THIRD AMENDMENT TO
CREDIT AGREEMENT
This Third Amendment to Credit Agreement is entered into as of this
19th day of May, 2000, by and between COMERICA BANK, a Michigan banking
corporation ("Bank"), with offices at One Detroit Center, 000 Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and SIMPLE TECHNOLOGY, INC., a California
corporation ("Company"), whose principal office is located at 0000 Xxxxxxx
Xxxxxx, Xxxxx Xxx, XX 00000.
RECITALS:
A. Bank and Company entered into a certain Credit Agreement
dated as of August 3, 1999 as amended by a First Amendment to Credit
Agreement and a Second Amendment to Credit Agreement (the "Agreement"),
B. The parties desire to further amend the Agreement, upon the
following terms and conditions.
NOW THEREFORE, for good and valuable consideration, the parties
agree as follows:
1. Section 1.29 of the Agreement is hereby amended and
restated in its entirety as follows:
"1.29 `Facility Amount' shall mean, as of any date, the lesser
of (a) the Formula Amount; or (b) $22,500,000 (inclusive of amounts
advanced under the Canadian Subfacility)."
2. Clause (b) of Section 1.31 of the Agreement is hereby
amended and restated in its entirety as follows:
"(b) in the case of the Facility the sum (without duplication)
of (1) eighty percent (80%) of the Eligible Accounts Receivable, plus
(2) eighty percent (80%) of the Eligible Foreign Accounts Receivable
not to exceed $3,000,000, plus (3) the lesser of eighty percent (80%)
of the Orderly Liquidation Value of the Eligible Inventory or
$12,000,000."
3. Company hereby ratifies and reaffirms the representations,
warranties and covenants set forth in the Agreement.
4. Company certifies that no Event of Default or Default (as
defined in the Agreement) has occurred and is continuing.
5. Company represents and warrants that its Articles of
Incorporation and Bylaws delivered to Bank as of March __, 2000 in connection
with the Agreement, are in full force and effect and have not been modified,
repealed or amended since the date thereof.
6. If any provision of this Amendment shall be held invalid or
unenforceable, such invalidity or unenforceability shall affect only such
provision and shall not in any manner affect or render invalid or
unenforceable any other provision of this Amendment, and this Amendment shall
be enforced as if any such invalid or unenforceable provision were not
contained herein.
7. Except as specifically amended hereby, the Agreement shall
remain unchanged and shall be in full force and effect, enforceable in
accordance with its terms.
8. This Amendment shall be effective upon (a) delivery to Bank
of this Amendment, executed by an authorized officer of Borrower together
with a duly authorized, executed and delivered Note in the face amount of
Twenty Two Million Five Hundred Thousand Dollars ($22,500,000); (b) payment
to Bank of an amendment fee in the amount of Nine Thousand Three Hundred
Seventy Five Dollars ($9,375), which fee shall be deemed fully earned by Bank
upon its execution of this Amendment and not refundable under any
circumstances.
9. Borrower agrees to pay all of Bank's costs and expenses
(including attorneys fees and expenses) incurred in connection with the
Agreement and/or this Amendment within fifteen (15) days of being presented
with an invoice therefor.
IN WITNESS WHEREOF, this Amendment has been executed as of the day
first stated above.
SIMPLE TECHNOLOGY, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
Its: Chief Executive Officer
COMERICA BANK
By: /s/ Xxxx X. Xxxxx
Its: Vice President
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