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EXHIBIT 10.45
THIRD AMENDMENT TO AMENDED
AND RESTATED LEASE AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED LEASE AGREEMENT (this
"Amendment") made as of the 31st day of January, 1997, by and between NEOSERV
(CO) QRS 10-13, INC., a Colorado corporation, and NEOSERV (CO) QRS 11-8, INC.,
a Colorado corporation (collectively. "Landlord"), and NEODATA SERVICES, INC.,
a Delaware corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a certain Amended and
Restated Lease Agreement, dated as of June 8, 1994 (the "Original Lease");
WHEREAS, the Original Lease has been amended pursuant to (a) that
certain First Amendment to Amended and Restated Lease Agreement, dated as of
December 13, 1994 (the "First Amendment") and (b) that certain Second Amendment
to Amended and Restated Lease Agreement dated as of January 25, 1996 (the
"Second Amendment") (the Original Lease, as amended by the First Amendment and
the Second Amendment, being hereinafter referred to as the "Lease"); and
WHEREAS, Landlord and Tenant have agreed to further amend the Lease
as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant covenant and
agree as follows:
1. Exhibit E (Financial Covenants) is hereby deleted in its entirety
and Exhibit E attached hereto is hereby inserted in lieu thereof.
2. Subparagraph (c) of Paragraph 40 Security Deposit is hereby
deleted in its entirety and the following is inserted in lieu thereof:
"(c) Notwithstanding anything to the contrary provided in this Lease,
Tenant hereby agrees to deliver to Landlord the Letter of Credit required
pursuant to Paragraph 40 of the Lease until such time that the Tenant
achieves either of the following credit ratings: (1) a Baa3 credit rating
from ▇▇▇▇▇'▇ Corporation or (2) a BBB- credit rating from Standard & Poors
Rating Group."
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3. Subparagraph (g) of Paragraph 42 Miscellaneous is hereby deleted
in its entirety and the following is inserted in lieu thereof:
"(g) Notwithstanding anything to the contrary provided in this Lease,
if BT (as defined on Exhibit E) consents to, waives or amends any
provision, term or covenant in the BT Credit Agreement (as defined on
Exhibit E) or the BT Loan Documents (as defined on Exhibit E), without
consideration Landlord and the Lender (as hereinafter defined) shall be
deemed to have consented to, waived or amended such similar provision,
term or covenant in this Lease (without the necessity of executing a
consent, waiver or amendment to this Lease) as of the effective date of
BT's consent, waiver or amendment; provided, however, that Tenant shall
provide Landlord and PFL Life Insurance Company (the "Lender") written
notice of such consent, waiver or amendment. If Tenant does provide BT
consideration of any nature for such consent, waiver or amendment, then
Tenant shall provide Landlord and the Lender written notice of such
consent, waiver or amendment and Landlord and the Lender shall have a
period of twenty (20) days within which to approve or reject such consent,
waiver or amendment.
4. This Amendment shall be governed by and construed in accordance
with the laws of the State of Colorado.
5. Except as specifically amended by this Amendment, the terms and
conditions of the Lease shall remain in full force and effect and shall be
binding upon Landlord and Tenant and their respective successors and assigns.
6. This Amendment may be executed in any number of counterparts 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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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WITNESS the due execution hereof the day and year first above
written.
LANDLORD:
NEOSERV (CO) QRS 10-13, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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NEOSERV (CO) QRS 11-8, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: Vice President
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TENANT:
NEODATA SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Sr. Vice President and CFO
----------------------------
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CONSENT OF GUARANTOR
Neodata Corporation, a Delaware corporation, hereby consents to the
Third Amendment to Amended and Restated Lease Agreement and agrees that for
purposes of the Amended and Restated Guaranty and Suretyship Agreement, dated
as of June 8, 1994, pursuant to which Guarantor guaranteed the obligations of
Tenant under the Lease, the term "Lease" shall mean the Lease as amended by
this Third Amendment to Amended and Restated Lease Agreement.
NEODATA CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Sr. Vice President and CFO
----------------------------
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CONSENT OF LENDER
PFL Life Insurance Company, an Iowa corporation (the "Lender"), the
Lender under that certain Assignment of Leases, Rents and Income, dated
December 13, 1994, from Neoserv (CO) QRS 10-13, Inc. and Neoserv (CO) QRS 11-8,
Inc. to the Lender, hereby consents to the Third Amendment to Amended and
Restated Lease Agreement.
PFL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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EXHIBIT E
FINANCIAL COVENANTS
1. Definitions. In addition to the terms defined elsewhere in this
Lease, the following terms used in this Exhibit E shall have the following
meanings:
"Affiliate" means any Person: (a) directly or indirectly controlling,
controlled by, or under common control with, Tenant; (b) directly or indirectly
owning or holding five percent (5%) or more of any equity interest in Tenant;
or (c) five percent (5%) or more of whose voting stock or other equity interest
is directly or indirectly owned or held by Tenant. For purposes of this
definition, "control" (including with correlative meanings, the terms
"controlling", "controlled by" and "under common control with") means the
possession directly or indirectly of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of
voting securities or by contract or otherwise.
"Agent" means BT or its successor appointed pursuant to the BT Credit
Agreement.
"BT" means Bankers Trust Company.
"BT Closing Date" means the closing date of the BT Credit Agreement.
"BT Credit Agreement" means that certain Credit Agreement dated as of
January 31, 1997 among Holdings, Tenant, the various bank parties thereto from
time to time, and BT, as amended, supplemented, modified or restated from time
to time.
"BT Lender" or "BT Lenders" means BT and each of the other financial
institutions listed on the signature pages to the BT Credit Agreement, together
with their respective successors and permitted assigns pursuant to the BT
Credit Agreement.
