EXECUTION VERSION
SECOND AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), dated as of July 21, 1999, 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 Restated Credit Agreement referred to in Recital A below (the
"Banks");
(3) CALIFORNIA BANK & TRUST, a California banking corporation,
as administrative agent for the Banks (in such capacity,
"Administrative Agent"); and
(4) UNION BANK OF CALIFORNIA, N.A., a national banking
association ("UBOC"), as collateral agent for the Banks (in such
capacity, "Collateral Agent").
RECITALS
A. Borrower, the Banks, Administrative Agent and Collateral Agent are
parties to a Third Amended and Restated Credit Agreement dated as of November
12, 1998, as amended by that certain First Amendment to Third Amended and
Restated Credit Agreement dated as of May 13, 1999 (as amended, the "Restated
Credit Agreement").
B. Borrower has requested Administrative Agent, Collateral Agent and
the Banks to amend the Restated Credit Agreement in certain respects.
C. Borrower, the Banks, Administrative Agent and Collateral Agent are
willing so to amend the Restated 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, Administrative Agent and Collateral 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 Restated Credit Agreement, as
amended by this Amendment. The rules of construction set forth in Section I of
the Restated Credit Agreement shall, to the extent not inconsistent with the
terms of this Amendment, apply to this Amendment and are hereby incorporated by
reference.
2. Amendment to Credit Agreement. Subject to the conditions set forth
in paragraph 4 below, the Restated Credit Agreement is hereby amended as
follows:
(a) Subparagraph 2.01(a) is hereby amended by changing the
reference to "May 30, 2000" set forth therein to "July 30, 2000".
(b) Clause (vi) of Subparagraph 5.02(m) is hereby amended to
read in its entirety as follows:
(vi) Its Interest Coverage Ratio (A) for the three
quarter period beginning on April 1, 1998 and ending on
December 31, 1998 to be less than 2.00 to 1.00; and (B) for
any consecutive four-quarter period thereafter to be less than
2:00 to 1:00; provided, however, that for the consecutive
four-quarter period ending on June 30, 1999, Borrower's
Interest Coverage Ratio shall not be less than 1.80 to 1.00;
or
3. Representations and Warranties. Borrower hereby represents and
warrants to Administrative Agent, Collateral Agent and the Banks that, on the
date of this Amendment and after giving effect to the amendments set forth in
paragraph 2 above on the Effective Date (as defined below), the following are
and shall be true and correct:
(a) The representations and warranties set forth in Paragraph
4.01 of the Restated Credit Agreement are true and correct in all
material respects;
(b) No Default or Event of Default has occurred and is
continuing; and
(c) Each of the Credit Documents is in full force and effect.
4. Effective Date. The amendments to the Restated Credit Agreement
effected by paragraph 2 above shall become effective on July 21, 1999 (the
"Effective Date"), subject to receipt by the Banks, Administrative Agent and
Collateral Agent on or prior to the Effective Date of the following, each in
form and substance satisfactory to the Banks, Administrative Agent, Collateral
Agent and their respective counsel:
(a) This Amendment duly executed by Borrower, the Banks,
Administrative Agent and Collateral Agent;
(b) A letter in the form of Attachment A hereto appropriately
completed, dated the Effective Date and duly executed by each
Guarantor;
(c) A nonrefundable amendment fee equal to Twenty Six Thousand
Dollars ($26,000.00) to be shared equally among the Banks; and
(d) Such other evidence as Administrative Agent, Collateral
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.
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5. Effect of this Amendment. On and after the Effective Date, each
reference in the Restated Credit Agreement and the other Credit Documents to the
Restated Credit Agreement shall mean the Restated Credit Agreement as amended
hereby. Except as specifically amended above, (a) the Restated 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, Administrative Agent or
Collateral Agent, nor constitute a waiver of any provision of the Restated
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) Headings. Headings in this Amendment are for convenience
of reference only and are not part of the substance hereof.
(c) Governing 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 Banks, Administrative Agent and
Collateral Agent have caused this Amendment to be executed as of the day and
year first above written.
BORROWER: XXXX MICROPRODUCTS INC.
