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EXHIBIT 10.38.2
SECOND AMENDMENT
TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
Second Amendment dated as of February 25, 1998 to Revolving Credit and
Term Loan Agreement (the "Second Amendment"), by and among WESTERN DIGITAL
CORPORATION, a Delaware corporation (the "Borrower") and BANKBOSTON, N.A. and
the other lending institutions listed on Schedule 1 to the Credit Agreement (as
hereinafter defined) (the "Banks"), amending certain provisions of the Revolving
Credit and Term Loan Agreement dated as of January 28, 1998 (as amended and in
effect from time to time, the "Credit Agreement") by and among the Borrower, the
Banks and BankBoston, N.A. as agent for the Banks (in such capacity, the
"Agent"). Terms not otherwise defined herein which are defined in the Credit
Agreement shall have the same respective meanings herein as therein.
WHEREAS, the Borrower and the Banks have agreed to modify certain terms
and conditions of the Credit Agreement as specifically set forth in this Second
Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. PREAMBLE TO THE CREDIT AGREEMENT. The Preamble to the Credit
Agreement is hereby amended by deleting the first paragraph thereof in its
entirety and restating it as follows:
This REVOLVING CREDIT AND TERM LOAN AGREEMENT is made as of
January 28, 1998, by and among (a) WESTERN DIGITAL CORPORATION (the
"Borrower"), a Delaware corporation having its principal place of
business at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000, (b)
BANKBOSTON, N.A. and the other lending institutions listed on Schedule 1
hereto, (c) BANKBOSTON, N.A., as administrative agent for itself and
such other lending institutions (the "Agent"), (d) NATIONSBANK OF TEXAS,
N.A., as syndication agent for itself and such other lending
institutions (the "Syndication Agent"), (e) THE BANK OF NOVA SCOTIA, as
documentation agent for itself and such other lending institutions (the
"Documentation Agent"), and (f) ABN AMRO BANK, DEUTSCHE FINANCIAL
SERVICES CORPORATION, THE CIT GROUP/BUSINESS CREDIT, INC., THE FUJI
BANK, LIMITED, IBJ XXXXXXXX BUSINESS CREDIT CORPORATION AND KEY BANK as
co-agents for the lending institutions (the "Co-Agents").
SECTION 2. AMENDMENT TO SECTION 1 OF THE CREDIT AGREEMENT. Section 1.1
of the Credit Agreement is hereby amended as follows:
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(a) the definition of "Borrowing Base" is hereby amended by deleting
the words "Accounts Receivable such Foreign Subsidiary" which appears in
subparagraph (c) thereof and substituting in place thereof the words "Accounts
Receivable of such Foreign Subsidiary"; and
(b) the definition of "Interest Payment Date" is hereby amended by
inserting immediately after the words "(b) as to any Eurodollar Rate Loan in
respect of which the Interest Period is (i) 3 months or less, the last day of
such Interest Period, and (ii) more than three (3) months, the date that is
three (3) months from the first day of such Interest Period" the words "and, in
addition, the last day of such Interest Period".
SECTION 3. LIMITED WAIVER OF SECTION 19.1 OF THE CREDIT AGREEMENT. The
parties hereto hereby agree that upon the effectiveness of this Second Amendment
the Banks, the Borrower and the Agent hereby agree to waive the requirement set
forth in Section 19.1 of the Credit Agreement that such assignment contemplated
by the Assignment and Acceptance dated as of February 25, 1998 by and among the
Borrower, the Agent and the parties thereto (the "Assignment") not become
effective until a date which is at least five (5) Business Days after the
execution thereof. The parties hereto hereby acknowledge and agree that the
Assignment shall become effective on the date of its execution and delivery to
the Agent. Nothing contained herein shall be construed to grant any other waiver
of any of the terms and conditions of the Credit Agreement, or the other Loan
Documents (as defined in the Credit Agreement).
SECTION 4. CONDITIONS TO EFFECTIVENESS. This Second Amendment shall not
become effective until the Agent receives a counterpart of this Second
Amendment, executed by the Borrower, the Guarantor and the Majority Banks.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Borrower hereby repeats,
on and as of the date hereof, each of the representations and warranties made by
it in Section 8 of the Credit Agreement, and such representations and warranties
remain true as of the date hereof (except to the extent of changes resulting
from transactions contemplated or permitted by the Credit Agreement and the
other Loan Documents and changes occurring in the ordinary course of business
that singly or in the aggregate are not materially adverse, and to the extent
that such representations and warranties relate expressly to an earlier date),
provided, that all references therein to the Credit Agreement shall refer to
such Credit Agreement as amended hereby. In addition, the Borrower hereby
represents and warrants that the execution and delivery by the Borrower of this
Second Amendment and the performance by the Borrower of all of its agreements
and obligations under the Credit Agreement as amended hereby are within the
corporate authority of each the Borrower and has been duly authorized by all
necessary corporate action on the part of the Borrower.
SECTION 6. RATIFICATION. ETC. Except as expressly amended hereby, the
Credit Agreement, the Security Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. The Credit Agreement and this Second
Amendment shall be read and construed as a single agreement. All references in
the Credit Agreement or any related agreement or instrument to the Credit
Agreement shall hereafter refer to the Credit Agreement as amended hereby.
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SECTION 7. NO WAIVER. Nothing contained herein shall constitute a waiver
of, impair or otherwise affect any Obligations, any other obligation of the
Borrower or any rights of the Bank Agents or the Banks consequent thereon.
SECTION 8. COUNTERPARTS. This Second Amendment may be executed in one or
more counterparts, each of which shall be deemed an original but which together
shall constitute one and the same instrument.
SECTION 9. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as a document under seal as of the date first above written.
WESTERN DIGITAL CORPORATION
By: [SIG]
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Title: Vice President, Taxes and
Treasurer
BANKBOSTON, N.A.
By:
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Title:
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RATIFICATION OF GUARANTY
The undersigned guarantor hereby acknowledges and consents to the
foregoing Second Amendment as of February 25, 1998, and agrees that the Guaranty
dated as of January 28, 1998 from the undersigned (the "Guarantor") in favor of
the Agent and each of the Banks remains in full force and effect, and the
Guarantor confirms and ratifies all of its obligations thereunder.
WESTERN DIGITAL ROCHESTER, INC.
By: /s/ WESTERN DIGITAL CORPORATION
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Title: President
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The undersigned each hereby accepts, by its signature below, the title
set forth next to its name on the signature block hereto:
NATIONSBANK OF TEXAS, N.A.,
as Syndication Agent
By: /s/ XXXXXX XXXXX
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Title: Vice President
THE BANK OF NOVA SCOTIA, as
Documentation Agent
By:
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Title:
ABN AMRO BANK, as Co-Agent
By:
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Title:
DEUTSCHE FINANCIAL SERVICES
CORPORATION, as Co-Agent
By:
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Title:
THE CIT GROUP/ BUSINESS CREDIT, INC.
as Co-Agent
By:
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Title:
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THE FUJI BANK LIMITED, as Co-Agent
By:
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Title:
IBJ XXXXXXXX BUSINESS CREDIT
CORPORATION, as Co-Agent
By:
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Title:
KEY BANK, as Co-Agent
By: [SIG]
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Title: Vice President