EXHIBIT 4.2(b)
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ARRIS INTERNATIONAL, INC.,
ISSUER,
ARRIS GROUP, INC.
GUARANTOR
AND
THE BANK OF NEW YORK,
TRUSTEE
THIRD SUPPLEMENTAL INDENTURE,
DATED AS OF MARCH 20, 2002
4 1/2% CONVERTIBLE SUBORDINATED NOTES DUE 2003
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EXHIBIT 4.2(b)
THIRD SUPPLEMENTAL INDENTURE (this "Third Supplemental Indenture"), dated
as of March 20, 2002, among Arris Group, Inc., a Delaware corporation ("Parent"
or "Guarantor"), Arris International, Inc. f/k/a ANTEC Corporation, a Delaware
corporation (the "Company"), and The Bank of New York, a New York banking
corporation, as Trustee (the "Trustee"), to the Indenture between the Company
and the Trustee, dated as of May 8, 1998, as amended or supplemented from time
to time (the "Indenture").
WITNESSETH:
WHEREAS, pursuant to the Indenture $115,000,000 of the Company's 4 1/2%
Convertible Subordinated Notes due 2003 (the "Securities") were issued;
WHEREAS, Section 9.1 of the Indenture provides that, without the consent
of any Holder, the Company, when authorized by Board Resolutions, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental thereto, in form satisfactory to the Trustee, to provide
for collateral for or guarantors of the Securities;
WHEREAS, pursuant to the Agreement and Plan of Reorganization, dated as of
October 18, 2000, as amended, among Parent, the Company, Broadband Transition
Corporation, a Delaware corporation, Nortel Networks Inc., a Delaware
corporation, Nortel Networks LLC, a Delaware limited liability company, and
Arris Interactive L.L.C., a Delaware limited liability company, the Company
became a wholly owned subsidiary of Parent on August 3, 2001;
WHEREAS, Parent desires to unconditionally and irrevocably guarantee, on a
subordinated basis, the full and prompt payment of principal of and interest and
premium, if any, on, and Liquidated Damages, if any, with respect to, the
Securities when due, subject to any applicable grace periods, whether at
maturity, redemption, by acceleration, or otherwise, and all other obligations
of the Company to the Holders and the Trustee under the Indenture and the
Securities, (the "Guarantee") and to extend to the Holders certain rights and
privileges in connection with the Guarantee; and
WHEREAS, the Company and Parent have requested that the Trustee execute
and deliver this Third Supplemental Indenture and all requirements necessary to
make this Third Supplemental Indenture a valid instrument in accordance with its
terms and to make the Guarantee the valid obligation of Parent, and the
execution and delivery of this Third Supplemental Indenture has been duly
authorized in all respects.
NOW, THEREFORE, for good and valuable consideration, the sufficiency and
receipt of which is hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Capitalized terms used in this Third Supplemental Indenture,
but not defined herein, shall have the meaning subscribed to them in the
Indenture.
The following terms, as used herein, shall have the following respective
meanings:
"Administrative Agent" shall mean (i) so long as the Senior Credit
Agreement is in effect, The CIT Group/Business Credit, Inc., in its capacity as
administrative agent for the Lenders party to the Senior Credit Agreement or any
successor or other Administrative Agent appointed pursuant to the Senior Credit
Agreement and (ii) if there is no Senior Credit Agreement in effect, thereafter
any agent designated as representative of holders of all other Guarantor Senior
Debt.
"Bankruptcy Proceeding" shall mean (i) any insolvency or bankruptcy case
or proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to Guarantor or the Company
or to Guarantor's assets or the Company's assets, or (ii) any liquidation,
dissolution or other winding up of Guarantor or the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (iii)
any assignment for the benefit of creditors or any other marshaling of assets
and liabilities of Guarantor or the Company.
"Borrower" shall mean each of the Company, Arris Interactive L.L.C. and
the other subsidiaries of the Company party to the Senior Credit Agreement and
"Borrowers" shall mean all such persons collectively.
"Company" shall have the meaning set forth in the introductory paragraph
hereof.
"Guarantor" shall have the meaning set forth in the introductory paragraph
hereof.
