EXHIBIT 10.1(a)
EXECUTION
FIRST AMENDMENT
TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is
dated as of January 8, 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 31, 2001 (as
amended, restated, supplemented or otherwise modified 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, Holdings and Cadant, Inc., a Delaware corporation
("CADANT") have entered into the Cadant Asset Purchase Agreement (as defined
below), pursuant to which Holdings has agreed to purchase substantially all of
the assets and assume certain liabilities of Cadant and Holdings has assigned
all of its rights and obligations under the Asset Purchase Agreement to Company
pursuant to the Cadant Assignment and Assumption Agreement (as defined below);
and
WHEREAS, Borrowers and Lenders desire to amend the Credit
Agreement to (i) permit Company to acquire substantially all of the assets and
assume certain liabilities of Cadant, (ii) provide the terms pursuant to which
Company may convert the Convertible Subordinated Notes in an aggregate principal
amount not to exceed $115,000,000 to shares of common stock of Holdings, (iii)
permit Holdings to guaranty the obligations of Company under the Comdisco Lease
(as defined below) in an aggregate amount no to exceed $3,500,000; (iv) amend
the minimum fixed coverage ratio set forth in subsection 7.6A for the period
ending March 31, 2002, and (iv) 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:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: PROVISIONS RELATING TO
DEFINED TERMS
A. Subsection 1.1 of the Credit Agreement is hereby
amended by adding thereto the following definitions, which shall be inserted in
proper alphabetical order:
"CADANT" means Cadant, Inc., a Delaware corporation.
"CADANT ACQUISITION" means the purchase by Holdings of
substantially all of Cadant's assets and certain liabilities of Cadant
on the First Amendment Effective Date, pursuant to the Cadant
Acquisition Documents.
"CADANT ACQUISITION DOCUMENTS" means the Cadant Asset Purchase
Agreement, the Cadant Voting Agreement, the Cadant Assignment and
Assumption 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 Cadant
Acquisition Documents may be amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under
subsection 7.12.
"CADANT ASSET PURCHASE AGREEMENT" means that certain Asset
Purchase Agreement, dated December 8, 2001, as supplemented by that
certain letter dated January 8, 2002, by and between Holdings and
Cadant, as further amended, restated, supplemented or otherwise
modified from time to time to the extent permitted under subsection
7.12.
"CADANT ASSIGNMENT AND ASSUMPTION AGREEMENT" means that
certain Assumption Agreement dated as of January 8, 2002, by and
between Holdings and Company, as amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under
subsection 7.12.
"CADANT VOTING AGREEMENT" means that certain Voting Agreement,
dated as of December 8, 2001 among Holdings, Cadant and the equity
holders of Cadant listed on the signature pages thereto, as amended,
restated, supplemented or otherwise modified from time to time to the
extent permitted under subsection 7.12.
"COMDISCO LEASE" means that certain Master Lease Agreement
dated September 8, 2000, by and between Comdisco, Inc. and Cadant, Inc.
that was assigned to Company pursuant to the Cadant Acquisition
Documents.
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"FIRST AMENDMENT EFFECTIVE DATE" means the date the First
Amendment to this Agreement became effective in accordance with its
terms.
"HOLDINGS COMDISCO GUARANTY" means a guaranty by Holdings of
the obligations of Company under the Comdisco Lease, in form and
substance satisfactory to Administrative Agent.
"HOLDINGS COMMON STOCK" means the common stock of Holdings,
par value $.01 per share.
B. Subsection 1.1 of the Credit Agreement is hereby
further amended by deleting the definitions of "Acquired Business" and
"Permitted Acquisition" therefrom in their entirety.
C. Subsection 1.1 of the Credit Agreement is hereby
further amended by deleting the definitions of "First Priority" and "Pro Forma"
therefrom in their entirety and substituting the following therefor:
"FIRST PRIORITY" means, with respect to any Lien purported to
be created in any Collateral pursuant to any Collateral Document, that
(i) such Lien is perfected and has priority over any other Lien on such
Collateral (other than (w) Permitted Encumbrances which are given
priority as a matter of law, (x) Liens described on Schedule 7.2, so
long as such Liens are only on the assets encumbered by such Liens on
the Closing Date and (y) Liens securing Purchase Money Indebtedness, so
long as such Liens only attach to the assets being acquired with such
Purchase Money Indebtedness and are otherwise permitted by subsection
7.2(vii)) and (ii) such Lien is the only Lien (other than Liens
permitted pursuant to subsection 7.2) to which such Collateral is
subject.
