EXHIBIT 10.4
XXXXXX ELECTRONICS CORPORATION
FIRST AMENDMENT
TO REVOLVING CREDIT AGREEMENT (MULTI-YEAR FACILITY)
This FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (MULTI-YEAR FACILITY)
(this "Amendment") is dated as of December 15, 1998 and entered into by and
among XXXXXX ELECTRONICS CORPORATION (formerly known as XXXXXX NETWORK SYSTEMS,
INC.), a Delaware corporation (the "Borrower"), the financial institutions
listed on the signature pages hereof (the "Banks"), BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as the administrative agent for the Banks (in
such capacity the "Administrative Agent"), XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK as syndication agent (the "Syndication Agent") and CITICORP USA, INC. and
THE CHASE MANHATTAN BANK as documentation agents (in such capacity the
"Documentation Agents") and is made with reference to that certain Credit
Agreement (Multi-Year Facility) dated as of December 5, 1997 (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.
RECITAL
WHEREAS, Borrower and Banks desire to amend the Credit Agreement to
make certain amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 1: Definitions
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(A) The definition of "References Banks" in Subsection 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as follows:
"'Reference Banks' means Bank of America, Xxxxxx Guaranty Trust
Company of New York, The Chase Manhattan Bank and Citibank, N.A."
1.2 Amendment to Section 11: Miscellaneous Provisions
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The following shall be deleted from the end of the first sentence of
Section 11.11(a):
"; provided, further, that upon any such assignment hereunder, such Bank shall
concurrently assign to the same Assignee a ratable portion of its loans,
commitments and other rights and obligations under the Revolving Credit
Agreement (364-Day Facility) dated as of even date herewith, among Borrower, the
banks parties thereto, Bank of America National Trust and Savings Association,
as administrative agent, Xxxxxx Guaranty Trust Company of New York, as
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syndication agent and Citicorp USA, Inc. and The Chase Manhattan Bank as
documentation agents."
2. 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 First 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. No event has occurred and is continuing or
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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.
3. MISCELLANEOUS
(A) Reference to and Effect on the Credit Agreement and the Other
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Loan Documents.
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(i) On and after the First Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import
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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) 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.
(C) California Law. The interpretation, enforcement and effect of
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this Agreement, the Loans and any agreements, contracts, indentures, documents
or instruments delivered in accordance herewith, shall be governed and
controlled in all respects by and construed according to the substantive laws of
the State of California, to the jurisdiction of whose courts the parties hereto
hereby agree to submit.
(D) Counterparts; Effectiveness. This Amendment may be executed in
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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 shall become
effective upon the execution of a counterpart hereof by Borrower and the
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:
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XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative
Agent
By: __________________________
Xxxx Xxxxxx
Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: __________________________
Xxxxxx Xxxxx
Vice President
NATIONSBANK, N.A., as a Bank, successor by
merger to NationsBank of Texas, N.A.
By: __________________________
Xxxxxx Xxxxx
Vice President
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XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as a Bank
By: __________________________
Name:
Title:
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XXX XXXXX XXXXXXXXX BANK, as
Documentation Agent and a Bank
By: ___________________________
Name:
Title:
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LONG-TERM CREDIT BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY, as a Bank
By: __________________________
Name:
Title:
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THE MITSUBISHI TRUST & BANKING
CORPORATION, NEW YORK BRANCH, as a
Bank
By: __________________________
Name:
Title:
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XXXXXXX XXXXXXXX (XXXXX), INC., as a
Bank
By: __________________________
Name:
Title:
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CREDIT LYONNAIS NEW YORK BRANCH, as a
Bank
By: __________________________
Name:
Title:
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DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES, as a Bank
By: __________________________
Name:
Title:
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THE FIRST NATIONAL BANK OF CHICAGO,
as a Bank
By: __________________________
Name:
Title:
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XXXXX XXXXXXXX XXXX XX XXXXXXXX, as a
Bank
By: __________________________
Name:
Title:
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THE FUJI BANK LIMITED LOS ANGELES
AGENCY, as a Bank
By: __________________________
Name:
Title:
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CITICORP USA, INC., as Documentation Agent
and a Bank
By: __________________________
Name:
Title:
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BANCA DI ROMA-SAN XXXXXXXXX XXXXXX,
as a Bank
By: __________________________
Name:
Title:
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XXX XXXX XX XXX XXXX, as a Bank
By: __________________________
Name:
Title:
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XXXXXXXXX XXXXXXXX XXX XXXXX DI
TORINO SpA, as a Bank
By: __________________________
Name:
Title:
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XXXXX XXXX XX XXXXXXXXXX, N.A., as a Bank
By: __________________________
Name:
Title:
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CIBC, INC., as a Bank
By: __________________________
Name:
Title:
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BANKERS TRUST COMPANY, as a Bank
By: __________________________
Name:
Title:
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CREDIT SUISSE FIRST BOSTON, as a Bank
By: __________________________
Name:
Title:
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XXX XXXXXXXXXX XXXX OF JAPAN, LIMITED
LOS ANGELES AGENCY, as a Bank
By: __________________________
Name:
Title:
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XXXXXXXXXXXX XXXXXXXXXX
GIROZENTRALE, as a Bank
By: __________________________
Name:
Title:
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