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EXHIBIT 10.60
READ-RITE CORPORATION
WAIVER AND FOURTH AMENDMENT
TO CREDIT AGREEMENT
This WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment")
is dated as of December 29, 1999 and entered into among Read-Rite Corporation, a
Delaware corporation (the "Borrower"), the financial institutions named on the
signature pages hereof (each a "Bank" and collectively the "Banks"), Canadian
Imperial Bank of Commerce, New York Agency, as agent for the Banks (the "Agent")
and issuer of Letters of Credit (the "Designated Issuer") and is made with
reference to that certain Credit Agreement dated as of October 2, 1997 (as
amended by the First Amendment to Credit Agreement dated February 5, 1998, the
Second Amendment to Credit Agreement dated as of August 10, 1998 and the Waiver
and Third Amendment to Credit Agreement dated as of September 27, 1999, the
"Credit Agreement" and the Credit Agreement, as amended by this Amendment, the
"Amended Agreement") among the Borrower, the Banks, the Designated Issuer and
the Agent. Capitalized terms used herein without definition shall have the same
meanings herein as set forth in the Amended Agreement.
RECITALS
WHEREAS, the Borrower has requested that the Banks waive certain
provisions and amend certain other provisions set forth in Credit Agreement.
NOW, THEREFORE, in consideration of the promises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
A. The definition of the term "Revolving Facility" in Section 1.01 of
the Credit Agreement shall be amended by deleting the figure "$75,000,000" and
substituting therefore "$50,000,000".
B. The proviso at the end of the definition of the term "Interest
Period" in Section 1.01 of the Credit Agreement shall be deleted.
C. There shall be added to Section 1.01 of the Credit Agreement, in
appropriate alphabetical sequence, the following definition:
"Waiver and Fourth Amendment Termination Date": February 25,
2000, unless on or after February 4, 2000, the Majority Banks shall
have delivered to the Borrower written notice of termination of the
waivers granted pursuant to the Waiver and Fourth
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Amendment to Credit Agreement dated as of December 29, 1999, in which
event the Waiver and Fourth Amendment Termination Date shall be the
fifth Business Day following the delivery of such notice.
D. Section 2.04 of the Credit Agreement shall be amended by adding the
following sentence at the end thereof:
"Notwithstanding the foregoing, from December 29, 1999, until
the Waiver and Fourth Amendment Termination Date the Borrower may not
continue any Eurodollar Rate Loan as a Eurodollar Rate Loan or convert
any Base Rate Loan into a Eurodollar Rate Loan.
E. Section 6.01(a) of the Credit Agreement is amended by deleting
clause (v) thereof and substituting therefore the following:
(v) as soon as available, but in any event within ten days
after the end of each fiscal month, (A) a completed Borrowing Base
Certificate, (B) full and complete reports with respect to Receivables,
including information as to concentration, aging, identity of
Receivables debtors and obligors, letters of credit securing
Receivables, disputed Receivables and such other matters as Agent may
request and (C) a statement from the Depository Banks of the balances
standing to the credit of each Designated Account as of the end of such
month in form and substance satisfactory to the Agent;
F. Section 6.01(a) of the Credit Agreement is hereby further amended by
adding the following at the end thereof:
(vi) as soon as available, but in any event within fifteen
days after the end of each fiscal month, the Borrower's consolidated
balance sheet, income statement and a cash flow statement for the month
then ended and for the year-to-date; and
(vii) as soon as available, but in any event not less than ten
days prior to the beginning of each fiscal quarter, the Borrower's
consolidated projected balance sheets, income statements and cash flow
statements (A) prepared on a monthly basis for the succeeding fiscal
quarter and (B) prepared on a quarterly basis for the three fiscal
quarters thereafter.
G. Section 6.02 of the Credit Agreement is amended by adding at the end
thereof the following:
(t) Bank Meeting, Etc. The Borrower shall make a presentation
concerning its financial performance, business plan, projections and
related matters at a Bank group meeting arranged by the Agent on or
about January 12, 2000. At all times prior to the
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Waiver and Fourth Amendment Termination Date, PricewaterhouseCoopers
("PWC") shall have reasonable access to the Borrower's management to
discuss financial and operational information of the Borrower. It is
understood that, from time to time, PWC shall provide the Agent and the
Borrower with budgets in connection with its review and analysis of
such financial and operational information.
(u) Payment of Fee If the Borrower shall have not repaid all
obligations under this Agreement in full and terminated all Commitments
hereunder on or before February 25, 2000, on such date the Borrower
shall pay a fee equal to 12.5 basis points to each Bank, based on such
Bank's aggregate Revolving Commitment and Term Commitments on such
date.
(v) Amendment of Designated Account Agreements. On or before
January 20, 2000, each of the Designated Account Agreements shall be
amended to provide that the Borrower may not transfer funds from any
Designated Account to any account that is not a Designated Account
other than transfers consistent with a monthly budget to be provided to
the Agent not less than 15 days prior to the beginning of each fiscal
month.
