Exhibit 4(h)
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ALLEN TELECOM INC.
as the Borrower
THE LENDERS NAMED HEREIN
as the Lenders
BANK ONE, MICHIGAN
as the Documentation Agent
and
KEYBANK NATIONAL ASSOCIATION
as the Administrative Agent
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AMENDMENT NO. 6
dated as of
November 15, 2001
to
the CREDIT AGREEMENT
dated as of
December 31, 1998
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AMENDMENT NO. 6 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 6 TO CREDIT AGREEMENT, is dated as of November 15,
2001 (this "Amendment"), among the following:
(i) ALLEN TELECOM INC., a Delaware corporation (herein, together with
its successors and assigns, the "Borrower");
(ii) the Lenders party to the Credit Agreement, as hereinafter defined;
(iii) BANK ONE, MICHIGAN (successor in interest to NBD Bank) as a
Lender and as Documentation Agent (the "Documentation Agent"); and
(iv) KEYBANK NATIONAL ASSOCIATION, a national banking association, as a
Lender and as the Administrative Agent and the Collateral Agent under the Credit
Agreement (the "Administrative Agent"):
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, the Documentation Agent and the
Administrative Agent are parties to the Credit Agreement, dated as of December
31, 1998 (as amended and as the same may from time to time be further amended,
restated or otherwise modified, the "Credit Agreement"; the terms defined
therein are used herein as so defined).
(2) The parties hereto desire to modify certain terms and provisions of
the Credit Agreement, all as more fully set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
Section 1. Amendments and Consents.
1.1. Amended Definition. Section 1.1 of the Credit Agreement is hereby
amended to delete the definition of "CONSOLIDATED EBITDA" therefrom and to
insert in place thereof the following:
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated
EBIT for such period; PLUS the sum (without duplication) of the amounts
for such period included in determining such Consolidated EBIT of (i)
Consolidated Depreciation Expense, (ii) Consolidated Amortization
Expense, (iii) not more than $8,000,000 of Consolidated Obsolescence
Expense, (iv) if such period includes any portion of the last fiscal
quarter of 1997 or any fiscal quarter of 1998, the restructuring
charges (including restructuring reserves) taken during the fourth
quarter of 1997 and the second quarter of 1998, as well as other
restructuring charges and reserves (including MARTA) incurred during
the third and fourth quarters of 1998 up to an aggregate of not more
than $13,000,000, and (v) restructuring charges related to the
acquisition of the Person identified by the Borrower in the materials
distributed to the Lenders on November 7, 2001 taken during the fourth
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quarter of 2001 or during the 2002 fiscal year, so long as the
aggregate amount of all such charges shall not exceed $2,000,000, all
as determined for the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP; PROVIDED that, notwithstanding anything
to the contrary contained herein, the Borrower's Consolidated EBITDA
for any Testing Period shall (x) include the appropriate financial
items for any person or business unit which has been acquired by the
Borrower and its Subsidiaries for any portion of such Testing Period
prior to the date of acquisition, and (y) exclude the appropriate
financial items for any person or business unit which has been disposed
of by the Borrower and its Subsidiaries, for the portion of such
Testing Period prior to the date of disposition.
1.2. CONSENT TO PAYMENT OF INDEBTEDNESS IN CONNECTION WITH ACQUISITION.
The Borrower has notified the Administrative Agent and the Lenders that the
Borrower intends to purchase substantially all of the assets of the Person (the
"SELLER") identified by the Borrower in the materials distributed to the Lenders
on November 7, 2001 (the "PROPOSED ACQUISITION"), on a non-cash basis with the
purchase price to be paid with stock of the Borrower and without the raising of
the additional equity originally contemplated in the materials distributed to
the Lenders on September 19, 2001. The Proposed Acquisition on a non-cash basis
is permitted by Section 9.2(c) of the Credit Agreement, except that, in
connection with the Proposed Acquisition, the Borrower is proposing to assume or
repay a limited amount of Indebtedness of the Seller and pay off a line of
credit owing by the Seller in order to release the lien of the lender under such
line of credit on the inventory, accounts receivable and other assets being sold
in the Proposed Acquisition (collectively, the "ACQUISITION DEBT"). The Borrower
has requested that the Administrative Agent and the Lenders consent to the
Borrower assuming or repaying the Acquisition Debt. The Administrative Agent and
the Lenders hereby consent to the Borrower's assumption or repayment of the
Acquisition Debt, and this Amendment shall serve as evidence of such consent, on
the conditions that (a) the aggregate amount of Acquisition Debt assumed or
repaid shall not exceed $5,000,000, (b) the Borrower shall provide the
Administrative Agent with evidence, in form and substance satisfactory to the
Administrative Agent, that all liens on the assets being sold in the Proposed
Acquisition have been released concurrently with the Proposed Acquisition, and
(c) no Default or Event of Default shall exist or immediately after the Proposed
Acquisition shall begin to exist. In addition, the Borrower, the Administrative
Agent and the Lenders hereby acknowledge that, since the Borrower is effecting
the Proposed Acquisition without the raising of equity as contemplated in the
materials distributed to the Lenders on September 19, 2001, the Borrower did not
effect the Target Acquisition, and, as a result thereof, the Adjusted Covenant
Date did not and will not occur.
