EXHIBIT 10.7.3
THIRD AMENDMENT TO THE CREDIT AGREEMENT
THIRD AMENDMENT, dated as of June 26, 2002 (this "Third Amendment"),
to the Credit Agreement, dated as of July 23, 1997 (as amended, supplemented, or
otherwise modified from time to time, the "Credit Agreement"), among COMMSCOPE,
INC. OF NORTH CAROLINA, a North Carolina corporation (the "Company"), the
several lenders from time to time parties thereto (the "Banks"), JPMORGAN CHASE
BANK, formerly known as The Chase Manhattan Bank and a New York banking
corporation, as administrative agent for the Banks (in such capacity, the
"Administrative Agent"), and the financial institutions named therein as
co-agents for the Banks (in such capacity, collectively, the "Co-Agents"; each,
individually, a "Co-Agent").
W I T N E S S E T H:
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WHEREAS, the Company, the Banks, the Administrative Agent and the
Co-Agents are parties to the Credit Agreement;
WHEREAS, the Company has requested that the Banks amend the Credit
Agreement as set forth herein;
WHEREAS, the Banks, the Administrative Agent and the Co-Agents are
willing to agree to such amendment to the Credit Agreement, subject to the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the Company, the Banks, the Administrative Agent and
the Co-Agents hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms which
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are defined in the Credit Agreement are used herein as therein defined.
2. Amendment to Section 1.1 (Definitions). (a) The definition of
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"Consolidated EBITDA" in Section 1.1 of the Credit Agreement is hereby amended
by (i) deleting the parenthetical after the words "Consolidated Net Income" and
substituting in lieu thereof the following: "((i) including earnings and losses
from discontinued operations, (ii) excluding extraordinary non-cash gains and
losses and (iii) excluding non-cash gains and losses relating to the Joint
Venture)" and (ii) amending the phrase "and (d)" appearing therein to read
",(d)" and inserting the following new clause at end thereof "and (e) all of the
Company's charges associated with the restructuring of the Joint Venture in an
aggregate amount not to exceed $7.963 million for the year ended December 31,
2001."
(b) Section 1.1 of the Credit Agreement is hereby amended by adding
the following definitions in proper alphabetical order:
"Joint Venture": OFS Brightwave, LLC, any successor thereto
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by merger, reorganization or otherwise, formed by Holdings and The
Furukawa Electric Co., Ltd. pursuant to the Amended and Restated
Memorandum of Understanding (the "MOU"), dated as of November 15,
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2001, to acquire and operate the Cable Business as defined in the
MOU.
"Third Amendment Effective Date": the Effective Date as
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defined in the Third Amendment dated as of June 26, 2002 to this
Agreement.
3. Amendment to Section 7.2 (Limitation on Liens). Section 7.2 of the Credit
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Agreement is amended by adding at the end thereof the following phrase:
provided, however, that the Company and its Subsidiaries may not create,
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incur, assume or suffer to exist any Lien to secure obligations if
proceeds thereof are used to make investments in the Joint Venture.
4. Amendment to Section 7.3 (Limitation on Guarantee Obligations). Section
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7.3 of the Credit Agreement is amended by adding at the end thereof the
following phrase:
provided, however, that the Company and its Subsidiaries may not enter
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into any Guarantee Obligation in respect of obligations of the Joint
Venture.
5. Amendment to Section 7.6 (Limitation on Investments, Loans and Advances).
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Section 7.6 of the Credit Agreement is amended by adding at the end
thereof the following phrase:
Notwithstanding the foregoing, the Company and its Subsidiaries may not
make any investments in the Joint Venture other than (i) the already
existing $173,338,000 equity investment as of the Third Amendment
Effective Date, (ii) the obligation to make loans in the aggregate
principal amount of $30,000,000 under the revolving credit facility made
available by the Company to the Joint Venture and (iii) additional
investments made after the Third Amendment Effective Date in an aggregate
amount not to exceed $50,000,000, together with all amounts pursuant to
Section 7.10(c)(ii).
