1
EXHIBIT 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment") is
entered into as of the 27th day of September, 1996, by and among each Person
designated as a Lender on the signature pages hereof (such Persons are
collectively the "Lenders"), DSC COMMUNICATIONS CORPORATION, a Delaware
corporation (the "Company"), DSC FINANCE CORPORATION, a Delaware corporation,
DSC INTERNATIONAL CORPORATION, a Delaware corporation, DSC MARKETING SERVICES,
INC., a Delaware corporation, DSC OF PUERTO RICO, INC., a Delaware corporation,
DSC TELECOMMUNICATIONS CORPORATION, a Delaware corporation, DSC TELECOM, INC.,
a Nevada corporation, DSC TELECOM L.P., a Texas limited partnership (such other
corporations and limited partnerships being collectively, the "Guarantors")
(the Company and the Guarantors being collectively, the "Loan Parties"), and
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, as Administrative Lender for the
Lenders (the "Administrative Lender") to the extent and in the manner provided
for in the Credit Agreement (defined below and herein so called).
BACKGROUND
A. The Lenders, the Loan Parties, and the Administrative Lender
are parties to that certain Multicurrency Credit Agreement dated as of May 8,
1996 (the "Credit Agreement"; terms defined in the Credit Agreement and not
otherwise defined herein shall be used herein as defined in the Credit
Agreement).
B. The Lenders, the Loan Parties and the Administrative Lender
desire to amend the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the parties
hereto covenant and agree as follows:
1. AMENDMENT. Section 5.18 of the Credit Agreement is hereby
amended to read as follows:
"5.18 Consolidated Funded Debt to Consolidated Excess Cash
Flow Ratio. On the last day of each fiscal quarter, Loan Parties will
not permit the Consolidated Funded Debt to Consolidated Excess Cash
Flow Ratio to exceed 3.25 to 1; provided, however, for purposes of the
determination of the Consolidated Funded Debt to Consolidated Excess
Cash Flow Ratio for the fiscal quarter ending September 27, 1996 and
the three immediately following fiscal quarters there shall be
excluded from the calculation of Consolidated EBITDA the special
charge to be taken against pre-tax earnings of
2
Company for the fiscal quarter ending September 27, 1996 in an amount
not to exceed $96,500,000."
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By
its execution and delivery hereof, each Loan Party represents and warrants
that, as of the date hereof and after giving effect to the amendment
contemplated by the foregoing Section 1:
(a) the representations and warranties contained in the Credit
Agreement are true and correct on and as of the date hereof as made on and as
of such date;
(b) no event has occurred and is continuing which constitutes a
Default or an Event of Default;
(c) it has no claims or offsets against, or defenses or
counterclaims to, its obligations under the Loan Documents;
(d) each Loan Party has full power and authority to execute and
deliver this First Amendment, and this First Amendment and the Credit
Agreement, as amended hereby, constitute the legal, valid and binding
obligations of such Loan Party, enforceable in accordance with their respective
terms, except as enforceability may be limited by applicable debtor relief laws
and by general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and except as rights to indemnity
may be limited by federal or state securities laws; and
(e) no authorization, approval, consent, or other action by,
notice to, or filing with, any governmental authority or other Person, is
required for the execution, delivery or performance by such Loan Party of this
First Amendment.
3. CONDITIONS OF EFFECTIVENESS. This First Amendment shall be
effective as of September 27, 1996, subject to the following:
(a) the Administrative Lender shall have received counterparts of
this First Amendment executed by each Loan Party and the Determining Lenders;
and
(b) the Administrative Lender shall have received, in form and
substance satisfactory to the Administrative Lender and its counsel, such other
documents, certificates and instruments as the Administrative Lender shall
require.
4. GUARANTOR ACKNOWLEDGEMENT. By signing below, each of the
Guarantors (i) acknowledges, consents and agrees to the execution and delivery
of this First Amendment, (ii) acknowledges and agrees that its obligations in
respect of its Guaranty are not released, diminished, waived, modified,
impaired or affected in any manner by this First
- 2 -
3
Amendment or any of the provisions contemplated herein, and (iii) ratifies and
confirms its obligations under its Guaranty.
