Exhibit 10.2
EXECUTION VERSION
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT, dated as of April 5, 2007 (this "Agreement"),
among NUANCE COMMUNICATIONS, INC., a Delaware corporation (the "Borrower"), UBS
AG, STAMFORD BRANCH, as Administrative Agent, CITICORP NORTH AMERICA, INC., as
Syndication Agent, CREDIT SUISSE SECURITIES (USA) LLC, as Documentation Agent,
the Lenders (as defined in the Original Credit Agreement (as defined below)),
CITIGROUP GLOBAL MARKETS INC. and UBS SECURITIES LLC, as Joint Lead Arrangers
and Joint Bookrunners, CREDIT SUISSE SECURITIES (USA) LLC, as Joint Bookrunner
and Co-Arranger, and BANC OF AMERICA SECURITIES LLC, as Co-Arranger.
WITNESSETH:
WHEREAS, the Borrower, the lending institutions from time to time
party thereto as Lenders (the "Original Lenders"), UBS AG, Stamford Branch, as
administrative agent, Citicorp North America, Inc., as Documentation Agent,
Credit Suisse Securities (USA) LLC, as joint lead arranger, joint bookrunner and
syndication agent, UBS Securities LLC as joint lead arranger and joint
bookrunner, Citigroup Global Markets Inc., as joint bookrunner and co-arranger
and Banc of America Securities LLC, as co-arranger for the Original Lenders,
entered into that certain Credit Agreement, dated as of March 31, 2006 (as
further amended, supplemented or otherwise modified from time to time prior to
the date hereof, the "Original Credit Agreement"), pursuant to which the
Original Lenders made certain loans and other extensions of credit to the
Borrower;
WHEREAS, the Obligations (as defined in the Original Credit Agreement,
hereinafter the "Original Obligations") of the Borrower and the other Loan
Parties under the Original Credit Agreement and the other Loan Documents (as
defined in the Original Credit Agreement, hereinafter the "Loan Documents") are
secured by certain collateral (hereinafter the "Original Collateral") and are
guaranteed or otherwise benefited by the Loan Documents;
WHEREAS, the Required Lenders (as defined in the Original Credit
Agreement) have agreed to amend and restate the Original Credit Agreement in its
entirety to effect the amendments described therein and to create a class of
Tranche B-1 Term Loans (as defined below) having identical terms with, and
having the same rights and obligations under the Loan Documents as, the Original
Term Loans (as defined below), except as such terms are amended in the Amended
and Restated Credit Agreement (as defined below);
WHEREAS, each Person who executes and delivers this Agreement as a
Tranche B-1 Term Loan Lender will make Tranche B-1 Term Loans under the Amended
and Restated Credit Agreement on the effective date of this Agreement to the
Borrower, which will be used by the Borrower for general corporate purposes
which may include the acquisition of BeVocal, Inc. (the "BeVocal Acquisition")
and to replenish cash balances used in connection with the acquisition set forth
in the Focus Infomatics Acquisition Agreement (the "Focus Infomatics
Acquisition" and, together with the BeVocal Acquisition, the "Acquisitions")
that closed prior to the date hereof;
WHEREAS, the parties hereto intend that (a) the Original Obligations
that remain unpaid and outstanding as of the Amendment Effective Date shall
continue to exist under the Amended and Restated Credit Agreement on the terms
set forth therein, (b) the loans under the Original Credit Agreement outstanding
as of the date hereof shall be Loans under and as defined in the Amended and
Restated Credit Agreement on the terms set forth therein, (c) any letters of
credit outstanding under the Original Credit Agreement as of the date hereof
shall be Letters of Credit under and as defined in the Amended and Restated
Credit Agreement and (d) the Original Collateral and the Loan Documents shall
continue to secure, guarantee, support and otherwise benefit the Original
Obligations as well as the other Obligations of the Borrower and the other Loan
Parties under the Amended and Restated Credit Agreement (including, without
limitation, Obligations in respect of the Tranche B-1 Term Loans) and the other
Loan Documents;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereto hereby agree as follows:
SECTION 1. (a) Certain Definitions
The following terms when used in this Agreement shall have the
following meanings (such meanings to be equally applicable to the singular and
plural form thereof):
"Acquired Businesses" means the businesses to be acquired in the
BeVocal Acquisition and acquired in the Focus Infomatics Acquisition.
