EXHIBIT 10(ii)
FOURTH AMENDMENT AND WAIVER AGREEMENT
THIS FOURTH AMENDMENT AND WAIVER AGREEMENT (this "Amendment"), dated as of
April 3, 2001, is by and among Access Worldwide Communications, Inc. (the
"Borrower"), certain subsidiaries of the Borrower identified on the signature
pages hereto (the "Guarantors;" together with the Borrower, the "Credit
Parties"), the lenders identified on the signature pages hereto (the "Lenders")
and Bank of America, N.A., successor to NationsBank, N.A., as agent for the
Lenders (in such capacity, the "Agent").
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, as
amended by that certain Amendment Agreement and Waiver dated as of April 14,
2000, that certain Second Amendment Agreement and Waiver dated as of June 9,
2000 and that certain Third Amendment dated as of March 28, 2001 (the "Credit
Agreement");
WHEREAS, as of April 2, 2001, the outstanding principal balance of the
Revolving Loans was $15,842,603.44, the outstanding principal balance of the
Swingline Loans was $182,423.13, the outstanding principal balance of LOC
Obligations was $1,079,100.00 and the outstanding principal balance of the Term
Loan was $17,801,562.00.
WHEREAS, the Credit Parties have as of the fiscal quarter ending December
31, 2000 (a) exceeded the maximum Consolidated Leverage Ratio permitted by
Section 7.9(a) of the Credit Agreement, (b) exceeded the maximum Consolidated
Senior Leverage Ratio permitted by Section 7.9(d) of the Credit Agreement, (c)
failed to maintain the minimum Consolidated Fixed Charge Coverage Ratio required
under Section 7.9(b) of the Credit Agreement, (d) exceeded the maximum Capital
Expenditures permitted by Section 7.9(e) of the Credit Agreement, and (e) failed
to maintain the minimum Consolidated EBITDA required by Section 7.9(f) of the
Credit Agreement (collectively, the "Acknowledged Events of Default");
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
AMENDMENT DEFINITIONS
SUBPART 1.1. Definitions. Unless otherwise defined herein, or the 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.
(a) Amended and Restated Definitions. The following definitions
are amended and restated in their entireties:
"Aggregate Revolving Committed Amount" means the aggregate
amount of Revolving Commitments in effect from time to time, not
to exceed the following amounts during the applicable period:
Amount Applicable Period
------ -----------------
$18,500,000 April 3, 2001 through September 30, 2001
$18,200,000 October 1, 2001 through October 31, 2001
$17,900,000 November 1, 2001 through November 30, 2001
$17,500,000 December 1, 2001 through December 30, 2001
$17,000,000 December 31, 2001 through the Termination Date
"Credit Documents" means a collective reference to this
Credit Agreement, the Notes, the LOC Documents, the Pledge
Agreement, the Security Agreement, the Mortgages, each Joinder
Agreement, the Agent's Fee Letter, the Warrant Documents, any and
all amendments to the foregoing, and all other related agreements
and documents issued or delivered hereunder or thereunder or
pursuant hereto or thereto.
"Termination Date" means January 2, 2003.
(b) New Definitions. The following new definitions are hereby
added to Section 1.1 of the Credit Agreement in the alphabetically
appropriate places:
"Forecast" means the company prepared report required under
Section 7.1(b)(v) of the Credit Agreement.
"Fourth Amendment Effective Date" means the date upon which
the last condition to effectiveness, contained in Part IV of that
certain Fourth Amendment and Waiver Agreement dated as of April
3, 2001 is satisfied.
"Registration Rights Agreement" means the Registration
Rights Agreement dated as of the Fourth Amendment Effective Date
among the Borrower, the Agent and the Lenders, as amended,
modified, restated or supplemented from time to time.
"Warrant" means the Warrant dated as of the Fourth Amendment
Effective Date among the Borrower, the Agent and the Lenders, as
amended, modified, restated or supplemented from time to time.
"Warrant Documents" means a collective reference to the
Warrant, the Warrant Escrow Agreement and the Registration Rights
Agreement.
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"Warrant Escrow Agreement" means the Warrant Escrow
Agreement dated as of the Fourth Amendment Effective Date among
Investors Title Accommodation Corporation, as escrow agent, the
Borrower, the Agent and the Lenders, as amended, modified,
restated or supplemented from time to time.
