SIXTH AMENDMENT AND LIMITED CONSENT TO CREDIT AGREEMENT
Exhibit 10.2
SIXTH AMENDMENT AND LIMITED CONSENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT AND LIMITED CONSENT TO CREDIT AGREEMENT (this “Amendment”) is
made and entered into as of May 3, 2010 by and between TEKELEC, a California corporation (the
“U.S. Borrower”), TEKELEC INTERNATIONAL, SPRL, a societe privee a responsabilité limitée
organized under the laws of the Kingdom of Belgium (the “Belgian Borrower”, and together
with the U.S. Borrower, each a “Borrower” and collectively, the “Borrowers”), the
lenders who are or may become a party to this Agreement (collectively, the “Lenders”) and
XXXXX FARGO BANK, N.A. (successor by merger to Wachovia Bank, National Association), a national
banking association, as Administrative Agent for the Lenders (the “Administrative Agent”).
STATEMENT OF PURPOSE
The Lenders have extended certain credit facilities to the Borrowers pursuant to the Credit
Agreement, dated October 2, 2008 by and among the Borrowers, the Lenders and the Administrative
Agent (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”).
WHEREAS, the Borrowers have requested, among other things, that: (i) the Lenders consent to
the acquisition (the “Camiant Acquisition”) by Borrowers of Camiant, Inc., a Delaware
corporation, and its subsidiaries (collectively, “Camiant”) pursuant to the terms set
forth in that certain Term Sheet dated March 22, 2010 (the “Camiant Term Sheet”); (ii)
the Lenders consent to the acquisition (the “Blueslice Acquisition” and together with
the Camiant Acquisition, the “Acquisitions”) by Borrowers of Blueslice Networks Inc., a
Canadian corporation, and its subsidiaries (collectively, “Blueslice”) pursuant to the
terms set forth in that certain Term Sheet dated April 6, 2010 (the “Blueslice Term
Sheet”) and (iii) the Lenders amend certain provisions of the Credit Agreement as set forth
herein; and
WHEREAS, the Lenders and the Administrative Agent are, subject to the terms and conditions set
forth herein, willing to grant the consents and amendments requested by the Borrowers as
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Capitalized Terms. All capitalized terms used and not defined herein shall have
the meanings assigned thereto in the Credit Agreement.
2. Amendments. Pursuant to Section 14.2 of the Credit Agreement and effective
in accordance with Section 4 hereof, the Lenders hereby agree as follows:
(a) Section 1.01 of the Credit Agreement shall be amended by deleting subsection (e)
in the definition of “Permitted Acquisition” and substituting in lieu therof the following new
subsection (e) to read as follows:
“(e) the Borrower Agent shall have obtained the prior written consent of the
Administrative Agent and the Required Lenders prior to the consummation of such acquisition
if either of the following conditions exist: (i) the Permitted Acquisition Consideration for
any such acquisition (or series of related acquisitions), together with all other
acquisitions consummated during the preceding four fiscal quarters exceeds $100,000,000 in
the aggregate, or (ii) the Permitted Acquisition Consideration for any such acquisition (or
series of related acquisitions), as calculated in the Officer’s Compliance Certificate
required to be delivered to the Administrative Agent pursuant to subsection (b) above, both
prior to and after such acquisition shall cause the Borrowers’ Consolidated Tangible Net
Worth to be less than the sum of (A) $200,000,000 plus (B) an amount equal to fifty
percent (50%) of the cumulative Consolidated Net Income occurring after January 1, 2011.
Notwithstanding any of the foregoing, in the event that the purchase price for any
acquisition by any Credit Party is paid with the Capital Stock of the U. S. Borrower, clause
(e) shall not apply to such Permitted Acquisition.”
(b) Section 11.6 of the Credit Agreement shall be amended by deleting subsections (c)
and (d) in their entirety and substituting, in lieu thereof, the following new subsection (c) to
read as follows:
“(c) the U.S. Borrower may declare or pay cash dividends upon its Capital Stock and/or
repurchase shares of its Capital Stock, provided that (i) no Default or Event of
Default shall have occurred or be continuing (prior to and immediately after the declaration
and payment of such cash dividend and/or repurchase), (ii) the Borrowers shall be in
pro forma compliance with the covenants set forth in Article X
(prior to and immediately after the declaration and payment of such cash dividend and/or
repurchase) and (iii) the U.S. Borrower maintains, prior to and immediately after such cash
dividend and/or repurchase, a Consolidated Tangible Net Worth greater than or equal to the
sum of (A) $200,000,000 plus (B) an amount equal to fifty percent (50%) of the
cumulative Consolidated Net Income occurring after January 1, 2011.
3. Limited Consent. The parties hereto acknowledge and agree that as of the Sixth
Amendment Effective Date and so long as the Borrowers comply with the terms and conditions set
forth in the definition of Permitted Acquisitions (other than subsection (e) of such definition)
and the Credit Agreement, the Administrative Agent and Lenders shall be deemed to have consented to
the Acquisitions. For the avoidance of doubt, the Acquisitions shall be deemed permitted
separately under the Credit Agreement and shall not be included in the calculations going forward
under subsection (e) (i) of the Permitted Acquisition definition.
4. Conditions to Effectiveness. Upon satisfaction of each of the following
conditions, this Amendment shall be deemed to be effective as of the date above stated (the
“Sixth Amendment Effective Date”):
(a) The Administrative Agent shall have received an executed original of this Amendment by
each Borrower and the Lenders; and
2
(b) The receipt by the Administrative Agent of any other documents or instruments reasonably
requested by the Administrative Agent in connection with the execution of this Amendment.
5. Limited Effect of Amendment. Except as expressly modified herein, the Credit
Agreement and the Loan Documents shall continue to be, and shall remain, in full force and effect.
Except as expressly set forth herein, this Amendment shall not be deemed (a) to be a waiver of, or
consent to, or a modification or amendment of, any other term or condition of the Credit Agreement
or any other Loan Document or (b) to prejudice any other right or remedies which the Administrative
Agent or the Lenders may now have or may have in the future under or in connection with the Credit
Agreement or the other Loan Documents or any of the instruments or agreements referred to therein,
as the same may be amended, restated or otherwise modified from time to time. On and after the
effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”,
“hereunder,” “hereof” or words of like import referring to the Credit Agreement, and each reference
in the Credit Agreement, the Notes and each of the other Loan Documents to “the Credit Agreement”,
“thereunder”, “thereof” or words of lie import referring to the Credit Agreement, shall mean and be
a reference to the Credit Agreement, as amended by this Amendment. This Amendment constitutes a
“Loan Document” as defined in the Credit Agreement.
6. Representations and Warranties. After giving effect to the amendments set forth
herein, each Borrower hereby certifies that (a) each of the representations and warranties set
forth in the Credit Agreement and the other Loan Documents is true and correct in all material
respects as of the Sixth Amendment Effective Date as if fully set forth herein (except for any
representation and warranty made as of an earlier date, which representation and warranty shall
remain true and correct as of such earlier date) and (b) no Default or Event of Default has
occurred and is continuing as of the Sixth Amendment Effective Date.
7. Release. For and in consideration of the agreements of the Administrative Agent
and the other Lenders contained herein and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Borrowers hereby forever release and discharge
the Administrative Agent and the Lenders, each of their respective officers, directors, employees,
agents, affiliates, representatives, successors and assigns (collectively, the “Released
Parties”) from any and all claims, causes of actions, damages and liabilities of any nature
whatsoever, known or unknown, which the Borrowers ever had, now has or might hereafter have against
one or more of the Released Parties which relates, directly or indirectly, to the Loan Documents or
the transactions relating thereto (collectively “Claim”), to the extent that any such Claim
shall be based in whole or in part upon facts, circumstances, actions or events existing on or
prior to the date hereof.
8. Covenant Not to Xxx. The Borrowers, on behalf of themselves and their successors,
assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably,
covenant and agree with and in favor of each Released Party that they will not xxx (at law, in
equity, in any regulatory proceeding or otherwise) any Released Party on the basis of any Claim
released, remised and discharged by the Borrowers pursuant to Section 7 above. If the Borrowers or
any of their respective successors, assigns or other legal representatives, or any Loan Party, or
its respective successors, assigns, and other legal representatives violates the
3
foregoing covenant, each of the Borrowers, for itself and its respective successors, assigns
and legal representatives, agrees to pay, in addition to such other damages as any Released Party
may sustain as a result of such violation, all reasonable attorneys’ fees and costs incurred by any
Released Party as a result of such violation.
9. Miscellaneous.
(a) Governing Law. This Amendment shall be governed by, construed and enforced in
accordance with the laws of the State of New York.
(b) Entire Agreement. This Amendment is the entire agreement, and supersedes any
prior agreements and contemporaneous oral agreements, of the parties concerning its subject matter.
In the event there is a conflict or inconsistency between this Amendment and the Credit Agreement,
the terms of this Amendment shall control.
(c) Successors and Assigns. This Amendment shall be binding on and inure to the
benefit of the parties and their beneficiaries, successors and assigns.
(d) Further Assurances. The parties hereto shall execute and deliver such additional
documents and take such additional action as may be necessary or desirable to effectuate the
provisions and purposes of this Amendment.
(e) Counterparts. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and shall be binding upon all parties, their successors and assigns, and all of
which taken together constitute one and the same agreement.
(f) Obligation to Pay Fees/Costs. The Borrowers acknowledge that Section 14.3(a) of
the Credit Agreement requires that Borrowers pay all reasonable outstanding fees and out-of-pocket
charges and other expenses of the Administrative Agent for the preparation of this Amendment,
including, without limitation, all outstanding K&L Gates LLP legal fees.
(g) Facsimile Transmission. A facsimile, telecopy or other reproduction of this
Amendment may be executed by one or more parties hereto, and an executed copy of this Amendment may
be delivered by one or more parties hereto by facsimile or similar instantaneous electronic
transmission device pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original of this Amendment
as well as any facsimile, telecopy or other reproduction hereof.
[Signature Pages To Follow]
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date and year first above written.
| TEKELEC, as Borrower and Borrower Agent |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | SVP - Corporate Affairs, General Counsel, & Secretary |
|||
| TEKELEC INTERNATIONAL, SPRL, as Borrower |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Manager | |||
[Tekelec Sixth Amendment to Credit Agreement]
| AGENTS AND LENDERS: XXXXX FARGO BANK, N.A., as Administrative Agent, Swingline Lender, Issuing Lender and Lender |
||||
| By: | /s/ Xxxxxxx Paysley | |||
| Name: | Xxxxxxx Paysley | |||
| Title: | Sr Vice President | |||
[Tekelec Sixth Amendment to Credit Agreement]
