THIRD AMENDMENT TO CREDIT AGREEMENT

EX-10.1 2 a11-5116_1ex10d1.htm EX-10.1

Exhibit 10.1

EXECUTION COPY

THIRD AMENDMENT TO CREDIT AGREEMENT

THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of December 21, 2010 by and among DYNAVOX SYSTEMS LLC, a Delaware limited liability company (“Borrower”), DYNAVOX INTERMEDIATE LLC, a Delaware limited liability company (“Holdings”), DynaVox Services Inc., a Delaware corporation (“Services”), Blink-Twice LLC, a Delaware limited liability company (“Blink-Twice”), Mayer-Johnson LLC, a Delaware limited liability company (“Mayer-Johnson”), DynaVox International Holdings Inc., a Delaware corporation (“International”), EYE RESPONSE TECHNOLOGIES, INC., a Virginia corporation (“ERT”; Borrower, Holdings, Services, Blink-Twice, Mayer-Johnson, International and ERT are collectively referred to herein as the “ Credit Parties” and each individually as a “Credit Party”), GE BUSINESS FINANCIAL SERVICES INC. (in its individual capacity, “GE BFS”), as agent (in such capacity, together with its successors and assigns in such capacity, the “Agent”) for the several financial institutions from time to time party to the Credit Agreement (collectively, the “Lenders” and each individually a “Lender”), and for itself as a Lender, and such Lenders signatory hereto.

W I T N E S S E T H:

WHEREAS, Borrower, Agent and the Lenders have entered into that certain Third Amended and Restated Credit Agreement dated as of June 23, 2008 (as amended, modified, restated or otherwise supplemented from time to time, the “Credit Agreement”);

WHEREAS, Borrower has requested that Agent and the Required Lenders amend the Credit Agreement in certain respects as set forth herein; and

WHEREAS, Agent and the Required Lenders are willing to make such amendments subject to the terms, conditions and other provisions hereof.

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:

I. Defined Terms. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Credit Agreement (as amended hereby).

II. Amendment. Subject to the conditions set forth below, and in reliance upon the representations and warranties of the Credit Parties set forth in the Credit Agreement and in this Amendment, the Credit Agreement is hereby amended as follows:

(1) Section 4.1(a) of the Credit Agreement is hereby deleted in its entirety and the following Section 4.1(a) is substituted in lieu thereof

“(a) as soon as practicable and in any event within thirty (30) days after the end of each month (including the last month of Borrower’s Fiscal Year), commencing with the month ended November 30, 2010, a consolidated balance sheet of Ultimate Holdings and its Subsidiaries as at the end of such month and the related consolidated statements of

operations and cash flows for such month, and for the portion of the Fiscal Year ended at the end of such month (i) with sufficient detail and specificity to distinguish and permit Agent to readily discern the revenues and gross profit of Borrower’s different business and product lines, including the business operations and performance of Mayer-Johnson LLC and (ii) setting forth, in each case, to the extent comparable figures are available, in comparative form the figures for the corresponding periods of the previous Fiscal Year and the figures for such month and for such portion of the Fiscal Year ended at the end of such month set forth in the annual operating and capital expenditure budgets and cash flow forecast delivered pursuant to Section 4.1(m), all of the foregoing in reasonable detail and certified by a Responsible Officer as fairly presenting, in all material respects, the fi nancial condition and results of operations of Ultimate Holdings and its Subsidiaries and as having been prepared in accordance with GAAP applied on a basis consistent with the audited financial statements of Ultimate Holdings, subject to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosures;”

(2) Exhibit B to the Credit Agreement is deleted in its entirety and Exhibit A attached hereto is substituted in lieu thereof.

