09. Entire Agreement......................................................................12
Section 9.10. Headings..............................................................................12
Section 9.11. Counterparts..........................................................................13
SCHEDULE 1 Schedule of Purchasers
EXHIBIT A Form of Registration Rights Agreement
EXHIBIT B Form of Term B Warrant
EXHIBIT C Form of Opinion
EXHIBIT D Form of Second Amended and Restated Credit Agreement
EXHIBIT E Risk Factors
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TERM B CONVERTIBLE NOTE AND WARRANT PURCHASE AGREEMENT dated
as of August 3, 2001, among VIASOURCE COMMUNICATIONS, INC., a New Jersey
corporation (the "Company"), and the purchasers identified in Schedule 1
attached hereto (each a "Purchaser" and collectively the "Purchasers").
W I T N E S S E T H:
WHEREAS the Company, the Agent, GECC and the Purchasers have
entered into a Second Amended and Restated Credit Agreement dated as of the date
hereof (the "Credit Agreement");
WHEREAS the Company wishes to issue and sell to the Purchasers
up to $4,000,000 face principal amount of its 15% Term B Convertible Notes due
August 3, 2006 (the "Term B Notes"), and the Purchasers wish to purchase the
Term B Notes from the Company on the terms and conditions set forth herein; and
WHEREAS the Company wishes to issue and sell to the Purchasers
an aggregate of 1,975,806 warrants to purchase 1,975,806 shares of the Company's
Common Stock, (the "Term B Warrants"), and the Purchasers wish to purchase the
Term B Warrants from the Company on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and
agreements contained in this Agreement, and for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, agree as follows:
Article I
DEFINITIONS
Section 1.01. INTERPRETATION. For all purposes of this
Agreement and any agreement executed in connection with this Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings
assigned to them in this Article I and include the plural as well as the
singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation;
(c) each definition of or reference to any document,
instrument or agreement includes an amendment or supplement to, or restatement,
replacement, modification or renovation of, any such document, instrument or
agreement unless otherwise specified in such definition or in the context in
which such reference is used; and
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(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
Section 1.02. DEFINITIONS.
"Accredited Investor" has the meaning specified in Section
7.01(a) hereof.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agent" has the meaning ascribed to such term in the Credit
Agreement.
"Agreement" means this Term B Convertible Note and Warrant
Purchase Agreement among the Company and the Purchasers and all Schedules and
Exhibits attached hereto.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means each day other than Saturday, Sunday or a
day on which banking institutions are not required to be open in the State of
New York.
"Closing" has the meaning specified in Section 3.02 hereof.
"Closing Date" means August 3, 2001.
"Code" means the Internal Revenue Code of 1986, as amended,
from time to time and any successor statute.
"Common Stock" means and includes the Company's common stock,
no par value per share, as authorized on the date hereof and as increased or
decreased from time to time.
"Company" means Viasource Communications Inc., a New Jersey
corporation.
"Conversion Shares" means those shares of Common Stock
issuable upon conversion of the Term B Notes.
"Credit Agreement" has the meaning specified in the first
recital hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time and any successor statute.
"GECC" means General Electric Capital Corporation in its
capacity as a lender pursuant to the Credit Agreement, and its respective
successors and assigns.
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"Holder" means any of the Purchasers or such other Persons in
whose name a Term B Note or Term B Notes are registered on the Note Register.
"Maturity Date" means August 3, 2006.
"Note Register" means the register maintained pursuant to
Section 6.01(b).
"Term B Notes" means the $2,450,000 face principal amount of
the Company's 15% Term B Convertible Notes due August 3, 2006 to be purchased by
the Purchasers from the Company pursuant to this Agreement. "Term B Note" means
one of the Term B Notes, substantially in the form of Exhibit Z to the Credit
Agreement.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Purchasers" means the purchasers identified in Schedule 1
attached hereto.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of August 3, 2001, by and among the Company and the
Purchasers, substantially in the form as attached hereto in Exhibit A.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended
from time to time and any successor statute.
