EXHIBIT 10.2
EXECUTION COPY
AMENDMENT AGREEMENT
to a
DEM 280,000,000
FACILITIES AGREEMENT
in relation to a
MULTI-CURRENCY REVOLVING CREDIT FACILITY
and
BILATERAL ANCILLARY FACILITIES
dated 23 December 1998
between
WAVETEK ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, INC.
as Borrower
and
WANDEL & GOLTERMANN TECHNOLOGIES, INC.
as Guarantor
and
COMERZBANK AKTIENGESELLSCHAFT
and
DEUTSCHE BANK AG
as Joint-Arrangers
and
COMMERZBANK INTERNATIONAL S.A.
as Agent
and
OTHERS
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THIS AMENDMENT AGREEMENT is made the 28th day of May, 1999
BETWEEN
(1) WAVETEK ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, INC., a Delaware Corporation, Research Triangle
Park, North Carolina, USA as borrower (hereinafter referred to as the
"BORROWER"),
(2) WANDEL & GOLTERMANN TECHNOLOGIES, INC., a North Carolina Corporation,
Research Triangle Park, North Carolina, USA as guarantor (hereinafter
referred to as the "GUARANTOR"),
(3) COMMERZBANK INTERNATIONAL S.A. as Agent for the Banks (hereinafter referred
to as the "AGENT"),
(4) THE BANKS named in the First Schedule of the Agreement (hereinafter
referred to as the "BANKS" and each individually as a "BANK"),
(5) DEUTSCHE BANK AG, REUTLINGEN BRANCH as additional party under the Ancillary
Facilities to be made between Deutsche Bank AG, Reutlingen Branch and the
Borrower in accordance with the Agreement (hereinafter referred to as the
"ADDITIONAL LENDER").
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement
"AGREEMENT" means the Facilities Agreement in relation to a Multi-Currency
Revolving Credit Facility and Bilateral Ancillary Facilities dated 23
December 1998 between the Borrower, the Guarantor, the Arrangers, the Agent
and Others.
"AMENDMENT AGREEMENT" means this Agreement.
"EFFECTIVE DATE" means the date on which the Agent confirms to the Banks
and the Borrower that it has received each of the documents listed in
Schedule A (CONDITION PRECEDENT DOCUMENTS) in form and substance
satisfactory to the Agent.
1.2 INCORPORATION OF DEFINED TERMS
Terms defined in the Agreement shall, unless otherwise defined herein, have
the same meaning herein and the principles of construction set out in the
Agreement shall have effect as if they were set out in full in this
Amendment Agreement.
1.3 CLAUSES
In this Amendment Agreement any reference to a "Clause" or "Schedule" is,
unless the context otherwise requires, a reference to a Clause or a
Schedule hereof. Clause headings are for ease of reference only.
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2. AMENDMENT OF THE AGREEMENT
With effect from the Effective Date the Agreement shall be amended in
accordance with this Amendment Agreement so that it shall be read and
construed for all purposes together with this Amendment Agreement as one
document.
3. AMENDMENTS
3.1 FINANCIAL COVENANT
Clause 20 (A) (2) of the Agreement shall be deleted and the following
provision shall be inserted as a new paragraph (A) (2) of this Clause 20.
"the Interest Coverage Ratio (to be tested on a Rolling Basis) in respect
of any Relevant Period calculated shall be not less than 1.7:1 for testing
at June 30, 1999 and thereafter not less than 2.0:1 for the fiscal year
ended September 30, 1999 and thereafter for testing at December 31, 1999
and thereafter not less than 2.1:1 for testing at March 31, 2000 and
thereafter not less than 2.3:1 for testing at June 30, 2000 and thereafter
not less than 2.5:1 for the fiscal year ended September 30, 2000 and
thereafter."
3.2 UTILISATION FEE AND PAYMENT
Clause 22 shall be amended by adding a new subparagraph (C) which shall
read as follows.
