FIRST AMENDMENT
TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "First Amendment"),
dated as of December 7, 1999, between FIRST UNION NATIONAL BANK, a national
banking association (the "Bank"), COMMSCOPE, INC. OF NORTH CAROLINA, a
North Carolina corporation (the "Borrower") and the guarantors listed on
the signature page hereto (the "Guarantors").
STATEMENT OF PURPOSE
The Bank, the Borrower and the Guarantors are parties to the Credit
Agreement dated as of February 26, 1999 (as amended, restated, supplemented
or otherwise modified, the "Credit Agreement"), pursuant to which the Bank
has agreed to extend, and has extended, a credit facility to the Borrower.
The parties now desire to amend the Credit Agreement in certain
respects on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the parties hereto hereby agree as follows:
Section 1. Definitions. All capitalized terms used and not defined
herein shall have the meanings given thereto in the Credit Agreement.
Section 2. Amendments to the Credit Agreement. The Credit Agreement is
hereby amended as follows:
(a) Section 1.1 of the Credit Agreement shall be amended by inserting
the following defined terms in the correct alphabetical order:
"Holdings Senior Subordinated Note Indenture" means the Indenture
to be entered into by Holdings and, if applicable, certain of its
Subsidiaries in connection with the issuance of the Holdings Senior
Subordinated Notes, together with all instruments and other agreements
entered into by Holdings or such Subsidiaries in connection therewith,
as the same may be amended, supplemented or otherwise modified from
time to time.
"Holdings Senior Subordinated Note Issuance Date" means the first
date on which the Holdings Senior Subordinated Notes are issued.
"Holdings Senior Subordinated Notes" means the senior
subordinated or subordinated notes (including any convertible
subordinated notes and exchange
notes) of Holdings to be issued pursuant to the Holdings Senior
Subordinated Note Indenture.
(b) Section 6.2 of the Credit Agreement is hereby amended by (i)
deleting the word "and" from the end of clause (g), (ii) deleting the
period at the end of clause (h) and substituting therefor the phrase ";
and" and (iii) adding thereto the following new clause (i):
"(i) Guarantee Obligations of the Borrower and its Subsidiaries
in respect of the Holdings Senior Subordinated Notes, if applicable,
provided that such Guarantee Obligations are subordinated to the
Obligations or the Guaranty, as the case may be, to the same extent as
the obligations of Holdings in respect of the Holdings Senior
Subordinated Notes are subordinated to the obligations of Holdings
under the Loan Documents to which it is a party."
(c) Section 6.9 of the Credit Agreement is hereby amended by (i)
deleting the word "and" from the end of clause (b), (ii) deleting the
period at the end of clause (c) and substituting therefor the phrase ",
and" and (iii) adding thereto the following new clause (d):
"(d) the Borrower may pay dividends to Holdings in amounts
sufficient to permit Holdings to make scheduled payments of interest
on the Holdings Senior Subordinated Notes when due as long as at the
time thereof and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing under paragraph (a) of
Section 9.l."
(d) Paragraph (i) of Section 9.1 of the Credit Agreement is hereby
amended by (i) deleting the word "or" from the end of clause (ii) thereof
and substituting therefor a comma and (ii) deleting the phrase, ";or" at
the end of clause (iii) and substituting therefor the following:
"or (iv) the incurrence of Indebtedness by Holdings consisting of the
Holdings Senior Subordinated Notes as long as (A) the aggregate
principal amount of the Holdings Senior Subordinated Notes does not
exceed $200,000,000, (B) the Holdings Senior Subordinated Notes are
issued at par or at a discount or premium not giving rise to original
issue discount under the Code, (C) the Holdings Senior Subordinated
Notes contain covenants, events of default and remedies as are then
customary for similar subordinated unsecured debt securities issued in
a public offering or a Rule 144A transaction and in any event no more
restrictive than those contained herein, (D) the Holdings Senior
Subordinated Notes have no scheduled principal payments prior to the
sixth anniversary of the date of issuance thereof and are subject to
no mandatory prepayments or redemptions or offers to purchase except
for those based on a change of control or asset sales on terms as are
then
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customary for senior unsecured debt securities issued in a public
offering or a Rule 144A transaction and (E) the Holdings Senior
Subordinated Notes contain subordination provisions satisfactory to
the Bank; provided that the Holdings Senior Subordinated Notes shall
be deemed to comply with this clause (iv) unless the Bank notifies the
Borrower within five Business Days after its receipt of the
preliminary offering memorandum (or any draft thereof containing
substantially the same terms as are set forth in such preliminary
offering memorandum) for the Holdings Senior Subordinated Notes that
the senior subordinated notes described therein do not comply with
this clause (iv), the Borrower hereby agreeing to distribute such
preliminary offering memorandum to the Bank promptly following the
printing thereof. To the extent that the aggregate principal amount of
the Holdings Senior Subordinated Notes exceeds $150,000,000, such
excess shall be deemed to utilize availability under clause (f) of
Section 6.14, and Holdings and the Borrower hereby agree that they
will not permit the aggregate principal amount of the Senior
Subordinated Notes to exceed the sum of $150,000,000 plus the
available unutilized amount under clause (f) of Section 6.14. Neither
Holdings nor any of its Subsidiaries will (1) make or offer to make
any optional or voluntary payment, prepayment, repurchase or
redemption of or otherwise optionally or voluntarily defease or
segregate funds with respect to the Holdings Senior Subordinated
Notes, provided, however, Holdings may optionally redeem (and offer to
optionally redeem) the Holdings Senior Subordinated Notes when
permitted under, and in accordance with, the Holdings Senior
Subordinated Note Indenture as long as (I) no such redemption occurs
prior to the third anniversary of the Holdings Senior Subordinated
Note Issuance Date, (II) no such redemption may be made if a Default
or Event of Default exists at the time thereof or would exist after
giving effect thereto and (III) the average closing price of the