"Guarantor Disqualified Capital Stock" shall mean, with respect to
Guarantor, Capital Stock of Guarantor that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or upon
the happening of an event or the passage of time would be, required to be
redeemed or repurchased (including at the option of the holder thereof) by
Guarantor, in whole or in part, on or prior to the Stated Maturity of the
Securities, provided that only the portion of such Capital Stock which is so
convertible, exercisable, exchangeable or redeemable or subject to repurchase
prior to such Stated Maturity shall be deemed to be Guarantor Disqualified
Capital Stock.
"Guarantor Junior Securities" shall mean any Guarantor Qualified Capital
Stock of Guarantor and any Indebtedness of Guarantor, in each case that is fully
subordinated to all Guarantor Senior Debt (and any debt securities issued in
exchange for Guarantor Senior Debt) to
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substantially the same extent as, or to a greater extent than, the Securities
are subordinated to Guarantor Senior Debt pursuant to this Third Supplemental
Indenture.
"Guarantor Non-Payment Default" shall have the meaning set forth in
Section 4.2(b) hereof.
"Guarantor Payment Blockage Period" shall have the meaning set forth in
Section 4.2(b) hereof.
"Guarantor Payment Default" shall have the meaning set forth in Section
4.2(a) hereof.
"Guarantor Payment Notice" shall have the meaning set forth in Section
4.2(b) hereof.
"Guarantor Qualified Capital Stock" shall mean any Capital Stock of
Guarantor that is not Guarantor Disqualified Capital Stock.
"Guarantor Senior Debt" shall mean (i) all indebtedness, obligations and
other liabilities of Guarantor, whether outstanding as of the date hereof or
hereafter created, incurred or assumed by Guarantor, arising under or in respect
of the Senior Credit Agreement and the Loan Documents including, without
limitation the principal of, the premium and interest on, all loans, letters of
credit, guaranties, including but not limited to the Parent Guaranty, and other
extensions of credit under the Senior Credit Agreement and the Loan Documents
and all commitment, facility, agency and other fees payable under or in
connection therewith and all expenses, reimbursements, indemnities and other
amounts and liabilities payable or owing by Guarantor thereunder and further
including, without limitation, any of the foregoing obligations and amounts
which would become due or accrue or arise but for the commencement of any
applicable Bankruptcy Proceeding, whether or not a claim is allowed for the same
in any such proceeding and (ii) any amendments, restatements, renewals
extensions or modifications of any of the foregoing.
"Guarantor Subordinated Obligations" shall have the meaning set forth in
Section 4.2(a) hereof.
"Indenture" shall have the meaning set forth in the introductory paragraph
hereof.
"Lender" shall mean each bank or other financial institution now or
hereafter party to the Senior Credit Agreement, and "Lenders" shall mean all
such banks and financial institutions, collectively.
"Loan Documents" shall mean the Senior Credit Agreement and the Notes, any
Letter of Credit Guaranty, the Guaranties and the Collateral Documents (as those
terms are defined in the Senior Credit Agreement).
"Loan Party" shall mean each of Parent, the Company, Arris Interactive
L.L.C., the other Borrowers and any Subsidiary (as defined in the Senior Credit
Agreement) of any Borrower,
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respectively, from time to time executing a Loan Document and "Loan Parties"
shall mean all such persons, respectively.
"Obligations" shall mean all obligations of every nature of each Loan
Party from time to time owed to Administrative Agent, Lenders or any of them
under the Loan Documents, whether for principal, interest, reimbursement of
amounts drawn under Letters of Credit (as defined in the Senior Credit
Agreement), fees, expenses, indemnification or otherwise.
"Parent" shall have the meaning set forth in the introductory paragraph
hereof.
"Parent Guaranty" shall mean that guarantee dated as of August 3, 2001, by
Parent for the benefit of, The CIT Group/Business Credit, Inc., as agent for and
representatives of the Lenders.
"Securities" shall have the meaning set forth in the recitals hereof.
"Senior Creditor" shall mean any Person now or hereafter holding Guarantor
Senior Debt, including, without limitation, any Lender, and "Senior Creditors"
shall mean all such persons, collectively.
"Senior Credit Agreement" shall mean the Credit Agreement dated as of
August 3, 2001, by and among the Company, Arris Interactive L.L.C., certain
subsidiaries of the Company, the several Lenders from time to time parties
thereto, the Administrative Agent, and Credit Suisse First Boston as syndication
agent, lead arranger and book running manager, as such agreement may be amended,
supplemented, restated, refinanced, restructured or otherwise modified from time
to time (in whole or in part without limitation as to terms, extensions of
maturities, increasing the maximum amount of indebtedness or borrowings
thereunder or other conditions or covenants), and all related notes, collateral
documents, guarantees, Hedge Agreements (as defined in the Senior Credit
Agreement), instruments and agreements entered into in connection therewith, as
the same may be amended, supplemented, restated or modified from time to time.
