EXHIBIT 10.30
EXECUTION COPY
AMENDMENT NUMBER 1 TO CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER 1 TO CREDIT AND SECURITY AGREEMENT, dated as of
January 31, 2005 (this "Amendment"), is entered into by and among XXXX
MICROPRODUCTS FUNDING CORPORATION, a Delaware corporation ("Borrower"), XXXX
MICROPRODUCTS INC., a California corporation ("Xxxx Microproducts"), BLUE RIDGE
ASSET FUNDING CORPORATION, a Delaware corporation ("Blue Ridge"), and WACHOVIA
BANK, NATIONAL ASSOCIATION ("Wachovia"). Capitalized terms used and not
otherwise defined herein are used as defined in the Credit and Security
Agreement (as defined below).
WHEREAS, the parties hereto entered into that certain Credit and
Security Agreement, dated as of September 20, 2004 (the "Credit and Security
Agreement");
WHEREAS, the parties hereto desire to amend the Credit and Security
Agreement in certain respects as provided herein;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. Amendment to Section 9.1(h). Effective as of the Effective
Date, Section 9(h) of the Credit and Security Agreement is hereby amended as
follows:
(a) Subclause (i) of Section 9.1(h) is hereby amended to read in its
entirety as follows (solely for convenience, changed language is italicized):
"(i) the three-month rolling average Delinquency Ratio shall
exceed 6.25%,"
(b) Subclause (iii) of Section 9.1(h) is hereby amended to read in its
entirety as follows (solely for convenience, changed language is italicized):
"(iii) the three-month rolling average Dilution Ratio shall
exceed 5.25%,"
SECTION 2. Amendment to Exhibit I. Effective as of the Effective Date,
Exhibit I to the Credit and Security Agreement is hereby amended as follows:
(a) The definition of "Aggregate Commitment" is hereby amended to read
in its entirety as follows (solely for convenience, changed language is
italicized):
"Aggregate Commitment: On any date of determination, the
aggregate amount of the Liquidity Banks' Commitments to make
Loans hereunder. As of the date hereof, the Aggregate
Commitment is $90,000,000."
(b) The definition of "Defaulted Receivable" is hereby amended to read
in its entirety as follows (solely for convenience, changed language is
italicized):
"Defaulted Receivable: A Receivable: (i) as to which the
Obligor thereof has suffered an Event of Bankruptcy; (ii)
which, consistent with the Credit and Collection Policy, would
be written off Borrower's books as uncollectible; or (iii) as
to which any payment, or part thereof, remains unpaid for 91
days or more from the original due date for such payment."
SECTION 3. Effective Date. This Amendment shall become effective as of
the date (the "Effective Date") upon receipt by the Agent of (a) counterparts
hereof duly executed by each of the parties hereto, and (b) a fully earned and
non-refundable facility limit increase fee of $37,500 (the "Facility Limit
Increase Fee") in immediately available funds.
SECTION 4. Miscellaneous.
(a) References in Credit and Security Agreement. Upon the effectiveness
of this Amendment, each reference in the Credit and Security Agreement to "this
Agreement", "hereunder", "hereof", "herein", or words of like import shall mean
and be a reference to the Credit and Security Agreement as amended hereby, and
each reference to the Credit and Security Agreement in any other Transaction
Document or any other document, instrument or agreement, executed and/or
delivered in connection with any Transaction Document shall mean and be a
reference to the Credit and Security Agreement as amended hereby.
(b) Effect on Credit and Security Agreement. Except as specifically
amended hereby, the Credit and Security Agreement shall remain in full force and
effect. This Amendment shall not constitute a novation of the Credit and
Security Agreement, but shall constitute an amendment thereof.
(c) No Waiver. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of any
Person under the Credit and Security Agreement or any other document, instrument
or agreement executed in connection therewith, nor constitute a waiver of any
provision contained therein.
(d) Successors and Assigns. This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
(e) Counterparts. This Amendment may be executed in any number of
counterparts, and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument but all
of which together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page by facsimile shall be effective as
delivery of a manually executed counterpart of this Amendment.
(f) Headings. The descriptive headings of the various sections of this
Amendment are inserted for convenience of reference only and shall not be deemed
to affect the meaning or construction of any of the provisions hereof.
(g) Amendments. This Amendment may not be amended or otherwise modified
except as provided in the Credit and Security Agreement.
(h) GOVERNING LAW. THIS AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE
VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, OTHER THAN THE CONFLICT OF
LAW RULES THEREOF.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date hereof.
XXXX MICROPRODUCTS FUNDING
CORPORATION
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Address: Xxxx Microproducts Funding Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxx X
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
XXXX MICROPRODUCTS INC.
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Address: Xxxx Microproducts Inc.
0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
[additional signatures to follow]
[Signature page to Amendment No. 1 to Credit and
Security Agreement - Xxxx Microproducts]
BLUE RIDGE ASSET FUNDING
CORPORATION
By: Wachovia Capital Markets, LLC,
as Attorney-In-Fact
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Address: Blue Ridge Asset Funding Corporation
c/o Wachovia Bank, National Association
000 Xxxxx Xxxxxxx Xxxxxx, XX-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
WACHOVIA BANK,
NATIONAL ASSOCIATION
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Address: Wachovia Bank, National Association
000 Xxxxxxxxx Xxxxxx, X.X.
22nd Floor, Mail Code GA8088
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
[end of signatures]
[Signature page to Amendment No. 1 to Credit and
Security Agreement - Xxxx Microproducts]
