Exhibit 10.19
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DICTAPHONE CORPORATION
THIRD AMENDMENT (TECHNICAL CORRECTION) TO CREDIT AGREEMENT
This THIRD AMENDMENT (TECHNICAL CORRECTION) TO CREDIT AGREEMENT (this
"AMENDMENT") is dated as of July 21, 1997 and entered into by and among
DICTAPHONE CORPORATION (formerly 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. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Credit
Agreement.
RECITALS
WHEREAS, pursuant to that certain Second Amendment to Credit
Agreement dated as of June 27, 1997 (the "SECOND AMENDMENT"), Company and
Lenders amended certain provisions of the Credit Agreement for the purpose of,
among other things, permitting Company and Subsidiary Guarantors to incur up to
$10,000,000 of Indebtedness under subsection 7.1(viii) of the Credit Agreement
("OUTSIDE INDEBTEDNESS");
WHEREAS, the purpose of increasing the amount of Outside Indebtedness
that Company and Subsidiary Guarantors are able to incur was, among other
things, to permit Company and Subsidiary Guarantors to obtain additional
financing for working capital purposes;
WHEREAS, a literal interpretation of the provisions of subsection
2.4B(iii)(d) of the Credit Agreement would require Company to apply the Cash
proceeds of any debt Securities of Company or any of its Subsidiaries, including
Cash proceeds of any Outside Indebtedness as well as Cash proceeds of
intercompany Indebtedness permitted under subsection 7.1(iv) of the Credit
Agreement, Cash proceeds of Indebtedness of Foreign Subsidiaries permitted under
subsection 7.1(v) of the Credit Agreement, and Cash proceeds of purchase-money
Indebtedness permitted under subsection 7.1(vii) of the Credit Agreement, to
prepay the Term Loans;
WHEREAS, such application would cause the proceeds of such permitted
Indebtedness (including any Outside Indebtedness) to be unavailable for the
purposes for which Lenders intended to permit Company to incur such
Indebtedness; and
WHEREAS, Company and Lenders desire to correct such unintended result
of the provisions of subsection 2.4B(iii)(d) of the Credit Agreement by amending
such subsection 2.4B(iii)(d) to clarify that the Cash proceeds of any
Indebtedness permitted under subsection 7.1 of the Credit Agreement are excluded
from the prepayment requirements of such subsection 2.4B(iii)(d):
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO THE CREDIT AGREEMENT
Subsection 2.4B(iii)(d) of the Credit Agreement is hereby amended by
adding the phrase ", other than Cash proceeds of any Indebtedness permitted
under subsection 7.1," immediately after the phrase "any debt or equity
Securities of Company or any of its Subsidiaries" contained therein.
SECTION 2. 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 Amendment (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 Agent 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 and the Amended Agreement have
been duly executed and delivered by Company and 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 relating to enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 4 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the date of effectiveness of this Amendment (the "THIRD
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. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
SECTION 3. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
(i) On and after the Third 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 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
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), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
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 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 shall become effective upon the execution of a
counterpart hereof by Company and Requisite Lenders and receipt by Company and
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 Agreement 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
Title: Chief Financial Officer
LENDERS:
BANKERS TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
NATIONSBANK, N.A. (CAROLINAS)
By: /s/ Xxxxxx Xxxxxx
Title: Vice President
BANQUE PARIBAS
By: /s/ Xxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Xxxx Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By:___________________________
Title:________________________
THE FUJI BANK, LTD.
NEW YORK BRANCH
By:___________________________
Title:________________________
U.S. BANK
By: /s/ Xxxxxx X. Xxxxxx
Title: Assistant Vice President
THE BANK OF TOKYO-MITSUBISHI, LIMITED
By:___________________________
Title:________________________
PILGRIM AMERICA PRIME RATE TRUST
By: /s/ Xxxxxx X. Xxxx
Title: Assistant Portfolio Manager
XXXXXXX XXXXX SENIOR
FLOATING RATE FUND, INC.
By:___________________________
Title:________________________
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By:___________________________
Title:________________________
XXXXXXX XXXXX DEBT STRATEGIES
PORTFOLIO INC.
By:___________________________
Title:________________________
ML CBO IV (CAYMAN) LTD.
By: /s/ Xxxxx Xxxxxxx CPA, CFA
Title: President-Protective Asset Management, L.L.C.
ORIX USA CORPORATION
By:___________________________
Title:________________________
FIRST SOURCE FINANCIAL LLP
BY: First Source Financial, Inc., its
Agent/Manager
By: /s/ Xxxxx X. Xxxxxx
Title: Senior Vice President
CREDIT AGRICOLE INDOSUEZ
By:___________________________
Title:________________________
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /s/ Xxxx X. Xxxxx
Title: Authorized Signer
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxx
Title: Deputy General Manager
XXXXXXX FINANCIAL SERVICES CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
Title: Vice President