"PRO FORMA BASIS" means, as of any date of determination, in
connection with (i) the calculation of Consolidated EBITDA or
Consolidated Capital Expenditures for the Fiscal Quarter ending June
30, 2001 and for that portion of the Fiscal Quarter ending September
30, 2001 that is prior to the Closing Date, the Consolidated EBITDA or
Consolidated Capital Expenditures for such Fiscal Quarter, after giving
effect on a pro forma basis to the Reorganization and (ii) in
connection with the compliance of the Borrowers with the financial
covenants set forth in subsection 7.6 as of the last day of the four
Fiscal Quarter period most recently ended prior to such date of
determination for which the relevant financial information is available
(the "COMPLIANCE PERIOD"), after giving effect on a pro forma basis to
any dispositions made during such Compliance Period, other than sales
of inventory in the ordinary course of business and dispositions of
obsolete equipment, in each case on the following basis:
(i) any Indebtedness incurred or assumed by
Holdings or any of its Subsidiaries in connection with the
Reorganization and any Indebtedness repaid in connection with
the Reorganization and/or dispositions, as the case may be,
shall be deemed to have been incurred or repaid, respectively,
as of April 1, 2001
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in the case of the Reorganization and as of the first day of
the Compliance Period, in the case of dispositions;
(ii) if such Indebtedness incurred or assumed by
Holdings or any of its Subsidiaries in connection with the
Reorganization has a floating or formula rate, then the rate
of interest for such Indebtedness for the applicable period
shall be computed as if the rate in effect for such
Indebtedness on the relevant measurement date had been the
applicable rate for the entire applicable period;
(iii) income statement items (whether positive or
negative) attributable to the property or business acquired or
disposed in the Reorganization and/or dispositions, as the
case may be, shall be included as if such acquisitions took
place on April 1, 2001, in the case of the Reorganization, and
as of the first day of the Compliance Period, in the case of
dispositions, in each case on a pro forma basis; and
(iv) any historical extraordinary non-recurring
costs or expenses or other verifiable costs or expenses that
will not continue after the Closing Date, in the case of the
Reorganization may be eliminated and other expenses and cost
reductions may be reflected on a basis consistent with
Regulation S-X promulgated by the Securities and Exchange
Commission.
Such pro forma calculations shall, in the case of the
Reorganization, be based on the audited or reviewed financial
delivered pursuant to subsection 4.1G. All pro forma
adjustments shall be approved by the Administrative Agent."
1.2 AMENDMENTS TO SECTION 7: BORROWERS' NEGATIVE
COVENANTS
A. Subsection 7.1 of the Credit Agreement is hereby amended
by deleting clause (viii) and substituting the following therefor:
"(viii) Company may remain liable with respect to Indebtedness
evidenced by the Convertible Subordinated Notes, in an aggregate
principal amount not to exceed $115 million; provided, that prior to
December 31, 2002, such Indebtedness shall be refinanced pursuant to
documentation in form and substance satisfactory to Requisite Lenders
or converted into shares of Holdings Common Stock in accordance with
subsection 7.5(ix);"
B. Subsection 7.2 of the Credit Agreement is hereby amended
by deleting clause (v) and substituting the following therefor:
"(v) Liens (other than Liens on any (x) Accounts or Inventory
of Holdings, any Borrower or any Domestic Subsidiary or Mexican
Subsidiary of any Borrower or (y) Capital Stock) granted by Borrowers
and their Subsidiaries securing Indebtedness permitted by subsections
7.1(vi), 7.1(vii) and 7.1(xii) in an aggregate amount not to exceed
$10,000,000 at any time outstanding; provided, however, that Borrowers
and their Domestic Subsidiaries shall not grant such Liens in
connection with any Indebtedness of any Foreign Subsidiary of any
Borrower incurred pursuant to subsection 7.1(vii); provided, further,
that (i) Holdings and its Subsidiaries may not grant any Liens in
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connection with any Indebtedness assumed by Holdings or any of its
Subsidiaries in connection with the Cadant Acquisition and (ii) no
assets acquired pursuant to the Cadant Acquisition may be subject to
any Liens under any such assumed Indebtedness except to the extent such
Liens evidence Capital Leases and are otherwise permitted by subsection
7.2(vii)."
C. Subsection 7.3 of the Credit Agreement is hereby amended
by deleting clause (vii) and substituting the following therefor:
"(vii) So long as no Event of Default or Potential Event of
Default has occurred and is continuing, Holdings and Company may
consummate the Cadant Acquisition, in accordance with (1) the Cadant
Acquisition Documents and (2) the following terms:
(a) the aggregate amount of consideration paid by
Holdings and Company for the Cadant Acquisition shall not
exceed 7,250,000 shares of Holdings Common Stock and
$4,500,000 in cash;
(b) as of the consummation of the Cadant Acquisition,
any assets or liabilities acquired or assumed by Holdings
pursuant to the Cadant Acquisition Documents shall have been
assigned to Company pursuant to the Cadant Assignment and
Assumption Agreement;
(c) the aggregate amount of all liabilities being
assumed by Company in connection with the Cadant Acquisition,
including any Indebtedness and Capital Leases, shall not
exceed $14,000,000; provided, that such amount shall include
all Indebtedness owed by Cadant to Company and interest
thereon in an aggregate amount of approximately $2,500,000;
(d) concurrently with the consummation of the Cadant
Acquisition, Borrowers shall have fully complied with the
requirements of subsections 6.8 and 6.9 of this Agreement and
Section 5 of the Security Agreement, with respect to the
Cadant Acquisition;
(e) Company shall have delivered to Administrative
Agent (i) the results of recent searches, by a Person or
Persons satisfactory to Administrative Agent, of all effective
UCC financing statements and fixture filings and all judgment
and tax lien filings which may have been made with respect to
any personal or mixed property acquired in the Cadant
Acquisition, together with copies of all such filings
disclosed by such search, (ii) UCC termination statements duly
executed by all applicable Persons for filing in all
applicable jurisdictions as may be necessary to terminate any
effective UCC financing statements or fixture filings
disclosed in such search, (iii) to the extent requested by
Administrative Agent, recent searches, by Person or Persons
satisfactory to Administrative Agent of all effective filings
with the PTO or United States Copyright Office which may have
been made with respect to any patents, trademarks or
copyrights being acquired in the Cadant Acquisition and (iv)
and all other documents or instruments necessary to release
all Liens on any personal or mixed property acquired in the
Cadant
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Acquisition, in each case in form and substance satisfactory
to Administrative Agent;
(f) Company shall have delivered an Officer's
Certificate, in form and substance satisfactory to
Administrative Agent, (1) certifying that no Potential Event
of Default or Event of Default shall then exist or shall occur
as a result of the Cadant Acquisition, and (2) demonstrating
that on the First Amendment Effective Date, after giving
effect to the Cadant Acquisition, the Borrowers will be in
compliance with subsection 7.6C.
D. Subsection 7.4 of the Credit Agreement is hereby amended
by (i) deleting the "and" at the end of subsection (xiv) thereof, deleting the
"." at the end of subsection (xv) thereof and substituting therefor "; and" and
(ii) adding the following subsection (xvi) to the end thereof:
"(xvi) Holdings may become and remain liable with respect to
Contingent Obligations arising under the Holdings Comdisco Guaranty in
an aggregate amount not to exceed $3,500,000 at any time."
E. Subsection 7.5 of the Credit Agreement is hereby amended
by (i) deleting the "and" at the end of subsection (vii) thereof, deleting the
"." at the end of subsection (viii) thereof and substituting therefor "; and"
and (ii) adding the following subsections (ix) and (x) to the end thereof:
"(ix) Company may exchange Convertible Subordinated Notes in
an aggregate principal amount not to exceed $115,000,000 for Holdings
Common; provided, that (i) the fair market value of such Holdings
Common Stock at the time of any such exchange does not exceed the
principal amount of the Convertible Subordinated Notes so exchanged,
(ii) no other consideration is paid by Holdings or any of its
Subsidiaries in connection with such exchange other than cash in lieu
of fractional shares of Holdings Common Stock in a nominal amount
satisfactory to Administrative Agent; and (iii) the other terms and the
documentation pursuant to which any such exchange occurs is in form and
substance satisfactory to Administrative Agent;"
(x) So long as no Event of Default or Potential Event of
Default has occurred and is continuing, Company may make Restricted
Junior Payments in connection with the payment of cash in lieu of
fractional shares of Holdings Common Stock pursuant to clause (ix)
above and to the extent required under the Convertible Subordinated
Note Indenture."