Section 2. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants as follows:
2.1. AUTHORIZATION AND VALIDITY OF AMENDMENT. This Amendment has been
duly authorized by all necessary corporate action on the part of the Borrower,
has been duly executed and delivered by a duly authorized officer of the
Borrower, and constitutes the valid and binding agreement of the Borrower,
enforceable against the Borrower in accordance with its terms.
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2.2. REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Credit Parties contained in the Credit Agreement and in the other Credit
Documents are true and correct in all material respects on and as of the
Amendment Effective Date, as though made on and as of the Amendment Effective
Date, except to the extent that such representations and warranties expressly
relate to an earlier specified date, in which case such representations and
warranties are hereby reaffirmed as true and correct in all material respects as
of the date when made.
2.3. NO EVENT OF DEFAULT. No Default or Event of Default exists or
hereafter will begin to exist.
2.4. COMPLIANCE. The Borrower is in full compliance with all covenants
and agreements contained in the Credit Agreement, as amended hereby, and the
other Credit Documents to which it is a party.
2.5. NO CLAIMS. The Borrower is not aware of any claim or offset
against, or defense or counterclaim to, any of its obligations or liabilities
under the Credit Agreement or any other Credit Document.
Section 3. RATIFICATIONS.
Except as expressly modified and superseded by this Amendment, the
terms and provisions of the Credit Agreement are ratified and confirmed and
shall continue in full force and effect.
Section 4. BINDING EFFECT.
This Amendment shall become effective on the date set forth in the
opening paragraph of this Amendment (the "Amendment Effective Date"), subject to
the satisfaction of the following conditions on or before such date:
(a) the Borrower, the Administrative Agent and the Required
Lenders shall have executed this Amendment;
(b) the Borrower shall have paid all reasonable legal fees and
expenses of the Administrative Agent in connection with this Amendment
and the documents executed in connection therewith; and
(c) the Borrower shall have provided such other items and
shall have satisfied such other conditions as may be reasonably
required by the Administrative Agent and the Lenders.
Section 5. MISCELLANEOUS.
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5.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in this Amendment shall survive the execution and delivery
of this Amendment, and no investigation by the Administrative Agent or any
Lender or any subsequent Loan or other Credit Event shall affect the
representations and warranties or the right of the Administrative Agent or any
Lender to rely upon them.
5.2. REFERENCE TO CREDIT AGREEMENT. The Credit Agreement and any and
all other agreements, instruments or documentation now or hereafter executed and
delivered pursuant to the terms of the Credit Agreement as amended hereby, are
hereby amended so that any reference therein to the Credit Agreement shall mean
a reference to the Credit Agreement as amended hereby.
5.3. SEVERABILITY. Any term or provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or unenforceable.
5.4. APPLICABLE LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Ohio without regard to conflicts of
laws provisions.
5.5. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.6. ENTIRE AGREEMENT. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto relating to the subject matter hereof or any other
subject matter relating to the Credit Agreement. Except as set forth herein, the
Credit Agreement shall remain in full force and effect and be unaffected hereby.
5.7. WAIVER OF CLAIMS. The Borrower, by signing below, hereby waives
and releases the Administrative Agent and each of the Lenders and their
respective directors, officers, employees, attorneys, affiliates and
subsidiaries from any and all claims, offsets, defenses and counterclaims of
which the Borrower is aware, such waiver and release being with full knowledge
and understanding of the circumstances and effect thereof and after having
consulted legal counsel with respect thereto.
5.8. COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts and by facsimile signature, each of which
when so executed shall be deemed to be an original, but all of which when taken
together shall constitute one and the same agreement.
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5.9. JURY TRIAL WAIVER. EACH OF THE PARTIES TO THIS AMENDMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO
HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the date first above written.
ALLEN TELECOM INC. KEYBANK NATIONAL ASSOCIATION,
individually as the Swing Line Lender,
By:_______________________________ a Lender, a Letter of Credit Issuer,
Name:_____________________________ and as the Syndication Agent and
Title:______________________________ the Administrative Agent
By:__________________________________
Lawrence A. Mack, Senior Vice
President
BANK ONE, MICHIGAN FIRSTAR BANK, NATIONAL ASSOCIATION
(formerly NBD Bank), (formerly Star Bank, National
individually as a Lender and Association)
as Documentation Agent By:_______________________________
Name:_____________________________
By:_______________________________ Title:______________________________
Name:_____________________________
Title:______________________________
FIFTH THIRD BANK, NORTHEASTERN OHIO LaSALLE BANK NATIONAL ASSOCIATION
(formerly LaSalle National Bank)
By:_______________________________
Name:_____________________________ By:_______________________________
Title:______________________________ Name:_____________________________
Title:______________________________
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DRESDNER BANK AG,
New York and Grand Cayman Branches
By:_______________________________
Name:_____________________________
Title:______________________________
and:_______________________________
Name:_____________________________
Title:______________________________
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