"BT Loan" or "BT Loans" means an advance or advances under the BT
Credit Agreement.
"BT Loan Documents" means the BT Credit Agreement and all other
notes, security documents, instruments, documents and agreements delivered
concurrently with the BT Credit Agreement or at any time thereafter to or for
the benefit of Agent or any BT
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Lender to evidence the repayment of the BT Loans, to set forth agreements
governing the BT Loans, or to secure or guaranty the BT Loans; excluding
however, the EDS Documents and all Senior Note Documents.
"BT Loan Party" means, collectively, Tenant and any other Person
(other than Agent or any BT Lender) which is or becomes a party to any BT Loan
Document.
"BT Obligations" means all obligations, liabilities, and indebtedness
of every nature of each BT Loan Party from time to time owed to Agent or any BT
Lender under the BT Loan Documents including the principal amount of all debts,
claims and indebtedness, accrued and unpaid interest and all fees, costs and
expenses, whether primary, secondary, direct, contingent, fixed or otherwise,
heretofore, now and/or from time to time hereafter owing, due or payable
pursuant to the BT Loan Documents.
"Business Day" shall mean any day except Saturday, Sunday and any day
which shall be in New York City a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close.
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
generally accepted accounting principles) and the amount of Capitalized Lease
Obligations incurred by such Person.
"Capital Lease" means any lease of any property (whether real,
personal or mixed) that, in conformity with GAAP, should be accounted for as a
capital lease.
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under generally accepted accounting principles, are or will
be required to be capitalized on the books of such Person, in each case taken
at the amount thereof accounted for as indebtedness in accordance with such
principles.
"Cash Equivalents" shall mean, as to any Person, (i) securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States is pledged in support thereof) having maturities of not more
than
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one year from the date of acquisition, (ii) time deposits and certificates of
deposit of any commercial bank having, or which is the principal banking
subsidiary of a bank holding company organized under the laws of the United
States, any State thereof, the District of Columbia or any foreign jurisdiction
having capital, surplus and undivided profits aggregating in excess of
$200,000,000, with maturities of not more than one year from the date of
acquisition by such Person, (iii) repurchase obligations with a term of not
more than 90 days for underlying securities of the types described in clause
(i) above, (iv) commercial paper issued by any person incorporated in the
United States rated at least A-1 or the equivalent thereof by Standard & Poor's
Rating Group or at least P-1 or the equivalent thereof by ▇▇▇▇▇'▇ Investors
Service, Inc. and in each case maturing not more than one year after the date
of acquisition by such Person, (v) investments in money market funds
substantially all of whose assets are comprised of securities of the types
described in clauses (i) through (iv) above and (vi) deposit accounts
maintained in the ordinary course of business not in excess of $100,000 at any
single institution.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income of Tenant and its Consolidated Subsidiaries, before interest expense and
provision for taxes and without giving effect to any extraordinary gains or
losses or gains or losses from sale of assets other than inventory sold in the
ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all amortization of intangibles and
depreciation that were deducted in arriving at Consolidated EBIT for such
period.
"Consolidated Interest Coverage Ratio" for any period shall mean the
ratio of Consolidated EBITDA to Consolidated Net Cash Interest Expense for such
period.
"Consolidated Net Cash Interest Expense" shall mean, for any period,
without duplication, total cash interest expense (including that attributable
to Capital Lease in accordance with GAAP) of Tenant and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Tenant and
its Subsidiaries, including, without limitation, all commissions, discounts and
other fees and charges paid with respect to letters of credit and bankers
acceptance financing and net cost under interest rate protection agreements,
but excluding the amortization of any deferred financing costs net of the total
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consolidated cash interest income of Tenant and its Consolidated Subsidiaries
for such period.
"Consolidated Net Income" shall mean, for any period, the
consolidated net after tax income of Tenant and its Consolidated Subsidiaries
determined in accordance with GAAP; provided that for purposes of this
definition, the net after tax income of any Subsidiary of Tenant that is not a
Wholly-Owned Subsidiary of Tenant shall be included in Consolidated Net Income
in an amount equal to the percentage equity ownership (direct or indirect) of
Tenant in such non-Wholly-Owned Subsidiary multiplied by the net after tax
income of such non-Wholly-Owned Subsidiary.
"Consolidated Subsidiaries" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes. Notwithstanding anything to the contrary
contained in this Lease (and except for purposes of the definition of
Unrestricted Subsidiary), an Unrestricted Subsidiary shall be deemed not to be
a Subsidiary of Tenant or any of its other Subsidiaries for purposes of this
Lease.
"Contingent Obligations" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless the
holder of such primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to
the stated of determinable amount of the primary obligation in respect of which
such Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the terms of
the
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instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Dividend" shall have the meaning set forth in the BT Loan Agreement.
"EDS" means Electronic Data Systems Corporation.
"EDS Agreement" shall have the meaning set forth in the BT Credit
Agreement.
"EDS Documents" means the EDS Agreement and all other documents,
agreements and instruments executed pursuant to the terms of such agreement.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of any
BT Loan Party or any ERISA Affiliate or (b) has at any time within the
preceding six years been maintained for the employees of any BT Loan Party or
any current ERISA Affiliate (or by any former ERISA Affiliate, but only with
respect to such period such Person was an ERISA Affiliate or if a BT Loan Party
would be deemed a contributing sponsor of such plan under Section 4069 of
ERISA).
"Existing Indebtedness" shall mean the Indebtedness listed on
Schedule 1 attached hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect on
January 31, 1997 and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"Fiscal Year" means a twelve month period ending on the last day of
June in each year.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or the Securities
and Exchange Commission that are applicable to the circumstances as of the date
of determination.
