1
EXHIBIT 10.10
FIFTH AMENDMENT TO CREDIT AGREEMENT
This Amendment ("Amendment") is made as of the 11th day of February,
2000, by and between Electronic Tele-Communications, Inc. (the "Borrower") and
Bank One, Wisconsin (the "Bank").
WHEREAS, the Borrower and the Bank entered into a Credit Agreement,
dated May 17,1989 as amended (the "Credit Agreement"); and
WHEREAS, the parties hereto desire to amend the Credit Agreement as set
forth below:
NOW, THEREFORE, the parties hereto agree as follows:
1. Capitalized terms not defined herein shall have the meaning ascribed
in the Credit Agreement.
2. Section 6.8 The Section bearing the heading Consolidated Tangible
Net Worth of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
Permit Consolidated Tangible Net Worth at any time to be less than
$4,755,000.00 at January 1, 2000 and at all times thereafter; and if
ETC pays dividends during the period January 1, 2000 until March 31,
2000, then these dividends shall not be subtracted from Consolidated
Tangible Net Worth.
3. The Borrower represents and warrants that (a) the representations
and warranties contained in the Credit Agreement are true and correct in all
material respects as of the date of this Amendment, (b) no condition, act or
event which could constitute an Event of Default under the Credit Agreement
exists, and (c) no condition, event, act or omission has occurred, which, with
the giving of notice or passage of time, would constitute an Event of Default
under the Credit Agreement.
4. The Borrower acknowledges that as of the date of this Amendment,
Events of Default have occurred and are continuing under the Credit Agreement
due to Borrower's failure to maintain compliance with the Consolidated Tangible
Net Worth Covenant. Bank One hereby waives the remedies available to Bank One on
account of the violations of such covenants until December 31,1999 (the "Waiver
Termination Date"), subject to the conditions that (a) no material adverse
change occurs and is continuing in Borrower's financial condition or results
from operations from those presented by the Borrower's January 31, 2000 interim
financial statements which has been delivered by Borrower to Bank One, and (b)
no other Event of Default occurs and is continuing. This is a limited waiver
which applies only until the Waiver Termination Date, on which date and at all
times thereafter Borrower shall be required to be and at all times remain in
strict compliance with each of these covenants. Nothing in this Amendment shall
be construed as a waiver of any other term or condition of the Credit Agreement
or any of the other Loan Documents, nor shall be construed as a commitment on
the part of the Bank One to waive any subsequent violation of the same or any
other term or condition set forth in the Credit Agreement or any of the other
Loan Documents. The waiver granted in this paragraph is
-19-
2
strictly limited to the covenants and time periods referenced above. In all
other respects the terms and conditions of the Credit Agreement, as expressly
modified by this Amendment, remain in full force and effect in accordance with
their stated terms.
5. The Borrower agrees to pay all fees and out-of-pocket disbursements
incurred by the Bank in connection with this Amendment, including legal fees
incurred by the Bank in the preparation, consummation, administration and
enforcement of this Amendment.
6. This Amendment shall become effective only after it is fully
executed by the Borrower and the Bank. Except as amended by this Amendment, the
Credit Agreement shall remain in full force and effect in accordance with its
terms.
7. This Amendment is a modification only and not a novation. Except for
the above-quoted modification(s), the Credit Agreement, any agreement or
security document, and all the terms and conditions thereof, shall be and remain
in full force and effect with the changes herein deemed to be incorporated
therein. This Amendment is to be considered attached to the Credit Agreement and
made a part thereof. This Amendment shall not release or affect the liability of
any guarantor, surety or endorser of the Credit Agreement or release any owner
of collateral securing the Credit Agreement. The validity, priority and
enforceability of the Credit Agreement shall not be impaired hereby. To the
extent that any provision of this Amendment conflicts with any term or condition
set forth in the Credit Agreement, or any agreement or security document
executed in conjunction therewith, the provisions of this Amendment shall
supersede and control. Borrower acknowledges that as of the date of this
Amendment it has no offsets with respect to all amounts owed by Borrower to Bank
and Borrower waives and releases all claims which it may have against Bank
arising under the Credit Agreement on or prior to the date of this Amendment.
8. The Borrower acknowledges and agrees that this Amendment is limited
to the terms outlined above, and shall not be construed as an amendment of any
other terms or provisions of the Credit Agreement; The Borrower hereby
specifically ratifies and affirms the terms and provisions of the Credit
Agreement. Borrower releases Bank from any and all claims which may have arisen,
known or unknown, in connection with the Credit Agreement on or prior to the
date hereof. This Amendment shall not establish a course of dealing or be
construed as evidence of any willingness on the Bank's part to grant other or
future amendments, should any be requested.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of
the day and year first above written.
ELECTRONIC TELE-COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx, President
BANK ONE, WISCONSIN
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx, Vice President