SUBPART 2.2. Amendment to Section 2.4(d). Section 2.4(d) of the Credit
Agreement is amended and restated in its entirety to read as follows:
(d) Repayment. The aggregate principal amount of the Term Loan
shall be repaid as follows:
(i) Monthly Installments.
---------------------
Date Amount
---- ------
January 1, 2002 $350,000
February 1, 2002 $350,000
March 1, 2002 $350,000
April 1, 2002 $350,000
May 1, 2002 $350,000
June 1, 2002 $350,000
July 1, 2002 $350,000
August 1, 2002 $350,000
September 1, 2002 $350,000
October 1, 2002 $350,000
November 1, 2002 $350,000
December 1, 2002 $350,000
Total $4,200,000
(ii) Final Payment.
The remaining outstanding balance of the Term Loan
shall be due and payable on January 2, 2003.
SUBPART 2.3. Amendment to Section 3.3(b). Section 3.3(b)(iv) is added to
the Credit Agreement, which Section shall read in its entirety as follows:
(iv) March 31, 2002 Prepayment.
In addition to the scheduled payments required in
Section 2.4(d), the Borrower shall make a mandatory
prepayment of principal in the amount of $3,000,000 on March
31, 2002, which prepayment shall be applied first to the
outstanding principal balance of the Term Loan and then to
the outstanding principal balance of the Revolving Loans;
provided, however, that to the extent that Borrower makes
voluntary prepayments on the Term Loan prior to March 31,
2002, the amount of the mandatory prepayment required by
this Section 3.3(b)(iv) shall be reduced on a dollar for
dollar basis.
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SUBPART 2.4. Amendment to Section 3.3(c). Section 3.3(c) of the Credit
Agreement is amended to change the reference to "Section 3.3(b)(ii)" to
"Sections 3.3(b)(ii), (iii) and (iv)".
SUBPART 2.5. Amendment to Section 7.1(b)(i)(B). Section 7.1(b)(i)(B) of the
Credit Agreement is amended to change the reference to "April 7, 2000" to
"February 13, "2001".
SUBPART 2.6. Amendment to Section 7.1(b)(v). Section 7.1(b)(v) of the
Credit Agreement is amended and restated in its entirety to read as follows:
(v) commencing with the week beginning April 9, 2001, within
three Business Days following the end of each calendar week, a
company prepared report of the rolling thirteen (13) week
forecast of cash flows for the Consolidated Group in a form
reasonably acceptable to the Agent (a "Forecast"), together with
(except for the initial Forecast) a reconciliation between actual
cash flows for the prior week and projected cash flows for such
week as set forth in the most recent previous Forecast, 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;
SUBPART 2.7. Section 7.1(d). A new Section 7.1(d) is hereby added to the
Credit Agreement, which section shall read as follows:
(d) Monthly Reports. During the last week of each calendar month
(or, if meeting such week is impractical, then during the first week
of the following calendar month), on a date mutually agreed upon by
the Agent, the Lenders and the Borrower, the Borrower will discuss the
Consolidated Group's financial performance and operations with the
Agent and the Lenders. Upon the request of the Lenders with reasonable
notice, the Borrower shall meet with the Agent and the Lenders at a
site of a Borrower's or Subsidiary's operations, as designated by the
Lenders, for such discussion. At least three Business Days prior to
the date of the Borrower's discussion, the Borrower shall provide to
the Agent and the Lenders a package of information that shall include
the following reports:
(i) A report on the operations for the prior month and
year-to-date and a variance analysis versus prior estimate,
budget and the prior year.
(ii) A report of the status of the physical move of the
Borrower's TelAc operations, including any time and budget
variances.
(iii) A report on the status of the Borrower's efforts to
lease equipment to avoid additional Capital Expenditures.
(iv) A report containing a projection for the balance of the
current fiscal quarter and the then remaining calendar year and a
variance analysis showing of changes from prior projections. The
projection shall include an income statement for each operation,
consolidated income statement, consolidated balance sheet,
capital expenditure projections, and cash flow projections.
