EXHIBIT 10.2
FIRST AMENDMENT TO
CREDIT AGREEMENT
The parties to this First Amendment to Credit Agreement, dated as of February
21, 1997, are UNIFI Communications, Inc. (formerly "Fax International, Inc.," a
Delaware corporation (the "Borrower"), and SingTel (Netherlands Antilles) Pte
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N.V., a Netherlands Antilles corporation having its registered office at
Xxxxxxxxxx 00 Xxxxxxxxxx, Xxxxxxx, Xxxxxxxxxxx Antilles ("SingTel N.V.").
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The parties are parties to a Credit Agreement (the "Agreement") dated as of
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April 10, 1995, and desire to amend the Agreement in the manner set forth
herein. The parties accordingly agree as follows.
1. The definitions of the terms "Conversion Shares", "Series H Preferred
Stock" and "Series H Shares" in (S)1 of the Agreement are hereby deleted in
their entirety.
2. The definitions of the terms "Expiration Date" and "Final Maturity
Date" in (S)1 of the Agreement are hereby amended to read in their entirety as
follows:
Expiration Date: February 20, 1997
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Final Maturity Date: The later to occur of (a) March 1, 2005 or (b)
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the Senior Note Payment Date; provided, that if the Senior Note
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Payment Date is prior to March 1, 2005, the Final Maturity Date
shall be the date that is ninety one (91) days after the Senior
Note Payment Date.
3. The definition of the term "Margin" in (S)1 of the Agreement is hereby
amended to read in its entirety as follows:
Margin: One percent (1%) per annum for the period commencing April
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10, 1995 and ending February 20, 1997, and three percent (3%) per
annum for the period commencing February 21, 1997.
4. Definitions of new terms "Offering Memorandum", "Senior Note Payment
Date" and "Senior Notes" are hereby inserted in alphabetical order into (S)1 of
the Agreement, such definitions to read in their entirety as follows:
Offering Memorandum: The Confidential Offering Memorandum of the
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Borrower dated February 14, 1997 relating to 175,000 Units Consisting
of the Senior Notes and Warrants to purchase 4,816,818 shares of
Common Stock of the Borrower.
Senior Note Payment Date: The earlier of the date on which (i) the
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aggregate outstanding principal amount of the Senior Notes is reduced
to zero ($0), (ii) on which the Senior Notes have been defeased,
redeemed or repurchased in whole by the Borrower or any of its
subsidiaries, or (iii) on which the Borrower's obligations in respect
of the Senior Notes are otherwise deemed to have been satisfied in
full.
Senior Notes: US$175,000,000 in 14% Senior Notes due 2004 of the
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Borrower issued pursuant to the Indenture dated as of February 21,
1997 between the Borrower and Fleet National Bank, as trustee (the
"Trustee") and any notes exchanged therefor in a registered exchange
offering for such notes, and any amendments to any such notes,
including without limitation amendments to extend the maturity
thereof; provided, that any such amendments shall apply to the entire
principal amount (but not less than the entire principal amount) of
such notes originally issued.
5. (S)2.2 of the Agreement is hereby amended by modifying the second
sentence thereof to read in its entirety as follows:
Until the Senior Note Payment Date, interest on each Loan shall be
added to the principal amount of the Loan (without current payment),
in arrears quarterly on each March 31, June 30, September 30, and
December 31 and on such date (provided, that such interest added to
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principal shall not be counted toward determining whether the Borrower
has reached the Borrowing Limit).
6. The third sentence of (S)2.3 of the Agreement is hereby amended to
read in its entirety as follows:
The Borrower may elect at any time and from time to time to prepay the
outstanding principal of all or any part of any Loan, without premium
or penalty, in a minimum amount of U.S.$500,000 and in an integral
multiple (taking into account for this purpose only the original
principal amount of such Loan, and not any interest added to principal
under (S)2.2) thereof.
