Exhibit 3
LOAN AGREEMENT
LOAN AGREEMENT (this "Agreement"), dated as of November 20, 1997,
between INTERMEDIA COMMUNICATIONS INC., a Delaware corporation ("Buyer") and
SHARED TECHNOLOGIES FAIRCHILD INC., a Delaware corporation (the "Company").
R E C I T A L S :
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The Company desires to redeem 200,000 shares of Series J Special
Preferred Stock, par value $.01 per share (the "SPECIAL PREFERRED STOCK") issued
by the Company and owned by RHI Holdings, Inc. ("RHI"), and Buyer agrees to loan
to the Company certain funds to facilitate such redemption, all upon the terms
and subject to conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the parties hereto hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer hereby represents and warrants to the Company as follows:
1.1 ORGANIZATION OF BUYER. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of Delaware.
1.2 AUTHORITY. Buyer has all requisite power and authority to
execute and deliver this Agreement and to carry out its obligations hereunder.
Buyer has obtained all necessary corporate approvals for the execution and
delivery of this Agreement and the performance of its obligations hereunder.
This Agreement has been duly executed and delivered by Buyer and (assuming due
authorization, execution and delivery by the Company) constitutes Buyer's legal,
valid and binding obligation, enforceable against it in accordance with its
terms.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to Buyer as follows:
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2.1 ORGANIZATION OF THE COMPANY. The Company is a corporation duly
organized, validly existing and in good standing under the laws of Delaware.
2.2 AUTHORITY. The Company has all requisite power and authority to
execute and deliver this Agreement and the Promissory Note (as defined below)
and to carry out its obligations hereunder. The Company has obtained all
necessary corporate approvals for the execution and delivery of this Agreement
and the Promissory Note and the performance of its obligations hereunder and
thereunder. This Agreement has been duly executed and delivered by the Company
and (assuming due authorization, execution and delivery by Buyer) constitutes
the Company's legal, valid and binding obligation, enforceable against it in
accordance with its terms.
3. THE LOAN
If the Company elects to redeem the Special Preferred Stock, Buyer
shall lend to Company $21,918,000 in accordance with the terms of the Promissory
Note attached hereto as Exhibit A (the "PROMISSORY NOTE"), the Company shall
borrow such amount from Buyer and execute the Promissory Note and Buyer shall
execute a Subordination Agreement in the form attached hereto as Exhibit B.
4. GENERAL
4.1 EXPENSES. All expenses of the preparation, execution and
consummation of this Agreement and of the transactions contemplated hereby
including, without limitation, attorneys, accountants and outside advisors, fees
and disbursements, shall be borne by the party incurring such expense.
4.2 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties and supersede all prior agreements and
understandings relating to the subject matter hereof and this Agreement shall
not be amended except by a written instrument hereafter signed by all of the
parties hereto.
4.3 ASSIGNMENT. None of the parties hereto may assign its rights or
delegate its obligations under this Agreement without the written consent of the
other parties hereto. This Agreement and all of the provisions hereof shall be
binding upon and inure only to the benefit of the parties hereto and their
respective heirs, executors, personal representatives and successors.
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4.4 FURTHER ACTION. Each of the parties hereto shall use all
reasonable efforts to do, or cause to be done, all things necessary, proper or
advisable under applicable law to carry out the provisions of this Agreement and
shall execute and deliver such documents and other papers as may be required to
carry out the provisions of this Agreement.
4.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or by fax or mailed by registered or certified mail (return
receipt requested) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
if to Buyer, a copy to:
Intermedia Communications Inc.
3625 Queen Palm Drive
Tampa, Florida 33619
Attention: Chief Financial Officer
Telecopy: (813) 829-2470
with a copy to:
Kronish, Lieb, Weiner & Hellman LLP
1114 Avenue of the Americas
New York, NY 10036
Attention: Ralph J. Sutcliffe, Esq.
Telecopy: (212) 479-6275
if to the Company, a copy to:
Shared Technologies, Inc.
100 Great Meadow Road, Suite 104
Wethersfield, CT 06109
Telecopy No.: (860) 258-2455
Attention: Kenneth M. Dorros, Esq.
