AMENDMENT TO NOTE PURCHASE AGREEMENT AND NOTES AND SECURITY AGREEMENT THEREUNDER
Exhibit
10.5
AMENDMENT
TO
NOTE
PURCHASE AGREEMENT AND NOTES
AND
SECURITY AGREEMENT THEREUNDER
This
AMENDMENT TO NOTE PURCHASE AGREEMENT AND NOTES AND SECURITY AGREEMENT THEREUNDER
(this “Agreement”)
is
made and entered into as of this 17th
day of
April, 2008 among Berliner Communications, Inc., a Delaware corporation (the
“Company”),
and
each of the undersigned holders (each, a “Noteholder,”
and
collectively, the “Noteholders”)
of the
Company’s 7% Senior Subordinated Secured Convertible Notes Due 2008 (each, a
“Note”
and
collectively, the “Notes”).
WHEREAS,
the
Company and Sigma Opportunity Fund, LLC (“Sigma”)
are
parties to (i) that certain Note Purchase Agreement, dated as of December
29,
2006 (the “Note
Purchase Agreement”)
pursuant to which the Company sold and Sigma purchased a Note in the original
principal amount of $3.0 million (the “Sigma
Note”)
and
(ii) that certain Security Agreement, dated as of December 29, 2006 (the
“Security
Agreement”)
pursuant to which the Company granted a security interest in certain collateral
to Sigma;
WHEREAS,
the
Company entered into a Joinder Agreement with Pacific Asset Partners
(“Pacific”)
and
Operis Partners I LLC (“Operis”),
dated
as of February 2, 2007, pursuant to which (i) the Company sold and Pacific
purchased a Note in the original principal amount of $1.0 million (the
“Pacific
Note”),
(ii)
the Company sold and Operis purchased a Note in the original principal amount
of
$500,000 (the “Operis
Note”)
and
(iii) Pacific and Operis became secured parties under the Security
Agreement;
WHEREAS,
the
Company entered into a Joinder Agreement with SIGMA Berliner, LLC (“SBLLC”),
dated
as of February 15, 2007, pursuant to which (i) the Company sold and SBLLC
purchased a Note in the original principal amount of $1.5 million (the
“SBLLC
Note”,
and
together with the Sigma Note, the Pacific Note and the Operis Note, the
“Notes”)
and
(ii) SBLLC became a secured party under the Security Agreement;
WHEREAS,
the
Note
Purchase Agreement, the Notes and the Security Agreement each reflect
Presidential Financial Corporation of Delaware Valley (“Presidential”)
as the
lender of a line of credit senior to other lenders;
WHEREAS,
the Note
Purchase Agreement, the Notes and the Security Agreement each contemplate
that
the Presidential line of credit and a working capital facility provided by
an
approved working capital lender (together, the “Senior
Debt”)
shall
not exceed $10 million in the aggregate;
WHEREAS,
the
Company and the Noteholders desire to amend the Note Purchase Agreement,
the
Notes and the Security Agreement to reflect the replacement of Presidential
as
senior lender by PNC Bank, National Association and to raise the maximum
permitted amount of Senior Debt to $15 million.
1
NOW,
THEREFORE,
the
parties hereto consent and agree as follows:
1. Amendment
of Notes.
The
third paragraph of each of the Sigma Note, Pacific Note, Operis Note and
SBLLC
Note is hereby amended and restated in its entirety to read as
follows:
“The
obligations of the Company under this Note shall rank junior to the existing
line of credit with PNC Bank, National Association in a total amount not
to
exceed $15 million secured by a first priority security interest in all of
the
Company’s and its Subsidiaries’ assets and the proceeds thereof (the “Senior
Debt”). The obligations of the Company under this Note shall rank senior to all
other obligations of the Company for indebtedness for borrowed money or the
purchase price of property other than the Senior Debt (except for indebtedness
permitted under clause (9) of the definition of Permitted Indebtedness to
the
extent that such indebtedness is secured solely by the equipment purchased
or
leased). This Note is issued pursuant to the Note Purchase Agreement and
the
Holder of this Note and this Note are subject to the terms and entitled to
the
benefits of the Note Purchase Agreement.”
2. Amendment
of Security Agreement.
The
last sentence of the first paragraph of the Security Agreement is amended
and
restated in its entirety to read as follows:
“The
lien
and security interest granted hereby is junior and subordinate to the lien
and
security interest previously and separately granted by us to PNC Bank, National
Association (the “Senior Lender”) in a total amount of up to $15 million which
is secured by all our assets and the proceeds thereof and senior to all of
our
other indebtedness.”
3. Effect
of Amendment.
To the
extent any provision of the Note Purchase Agreement and the Notes require
further amendment or interpretation in order to effect and implement the
intentions of this Agreement, the parties hereto agree that such amendments
shall be deemed to have been made upon execution hereof.
4. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. This Agreement may be executed via facsimile, which shall be
deemed
an original.
5. Severability.
If any
provision of this Agreement shall be declared void or unenforceable by any
judicial or administrative authority, the validity or enforceability of any
other provision and of the entire Agreement shall not be affected.
6. Enforceability.
Upon
execution of this Agreement by the undersigned Noteholders, the validity
of any
waiver, consent or amendment made hereunder shall be unaffected by the failure
of any one or more Noteholders of the Company to execute this
Agreement.
7. Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Delaware.
8. Further
Assurances.
Following the date hereof, each party shall execute, deliver, acknowledge
and
file, or shall cause to be executed, acknowledged, delivered and filed, all
such
further instruments, certificates and other documents and shall take, or
cause
to be taken, such other actions as may reasonably be requested by any other
party in order to carry out the provisions of this Agreement.
[Signature
page follows]
2
IN
WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above
written.
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ATTEST:
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BERLINER
COMMUNICATIONS, INC.
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f/k/a
Novo Networks, Inc.
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BY:
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Name:
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XXXXXXXX
XXX
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Name:
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XXXXXXX
XXXXXXXX
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Title:
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General
Counsel & Secretary
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Title:
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Chief
Executive Officer &
President
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ATTEST:
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BCI
COMMUNICATIONS, INC.
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BY:
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Name:
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XXXXXXXX
XXX
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Name:
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XXXXXXX
XXXXXXXX
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Title:
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General
Counsel & Secretary
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Title:
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Chief
Executive Officer &
President
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NOTEHOLDERS:
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WITNESS:
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SIGMA
OPPORTUNITY FUND, LLC,
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By
its Managing Member,
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SIGMA
CAPITAL ADVISORS, LLC
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BY:
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Name:
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Name:
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XXXX
XXXX
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Title:
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Title:
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Manager
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WITNESS:
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SIGMA
BERLINER, LLC,
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a
Delaware limited liability company
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By
its Managing Member,
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SIGMA
CAPITAL ADVISORS, LLC
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BY:
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Name:
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Name:
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XXXX
XXXX
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Title:
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Title:
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Manager
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WITNESS:
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OPERIS
PARTNERS I LLC,
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a
Delaware limited liability company
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BY:
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Name:
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Name:
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XXXX
XXXXXX
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Title:
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Title:
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Managing
Member
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WITNESS:
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PACIFIC
ASSET PARTNERS,
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A
California Limited Partnership
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BY:
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Name:
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Name:
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XXXXXX
X. XXXXXXXX
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Title:
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Title:
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General
Partner
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