AMENDMENT NO. 5
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 5 TO LOAN AND SECURITY AGREEMENT
("Amendment"), dated the 13th day of March, 1998, made by and between
FLEET CAPITAL CORPORATION (formerly known as Shawmut Capital Corporation
and successor by assignment from Barclays Business Credit, Inc.), a Rhode
Island corporation (the "Lender"); and
COMDIAL CORPORATION ("Parent") and its wholly-owned subsidiaries AMERICAN
TELECOMMUNICATIONS CORPORATION ("ATC"), AMERICAN PHONE CENTERS,
INC. ("APC"), COMDIAL ENTERPRISE SYSTEMS, INC. ("CES"), COMDIAL
TELECOMMUNICATIONS INTERNATIONAL, INC. ("CTII"), XXXXX TECHNOLOGIES
CORPORATION ("STC"), COMDIAL CUSTOM MANUFACTURING, INC. ("CCM"),
COMDIAL VIDEO TELEPHONY, INC. ("CVT"), COMDIAL TECHNOLOGY
CORPORATION ("CTC"), COMDIAL TELECOMMUNICATIONS, INC. ("CTI"),
AURORA SYSTEMS, INC. ("ASI"), KEY VOICE TECHNOLOGIES, INC. ("KVTI"), and
CTI's wholly-owned subsidiaries, COMDIAL BUSINESS COMMUNICATIONS
CORPORATION ("CBCC"), and COMDIAL CONSUMER COMMUNICATIONS
CORPORATION ("CCCC"; Parent, ATC, APC, CES, CTII, STC, CCM, CVT, CTC, CTI,
ASI, KVTI, CBCC and CCCC being hereinafter referred to collectively as the
"Borrowers" and, individually, as a "Borrower"), each a Delaware corporation,
to the Loan and Security Agreement, dated February 1, 1994 (as amended,
modified, restated or supplemented from time to time, the "Loan Agreement").
All capitalized terms used herein without definition shall have the meanings
ascribed to such terms in the Loan Agreement.
RECITALS
A. Pursuant to the Loan Agreement, the Lender has agreed to make
loans and extend credit to the Borrowers secured by the Collateral and the
Realty.
B. The Loan Agreement was previously amended by a certain
Consolidated Amendment No. 1 thereto, dated March 13, 1996, a certain Amendment
No. 2 thereto, dated June 28, 1996, a certain Amendment No. 3 thereto, dated
as of September 27, 1996, and a certain Amendment No. 4 thereto, dated March
27, 1997.
C. The Borrowers and the Lender now desire to further amend the Loan
Agreement as set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, the Borrowers and the Lender hereby agree as follows:
ARTICLE I
AMENDMENTS TO LOAN AGREEMENT
The Loan Agreement is hereby amended as follows:
1.1 Definitions. Section 1.1, Definitions, is amended by deleting the
definition of "Adjusted Availability" in its entirety.
1.2. Capital Expenditures. Section 9.2(L), Capital Expenditures, is
amended in its entirety to read as follows:
"(L) Capital Expenditures. Make Capital Expenditures (including,
without limitation, by way of capitalized leases) which, in the aggregate, as
to all Borrowers and their Subsidiaries, exceed $4,500,000 during the fiscal
year ending December 31, 1997; and $5,000,000 during any fiscal year there-
after."
1.3. Leases. Section 9.2(W), Leases, is deleted.
1.4. Consolidated Debt Service Coverage Ratio. Section 9.3(C),
Consolidated Debt Service Coverage Ratio, is amended to provide that for the
first fiscal quarter of the fiscal year ending December 31, 1997 and the
first fiscal quarter of each fiscal year thereafter, the Consolidated Debt
Service Coverage Ratio required to be maintained by the Borrowers shall be
.30 to 1.0.
1.5. Minimum Current Ratio. Section 9.3(D), Minimum Current Ratio, is
deleted.
1.6. Minimum Adjusted Availability. Section 9.3(F), Minimum Adjusted
Availability, is deleted.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to the Lender that:
2.1. Compliance with the Loan Agreement and Other Loan Documents. As of
the execution of this Amendment, each Borrower is in compliance with all of
the terms and provisions set forth in the Loan Agreement and in the other
Loan Documents to be observed or performed by such Borrower, except where
the failure of such Borrower to comply has been waived in writing by the
Lender.
2.2. Representations in Loan Agreement and other Loan Documents. The
representations and warranties of each Borrower set forth in the Loan Agreement
and the other Loan Documents are true and correct in all material respects
except for any changes in the nature of any Borrower's business or operations
which have occurred in the ordinary course of business that would render the
information contained in any exhibit attached to the Loan Agreement either
inaccurate or incomplete in any material respect, so long as (a) the Lender
has consented to such changes, (b) such changes are not expressly prohibited
by the Loan Agreement, or (c) with respect to matters Borrowers are required
to notify Lender of pursuant to Sections 4.9(E) or 9.1(A), Borrowers have
given notice as required by such sections.