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"Holdings" means Neodata Corporation, a Delaware corporation.
"Holdings Tax Allocation Agreement" shall mean the Tax Sharing
Agreement, dated May 5, 1993, among Holdings, the Tenant and certain
Subsidiaries of Holdings noted on the signature pages thereto.
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services, (ii) the maximum amount available to be drawn under all letters of
credit issued for the account of such person and all unpaid drawings in respect
of such letters of credit, (iii) all Indebtedness of the types described in
clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any
Lien on any property owned by such Person, whether or not such Indebtedness has
been assumed by such Person (to the extent of the value of the respective
property), (iv) the aggregate amount required to be capitalized under leases
under which such Person is the lessee, (v) all obligations of such person to
pay a specified purchase price for goods or services, whether or not delivered
or accepted, i.e., take-or-pay and similar obligations, (vi) all Contingent
Obligations of such Person and (vii) all obligations under any Interest Rate
Protection Agreement and Other Hedging Agreements or under any similar type of
agreement.
"Indenture" means that certain Indenture dated as of May 5, 1993
between Tenant and Ameritrust Texas National Association, as Trustee.
"Interest Rate Protection Agreement" shall mean any interest swap
agreement, interest rate cap agreement, interest collar agreement, interest
rate hedging agreement, interest rate floor agreement or other similar
agreement or arrangement.
"IRC" means the Internal Revenue Code of 1986.
"Lease Obligations" means all monetary obligations and all other
obligations of Tenant under this Lease.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
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any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing.
"Material Adverse Effect" means (a) a material adverse effect upon
the business, operations, properties, assets or condition (financial or
otherwise) of Tenant on an individual basis or on the BT Loan Parties taken as
a whole or (b) the impairment of the ability of Tenant to perform its
obligations under this Lease.
"▇▇▇▇▇▇▇▇ Note" shall have the meaning set forth in the BT Credit
Agreement.
"Monitoring Agreements" shall mean, collectively, (i) the Financial
Advisory Agreement, dated as of August 22, 1990, by and among Tenant, Holdings
and ▇▇▇▇▇, Muse & Co. Incorporated and (ii) the Financial Advisory Agreement,
dated as of August 20, 1990, by and among Tenant, Holdings and Wand/Neodata
Investments, L.P. in each case as amended, modified or supplemented from time
to time in accordance with the terms thereof and hereof.
"NSL" shall mean Neodata Services Limited, a corporation organized
under the laws of Ireland.
"Net Sale Proceeds" shall mean for any sale of assets, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from such sale of assets, net of reasonable transaction costs
(including, without limitation, any underwriting, brokerage or other customary
selling commissions and reasonable legal, advisory and other fees and expenses,
including title and recording expenses, associated therewith) and payments of
unassumed liabilities relating to the assets sold at the time of, or within 30
days after, the date of such sale, the amount of such gross cash proceeds
required to be used to repay any Indebtedness (other than Indebtedness pursuant
to the BT Loans) which is secured by the respective assets which were sold, and
the estimated magical increase in income taxes which will be payable by
Tenant's consolidated group with respect to the fiscal year in which the sale
occurs as a result of such sale; but excluding any portion of any such gross
cash proceeds which Tenant determines in good faith should be reserved for
post-closing adjustments (to the extent Tenant delivers to Landlord a
certificate signed by its chief financial officer, controller or chief
accounting officer as to such determination), it being understood and agreed
that on the day that all such post-closing adjustments have been determined,
(which shall not be later than six months following
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the date of the respective asset sale), the amount (if any) by which the
reserved amount in respect of such sale or disposition exceeds the actual
post-closing adjustments payable by Tenant or any of its Subsidiaries shall
constitute Net Sale Proceeds on such date received by Tenant and/or any of its
Subsidiaries from such sale, lease, transfer or other disposition.
"Other Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency values.
"Permitted Encumbrances" shall mean the same as "Permitted Liens"
set forth in Section 2 hereof.
"Person" means any individual, partnership, joint venture, firm,
corporation, association, trust, or other enterprise, or any government or
political subdivision or any agency, department or instrumentality thereof.
"Public Equity Offering" means an underwritten primary public
offering of the common stock of Tenant or Holdings pursuant to an effective
registration statement under the Securities Act of 1933.
"Reinvestment Assets" shall mean any assets to be employed in the
business of Tenant and its Subsidiaries in compliance with this Lease.
"Related Business" shall mean the outsourced product and management
support service business conducted by Tenant and its Subsidiaries (or, if the
reference is to an Unrestricted Subsidiary, by such Unrestricted Subsidiary)
and any and all related business in support of and ancillary to or reasonably
related to such outsourced product and management support services business.
"Related Transactions" means the execution and delivery of the
Related Transactions Documents, the funding of each borrowing under the
Revolving Loans (as defined in the BT Credit Agreement) and the offering of the
Senior Notes and the sale thereof.
"Related Transactions Documents" means the BT Loan Documents, the EDS
Documents, the Senior Note Documents and any other documentation implementing
or governing any of the Related Transactions.
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"Senior Notes" shall mean Tenant's 12% Senior Deferred Coupon Notes
due 2003, as the save may be amended, modified or supplemented from time to
time.
"Senior Note Documents" means the Indenture and the Senior Notes, and
all other instruments, agreements, and documentation delivered concurrently
therewith or at any time thereafter to evidence the repayment of the Senior
Notes or to set forth agreements governing the Senior Notes.
