EXHIBIT 10.1(c)
EXECUTION
THIRD AMENDMENT
TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is dated
as of April 24, 2002 and entered into by and among ARRIS INTERNATIONAL, INC., a
Delaware corporation (the "COMPANY"), ARRIS INTERACTIVE L.L.C., a Delaware
limited liability company ("ARRIS"), EACH OF COMPANY'S SUBSIDIARIES LISTED ON
THE SIGNATURE PAGES HEREOF (Company, Arris and each such subsidiary are
individually referred to herein as a "BORROWER" and, collectively, on a joint
and several basis, as the "BORROWERS"), THE FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (each individually referred to herein as a "LENDER" and
collectively as "LENDERS"), CREDIT SUISSE FIRST BOSTON, as syndication agent for
Lenders (in such capacity, "SYNDICATION AGENT") and THE CIT GROUP/BUSINESS
CREDIT, INC., as administrative agent and collateral agent for Lenders (in such
capacity, "ADMINISTRATIVE AGENT"), and is made with reference to that certain
Credit Agreement dated as of August 3, 2001, as amended by that certain First
Amendment to Credit Agreement dated as of January 8, 2002 (the "FIRST
AMENDMENT"), as supplemented by that certain Acknowledgement dated as of March
21, 2002 and as further amended by that certain Second Amendment to Credit
Agreement dated as of April 17, 2002 (as so amended, and supplemented as of the
date hereof, the "CREDIT AGREEMENT"), by and among the Borrowers, Lenders,
Syndication Agent and Administrative Agent. Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Credit Agreement.
RECITALS
WHEREAS, Borrowers and Lenders desire to amend the Credit Agreement
to (i) allow Keptel, Inc. and Company to sell substantially all of the assets
related to the Company's demarcation and repeaters product line (the "KEPTEL
SALE") to Buyer for cash proceeds of approximately $30,000,000; (ii) allow for
the release from the Lien created by the Collateral Documents (a) certain
equipment located at the Company's Rock Falls, Illinois facility (the "ROCK
FALLS EQUIPMENT") and (b) Patent No. 5,092,663 that in connection with the
Keptel Sale will be transferred to by Company in the future; (iii) permit the
Company to grant Buyer a security interest in the Rock Falls Equipment; (iv)
provide that the Revolving Loan Commitments shall be reduced by an amount equal
to the Net Asset Sale Proceeds received by the Credit Parties in connection with
the Keptel Sale on or about the date of the closing of the Keptel Sale on the
earlier of (x) May 31, 2002 or (y) the date that such reduction is requested by
Requisite Lenders; and (v) make certain other amendments as set forth below.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
EXECUTION
AMENDMENTS TO THE CREDIT AGREEMENT
AMENDMENTS TO SECTION 1: PROVISIONS RELATING TO DEFINED TERMS
Subsection 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definitions, which shall be inserted in proper
alphabetical order:
"KEPTEL" means Keptel, Inc., a Delaware corporation.
"KEPTEL ASSET PURCHASE AGREEMENT" means the Asset Purchase Agreement
dated as of April 24, 2002, by and among Keptel, Buyer., a Delaware
corporation and Company, as amended, restated, supplemented or otherwise
modified from time to time to the extent permitted under subsection 7.12.
"KEPTEL ASSIGNMENT AND ASSUMPTION AGREEMENT" means the Assignment
and Assumption Agreement dated as of April 24, 2002, by and among Keptel
and Buyer, as amended, restated, supplemented or otherwise modified from
time to time to the extent permitted under subsection 7.12.
"KEPTEL XXXX OF SALE" means the Xxxx of Sale dated as of April 24,
2002, by and among Keptel and Buyer, as amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under
subsection 7.12.
"KEPTEL CLOSING DATE" means the Closing Date (as such term is
defined in the Keptel Asset Purchase Agreement).
"KEPTEL DISTRIBUTION AGREEMENT" means the Distribution Agreement
dated as of April 24, 2002, by and among Company and Buyer, as amended,
restated, supplemented or otherwise modified from time to time to the
extent permitted under subsection 7.12.
"KEPTEL SALE" means the sale by Keptel of substantially all of its
assets and the transfer of certain of its liabilities pursuant to the
Keptel Sale Documents.
"KEPTEL SALE DOCUMENTS" means the Keptel Asset Purchase Agreement,
Keptel Xxxx of Sale, Keptel Assignment and Assumption Agreement, Keptel
Transition Services Agreement and Keptel Distribution Agreement, and all
other instruments or documents delivered or entered into in connection
with any of the foregoing, in each case including all schedules, annexes
and exhibits thereto, as such Keptel Sale Documents may be amended,
restated, supplemented or otherwise modified from time to time to the
extent permitted under subsection 7.12.
"KEPTEL TRANSITION SERVICES AGREEMENT" means the Transition Services
Agreement dated as of April 24, 2002, by and among Company and Buyer, as
amended,
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restated, supplemented or otherwise modified from time to time to the
extent permitted under subsection 7.12.
