Exhibit 10.2
LIMITED WAIVER
Dated as of December 5, 2002
The CIT Group/Business Credit, Inc.,
as Administrative Agent and Collateral Agent
Each Lender (as defined below) party to,
the Credit Agreement (as defined below)
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated August 3, 2001 by
and among Arris International, Inc., a Delaware corporation ("COMPANY"), Arris
Interactive L.L.C., a Delaware limited liability company ("ARRIS"), each of
Company's subsidiaries listed on the signature pages thereof (Company, Arris
Interactive and each such subsidiary are collectively referred to on a joint and
several basis, as the "BORROWERS"), the financial institutions party thereto
from time to time (collectively, the "LENDERS"), Credit Suisse First Boston and
The CIT Group/Business Credit, Inc., as administrative agent (in such capacity,
the "ADMINISTRATIVE AGENT"), syndication agent and collateral agent for Lenders,
as amended by that certain First Amendment to Credit Agreement dated as of
January 8, 2002, as supplemented by that certain Acknowledgement dated as of
March 21, 2002, as further amended by that certain Second Amendment to Credit
Agreement dated as of April 17, 2002, as further amended by that certain Third
Amendment to Credit Agreement dated as of April 24, 2002, as further amended by
that certain Fourth Amendment to Credit Agreement dated as of May 31, 2002, as
further supplemented by that certain Fifth Amendment dated as of September 30,
2002, as further supplemented by that certain Consent dated as of September 30,
2002 and as further amended by that certain Sixth Amendment to Credit Agreement
dated as of November 21, 2002 (as so amended, supplemented or otherwise modified
as of the date hereof, the "CREDIT AGREEMENT"). Capitalized terms used in this
limited waiver (the "LIMITED WAIVER") without definition shall have the meanings
herein as set forth in the Credit Agreement.
Requisite Lenders hereby waive the restrictions contained in subsection
7.5 of the Credit Agreement that would prohibit, from the date hereof through
May 15, 2003, (i) Company, Arris and/or Holdings from repaying principal due on
and redeeming the Convertible Subordinated Notes and repaying any other amounts
required to be repaid in connection with such redemption and/or repayment or
(ii) Company or Arris making Restricted Junior Payment to Holdings to permit it
to make any such repayment or redemption, so long as Holdings applies the amount
of any such Restricted Junior Payment for such purpose; provided, that (a) such
redemption and/or repayment is in accordance with the terms of the Convertible
Subordinated Notes and the Convertible Subordinated Note Indenture; (b)
immediately before and after giving effect to such repayment and/or redemption
or Restricted Payment, no Event of Default or Potential Event of Default shall
have occurred or be continuing; (c) immediately before and after giving effect
to such repayment and/or redemption or Restricted Payment, no Loans shall be
outstanding; (d)
after giving effect to such repayment and/or redemption or Restricted Payment,
Arris, Company and its Domestic Subsidiaries shall have Cash and/or Cash
Equivalents in Deposit Accounts with an aggregate value of at least $50,000,000
that are subject to blocked account agreements in favor of Administrative Agent,
in form and substance satisfactory to Administrative Agent; (e) after giving
effect to such repayment and/or redemption, the aggregate amount expended in
connection with all repayments and/or redemptions of the Convertible
Subordinated Notes after the date hereof shall not have exceeded $50,000,000,
(f) Company, Arris and the other Borrowers shall have for the six month period
ending immediately prior to such redemption and/or repayment or Restricted
Payment paid all of their accounts payable in the ordinary course of business
and in accordance with their past practices; and (g) the Chief Financial Officer
of the Company shall have delivered an officer's certificate to Administrative
Agent certifying compliance by the Company with the foregoing clauses (a)
through (f).
Without limiting the generality of the provisions of Section 10.6 of the
Credit Agreement, the waiver set forth above shall be limited precisely as
written and relates solely to the waiver of the restrictions contained in
subsection 7.5 that would prohibit the redemption and/or repayment by Company,
Arris and/or Holdings of Convertible Subordinated Notes in accordance with the
terms of the Convertible Subordinated Notes and the Convertible Subordinated
Note Indenture and any Restricted Junior Payments to be made by Company or Arris
to enable Holdings to make any such purchase in the manner and to the extent
described above, and nothing in this Limited Waiver shall be deemed to:
(a) constitute a waiver of any restrictions contained in subsection
7.5 of the Credit Agreement in any other instance or any other term,
provision or condition of the Credit Agreement or any other instrument or
agreement referred to therein (whether in connection with the purchase by
Holdings, Company or Arris of Convertible Subordinated Notes or
otherwise); or
(b) prejudice any right or remedy that Administrative Agent or any
Lender may now have or may have in the future under or in connection with
the Credit Agreement or any other instrument or agreement referred to
therein.
Except as expressly set forth herein, the terms, provisions and conditions
of the Credit Agreement and the other Loan Documents shall remain in full force
and effect and in all other respects are hereby ratified and confirmed.
Holdings, each Borrower and each Subsidiary Guarantor hereby acknowledges
that such Loan Party has read this Limited Waiver and consents to the terms
hereof and further hereby confirms and agrees that, notwithstanding the
effectiveness of this Limited Waiver, 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 Limited
Waiver, such Loan Party is not required by the terms of the Credit Agreement or
any other Loan Document to
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consent to the provisions of this Limited Waiver and (ii) nothing in the Credit
Agreement, this Limited Waiver or any other Loan Document shall be deemed to
require the consent of such Loan Party to any future waivers or amendments to
the Credit Agreement.
In order to induce Lenders to enter into this Limited Waiver, each of
Company, Arris and the other Borrower by their execution of a counterpart of
this Limited Waiver, represents and warrants that (a) as of the date hereof no
Event of Default or Potential Event of Default exists under the Credit
Agreement, (b) all representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and complete in all
material respects on and as of the date hereof 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, and (c) each of Company, Arris and the other Borrowers have
performed all agreements to be performed on its part as set forth in the Credit
Agreement.
THIS LIMITED WAIVER 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.
This Limited Waiver 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 Limited Waiver shall become effective upon the execution of a
counterpart hereof by each of the Borrowers and the Requisite Lenders and
receipt by Company and Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
[The Remainder Of This Page Has Been Left Blank Intentionally]
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IN WITNESS WHEREOF, each party hereto has executed this letter agreement
on the date first above written.
Sincerely,
ARRIS INTERNATIONAL, INC.
By: /s/ Lawrence A. Margolis
-----------------------------
Name: Lawrence A. Margolis
Title: Executive Vice President, Chief
Financial Officer & Secretary
ARRIS INTERACTIVE L.L.C.
By: /s/ Lawrence A. Margolis
-----------------------------
Name: Lawrence A. Margolis
Title: Executive Vice President
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
TEXSCAN CORPORATION
By: /s/ Lawrence A. Margolis
-----------------------------
Name: Lawrence A. Margolis
Title: Chairman of the Board
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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
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SUBSIDIARY GUARANTORS,
for purposes of the fifth and
sixth paragraphs 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
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ACKNOWLEDGED AND AGREED:
THE CIT GROUP/BUSINESS CREDIT, INC.,
individually and as Administrative Agent and Collateral Agent
By: /s/ John F. Bohan
-----------------------------
Name: John F. Bohan
Title: Vice President
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AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By: /s/ Diane M. Zurick
-------------------------------
Name: Diane M. Zurick
Title: Assistant Vice President
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COMERICA BANK
By:
-----------------------------
Name:
Title:
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CONGRESS FINANCIAL CORPORATION
(SOUTHERN)
By: /s/ Morris P. Holloway
-----------------------------
Name: Morris P. Holloway
Title: Senior Vice President
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FLEET CAPITAL CORPORATION
By: /s/ Douglas Strange
-----------------------------
Name: Douglas Strange
Title: Vice President
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GMAC COMMERCIAL CREDIT LLC
By:
-----------------------------
Name:
Title:
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