"Specified Properties" shall mean the Tenant's facilities currently
located at (x) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and (y)
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such person and/or one or
more Subsidiaries of such Person and (ii) any partnership association, joint
venture or other entity in which such person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest at the time. Notwithstanding
the foregoing (and except for purposes of the definition of Unrestricted
Subsidiary contained herein) an Unrestricted Subsidiary shall be deemed not to
be a Subsidiary of Tenant or any of its other Subsidiaries for purposes of this
Agreement.
"Test Period" shall mean, for any determination, the four consecutive
fiscal quarters then last ended (taken as one accounting period).
"UCC" means the Uniform Commercial Code as in effect on the date
hereof in the State of Colorado.
"Unrestricted Subsidiary" shall mean any Subsidiary of Tenant that,
at the time of determination, shall be an Unrestricted Subsidiary (as
designated by Tenant, as provided below) provided that such Subsidiary does not
and shall not engage, to any substantial extent, in any line or lines of
business activity other than a Related Business. Tenant may designate any
Person to be an Unrestricted Subsidiary if (a) no default or event of default
is existing or will occur as a consequence thereof under the BT Credit
Agreement, (b) either (x) such Subsidiary, at the time of designation thereof,
has no
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assets (except assets which could be invested in such Unrestricted Subsidiary
at the time of designation as described in the immediately succeeding sentence)
or (y) such Subsidiary is designated an "Unrestricted Subsidiary" at the time
of the acquisition thereof by Tenant, in the case of Subsidiaries acquired
after the BT Closing Date and (c) such Subsidiary does not own any equity
interests in, or hold any Lien on any property of, Tenant or any other
Subsidiary (excluding other Unrestricted Subsidiaries). Any such designation
shall also be deemed to constitute an investment pursuant to Section 6(xii) in
an amount equal to the sum of the net assets (with assets other than cash and
Cash Equivalents valued at fair market value) of such Subsidiary at the time of
the designation (which investment must be permitted to be made in accordance
with the requirements of Section 6(xii), unless the designation is made
pursuant to clause (b)(y) of the first sentence of this definition, in which
case the amount of consideration paid by Tenant and its Subsidiaries to effect
such acquisition shall be included as such an investment. Tenant may designate
any Unrestricted Subsidiary to be Subsidiary, provided that no default or event
of default is existing or will occur as a consequence thereof. Each such
designation shall be evidenced by filing with the Agent a certified copy of the
resolution giving effect to such designation and an officers' certificate of an
authorized officer certifying that such designation complied with the foregoing
conditions.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time.
2. Liens. Tenant will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
Tenant or any of its Subsidiaries, whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable with recourse to Tenant or any of its Subsidiaries), or
assign any right to receive income or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute; provided that the provisions of this Section 2
shall not prevent the creation, incurrence,
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assumption or existence of the following (Liens described below are herein
referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with generally accepted accounting principles in the United
States;
(ii) Liens in respect of property or assets of the Tenant or any of
its Subsidiaries imposed by law, which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money, such
as carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of the Tenant's or
such Subsidiary's property or assets or materially impair the use thereof
in the operation of the business of the Tenant or such Subsidiary or (y)
which are being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the
property or assets subject to any such Lien;
(iii) Liens in existence on the date hereof, plus renewals,
replacements and extensions of such Liens, provided that (x) the aggregate
principal amount of the Indebtedness, if any, secured by such Liens does
not increase from that amount outstanding at the time of any such renewal
or extension and (y) any such renewal or extension does not encumber any
additional assets or properties of Tenant or any of its Subsidiaries;
(iv) Liens in favor of customs and revenue authorities arising as a
matter of law to secure the payment of customs duties in connection with
the importation of goods;
(v) Liens created pursuant to the BT Loan Documents;
(vi) licenses, leases or subleases granted to other Persons in the
ordinary course of business not materially interfering with the conduct of
the business of Tenant and its Subsidiaries taken as a whole;
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(vii) Liens upon assets subject to Capitalized Lease Obligations to
the extent permitted by Section 5, provided that (x) such Liens only serve
to secure the payment of Indebtedness arising under such Capitalized lease
Obligation and (y) the Lien encumbering the asset giving rise to the
Capitalized Lease Obligation does not encumber any other asset of the
Tenant or any Subsidiary of the Tenant;
(viii) Liens placed upon equipment or machinery used in the ordinary
course of business of the Tenant or any of its Subsidiaries at the time of
acquisition thereof by the Tenant or any such Subsidiary or within 150
days thereafter to secure Indebtedness incurred to pay all or a portion of
the purchase price thereof, and all renewals, replacements and extensions
thereof, provided that (x) the aggregate outstanding principal amount of
all Indebtedness secured by Liens permitted by this clause (viii) shall
not at any time exceed $2,000,000 at any time outstanding and (y) in all
events, the Lien encumbering the equipment or machinery so acquired does
not encumber any other asset of the Tenant or such Subsidiary;
(ix) easements, rights-of-way, restrictions (including zoning
restrictions), encroachments, protrusions and other similar charges or
encumbrances, and minor title deficiencies, in each case whether now or
hereafter in existence, not securing Indebtedness and not materially
interfering with the conduct of the business of the Tenant or any of its
Subsidiaries;
(x) Liens arising from precautionary UCC financing statement filings
regarding operating leases entered into by the Tenant or any of its
Subsidiaries in the ordinary course of business;
(xi) Liens arising out of the existence of judgments or awards not
constituting an Event of Default, provided that no cash or property is
deposited or delivered to secure the respective judgment or award (or any
appeal bond in respect thereof, except as permitted by following clause
(xiii));
(xii) statutory and contractual landlords' liens under leases to
which the Tenant or any of its Subsidiaries is a party;
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(xiii) Liens (other than any Lien imposed by ERISA) (x) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security or (y) to secure the performance of tenders, statutory
