FIFTH AMENDMENT TO TERM AGREEMENT
THIS FIFTH AMENDMENT TO TERM LOAN AGREEMENT ("Amendment") dated as of
December 19th, 1997, by and between AMSC SUBSIDIARY CORPORATION, a Delaware
corporation ("Borrower"), with offices at 00000 Xxxxxxxxx Xxxxxxxxx, Xxxxxx,
Xxxxxxxx 00000, and NTFC CAPITAL CORPORATION, a Delaware corporation (formerly
known as Northern Telecom Finance Corporation) ("Lender"), with offices at 000
Xxxxxx Xxx, Xxxxxxxxx, Xxxxxxxxx 00000.
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 and a Fourth Amendment dated as of October 1, 1996 (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 October 1, 1996, amending and restating
the Note originally dated as of May 28, 1993 and as previously amended and
restated as of April 8, 1994 (as so amended, the "Original Note").
B. Borrower has requested Lender to make certain changes in the payment
schedule, 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 (a) the first Business Day of each
calendar month thereafter until September 30, 1996, (b) the
first day of each Interest Period from October 1, 1996 through
October 1, 1997, and (c) December 31, 1997 and (d) February 1,
1998, March 1, 1998 and April 1, 1998.
"Interest Rate": a variable interest rate equal to
(a) LIBOR plus 4.5% through and including September 30, 1996,
(b) LIBOR plus 2.5% form and after October 1, 1996, and (c)
LIBOR plus 4.5% from and after December 31, 1997, in each case
adjusted on the first day of each Interest Period.
"Maturity Date": April 1, 1998, on which 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. Borrower shall make the
principal payment in the amount of One Million Dollars
($1,000,000) on December 31, 1997. Thereafter, 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. 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.
5. 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.
6. 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.
7. 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 other Loan
Documents.
8. Possible Extension. Borrower has represented to Lender that Borrower
expects to complete certain financing by March 31, 1998. If such financing is
not completed by that date, but Borrower can demonstrate to Lender's
satisfaction that significant progress (as determined by Lender) has been made
towards such completion and that such financing is scheduled and anticipated to
be completed in the immediate future, and if no other Default or Event of
Default has then occurred, Lender will consider extending the maturity due to
not later than May 1, 1998, subject to the execution of such documentation as
Lender may deem necessary to implement or evidence such extension. Lender's
agreement to consider extending the maturity date is not a commitment to do so,
and Lender shall make any such decision in its sole and absolute discretion.
9. 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 Fifth Amendment to the 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/Xxxxx Xxxxx By: /s/Xxxxxxx X. Xxxxxxxxxx
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Title: VP-Chief Credit Officer Title: Vice President & Treasurer
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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
Amended and Restated as of December 19, 1997
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 000 Xxxxxx Xxx, Xxxxxxxxx, Xxxxxxxxx, 00000, 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 an din 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 April 1, 1998 (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 occurs between January 1, 1995 and
February 28, 1995; and (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
August 1, 1995, the Third Amendment to Term Loan Agreement dated as of November
7, 1995, the Fourth Amendment to Term Loan Agreement dated October 1, 1996 and
the Fifth 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, through and including December 31, 1997,
and (c) LIBOR plus 4.5% thereafter, 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 1 and October 1 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. Commencing on January 1, 1997, interest shall be payable
quarterly in arrears, on the first day of each Interest Period until October 1,
1997 and on December 31, 1997. Thereafter, accrued interest shall be payable
monthly in arrears on February 1, 1998, March 1, 1998 and April 1, 1998.
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.
Borrower shall make one payment of principal in the amount of One
Million Dollars ($1,000,000) on December 31, 1997 and thereafter all outstanding
principal, together with all accrued 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
Bor rower 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 attorney's 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 8.18 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 and by an Amended and Restated Note in the principal
amount of $5,933,095.61 dated October 1, 1996 (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 December 19th, 1997.
AMSC SUBSIDIARY CORPORATION
By:/s/Xxxxxxx X. Xxxxxxxxxx
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Title: Vice President & Treasurer
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