EXHIBIT 10.1
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of September 28, 2001 in respect of the
Credit Agreement (Multi-Draw Term Loan Facility) dated as of May 16, 2001 and
amended by Amendment No. 1 dated as of July 25, 2001 (the "Credit Agreement")
between NEXT LEVEL COMMUNICATIONS, INC., a Delaware corporation (the "Borrower")
and MOTOROLA, INC., a Delaware corporation (the "Lender").
The Borrower has requested that the Credit Agreement be amended
to increase the amount of the Commitment from Sixty Million Dollars
($60,000,000) to Sixty Four Million Dollars ($64,000,000), and the Lender has
agreed to such an increase on the terms and conditions set forth herein.
Accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are
used herein as defined therein.
Section 2. Amendments.
2.1 The amount "$60,000,000" on the cover page of the Credit Agreement
and in the preamble of the Credit Agreement is hereby amended to read
"$64,000,000".
2.2 The words "Sixty Million Dollars ($60,000,000)" in the definition of
"Commitment" in Section 1.01 of the Credit Agreement is hereby amended
to read "Sixty Four Million Dollars ($64,000,000)".
2.3 There is hereby added a new clause (e) to Section 2.08, Mandatory
Prepayments and Reductions of Commitment, to read as follows:
(e) Mandatory Prepayment of Loans in excess of $60,000,000.
Notwithstanding anything to the contrary in this Section 2.08,
all Net Cash Proceeds from any Equity Issuance or Debt Issuance
(including, without limitation, the proposed secured real estate
financing with Northwestern Mutual Life Insurance Company), or
any Disposition of Property other than any Property sold pursuant
to clauses (i) and (ii) of Section 8.04, shall be used to prepay
immediately any outstanding Loans in excess of $60,000,000, and
any interest accrued thereon.
2.4 Section 10.02(a) of the Credit Agreement is hereby amended by
replacing the words "Xxxxx Xxxxxxx" with "Xxxxx Xxx".
2.5 The Promissory Note dated as of May 16, 2001 from the Borrower to
the Lender is hereby amended by replacing the amount "$60,000,000" with
the amount "$64,000,000" in each place it appears and by replacing the
words "Sixty Million Dollars" in the first paragraph of such note with
the words "Sixty Four Million Dollars".
Section 3. Representation and Warranties; No Defaults. The
Borrower hereby represents and warrants to the Lender that (i) except as
publicly disclosed and except with respect to changes in the disclosure
schedules that are not individually or in the aggregate material, the
representations and warranties made by it in or pursuant to the Loan Documents,
after giving effect to the amendment effected hereby, are true and correct on
and as of the date hereof as if made on and as of such date (or, if any such
representation is expressly stated to have been made as of a specific date, as
of such specific date) and (ii) no Default or Event of Default, after giving
effect to the amendment effected hereby, has occurred and is continuing.
Section 4. Miscellaneous. Except as expressly herein provided,
the Loan Documents shall remain unchanged and in full force and effect. This
Amendment No. 2 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 2 by signing any such
counterpart. This Amendment No. 2 shall be governed by, and construed in
accordance with, the law of the State of New York.
[Remainder of page intentionally left blank].
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to be duly executed as of the day and year first above written.
NEXT LEVEL COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Zar
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Name: Xxxxx X. Zar
Title: Senior Vice President
MOTOROLA, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Senior Vice President and
Treasurer