EXECUTION COPY
FOURTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), dated as of September 1, 1997, is entered into by and among:
(1) XXXX MICROPRODUCTS INC., a California corporation
("Borrower");
(2) Each of the financial institutions listed in Schedule I to the
Credit Agreement referred to in Recital A below (collectively, the "Banks"); and
(3) SUMITOMO BANK OF CALIFORNIA, a California banking corporation,
as agent for the Banks (in such capacity, "Agent") .
RECITALS
A. Borrower, the Banks and Agent are parties to a Second Amended and
Restated Credit Agreement dated as of May 23, 1995, as amended by that certain
First Amendment to Second Amended and Restated Credit Agreement dated as of June
25, 1996, as further amended by that certain Second Amendment to Second Amended
and Restated Credit Agreement dated as of September 30, 1996, and as amended by
that certain Third Amendment to Second Amended and Restated Credit Agreement
dated as of June 17, 1997 (the "Credit Agreement") .
B. Borrower has requested the Banks and Agent to amend the Credit
Agreement in certain respects.
C. The Banks and Agent are willing so to amend the_Credit Agreement
upon the terms and subject to the conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower, the Banks and Agent hereby agree as follows:
1. Definitions, Interpretation. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other capitalized terms used herein shall have the
respective meanings
given to those terms in the Credit Agreement, as amended by this Amendment. The
rules of construction set forth in Section I of the Credit Aqreement shall, to
the extent not inconsistent with the terms of this Amendment, apply to this
Amendment and are hereby incorporated by reference.
2. Amendments to Credit Aqreement. Subject to the conditions set forth
in paragraph 4 below, the Credit Agreement is hereby amended by amending clause
(ii) of Subparagraph 2.01(c) to read in its entirety as follows:
(ii) During such periods as such Revolving Loan is a Revolving
LIBOR Loan, at a rate per annum equal at all times during each Interest
Period for such Revolving LIBOR Loan to the LIB0 Rate for such Interest
Period plus one and four-tenths percent (1.400%);
3. Representations and Warranties. Borrower hereby represents and
warrants to Agent and the Banks that, on the date of this Amendment and after
giving effect to the amendment set forth in paragraph 2 above on the Fourth
Amendment Effective Date (as defined below), the following are and shall be true
and correct on each such date:
(a) The representations and warranties set forth in Paragraph
4.01 of the Credit Agreement are true and correct in all material
respects;
(b) No Event of Default or Default has occurred and is
continuing; and
(c) Each of the Credit Documents is in full force and effect.
4. Fourth Amendment Effective Date. The amendments effected by
paragraph 2 above shall become effective on September 1, 1997 (the "Fourth
Amendment Effective Date"), subject to receipt by the Banks and Agent on or
prior to the Fourth Amendment Effective Date of the following, each in form and
substance satisfactory to the Banks, Agent and their respective counsel
(a) This Amendment duly executed by Borrower, each Bank and
Agent;
(b) A Certificate of the Secretary of Borrower, dated the
Fourth Amendment Effective Date, certifying (i) that the Certificate of
Incorporation and Bylaws of Borrower, in the forms delivered to Agent
on the Effective Date, are in full force and effect and have not been
amended, supplemented, revoked or repealed since such date; (ii) that
attached thereto are true and correct copies of resolutions duly
adopted by the Board of Directors of Borrower and continuing in
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effect, which authorize the execution, delivery and performance by
Borrower of this Amendment and the consummation of the transactions
contemplated hereby; (iii) that there are no proceedings for the
dissolution or liquidation of Borrower (commenced or threatened); and
(iv) the incumbency, signatures and authority of the officers of
Borrower authorized to execute, deliver and perform the Amendment;
(c) A Certificate of Good Standing (or comparable certificate)
for Borrower, certified as of a recent date prior to the Fourth
Amendment Effective Date by the Secretary of State of California;
(d) Payment of all fees and expenses of Agent's counsel
through the Fourth Amendment Effective Date; and
(g) Such other evidence as Agent or any Bank may reasonably
request to establish the accuracy and completeness of the
representations and warranties and the compliance with the terms and
conditions contained in this Amendment.
