Exhibit 4.8
DICTAPHONE CORPORATION
LIMITED WAIVER AND FIRST AMENDMENT
TO CREDIT AGREEMENT
This LIMITED WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT (this
"AMENDMENT") is dated as of December 31, 1998 and entered into by and among
DICTAPHONE CORPORATION (successor to Dictaphone Acquisition Inc.), a Delaware
corporation ("COMPANY"), and the financial institutions listed on the signature
pages hereof ("LENDERS"), and is made with reference to that certain Credit
Agreement dated as of November 14, 1997 (the "CREDIT AGREEMENT"), by and among
Company, Lenders, Xxxxxx Xxxxxxx Senior Funding, Inc., as syndication agent for
lenders, and Bankers Trust Company, as administrative agent for Lenders and as
collateral agent for Lenders. Capitalized terms used herein without definition
shall have the same meanings herein as set forth in the Credit Agreement.
R E C I T A L S
- - - - - - - -
WHEREAS, Company has informed Lenders that it will not be in compliance
with the covenants set forth in subsection 7.6 of the Credit Agreement as of
December 31, 1998 and for the four-Fiscal Quarter period ending on such date;
WHEREAS, Company has requested Lenders to waive Company's compliance
with subsection 7.6 of the Credit Agreement as of December 31, 1998 and for the
four-Fiscal Quarter period ending on such date;
WHEREAS, Stonington Fund has agreed to provide Company with $20,000,000
in new cash equity contributions, the proceeds of which Company desires to use
for working capital and general corporate purposes; and
WHEREAS, Company also desires (i) to consummate the Melbourne Asset
Sale, (ii) to retain a portion of the proceeds thereof for working capital and
general corporate purposes, and (iii) to use the remainder of the proceeds
thereof (a) to prepay certain scheduled principal installments in respect of the
Loans and the Existing Tranche B Term Loans and (b) to reduce the Subordinated
Indebtedness evidenced by the Subordinated Notes by making certain scheduled
interest payments and repurchasing certain Subordinated Notes.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. WAIVER
Subject to the terms and conditions set forth herein and in reliance on
the representations and warranties of Company herein contained, Lenders hereby
waive compliance by Company with the provisions of subsection 7.6 of the Credit
Agreement as of December 31, 1998 and for the four-Fiscal Quarter period ending
on such date.
SECTION 2. LIMITATION OF WAIVER
Without limiting the generality of the provisions of subsection 10.6 of
the Credit Agreement, the waiver set forth above shall be limited precisely as
written and shall relate solely to Company's non-compliance with the provisions
of subsection 7.6 of the Credit Agreement in the manner and to the extent
described above, and nothing in this Amendment shall be deemed to:
(i) constitute a waiver of compliance by Company with respect to (a)
subsection 7.6 of the Credit Agreement in any other instance for any period
commencing after December 31, 1998 or (b) any other term, provision or
condition of the Credit Agreement, the other Loan Documents or any other
instrument or agreement referred to therein (whether in connection with the
above waiver or otherwise); or
(ii) prejudice any right or remedy that Agent or any Lender may now
have or may have in the future under or in connection with the Credit
Agreement, the other Loan Documents, any other instrument or agreement
referred to therein or under applicable law.
Except as expressly set forth herein, the terms, provisions and
conditions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect and in all other respects are hereby ratified and
confirmed.
SECTION 3. AMENDMENTS TO THE CREDIT AGREEMENT
3.1 AMENDMENTS TO SUBSECTION 1.1: CERTAIN DEFINED TERMS.
----------------------------------------------------
A. AMENDMENTS TO EXISTING DEFINITIONS. Certain definitions contained
in subsection 1.1 of the Credit Agreement are hereby amended as
follows:
(i) The definition of "CONSOLIDATED NET WORTH" is hereby amended
by adding the phrase "or the Melbourne Asset Sale"
immediately after the phrase "Specified Asset Sale/Financing"
contained therein.
(ii) The definition of "SPECIFIED ASSET SALE/FINANCING" is hereby
amended by deleting it in its entirety and substituting
therefor the following:
"SPECIFIED ASSET SALE/FINANCING" means each of the
Headquarters Asset Sale, the Headquarters Financing
and/or the Swiss Asset Sale.
B. ADDITION OF NEW DEFINITIONS. Subsection 1.1 of the Credit
Agreement is hereby amended by adding thereto the following
definitions which shall be inserted in proper alphabetical order:
"JANUARY 1999 EQUITY" means not less than $20,000,000 in new
cash payment in kind preferred equity contributions made to
Company by the Stonington Fund on or before January 28, 1999.