"Trustee" shall have the meaning set forth in the introductory paragraph
hereof.
Section 1.2. Incorporation by Reference. The provisions of Section 1.2 and
1.3 of the Indenture shall apply as set forth herein.
ARTICLE II
OBLIGATIONS UNDER SENIOR CREDIT AGREEMENT
Section 2.1. The Company hereby confirms the designation of the
Obligations under the Senior Credit Agreement as Designated Senior Debt.
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ARTICLE III
PARENT GUARANTEE
Section 3.1. Absolute and Unconditional Guarantee. (a) Guarantor fully,
absolutely, irrevocably, unconditionally, and jointly and severally, guarantees,
on a subordinated basis, to each Holder of a Security authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
subject to the limitations set forth in Section 3.3 and Article IV hereof, that:
the principal of and interest and premium, if any, on, and Liquidated Damages,
if any, with respect to, the Securities shall be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, redemption, by
acceleration or otherwise, and interest on the overdue principal, if any, and
interest on any interest or Liquated Damages, to the extent lawful, of the
Securities and all other obligations of the Company to the Holders or the
Trustee under the Indenture and the Securities will be promptly paid in full,
all in accordance with the terms thereof.
(b) Guarantor agrees that its obligations hereunder shall be
absolute, unconditional and irrevocable, irrespective of the validity,
regularity or enforceability of the Securities, or the Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the
Securities with respect to any provisions thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstances
which might otherwise constitute a legal or equitable discharge or defense of
Guarantor, and each such legal or equitable discharge is hereby irrevocably and
forever waived. Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that (except as
otherwise set forth in this Article III) this Guarantee shall not be discharged
except by complete payment of the obligations contained in the Securities, the
Indenture, and in this Third Supplemental Indenture.
(c) The obligation of Guarantor to make any payment hereunder may be
satisfied by causing the Company to make such payment. If any Holder or the
Trustee is required by any court or otherwise to return to the Company, the
Guarantor, or any custodian acting in relation to the Company or the Guarantor,
any amount paid by the Company or the Guarantor to the Trustee or such Holder,
this Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect as to such amount only.
Section 3.2. Severability. In case any provision of this Guarantee shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 3.3. Limitation of Guarantor's Liability. Guarantor and, by its
acceptance of any benefits hereof, each Holder hereby confirms that it is the
intention of all such parties that the guarantee by Guarantor pursuant hereto
shall not constitute a fraudulent transfer or conveyance for purposes of any
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law. To effectuate the foregoing
intention, each Holder who accepts the benefits hereof hereby irrevocably agrees
that the
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obligations under this Guarantee shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of Guarantor
(including, without limitation, any obligations under any bank credit
agreement), result in the obligations of such Guarantor under this Guarantee not
constituting such fraudulent transfer or conveyance.
Section 3.4. No Personal Liability. No stockholder, officer, director,
employee or incorporator, past, present or future, of Guarantor, as such, shall
have any personal liability under this Guarantee.
ARTICLE IV
SUBORDINATION OF GUARANTEE
Section 4.1. Guarantee Subordinate to Guarantor Senior Debt. The Company
covenants and agrees, and each Holder of a Security, by his acceptance of the
benefits of the Guarantee, likewise covenants and agrees, that, to the extent
and in the manner set forth in Article XII of the Indenture and Article IV
hereof, the payment of Guarantor's obligations in respect of its Guarantee is
hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all the obligations of Guarantor under all Guarantor Senior
Debt on the same basis as the Securities are junior and subordinated to the
Senior Indebtedness of the Company as set forth in Article XII of the Indenture.
For the purposes of the foregoing sentence, the Trustee and the Holders shall
have the right to receive and/or retain payments by Guarantor only at such times
as they may receive and/or retain payments in respect of the Securities pursuant
to the Indenture.