5. Effect of this Amendment. On and after the Fourth Amendment
Effective Date, each reference in the Credit Agreement and the other Credit
Documents to the Credit Agreement shall mean the Credit Agreement as amended
hereby. Except as specifically amended above, (a) the Credit Agreement and the
other Credit Documents shall remain in full force and effect and are hereby
ratified and confirmed and (b) the execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power, or remedy of the Banks or Agent, nor constitute a waiver of
any provision of the Credit Agreement or any other Credit Document.
6. Miscellaneous.
(a) Counterparts. This Amendment may be executed in any number
of identical counterparts, any set of which signed by all the parties
hereto shall be deemed to constitute a complete, executed original for
all purposes.
(b) Headinqs. Headings in this Amendment are for convenience
of reference only and are not part of the substance hereof.
(c) Governinq Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
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IN WITNESS WHEREOF, Borrower, the Agent and the Banks have caused this
Amendment to be executed as of the day and year first above written.
BORROWER: XXXX MICROPRODUCTS INC.
By: /s/ W. Xxxxxx Xxxx
----------------------------------
Name: W. Xxxxxx Xxxx
Title: Chairman, President & CEO
AGENT: SUMITOMO BANK OF CALIFORNIA
As Agent
By:
----------------------------------
Name:
Title:
By:
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Name:
Title:
BANKS: SUMITOMO BANK OF CALIFORNIA
As a Bank
By:
----------------------------------
Name:
Title:
By:
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Name:
Title:
IN WITNESS WHEREOF, Borrower, the Agent and the Banks have caused this
Amendment to be executed as of the day and year first above written.
BORROWER: XXXX MICROPRODUCTS INC.
By:
----------------------------------
Name:
Title:
AGENT: SUMITOMO BANK OF CALIFORNIA
As Agent
By: /S/ S.C. BELLICINI
----------------------------------
Name: S.C. BELLICINI
Title: V.P./DEPUTY MANAGER
By: /S/ X. XXXXX XXXXXX
----------------------------------
Name: X. XXXXX WARDEN
Title: SR X.X.
XXXXX: SUMITOMO BANK OF CALIFORNIA
As a Bank
By: /S/ S.C. BELLICINI
----------------------------------
Name: S.C. BELLICINI
Title: V.P./DEPUTY MANAGER
By: /S/ X. XXXXX XXXXXX
----------------------------------
Name: X. XXXXX WARDEN
Title: SR V.P.
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UNION BANK OF CALIFORNIA, N.A.,
As a Bank
By: ???
----------------------------------
Name: ???
Title: ???
By: /s/ XXXXX X. XXXXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
BANKBOSTON, N.A.,
(formerly known as The First National
Bank of Boston), As a Bank
By:
----------------------------------
Name:
Title:
COMERICA BANK-CALIFORNIA
As a Bank
By:
----------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED
As a Bank
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
0
XXXXX XXXX XX XXXXXXXXXX, N.A.,
As a Bank
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
BANKBOSTON, N.A.,
(formerly known as The First National
Bank of Boston), As a Bank
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Name: XXXXXX X. XXXXXX
Title: Director
COMERICA BANK-CALIFORNIA
As a Bank
By:
----------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED
As a Bank
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
0
XXXXX XXXX XX XXXXXXXXXX, N.A.,
As a Bank
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
BANKBOSTON, N.A.,
(formerly known as The First National
Bank of Boston), As a Bank
By:
----------------------------------
Name:
Title:
COMERICA BANK-CALIFORNIA
As a Bank
By: /S/ XXXXX X. XXXXX
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED
As a Bank
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
0
XXXXX XXXX XX XXXXXXXXXX, N.A.,
As a Bank
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
BANKBOSTON, N.A.,
(formerly known as The First National
Bank of Boston), As a Bank
By:
----------------------------------
Name:
Title:
COMERICA BANK-CALIFORNIA
As a Bank
By:
----------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED
As a Bank
By: /S/ XXXXX XXXXXX
----------------------------------
Name: Xxxxx Xxxxxx
Title: ??????
By: /S/ J. XXXXXXX XXXXXX
----------------------------------
Name: J. Xxxxxxx Xxxxxx
Title: Vice President
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