F. Subsection 7.6 of the Credit Agreement is hereby amended
by deleting the table contained in subsection 7.6A and substituting therefor the
following:
MINIMUM FIXED
"PERIOD CHARGE COVERAGE RATIO
------- ---------------------
Closing Date through December 31, 2001 1.10:1.00
January 1, 2002 through March 31, 2002 0.75:1.00
April 1, 2002 through June 30, 2002 1.25:1.00
July 1, 2002 and thereafter 1.50:1.00"
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G. Subsection 7.11 of the Credit Agreement is hereby amended
by deleting the proviso contained in such subsection.
H. Subsection 7.12 of the Credit Agreement is hereby amended
by:
(i) 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, or Cadant
Acquisition Document after the Closing Date, without in each
case obtaining the prior written consent of Requisite Lenders
to such amendment or waiver."; and
(ii) adding the following proviso to the end of
subsection 7.12B:
"; provided, however, that Holdings and the Company
may amend the Convertible Subordinated Note Indenture to
provide for the Subordinated Holdings Guaranty, pursuant to
documentation in form and substance reasonably satisfactory to
Administrative Agent"
1.3 AMENDMENTS TO SECTION 8: EVENTS OF DEFAULT
Subsection 8.13 of the Credit Agreement is hereby amended by deleting
part (b) of clause (i) of such subsection in its entirety and substituting the
following therefor:
"(b) entering into and performing its obligations under and in
accordance with the Subordinated Holdings Guaranty, Holdings Comdisco
Guaranty and the Loan Documents, Reorganization Documents, or Cadant
Acquisition Documents to which it is a party, or"
SECTION 2. 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 "FIRST AMENDMENT
EFFECTIVE DATE"):
A. Borrowers shall deliver to Lenders (or to Agents for
Lenders with sufficient originally executed copies, where appropriate, for each
Lender and its counsel) reliance letters addressed to the Agents and each of the
Lenders dated the First Amendment Effective Date with respect to all legal
opinions delivered in connection with Cadant Acquisition, which legal
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opinions and reliance letters shall be in form and substance reasonably
satisfactory to the Administrative Agent.
B. Lenders shall have received from Administrative Agent a
completed audit of the Inventory and Accounts to be acquired in the Cadant
Acquisition and Administrative Agent shall have determined the extent to which
such Accounts and Inventory shall be included as Eligible Accounts and Eligible
Inventory immediately after the consummation of the Cadant Acquisition.
C. Administrative Agent shall have implemented a reserve of
$20,000,000 against the Borrowing Base in connection with the Cadant Acquisition
that shall not be removed without the consent of Requisite Lenders.
D. On the First Amendment Effective Date, all conditions to
the consummation of the Cadant Acquisition (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 the Requisite
Lenders and Administrative Agent shall have received (i) a fully executed or
conformed copy of each Cadant Acquisition Document to be entered into on or
prior to the First Amendment Effective Date, in form and substance reasonably
satisfactory to the Administrative Agent and Requisite Lenders, and each such
Cadant 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 Requisite Lenders, and the parties to the Cadant Acquisition Documents
shall not have failed in any material respect to perform any material obligation
or covenant required by the Cadant Asset Purchase Agreement, respectively, to be
performed or complied with by any of them on or before the First Amendment
Effective Date, and (ii) an Officer's Certificate of Company (1) to the effect
set forth in clause (i) and (2) stating that Holdings, Company and Cadant will
proceed to consummate the Cadant Acquisition contemporaneously with the
effectiveness of this Amendment.
E. Company shall have paid to Administrative Agent an
amendment fee equal to $218,750, to be distributed among each Lender that has
executed and delivered a counterpart of this Amendment on or prior to 5:00 PM
(New York City time) on December 28, 2001, in proportion to the amount of each
such Lender's Revolving Loan Exposure to the aggregate amount of the Revolving
Loan Exposure of all such Lenders.
F. Administrative Agent shall have received evidence
satisfactory to it that all outstanding statements of O'Melveny & Myers LLP have
been paid in full.
SECTION 3. 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 the following statements are true, correct and
complete:
A. 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 this Amendment
(the "AMENDED AGREEMENT").
