creditam_9.htm


    EXHIBIT
10.1

    

      NINTH
AMENDMENT TO CREDIT AGREEMENT

      


      THIS NINTH AMENDMENT TO CREDIT
AGREEMENT (this “Amendment”), dated as
of March 27, 2009, 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

      AMENDMENTS
TO CREDIT AGREEMENT

      


      1.1           Amendment
to Section 1.1.  Section 1.1 of
the Credit Agreement is hereby amended as follows:

      


      (a)           Each
of the following terms is hereby amended and restated in its entirety as
follows:

      


      “Consolidated EBITDA”
shall mean, for any period, the sum of (a) Consolidated Net Income for such
period, plus
(b) an amount which, in the determination of Consolidated Net Income for such
period, has been deducted for (i) Consolidated Interest Expense, (ii) total
federal, state, local and foreign income taxes and (iii) depreciation and
amortization expense, all as determined in accordance with GAAP (except for the
exclusion of Rebate Payments).  Notwithstanding the foregoing, for the
fiscal quarter ended December 31, 2008, and each fiscal quarter thereafter,
Consolidated EBITDA shall be calculated by adding to the number determined
pursuant to the foregoing sentence impairment charges, non-cash charges and
one-time charges for the Sony Sale and any charges related to U.S. operations or
discontinued operations (but not including any ongoing overhead from U.S.
operations), and impairment charges pertaining to the write-down of intangibles
of the German operations, which charges to be added back shall not exceed, in
the aggregate, $30,000,000, to the extent such charges were deducted in the
determination of Consolidated Net Income for the applicable period.

      


      (b)           The
following defined terms are hereby added to the Credit Agreement in the
appropriate alphabetical order:

      


      “Ninth Amendment”
shall mean that certain Ninth Amendment to Credit Agreement dated as of March
27, 2009, by and among the Borrower, the Guarantors, the Parent, the
Administrative Agent and the Lenders.



      
        
           


        

        
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      “Ninth Amendment Effective
Date” shall mean the date upon which each of the conditions set forth in
Article II hereof have been satisfied.

      


      ARTICLE
II

      CONDITIONS
TO EFFECTIVENESS

      


      2.1           Closing
Conditions.  This Amendment
shall become effective as of the date hereof (the “Ninth Amendment Effective
Date”) upon satisfaction of the 

           following conditions (in form and
substance reasonably satisfactory 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.

      


      (b)           Amendment
Fee.  The Borrower shall have paid or caused to be paid an
additional amendment fee to the Administrative Agent in connection with this
Amendment for the account of each lender that shall have returned executed
signature pages to this Amendment no later than 5:00 p.m. on March 27, 2009, as
directed by the Administrative Agent, in an aggregate amount equal to $36,250 to
be allocated among the Lenders pro rata according to their Commitment
Percentage.

      


      (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.



      
        
           


        

        
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      ARTICLE
III

      MISCELLANEOUS

      


      3.1           Amended
Terms.

      


      (a)           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 or the transaction contemplated herein.

      


      (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 and Parent.  The Guarantors and Parent
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’ and Parent’s obligations
under the Credit Documents.

      


      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.



      
        
           


        

        
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            3.9           Fees.  The Borrower
agrees to pay all fees and expenses of the Administrative Agent and the Lenders
in connection with the preparation, execution and delivery of this Amendment,
including, without limitation, the fees and expenses of Reed Smith
LLP.

      


      3.10           Release.  The Credit
Parties hereby release and forever discharge Administrative Agent, the Lenders
and their agents, employees, attorneys, professionals, and representatives from
any and all claims, counterclaims, liabilities, and causes of action existing on
the date of execution of this Amendment and effective as of the Ninth Amendment
Effective Date (collectively, the “Claims”) of every
nature and description, whether known or unknown, suspected or unsuspected,
foreseen or unforeseen, actual or potential, and whether arising at law or in
equity, under the common law, state law, federal law, or any other law, in
connection with the Credit Agreement or any other Credit Document, or arising
out of or relating to Administrative Agent’s or any Lender’s administration of
or conduct in connection with the Credit Agreement or another Credit Document,
or otherwise, it being the Credit Parties’ intention to effect a general release
of all such Claims.



      
        
           


        

        
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      IN
WITNESS WHEREOF the Borrower, the Guarantors, the Parent, 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/ Michael
Klinger                           

      Name:  Michael
Klinger                                      

      Title: EVP and Chief Financial
Officer    

      


      


      
        	
                GUARANTORS:

              	
                ENTERTAINMENT DISTRIBUTION
      COMPANY (USA), LLC, a Delaware limited liability
      company

              


      

      


      


      By:  /s/ Clarke H.
Bailey                            

      Name: Clarke H.
Bailey                                           

      Title:  Chairman and Interim
CEO              

      


      


      
        	
                PARENT:

              	
                GLENAYRE ELECTRONICS,
      INC., a Colorado corporation

              


      

      


      


      By: /s/ Matthew K.
Behrent                     
Name: Matthew K.
Behrent                                     

      Title: EVP, Corporate
Development         




      
        
           


        

        
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      ADMINISTRATIVE
AGENT

      AND
LENDERS:                                                      WACHOVIA
BANK,

      NATIONAL
ASSOCIATION,

      as Administrative Agent and as a
Lender

      


      


      By: /s/ Elaine
Eaton                                              

      Name: Elaine
Eaton                                                          

      Title:  Senior Vice
President                                  

      


      


      


      ING CAPITAL LLC, as a
Lender

      


      By: /s/ Andrew C.
Sepe                                  

      Name: Andrew C.
Sepe                                            

      Title: Vice
President                                         

       

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