EXECUTION COPY
AMENDMENT AGREEMENT AND WAIVER
THIS AMENDMENT AGREEMENT AND WAIVER (this "Amendment"), dated as of April 13,
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2000, is by and among Access Worldwide Communications, Inc. (the "Borrower"),
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certain subsidiaries of the Borrower identified on the signature pages hereto
(the "Guarantors"), the lenders identified on the signature pages hereto (the
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"Lenders") and Bank of America, N.A., successor to NationsBank, N.A., as agent
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for the Lenders (in such capacity, the "Agent").
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W I T N E S S E T H
WHEREAS, the Borrower, the Guarantors, the Lenders and the Agent have entered
into that certain Credit Agreement dated as of March 12, 1999 (the "Credit
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Agreement");
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WHEREAS, as of the date hereof, the outstanding principal balance of the
Revolving Loans is $15,537,232.63, and the outstanding principal balance of the
Term Loan is $25,000,000.
WHEREAS, the Credit Parties have: (a) as of the fiscal quarters ended June 30,
1999, September 30, 1999 and December 31, 1999, respectively, exceeded the
maximum Consolidated Leverage Ratio allowed by Section 7.9(a) of the Credit
Agreement, (b) as of the fiscal quarters ended June 30, 1999, September 30, 1999
and December 31, 1999, respectively, exceeded the maximum Consolidated Senior
Leverage Ratio allowed by Section 7.9(d) of the Credit Agreement and (c) as of
the fiscal quarters ended September 30, 1999 and December 31, 1999,
respectively, failed to maintain the minimum Consolidated Fixed Charge Coverage
Ratio allowed under Section 7.9(b) of the Credit Agreement (collectively, the
"Acknowledged Events of Default");
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WHEREAS, the Borrower, the Guarantors, the Agent and the Lenders entered into
that certain Forbearance Agreement (the "Forbearance Agreement") dated as of
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September 28, 1999 wherein the Agent and the Lenders agreed to forbear from
exercising certain of their rights which arose from those Acknowledged Events of
Default that existed at the time of the Forbearance Agreement pursuant to the
terms and conditions of the Forbearance Agreement;
WHEREAS, the obligations of the Agent and the Lenders to forbear the exercise
of certain rights and remedies expired on October 22, 1999 pursuant to the terms
of the Forbearance Agreement; and
WHEREAS, the Credit Parties have asked the Lenders to waive the Acknowledged
Events of Default and to amend certain provisions of the Credit Agreement, and
the Lenders have agreed to do so, but only on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the agreements herein contained, the parties
hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Definitions. Unless otherwise defined herein, or the
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context otherwise requires, terms used in this Amendment, including its preamble
and recitals, have the meanings provided in the Credit Agreement.
PART II
AMENDMENTS AND AGREEMENTS
SUBPART 2.1. Amendments to Section 1.1.
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(a) Amended and Restated Definitions. The following definitions are
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amended and restated in their entireties:
"Aggregate Revolving Committed Amount" means the aggregate
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amount of Revolving Commitments in effect from time to time, not to
exceed SEVENTEEN MILLION DOLLARS ($17,000,000.00).
"Applicable Percentage" means for any day, the following per
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annum rates: (i) 3.0% for all Loans, effective as of October 31, 1999
(ii) 2.50% for the Letter of Credit Fee, effective as of October 31,
1999 and (iii) .60% for the Commitment Fee, effective as of January 1,
2000.
"Interest Payment Date" means as to any Loan, the last day of
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each month, the date of repayment of principal of such Loan, and the
Termination Date. If an Interest Payment Date falls on a date which
is not a Business Day, such Interest Payment Date shall be deemed to
be the next succeeding Business Day.
"Termination Date" means July 1, 2001.
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(b) New Definitions. The following new definitions are hereby
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added to Section 1.1 of the Credit Agreement in the alphabetically
appropriate places:
"Amendment Effective Date" means April 14, 2000.
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"Borrowing Base" means, as of any day, an amount equal to one
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hundred fifty percent (150%) of Eligible Accounts Receivable as set
forth in the most recent Borrowing Base Certificate delivered to the
Agent and the Lenders in accordance with the terms of Section 7.1(c).
"Borrowing Base Certificate" shall have the meaning assigned
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to such term in Section 7.1(c).
"Eligible Accounts Receivable" means, at any time, all accounts
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receivable of the Borrower except: (i) any account receivable which
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is (a) not subject to a
perfected, first priority Lien in favor of the Agent to secure the
Obligations or (b) subject to any other Lien that is not a Permitted
Lien; (ii) accounts receivable which are more than 90 days past due or
120 days past invoice date (net of reserves for bad debts in
connection with any such accounts receivable); (iii) accounts
receivable due from an account debtor whose indebtedness to the
Borrower on accounts receivable which are more than 90 days past due
or 120 days past the invoice date exceeds fifty percent (50%) of such
account debtor's total indebtedness to the Borrower; (iv) accounts
receivable evidenced by notes, chattel paper or other instruments,
unless such notes, chattel paper or instruments have been delivered to
and are in the possession of the Agent; (v) accounts receivable owing
by an account debtor which is not solvent or is subject to any
bankruptcy or insolvency proceeding of any kind; (vi) accounts
receivable owing by an account debtor located outside of the United
States (unless (A) such account Debtor is a Permitted Foreign Account
Debtor or (B) payment for the services performed is secured by an
irrevocable letter of credit in a form and from an institution
acceptable to the Agent); (vii) accounts receivable which are
contingent or subject to colorable offset, deduction, counterclaim,
dispute or other defense to payment, in each case to the extent of
such offset, deduction, counterclaim, dispute or other defense; (viii)
accounts receivable for which any direct or indirect Subsidiary or any
Affiliate is the account debtor; (ix) accounts receivable representing
a sale to the government of the United States or any subdivision
thereof unless the Federal Assignment of Claims Act and other similar
applicable laws have been complied with to the satisfaction of the
Agent with respect to the granting of a security interest in such
accounts receivable; and (x) accounts receivable which fail to meet
such other reasonable specifications and requirements as may from time
to time be established by the Agent in its reasonable discretion.
