EXHIBIT 10.13
SECOND AMENDMENT TO
CREDIT AND INVESTMENT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AND INVESTMENT AGREEMENT dated as of
November 9, 1998, by and among SCIENTIFIC-ATLANTA, INC. (the "Company"), each of
the financial institutions party hereto (the "Lenders"), WACHOVIA BANK, N.A., as
agent for the Lenders (the "Agent"), and WACHOVIA CAPITAL INVESTMENTS, INC.,
formerly known as WACHOVIA CAPITAL MARKETS, INC., as Lessor (the "Lessor").
WHEREAS, the Company, the Lenders, the Agent and the Lessor are parties to
that certain Credit and Investment Agreement dated as of July 30, 1997, as
amended prior to the date hereof (the "Credit Agreement"); and
WHEREAS, the parties hereto desire to amend certain provisions of the
Credit Agreement on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Specific Amendment to Credit Agreement. The definition of the
--------------------------------------
term "Consolidated Net Income" contained in Schedule 1.02 of the Credit
Agreement is hereby deleted in its entirety and the following substituted in its
place:
"Consolidated Net Income" means, with respect to the Company and its
-----------------------
Subsidiaries for any period of computation thereof, the net income (or
loss) of the Company and its Subsidiaries on a consolidated basis for such
period, provided, however, that the following shall be excluded when
-------- -------
determining Consolidated Net Income: (i) any item of gain or loss resulting
from sale, conversion or other disposition of assets other than in the
ordinary course of business; (ii) net gains or losses on the acquisition,
retirement, sale or other disposition of capital stock and other securities
of, or owned by, the Company and its Subsidiaries; (iii) net gains or
losses on the collection of proceeds of life insurance policies; (iv) any
write-up or write-down of any investment in equity securities; (v) any
write-up of any asset other than investments in equity securities; and (vi)
any other net gains or losses of an extraordinary nature as determined in
accordance with GAAP. The one-time charge in the amount of $76,233,000 to
the Company's earnings taken in the fourth fiscal quarter of the Company's
1998 Fiscal Year shall be disregarded when determining Consolidated Net
Income.
Section 2. Representations of Company. The Company represents and
--------------------------
warrants to the Lessor, the Agent and the Lenders that:
(a) Authorization. The Company has the right and power, and has taken all
-------------
necessary action to authorize it, to execute and deliver this Amendment and to
perform its obligations under the Credit Agreement as amended by this Amendment,
in accordance with its terms. This Amendment has been duly executed and
delivered by a duly authorized officer of the Company and the Credit Agreement,
as amended by this Amendment, is a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.
(b) Compliance with Laws, etc. The execution and delivery by the Company
--------------------------
of this Amendment and the performance by the Company of the Credit Agreement as
amended by this Amendment, in accordance with its terms, do not and will not, by
the passage of time, the giving of notice or otherwise: (i) require any
governmental approval or violate any applicable law relating to the Company;
(ii) conflict with, result in a breach of or constitute a default under the
articles of incorporation or the bylaws of the Company; (iii) conflict with,
result in a breach of or constitute a default under any indenture, agreement or
other instrument to which the Company is a party or by which it or any of its
properties may be bound, which conflict, breach or default would have a Material
Adverse Effect; or (iv) result in or require the creation or imposition of any
Lien upon or with respect to any property now owned or hereafter acquired by the
Company other than in favor of the Agent or Lessor for the benefit of the
Lenders.
Section 3. Certain References. Each reference to the Credit Agreement in
------------------
any of the documents related to the Credit Agreement shall be deemed to be a
reference to the Credit Agreement as amended by this Amendment.
Section 4. Benefits. This Amendment shall be binding upon and shall inure
--------
to the benefit of the parties hereto and their respective successors and
assigns.
Section 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 6. Effect. Except as expressly herein amended, the terms and
------
conditions of the Credit Agreement shall remain in full force and effect.
Section 7. Effectiveness of Amendment. This Amendment shall not be
--------------------------
effective until its execution and delivery by all of the parties hereto
whereupon it shall be deemed effective as of June 26, 1998.
Section 8. Counterparts. This Amendment may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns.
2
Section 9. Definitions. All capitalized terms not otherwise defined
-----------
herein are used herein with the respective definitions given them in the Credit
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
Credit and Investment Agreement to be executed as of the date first above
written.
SCIENTIFIC-ATLANTA, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------------
Title: Senior Vice President, Chief Financial
---------------------------------------
Officer & Treasurer
---------------------------------------
WACHOVIA BANK, N.A., as Agent
By: /s/ Xxxxx X. XxXxxxx
--------------------------------------------
Name: Xxxxx X. XxXxxxx
---------------------------------------
Title: Senior Vice President
--------------------------------------
WACHOVIA CAPITAL INVESTMENTS, INC.,
formerly known as WACHOVIA CAPITAL MARKETS, INC.,
as Lessor
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President
--------------------------------------
3