obligations (other than excise taxes), surety, stay, customs and appeal
bonds, statutory bonds, bids, leases, government contracts, trade
contracts, performance and return of money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money)
and (z) deposits made in the ordinary course of business to secure
liability for premiums to insurance carriers, provided that the aggregate
amount of deposits at any time pursuant to clauses (y) and (z) shall not
exceed $1,000,000 in the aggregate;
(xiv) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this Lease;
(xv) Liens in favor of a banking institution arising as matter of law
encumbering the deposits (including the right of setoff) held by such
banking institution incurred in the ordinary course of business and which
are within the general parameters customary in the banking industry;
(xvi) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the Tenant or any of its Subsidiaries in the ordinary course of business
in accordance with the past practices of the Tenant and its Subsidiaries
prior to the date hereof;
(xvii) deposits made to secure statutory obligations in the form of
excise taxes;
(xviii) Liens arising out of barter transactions or arrangements for
the sale or purchase of goods or services entered into by the Tenant or
any of its Subsidiaries in the ordinary course of business in accordance
with the past practices of the Tenant and its Subsidiaries prior to the
date hereof;
(xix) Liens on cash collateral not to exceed $500,000 arising in
connection with Other Hedging Agreements permitted under Section 6(iii);
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(xx) Liens on one (but not both) Specified Property arising pursuant
to, and created as a result of, a sale-leaseback transaction permitted
pursuant to Section 3(xiii); and
(xxi) Liens not otherwise permitted by the foregoing clauses (i)
through (xx) to the extent attaching to properties and assets with an
aggregate fair value not in excess of, and securing liabilities not in
excess of, $1,500,000 in the aggregate at any time outstanding.
3. Consolidation. Merger, Purchase or Sale of Assets, etc. Tenant
will not, and will not permit its Subsidiaries to, wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of (or agree to do any of the
foregoing at any time except with the Landlord's prior written consent) all or
any part of its property or assets, or enter into any sale-leaseback
transactions, or purchase or otherwise acquire (in one or a series of related
transactions) any part of the property or assets (other than purchases or other
acquisitions of inventory, materials, equipment and intangible assets in the
ordinary course of business) of any Person, except that:
(i) Capital Expenditures by the Tenant and its Subsidiaries shall be
permitted to the extent not in violation of Section 8;
(ii) each of the Tenant and its Subsidiaries may (x) in the ordinary
course of business, sell, lease or otherwise dispose of any assets which,
in the reasonable judgment of such Person, are obsolete, worn out or
otherwise no longer useful in the conduct of such Person's business and
(y) sell, lease or otherwise dispose of any other assets, provided that
the aggregate Net Sale Proceeds of all assets subject to sales or other
dispositions pursuant to this clause (ii) which are not reinvested to
acquire Reinvestment Assets in accordance with this Lease shall not exceed
$1,000,000 in any Fiscal Year;
(iii) sales of assets the Net Sale Proceeds of which are used to
acquire Reinvestment Assets in accordance with this Lease;
(iv) investments may be made to the extent permitted by Section 6;
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(v) each of the Tenant and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long as
any such lease does not create a Capitalized Lease Obligation except to
the extent permitted by Section 5);
(vi) each of the Tenant and its Subsidiaries may make sales or
transfers of inventory in the ordinary course of business and consistent
with past practices (including, without limitation, sales or transfers of
inventory by the Tenant to its Subsidiaries so long as at fair market
value);
(vii) so long as no Default or Event of Default then exists or would
result therefrom, Tenant and its Wholly-Owned Subsidiaries (other than
NSL) may acquire the capital stock or assets of any Person provided that
(x) any such acquisition is for at least a majority of the capital stock
or all or substantially all of the business of, or an operating division
or a business unit, of such Person (each such acquisition permitted by
this clause (vii), a "Permitted Section 3(vii) Acquisition") and (y) the
aggregate amount expended pursuant to this clause (vii) does not exceed
$10,000,000 at any time minus the aggregate amount of investments made by
Tenant or any of its Wholly-Owned Subsidiaries pursuant to Section
6(xiii), it being understood that if any such Permitted Section 3(vii)
Acquisitions are made by Holdings, the Tenant may Dividend, advance or
loan such amount to Holdings so long as the aggregate amount of all such
Dividends, advances and loans does not exceed the limitation set forth
above;
(viii) the Tenant and its Subsidiaries may sell or discount, in each
case without recourse and in the ordinary course of business, accounts
receivable arising in the ordinary course of business (x) which are
overdue or (y) which the Tenant may reasonably determine are difficult to
collect, but only in connection with the compromise or collection thereof
consistent with customary industry practice (and not as part of any bulk
sale or financing of receivables);
(ix) transfers of condemned property to the respective governmental
authority or agency that have condemned same (whether by deed in lieu of
condemnation or otherwise), and transfers of properties that have been
subject to a casualty to the respective insurer of such property as part
of an insurance settlement;
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(x) license or sublicenses by the Tenant and its Subsidiaries of
software, trademarks and other intellectual property in the ordinary
course of business and which do not materially interfere with the business
of the Tenant or any Subsidiary;
(xi) the Tenant or any Wholly-Owned Subsidiary of the Tenant may
transfer assets to or lease assets to or acquire or lease assets from the
Tenant or any other Wholly-Owned Subsidiary so long as the aggregate fair
market value of all assets transferred or leased pursuant to this clause
(xi) does not exceed $500,000;
(xii) any Wholly-Owned Subsidiary of the Tenant may be merged into
the Tenant (as long as the Tenant is the surviving corporation of such
merger) or any other Wholly-Owned Subsidiary of the Tenant; and
(xiii) so long as no Event of Default is in existence at the time the
respective sale-leaseback transaction is effected or would exist
immediately after giving effect thereto, the Tenant may enter into a
sale-leaseback transaction in respect of either (but not both) of the
Specified Properties so long as (x) such sale is for cash and at fair
market value (as determined in good faith by management of the Tenant),
(y) the cash consideration is received at the time of the closing of such
transaction, and (z) the documentation with respect to such transaction is
reasonably satisfactory to the Landlord.
