Exhibit 10m-2
SECOND AMENDMENT
This SECOND AMENDMENT dated as of October 25, 2002 (this "Amendment"),
is made by and among (a) XXXXXX CORPORATION, a Massachusetts corporation (the
"Borrower"), having its principal place of business at Xxx Xxxxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxx 00000, (b) the direct and indirect Subsidiaries of the
Borrower listed as Guarantors on the signature pages hereto (the "Guarantors"),
(c) FLEET NATIONAL BANK, a national banking association, as agent (in such
capacity the "Agent") for the Banks referred to below; and (d) FLEET NATIONAL
BANK and the other financial institutions from time to time parties to the
Credit Agreement referred to below (collectively, the "Banks"). Terms defined in
the Credit Agreement referred to below that are not otherwise defined herein
shall have the respective meanings assigned to such terms in the Credit
Agreement.
WHEREAS, the Borrower, the Banks and the Agent are parties to that
certain Multicurrency Revolving Credit Agreement dated as of December 8, 2000
(as amended as of September 7, 2001 and as further amended, modified,
supplemented or restated and in effect from time to time, the "Credit
Agreement"); and
WHEREAS, the Borrower has requested that the Credit Agreement be
amended in order to reduce the Commitment and to modify certain covenants
therein; and
WHEREAS, the Agent and the Banks have agreed, subject to the terms and
conditions set forth in this Amendment, to an amendment to provide for such
modification;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ss.1. Amendments to the Credit Agreement.
(a) Section 8.3 of the Credit Agreement is hereby amended by restating
the covenant in its entirety as follows:
8.3 Restrictions on Investments. The Borrower will not, and
will not permit any of its Subsidiaries to, make or permit to exist or
to remain outstanding any Investment except Investments in the
following (each of which categories shall be interpreted as being
separately permitted, notwithstanding any overlap among such
categories):
(a) Investments described in Section 3.0 of the Borrower's
Investment Policy as promulgated on June 19, 2002 and provided to the
Agent and the Banks in October, 2002.
(b) Investments existing on the date hereof (including
existing Investments in the Foreign Subsidiaries and Joint Ventures)
and listed on Schedule 8.3 hereto;
(c) Investments with respect to Indebtedness permitted by
ss.8.1(f);
(d) (i) Investments by the Guarantors consisting of the
Guaranty, (ii) Investments by any Subsidiary in the Borrower, (iii)
Investments by the Borrower in any Guarantor, (iv) Investments in World
Properties not to exceed $750,000 at any time outstanding, and (v)
Investments made after the Closing Date in the Foreign Subsidiaries not
to exceed $15,000,000 at any time outstanding;
(e) Investments made after the Closing Date in Joint Ventures
in an aggregate amount not to exceed $30,000,000 at any time
outstanding;
(f) Investments in respect of Guarantied JV/Foreign
Indebtedness permitted by ss.8.1(i);
(g) Investments in respect of guaranties by the Borrower or
any of its Domestic Subsidiaries of contractual obligations (not
constituting Indebtedness) of Foreign Subsidiaries or Joint Ventures
requiring payments in any fiscal year in excess of $500,000 ("Material
JV/Foreign Contracts"); provided that the aggregate amount of required
payments under all such guarantied Material JV/Foreign Contracts shall
not exceed $5,000,000 in any fiscal year of the Borrower;
(h) Investments consisting of promissory notes received as
proceeds of asset dispositions permitted by ss.8.5.2;
(i) Investments consisting of loans and advances to employees
or former employees for moving, entertainment, travel and other similar
expenses in the ordinary course of business not to exceed $1,500,000 in
the aggregate at any time outstanding;
(j) Investments in respect of mergers, consolidations and
acquisitions permitted by ss.8.5.1; and
(k) Investments other than as permitted by clauses (a) through
(j) above; provided that the aggregate amount of all such Investments
at any time outstanding shall not exceed three and one-half percent
(3.5%) of Consolidated Tangible Net Worth at such time.
For the avoidance of doubt, the foregoing restrictions shall not apply
to investments made by any Guaranteed Pension Plan or Multiemployer Plan or
so-called "Rabbi Trust" established for the benefit of directors or executives
of the Borrower (or former executives or directors).
For the avoidance of further doubt, any amendment to or revision of
Section 3.0 of the investment policy described in paragraph (a) of this ss.8.3
must, prior to its becoming effective for purposes of the Credit Agreement, be
consented to and approved in strict compliance with the provisions of ss.25 of
the Credit Agreement.
