EXHIBIT 2.1
AMENDMENT NO. 2 TO CREDIT AGREEMENT
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AMENDMENT NO. 2, dated as of May 1, 1998, to the Credit Agreement,
dated as of November 21, 1997 (as amended from time to time, the "Credit
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Agreement"), among (a) USTELECENTERS, INC., a Delaware corporation (the
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"Borrower"), (b) VIEW TECH, INC., a Delaware corporation (the "Parent Company"),
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(c) IMPERIAL BANK and BANKBOSTON, N.A. (the "Banks"), and (d) IMPERIAL BANK, in
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its capacity as Agent for the Banks and as Issuer with respect to Letters of
Credit.
RECITALS
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The Borrower, the Parent Company, the Banks and the Agent have agreed
to amend certain of the provisions contained in the Credit Agreement, all as set
forth in this Amendment No. 2 ("this Agreement").
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Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.1. DEFINITIONS IN CREDIT AGREEMENT. Unless otherwise defined
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herein, terms defined in the Credit Agreement are used herein as therein
defined.
SECTION 1.2. AMENDED AND RESTATED DEFINED TERM. Section 1.1 of the Credit
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Agreement is amended by amending and restating the following defined term to
read in its entirety as follows:
"Adjusted Borrowing Base" means, as at any date, (a) the Borrowing
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Base determined as at such date, less (b) $1,500,000.
SECTION 1.3. NEW DEFINED TERMS. Section 1.1 of the Credit Agreement is
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amended by adding thereto each of the following new defined terms:
"Agency Account Agreement" means, with respect to any depository or
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other similar account maintained by a particular Obligor with an Agency
Account Institution, the Agency Account Agreement, in or substantially in
the form of Exhibit C to Amendment No. 2 (or in a form otherwise approved
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by the Agent), entered into by such Obligor with the
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Agent and such Agency Account Institution with respect to such depository
or other similar account.
"Agency Account Institution" means any financial institution (other
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than Imperial Bank) which receives deposits directly or indirectly (whether
as the result of an interim concentration of funds in depository accounts
or otherwise) from or for the account of a particular Obligor.
"Agency Account" means any depository or other similar account
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maintained by a particular Obligor with an Agency Account Institution, the
funds from which are periodically transferred, upon the terms contained in
the Agency Account Agreement applicable thereto, to the Concentration
Account of such Obligor with the Agent.
"Approved Account" is defined in Section 9.2.14
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"Amendment No. 2" means Amendment No. 2, dated as of May 1, 1998,
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among the Borrower, the Parent Company, the Banks and the Agent, and upon
the terms of which each of the parties to this Agreement has agreed to
amend this Agreement.
"Amendment No. 2 Effective Date" means May 1, 1998.
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"Concentration Account" means, with respect to a particular Obligor,
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the depository account of such Obligor with the Agent under the control of
the Agent for the benefit of the Banks and the Agent.
"Controlled Disbursement Account" means, with respect to a particular
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Obligor, the controlled disbursement account maintained by such Obligor
with the Agent.
"Imperial Bank" means Imperial Bank, a bank organized under the laws
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of the State of California.
"Net Settlement Amount" means, in relation to any particular
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Settlement pursuant to Section 3.11, the net amount (if any) shown by such
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Settlement to be owed by one Settling Party ("net payor") to another
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Settling Party ("net payee"), such net amount (if any) to be equal to the
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EXCESS OF (a) the Settlement Amount shown by such Settlement to be owed by
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the net payor to the net payee, OVER (b) the Settlement Amount shown by
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such Settlement to be owed by the net payee to the net payor.
"Obligors" means, collectively, the Borrower and the Parent Company;
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and "Obligor" means either of the Obligors.
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"Operating Account" means, with respect to a particular Obligor, any
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demand deposit account maintained by such Obligor with Imperial Bank or
BankBoston.
"Primary Operating Account" means, with respect to a particular
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Obligor, the Operating Account of such Obligor with Imperial Bank
identified on Exhibit A to Amendment No. 2 as the "Primary Operating
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Account" of such Obligor.
