EXHIBIT 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as of
the 28th day of February, 2002, by and among XXXXXX INC., a Delaware corporation
(the "Borrower"), the LENDERS listed on the signature pages hereof, SUNTRUST
BANK, as Syndication Agent (the "Syndication Agent"), FIRSTAR BANK, N.A., as
Documentation Agent (the "Documentation Agent"), and WACHOVIA BANK, N.A., as
Administrative Agent (the "Agent").
R E C I T A L S:
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The Borrower, the Syndication Agent, the Documentation Agent, the Agent and
the Lenders have entered into a certain Credit Agreement dated as of June 21,
2001, as amended by that First Amendment to Credit Agreement dated as of October
31, 2001 (as amended, the "Credit Agreement"). Capitalized terms used in this
Amendment which are not otherwise defined in this Amendment shall have the
respective meanings assigned to them in the Credit Agreement.
The Borrower has requested the Agent and the Lenders to amend the Credit
Agreement as more fully set forth herein. The Lenders, the Agent and the
Borrower desire to amend the Credit Agreement upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the Recitals and the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the Agent and the
Lenders, intending to be legally bound hereby, agree as follows:
SECTION 1. Recitals. The Recitals are incorporated herein by reference and
shall be deemed to be a part of this Amendment.
SECTION 2. Amendments. The Credit Agreement is hereby amended as set forth
in this Section 2.
SECTION 2.1. Section 1.01 of the Credit Agreement is hereby amended by
amending and restating the definitions of "Consolidated EBIT", "Debt" and
"Long-Term Debt" and adding the definition of "Hedging Agreements" to read in
their entirety as follows:
"Consolidated EBIT" for any period means the sum of (i) Consolidated
Net Income for such period, (ii) Consolidated Interest Expense for such
period and (iii) provision for taxes based on income for such period,
provided that (a) in calculating Consolidated Net Income for purposes of
this definition, there shall be excluded (i) non-cash non-recurring charges
of the Borrower in connection with the write-off of Complas, Inc. in the
Fiscal Quarter ended September 30, 2001, in an amount not to exceed
$8,334,000 in the aggregate, (ii) non-recurring charges
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of the Borrower in connection with the Borrower's European and United
States restructuring in the Fiscal Quarters ending March 30, 2002 and June
30, 2002, in an amount not to exceed $3,010,000 in the aggregate, (iii)
non-recurring charges of the Borrower in connection with severance costs in
the Borrower's Communications Division in the Fiscal Quarter ended
September 30, 2001, in an amount not to exceed $543,000 in the aggregate,
and (iv) extraordinary or other non-operating gains and losses, (b) any
Consolidated Subsidiary acquired during such period by the Borrower or any
other Consolidated Subsidiary shall be included on a pro forma, historical
basis as if it had been a Consolidated Subsidiary during such entire
period, and (c) any amounts which would be included in a determination of
Consolidated EBIT for such period with respect to assets acquired during
such period by the Borrower or any Consolidated Subsidiary shall be
included in the determination of Consolidated EBIT for such period and the
amount thereof shall be calculated on a pro forma, historical basis as if
such assets had been acquired by the Borrower or such Consolidated
Subsidiary prior to the first day of such period.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under
capital leases, (v) all obligations of such Person to reimburse any bank or
other Person in respect of amounts payable under a banker's acceptance,
(vi) all Redeemable Preferred Stock of such Person (in the event such
Person is a corporation), (vii) all obligations of such Person to reimburse
any bank or other Person in respect of amounts paid or to be paid under a
letter of credit or similar instrument, (viii) all Debt of others secured
by a Lien on any asset of such Person, whether or not such Debt is assumed
by such Person, (ix) all obligations of such Person with respect to
interest rate protection agreements, foreign currency exchange agreements
or other hedging arrangements ("Hedging Agreements") (valued as the
termination value thereof computed in accordance with a method approved by
the International Swap Dealers Association and agreed to by such Person in
the applicable hedging agreement, if any), (x) all principal amounts
outstanding and owed to parties other than the Borrower or any Subsidiary
under the items described in clause (a) of the definition of Receivables
Program Obligations, (xi) all Debt of others Guaranteed by such Person and
(xii) the principal portion of all obligations of such Person under any
synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is classified
as an operating lease under GAAP.
"Hedging Agreements" has the meaning assigned to it in the definition
of Debt.
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"Long-Term Debt" means any Debt (other than, for purposes of Section
6.13 only, Hedging Agreements) of the Borrower or any Subsidiary having a
maturity of more than 1 year from the date as of which the amount thereof
is to be determined or having a maturity of less than 1 year but by its
terms being renewable or extendible beyond 1 year from such date at the
option of the obligor.
