Permit Parent, Borrowers, or any of their respective Subsidiaries toborrow any funds, directly or indirectly, under the Xtellus Bridge BankFacility.     (e) The following definitions in Schedule 1.1 of the Agreement are hereby amended asfollows:          (i) The definition of “Permitted Intercompany Advance” is hereby amended by adding a newclause (j) which reads as follows:     “(j) made by any of Parent’s Subsidiaries that is an Obligor to XtellusIsrael or Xtellus Korea, so long as (i) no Default or Event of Default hasoccurred and is continuing or would result therefrom, and (ii) all suchIntercompany Advances do not exceed $1,400,000 in any calendar month;”          (ii) The definition of “Permitted Liens” is hereby amended by adding a new clause (l) afterclause (k), which reads as follows:          “(l) Liens securing the Xtellus Korea Mortgage.”     (f) Schedule 1.1 of the Agreement is hereby amended by adding the followingdefinitions in the appropriate alphabetical order:          (i) “Xtellus Bridge Bank Facility” means that certain Business Financing Agreement,dated as of June 12, 2009, by and between Xtellus Parent and Bridge Bank, National Association, asamended and in effect as of December 16, 2009.          (ii) “Xtellus Entities” means, collectively, Xtellus Parent, Xtellus Israel andXtellus Korea.          (iii) “Xtellus Israel” means Xtellus Ltd (formerly known as GalVite Communications(Israel) Ltd.), a company organized under the laws of Israel          (iv) “Xtellus Korea” means Xtellus Korea, Inc., a company organized under the laws ofKorea.          (v) “Xtellus Korea Mortgage” means, collectively, those two (2) certain *Kun*-mortgagesthat were entered into to secure the Company’s debts, with one *Kun*-mortgage established for thefirst floor #102 Panam-dong 239-2 Dong-gu Daejeon-si in favor of Hana Bank with the maximum securedamount of KRW 260,130,000 on July 14, 2008, and one *Kun*-mortgage established for the first floor#101 Panam-dong 239-2 Dong-gu Daejeon-si in favor of Hana Bank with the maximum secured amount ofKRW 802,750,000 on June 19, 2003; provided that these *Kun*-mortgages constitute a “factory mortgage”established under the Factory Mortgage Act, which provides for the mortgage with a securityinterest with respect to the land and buildings constituting the factory, as well as all of themachinery, equipment and other assets located in the factory over which the mortgage has beenestablished.          (vi) “Xtellus Merger” has the meaning set forth in Amendment Number Five to the CreditAgreement, dated as of December 16, 2009.          (vii) “Xtellus Merger Agreement” means that certain Agreement of Merger, dated as ofDecember 16, 2009, by and among Parent, Xtellus Parent and Rio Acquisition Corp., a Delawarecorporation.          (viii) “Xtellus Parent” means Xtellus Inc. (formerly known as GalVite Communications,Inc.), a Delaware corporation.15. **CONSENT TO MERGER**.     (a) Parent has informed Agent that: (i) Parent has previously formed Rio Sub 1, a Delawarecorporation (“Rio 1”), Rio Sub 2, a Delaware corporation (“Rio 2”), and RioAcquisition Corp., a Delaware
 

 
corporation (“Merger Sub”); (ii) Parent, together with Merger Sub, has entered intothe Xtellus Merger Agreement with Xtellus Parent, pursuant to which Merger Sub will be merged withand into Xtellus Parent with Xtellus Parent as the surviving entity and a wholly owned subsidiaryof Parent (the “Xtellus Merger”); and (iii) Xtellus Parent will be a wholly ownedSubsidiary of Rio 2, Rio 2 will be a wholly owned Subsidiary of Rio 1, and Rio 1 will be a whollyowned Subsidiary of Parent (Xtellus Parent, Rio 1 and Rio 2 are collectively referred to as“New Subs” and each individually as a “New Sub”).     (b) Pursuant to the terms of the Credit Agreement, at the time any Obligor forms any direct orindirect Subsidiary or acquires any direct or indirect Subsidiary after the Closing Date, suchObligor shall (i) cause such new Subsidiary to provide to Agent a joinder to the Guaranty and theSecurity Agreement, together with such other security documents (including Mortgages with respectto any Real Property of such new Subsidiary), as well as appropriate financing statements (and withrespect to all property subject to a Mortgage, fixture filings), all in form and substancesatisfactory to Agent (including being sufficient to grant Agent a first priority Lien (subject toPermitted Liens) in and to the assets of such newly formed or acquired Subsidiary), (ii) provide toAgent a pledge