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Exhibit 10.10(c)
AMENDMENT NO. 2 ("AMENDMENT"), dated as of May 31, 2000, to the Amended
and Restated Credit Agreement, dated as of March 10, 2000 (as the same may be
amended, restated, supplemented and/or modified from time to time in accordance
with its terms, the "CREDIT AGREEMENT"), by and between VIASOURCE
COMMUNICATIONS, INC. (the "BORROWER") and GENERAL ELECTRIC CAPITAL CORPORATION
(the "LENDER"). All capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Credit Agreement.
The Borrower has requested the consent of Lender to consummate certain
acquisitions and amendments to certain financial covenants set forth in the
Credit Agreement and the Lender is willing to grant such requests.
Accordingly, the parties hereto agree as follows:
Section 1. AMENDMENT
(a) The following definition is hereby inserted in Section 1.1 of the
Credit Agreement in its proper alphabetical order:
"SENIOR LEVERAGE RATIO" means as of any date of determination, the
ratio of (i) the Indebtedness evidenced by this Agreement plus all Capital Lease
Obligations as of such date to (ii) EBITDA for the twelve consecutive month
period most recently ended.
(b) The definition of "Permitted Encumbrances" is hereby amended by
deleting the word "and" appearing at the end of subsection (j) therein and
inserting the following in its proper alphabetical order:
(1) mortgages securing certain parcels of real property then
in effect at the time of and acquired pursuant to Permitted Acquisitions.
(c) Section 6.1(iii) of the Credit Agreement is hereby amended by
deleting the dollar amount "$400,000" appearing therein and inserting the dollar
amount "$600,000" in substitution thereof.
(d) Section 6.1(x) of the Credit Agreement is hereby amended by
adding the following after the word "outstanding" appearing therein: "provided,
that solely for purposes hereof, mortgages in effect on parcels of real property
acquired pursuant to Permitted Acquisitions shall not be considered in
determining such amount."
(e) Section 6.4(iii) of the Credit Agreement is hereby amended by
deleting the dollar amount "$4,800,000" appearing therein and inserting the
dollar amount "$10,000,000" in substitution thereof.
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(f) Section 6.7(a) of the Credit Agreement is hereby amended and
restating the table appearing therein in its entirety as follows:
PERIOD RATIO
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April 1, 2000 through June 30, 2000 8.0:1.0
July 1, 2000 through September 30, 2000 5.5:1.0
October 1, 2000 through December 31, 2000 3.5:1.0
January 1, 2001 through March 31, 2001 3.0:1.0
(g) Section 6.7(b) of the Credit Agreement is hereby amended by adding
the following language at the conclusion thereof:
"provided, however, that for purposes of calculation at the
Borrower's Fiscal Quarter ending June 30, 1999, such ratio shall be 1.10:1.0"
(h) Section 6.7 of the Credit Agreement is hereby amended by inserting
the following subsection immediately after subsection (b) appearing therein:
(c) SENIOR LEVERAGE RATIO. The Senior Leverage Ratio for each
day of the rolling four quarter period ending as of each day during
each period listed below shall not exceed the ratio indicated below:
PERIOD RATIO
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April 1, 2000 through June 30, 2000 4.0:1.0
July 1, 2000 through September 30, 2000 2.75:1.0
October 1, 2000 through December 31, 2000 2.0:1.0
January 1, 2001 through March 31, 2001 2.0:1.0
At all times thereafter 2.0:1.0
Section 2. CONSENT
The Lender hereby consents to the Borrower's acquisition of (i)
Excalibur Cable Communications, Ltd. ("Excalibur"), pursuant to that certain
Merger Agreement, dated as of May ___, 2000, among Borrower, EX Acquisition,
Inc., Excalibur, Konrad Xxxx Xxxx and The Konrad Xxxx Xxxx 2000 Trust and (ii)
Telecore, Inc. ("Telecore") pursuant to that certain Merger
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Agreement, dated as of May __, 2000 by and among Lender, TC Acquisition, Inc., a
Delaware corporation and direct wholly-owned subsidiary of Lender, Telecore,
Xxxx X. Xxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxx X. Xxxx and
Xxxxxxx XxXxxxx, Palomar Ventures I, L.P., Crest Communications Partners, L.P.,
Xxxx XX Ventures, L.L.C., BV-P Holding I, L.L.C., Xxxxxx X. Xxxx and Xxxxx
Xxxxx.
Section 3. WAIVER
The Lender hereby waives compliance by the Borrower with the
requirements of
(a) (i) Section 5.1(i) of the Credit Agreement for the months of
October 1999, November 1999, December 1999, January 2000, February 2000 and
March 2000; (ii) Section 5.1(iii) of the Credit Agreement for Fiscal Year
1999; and (iii) Section 5.1(iv) of the Credit Agreement, each for a period of
fourteen days after the date hereof. Failure to fully comply, within such 14 day
time period, with the requirements set forth in the above waiver shall
constitute a Default under the Credit Agreement; and
(b) Section 6.7 due to the consummation of certain Permitted
Acquisitions, but solely with respect to the first Fiscal Quarter on a pro forma
basis.
Section 4. REPRESENTATIONS AND ADDITIONAL PROVISIONS
1. The Borrower represents and warrants that (i) after giving effect to
this Amendment, no Default or Event of Default is continuing, (ii) the Borrower
has taken all necessary action to authorize the execution, delivery and
performance of this Amendment and (iii) the Credit Agreement, as amended by this
Amendment, is duly enforceable against the Borrower.
2. Except as expressly set forth in this Amendment, the terms,
provisions and conditions of the Credit Agreement and other Loan Documents are
unchanged, and such agreements shall remain in full force and effect and are
hereby confirmed and ratified.
3. The Borrower shall pay all out-of-pocket expenses incurred by the
Lender in connection with the transactions contemplated hereby under this
Amendment, including but not limited to fees and expenses of Xxxx, Scholer,
Fierman, Xxxx & Handler LLP, counsel to the Lender.
4. The term "Agreement", "hereof", "herein" and similar terms as used
in the Credit Agreement, and references in the Loan Documents to the Credit
Agreement shall mean and refer to, from and after the effectiveness of this
Amendment, the Credit Agreement as amended by this Amendment. Except as herein
specifically agreed, the Credit Agreement and the Loan Documents are hereby
ratified and confirmed and shall remain in full force and effect according to
their respective terms.
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5. This Amendment shall be effective upon receipt by the Lender of five
fully executed copies hereof.
6. This Amendment may be executed in any number of counterparts, and
all such counterparts taken together shall constitute one and the same
instrument. Signature pages may be detached from counterpart documents and
reassembled to form duplicate executed originals. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall be
effective as delivery of a manually executed signature page hereto.
7. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD CALL FOR
THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
VIASOURCE COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President &
Chief Financial Officer
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
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