EXHIBIT 10.7.1
FIRST AMENDMENT TO THE CREDIT AGREEMENT
FIRST AMENDMENT, dated as of December 7, 1999 (this "First
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 Delaware corporation
(the "Company"), the several lenders from time to time parties thereto (the
"Banks"), THE CHASE MANHATTAN BANK, 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 are defined in the Credit Agreement are used herein as therein
defined.
2. Amendments to Credit Agreement. (a) Subsection 1.1 of the
Credit Agreement is amended by adding the following definitions in proper
alphabetical order:
"Holdings Senior Subordinated Note Indenture": the Indenture to
be entered into by Holdings and, if applicable, certain of its
Subsidiaries in connection with the issuance of the Holdings Senior
Subordinated Notes, together with all instruments and other agreements
entered into by Holdings or such Subsidiaries in connection therewith,
as the same may be amended, supplemented or otherwise modified from
time to time.
"Holdings Senior Subordinated Note Issuance Date": the first date
on which the Holdings Senior Subordinated Notes are issued.
"Holdings Senior Subordinated Notes": the senior subordinated or
subordinated notes (including any convertible subordinated notes and
exchange notes) of Holdings to be issued pursuant to the Holdings
Senior Subordinated Note Indenture.
(b) Section 4 of the Credit Agreement is amended by adding the
following new subsections 4.18 and 4.19 at the end thereof:
4.18 Seniority. On and after the Holdings Senior Subordinated
Note Issuance Date (a) the obligations of Holdings under each Credit
Document to which it is a party will constitute "Senior Indebtedness"
(however denominated) of Holdings under and as defined in the Holdings
Senior Subordinated Note Indenture and (b) the obligations of the
Company and each Subsidiary Guarantor under each Credit Document to
which it is a party constitute "Senior Indebtedness" (however
denominated) of the Company or such Subsidiary Guarantor, as the case
may be, under and as defined in the Holdings Senior Subordinated Note
Indenture, if applicable.
4.19. Year 2000 Matters. Except as could not reasonably be
expected to result in a Material Adverse Effect, any reprogramming
required to permit the proper functioning, in and following the year
2000, of the Company's computer systems and equipment containing
embedded microchips, and the testing of all such systems and
equipment, as so reprogrammed, has been completed. The testing of all
such systems and equipment, as so reprogrammed, will be accomplished
in a manner and by a date that could not reasonably be expected to
result in a Material Adverse Effect. The cost to the Company of any
such reprogramming and testing and of the reasonably foreseeable
consequences of year 2000 to the Company (including, without
limitation, reprogramming errors and the failure of others' systems or
equipment) could not reasonably be expected to result in a Default or
a Material Adverse Effect. Except for such of the reprogramming
referred to in the preceding sentence as may be necessary, the
computer and management information systems of the Company and its
Subsidiaries "will be and, with ordinary course upgrading and
maintenance, will continue to be, sufficient to permit the Company to
conduct its business without Material Adverse Effect. The foregoing
representation shall be qualified (a) by the Company's disclosure with
respect to year 2000 matters contained in the Company's Form 10-Q for
the quarterly period ended September 30, 1999 and (b) as to the status
of year 2000 matters with respect to third parties that, to the
knowledge of the
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Company after reasonable inquiry, such matters could not be reasonably
expected to result in a Material Adverse Effect.
(c) Subsection 7.3 of the Credit Agreement is amended by (i)
deleting the word "and" from the end of clause (f), (ii) deleting the
period at the end of clause (g) and substituting therefor the phrase ";and"
and (iii) adding thereto the following new clause (h):
(h) Guarantee Obligations of the Company and the Subsidiary
Guarantors in respect of the Holdings Senior Subordinated Notes,
if applicable, provided that such Guarantee Obligations are
subordinated to the Obligations or the Subsidiary Guarantees, as
the case may be, to the same extent as the obligations of
Holdings in respect of the Holdings Senior Subordinated Notes are
subordinated to the obligations of Holdings under the Credit
Documents to which it is a party.
(d) Subsection 7.10 of the Credit Agreement is amended by (i)
deleting the word "and" from the end of clause (b), (ii) deleting the
period at the end of clause (c) and substituting therefor the phrase ";and"
and (iii) adding thereto the following new clause (d):
(d) the Company may pay dividends to Holdings in amounts
sufficient to permit Holdings to make scheduled payments of
interest on the Holdings Senior Subordinated Notes when due as
long as at the time thereof and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing
under paragraph (a) of Section 8.
