Exhibit 10.13
CONSENT AND FIRST AMENDMENT TO CREDIT AGREEMENT
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This CONSENT AND FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
dated as of December 9, 1997, is among RINGER CORPORATION ("Ringer") and SAFER,
INC. ("Safer") (Ringer and Safer are sometimes referred to herein individually
as a "Borrower" and collectively as the "Borrowers"), and GENERAL ELECTRIC
CAPITAL CORPORATION, as Lender.
RECITALS
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A. Borrowers and Lender are parties to that certain Credit Agreement
dated as of May 2, 1997 (as from time to time amended, restated, supplemented or
otherwise modified and in effect, the "Credit Agreement"), pursuant to which
Lender has made and may hereafter make loanS and advances and other extensions
of credit to Borrowers.
B. Borrowers desire to consummate, and Lender is willing to consent to,
the "Transactions" (as hereinafter defined), all on the terms and conditions set
forth in this Amendment.
C. This Amendment shall constitute a Loan Document and these Recitals
shall be construed as part of this Amendment; capitalized terms used herein
without definition are so used as defined in Annex A to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. Request. Borrowers hereby request that Lender consent to: (a) Ringer's
creation of a wholly-owed Subsidiary of Ringer to be merged with and into SRI,
with SRI remaining as the surviving corporation and a wholly-owned Subsidiary of
Ringer; (1,) SRI's maintenance of (i) the Fremont Loan and (ii) all other
Indebtedness of SRI outstanding and in effect as of the date hereof (the "Other
Debt"); and (c) the changing of each Borrower's and SRI's Fiscal Year to
December 31 (collectively the "Transactions").
2. Consent. Subject to the conditions set forth in this Amendment,
Lender hereby consents to the Transactions; provided that: (a) the Fremont Loan
shall be refinanced in full on or prior to April 30, 1998; (b) Lender shall have
the right, at its sole discretion, but not an obligation, to refinance the
Fremont Loan and no Person shall enter into any agreement or understanding with
any other Person to provide such refinancing without first offering such
opportunity to Lender and Lender having declined such opportunity; (c) except as
may be granted to Lender, no Stock of SRI shall at any time be subject to any
Lien; (d) after the consummation of the Transactions, all Financial Statements
of Ringer shall be provided on a consolidated and consolidating basis; (e) SRI
shall not be considered a Subsidiary of Ringer for purposes of calculating
Borrowers' compliance with the Financial Covenants set forth in Annex G to the
Credit Agreement; (f) no Credit Party shall advance to SRI, or cause or permit
to be advanced to SRI, and SRI shall not incur, any intercompany Indebtedness of
whatsoever nature; (g) no Credit Party shall incur, or cause or permit to be
incurred, any Guaranteed Indebtedness in respect of any Indebtedness or other
obligation of SRI of whatsoever nature; (h) no Credit Party shall make, or cause
or permit to be made, any investment in SRI of whatsoever nature; and (i) SRI
shall at no time incur or otherwise assume any Indebtedness or Guaranteed
Indebtedness in addition to the Fremont Loan and the Other Debt.
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3. Amendment. The Credit Agreement is hereby amended as follows:
(a) The following clause (o) is inserted immediately after clause (n)
contained in Section 8.1 of the Credit Agreement:
(o) A default, event of default or other failure of SRI to perform
any of its obligations in respect of the Fremont Loan, or any document or
other instrument executed or delivered in connection therewith, shall
occur.
(b) The term "Fiscal Year" contained in Annex A to the Credit Agreement is
replaced with the following defined term:
"Fiscal Year" shall mean any of the annual accounting periods of
Borrowers ending with December 31 of each year.
(c) The following defined term is inserted into Annex A to the Credit
Agreement in appropriate alphabetical order:
"Fremont Loan" shall mean that certain revolving credit facility
outstanding between SRI and Fremont Financial Corp. having a maximum
principal amount of $8,000,000, as in effect as of December 9, 1997
(d) The following defined term is inserted into Annex A to the Credit
Agreement in appropriate alphabetical order:
"SRI" shall mean Southern Resources Inc., a Georgia corporation.
4. Conditions to Effectiveness. This Amendment shall become effective on
the date first set forth above, provided that:
(a) Credit Parties and Lender have duly executed and delivered all
appropriate signature pages to this Amendment;
(b) the Transactions shall be consummated in accordance with all
applicable provisions of the Credit Agreement, after giving effect to
Section 2 of this Amendment; and
(c) the representations and warranties of Borrowers contained in
Section 5 below shall be true, accurate and complete in all respects as of
the effective date of this Amendment.