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"FIRST AMENDMENT" means that certain Limited Waiver and First
Amendment to Credit Agreement dated as of December 31, 1998
by and among Company and Lenders.
"FIRST AMENDMENT EFFECTIVE DATE" has the meaning assigned to
that term in the First Amendment.
"FIFTH AMENDMENT TO EXISTING CREDIT AGREEMENT" means that
certain Limited Waiver and Fifth Amendment to Credit
Agreement dated as of December 31, 1998 by and among Company
and Existing Lenders.
"INITIAL PREPAYMENT AMOUNT" means the first $35,000,000 of
the Net Cash Proceeds of the Melbourne Asset Sale, Lenders'
Share of which amount shall be applied to prepay the Loans
pursuant to subsection 2.4B(ii)(b).
"INITIAL RETAINED AMOUNT" has the meaning assigned to that
term in subsection 2.4B(ii)(b).
3.2 AMENDMENTS TO SUBSECTION 2.4A: SCHEDULED PAYMENTS OF LOANS.
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Subsection 2.4A of the redit Agreement is hereby amended as follows:
(i) The table set forth in subsection 2.4A is deleted in its
entirety and the following table is substituted therefor:
DATE SCHEDULED REPAYMENT OF LOANS
---- ----------------------------
December 31, 1998 $627,500
December 31, 1999 $627,500
December 31, 2000 $627,500
December 31, 2001 $627,500
June 30, 2002 $60,240,000
--------------------- ----------------------------
Total $62,750,000
(ii) The reference to "June 30, 2003" contained in the second
proviso of subsection 2.4A is deleted and "June 30, 2002" is
substituted therefor.
3.3 AMENDMENTS TO SUBSECTION 2.4B: PREPAYMENTS.
------------------------------------------
A. MANDATORY PREPAYMENT EVENTS. Subsection 2.4B(ii) of the Credit
Agreement is hereby amended as follows:
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(i) Paragraph (a) of subsection 2.4B(ii) of the Credit
Agreement is amended by adding the phrase "or the
Melbourne Asset Sale" immediately after the phrase
"Specified Asset Sale/Financing".
(ii) Paragraphs (b), (c), (d), (e), and (f) of subsection
2.4B(ii) of the Credit Agreement are relettered as (c),
(d), (e), (f), and (g).
(iii) A new paragraph (b) of subsection 2.4B(ii) of the Credit
Agreement is added as follows:
"(b) PREPAYMENTS FROM THE MELBOURNE ASSET SALE.
On the date of receipt by Company or any of its
Subsidiaries of any Cash Proceeds of an Asset Sale
constituting the Melbourne Asset Sale, Company shall
prepay the Loans in an amount equal to Lenders' Share of
the Net Cash Proceeds of the Melbourne Asset Sale;
PROVIDED that, anything contained herein to the contrary
notwithstanding, (1) from and after such time as the
aggregate Net Cash Proceeds of the Melbourne Asset Sale
equals or exceeds the Initial Prepayment Amount, Company
shall be entitled to retain (without any corresponding
prepayment under this subsection 2.4B(ii)(b)) the next
$20,000,000 in excess of the Initial Prepayment Amount
(the "INITIAL RETAINED AMOUNT") of the Net Cash Proceeds
of the Melbourne Asset Sale and (2) from and after such
time as the aggregate Net Cash Proceeds of the Melbourne
Asset Sale equals or exceeds $55,000,000, Company shall
prepay the Loans in an amount equal to Lenders' Share of
50% of the Net Cash Proceeds of the Melbourne Asset Sale
in excess of $55,000,000 (any Net Cash Proceeds of the
Melbourne Asset Sale being retained by Company pursuant
to this clause (2) shall not be subject to prepayment
under this subsection 2.4B(ii)(b)); and PROVIDED,
FURTHER that, to the extent any portion of Existing
Lenders' Share of any Net Cash Proceeds of the Melbourne
Asset Sale are not applied to prepay the Existing
Tranche B Term Loans as required under subsection
2.4B(iii)(c) of the Existing Credit Agreement as in
effect on the First Amendment Effective Date (after
giving effect to the Fifth Amendment to Existing Credit
Agreement), Company shall promptly make an additional
prepayment of the Loans in an amount equal to such
portion not so applied to prepay the Existing Tranche B
Term Loans. Any prepayments of the Loans pursuant to
this subsection 2.4B(ii)(b) shall be applied to the
remaining scheduled installments of principal of the
Loans set forth in subsection 2.4A in forward order of
maturity."
