EXHIBIT 10.9
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(MULTICURRENCY)
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(MULTICURRENCY) (the "Amendment"), dated as of December 12, 1997, is entered
into by and between STANFORD TELECOMMUNICATIONS, INC. (the "Borrower") and BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (the "Bank").
RECITALS
A. The Borrower and the Bank are parties to an Amended and Restated
Credit Agreement (Multicurrency) dated as of December 20, 1995, as amended by a
First Amendment to Amended and Restated Credit Agreement (Multicurrency) dated
as of December 5, 1996 (as so amended, the "Credit Agreement"), pursuant to
which the Bank has extended certain credit facilities to the Borrower.
B. The Borrower has requested that the Bank agree to certain amendments
of the Credit Agreement.
C. The Bank is willing to amend the Credit Agreement, subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement shall be amended at
the defined term "Availability Period" by amending and restating such defined
term as follows:
"'Availability Period': the period commencing on the date of
this Agreement and ending on the date that is the earlier to
occur of (a) December 18, 1998, and (b) the date on which the
Bank's commitment to extend credit hereunder terminates. "
(b) Section 1.01 of the Credit Agreement shall be amended at
the defined term "Final Maturity Date" by amending and restating such defined
term as follows:
"'Final Maturitv Date': (a) in respect of any Advances,
December 18, 1998;
(b) in respect of any commercial letters of credit, June 18,
1999;
(c) in respect of any standby letters of credit, December 17,
1999;
(d) in respect of any Bank Guaranties, December 17, 1999; and
(e) in respect of any acceptances, June 18, 1999."
3. Representations and Warranties. The Borrower hereby represents and
warrants to the Bank as follows:
(a) No Default or Event of Default has occurred and is
continuing.
(b) That certain resolution of the Board of Directors of the
Borrower dated March 28, 1991, which authorizes the credit facilities provided
under the Credit Agreement remains in full force and effect. The execution,
delivery and performance by the Borrower of this Amendment have been duly
authorized by all necessary corporate and other action and do not and will not
require any registration with, consent or approval of, notice to or action by,
any person (including any governmental authority) in order to be effective and
enforceable. The Credit Agreement as amended by this Amendment constitutes the
legal, valid and binding obligations of the Borrower, enforceable against it in
accordance with its respective terms, without defense, counterclaim or offset.
(c) All representations and warranties of the Borrower
contained in the Credit Agreement are true and correct.
(d) The Borrower is entering into this Amendment on the basis
of its own investigation and for its own reasons, without reliance upon the Bank
or any other person.
4. Effective Date. This Second Amendment will become effective as of
the date first above written (the "Effective Date"), provided that the Bank has
received from the Borrower a duly executed original (or, if elected by the Bank,
an executed facsimile copy) of this Amendment.
5. Reservation of Rights. The Borrower acknowledges and agrees that the
execution and delivery by the Bank of this Amendment shall not be deemed to
create a course of dealing or otherwise obligate the Bank to forbear or execute
similar amendments under the same or similar circumstances in the future.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants
and provisions of the Credit Agreement are and shall remain in full force and
effect and all references therein to such Credit Agreement shall henceforth
refer to the Credit Agreement as amended by this Amendment. This Amendment shall
be deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns. No third party baneficiaries are intended in connection with this
Amendment.
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of California.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each of
the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Bank of a facsimile transmitted document purportedly bearing
the signature of the Borrower shall bind the Borrower with the same force and
effect as the delivery of a hard copy original. Any failure by the Bank to
receive the hard copy executed original of such document shall not diminish the
binding effect of receipt of the facsimile transmitted executed original of such
document which hard copy page was not received by the Bank.
(e) This Amendment, together with the Credit Agreement,
contains the entire and exclusive agreement of the parties hereto with reference
to the matters discussed herein and therein. This Amendment supersedes all prior
drafts and communications with respect thereto. This Amendment may not be
amended or mod)fied except in writing executed by both of the parties hereto.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(g) Borrower covenants to pay to or reimburse the Bank, upon
demand, for all reasonable costs and expenses (including allocated costs of
in-house counsel) incurred in connection with the development, preparation,
negotiation, execution and delivery of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
STANFORD TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