SECTION 2. WAIVERS AND CONSENTS
A. By their execution hereof, the Banks hereby waive compliance by the
Borrower with (i) Section 6.02(a) to (e) inclusive of the Credit Agreement for
the period from September 30, 1999 through and including the Waiver and Fourth
Amendment Termination Date and (ii) Section 6.02(j)(viii) of the Credit
Agreement to the extent such provision would prohibit the Borrower from making
up to $5,000,000 of additional Investments in Read-Rite SMI from and after
December 29, 1999. Unless extended by the Majority Banks, the waiver described
in clause (i) of the preceding sentence shall terminate on the Waiver and Fourth
Amendment Termination Date, and on the Waiver and Fourth Amendment Termination
Date an Event of Default will exist if the Borrower is not (and has not been) in
compliance with Sections 6.02(a) to (e) of the Credit Agreement for all periods
from and after September 30, 1999. The waivers granted herein shall be limited
precisely as provided for herein and shall not be deemed to be a waiver or
modification of any other term or provision of the Credit Agreement or to be a
consent to any other transaction or further action on the part of the Borrower
or any of its Subsidiaries which would require the consent of the Banks under
the Credit Agreement.
SECTION 3. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the first date (the "Fourth
Amendment Date") on or before December 31, 1999 upon which the following
conditions have been satisfied:
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A. The Agent shall have received for each Bank counterparts hereof duly
executed on behalf of the Borrower, the Agent, and the Majority Banks (or, in
lieu of execution by the Majority Banks, notice of the approval of this
Amendment by the Majority Banks satisfactory to the Agent); and
B. An acknowledgment and amendment in the form of Exhibit A hereto duly
executed by each party to the Guaranty.
C. The Borrower shall have reduced the aggregate outstanding principal
amount of Revolving Loans to an amount not in excess of $50,000,000.
D. The Agent shall have received a copy of a board resolution of the
Borrower, in form and substance satisfactory, to the Agent authorizing the
execution, delivery and performance of this Amendment certified by the Secretary
of the Borrower as being in full force and effect on the date hereof.
E. The Amendment Fee referred to in Section 5.C shall have been paid,
the Borrower shall have delivered to PWC a retainer in the amount of $50,000 and
all other fees and expenses payable by the Borrower pursuant to the Loan
Documents shall have been paid or provided for.
F. All the representations and warranties in Section 4 shall be true
and correct as of the date of this Amendment.
G. No Potential Event of Default or Event of Default shall have
occurred and be continuing on the date of this Amendment or will result from the
consummation of this Amendment (after giving effect to this Amendment).
H. The Agent shall have received the following for delivery to each
Bank:
(i) an update of the Borrower's performance and business plans;
(ii) projections of the Borrower's balance sheets, income statements
and cash flow statements on a month by month basis through the Maturity
Date; and
(iii) a description of the Borrower's proposed asset sales, private
placements and other equity issuances through the Maturity Date.
I. The Agent shall have received, in form and substance satisfactory to
it, a certificate dated on or before the date of this Amendment certifying that
the conditions in clauses (F) and (G) have been met.
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SECTION 4. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Banks to enter into this Amendment
and to amend the Credit Agreement in the manner provided herein, the Borrower
represents and warrants to the Agent and each Bank that the following statements
are true, correct and complete:
A. CORPORATE POWER AND AUTHORITY. The Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, this Amendment
and the Amended Agreement.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of the Borrower.
C. NO CONFLICT. The execution and delivery by the Borrower of this
Amendment does not and will not contravene (i) any law or any governmental rule
or regulation applicable to the Borrower or any of its Subsidiaries, (ii) the
Certificate of Incorporation or Bylaws of the Borrower, (iii) any order,
judgment or decree of any court or other agency of government binding on the
Borrower or any of its Subsidiaries or (iv) any material agreement or instrument
binding on the Borrower or any of its Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by the Borrower of
this Amendment and the performance by the Borrower of the Amended Agreement do
not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body.
E. BINDING OBLIGATION. This Amendment has been duly executed and
delivered by the Borrower and is the binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium or other similar laws of general application and
equitable principles relating to or affecting creditors' rights.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Article V of the
Amended Agreement are and will be true, correct and complete in all material
respects on and as of the date of this Amendment to the same extent as though
made on and as of such 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.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing as of
the date of this Amendment or will result from the consummation of the
transactions contemplated by this
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Amendment that would constitute an Event of Default or a Potential Event of
Default (as determined after giving effect to the amendments made by this
Amendment).
H. FINANCIAL CONDITION. The unaudited consolidated balance sheet of the
Borrower for the Borrower's fiscal quarter ended September 30, 1999 and the
related consolidated statements of operations and cash flow of the Borrower for
the fiscal quarter then ended, which have been previously circulated to the
Banks, fairly present in all material respects the consolidated financial
condition of the Borrower as at such date and the consolidated results of the
operations of the Borrower for the period ended on such date, all in accordance
with GAAP, consistently applied, subject to year-end adjustments and the absence
of footnotes.