This Section 4.1 and Article XII of the Indenture shall constitute a
continuing offer to all Persons who, in reliance upon such provisions, become
holders of, or continue to hold, Guarantor Senior Debt, and such provisions are
made for the benefit of the holders of Guarantor Senior Debt, and such holders
are made obligees hereunder and any one or more of them may enforce such
provisions. In addition, the payment of cash, property or securities (other than
Guarantor Junior Securities) upon conversion of a Security pursuant to Article
XIII will constitute payment on a Security and therefore will be subject to the
subordination provisions contained in this Article IV and in the Indenture.
Section 4.2. No Payment on Securities in Certain Circumstances.
(a) No payment may be made by Guarantor on account of the principal
of, premium, if any, interest on, or Liquidated Damages or any other obligations
under or with respect to, the Securities, or to acquire any of the Securities
(including repurchases of Securities at the option of the Holder) for cash or
property (other than Guarantor Junior Securities), or on account of the
redemption provisions of the Securities (collectively, the "Guarantor
Subordinated Obligations"), (i) upon the maturity of any Guarantor Senior Debt
by lapse of time, acceleration (unless waived) or otherwise, unless and until
all principal of, premium, if any, and interest on, and fees, charges, expenses,
indemnifications and all other amounts payable
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in respect of Guarantor Senior Debt are first paid in full, or (ii) in the event
of default in the payment of any principal of, premium, if any, or interest in
respect of Guarantor Senior Debt when it becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise
(collectively, a "Guarantor Payment Default"), unless and until such Guarantor
Payment Default has been cured or waived or otherwise has ceased to exist.
(b) Upon (i) the happening of an event of default (other than a
Guarantor Payment Default) that permits, or would permit, with (w) the passage
of time, (x) the giving of notice, (y) the making of any payment of the
Securities then required to be made, or (z) any combination thereof
(collectively, a "Guarantor Non-Payment Default"), the holders of Guarantor
Senior Debt or their representative immediately to accelerate its maturity and
(ii) written notice of such Guarantor Non-Payment Default given to Guarantor and
the Trustee by the holders of Guarantor Senior Debt or their representative (a
"Guarantor Payment Notice"), then, unless and until such Guarantor Non-Payment
Default has been cured or waived or otherwise has ceased to exist, no payment
(by set-off or otherwise) may be made by or on behalf of Guarantor directly or
through any Subsidiary on account of the Guarantor Subordinated Obligations, in
any such case other than payments made with Guarantor Junior Securities.
Notwithstanding the foregoing, unless (i) the Guarantor Senior Debt in respect
of which such Guarantor Non-Payment Default exists has been declared due and
payable in its entirety within 179 days after the Guarantor Payment Notice is
delivered as set forth above (the "Guarantor Payment Blockage Period"), and (ii)
such declaration has not been rescinded or waived, at the end of the Guarantor
Payment Blockage Period, Guarantor shall be required to pay to the Holders of
the Securities all sums not paid to the Holders of the Securities during the
Guarantor Payment Blockage Period due to the foregoing prohibitions (and upon
the making of such payments any acceleration of the Securities made during the
Guarantor Payment Blockage Period shall be of no further force or effect) and to
resume all other payments as and when due on the Securities. Not more than one
Guarantor Payment Notice may be given in any consecutive 365-day period,
irrespective of the number of defaults with respect to Guarantor Senior Debt
during such period. In no event, however, may the total number of days during
which any Guarantor Payment Blockage Period is or Guarantor Payment Blockage
Periods are in effect exceed 179 days in the aggregate during any consecutive
365 day period.
(c) In furtherance of the provisions of Section 4.1, in the event
that, notwithstanding the foregoing provisions of this Section 4.2, any payment
or distribution of assets of Guarantor (other than Guarantor Junior Securities)
shall be received by the Trustee on behalf of the Holders or any Paying Agent
for the benefit of the Holders at a time when such payment or distribution is
prohibited by the provisions of this Section 4.2, such payment or distribution
(subject to the provisions of Sections 4.6 and 4.9) shall be held in trust for
the benefit of the holders of Guarantor Senior Debt, and shall be paid or
delivered by such Holders or the Trustee or such Paying Agent, as the case may
be, to the holders of Guarantor Senior Debt remaining unpaid or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Guarantor
Senior Debt may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Guarantor Senior Debt held or represented by
each, for application to the payment of all Guarantor Senior Debt in full after
giving effect to any concurrent payment and distribution to
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the holders of such Guarantor Senior Debt.