"Permitted Foreign Account Debtor" means any of the Persons
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listed on Schedule 7.1(c).
SUBPART 2.2. Amendment to Section 2.1(a). Section 2.1(a) of the Credit
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Agreement is amended and restated in its entirety to read as follows:
(a) Revolving Commitment. During the Commitment Period, subject to
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the terms and conditions hereof, each Revolving Lender severally agrees to
make revolving credit loans (the "Revolving Loans") to the Borrower from
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time to time in the amount of such Revolving Lender's Revolving Commitment
Percentage of such Revolving Loans for the purposes hereinafter set forth;
provided that (i) with regard to the Revolving Lenders collectively, the
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aggregate principal amount of Revolving Obligations outstanding at any time
shall not exceed the lesser of (A) the Aggregate Revolving Committed Amount
or (B) the Borrowing Base, and (ii) with regard to each Revolving Lender
individually, such Revolving Lender's Revolving Commitment Percentage of
Obligations outstanding at any time shall not exceed the lesser of (A) such
Revolving Lender's Revolving Committed Amount or (B) such Revolving
Lender's Revolving Commitment Percentage of the Borrowing Base. Revolving
Loans shall consist of Base
Rate Loans only, and may be repaid and reborrowed in accordance with the
provisions hereof.
SUBPART 2.3. Amendment to Section 2.2(a). Section 2.2(a) of the Credit
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Agreement is amended and restated in its entirety to read as follows:
(a) Issuance. During the Commitment Period, subject to the terms and
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conditions hereof and of the LOC Documents, if any, and such other terms
and conditions which the Issuing Lender may reasonably require, the Issuing
Lender shall issue, and the Revolving Lenders shall participate in, such
Letters of Credit as the Borrower may request for its own account or for
the account of another Credit Party as provided herein, in a form
acceptable to the Issuing Lender, for the purposes hereinafter set forth;
provided that (i) the aggregate amount of LOC Obligations shall not exceed
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FIVE MILLION DOLLARS ($5,000,000) at any time (the "LOC Committed Amount"),
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(ii) with regard to the Revolving Lenders collectively, the aggregate
principal amount of Revolving Obligations outstanding at any time shall not
exceed the lesser of (A) the Aggregate Revolving Committed Amount or (B)
the Borrowing Base, and (iii) with regard to each Revolving Lender
individually, such Revolving Lender's Revolving Commitment Percentage of
Revolving Obligations outstanding at any time shall not exceed the lesser
of (A) such Revolving Lender's Revolving Committed Amount or (B) such
Revolving Lender's Revolving Commitment Percentage of the Borrowing Base.
Letters of Credit issued hereunder shall not have an original expiry date
more than one year from the date of issuance or extension, nor an expiry
date, whether as originally issued or by extension, extending beyond the
Termination Date. Each Letter of Credit shall comply with the related LOC
Documents. The issuance date of each Letter of Credit shall be a Business
Day.
SUBPART 2.4. Amendment to Section 2.3(a). Section 2.3(a) of the Credit
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Agreement is amended and restated in its entirety to read as follows:
(a) Swingline Commitment. During the Commitment Period, subject to
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the terms and conditions hereof, the Swingline Lender, in its individual
capacity, agrees to make certain revolving credit loans requested by the
Borrower in Dollars to the Borrower (each a "Swingline Loan" and,
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collectively, the "Swingline Loans") for the purposes hereinafter set
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forth; provided, however, (i) the aggregate principal amount of Swingline
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Loans outstanding at any time shall not exceed FIVE MILLION DOLLARS
($5,000,000) (the "Swingline Committed Amount"), and (ii) with regard to
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the Revolving Lenders collectively, the aggregate principal amount of
Revolving Obligations outstanding at any time shall not exceed the lesser
of (A) the Aggregate Revolving Committed Amount or (B) the Borrowing Base.
Swingline Loans hereunder shall be made as Base Rate Loans, and may be
repaid or reborrowed in accordance with the provisions hereof.
SUBPART 2.5. Amendment to Section 2.4(d). Section 2.4(d) of the Credit
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Agreement is amended and restated in its entirety to read as follows:
(d) Repayment. The aggregate principal amount of the Term Loan shall be
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repaid as follows:
(i) Monthly Installments.
