FIRST AMENDMENT AND LIMITED WAIVER
THIS FIRST AMENDMENT AND LIMITED WAIVER, dated as of August 14, 1996
("Amendment and Waiver"), is entered into by and among CSG SYSTEMS, INC., a
Delaware corporation (the "Borrower"), the Lenders party to the Restated Loan
Agreement (as defined below), and BANQUE PARIBAS, as agent (not in its
individual capacity, but solely as agent, the "Agent") on behalf of the Lenders.
Capitalized terms used herein without definition shall have the same meanings
herein as given to them in the Restated Loan Agreement.
RECITALS
A. The Borrower, the Lenders and the Agent have entered into that certain
Amended and Restated Loan Agreement dated as of April 26, 1996 (the "Restated
Loan Agreement"), pursuant to which the Lenders have extended and have agreed to
extend and make available to the Borrower certain advances of money in
accordance with their respective Commitments and upon the terms and conditions
set forth in the Restated Loan Agreement and the other Loan Documents.
B. On June 25, 1996, in order to finance the acquisition of Bytel Limited, a
corporation organized under the laws of England and Wales ("Bytel"), by CSG
SYSTEMS INTERNATIONAL, INC., a Delaware corporation of which the Borrower is a
wholly-owned Subsidiary ("Holdings"), the Borrower made two (2) Upstream Loans
to Holdings in the amounts of $2,500,000 and $844,827.88, respectively (the
"Bytel Acquisition Loans"). The Borrower now desires to cancel the indebtedness
of Holdings to the Borrower outstanding under the Bytel Acquisition Loans by
declaring and paying Upstream Dividends to Holdings in the form of the
cancellation of the two promissory notes of Holdings reflecting the Bytel
Acquisition Loans in the amounts of $2,500,000 and $844,827.88, respectively,
and the accrued interest thereon. Under SECTION 8.10 of the Restated Loan
Agreement, the Borrower is permitted to make or pay one or more Upstream Loans
or Upstream Dividends subject to an individual cap of $2,500,000 for each
Upstream Loan and each Upstream Dividend and a cumulative cap on all such
Upstream Loans and Upstream Dividends of $5,000,000. The making of the Bytel
Acquisition Loans, combined with the subsequent cancellation of such Bytel
Acquisition Loans and the accrued interest thereon, would result in cumulative
Upstream Loans and Upstream Dividends exceeding the $5,000,000 cap. The
Borrower desires and has requested that (i) the Bytel Acquisition Loans and
subsequent Upstream Dividends arising upon the cancellation of such Bytel
Acquisition Loans be collapsed and treated as single transactions for purposes
of SECTION 8.10 of the Restated Loan Agreement, resulting in Upstream Dividends
in the cumulative amount of $3,344,827.88, (ii) any Default or Event of Default
arising under SECTIONS 8.9 or 8.10 of the Restated Loan Agreement as a result of
the cancellation of the Bytel Acquisition Loans be waived, (iii) the cumulative
cap on Upstream Loans and Upstream Dividends be increased from $5,000,000 to
$10,000,000 and (iv) for purposes of SECTION 8.10 of the Restated Loan
Agreement, future Upstream Loans made and subsequently cancelled by the Borrower
be treated upon such Upstream Loans' cancellation as single transactions in the
form of Upstream Dividends rather than Upstream Loans and subsequent additional
Upstream Dividends.
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C. In addition, the Borrower desires and has requested that (i) monthly
financial reports for certain months be required to be delivered no later than
the same day on which Holdings releases its earnings publicly rather than within
fifteen (15) Business Days after the end of such months and (ii) Capital
Expenditures limitations with respect to future periods be increased by
$1,000,000 for each such period.
D. The Lenders are willing to provide such limited waiver and amendments, but
only on the terms, subject to the conditions and in reliance on the
representations and warranties of the Borrower and Holdings set forth in this
Amendment and Waiver.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals and intending to be
legally bound, the parties hereto represent, warrant and agree as follows:
1. WAIVERS. The Lenders hereby waive any Default or Event of Default which
has occurred or may occur under SECTION 10.1(e) of the Restated Loan Agreement
as a result of a breach of SECTION 8.9 or 8.10 of the Restated Loan Agreement
arising from the Borrower's extension of the Bytel Acquisition Loans to Holdings
in the principal amounts of $2,500,000 and $844,827.88, and the subsequent
cancellation of such Bytel Acquisition Loans and accrued interest thereon,
resulting in Upstream Dividends in identical amounts. The Lenders hereby
acknowledge that, pursuant to this Amendment and Waiver, the extension and
cancellation of each Bytel Acquisition Loan shall each be treated as a single
transaction, namely, the payment by the Borrower of an Upstream Dividend to
Holdings in the amount of $2,500,000 and $844,827.88, respectively, without
interest.