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005
Telecopy No.: (212) 269-5420
Attention: James J. Clark, Esq.
4.6 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other
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conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated thereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated by this Agreement be consummated as originally
contemplated to the fullest extent possible.
4.7 HEADINGS. The headings of Sections and Subsections are for
reference only and shall not limit or control the meaning thereof.
4.8 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.9 GOVERNING LAW. THE VALIDITY AND CONSTRUCTION OF THIS AGREEMENT
SHALL BE GOVERNED BY THE INTERNAL LAWS (AND NOT THE PRINCIPLES OF CONFLICT OF
LAWS) OF THE STATE OF DELAWARE.
4.10 VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE STATE OF DELAWARE OR
OF THE UNITED STATES OF AMERICA RESIDING IN THE STATE OF DELAWARE AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY ACCEPT FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH PARTY HEREBY WAIVES, AND
AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE
INTERPRETATION OR ENFORCEMENT OF THIS AGREEMENT THAT IT IS NOT SUBJECT THERETO
OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT
MAINTAINABLE IN SAID COURTS OR THAT THIS AGREEMENT MAY NOT BE ENFORCED IN OR BY
SAID COURTS OR THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM EXECUTION, THAT THE
SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE
OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR (PROVIDED THAT PROCESS SHALL BE
SERVED IN ANY MANNER REFERRED TO IN THE FOLLOWING SENTENCE) THAT SERVICE OF
PROCESS UPON SUCH PARTY IS INEFFECTIVE. EACH PARTY AGREES THAT SERVICE OF
PROCESS IN ANY SUCH ACTION, SUIT OR PROCEEDING AGAINST IT WITH RESPECT TO THIS
AGREEMENT MAY BE MADE UPON IT IN ANY MANNER PERMITTED BY THE LAWS OF THE STATE
OF DELAWARE OR THE FEDERAL LAWS OF THE UNITED STATES. SERVICE OF PROCESS IN ANY
MANNER
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REFERRED TO IN THE PRECEDING SENTENCE SHALL BE DEEMED, IN EVERY RESPECT,
EFFECTIVE SERVICE OF PROCESS UPON SUCH PARTY.
(SIGNATURE PAGE FOLLOWS]
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4.11 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR AGAINST IT
ON ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT.
IN WITNESS WHEREOF, and intending to be legally bound thereby, the
parties hereto have caused this Agreement to be duly executed and delivered by
their duly authorized officers as of the date and year first above written.
INTERMEDIA COMMUNICATIONS INC.
By:
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Name:
Title:
SHARED TECHNOLOGIES FAIRCHILD INC.
By:
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Name:
Title:
Exhibit A
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Promissory Note
$21,918,000.00 New York, New York
_________ __, 1997
FOR VALUE RECEIVED, the undersigned, SHARED TECHNOLOGIES FAIRCHILD
INC., a Delaware corporation (the "Company"), hereby promises to pay to the
order of INTERMEDIA COMMUNICATIONS INC., a Delaware corporation (the "Lender"),
the principal sum of TWENTY ONE MILLION NINE HUNDRED EIGHTEEN THOUSAND DOLLARS
AND NO CENTS ($21,918,000.00), together with interest thereon from the date
hereof until the date such amounts are paid in accordance with the terms hereof
at the rate set forth below.
Payments of the principal amount hereof shall be made at the same time
and on the same terms as payments of the liquidation preference were required to
made under the terms of the Series J Special Preferred Stock, par value $.01 per
share (the "Special Preferred Stock") issued by the Company. Interest on this
Note shall accrue and be payable on the same terms as dividends were payable
under the terms of the Special Preferred Stock. In no event shall the interest
rate applicable at any time to this Note exceed the maximum rate permitted by
law.
The principal of and the interest on this Note shall be payable in
lawful money of the United States of America at the offices of the Lender, at
3625 Queen Palm Drive, Tampa, Florida, 33619, or at such other location as the
Lender may designate by written notice to the Company. Any payment which is
required to be made on a day which is a legal holiday for banking institutions
generally, at the place where payment is to be made, shall be made on the next
succeeding day which is not a legal holiday without additional interest and with
the same force and effect as if made on the date specified herein for such
payment.
