EXHIBIT 10.6
EXECUTION VERSION
SEVENTH AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), dated as of June 22, 2000, 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 Restated Credit Agreement referred to in Recital A below (the
"Banks");
(3) CALIFORNIA BANK & TRUST, a California banking corporation,
as administrative agent for the Banks (in such capacity,
"Administrative Agent"); and
(4) UNION BANK OF CALIFORNIA, N.A., a national banking
association ("UBOC"), as collateral agent thereunder (in such capacity,
"Collateral Agent").
RECITALS
A. Borrower, the Banks, Administrative Agent and Collateral Agent are
parties to a Third Amended and Restated Credit Agreement dated as of November
12, 1998, as amended by (i) that certain First Amendment to Third Amended and
Restated Credit Agreement dated as of May 13, 1999, (ii) that certain Second
Amendment to Third Amended and Restated Credit Agreement dated as of July 21,
1999, (iii) that certain Waiver and Third Amendment to Third Amended and
Restated Credit Agreement dated as of October 15, 1999, (iv) that certain Fourth
Amendment to Third Amended and Restated Credit Agreement dated as of December 8,
1999, (v) that certain Fifth Amendment to Third Amended and Restated Credit
Agreement dated as of December 31, 1999 and (vi) that certain Sixth Amendment to
Third Amended and Restated Credit Agreement dated as of May 15, 2000 (as
amended, the "Restated Credit Agreement").
B. Borrower has requested Administrative Agent, Collateral Agent and
the Banks to amend the Restated Credit Agreement in certain respects.
C. The Banks, Administrative Agent and Collateral Agent are willing so
to amend the Restated 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, Administrative Agent and Collateral 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 Restated Credit Agreement, as
amended by this Amendment. The rules of construction set forth in Section I of
the Restated Credit Agreement 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 Restated Credit Agreement. Subject to the satisfaction
of the conditions set forth in paragraph 4 below, the Restated Credit Agreement
is hereby amended as follows:
(a) Subparagraph 5.02(c) of the Restated Credit Agreement is
hereby amended to read in its entirety as follows:
(c) Asset Dispositions. Neither Borrower nor any of its
Subsidiaries shall sell, lease, transfer or otherwise dispose of any of
its assets or property, whether now owned or hereafter acquired, except
in the ordinary course of its business. Notwithstanding the foregoing,
Xxxx-Future Tech may sell accounts receivable to TCFC pursuant to the
Accounts Receivable Purchase Agreement; provided that the total amount
of Indebtedness of Xxxx-Future Tech thereunder or of the Borrower
pursuant to any guaranty thereof does not exceed $5,000,000 at any time
beginning 60 days after the Seventh Amendment Effective Date.
(b) Schedule 1.01 of the Restated Credit Agreement is hereby
amended by adding thereto, in the appropriate alphabetical order, the
following definitions:
"Accounts Receivable Purchase Agreement" shall mean that
certain Agreement for the Purchase, Sale and Servicing of Account
Receivables, to be dated as of June 20, 2000, between TCFC and
Xxxx-Future Tech, without regard to any amendment thereof unless
Required Lenders shall have consented to such amendment.
"Seventh Amendment Effective Date" shall mean June 22, 2000.
"TCFC" shall mean Transamerica Commercial Finance Corporation,
a Delaware corporation.
(c) Schedule 1.01 of the Restated Credit Agreement is hereby
amended by changing the definition of "Permitted Liens" set forth
therein by (i) deleting the word "and" at the end of clause (l)
thereof, (ii) adding thereto, immediately following clause (l), a new
clause (m) to read in its entirety as follows, (iii) changing the
designation of the current clause (m) to "(n)":
(m) Liens on accounts of Xxxx-Future Tech that are
sold to Transamerica Commercial Finance Corporation pursuant
to the Accounts Receivable Purchase Agreement; provided that
the total amount of Indebtedness of Xxxx-Future Tech
thereunder or of the Borrower pursuant to any guaranty thereof
does not exceed $5,000,000 at any time beginning 60 days after
the Seventh Amendment Effective Date.
(d) Schedule 1.01 of the Restated Credit Agreement is hereby
further amended by changing the definition of "Permitted Indebtedness"
set forth therein by (i) deleting the word "and" at the end of clause
(h) thereof, (ii) adding thereto, immediately following clause (h), a
new clause (i) to read in its entirety as follows, (iii) changing the
designation of the current clause (i) to "(j)":
(i) Indebtedness of Xxxx-Future Tech arising under
the Accounts Receivable Purchase Agreement and Indebtedness of
the Borrower pursuant to any guaranty thereof; provided that
the total amount of Indebtedness of Xxxx-Future Tech
thereunder or of the Borrower pursuant to any guaranty thereof
does not exceed $5,000,000 at any time beginning 60 days after
the Seventh Amendment Effective Date.
3. Representations and Warranties. Borrower hereby represents and
warrants to Administrative Agent, Collateral 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 Seventh 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 Restated 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. Effective Date. The amendments to the Restated Credit Agreement
effected by paragraph 2 above shall become effective on June ____, 2000 (the
"Seventh Amendment Effective Date"), subject to receipt by the Banks,
Administrative Agent and Collateral Agent, as applicable, on or prior to the
Seventh Amendment Effective Date of the following, each in form and substance
satisfactory to the Banks, Administrative Agent, Collateral Agent and their
respective counsel, as applicable:
(a) This Amendment duly executed by Borrower, each Bank,
Administrative Agent and Collateral Agent;
(b) A letter in the form of Appendix 1 hereto appropriately
completed, dated the Seventh Amendment Effective Date and duly executed
by each Guarantor;
(c) Such other evidence as Administrative Agent, Collateral
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.
5. Effect of this Amendment. On and after the Seventh Amendment
Effective Date, each reference in the Restated Credit Agreement and the other
Credit Documents to the Restated Credit Agreement shall mean the Restated Credit
Agreement as amended hereby. Except as specifically consented to or amended
above, (a) the Restated 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, Administrative Agent or Collateral Agent, nor constitute a waiver of
any provision of the Restated 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.
IN WITNESS WHEREOF, Borrower, Administrative Agent, Collateral 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:
By:__________________________________
Name:
Title:
ADMINISTRATIVE AGENT: CALIFORNIA BANK & TRUST,
As Administrative Agent
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
COLLATERAL AGENT: UNION BANK OF CALIFORNIA, N.A.,
As Collateral Agent
By:__________________________________
Name:
Title:
BANKS: CALIFORNIA BANK& TRUST,
As a Bank
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
As a Bank
By:__________________________________
Name:
Title:
SANWA BANK CALIFORNIA,
As a Bank
By:__________________________________
Name:
Title:
COMERICA BANK - CALIFORNIA,
As a Bank
By:__________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
As a Bank
By:__________________________________
Name:
Title:
IBM CREDIT CORPORATION,
As a Bank
By:__________________________________
Name:
Title:
APPENDIX 1
FORM OF GUARANTOR CONSENT LETTER
June [__], 2000
TO: ADMINISTRATIVE AGENT,
As Administrative Agent for the Banks
and the Agents under the
Restated Credit Agreement referred to below
1. Reference is made to the following:
(d) The Third Amended and Restated Credit Agreement dated
as of November 12, 1998, among Borrower, the Banks,
Administrative Agent and Collateral Agent, as amended
by that certain First Amendment to Third Amended and
Restated Credit Agreement dated as of May 13, 1999,
that certain Second Amendment to Third Amended and
Restated Credit Agreement dated as of July 21, 1999,
that certain Waiver and Third Amendment to Third
Amended and Restated Credit Agreement dated as of
October 15, 1999, that certain Fourth Amendment to
Third Amended and Restated Credit Agreement dated as
of December 8, 1999, that certain Fifth Amendment to
Third Amended and Restated Credit Agreement dated as
of December 31, 1999 and that certain Sixth Amendment
to Third Amended and Restated Credit Agreement dated
as of May 15, 2000 (as amended, the "Restated Credit
Agreement");
(e) [The Xxxx Canada Guaranty, dated as of November 12,
0000 (xxx " Xxxx Xxxxxx Guaranty"),] [The Xxxx-Tenex
Guaranty, dated as of November 20, 1998 (the
"Xxxx-Tenex Guaranty"),] [The Xxxx-Future Tech
Guaranty, dated as of November ____, 1999 (the
"Xxxx-Future Tech Guaranty"),] [The Xxxxx Data
Guaranty, dated as of May 15, 2000 (the "Xxxxx Data
Guaranty"),] [The Xxxxx Europe Guaranty, dated as of
May 15, 2000 (the "Xxxxx Europe Guaranty"),] executed
by the undersigned ("Guarantor") in favor of the
Banks and Collateral Agent; and
(f) The Seventh Amendment to Third Amended and Restated
Credit Agreement, dated as of June [___], 2000, among
Borrower, the Banks, Administrative Agent and
Collateral Agent (the "Seventh Amendment");
8. Guarantor hereby confirms that it is a wholly-owned subsidiary
of [Xxxx Microproducts Inc., a California corporation] [Xxxx
Microproducts Canada Inc., a California corporation ("Xxxx
Canada") and that Xxxx Canada is a wholly-owned subsidiary of
Xxxx Microproducts Inc., a California corporation] [Xxxxx
Data, Inc., a Minnesota corporation ("Xxxxx Data") and that
Xxxxx Data is a wholly-owned subsidiary of Xxxx Microproducts
Inc., a California corporation].
9. Guarantor hereby consents to the Seventh Amendment. Guarantor
expressly agrees that the Seventh Amendment shall in no way
affect or alter the rights, duties, or obligations of
Guarantor, the Banks or Collateral Agent under the [Xxxx
Canada Guaranty] [Xxxx-Tenex Guaranty] [Xxxx-Future Tech
Guaranty] [Xxxxx Data Guaranty] [Xxxxx Europe Guaranty].
10. Pursuant to the [Xxxx Canada Guaranty] [Xxxx-Tenex Guaranty]
[Xxxx-Future Tech Guaranty] [Xxxxx Data Guaranty] [Xxxxx
Europe Guaranty], Guarantor reaffirms and continues its
guaranty of the payment when due of, inter alia, all loans,
advances, debts, liabilities and obligations, however arising,
owed by the Borrower to any Agent or any Bank of every kind
and description now existing or hereafter arising pursuant to
the terms of the Restated Credit Agreement as amended by the
Seventh Amendment or any of the other Credit Documents.
11. The [Pledge] [Security] Agreement, dated as of [November 20,
1998][July 21, 1999] [May 15, 2000] executed by Guarantor in
favor of Collateral Agent (the "[Pledge] [Security]
Agreement") and any other security granted to any Agent or any
of the Banks from time to time as security for the obligations
of Guarantor under the [Xxxx Canada Guaranty] [Xxxx-Tenex
Guaranty] [Xxxx-Future Tech Guaranty] [Xxxxx Data Guaranty]
[Xxxxx Europe Guaranty] remains in full force and effect and
unamended, and the security interests, mortgages, charges,
liens, assignments, transfers and pledges granted by Guarantor
pursuant to the [Pledge] [Security] Agreement and such other
documents (if any) continue to extend to all debts,
liabilities and obligations, present or future, direct or
indirect, absolute or contingent, matured or unmatured, at any
time due or accruing due, of Guarantor to any of the Banks and
any Agent arising under, in connection with or pursuant to the
Restated Credit Agreement and the other Credit Documents, as
acknowledged and confirmed by this Guarantor Consent Letter,
notwithstanding the amendment of the Restated Credit Agreement
by the Seventh Amendment.
12. From and after the date hereof, the term "Restated Credit
Agreement" as used in the [Xxxx-Canada Guaranty] [Xxxx-Tenex
Guaranty] [Xxxx-Future Tech Guaranty] [Xxxxx Data Guaranty]
[Xxxxx Europe Guaranty] shall mean the Restated Credit
Agreement, as amended by the Seventh Amendment.
13. Guarantor's consent to the Seventh Amendment shall not be
construed (i) to have been required by the terms of the [Xxxx
Canada Guaranty] [Xxxx-Tenex Guaranty] [Xxxx-Future Tech
Guaranty] [Xxxxx Data Guaranty] [Xxxxx Europe Guaranty], any
other Credit Document or any other document, instrument or
agreement relating thereto or (ii) to require the consent of
Guarantor in connection with any future amendment of the
Restated Credit Agreement or any other Credit Document.
IN WITNESS WHEREOF, Guarantor has executed this Guarantor Consent
Letter as of the day and year first written above.
[XXXX/MICROPRODUCTS CANADA-TENEX DATA ULC]
[XXXX MICROPRODUCTS CANADA INC.]
[XXXX MICROPRODUCTS - FUTURE TECH, INC.]
[XXXXX DATA, INC.]
[XXXXX DATA EUROPE HOLDING, B.V.]
By: ____________________________
Name:_______________________
Title:________________________
