Loan Documents [Amendment No. 4] - Talk America Inc., Access One Communications Corp., Talk America Holdings Inc., MCG Capital Corp.
AMENDMENT NUMBER FOUR
TO
TALK.COM LOAN DOCUMENTS
This AMENDMENT NUMBER FOUR TO TALK.COM LOAN DOCUMENTS (this "AMENDMENT") is
entered into as of April 3, 2002 (the "Amendment Number Four Closing Date") by
and among TALK AMERICA INC. (f/k/a Talk.com Holding Corp.) ("TALK AMERICA"), and
ACCESS ONE COMMUNICATIONS CORP. ("ACCESS ONE"), and each other Borrower under
and as defined in the Credit Agreement (defined below) (together with Talk
America and Access One, the "BORROWERS"), and TALK AMERICA HOLDINGS, INC. (f/k/a
Talk.com, Inc.) ("TALK HOLDINGS" or "GUARANTOR", and, including any successor,
permitted assignee, executor, administrator or personal representative thereof,
an "Other Primary Obligor") (Borrowers and each Other Primary Obligor are
sometimes referred to herein individually as an "Obligor" and collectively as
the "Obligors"), and THE LENDERS THAT ARE PARTIES HERETO, and MCG CAPITAL
CORPORATION (as assignee of the interest of MCG Finance Corporation ("MCG"),
including any successors, assigns, participants, pledgees and transferees,
"ADMINISTRATIVE AGENT").
R E C I T A L S
- - - - - - - -
WHEREAS, Borrowers, MCG and each Lender are parties to that certain Credit
Facility Agreement executed and effective as of October 20, 2000 (as amended and
modified from time to time prior to the date hereof, the "Original Credit
Agreement"; as amended hereby and as may be further amended and modified
hereafter, the "Credit Agreement"); and
WHEREAS, each of the Obligors desire to amend the Credit Agreement as set
forth in this Amendment; and
WHEREAS, each Obligor has determined that it is in its best interest to
execute this Amendment inasmuch as each such Obligor will derive substantial
direct and indirect benefits from the amendments contemplated hereby; and
WHEREAS, Lenders are willing to accommodate the Obligors upon and subject
to the terms, conditions and provisions of this Amendment;
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein and in the other Loan Documents, and other good and valuable
consideration (receipt and sufficiency of which are hereby acknowledged), and
intending to be legally bound hereby, each Obligor, Administrative Agent and
each Lender hereby agree as follows:
ARTICLE 1: AMENDMENTS TO THE LOAN DOCUMENTS
1.1. Amendment of Section 5.10 of the Credit Agreement - Dividends and
Distributions. Section 5.10 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"5.10. Distributions or Dividends. No Borrower will declare or make
(directly or indirectly) any payment or distribution with respect to, or incur
any liability for the purchase, acquisition, redemption or retirement of, any of
its equity interests (including warrants therefor)
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or as a dividend, return of capital or other payment or distribution of any kind
to any holder of any such equity interest.
Notwithstanding the foregoing, (a) a Borrower may pay lawful dividends to a
holder of its equity who is also a Borrower, and (b) a Borrower may pay lawful
dividends to TALK HOLDINGS so long as (i) TALK HOLDINGS is the only legal and
beneficial owner of shares of capital stock of such Borrower, and (ii) no
Default then exists under the Loan Documents, and (iii) no Default would be
caused by the payment of such dividend (including, any Default under the
Guaranty by TALK HOLDINGS and/or any Default under the Credit Agreement;
provided, however, that pro forma compliance with the financial covenants under
Section 4.1 (other than the Liquidity Covenant under Section 4.1.6) shall not be
required), and (iv) Borrowers provide Administrative Agent with written notice
at least 5 Business Days prior to such dividend (other than a dividend under
Clauses (E) or (F)) identifying the intended purpose therefor and documenting
compliance with the conditions of this Section 5.10 (except that, with respect
to the dividend on the date hereof, Administrative Agent acknowledges that
Borrowers have timely provided such written notice), and (v) such dividend is to
be used by TALK HOLDINGS within 5 Business Days after such dividend is paid to
Talk Holdings for one or more of the following purposes only:
(A) The payment of regularly scheduled interest payments due under the AoL
Convertible Notes (inclusive of subsequently issued notes pursuant to the
payment in kind provisions thereof) assuming (and on the condition) that
