Exhibit 10
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Agreement") is made as of
this 29th day of November, 2001 between X-XXX.XXX CORP., a Pennsylvania
corporation ("C-Cor"), BROADBAND CAPITAL CORPORATION, a Delaware corporation
("Broadband," and collectively with C-Cor, the "Borrowers"), THE UNDERSIGNED
BANK PARTIES (individually a "Bank" and collectively, the "Banks") and MELLON
BANK, N.A., a national banking association, as agent for the Banks (the
"Agent").
W I T N E S S E T H :
WHEREAS, the Borrowers, the Banks and the Agent are parties to a Credit
Agreement dated as of August 9, 1999, as amended by that certain First Amendment
to Credit Agreement dated as of December 29, 1999, that certain Second Amendment
to Credit Agreement dated as of November 24, 2000, that certain Third Amendment
to Credit Agreement dated as of May 17, 2001 that certain Fourth Amendment to
Credit Agreement dated as of June 5, 2001 and as amended by certain letter
agreements (as so amended, the "Credit Agreement"), pursuant to which the Banks
agreed to extend to the Borrowers a Twenty Million Dollar ($20,000,000.00)
revolving credit facility, a Fifty Million Dollar ($50,000,000.00) standby
acquisition facility and a Two Million Five Hundred Thousand Dollar
($2,500,000.00) term loan (Capitalized terms used herein but not defined in this
Agreement shall have the meanings ascribed to them in the Credit Agreement.);
WHEREAS, the Borrowers have repaid the Term Loan in full;
WHEREAS, the Standby Facility Commitment has expired;
WHEREAS, the Borrowers have requested that the Credit Agreement be amended
in order to, among other things, amend certain financial covenants and extend
the Revolving Credit Expiration Date; and
WHEREAS, the Agent and the Banks are willing to grant such request, subject
to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and intending to be legally bound, the Borrowers, the Agent and the Banks hereby
covenant and agree as follows:
1. Amendments. Upon the execution and delivery by the Borrowers and the
Banks of this Agreement, the Credit Agreement shall be amended as follows:
(a) The definition of Revolving Credit Expiration Date set forth in
Section 1.01 of the Credit Agreement is deleted in its entirety and replaced
with the following:
"Revolving Credit Expiration Date" shall mean January 29, 2002."
(b) The following defined term shall be added to Section 1.01, Certain
Definitions, in alphabetical order:
"Minimum Net Worth" shall mean all assets of the Borrowers and their
consolidated Subsidiaries minus all liabilities of the Borrowers and their
consolidated Subsidiaries.
(c) The pricing grid set forth subsection (a) of Section 2.05, Interest
Rates, shall be deleted in its entirety, and the paragraph defining the term
"Applicable Margin" is deleted in its entirety and replaced with the following:
"Applicable Margin" shall mean: (x) 2% for the LIBOR Rate Portion of the
Loans; (y) 0% for the Prime Rate Portion of the Loans; and (z) 2% for the Fed
Funds Portion of the Loans."
(d) Subsection 3.01(d) shall be deleted in its entirety and replaced with
the following:
(d) Letter of Credit Fee. On the date of issuance (and annually
thereafter), the Borrowers shall pay to the Agent for the account of each Bank a
fee (the "Letter of Credit Fee") for each Letter of Credit equal to (i) the face
amount of each issued and outstanding Letter of Credit times (ii) 2%.
(e) Subsections (a), (b) and (c) of Section 7.01, Financial Covenants,
shall be deleted in their entirety and replaced with the following:
7.01 Minimum Net Worth. As of the last day of the fiscal quarter ending on
December 28, 2001, the minimum Net Worth shall be at least $190,000,000.
(f) Section 7.08, Acquisitions; Mergers, Etc., shall be deleted in its
entirety and replaced with the following:
7.08 Acquisitions; Mergers, Etc. without the prior written consent of each
Bank and the Agent, no Borrower shall nor shall it permit any of its
Subsidiaries to, enter into any transaction of acquisition or merger or
consolidation or amalgamation or division, or liquidate, wind-up or dissolve
itself or suffer any liquidation or dissolution, except for those specific
transactions described on Schedule 7.08 attached hereto.
2. Waiver of Covenant The Borrowers have requested and the Banks and the
Agent have agreed, to waive compliance with the Funded Debt to Adjusted EBITDA
ratio covenant for the quarter ending September 30, 2001. Such waiver shall not
constitute a waiver of or in any way limit the Bank's and Agent's remedies as a
result of a failure to comply with any other term or covenant under the Credit
Agreement (as amended by this Amendment).
3. Representations and Warranties. (a) The Borrowers hereby represent and
warrant to the Agent and the Banks that there is no default, Event of Default or
Potential Default under the Credit Agreement, the Loan Documents, or any other
document executed in connection therewith.
(b) Each of the representations and warranties by the Borrowers in or
pursuant to the Credit Agreement or any Loan Document are true and correct in
all material respects on and as of the date of this Agreement as though made on
and as of such date.
4. Other Terms Confirmed. All other terms and conditions of the Credit
Agreement, including, without limitation, the right of the Agent and the Banks
to CONFESS JUDGMENT, are hereby confirmed and shall remain in full force and
effect without modification. From and after the effectiveness of the amendments
set forth in Section 1 hereof, all references in any document or instrument to
the Credit Agreement shall mean the Credit Agreement as amended by this
Agreement.
5. No New Indebtedness. The Borrowers specifically acknowledge and agree
that this Agreement shall not represent in any way the extension of any
additional credit by the Banks to the Borrowers, or the satisfaction of any
indebtedness evidenced by Loan Documents or the Credit Agreement as amended
hereby. The Borrowers further acknowledge that there are no outstanding Standby
Facility Loans, the Standby Facility Commitment has expired, and no Standby
Facility Loans are available to the Borrowers under the Credit Agreement.
6. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
7. Headings. The descriptive headings which are used in this Agreement are
for convenience only and shall not affect the meaning of any provision of this
Agreement.
8. Governing Law. This Agreement shall be governed by and construed under
the laws of the Commonwealth of Pennsylvania, without regard to conflict of laws
principles.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first written
above.
ATTEST: X-XXX.XXX CORP.
/s/ Xxxxxx X. Xxxxxxx By /s/ X. X. Xxxxxxx
----------------------- --------------------
By: Xxxxxx X. Xxxxxxx Name: X. X. Xxxxxxx
Title: Controller Title: CFO
[CORPORATE SEAL]
ATTEST: BROADBAND CAPITAL CORPORATION
/s/ Xxxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxxxx
----------------------- -------------------------
By: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Controller Title: President
[CORPORATE SEAL]
SIGNATURES CONTINUED ON NEXT PAGE
MELLON BANK, N.A., as Issuing Bank and
as Agent for the Banks
By /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
MELLON BANK, N.A., individually as a Bank
By /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
FIRST UNION NATIONAL BANK, individually as
a Bank
By /s/ Xxxx X. Xxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION,
individually as a Bank
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