"Subsidiary" means with respect to any Person, any
corporation, partnership, limited liability company, association, joint venture
or other business entity of which more than 50% of the total voting power of
shares of stock or other ownership interests entitled (without regard to the
occurrence of any contingency) to vote in the election of the Person or Persons
(whether directors, managers, trustees or other Persons performing similar
functions) having the power to direct or cause the direction of the management
and policies thereof is at the time owned or controlled, directly or indirectly,
by that Person or one or more of the other Subsidiaries of that Person or a
combination thereof.
"Term B Warrants" means the warrants to purchase Common Stock
to be purchased by the Purchasers from the Company pursuant to this Agreement,
substantially in the form as attached hereto in Exhibit B.
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Article II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers as
follows:
Section 2.01. INCORPORATION BY REFERENCE. Each of the
representations and warranties set forth in Section IV of the Credit Agreement
is true, correct and complete and is incorporated herein by reference and made a
part hereof as if set forth herein in full.
Section 2.02. DISCLOSURE. No information, report, financial
statement or certificate furnished to a Purchaser by or on behalf of the Company
for use in connection with the transactions contemplated by this Agreement, the
Term B Notes, the Term B Warrants, the Registration Rights Agreement and the
Credit Agreement contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances in which the same were
made. Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by the
Company to be reasonable at the time made, it being recognized by each of the
Purchasers that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any such
projections may differ from the projected results. There are no facts known (or
which should upon the reasonable exercise of diligence be known) to the Company
(other than matters of a general economic nature) that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect
(as defined in the Credit Agreement) and that have not been disclosed herein or
in such other documents, certificates and statements furnished by the Company to
each Purchaser for use in connection with the transactions contemplated hereby.
Section 2.03. RESERVATION OF COMMON STOCK. The Company has
reserved shares of Common Stock for issuance upon conversion of the Term B Notes
and exercise of the Term B Warrants.
Article III
SALE, REPAYMENT AND CONVERSION
Section 3.01. SALE OF THE TERM B NOTES AND THE TERM B
WARRANTS. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to each Purchaser, and each Purchaser agrees, severally and not
jointly, to purchase from the Company, that number of Term B Warrants set forth
opposite such Purchaser's name in Column 2 of Schedule 1 attached hereto and
that amount of the Term B Notes set forth opposite such Purchaser's name in
Column 3 of Schedule 1 at the aggregate purchase price set forth in Column 4 of
Schedule 1.
Section 3.02. CLOSING. The purchase and sale of the Term B
Notes and the Term B Warrants shall take place at the office of Paul, Hastings,
Xxxxxxxx & Xxxxxx LLP, 000 Xxxxxxxxx Xxxxxx XX, Xxxxxxx, Xxxxxxx, xx August 3,
2001, at 10:00 a.m., Georgia time or at such other time and place as shall be
mutually agreed upon by each of the Purchasers and the Company (which time and
place are designated as the "Closing"). At the Closing, the Company shall
deliver to each of the Purchasers the Term B Note or Term B Notes purchased by
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such Purchaser and a certificate or certificates representing the Term B
Warrants purchased by such Purchaser, registered in the name of such Purchaser
and bearing the applicable legend set forth in Section 3.03, against payment by
such Purchaser of the purchase price therefor by wire transfer of immediately
available funds. The Company shall pay any documentary stamp or similar issue or
transfer taxes due as a result of the issuance and sale of the Term B Warrants.
Section 3.03. LEGENDS. (a) The Term B Notes will bear a legend
reading substantially as follows:
THIS TERM B CONVERTIBLE NOTE AND THE SECURITIES ISSUABLE UPON
CONVERSION OF THIS TERM B CONVERTIBLE NOTE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE STATE
SECURITIES LAWS. NEITHER SECURITY MAY BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER
THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THIS TERM B CONVERTIBLE NOTE IS ISSUED PURSUANT TO THAT CERTAIN SECOND
AMENDED AND RESTATED CREDIT AGREEMENT BY AND AMONG VIASOURCE
COMMUNICATIONS, INC., THE LENDERS SIGNATORY THERETO AND GENERAL
ELECTRIC CAPITAL CORPORATION, AS AGENT FOR THE LENDERS, DATED AS OF
AUGUST 3, 2001 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE
MODIFIED FROM TIME TO TIME THE "CREDIT AGREEMENT") AND THAT CERTAIN
TERM B CONVERTIBLE NOTE AND WARRANT PURCHASE AGREEMENT DATED AUGUST 3,
2001 BY AND AMONG VIASOURCE COMMUNICATIONS, INC., AND THE PURCHASERS
SIGNATORY THERETO (THE "PURCHASE AGREEMENT"). AS USED HEREIN, THE TERM
"TERM B CONVERTIBLE NOTE" REFERS TO THE TERM B NOTE ISSUED PURSUANT TO
THE CREDIT AGREEMENT AND THE PURCHASE AGREEMENT.
