EXECUTION COPY
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), dated as of September 30, 1996, 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 (the "Credit Agreement").
B. Borrower has requested the Banks and Agent to amend the Credit
Agreement in certain respects.
C. The Banks and Agent are willing so to amend the Credit Agreement
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
Aqreement 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) Clause (i) of Subparagraph 5.02 (m) is amended to read in
its entirety as follows:
(i) Its Quick Ratio to be less than 0.50 to 1.00 at
any time;
(b) Clause (iv) of Subparagraph 5.02.(m) is amended to read
in its entirety as follows:
(iv) Its Leverage Ratio to be greater than 2.50 to
1.00 at any time;
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 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. Amendment Effective Date. The amendments effected by paragraph 2
above shall become effective on September 30, 1996 (the "Amendment Effective
Date"), subject to receipt by the Banks and Agent on or prior to the Amendment
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 Certificate of the Secretary of Borrower, dated the
Amendment Effective Date, certifying that (i) the Certificate of
Incorporation and Bylaws of Borrower, in the form 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 and (ii)
that attached thereto are true and correct copies of resolutions duly
2
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; and
(c) 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 and the other Credit Documents.
5. Effect of this Amendment. On and after the 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 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) Headings. 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.
3
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 and Chairman of the
Board
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:
4
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/ XXXX XXXXXXX
-------------------------------------------
Name: Remo Caness
Title: Vice President of Finance
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:
4
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: Vice President
By: /s/ X. XXXXX XXXXXX
-------------------------------------------
Name: X. Xxxxx Warden
Title: Sr. Vice President
BANKS: SUMITOMO BANK OF .CALIFORNIA,
As a Bank
By: /s/ S.C. BELLICINI
-------------------------------------------
Name: S.C. Bellicini
Title: Vice President
By: /s/ X. XXXXX XXXXXX
-------------------------------------------
Name: X. Xxxxx Warden
Title: Sr. Vice President
4
UNION BANK OF CALIFORNIA, N.A.,
As a Bank
By: /s/ XXXXX X. XXXXX
---------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Regional Manager
By: /s/ XXXXX X. XXXXXXXXX
---------------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
By:
---------------------------------------------------
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
By:
---------------------------------------------------
Name:
Title:
By:
---------------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
By: /s/ XXX X XXXXXX
---------------------------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
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
By:
---------------------------------------------------
Name:
Title:
By:
---------------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
By:
---------------------------------------------------
Name:
Title:
COMERICA BANK CALIFORNIA,
As a Bank
By: /s/ XXXXX X. XXXXX
---------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant 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
By:
---------------------------------------------------
Name:
Title:
By:
---------------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
By:
---------------------------------------------------
Name:
Title:
COMERICA BANK CALIFORNIA,
As a Bank
By:
---------------------------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED,
As a Bank
By: /s/ J. XXXXXXX XXXXXX
---------------------------------------------------
Name: J. Xxxxxxx Xxxxxx
Title: Assistant Vice President
By: /s/ XXXXXX X. XXXXX
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
5