agreement and appropriate certificates and powers or financing statements,hypothecating all of the direct or beneficial ownership interest in such new Subsidiary, in formand substance satisfactory to Agent, and (iii) provide to Agent all other documentation, includingone or more opinions of counsel satisfactory to Agent, which in Agent’s opinion is appropriate withrespect to the execution and delivery of the applicable documentation referred to above (includingpolicies of title insurance or other documentation with respect to all property subject to aMortgage) (such covenants, collectively, the “New Subsidiary Covenants”). Therefore,Parent should comply with the New Subsidiary Covenants with respect to New Subs.     (c) Pending the consummation of the Xtellus Merger, Parent has requested that the Lender Groupconsent to the Xtellus Merger and provide a limited extension for the compliance period withrespect to the New Subsidiary Covenants for New Subs.     (d) Notwithstanding any term or provision of the Credit Agreement to the contrary, including,without limitation, Section 5.16, the Lender Group hereby waives Parent’s compliance withthe New Subsidiary Covenants (except as provided in clause (f) below), so long as the XtellusMerger is consummated on or before December 31, 2009 (the “Consummation Deadline”);provided, that in the event the Xtellus Merger is not consummated by the ConsummationDeadline, such waiver shall continue to be effective so long as Parent and Borrowers perform andcause New Subs to perform each of the New Subsidiary Covenants within 15 days of the ConsummationDeadline.     (e) In addition to the foregoing, notwithstanding any term or provision of the CreditAgreement to the contrary, including, without limitation, Sections 6.3, 6.8 and6.12, the Lender Group hereby consents to the Xtellus Merger and agrees that the XtellusMerger shall not cause an Event of Default, subject to the satisfaction (or waiver) of each of thefollowing conditions precedent and affirmative and negative covenants:          (i) The Xtellus Merger shall be subject to terms and conditions materially consistent (asdetermined by Agent, in its reasonable discretion) with the Xtellus Merger Agreement;          (ii) The date of consummation of the Xtellus Merger (hereafter defined as the “XtellusMerger Date”) must occur on or before the Consummation Deadline;          (iii) No Default or Event of Default shall have occurred and be continuing or would resultimmediately after giving effect to the Xtellus Merger;          (iv) On or before the Xtellus Merger Date, Agent shall have completed its legal due diligencewith respect to the Xtellus Entities, the Xtellus Merger and the New Subs, including (1) receiptand review of consolidated and consolidating quarterly projections for Parent and its Subsidiariesfor the 12-month period following the Xtellus Merger Date which projections shall take intoconsideration the effects of the Xtellus Merger and creation of the New Subs, with the results ofsuch review to be satisfactory to Agent, (2) review of Parent’s and its Subsidiaries’ corporatestructure (taking into consideration the effects of the Xtellus Merger and creation of the NewSubs) and capital structure (taking into consideration the effects of the Xtellus Merger andcreation of the New Subs), with the results of such review to be satisfactory to Agent, (3) receiptand review of the final executed version of the Xtellus Merger Agreement (and related documents)and the pro forma consolidated and consolidating
 

 
financial statements of Parent’s and its Subsidiaries’ business (taking into consideration theeffects of the Xtellus Merger and creation of the New Subs), in form and substance satisfactory toAgent with the results of such review to be satisfactory to Agent, and (4) receipt of UCC, taxlien, litigation and intellectual property searches (including foreign searches, as applicable)with respect to Xtellus Parent and New Subs, the results of which shall be satisfactory to Agent;          (v) On the Xtellus Merger Date, Agent shall have received a certificate (dated as of theXtellus Merger Date) on behalf of Parent of an Authorized Person of Parent attaching true andcorrect copies of the Xtellus Merger Agreement, with such certificate to certify on behalf ofParent that the attached document is a true and correct copy of such document and that suchdocument remains in full force and effect and no Obligor that is a party thereto is in default inthe performance of, or compliance