THIS TERM B CONVERTIBLE NOTE CONTAINS ORIGINAL ISSUE DISCOUNT, AS
DEFINED IN SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED. PLEASE CONTACT THE SECRETARY OF VIASOURCE COMMUNICATIONS, INC.
FOR THE ISSUE DATE OF THE TERM B CONVERTIBLE NOTE, THE ORIGINAL ISSUE
DISCOUNT IN THIS TERM B CONVERTIBLE NOTE AND THE YIELD TO MATURITY.
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(b) The certificates representing the Term B Warrants will
bear a legend reading substantially as follows:
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND NEITHER THIS WARRANT NOR SUCH SECURITIES NOR
ANY INTEREST THEREIN MAY BE SOLD, TRANSFERRED, PLEDGED OR DISPOSED OF
IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION UNDER SUCH ACT AND
THE RULES AND REGULATIONS THEREUNDER.
(c) If necessary, the certificates representing the Conversion
Shares will bear a legend reading substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). NO
SALE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
(OTHER THAN TO THE ISSUER THEREOF) MAY BE MADE UNLESS EITHER (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR (B) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.
Section 3.04. METHOD OF PAYMENT ON THE TERM B NOTES; PAYMENT
AND PREPAYMENT. The principal of and interest on the Term B Notes shall be
payable as set forth in the Credit Agreement. The Term B Notes are subject to
payment and prepayment at the times, in the manner and amounts and otherwise as
set forth in the Credit Agreement.
Section 3.05. CONVERSION. The Term B Notes shall be
convertible into shares of Common Stock as set forth in the Term B Notes.
Article IV
COVENANTS
The Company covenants and agrees with the Purchasers as
follows:
Section 4.01. FURTHER INSTRUMENTS AND ACTS. Upon request of
any of the Purchasers and subject to the Credit Agreement, the Company will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Agreement.
Section 4.02. AUTHORIZATIONS AND APPROVALS(a) . The Company
will promptly make or obtain, from time to time at its own expense, all such
governmental notices, filings, licenses, authorizations, consents, permits and
approvals as may be required to enable it to comply with obligations hereunder
and under the Term B Notes and the Term B Warrants.
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Section 4.03. REGISTRATION AND LISTING OF COMMON STOCK. If any
shares of Common Stock required to be reserved for purposes of conversion of the
Term B Notes or exercise of the Term B Warrants require registration with or
approval of any governmental authority under any Federal or state law (other
than the Securities Act) before such shares may be issued upon being exercised,
the Company will, at its expense and as expeditiously as possible, use its best
efforts to cause such shares to be duly registered or approved, as the case may
be. Shares of Common Stock issuable upon conversion of the Term B Notes and
exercise of the Term B Warrants shall be registered by the Company under the
Securities Act or similar statute then in force if required before such shares
may be issued upon being converted or exercised. If and so long as the Common
Stock is listed on any national securities exchange, the Company will, at its
expense, obtain promptly and maintain the approval for listing on each such
exchange upon official notice of issuance of shares of Common Stock issuable
upon conversion of the then outstanding Term B Notes and exercise of the then
outstanding Term B Warrants and maintain the listing of such shares after their
issuance so long as the Company maintains the listing of the same class of such
shares; and the Company will also list on such national securities exchange,
will register under the Exchange Act and will maintain such listing of, any
other securities that at any time are issuable upon conversion of the Term B
Notes and exercise of the Term B Warrants, if and at the time that any
securities of the same class shall be listed on such national securities
exchange by the Company.
Section 4.04. BOARD OF DIRECTORS.
(a) The Company will promptly increase the size of the Board
of Directors by one seat and appoint the nominee of the Holders to such seat.
(b) So long as a Holder shall be the beneficial owner of any
Term B Notes, the Company will nominate and recommend as a candidate for
election to the Board of Directors a Person who is reasonably acceptable to the
then current Board of Directors and who is designated by a majority of the
Holders.
Article V
CONDITIONS OF THE PURCHASERS' OBLIGATIONS
Section 5.01. CONDITIONS OF THE PURCHASERS' OBLIGATIONS. Each
Purchaser's obligation under Section 3 hereof is subject to the fulfillment on
or before the Closing of each of the following conditions unless waived by each
of the Purchasers:
(a) each of the Purchasers shall have received the reasonable
opinion of Akerman, Senterfitt & Xxxxxx, P.A., counsel to the Company, dated the
Closing Date, substantially in the form and substantially to the effect set
forth in Exhibit C attached hereto;
(b) the Company shall have executed and delivered the
Registration Rights Agreement, dated the Closing Date, substantially in the form
of Exhibit B attached hereto;
(c) the representations and warranties of the Company
contained in Section 2 shall be true and correct on and as of the Closing Date
with the same effect as though made on and as of the Closing Date;
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(d) the Company shall have performed all covenants, agreements
and obligations contained in this Agreement, the Credit Agreement and the Term B
Notes that are required to be performed or complied by it on or before the
Closing Date;
(e) the Chief Executive Officer of the Company shall have
delivered to the Purchasers at the Closing an Officer's Certificate certifying
that the conditions specified in Sections 6.01(c), (d) and (h) have been
fulfilled;
(f) all corporate and other proceedings taken or to be taken
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to the Purchasers and the Purchasers' special counsel and the
Purchasers and their special counsel shall have received all such counterpart
originals or certified or other copies of such documents as they may reasonably
request;
(g) the Purchasers, severally, shall have received the notes
and warrants representing the Term B Notes and Term B Warrants in the amounts
set forth opposite their names on Schedule 1; and
(h) on the Closing Date, the Company shall have paid all
reasonable out-of-pocket expenses (including the fees and disbursements of Xxxxx
Xxxxxxxxxx LLP as special counsel to the Purchasers) incurred by the Purchasers
in connection with the review and negotiation of the transactions contemplated
hereby.
Article VI
TRANSFERS
Section 6.01. TRANSFERS OF THE TERM B NOTES.
(a) Subject to compliance with the Securities Act and Section
9.1 of the Credit Agreement, upon surrender of any Term B Note for registration
of transfer, the Company will execute and deliver in exchange therefor a new
Term B Note registered as such Holder may request.
(b) The Company shall maintain a register of the Holders of
all the Term B Notes issued pursuant to this Agreement. The Company will allow
any Holder of a Term B Note to inspect and copy such list at the Company's
principal place of business during normal business hours
Section 6.02. TRANSFERS OF THE TERM B WARRANTS. No Purchaser
shall transfer any Term B Warrant to any Person other than an "accredited
investor" within the meaning of Regulation D promulgated under the Securities
Act.
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Article VII
REPRESENTATIONS OF THE PURCHASERS
Section 7.01. REPRESENTATIONS AND WARRANTIES AND OTHER
AGREEMENTS OF THE PURCHASERS. On the Closing Date each Purchaser severally and
not jointly hereby represents and warrants as to itself only that:
(a) such Purchaser (i) is an "accredited investor" within the
meaning of Regulation D promulgated under the Securities Act (an "Accredited
Investor"), (ii) is acquiring the Term B Notes and Term B Warrants for its own
account and not with a present view to the distribution of any part thereof and
(iii) such Purchaser does not have any contract, undertaking, agreement or
arrangement with any Person to sell, transfer, or grant participations to such
Person or to any third person, with respect to any of the Term B Notes or Term B
Warrants;
(b) no broker's or finder's or placement fee or commission
will be payable with respect to the issuance of the Term B Notes or the Term B
Warrants as a result of any arrangement by such Purchaser, and such Purchaser
will hold the Company harmless from any claim, demand or liability for broker's
or finder's or placement fees or commissions alleged to have been incurred by
such Purchaser in connection with the issuance of such securities;
(c) such Purchaser has been furnished by the Company with, and
reviewed, (i) the Credit Agreement, including the Schedules thereto,
substantially in the form set forth in Exhibit D attached hereto, (ii) the
financial projections and consolidated financial statements described in Section