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Date Amount
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Amendment Effective Date $ 525,000
April 30, 2000 $ 275,000
May 31, 2000 $ 275,000
June 30, 2000 $ 275,000
July 31, 2000 $ 275,000
August 31, 2000 $ 275,000
September 30, 2000 $ 275,000
October 31, 2000 $ 275,000
November 30, 2000 $ 275,000
December 31, 2000 $ 275,000
January 31, 2001 $ 275,000
February 28, 2001 $ 275,000
March 31, 2001 $ 275,000
April 30, 2001 $ 600,000
May 31, 2001 $ 600,000
June 30, 2001 $ 600,000
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Total $5,625,000
(ii) Final Payment.
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The remaining outstanding balance of the Term Loan shall be due and
payable on July 1, 2001.
SUBPART 2.6. Amendment to Section 3.3(b)(i). Section 3.3(b)(i) of the
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Credit Agreement is amended and restated in its entirety to read as follows:
(i) Revolving Committed Amount. If at any time, (A) the aggregate
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principal amount of Revolving Obligations shall exceed the lesser of the
Aggregate Revolving Committed Amount or the Borrowing Base, (B) the
aggregate amount of LOC Obligations shall exceed the LOC Committed Amount
or (C) the aggregate amount of Swingline Loans shall exceed the Swingline
Committed Amount, the Borrower shall immediately make payment on the
Revolving Loans and/or to a cash collateral account in respect of the LOC
Obligations, in an amount sufficient to eliminate the deficiency.
SUBPART 2.7. Amendment to Section 3.4 (a). Section 3.4(a) of the Credit
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Agreement is amended and restated in its entirety to read as follows:
(a) Reductions. The Aggregate Revolving Committed Amount may be
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terminated or permanently reduced in whole or in part upon three (3)
Business Days' prior written notice to the Agent, provided that (i) after
giving effect to any voluntary reduction the aggregate amount of Revolving
Obligations shall not exceed the lesser of the Aggregate Revolving
Committed Amount, as reduced, or the Borrowing Base, and (ii) partial
reductions shall be in a minimum principal amount of $500,000, and in
integral multiples of $100,000 in excess thereof.
SUBPART 2.8. Amendment to Section 5.2(b). Section 5.2(b) of the Credit
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Agreement is amended and restated in its entirety to read as follows:
(b) No Event of Default. No Event of Default shall have occurred and
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be continuing on such date or after giving effect to the Extension of
Credit to be made on such date unless such Event of Default shall have been
waived in accordance with this Credit Agreement.
SUBPART 2.9. Amendments to Section 7.1(b). Section 7.1(b) of the Credit
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Agreement is amended and restated in its entirety to read as follows:
(b) Borrower-Prepared Financial Statements. As soon as available, but
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event
(i) within 15 Business Days after the end of each calendar month
(but in no event later than the 20th day of such following calendar
month): (A) a company-prepared consolidated balance sheet of the
Consolidated Group as of the end of such month, (B) a company-prepared
statement of income for the Consolidated Group and each member thereof
for such month and for the fiscal year to date, such statement showing
a detailed comparison to the income projections delivered by the
company to the Agent on or about April 7, 2000, (C) a company-prepared
consolidated statement of cash flows of the Consolidated Group for
such month and for the fiscal year to date; (D) an accounts receivable
aging report; and (E) a summary of accounts payable;
(ii) within 50 days after the end of each of the first three
fiscal quarters, company-prepared statements of retained earnings and
shareholders' equity for such quarterly period and for the fiscal year
to date;
(iii) within 90 days after the end of the fourth fiscal quarter,
company-prepared consolidating statements of retained earnings and
shareholders' equity for such quarterly period and for the fiscal year
to date ;
(iv) within 45 days following the end of each fiscal year, an
annual business plan and budget for the members of the Consolidated
Group, containing, among other things, pro forma financial statements
for such current fisc al year;
(v) within three Business Days following the end of each
calendar week, a company-prepared projection of cash flows for the
Consolidated Group for the four week period commencing with the
calendar week most recently ended, which
projection shall include the specific identification of any accounts
receivable in excess of $500,000 projected to be collected in such
period and shall be in form reasonably acceptable to the Agent,
together with a report of actual cash collections and disbursements
for the calendar week most recently ended;
in each case setting forth in comparative form the consolidated figures for
the corresponding period or periods of the preceding fiscal year or the
portion of the fiscal year ending with such period, as applicable, in each
case subject to normal recurring year-end audit adjustments.
All such financial statements shall be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments), shall be in form reasonably acceptable to the
Agent, and shall be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein and
further accompanied by a description of, and an estimation of the effect on
the financial statements on account of, a change in the application of
accounting principles as provided in Section 1.3.
SUBPART 2.10. Section 7.1(c). A new Section 7.1(c) is hereby added to the
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Credit Agreement, which section shall read as follows:
(c) Borrowing Base Certificate. Within 15 Business Days after the end
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of each calendar month (but in no event later than the 20th day of such
following calendar month), the Borrower shall submit, in form satisfactory
to the Agent, a Borrowing Base Certificate as of the last day of the prior
month. The certificate shall be signed by a Responsible Officer or by the
Borrower's chief executive officer. In addition, the Borrower shall notify
the Agent of any account receivable in excess of $25,000 that was included
among the Eligible Accounts Receivable shown in the most recently submitted
Borrowing Base Certificate but which, for any reason, ceases or fails to
qualify as an Eligible Account Receivable, such notification to be given
within three (3) Business Days after the Borrower becomes aware of such
account's cessation or failure to qualify as an Eligible Account
Receivable.
