FOURTH AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.1
EXECUTION
COPY
FOURTH
AMENDMENT TO CREDIT AGREEMENT
THIS
FOURTH AMENDMENT TO CREDIT
AGREEMENT (this “Amendment”),
dated as
of December 20, 2007, is by and among ENTERTAINMENT DISTRIBUTION
COMPANY,
LLC, a Delaware limited liability company (the “Borrower”),
those
Domestic Subsidiaries of the Borrower identified as a “Guarantor” on the
signature pages hereto (individually a “Guarantor” and
collectively the “Guarantors”), the
financial institutions party hereto as lenders (the “Lenders”) and WACHOVIA
BANK, NATIONAL
ASSOCIATION, as administrative agent under the Credit Agreement (defined
below) (in such capacity, the “Administrative
Agent”).
W
I T N E S S E T H
WHEREAS,
the Borrower, the
Guarantors, Glenayre Electronics, Inc., a Colorado corporation, the Lenders
and
the Administrative Agent are parties to that certain Credit Agreement dated
as
of May 31, 2005 (as previously amended, modified or supplemented and as further
amended, modified, supplemented, restated or amended and restated from time
to
time, the “Credit
Agreement”; capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement as amended hereby); and
WHEREAS,
the Borrower and the
Lenders have agreed to amend the Credit Agreement on the terms and conditions
set forth herein;
NOW,
THEREFORE, in
consideration of the agreements hereinafter set forth, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE
I
AMENDMENT
TO CREDIT AGREEMENT
1.1
Amendment
to Section 1.1. Section 1.1
of
the Credit Agreement is hereby amended as follows:
(a) The
definition of “Change of Control” is hereby amended by deleting clause (c) and
replacing it with the following:
“(c)
the
failure of the Parent to own, directly or indirectly, a majority or more of
the
then outstanding Voting Stock of the Borrower.”
(b) The
definition of Security Documents is hereby deleted in its entirety and replaced
with the following:
“Security
Documents” shall mean (i) the Security Agreement, (ii) the Pledge
Agreement, (iii) from the Closing Date through the Fourth Amendment Effective
Date, the Parent Pledge Agreement, (iv) on and after the Fourth Amendment
Effective Date, the Intermediate Parent Pledge Agreement, (v) the Foreign
Collateral Documents, (vi) the Mortgage Instruments, (vii) the Cash Collateral
Account Agreement and such other documents executed and/or delivered in
connection with the attachment and perfection of the Administrative Agent’s
security interests and liens arising thereunder, including, without limitation,
UCC financing statements and any collateral documentation (in addition to the
Pledge Agreement) with respect to the pledge of 65% of the Capital Stock of
any
first-tier Foreign Subsidiary.
(c) The
following definitions are hereby added in appropriate alphabetical order:
(i) “Fourth
Amendment Effective
Date” shall mean December 20, 2007.
(ii) “Intermediate
Parent”
shall mean GEI EDC Holding Company, a Delaware corporation.
(iii) “Intermediate
Parent Pledge
Agreement” shall mean the Intermediate Parent Pledge Agreement dated as
of the Fourth Amendment Effective Date executed by the Intermediate Parent
in
favor of the Administrative Agent, as amended, modified, restated or
supplemented from time to time.
1.2 Amendment
to Section 6.1. Section 6.1
of
the Credit Agreement is hereby amended by deleting clause (d) in its entirety
and replacing it with the following:
(d) (i)
Unsecured
intercompany Indebtedness among the Credit Parties, (ii) unsecured intercompany
Indebtedness among Foreign Subsidiaries, (iii) Indebtedness owed by a Foreign
Subsidiary to a Credit Party and (iv) unsecured Indebtedness owed by the
Borrower to (A) Entertainment Distribution Holdings GmbH in the original
principal amount of eight million Euros and (B) EDC UK Holdings Limited in
the
original principal amount of two million five hundred thousand British Pounds;
provided that,
in the case of the Indebtedness described in clauses (i) and (iv), any such
Indebtedness shall be (x) fully subordinated to the Credit Party Obligations
hereunder on terms reasonably satisfactory to the Administrative Agent and
(y)
if such Indebtedness is evidenced by promissory notes, such promissory notes
shall be pledged to the Administrative Agent as Collateral for the Credit
Party
Obligations; provided, further,
that in the
case of the Indebtedness described in clause (iv), the Company shall not
repay
such Indebtedness with the proceeds of any Loan;
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1.3
Amendment
to Section 6.10. Section 6.10
of
the Credit Agreement is hereby deleted in its entirety and replaced with
the
following:
6.10
Restricted
Payments.
Each
of the Credit Parties will not,
nor will it permit any Subsidiary to, directly or indirectly, declare, order,
make or set apart any sum for or pay any Restricted Payment, except:
(a)
to make dividends or other distributions payable to any Credit Party (directly
or indirectly through Subsidiaries);
(b)
to make the regularly scheduled Rebate Payments as set forth in the Supply
Agreements in effect as of the Closing Date;
(c)
to make annual distributions from the Borrower to any member of the Borrower
in
accordance with the terms of the Borrower’s operating agreement for the purpose
of paying income taxes of such member equal to the product of (i) the amount
of
income allocated to such member by the Borrower for federal income tax purposes,
multiplied by (ii) the rate established by the Borrower’s board of directors in
accordance with the terms of the Borrower’s operating agreement, not to exceed
45%; and
(d)
provided that no Default or Event of Default has occurred and is continuing
at
such time or would be directly or indirectly caused as a result thereof after
giving effect to such payments, the Borrower may make regularly scheduled
payments of principal and interest owing on the Subordinated Indebtedness in
accordance with the subordination provisions of the documents and instruments
evidencing such Subordinated Indebtedness.