III. Conditions Precedent. The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent or concurrent:

(1) the execution and delivery of this Amendment by each of the Credit Parties, Agent and the Required Lenders;

(2) all representations and warranties by any Credit Party contained herein or in any other Financing Document shall be true and correct in all material respects on and as of the date hereof or, to the extent such representations and warranties expressly relate to an earlier date, on and as of such earlier date;

(3) before and after giving effect hereto, no Default or Event of Default under the Credit Agreement shall have occurred and be continuing;

(4) receipt by Agent on behalf of each Lender that executes and returns to Agent a counterpart signature page of this Amendment no later than 4:00 p.m. Eastern Standard Time on December 21, 2010 of a fully earned, non-refundable amendment fee in the aggregate amount of 0.125% of the Revolving Loan Commitments of and the Term Loan held by such Lenders on the date hereof, which fee is due and payable in full on the date hereof;

(5) Borrower and Agent shall have entered into a fee letter in form and substance acceptable to Agent;

(6) receipt by Agent of the items required to be delivered pursuant to Section 4.1(a) of the Credit Agreement (after giving effect to this Amendment) for the month ended October 31, 2010; and

(7) receipt by Agent on the date hereof of the fees set forth in that certain fee letter dated as of the date hereof by and between Borrower and Agent.

IV. Representations and Warranties. Each Credit Party, jointly and severally, hereby represents and warrants to Agent and each Lender as follows:

(1) The execution, delivery and performance by each Credit Party of this Amendment and each other document, agreement and instrument executed by such Credit Party in connection herewith are within its powers, have been duly authorized by all necessary action pursuant to its Organizational Documents, require no further action by or in respect of, or filing with, any governmental body, agency or official except for actions or filings, the failure with respect to which could not reasonably be expected to have a Material Adverse Effect, and do not violate, conflict with or cause a breach or a default under any provision of applicable law or regulation or of the Organizational Documents of any Credit Party or of any agreement, judgment, injunction, order, decree or other instrument binding upon it, except for such violations, conflicts, breaches or defaults as could not reasonably be expected to have a Material Adverse Effect;

(2) this Amendment and each other document, agreement and instrument executed by such Credit Party in connection herewith constitutes a valid and binding agreement or instrument of such Credit Party, enforceable against such Credit Party in accordance with its respective terms, subject to the effects of (i) insolvency, fraudulent conveyance, reorganization, moratorium and bankruptcy or other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) any implied covenant of good faith and fair dealing; and

(3) no Default or Event of Default exists.

V. No Waiver. Except as expressly set forth herein, nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition contained in the Credit Agreement or any of the other Financing Documents or constitute a course of conduct or dealing among the parties. Except as expressly stated herein, (a) Agent and Lenders reserve all rights, privileges and remedies under the Financing Documents, and (b) the Credit Agreement and other Financing Documents remain unmodified and in full force and effect.

VI. References. Any reference to the Credit Agreement contained in any document, instrument or agreement executed in connection with the Credit Agreement, including, without limitation, any Financing Document, shall be deemed to be a reference to the Credit Agreement as modified by this Amendment. This Amendment shall be deemed to be a Financing Document.

VII. Counterparts. This Amendment may be executed and delivered via facsimile or other electronic transmission with the same force and effect as if an original were executed and may be executed by one or more of the parties to this Amendment and any number of separate counterparts, each of which when so executed, shall be deemed an original and all said counterparts when taken together shall be deemed to constitute but one and the same instr ument.

VIII. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of Borrower and each other Credit Party and their successors and assigns and the Agent and the Lenders and their successors and assigns.

IX. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

X. Severability. Wherever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remainin g provisions of this Amendment.

XI. Reaffirmation. Each of the Credit Parties as debtor, grantor, pledgor, guarantor, assignor, or in other any other similar capacity in which such Credit Party grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby: (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the F inancing Documents to which it is a party (after giving effect hereto) and (ii) to the extent such Credit Party granted liens on or security interests in any of its property pursuant to any such Financing Document as security for or otherwise guaranteed the Obligations under or with respect to the Financing Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations. Each of the Credit Parties hereby consents to this Amendment and acknowledges that each of the Financing Documents remains in full force and effect and is hereby ratified and reaffirmed. Except as specifically provided hereunder, the execution of this Amendment shall not operate as a waiver of any right, power or remedy of the Agent or Lenders, constitute a waiver of any provision of any of the Financing Documents or serve to effect a novation of the Obligations.

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