▇▇▇▇▇▇▇ AMERICAS CORPORATION
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ TECHNOLOGY LIMITED
Clarendon House
Hamilton, HM11 Bermuda
▇▇▇▇▇▇▇ TECHNOLOGY COMPANY, INC.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
February __, 1997
To Each of the
Purchasers Listed on the
Purchaser Schedule:
Reference is made to the Note Agreement, dated as of October 29, 1993,
among ▇▇▇▇▇▇▇ Americas Corporation ("BAM"), ▇▇▇▇▇▇▇ Technology Limited ("BTL",
and together with BAM, the "Borrowers"), ▇▇▇▇▇▇▇ Technology Company, Inc. (the
"Company") and ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company, ▇▇▇▇ ▇▇▇▇▇▇▇ Variable
Life Insurance Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company of America, as
amended on October 26, 1995 and October 29, 1996 (as so amended, the "Note
Agreement"). Capitalized terms shall have the
meanings set forth in the Note Agreement.
The parties hereto agree as follows:
1. Paragraph 6A(1) of the Note Agreement is hereby amended to read as
follows:
"6A(1). Consolidated Net Worth. Permit Consolidated Net Worth,
calculated as of the last day of any fiscal quarter of the Company
after October 1, 1996, to be less than (i) $45,000,000, plus (ii) an amount
equal to 50% of the aggregate of the Consolidated Net Income (without deduction
for quarterly losses) in each fiscal quarter thereafter."
2. Paragraph 6B of the Note Agreement is hereby amended to read as
follows:
"6B. Restricted Payments. They will not make, and will not permit
any of their Subsidiaries to make, any Restricted Payments unless:
(i) the aggregate of all such Restricted Payments made
after January 1, 1997 does not exceed the sum of (x)
$1,250,000; plus (y) the net cash proceeds received by the
Company from the issuance of shares of Eligible Capital Stock;
plus (z)(a) 50% of the Consolidated Net Income from January
1, 1997 through the Company's fiscal quarter most recently
ended for which financial statements have been (or are required
to have been) furnished to the Holders in accordance with
paragraph 5A(I) or 5A(ii), as the case may be, taken as a single
accounting period or, (b) in the event Consolidated Net Income
for such period shall be a negative number, 100% of such
amount (expressed as a negative number); and
(ii) no Event of Default or Default exists immediately
before or immediately after such payment or would otherwise
reasonably be anticipated to result therefrom.
In calculating compliance with paragraph (i) of this paragraph
6B, stock repurchases made by the Company during the period
of October 1, 1996 through February 4, 1997, in the aggregate
amount of $230,000, shall not be counted against the amount
set forth in clause (x) above."
3. A new paragraph 6G is added to the Note Agreement to read as
follows:
"6G. Ratio of Funded Debt to Consolidated Operating EBIT. They
will not permit, as of the last day of any fiscal quarter ended on or
prior to September 30, 1988, the ratio of Consolidated Funded Debt to
Consolidated Operating EBIT for the period indicated below ended as
of such fiscal quarter to be greater than the ratio set forth opposite
such period:
Required Ratio of Consolidated
Funded Debt to Consolidated
Period Operating EBIT
Each period of four 3.25 to 1.00
consecutive fiscal
quarters ended
March 31, 1997,
June 30, 1997,
September 30, 1997,
December 31, 1997,
March 31, 1998,
June 30, 1998 and
September 30, 1998
In calculating the foregoing ratio, the charge in an amount not to
exceed $50,000,000, incurred in the fiscal quarter ended December
31, 1996, relating to Misomex, shall be excluded from the calculation
of Consolidated Operating EBIT."
4. The following defined terms are added, in appropriate alphabetical
order, to the Note Agreement in Paragraph 10B:
"Consolidated Interest Expense" means, with respect to the Company
and its Subsidiaries for any period, the gross interest expense of the
Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP applied on a consistent basis, including,
without limitation, (i) the amortization of debt discounts, (ii) the
amortization of all fees (including, without limitation, fees with
respect to interest rate protection agreements)payable in connection
with the incurrence of Debt to the extent included in interest expense
and (iii) the portion of any Capitalized Lease allocable to interest
expense. For purposes of the foregoing, gross interest expense shall
be determined after (x) giving effect to any net payments made or
received by the Company and its Subsidiaries with respect to interest
rate protection agreements entered into as a hedge against interest rate
exposure; and (y) excluding therefrom the gross interest expense of
any Person accrued prior to the date it becomes a Subsidiary."
"Consolidated Operating EBIT" shall mean with respect to the
Company and its Subsidiaries for any period, the sum of (i)
Consolidated Net Income, (ii) Consolidated Interest Expense and (iii)
(to the extent deducted in calculating Consolidated Net Income)
current and deferred taxes on income and provision for taxes on
unremitted foreign earnings which are included in gross revenues, all
on a consolidated basis in accordance with GAAP."
5. Entire Agreement. This Agreement sets forth the entire understanding
and agreement of the parties hereto in relation to the subject mater
hereof and supersedes any prior negotiations and agreements among
the parties relative to such subject matter.
6 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original,
and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
7. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the
law of The Commonwealth of Massachusetts (without giving
effect to principles of conflicts law).
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this letter and return the same to
the Company and the Borrowers, whereupon this letter shall become a binding
agreement among the Prchasers, the Borrowers and the Company.
Very truly yours,
▇▇▇▇▇▇▇ TECHNOLOGY COMPANY, INC.
By: ___________________________________
Title:
▇▇▇▇▇▇▇ AMERICAS CORPORATION
By: ____________________________________
Title:
▇▇▇▇▇▇▇ TECHNOLOGY LIMITED
By:_____________________________________
Title:
The foregoing Agreement is
hereby accepted as of the
date first above written.
▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE
INSURANCE COMPANY
By: ____________________________
Title:
▇▇▇▇ ▇▇▇▇▇▇▇ VARIABLE LIFE
INSURANCE COMPANY
By: _____________________________
Title:
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE
COMPANY OF AMERICA
By: ______________________________
Title: