exv10w54






Exhibit 10.54




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.



RECITALS




          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





	1.1	 	Amendments to Section 1: Definitions.





          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.



 









 






	1.2	 	Amendments to Section 5.1.






     (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 party thereto.




          C. No Conflict. The execution and delivery by each Credit Party of this Amendment and the
performance by each Credit Party of the Amended Agreement and the other Credit Documents do not and
will not (i) violate (A) any provision of any law, statute, rule or regulation applicable to each
Credit Party, or of the certificate or articles of incorporation or partnership agreement, other
constitutive documents or by-laws of the Borrower or any Credit Party or (B) any applicable order
of any court or order of any Governmental Authority binding on any Credit Party, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both)
a default under any Contractual Obligation of the applicable Credit Party, where any such conflict,
violation, breach or default referred to in clause (i) or (ii) of this Section III.C., individually
or in the aggregate could reasonably be expected to have a Material Adverse Effect, (iii) except as
permitted under the Amended Agreement, result in or require the creation or imposition of any Lien
upon any of the properties or assets of each Credit Party (other than any Liens created under any
of the Credit Documents in favor of Administrative Agent on behalf of Lenders), or (iv) require any
approval of stockholders or partners or any approval or consent of any Person under any Contractual
Obligation of each Credit Party, except for such approvals or consents which will be obtained on or
before the First Amendment Effective Date and except for any such approvals or consents the failure
of which to obtain will not have a Material Adverse Effect.




          D. Governmental Consents. No action, consent or approval of, registration or filing with
or any other action by any Governmental Authority is or will be required in connection with the
execution and delivery by each Credit Party of this Amendment and the performance by the Borrower
and H3C of the Amended Agreement and the other Credit Documents, except for such actions, consents
and approvals the failure to obtain or make which could not reasonably be expected to result in a
Material Adverse Effect or which have been obtained and are in full force and effect.




          E. Binding Obligation. This Amendment and the Amended Agreement have been duly executed
and delivered by each of the Credit Parties party thereto and each constitutes a legal, valid and
binding obligation of such Credit Party to the extent a party thereto, enforceable against such
Credit Party in accordance with its terms, except as enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally
and except as enforceability may be limited by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).




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          F. Incorporation of Representations and Warranties from Credit Agreement. The
representations and warranties contained in Section 4 of the Amended Agreement are and will be true
and correct in all material respects on and as of the First Amendment Effective Date (after giving
effect to the amendments and waivers contained herein) to the same extent as though made on and as
of that date, except to the extent such representations and warranties specifically relate to an
earlier date, in which case they were true and correct in all material respects on and as of such
earlier date.




          G. Absence of Default. No event has occurred and is continuing (after giving effect to
the amendments and waivers contained herein) or will result from the consummation of the
transactions contemplated by this Amendment that would constitute an Event of Default or a Default.




     SECTION IV. ACKNOWLEDGMENT AND CONSENT




          Each Guarantor hereby acknowledges that it has reviewed the terms and provisions of the Credit
Agreement and this Amendment and consents to the amendment of the Credit Agreement effected
pursuant to this Amendment. Each Guarantor hereby confirms that each Credit Document to which it
is a party or otherwise bound and all Collateral encumbered thereby will continue to guarantee or
secure, as the case may be, to the fullest extent possible in accordance with the Credit Documents
the payment and performance of all “Obligations” under each of the Credit Documents to which is a
party (in each case as such terms are defined in the applicable Credit Document).




          Each Guarantor acknowledges and agrees that any of the Credit Documents to which it is a party
or otherwise bound shall continue in full force and effect and that all of its obligations
thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment. Each Guarantor represents and warrants that all representations
and warranties contained in the Amended Agreement and the Credit Documents to which it is a party
or otherwise bound are true and correct in all material respects on and as of the First Amendment
Effective Date to the same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which case they were true
and correct in all material respects on and as of such earlier date.




          Each Guarantor acknowledges and agrees that (i) notwithstanding the conditions to
effectiveness set forth in this Amendment, such Guarantor is not required by the terms of the
Credit Agreement or any other Credit Document to consent to the amendments to the Credit Agreement
effected pursuant to this Amendment and (ii) nothing in the Credit Agreement, this Amendment or any
other Credit Document shall be deemed to require the consent of such Guarantor to any future
amendments to the Credit Agreement.




     SECTION V. MISCELLANEOUS




          A. Reference to and Effect on the Credit Agreement and the Other Credit Documents.





     (i) On and after the First Amendment Effective Date, each reference in the
Credit Agreement to “this Amendment”, “hereunder”, “hereof”, “herein” or



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words of like import referring to the Credit Agreement, and each reference in
the other Credit Documents to the “Credit Agreement”, “thereunder”, “thereof” or
words of like import referring to the Credit Agreement shall mean and be a reference
to the Credit Agreement as amended by this Amendment.




     (ii) Except as specifically amended by this Amendment, the Credit Agreement
and the other Credit Documents shall remain in full force and effect and are hereby
ratified and confirmed.




     (iii) The execution, delivery and performance of this Amendment shall not
constitute a waiver of any provision of, or operate as a waiver of any right, power
or remedy of any Agent or Lender under, the Credit Agreement or any of the other
Credit Documents.



          B. Headings. Section and Subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this Amendment for any
other purpose or be given any substantive effect.




          C. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.




          D. Counterparts. This Amendment 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.




[Remainder of this page intentionally left blank.]




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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered
by their respective officers thereunto duly authorized as of the date first written above.




	 	 	 	 	 
	BORROWER: 	H3C HOLDINGS LIMITED

 	 
	 	By:  	/s/ Jay Zager
 	 
	 	 	Name:  	Jay Zager 	 
	 	 	Title:  	Director 	 
	 
	GUARANTORS: 	H3C TECHNOLOGIES CO., LIMITED

 	 
	 	By:  	/s/ Jay Zager
 	 
	 	 	Name:  	Jay Zager 	 
	 	 	Title:  	Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

As Administrative Agent and as a Lender

 	 
	 	By:  	/s/ Jessica Widdowson
 	 
	 	 	Authorized Signatory