FIRST AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT
FIRST
AMENDMENT TO REVOLVING CREDIT
THIS FIRST AMENDMENT TO REVOLVING
CREDIT AND SECURITY AGREEMENT (this “Agreement”) is entered into March 31, 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 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
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1)
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ACKNOWLEDGMENT OF
BALANCE. Borrower acknowledges that the most recent statement of
account sent to Borrower with respect to the Obligations is
correct.
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2)
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MODIFICATIONS. The
Loan Agreement be and hereby is modified as
follows:
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(I) The definition of “Revolving Interest
Rate” as set forth in Section 1.2 of the Loan Agreement is hereby deleted
and replaced with the following definition to read as follows:
The
definition of “Revolving Interest
Rate” shall mean an interest rate per annum equal to (a) the sum of the
Alternate Base Rate plus two and one-fourth (2.25%) per cent with respect to
Domestic Rate Loans, and (b) the sum of the Eurodollar Rate plus three (3.00%)
percent with respect to Eurodollar Rate Loans. However, in no event
shall Eurodollar Rate Loans be less than two and one-half (2.50%)
percent.
(II) Section 6.5 of the Loan
Agreement entitled “Financial Covenants”
is hereby deleted and a new Section 6.5 is replaced therefor to read as
follows:
6.5. Financial
Covenants.
(a) Minimum Undrawn
Availability: Cause, suffer or permit Undrawn Availability plus cash on
deposit at PNC to be less than: (1) Two Million Two Hundred Fifty Thousand
($2,250,000) Dollars as of March 31, 2009, or (2) Three Million Five Hundred
Thousand ($3,500,000) Dollars as of June 30, 2009;
(b) Fixed Charge Coverage
Ratio: Cause to be maintained at all times a Fixed Charge
Coverage Ratio of not less than (1) 1.00 to 1.00 from July 1, 2009 through
September 30, 2009, (2) 1.10 to 1.00 from October 1, 2009 through
June 30, 2010, tested quarterly on a building four (4) quarter basis, and (3)
1.10 to 1.00 thereafter, tested quarterly on a rolling four (4) quarter
basis;
(c) Minimum
EBITDA: Cause, suffer or permit EBITDA to be less than (1) Two
Million Six Hundred Twenty-Two Thousand ($2,622,000) Dollars for the trailing
twelve months ending March 31, 2009, or (2) One Million Five Hundred Thousand
($1,500,000) Dollars for the fiscal quarter ending June 30, 2009.
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3)
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WAIVER OF FINANCIAL COVENANT
DEFAULT. The Agent hereby waives compliance by the
Borrower with respect to the Fixed Charge Coverage Ratio contained in
Section 6.5(a) of the Loan Agreement for the fiscal quarter beginning
October 1, 2008 and ending December 31, 2008. Except as
specifically waived herein, all other terms and conditions as set forth in
the Loan Agreement shall remain in full force and
effect.
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4)
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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 $15,000, and (3)
Lender’s counsel’s fees.
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4)
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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.
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5)
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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.
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IN WITNESS WHEREOF, the
undersigned have signed and sealed this Agreement the day and year first above
written.
| ATTEST: | BCI COMMUNICATIONS, INC. | |||
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/s/
Xxxxxxxx Xxx
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By: |
/s/
Xxxxxxx X. Xxxxxxxx, Xx.
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Name:
Xxxxxxxx Xxx
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Name: |
Xxxxxxx
X. Xxxxxxxx, Xx.
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Title: General
Counsel and Secretary
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Title:
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Chief Financial Officer and Treasurer
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| ATTEST: | BERLINER COMMUNICATIONS, INC. | |||
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/s/
Xxxxxxxx Xxx
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By: |
/s/
Xxxxxxx X. Xxxxxxxx, Xx.
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Name:
Xxxxxxxx Xxx
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Name: |
Xxxxxxx
X. Xxxxxxxx, Xx.
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Title: General
Counsel and Secretary
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Title:
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Chief Financial Officer and Treasurer
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PNC
BANK, NATIONAL ASSOCIATION
Lender
and as Agent
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/s/
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By: |
/s/
Xxxx X. Xxxxx
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Name:
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Name: |
/s/
Xxxx X. Xxxxx
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Title:
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Title:
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Vice
President
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