Exhibit 10.14
CONSENT TO CREDIT AGREEMENT
---------------------------
This CONSENT TO CREDIT AGREEMENT (this "Consent"), dated as of
December 11,1997, 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
--------
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 that Lender consent to the "SureCo Loan" (as
hereinafter defined), all on the terms and conditions set forth in this Consent.
C. This Consent shall constitute a Loan Document and these Recitals shall
be construed as part of this Consent; 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
covenant hereinafter contained, the parties hereto agree as follows:
1. Request. Borrowers hereby request that Lender consent to the extension
by Ringer to SureCo, Inc., a Georgia corporation ("SureCo"), of Indebtedness
(the "SureCo Loan"), subject to the terms and conditions set forth in this
Consent.
2. Consent. Subject to the terms and conditions set forth in this
Consent, Lender hereby consents to the SureCo Loan; provided that: (a) SureCo
shall have first executed and delivered to Ringer a demand note (the "SureCo
Note") to evidence the SureCo Loan, which SureCo Note shall be in the form
attached as Exhibit A hereto and shall be pledged and delivered to Agent as
additional Collateral for the Obligations; (b) Ringer shall record all advances
under the SureCo Loan on its books and records in a manner satisfactory to
Agent; (c) at the time any advance under the SureCo Loan is made and after
giving effect thereto, SureCo and Ringer shall be Solvent; (d) no Default or
Event of Default would occur and be continuing after giving effect to any such
proposed advance under the SureCo Loan; (e) no more than five (5) advances shall
be made under the SureCo Loan; (f) the aggregate principal amount of
Indebtedness owing by SureCo under the SureCo Loan shall not exceed $500,000 at
any one time outstanding; (g) the cumulative amount of Indebtedness advanced
under the SureCo Loan shall not exceed $500,000; (h) no amount of the SureCo
Loan which is repaid shall be re-borrowed; and (i) SureCo shall at all times be
a direct wholly- owned Subsidiary of SRI and SRI shall at all times be a direct
wholly-owned Subsidiary of Ringer.
3. Conditions to Effectiveness. This Consent shall become effective on
the date first set forth above, provided that:
1
(a) Credit Parties and Lender have duly executed and delivered all
appropriate signature pages to this Consent;
(b) Lender shall have received the duly executed and delivered SureCo
Note, pledged by Ringer to Lender;
(c) Lender shall have received written evidence satisfactory to it
that the execution and delivery of the SureCo Note, the pledge of the
SureCo Note to Lender, and the consummation of the SureCo Loan are
permitted in accordance with the documentation evidencing the Fremont Loan,
which evidence shall be certified by Ringer's secretary as being true,
accurate and complete; and
(d) the representations and warranties of Borrowers contained in
Section 4 below shall be true, accurate and complete in all respects as of
the effective date of this Consent.
4. Representations and Warranties. Borrowers hereby represent and warrant
to Lender that:
(a) As of the date of this Consent, and after giving effect to this Consent
and the transactions contemplated hereby, no Default or Event of Default shall
have occurred or be continuing;
(b) As of the date of this Consent, and after giving effect to this
Consent and the transactions contemplated hereby, the representations and
warranties of Borrowers contained in the 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
Consent 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 Consent 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
Consent 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.
5. Effect on Credit Agreement. This Consent 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 full force and effect and are each hereby ratified and confirmed.
2
6. Miscellaneous.
6.1 Successors and Assigns. This Consent 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 Party may assign its rights, obligations, duties or other interests
hereunder without the prior written consent of Lender. The terms and provisions
of this Consent 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 Consent.
6.2 Entire Agreement. This Consent, 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
6.3 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 Consent, 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.
6.4 Headings. Section headings in this Consent are included herein for
convenience of reference only and shall not constitute a part of this Consent
for any other purpose.
6.5 Counterparts. This Consent may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute one
document.
6.6 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.
6.7 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 Party 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 Consent, 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 beginning of time up to and
including the date of the execution and delivery of this Consent. 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.
(Signature page to follow)
3
IN WITNESS WHEREOF, this Consent has been duly executed as of the date first
written above.
RINGER CORPORATION
By: /s/ Xxxx Xxxxxxxxxxx
---------------------
Title: Executive Vice President & CFO
-------------------------------
SAFER, INC.
By: /s/ Xxxx Xxxxxxxxxxx
---------------------
Title: Executive Vice President & CFO
-------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION,
as Lender
By: /s/ Xxxxxx X. Xxxxx
--------------------
Title: Duly Authorized Signatory
--------------------------
The following Person is a signatory to this Consent in its capacity as
a Credit Party and not as a Borrower.
SAFER LTD.
By: /s/ Xxxx Xxxxxxxxxxx
---------------------
Title: Executive Vice President & CFO
-------------------------------
4