Exhibit 4.7
DICTAPHONE CORPORATION
LIMITED WAIVER AND FIFTH AMENDMENT
TO CREDIT AGREEMENT
This LIMITED WAIVER AND FIFTH 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 August 7, 1995, as amended to the date hereof (as so
amended, the "CREDIT AGREEMENT"), by and among Company, Lenders, NationsBank,
N.A. (Carolinas), as documentation 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
Tranche B Term Loans and the New 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.
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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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"FIFTH AMENDMENT" means that certain Limited Waiver and
Fifth Amendment to Credit Agreement dated as of December 31,
1998 by and among Company and Lenders.
"FIFTH AMENDMENT EFFECTIVE DATE" has the meaning assigned to
that term in the Fifth Amendment.
"FIRST AMENDMENT TO NEW CREDIT AGREEMENT" means that certain
Limited Waiver and First Amendment to Credit Agreement dated
as of December 31, 1998 by and among Company and New
Lenders.
"INITIAL PREPAYMENT AMOUNT" means the first $35,000,000 of
the Net Cash Proceeds of the Melbourne Asset Sale, Existing
Lenders' Share of which amount shall be applied to prepay
the Tranche B Term Loans pursuant to subsection
2.4B(iii)(c).
"INITIAL RETAINED AMOUNT" has the meaning assigned to that
term in subsection 2.4B(iii)(c).
3.2 AMENDMENT TO SUBSECTION 2.2A(II): RATE OF INTEREST.
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(i) Subsection 2.2A(ii)(a) of the Credit Agreement is hereby amended
by deleting the reference to "2.25%" contained therein and
substituting therefor "2.75%".
(ii) Subsection 2.2A(ii)(b) of the Credit Agreement is hereby amended
by deleting the reference to "3.25%" contained therein and
substituting therefor "3.75%".
3.3 AMENDMENTS TO SUBSECTION 2.4B: PREPAYMENTS AND REDUCTIONS IN COMMITMENTS.
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A. MANDATORY PREPAYMENT EVENTS. Subsection 2.4B(iii) of the Credit
Agreement is hereby amended as follows:
(i) Paragraphs (c), (d), (e), (f), (g), (h), (i) and (j) of
subsection 2.4B(iii) of the Credit Agreement are relettered as
(d), (e), (f), (g), (h), (i), (j) and (k).
(ii) A new paragraph (c) of subsection 2.4B(iii) of the Credit
Agreement is added as follows:
"(c) 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 Tranche B Term Loans in
an amount equal to Existing 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
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Initial Prepayment Amount, Company shall be entitled to
retain (without any corresponding prepayment under this
subsection 2.4B(iii)(c)) 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 Tranche B Term Loans
in an amount equal to Existing 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(iii)(c)); and PROVIDED, FURTHER that, to the extent any
portion of New Lenders' Share of any Net Cash Proceeds of
the Melbourne Asset Sale are not applied to prepay the New
Term Loans as required under subsection 2.4B(ii)(b) of the
New Credit Agreement as in effect on the Fifth Amendment
Effective Date (after giving effect to the First Amendment
to New Credit Agreement), Company shall promptly make an
additional prepayment of the Tranche B Term Loans in an
amount equal to such portion not so applied to prepay the
New Term Loans. Any prepayments of the Tranche B Term Loans
pursuant to this subsection 2.4B(iii)(c) shall be applied to
the remaining scheduled installments of principal of the
Tranche B Term Loans set forth in subsection 2.4A(ii) in
forward order of maturity."
(iii)Paragraph (c) of subsection 2.4B(iii) of the Credit Agreement
(before giving effect to the relettering of such paragraph) is
amended by adding the phrase "or the Melbourne Asset Sale"
immediately after the phrase "Specified Asset Sale/Financing".
(iv) Paragraph (d) of subsection 2.4B(iii) of the Credit Agreement
(before giving effect to the relettering of such paragraph) is
amended by deleting "(other than Cash 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 (h) of subsection 2.4B(iii) of the Credit Agreement
(before giving effect to the relettering of such paragraph) is
amended by:
(a) deleting the reference to "subsections 2.4B(iii)(b)-(g)"
contained therein and substituting therefor "subsections
2.4B(iii)(b)-(h)"; and
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(b) adding the phrase "(including, without limitation, the
Melbourne Asset Sale)" immediately after the phrase "Net
Cash Proceeds of Asset Sale".