7. (S)2.4 of the Agreement is hereby amended to read in its entirety as
follows:
(S)2.4 Status of Indebtedness. The obligation of the Borrower to pay
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principal, interest, and any other sums payable under the Loan
Documents will rank at least pari passu with all other unsecured
senior indebtedness in respect of borrowed money of the Borrower other
than the Senior Notes, but shall be subordinated to the Senior Notes
as and in the manner set forth on Annex C attached hereto and
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incorporated herein by reference.
8. (S)3 of the Agreement is hereby deleted in its entirety.
9. (S)7.2(b) of the Agreement is hereby deleted in its entirety.
10. (S)8(e) of the Agreement is hereby amended by inserting the following
after the words "Series G Convertible Preferred Stock Purchase Agreement dated
as of the date hereof":
as amended by (i) a letter agreement dated February 5, 1997, and (ii)
a Second Amendment to Series G Convertible Preferred Stock Purchase
Agreement dated as of February 21, 1997.
11. (S)8(1) of the Agreement is hereby amended to read in its entirety as
follows:
the Borrower or any of its Subsidiaries shall be unable to pay its
debts, other than Senior Indebtedness (as that term is defined in
Annex C attached hereto), as they mature;
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12. Annex A to the Agreement is hereby amended to read in its entirety as
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set forth in Annex A attached hereto.
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13. Annex B to the Agreement is hereby deleted in its entirety.
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14. A new Annex C is hereby attached to the Agreement, such Annex C to
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read in its entirety as set forth in Annex C attached hereto.
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15. Except as amended hereby, the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, this First Amendment to Credit Agreement has been
executed by the parties hereto as of the date first set forth above.
UNIFI COMMUNICATIONS, INC. SINGTEL (NETHERLANDS ANTILLES) PTE
N.V.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Chua-Lo Xxx Kew
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Name: Xxxxx Xxxxxxxx Name:
Title: Vice President of Finance Title:
Annex C
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"Indenture" means the Indenture dated as of February 21, 1997, between the
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Borrower and Fleet National Bank, as trustee (the "Trustee").
"Senior Indebtedness" means the Senior Notes (including without limitation
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any amendments thereto and any extensions thereof, but excluding any extensions
applied other than on a pro rata basis with respect to the entire original
principal amount of the Senior Notes), all principal, accreted value, interest
or premium, if any, thereon, all charges, fees and expenses in connection
therewith, and all interest accruing thereon during the pendency of any
bankruptcy or insolvency proceeding, whether or not allowed thereunder.
"Subordinated Indebtedness" means all Loans, interest, and premium, if any,
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thereon and any other sums payable by the Borrower under the Loan Documents.
1. Payment Over of Proceeds upon Dissolution, etc.
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In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relating to the Borrower or any of its subsidiaries or its
or their respective assets, or (b) any liquidation, dissolution or other
winding-up of the Borrower, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshalling of assets or liabilities of the Borrower or
any of its subsidiaries, then and in any such event:
(i) the holders of Senior Indebtedness shall be entitled to receive
payment in full in cash of all Senior Indebtedness, or provision
satisfactory to the holders of Senior Indebtedness shall be made for such
payment, before the holders of the Subordinated Indebtedness are entitled
to receive directly or indirectly any payment or distribution of any kind
or character on account of principal of, premium, if any, or interest on,
or any other amounts in respect of, the Subordinated Indebtedness; and
(ii) any payment or distribution of assets of the Borrower or its
subsidiaries of any kind or character, whether in cash, property or
securities, by set-off or otherwise, to which the holders of the
Subordinated Indebtedness would be entitled but for these provisions shall
be paid by the liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or the Trustee or Representatives or to the trustee under any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full in
cash or, as acceptable to the holders of Senior lndebtedness, in any other
manner, of all Senior Indebtedness remaining unpaid, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness; and
(iii) in the event that, notwithstanding the foregoing provisions,
any holder of any Subordinated Indebtedness shall have received any payment
or distribution of assets of the Borrower or any of its subsidiaries of any
kind or character, whether in cash, property or securities, in respect of
principal of, premium, if any, or interest on, or any other amounts in
respect of, the Subordinated Indebtedness before all Senior Indebtedness is
paid in full in cash or, as acceptable to the holders of Senior
Indebtedness, in any other manner, then and in such
event such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other person making payment or distribution
of assets of the Borrower or any of its subsidiaries for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full in cash or, as acceptable
to the holders of Senior Indebtedness, in any other manner, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
The consolidation of the Borrower with, or the merger of the Borrower into,
another person or the liquidation or dissolution of the Borrower following the
conveyance or transfer of its properties and assets substantially as an entirety
to another person shall not be deemed a liquidation, dissolution, winding-up,
reorganization, assignment for the benefit of creditors, or marshalling of
assets and liabilities of the Borrower for the purposes of this Section;
provided that the applicable terms of the Indenture with respect to the
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applicable transaction have been complied with in full.