AMENDMENTS TO SECTION 2: AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
Subsection 2.4A(iii)(a) of the Credit Agreement is hereby amended by
adding the following proviso at the end of such subsection:
"; provided, further, that notwithstanding anything in this clause
(a) to the contrary, the Revolving Loan Commitments shall be reduced by an
amount equal to the Net Asset Sale Proceeds received by Holdings or any of
its Subsidiaries in connection with the Keptel Sale, (i) if such Net Asset
Sale Proceeds are received on or about the Keptel Closing Date, upon the
earlier of (x) May 31, 2002 or (y) the date that such reduction is
requested by Requisite Lenders and (ii) if such Net Asset Sale Proceeds
are received after the Keptel Closing Date, upon receipt of such Net Asset
Sale Proceeds."
Amendments to Section 7: Borrowers' Negative Covenants
Subsection 7.2 of the Credit Agreement is hereby amended by (i)
deleting the "and" at the end of subsection (vi) thereof, deleting the "." at
the end of subsection (vii) thereof and substituting therefor "; and" and (ii)
adding the following subsection (viii) to the end thereof:
"(viii) Liens granted by Company in equipment located at the Rock
Falls, Illinois facility of the Company in accordance with and pursuant to
the Keptel Transitions Services Agreement."
Subsection 7.3 of the Credit Agreement is hereby amended by (i)
deleting the "and" at the end of subsection (xv) thereof, deleting the "." at
the end of subsection (xvi) thereof and substituting therefor "; and" and (ii)
adding the following subsection (xvii) to the end thereof:
"(xvii) Company and Keptel may acquire and hold the earn-out
obligation provided for under the Keptel Asset Purchase Agreement."
Subsection 7.4 of the Credit Agreement is hereby amended by (i)
deleting the "and" at the end of subsection (xv) thereof, deleting the "." at
the end of subsection (xvi) thereof and substituting therefor "; and" and (ii)
adding the following subsection (xvi) to the end thereof:
"(xvi) Company may become and remain liable for Contingent
Obligations arising under the Keptel Asset Purchase Agreement."
Subsection 7.7 of the Credit Agreement is hereby amended by deleting
the "and" at the end of clause (ix), deleting the period at the end of clause
(x) and substituting therefore "; and", and inserting the following clause (xi)
at the end of such subsection:
"(xi) So long as no Event of Default or Potential Event of Default
has occurred and is continuing, Keptel and Company may sell, license or
lease the assets comprising
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the Company's and its Subsidiaries' demarcation and repeaters product line
for cash consideration of at least $30,000,000 in accordance with the
terms of the Keptel Sale Documents."
Subsection 7.12 of the Credit Agreement is hereby amended by
deleting subsection 7.12A and substituting therefor the following:
"A. AMENDMENTS OR WAIVERS OF CERTAIN AGREEMENTS. Neither any
Borrower nor any of its Subsidiaries will agree to any amendment to, or
waive any of its rights under, any Reorganization Document, Mexican
Intercompany Security Document, Tax Abatement Transaction Document, Cadant
Acquisition Document or Keptel Sale Document after the Closing Date,
without in each case obtaining the prior written consent of Requisite
Lenders to such amendment or waiver."
RELEASE OF CERTAIN COLLATERAL
In connection with the Keptel Sale, the Lenders hereby authorize
Administrative Agent to release from the Liens the created by the Collateral
Documents (i) the assets sold by the Company and Keptel pursuant to the Keptel
Sale Documents, (ii) the equipment described in the Keptel Transition Services
Agreement located at the Company's Rock Falls, Illinois facility and (iii)
Patent No. 5,092,663.
CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "THIRD AMENDMENT
EFFECTIVE DATE"):
on the Third Amendment Effective Date, all conditions to the
consummation of the Keptel Sale (other than payment of the purchase price
therefor and the conveyance of assets resulting therefrom) shall have been
satisfied or waived with the consent of Administrative Agent and Administrative
Agent shall have received (i) a fully executed or conformed copy of each Keptel
Acquisition Document to be entered into on or prior to the Third Amendment
Effective Date, in form and substance reasonably satisfactory to the
Administrative Agent and each such Keptel Acquisition Document shall be in full
force and effect and no provision thereof shall have been modified or waived
without the consent of Administrative Agent and the parties to the Keptel
Acquisition Documents shall not have failed in any material respect to perform
any material obligation or covenant required by the Keptel Asset Purchase
Agreement, respectively, to be performed or complied with by any of them on or
before the Third Amendment Effective Date, and (ii) an Officer's Certificate of
Company (1) to the effect set forth in clause (i) and (2) stating that Company
and Keptel will proceed to consummate the Keptel Sale contemporaneously with the
effectiveness of this Amendment.
BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Borrowers represent and
warrant to each Lender that
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the following statements are true, correct and complete:
CORPORATE POWER AND AUTHORITY. Each Borrower has all requisite
corporate power and authority to enter into this Amendment, and perform its
obligations under, the Credit Agreement as amended by the First Amendment and
this Amendment (the "AMENDED AGREEMENT").
AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of each of the Borrowers.
