EXECUTION VERSION
FIFTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), dated as of November 7, 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, as further amended
by that certain Third Amendment to Second Amended and Restated Credit Agreement
dated as of June 17, 1997, and as further amended by that certain Fourth
Amendment to Second Amended and Restated Credit Agreement dated as of September
1, 1997 (as so amended, 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 Agreement 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 so as to
incorporate all of the changes set forth in the comparerite version of the
Credit Agreement attached hereto as Appendix A.
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 amendments set forth in paragraph 2 above on the Fifth
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. Fifth Amendment Effective Date. The amendments effected by paragraph
2 above shall become effective on November 7, 1997 (the "Fifth Amendment
Effective Date"), subject to receipt by the Banks and Agent on or prior to the
Fifth 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 Fifth
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 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
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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 favorable written opinion of Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx, counsel to Borrower, as to such matters as Agent may reasonably
request;
(d) A Certificate of Good Standing (or comparable certificate)
for Borrower, certified as of a recent date prior to the Fifth
Amendment Effective Date by the Secretary of State of California;
(e) Payment of all fees and expenses of Agent's counsel through
the Fifth Amendment Effective Date; and
(f) 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 Fifth 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) 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 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 & CE0
AGENT: SUMITOMO BANK OF CALIFORNIA
As Agent
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
ISSUING BANK: SUMITOMO BANK OF CALIFORNIA,
As Issuing Bank
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
BANKS: SUMITOMO BANK OF CALIFORNIA,
As a Bank
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
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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:
----------------------------------
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/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Sr. VP & Manager
ISSUING BANK: SUMITOMO BANK OF CALIFORNIA,
As Issuing Bank
By: /s/ S.C. BELLICINI
----------------------------------
Name: S.C. BELLICINI
Title: V.P./Deputy Manager
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Sr. VP & Manager
BANKS: SUMITOMO BANK OF CALIFORNIA,
As a Bank
By: /s/ S.C. BELLICINI
----------------------------------
Name: S.C. BELLICINI
Title: V.P./Deputy Manager
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Sr, VP & Manager
0
XXXXX XXXX XX XXXXXXXXXX, N.A.
As a Bank,
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Xxxxx X. Gwynnice President
& Regional Manager
BANKBOSTON, N.A.,
(formerly known as The First National
Bank of Boston), As a Bank
By:
----------------------------------
Name:
Title:
COMERICA BANK-CALIFORNIA
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 Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
COMERICA BANK-CALIFORNIA
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
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
By:
----------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED,
As a Bank
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Manager
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
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