(iv) Paragraph (b) of subsection 2.4B(ii) of the Credit
Agreement (before giving effect to the relettering of
such paragraph) is amended by deleting "(other than Cash
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proceeds of any Headquarters Financing or any other
Indebtedness permitted under subsection 7.1)" and
substituting therefor the following:
"(other than the January 1999 Equity, the Cash
proceeds of any Headquarters Financing or any other
Indebtedness permitted under subsection 7.1)".
(v) Paragraph (f) of subsection 2.4B(ii) of the Credit
Agreement (before giving effect to the relettering
of such paragraph) is amended by:
(a) deleting the reference to "subsections
2.4B(ii)(a)-(e)" contained therein and substituting
therefor "subsections 2.4B(ii)(a)-(f)"; and
(b) adding the phrase "(including, without limitation,
the Melbourne Asset Sale)" immediately after the
phrase "Net Cash Proceeds of Asset Sale".
B. APPLICATION OF PREPAYMENTS. Subsection 2.4B(iii)(b) of the Credit
Agreement is hereby amended by deleting it in its entirety and
substituting therefor the following:
"(b) APPLICATION OF MANDATORY PREPAYMENTS OF LOANS TO THE
SCHEDULED INSTALLMENTS OF PRINCIPAL THEREOF. Except as
provided in subsection 2.4B(ii)(b), any mandatory
prepayment of the Loans shall be applied to reduce the
scheduled installments of principal of the Loans set
forth in subsection 2.4A in inverse order of maturity."
3.4 AMENDMENTS TO SUBSECTION 6.4: MAINTENANCE OF PROPERTIES; INSURANCE.
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Subsection 6.4 of the Credit Agreement is amended (a) by deleting
the phrase "subsection 2.4B(ii)(a) and" and (b) by adding the phrase "and
subsection 2.4B(iii)(d)" immediately after the phrase "subsection
2.4B(iii)(c)".
3.5 AMENDMENTS TO SUBSECTION 7.5: RESTRICTED JUNIOR PAYMENTS.
---------------------------------------------------------
Subsection 7.5 of the Credit Agreement is hereby amended by deleting
it in its entirety and substituting therefor the following:
"7.5 RESTRICTED JUNIOR PAYMENTS.
--------------------------
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order,
pay, make or set apart any sum for any Restricted Junior
Payment; PROVIDED that (i) on or after August 1, 1999,
Company may repurchase certain Subordinated Notes so long as
(a) such Subordinated Notes are repurchased only with
proceeds of the Melbourne Asset Sale constituting all or a
portion of the Initial Retained Amount, (b) Company shall
have made the regularly scheduled interest payment due on
August 1, 1999 in respect of the Subordinated Notes (subject
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to clause (ii) hereof), and (c) no Event of Default or
Potential Event of Default shall have occurred and be
continuing or shall be caused thereby; (ii) Company may make
regularly scheduled payments of interest in respect of the
Subordinated Indebtedness in accordance with the terms of,
and only to the extent required by, and subject to the
subordination provisions contained in, the indenture or
other agreement pursuant to which such Subordinated
Indebtedness was issued, as such indenture or other
agreement may be amended from time to time to the extent
permitted under subsection 7.15B; and (iii) so long as no
Event of Default or Potential Event of Default shall have
occurred and be continuing or shall be caused thereby,
Company may make Restricted Junior Payments to repurchase
shares of Company Common Stock (or options or warrants to
acquire Company Common Stock) from Management Investors in
accordance with the terms of the Stockholders Agreement."