Section 4.3. Securities Subordinated to Prior Payment of All Guarantor
Senior Debt on Dissolution, Liquidation or Reorganization. Upon any distribution
of assets of Guarantor upon any dissolution, winding up, total or partial
liquidation or reorganization of Guarantor, whether voluntary or involuntary, in
bankruptcy, insolvency, receivership or a similar proceeding or upon assignment
for the benefit of creditors or any marshaling of assets or liabilities:
(a) the holders of all Guarantor Senior Debt shall first be entitled
to receive payments in full before the Holders are entitled to receive any
payment on account of the Guarantor Subordinated Obligations (other than
Guarantor Junior Securities);
(b) any payment or distribution of assets of Guarantor of any kind
or character, whether in cash, property or securities (other than Guarantor
Junior Securities) to which the Holders or the Trustee on behalf of the Holders
would be entitled (by setoff or otherwise), except for the provisions of this
Article IV, shall be paid by the liquidating trustee or agent or other Person
making such a payment or distribution directly to the holders of Guarantor
Senior Debt or their representative to the extent necessary to make payment in
full of all such Guarantor Senior Debt remaining unpaid, after giving effect to
any concurrent payment or distribution to the holders of such Guarantor Senior
Debt (but this Section 4.3(b) shall not apply to payments or distributions to
the Trustee for its own benefit); and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of Guarantor of any kind or character, whether in cash,
property or securities (other than Guarantor Junior Securities), shall be
received by the Trustee for the benefit of the Holders or the Holders or any
Paying Agent for the benefit of the Holders (or, if Guarantor or any Affiliate
of Guarantor is acting as its own Paying Agent, money for any such payment or
distribution shall be segregated or held in trust) on account of Guarantor
Subordinated Obligations before all Guarantor Senior Debt is paid in full, such
payment or distribution (subject to the provisions of Sections 4.6 and 4.9)
shall be received and held in trust by the Trustee or such Holder or Paying
Agent for the benefit of the holders of such Guarantor Senior Debt, or their
respective representative, and shall be paid over to or delivered to the holders
of the Guarantor Senior Debt, ratably according to the respective amounts of
such Guarantor Senior Debt held or represented by each, to the extent necessary
to make payment as provided herein of all such Guarantor Senior Debt remaining
unpaid after giving effect to all concurrent payments and distributions to or
for the holders of such Guarantor Senior Debt, but only to the extent that as to
any holder of such Guarantor Senior Debt, as promptly as practical following
notice from the Trustee to the holders of such Guarantor Senior Debt that such
prohibited payment has been received by the Trustee, Holder(s) or Paying Agent
(or has been segregated as provided above), such holder (or a representative
therefor) notifies the Trustee of the amounts then due and owing on such
Guarantor Senior Debt, if any, held by such holder and only the amounts
specified in such notices to the Trustee shall be paid to the holders of such
Guarantor Senior Debt.
Section 4.4. Securityholders to Be Subrogated to Rights of Holders of
Guarantor
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Senior Debt. Subject to the payment in full of all Guarantor Senior Debt as
provided herein, the Holders of Securities shall be subrogated to the rights of
the holders of such Guarantor Senior Debt to receive payments or distributions
of assets of Guarantor applicable to the Guarantor Senior Debt until all amounts
owing on the Securities shall be paid in full, and for the purpose of such
subrogation no such payments or distributions to the holders of such Guarantor
Senior Debt by Guarantor, or by or on behalf of the Holders by virtue of this
Article IV, which otherwise would have been made to the Holders shall, as
between Guarantor and the Holders, be deemed to be payment by Guarantor or on
account of such Guarantor Senior Debt, it being understood that the provisions
of this Article IV are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of such
Guarantor Senior Debt, on the other hand.
If any payment or distribution to which the Holders would otherwise have
been entitled but for the provisions of this Article IV shall have been applied,
pursuant to the provisions of this Article IV, to the payment of amounts payable
under Guarantor Senior Debt, then the Holders shall be entitled to receive from
the holders of such Guarantor Senior Debt any payments or distributions received
by such holders of Guarantor Senior Debt in excess of the amount sufficient to
pay all amounts payable under or in respect of such Guarantor Senior Debt in
full.