SECTION 5. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
AGREEMENTS.
(i) On and after the Fourth Amendment 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 Loan Agreements 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 Loan Agreements 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 Agent or any
Bank under, the Credit Agreement or any of the other Loan Agreements nor to
create any course of dealing or otherwise obligate the Agent or the Banks to
forebear or execute similar amendments or any waiver in similar circumstances in
the future.
B. COSTS AND EXPENSES. The Company covenants to pay to or reimburse the
Agent, upon demand, for all costs and expenses (including allocated costs of
in-house counsel) incurred in connection with the development, preparation,
negotiation, execution and delivery of this Amendment, the Collateral Documents
and the documents and transactions contemplated hereby.
C. AMENDMENT FEE. The Company hereby agrees to pay to the Agent on or
before the Fourth Amendment Date, for the ratable benefit of those Banks who
consent to this Amendment (as evidenced by their return of a signed signature
page to Agent or Agent's counsel) by 3:00 p.m. (Pacific standard time) December
29, 1999, an amendment fee (the
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"Amendment Fee") of 0.25% of the aggregate Revolving Commitments and Term
Commitments of such consenting Banks (after any reduction made by this
Amendment). The Amendment Fee shall be paid to the Agent in immediately
available funds and shall be non-refundable. The Amendment Fee is in addition to
any fees, costs, expenses or other amounts otherwise payable pursuant to this
Amendment or the Amended Agreement.
D. HEADINGS. Section and subsection headings in this Amendment 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.
E. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
F. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each of
the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Agent of a facsimile transmitted document purportedly
bearing the signature of a Bank or the Borrower shall bind such Bank or the
Borrower, respectively, with the same force and effect as the delivery of a hard
copy original. Any failure by the Agent to receive the hard copy executed
original of such document shall not diminish the binding effect of receipt of
the facsimile transmitted executed original of such document of the party whose
hard copy page was not received by the Agent.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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.
BORROWER:
READ-RITE CORPORATION
By:
Title:
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AGENT:
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY, as Agent
By:
Title: Managing Director,
CIBC World Markets Corp.,
AS AGENT
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BANKS:
CIBC INC.
By:
Title: Managing Director,
CIBC World Markets Corp.,
AS AGENT
ABN AMRO BANK N.V.
By:
Title:
By:
Title:
FLEET NATIONAL BANK
By:
Title:
KEYBANK, N.A.
By:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
Title:
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MELLON BANK
By:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By:
Title:
THE SUMITOMO BANK LIMITED,
SAN XXXXXXXXX XXXXXX
By:
Title:
THE INDUSTRIAL BANK OF JAPAN LIMITED,
SAN FRANCISCO AGENCY
By:
Title:
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BANQUE NATIONALE DE PARIS
By:
Title:
By:
Title:
FOOTHILL PARTNERS III, L.P.
By:
Title:
CERBERUS PARTNERS, L.P.
By:
Title:
XXXXX FARGO BANK, N.A.
By:
Title:
THE DESIGNATED ISSUER:
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY
By:
Title: Managing Director,
CIBC World Markets Corp.,
AS AGENT
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EXHIBIT A
TO WAIVER AND FOURTH AMENDMENT
TO CREDIT AGREEMENT
December 29, 1999
The parties listed on the acknowledgment page hereof:
Re: Credit Agreement dated as of October 2, 1997
Ladies and Gentlemen:
Please refer to (i) the Credit Agreement dated as of October 2, 1997
(the "Credit Agreement") by and among Read-Rite Corporation (the "Borrower"),
the financial institutions party thereto (the "Banks") and Canadian Imperial
Bank of Commerce, New York Agency, as agent (in such capacity, the "Agent") and
(ii) the Continuing Guaranty dated as of August 10, 1998 (the "Guaranty", which
was executed by you on such date. Pursuant to an amendment of even date
herewith, certain terms of the Credit Agreement were amended. We hereby request
that you (i) consent to the terms of the amendment, (ii) acknowledge and
reaffirm all of your obligations and undertakings under the Guaranty and (iii)
acknowledge and agree that the Guaranty, as amended by the following paragraph
hereof, is and shall remain in full force and effect in accordance with the
terms thereof.
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We and you acknowledge and agree that the Guaranty is ratified and
confirmed in all respects.
Very truly yours,
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY, as Agent
By:_________________________________________
Title: Managing Director, CIBC World Markets Corp., AS AGENT
ACKNOWLEDGED AND AGREED AS OF THE DATE FIRST ABOVE WRITTEN:
GUARANTORS
SUNWARD TECHNOLOGIES, INC.
By:_________________________________________
Title:______________________________________
SUNWARD TECHNOLOGIES, CALIFORNIA
By:_________________________________________
Title:______________________________________
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