5. Representations and Warranties. Borrowers hereby represent and warrant
to Lender that:
(a) As of the date of this Amendment, and after giving effect to this
Amendment and the transactions contemplated hereby, no Default or Event of
Default shall have occurred or be continuing;
(b) As of the date of this Amendment, and after giving effect to this
Amendment and the transactions contemplated hereby, the representations and
warranties of Borrowers contained in the
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Loan Documents are true, accurate and complete in all respects on and as of
the date hereof to the same extent as though made on and as of such date,
except to the extent such representations and warranties specifically
relate to an earlier date; and
(c) (i) The execution, delivery and performance by each Borrower of
this Amendment and each of the documents and agreements described herein,
or contemplated hereby, to which such Borrower is a party are within its
corporate powers and have been duly authorized by all necessary corporate
action on the part of such Borrower, (ii) this Amendment and such documents
and agreements are the legal, valid and binding obligation of each Borrower
enforceable against each Borrower in accordance with their respective terms
and (iii) neither this Amendment or any such other document or agreement,
nor the execution, delivery or performance by any Borrower thereof (A)
violates any law or regulation, or any order or decree of any court or
Governmental Authority, (B) conflicts with or results in the breach or
termination of, constitutes a default under or accelerates any performance
required by, any indenture, mortgage, deed of trust, lease, agreement or
other instrument to which any Borrower is a party or by which any Borrower
or any of its property is bound or (C) results in the creation or
imposition of any Lien (other than Permitted Encumbrances) upon any of the
Collateral.
6. Effect on Credit Agreement. This Amendment is limited to the specific
purpose for which it is granted and, except as specifically set forth above (i)
shall not be construed as a consent, waiver or other modification with respect
to any term, condition or other provision of the Credit Agreement or any other
Loan Document and (ii) the Credit Agreement and the other Loan Documents shall
remain in lull force and effect and are each hereby ratified and confirmed.
7. Miscellaneous.
7.1 Successors and Assigns. This Amendment shall be binding on and shall
inure to the benefit of Credit Parties, Lender and their respective successors
and assigns, except as otherwise provided herein or therein; provided that no
Credit Xxxxx may assign its rights, obligations, duties or other interests
hereunder without the prior written consent of Lender. The terms and provisions
of this Amendment are for the purpose of defining the relative rights and
obligations of the Credit Parties and Lender with respect to the transactions
contemplated hereby and there shall be no third party beneficiaries of any of
the terms and provisions of this Amendment.
7.2 Entire Agreement. This Amendment, including all documents attached
hereto, incorporated by reference herein or delivered in connection herewith,
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all other understandings, oral or written, with
respect to the subject matter hereof.
7.3 Fees and Expenses. As provided in Section 11.3 of the Credit
Agreement, Borrowers agree to pay on demand all fees, costs and expenses
incurred by Lender in connection with the preparation, execution and delivery of
this Amendment, together with all fees, costs and expenses incurred by Lender
prior to the date hereof which are payable by Borrowers pursuant to Section 11.3
of the Credit Agreement.
7.4 Headings. Section 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.
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7.5 Counterparts. This Amendment may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute one
document.
7.6 Incorporation of Credit Agreement. The provisions contained in
Sections 11.9 and 11.13 of the Credit Agreement are incorporated herein by
reference to the same extent as if reproduced herein in their entirety.
7.7 Acknowledgment. Each Credit Party hereby represents and warrants that
there are no liabilities, claims, suits, debts, liens, losses, causes of action,
demands, rights, damages or costs, or expenses of any kind, character or nature
whatsoever, known or unknown, fixed or contingent (collectively, the "Claims"),
which any Credit Xxxxx may have or claim to have against Lender, or any of their
respective affiliates, agents, employees, officers, directors, representatives,
attorneys, successors and assigns (collectively, the "Lender Released Parties"),
which might arise out of or be connected with any act of commission or omission
of the Lender Released Parties existing or occurring on or prior to the date of
this Amendment, including, without limitation, any Claims arising with respect
to the Obligations or any Loan Documents. In furtherance of the foregoing, each
Credit Party hereby releases, acquits and forever discharges the Lender Released
Parties from any and all Claims that any Credit Party may have or claim to have,
relating to or arising out of or in connection with the Obligations or any Loan
Documents or any other agreement or transaction contemplated thereby or any
action taken in connection therewith from the begin'-of time up to and including
the date of the execution and delivery of this Amendment. Each Credit Party
further agrees forever to refrain from commencing, instituting or prosecuting
any lawsuit, action or other proceeding against any Lender Released Parties with
respect to any and all Claims.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the date first
written above.
RINGER CORPORATION
By: /s/ Xxxx Xxxxxxxxxxx
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Title: Executive Vice President and CFO
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SAFER, INC.
By: /s/ Xxxx Xxxxxxxxxxx
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Title: Executive Vice President and CFO
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GENERAL ELECTRIC CAPITAL CORPORATION,
as Lender
By: /s/ Xxxxxx X. Xxxxx
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Title: Duly Authorized Signatory
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The following Person is a signatory to this Amendment in its capacity as a
Credit Party and not as a Borrower.
SAFER LTD.
By: /S/ Xxxx Xxxxxxxxxxx
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Title: Executive Vice President
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