To induce the Lender to make the loan evidenced by this Note, the Company
represents and warrants to the Lender that (i) the Company is duly incorporated
and validly existing in good standing under the laws of the jurisdiction of its
incorporation, with full power and authority to make, deliver and
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perform this Note; (ii) the execution, delivery and performance by the Company
of this Note have been duly authorized by all necessary corporate action and
does not and will not violate or conflict with its charter or by-laws or any
law, rule, regulation or order binding on the Company or any agreement or
instrument to which the Company is a party or which may be binding on the
Company; (iii) this Note has been fully executed by an authorized officer of the
Company and constitutes a legal, valid, binding and enforceable obligation of
the Company; and (iv) no authorization, consent, approval, license, exemption of
or filing or registration with, any court or government or governmental agency
is or will be necessary to the valid execution, delivery or performance by the
Company of this Note.
The Company agrees to pay all costs and expenses including reasonable
attorneys' fees, incurred by Lender in investigating and enforcing any of
Lender's rights and remedies hereunder, whether or not suit is instituted.
The Company hereby waives presentment, notice of dishonor, protest and
notice of protest, and any or all other notices or demands (other than demand
for payment) in connection with the delivery, acceptance, performance, default,
endorsement or guarantee of this Note. The liability of the Company hereunder
shall be unconditional and shall not be in any manner affected by any indulgence
whatsoever granted or consented to by Lender, including, but not limited to any
extension of time, renewal, waiver or other modification. Any failure of Lender
to exercise any right hereunder shall not be construed as a waiver of the right
to exercise the same or any other right at any time and from time to time
thereafter. The Lender may accept late payments, or partial payments, even
though marked "payment in full" or containing words of similar import or other
conditions, without waiving any of its rights. No amendment, modification or
waiver of any provision of this Note or consent to any departure by the Company
therefrom shall be effective, irrespective of any course of dealing, unless the
same shall be in writing and signed by the Lender, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. This Note cannot be changed or terminated orally or by
estoppel or waiver or by any alleged oral modification regardless of any claimed
partial performance referable thereto.
Any notice from the Lender to the Company shall be deemed given when
delivered to the Company by hand or when deposited in the United States mail and
addressed to the Company
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at the last address of the Company appearing on the Lender's records.
This Note is non-negotiable and may not be pledged, sold, transferred or
assigned by the Lender.
This Note shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to instruments made and to be performed
wholly within that state. If any provision of this Note is held to be illegal
or unenforceable for any reason whatsoever, such illegality or unenforceability
shall not affect the validity of any other provision hereof.
EACH OF THE LENDER AND THE COMPANY AGREES THAT ANY ACTION, SUIT OR
PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS NOTE MAY BE INITIATED AND
PROSECUTED IN THE STATE OR FEDERAL COURTS, AS THE CASE MAY BE, LOCATED IN THE
STATE OF DELAWARE. EACH OF THE LENDER AND THE COMPANY CONSENTS TO AND SUBMITS TO
THE EXERCISE OF JURISDICTION OVER ITS PERSON BY ANY SUCH COURT HAVING
JURISDICTION OVER THE SUBJECT MATTER, WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
REGISTERED MAIL DIRECTED TO THE LENDER AT ITS ADDRESS SET FORTH ABOVE, AND TO
THE COMPANY AT ITS ADDRESS SET FORTH BELOW OR TO ANY OTHER ADDRESS AS MAY APPEAR
IN THE LENDER'S RECORDS AS THE ADDRESS OF THE COMPANY.
IN ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS
NOTE, EACH OF THE LENDER AND THE COMPANY WAIVES (I) TRIAL BY JURY, (II) ANY
OBJECTION BASED ON FORUM NON CONVENIENS OR VENUE AND (III) ANY CLAIM FOR
CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES.
The Lender is authorized to fill in any blank spaces and to otherwise
complete this Note and correct any patent errors herein.
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IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed by its proper corporate officers thereunto duly authorized.
SHARED TECHNOLOGIES FAIRCHILD INC.
By:
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Name:
Title:
100 Great Meadow Road, Suite 104
Wethersfield, CT 06109