Revenue projections by
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client shall accompany the forecast showing confirmed booked
business, confirmed business which does not yet have an assigned
start date, and outstanding proposals with an estimated
probability of acceptance of greater than 50%. However, for
Subsidiaries AM Medica Communications, Ltd. and Hispanic Market
Connections, Inc., the revenue forecast shall show only confirmed
booked business, and a verbal update of projected business shall
be provided the Lenders.
SUBPART 2.8. Amendment to Section 7.9. Sections (a), (b), (d), (e) and (f)
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
forth below, the Consolidated Leverage Ratio for such quarter shall be not
greater than the ratios set forth below:
Quarter Ending Maximum Ratio
-------------- -------------
March 31, 2001 6.600:1.00
June 30, 2001 6.900:1.00
September 30, 2001 7.800:1.00
December 31, 2001 5.625:1.00
March 31, 2002 5.050:1.00
June 30, 2002 4.650:1.00
September 30, 2002 4.460:1.00
December 31, 2002 4.065:1.00
(b) Consolidated Fixed Charge Coverage Ratio. As of the end of each
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 Minimum Ratio
-------------- -------------
March 31, 2001 .610:1.00
June 30, 2001 .700:1.00
September 30, 2001 .760:1.00
December 31, 2001 1.00:1.00
March 31, 2002 1.00:1.00
June 30, 2002 1.00:1.00
September 30, 2002 1.00:1.00
December 31, 2002 1.00:1.00
(d) Consolidated Senior Leverage Ratio. As of the end of each quarter
set forth below, the Consolidated Senior Leverage Ratio for such quarter
shall be not greater than the ratios set forth below:
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Quarter Ending Maximum Ratio
-------------- -------------
March 31, 2001 5.300:1.00
June 30, 2001 5.650:1.00
September 30, 2001 6.450:1.00
December 31, 2001 4.700:1.00
March 31, 2002 3.850:1.00
June 30, 2002 3.480:1.00
September 30, 2002 3.280:1.00
December 31, 2002 3.020:1.00
(e) Capital Expenditures. The aggregate amount of Capital Expenditures
for the Consolidated Group shall not exceed:
Cumulative Amount for
Quarter Ending Fiscal Year
-------------- ---------------------
March 31, 2001 $1,834,000
June 30, 2001 $3,461,725
September 30, 2001 $3,894,350
December 31, 2001 $4,149,725
March 31, 2002 $ 650,000
June 30, 2002 $1,200,000
September 30, 2002 $1,800,000
December 31, 2002 $2,200,000
(f) Minimum Consolidated EBITDA. Consolidated EBITDA for each
twelve-month period ending on the dates set forth below shall be not less
than the respective amounts set forth below:
Twelve-Month Period Ending Amount
-------------------------- ------
March 31, 2001 $6,500,000
June 30, 2001 $6,200,000
September 30, 2001 $5,500,000
December 31, 2001 $7,400,000
March 31, 2002 $7,800,000
June 30, 2002 $8,400,000
September 30, 2002 $8,600,000
December 31, 2002 $9,000,000
SUBPART 2.9. Section 7.17. A new Section 7.17 is hereby added to the Credit
Agreement, which section shall read as follows:
7.17 Investment Banker.
On or before May 15, 2001, the Borrower shall retain, upon terms and
conditions reasonably acceptable to the Lenders, an experienced and
qualified investment banker reasonably acceptable to the Lenders (the
"Investment Banker") to assist the Borrower in
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connection with possible strategic transactions, including, without
limitation, (i) the sale by the Borrower of all or part of its assets
and/or (ii) debt and/or equity financing, with one of the stated aims and
purposes of such retention being the satisfaction of the Borrower's
Obligations to the Lenders. The Borrower shall cause the Investment Banker,
as the Lenders may reasonably request, to meet periodically with the
Lenders, with the Borrower present, to report upon the Investment Banker's
findings, reports and recommendations. The Borrower shall direct the
Investment Banker to provide to the Lenders all offers and serious
indications of interest received from potential purchasers of the
Borrower's assets or equity interests promptly after such offers or
indications of interest are received. The Borrower shall not terminate the
Investment Banker's services prior to the scheduled expiration of the
engagement unless it immediately replaces the Investment Banker (upon
similar terms and scope) with another investment banker with similar
experience and reputation that is reasonably acceptable to the Lenders. The
Borrower shall not deny the Investment Banker access to information
necessary to perform services within the scope of the Investment Banker's
engagement.