(e) Section 8 of the Credit Agreement is amended by adding the
following at the end of paragraph (k):
or (iii) a change of control, however denominated, shall occur under
the Holdings Senior Subordinated Note Indenture; or
(f) Paragraph (j) of Section 8 of the Credit Agreement is hereby
amended by (i) deleting the word "or" from the end of clause (ii) thereof
and substituting therefor a comma and (ii) deleting the phrase ";or" at the
end of clause (iii) and substituting therefor the following:
or (iv) the incurrence of Indebtedness by Holdings consisting of
the Holdings Senior Subordinated Notes as long as (i) the
aggregate principal amount of the Holdings Senior Subordinated
Notes does not exceed $200,000,000, (ii) the Holdings Senior
Subordinated Notes are issued at par or at a discount or premium
not giving rise to original issue discount under
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the Code, (iii) the Holdings Senior Subordinated Notes contain
covenants, events of default and remedies as are then customary
for similar subordinated unsecured debt securities issued in a
public offering or a Rule 144A transaction and in any event no
more restrictive than those contained herein, (iv) the Holdings
Senior Subordinated Notes have no scheduled principal payments
prior to the sixth anniversary of the date of issuance thereof
and are subject to no mandatory prepayments or redemptions or
offers to purchase except for those based on a change of control
or asset sales on terms as are then customary for senior
unsecured debt securities issued in a public offering or a Rule
144A transaction and (v) the Holdings Senior Subordinated Notes
contain subordination provisions satisfactory to the
Administrative Agent (the Holdings Senior Subordinated Notes
shall be deemed to comply with this clause (iv) unless the
Required Banks or the Administrative Agent notify the Company
within five Business Days after their receipt of the preliminary
offering memorandum (or any draft thereof containing
substantially the same terms as are set forth in such preliminary
offering memorandum) for the Holdings Senior Subordinated Notes
that the senior subordinated notes described therein do not
comply with this clause (iv), the Company hereby agreeing to
distribute such preliminary offering memorandum to the Banks
promptly following the printing thereof). To the extent that the
aggregate principal amount of the Holdings Senior Subordinated
Notes exceeds $150,000,000, such excess shall be deemed to
utilize availability under clause (f) of Section 7.15, and
Holdings and the Company hereby agree that they will not permit
the aggregate principal amount of the Senior Subordinated Notes
to exceed the sum of $150,000,000 plus the available unutilized
amount under clause (f) of Section 7.15. Neither Holdings nor any
of its Subsidiaries will (a) make or offer to make any optional
or voluntary payment, prepayment, repurchase or redemption of or
otherwise optionally or voluntarily defease or segregate funds
with respect to the Holdings Senior Subordinated Notes, provided,
however, Holdings may optionally redeem (and offer to optionally
redeem) the Holdings Senior Subordinated Notes when permitted
under, and in accordance with, the Holdings Senior Subordinated
Note Indenture as long as (I) no such redemption occurs prior to
the third anniversary of the Holdings Senior Subordinated Note
Issuance Date, (II) no such redemption may be made if a Default
or Event of Default exists at the time thereof or would exist
after giving effect thereto and (III) the average closing price
of the common stock of Holdings on the New York Stock Exchange
during the period of 10 consecutive trading days immediately
preceding the date on which Holdings issues a notice of
redemption of the Holdings Senior Subordinated Notes in
accordance with the Holdings Senior Subordinated
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Note Indenture exceeds the conversion price then in effect for
such common stock as provided in the Holdings Senior Subordinated
Note Indenture by at least 10%, (b) amend, modify, waive or
otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the
Holdings Senior Subordinated Notes (other than any such
amendment, modification, waiver or other change that (i) would
extend the maturity or reduce the amount of any payment of
principal thereof or reduce the rate or extend any date for
payment of interest thereon and (ii) does not involve the payment
of a consent fee), or (c) designate any Indebtedness (other than
obligations of the Loan Parties pursuant to the Credit Documents)
as "Designated Senior Indebtedness" for the purposes of the
Holdings Senior Subordinated Note Indenture; or
(g) Section 8 of the Credit Agreement is amended by adding the
following new paragraph (1) immediately after paragraph (k):
(1) on and after the Holdings Senior Subordinated Note
Issuance Date, the Holdings Senior Subordinated Notes or the
guarantees thereof shall cease, for any reason, to be validly
subordinated to the Obligations or the obligations of Holdings
and the Subsidiary Guarantors, if applicable, under the Credit
Documents, as the case may be, as provided in the Holdings Senior
Subordinated Note Indenture, or any Loan Party, any Affiliate of
any Loan Party, the trustee in respect of the Holdings Senior
Subordinated Notes or the holders of at least 25% in aggregate
principal amount of the Holdings Senior Subordinated Notes shall
so assert;
3. Representations and Warranties. The Company hereby confirms,
reaffirms and restates the representations and warranties set forth in
Section 4 of the Credit Agreement, as amended by this First Amendment. The
Company represents and warrants that, after giving effect to this First
Amendment, no Default or Event of Default has occurred and is continuing.