SUBPART 2.11. Amendment to Section 7.9. Subsections (a), (b), (d) and (e)
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appearing in Section 7.9 of the Credit Agreement are hereby amended and restated
in their entireties to read as follows:
(a) Consolidated Leverage Ratio. As of the end of each quarter set
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forth below, the Consolidated Leverage Ratio for such quarter shall be not
greater than the ratios set forth below:
Quarter Ending Maximum Ratio
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March 31, 2000 13.60:1.00
June 30, 2000 10.70:1.00
September 30, 2000 6.00:1.00
December 31, 2000 5.20:1.00
March 31, 2001 4.30:1.00
(b) Consolidated Fixed Charge Coverage Ratio. As of the end of each
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quarter set forth below, the Consolidated Fixed Charge Coverage Ratio for
such quarter shall be not less than the ratios set forth below:
Quarter Ending Maximum Ratio
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March 31, 2000 1.00:1.00
June 30, 2000 0.86:1.00
September 30, 2000 0.95:1.00
December 31, 2000 0.88:1.00
March 31, 2001 0.88:1.00
(d) Consolidated Senior Leverage Ratio. As of the end of each quarter
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set forth below, the Consolidated Senior Leverage Ratio for such quarter
shall be not greater than the ratios set forth below:
Quarter Ending Maximum Ratio
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March 31, 2000 10.80:1.00
June 30, 2000 8.70:1.00
September 30, 2000 5.00:1.00
December 31, 2000 4.25:1.00
March 31, 2001 3.50:1.00
(e) Capital Expenditures. The aggregate amount of Capital
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Expenditures for the Consolidated Group shall not exceed $600,000 in any
fiscal quarter. Notwithstanding the foregoing, the total aggregate amount
of Capital Expenditures for fiscal year 2000 shall not exceed $2,000,000,
and the total aggregate amount of Capital Expenditures for the period from
January 1, 2001 through July 1, 2001 shall not exceed $1,000,000.
SUBPART 2.12. Section 7.9(f). A new Section 7.9(f) is hereby added to the
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Credit Agreement, which section shall read as follows:
(f) Minimum Consolidated EBITDA. Consolidated EBITDA for each six-
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month period ending on the dates set forth below shall be not less than the
amount set forth below:
Six-Month Period
Ending Amount
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March 31, 2000 $4,106,000
June 30, 2000 $4,500,000
September 30, 2000 $4,048,000
December 31, 2000 $4,810,000
March 31, 2001 $6,741,000
SUBPART 2.13. Amendment to Section 7.16. Section 7.16 of the Credit
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Agreement is amended and restated in its entirety to read as follows:
7.16 Field Examination. Each of the Credit Parties shall permit the
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Agent (or a third party satisfactory to the Agent) to conduct a written
business audit of the accounts receivable, inventory and payables of the
Consolidated Group at a frequency to be determined in the sole discretion
of the agent; provided that, the Borrower shall not in any one calendar
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year be required to pay (a) for more than four such field examinations or
(b) more than $50,000 in aggregate for any such field examinations. If the
results of any of such audits are not satisfactory to the Agent, in its
reasonable discretion, the Borrower covenants and agrees to cooperate in
good faith with the Agent to develop a plan of action that will correct the
deficiencies concerning the accounts receivable, inventory and payables of
the Consolidated Group identified by the Agent within 180 days of the
completion of such audit.
SUBPART 2.14. Amendment to Section 8.1(c). Section 8.1(c) of the Credit
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Agreement is amended to replace the reference to "$2,000,000" with a reference
to "$1,000,000."
SUBPART 2.15. Deletion of Section 8.1(j). Section 8.1(j) of the Credit
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Agreement is deleted in its entirety.
SUBPART 2.16. Amendment to Section 8.3(b). Section 8.3(b) of the Credit
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Agreement is amended and restated in its entirety to read as follows:
(b) Sell, lease, transfer or otherwise dispose of assets, property
and/or operations (including any sale-leaseback transaction, but excluding
the sale of inventory in the ordinary course of business), other than to
another Credit Party.
SUBPART 2.17. Amendment to Section 8.3(c). Section 8.3(c) of the Credit
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Agreement is amended and restated in its entirety to read as follows:
(c) Acquire all or any portion of the capital stock or other ownership
interest in any Person which is not a Subsidiary or all or any substantial
portion of the assets, property and/or operations of a Person which is not
a Subsidiary, without the prior written consent of the Required Lenders.
SUBPART 2.18. Amendment to Section 8.3(d). Section 8.3(d) of the Credit
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Agreement is amended and restated in its entirety to read as follows:
(d) In the case of the Borrower and any Subsidiary, liquidate, wind-up
or dissolve, whether voluntarily or involuntarily (or suffer to permit any
such liquidation or dissolution).
SUBPART 2.19. Amendment to Section 8.9. Section 8.9 of the Credit
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Agreement is amended and restated in its entirety to read as follows:
8.9 Restricted Payments.
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Make or permit any Restricted Payment.