3.6 AMENDMENTS TO SUBSECTION 7.6: FINANCIAL COVENANTS.
-------------------------------------------------
Subsections 7.6A, B, and D of the Credit Agreement are hereby amended
by deleting them in their entirety and substituting therefor the following:
"A. MAXIMUM LEVERAGE RATIO. Company shall not permit the ratio of (i)
Consolidated Total Debt as of the last day of any four-Fiscal Quarter
period ending during any of the periods set forth below (or as of the last
day of any of the one, two or three Fiscal Quarter periods, as the case may
be, occurring after January 1, 1999 and ending on or before September 30,
1999) to (ii) Consolidated EBITDA for such one, two, three or four-Fiscal
Quarter period, as the case may be, to exceed the applicable correlative
ratio indicated in the relevant column below (depending on whether or not
the Melbourne Asset Sale has been consummated on or before the last day of
the applicable one, two, three or four-Fiscal Quarter period):
MAXIMUM LEVERAGE RATIO MAXIMUM LEVERAGE RATIO
(BEFORE THE MELBOURNE (AFTER THE MELBOURNE
PERIOD ASSET SALE) ASSET SALE)
--------------------- ----------------------- ------------------------
January 1, 1999 - 13.30:1.00 15.10:1.00
March 31, 1999
April 1, 1999 - 13.40:1.00 15.70:1.00
June 30, 1999
July 1, 1999 - 10.60:1.00 13.00:1.00
September 30, 1999
October 1, 1999 - 6.20:1.00 6.80:1.00
December 31, 1999
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January 1, 2000 - 6.20:1.00 6.60:1.00
March 31, 2000
April 1, 2000 - 5.80:1.00 6.20:1.00
June 30, 2000
July 1, 2000 - 5.50:1.00 5.90:1.00
September 30, 2000
October 1, 2000 - 5.20:1.00 5.70:1.00
December 31, 2000
January 1, 2001 - 5.00:1.00 5.50:1.00
March 31, 2001
April 1, 2001 - 4.80:1.00 5.20:1.00
June 30, 2001
July 1, 2001 - 4.60:1.00 4.90:1.00
September 30, 2001
October 1, 2001 - 4.40:1.00 4.70:1.00
December 31, 2001
January 1, 2002 - 4.20:1.00 4.50:1.00
March 31, 2002
B. MINIMUM CONSOLIDATED EBITDA. Company shall not permit Consolidated
EBITDA for any four Fiscal Quarter period ending on any of the dates set
forth below (or for any of the one, two or three consecutive Fiscal Quarter
periods, as the case may be, occurring after January 1, 1999 and ending on
or before September 30, 1999) to be less than the applicable correlative
amount indicated in the relevant column below (depending on whether or not
the Melbourne Asset Sale has been consummated on or before the last day of
the applicable one, two, three or four-Fiscal Quarter period):
MINIMUM CONSOLIDATED MINIMUM CONSOLIDATED
EBITDA (BEFORE THE EBITDA (AFTER THE
DATE MELBOURNE ASSET SALE) MELBOURNE ASSET SALE)
------------------ ------------------------- ---------------------------
March 30, 1999 8,700,000 7,400,000
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June 30, 1999 19,500,000 16,600,000
September 30, 1999 34,900,000 29,900,000
December 31, 1999 52,100,000 44,800,000
March 30, 2000 55,900,000 47,500,000
June 30, 2000 58,300,000 49,300,000
September 30, 2000 60,700,000 51,300,000
December 31, 2000 61,800,000 52,000,000
March 30, 2001 62,500,000 53,000,000
June 30, 2001 63,500,000 54,100,000
September 30, 2001 65,500,000 55,700,000
December 31, 2001 69,200,000 59,100,000
March 31, 2002 70,300,000 60,000,000
D. MINIMUM INTEREST COVERAGE RATIO. Company shall not permit the ratio
of (i) Consolidated EBITDA MINUS Consolidated Capital Expenditures to (ii)
Consolidated Interest Expense for any four-Fiscal Quarter period ending
during any of the periods set forth below (or for any of the one, two or
three consecutive Fiscal Quarter periods, as the case may be, occurring
after January 1, 1999 and ending on or before September 30, 1999) to be
less than the applicable correlative ratio indicated in the relevant column
below (depending on whether or not the Melbourne Asset Sale has been
consummated on or before the last day of the applicable one, two, three or
four-Fiscal Quarter period):
MINIMUM INTEREST MINIMUM INTEREST
COVERAGE RATIO COVERAGE RATIO
(BEFORE THE MELBOURNE (AFTER THE MELBOURNE
PERIOD ASSET SALE) ASSET SALE)
--------------------- --------------------- --------------------
January 1, 1999 - 0.00:1.00 0.00:1.00
March 31, 1999
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April 1, 1999 - 0.00:1.00 0.00:1.00
June 30, 1999
July 1, 1999- 0.20:1.00 0.15:1.00
September 30, 1999
October 1, 1999 - 0.70:1.00 0.65:1.00
December 31, 1999
January 1, 2000 - 0.70:1.00 0.60:1.00
March 31, 2000
April 1, 2000 - 0.80:1.00 0.60:1.00
June 30, 2000
July 1, 2000 - 0.80:1.00 0.70:1.00
September 30, 2000
October 1, 2000 - 0.90:1.00 0.70:1.00
December 31, 2000
January 1, 2001 - 0.95:1.00 0.70:1.00
March 31, 2001
April 1, 2001 - 1.00:1.00 0.80:1.00
June 30, 2001
July 1, 2001 - 1.05:1.00 0.85:1.00
September 30, 2001
October 1, 2001 - 1.10:1.00 0.90:1.00
December 31, 2001
January 1, 2002 - 1.20:1.00 1.00:1.00
March 31, 2002
3.7 AMENDMENTS TO SUBSECTION 7.7: RESTRICTION ON FUNDAMENTAL CHANGES;
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ASSET SALES AND ACQUISITIONS.
