EXHIBIT 99.2
IPC ACQUISITION CORP.
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
This FIRST AMENDMENT, dated as of February 28, 2003 (this "AMENDMENT"), to
the Credit and Guaranty Agreement, dated as of December 20, 2001 (as it may be
amended from time to time, the "CREDIT AGREEMENT"), entered into by and among
IPC ACQUISITION CORP., a Delaware corporation ("COMPANY"), CERTAIN SUBSIDIARIES
OF COMPANY, as Guarantors, the Lenders party thereto from time to time, XXXXXXX
XXXXX CREDIT PARTNERS L.P. ("GSCP"), as sole Lead Arranger, and as Syndication
Agent (in such capacities, "SYNDICATION AGENT"), THE BANK OF NOVA SCOTIA
("BNS"), as Administrative Agent (together with its permitted successors in such
capacity, "ADMINISTRATIVE AGENT") and as Collateral Agent (together with its
permitted successor in such capacity, "COLLATERAL AGENT"), and GENERAL ELECTRIC
CAPITAL CORPORATION ("GE CAPITAL"), as Documentation Agent (in such capacity,
"DOCUMENTATION Agent"). Capitalized terms used herein not otherwise defined
herein or otherwise amended hereby shall have the meanings ascribed thereto in
the Credit Agreement.
RECITALS:
WHEREAS, Company and the Lenders have agreed to amend the Credit
Agreement, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS.
A. Section 1.1 of the Credit Agreement is hereby amended by adding
the following definitions:
"FIRST AMENDMENT " means the amendment to this Agreement dated
as of February 28, 2003.
"FIRST AMENDMENT EFFECTIVE DATE" means the date on or prior to
March 3, 2003 upon which all the conditions precedent set forth in Section
2 of the First Amendment are satisfied.
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT 1
"GAINS" means collectively, either (i) Gains International
Asia Holdings Limited ("GAINS ASIA"), Gains International (Europe) Limited
("GAINS UK"), Gains International (US) Inc. ("GAINS US") and their
respective subsidiaries or (ii) entities whose sole assets include the
shares of Gains Asia, Gains UK and Gains US and their respective
subsidiaries, as applicable.
"GAINS ACQUISITION" means the acquisition, on or prior to
December 31, 2005, of all or substantially all of the shares or assets of
Gains by the Company for an aggregate consideration amount not to exceed
L16,600,000 (including the assumption of L1,200,000 aggregate principal
amount of existing Indebtedness of Gains) (the "CONSIDERATION AMOUNT");
provided, that Sponsor shall contribute at least L6,000,000 towards the
Consideration Amount.
"GAINS LOAN" means the loan from IPC to Gains, made upon the
close of the transaction contemplated by the Share Purchase Agreement,
dated as of January 22, 2003, among Gains Acquisition Corp., Gains Asia
Acquisition Corp. and Gains International Infocom Holdings BV, in an
aggregate principal amount not to exceed $5,500,000.
B. Section 1.1 of the Credit Agreement is hereby amended by deleting
the definitions of "CONSOLIDATED ADJUSTED EBITDA", "CONSOLIDATED EXCESS CASH
FLOW", "INDEBTEDNESS", "LETTER OF CREDIT SUBLIMIT" and "RESTRICTED JUNIOR
PAYMENT" in their entirety and substituting therefore the following:
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, an
amount determined for Company and its Subsidiaries on a consolidated basis
equal to (i) the sum, without duplication, of the amounts for such period
of (a) Consolidated Net Income, (b) Consolidated Interest Expense, (c)
provisions for taxes based on income, (d) total depreciation expense, (e)
total amortization expense, (f) to the extent deducted in calculating
Consolidated Net Income, fees and expenses incurred by Company and its
Subsidiaries in connection with the First Amendment in an aggregate amount
not to exceed $500,000, and (g) other non-Cash items reducing Consolidated
Net Income (including write-offs of debt discounts and debt issuance costs
and commissions but excluding any such non-Cash item to the extent that it
represents an accrual or reserve for potential Cash items during the full
term that the Obligations are outstanding), minus (ii) other non-Cash
items increasing Consolidated Net Income for such period (excluding any
such non-Cash item to the extent it represents the reversal of an accrual
or reserve for potential Cash item in any prior period); provided that the
foregoing shall be subject to adjustments as described in Schedule 1.1(b).