"Settlement" means, in relation to the Agent and the Banks on or as of
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any Settlement Date, (a) the determination on and as of such Settlement
Date, in accordance with the provisions set forth in Section 3.11.1(a), of
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(i) the Settlement Amount (if any) required to be paid by the Agent to each
Bank for or on account of principal of Facility A Loans received and held
by the Agent for and on behalf of the Banks pursuant to Section 3.10.1
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during the Settlement Reference Period ended on the day before such
Settlement Date, (ii) the Settlement Amount (if any) required to be paid by
each Bank to the Agent (for the Agent's own account) for or on account of
principal of Facility A Loans advanced by the Agent for and on behalf of
the Banks pursuant to Section 3.1.3 during such Settlement Reference
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Period, and (iii) the Settlement Amount (if any) required to be paid by one
Bank to another Bank in order to cause each Bank's actual share of the
aggregate outstanding principal amount of all Facility A Loans (determined
on and as of such Settlement Date) to be equal to each Bank's Percentage
(determined as of such Settlement Date) of such aggregate outstanding
principal amount of all Facility A Loans, in any case where, prior to the
payment of such Settlement Amount, the actual share is not so equal, (b)
the determination on and as of such Settlement Date, in accordance with the
provisions set forth in Section 3.11.1(b), of the Net Settlement Amount (if
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any) required to be paid by any Settling Party to another Settling Party,
and (c) the payment of Net Settlement Amounts by Settling Parties to other
Settling Parties on and as of such Settlement Date pursuant to and in
compliance with Section 3.11.1(c).
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"Settlement Amount" is defined in Section 3.11.1(a).
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"Settlement Date" means each of (a) the Drawdown Date relating to any
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Loan Request for a Facility A Loan, (b) Friday of each week, or if Friday
is not a Business Day, the Business Day immediately following such Friday,
and (c) the Business Day immediately following the day on which the Agent
shall receive from any of the Principal Companies or Banks a written notice
of the existence of any Event of Default.
"Settlement Reference Period" means the period beginning on a
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Settlement Date and ending on the day before the next Settlement Date.
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"Settling Parties" means, for all purposes of Section 3.11 and any
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Settlement hereunder, collectively, the Agent and the Banks; and "Settling
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Party" means any one of the Settling Parties.
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ARTICLE II
AMENDMENTS
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Effective on and as of May 1, 1998 ("Effective Date"), and subject always
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in any event to the provisions of Article III, the Credit Agreement is hereby
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amended in each of the following respects:
SECTION 2.1. DAILY BORROWINGS OF FACILITY A LOANS. Section 3.1 of the
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Credit Agreement is hereby amended by adding the following new Section 3.1.3
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immediately after Section 3.1.2 of the Credit Agreement:
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SECTION 3.1.3. DAILY BORROWINGS OF FACILITY A LOANS.
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(a) Notwithstanding the notice and minimum amount requirements
set forth in Section 3.1.1(a), and notwithstanding the requirement set
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forth in Section 7.2.3 to calculate and confirm the Borrowing Base as
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of the Drawdown Date of each Facility A Loan, the Agent shall from
time to time, for and on behalf of each Bank pro rata in accordance
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with its Percentage thereof, make Facility A Loans to the Borrower by
entry of credits to the Controlled Disbursement Account of each
Obligor to cover checks or other items or charges which such Obligor
has drawn or made against such Controlled Disbursement Account or to
cause payment of principal, interest, fees or other charges due and
payable by such Obligor under the Loan Documents. Each of the
Borrower, the Parent Company and the Banks hereby irrevocably requests
and authorizes the Agent to make such Facility A Loans to the Borrower
from time to time pursuant to this Section 3.1.3(a) by means of
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appropriate entries of such credits sufficient to cover any such
checks, items and other charges then presented.