with, any provisions thereof;          (vi) No Indebtedness (other than Indebtedness permitted under Section 6.1 of theAgreement and obligations, to the extent constituting Indebtedness, described below in clause(e)(vii)) will exist or be incurred as a result of the Xtellus Merger other than the Indebtednessrelating to the Xtellus Korea Mortgage and no Liens that are not permitted under Section6.2 of the Agreement (after giving effect to the amendments set forth in this Amendment) willexist or be incurred as a result of the Xtellus Merger;          (vii) The consideration for the Xtellus Merger shall consist primarily of Parent Stock;provided, that under the Merger Agreement: (a) cash payments will be made: (i) to anyholder of common stock of Xtellus Parent that does not deliver a Stockholder Representation Letter(as defined in the Merger Agreement) in the form provided for in the Merger Agreement, (ii) onaccount of consideration, if any, to be paid to holders of Company Options (as defined in theMerger Agreement), and (iii) in respect of miscellaneous fees, expenses and fractional shares, allas more fully set forth in the Merger Agreement, and (b) in Parent’s sole discretion, cash paymentsmay be made (i) on account of any Value Protection Consideration Amount (as defined in the MergerAgreement) that may be due an payable, and (ii) on account of payments to security holders ofXtellus Parent out of the Escrow Fund (as defined in the Merger Agreement);          (viii) The failure to satisfy any of the conditions in clause (i) through (vii) above shallrender the foregoing consent to the Xtellus Merger ineffective and therefore the consummation ofsuch Xtellus Merger an Event of Default.     (f) The failure by Obligors to satisfy any of the following conditions or covenants or, ifapplicable, the last sentence of clause (d) above within the prescribed time periods shallconstitute an Event of Default:          (i) On or before the date that is 15 days after the Xtellus Merger Date (the “XtellusDelivery Deadline”), Agent shall have received copies of the Governing Documents of each of theNew Subs, as amended, modified, or supplemented as of the date of delivery;          (ii) On or before the Xtellus Delivery Deadline, Agent shall have received a certificate ofstatus with respect to each of the New Subs, dated within 15 days of the date of delivery, suchcertificate to be issued by the appropriate officer of such New Sub’s jurisdiction of organization,which certificate shall indicate that such New Sub is in good standing in such jurisdiction;          (iii) On or before the Xtellus Delivery Deadline, Agent shall have received a certificate ofstatus with respect to each of the New Subs, dated within 30 days of the date of delivery, suchcertificates to be issued by the appropriate officer of the jurisdictions (other than such NewSub’s jurisdiction of organization) in which the failure of such New Sub to be duly qualified orlicensed would constitute a Material Adverse Change, which certificates shall indicate that suchNew Sub is in good standing in such jurisdictions;          (iv) Within 2 Business Days of the Xtellus Merger Date, Borrowers shall deliver to Agent acertificate of an Authorized Person of Parent attaching the Certificate of Merger issued by theSecretary of State of Delaware evidencing the consummation of the Xtellus Merger;          (v) On or before the Xtellus Delivery Deadline, Agent, for the ratable benefit of the Lenders,
 

 
shall have a perfected (other than as contemplated by clause (ix) below) first priority Lienover all the Collateral of each of the New Subs, subject only to Permitted Liens;          (vi) On or before the Xtellus Delivery Deadline, Parent and Borrowers shall cause each of theNew Subs to deliver to Agent’s counsel all documents that would be required following the XtellusMerger pursuant to the New Subsidiary Covenants, fully executed and in final form and Parent andObligors shall enter into any amendments to the Loan Documents deemed necessary by Agent to takeinto account the effects of the Xtellus Merger and creation of the New Subs;          (vii) On or before the Xtellus Delivery Deadline, Parent and Borrowers shall cause thetermination of the Xtellus Bridge Bank Facility and the termination of any security interestrelating thereto and shall deliver to Agent’s counsel evidence, satisfactory to Agent, of suchterminations;          (viii) On or before the date that is 60 days after the Xtellus Merger Date, Borrowers shalldeliver