(b) Paragraph (f) of Section 8.5.2 of the Credit Agreement is hereby amended by
restating the covenant in its entirety as follows:
(f) the Borrower or any Subsidiary may sell or otherwise
dispose of all or any part of its stock or its assets to any other
Person; provided that the aggregate value on the books of the Borrower
and its Subsidiaries of the assets so sold or otherwise disposed of
(including any dispositions of the assets or stock of World Properties
pursuant to ss.8.11) shall not exceed (i) ten percent (10%) of
Consolidated Tangible Assets in any fiscal year of the Borrower, as
determined on the last day of the previous fiscal year, and (ii)
twenty-five percent (25%) of Consolidated Tangible Assets in the
aggregate during the term of this Credit Agreement, as determined on
December 31, 2000 (it being understood that prior to December 31, 2000
the Borrower shall be required to comply only with the requirements of
subclause (i) of this proviso with respect to such dispositions) (it is
also understood that, in lieu of the limitation in subclause (i) of
this proviso relating to dispositions of stock and/or assets, in the
Borrower's fiscal year in which the Borrower completes the sale of its
Moldable Composites Division dispositions shall not exceed the
aggregate sum of $24,000,000. For the avoidance of doubt, the
requirements of subclause (ii) shall continue to apply.); and
(c) The Credit Agreement is further amended by deleting Schedule 1 and replacing
it with the amended form of Schedule 1 attached to this Amendment as Exhibit A,
although the parties hereto acknowledge that the Borrower continues to have the
unilateral right to reduce the Commitment pursuant to Section 2.3 of this Credit
Agreement
ss.2. Guarantors' Consent. Each of the Guarantors hereby consents to
the amendments to the Credit Agreement set forth in this Amendment, and each
confirms its obligation to the Agent and the Banks under its Guaranty and agrees
that its guaranty of the Obligations thereunder shall extend to and include the
Credit Agreement as amended by this Amendment.
ss.3. Representations, Warranties and Covenants; No Default;
Authorization. The Borrower and the Guarantors hereby represent, warrant and
covenant to the Agent and the Banks as follows:
(a) each of the representations and warranties of the Borrower and the
Guarantors contained in the Credit Agreement and the other Loan Documents was
true as of the date as of which it was made and is true as and at the date of
this Amendment (except to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate do not have a Material Adverse Effect, and to the extent that such
representations and warranties relate expressly to an earlier date), and after
giving effect to this Amendment, no Default or Event of Default has occurred and
is continuing;
(b) this Amendment has been duly authorized, executed and delivered by
each of the Borrower and Guarantors and is in full force and effect; and
(c) upon the execution and delivery of this Amendment by the respective
parties hereto, this Amendment shall constitute the legal, valid and binding
obligation of the Borrower and the Guarantors, enforceable in accordance with
its terms, except that the enforceability thereof may be subject to any
applicable bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally.
ss.4. Conditions to Effectiveness. The effectiveness of this Amendment
shall be subject to the satisfaction of the condition that this Amendment shall
have been duly executed and delivered by the Borrower, each Guarantor, the Agent
and the Majority Banks.
ss.5. Ratification, etc. Except as expressly amended hereby, the Credit
Agreement and each of the other Loan Documents are hereby ratified and confirmed
in all respects. All references in the Credit Agreement or any related agreement
or instrument to the Credit Agreement shall hereafter refer to the Credit
Agreement as amended hereby.
ss.6. No Implied Waiver. Nothing contained herein shall constitute a
waiver of, impair or otherwise affect any Obligations, any other obligations of
any of the Borrower or Guarantors or any right of the Agent or any Bank
consequent thereon.
ss.7. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
ss.8. Governing Law. THIS AMENDMENT SHALL FOR ALL PURPOSES BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OR CHOICE OF LAW).
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as a sealed instrument as of the date first above written.
Borrower: XXXXXX CORPORATION
By: /s/Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Secretary
Guarantors: XXXXXX X-X CORP.
By: /s/Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Treasurer
and Secretary
TL PROPERTIES, INC.
By: /s/Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Treasurer
and Secretary
ROGERS SPECIALTY MATERIALS
CORPORATION
By: /s/Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Treasurer
and Secretary
ROGERS JAPAN INC.
By: /s/Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Treasurer
and Secretary
ROGERS SOUTHEAST ASIA, INC.
By: /s/Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Treasurer
and Secretary
ROGERS TAIWAN, INC.
By: /s/Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Treasurer
and Secretary
ROGERS KOREA, INC.
By: /s/Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Treasurer
and Secretary
ROGERS TECHNOLOGIES
SINGAPORE, INC.
By: /s/Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Treasurer
and Secretary
ROGERS CIRCUIT MATERIALS
INCORPORATED
By: /s/Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Treasurer
and Secretary
ROGERS CHINA, INC.
By: /s/Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Treasurer
and Secretary
Agent and Banks: FLEET NATIONAL BANK,
individually and as Agent
By: Xxxxxx X Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
CITIZENS BANK OF CONNECTICUT
By: /s/Xxxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
EXHIBIT A
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SCHEDULE 1
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Banks; Commitments; Commitment Percentages
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Bank; Address;
Domestic Lending Office; Commitment
Eurodollar Lending Office Percentage Commitment
------------------------- ---------- ----------
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Fleet National Bank
000 Xxxxxxx Xxxxxx, XX XX 00000X 60.0% $30,000,000
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
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Citizens Bank of Connecticut
00 Xxxxx Xxxxx Xxxxxx 40.0% $20,000,000
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxxx
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TOTAL 100% $50,000,000
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