Talk Holdings elects to pay in kind interest to the maximum extent possible
under the AoL Notes, and which amounts shall not exceed 103% of the amounts
therefore identified on Schedule 5.10 hereto, and/or
(B) The payment of regularly scheduled interest payments due under the 2002
Convertible Notes, the 2004 Convertible Notes and the Exchange Securities
(inclusive of subsequently issued notes pursuant to the payment in kind
provisions thereof) assuming (and on the condition) that Talk Holdings
elects to pay in kind interest to the maximum extent possible under such
obligations, and which amounts shall not exceed 103% of the amounts
therefore identified on Schedule 5.10 hereto, and/or
(C) The repurchase, redemption, repayment or other satisfaction of any 2002
Convertible Notes and any 2004 Convertible Notes on April 4, 2002 pursuant
to Guarantor's 2002 Offering Circular, and which amounts shall not exceed
103% of the amounts therefore identified on Schedule 5.10 hereto, and/or
(D) The repurchase, redemption, repayment or other satisfaction of any 2002
Convertible Notes and any 2004 Convertible Notes after April 4, 2002 at a
price not greater than the par amount thereof, and which amounts shall not
exceed 103% of the amounts therefore identified on Schedule 5.10 hereto,
and/or
(E) The payment of premiums for directors' and officers' liability insurance
and/or fees for any listing of TALK AMERICA'S common stock on the Nasdaq
National Market or SmallCap Market List, and which amounts shall not exceed
the amounts therefore identified on Schedule 5.10 hereto, and/or
(F) The payment of directors' fees for non-management directors, and which
amounts shall not exceed the amounts therefore identified on Schedule 5.10
hereto.
FOR AVOIDANCE OF DOUBT, the authorization under this Section 5.10
(and/or under any other provision of any Loan Document) for Borrowers to
declare and make dividends to Talk
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Holdings for certain identified purposes and/or for Talk Holdings to use
such dividends for such identified purposes shall in no manner limit or
otherwise modify Borrowers' obligations under Sections 1.1.6.5.f and
1.2.6.5.f (as added pursuant to Amendment Number Three) to make one or more
prepayments to Lenders upon the occurrence of certain events. "
1.2. Subordination of and Payments on Inter-Corporate Debt. Talk Holdings
and Borrowers hereby acknowledge and agree that any and all existing and future
indebtedness of any Borrower to Talk Holdings (whether or not evidenced by a
promissory note) is and shall be unsecured and subordinate in right of payment
to the prior and indefeasible payment in full of all indebtedness owed to
Administrative Agent and/or any Lender under the Loan Documents. Talk Holdings
and Borrowers hereby further acknowledge and agree that no payment shall be made
on any such inter-corporate indebtedness unless such payment at such time would
be permitted as a dividend under Section 5.10 of the Credit Agreement, and
subject to such compliance and Borrowers providing Administrative Agent with the
5 Business Days advance notice required under Section 5.10 of the Credit
Agreement, then Lenders hereby consent to such payments under such
inter-corporate notes. Talk Holdings hereby covenants and agrees that it will
not transfer, assign, pledge or encumber any such inter-corporate indebtedness
other than in favor of Administrative Agent for the benefit of Lenders or
pursuant to a pledge in favor of AoL as support for the AoL Convertible Notes.
Talk Holdings hereby waives any and all rights of setoff and/or recoupment that
it has or may have under or in connection with any such inter-corporate
indebtedness. Talk Holdings and Borrowers hereby further acknowledge and agree
that all written evidence of such inter-corporate indebtedness shall have a
legend thereon conspicuously identifying the requirements and restrictions
imposed under this Section 1.2 hereof. Administrative Agent and Lenders hereby
acknowledge and agree that inter-corporate debt between Borrowers and Talk
Holdings issued and maintained in compliance with the terms of the Loan
Documents (as modified by this Section 1.4) shall not be included within the
definition of "Funded Debt". At any time, upon the request of Administrative
Agent, unless required to be delivered to AoL pursuant to a pledge supporting
the AoL Convertible Notes, then Talk Holdings shall deliver to Administrative
Agent all written instruments evidencing any such inter-corporate indebtedness.