----------------------------
Subsection 7.7(vii) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting therefor the following:
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"(vii) subject to subsection 7.13, Company and its Subsidiaries (a) may
make Asset Sales constituting Specified Asset Sale/Financings or the
Melbourne Asset Sale and (b) may make other Asset Sales of assets having a
fair market value not in excess of $2,000,000 in the aggregate during the
term of this Agreement; PROVIDED that (x) the consideration received for
the assets that are the subject of any such Asset Sale described in the
foregoing clause (a) or (b) shall be in an amount at least equal to the
fair market value thereof; (y) at least 80% (or 100% in the case of the
Melbourne Asset Sale) of the consideration received shall be cash; and (z)
the proceeds of such Asset Sales shall be applied as required by subsection
2.4B(ii)(a) or (b), as the case may be; and PROVIDED, FURTHER that, the
Melbourne Asset Sale shall occur on or before December 31, 1999 and the
consideration received therefor shall be in a net aggregate amount of not
less than $37,500,000."
3.8 AMENDMENT TO SUBSECTION 7.17: RECEIVABLES PROGRAM.
-------------------------------------------------
Subsection 7.17 of the Credit Agreement is amended by deleting the
reference to "subsection 2.4B(ii)(c)" contained therein and substituting
therefor "subsection 2.4B(ii)(d)".
3.9 AMENDMENTS TO SECTION 8: EVENTS OF DEFAULT.
------------------------------------------
Section 8 of the Credit Agreement is hereby amended (a) by adding "or"
at the end of subsection 8.13, and (b) by adding a new subsection 8.14
thereto as follows:
"8.14 STONINGTON FUND'S FAILURE TO MAKE THE JANUARY 1999
--------------------------------------------------
EQUITY CONTRIBUTION.
-------------------
Stonington Fund shall not have contributed the January 1999
Equity to Company on or before January 28, 1999, in cash in an
aggregate amount of at least $20,000,000:"
SECTION 4. CONDITIONS TO EFFECTIVENESS
Sections 1, 2 and 3 of this Amendment shall become effective only upon
the prior or concurrent satisfaction of all of the following conditions (the
date of satisfaction of such conditions being referred to herein as the "FIRST
AMENDMENT EFFECTIVE DATE"):
A. COMPANY DOCUMENTS. On or before the First Amendment Effective Date,
Company shall deliver to Lenders (or to Administrative Agent for
Lenders with sufficient originally executed copies, where appropriate,
for each Lender and its counsel) the following, each, unless otherwise
noted, dated the First Amendment Effective Date:
(i) Resolutions of its Board of Directors approving and
authorizing the execution, delivery, and performance of this
Amendment, certified as of the First Amendment Effective
Date by its corporate secretary or an assistant secretary as
being in full force and effect without modification or
amendment;
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(ii) Signature and incumbency certificates of its officers
executing this Amendment; and
(iii) Executed copies of this Amendment.
B. FIFTH AMENDMENT TO EXISTING CREDIT AGREEMENT. All conditions set
forth in subsection 4 of that certain Fifth Amendment and Limited
Waiver to Credit Agreement dated as of December 31, 1998 by and among
Company and Existing Lenders (the "FIFTH AMENDMENT TO EXISTING CREDIT
AGREEMENT") shall have been satisfied and the Fifth Amendment to
Existing Credit Agreement shall have become effective.
C. OPINION OF COMPANY'S COUNSEL. Lenders shall have received
originally executed copies of a favorable written opinion of Xxx Xxxx,
Esq., counsel for Company, in form and substance satisfactory to
Administrative Agent and its counsel, dated the First Amendment
Effective Date.