3.1(d) of the Credit Agreement and (iii) the Company's Form 10-K for the fiscal
year ended December 30, 2000, Form 10-Q for the fiscal quarter ended March 31,
2001 and Forms 8-K, filed with the SEC on July 13, 2001 and July 25, 2001;
(d) such Purchaser has been furnished by the Company with the
form of Term B Note and has reviewed such Term B Note, including without
limitation, the terms and provisions regarding term and maturity, and such
Purchaser acknowledges that it is not entitled to receive any cash payments of
principal, interest or fees on account of the Term B Obligations (as defined in
the Credit Agreement) from the Company until the Revolving/Term A Obligations
(as defined in the Credit Agreement) are paid in full in cash and the Revolving
Commitment (as defined in the Credit Agreement) and the Term Loan A Commitment
(as defined in the Credit Agreement) are terminated;
(e) such Purchaser has been furnished access to the business
records of the Company and such additional information and documents as such
Purchaser has requested and has been afforded an opportunity to ask questions of
and receive answers from representatives of the Company concerning the terms and
conditions of this Agreement, the Credit Agreement, the purchase of the Term B
Notes and Term B Warrants, the Company's business, operations, market potential,
capitalization, financial condition and prospects, and all other matters deemed
relevant by such Purchaser;
(f) such Purchaser has sought independent legal, investment
and tax advice to the extent that it has deemed necessary and appropriate in
connection with such Purchaser's decision to purchase the Term B Notes and Term
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B Warrants, including without limitation, the tax consequences concerning the
receipt of pay-in-kind interest and original issue discount on the Term B Notes,
and has not relied on the representations of any party other than the Company;
(g) such Purchaser acknowledges that neither Crest
Communications Holdings LLC nor any of its Affiliates has acted as its agent in
connection with the negotiation, issuance and sale of the Term B Notes and Term
B Warrants and the transactions contemplated hereby and thereby;
(h) such Purchaser understands that the Term B Notes, Term B
Warrants and Conversion Shares shall bear the legends, as applicable, in
substantially the forms listed in Section 3.03 hereof;
(i) such Purchaser understands that the Term B Notes and Term
B Warrants are being offered and sold to it in reliance upon specific exemptions
from the registration requirements of United States federal and state securities
laws and that the Company is relying upon the truth and accuracy of, and such
Purchaser's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of such Purchaser set forth herein in order
to determine the availability of such exemptions and the eligibility of such
Purchaser to acquire the Term B Notes and Term B Warrants;
(j) such Purchaser understands that no United States federal
or state agency or any other government or governmental agency has passed upon
or made any recommendation or endorsement of the Term B Notes and Term B
Warrants;
(k) such Purchaser is a resident of the jurisdiction set forth
immediately below such Purchaser's name on Schedule 1 hereto; and
(l) such Purchaser has reviewed and understands the risk
factors set forth on Exhibit E.
Article VIII
AMENDMENTS
Section 8.01. AMENDMENTS. No amendment, modification,
termination or waiver of any provision of this Agreement shall be effective
without the written consent of the Holders of at least a majority in principal
amount of the Term B Notes. No amendment, modification, termination or waiver of
any provision of the Term B Notes shall be effective except as set forth in the
Credit Agreement.
Section 8.02. PAYMENT FOR CONSENT. Neither the Company, any
Affiliate of the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Agreement
or the Term B Notes unless such consideration is offered to be paid or agreed to
be paid to all Holders which so consent, waive or agree to amend in the time
frame set forth in solicitation documents relating to such consent, waiver or
agreement.
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Article IX
MISCELLANEOUS
Section 9.01. NOTICES. All notices and other communications
pertaining to this Agreement shall be in writing and shall be deemed to have
been duly given upon the receipt thereof by the other party. Such notices shall
be delivered by hand, or mailed, certified or registered mail with postage
prepaid:
(a) If to a Purchaser, at its address set forth in Schedule 1
hereto, with a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
(b) If to the Company, to:
Viasource Communications, Inc.
000 X. Xxxxxxx Xxxx., Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
with a copy to:
Akerman, Senterfitt & Xxxxxx, P.A.