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B. 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.
C. 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.
D. 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.
E. 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.
F. 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.
G. 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.
SECTION 4. 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
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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.
SECTION 5. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
(i) On and after the First 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.
(ii) 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.
(iii) 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.
B. 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.
C. 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.
D. 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
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STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. 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 (i) 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 thereof and (ii)
the satisfaction of the conditions precedent contained in Section 2 hereof.
[Remainder of page intentionally left blank]
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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: /s/ Lawrence A. Margolis
---------------------------------------
Name: Lawrence A. Margolis
Title: Vice President, Chief Financial
Officer & Secretary
COMPANY: ARRIS INTERNATIONAL, INC.
By: /s/ Lawrence A. Margolis
---------------------------------------
Name: Lawrence A. Margolis
Title: Executive Vice President, Chief
Financial Officer & Secretary
ARRIS: ARRIS INTERACTIVE L.L.C.
By: /s/ Lawrence A. Margolis
---------------------------------------
Name: Lawrence A. Margolis
Title: Executive Vice President
SUBSIDIRIES OF COMPANY: ANTEC ASSET MANAGEMENT COMPANY
By: /s/ Lawrence A. Margolis
---------------------------------------
Name: Lawrence A. Margolis
Title: President
ANTEC LICENSING COMPANY
By: /s/ Lawrence A. Margolis
---------------------------------------
Name: Lawrence A. Margolis
Title: President
S-1
TEXSCAN CORPORATION
By: /s/ Lawrence A. Margolis
--------------------------------------
Name: Lawrence A. Margolis
Title: Chairman of the Board
ELECTRONIC CONNECTOR CORPORATION OF ILLINOIS
By: /s/ Lawrence A. Margolis
--------------------------------------
Name: Lawrence A. Margolis
Title: Vice President
POWER GUARD, INC.
By: /s/ Lawrence A. Margolis
---------------------------------------
Name: Lawrence A. Margolis
Title: Vice President
ELECTRONIC SYSTEM PRODUCTS INC.
By: /s/ Lawrence A. Margolis
---------------------------------------
Name: Lawrence A. Margolis
Title: Vice President
KEPTEL, INC.
By: /s/ Lawrence A. Margolis
---------------------------------------
Name: Lawrence A. Margolis
Title: Vice President
S-2
SUBSIDIARY GUARATORS,
for purposes of Section 6 only, TEXSCAN DE MEXICO, S.A. DE C.V.
By: /s/ Lawrence A. Margolis
---------------------------------
Name: Lawrence A. Margolis
Title: Chairman
KEPTEL DE MEXICO S.A. DE C.V.
By: /s/ Lawrence A. Margolis
---------------------------------
Name: Lawrence A. Margolis
Title: Chairman
ANTEC INTERNATIONAL CORPORATION
By: /s/ Lawrence A. Margolis
---------------------------------
Name: Lawrence A. Margolis
Title: Director
S-3
LENDERS: THE CIT GROUP/BUSINESS CREDIT, INC.,
individually and as Administrative Agent
and Collateral Agent
By: /s/ Kenneth B. Butler
----------------------------------
Name: Kenneth B. Butler
Title: Vice President
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CREDIT SUISSE FIRST BOSTON,
individually and as Syndication Agent
By: /s/ David L. Sawyer
-------------------------------
Name: David L. Sawyer
Title: Vice President
By: /s/ Jay Chall
-------------------------------
Name: Jay Chall
Title: Director
S-5
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By: /s/ Clare J. D'Cruz
----------------------------------
Name: Clare J. D'Cruz
Title: Vice President
S-6
COMERICA BANK
By: /s/ David Selden
-----------------------------------
Name: David Selden
Title: Vice President
S-7
CONGRESS FINANCIAL CORPORATION (SOUTHERN)
By: /s/ Morris P. Holloway
-----------------------------------
Name: Morris P. Holloway
Title: Senior Vice-President
S-8
FLEET CAPITAL CORPORATION
By: /s/ Douglas Strange
---------------------------------
Name: Douglas Strange
Title: Vice President
S-9
GMAC COMMERCIAL CREDIT LLC
By: /s/ Arthur A. Mason
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Name: Arthur A. Mason
Title: Executive Vice President
S-10
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Eric Huff
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Name: Eric Huff
Title: Assistant Vice President
S-12