SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
EXHIBIT 10.4
EXECUTION
COPY
SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED
CREDIT AND SECURITY AGREEMENT
CREDIT AND SECURITY AGREEMENT
This SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT, dated
as of February 12, 2008 (this “Amendment”), is entered into by and among:
(i) XXXX MICROPRODUCTS FUNDING CORPORATION, a Delaware corporation, as borrower (the
“Borrower”);
(ii) XXXX MICROPRODUCTS INC., a California corporation, as servicer (the “Servicer”);
(iii) VARIABLE FUNDING CAPITAL COMPANY LLC, a Delaware limited liability company, as a Lender
(“VFCC”);
(iv) WACHOVIA BANK, NATIONAL ASSOCIATION (“Wachovia”), as agent for the Lenders (the
“Agent”) and as Lender Group Agent and Liquidity Bank for the Lender Group of which VFCC is
a party; and
(v) GENERAL ELECTRIC CAPITAL CORPORATION (“GECC”), as a Lender and as Lender Group
Agent and Liquidity Bank for the Lender Group of which GECC is a party.
Capitalized terms used but not otherwise defined herein have the respective meanings set forth
in the Credit and Security Agreement (as defined below).
BACKGROUND
WHEREAS, the parties hereto have entered into that certain Second Amended and Restated Credit
and Security Agreement, dated as of May 14, 2007 (as amended, restated, supplemented or otherwise
modified to the date hereof, the “Credit and Security Agreement”);
WHEREAS, the parties hereto desire to amend the Credit and Security Agreement in certain
respects as provided herein; and
WHEREAS, in connection with this Amendment, the Borrower will enter into amended and restated
Fee Letters, dated as of the date hereof, with each of (i) the members of the VFCC Group and (ii)
the members of the GECC Group (such amended and restated fee letters, each an “A&R Fee
Letter” and together, the “A&R Fee Letters”);
NOW THEREFORE, in consideration of the premises and the other mutual covenants contained
herein, the parties hereto agree as follows:
SECTION 1. Amendments. The Credit and Security Agreement is amended as follows:
(a) The last sentence of Section 7.1(a)(i) of the Credit and Security Agreement is
amended and restated in its entirety as follows:
“Notwithstanding the foregoing, the Servicer shall deliver its annual
audited financial statements for its 2006 and 2007 fiscal years on or before
September 30, 2008.”
(b) Sections 7.1(a)(xii), 9.1(t), 9.1(u), 9.1(v) and
9.1(z) of the Credit and Security Agreement are each amended by deleting the date “March
17, 2008” where it appears therein and substituting the date “September 30, 2008” therefor.
(c) Clause (ii) of the first sentence of the definition of “LIBO Rate” set forth in
Exhibit I to the Credit and Security Agreement is amended and restated in its entirety as
follows:
“(ii) on any day (A) prior to the occurrence of a Delisting Event, (x) prior to
November 28, 2008, 1.50% per annum, and (y) at all times on and after November 28,
2008, 2.40% per annum, and (B) from and after the date on which any Delisting Event
occurs, (x) prior to November 28, 2008, 2.25% per annum, and (y) at all times on and
after November 28, 2008, 2.40% per annum”
SECTION 2. Representations and Warranties. Each of the Borrower and the Servicer
hereby represents and warrants that:
(a) all representations and warranties of such Person set forth in the Credit and Security
Agreement (as amended hereby) are true and correct as of the date hereof (unless stated to relate
solely to an earlier date, in which case such representations and warranties were true and correct
as of such earlier date);
(b) no Amortization Event or Unmatured Amortization Event has occurred and is continuing as of
the date hereof;
(c) the execution and delivery by such Person of this Amendment and such Person’s performance
of its obligations under the Credit and Security Agreement (as amended hereby) are within its
corporate powers and have been duly authorized by all necessary corporate action on its part, and
(d) each of this Amendment, the Credit and Security Agreement (as amended hereby) and, with
respect to the Borrower, each A&R Fee Letter is the valid and legally binding obligation of such
Person, enforceable against such Person in accordance with its terms.