SUBPART 2.20. Amendment to Section 9.1(c)(i). Section 9.1(c)(i) of the
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Credit Agreement is amended and restated in its entirety to read as follows:
(i) Default in the due performance or observance of any term, covenant
or agreement contained in Section 7.1(c), 7.3(a), 7.9, 7.11, 7.13 or 8.1
through 8.13, inclusive, or
SUBPART 2.21. Amendment to Section 11.1. Section 11.1 of the Credit
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Agreement is amended to change the notice addresses for each of the Borrower,
the Guarantors and the Agent to the following:
if to the Borrower or the Guarantors:
Access Worldwide Communications, Inc.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxx, Xxxxxx & Xxxxxx
0000 Xxxxx Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx
if to the Agent:
Bank of America, N.A.
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxx & Xxx Xxxxx, PLLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxx, Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxxx X. Xxxxx
SUBPART 2.22. Amendment to Section 11.3(b). Section 11.3(b) of the Credit
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Agreement is amended and restated in its entirety to read as follows:
(b) Assignments. Each Lender may assign all or a portion of its
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rights and obligations hereunder (including, without limitation, all or a
portion of its Commitments or its Loans), pursuant to an assignment
agreement substantially in the form of Schedule 11.3(b), to (i) a Lender,
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(ii) an affiliate of a Lender or (iii) any other Person (other than the
Borrower or an Affiliate of the Borrower) reasonably acceptable to the
Agent; provided that (i) any such assignment (other than any assignment to
an existing Lender) shall be in a minimum aggregate amount of $5,000,000
(or, if less, the remaining amount of the Commitment being assigned by such
Lender) of the Commitments and in integral multiples of $1,000,000 above
such amount and (ii) each such assignment shall be of a constant, not
varying, percentage of all such Lender's rights and obligations under this
Credit Agreement. Any assignment hereunder shall be effective upon delivery
to the Agent of written notice of the assignment together with a transfer
fee of $3,500 payable to the Agent for its own account from and after the
later of (i) the effective date specified in the applicable assignment
agreement and (ii) the date of recording of such assignment in the Register
pursuant to the terms of subsection (c) below. The assigning Lender will
give prompt notice to the Agent and the Borrower of any such assignment.
Upon the effectiveness of any such assignment (and after notice to the
Borrower as provided herein), the assignee shall become a "Lender" for all
purposes of this Credit Agreement and the other Credit Documents and, to
the extent of such assignment, the assigning Lender shall be relieved of
its obligations hereunder to the extent of the Loans and Commitment
components being assigned. Along such lines the Borrower agrees that upon
notice of any such assignment and surrender of the appropriate Note or
Notes, it will promptly provide to the assigning Lender and to the assignee
separate promissory notes in the amount of their respective interests
substantially in the form of the original Note (but with notation thereon
that it is given in substitution for and replacement of the original Note
or any replacement notes thereof). By executing and delivering an
assignment agreement in accordance with this Section 11.3(b), the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to
and agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim; (ii)
except as set forth in clause (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
this Credit Agreement, any of the
other Credit Documents or any other instrument or document furnished
pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit Agreement,
any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto or the financial condition of any
Credit Party or any of their respective Affiliates or the performance or
observance by any Credit Party of any of its obligations under this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
assignment agreement; (iv) such assignee confirms that it has received a
copy of this Credit Agreement, the other Credit Documents and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such assignment agreement; (v)
such assignee will independently and without reliance upon the Agent, such
assigning Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Credit
Agreement and the other Credit Documents; (vi) such assignee appoints and
authorizes the Agent to take such action on its behalf and to exercise such
powers under this Credit Agreement or any other Credit Document as are
delegated to the Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations
which by the terms of this Credit Agreement and the other Credit Documents
are required to be performed by it as a Lender.
SUBPART 2.23. Amended Form Notice of Borrowing. Schedule 2.1(b)(i), the
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form Notice of Borrowing, is hereby amended, restated and replaced in its
entirety by the Schedule 2.1(b)(i) that is attached hereto.
SUBPART 2.24. Schedule 7.1(c) - Permitted Foreign Account Debtors.
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Schedule 7.1(c), attached hereto, is hereby added to and made a part of the
Credit Agreement. Schedule 7.1(c) shall immediately follow Schedule 6.14 in the
Credit Agreement.
SUBPART 2.25. Amended Schedule of Indebtedness. Schedule 8.1, the
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Schedule of Indebtedness, is hereby amended, restated and replaced in its
entirety by the Schedule 8.1 that is attached hereto.
SUBPART 2.26. Termination of Eurodollar Loans. Notwithstanding anything
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in the Credit Agreement to the contrary, the Borrower's rights to draw
additional Eurodollar Loans and to convert Base Rate Loans to Eurodollar Loans
are hereby terminated.
SUBPART 2.27. 1999 Audited Financial Statements. Notwithstanding
---------------------------------
anything in the Credit Agreement to the contrary, the audited financial
statements for fiscal year 1999 required by Section 7.1(a) shall not be due
until April 15, 2000.
SUBPART 2.28. Commitment Fee Calculations. Exclusively for purposes of
---------------------------
calculating the Commitment Fee, the Aggregate Revolving Committed Amount shall
be deemed to have been $17,000,000 from and after January 1, 2000.
SUBPART 2.29. Lenders' Consultant. The Credit Parties shall cooperate
-------------------
fully with the Lenders' consultant, The Xxxx Xxxxx Consulting Group (the
"Lenders' Consultant"), which cooperation shall include, but shall not be
--------------------
limited to, allowing the Lenders' Consultant full reasonable access to observe
their respective operations and the opportunity to inspect their
respective financial records and projections. Upon demand therefor, the Borrower
shall pay all out-of-pocket expenses incurred by the Agent and Lenders for the
reasonable fees and expenses of the Lenders' Consultant.
SUBPART 2.30. Lock Box Account.
----------------
(a) As soon as practicable, the Agent and the Credit Parties shall
establish a bank account (the "Lock Box Account") under the exclusive
----------------
custody and control of the Agent, into which there shall be deposited from
time to time the cash proceeds of the Collateral required to be delivered
to the Agent pursuant to this Subpart 2.30 or any other provision of the
Credit Documents. The Agent and the Credit Parties shall use their best
efforts to establish the Lock Box Account by no later than May 4, 2000.
All the cash amounts on deposit from time to time in the Lock Box Account
shall constitute part of the Collateral hereunder and shall not constitute
payment of the Secured Obligations (as defined in the Security Agreement)
until applied thereto as hereinafter provided.
(b) From and after the date that the Lock Box Account is established,
each Credit Party shall instruct all account debtors and other Persons
obligated in respect of the Accounts (as defined in the Security Agreement)
to make all payments in respect of the Accounts, and shall use its best
efforts to cause such account debtors and other Persons to remit all such
payments directly, to the Lock Box Account (if paid by wire transfer) or,
if required by the Agent, to a post office box (the "Lock Box") that is
--------
subject to the lock box agreement, in form and substance satisfactory to
the Agent, for deposit into the Lock Box Account. In addition, each Credit
Party agrees that, from and after the date that the Lock Box Account is
established, if the proceeds of any Collateral (including the payments made
in respect of Accounts) shall be received by it, such Credit Party shall,
as promptly as possible, deposit such proceeds into the Lock Box Account.
Until so deposited, all such proceeds shall be held in trust by the Credit
Parties for the Agent and shall not be commingled with any other funds or
property of the Credit Parties. All receipts held in the Lock Boxes shall
be remitted daily to a Lock Box Account. All funds deposited into the Lock
Box Accounts on any Business Day shall be transferred to the Funding
Account (defined below) upon collection. All collected funds deposited
into the Funding Account on any Business Day shall be applied by the Agent
on the following Business Day to reduce the then outstanding balance of the
Revolving Loans and to pay any other outstanding Credit Party Obligations
which are then due and payable hereunder; provided that for the purpose of
--------
determining the availability of Revolving Loans hereunder, such funds
deposited into the Funding Account shall be deemed to have reduced the
outstanding Revolving Loans on the Business Day such funds were deposited
into such account. In furtherance of the objectives of this Subpart 2.30,
the Credit Parties hereby agree and consent that the Agent, or its
representatives, may communicate directly with account debtors on the
Accounts. For purposes of this Subpart 2.30 "Funding Account" means a
deposit account established and maintained in the name of the Borrower at
Bank of America, N.A., with the Agent named as secured party thereon.
SUBPART 2.31. Deposit Accounts. From and after the date hereof, each Credit
----------------
Party shall maintain all of its deposit accounts with the Agent; provided,
--------
however, that the Credit Parties shall not be required to deposit into accounts
-------
maintained with the Agent any funds to
which title rests in a third party ("Third-Party Funds"). Should any Credit
Party erroneously or for any reason deposit Third-Party Funds into the Lock Box
Account or any other account maintained with the Agent, the Agent shall
promptly, upon receipt of written notice and request from such Credit Party,
return such Third-Party Funds to such Credit Party.
SUBPART 2.32. Amendment Fee. On the Amendment Effective Date, the Borrower
-------------
shall pay to the Agent, for the benefit of the Lenders, an amendment fee in the
amount of $280,000 (the "Amendment Fee").
-------------
SUBPART 2.33. Monitoring Fees. On each of July 1, 2000, October 1, 2000,
---------------
January 1, 2001 and April 1, 2001, the Borrower shall pay to the Agent, for the
benefit of the Lenders, a fee equal to .25% of the sum of: (i) the Aggregate
Revolving Committed Amount and (ii) the outstanding principal balance of the
Term Loan on such date.
PART III
WAIVER
SUBPART 3.1. Only Events of Default. Each of the Credit Parties
----------------------
represents to the Agent and to the Lenders that it is not aware of any existing
Event of Default other than the Acknowledged Events of Default; and each of the
Agent and the Lenders represent to the Credit Parties that it is not aware of
any existing Event of Default other than the Acknowledged Events of Default.
SUBPART 3.2. Waiver of Acknowledged Events of Default. The Lenders
----------------------------------------
hereby waive the Acknowledged Events of Default.
PART IV
CONDITIONS TO EFFECTIVENESS
This Amendment shall be and become effective the date upon which the last of
the conditions set forth in this Part IV shall have been satisfied (the
"Amendment Effective Date").
-------------------------
SUBPART 4.1. Execution of Counterparts of Amendment. The Agent
--------------------------------------
Agent shall have received executed counterparts (or other evidence of execution,
including facsimile signatures, satisfactory to the Agent) of this Amendment,
which collectively shall have been duly executed on behalf of each of the
Borrower, the Guarantors and the Lenders.
SUBPART 4.2. Amendment Fee. The Borrower shall have paid the
-------------
Amendment Fee in immediately available funds.