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
ADMINISTRATIVE AGENT: CALIFORNIA BANK & TRUST,
As Administrative Agent
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
COLLATERAL AGENT: UNION BANK OF CALIFORNIA, N.A.,
As Collateral Agent
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
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BANKS: CALIFORNIA BANK& TRUST,
As a Bank
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
As a Bank
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
SANWA BANK CALIFORNIA,
As a Bank
By:__________________________________
Name:
Title:
COMERICA BANK - CALIFORNIA,
As a Bank
By:__________________________________
Name:
Title:
5
U.S. BANK NATIONAL ASSOCIATION,
As a Bank
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
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ATTACHMENT A
FORM OF GUARANTOR CONSENT LETTER
July 21, 1999
TO: ADMINISTRATIVE AGENT,
As Administrative Agent for the Banks
and the Agents under the Restated
Credit Agreement referred to below
1. Reference is made to the following:
(a) The Third Amended and Restated Credit Agreement dated as
of November 12, 1998, among Borrower, the Banks and Administrative
Agent, as amended by that certain First Amendment to Third Amended and
Restated Credit Agreement dated as of May 13, 1999 (as amended, the
"Restated Credit Agreement");
(b) [The Xxxx Canada Guaranty, dated as of November 12, 0000
(xxx " Xxxx Xxxxxx Guaranty"),] [The Xxxx-Tenex Guaranty, dated as of
November 20, 1998 (the "Xxxx-Tenex Guaranty"),] executed by the
undersigned ("Guarantor") in favor of the Banks and Administrative
Agent; and
(c) The Second Amendment to Third Amended and Restated Credit
Agreement, dated as of July 21, 1999, among Borrower, the Banks,
Administrative Agent and Collateral Agent (the "Second Amendment");
2. Guarantor hereby confirms that it is a wholly-owned subsidiary of
[Xxxx Microproducts Inc., a California corporation] [Xxxx Microproducts Canada
Inc., a California corporation ("Xxxx Canada") and that Xxxx Canada is a
wholly-owned subsidiary of Xxxx Microproducts Inc., a California corporation].
3. Guarantor hereby consents to the Second Amendment, including without
limitation, the extension of the Revolving Loan Maturity Date from May 31, 2000
to July 31, 2000. Guarantor expressly agrees that the Second Amendment shall in
no way affect or alter the rights, duties, or obligations of Guarantor, the
Banks or Administrative Agent under the [Xxxx Canada Guaranty] [Xxxx-Tenex
Guaranty].
4. Pursuant to the [Xxxx Canada Guaranty] [Xxxx-Tenex Guaranty],
Guarantor continues to guaranty the payment when due of, inter alia, all loans,
advances, debts, liabilities and obligations, however arising, owed by the
Borrower to any Agent or any Bank of every kind and description now existing or
hereafter arising pursuant to the terms of the Restated Credit Agreement as
amended by this Second Amendment or any of the other Credit Documents.
5. [The Security Agreement, dated as of November 20, 1998 between Xxxx
Microproducts Canada - Tenex Data ULC and Administrative Agent (the "Security
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Agreement") and any other security granted to any Agent or any of the Banks from
time to time as security for the obligations of the Guarantor under the
Xxxx-Tenex Guaranty (in each case as such security may be amended, modified,
restated, replaced, supplemented, acknowledged or confirmed from time to time)
remains in full force and effect and unamended, and the security interests,
mortgages, charges, liens, assignments, transfers and pledges granted by
Guarantor in favor of any Agent and the Banks pursuant to the Security Agreement
and such other documents (if any) continue to extend to all debts, liabilities
and obligations, present or future, direct or indirect, absolute or contingent,
matured or unmatured, at any time due or accruing due, of Guarantor to any of
the Banks and any Agent arising under, in connection with or pursuant to the
Restated Credit Agreement, the other Credit Documents and the Xxxx-Tenex
Guaranty, as acknowledged and confirmed by this Guarantor Consent Letter,
notwithstanding the amendment of the Restated Credit Agreement by the Second
Amendment.]
6. From and after the date hereof, the term "Restated Credit Agreement"
as used in the [Xxxx-Canada Guaranty] [Xxxx-Tenex Guaranty] shall mean the
Restated Credit Agreement, as amended by the Second Amendment.
7. Guarantor's consent to the Second Amendment shall not be construed
(i) to have been required by the terms of the [Xxxx Canada Guaranty] [Xxxx-Tenex
Guaranty] or any other document, instrument or agreement relating thereto or
(ii) to require the consent of Guarantor in connection with any future amendment
of the Restated Credit Agreement or any other Credit Document.
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IN WITNESS WHEREOF, Guarantor has executed this Guarantor Consent
Letter as of the day and year first written above.
[XXXX/MICROPRODUCTS CANADA-TENEX DATA ULC]
[XXXX MICROPRODUCTS CANADA INC.]
By: ____________________________
Name:_______________________
Title:________________________
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