common stock of Holdings on the New York Stock Exchange during the
period of 10 consecutive trading days immediately preceding the date
on which Holdings issues a notice of redemption of the Holdings Senior
Subordinated Notes in accordance with the Holdings Senior Subordinated
Note Indenture exceeds the conversion price then in effect for such
common stock as provided in the Holdings Senior Subordinated Note
Indenture by at least 10%, (2) amend, modify, waive or otherwise
change, or consent to agree to any amendment, modification, waiver or
other change to, any of the terms of the Holdings Senior Subordinated
Notes (other than any such amendment, modification, waiver or other
change that (I) would extend the maturity or reduce the amount of any
payment of principal thereof or reduce the rate or extend any date for
payment of interest thereon and (II) does not involve the payment of a
consent fee), or (3) designate any Indebtedness (other than
obligations of the Loan Parties pursuant to the Loan Documents or
pursuant to the Existing Credit Facility) as "Designated Senior
Indebtedness" for the purposes of the Holdings Senior Subordinated
Note Indenture; or"
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(e) Paragraph (j) of Section 9.1 of the Credit Agreement is hereby
amended by adding the following at the end thereof:
"or (iii) a change of control, however denominated, shall occur
under the Holdings Senior Subordinated Note Indenture; or"
(f) Section 9.1 of the Credit Agreement is amended by adding the
following new paragraph (k)
immediately after paragraph (j):
"(k) on and after the Holdings Senior Subordinated Note Issuance
Date, the Holdings Senior Subordinated Notes or the guarantees thereof
shall cease, for any reason, to be validly subordinated to the
Obligations or the obligations of Holdings and the Guarantors, if
applicable, under the Loan Documents, as the case may be, as provided
in the Holdings Senior Subordinated Note Indenture, or any Credit
Party, any Affiliate of any Credit Party, the trustee in respect of
the Holdings Senior Subordinated Notes or the holders of at least 25%
in aggregate principal amount of the Holdings Senior Subordinated
Notes shall so assert;"
Section 3. Representations and Warranties/No Default.
(a) By its execution hereof, the Borrower hereby certifies that (after
giving effect to this First Amendment) each of the representations and
warranties set forth in the Credit Agreement and the other Loan Documents
is true and correct as of the date hereof as if fully set forth herein and
that as of the date hereof no Default or Event of Default has occurred and
is continuing.
(b) By its execution hereof, the Borrower hereby represents and
warrants that each of the Credit Parties has the right, power and authority
and has taken all necessary corporate and other action to authorize the
execution, delivery and performance of this First Amendment and each other
document executed in connection herewith to which it is a party in
accordance with their respective terms. This First Amendment has been duly
executed and delivered by the duly authorized officers of the Credit
Parties party thereto, and each such document constitutes the legal, valid
and binding obligation of such Credit Parties, enforceable in accordance
with its terms.
(c) By its execution hereof, the Borrower hereby represents and
warrants that on and after the Holdings Senior Subordinated Note Issuance
Date (a) the obligations of Holdings under each Loan Documents to which it
is a party will constitute "Senior Indebtedness" (however denominated) of
Holdings under and as defined in the Holdings Senior Subordinated Note
Indenture and (b) the obligations of the Borrower and each of its
Subsidiaries under each Loan Document to which it is a party constitute
"Senior Indebtedness" (however denominated) of the Borrower or such
Subsidiary, as the case
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may be, under and as, defined in the Holdings Senior Subordinated Note
Indenture, if applicable.
Section 4. Limited Amendment. Except as expressly amended and waived
herein, each provision of the Credit Agreement and each provision of each
other Loan Document shall continue to be, and shall remain, in full force
and effect. This First Amendment shall not be deemed or otherwise construed
(a) to be a waiver of, or consent to, or a modification or amendment of,
any other term or condition of the Credit Agreement or any other Loan
Document, (b) to be a commitment or any other undertaking, by the Bank to
engage in any further amendment or waiver of any aspect of the Credit
Agreement or any other Loan Document or (c) to prejudice any other right or
rights which the Bank may now have or may have in the future under or in
connection with the Credit Agreement or the Loan Documents or any of the
instruments or agreements referred to therein, as the same may be amended
or modified from time to time.
Section 5. Amendment Fee. As a condition to the effectiveness of this
First Amendment, the Borrower shall pay to the Bank an amendment fee in an
amount equal to $15,088.50.
Section 6. Costs and Expenses. The Borrower shall pay all reasonable
out-of-pocket expenses of the Bank in connection with the preparation,
execution and delivery of this First Amendment, including without
limitation, the reasonable fees and disbursements of counsel for the Bank.
Section 7. Counterparts. First Amendment may be executed by one or
more of the parties hereto in any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and
the same instrument.
Section 7. Governing Law. This First Amendment shall be governed by,
and construed and interpreted in accordance with, the laws of the State of
North Carolina, without reference to the conflicts or choice of law
principles thereof.
Section 9. Entire Agreement. This First Amendment, together with the
Credit Agreement and the other Loan Documents, constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements. The Borrower acknowledges that there are
no other agreements of any kind, whether written or oral pertaining to the
subject matter hereof, not memorialized in the First Amendment, the Credit
Agreement and the other Loan Documents.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed and delivered under seal by their respective duly
authorized officers as of the date first above written.
BORROWER:
COMMSCOPE, INC. OF NORTH CAROLINA
[CORPORATE SEAL]
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
BANK:
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
GUARANTOR:
COMMSCOPE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
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