ARTICLE
II
CONDITIONS
TO EFFECTIVENESS
2.1
Closing
Conditions.
This
Amendment shall become effective
as of the date hereof (the “Fourth Amendment
Effective
Date”) upon satisfaction of the following conditions (in form and
substance reasonably acceptable to the Administrative Agent):
(a)
Executed
Amendment. The Administrative Agent shall have received a copy
of this Amendment duly executed by each of the Credit Parties, the Lenders
and
the Administrative Agent.
3
(b)
Intermediate Parent
Pledge. The Administrative Agent shall have received a copy of
the Intermediate Parent Pledge Agreement, duly executed by the Intermediate
Parent.
(c)
Other. The
Administrative Agent shall have received such other documents, agreements or
information which it may reasonably request relating to the Credit Parties
and
the transactions contemplated by this Amendment and any other matters relevant
hereto or thereto, all in form and substance satisfactory to the Administrative
Agent in its sole good faith discretion.
ARTICLE
III
MISCELLANEOUS
3.1 Amended
Terms. All references to the Credit Agreement in each of the
Credit Documents shall hereafter mean the Credit Agreement as amended by this
Amendment. Except as specifically amended hereby or otherwise agreed,
the Credit Agreement is hereby ratified and confirmed and shall remain in full
force and effect according to its terms.
3.2 Representations
and Warranties of Credit Parties. Each of the
Credit
Parties represents and warrants as follows as of the date hereof:
(a)
It has taken all necessary action to authorize the execution, delivery and
performance of this Amendment.
(b)
This Amendment has been duly executed and delivered by such Person and
constitutes such Person’s valid and legally binding obligations, enforceable in
accordance with its terms, except as such enforceability may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors’ rights generally and
(ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
(c)
No consent, approval, authorization or order of, or filing, registration or
qualification with, any Governmental Authority or third party is required in
connection with the execution, delivery or performance by such Person of this
Amendment.
(d)
The representations and warranties set forth in Article III of the Credit
Agreement are true and correct in all material respects as of the date hereof
(except for those which expressly relate to an earlier date).
3.3 Acknowledgment
of Guarantors. The Guarantors acknowledge and consent to all
of the terms and conditions of this Amendment and agree that this Amendment
and
all documents executed in connection herewith do not operate to reduce or
discharge the Guarantors’ obligations under the Credit Documents.
4
3.4
Credit
Document. This Amendment
shall constitute a Credit Document under the terms of the Credit
Agreement.
3.5
Entirety. This
Amendment and the other Credit Documents embody the entire agreement between
the
parties hereto and supersede all prior agreements and understandings, oral
or
written, if any, relating to the subject matter hereof.
3.6
Counterparts;
Telecopy. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same
instrument. Delivery of an executed counterpart to this Amendment by
telecopy shall be effective as an original and shall constitute a representation
that an original will be delivered.
3.7
GOVERNING
LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
3.8
Consent
to Jurisdiction; Service of Process; Waiver of Jury Trial. The jurisdiction,
services of process and waiver of jury trial provisions set forth in Sections
9.14 and 9.17 of the Credit Agreement are hereby incorporated by reference,
mutatis
mutandis.
3.9
Fees. The
Borrower
agrees to pay all fees and expenses of the Administrative Agent in connection
with the preparation, execution and delivery of this Amendment, including,
without limitation, the fees and expenses of Xxxxx & Xxx Xxxxx
PLLC.
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IN
WITNESS WHEREOF the Borrower, the
Guarantors, the Lenders, and the Administrative Agent have caused this Amendment
to be duly executed on the date first above written.
BORROWER:
|
ENTERTAINMENT
DISTRIBUTION COMPANY,
LLC, a Delaware limited liability company |
||
|
By:
|
/s/ Jordan X. Xxxxxxx | |
Name:
|
Jordan X. Xxxxxxx | ||
Title:
|
Chief Executive Officer |
GUARANTORS
:
|
ENTERTAINMENT
DISTRIBUTION COMPANY
(USA), LLC, a Delaware limited liability company |
||
|
By:
|
/s/ Jordan X. Xxxxxxx | |
Name:
|
Jordan X. Xxxxxxx | ||
Title:
|
Chief Executive Officer |
ADMINISTRATIVE
AGENT AND LENDERS: |
WACHOVIA
BANK,
NATIONAL ASSOCIATION, as Administrative Agent and as a Lender |
||
|
By:
|
/s/ Xxxxxx Xxxxx | |
Name:
|
Xxxxxx Xxxxx | ||
Title:
|
Senior Vice President |
ING
CAPITAL LLC, as a
Lender
|
|||
|
By:
|
/s/ Xxxxxx Xxxxxx | |
Name:
|
Xxxxxx Xxxxxx | ||
Title:
|
Vice President |