5. REFERENCE TO CREDIT AGREEMENT.
(a) Upon the effectiveness of this First Amendment, each reference
in the Credit Agreement to "this Agreement", "hereunder", or words of like
import shall mean and be a reference to the Credit Agreement, as affected and
amended by this First Amendment.
(b) The Credit Agreement, as amended by this First Amendment, and
all other Loan Documents executed in connection therewith shall remain in full
force and effect and are hereby ratified and confirmed.
6. COSTS, EXPENSES AND TAXES. The Company agrees to pay on
demand all costs and expenses of the Administrative Lender in connection with
the preparation, reproduction, execution and delivery of this First Amendment
and the other instruments and documents to be delivered hereunder.
7. EXECUTION IN COUNTERPARTS. This First Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
8. GOVERNING LAW: BINDING EFFECT. This First Amendment shall be
governed by and construed in accordance with the laws of the State of Texas and
shall be binding upon each Loan Party, the Administrative Lender, each Lender
and their respective successors and assigns.
9. HEADINGS. Section headings in this First Amendment are
included herein for convenience of reference only and shall not constitute a
part of this First Amendment for any other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS
FIRST AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
- 3 -
4
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as the date first above written.
BORROWER:
DSC COMMUNICATIONS CORPORATION,
a Delaware corporation
By: /s/ XXXXXXXXX X. XXXXX
-----------------------------------
Xxxxxxxxx X. Xxxxx
Vice President and Treasurer
GUARANTORS:
DSC FINANCE CORPORATION,
a Delaware corporation
By: /s/ XXXXXXXXX X. XXXXX
-----------------------------------
Xxxxxxxxx X. Xxxxx
Vice President and Treasurer
DSC INTERNATIONAL CORPORATION,
a Delaware corporation
By: /s/ XXXXXXXXX X. XXXXX
-----------------------------------
Xxxxxxxxx X. Xxxxx
Vice President and Treasurer
- 4 -
5
DSC MARKETING SERVICES, INC.,
a Delaware corporation
By: /s/ XXXXXXXXX X. XXXXX
-----------------------------------
Xxxxxxxxx X. Xxxxx
Vice President and Treasurer
DSC OF PUERTO RICO, INC.,
a Delaware corporation
By: /s/ XXXXXXXXX X. XXXXX
-----------------------------------
Xxxxxxxxx X. Xxxxx
Vice President and Treasurer
DSC TELECOMMUNICATIONS CORPORATION,
a Delaware corporation
By: /s/ XXXXXXXXX X. XXXXX
-----------------------------------
Xxxxxxxxx X. Xxxxx
Treasurer
DSC TELECOM, INC.,
a Nevada corporation
By: /s/ XXXXXXXXX X. XXXXX
-----------------------------------
Xxxxxxxxx X. Xxxxx
Treasurer
- 5 -
6
DSC TELECOM L.P.,
a Texas limited partnership
By: DSC TELECOMMUNICATIONS
CORPORATION, its General Partner
By: /s/ XXXXXXXXX X. XXXXX
--------------------------------
Xxxxxxxxx X. Xxxxx
Treasurer
LENDERS:
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/ XXXXX X. XXXXXX
-----------------------------------
Xxxxx X. Xxxxxx
Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
-----------------------------
- 6 -
7
ABN AMRO BANK N.V. HOUSTON AGENCY
By: ABN AMRO North America, Inc.,
as agent
By: /s/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
-------------------------
Title: Vice President and
Director
------------------------
By: /s/ XXXXXX X. XXXXX
-------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------
Title: Group Vice President and
Director
------------------------
COMMERZBANK AKTIENGESELLSCHAFT,
ATLANTA AGENCY
By: /s/ X. XXXXXX
-----------------------------------
Name: X. Xxxxxx
-----------------------------
Title: Vice President
----------------------------
By: /s/ X. XXXXXXX
-----------------------------------
Name: X. Xxxxxxx
-----------------------------
Title: Vice President
----------------------------
CORESTATES BANK N.A.
By: /s/ XXXXXX X. SOUTHERN
-----------------------------------
Name: Xxxxxx X. Southern
-----------------------------
Title: Vice President
----------------------------
- 7 -