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an
amount (if positive) equal to: (i) the sum, without duplication, of the
amounts for such period of (a) Consolidated Adjusted EBITDA, plus (b) the
Consolidated Working Capital Adjustment, minus (ii) the sum, without
duplication, of the amounts for such period of (a) scheduled repayments of
Consolidated Total Debt, (b) Consolidated Capital Expenditures paid in
Cash ((i) net of any proceeds of any related financings with respect to
such expenditures
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT 2
and (ii) minus any expenditures constituting consideration paid with
respect to (A) Permitted Acquisitions (other than with respect to
Permitted Acquisitions set forth on Schedule 6.9(e)) or permitted
Investments and (B) the Consideration Amount paid by Company and its
Subsidiaries in connection with the Gains Acquisition), (c) Consolidated
Cash Interest Expense, and (d) provisions for current taxes based on
income of Company and its Subsidiaries and payable in cash with respect to
such period.
"INDEBTEDNESS", as applied to any Person, means, without
duplication, (i) all indebtedness for borrowed money; (ii) that portion of
obligations with respect to Capital Leases that is properly classified as
a liability on a balance sheet in conformity with GAAP; (iii) notes
payable and drafts accepted representing extensions of credit whether or
not representing obligations for borrowed money; (iv) any obligation owed
for all or any part of the deferred purchase price of property or services
(excluding any such obligations incurred under ordinary course trade
payables and other accrued expenses in the ordinary course of such
Person's business), which purchase price is (a) due more than six months
from the date of incurrence of the obligation in respect thereof or (b)
evidenced by a note or similar written instrument; (v) all indebtedness
secured by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person;
(vi) the face amount of any letter of credit issued for the account of
that Person or as to which that Person is otherwise liable for
reimbursement of drawings; (vii) the direct or indirect guaranty,
endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another; (viii) any
obligation of such Person the primary purpose or intent of which is to
provide assurance to an obligee that the obligation of the obligor thereof
will be paid or discharged, or any agreement relating thereto will be
complied with, or the holders thereof will be protected (in whole or in
part) against loss in respect thereof; (ix) any liability of such Person
for the obligation of another through any agreement (contingent or
otherwise) (a) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the payment
or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise) or (b) to maintain
the solvency or any balance sheet item, level of income or financial
condition of another if, in the case of any agreement described under
subclauses (a) or (b) of this clause (ix), the primary purpose or intent
thereof is as described in clause (viii) above; and (x) obligations of
such Person in respect of any exchange traded or over the counter
derivative transaction, including, without limitation, any Interest Rate
Agreement and Currency Agreement, whether entered into for hedging or
speculative purposes; provided, that obligations under (a) any Interest
Rate Agreement and any Currency Agreement shall not be "Indebtedness" for
any purpose under Section 6.8; (b) any Existing Guaranty Obligations to
the extent an amount of Cash and/or Cash Equivalents equal to such
Existing Guaranty Obligations representing a portion of the cash
consideration payable under the Purchase Agreement has not been paid to
the Sellers and is maintained in the Holdback Account (as defined in the
Purchase Agreement) shall not be "Indebtedness" for any purpose: (c) any
earn-out or similar obligation (the "EARN-OUT OBLIGATIONS")
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT 3
incurred by the Company and its Subsidiaries with respect to (i) the Gains
Acquisition in an amount not to exceed L6,400,000 and (ii) any other
Permitted Acquisitions in an amount not to exceed $10,000,000 that are
funded by that portion of Consolidated Excess Cash Flow which is
attributable to the business acquired in connection with such Earn-Out
Obligations, in each case shall not be "Indebtedness" for any purpose; and
(d) deferred employee compensation obligations as described on Schedule
6.1, in each case shall not be "Indebtedness" for any purpose under
Section 6.8.