(b) Each of the Obligors acknowledges and agrees that, except as
otherwise expressly provided below in this Section 3.1.3(b), the
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making of such Facility A Loans pursuant to Section 3.1.3(a) shall, in
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each case, be subject in all respects to the provisions of, including,
without limitation, the applicable conditions precedent contained in,
this Agreement as if each of such Facility A Loans were Facility A
Loans covered by a Loan Request, including, without limitation, the
limitations set forth in Section 2.1(a) and the requirement that the
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applicable provisions of Section
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7.2 be satisfied. The parties hereto agree that the making of such
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Facility A Loans pursuant to Section 3.1.3(a) shall not be subject to
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the requirements contained in Section 3.1.1 and shall not be subject
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to the satisfaction of the conditions precedent set forth in Section
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7.2.2. or Section 7.2.3.
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(c) Each of the Obligors agrees with the Banks and the Agent that
the making of each Facility A Loan pursuant to Section 3.1.3(a) shall
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constitute the representation and warranty of such Obligor that each
of the applicable conditions contained in Sections 7.2.1, 7.2.4 and
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7.2.5 have been satisfied before giving effect to such Facility A Loan
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and will, after giving effect to such Facility A Loan, also be
satisfied. All actions taken by the Agent from time to time pursuant
to the provisions of Section 3.1.3(a) shall be conclusive and binding
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on the Borrower, the Parent Company and the Banks, in each case absent
the Agent's gross negligence or willful misconduct. Each Bank shall,
in connection with Settlement on each Settlement Date, be obligated to
provide to the Agent, in the manner contemplated and provided by
Section 3.11.1, such Bank's Percentage of each Facility A Loan
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advanced by the Agent during the Settlement Reference Period ended on
the day before such Settlement Date.
(d) The Borrower absolutely and unconditionally understands and
agrees that each Facility A Loan so made pursuant to Section 3.1.3(a)
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by entry of credits to the Controlled Disbursement Account of the
Parent Company shall, for all purposes of this Agreement and the other
Loan Documents, be treated as and deemed to be a Facility A Loan made
directly to the Borrower.
(e) Without limitation of the Obligations of the Obligors under
Section 9.1.1(c)(iii), which Obligations remain unaltered, the
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Obligors hereby further agree to furnish to the Agent from time to
time upon the Agent's request therefor a Borrowing Base Report
confirming the Borrowing Base calculations as of such date or dates as
may be specified by the Agent.
SECTION 2.2. DEPOSITORY ARRANGEMENTS; SETTLEMENT; ETC. Article III of the
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Credit Agreement is hereby amended by adding the following new Section 3.10 and
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Section 3.11 immediately after Section 3.9 of the Credit Agreement:
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SECTION 3.10. DEPOSITORY ARRANGEMENTS.
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SECTION 3.10.1. THE DEPOSITORY ARRANGEMENTS, ETC.
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(a) Each Obligor will, from and after the Amendment No. 2
Effective Date,
(i) maintain a separate Controlled Disbursement Account
with the Agent,
(ii) maintain a separate Primary Operating Account with
Imperial Bank,
(iii) maintain a separate Concentration Account with and
under the control of the Agent,
(iv) direct each Agency Account Institution, pursuant to
the Agency Account Agreements to which it is a party (whereby
such Agency Account Institution shall, among other things, waive
all rights of set-off, other than for service charges and returns
incurred in connection therewith), to cause all funds held by
such Agency Account Institution in its Agency Accounts to be
transferred daily (or with such other frequency as the Agent
shall request) to, and only to, the Agent for deposit in such
Obligor's Concentration Account, and
(v) upon the Agent's request after the occurrence of any
Default or Event of Default, direct all of its account debtors
and obligors on instruments and other obligors of such Obligor to
make all payments due or to become due to such Obligor directly
to such Obligor's Concentration Account.
If, at any time from and after the Amendment No. 2 Effective Date, an
Obligor receives any cash proceeds or cash payments in respect of any
of the Collateral, whether in the form of money, checks or otherwise,
such Obligor will hold such cash proceeds or payments in trust for the
benefit of the Agent and the Banks and turn such cash proceeds or
payments promptly over to the Agent in the identical form received by
deposit to such Obligor's Concentration Account.