4. Dividends. Tenant shall not, and shall not permit any of its
Subsidiaries to, authorize, declare or pay any Dividends with respect to Tenant
or any of its Subsidiaries, except that:
(i) any Subsidiary of the Tenant may pay Dividends to the Tenant or
any Wholly-Owned Subsidiary of the Tenant;
(ii) the Tenant may pay cash Dividends to Holdings for the purpose of
paying, so long as all proceeds thereof are promptly used by Holdings to
pay, its operating expenses, incurred in the ordinary course of business
and other corporate overhead costs and expenses (including, without
limitation, legal and accounting expenses and similar expenses), provided
that the aggregate amount of cash Dividends paid pursuant to this clause
(ii) shall not exceed $250,000 during any Fiscal Year;
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(iii) the Tenant may pay cash Dividends to Holdings for the purpose
of paying, so long as all proceeds thereof are promptly used by Holdings
to pay, franchise taxes and federal, state and local income taxes and
interest and penalties with respect thereto, if any, payable by Holdings,
provided that any refund shall be promptly returned by Holdings to the
Tenant;
(iv) the Tenant may pay cash Dividends to Holdings for the purpose of
paying, so long as all proceeds thereof are promptly used by Holdings to
pay, management fees or executive compensation to the extent such
management fees or executive compensation are permitted by Section 7(iv);
(v) so long as no Event of Default then exists or would result
therefrom, the Tenant may pay cash Dividends to Holdings for the purpose
of enabling Holdings to pay the fees owing under the Monitoring
Agreements;
(vi) the Tenant may pay cash Dividends to Holdings for the purpose of
enabling Holdings to repurchase its common stock or options to purchase
its common stock, so long as all proceeds thereof are promptly used by
Holdings to make such purchases;
(vii) so long as no Event of Default then exists or would result
therefrom, the Tenant may pay cash Dividends to Holdings for the purpose
of enabling Holdings to make payments on the ▇▇▇▇▇▇▇▇ Note, provided that
the amounts of such payments do not exceed the amount necessary for the
payment of scheduled principal and interest thereon; and
(viii) the Tenant may pay cash Dividends to Holdings for the purpose
of enabling Holdings to make Permitted Section 3(vii) Acquisitions or
investments permitted by Section 6(xiii), provided the amount of such
Dividends is permitted by Section 3(vii) or 7(xiii), as the case may be.
5. Indebtedness. Tenant will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Lease and the other BT
Loan Documents;
(ii) Indebtedness of Tenant pursuant to the Senior Note Documents in
an aggregate principal amount not to exceed $163,000,000 at any time
outstanding;
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(iii) Existing Indebtedness shall be permitted, and any refinancings
or renewals thereof so long as any such refinancing or renewal (x) shall
not exceed the principal amount of such Existing Indebtedness outstanding
at the time of the refinancing or renewal thereof, and (y) shall be on
terms and conditions (including, without limitation, with respect to the
obligor and guarantors, if any, in respect of such Existing Indebtedness,
amortization schedules, interest rates, redemption provisions, covenants,
defaults, security and remedies) no less favorable to the Tenant and its
Subsidiaries than the terms and conditions of the Existing Indebtedness so
refinanced or renewed;
(iv) accrued expenses and current trade accounts payable incurred in
the ordinary course of business;
(v) Indebtedness under Interest Rate Protection Agreements and Other
Hedging Agreements;
(vi) Indebtedness evidenced by Capitalized Lease obligations to the
extent permitted pursuant to Section 8;
(vii) intercompany Indebtedness of any Wholly-Owned Subsidiary of
Holdings owing to the Tenant or any other Wholly-Owned Subsidiary of
Holdings, or of the Tenant owing to any Wholly-Owned Subsidiary of
Holdings, to the extent permitted by Section 6;
(viii) Indebtedness of any Wholly-Owned Subsidiary of the Tenant to
the Tenant or another Wholly-Owned Subsidiary of the Tenant constituting
the purchase price in respect of intercompany transfers of goods made in
the Ordinary course of business to the extent not constituting
Indebtedness for borrowed money;
(ix) Indebtedness subject to liens permitted under Section 2(viii);
(x) Contingent Obligations of the Tenant or any subsidiary as a
guarantor of the lessee under any lease pursuant to which the Tenant or a
Subsidiary is the lessee so long as such lease is otherwise permitted
hereunder;
(xi) Indebtedness evidenced by Capitalized Lease obligations to the
extent incurred pursuant to Section 3(xii);
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(xii) additional indebtedness not to exceed $5,000,000 in aggregate
principal amount outstanding at any one time; and
(xiii) accounts payable incurred by the Tenant and owing to NSL in
existence on January 31, 1997 that arose from services rendered by NSL to
the Tenant and accounts payable arising from time to time after January
31, 1997, consistent with past practices, incurred by the Tenant as a
result of services rendered by NSL to the Tenant to the extent permitted
by Section 7(ix), which accounts payable, at the time of the creation
thereof, do not exceed the costs incurred by NSL (as determined on any
reasonable basis) in providing the respective services to the Tenant;
provided that the proceeds from any payments received by NSL are promptly
used within ten (10) Business Days by NSL to pay its operating expenses
incurred in the ordinary course of business and other corporate overhead
costs and expenses.
