EXECUTION COPY
THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") , dated as of June 17, 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, and as further amended by that certain Second Amendment to Second
Amended and Restated Credit Agreement dated as of September 30, 1996 (the
"Credit Agreement").
B. Borrower has requested the Banks and Agent to amend the Credit
Agreement in certain respects and to increase the revolving line of credit.
C. The Banks and Agent are willing so to amend the Credit Agreement and
increase the revolving line of credit 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 Agreement. Subject to the conditions set forth
in paragraph 4 below, the Credit Agreement is hereby amended as follows:
(a) Subparagraph 2.01 (a) is amended by changing the reference
to the Revolving Loan Maturity Date appearing in the seventh line
thereof from "May 31, 1998" to "May 31, 1999".
(b) Clause (ii) of Subparagraph 5.02 (m) is amended to read in
its entirety as follows:
(ii) Its Working Capital to be less than $55,000,000
at any time;
(c) Clause (iii) of Subparagraph 5.02 (m) is amended to read
in its entirety as follows:
(iii) Its Tangible Net Worth to be less than the sum
on any date of determination of (1) $65,000,000 plus (2) fifty
percent (50%) of the sum of Borrower's Net Income After Tax
for each quarter (excluding any quarter in which such amount
was negative);
(d) Schedule I is amended to read in its entirety as set forth
on Exhibit A attached hereto.
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 Third
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. Third Amendment Effective Date. The amendments effected by paragraph
2 above shall become effective on June 17, 1997 (the "Third Amendment Effective
Date"), subject to receipt by the Banks and Agent on or prior to the Third
Amendment
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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 new Revolving Loan Note made payable to each Bank in an
amount equal to each such Bank's increased Revolving Loan Commitment,
duly executed by Borrower;
(c) A Certificate of the Secretary of Borrower, dated the
Third 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 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;
(d) A Certificate of Good Standing (or comparable certificate)
for Borrower, certified as of a recent date prior to the Third
Amendment Effective Date by the Secretary of State of California;
(e) A written opinion of Wilson, Sonsini, Xxxxxxxx & Xxxxxx,
outside counsel to Borrower, dated the Third Amendment Effective Date
and addressed to Agent and each Bank, in the form of Exhibit B hereto;
and
(f) Payment of all fees and expenses of Agent's counsel
through the Third 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 Third 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
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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) 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: President & CEO
AGENT: SUMITOMO BANK OF CALIFORNIA
As Agent
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: SVP
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: SVP
0
XXXXX XXXX XX XXXXXXXXXX, N.A., As a Bank
As a Bank
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Regional Manager
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
BANKBOSTON, N.A.,
(formerly known as The First National
Bank of Boston), As a Bank
By:
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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
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,
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
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
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/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Manager
By: /s/ J. Xxxxxxx Xxxxxx
----------------------------------------------
Name: J. Xxxxxxx Xxxxxx
Title: Vice President
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