EXHIBIT (e)(21)
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of March 22, 2002 in respect of the Credit
Agreement (Multi-Draw Term Loan Facility) dated as of May 16, 2001 and amended
by Amendment No. 1 dated as of July 25, 2001, Amendment No. 2 dated as of
September 28, 2001, Amendment No. 3 dated as of October 15, 2001 and Amendment
No. 4 dated as of December 11, 2001 (the "Credit Agreement") between NEXT LEVEL
COMMUNICATIONS, INC., a Delaware corporation (the "Borrower") and MOTOROLA,
INC., a Delaware corporation (the "Lender").
The Borrower has requested that the Lender consent to an amendment to
Section 8.07 of the Credit Agreement, and the Lender has agreed to such an
amendment. Accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are used
herein as defined therein.
Section 2. Amendment. Section 8.07 of the Credit Agreement shall be amended
in its entirety to read as follows:
"8.07 Net Worth. The Borrower will not permit its Net Worth at any
time to be less than 45% of Net Worth as at March 31, 2001, excluding,
without duplication, (i) the effect of any marked-to-market adjustments
made under FASB 115 after such date and (ii) the effect of any write-downs
of inventory in an aggregate cumulative amount during the term of this
Agreement not to exceed $75,000,000, and including the amount of Series A
Convertible Preferred Stock of the Borrower purchased by the Lender in
February 2002."
Section 3. Representation and Warranties; No Defaults. The Borrower hereby
represents and warrants to the Lender that (i) except as publicly disclosed and
except with respect to changes in the disclosure schedules that are not
individually or in the aggregate material, the representations and warranties
made by it in or pursuant to the Loan Documents, after giving effect to the
amendment effected hereby, are true and correct on and as of the date hereof as
if made on and as of such date (or, if any such representation is expressly
stated to have been made as of a specific date, as of such specific date) and
(ii) no Default or Event of Default, after giving effect to the amendment
effected hereby, has occurred and is continuing.
Section 4. Miscellaneous. Except as expressly herein provided, the Loan
Documents shall remain unchanged and in full force and effect. The Lender waives
any prior violations of Section 8.07 of the Credit Agreement, provided that the
Borrower would have been in compliance with Section 8.07 as amended pursuant to
this Amendment No. 5. This Amendment No. 5 may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
amendatory instrument and any of the parties hereto may execute this Amendment
No. 5 by signing any such counterpart. This Amendment No. 5 shall be governed
by, and construed in accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5
to be duly executed as of the day and year first above written.
NEXT LEVEL COMMUNICATIONS, INC.
By: /s/ XXXXX X. ZAR
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Name: Xxxxx X. Zar
Title: Senior Vice President
MOTOROLA, INC.
By: /s/ signature
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Name:
Title:
