EXHIBIT 10.6
XXXXXX ELECTRONICS CORPORATION
THIRD AMENDMENT
TO REVOLVING CREDIT AGREEMENT (MULTI-YEAR FACILITY)
This THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT (MULTI-YEAR
FACILITY) (this "Amendment") is dated as of September 19, 2000 and entered into
by and among XXXXXX ELECTRONICS CORPORATION, a Delaware corporation (the
"Borrower"), the financial institutions listed on the signature pages hereof
(the "Banks"), BANK OF AMERICA, N.A., as the administrative agent for the Banks
(in such capacity the "Administrative Agent"), XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as the syndication agent (in such capacity the "Syndication Agent")
and CITICORP USA, INC. and THE CHASE MANHATTAN BANK, as documentation agents
(the "Documentation Agents") and is made with reference to that certain Amended
and Restated Revolving Credit Agreement (Multi-Year Facility) dated as of
November 24, 1999, as amended (as so amended, the "Credit Agreement"), by and
among the Borrower, the lending institutions identified therein, the
Administrative Agent, the Syndication Agent and the Documentation Agents.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Borrower and Banks desire to amend the Credit Agreement to
revise certain negative financial covenants of Borrower;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
1. AMENDMENT TO SECTION 8 OF THE CREDIT AGREEMENT: NEGATIVE COVENANTS OF
BORROWER
Subsection 8.5(b) is hereby amended by changing the table contained
therein by replacing the Maximum Leverage Ratio for the quarter ending September
30, 2000 from 5.00 to 5.75.
2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Amendment
Effective Date"):
(A) On or before the Amendment Effective Date, Borrower shall deliver
to the Banks (or to the Administrative Agent for the Banks with sufficient
originally executed copies, where appropriate, for each Bank and its counsel)
copies of this Amendment dated the Amendment Effective Date executed by
Borrower, the Majority Banks and the Administrative Agent.
(B) All fees and other amounts due to the Administrative Agent,
Syndication Agent, Documentation Agents, Arranger and any Bank through the
Amendment Effective Date from Borrower shall have been received by such person.
3. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Banks to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, Borrower represents and warrants
to each Bank that the following statements are true, correct and complete:
(A) Corporate Power and Authority. Borrower has all requisite
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corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "Amended Agreement").
(B) Authorization of Agreements. The execution and delivery of this
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Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of Borrower.
(C) No Contravention. There is no charter, by-law, or capital stock
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provision of Borrower and no provision of any indenture or material agreement,
written or oral, to which Borrower is a party or under which Borrower is
obligated, nor is there any statute, rule or regulation, or any judgment, decree
or order of any court or agency binding on Borrower which would be contravened
by the execution, delivery and performance of any provision, condition, covenant
or other term of this Amendment or the Amended Agreement.
(D) Binding Obligation. This Amendment and the Amended Agreement are
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the legal, valid and binding obligation of Borrower, enforceable against it in
accordance with their terms, and any instrument or agreement required hereunder
or by the Amended Agreement, when executed and delivered, will be similarly
valid, binding and enforceable.
(E) Incorporation of Representations and Warranties From Credit
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Agreement. The representations and warranties contained in Section 6 of the
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Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Amendment Effective Date to the same extent as though
made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true,
correct and complete in all material respects on and as of such earlier date.
(F) Absence of Default. After giving effect to this Amendment, no
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event has occurred and is continuing or will result from the consummation of the
transactions contemplated by this Amendment that would constitute an Event of
Default or a Unmatured Event of Default.
4. MISCELLANEOUS
(A) Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
2
(i) On and after the Amendment Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other documents entered pursuant to the Credit Agreement to the "Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other documents entered pursuant to the Credit Agreement shall
remain in full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of the
Administrative Agent or any Bank under, the Credit Agreement or any of the other
Loan Documents.
(B) Fees and Expenses. Borrower acknowledges that all costs, fees
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and expenses as described in subsection 11.14 of the Credit Agreement incurred
by the Arranger, the Administrative Agent and their counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall be for
the account of Borrower.
(C) Headings. Section and subsection headings in this Amendment
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are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
(D) California Law. The interpretation, enforcement and effect of
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this Amendment shall be governed and controlled in all respects by and construed
according to the substantive laws of the State of California.
(E) Counterparts; Effectiveness. This Amendment may be executed
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in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment (other than the
provisions of Section 1 hereof, the effectiveness of which is governed by
Section 2 hereof) shall become effective upon the execution of a counterpart
hereof by Borrower and Majority Banks and receipt by Borrower and the
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
XXXXXX ELECTRONICS CORPORATION
By:___________________________________
Name:
Title:
S-1
BANK OF AMERICA, N.A., as
Administrative Agent
By:___________________________________
Name:
Title:
S-2
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Syndication Agent and a Bank
By:___________________________________
Name:
Title:
S-3
CITICORP USA, INC., as Documentation
Agent and a Bank
By:___________________________________
Name:
Title:
S-4
THE CHASE MANHATTAN BANK, as
Documentation Agent and a Bank
By:___________________________________
Name:
Title:
S-5
BANK OF AMERICA, N.A., as a Bank
By:___________________________________
Name:
Title:
S-6
BANKERS TRUST COMPANY
By:___________________________________
Name:
Title:
S-7
CREDIT SUISSE FIRST BOSTON
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
S-8
THE MITSUBISHI TRUST AND
BANKING CORPORATION, NEW YORK BRANCH
By:___________________________________
Name:
Title:
S-9
TORONTO-DOMINION (TEXAS), INC.
By:___________________________________
Name:
Title:
S-10
BANCA DI ROMA - SAN FRANCISCO
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
X-00
XXX XXXX XX XXX XXXX
By:___________________________________
Name:
Title:
S-12
CIBC INC.
By:___________________________________
Name:
Title:
S-13
ING LEASE INTERNATIONAL EQUIPMENT
FINANCE B.V.
By:___________________________________
Name:
Title:
S-14
DEUTSCHE BANK AG NEW YORK AND/OR CAYMAN
ISLANDS BRANCHES
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
X-00
XXXX XXX, XX
By:___________________________________
Name:
Title:
S-16
ALLFIRST BANK
By:___________________________________
Name:
Title:
S-17
THE FUJI BANK, LIMITED
By:___________________________________
Name:
Title:
S-18
THE INDUSTRIAL BANK OF JAPAN, LIMITED
LOS ANGELES AGENCY
By:___________________________________
Name:
Title:
S-19
SANPAOLO IMI SpA
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
X-00
XXXXX XXXX XX XXXXXXXXXX, N.A.
By:___________________________________
Name:
Title:
S-21
BANK HAPOALIM B.M.
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
S-22
THE FUJI BANK, LIMITED
By:___________________________________
Name:
Title:
S-23
MERCANTILE BANK NATIONAL ASSOCIATION
By:___________________________________
Name:
Title:
X-00
XXXXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, XXX XXXX BRANCH
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
S-25