4. Effectiveness. Upon receipt by the Administrative Agent of
counterparts of this Second Amendment duly executed by the Company,
Holdings and the Required Banks, this Second Amendment shall become
effective as of the date of receipt by the Administrative Agent of such
counterparts (the "Effective Date").
5. Continuing Effect of the Credit Agreement. This First
Amendment shall not 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
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hereby, the provisions of the Credit Agreement are and shall remain in full
force and effect.
6. Counterparts. This First Amendment may be executed by the
parties hereto 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.
7. GOVERNING LAW. THIS FIRST 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 First
Amendment to be duly executed and delivered in New York, New York by their
respective proper and duly authorized officers as of the day and year first
above written.
COMMSCOPE, INC. OF NORTH CAROLINA
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Title: Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent, as a Co-Agent and
as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Co-Agent
and as a Bank
By: /s/ Xxxx Xxxxxx
---------------------------------------
Title: Vice President
BANKBOSTON, N.A., as a Co-Agent and as a Bank
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Title: Director
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Co-Agent and as a Bank
By: /s/ R. Glass
---------------------------------------
Title: Vice President
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CIBC INC., as a Co-Agent and as a Bank
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Title: Executive Director
CREDIT LYONNAIS ATLANTA AGENCY, as a Co-
Agent and as a Bank
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Title: Vice President
FIRST UNION NATIONAL BANK, as a Co-Agent
and as a Bank
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
THE FUJI BANK, LIMITED, ATLANTA AGENCY,
as a Co-Agent and as a Bank
By: /s/ Xxxx Xxxxxx
---------------------------------------
Title: Vice President & Manager
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WACHOVIA BANK, N.A., as a Co-Agent and as a
Bank
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------------
Title: Senior Vice President
BANQUE NATIONALE DE PARIS
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Title: Vice President
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
PARIBAS
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Title: Vice President
By: /s/ Xxxxx X. Sergeant
---------------------------------------
Title: Assistant Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Title: First Vice President,
Managing Director
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President, Senior
Relationship Manager
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COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President & Manager
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------------
Title: Vice President
DESIGNATED LENDER:
FOUR WINDS FUNDING CORPORATION
By Commerzbank AG, New York
Branch, as Administrator and
attorney-in-fact
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Title: Senior Vice President
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Title: Vice President
DESIGNATING LENDER:
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President & Manager
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------------
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Title: Vice President
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THE MITSUI TRUST AND BANKING COMPANY, LIMITED
By: /s/ Satoshi Kikuchihara
---------------------------------------
Title: Senior Vice President
THE SANWA BANK LIMITED, CHICAGO BRANCH
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Title: Executive Vice President
SCOTIABANC INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Title: Managing Director
THE SUMITOMO BANK, LTD., CHICAGO BRANCH
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President
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STB DELAWARE FUNDING TRUST I
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Title: Assistant Vice President
THE TOKAI BANK, LTD., NEW YORK BRANCH
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------------
Title: Assistant General Manager
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxx
---------------------------------------
Title: Duly Authorized Signatory
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The undersigned agrees to the foregoing
First Amendment and to its obligations
thereunder and confirms that its
obligations under the Holdings Guarantee
remain in full force and effect:
COMMSCOPE, INC.
By: /s/ Xxxxx X. Xxxxxx
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Title:
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