2. Suspension of Payment When Senior Indebtedness in Default.
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(i) Upon the occurrence of a default in the payment when due (after
giving effect to any grace period) of principal, premium, if any, or
interest on, or any other amounts in respect of, any Senior Indebtedness (a
"Payment Default"), no payment or distribution of any assets of the
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Borrower or any of its subsidiaries of any kind or character shall be made
by or on behalf of the Borrower on account of principal of, premium, if
any, or interest on, or any other amounts in respect of, the Subordinated
Indebtedness or on account of the purchase, redemption or other acquisition
of any Subordinated Indebtedness unless and until such Payment Default
shall have been cured or waived or shall have ceased to exist or such
Senior Indebtedness as to which such Payment Default relates shall have
been discharged or paid in full in cash, after which the Borrower shall
resume making any and all required payments in respect of the Subordinated
Indebtedness, including any missed payments.
(ii) Upon the occurrence of a default (other than a Payment Default)
with respect to any term or provision of any Senior Indebtedness (a "Non-
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Payment Default") and upon the earlier to occur of (a) the fifth day
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following receipt by the Borrower from a Trustee of written notice of such
occurrence (a "Payment Blockage Notice"), or (b) if such Non-Payment
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Default results from acceleration of the Subordinated Indebtedness, the
date of such acceleration, no payment or distribution of any assets of the
Borrower or any of its subsidiaries of any kind or character shall be made
by or on behalf of the Borrower on account of principal of, premium, if
any, or interest on, or any other amounts in respect of, the Subordinated
Indebtedness or on account of the purchase, redemption or other acquisition
of Subordinated Indebtedness for a period ("Payment Blockage Period")
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commencing on the date of receipt by the Borrower of such notice or the
date of acceleration referred to above, as the case may be, unless and
until the earliest to occur of the following events: (x) such non-payment
default shall have been cured or waived or shall have ceased to exist, (y)
such Senior Indebtedness shall have been discharged or paid in full in cash
or (z) such Payment Blockage Period shall have been terminated by written
notice to the Borrower from the Trustee initiating such Payment Blockage
Period, after which, in each case, the Borrower shall resume making any and
all required payments in respect of the Subordinated Indebtedness,
including any missed payments.
(iii) In the event that, notwithstanding the foregoing, any holder of
any Subordinated Indebtedness shall have received any payment prohibited by
the foregoing provisions of this Section 2, then and in such event such
payment shall be paid over and delivered forthwith to the
Trustee or as a court of competent jurisdiction shall direct for
application to the payment of any due and unpaid Senior Indebtedness, to
the extent necessary to pay all such due and unpaid Senior Indebtedness in
cash, after giving effect to any concurrent payment to or for the holders
of Senior Indebtedness.
3. Subrogation to Rights of Holders of Senior Indebtedness.
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Upon the payment in full in cash of all Senior Indebtedness, the holders of
the Subordinated Indebtedness shall be subrogated to the rights of the holders
of such Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest on the Subordinated Indebtedness
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness of any cash, property or
securities to which the holders of the Subordinated Indebtedness would be
entitled except for these provisions, and no payments over pursuant to these
provisions to the holders of Senior Indebtedness by holders of the Subordinated
Indebtedness shall, as among the Borrower, its creditors other than holders of
Senior Indebtedness, and the holders of the Subordinated Indebtedness, be deemed
to be a payment or distribution by the Borrower to or on account of the Senior
Indebtedness.
If any payment or distribution to which the holders of Subordinated
Indebtedness would otherwise have been entitled but for these provisions shall
have been applied, pursuant to these provisions, to the payment of all amounts
payable under the Senior Indebtedness of the Borrower, then and in such case the
holders of Subordinated Indebtedness shall be entitled to receive from the
holders of such Senior Indebtedness at the time outstanding any payments or
distributions received by such holders of such Senior Indebtedness in excess of
the amount sufficient to pay all amounts payable under or in respect of such
Senior Indebtedness in cash in full.
4. No Waiver of Subordination Provisions.
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(i) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Borrower or by any act or failure to act, in good faith, by any
such holder, or by any non-compliance by the Borrower with the terms,
provisions and covenants as described herein, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
(ii) Without limiting the generality of Section 4(i), the holders of
Senior Indebtedness may, at any time and from time to time, without the
consent of or notice to the holders of the Subordinated Indebtedness,
without incurring responsibility to the holders of the Subordinated
Indebtedness and without impairing or releasing the subordination provided
herein or the obligations hereunder of the holders of the Subordinated
Indebtedness to the holders of Senior Indebtedness, do any one or more of
the following: (a) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding, provided such change, extension, renewal or
alteration is applied on a pro rata basis with respect to the entire
original principal amount of the Senior Notes; (b) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (c) release any person liable in any manner
for the collection or payment of Senior Indebtedness; and (d) exercise or
refrain from exercising any rights against the Borrower and any other
person.
5. Provisions Solely Define Relative Rights. The provisions of this
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Annex C are and are intended solely for the purpose of defining the relative
rights of the holders of Subordinated Indebtedness on the one hand and the
holders of Senior Indebtedness on the other hand. Nothing contained in this
Annex C or elsewhere in the Loan Documents is intended to or shall (a) impair,
as among the Borrower, its creditors other than holders of Senior Indebtedness
and the holders of Subordinated Indebtedness, the obligation of the Company,
which ranks equally with all other general obligations of the Borrower, to pay
to the holders of Subordinated Indebtedness the principal of (and premium, if
any) and interest on Subordinated Indebtedness as and when the same shall become
due and payable in accordance with their terms; or (b) affect the relative
rights against the Borrower of the holders of Subordinated Indebtedness and
creditors of the Borrower other than the holders of Senior Indebtedness; or (c)
prevent the holder of any Subordinated Indebtedness from exercising all remedies
otherwise permitted by applicable law and the Loan Documents upon default under
the Loan Documents, including to accelerate the maturity of any Subordinated
Indebtedness.
6. Waiver and Amendment. The observance of any term or provision of this
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Annex C may be waived (either generally or in a particular instance, either
retroactively or prospectively, and either for a specified period of time or
indefinitely) only upon the written consent of holders of not less than fifty
one percent (51%) of the then outstanding principal amount of Senior
Indebtedness, and any term or provision of this Annex C may be amended only by a
writing signed by the Borrower, holders of not less than fifty one percent (51%)
of the then-outstanding principal amount of Senior Indebtedness, and holders of
not less than fifty one percent (51%) of the then-outstanding principal amount
of Subordinated Indebtedness; provided, that no such waiver or amendment shall
reduce the percentage of outstanding principal amount of Senior Indebtedness or
Subordinated Indebtedness the holders of which are required to consent to any
waiver or amendment without the consent of the holders of all of such
outstanding principal amount of such Senior Indebtedness or Subordinated
Indebtedness. Any waiver or amendment effected in accordance with this Section
shall be binding upon each holder of Senior Indebtedness or Subordinated
Indebtedness, each future holder of such securities, and the Borrower. Upon the
effectuation of each such waiver or amendment, the Company shall promptly give
written notice thereof to the record holders of the Senior Indebtedness and
Subordinated Indebtedness who have not previously consented thereto in writing.
