ex10-1.htm


     

    Exhibit 10.1


    FIFTH
AMENDMENT TO CREDIT AGREEMENT

    


    THIS FIFTH AMENDMENT TO CREDIT
AGREEMENT (this “Amendment”), dated as
of March 4, 2008, 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

    AMENDMENT
TO CREDIT AGREEMENT

    


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

    


    
    

    
      
        (a)    The
definition of “Consolidated EBITDA” is hereby deleted in its entirety and
replaced with the following:

      

    

     

    
      “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
quarters ended December 31, 2007, March 31, 2008, June 30, 2008 and September
30, 2008 Consolidated EBITDA shall be calculated by adding to the number
determined pursuant to the foregoing sentence non-cash charges not exceeding
$9,900,000 in the aggregate relating to the impairment charge taken in 2007 in
connection with the Acquisition, to the extent such non-cash charges were
deducted in the determination of Consolidated Net Income for the applicable
period.

     

     

    
      ARTICLE
II

    

    CONDITIONS
TO EFFECTIVENESS

     

     

    2.1           Closing
Conditions.

     

    This Amendment shall become effective
as of the date hereof (the “Fifth Amendment Effective
Date”) upon satisfaction of the following conditions (in form and
substance reasonably acceptable to the Administrative Agent); provided, however, that the
change to the definition of Consolidated EBITDA shall be deemed to be
retroactively effective as of December 30, 2007 on the Fifth Amendment Effective
Date:

    


    (a)           Executed
Amendment.  The Administrative Agent shall have received a copy
of this Amendment duly executed by each of the Credit Parties, the Required
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 4, 2008, as
directed by the Administrative Agent, in an aggregate amount equal to $40,500 to
be allocated among the Lenders pro rata according to their Term Loan 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.  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.

    


    (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.  The Guarantors 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’ 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

     

    
      
        
        

      

      
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    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.

    


    3.9           Fees.  The Borrower
agrees to pay all fees and expenses of the Administrative Agent in connection
with the preparation, execution and delivery of this Amendment, including,
without limitation, the fees and expenses of Moore & Van Allen
PLLC.

    


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    IN WITNESS WHEREOF the Borrower, the
Guarantors, 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/
      Jordan M. Copland	 
      
	 
      	
              Name: 
      

            	
              Jordan M. Copland

            	 
      
	 
      	
              Title: 
      

            	Chief Executive
      Officer	 
      


    

     

    


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

              

            	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	/s/
      Jordan M. Copland  	 
      
	 
      	
              Name: 
      

            	
              
                Jordan M. Copland

              

            	 
      
	 
      	
              Title: 
      

            	
              Chief Executive Officer

            	 
      


    

    


    


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    
      	
              
                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
      Latton  	 
      
	 
      	
              Name: 
      

            	
              
                Andrew Latton

              

            	 
      
	 
      	
              Title: 
      

            	
              
                Vice
      President