"Acquisitions" is defined in the recitals hereto.
"Agreement" is defined in the preamble.
"Amended and Restated Credit Agreement" is defined in Section 3
hereof.
"Amendment Effective Date" is defined in Section 5 hereof.
"BeVocal Acquisition" is defined in the recitals hereto.
"Borrower" is defined in the preamble.
"Focus Infomatics Acquisition" is defined in the recitals hereto.
"Loan Documents" is defined in the recitals hereto.
"Lenders" is defined in the preamble.
"Original Collateral" is defined in the recitals hereto.
"Original Credit Agreement" is defined in the recitals hereto.
"Original Lenders" is defined in the recitals hereto.
"Original Obligations" is defined in the recitals hereto.
"Original Term Loans" means "Term Loans" as defined in the Original
Credit Agreement.
"Tranche B-1 Term Loan" means a Loan made pursuant to Section 2.01(c)
under the Amended and Restated Credit Agreement on the Amendment Effective Date.
-2-
"Tranche B-1 Term Loan Commitment" means, with respect to a Tranche
B-1 Term Loan Lender, the commitment of such Additional Tranche B-1 Term Loan
Lender to make Tranche B-1 Term Loans on the Amendment Effective Date, in an
amount set forth on Schedule I to this Amendment Agreement. The aggregate amount
of the Tranche B-1 Term Loan Commitments shall equal $90.0 million.
"Tranche B-1 Term Loan Lender" means a Person with a Tranche B-1 Term
Loan Commitment to make Tranche B-1 Term Loans to the Borrower on the Amendment
Effective Date.
(b) Other Definitions. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in the Amended and
Restated Credit Agreement shall have such meanings when used in this Agreement.
SECTION 2. Tranche B-1 Term Loans
(a) Subject to and upon the terms and conditions herein and of the
Amended and Restated Credit Agreement, each Tranche B-1 Term Loan Lender
severally agrees to make Tranche B-1 Term Loans to the Borrower on the Amendment
Effective Date in a principal amount not to exceed its Tranche B-1 Term Loan
Commitment on the Amendment Effective Date.
(b) For avoidance of doubt, holders of the Tranche B-1 Term Loans
shall be entitled to the same guarantees and security interests pursuant to the
Loan Documents from and after the Amendment Effective Date as the benefits to
which the holders of Term Loans had been entitled immediately prior to the
Amendment Effective Date.
SECTION 3. Amendment and Restatement of Original Credit Agreement
On the Amendment Effective Date, the Original Credit Agreement shall
be, and is hereby, amended and restated in its entirety as set forth in Annex I
hereto (as set forth in such Annex I, the "Amended and Restated Credit
Agreement"), and as so amended and restated is hereby ratified, approved and
confirmed in each and every respect by all parties hereto. The rights and
obligations of the parties to the Original Credit Agreement with respect to the
period prior to the Amendment Effective Date shall not be affected by such
amendment and restatement.
SECTION 4. Use of Proceeds
The Borrower shall use the proceeds of the Tranche B-1 Term Loans for
general corporate purposes, including the BeVocal Acquisition, and for the
replenishment of cash used for the Focus Infomatics Acquisition.
SECTION 5. Conditions Precedent to the Effectiveness of this Amendment
This Agreement shall become effective as of the date first written
above upon (the "Amendment Effective Date"), and the obligations of the Lenders
under the Amended and Restated Credit Agreement shall be subject to,
satisfaction of each of the conditions precedent set forth in this Section 5
hereof.
(a) Acquisitions. (i) The Focus Infomatics Acquisition shall have been
consummated; and
-3-
(ii) The BeVocal Acquisition Agreement shall not have been terminated
nor shall there have been material amendment, modification or waiver thereof
which is materially adverse to the Lenders without the prior written consent of
the Joint Lead Arrangers.
