FIRST AMENDMENT TO
AMENDED
AND RESTATED CREDIT AND GUARANTY
AGREEMENT
THIS FIRST
AMENDMENT TO THE AMENDED AND RESTATED CREDIT AND GUARANTY
AGREEMENT (this “Amendment” ) is dated as of
June [18], 2008 and is entered into by and among H3C HOLDINGS
LIMITED , a limited liability company organized under the laws
of the Cayman Islands ( “Borrower” ), H3C
TECHNOLOGIES CO., LIMITED , a company incorporated with limited
liability under the laws of Hong Kong (“ H3C ”),
GOLDMAN SACHS CREDIT PARTNERS L.P. (“ GSCP
”), as Administrative Agent ( “Administrative
Agent” ), acting with the consent of the Requisite
Lenders and, for purposes of Section IV hereof, the
GUARANTORS listed on the signature pages hereto, and is made
with reference to that certain AMENDED AND RESTATED CREDIT AND
GUARANTY AGREEMENT dated as of May 25, 2007 and effective
as of May 31, 2007 (as amended through the date hereof, the
“Credit Agreement” ) by and among the Borrower,
H3C, the Holdco Guarantors, the Lenders, the Administrative Agent,
the Collateral Agent and the other Agents named therein.
Capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Credit Agreement after
giving effect to this Amendment.
WHEREAS, the Credit Parties have requested that Requisite
Lenders agree to amend certain provisions of the Credit Agreement
as provided for herein; and
WHEREAS, subject to certain conditions, Requisite Lenders
are willing to agree to such amendment relating to the Credit
Agreement.
NOW, THEREFORE , in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties
hereto agree as follows:
SECTION I.
AMENDMENTS TO CREDIT AGREEMENT
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1.1
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Amendments to Section 1:
Definitions .
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Section 1.1
of the Credit Agreement is hereby amended by adding the following
definitions in proper alphabetical sequence:
“First
Amendment” means that certain First Amendment Agreement
to Amended and Restated Credit and Guaranty Agreement dated as of
June [ ] , 2008 among the
Borrower, H3C, the Administrative Agent, the financial institutions
and the Guarantors listed on the signature pages
thereto.
“First
Amendment Effective Date” means the date of satisfaction
of the conditions referred to in Section II of the First
Amendment.
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1.2
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Amendments to
Section 5.1 .
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(a)
Section 5.1(a) is hereby amended and restated in its entirety
as follows:
“(a)
Summary Financial Information . (i) Upon the earlier to
occur of (1) 90 days after the end of each of the first
three Fiscal Quarters of each Fiscal Year or (2) 3Com’s
public release of its financial statements which would include the
financial results of Borrower for the applicable Fiscal Quarter
(other than the fourth Fiscal Quarter), Borrower shall deliver
Summary Financial Information for Borrower and its Subsidiaries
with respect to such Fiscal Quarter to the Public-Side Lenders and
(ii) on the same day Borrower delivers financial statements to
the Private-Side Lenders pursuant to Section 5.1(c) below,
Borrower shall also deliver Summary Financial Information for
Borrower and its Subsidiaries with respect to the same relevant
period to the Public-Side Lenders;”
(b)
Section 5.1 is hereby further amended by inserting a new
subclause (p) as follows:
“(p)
Delivery . To the extent any notices, financial information
or other information required to be delivered hereunder is due on a
day that is not a Business Day, such information shall be required
to be delivered on the immediately next succeeding Business Day
thereafter.”
SECTION II.
CONDITIONS TO EFFECTIVENESS
This
Amendment shall become effective as of the date hereof only upon
the satisfaction of all of the following conditions precedent (the
date of satisfaction of such conditions being referred to herein as
the “First Amendment Effective Date”
):
A. Execution . The Administrative Agent shall have received
(i) a counterpart signature page of this Amendment duly
executed by each of the Credit Parties and (ii) consent and
authorization (in a duly executed reply form) from the Requisite
Lenders to execute this Amendment on their behalf.
B. Necessary Consents. Each Credit Party shall have obtained
all material consents necessary or advisable in connection with the
transactions contemplated by this Amendment.
C. Other Documents. The Administrative Agent and the Lenders
shall have received such other documents, information or agreements
regarding the Credit Parties as the Administrative Agent or the
Collateral Agent may reasonably request.
SECTION III.
REPRESENTATIONS AND WARRANTIES
In
order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, each Credit
Party which is a party hereto represents
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and warrants to
each Lender that the following statements are true and correct in
all material respects:
A. Corporate Power and Authority. Each Credit Party, which
is party hereto, has all requisite power and authority to enter
into this Amendment and to carry out the transactions contemplated
by, and perform its obligations under, the Credit Agreement as
amended by this Amendment (the “Amended
Agreement” ) and the other Credit Documents.
B. Authorization of Agreements. The execution and delivery
of this Amendment and the performance of the Amended Agreement and
the other Credit Documents have been duly authorized by all
necessary action on the part of each Credit Party that is
a
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