*** Portions of this exhibit are considered confidential by the registrant and
have been omitted from this filing and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
First Amendment (this "AMENDMENT") dated as of November 19, 2001 to Credit
and Guaranty Agreement (the "AGREEMENT") dated as of May 31, 2001 among GN Great
Nordic A/S as Lender ("LENDER"), Sonus-USA, Inc. as Borrower ("BORROWER") and
Sonus Corp. as Guarantor ("GUARANTOR"; together, Borrower and Guarantor are
collectively, the "OBLIGORS").
WITNESSETH:
WHEREAS, the Lender and the Obligors desire to amend the Agreement as
provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms. (a) Capitalized terms used but not defined in
this Amendment have the meanings set forth in the Agreement.
(b) Section 1.01 of the Agreement is hereby amended by adding the
following new defined term in the appropriate alphabetical order:
"FIRST AMENDMENT" means the First Amendment to Credit and Guaranty
Agreement dated as of November 19, 2001 among the Lender, the Borrower and
Sonus Corp.
SECTION 2. Amendment to the definition of EBITDA. (a) The definition of
"EBITDA" contained in Section 1.01 of the Agreement is hereby amended and
restated in its entirety to read as follows:
"EBITDA" means, for any period, the consolidated net income of Sonus Corp.
and its consolidated subsidiaries for such period, plus, to the extent
deducted in determining consolidated net income for such period,
depreciation, interest, amortization and income taxes, determined in
accordance with GAAP eliminating (i) all intercompany items, (ii) all
earnings attributable to equity interests in Persons that are not
consolidated subsidiaries unless actually received in cash by Sonus Corp.
or a consolidated subsidiary, (iii) all income arising from the
forgiveness, adjustment, or negotiated settlement of any indebtedness,
(iv) any extraordinary items of income or expense (including gains and
losses from asset sales), (v) any increase or decrease in income arising
from any change in Sonus Corp.'s method of accounting, (vi) any interest
income and (vii) for any period including any quarter ended during the
fiscal year ended July 31, 2001, any items of income or expense contained
in Schedule I to the First Amendment to the extent such items were
recorded in such quarter.
-1-
SECTION 3. Effectiveness. This Amendment shall be effective as soon as
counterparts hereof have been executed and delivered by the Lender and the
Obligors.
SECTION 4. Effect of Amendment. Except as amended hereby, the Agreement
shall remain unchanged and effective as of May 31, 2001. The Agreement as
amended hereby shall continue in full force and effect.
SECTION 5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6. Counterparts. This Amendment may be executed in several
counterparts with the same effect as if the parties executing the several
counterparts had all executed one counterpart.
-2-
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
written above.
SONUS-USA, INC., as
Borrower
By: /s/ Xxxx Xxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer
SONUS CORP., as Guarantor
By: /s/ Xxxx Xxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer
GN GREAT NORDIC A/S, as Lender
By: /s/ Jens Oue Xxxxx
--------------------------
Name:Jens Oue Xxxxx
Title: Chief Financial Officer and
Executive Vice President
GN GREAT NORDIC A/S, as Lender
By: /s/ Jirn Kildegaard
---------------------------
Name: Jirn Kildegaard
Title: Chief Executive Officer and
President
-3-
SCHEDULE I
TO
FIRST AMENDMENT TO CREDIT AND GUARANTY AGREEMENT
ELIMINATIONS FOR THE PURPOSE OF CLAUSE (VII) OF THE DEFINITION OF EBITDA
Product Revenue:
*** 173,516
Network Revenue:
*** 203,089
*** 440,251
Accrue ***% commission for GN 87,564
Accrue *** 103,100
-------
834,004
=======
Cost of Sales One Time Adjustments:
*** 58,954
*** 190,302
Accrue for portion of differences between
*** 617,360
-------
866,616
=======
Corp G & A - Personnel
Accrue for severance and relocation 199,333
=======
Corp G & A - Other
*** 3,630,000
*** 160,400
-------
3,790,400
=========
Other:
Write off Goodwill of 7 clinics 55,000
=========
5,918,869
*** Confidential portions omitted pursuant to a request for confidential
treatment