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Section 4.5. Obligations of Guarantor Unconditional. Nothing contained in
this Article IV or elsewhere in this Third Supplemental Indenture, the Indenture
or in the Securities is intended to or shall impair as between Guarantor and the
Holders, the obligation of each such Person (in the case of Guarantor, to the
extent specified in this Third Supplemental Indenture), which is absolute and
unconditional, to pay to the Holders the principal of, premium, if any, and
interest on, the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of Guarantor other than the holders of the
Guarantor Senior Debt, nor shall anything herein or therein prevent the Trustee
or any Holder from exercising all remedies otherwise permitted by applicable law
upon default under the Indenture, subject to the rights, if any, under this
Article IV, of the holders of Guarantor Senior Debt in respect of cash, property
or securities of the Company received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article IV or elsewhere in the
Indenture or in the Securities, upon any distribution of assets of the Company
referred to in this Article IV, the Trustee, subject to the provisions of
Sections 7.1 and 7.2 of the Indenture, and the Holders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending, or a certificate of the liquidating trustee or agent or other Person
making any distribution to the Trustee or to the Holders for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Guarantor Senior Debt and other Indebtedness of Guarantor, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article IV so long as
such court has been apprised of the provisions of, or the order, decree or
certificate makes reference to, the provisions of this Article IV. Nothing in
this Section 4.5 shall apply to the claims of, or payments to, the Trustee under
or pursuant to Section 7.7 of the Indenture or otherwise for its own benefit.
Section 4.6. Trustee and Other Agents Entitled to Assume Payments Not
Prohibited in Absence of Notice. Guarantor shall give prompt written notice to
the Trustee of any fact known to Guarantor which would prohibit the making of
any payment to or by the Trustee in respect of the Securities. The Trustee and
all other Agents shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until a Trust Officer of the Trustee or any Paying Agent
shall have actually received, no later than one Business Day prior to such
payment, written notice thereof in compliance with Section 14.2 of the Indenture
from Guarantor or from one or more holders of Guarantor Senior Debt or from any
representative therefor and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Sections 7.1 and 7.2 of the Indenture,
shall be entitled in all respects conclusively to assume that no such fact
exists.
Section 4.7. Subordination Rights Not Impaired by Acts or Omissions of
Guarantor or Holders of Guarantor Senior Debt. No right of any present or future
holders of any Guarantor Senior Debt to enforce subordination provisions
contained in this Article IV shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of Guarantor or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance by
Guarantor with the terms of this Third Supplemental Indenture, regardless of any
knowledge thereof which any such holder may have or be otherwise charged with.
Without the consent of or notice to the
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Trustee or the Holders, the holders of Guarantor Senior Debt may extend, renew,
modify or amend the terms of Guarantor Senior Debt or any security therefor and
release, sell or exchange such security and otherwise deal freely with
Guarantor, all without impairing the liabilities and obligations of the parties
to this Third Supplemental Indenture or the Holders.
Section 4.8. Securityholders Authorize Trustee to Effectuate Subordination
of Securities. Each Holder of the Securities by his acceptance thereof
authorizes the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provisions contained in this Article
IV pursuant to this Third Supplemental Indenture, and appoints the Trustee his
attorney-in-fact for such purpose, including, in the event of any dissolution,
winding up, liquidation or reorganization of Guarantor (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors of Guarantor), the immediate filing of a claim for the unpaid balance
of his Securities in the form required in said proceedings and cause said claim
to be approved. If the Trustee does not file a proper claim or proof of debt in
the form required in such proceeding prior to 30 days before the expiration of
the time to file such claim or claims, then the holders of the Guarantor Senior
Debt or their representative are or is hereby authorized to have the right to
file and are or is hereby authorized to file an appropriate claim for and on
behalf of the Holders of said Securities. Nothing herein contained shall be
deemed to authorize the Trustee or the holders of Guarantor Senior Debt or their
representative to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Guarantor Senior Debt or their
representative to vote in respect of the claim of any Securityholder in any such
proceeding.
Section 4.9 Right of Trustee to Hold Guarantor Senior Debt. The Trustee
shall be entitled to all of the rights set forth in this Article IV in respect
of any Guarantor Senior Debt at any time held by it to the same extent as any
other holder of Guarantor Senior Debt, and nothing in this Third Supplemental
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
Nothing in this Article IV shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.7 of the Indenture.