SUBPART 2.10. Amended Schedule of Commitments. Schedule 2.1(a) is hereby
amended, restated and replaced in its entirety by the Schedule 2.1(a) that is
attached hereto.
PART III
WAIVER
SUBPART 3.1. 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.
SUBPART 4.1. Execution of Counterparts of Amendment. The 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. Registration Rights Agreement. The Agent shall have received a
fully executed copy of the Registration Rights Agreement.
SUBPART 4.3. Warrant and Warrant Escrow Agreement. The Agent shall have
received a copy of the Warrant and Warrant Escrow Agreement executed by the
Borrower.
SUBPART 4.4. Legal Opinion. The Agent shall have received opinions of
counsel for the Credit Parties relating to the Amendment and related Credit
Documents, in form and substance satisfactory to the Agent.
SUBPART 4.5. Fees and Expenses. The Borrower shall have reimbursed the
Agent and the Lenders for all reasonable costs and expenses, including
reasonable attorneys' fees,
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incurred by them in connection with or related to the negotiation, drafting and
execution of this Amendment and any and all other and previous forbearance or
amendment documentation.
PART V
MISCELLANEOUS
SUBPART 5.1. 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 5.2. 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, and, in the case of the Borrower, the
Warrant Documents, and (b) is duly authorized to, and has been authorized by all
necessary corporate action, to execute, deliver and perform this Amendment and,
in the case of the Borrower, the Warrant Documents, (ii) the Credit Parties have
no claims, counterclaims, offsets, or defenses to the Credit Documents and the
performance of their obligations thereunder, (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 and the Warrant Documents, 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 2000 will not reflect any material negative
variance from Borrower's internally prepared financial statements for fiscal
year ended 2000 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 5.3. Warrant Representations and Warranties. The Borrower hereby
represents and warrants that: (i) the issued and outstanding common equity
securities of the Borrower, as well as the total authorized options under the
Borrower's stock option plan and the issued and outstanding preferred equity
securities are set forth on Schedule I to this Amendment; (ii) except as set
forth on Schedule I, the Borrower has not issued any other shares of its common
stock and (other than contingent payment obligations under earnouts of which the
Lenders are aware) there are no further subscriptions, contracts or agreements
for the issuance or purchase of any other or additional common equity securities
in the Borrower, either in the form of options, agreements, warrants, calls,
convertible securities or other similar rights, other than the Warrant; (iii)
the Warrant and all of the outstanding shares of common stock under the Warrant
will have been duly and validly authorized and issued and will be fully paid and
nonassessable and will have been offered, issued, sold and delivered in
compliance with applicable federal and state securities laws; (iv) the number of
shares of the Borrower's common stock reserved for issuance as set forth on
Schedule I is not subject to adjustment by reason of the issuance of the Warrant
or the common stock issuable upon the exercise thereof; (v) except as set forth
on Schedule I, no registration rights under the Securities Act have been granted
by the Borrower with respect to its equity securities; (vi) the offer and sale
of the Warrant and the common stock to be issued upon
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exercise of the Warrant, are not required to registered pursuant to Section 5 of
the Securities Act or any state securities laws; (vii) neither the Borrower nor
any agent on its behalf has solicited or will solicit any offers to sell or has
offered to sell or will offer to sell all or any part of the Warrant (or the
common stock to be issued upon exercise of the Warrant) so as to bring the
issuance of the Warrant within the registration provisions of the Securities Act
or any state securities laws; and (viii) all prior offerings and sales of
securities of the Borrower were in compliance with all applicable federal and
state securities laws.
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. The Credit Documents represent the final agreement among 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.
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IN WITNESS WHEREOF the Borrower, the Guarantors and the Lenders have caused
this Amendment to be duly executed as of 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.]
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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.]
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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:
------------------------------
ARK CLO 2000-1, LIMITED
By: Patriarch Partners, LLC
its Collateral Manager
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
FLEET NATIONAL BANK
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
EUROPEAN AMERICAN BANK
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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