B. APPLICATION OF CERTAIN MANDATORY PREPAYMENTS. Subsection 2.4B(iv)(b) of
the Credit Agreement is hereby amended by deleting it in its entirety and
substituting therefor the following:
"(b) APPLICATION OF CERTAIN MANDATORY PREPAYMENTS OF TRANCHE B TERM
LOANS TO THE SCHEDULED INSTALLMENTS OF PRINCIPAL THEREOF. Any
mandatory prepayments of the Tranche B Term Loans pursuant to
subsections 2.4B(iii)(d)-(h) (and any related such mandatory
prepayments pursuant to subsection 2.4B(iii)(i)) shall be applied to
reduce the remaining scheduled installments of principal of the
Tranche B Term Loans set forth in subsection 2.4A(ii) 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 by deleting each
reference to "subsection 2.4B(iii)(a)" contained therein and substituting
therefor "subsection 2.4B(iii)(d)".
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 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
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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
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
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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
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
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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
PERIOD (BEFORE THE MELBOURNE (AFTER THE MELBOURNE
ASSET SALE) ASSET SALE)
------------------ ---------------------- ---------------------
January 1, 1999 - 0.00:1.00 0.00:1.00
March 31, 1999
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
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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; ASSET
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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:
"(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(iii)(b),
(c) or (d), 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."
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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(iii)(b)" contained therein and substituting
therefor "subsection 2.4B(iii)(d)".
3.9 AMENDMENTS TO SECTION 8: EVENTS OF DEFAULT.
------------------------------------------
Section 8 of the Credit Agreement is hereby amended by deleting ":" at
the end of subsection 8.14 and substituting "; or" therefor, and by adding
a new subsection 8.15 thereto as follows:
"8.15 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 "FIFTH AMENDMENT
EFFECTIVE DATE"):
A. COMPANY DOCUMENTS. On or before the Fifth 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 Fifth 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 Fifth Amendment Effective Date by its
corporate secretary or an assistant secretary as being in full
force and effect without modification or amendment;
(ii) Signature and incumbency certificates of its officers executing
this Amendment;and
(iii) Executed copies of this Amendment.
B. FIRST AMENDMENT TO NEW CREDIT AGREEMENT. All conditions set forth in
subsection 4 of that certain First Amendment and Limited Waiver to Credit
Agreement dated as of December 31, 1998 by and among Company and New
Lenders (the "FIRST AMENDMENT TO NEW CREDIT AGREEMENT") shall have been
satisfied and the First Amendment to New Credit Agreement shall have become
effective.
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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 Fifth Amendment Effective Date.
D. OTHER PROCEEDINGS. On or before the Fifth 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 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.
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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 Fifth 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 Fifth 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 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.
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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, by Requisite Lenders and by Requisite Class Lenders of Lenders
having Tranche B Term Loan Exposure and upon receipt by Company and
Administrative Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
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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. SKRYZYPCZAK
-------------------------------------
Name: Xxxxxx X. Skryzypczak
Title: Chief Operating Officer
S-1
LENDERS:
BANKERS TRUST COMPANY
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
NATIONSBANK, N.A. (CAROLINAS)
By: /s/ XXXXX XXXXXX
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
DK ACQUISITION PARTNERS, L.P.
by X.X. Xxxxxxxx & Co.,
its General Partner
By:
-------------------------------------
Name:
Title:
S-2
THE CHASE MANHATTAN BANK, N.A.
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:
BEAR XXXXXXX INVESTMENT PRODUCTS, INC.
By:
-------------------------------------
Name:
Title:
S-3
XXXXXXX XXXXX SENIOR
FLOATING RATE FUND, INC.
By:
-------------------------------------
Name:
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By:
-------------------------------------
Name:
Title:
XXXXXXX XXXXX DEBT STRATEGIES PORTFOLIO,
INC.
By:
-------------------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD.
By Highland Capital Management, L.P.
as Collateral Manager
By: /s/ XXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
Highland Capital Management, L.P.
S-4
PAMCO CAPITAL
By Highland Capital Management, L.P.
as Collateral Manager
By: /s/ XXXXXX XXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
Highland Capital Management, L.P.
PAMCO CAYMAN LTD.
By Highland Capital Management, L.P.
as Collateral Manager
By: /s/ XXXXXX XXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
Highland Capital Management, X.X.
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By: /s/ X. XXXXXXX
----------------------------------------
Name: X. Xxxxxxx
Title:
FRANKLIN MUTUAL ADVISORS, INC.
By:
----------------------------------------
Name:
Title:
S-5
XXXXXXX XXXXX XXXXXX,
XXXXXX & XXXXX INCORPORATED
By: /s/ XXXX XXXXXXX
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Director
KZH-PAMCO LLC
By: /s/ XXXXXXXX XXXXXX
-------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
PPM AMERICA, INC.
By:
-------------------------------------
Name:
Title:
TD SECURITIES (USA), INC.
By:
-------------------------------------
Name:
Title:
S-6