"For the period beginning at June 1, 1999 and ending September 30, 1999,
the Borrower shall pay a utilisation fee to the Agent for account of the
Banks (to be distributed by the Agent to the Banks pro rata according to
their commitments) of 0.6 per cent. of the average utilisation calculated
on a daily basis of the Facilities (for the avoidance of doubt including
the Ancillary Facilities) during the period. For this purpose each Bank
will make available the relevant data relating to the Ancillary Facilities
to the Agent not later than 5 Business Days after the end of such period.
The Borrower shall pay the utilisation fee on the earlier of (i) the date
which falls two Business Days after the Borrower has received the net
proceeds out of any events referred to in Clause 9 (D), first sentence and
(ii) the Final Maturity Date."
3.3 REPAYMENT AND PREPAYMENT
Clause 9 (D) of the Agreement shall be deleted and the following provision
shall be inserted as a new paragraph (D) of this Clause 9.
"To the extent the Revolving Loan exceeds the amount of DM 95,000,000 (the
"EXCEEDING AMOUNT") the Borrower shall apply any net proceeds (to the
extent such net proceeds are not to be applied towards the payment of the
utilisation fee pursuant to Clause 22 (C)) from any monies raised by the
Group in the national or international equity or capital markets (via an
IPO, a private equity placement, a public or private
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bond offering or otherwise) to prepay the Exceeding Amount. Any such
amounts to be applied towards the prepayment of the Revolving Loan shall
be paid to the Agent and the Agent shall deposit such amounts on behalf
of the Banks in an interest bearing account and shall (save to the
provisions of Article 10) be applied (including accrued interest thereon)
on the last day of the then relevant current Interest Period towards the
prepayment of any outstanding Advances PRO RATA."
4. REPRESENTATIONS
Each of the Obligors repeats the representations set out in Clause 18
(REPRESENTATIONS AND WARRANTIES) of the Agreement as if each reference
therein to "this Agreement" or "the Facility Documents" includes a
reference to this Amendment Agreement.
5. CONTINUITY AND FURTHER ASSURANCE
5.1 CONTINUING OBLIGATIONS
The provisions of the Agreement shall, save as amended hereby, continue in
full force and effect.
5.2 FURTHER ASSURANCE
Each of the Borrower and the Guarantor shall, at the request of the Agent
and at its own expense, do all such acts and things necessary or desirable
to give effect to the amendments effected or to be effected pursuant to
this Amendment Agreement.
6. FEES, COSTS AND EXPENSES
6.1 TRANSACTION EXPENSES
Each Obligor shall, on demand of the Agent, reimburse the Agent and the
Banks for all reasonable costs and expenses (including internal legal fees)
together with any VAT or similar tax thereon incurred by or in connection
with the negotiation, preparation and execution of this Amendment Agreement
and the completion of the transactions herein contemplated.
6.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Obligors shall, from time to time on demand of the Agent, reimburse the
Agent and the Banks for all costs and expenses (including legal fees) on a
full indemnity basis together with any VAT or similar tax thereon incurred
by or in connection with the preservation and/or the enforcement of any of
the rights of the Agent and/or the Banks under this Amendment Agreement and
any other document referred to in this Amendment Agreement.
6.3 STAMP TAX
The Obligors shall pay all stamp, registration and other taxes to which
this Amendment Agreement, any other document referred to in this Amendment
Agreement or any judgement given in connection herewith is or at any time
may be subject and shall, from time to time on demand of the Agent,
indemnify the Agent and/or the Banks against any liabilities, costs, claims
and expenses resulting from any failure to pay or any delay in paying any
such tax.
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7. MISCELLANEOUS
7.1 INCORPORATION OF TERMS
The provisions of Clause 27 (PARTIAL INVALIDITY) and Clause 28 (AMENDMENTS
AND WAIVERS) of the Agreement shall be incorporated into this Amendment
Agreement as if set out in full herein and as if references therein to
"this Agreement" or "the Facility Documents" were references to this
Amendment Agreement.
