FOURTH AMENDMENT TO TERM LOAN AGREEMENT
THIS FOURTH AMENDMENT TO TERM LOAN AGREEMENT ("Amendment") dated as of
October 1, 1996, by and between AMSC SUBSIDIARY CORPORATION, a Delaware
corporation ("Borrower"), with offices at 10802 Parkridge Boulevard, Reston,
Virginia 22091, and NTFC CAPITAL CORPORATION, a Delaware Corporation (formerly
known as Northern Telecom Finance Corporation) ("Lender"), with offices at 220
Athens Way, Nashville, Tennessee 37228.
BACKGROUND:
A. Borrower and Lender executed that certain Term Loan Agreement dated as
of May 28, 1993, as amended by the First Amendment to Term Loan Agreement dated
as of April 8, 1994, the Second Amendment to Term Loan Agreement dated as of
August 1, 1995, the Third Amendment to Term Loan Agreement dated as of November
7, 1995 (as so amended, the "Original Loan Agreement") providing for certain
loans to be made to Borrower by Lender (the "Loans"). The Loans are represented
by the Amended and Restated Equipment Note dated as of April 8, 1994, amending
and restating the Note originally dated as of May 28, 1993 (as so amended, the
"Original Note").
B. Borrower has requested Lender to make certain changes in the
amortization schedule and interest on the Loans, and to eliminate certain
financial covenants in the Original Loan Agreement, and Lender is willing to
make such changes, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms used herein which are not otherwise
defined shall have the meanings given to such terms in the Original Loan
Agreement, as amended hereby.
2. Amendment to Section 1.01. Section 1.01 of the Original Loan Agreement
is hereby amended by amending each of the following definitions to read in its
entirety as follows:
"Interest Payment Date ": the First Interest Payment Date for the
Loan and the first day of each Interest Period.
"Interest Rate": a variable interest rate equal to (a) LIBOR plus
4.5% through and including September 30, 1996, and (b) LIBOR plus 2.5 %
from and after October 1, 1996, in each case adjusted on the first day
of each Interest Period.
"Maturity Date": December 31, 1997, on which all principal,
interest, premium, expenses, fees, penalties and other amounts due
under the Note shall be finally due and payable.
3. Amendment to Section 2,05. Section 2.05 of the Original Loan Agreement
is hereby amended to read in its entirety as follows:
2.05. Principal Payments. The entire outstanding principal
amount of the Note and all accrued but unpaid interest and all
other unpaid amounts due thereunder shall be paid on the Maturity
Date.
4. Amendment to Section 2.07. Section 2.07 of the Original Loan Agreement
is hereby amended to read in its entirety as follows:
2.07. Prepayments.
(A) Voluntary Prepayments. Commencing on or after the Initial
Payment Date, Borrower may, at its option, at any time and from time to time,
prepay the Loan in whole or in part, upon (i) at least thirty (30) Business Days
prior written notice to Lender specifying the date and amount of prepayment
(together with all accrued but unpaid interest thereon), (ii) payment of a
prepayment premium in an amount equal to one percent (1 %) of the principal
amount prepaid, and (iii) payment of all accrued and unpaid interest on the
principal amount prepaid and all other charges then outstanding.
(B) Application of Prepayments. Any prepayments of the Note shall
be applied first to interest and then to the installments of principal in
reverse chronological order under the Note.
5. Deletion of Sections 6.10 (Leverage Ratio) and 6.11 (Cash Flow Ratio).
'The Original Loan Agreement is hereby further amended by deleting therefrom
Sections 6.10 and 6.11 in their entirety. Lender hereby and forever waives each
and every Default or Event of Default based upon or arising from any failure of
the Borrower to comply with the terms of Section 6. 10 of the Original Loan
Agreement on or prior to the date hereof.
6. Amended and Restated Note. Contemporaneously with the execution of this
Amendment, Borrower shall execute an Amended and Restated Note to incorporate
the terms hereof, in form and substance satisfactory to Lender.
7. Representations and Warranties of Borrower. The Borrower represents and
warrants to Lender that the Borrower has not executed any other deeds of trust,
mortgages, security agreements or financing statements in favor of any other
person or entity affecting the Collateral; that no person or entity has any
rights to claim a lien upon the Collateral superior to the lien of Lender; that
no Default or Event of Default has occurred under the Original Loan Agreement
(except Defaults and Events of Default that are waived herein); and that no
event has occurred and no claim, offset or other condition exists which would
relieve the Borrower of any of its obligations to Lender under the Original Loan
Agreement or other documents executed by the Borrower in connection therewith.
8. Lender's Fees and Expenses. Borrower shall pay to Lender, on demand, all
costs and expenses, including reasonable legal fees, incurred by Lender in
connection with the preparation, negotiation, execution or implementation of
this Amendment.