"LETTER OF CREDIT SUBLIMIT" means the lesser of (i)
$10,000,000 and (ii) the aggregate unused amount of the Revolving
Commitments then in effect.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
stock of Company now or hereafter outstanding, except a dividend or other
distribution payable solely in shares of Capital Stock; (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of
stock of Company now or hereafter outstanding; (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options
or other rights to acquire shares of any class of stock of Company now or
hereafter outstanding; (iv) management or similar fees payable to Sponsor
or any of its Affiliates (other than the provision of services by IPC and
its Subsidiaries and the payment of management and other fees by Gains
pursuant to that certain Management and Co-Marketing Agreement dated as of
January 22, 2003 among Gains US, Gains UK and IPC); (v) any payments or
prepayments with respect to Earn-Out Obligations incurred by the Company
and its Subsidiaries; and (vi) any payment or prepayment of principal of,
premium, if any, or interest on, or redemption, purchase, retirement,
defeasance (including in-substance or legal defeasance), sinking fund or
similar payment with respect to the Senior Subordinated Notes and any
other subordinated Indebtedness permitted hereunder.
1.2 AMENDMENTS TO SECTION 2: MANDATORY PREPAYMENTS
Section 2.12 of the Credit Agreement is hereby amended by deleting
paragraph (e) in its entirety and replacing it with the following:
"(e) Consolidated Excess Cash Flow. In the event that there
shall be Consolidated Excess Cash Flow after the Closing Date for any
Fiscal Year, Company shall, no later than ninety (90) days after the end
of such Fiscal Year, prepay the Loans and/or the Revolving Commitments
shall be permanently reduced as set forth in Section 2.13(b) in an
aggregate amount equal to (i) 75% of such Consolidated Excess Cash Flow
for such Fiscal Year minus, (ii) any voluntary repayments of Consolidated
Total Debt made during such Fiscal Year (excluding (A) repayments of
Revolving Loans except to the extent the Revolving Commitments are
permanently reduced in connection with such repayments and (B) repurchases
of Term Loans made pursuant to Section 2.11(c))."
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT 4
1.3 AMENDMENTS TO SECTION 5: AFFIRMATIVE COVENANTS
Section 5.1 is hereby amended by deleting paragraph (i) in its
entirety and replacing it with the following:
"(i) Financial Plan. As soon as practicable and in any event
no later than thirty (30) days prior to the beginning of each Fiscal Year,
a consolidated plan and financial forecast for such Fiscal Year and the
next three succeeding Fiscal Years (a "FINANCIAL PLAN"), including a
forecasted consolidated balance sheet and forecasted consolidated
statements of income and cash flows of Company and its Subsidiaries for
each such Fiscal Year, together with pro forma Compliance Certificates for
each such Fiscal Year and an explanation of the assumptions on which such
forecasts are based and forecasted consolidated statements of income and
cash flows of Company and its Subsidiaries for (y) each month for the
first such Fiscal Year and (z) each Fiscal Quarter for the next three
succeeding Fiscal Years, together with an explanation of the assumptions
on which such forecasts are based; provided that the Company shall not
provide such Financial Plan and pro forma Compliance Certificates to any
Lender which has requested that such materials not be provided to it."