D. OTHER PROCEEDINGS. On or before the First Amendment Effective Date,
all corporate and other proceedings taken or to be taken in connection
with the transactions contemplated hereby and all documents incidental
thereto not previously found acceptable by Administrative Agent,
acting on behalf of Lenders, and its counsel shall be satisfactory in
form and substance to Administrative Agent and such counsel, and
Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as
Administrative Agent may reasonably request.
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Company represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. CORPORATE POWER AND AUTHORITY. Company has all requisite corporate
power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the
Credit Agreement as amended by this Agreement (the "AMENDED
AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of Company.
C. NO CONFLICT. The execution and delivery by Company of this
Amendment and the performance by Company of the Amended Agreement do
not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws
of Company or any of its Subsidiaries or any order, judgment or decree
of any court or other agency of government binding on Company or any
of its Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under
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any Contractual Obligation of Company or any of its Subsidiaries,
(iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of Company or any of its Subsidiaries
(other than Liens created under any of the Loan Documents in favor of
Agents on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any
Contractual Obligation of Company or any of its Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by Company of
this Amendment and the performance by Company of the Amended Agreement
do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body.
E. BINDING OBLIGATION. This Amendment has been duly executed and
delivered by Company, and this Amendment and the Amended Agreement are
the legally valid and binding obligations of Company, enforceable
against Company in accordance with their respective terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or
by equitable principles (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5
of the Credit Agreement are and will be true, correct and complete in
all material respects on and as of the First Amendment Effective Date
to the same extent as though made on and as of that date, except to
the extent such representations and warranties specifically relate to
an earlier date, in which case they were true, correct and complete in
all material respects on and as of such earlier date.
G. ABSENCE OF DEFAULT. (i) After giving effect to this Amendment, no
event has occurred and is continuing that would constitute an Event of
Default or a Potential Event of Default and (ii) no Event of Default
or Potential Event of Default will result from the consummation of the
transactions contemplated by this Amendment.
SECTION 6. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
(i) On and after the First Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import
referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring
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to the Credit Agreement shall mean and be a reference to
the Amended Agreement.
(ii) Except as specifically amended or waived by this
Amendment, the Credit Agreement and the other Loan
Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute
a waiver of any provision of, or operate as a waiver of
any right, power or remedy of Agent or any Lender under,
the Credit Agreement or any of the other Loan Documents.
B. FEES AND EXPENSES. Company acknowledges that all costs, fees and
expenses as described in subsection 10.2 of the Credit Agreement
incurred by Administrative Agent and its counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall
be for the account of Company.
C. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given
any substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK).
E. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered (whether in
original form or by telecopy) shall be deemed an original, but all
such counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document. This
Amendment (other than the provisions of Section 1-3 hereof, the
effectiveness of which is governed by Section 4 hereof) shall become
effective upon the execution of a counterpart hereof by Company and by
Requisite Lenders and upon receipt by Company and Administrative Agent
of written or telephonic notification of such execution and
authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
DICTAPHONE CORPORATION
By: /s/ XXXXXX X. XXXXXXXXXX
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Operating Officer
S-1
LENDERS:
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By: /s/ X. XXXXXXX
------------------------------------------------
Name: X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By:
------------------------------------------------
Name:
Title:
CAPTIVA FINANCE LTD.
By: /s/ XXXXX EGGLISHAW
------------------------------------------------
Name: Xxxxx Egglishaw
Title:
CAPTIVA II FINANCE LTD.
By: /s/ XXXXX EGGLISHAW
------------------------------------------------
Name: Xxxxx Egglishaw
Title:
CERES FINANCE LTD.
By: /s/ XXXXX EGGLISHAW
------------------------------------------------
Name: Xxxxx Egglishaw
Title:
S-2
XXXXXXX, SACHS & CO.
By:
------------------------------------------------
Name:
Title:
KZH-PAMCO CORPORATION
By:
------------------------------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD.
Highland Capital Management, L.P.
as Collateral Manager
By: /s/ XXXXX XXXXXXX
------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
Highland Capital Management, L.P.
PAMCO CAYMAN LTD
By Highland Capital Management, L.P.
as Collateral Manager
By:/s/ XXXXX XXXXXXX
------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
Highland Capital Management, L.P.
S-3
PAMCO CAPITAL FUNDING, L.P.
By Highland Capital Management, L.P.
as Collateral Manager
By:/s/ XXXXX XXXXXXX
------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
Highland Capital Management, L.P.
S-4