9. Full Force and Effect. Except as specifically modified herein, the
Original Loan Agreement shall continue in full force and effect as written, and
nothing herein is intended to, nor shall it, release, diminish or waive the
rights of the parties under the Original Loan Agreement, the Note or the other
Loan Documents.
10. Counterparts. This Amendment may be executed in any number of
counterparts (by facsimile transmission or otherwise) and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original, but all such counterparts shall constitute but one and
the same instrument.
IN WITNESS WHEREOF, this Fourth Amendment to Term Loan Agreement has been
executed as of the day first above written by the parties' authorized
representatives.
LENDER: BORROWER:
NTFC CAPITAL CORPORATION AMSC SUBSIDIARY CORPORATION
By: /s/ L.W. Middleton By: /s/ Richard J. Burnheimer
Title: Secretary Title: Vice President & Treasurer
AMENDED AND RESTATED NOTE
$5,933,095.61 Originally dated as of: May 28, 1993
Previously Amended and Restated
as of: April 8, 1994
Amended and Restated as of October 1, 1996
FOR VALUE RECEIVED, AMSC SUBSIDIARY CORPORATION ("Borrower"), promises to
pay to the order of NORTHERN TELECOM FINANCE CORPORATION (the "Lender") at its
offices located at 220 Athens Way, Nashville, Tennessee, 37228-1399, or to such
other Person and such other location specified in writing by the holder hereof,
in lawful money of the United States of America and in immediately available
funds the principal amount of Five Million Nine Hundred Thirty- Three Thousand
Ninety Five Dollars and Sixty-One Cents ($5,933,095.61), together with interest
thereon and other amounts due as provided below. Notations on the Schedules
attached hereto are for convenience only, and the failure of the Lender to make
any notation on any Schedule, or any incorrect notation by the Lender on any
Schedule, shall not diminish the obligations of the Borrower under this Note.
This Note shall mature on December 31, 1997 (the "Maturity Date").
The "Initial Payment Date" means the first Business Day of the calendar
month following the month in which the Termination Date falls. The "Termination
Date" means the earliest of the following three dates: (a) December 31, 1994,
but only if Final Acceptance (as defined in the Loan Agreement) ("Final
Acceptance") has occurred on or before such date; or (b) the last day of the
month of the date of Final Acceptance if Final Acceptance occurs between January
1, 1995 and February 28, 1995; or (c) March 31, 1995.
This Note has been made and delivered pursuant to that certain Term Loan
Agreement dated as of May 28, 1993 by and between the Borrower and the Lender,
as amended by the First Amendment to Term Loan Agreement dated as of April 8,
1994, the Second Amendment to Term Loan Agreement dated as of August 1, 1995,
the Third Amendment to Term Loan Agreement dated as of November 7, 1995, and the
Fourth Amendment to Term Loan Agreement of even date herewith (as the same may
be modified, amended or supplemented from time to time, the "Loan Agreement")
and is the Note described in Section 2.03(a) thereof. Any term not otherwise
defined in this Note shall have the meaning ascribed to it in the Loan
Agreement. Reference is made to the Loan Agreement, which among other things
provides for the acceleration of the maturity hereof upon the occurrence of
certain events and for prepayments in certain circumstances and upon certain
terms and conditions. This Note is secured by the Collateral described in the
Security Documents.
All advances hereunder shall bear interest at the Interest Rate (as defined
below) from the date of such Advance until such amount is due and payable
(whether on any Payment Date, at the Maturity Date, by acceleration, or
otherwise).
The "Interest Rate" shall be a variable interest rate equal to (a) LIBOR
plus 4.5 % through and including September 30, 1996, and (b) LIBOR plus 2.5 %
from and after October 1, 1996, in each case adjusted on the first day of each
Interest Period.
"LIBOR": in respect of any Interest Period, the rate of interest per annum
shall be the rate quoted in the "money rates" column of The Wall Street Journal
for the three-month LIBOR (London Interbank Offered Rates). This rate is to be
determined on the second Business Day before the commencement of such Interest
Period (each such second Business Day before the commencement of an Interest
Period being hereinafter referred to as an "Interest Determination Date").
"Interest Period": each three (3) calendar month period beginning January
1, April 1, July I and October I of each calendar year provided that:
(A) if any Interest Period pertaining to a Loan would otherwise
end on a day which is not a Business Day, that Interest Period shall be
extended to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the immediately
preceding Business Day;
(B) any Interest Period pertaining to a Loan that begins on the
last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period;
(C) no Interest Period shall extend beyond the Maturity Date; and
(D) no Interest Period shall extend beyond any date upon which is
due any scheduled principal payment in respect of the Loan unless the
aggregate principal amount of the Loan is equal to or in excess of the
amount of such principal payment.
Interest shall accrue at the Interest Rate on all principal amounts
outstanding hereunder and shall be payable quarterly in arrears, commencing on
January 1, 1997, and continuing on the first day of each Interest Period
thereafter, and shall be payable on the Maturity Date. Interest shall also be
payable on the date of any prepayment of this Loan pursuant to Section 2.07 of
the Loan Agreement for the portion of the Loan so prepaid and upon payment
(including prepayment) in full thereof and, after the occurrence and during the
continuance of any Event of Default, interest shall be payable on demand.
All outstanding principal and interest and all other amounts otherwise
payable hereunder shall be due and payable on the Maturity Date.
Notwithstanding the foregoing, if the Borrower shall fail to pay any then
due principal amount or interest or other amount payable by the Borrower under
the Loan Agreement or under this Note within ten (10) days after the due date,
such amount shall bear interest from the original due date at a rate per annum
that is equal to the lesser of (i) five percent (5 %) higher than the then
applicable Interest Rate or (ii) the maximum permissible interest rate under
applicable Law until such overdue principal amount, interest or other amount is
paid in full (both before and after judgment) whether or not any notice of
default in the payment thereof has been delivered under the Loan Agreement.
Notwithstanding any provision of this Note or the Loan Agreement to the
contrary, it is the intent of the Lender and the Borrower that the Lender or any
subsequent holder of this Note shall never be entitled to receive, collect,
reserve or apply, as interest, any amount in excess of the maximum rate of
interest permitted to be charged by applicable Law, as amended or enacted, from
time to time. In the event Lender, or any subsequent holder of this Note, ever
receives, collects, reserves or applies, as interest, any such excess, such
amount which would be excessive interest shall be deemed a partial prepayment of
principal and treated as such, or, if the principal indebtedness and all other
amounts due are paid in full, any remaining excess funds shall immediately be
paid to the Borrower. In determining whether or not the interest paid or
payable, under any specific contingency, exceeds the highest lawful rate, the
Borrower and the Lender shall, to the maximum extent permitted under applicable
law, (a) exclude voluntary prepayments and the effects thereof as it may relate
to any fees charged by the Lender, and (b) amortize, prorate, allocate, and
spread, in equal parts, the total amount of interest throughout the entire term
of the Note; provided that if the Note is paid and performed in full prior to
the end of the full contemplated term hereof, and if the interest received for
the actual period of existence hereof exceeds the maximum lawful rate, the
Lender or any subsequent holder of the Note shall refund to the Borrower the
amount of such excess or credit the amount of such excess against the principal
portion of the Note, as of the date it was received, and, in such event, the
Lender shall not be subject to any penalties provided by any laws for
contracting for, charging, reserving or receiving interest in excess of the
maximum lawful rate.
Upon the occurrence of any one or more Events of Default specified in the
Loan Agreement, all amounts then remaining unpaid on this Note shall be, or may
be declared to be, immediately due and payable as provided in the Loan
Agreement, without further notice, at the option of the holder hereof. The
holder may waive any Event of Default before or after the same has been declared
and restore this Note to full force and effect without impairing any rights
hereunder, such right of waiver being a continuing one, but one waiver not
implying any additional or subsequent waiver.
Demand, presentment, notice and protest are expressly waived, except for
notices otherwise expressly required in the Loan Agreement.
In the event this Note is placed in the hands of one or more attorneys for
collection or enforcement or protection of the holder's rights described in the
Loan Agreement, the Borrower agrees to pay all reasonable attorneys' fees and
all court and other out-of-pocket costs incurred by the holder hereof (which
shall be due on demand).
This Note may be prepaid in accordance with the provisions of Section 2.07
of the Loan Agreement.
This Note is governed by and shall be construed in accordance with the
internal laws of the State of New York.
This Note may not be changed, extended or terminated except in writing.
This Note may be assigned in accordance with Section 8. 1 8 of the Loan
Agreement. In the event of any conflict between this Note and the Loan
Agreement, the provisions of the Loan Agreement shall control.
This Amended and Restated Note is an amendment, modification and
restatement of that certain Note in the original principal amount of $3,750,000
(plus capitalized interest), dated as of May 28, 1993, issued by Borrower to
Lender, previously amended and restated by an Amended and Restated Equipment
Note in the original principal amount of $7,500,000 (plus capitalized interest)
dated as of April 8, 1994 (as previously amended, the "Original Note). The
principal amount of this Note is the outstanding principal amount of the
Original Note, including interest capitalized and added to principal as provided
therein. This Note is not a novation, release or discharge of the indebtedness
evidenced by the Original Note.
Executed as of October 1, 1996.
AMSC SUBSIDIARY CORPORATION
By: /s/ Richard J. Burnheimer
Title: Vice President & Treasurer