Section 4.10. Article IV Not to Prevent Events of Default. The failure to
make a payment on account of principal of, premium, if any, interest on, or
Liquidated Damages with respect to, the Securities by reason of any provision of
this Article IV shall not be construed as preventing the occurrence of a Default
or an Event of Default under Section 6.1 of the Indenture or in any way prevent
the Holders from exercising any right hereunder other than the right to receive
payment on the Securities.
Section 4.11. No Duty of Trustee and Other Agents to Holders of Guarantor
Senior Debt. The Trustee and the other Agents shall not be deemed to owe any
fiduciary duty to the holders of Guarantor Senior Debt, and shall not be liable
to any such holders (other than for its willful misconduct or negligence) if it
shall in good faith mistakenly pay over or distribute to the
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Holders of Securities or Guarantor or any other Person, cash, property or
securities to which any holders of Guarantor Senior Debt shall be entitled by
virtue of this Article IV or otherwise. Nothing in this Section 4.11 shall
affect the obligation of any other such Person receiving such payment or
distribution from the Trustee or any other Agent to hold such payment for the
benefit of, and to pay such payment over to, the holders of Guarantor Senior
Debt or their representative.
With respect to the holders of Guarantor Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article IV and no implied covenants or
obligations with respect to holders of Guarantor Senior Debt shall be read into
this Third Supplemental Indenture as against the Trustee.
Section 4.12. Amendments. The provisions of this Article IV may not be
amended or modified without the written consent of the holders of Guarantor
Senior Debt or their representatives in accordance with the instruments
governing the terms of such Guarantor Senior Debt.
ARTICLE V
MISCELLANEOUS
Section 5.1. This Third Supplemental Indenture. This Third Supplemental
Indenture shall be construed as supplemental to the Indenture and shall form a
part of it, and the Indenture is hereby incorporated by reference herein and
each is hereby ratified, approved and confirmed.
Section 5.2. Notice. Unless otherwise specifically provided herein, all
communications under this Article shall be in writing and shall be deemed to
have been given (i) on the date of service if served personally on the party to
whom notice is to be given, (ii) on the day of transmission if sent by facsimile
transmission to the telecopy number given below, and telephonic confirmation of
receipt is obtained promptly after completion of transmission; (iii) on the day
after delivery to Federal Express or similar overnight courier, or (iv) on the
fifth day after mailing, if mailed to the party to whom notice is to be given,
by first class mail, registered or certified, postage prepaid, and properly
addressed, return receipt requested, to the party as follows:
If to the Senior Creditor: The CIT Group/Business Credit, Inc.
1200 Ashwood Parkway, Suite 150
Atlanta, Georgia 30338
Attn: Regional Credit Manager
Telecopy: (770) 522-7673
If to Holder: The address in the records of the Trustee
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If to Trustee: The Bank of New York
101 Barclay Street,
Floor 21 West
New York, New York 10286
Attn: Corporate Trust Trustee Administration
Telecopy: (212) 815-5915
If to Guarantor: Arris Group, Inc.
11450 Technology Circle
Duluth, Georgia 30097
Attn: Chief Financial Officer
Telecopy: (678) 473-8470
If to the Company: Arris International, Inc.
11450 Technology Circle
Duluth, Georgia 30097
Attn: Chief Financial Officer
Telecopy: (678) 473-8470
Any party hereto may change its address for purposes of this Section 5.2
by giving the other parties written notice of the new address in the manner set
forth above.
Section 5.3. Counterparts. This Third Supplemental Indenture may be
executed in any number or counterparts, each of which shall be an original, but
all of which shall constitute one and the same instrument.
SECTION 5.4. THIS THIRD SUPPLEMENTAL INDENTURE AND ALL THE TERMS HEREIN,
INCLUDING THE TERMS REGARDING SUBORDINATION, SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK IN ALL RESPECTS, INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT REGARD TO THE
CHOICE OF LAW PROVISIONS THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture to be duly executed by their respective authorized officers as of the
day and year first above written.
ARRIS INTERNATIONAL, INC.
By: /s/ Armando Rois-Mendez
------------------------------------
Name: Armando Rois-Mendez
Title: Assistant Secretary
THE BANK OF NEW YORK
By: /s/ Mary LaGumina
------------------------------------
Name: Mary LaGumina
Title: Vice President
ARRIS GROUP, INC.
By: /s/ David Potts
------------------------------------
Name: David Potts
Title: Senior Vice President-Finance
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