SUBPART 4.3. Borrowing Base Certificate. The Agent shall have
--------------------------
received a Borrowing Base Certificate as of the Amendment Effective Date, in
form and substance satisfactory to the Agent and certified by the chief
executive officer of the Borrower to be true and correct as of the date thereof.
SUBPART 4.4. Legal Opinion. The Agent shall have received opinions of
-------------
counsel for the Credit Parties relating to the Amendment, in form and substance
satisfactory to the Agent.
SUBPART 4.5. Subordinated Debt Restructure Agreements. The Agent shall
----------------------------------------
have received copies of the following agreements, fully and duly executed by
each party thereto:
(a) Xxx Xxxxxx/AM Medica Communications, Ltd.
----------------------------------------
(i) A Consulting Agreement in the form of that attached to this
Amendment as Exhibit A.
(ii) An Amendment to Subordinated Note in the form of that
attached to this Amendment as Exhibit B.
(iii) An Amendment to Note Subordination Agreement in the form
of that attached to this Amendment as Exhibit C.
(iv) An Amendment to Contingent Payment Subordination Agreement
in the form of that attached to this Amendment as Exhibit D.
(v) An Amendment to Agreement of Purchase and Sale in the form of
that attached to this Amendment as Exhibit E.
(vi) An Amendment to Subordinated Security Agreement in the form
of that attached to this Amendment as Exhibit F.
(b) Xxx Xxxxxxxxx/TeleManagement Services, Inc.
-------------------------------------------
(i) An Amendment to Subordinated Note in the form of that
attached to this Amendment as Exhibit G.
(ii) An Amendment to Agreement of Purchase and Sale in the form
of that attached to this Amendment as Exhibit H.
SUBPART 4.6. Other Documents. The Agent shall have received such
---------------
other documents in connection with this Amendment as the Agent may reasonably
request on or before the Amendment Effective Date.
SUBPART 4.7. Fees and Expenses. The Borrower shall have reimbursed the
-----------------
Agent and the Lenders for all reasonable costs and expenses, including
reasonable attorneys' fees, incurred by them in connection with or related to
the negotiation, drafting and execution of (i) the Forbearance Agreement
(including any unexecuted drafts of amendments, extensions and replacements
thereof) and (ii) this Amendment.
SUBPART 4.8. Accrued Interest; Commitment Fees. The Borrower shall have
---------------------------------
paid to the Agent for the benefit of the Lenders all unpaid interest and
Commitment Fees accrued through March 31, 2000.
PART V
MISCELLANEOUS
SUBPART 5.1. Cross-References. References in this Amendment, to any
----------------
Part or Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment.
SUBPART 5.2. Instrument Pursuant to Credit Agreement; Conflict. This
-------------------------------------------------
Amendment is a Credit Document executed pursuant to the Credit Agreement and
shall (unless otherwise expressly indicated therein) be construed, administered
and applied in accordance with the terms and provisions of the Credit Agreement.
If there is any inconsistency or conflict between this Amendment and the Credit
Agreement, the provisions of this Amendment shall govern and control.
SUBPART 5.3. Representations and Warranties. Each Credit Party hereby
------------------------------
represents and warrants that (i) each Credit Party that is party to this
Amendment: (a) has the requisite corporate power and authority to execute,
deliver and perform this Amendment, as applicable, and (b) is duly authorized
to, and has been authorized by all necessary corporate action, to execute,
deliver and perform this Amendment, (ii) the Borrower has no claims,
counterclaims, offsets, or defenses to the Credit Documents and the performance
of its obligations thereunder, or if the Borrower has any such claims,
counterclaims, offsets, or defenses to the Credit Documents or any transaction
related to the Credit Documents, the same are hereby waived, relinquished and
released in consideration of the Lenders' execution and delivery of this
Amendment, (iii) the representations and warranties contained in Section 6 of
the Credit Agreement are, subject to the limitations set forth therein, true and
correct in all material respects on and as of the date hereof as though made on
and as of such date (except for those which expressly relate to an earlier
date), (iv) after giving effect to this Amendment, no Default or Event of
Default exists under the Credit Agreement on and as of the date hereof or will
occur as a result of the transactions contemplated hereby; (v) the audited
financial statements of Borrower for fiscal year ended 1999 will not reflect any
material negative variance from Borrower's internally prepared financial
statements for fiscal year ended 1999 and (vi), except as specifically set forth
in Schedule 8.1 of the Credit Agreement, as amended, no earn-out payments are
due any entity by any Credit Party.
SUBPART 5.4. Liens. The Borrower and the Guarantors, as applicable,
-----
affirm the liens and security interests created and granted in the Credit
Documents and agree that this Amendment shall in no manner adversely affect or
impair such liens and security interest.
SUBPART 5.5. Acknowledgment of Guarantors. The Guarantors acknowledge
----------------------------
and consent to all of the terms and conditions of this Amendment and agree that
this Amendment and all documents executed in connection herewith do not operate
to reduce or discharge the Guarantors' obligations under the Credit Agreement or
the other Credit Documents.
SUBPART 5.6. No Other Changes. Except as expressly modified in this
----------------
Amendment, all the terms, provisions and conditions of the Credit Documents
shall remain unchanged and shall continue in full force and effect.
