Exhibit 10.50
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"AMENDMENT") is made and entered into as of March 4, 2002, between VODAVI
COMMUNICATIONS SYSTEMS, INC. ("BORROWER"), the other Credit Parties signatory
thereto, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
("LENDER").
W I T N E S S E T H:
WHEREAS, the Borrower and the Lender entered into a certain Credit
Agreement, dated as of April 11, 1994, as amended and restated as of June 11,
1997, and as further amended by (x) that certain First Amendment to Amended and
Restated Credit Agreement, dated as of September 30, 1999, (y) that certain
Second Amendment to Amended and Restated Credit Agreement, dated as of October
31, 1999, and (z) that certain Third Amendment to Amended and Restated Credit
Agreement, dated as of July, 2001 (the "CREDIT AGREEMENT;" capitalized terms
used herein and not otherwise defined herein shall have the meanings given such
terms in the Credit Agreement), whereby the Lender agreed to make a certain
Revolving Credit Loan to the Borrower, subject to the terms, covenants and
conditions contained in the Credit Agreement;
WHEREAS, the Borrower has requested that the Lender consent to its
formation of Vodavi Direct, Inc. ("VDI") as a wholly-owned subsidiary through
which it will acquire all or substantially all of the assets of Dataspeak
Systems, Inc. (the "ACQUISITION"); and
WHEREAS, as a condition of Lender's consent to the Acquisition, Lender has
requested, among other things, that (x) VDI be added as a Credit Party under the
Credit Agreement and (y) the Credit Agreement to be modified as described
herein, and the Borrower and VDI are willing to make such modifications, subject
to the terms and conditions of this Amendment;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. VDI DEEMED TO BE A CREDIT PARTY. At all times on and after the date of
this Amendment, VDI shall be deemed to be a Credit Party under the Credit
Agreement and each of the other Loan Documents for all purposes of any nature
whatsoever.
2. AMENDMENTS.
(a) Section 1.1 of the Credit Agreement is hereby amended by replacing the
definition of "Credit Parties" with the following:
"CREDIT PARTIES" shall mean the Borrower, ESI and VDI, and
"CREDIT PARTY" shall mean any of the foregoing.
(b) Section 1.1 of the Credit Agreement is hereby amended by replacing the
definition of "ESI" with the following:
"ESI" shall mean Vodavi-CT, Inc., an Arizona corporation formerly
known as Enhanced Systems, Inc.
(c) Section 1.1 of the Credit Agreement is hereby amended by replacing the
definition of "Guaranty Agreement" with the following:
"GUARANTY AGREEMENT" shall mean the Guaranty Agreement from ESI and
VDI to Lender in substantially the form of Exhibit O hereto, pursuant
to which ESI and VDI shall jointly and severally guarantee payment and
performance of the Obligations.
(d) Section 1.1 of the Credit Agreement is hereby amended by replacing the
definition of "Security Agreements" with the following:
"SECURITY AGREEMENTS" shall mean, collectively, the Security
Agreements entered into between Lender and each of Borrower, ESI and
VDI, respectively, in substantially the form of Exhibit D hereto.
(e) Section 1.1 of the Credit Agreement is hereby amended by adding the
following definition of "VDI":
"VDI" shall mean Vodavi Direct, Inc., an Arizona corporation and a
wholly-owned subsidiary of Borrower.
(f) Section 9.10(b) of the Credit Agreement is hereby amended by deleting
such section in its entirety and substituting the following in lieu thereof:
(b) If to Borrower, at:
Vodavi Communication Systems, Inc.
0000 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Mr. Xxxxx Xxxxxxx
Telecopy No.: 000-000-0000
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With copies to:
Xxxxxxxxx Xxxxxxx
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Telecopy No.: 000-000-0000
3. CONSENT TO ACQUISITION & INVENTORY APPRAISAL. Without limiting the
applicability of Section 9.2 of the Credit Agreement, the Borrower hereby agrees
to reimburse the Lender on demand for all reasonable costs and expenses incurred
by the Lender in connection with its consent to the Acquisition and this
Amendment.
4. REPRESENTATIONS AND WARRANTIES. Each of Borrower, VDI and each of the
other Credit Parties hereby represents and warrants to the Lender that (a) this
Amendment has been duly authorized, executed and delivered by the Borrower, VDI
and each of the other Credit Parties, (b) no Default or Event of Default has
occurred and is continuing as of this date, and (c) each of the representations
and warranties of the Borrower, VDI and each of the other Credit Parties made in
or pursuant to this Amendment and the other Loan Documents is true and correct,
except to the extent that any such representation or warranty expressly relates
to an earlier date and except for changes therein expressly permitted or
expressly contemplated by the Credit Agreement, both before and after giving
effect to this Amendment. Any breach by the Borrower, VDI or any of the other
Credit Parties of its representations and warranties contained in this Section 4
shall be an Event of Default for all purposes of the Credit Agreement.
5. RATIFICATION. Each of Borrower, VDI and each of the other Credit Parties
hereby ratifies and reaffirms each and every term and condition set forth in the
Credit Agreement and all other documents delivered by the Borrower in connection
therewith (including without limitation the other Loan Documents to which the
Borrower or any of the other Credit Parties is a party or to which VDI becomes a
party contemporaneously herewith), effective as of the date hereof.
6. ESTOPPEL. To induce the Lender to enter into this Amendment, each of the
Borrower and the other Credit Parties hereby acknowledges and agrees that, as of
the date hereof, there exists no right of offset, defense or counterclaim in
favor of the Borrower or any of the other Credit Parties as against the Lender
with respect to the obligations of the Borrower or any of the other Credit
Parties under the Credit Agreement or the other Loan Documents, either with or
without giving effect to this Amendment.
7. CONDITIONS TO EFFECTIVENESS. The amendments contained in Sections 1 and
2 shall become effective retroactive to the date as of which this Amendment is
dated, subject to the satisfaction of the following conditions:
(a) the receipt by the Lender of this Amendment, duly executed, completed
and delivered by the Lender, the Borrower and the other Credit Parties;
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(b) the receipt by the Lender of a certificate signed by the chief
financial officer or treasurer of the Borrower on behalf of the Borrower to the
effect that, as of the date of this Amendment, (i) no Default shall have
occurred and be continuing and (ii) each of the representations and warranties
of the Credit Parties made in or pursuant to this Amendment and the other Loan
Documents executed by such Person is true, except to the extent that any such
representation or warranty expressly relates to an earlier date and except for
changes therein expressly permitted or expressly contemplated by the Credit
Agreement, both before and after giving effect to this Amendment; and
(c) the receipt by the Lender of each of the documents listed below, duly
executed, completed and delivered by the Lender, the Borrower and the other
Credit Parties, as applicable:
(i) Amended and Restated Stock Pledge and Security Agreement of Parent
(including stock certificates and related stock powers);
(ii) Stock Pledge and Security Agreement of Borrower (including stock
certificates and related stock powers);
(iii) Amended and Restated Security Agreement of Borrower;
(iv) Amended and Restated Security Agreement of ESI;
(v) Security Agreement of VDI; and
(vi) First Amendment to Guaranty.
8. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS TO BE PERFORMED
ENTIRELY WITHIN SAID STATE.
9. SEVERABILITY OF PROVISIONS. Any provision of this Amendment which is
prohibited by, or invalid under the Applicable Law of any jurisdiction shall be
ineffective to the extent of such prohibition or invalidity in such jurisdiction
without invalidating the remaining provisions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction. To the extent
permitted by Applicable Law, each of Borrower and each Credit Party hereby
waives any provision of law that renders any provision hereof unenforceable in
any respect.
10. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which shall be deemed to constitute but one original and
shall be binding upon all parties, their successors and permitted assigns.
11. ENTIRE AGREEMENT. The Credit Agreement as amended by this Amendment
embodies the entire agreement between the parties hereto relating to the subject
matter hereof and supersede all prior agreements, representations and
understandings, if any, relating to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to
Amended and Restated Credit Agreement to be duly executed by their respective
duly authorized officers, as of the date first above written.
VODAVI COMMUNICATIONS
SYSTEMS, INC., AS BORROWER
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION, AS LENDER
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Title: Duly Authorized Signatory
-------------------------------------
CREDIT PARTIES:
VODAVI DIRECT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------
Title: CEO
-------------------------------------
VODAVI-CT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------
Title: CEO
-------------------------------------
VODAVI TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------
Title: President and CEO
-------------------------------------
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