EXECUTION VERSION
WAIVER AND THIRD AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS WAIVER AND THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT (this "Waiver and Amendment"), dated as of October 15, 1999, 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, as collateral agent for the Banks (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 and (ii) that certain Second
Amendment to Third Amended and Restated Credit Agreement dated as of July 21,
1999 (as amended, the "Restated Credit Agreement").
B. Borrower has requested the Banks, Administrative Agent and
Collateral Agent to amend the Restated Credit Agreement in certain respects.
C. In addition, Borrower has failed to comply with one of the financial
covenants set forth in the Restated Credit Agreement. Borrower has requested the
Banks, Administrative Agent and Collateral Agent to waive such non-compliance.
D. The Banks, Administrative Agent and Collateral Agent are willing so
to amend the Restated Credit Agreement and grant such waiver 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 Waiver and 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
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terms in the Restated Credit Agreement, as amended by this Waiver and 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 Waiver
and Amendment, apply to this Waiver and Amendment and are hereby incorporated by
reference.
2. Amendment to Credit Agreement. Subject to the conditions set forth
in paragraph 5 below, Subparagraph 2.01(a) of the Restated Credit Agreement is
hereby amended by substituting the date "October 31, 2000" for the date "July
30, 2000."
3. Waiver Under Credit Agreement. Subject to the conditions set forth
in paragraph 5 hereof, the Banks, Administrative Agent and the Collateral Agent
hereby waive Borrower's compliance with the Leverage Ratio set forth in clause
(iv) of Subparagraph 5.02(m) of the Restated Credit Agreement for the quarter
ended September 30, 1999, provided that Borrower's Leverage Ratio for such
quarter was not greater than 3.12 to 1.00.
4. Representations and Warranties. Borrower hereby represents and
warrants to Administrative Agent, Collateral Agent and the Banks that, on the
date of this Waiver and Amendment and after giving effect to the amendment set
forth in paragraph 2 and the waiver set forth in paragraph 3 above, the
following are and shall be true and correct on the Effective Date (as defined
below):
(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 Default or Event of Default has occurred and is
continuing; and
(c) Each of the Credit Documents is in full force and effect.
5. Effective Date. The amendment to the Restated Credit Agreement
effected by paragraph 2 above and the waiver granted under paragraph 3 above
shall become effective on October 15, 1999 (the "Effective Date"), subject to
receipt by the Banks, Administrative Agent and Collateral Agent on or prior to
the Effective Date of the following, each in form and substance satisfactory to
the Banks, Administrative Agent, Collateral Agent and their respective counsel:
(a) This Waiver and Amendment duly executed by Borrower, the
Banks, Administrative Agent and Collateral
Agent;
(b) A letter in the form of Attachment A hereto appropriately
completed, dated the Effective Date and duly executed by each
Guarantor;
(c) A Certificate of the Secretary or an Assistant Secretary
of Borrower, dated the Effective Date, certifying that (i) the Articles
of Incorporation and Bylaws of Borrower, in the form delivered to
Administrative Agent on the Closing Date, are in full force and effect
and have not been amended, supplemented, revoked or repealed since such
date, (ii) that the resolution of Borrower, in the form delivered to
Administrative Agent on the Closing Date, is in full force and effect
and has not been amended, supplemented, revoked or repealed since such
date, and (iii) the incumbency, signatures
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and authority of the officers of Borrower authorized to execute,
deliver and perform the Credit Agreement, this Amendment, the other
Credit Documents and all other documents, instruments or agreements
relating thereto executed or to be executed by Borrower;
(d) A nonrefundable amendment fee equal to Seventy Eight
Thousand Dollars ($78,000.00) to be shared among the Banks pro rata
according to their respective Proportionate Shares; and
(e) 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 Waiver and Amendment.
6. Effect of this Waiver and Amendment. On and after the 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 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 Waiver and 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.
7. Reservation of Rights. Borrower acknowledges and agrees that the
execution and delivery by Administrative Agent, Collateral Agent and the Banks
of this Waiver and Amendment shall not be deemed to create a course of dealing
or otherwise obligate Administrative Agent, Collateral Agent or the Banks to
execute similar waivers or amendments under the same or similar circumstances in
the future.
8. Miscellaneous.
(a) Counterparts. This Waiver and 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 Waiver and Amendment are for
convenience of
reference only and are not part of the substance hereof.
(c) Governing Law. This Waiver and Amendment shall be
governed by and construed in accordance with the laws of the State of
California without reference to conflicts of law rules.
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IN WITNESS WHEREOF, Borrower, the Banks, Administrative Agent and
Collateral Agent have caused this Waiver and 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:
By:__________________________________
Name:
Title:
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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:
By:__________________________________
Name:
Title:
SANWA BANK CALIFORNIA,
As a Bank
By:__________________________________
Name:
Title:
COMERICA BANK--CALIFORNIA,
As a Bank
By:__________________________________
Name:
Title:
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U.S. BANK NATIONAL ASSOCIATION,
As a Bank
By:__________________________________
Name:
Title:
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ATTACHMENT A
FORM OF GUARANTOR CONSENT LETTER
October 15, 1999
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:
(a) 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
and that certain Second Amendment to Third Amended and Restated Credit
Agreement dated as of July 21, 1999 (as amended, the "Restated Credit
Agreement");
(b) [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"),] executed by the
undersigned ("Guarantor") in favor of the Banks and Collateral Agent;
and
(c) The Waiver and Third Amendment to Third Amended and
Restated Credit Agreement, dated as of October 15, 1999, among
Borrower, the Banks, Administrative Agent and Collateral Agent (the
"Waiver and Third Amendment");
2. 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].
3. Guarantor hereby consents to the Waiver and Third Amendment,
including without limitation, the extension of the Revolving Loan Maturity Date
from July 31, 2000 to October 31, 2000. Guarantor expressly agrees that the
Waiver and Third 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].
4. Pursuant to the [Xxxx Canada Guaranty] [Xxxx-Tenex Guaranty],
Guarantor continues to guaranty 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 Waiver and Third Amendment or any of the other Credit Documents.
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5. The [Pledge] [Security] Agreement, dated as of November 20, 1998
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] 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 Waiver and Third Amendment.
6. From and after the date hereof, the term "Restated Credit Agreement"
as used in the [Xxxx-Canada Guaranty] [Xxxx-Tenex Guaranty] shall mean the
Restated Credit Agreement, as amended by the Waiver and Third Amendment.
7. Guarantor's consent to the Waiver and Third Amendment shall not be
construed (i) to have been required by the terms of the [Xxxx Canada Guaranty]
[Xxxx-Tenex 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.
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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.]
By: ____________________________
Name:___________________________
Title:__________________________
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