EXHIBIT 10.01
AMENDMENT No. 3
TO
AMENDED AND RESTATED WORKING CAPITAL FINANCING AND TERM LOAN AGREEMENT
This third Amendment ("Amendment") to the Amended and Restated Working
Capital and Term Loan Agreement is made as of May 12, 1997 by and between
Radius, Inc., a California corporation ("Customer") and IBM Credit
Corporation, a Delaware corporation ("IBM Credit").
RECITALS:
A. Customer and IBM Credit have entered into that certain Amended and
Restated Working Capital Financing and Term Loan Agreement dated as of August
30, 1996 (as amended, supplemented or otherwise modified from time to time,
the "Agreement").
B. Customer has requested that a certain change be made to the Section
V. Special Definitions of Attachment A to the Agreement.
C. IBM Credit is willing to accommodate Customer's request subject to
the conditions set forth below.
AGREEMENT
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Customer and IBM Credit hereby agree as follows:
Section 1. Definitions. All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Agreement.
Section 2. Amendment. The Agreement is hereby amended as follows:
Attachment A to the Amended and Restated Working Capital Financing and
Term Loan Agreement is hereby amended by deleting such Attachment A in its
entirety and substituting, in lieu thereof, the Attachment A attached hereto.
Such new Attachment A shall be effective as of the date specified in the new
Attachment A. The change contained in the new Attachment A is a change in the
definition of Spalsh Collateral Value in respect to when the Base Per-Share
Value will be considered $0.
Section 4. Representations and Warranties. Customer makes to IBM Credit the
following representations and warranties all of which are material and are
made to induce IBM Credit to enter into this Amendment.
Section 4.1 Accuracy and Completeness of Warranties and Representations. All
representations made by Customer in the Agreement were true and accurate and
complete in every respect as of the date made, and, as amended by this
Amendment, all representations made by Customer in the Agreement are true,
accurate and complete in every material respect as of the date hereof, and do
not fail to disclose any material fact necessary to make representations not
misleading.
Section 4.2 Violation of Other Agreements. The execution and delivery of
this Amendment and the performance and observance of the covenants to be
performed and observed hereunder do not violate or cause Customer not to be
in compliance with the terms of any agreement to which Customer is a party.
Section 4.3 Litigation. Except as has been disclosed by Customer to IBM
Credit in writing, there is no litigation, proceeding, investigation or labor
dispute pending or threatened against Customer, which if adversely
determined, would materially adversely affect Customer's ability to perform
Customer's obligations under the Agreement and the other documents,
instruments and agreements executed in connection therewith or pursuant
hereto.
Section 4.4 Enforceability of Amendment. This Amendment has been duly
authorized, executed and delivered by Customer and is enforceable against
Customer in accordance with its terms.
Section 5. Ratification of Agreement. Except as specifically amended hereby,
all of the provisions of the Agreement shall remain unamended and in full
force and effect. Customer hereby, ratifies, confirms and agrees that the
Agreement, as amended hereby, represents a valid and enforceable obligation
of Customer, and is not subject to any claims, offsets or defenses.
Section 6. Governing Law. This Amendment shall be governed by and
interpreted in accordance with the laws which govern the Agreement.
Section 7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one agreement.
IN WITNESS WHEREOF, this Amendment has been executed by duly authorized
officers of the undersigned as of the day and year first above written.
Radius, Inc. IBM CREDIT CORPORATION
By:_________________________________ By:_______________________________
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx Xxxxxxx
Title: SVP and CFO Title: Manager, Working Capital
Practices
ATTEST: ATTEST:
___________________________________ ___________________________________
Print Name: Xxxx Xxx Print Name: Xxxx X. Xxxxxx III