SECTION 2. AMENDMENTS.
(a) SECTION 8.10 is amended to delete the term "$5,000,000" contained in
the final sentence and to replace such term with "$10,000,000", and thereafter
to add the following additional sentence:
"For purposes of this SECTION 8.10, any Upstream Loans made and
thereafter cancelled or forgiven by the Borrower within one hundred eighty (180)
days shall be treated upon any such cancellation or forgiveness as single
transactions in the form of Upstream Dividends without interest rather than
Upstream Loans and subsequent incremental Upstream Dividends."
(b) SECTION 7.1(f) is amended to delete the words "As soon as practicable
and in any event within fifteen (15) Business Days after the end of each
calendar month," and to replace such words with the following:
"As soon as practicable and in any event (i) within fifteen (15)
Business Days after the end of each calendar month other than March, June,
September and December
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and (ii) with respect to March, June, September and December, no later than the
close of business on the Business Day on which Holdings publicly releases or
announces its earnings for the calendar quarter which includes such month,"
(c) SECTION 8.8 is amended to delete the following table:
"FISCAL YEAR PERMITTED CAPITAL EXPENDITURES
1996 $ 7,500,000
1997 $ 8,000,000
1998 $ 8,500,000
1999 $ 9,000,000
2000 $ 9,500,000"
and to replace such table in its entirety with the following table in its
entirety:
"FISCAL YEAR PERMITTED CAPITAL EXPENDITURES
1996 $ 8,500,000
1997 $ 9,000,000
1998 $ 9,500,000
1999 $ 10,000,000
2000 $ 10,500,000"
SECTION 3. LIMITATIONS ON AMENDMENTS AND WAIVER.
(a) Each of the waiver set forth in SECTION 1 and the amendments set forth
in SECTION 2, above, is effective for the purposes set forth herein and shall
each be limited precisely as written and shall not be deemed to (i) be a consent
to any other amendment, waiver or modification of any other term or condition of
any Loan Document, or (ii) otherwise prejudice any right or remedy which the
Lenders or the Agent may now have or may have in the future under or in
connection with any Loan Document.
(b) This Amendment and Waiver shall be construed in connection with and as
part of the Loan Documents and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Loan Documents, except as
herein waived or amended, are hereby ratified and confirmed and shall remain in
full force and effect.
SECTION 4. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent, on
behalf of the Lenders, to enter into this Amendment and Waiver, each of the
Borrower and Holdings hereby represents and warrants to the Agent and each
Lender as follows:
(a) After giving effect to this Amendment and Waiver (i) the
representations and warranties contained in the Loan Documents (other than those
which expressly speak as of a
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different date) are true, accurate and complete in all material respects as of
the date hereof and (ii) no Default or Event of Default has occurred and is
continuing;
(b) The Borrower has the corporate power and authority to execute and
deliver this Amendment and Waiver and to perform its obligations under the Loan
Documents to which it is a party;
(c) The certificate of incorporation, bylaws and other organizational
documents of the Borrower delivered to each Lender on the Second Closing are
true, accurate and complete and have not been amended, supplemented or restated
and are and continue to be in full force and effect, except as previously
certified to the Lenders as of the Second Closing;
(d) The execution and delivery by the Borrower of this Amendment and Waiver
and the performance by the Borrower of its obligations under the Restated Loan
Agreement and each of the other Loan Documents to which it is a party have been
duly authorized by all necessary corporate action on the part of the Borrower;
(e) The execution and delivery by the Borrower of this Amendment and Waiver
and the performance by the Borrower of its obligations under the Loan Documents
to which it is a party do not and will not contravene (i) any law or regulation
binding on or affecting the Borrower, (ii) the certificate of incorporation or
bylaws of the Borrower, (iii) any order, judgment or decree of any court or
other governmental or public body or authority, or subdivision thereof, binding
on the Borrower or (iv) any contractual restriction binding on or affecting the
Borrower;
(f) The execution and delivery by the Borrower of this Amendment and Waiver
and the performance by the Borrower of its respective obligations under each of
the Loan Documents to which it is a party do not require any order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with, or exemption by any governmental or public body or authority,
or subdivision thereof, binding on the Borrower, except as already has been
obtained or made; and
(g) This Amendment and Waiver has been duly executed and delivered by the
Borrower and is the binding obligation of the Borrower, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws of general application and equitable principles relating to or affecting
creditors' rights.