6. Advances, Investments and Loans. Tenant will not, and will not
permit any of its Subsidiaries to, directly or indirectly, lend money or credit
or make advances to any Person, or purchase or acquire any stock, obligations
or securities of, or any other interest in, or make any capital contribution
to, any other Person, or purchase or own a futures contract or otherwise become
liable for the purchase or sale of currency or other commodities at a future
date in the nature of a futures contract or hold any cash or Cash Equivalents,
except that the following shall be permitted:
(i) the Tenant and its Subsidiaries may acquire and hold accounts
receivables owing to any of them, it created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary terms;
(ii) the Tenant and its Subsidiaries may acquire and hold cash and
Cash Equivalents;
(iii) the Tenant may enter into Interest Rate protection Agreements
and Other Hedging Agreements to the extent permitted by Section 5;
(iv) any Wholly-Owned Subsidiary of the Tenant may make intercompany
loans and advances to the Tenant or any other Wholly-Owned Subsidiary of
the Tenant, and the Tenant may make intercompany loans and advances to any
Wholly-Owned Subsidiary of the Tenant, provided that the aggregate
principal amount of all such loans and advances (determined
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without regard to any write-downs or writeoffs thereof) does not exceed
$500,000 at any time outstanding;
(v) the Tenant and it Subsidiaries may sell or transfer assets to
each other to the extent permitted by Section 3;
(vi) the Tenant may establish Subsidiaries to the extent permitted by
Section 15;
(vii) promissory notes and other similar non-cash consideration
received by the Tenant and its Subsidiaries in connection with
dispositions permitted by Section 3 so long as the aggregate principal
amount thereof does not exceed $1,000,000 at any one time outstanding;
(viii) the Tenant and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(ix) advances, loans and investments in existence on January 31, 1997
without giving effect to any additions thereto or replacements thereof,
shall be permitted;
(x) the Tenant and its Subsidiaries may make loans and advances to
officers, employees and directors of Holdings and its Subsidiaries for
moving, entertainment, travel and other similar expenses, in each case
incurred in the ordinary course of business, in an aggregate outstanding
principal amount not to exceed $250,000 at any time;
(xi) Permitted Section 3(vii) Acquisitions shall be permitted; and
(xii) in addition to investments permitted by clauses (i) through
(xi) above, Tenant and its Wholly-Owned Subsidiaries (other than NSL) may
make additional investments, which may (but shall not be required to be)
be made in Unrestricted Subsidiaries, in a Person in an aggregate amount
which, when added to the aggregate amount expended on Permitted Section
3(vii) Acquisitions, does not exceed $10,000,000 at any time.
7. Transactions with Affiliates. Tenant will not, and will not permit
any of its Subsidiaries to, enter into any
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transaction or series of related transactions, whether or not in the ordinary
course of business, with any Affiliate of Holdings or any of its Subsidiaries,
other than in the ordinary course of business and on terms and conditions
substantially as favorable to Holdings or such Subsidiary as would reasonably
be obtained by Holdings or such Subsidiary at that time in a comparable
arm's-length transaction with a Person other than an Affiliate, except that:
(i) Dividends may be paid to the extent provided in Section 4;
(ii) loans may be made and other transactions may be entered into
between the Tenant and its Subsidiaries to the extent permitted by
Sections 3, 5 and 6;
(iii) customary fees may be paid to non-officer directors of
Holdings;
(iv) Holdings and its Subsidiaries may enter into employment
arrangements with respect to the procurement of services of their
respective officers and employees in the ordinary course of business;
(v) Holdings may make capital contributions to the Tenant;
(vi) Holdings and its Subsidiaries may make payments under the
Holdings Tax Allocation Agreement;
(vii) Holdings and/or the Tenant may make payments in connection with
the Monitoring Agreements;
(viii) the Tenant may make payments required by the EDS Agreement;
and
(ix) the Tenant may make payments to NSL in respect of services
rendered by NSL in accordance with past practices.
8. Capital Expenditures. (a) Tenant will not, and will not permit any
of its Subsidiaries to, make any Capital Expenditures, except that during any
Fiscal Year the Tenant and its Subsidiaries may make Capital Expenditures so
long as the aggregate amount of such Capital Expenditures made under this
Section 8(a) does not exceed in any Fiscal Year set forth below the amount set
forth opposite such Fiscal Year:
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Fiscal Year Amount
----------- ------
1997 $14,000,000
1998 $12,000,000
1999 $12,000,000
2000 $12,000,000
2001 $12,000,000
2002 $7,000,000
(b) Notwithstanding anything to the contrary contained in clause (a)
above, to the extent that the aggregate amount of Capital Expenditures made by
the Tenant and its Subsidiaries in any Fiscal Year are less than the amount set
forth above with respect to such Fiscal Year, up to 50% of the amount of such
difference may be carried forward and used to make Capital Expenditures in the
immediately succeeding Fiscal Year.
(c) In addition to the Capital Expenditures permitted by the
preceding clauses (a) and (b), Tenant and its Subsidiaries may make additional
Capital Expenditures to the extent permitted under the BT Credit Agreement.