1.4 AMENDMENTS TO SECTION 6: NEGATIVE COVENANTS
A. Section 6.1(d) is hereby amended by deleting such section in its
entirety and replacing it with the following:
"(d) Indebtedness incurred by Company or any of its
Subsidiaries arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations, or from guaranties or
letters of credit, surety bonds or performance bonds securing the
performance of Company or any such Subsidiary pursuant to such agreements,
in connection with Permitted Acquisitions, the Gains Acquisition or
permitted dispositions of any business, assets or Subsidiary of Company or
any of its Subsidiaries;"
B. Section 6.1(l) is hereby amended by deleting such section in its
entirety and replacing it with the following:
"(l) Indebtedness of any Foreign Subsidiary to Company or to
any other Subsidiary, or of Company to any Foreign Subsidiary; provided,
(i) all such Indebtedness shall be evidenced by promissory notes and all
such notes shall be subject to a First Priority Lien pursuant to the
Pledge and Security Agreement, (ii) all such Indebtedness shall be
unsecured and subordinated in right of payment to the payment in full of
the Obligations pursuant to the terms of the applicable promissory notes
or an intercompany subordination agreement that in any such case, is
reasonably satisfactory to Administrative Agent, (iii) any payment by any
such Foreign Subsidiary under any guaranty of the Obligations shall result
in a pro tanto reduction of the amount of any Indebtedness owed by such
Subsidiary to Company or to any of its Subsidiaries for
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT 5
whose benefit such payment is made and (iv) the aggregate principal amount
of (y) such Indebtedness of any Foreign Subsidiary to Company or to any
other Subsidiary, together with the amount of equity Investments made
pursuant to Section 6.7(h), shall not exceed at any time $30,000,000 in
the aggregate for all such Subsidiaries and (z) such Indebtedness of
Company to any Foreign Subsidiary shall not exceed at any time $30,000,000
in the aggregate;"
C. Section 6.1 is hereby further amended by deleting the "." at the
end of paragraph (n), and replacing it with "; and", and inserting the following
paragraph (o) at the conclusion thereof as follows:
"(o) any Indebtedness of Gains and/or its Subsidiaries
existing on the date of the Gains Acquisition in an aggregate principal
amount not to exceed L1,200,000, and any renewals, refinancings,
replacements and extensions of any such Indebtedness if the terms and
conditions thereof are not less favorable to the obligor thereon or to the
Lenders than the Indebtedness being refinanced or extended, and the
average life to maturity thereof is greater than or equal to that of the
Indebtedness being refinanced or extended; provided, such refinancings,
replacements or extensions of Indebtedness permitted under this clause (o)
shall not (A) include Indebtedness of an obligor that was not an obligor
with respect to the Indebtedness being extended, renewed, replaced or
refinanced, (B) exceed the principal amount of the Indebtedness being
renewed, replaced or refinanced or (C) be incurred, created or assumed if
any Default or Event of Default has occurred and is continuing or would
result therefrom; provided, that notwithstanding any of the foregoing to
the contrary, any Indebtedness incurred by Company and its Subsidiaries
pursuant to this Section 6.1(o) shall not be considered Indebtedness
incurred pursuant to Sections 6.1(b) and 6.1(l)."
D. Section 6.2 is hereby amended by deleting paragraph (m) in its
entirety and replacing it with the following:
"(m) Liens securing such Indebtedness permitted pursuant to
Sections 6.1(f), (j), (k), (n) or (o); provided, any such Lien shall
encumber only the asset leased or acquired with the proceeds of such
Indebtedness; and"
E. Section 6.5 is hereby amended by deleting such section in its
entirety and replacing it with the following:
"6.5 RESTRICTED JUNIOR PAYMENTS. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, directly or indirectly, declare, order,
pay, make or set apart, or agree to declare, order, pay, make or set
apart, any sum for any Restricted Junior Payment (or enter into an
agreement with respect to the foregoing) except (a) Company may make
regularly scheduled payments of interest (including Special Interest (as
defined in the Senior Subordinated Note Indenture)) in respect of the
Senior Subordinated Notes in accordance with the terms of, and only to the
extent required by, and subject to the subordination provisions contained
in, the Senior Subordinated Note Indenture, as such indenture may be
amended from time to time to the extent permitted under Section
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT 6
6.16; (b) any Subsidiary may make payments with respect to its issued and
outstanding capital stock; (c) Company may make Restricted Junior Payments
in connection with redemptions of Capital Stock permitted pursuant to
Section 6.12(e); (d) any extensions, renewals, refinancings or
replacements of the Senior Subordinated Notes permitted pursuant to
Section 6.1(c) and (e) so long as no Default or Event of Default shall
have occurred and be continuing or shall be caused thereby, Company and
its Subsidiaries may make Restricted Junior Payments with respect to
Earn-Out Obligations described in clause (c) of the definition of
Indebtedness and pay any fees and expenses paid or payable by Company and
its Subsidiaries in connection with the Gains Acquisition."