1.3. Waiver of Existing Defaults. Administrative Agent and each Lender
hereby waives any Default or Event of Default under Section 7.1.4 of the Credit
Agreement resulting from (a) Borrowers' failure to be in compliance with the
covenants set forth in Sections 5.7 (Acquisitions and Investments), 5.9
(Transactions with Affiliates) and 5.11 (Payment of Subordinated Indebtedness)
of the Credit Agreement as a result the payment from time to time prior to April
1, 2002 of the obligations of Guarantor from the accounts of Borrowers, and (b)
Borrowers' failure to be in compliance with the covenants set forth in Sections
5.2 (Indebtedness), 5.9 (Transactions with Affiliates) and 5.11 (Payment of
Subordinated Indebtedness) of the Credit Agreement as a result the incurrence by
Borrowers of inter-corporate debt in favor of Talk Holdings and/or the payments
thereon from time to time prior to April 1, 2002, and (c) Borrowers' failure to
be in compliance with the covenants set forth in Sections 5.2 and 5.10 of the
Credit Agreement and Section 10.j of the Guaranty as a result of Guarantor's
payment to AoL on February, 2002 of $1,226,960 as a prepayment of the AoL
Convertible Notes pursuant to the letter agreement dated February 21, 2002
between Guarantor and AoL (the "AoL Letter Agreement"), and (d) Borrowers'
failure to timely provide Administrative Agent with the notice required by
Section 4.13 thereof as a result of the matters described in Clauses (a), (b)
and (c) hereof.
1.4. Consents re Restructuring of Subordinated Indebtedness. Pursuant to
Sections 10.3 and 10.4 of the Credit Agreement and Section 16.c of the Guaranty,
Administrative Agent and Lenders hereby consent to (a) the issuance by Guarantor
of Exchange Securities in exchange for the 2002 Convertible Notes and the 2004
Convertible Notes pursuant to Guarantor's 2002 Offering Circular, and (b) the
issuance by Guarantor of additional indebtedness from time to time pursuant to
any payment-in-
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kind provisions of the AoL Convertible Notes or the Exchange Securities, and (c)
the payments by Guarantor to AoL from time to time as and to the extent
dividends therefore would then be permitted under Section 5.10(b)(v)(A) of the
Credit Agreement.
1.5. Deposit Accounts and Control Agreements. Within 30 calendar days after
the Amendment Number Four Closing Date, Borrowers will deliver to Administrative
Agent a fully executed control agreement (in form and substance reasonably
acceptable to Administrative Agent) with respect to each deposit account of any
Borrower (other than the deposit accounts maintained by Talk America at PNC Bank
and SouthTrust Bank) that at any time during the 6 calendar months preceding the
Amendment Number Four Closing Date had a balance in excess of $75,000. Borrowers
covenant and agree that as of and after the date hereof Borrowers shall not at
any time maintain in the aggregate balances at financial and investment
institutions not subject to a control agreement collectively in excess of
$250,000. The failure of Borrowers to deliver any such control agreement on or
before March 15, 2002 pursuant to Section 1.13 of Amendment Number Three to
Talk.com Loan Documents dated as of February 12, 2002 among Obligors and
Administrative Agent shall not constitute a Default or Event of Default under
the Loan Documents.
1.6. Definitions - Revisions and Additions. The following definitions are
either added to Article 9 of the Original Credit Agreement in alphabetical order
or amended and restated in their entirety:
a. ""Exchange Securities" means the debt securities issued by
Guarantor in exchange for 2002 Convertible Notes and/or 2004
Convertible Notes pursuant to Guarantor's 2002 Offering Circular, as
such securities may be amended and modified from time to time with the
prior consent of Administrative Agent."
b. ""2002 Offering Circular" means the Guarantor's Schedule TO
(SEC File #005-48510) filed with the Securities and Exchange
Commission on February 22, 2002, as amended by Amendment No. 1, filed
March 5, 2002, and Amendment No. 2, filed March 5, 2002, and Amendment
No. 3, filed March 14, 2002, and Amendment No. 4, filed March 22,
2002, and Amendment No. 5, filed April 2, 2002."
1.7. Documentation Fee. Within 15 Business Days after the Amendment Number
Four Closing Date, Borrowers shall pay a Documentation Fee in immediately
available funds to Administrative Agent in the amount of $1,500.00 to cover all
fees, costs and expenses in connection with the preparation and execution of
this Amendment Number Four.
1.8. Reaffirmation of Collateralization Hereunder. To the extent not
otherwise already covered by the Loan Documents, each Obligor hereby grants and
pledges to Administrative Agent for the ratable benefit of Lenders a present,
absolute, unconditional and continuing security interest in and pledge of and
collateral assignment of all of the Collateral under and as defined in the Loan
Documents to which such Obligor is a party as collateral security for funds
advanced pursuant to this Amendment, the Credit Agreement and the other Loan
Documents.
1.9. References in Other Loan Documents. In furtherance of the foregoing,
a. References in the Original Credit Agreement to the "Agreement" or
"Credit Agreement" hereafter mean the Credit Agreement (as amended hereby).
References in the other Loan Documents to the "Credit Agreement" hereafter
mean the Credit Agreement (as amended hereby).
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b. References in the Loan Documents (including in the Original Credit
Agreement) to the other "Loan Documents" (either as a group or
individually) or to such other documents by their individual separate
titles hereafter mean such Loan Documents (as amended hereby) as well as
the Additional Loan Documents.
1.10. Relationship to Loan Documents. This Amendment is an amendment and
supplement to (and not a novation of) the Loan Documents as well as the
schedules thereto without any discharge, release or satisfaction of the existing
obligations or indebtedness (or, except to the extent expressly set forth
herein, any guaranty or collateral security therefor), all of which obligations,
indebtedness and security remains outstanding under the Loan Documents. Except
as specifically amended by this Amendment or another document executed as of the
date hereof, the Loan Documents are, and continue to be, in full force and
effect as in effect prior to the date hereof. This Amendment becomes effective
as to any party as of the date of its, his or her execution hereof, and the
failure of any party hereto to execute this Amendment shall in no way effect the
obligations hereunder of the parties hereto that have executed this Amendment.
ARTICLE 2: MISCELLANEOUS
2.1. Loan Document; Definitions. This Amendment is a Loan Document executed
pursuant to the Credit Agreement and (unless otherwise expressly indicated
herein) is to be construed, administered and applied in accordance with the
terms and provisions thereof. Capitalized terms used herein without separate
definitions have the meaning ascribed to such terms in the Original Credit
Agreement (if such a definition exists therein) or in the other Loan Documents.
The rules of construction and the number and gender provisions under Article 9
of the Original Credit Agreement are also applicable herein.
2.2. Additional Representations and Covenants. Each Obligor, as of the
Amendment Number Four Closing Date, makes the following representations and
warranties solely with respect to this Amendment and any Loan Document to which
such Obligor is a signatory:
2.2.1. Authorization and Enforceability. Each Obligor represents and
warrants (a) that it, he or she (as applicable) has the full power and
authority to enter into, to deliver and to perform this Amendment, the
Credit Agreement and the other Loan Documents to which it, he or she is a
party, and all other agreements and actions required of it, him or her
hereunder, and (b) that all actions necessary or appropriate for such
Obligor's execution, delivery and performance of this Amendment, the Credit
Agreement and the other Loan Documents, and all other agreements and
actions required hereunder or thereunder have been properly and fully
taken, and (c) that, upon execution and delivery, this Amendment as well as
the Credit Agreement and the other Loan Documents will constitute the
legal, valid and binding obligations of each party hereto or thereto
enforceable in accordance with the terms hereof or thereof.
2.2.2. Representations and Warranties. Each Obligor hereby renews each
and all representations and warranties made by it, him or her contained in
the Loan Documents (other than in the Original Credit Agreement), and each
Obligor hereby represents and warrants that all such representations and
warranties (as modified by the schedules related thereto) are true, correct
and complete in all material respects on and as of the Amendment Number
Four Closing Date.
2.2.3. No Default. Each Obligor hereby represents and warrants that no
Default or Event of Default under the Loan Documents to which it, he or she
is a party will result from the execution, delivery or performance of this
Amendment.
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2.3. Obligor Solvency. Obligors (on a consolidated basis) are not
"insolvent," as such term is defined in Section 101(32) of the Bankruptcy Code
(11 U.S.C. 101(32)). Obligors (on a consolidated basis), by virtue of their
obligations and actions in connection with the Loan Documents, have not engaged
in and are not engaging in any transaction that constitutes a fraudulent
transfer or fraudulent conveyance under applicable federal or state law
(including under Section 548 of the Bankruptcy Code or under the Uniform
Fraudulent Transfer Act or the Uniform Fraudulent Conveyance Act).
2.4. Binding and Governing Law. This Amendment has been delivered by
Borrowers and the other Obligors and has been received by Administrative Agent
in the Commonwealth of Virginia. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors,
assigns, heirs, personal representatives and executors. This Amendment shall be
governed as to its validity, interpretation, construction and effect by the laws
of the Commonwealth of Virginia (without giving effect to the conflicts of law
rules of the Commonwealth of Virginia).
2.5. Survival. All agreements, representations, warranties and covenants of
any Obligor contained herein or in any documentation required hereunder shall
survive the execution and delivery of this Amendment and (except as otherwise
expressly provided herein) will continue in full force and effect so long as any
indebtedness or other obligation of any Borrower or other Obligor to
Administrative Agent or any Lender remains outstanding under any of the Loan
Documents.
2.6. No Waiver; Delay in Acting. To be effective, any waiver by Lenders
must be expressed in a writing executed by Administrative Agent (with approval
by Lenders). The execution, delivery and performance of this Amendment shall not
act as a waiver of any Default or any right, power or remedy of Administrative
Agent or any Lender under any Loan Document or any other agreements and
documents executed in connection herewith or therewith and shall not constitute
a waiver of any provision thereof. If Administrative Agent or any Lender waives
any power, right or remedy arising hereunder or under any applicable law, then
such waiver will not be deemed to be a waiver upon the later occurrence or
recurrence of any events giving rise to the earlier waiver. No failure or delay
by Administrative Agent or any Lender to insist upon the strict performance of
any term, condition, covenant, or agreement of this Amendment or any other Loan
Document, or to exercise any right, power or remedy hereunder or thereunder,
will constitute a waiver of any such term, condition, covenants or agreement or
of any such breach, or preclude Administrative Agent or any Lender from
exercising any such right, power, or remedy at any later time or times. By
accepting payment after the due date of any amount payable under any Loan
Document, neither Administrative Agent nor Lenders will be deemed to have waived
the right either to require prompt payment when due of all other amounts payable
under a Loan Document or to declare an Event of Default for failure to effect
such prompt payment of any such other amount. The remedies provided herein are
cumulative and not exclusive of each other, the remedies provided by law, and/or
the remedies provided by the other Loan Documents.
2.7. Modification. Except as otherwise provided in this Amendment, no
modification or amendment hereof shall be effective unless made in writing and
signed by Administrative Agent (with approval by Lenders) and any other party
hereto as to which such amendment or modification is applicable.
2.8. Headings. The various headings in this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this
Amendment or any provision hereof.
2.9. Prior Agreements. This Amendment shall completely and fully supersede
all other and prior agreements and correspondence (both written and oral) by and
among Obligors, Administrative Agent and Lenders concerning the terms and
conditions of this Amendment.
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2.10. Severability. If fulfillment of any provision hereof or any
transaction related hereto or to the other Loan Documents at the time
performance thereof shall be due shall involve transcending the limit of
validity prescribed by law, then ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity. If any clause or provision
herein contained operates or would prospectively operate to invalidate this
Amendment or any other Loan Document, in whole or in part, then such clause or
provision only shall be void, as though not herein or therein contained, and the
remainder of this Amendment and the other Loan Documents shall remain operative
and in full force and effect; provided, however, if any such provision pertains
to the repayment of any indebtedness under the Loan Documents, then the
occurrence of any such invalidity shall constitute an immediate Event of Default
under the Credit Agreement.
2.11. Counterparts. This Amendment may be executed in any number of
counterparts with the same effect as if all the signatures on such counterparts
appeared on one document. Each such counterpart shall be deemed to be an
original, but all such counterparts together shall constitute one and the same
instrument.
2.12. Waiver of Subrogation. Until the indebtedness under the Credit
Agreement is paid in full (unconditionally and indefeasibly) and the Loan
Documents are terminated, each Obligor hereby waives any and all rights of
subrogation, contribution and reimbursement that it, he or she may now have or
hereafter acquire with respect to its, his or her obligations hereunder, under
any Loan Document or under any other agreement that it, he or she may have or
may hereafter enter into with Administrative Agent or any Lender.
2.13. Waiver of Suretyship Defenses. Each Obligor hereby waives any and all
defenses and rights of discharge based upon suretyship or impairment of
collateral (including, without limitation, lack of attachment or perfection with
respect thereto) that it, he or she may now have or may hereafter acquire with
respect to Administrative Agent or any Lender or any of its, his or her
obligations hereunder, under any Loan Document or under any other agreement that
it, he or she may have or may hereafter enter into with Administrative Agent or
any Lender.
2.14. WAIVER OF LIABILITY. EACH OBLIGOR (A) AGREES THAT NEITHER
ADMINISTRATIVE AGENT NOR ANY LENDER (NOR ANY OF THEIR DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS) SHALL HAVE ANY LIABILITY TO ANY OBLIGOR (WHETHER SOUNDING
IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES OR COSTS SUFFERED OR INCURRED BY ANY
OBLIGOR IN CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS
CONTEMPLATED OR THE RELATIONSHIP ESTABLISHED BY ANY LOAN DOCUMENT, OR ANY ACT,
OMISSION OR EVENT OCCURRING IN CONNECTION HEREWITH OR THEREWITH, EXCEPT FOR
FORESEEABLE ACTUAL LOSSES RESULTING DIRECTLY AND EXCLUSIVELY FROM ADMINISTRATIVE
AGENT'S OR SUCH LENDER'S OWN GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD AND
(B) WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM AGAINST ADMINISTRATIVE
AGENT OR ANY LENDER (OR THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS) WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE, EXCEPT FOR CLAIMS FOR FORESEEABLE
ACTUAL LOSSES RESULTING DIRECTLY AND EXCLUSIVELY FROM ADMINISTRATIVE AGENT'S OR
SUCH LENDER'S OWN GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. MOREOVER,
WHETHER OR NOT SUCH DAMAGES ARE RELATED TO A CLAIM THAT IS SUBJECT TO THE WAIVER
EFFECTED ABOVE AND WHETHER OR NOT SUCH WAIVER IS EFFECTIVE, NEITHER
ADMINISTRATIVE AGENT NOR ANY LENDER (NOR THEIR DIRECTORS, OFFICERS, EMPLOYEES OR
AGENTS) SHALL HAVE ANY LIABILITY WITH RESPECT TO (AND EACH OBLIGOR HEREBY
WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR) ANY SPECIAL,
INDIRECT, CONSEQUENTIAL, PUNITIVE OR NON-FORESEEABLE DAMAGES SUFFERED BY ANY
OBLIGOR IN CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS
CONTEMPLATED OR THE RELATIONSHIP ESTABLISHED BY ANY LOAN DOCUMENT, OR ANY ACT,
OMISSION OR EVENT OCCURRING IN CONNECTION HEREWITH OR THEREWITH.
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2.15. FORUM SELECTION; CONSENT TO JURISDICTION. ANY LITIGATION IN
CONNECTION WITH OR IN ANY WAY RELATED TO ANY LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), ACTIONS OR
INACTIONS OF ADMINISTRATIVE AGENT, ANY LENDER OR ANY OBLIGOR WILL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE COURTS OF THE COMMONWEALTH OF VIRGINIA OR IN THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY OBLIGOR, ANY COLLATERAL
OR ANY OTHER PROPERTY MAY ALSO BE BROUGHT (AT ADMINISTRATIVE AGENT'S AND
LENDERS' OPTION) IN THE COURTS OF ANY OTHER JURISDICTION WHERE SUCH COLLATERAL
OR OTHER PROPERTY MAY BE FOUND OR WHERE ADMINISTRATIVE AGENT OR ANY LENDER MAY
OTHERWISE OBTAIN PERSONAL JURISDICTION OVER SUCH OBLIGOR. EACH OBLIGOR HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
COMMONWEALTH OF VIRGINIA AND OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF VIRGINIA FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL AND NON-APPEALABLE JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. EACH OBLIGOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR OUTSIDE THE COMMONWEALTH OF
VIRGINIA. EACH OBLIGOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT ANY OBLIGOR HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THEN SUCH
OBLIGOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS AGREEMENT.