(b) The Agent shall, for each Obligor and such Obligor's
Concentration Account,
(i) with respect to all funds and cash proceeds in the
form of money, checks and like items received in such
Concentration Account, on the same Business Day on which the
Agent determines that good collected funds have been
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received, and prior to the final collection of good collected
funds, on a provisional basis until such final collection,
(ii) with respect to all funds and cash proceeds in the
form of a wire transfer received in such Concentration Account,
on the same Business Day as the Agent's receipt of such amounts
(or on such later date as the Agent determines that good
collected funds have been received), and
(iii) with respect to all funds and cash proceeds in the
form of an automated clearing house transfer received in such
Concentration Account, on the next Business Day following the
Agent's receipt of such amounts (or on such later date as the
Agent determines that good collected funds have been received),
in each case, (A) receive for and on behalf of the Banks for immediate
application to the aggregate principal amount of the Facility A Loans
then outstanding all such funds and cash proceeds which were deposited
to such Concentration Account, and hold all of such funds and cash
proceeds so received and applied for and on behalf of the Banks until
the next Settlement, and (B) so long as no Default or Event of Default
shall be then continuing, cause any excess to be credited to the
Primary Operating Account of such Obligor with Imperial Bank (subject
always to the limitations of Section 9.2.14). During the continuance
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of any Default or Event of Default, the Agent may, from time to time
in the Agent's discretion, retain any or all of such excess to pay any
Obligations then due and payable and to provide cash collateral for
any Obligations not then due and payable, with the Agent causing any
surplus, subject to the rights of any other persons entitled thereto,
to be credited to the Primary Operating Account of such Obligor with
Imperial Bank (subject always to the limitations of Section 9.2.14).
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For the purposes of the foregoing provisions of this paragraph (b),
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the Agent shall not be deemed to have received any such cash proceeds
on any day unless received by the Agent before 1:00 p.m., San Jose
time, on such day. Each of the Obligors further acknowledges and
agrees that any such provisional credit by the Agent shall be subject
to reversal if final collection in good collected funds of the related
item is not received by the Agent in accordance with the Agent's
customary procedures and practices for collecting provisional items.
(c) The Agent shall, in connection with Settlement on each
Settlement Date, be obligated to provide to each Bank, in the manner
contemplated and provided by Section 3.11.1, such Bank's Percentage of
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the principal of the Facility A Loans repaid pursuant
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to Section 3.10.1 during the Settlement Reference Period ended on the
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day before such Settlement Date. The parties hereto agree that
repayment and prepayment of principal of the Facility A Loans from
time to time pursuant to the provisions of this Section 3.10.1 shall
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not be subject to the notice and minimum amount requirements set forth
in Section 3.3.2(a).
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SECTION 3.10.2. FEES AND EXPENSES; ETC. Each Obligor agrees to
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pay to the Agent, upon demand, any and all reasonable fees, costs and
expenses which the Agent shall charge or otherwise incur from time to
time in connection with (a) the Agent's provision of the cash
management services contemplated by this Agreement, (b) opening and
maintaining the Concentration Accounts, Controlled Disbursement
Accounts and Primary Operating Accounts, or (c) the depositing for
collection by the Agent of any check or other item of payment. Absent
gross negligence or willful misconduct by the Agent, each Obligor,
jointly and severally, agrees to indemnify the Agent and each of the
Banks and to hold the Agent and each of the Banks harmless from and
against any loss, cost or expense sustained or incurred by the Agent
or by any of the Banks on account of any claims of third parties
arising in connection with the Agent's operation of the Concentration
Accounts, Controlled Disbursement Accounts or Primary Operating
Accounts.
SECTION 3.11. SETTLEMENT, ETC.
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SECTION 3.11.1. SETTLEMENT AND FUNDING PROCEDURES.