Xxx Xxxxxxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
or to such other Person or address as shall be furnished to the other party in
writing.
Section 9.02. PARTIES. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, each subsequent Holder of a
Term B Note and each of their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
Person, firm or corporation, other than the parties hereto and their respective
successors, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the parties hereto, any subsequent Holder of a Term B Note and their
respective successors, and for the benefit of no other Person, firm or
corporation.
Section 9.03. GOVERNING LAW. This Agreement shall be governed
by the laws of the State of New York regardless of the laws that might otherwise
govern under applicable principles of conflict of laws thereof.
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Section 9.04. REPLACEMENT TERM B NOTE OR TERM B WARRANT. If
any Term B Note or Term B Warrant becomes mutilated and is surrendered by the
Holder or warrant holder thereof to the Company, or if the Holder or warrant
holder thereof claims that any Term B Note or Term B Warrant has been lost,
destroyed or wrongfully taken, the Company will execute and deliver to such
Holder or warrant holder a replacement note or replacement warrant, as the case
may be, upon the affidavit of the Holder or warrant holder thereof attesting to
such loss, destruction or wrongful taking with respect to such Term B Note or
Term B Warrant. Such affidavit shall be accepted as satisfactory evidence of the
loss, wrongful taking or destruction thereof and no indemnity shall be required
as a condition of the execution and delivery of a replacement Term B Note.
Section 9.05. SUCCESSORS AND ASSIGNS. All covenants and
agreements of the Company in this Agreement or any Term B Note or Term B Warrant
shall bind its respective successors and assigns.
Section 9.06. SEVERABILITY CLAUSE. In case any provision in
this Agreement or any Term B Note or Term B Warrant shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby and such
provision shall be ineffective only to the extent of such invalidity, illegality
or unenforceability.
Section 9.07. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. All representations, warranties and agreements contained in or
incorporated into this Agreement, or contained in certificates of Officers
submitted pursuant hereto or thereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the
Purchasers or any controlling Person of any Purchaser, or by or on behalf of the
Company, and shall survive delivery of the Term B Notes and Term B Warrants.
Section 9.08. WAIVERS AND REMEDIES. The failure of any of the
parties to this Agreement to insist in any one or more instances upon strict
performance of any of the provisions of this Agreement or to take advantage of
any of its rights hereunder shall not be construed as a waiver of any such
provisions or the relinquishment of any such rights, but the same shall continue
and remain in full force and effect. Except as otherwise expressly limited in
this Agreement, all remedies under this Agreement shall be cumulative and in
addition to every other remedy provided for herein or by law.
Section 9.09. ENTIRE AGREEMENT. This Agreement, together with
all exhibits and schedules hereto, the Credit Agreement, Registration Rights
Agreement, Term B Notes and Term B Warrants are intended by the parties to be a
final expression of their agreement in respect of the subject matter contained
herein and therein, and supersede all prior agreements and understandings
between the parties with respect to such subject matter.
Section 9.10. HEADINGS. The headings of the Articles and the
sections in this Agreement are for convenience of reference only and shall not
be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
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Section 9.11. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
VIASOURCE COMMUNICATIONS, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
CREST COMMUNICATIONS PARTNERS II LP
By: Crest Partners II LLC, its general partner
By: WAT Capital LLC, its managing member
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
By: PPM America, Inc., as attorney in fact, on behalf of
Xxxxxxx National Life Insurance Company
By: signature illegible
-------------------------------------------------
Name:
Title:
OLD HICKORY FUND I, LLC
By: PPM America, Inc., its Manager
By: signature illegible
-------------------------------------------------
Name:
Title:
XXXXX CAPITAL PARTNERS
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title:
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PNC CAPITAL CORP.
By: /s/ Xxxxx McL. Xxxxxxx
------------------------------------------------
Name: Xxxxx McL. Xxxxxxx
Title: Executive Vice President
WOOD STREET PARTNERS, II
By: /s/ Xxxxx McL. Xxxxxxx
------------------------------------------------
Name: Xxxxx McL. Xxxxxxx
Title: General Partner
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XXXXX X. NASSAU
/s/ XXXXX X. NASSAU
------------------------------------
XXXXX NASSAU
/s/ XXXXX NASSAU
------------------------------------
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