SECTION 3. Conditions to Effectiveness. This Amendment shall be effective as of the
date hereof upon the later to occur of (a) receipt by the Agent and each of the Lender Group Agents
of counterparts to this Amendment and the A&R Fee Letters (or copies thereof) duly executed by each
of the other parties hereto and thereto (as applicable) and (b) the Borrower’s payment in full to
each Lender Group Agent of the Amendment Fee (as defined in the applicable A&R Fee Letter) due to
such Lender Group Agent pursuant to the applicable A&R Fee Letter.
SECTION 4. Effect of Amendment; Ratification. Except as specifically amended hereby,
the Credit and Security Agreement shall remain in full force and effect. This Amendment shall
neither (i) constitute a novation of the Credit and Security Agreement, but shall constitute an
amendment thereof nor (ii) operate as a waiver of any right, power or remedy
2
of the Agent or any of the Lender Group Agents or any other Secured Party under the Credit
Agreement or any of the other Transaction Documents. Upon the effectiveness of this Amendment,
each reference in the Credit and Security Agreement to “this Agreement”, “hereunder”, “hereof”,
“herein”, or words of like import shall mean and be a reference to the Credit and Security
Agreement as amended hereby, and each reference to the Credit and Security Agreement in any other
Transaction Document or any other document, instrument or agreement, executed and/or delivered in
connection with any Transaction Document shall mean and be a reference to the Credit and Security
Agreement as amended hereby.
SECTION 5. Successors and Assigns. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and assigns.
SECTION 6. Counterparts; Delivery. This Amendment may be executed in any number of
counterparts, and by the different parties hereto on the same or separate counterparts, each of
which shall be deemed to be an original instrument but all of which together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment
by facsimile or other electronic means shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 7. Headings. The descriptive headings of the various sections of this
Amendment are inserted for convenience of reference only and shall not be deemed to affect the
meaning or construction of any of the provisions hereof
SECTION 8. GOVERNING LAW. THIS AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY
AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF OTHER THAN SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW.
SECTION 9. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AMENDMENT, THE
CREDIT AND SECURITY AGREEMENT, ANY DOCUMENT EXECUTED BY ANY LOAN PARTY PURSUANT HERETO OR THERETO
OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
[Signature pages follow.]
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered
by their duly authorized officers as of the date hereof.
| XXXX MICROPRODUCTS FUNDING CORPORATION | ||||||
| as Borrower | ||||||
| By: | /s/ Xxxx Xxxxxxx | |||||
| Name: | Xxxx Xxxxxxx | |||||
| Title: | Chief Financial Officer | |||||
| XXXX MICROPRODUCTS INC. | ||||||
| as Servicer | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: | Xxxxx X. Xxxxxx | |||||
| Title: | Chief Operating Officer and President — Americas | |||||
2nd
Amendment to
2nd
A&R CSA
S-1
| VARIABLE FUNDING CAPITAL COMPANY LLC | ||||||
| as a Lender | ||||||
| By: | Wachovia Capital Markets, LLC, as Attorney-in-Fact |
|||||
| By: | /s/ Xxxxxxx X. Xxxxxx, Xx. | |||||
| Name: | Xxxxxxx X. Xxxxxx, Xx. | |||||
| Title: | Director | |||||
| WACHOVIA BANK, NATIONAL ASSOCIATION as a Liquidity Bank, as Lender Group Agent for the Lender Group of which VFCC is a member and as Agent | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | Vice President | |||||
2nd
Amendment
to 2nd A&R CSA
S-2
| GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender, as Lender Group Agent for the Lender Group of which GECC is a member, as a Liquidity Bank and as a Conduit |
||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Name: | Xxxxx X. Xxxxxxx | |||||
| Title: | Duly Authorized Signatory | |||||
2nd
Amendment
to 2nd A&R CSA
S-3