7.2 COUNTERPARTS
This Amendment Agreement may be executed in any number of counterparts,
each of which shall constitute an original.
AS WITNESS the hands of duly authorised representatives of the parties hereto
the day and year first before written.
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SCHEDULE A
CONDITION PRECEDENT DOCUMENTS
1. In relation to each of the Obligors:
An Officer's Certificate executed by duly authorised officers of such
Obligor
(a) confirming that there have been no changes to the documents set out in
Section I (CORPORATE DOCUMENTS/AUTHORIZATIONS) and Section IV (OTHER
DOCUMENTS) of The Second Schedule to the Agreement provided by such
Obligor on or about 23 December 1998 in accordance with Clause 4
(Conditions Precedent, Notice of Borrowing and Determination of
Tranche B) thereof; and
(b) setting out the names and signatures of the persons authorised to sign
on behalf of such Obligor this Amendment Agreement and to sign or
dispatch all documents and notices to be signed and/or dispatched by
it under or in connection with this Amendment Agreement.
2. A legal opinion in form and substance satisfactory to the Agent of
(a) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ relating to the Borrower confirming in particular
(i) that the Borrower has duly authorised, executed and delivered the
Amendment Agreement and that such action does not violate the laws of
the United States of America and the relevant States and (ii) there is
nothing in such laws pursuant to which the Amendment Agreement would
not constitute valid and binding obligations of the Borrower; and
(b) ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ relating to the Guarantor confirming in particular (i)
that the Guarantor has duly authorised, executed and delivered the
Amendment Agreement and that such action does not violate the laws of
the United Stated of America and the relevant States and (ii) there is
nothing in such laws pursuant to which the Amendment Agreement would
not constitute valid and binding obligations of the Guarantor.
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THE BORROWER
WAVETEK ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
Tel.: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
By:
THE GUARANTOR
WANDEL & GOLTERMANN TECHNOLOGIES, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
Tel.: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
By:
THE AGENT
COMMERZBANK INTERNATIONAL S.A.
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel.: ▇▇▇▇▇ ▇▇▇▇▇▇-▇
Fax: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇
By:
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THE BANKS
COMMERZBANK AKTIENGESELLSCHAFT, REUTLINGEN BRANCH
Unter den Linden 1
D-72762 Reutlingen
Tel.: ▇▇▇▇ ▇▇▇▇ ▇▇▇-▇
Fax: ▇▇▇▇ ▇▇▇▇ ▇▇▇-▇▇▇
By:
DEUTSCHE BANK LUXEMBOURG S.A.
▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel.: ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ or -292
Fax: ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇
By:
BADEN WURTTEMBERGISCHE BANK AG, REUTLINGEN BRANCH
▇▇▇▇▇▇▇▇▇▇ ▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel.: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇-▇▇
Fax: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇-▇▇
By:
LANDESBANK BADEN-WURTTEMBERG
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
D-70173 Stuttgart
Tel.: ▇▇▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
By:
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THE ADDITIONAL LENDER
DEUTSCHE BANK AG, REUTLINGEN BRANCH
Kaiserpassage 1
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel.: ▇▇▇▇ ▇▇▇▇ ▇▇▇-▇▇▇
Fax: ▇▇▇▇ ▇▇▇▇ ▇▇▇-▇▇▇
By:
For the purpose of the Protocol annexed to the Convention on Jurisdiction and
the Enforcement in Civil and Commercial Matters signed in Brussels on 27
September 1968 (as amended) we hereby expressly and specially confirm our
agreement with the provisions of Article 33 (B) of the Facilities Agreement
which provides for our submission to the non-exclusive jurisdiction of the
Regional Court (LANDGERICHT) in Frankfurt am Main.
COMMERZBANK INTERNATIONAL S.A.
By:
DEUTSCHE BANK LUXEMBOURG S.A.
By: