EXHIBIT 10.2
AMENDMENT NO. 1
dated as of February 27, 1998
to
CREDIT AGREEMENT
dated as of December 17, 1997
XPEDITE SYSTEMS, INC., a Delaware corporation (the "Company"), XPEDITE
SYSTEMS HOLDINGS (UK) LIMITED, an English corporation ("Xpedite UK";
collectively with the Company, the "Borrowers"), PREMIERE TECHNOLOGIES, INC., a
Georgia corporation ("Premiere"), the BANKS that are parties to the Credit
Agreement referred to below and THE BANK OF NEW YORK, as Administrative Agent
(the "Administrative Agent"), hereby agree as follows:
1. Credit Agreement. Reference is hereby made to the Credit
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Agreement dated as of December 17, 1997 (the "Credit Agreement") among the
Borrowers, the Guarantors party thereto, the Banks listed on the signature pages
thereof, NationsBank, N.A., as Documentation Agent, and The Bank of New York, as
Administrative Agent. Capitalized terms used and not otherwise defined herein
shall have the meaning ascribed thereto in the Credit Agreement.
2. Amendments. The Banks hereby agree that the Waiver dated as of
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the date hereof executed and delivered by the Banks in connection with the
Premiere Acquisition shall not expire on June 30, 1998, notwithstanding the
provision to the contrary contained therein. In addition, the Credit Agreement
shall be amended as follows:
(a) Section 4.10 shall be amended by replacing the word "or" at the
end of clause (a) thereof with a comma and adding a new clause (c) thereto to
read in its entirety as follows:
"or (c) so long as no Default shall have occurred and be continuing
both before and after giving effect to any such Restricted Payment,
made by the Company to Premiere (i) in any amount, so long as the
Leverage Ratio is less than 2.50 to 1 both before and after giving
effect to such Restricted Payment or (ii) in an amount, together with
the aggregate amount of all other Restricted Payments made pursuant to
this clause (ii) and all loans made to Premiere pursuant to Section
4.13(h), not in excess of the aggregate amount of all cash equity
contributions made by Premiere to the Company and all repayments made
by Premiere to the Company in respect of such loans, in each case from
and after February 27, 1998."
(b) Section 4.13 shall be amended by replacing the word "and" at the
end of clause (f) thereof with a comma and adding a new clause (h) thereto to
read in its entirety as follows:
"and (h) Investments consisting of loans by the Company to Premiere
(i) in any amount, so long as the Leverage Ratio is less than 2.50 to
1 both before and after giving effect to such loan or (ii) in an
amount, together with the aggregate amount of all other loans made
pursuant to this clause (ii) and all Restricted Payments made pursuant
to Section 4.10(c)(ii), not in excess of the aggregate amount of all
cash equity contributions made by Premiere to the Company and all
repayments made by Premiere to the Company in respect of such loans,
in each case from and after February 27, 1998."
(c) The definition of "Restricted Payment" in Section 11.01 of the
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Credit Agreement shall be amended by replacing the word "or" at the end of
clause (a) thereof with a comma and adding a new clause (c) to the first
sentence of such definition to read in its entirety as follows:
"or (c) any payment by the Company to Premiere with respect to or on
account of any Intercompany Indebtedness owed by the Company to
Premiere."
(d) The definition of "Applicable Margin" in Section 11.01 of the
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Credit Agreement shall be amended and restated in its entirety as follows:
" `Applicable Margin' means, at any time, subject to the following
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sentences of this definition, such percentage applicable to such Type
of Loan as set forth in the following table opposite the applicable
Leverage Ratio at such time set forth below:
Applicable Margin
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Leverage Ratio Base Rate Loans Eurocurrency Rate Loans
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Greater than or equal to 2.50:1 0.125% 1.250%
Less than 2.50:1 0.000% 1.000%
Notwithstanding the foregoing, prior to the delivery of the financial
statements of the Company for the fiscal year ending December 31, 1997
pursuant to Section 5.01(b), the Applicable Margin shall be 0.125% for
Base Rate Loans and 1.250% for Eurocurrency Rate Loans; provided,
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however, that if such financial statements are so delivered on or
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prior to April 15, 1998 and either (a) such financial statements
indicate that the Leverage Ratio was less than 2.50 to 1 on December
31, 1997 or (b) the Company prepays Loans on or prior to April 15,
1998 in an aggregate principal amount such that, if such reduced
outstanding aggregate principal amount of Loans had been outstanding
on December 31, 1997, the Leverage Ratio would have been less than
2.50 to 1 on such date, then each of the Banks shall pay to the
Company the portion of interest paid to such Bank in excess of the
amount that would have been paid had the Leverage Ratio been less than
2.50 to 1 for the period from and including February 27, 1998 to but
excluding the date on which a change in the Applicable Margin would be
effective based on such financial statements or on such
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prepayment, as applicable, as hereinafter provided (or, at the option
of the Company, such Bank shall credit such excess amount against the
next interest payment scheduled to be made to such Bank hereunder).
Subsequent to the delivery of such financial statements, the
Applicable Margin shall be determined on the basis of the most recent
financial statements delivered pursuant to Section 5.01 (subject to
the effect of borrowings and repayments of Loans hereunder, as
provided in the next sentence). Any change in the Applicable Margin as
a result of a change in the Leverage Ratio shall be effective as of
the third Business Day after the day on which financial statements
that indicate such change are delivered to the Administrative Agent
pursuant to Section 5.01, except that the component of the Leverage
Ratio consisting of Consolidated Indebtedness shall be re-determined
upon each borrowing or repayment of Loans hereunder, and if such
borrowing or repayment results in a change in the Applicable Margin,
such change shall be effective as of the day of such borrowing or
repayment."
(e) The following definition shall be inserted in Section 10.01 of
the Credit Agreement in the correct alphabetical order:
" `Premiere' means Premiere Technologies, Inc., a Georgia
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corporation."
3. Guaranty. On and after the date hereof, Premiere shall become
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and be a Guarantor for all purposes of the Credit Agreement (except for the
purposes of the use of the term "Guarantor" in Sections 4.09, 4.10, 4.13 and
4.16) as fully and to the same extent as if it were an original signatory
thereto.
4. Covenant. Premiere agrees that, from and after the date hereof
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and until the Repayment Date, it shall not, and shall not permit any of its
Subsidiaries (other than the Company and its Subsidiaries) to, have any
Indebtedness at any time other than (a) Indebtedness under the Loan Documents,
(b) Existing Premiere Indebtedness, (c) Purchase Money Indebtedness in an
aggregate outstanding amount not in excess of $10,000,000 at any time, and (d)
other Indebtedness in an aggregate outstanding amount not in excess of
$10,000,000 at any time. For purposes hereof, "Existing Premiere Indebtedness"
means the Indebtedness of Premiere described on Schedule 1 hereto. For purposes
hereof, "Purchase Money Indebtedness" means (i) Indebtedness of Premiere or any
such Subsidiary that is incurred to finance part or all of (but not more than)
the purchase price of a tangible asset, provided that (A) neither Premiere nor
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any such Subsidiary had at any time prior to such purchase any interest in such
asset other than a security interest or an interest as lessee under an operating
lease and (B) such Indebtedness is incurred within 60 days after such purchase,
or (ii) Indebtedness that (A) constitutes a renewal, extension or refunding of,
but not an increase in the principal amount of, Purchase Money Indebtedness that
is such by virtue of clause (i) or (ii) and (B) bears interest at a rate per
annum that is commercially reasonable at the time such Indebtedness is incurred.
Any failure by Premiere to comply with the foregoing covenant shall constitute
an Event of Default.
5. Representations and Warranties. Premiere hereby represents and
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warrants as follows:
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(a) It and each of its Subsidiaries are Persons duly organized,
validly existing and, where applicable, in good standing under the laws of
their respective jurisdictions of organization, have the corporate or legal
power and authority to own their respective properties and to carry on
their respective businesses as now being and hereafter proposed to be
conducted and, where applicable, are duly qualified and in good standing as
foreign corporations, and are authorized to do business, in all
jurisdictions in which the character of their respective properties or the
nature of their respective businesses requires such qualification or
authorization, except for qualifications and authorizations the lack of
which, singly or in the aggregate, has not had and will not have a
Materially Adverse Effect on (x) Premiere, (y) any Loan Document or (z) the
Collateral.
(b) It has the power, and has taken all necessary action
(including any necessary stockholder action) to authorize it, to execute,
deliver and perform in accordance with its terms this Agreement.
(c) This Agreement has been duly executed and delivered by it
and is its legal, valid and binding obligation, enforceable against it in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by
general principles of equity.
(d) The execution, delivery and performance in accordance with
its terms by Premiere of this Agreement do not and (absent any change in
any Applicable Law or applicable Contract) will not (a) require any
Governmental Approval or any other consent or approval, including any
consent or approval of its stockholders, to have been obtained or any
Governmental Registration to have been made or (b) violate, conflict with,
result in a breach of, constitute a default under, or result in or require
the creation of any Lien upon any of its assets under, (i) any Contract to
which it is a party or by which it or any of its properties may be bound or
(ii) any Applicable Law binding on it.
The foregoing representations and warranties shall be deemed to be made on and
as of the date hereof and at and as of the time of the making of each Loan under
the Credit Agreement.
6. Governing Law. The rights and duties of the parties hereto under
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this Amendment No. 1 shall, pursuant to New York General Obligations Law,
Section 5-1401, be governed by the law of the State of New York.
7. Ratification. The Credit Agreement, as amended by this
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Amendment No. 1, and the other Loan Documents are and shall continue to be in
full force and effect and are hereby in all respects confirmed, approved and
ratified.
8. Effectiveness. This Amendment No. 1 shall become effective as of
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February 27, 1998 on the date on which it shall have been executed by each of
the parties hereto and Premiere shall have delivered to the Banks evidence of
the corporate action referred to in Section 5(b) above, in form and substance
and certified in a manner reasonably satisfactory to the Required Banks.
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9. Counterparts. This Amendment No. 1 may be executed in any number
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of counterparts, each of which shall be an original and all of which, when taken
together, shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be executed by their duly authorized officers all as of the date hereof.
XPEDITE SYSTEMS, INC.
By: /s/
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Name:
Title:
XPEDITE SYSTEMS HOLDINGS
(UK) LIMITED
By: /s/
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Name:
Title:
PREMIERE TECHNOLOGIES, INC.
By: /s/
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Name:
Title:
THE BANK OF NEW YORK,
as Administrative Agent and as a Bank
By: /s/
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Name:
Title:
NATIONSBANK, N.A., as a Bank
By: /s/
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Name:
Title:
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Schedule 1
Existing Premiere Indebtedness
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Total Indebtedness (in thousands):
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Convertible Subordinated Notes, 5.75% $172,500
Long-term Debt, interest ranging from 5% to 16% $ 3,703
Obligations Under Capital Leases $ 5,416
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Total $182,619