2.16. WAIVER OF JURY TRIAL. ADMINISTRATIVE AGENT, EACH LENDER AND EACH
OBLIGOR EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (WHETHER AS CLAIM,
COUNTER-CLAIM, AFFIRMATIVE DEFENSE OR OTHERWISE) IN CONNECTION WITH OR IN ANY
WAY RELATED TO ANY OF THE LOAN DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), ACTIONS OR INACTIONS OF
ADMINISTRATIVE AGENT, ANY LENDER OR ANY OBLIGOR. EACH OBLIGOR ACKNOWLEDGES AND
AGREES (A) THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A
PARTY), AND (B) THAT IT HAS BEEN ADVISED BY LEGAL COUNSEL IN CONNECTION
HEREWITH, AND (C) THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR
ADMINISTRATIVE AGENT AND EACH LENDER ENTERING INTO THE LOAN DOCUMENTS AND
FUNDING ADVANCES THEREUNDER.
2.17. Construction. The language in all parts of this Amendment and the
other Loan Documents in all cases shall be construed as a whole according to its
fair meaning.
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IN WITNESS WHEREOF, the undersigned (where appropriate, by their duly
authorized officers) have executed this AMENDMENT NUMBER FOUR, as an instrument
under seal (whether or not any such seals are physically attached hereto), as of
the day and year first above written.
ATTEST: TALK AMERICA INC. (f/k/a Talk.com
Holding Corp.)
By: /s/ David G. Zahka By: /s/ Aloysius T. Lawn IV
Name: David G. Zahka Name: Aloysius T. Lawn IV
Title: CFO Title: EVP-General Counsel and Secretary
[SEAL]
ATTEST: ACCESS ONE COMMUNICATIONS
CORP.
By: /s/ David G. Zahka By: /s/ Aloysius T. Lawn IV
Name: David G. Zahka Name: Aloysius T. Lawn IV
Title: CFO Title: EVP-General Counsel and Secretary
[SEAL]
ATTEST: OMNICALL, INC.
By: /s/ David G. Zahka By: /s/ Aloysius T. Lawn IV
Name: David G. Zahka Name: Aloysius T. Lawn IV
Title: CFO Title: EVP-General Counsel and Secretary
[SEAL]
ATTEST: THE OTHER PHONE COMPANY, INC.
By: /s/ David G. Zahka By: /s/ Aloysius T. Lawn IV
Name: David G. Zahka Name: Aloysius T. Lawn IV
Title: CFO Title: EVP-General Counsel and Secretary
[SEAL]
[SIGNATURES CONTINUE ON NEXT PAGE]
<PAGE>
IN WITNESS WHEREOF, the undersigned (where appropriate, by their duly
authorized officers) have executed this AMENDMENT NUMBER FOUR, as an instrument
under seal (whether or not any such seals are physically attached hereto), as of
the day and year first above written.
ATTEST: TALK AMERICA OF VIRGINIA, INC.
(f/k/a Tel-Save Holdings of Virginia,Inc.)
By: /s/ David G. Zahka By: /s/ Aloysius T. Lawn IV
Name: David G. Zahka Name: Aloysius T. Lawn IV
Title: CFO Title: EVP-General Counsel and Secretary
[SEAL]
ATTEST: TALK AMERICA HOLDINGS, INC. (f/k/a
Talk.com, Inc.)
By: /s/ David G. Zahka By: /s/ Aloysius T. Lawn IV
Name: David G. Zahka Name: Aloysius T. Lawn IV
Title: CFO Title: EVP-General Counsel and Secretary
[SEAL]
[SIGNATURES CONTINUE ON NEXT PAGE]
<PAGE>
IN WITNESS WHEREOF, the undersigned (where appropriate, by their duly
authorized officers) have executed this AMENDMENT NUMBER FOUR, as an instrument
under seal (whether or not any such seals are physically attached hereto), as of
the day and year first above written.
WITNESS: MCG CAPITAL CORPORATION (IN ITS
OWN CAPACITY AS ADMINISTRATIVE AGENT AND
LENDER, AND AS SERVICER FOR ITS FUNDING
AFFILIATES AND SECURITIZATION VEHICLES)
By: /s/ Ruth Thomas By: /s/ John S. Patton
Name: John S. Patton
Title: Managing Director