9. Minimum Consolidated Interest Coverage Ratio. Tenant will not
permit the Consolidated Interest Coverage Ratio for any Test Period (taken as
one accounting period) ended on the last day of a fiscal quarter of the Tenant
described below to be less than the amount set forth opposite such fiscal
quarter below:
Fiscal Quarter Ended
Closest
to the Last-Day In Ratio
------------------- -----
June, 1997 1.20:1.00
September, 1997 1.20:1.00
December, 1997 1.30:1.00
March, 1998 1.35:1.00
June, 1998 1.45:1.00
September, 1998 1.45:1.00
December, 1998 1.55:1.00
March, 1999 1.65:1.00
June, 1999 1.70:1.00
September, 1999 1.75:1.00
December, 1999 1.80:1.00
March, 2000 1.90:1.00
June, 2000 1.95:1.00
September, 2000 2.00:1.00
December, 2000 2.05:1.00
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March, 2001 2.15:1.00
June, 2001 2.25:1.00
September, 2001 2.30:1.00
December, 2001 and thereafter 2.35:1.00
10. Minimum Consolidated EBITDA. Tenant shall not permit Consolidated
EBITDA for any Test Period, in each case taken as one accounting period, ended
on the last day of a fiscal quarter of Tenant set forth below to be less than
the amount set forth opposite such fiscal quarter below:
Fiscal Quarter Ended
Closest
to the Last Day In Amount
------------------- ------
June, 1997 $29,000,000
September, 1997 $30,000,000
December, 1997 $32,000,000
March, 1998 $34,000,000
June, 1998 $35,500,000
September, 1998 $36,500,000
December, 1998 $38,500,000
March, 1999 $40,500,000
June, 1999 $42,000,000
September, 1999 $42,000,000
December, 1999 $43,000,000
March, 2000 $45,500,000
June, 2000 $47,500,000
September, 2000 $48,500,000
December, 2000 $50,000,000
March, 2001 $52,000,000
June, 2001 $53,500,000
September, 2001 $54,500,000
December, 2001 and thereafter $56,500,000
11. Limitation on Modifications of Indebtedness and Payments of
Indebtedness: Modifications of Certificate of Incorporation, By-Laws and
Certain Other Agreements; etc. Tenant will not, and will not permit any of its
Subsidiaries to (i) amend or modify, or permit the amendment or modification
of, any provision of the Existing Indebtedness, the Senior Note Documents, the
Holdings Tax Allocation Agreement, the Monitoring Agreements, the EDS Agreement
or of any agreement (including, without limitation, any purchase agreement,
indenture, loan agreement or security agreement) relating thereto other than
any amendments or modifications to the Existing Indebtedness which do not in
any way materially adversely affect the interests of the Landlord, (ii) make
(or give any notice in respect of) any
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voluntary or optional payment or prepayment on or redemption or acquisition for
value of, or any prepayment or redemption as a result of any asset sale, change
of control or similar event of, any Existing Indebtedness or the Senior Note
Documents, or (iii) amend, modify or change its Certificate of Incorporation
(including, without limitation, by the filing or modification of any
certificate of designation) or By-Laws, or any agreement entered into by it,
with respect to its capital stock (including any shareholders' agreement), or
enter into any new agreement with respect to its capital stock, other than any
amendments, modifications or changes pursuant to this clause (iii) or any such
new agreements pursuant to this clause (iii) which do not in any way materially
adversely affect the interest of the Landlord.
12. Limitation on Certain Restrictions on Subsidiaries. Tenant will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by Tenant or any Subsidiary of
Tenant, or pay any Indebtedness owed to Tenant or a Subsidiary of Tenant, (b)
make loans or advances to Tenant or any of Tenant's Subsidiaries or (c)
transfer any of its properties or assets to Tenant, the Tenant or any other
Subsidiary, except for such encumbrances or restrictions existing; under or by
reason of (i) applicable law, (ii) this Lease and the BT Loan Documents, (iii)
customary provisions restricting subletting or assignment of any lease
governing a leasehold interest of the Tenant or a Subsidiary of the Tenant and
(iv) customary provisions restricting assignment of any licensing agreement
entered into by the Tenant or a Subsidiary of the Tenant in the ordinary course
of business.
13. Limitation on Issuance of Capital Stock. Tenant shall not issue,
or permit any of its Subsidiaries to issue (i) any preferred stock or (ii) any
redeemable common stock unless, in either case, all terms thereof are
satisfactory to the Landlord in its sole discretion, provided that Subsidiaries
formed after January 31, 1997 pursuant to Section 15 may issue capital stock to
the Tenant or the Subsidiary of the Tenant which is to own such stock.
14. Changes in Business. The Tenant and its Subsidiaries will not
engage in any business other than the business engaged in by them as of January
31, 1997 and activities directly related thereto, and businesses complementary
to the business or similar or related businesses.
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15. Limitation on Creation of Subsidiaries. Tenant shall not, and
shall not permit any Subsidiary to, establish create or acquire any additional
Subsidiaries without the prior written consent of the Lender.
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SCHEDULE I
Existing Indebtedness
1. Capital Leases:
Lessor Outstanding Balance as of
------ -------------------------
12/31/96
--------
Siemens Credit Corp. $ 13,780
▇▇▇▇ & ▇▇▇▇▇▇ $ 13,133
Siemens Credit Corp. $ 275,952
▇▇▇▇ & ▇▇▇▇▇▇ $ 17,522
Northland Financial $ 7,196,089
Northland Financial $ 13,008,134
Ireland $ 6,070
2. Fredericksburg Mortgage - $1,383,946 outstanding as of December 31, 1996.
3. Master Agreement for Neodata Services by and between NEODATA SERVICES,
INC. and ▇▇▇▇▇▇▇▇ CORPORATION - $3,987,022 outstanding as of December 31,
1996.
4. Lease Agreement by and between NEODATA SERVICES, INC., as Tenant, and
▇▇▇▇▇ PARTNERSHIP, as Landlord, pertaining to premises located at 1800 and
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
5. The BT Credit Agreement.
6. The Senior Notes.
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