(b) Financial Statements. The Lead Arranger shall have received (i)
copies of audited financial statements for Focus Infomatics, Inc. and its
subsidiaries for the two fiscal years ended December 31, 2006 and interim
unaudited financial statements for each quarter ended after such date and more
than 45 days prior to the Closing Date, (ii) pro forma financial statements of
the Borrower and its subsidiaries for the four consecutive fiscal quarter period
ended December 31, 2006 after giving effect to the Acquisitions (including
adjustments reasonably satisfactory to the Arrangers) and a pro forma balance
sheet of the Borrower and its subsidiaries as of the Amendment Effective Date
and (iii) a certificate of chief financial officer of the Borrower as to the
solvency of each Loan Party, on a consolidated basis, after giving effect to the
Transactions.
(c) Executed Counterparts. The Administrative Agent shall have
received this Agreement, duly executed by (A) the Original Lenders constituting
the Required Lenders, (B) each Tranche B-1 Term Loan Lenders and (C) each of the
other parties hereto.
(d) Corporate and Other Proceedings. The Administrative Agent shall
have received a copy of the resolutions, in form and substance reasonably
satisfactory to the Administrative Agent, of the board of directors of each Loan
Party (or a duly authorized committee thereof) authorizing (a) the execution,
delivery and performance of this Agreement and the Amended and Restated Credit
Agreement (and any agreements relating thereto) and (b) in the case of the
Borrower, the extensions of credit contemplated hereunder and under the Amended
and Restated Credit Agreement.
(e) No Default or Event of Default. After giving effect to this
Agreement, no Default or Event of Default shall have occurred and be continuing,
either on the date hereof under the Original Credit Agreement or on the
Amendment Effective Date under the Amended and Restated Credit Agreement.
(f) Opinions of Counsel. The Administrative Agent shall have received
(i) a legal opinion, in form and substance reasonably satisfactory to the
Administrative Agent, from Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel to the
Borrower, and (ii) such other opinions of counsel to the Borrower as may be
reasonably requested by the Administrative Agent or its counsel.
(g) No Material Adverse Change. There shall not have occurred since
September 30, 2006 an event that has a material adverse effect on the business,
operations, assets, liabilities, financial condition or results of the Borrower,
its subsidiaries and the Acquired Businesses, taken as a whole, but shall not
include (i) effects resulting from changes in general economic, regulatory,
political or industry conditions or from acts of terror or war, (ii) effects
resulting from changes in commodity or energy prices, in interest or currency
exchange rates or in capital market conditions, (iii) effects resulting from
circumstances that affect the industries in which the Borrower and its
subsidiaries or the Acquired Businesses operate generally, provided that such
circumstances do not have a disproportionate effect on the Borrower and its
subsidiaries or the Acquired Businesses and (iv) effects resulting from changes
in generally accepted accounting principles.
(h) Ratings. The Borrower shall have used commercially reasonable
efforts to have its corporate family rating by Moody's and its corporate credit
rating by S&P confirmed.
-4-
(i) Borrowing Request. The Borrower shall have provided the
Administrative Agent with a Borrowing Request two Business Days prior to the
Amendment Effective Date with respect to the borrowing of Tranche B-1 Term Loans
on the Amendment Effective Date.
(j) Promissory Notes. Each Tranche B-1 Term Loan Lender shall have
received, if requested at least two (2) Business Days prior to the Amendment
Effective Date, one or more promissory notes payable to the order of such Lender
duly executed by the Borrower in substantially the form of Exhibit F-1 to the
Amended and Restated Credit Agreement evidencing its Tranche B-1 Term Loans.
(k) Representations and Warranties. On the Amendment Effective Date,
the representations and warranties made by the Borrower in Section 6 hereof, as
they relate to the Loan Parties at such time, shall be true and correct in all
material respects.
(l) Amended and Restated Credit Agreement. All other conditions
precedent set forth in Sections 2.21 and 4.01 of the Amended and Restated Credit
Agreement shall be satisfied.
(m) Fees. The Lenders shall have received the fees required to be paid
on the Amendment Effective Date and all expenses (including the reasonable fees,
disbursements and other charges of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the
Administrative Agent) for which invoices have been presented on or prior to the
Amendment Effective Date shall have been paid.
(n) Officer's Certificate. The Administrative Agent shall have
received a certificate signed by the Financial Officer of the Borrower
confirming (i) compliance with the conditions precedent set forth in Section
2.21 and 4.01 of the Amended and Restated Credit Agreement, (ii) that the
Acquisitions are Permitted Business Acquisitions under the Amended and Restated
Credit Agreement and (iii) that the Borrower's Consolidated Senior Secured
Leverage Ratio on a Pro Forma Basis after giving effect to the incurrence of the
Tranche B-1 Term Loans and the consummation of the Acquisitions does not exceed
3.50 to 1.00.