SUBPART 5.7. Counterparts. This Amendment may be executed by the parties
------------
hereto in several counterparts (including facsimile counterparts), each of which
shall be deemed to be an original and all of which shall constitute together but
one and the same agreement. Delivery of an executed counterpart of this
Amendment by telecopy shall be effective as an original and shall constitute a
representation that an original shall be delivered to the Agent.
SUBPART 5.8. Entirety. This Amendment, the Credit Agreement and the other
--------
Credit Documents embody the entire agreement between the parties and supersede
all prior agreements and understandings, if any, relating to the subject matter
hereof. These Credit Documents represent the final agreement between the parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements of the parties.
SUBPART 5.9. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
-------------
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
SUBPART 5.10. Successors and Assigns. This Amendment shall be binding
----------------------
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 5.11. Release. In consideration of the Lenders' willingness to
-------
enter into this Amendment, each of the Credit Parties hereby releases the Agent,
the Lenders, and the Agent's and the Lenders' respective officers, employees,
affiliates, representatives, agents, counsel, trustees and directors from any
and all actions, causes of action, claims, demands, damages and liabilities of
whatever kind or nature, in law or in equity, now known or unknown, suspected or
unsuspected to the extent that any of the foregoing arises from any action or
failure to act on or prior to the date hereof.
[Remainder of this page left blank intentionally.]
IN WITNESS WHEREOF the Borrower, the Guarantors and the Lenders have caused
this Amendment to be duly executed on the date first above written.
BORROWER: ACCESS WORLDWIDE COMMUNICATIONS, INC.
--------
By:
--------------------------------
Name:
Title:
GUARANTORS: ASH CREEK, INC.
----------
By:
--------------------------------
Name:
Title:
TLM HOLDINGS, CORP.
By:
--------------------------------
Name:
Title:
XXXXXXX POND, INC.
By:
--------------------------------
Name:
Title:
PHOENIX MARKETING GROUP (HOLDINGS), INC.
By:
--------------------------------
Name:
Title:
[Signatures continue.]
TELEMANAGEMENT SERVICES, INC.
By:
--------------------------------
Name:
Title:
HISPANIC MARKET CONNECTIONS, INC.
By:
--------------------------------
Name:
Title:
AM MEDICA COMMUNICATIONS, LTD.
By:
--------------------------------
Name:
Title:
AWWC TEXAS I, L.P.
By:
--------------------------------
Name:
Title:
[Signatures continue.]
LENDERS: BANK OF
-------
AMERICA, N.A., successor to NationsBank, N.A.,
individually in its capacity as a Lender and in
its capacity as Agent
By:
--------------------------------
Name:
Title:
FLEET BANK, N.A.
By:
--------------------------------
Name:
Title:
SUMMIT BANK
By:
--------------------------------
Name:
Title:
EUROPEAN AMERICAN BANK
By:
--------------------------------
Name:
Title:
Schedule 2.1(b)(i)
------------------
FORM OF NOTICE OF BORROWING
Bank of America, N.A.,
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
RE: Credit Agreement dated as of March 12, 1999 (as amended and modified,
the "Credit Agreement") among Access Worldwide Communications, Inc.,
------ ---------
the Guarantors and Lenders identified therein and Bank of America,
N.A., successor to Bank of America, N.A., as Agent. Terms used but
not otherwise defined herein shall have the meanings provided in the
Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice of a request for Revolving Loan pursuant to
Section 2.1(b) of the Credit Agreement or of a request for Swingline Loan
pursuant to Section 2.3(b) of the Credit Agreement as follows:
Revolving Loan
----
Swingline Loan
----
(A) Date of Borrowing
(which is a Business Day)
--------------------------
(B) Principal Amount of
Borrowing
---------------------------
In accordance with the requirements of Section 5.2 of the Credit Agreement, the
undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the Credit Agreement
and the other Credit Documents are true and correct in all material respects as
of the date of this request, and will be true and correct after giving effect to
the requested Extension of Credit (except for those which expressly related to
an earlier date).
(b) No Event of Default exists, or will exist after giving effect to the
requested Extension of Credit.
(c) All conditions set forth in Section 2.1 as to the making of Revolving
Loans or in Section 2.3 as to the making of Swingline Loans, as appropriate,
have been satisfied.
Very truly yours,
ACCESS WORLDWIDE COMMUNICATIONS, INC.
By:
--------------------------------
Name:
Title:
Schedule 7.1(c)
---------------
PERMITTED FOREIGN ACCOUNT DEBTORS
Vendor Country
------ -------
Astra Sweden
Astra Zeneca Sweden
Bayer Coropration Germany
Boehringer Ingleheim Germany
Eisai, Inc. Japan
Fundacion Solidariadad Mexico
Glaxo, Glaxo Wellcome Plc London
Hoeschst Group Germany
Hoeschst Xxxxxx Xxxxxx Germany
Merck Germany
Novartis Switzerland
Novo Nordisk Denmark
Pharmacia & Upjohn United Kingdom
Rohne Poulenc Xxxxx France
Roche Switzerland
Schering Plough Xxxxxxx
Xxxxx xxxxx Xxxxxxx United Kingdom
Solvay Belgium
Solvay Pharmaceuticals Belgium
Xxxxxxx Germany
Zeneca England
Schedule 8.1
------------
INDEBTEDNESS
[TO BE PROVIDED BY BORROWER]