F. Section 6.7 is hereby amended by deleting paragraph (f) and
replacing it with the following:
"(f) Investments made in connection with (x) Permitted
Acquisitions pursuant to Section 6.9, (y) the Gains Acquisition and the
Gains Loan and (z) Hedging Agreements;"
G. Section 6.7(h) is hereby amended by deleting such section in its
entirety and replacing it with the following:
"(h) equity Investments made after the Closing Date in those Foreign
Subsidiaries that Company has at least a 51% ownership interest in, which
together with Indebtedness permitted pursuant to Section 6.1(l) does not
exceed at any time $30,000,000 in the aggregate plus the amount of cash
dividends or other returns received by the Credit Parties from such
Investments not in excess of the amount of the original amount of such
Investments;"
H. Section 6.8 is hereby amended by deleting paragraph (a) in its
entirety and replacing it with the following:
"(a) Senior Secured Leverage Ratio. Company shall not permit
the Senior Leverage Ratio as of the last day of any Fiscal Quarter to
exceed the correlative ratio indicated:
SENIOR SECURED
LEVERAGE
FISCAL QUARTER RATIO
-------------- --------------
First Amendment
Effective Date
through June 30, 2005 1.50:1.00
July 1, 2005 through
March 31, 2006 1.25:1.00
April 1, 2006 and
Thereafter 1.00:1.00"
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT 7
I. Section 6.8 is hereby further amended by deleting paragraph (b)
in its entirety and replacing it with the following:
"(b) Total Leverage Ratio. Company shall not permit the Total
Leverage Ratio as of the last day of any Fiscal Quarter to exceed the
correlative ratio indicated:
TOTAL LEVERAGE
FISCAL QUARTER RATIO
-------------- --------------
First Amendment
Effective Date
through
March 31, 2003 3.90:1.00
April, 2003
through 4.00:1.00
June 30, 2003
July 1, 2003
through 3.90:1.00
December 31, 2003
January 1, 2004
through 3.75:1.00
September 30, 2004
October 1, 2004
through
June 30, 2005 3.50:1.00
July 1, 2005
through
March 31, 2006 3.25:1.00
April 1, 2006
and Thereafter 3.00:1.00"
J. Section 6.8 is hereby further amended by deleting paragraph (c)
in its entirety and replacing it with the following:
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT 8
"(c) Interest Coverage Ratio. Company shall not permit the
Interest Coverage Ratio as of the last day of any Fiscal Quarter to be
less than the correlative ratio indicated:
INTEREST
FISCAL QUARTER COVERAGE RATIO
-------------- --------------
First Amendment
Effective Date
through
March 31, 2003 2.40:1.00
April 1, 2003
through
June 30, 2003 2.25:1.00
July 1, 2003
through
December 31, 2003 2.40:1.00
January 1, 2004
through
September 30, 2004 2.50:1.00
October 1, 2004
through
March 31, 2005 2.75:1.00
April 1, 2005
and Thereafter 3.00:1.00"
K. Section 6.8 is hereby further amended by deleting paragraph (e)
in its entirety and replacing it with the following:
"(e) Maximum Consolidated Capital Expenditures. Company shall
not, and shall not permit its Subsidiaries to, make or incur Consolidated
Capital Expenditures (excluding for the purposes of this subsection 6.8(e)
any capital expenditures constituting consideration with respect to
Permitted Acquisitions and the Gains Acquisition), in any Fiscal Year, in
an aggregate amount for Company and its Subsidiaries in excess of
$8,000,000 with respect to Fiscal Year 2003 and in excess of $12,000,000
in any Fiscal Year thereafter; provided, that 50% of any unutilized amount
for any Fiscal Year may be utilized in the next succeeding Fiscal Year,
but in no event shall any amount from any Fiscal Year prior to the
immediately preceding Fiscal Year be utilized in the calculation of the
foregoing."
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT 9
L. Section 6.9 is hereby amended by deleting the "and" at the end of
paragraph (e), replacing the "." at the end of paragraph (f) with "; and", and
inserting the following paragraph (g):
"(g) the Gains Acquisition; provided that following the
consummation of the Gains Acquisition, Company shall take all of the
actions required to be taken by Section 5.10 in accordance with the
provisions thereof."
SECTION 2. CONDITIONS PRECEDENT TO EFFECTIVENESS
2.1 The effectiveness of the amendments set forth at Section 1
hereof are subject to the satisfaction, or waiver, of the following conditions
on or before the date hereof:
A. The Company and the Requisite Lenders shall have indicated their
consent by the execution and delivery of the signature pages to the Agent.
B. The Company shall have paid at least $14,140,000 to the
Administrative Agent for distribution to the Term Loan Lenders which consists of
(i) a voluntary prepayment of Term Loans equal to $14,000,000, plus (ii) the
prepayment premium of 1.0% pursuant to Section 2.13(d) of the Credit Agreement.
C. Administrative Agent shall have received, for distribution to all
Term Loan Lenders executing this Amendment on or prior to 5:00 p.m. (New York
City time) on February 28, 2003, an amendment fee equal to 0.125% of such
Lenders' outstanding Term Loans immediately prior to the First Amendment
Effective Date and after taking into effect the principal payment contemplated
by Section 2.1B above.
D. The Administrative Agent shall have received a favorable written
opinion of Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Credit
Parties, in form and substance satisfactory to the Administrative Agent.
E. Company shall have paid all fees and other amounts due and
payable on or prior to the First Amendment Effective Date, including, to the
extent invoiced, reimbursement or other payment of all out-of-pocket expenses
required to be reimbursed or paid by the Company hereunder or under any other
Credit Document.
F. As of the First Amendment Effective Date, after giving effect to
this Amendment, the representations and warranties contained herein and in the
other Credit Documents shall be true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and complete in all
material respects on and as of such earlier date.
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT 10
G. As of the First Amendment Effective Date, no event shall have
occurred and be continuing that would constitute an Event of Default or a
Default.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce Requisite Lenders to enter into this Amendment,
each applicable Credit Party represents and warrants to each Lender, as of the
date hereof and upon giving effect to this Amendment, that the representations
and warranties contained in each of the Credit Documents are true, correct and
complete in all material respects on and as of the date hereof to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true, correct and
complete in all material respects on and as of such earlier date.
SECTION 4. ACKNOWLEDGMENT AND CONSENT
4.1 Each of Domestic Subsidiaries of Company has (i) guaranteed the
Obligations and (ii) created Liens in favor of Lenders on certain Collateral to
secure its obligations under Section 7 of the Credit Agreement. The Domestic
Subsidiaries are collectively referred to herein as the "CREDIT SUPPORT
PARTIES", and the Credit Agreement, the Pledge and Security Agreement, dated as
of December 20, 2001, between the Company, each of the grantors party thereto
and the Bank of Nova Scotia., as Collateral Agent (as such may be amended,
supplemented or modified) (the "PLEDGE AND SECURITY AGREEMENT") are collectively
referred to herein as the "CREDIT SUPPORT DOCUMENTS".
4.2 Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Amendment. Each Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all Collateral encumbered
thereby will continue to guarantee or secure, as the case may be, to the fullest
extent possible in accordance with the Credit Support Documents, the payment and
performance of all Guaranteed Obligations under the Credit Agreement and the
Secured Obligations (as such term is defined in the Pledge and Security
Agreement) under the Pledge and Security Agreement, as the case may be,
including without limitation the payment and performance of all such Guaranteed
Obligations under the Credit Agreement and the Secured Obligations under the
Pledge and Security Agreement in respect of the Obligations of Company now or
hereafter existing under or in respect of the Credit Agreement, as amended
hereby, and grants to the Collateral Agent a continuing lien on and security
interest in and to all Collateral as collateral security for the prompt payment
and performance in full when due of the Guaranteed Obligations under the Credit
Agreement and the Secured Obligations under the Pledge and Security Agreement
(whether at stated maturity, by acceleration or otherwise).
4.3 Each Credit Support Party acknowledges and agrees that any of
the Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT 11
impaired or limited by the execution or effectiveness of this Amendment. Each
Credit Support Party represents and warrants that all representations and
warranties contained in the Credit Agreement, as amended hereby, and the Credit
Support Documents to which it is a party or otherwise bound are true, correct
and complete in all material respects on and as of the First Amendment Effective
Date to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
4.4 Each Credit Support Party acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Credit Support Party is not required by the terms of the Credit Agreement
or any other Credit Document to consent to the amendments to the Credit
Agreement effected pursuant to this Amendment and (ii) nothing in the Credit
Agreement, this Amendment or any other Credit Document shall be deemed to
require the consent of such Credit Support Party to any future amendments to the
Credit Agreement.
SECTION 5. MISCELLANEOUS
5.1 This Amendment shall be binding upon the parties hereto and the
Lenders and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of Lenders. No
Credit Party's rights or obligations hereunder or any interest therein may be
assigned or delegated by any Credit Party without the prior written consent of
all Lenders.
5.2 In case any provision in or obligation hereunder shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
5.3 On and after the First Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other Credit Documents to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended by this Amendment.
5.4 Except as specifically amended by this Amendment, the Credit
Agreement and the other Credit Documents shall remain in full force and effect
and are hereby ratified and confirmed.
5.5 The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any provision
of, or operate as a waiver of any right, power or remedy of any Agent or Lender
under, the Credit Agreement or any of the other Credit Documents.
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT 12
5.6 Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose or
be given any substantive effect.
5.7 THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
5.8 This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
As set forth herein, this Amendment shall become effective upon the execution of
a counterpart hereof by each of the parties hereto and receipt by Company,
Administrative Agents and Syndication Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
[The remainder of this page is intentionally left blank.]
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT 13
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: IPC ACQUISITION CORP.
By: /s/ XXXXXXX XXXXXX
----------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer
CREDIT SUPPORT PARTIES:
IPC INFORMATION SYSTEMS, INC.
By: /s/ XXXXXXX XXXXXX
----------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer
IPC FUNDING CORP.
By: /s/ XXXXXXX XXXXXX
----------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer
V BAND CORPORATION
By: /s/ XXXXXXX XXXXXX
----------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer
IPC INFORMATION SYSTEMS FAR EAST INC.
By: /s/ XXXXXXX XXXXXX
----------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT S-1
XXXXXXX XXXXX CREDIT PARTNERS L.P.
as Sole Lead Arranger and Syndication Agent
By: /s/ XXXXXX XXXXXXXXX
----------------------
Authorized Signatory
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT S-2
THE BANK OF NOVA SCOTIA,
as Administrative Agent, Collateral Agent,
Issuing Bank and a Lender
By: /s/ XXXX X. XXXXXX
----------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT S-3
GENERAL ELECTRIC CAPITAL CORPORATION,
as Documentation Agent and a Lender
By: /s/ XXXXXXX X. XXX
----------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT S-4