(o) The Administrative Agent shall have received, at least five
Business Days prior to the Amendment Effective Date, all documentation and other
information required by bank regulatory authorities under applicable "know your
customer" and anti-money laundering rules and regulations, including without
limitation the Act (as defined in Section 9.19 of the Amended and Restated
Credit Agreement).
SECTION 6. Representations and Warranties
On and as of the Amendment Effective Date, after giving effect to this
Agreement, the Borrower hereby represents and warrants to the Administrative
Agent and each Lender as follows:
(a) this Agreement has been duly authorized, executed and delivered by
the Borrower and each Guarantor and constitutes the legal, valid and
binding obligations of the Borrower and each Guarantor enforceable against
the Borrower and each Guarantor in accordance with its terms and the
Amended and Restated Credit Agreement and constitutes the legal, valid and
binding obligation of the Borrower and each Guarantor enforceable against
the Borrower and each Guarantor in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally;
(b) each of the representations and warranties contained in Article
III of the Amended and Restated Credit Agreement and in each other Loan
Document is true and correct in all material respects on and as of the
Amendment Effective Date (after giving effect to any
-5-
revised schedules attached hereto or to the Amended and Restated Credit
Agreement), as if made on and as of such date and except to the extent that
such representations and warranties specifically relate to a specific date,
in which case such representations and warranties shall be true and correct
in all material respects as of such specific date; provided, however, that
references therein to the "Credit Agreement" or "this Agreement" or similar
references shall be deemed to refer to the Amended and Restated Credit
Agreement after giving effect to the consents and waivers set forth herein;
and
(c) no Default or Event of Default has occurred and is continuing.
SECTION 7. No Other Amendments; References to the Credit Agreement
Other than as specifically provided herein or in the Amended and
Restated Credit Agreement, this Agreement shall not operate as a waiver or
amendment of any right, power or privilege of the Lenders under (and as defined
in) the Original Credit Agreement or any other Loan Document (as such term is
defined in the Original Credit Agreement) or of any other term or condition of
the Original Credit Agreement or any other Loan Document (as such term is
defined in the Original Credit Agreement) nor shall the entering into of this
Agreement preclude the Lenders from refusing to enter into any further waivers
or amendments with respect to the Amended and Restated Credit Agreement. All
references to the Original Credit Agreement in any document, instrument,
agreement, or writing that is a Loan Document shall from and after the Amendment
Effective Date be deemed to refer to the Amended and Restated Credit Agreement,
and, as used in the Amended and Restated Credit Agreement, the terms
"Agreement," "herein," "hereafter," "hereunder," "hereto" and words of similar
import shall mean, from and after the Amendment Effective Date, the Amended and
Restated Credit Agreement.
SECTION 8. Headings
The various headings of this Agreement are inserted for convenience
only and shall not affect the meaning or interpretation of this Agreement or any
provisions hereof.
SECTION 9. Execution in Counterparts
This Agreement may be executed by the parties hereto in several
counterparts (including by facsimile), each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 10. Expenses
The Borrower agrees to pay promptly (and in any event on the Amendment
Effective Date) after presentation of an invoice therefor all reasonable
out-of-pocket expenses of the Joint Lead Arrangers (including the reasonable
fees and out-of-pocket expenses of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the
Joint Lead Arrangers (and of local counsel, if any, who may be retained by such
counsel)) in connection with the preparation, negotiation, execution and
delivery of this Agreement, the Amended and Restated Credit Agreement, each
other Loan Document and the documents and transactions contemplated hereby.
SECTION 11. Cross-References
References in this Agreement to any Section are, unless otherwise
specified or otherwise required by the context, to such Section of this
Agreement.
-6-
SECTION 12. Cooperation; Other Documents
At all times following the execution of this Agreement, the parties
hereto shall execute and deliver to the Lenders and the Agents, or shall cause
to be executed and delivered to the Lenders and the Agents, and shall do or
cause to be done all such other acts and things as the Lenders and the Agents
may reasonably deem to be necessary or desirable to assure the Lenders and the
Agents of the benefit of this Agreement (including the Amended and Restated
Credit Agreement), the other Loan Documents and each other document relating to
this Agreement.