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(a) On each Settlement Date, the Agent shall, prior to 11:00
a.m., San Jose time, determine each of the following amounts (each, a
"Settlement Amount"):
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(i) the sum for each Bank of (A) the amount (if any)
required to be paid by the Agent to such Bank for or on account
of principal of Facility A Loans received and held by the Agent
for and on behalf of the Banks pursuant to Section 3.10.1 during
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the Settlement Reference Period ended on the day before such
Settlement Date, plus (B) interest payable by the Agent to such
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Bank calculated on the basis of such Bank's Percentage of
principal of Facility A Loans repaid with funds so received by
the Agent, such interest to accrue on such principal at an annual
rate equal to the daily average Federal Funds Rate plus 1/2% from
the date of repayment of such principal to and including the day
before such Settlement Date;
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(ii) the sum for each Bank of (A) the amount (if any)
required to be paid by such Bank to the Agent (for the Agent's
own account) for or on account of principal of Facility A Loans
advanced by the Agent for and on behalf of the Banks pursuant to
Section 3.1.3 during the Settlement Period ended on the day
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before such Settlement Date, plus (B) interest payable by such
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Bank to the Agent calculated on the basis of such Bank's
Percentage of each Facility A Loan so advanced, such interest to
accrue on such Bank's Percentage of such Facility A Loan at an
annual rate equal to the daily average Federal Funds Rate plus
1/2% from the date of advance to and including the day before
such Settlement Date; and
(iii) the amount (if any) required to be paid by one Bank
to another Bank in order to cause each Bank's actual share of the
aggregate outstanding principal amount of all Facility A Loans
(determined on and as of such Settlement Date) to be equal to
each Bank's Percentage (determined as of such Settlement Date) of
such aggregate outstanding principal amount of all Facility A
Loans, in any case where, prior to the payment of such Settlement
Amount, the actual share is not so equal.
(b) On each Settlement Date, the Agent shall, not later than
11:00 a.m., San Jose time, also determine the Net Settlement Amount
(if any) required to be paid by each Settling Party to another
Settling Party, undertake to complete a Settlement with respect to
each Settling Party for the immediately preceding Settlement Reference
Period and give telephonic or facsimile notice (i) to each of the
Banks and the Obligors of the principal amount of each of the Facility
A Loans made by the Agent for and on behalf of the Banks during the
immediately preceding Settlement Reference Period, (ii) to each of the
Banks and the Obligors of the principal amount of each of the Facility
A Loans received and held by the Agent for and on behalf of the Banks
during such Settlement Reference Period, (iii) to each of the Banks of
the Settlement Amount (if any) owed by each Settling Party to each
other Settling Party as determined by the Agent for such Settlement,
and (iv) to each of the Banks of the Net Settlement Amount (if any)
required to be paid by each Settling Party to each other Settling
Party in order to effect and complete a Settlement on and as of such
Settlement Date.
(c) A statement of the Agent submitted to each of the Banks with
respect to each (if any) Net Settlement Amount owing by any Settling
Party to another Settling Party under this Section
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3.11.1 in connection with each Settlement shall be prima facie
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evidence thereof. Each Settling Party shall, not later than 1:00
p.m., San Jose time, on each Settlement Date, pay, by wire transfer of
immediately available funds, the Net Settlement Amount required to be
paid by such Settling Party to another Settling Party in connection
with the completion of Settlement on such Settlement Date.
SECTION 3.11.2. ADVANCES BY AGENT, ETC. The Agent shall, unless
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notified in writing to the contrary by any Bank prior to the making of
any particular Facility A Loan pursuant to Section 3.1.3(a), be
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entitled conclusively to presume that the Agent is authorized by such
Bank to advance such Bank's Percentage of such Facility A Loan. In
reliance upon such presumption, the Agent shall be held harmless by
such Bank for making available such Bank's Percentage of each such
Facility A Loan to the Borrower pursuant to and as contemplated by
Section 3.1.3(a). To the extent of any inconsistency between the
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provisions contained in the last three sentences of Section 3.7.1 and
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the provisions of Section 3.11.1, the provisions of Section 3.11.1
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shall be controlling.
SECTION 2.3. LIMITATIONS ON FUNDING OPTIONS FOR FACILITY A LOANS. Section
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4.4.2 of the Credit Agreement is hereby amended by adding the following new
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sentence to such Section 4.4.2 immediately after the first sentence thereof:
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"Anything herein to the contrary notwithstanding, no portion of the
outstanding principal amount of any Facility A Loan may, at any time
on or after the Amendment No. 2 Effective Date, be continued as, or
converted into, any Eurodollar Loans."
SECTION 2.4. COVENANTS REGARDING BANK ACCOUNTS. Section 9.2 of the Credit
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Agreement is hereby amended by adding the following new Section 9.2.14
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immediately after Section 9.2.13 of the Credit Agreement:
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SECTION 9.2.14. BANK ACCOUNTS, ETC. Each Obligor covenants and
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agrees with the Agent and the Banks that, from and after the Amendment
No. 2 Effective Date and until all of the Commitments have terminated
and all of the Obligations have been paid in full, such Obligor will
not for any reason or under any circumstances: (a) establish or
maintain any bank accounts other than the Controlled Disbursement
Account of such Obligor, the Primary Operating Account of such Obligor
and the other bank accounts of such Obligor identified on Exhibit A to
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Amendment No. 2 (each bank account of each Obligor identified on
Exhibit A (as amended from time to time) being herein referred to as
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an
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"Approved Account"), (b) breach in any respect any of its obligations
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under any Agency Account Agreement, (c) deposit into, or otherwise
maintain on deposit in, any "Operating Account" of such Obligor
identified on Exhibit A to Amendment No. 2 any amounts in excess of
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the amounts necessary to pay current obligations of such Obligor, (d)
at any time deposit into any "Operating Account" of such Obligor
identified on Exhibit A to Amendment No. 2 any amounts other than
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proceeds of Facility A Loans or funds transferred from such Obligor's
Controlled Disbursement Account or Concentration Account as permitted
by Section 3.10.1, or (e) at any time deposit into, or otherwise
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maintain or deposit in, any bank account any funds or cash proceeds
unless such bank account is an Approved Account of such Obligor. Each
Obligor will, within thirty days after the Amendment No. 2 Effective
Date, make subject to an Agency Account Agreement each bank account of
such Obligor identified on Exhibit A to Amendment No. 2 as an Agency
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Account, which Agency Account Agreement shall have been duly and
properly executed and delivered to the Agent by such Obligor and the
financial institution with which such bank account has been
established. The execution and delivery by each Obligor of each such
Agency Account Agreement shall have been duly authorized by
resolutions, in or substantially in the form set forth in Exhibit B to
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Amendment No. 2, duly adopted by the Board of Directors of such
Obligor.
ARTICLE III
CONDITIONS PRECEDENT
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Each of the amendments to the Credit Agreement set forth in Article II of
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this Agreement shall be effective and in full force and effect on and as of and
from and after the Effective Date, provided that each of the following
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conditions precedent shall first be satisfied:
SECTION 3.1. AGREEMENT. The Agent shall have received counterparts of
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this Agreement duly executed by each of the Borrower and the Parent Company and
also by each of the Banks.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES. Each of the representations
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and warranties made by the Borrower and the Parent Company pursuant to this
Agreement shall be true and correct in all material respects on and as of the
Effective Date with the same full force and effect as if made and repeated on
and as of such date.
SECTION 3.3. REIMBURSEMENT OF COSTS AND EXPENSE. The Borrower and the
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Parent Company shall have paid in full all of the reasonable
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out-of-pocket costs and expenses (including all of the reasonable fees and
disbursements of special counsel to the Agent incurred during the period from
November 22, 1997 through the Effective Date) payable by the Borrower and the
Parent Company pursuant to Section 13.3 of the Credit Agreement and for which
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invoices shall have been submitted to the Borrower and the Parent Company on or
prior to the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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Each of the Borrower and the Parent Company represents and warrants to the
Agent and the Banks as follows:
SECTION 4.1. REPRESENTATIONS IN LOAN DOCUMENTS. Each of the
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representations and warranties made by or on behalf of each of the Principal
Companies to the Agent and the Banks in the Loan Documents was true and correct
in all material respects when made and is true and correct in all material
respects on and as of the date hereof, except (a) as affected by the
consummation of the transactions contemplated by the Loan Documents (including
this Agreement), and (b) to the extent that any such representation or warranty
relates by its express terms solely to a prior date.
SECTION 4.2. CORPORATE AUTHORITY, ETC. The execution and delivery by each
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of the Principal Companies of this Agreement and the performance by each of the
Principal Companies of their respective agreements and obligations under this
Agreement have been duly and properly authorized by all necessary corporate or
other action on the part of each of the Principal Companies, and do not and will
not conflict with, result in any violation of, or constitute any default under,
(a) any provision of any Governing Document of any Principal Company, (b) any
Contractual Obligation of any Principal Company, or (c) any Applicable Law.
SECTION 4.3. VALIDITY, ETC. This Agreement has been duly executed and
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delivered by each of the Principal Companies and constitutes the legal, valid
and binding obligation of each of the Principal Companies, enforceable against
each of the Principal Companies in accordance with its terms, except as such
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws at the time in effect affecting the
enforceability of the rights of creditors generally and to general equitable
principles. Each of the Principal Companies hereby ratifies and confirms in all
respects all of the Obligations as modified hereby.
SECTION 4.4. NO DEFAULTS. After giving effect to this Agreement, no
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Defaults or Events of Default will be continuing under the Credit Agreement.
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SECTION 4.5. BANK ACCOUNTS. Exhibit A to this Agreement identifies each
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bank account of each Obligor which has been opened or established by such
Obligor with any financial institution (wherever located) at any time on or
prior to the date hereof and which remains open on or as of the date hereof.
ARTICLE V
PROVISIONS OF GENERAL APPLICATION
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SECTION 5.1. NO OTHER CHANGES. Except as otherwise expressly provided by
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this Agreement, all of the terms, conditions and provisions of the Credit
Agreement, and all rights and remedies of the Agent and the Banks thereunder,
shall remain unaltered. In particular, and without limitation of the
understanding and agreement of the parties hereto contained in the immediately
preceding sentence, each of the Obligors expressly understands and agrees that
the mandatory prepayment provisions contained in Section 3.3.5 and the
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requirement to furnish Borrowing Base Reports contained in Section 9.1.1(c)(iii)
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remain in full force and effect without waiver or alteration.
SECTION 5.2. OTHER PROVISIONS. This Agreement is a Loan Document for all
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purposes of the Credit Agreement and each of the other Loan Documents. This
Agreement and the rights and obligations hereunder of each of the parties hereto
shall in all respects be construed in accordance with and governed by the laws
of the State of California. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, but all
of such counterparts shall together constitute but one and the same agreement.
In making proof of this Agreement, it shall not be necessary to produce or
account for more than one counterpart hereof signed by each of the parties
hereto.
[REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
-14-
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO.
2 TO THE CREDIT AGREEMENT to be executed and delivered by their respective
authorized officers as of the date first above written.
THE BORROWER:
------------
USTELECENTERS, INC.
By: /s/ Angelo P. Gentile
-----------------------------------------
Name: Angelo P. Gentile
Title: Vice President of Finance
THE PARENT COMPANY:
------------------
VIEW TECH, INC.
By: /s/ Angelo P. Gentile
-----------------------------------------
Name: Angelo P. Gentile
Title: Vice President of Finance
THE BANKS:
---------
IMPERIAL BANK, INDIVIDUALLY AS A BANK AND AS
AGENT
By: /s/ Paula J. Barysauskas
-----------------------------------------
Name: Paula J. Barysauskas
Title: Vice President
BANKBOSTON, N.A.
By: /s/ Frank Gianino
-----------------------------------------
Name: Frank Gianino
Title: Vice President