SECOND AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT
EXECUTION
ORIGINAL
Exhibit
10.10
SECOND
AMENDMENT TO REVOLVING CREDIT
AND
SECURITY AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING
CREDIT AND SECURITY AGREEMENT (this “Agreement”) is entered into September 25,
2009 by and between BCI COMMUNICATIONS, INC., a corporation organized under the
laws of the State of Delaware (the “Borrower”), the financial institutions which
are now or which hereafter become a party hereto (collectively, the “Lenders”
and individually a “Lender”) and PNC BANK, NATIONAL ASSOCIATION (“PNC”), as
agent for Lenders (PNC, in such capacity, the “Agent”).
RECITALS
Whereas,
the Borrower and PNC entered into a certain Revolving Credit and Security
Agreement dated April 17, 2008 (as has been, is being and may be further
amended, replaced, restated, modified and/or extended, the “Loan Agreement”);
and
Whereas,
Borrower and PNC have agreed to modify the terms of the Loan Agreement as set
forth in this Agreement.
Now,
therefore, in consideration of PNC’s continued extension of credit and the
agreements contained herein, the parties agree as follows:
AGREEMENT
|
1)
|
ACKNOWLEDGMENT OF
BALANCE. Borrower acknowledges that the most recent statement of
account sent to Borrower with respect to the Obligations is
correct.
|
|
2)
|
MODIFICATIONS. The
Loan Agreement be and hereby is modified as
follows:
|
(I) The definition of “EBITDA” as set forth
in Section 1.2 of the Loan Agreement is hereby deleted and replaced with the
following definition to read as follows:
“EBITDA”
shall mean for any period the sum of (i) Earnings Before Interest and Taxes for
such period plus (ii) depreciation expenses for such period, plus (iii)
amortization expenses for such period; specifically excluding however legal and
advisory fees associated with any merger or acquisition activity in connection
with the Borrower, said fees not to exceed the sum of $1,000,000 in the
aggregate.
|
3)
|
WAIVER OF FINANCIAL COVENANT
DEFAULT. The Agent hereby waives compliance by the
Borrower with respect to the Minimum EBITDA
covenant contained in Section 6.5(c) of the Loan Agreement for the periods
ending March 31, 2009 and June 30, 2009. Except as specifically
waived herein, all other terms and conditions as set forth in the Loan
Agreement shall remain in full force and
effect.
|
1
EXECUTION
ORIGINAL
|
4)
|
PRECONDITIONS. As
preconditions to the effectiveness of any of the modifications, consents,
or waivers contained herein, the Borrower agrees to provide the Agent with
the following: (1) This Agreement and the Guarantor’s Ratification,
properly executed, (2) a waiver fee in the amount of $10,000, and (3)
Lender’s counsel’s fees.
|
|
4)
|
MISCELLANEOUS. This
Agreement shall be construed in accordance with and governed by the laws
of the State of New Jersey, without reference to that state’s conflicts of
law principles. This Agreement, the Loan Agreement and the
Other Documents constitute the sole agreement of the parties with respect
to the subject matter thereof and supersede all oral negotiations and
prior writings with respect to the subject matter thereof. No
amendment of this Agreement, and no waiver of any one or more of the
provisions hereof shall be effective unless set forth in writing and
signed by the parties hereto. The illegality, unenforceability
or inconsistency of any provision of this Agreement shall not in any way
affect or impair the legality, enforceability or consistency of the
remaining provisions of this Agreement, the Loan Agreement or the Other
Documents. This Agreement, the Loan Agreement and the Other
Documents are intended to be consistent. However, in the event
of any inconsistencies among this Agreement, the Loan Agreement and/or any
of the Other Documents, the terms of this Agreement, then the Loan
Agreement, shall control. This Agreement may be executed in any
number of counterparts and by the different parties on separate
counterparts. Each such counterpart shall be deemed an
original, but all such counterparts shall together constitute one and the
same agreement.
|
|
5)
|
DEFINITIONS. The
terms used herein and not otherwise defined or modified herein shall have
the meanings ascribed to them in the Loan Agreement. The terms
used herein and not otherwise defined or modified herein or defined in the
Loan Agreement shall have the meanings ascribed to them by the Uniform
Commercial Code as enacted in State of New
Jersey.
|
[SIGNATURES
CONTAINED ON FOLLOWING PAGE]
2
EXECUTION
ORIGINAL
IN WITNESS WHEREOF, the
undersigned have signed and sealed this Agreement the day and year first above
written.
|
ATTEST:
|
BCI
COMMUNICATIONS, INC.
|
|||
|
/s/ Xxxxxxxx Xxx
|
By:
|
/s/ Xxxxxxx Xxxxxxxx
|
||
|
Name:
Xxxxxxxx Xxx
|
Name: Xxxxxxx
Xxxxxxxx
|
|||
|
Title: General
Counsel and Secretary
|
Title:
President and Chief Executive Officer
|
|||
|
ATTEST:
|
BERLINER
COMMUNICATIONS, INC.
|
|||
|
/s/ Xxxxxxxx Xxx
|
By:
|
/s/ Xxxxxxx Xxxxxxxx
|
||
|
Name:
Xxxxxxxx Xxx
|
Name: Xxxxxxx
Xxxxxxxx
|
|||
|
Title: General
Counsel and Secretary
|
Title:
President and Chief Executive Officer
|
|||
|
PNC
BANK, NATIONAL ASSOCIATION
|
||||
|
Lender
and as Agent
|
||||
|
By:
|
/s/ Xxxx X. Xxxxx
|
|||
|
Name: XXXX
X. XXXXX
|
||||
|
Title: Vice
President
|
||||
3