SECTION 13. Governing Law
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
SECTION 14. Guarantor Acknowledgments
(a) Each Guarantor hereby (i) expressly acknowledges the terms of the
Amended and Restated Credit Agreement, (ii) ratifies and affirms its obligations
under the Loan Documents (including guarantees and security agreements) executed
by the undersigned and (iii) acknowledges renews and extends its continued
liability under all such Loan Documents and agrees such Loan Documents remain in
full force and effect.
(b) Each Guarantor hereby reaffirms, as of the Amendment Effective
Date, (i) the covenants and agreements contained in each Loan Document to which
it is a party, including, in each case, such covenants and agreements as in
effect immediately after giving effect to this Agreement and the transactions
contemplated thereby, and (ii) its guarantee of payment of the Obligations
pursuant to the Guarantee.
(c) Each Guarantor hereby certifies that, as of the date hereof (both
before and after giving effect to the occurrence of the Amendment Effective Date
and the effectiveness of the Credit Agreement), the representations and
warranties made by it contained in the Loan Documents to which it is a party are
true and correct in all material respects with the same effect as if made on the
date hereof, except to the extent any such representation or warranty refers or
pertains solely to a date prior to the date hereof (in which case such
representation and warranty was true and correct in all material respects as of
such earlier date).
(d) Each Guarantor further confirms that each Loan Document to which
it is a party is and shall continue to be in full force and effect and the same
are hereby ratified and confirmed in all respects.
(e) Each Guarantor hereby acknowledges and agrees that the acceptance
by the Administrative Agents, each Lender and each other Agent of this document
shall not be construed in any manner to establish any course of dealing on any
Agent's or Lender's part, including the providing of any notice or the
requesting of any acknowledgment not otherwise expressly provided for in any
Loan Document with respect to any future amendment, waiver, supplement or other
modification to any Loan Document or any arrangement contemplated by any Loan
Document.
[SIGNATURE PAGES FOLLOW]
-7-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
NUANCE COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
-------------------------------------
Title: Chairman and Chief Executive Officer
------------------------------------
Signature Page to Amendment Agreement
CAERE CORPORATION
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
----------------------------------
Title: President
---------------------------------
SPEECHWORKS INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
----------------------------------
Title: President
---------------------------------
ART ADVANCED RECOGNITION TECHNOLOGIES,
INC.
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
----------------------------------
Title: President
---------------------------------
DICTAPHONE CORPORATION
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
----------------------------------
Title: President
---------------------------------
NUANCE COMMUNICATIONS LLC
By: /s/ Xxxxx X. Xxxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
----------------------------------
Title: Authorized Person
---------------------------------
Signature Page to Amendment Agreement
UBS AG, STAMFORD BRANCH,
as Administrative Agent
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
---------------------------------
Associate Director
Title: Banking Products Services, US
---------------------------------
By: /s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
---------------------------------
Associate Director
Title: Banking Products Services, US
---------------------------------
UBS SECURITIES LLC
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
---------------------------------
Associate Director
Title: Banking Products Services, US
---------------------------------
By: /s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
---------------------------------
Associate Director
Title: Banking Products Services, US
---------------------------------
Signature Page to Amendment Agreement
CITICORP NORTH AMERICA, INC.
as Syndication Agent
By: /s/ Xxxxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxxxx
---------------------------------
Title: Vice President and Director
---------------------------------
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arranger and Joint
Bookrunner
By: /s/ Xxxxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxxxx
---------------------------------
Title: Vice President and Director
---------------------------------
Signature Page to Amendment Agreement
CREDIT SUISSE SECURITIES (USA) LLC,
as Documentation Agent, Joint
Bookrunner and Co-Arranger
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Managing Director
---------------------------------
Signature Page to Amendment Agreement
BANC OF AMERICA SECURITIES LLC,
as Co-Arranger
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Managing Director
---------------------------------
Signature Page to Amendment Agreement
SCHEDULE I
Tranche B-1 Term Loan Lender Tranche B-1 Term Loan Commitment
Signature Page to Amendment Agreement
ANNEX I to
Agreement
AMENDED AND RESTATED CREDIT AGREEMENT