NO CONFLICT. The execution and delivery by Borrowers of this
Amendment and the performance by Borrowers of the Amended Agreement do not and
will not (i) violate any provision of any law or any governmental rule or
regulation applicable to any Borrower or any of their respective Subsidiaries,
the Certificate or Articles of Incorporation or Bylaws or Certificate of
Formation or Operating Agreement, as applicable, of any Borrower or any of its
Subsidiaries or any order, judgment or decree of any court or other agency of
government binding on any Borrower or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of any Borrower or any of its
Subsidiaries, (iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of any Borrower or any of its Subsidiaries
(other than Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of any Borrower or any of its Subsidiaries.
GOVERNMENTAL CONSENTS. The execution and delivery by each Borrower
of this Amendment and the performance by the Borrowers of the Amended Agreement
and the transactions contemplated by this Amendment do not and will not require
any registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body.
BINDING OBLIGATION. This Amendment and the Amended Agreement have
been duly executed and delivered by each Borrower and is the legally valid and
binding obligations of the Borrowers, enforceable against the Borrowers in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
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ABSENCE OF DEFAULT. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Potential Event of Default.
ACKNOWLEDGEMENT AND CONSENT
Holdings, each Borrower and each Subsidiary Guarantor
hereby acknowledges that such Loan Party has read this Amendment and consents to
the terms hereof and further hereby confirms and agrees that, notwithstanding
the effectiveness of this Amendment, the obligations of such Loan Party under
each of the Loan Documents to which such Loan Party is a party shall not be
impaired and each of the Loan Documents to which such Loan Party is a party are,
and shall continue to be, in full force and effect and are hereby confirmed and
ratified in all respects.
Holdings and each Subsidiary Guarantor acknowledges and agrees that
(i) notwithstanding the conditions to effectiveness set forth in this Amendment,
such Loan Party is not required by the terms of the Credit Agreement or any
other Loan Document to consent to the amendments to the Credit Agreement
effected pursuant to this Amendment and (ii) nothing in the Credit Agreement,
this Amendment or any other Loan Document shall be deemed to require the consent
of such Loan Party to any future amendments to the Credit Agreement.
MISCELLANEOUS
REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
On and after the Second Amendment Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Amended Agreement.
Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
The execution, delivery and performance of this Amendment shall not,
except as expressly provided herein, constitute a waiver of any provision of, or
operate as a waiver of any right, power or remedy of Administrative Agent or any
Lender under, the Credit Agreement or any of the other Loan Documents.
FEES AND EXPENSES. Company acknowledges that all costs, fees and
expenses as described in subsection 10.2 of the Credit Agreement incurred by
Agents and their counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Borrowers.
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HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective upon the execution of a
counterpart hereof by each of the Borrowers, each of the Subsidiary Guarantors,
Holdings and Requisite Lenders and receipt by Company and Administrative Agent
of written or telephonic notification of such execution and authorization of
delivery.
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EXHIBIT 10.1(C)
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
HOLDINGS: ARRIS GROUP, INC.
By: ____________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President, Chief
Financial Officer & Secretary
COMPANY: ARRIS INTERNATIONAL, INC.
By: ____________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Executive Vice President,
Chief Financial Officer &
Secretary
ARRIS: ARRIS INTERACTIVE L.L.C.
By: ____________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Executive Vice President
SUBSIDIRIES OF COMPANY: ANTEC ASSET MANAGEMENT COMPANY
By: ____________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: President
ANTEC LICENSING COMPANY
By: ____________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: President
S-1 EXECUTION
TEXSCAN CORPORATION
By: ____________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Chairman of the Board
ELECTRONIC CONNECTOR
CORPORATION OF ILLINOIS
By: ____________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
POWER GUARD, INC.
By: ____________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
ELECTRONIC SYSTEM PRODUCTS INC.
By: ____________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
KEPTEL, INC.
By: ____________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
S-2 EXECUTION
SUBSIDIARY GUARATORS,
for purposes of Section 3 only, TEXSCAN DE MEXICO, S.A. DE C.V.
By: ____________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Chairman
KEPTEL DE MEXICO S.A. DE C.V.
By: ____________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Chairman
ANTEC INTERNATIONAL CORPORATION
By: ____________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Director
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LENDERS: THE CIT GROUP/BUSINESS CREDIT, INC.,
individually and as Administrative Agent
and Collateral Agent
By: ____________________________________
Name:
Title:
S-4 EXECUTION
CREDIT SUISSE FIRST BOSTON,
individually and as Syndication Agent
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
S-5 EXECUTION
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By: ____________________________________
Name:
Title:
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COMERICA BANK
By: ____________________________________
Name:
Title:
S-7 EXECUTION
CONGRESS FINANCIAL CORPORATION
(SOUTHERN)
By: ____________________________________
Name:
Title:
S-8 EXECUTION
FLEET CAPITAL CORPORATION
By: ____________________________________
Name:
Title:
S-9 EXECUTION
GMAC COMMERCIAL CREDIT LLC
By: ____________________________________
Name:
Title:
S-10 EXECUTION
IBM CREDIT CORPORATION
By: ____________________________________
Name:
Title:
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PNC BANK, NATIONAL ASSOCIATION
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
S-12 EXECUTION