SECTION 2.2. Section 6.10 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
SECTION 6.10 MINIMUM INTEREST COVERAGE. The Interest Coverage Ratio at
the end of each Fiscal Quarter (a) for the period of 4 consecutive Fiscal
Quarters ending on March 31, 2002 and June 30, 2002 will not be equal to or
less than 2.60 to 1.0, (b) for the period of 4 consecutive Fiscal Quarters
ending on September 30, 2002 will not be equal to or less than 2.80 to 1.0
and (c) for the period of 4 consecutive Fiscal Quarters then most recently
ended on or after December 31, 2002 will not be equal to or less than 3.0
to 1.0.
SECTION 3. Conditions to Effectiveness. The effectiveness of this Amendment
and the obligations of the Lenders hereunder are subject to the following
conditions, unless the Required Lenders waive such conditions:
(a) receipt by the Agent from each of the parties hereto of a duly
executed counterpart of this Amendment signed by such party;
(b) the fact that the representations and warranties of the Borrower
contained in Section 5 of this Amendment shall be true on and as of the
date hereof; and
(c) receipt by the Agent from the Borrower for the ratable account of
the Lenders executing this Amendment of fees in an amount equal to 0.075%
times the aggregate amount of the Commitments on the date of this
Amendment.
SECTION 4. No Other Amendment. Except for the amendment set forth above,
the text of the Credit Agreement shall remain unchanged and in full force and
effect. This Amendment is not intended to effect, nor shall it be construed as,
a novation. The Credit Agreement and this Amendment shall be construed together
as a single agreement. Nothing herein contained shall waive, annul, vary or
affect any provision, condition, covenant or agreement contained in the Credit
Agreement, except as herein amended, nor affect nor impair any rights, powers or
remedies under the Credit Agreement as hereby amended. The Lenders and the Agent
do hereby reserve all of their rights and remedies against all parties who may
be or may hereafter become secondarily liable for the repayment of the Notes.
The Borrower promises and agrees to perform all of the requirements, conditions,
agreements and obligations under the terms of the Credit Agreement, as hereby
amended, the Credit Agreement, as hereby amended, being hereby ratified and
affirmed. The Borrower hereby expressly agrees that the Credit Agreement, as
hereby amended, is in full force and effect.
SECTION 5. Representations and Warranties. The Borrower hereby represents
and warrants to each of the Lenders as follows:
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(a) No Default has occurred and is continuing unwaived by the Lenders
on the date hereof.
(b) The Borrower has the power and authority to enter into this
Amendment and to do all acts and things as are required or contemplated
hereunder to be done, observed and performed by it.
(c) This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of the Borrower and
constitutes legal, valid and binding obligations of the Borrower
enforceable against it in accordance with its terms, provided that such
enforceability is subject to general principles of equity and to
bankruptcy, insolvency and similar laws affecting the enforcement of
creditors' rights generally.
(d) The execution and delivery of this Amendment and the Borrower's
performance hereunder do not and will not require the consent or approval
of any regulatory authority or governmental authority or agency having
jurisdiction over the Borrower, nor be in contravention of or in conflict
with the articles of incorporation or bylaws of the Borrower, or the
provision of any statute, or (unless any such contravention or conflict
would not reasonably be expected to have a Material Adverse Effect) any
judgment, order or indenture, instrument, agreement or undertaking, to
which the Borrower is party or by which the Borrower's assets or properties
are or may become bound.
SECTION 6. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
SECTION 7. Governing Law. This Amendment shall be construed in accordance
with and governed by the laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered, or have
caused their respective duly authorized officers or representatives to execute
and deliver, this Amendment as of the day and year first above written.
BORROWER:
XXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxxxx (SEAL)
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Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
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WACHOVIA BANK, N.A., as Administrative
agent and as a Lender
By: /s/ Xxxxx X. Xxxx (SEAL)
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Name: Xxxxx X. Xxxx
Title: Vice President
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SUNTRUST BANK, as Syndication Agent
and as a Lender
By: /s/ Xxxxx X. Dash (SEAL)
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Name: Xxxxx X. Dash
Title: Vice President
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FIRSTAR BANK, N.A., as Documentation
Agent and as a Lender
By: /s/ Xxxx Xxxxxxx (SEAL)
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Name: Xxxx Xxxxxxx
Title: Vice President
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ING BARINGS
By: /s/ B. F. G. Xxxxxx (SEAL)
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Name: B. F. G. Xxxxxx
Title: Treasurer
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COMERICA BANK, as a Lender
By: /s/ Xxxxx Xxxxx (SEAL)
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Name: Xxxxx Xxxxx
Title: Vice President
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THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Xxxxxxx XxXxxxxxx (SEAL)
------------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
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THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender
By: /s/ Xxxxxx X. Xxxxx (SEAL)
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Name: Xxxxxx X. Xxxxx
Title: Joint General Manager and
Group Head
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Consented and agreed to by:
BELDEN COMMUNICATIONS COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx (SEAL)
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
BELDEN WIRE & CABLE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx (SEAL)
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
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