to Agent’s counsel updated schedules to the Loan Documents, as applicable;provided, that in no event may any schedule be updated in a manner that would reflect orevidence a Default or an Event of Default; providedfurther, that pending suchdirect update of the schedules to the Loan Documents, such schedules shall be deemed to be amendedto include and reflect (i) the information about the Xtellus Entities as reflected in thedisclosures attached to the Xtellus Merger Agreement, so long as none of the information reflectedin such disclosures is determined by Agent to be adverse to the interests of the Lenders and (ii)the basic corporate information regarding the New Subs;          (ix) Within 60 days of the Xtellus Merger Date, at Agent’s request, Borrowers shall use theircommercially reasonable best efforts to deliver to Agent a Collateral Access Agreement with respectto (1) 66 Ford Road, Denville Technical Park, Suite 121, Denville, New Jersey, and (2) any otherfacilities located within the United States where each of the New Subs’s assets therein are valuedat more than: (y) $250,000 in the aggregate for all such facilities or (z) $100,000 with respectto any individual facility; and          (x) Within 60 days of the Xtellus Merger Date, with respect to each Deposit Account andSecurities Account maintained in the United States and owned by each of the New Subs, Borrowersshall either (i) deliver to Agent the Cash Management Agreements and Control Agreements withrespect to the relevant Deposit Account or Securities Account, each in form and substancesatisfactory to Agent or (ii) cause the relevant Deposit Account and Securities Account to beclosed and provide Agent satisfactory written evidence of such closure, it being understood thatduring the period commencing on the Xtellus Merger Date and ending on the Xtellus Delivery Deadlineand notwithstanding Section 6.12, each of the New Subs may maintain balances in suchDeposit Accounts and Securities Accounts.     (g) The consent set forth herein shall be limited precisely as written and shall not be deemedto be (1) an amendment, waiver or modification of any other term or condition of the Agreement or(2) prejudice any right or remedy which the Lender Group may now or in the future have under or inconnection with the Agreement.16. **REPRESENTATIONS AND WARRANTIES**. Parent and each Borrower hereby affirms to Agent andLenders that, after giving effect to the consents and waivers herein, all of such itsrepresentations and warranties set forth in the Agreement are true, complete and accurate in allrespects as of the date hereof.17. **NO DEFAULTS**. Parent and Borrowers hereby affirm to the Lender Group that no Event ofDefault has occurred and is continuing as of the date hereof.18. **CONDITION PRECEDENT**. The effectiveness of this Amendment is expressly conditioned uponreceipt by Agent of the following: (i) Agent shall have received completed reference checks(including compliance with Section 326 of the US Patriot Act) with respect to the Xtellus Entities,the results of which are satisfactory to Agent in its sole discretion, and (iii) a fully executedcopy of this Amendment.19. **COSTS AND EXPENSES**. Borrowers shall pay to Agent all of Agent’s out-of-pocket costsand reasonable expenses (including, without limitation, the fees and expenses of its counsel, whichcounsel may include
 

 
any local counsel deemed necessary, search fees, filing and recording fees, documentation fees,appraisal fees, travel expenses, and other fees) arising in connection with the preparation,execution, and delivery of this Amendment and all related documents.20. **LIMITED EFFECT**. In the event of a conflict between the terms and provisions of thisAmendment and the terms and provisions of the Agreement, the terms and provisions of this Amendmentshall govern. In all other respects, the Agreement, as amended and supplemented hereby, shallremain in full force and effect.21. **COUNTERPARTS; EFFECTIVENESS**. This Amendment may be executed in any number ofcounterparts and by different parties on separate counterparts, each of which when so executed anddelivered shall be deemed to be an original. All such counterparts, taken together, shallconstitute but one and the same Amendment. This Amendment shall become effective upon theexecution of a counterpart of this Amendment by each of the parties hereto.[Signatures on next page]
 

 
     IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first setforth above.      **WELLS FARGO FOOTHILL, INC.,**