2.3. No Event of Default. After giving effect to this Amendment, no Default
or Event of Default exists.
ARTICLE III
MODIFICATION OF LOAN DOCUMENTS
3.1. Loan Documents. The Loan Agreement and each of the other Loan
Documents are amended to provide that any reference to the Loan Agreement
in the Loan Agreement or any of the other Loan Documents shall mean the Loan
Agreement as amended by this Amendment, and as it is further amended, restated,
supplemented or modified from time to time.
ARTICLE IV
GENERAL
4.1. Full Force and Effect. As expressly amended hereby, the Loan Agreement
shall continue in full force and effect in accordance with the provisions
thereof. As used in the Loan Agreement, "hereinafter", "hereto", "hereof"
or words of similar import, shall, unless the context otherwise requires,
mean the Loan Agreement as amended by this Amendment.
4.2 Applicable Law. This Amendment shall be governed by and construed in
accordance with the internal laws and judicial decisions of the State of North
Carolina.
4.3 Counterparts. This Amendment may be executed in one or more counter-
parts, each of which shall constitute an original, but all of which when taken
together shall constitute but one and the same instrument.
4.4 Expenses. Borrowers shall reimburse the Lender for all reasonable fees
and expenses (legal or otherwise) incurred by the Lender in connection with the
preparation, negotiation, execution and delivery of this Amendment and all
other agreements and documents or contemplated hereby.
4.5. Headings. The headings in this Amendment are for the purpose of
reference only and shall not affect the construction of this Amendment.
4.6 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH BORROWER AND THE LENDER EACH WAIVES THE RIGHT
TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF
ANY KIND ARISING OUT OF OR RELATED TO THIS AMENDMENT, THE LOAN
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED
HERETO OR THERETO.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executedand delivered on the date first above written.
BORROWERS:
ATTEST: COMDIAL CORPORATION
_\s\ Xxxxx P> Falconer__ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President
[CORPORATE SEAL]
ATTEST: AMERICAN TELECOMMUNICATIONS
CORPORATION
_\s\ Xxxxx P> Falconer________________ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President__
[CORPORATE SEAL]
ATTEST: AMERICAN PHONE CENTERS, INC.
_\s\ Xxxxx P> Falconer___________ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President__
[CORPORATE SEAL]
(Signatures continued on next page)
ATTEST: COMDIAL ENTERPRISE SYSTEMS, INC.
_\s\ Xxxxx P> Falconer__________ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President__
[CORPORATE SEAL]
ATTEST: COMDIAL TELECOMMUNICATIONS
INTERNATIONAL, INC.
_\s\ Xxxxx P> Falconer_____________ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President__
[CORPORATE SEAL]
ATTEST: XXXXX TECHNOLOGIES CORPORATION
_\s\ Xxxxx P> Falconer_____________ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President__
[CORPORATE SEAL]
ATTEST: COMDIAL CUSTOM MANUFACTURING, INC.
_\s\ Xxxxx P> Falconer____________ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President__
[CORPORATE SEAL]
ATTEST: COMDIAL VIDEO TELEPHONY, INC.
_\s\ Xxxxx P> Falconer___________ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President__
[CORPORATE SEAL]
(Signatures continued on next page)
ATTEST: COMDIAL TECHNOLOGY CORPORATION
_\s\ Xxxxx P> Falconer_____________ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President__
[CORPORATE SEAL]
ATTEST: COMDIAL TELECOMMUNICATIONS, INC.
_\s\ Xxxxx P> Falconer_____________ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President__
[CORPORATE SEAL]
ATTEST: AURORA SYSTEMS, INC.
_\s\ Xxxxx P> Falconer______________ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President__
[CORPORATE SEAL]
ATTEST: KEY VOICE TECHNOLOGIES, INC.
_\s\ Xxxxx P> Falconer_____________ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President__
[CORPORATE SEAL]
ATTEST: COMDIAL BUSINESS COMMUNICATIONS
CORPORATION
_\s\ Xxxxx P> Falconer______________ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President__
[CORPORATE SEAL]
(Signatures continued on next page)
ATTEST: COMDIAL CONSUMER COMMUNICATIONS
CORPORATION
_\s\ Xxxxx P> Falconer_______________ By: \s\ Xxxxxxxxx X. Becken____
Assistant Secretary Title:_ Senior Vice President__
[CORPORATE SEAL]
LENDER:
FLEET CAPITAL CORPORATION
By: _\s\ Xxxxxx X. Robinson_____
Title: Senior Vice President__
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