6. Amendment to Section 7.10 (Limitation on Dividends and Stock Repurchases).
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Section 7.10 of the Credit Agreement is amended by deleting paragraphs (c) and
(d) substituting therefor the following:
(c) the Company (i) may pay dividends to Holdings after the Third
Amendment Effective Date in amounts sufficient to permit Holdings to make
scheduled payments of interest on the Holdings Senior Subordinated Notes
when due and (ii) may make any Restricted Payment after the Third
Amendment Effective Date in an aggregate amount not to exceed $50,000,000
together with all amounts pursuant to Section 7.6(iii) so long as (x)
after giving effect to such Restricted Payments, the Company shall be in
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pro forma compliance with subsection 7.7 and (y) at the time thereof and
after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing or shall result therefrom.
7. Representations and Warranties. The Company hereby confirms, reaffirms and
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restates the representations and warranties set forth in Section 4 of the Credit
Agreement. The Company represents and warrants that, after giving effect to this
Third Amendment, no Default or Event of Default has occurred and is continuing.
8. Reduction of Revolving Credit Commitments. The aggregate Revolving Credit
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Commitments shall automatically and irrevocably be reduced from $350,000,000 to
$250,000,000 on the Effective Date.
9. Effectiveness. This Third Amendment shall become effective on the date
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(the "Effective Date") on which the Administrative Agents receives counterparts
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of this Third Amendment duly executed by the Company, Holdings and the Required
Banks.
10. Continuing Effect of the Credit Agreement. This Third Amendment shall not
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constitute an amendment of any other provision of the Credit Agreement not
expressly referred to herein and shall not be construed as a waiver or consent
to any further or future action on the part of the Company that would require a
waiver or consent of the Banks, the Administrative Agent or the Co-Agents.
Except as expressly amended hereby, the provisions of the Credit Agreement are
and shall remain in full force and effect.
11. Counterparts. This Third Amendment may be executed by the parties hereto
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in any number of separate counterparts (including telecopied counterparts), each
of which shall be deemed to be an original, and all of which taken together
shall be deemed to constitute one and the same instrument.
12. GOVERNING LAW. THIS THIRD AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
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PARTIES UNDER THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
COMMSCOPE, INC. OF NORTH CAROLINA
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Executive Vice President and CFO
JPMORGAN CHASE BANK (f/k/a The Chase Manhattan
Bank), as Administrative Agent, as a Co-Agent
and as a Bank
By: /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
BANK OF AMERICA, N.A.,
as a Co-Agent and as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Vice President
SCOTIABANC INC.
By: /s/ W. E. Zarrett
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Title: Managing Director
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Co-Agent and as a Bank
By: /s/ X. Xxxxxxx
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Title: Vice President
BNP PARIBAS
By: /s/ Xxxxx X. XxXxxx
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Title: Director
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By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Director
CIBC INC.,
as a Co-Agent and as a Bank
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Title: Managing Director
CREDIT LYONNAIS NEW YORK BRANCH
as a Co-Agent and as a Bank
By: /s/ Xxxxx X. Xxxxxxxxx
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Title: Vice President
FLEET NATIONAL BANK
By: /s/ C. A. Gaysunas
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Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION\
By: /s/ Xxxxxxx Xxxx
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Title: Duly Authorized Signatory
WACHOVIA BANK, NATIONAL ASSOCIATION
as a Co-Agent and as a Bank
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Managing Director
MIZUHO CORPORATE BANK, LTD.
as a Co-Agent and as a Bank
By: /s/ Xxxxxxx Xxxxxxx
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Title: Senior Vice President
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SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
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Title: Joint General Manager
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Acknowledgement and Consent
The undersigned hereby (a) consents to the transactions contemplated
by the Third Amendment to and under the Credit Agreement and (b) acknowledges
and agrees that the guarantees and grants of security interests contained in the
Holdings Guarantee and in the other Security Documents are, and shall remain, in
full force and effect after giving effect to the Third Amendment and all prior
modifications to the Credit Agreement and Holdings Guarantee.
COMMSCOPE, INC.
By: /s/ Xxxxx X. Xxxxx, XX
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Title: Senior Vice President
Acknowledgement and Consent
The undersigned hereby (a) consents to the transactions contemplated
by the Third Amendment to and under the Credit Agreement and (b) acknowledges
and agrees that the guarantees and grants of security interests contained in the
Subsidiary Guarantee and in the other Security Documents are, and shall remain,
in full force and effect after giving effect to the Third Amendment and all
prior modifications to the Credit Agreement and Subsidiary Guarantee.
COMMSCOPE OPTICAL TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxx, XX
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Title: Vice President
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