SECTION 5. REAFFIRMATION. The Borrower hereby reaffirms its obligations under
each Loan Document to which it is a party.
SECTION 6. EFFECTIVENESS. This Amendment and Waiver shall become effective
upon the execution and delivery to the Agent of a copy of this Amendment and
Waiver, whether the same or different copies, by the Borrower and by such
Lenders as is sufficient to constitute
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Required Lenders (with all agreements, documents and instruments being in form
and substance satisfactory to the Agent).
SECTION 7. RELEASE AND WAIVER. THE BORROWER HEREBY REPRESENTS AND WARRANTS TO
THE AGENT AND EACH LENDER THAT IT HAS NO KNOWLEDGE OF ANY FACTS THAT WOULD
SUPPORT A CLAIM, COUNTERCLAIM, DEFENSE OR RIGHT OF SET-OFF, AND HEREBY RELEASE
THE AGENT AND LENDERS FROM ALL LIABILITY ARISING UNDER OR WITH RESPECT TO AND
WAIVES ANY AND ALL CLAIMS, COUNTERCLAIMS, DEFENSES AND RIGHTS OF SET-OFF, AT LAW
OR IN EQUITY, THAT THE BORROWER MAY HAVE AGAINST THE AGENT OR ANY LENDER
EXISTING AS OF THE DATE OF THIS AMENDMENT AND WAIVER ARISING UNDER OR RELATED TO
THIS AMENDMENT AND WAIVER, THE RESTATED LOAN AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR TO THE LOANS CONTEMPLATED HEREBY OR THEREBY OR TO ANY ACT OR
OMISSION TO ACT BY THE AGENT OR ANY LENDER WITH RESPECT HERETO OR THERETO.
SECTION 8. GOVERNING LAW. THIS AMENDMENT AND WAIVER SHALL BE GOVERNED BY AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
SECTION 9. COUNTERPARTS. This Amendment and Waiver may be signed in any
number of counterparts, and by different parties hereto in separate
counterparts, with the same effect as if the signatures to each such counterpart
were upon a single instrument. All counterparts shall be deemed an original of
this Amendment and Waiver.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and Waiver
to be executed as of the date first written above.
THE BORROWER CSG SYSTEMS, INC.
By:__________________________________________
Printed Name:________________________________
Title:_______________________________________
5.
THE AGENT BANQUE PARIBAS, as Agent
By:__________________________________________
Printed Name:________________________________
Title:_______________________________________
By:__________________________________________
Printed Name:________________________________
Title:_______________________________________
6.
THE LENDERS BANQUE NATIONALE DE PARIS
By:__________________________________________
Printed Name:________________________________
Title:_______________________________________
By:__________________________________________
Printed Name:________________________________
Title:_______________________________________
BANQUE PARIBAS
By:__________________________________________
Printed Name:________________________________
Title:_______________________________________
By:__________________________________________
Printed Name:________________________________
Title:_______________________________________
NATIONAL CITY BANK
By:__________________________________________
Printed Name:________________________________
Title:_______________________________________
NORWEST BANK COLORADO, N.A.
By:__________________________________________
Printed Name:________________________________
Title:_______________________________________
XXX XXXXXX AMERICAN CAPITAL PRIME RATE INCOME TRUST
By:__________________________________________
Printed Name:________________________________
Title:_______________________________________
UNION BANK OF CALIFORNIA, N.A.
By:__________________________________________
Printed Name:________________________________
Title:_______________________________________
7.
ACKNOWLEDGEMENT OF AMENDMENT AND WAIVER
AND REAFFIRMATION OF GUARANTY
1. CSG Systems International, Inc., a Delaware corporation ("Holdings"),
hereby acknowledges and confirms that it has reviewed and approved the terms and
conditions of this Amendment and Waiver.
2. Holdings hereby consents to and agrees to be bound by this Amendment and
Waiver and agrees that its Guaranty of the Obligations of the Borrower under the
Loan Agreement shall continue in full force and effect, shall be valid and
enforceable and shall not be impaired or otherwise affected by the execution of
this Amendment and Waiver or any other document or instrument delivered in
connection herewith.
3. Holdings represents and warrants that, after giving effect to this
Amendment and Waiver, all representations and warranties contained in its
Guaranty are true, accurate and complete as if made the date hereof.
HOLDINGS CSG SYSTEMS INTERNATIONAL, INC.
By:__________________________________________
Printed Name:________________________________
Title:_______________________________________
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