EXHIBIT 10.28
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EXHIBIT 10.28
SECOND AMENDMENT TO CREDIT AGREEMENT
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THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
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November 16, 1994, is entered into by and among CONNER PERIPHERALS, INC. (the
"Company"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for
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itself and the Banks (the "Agent"), and the several financial institutions party
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to the Credit Agreement (collectively, the "Banks").
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RECITALS
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A. The Company, the Banks and the Agent are parties to a Credit Agreement
dated as of December 23, 1993, as amended by a First Amendment to Credit
Agreement dated as of October 19, 1994 (as so amended, the "Credit Agreement"),
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pursuant to which the Agent and the Banks have extended certain credit
facilities to the Company.
B. The Company has requested that the Banks agree to a certain amendment
of the Credit Agreement.
C. The Banks are willing to amend the Credit Agreement, subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
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herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendment to Credit Agreement. Subsection 7.8(a) of the Credit
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Agreement shall be amended by adding the following clause at the end thereof:
"and (v) the Company may declare and pay a dividend on each share of its
common stock, consisting of one right to purchase one one-hundredth of a
share of the Company's Series A Participating Preferred Stock, and redeem
such rights, all in connection with the Stockholder Rights Plan adopted by
the Company."
3. Representations and Warranties. The Company hereby represents and
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warrants to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all
necessary corporate and other action and do not and will not require any
registration with, consent or approval of, notice to or action by, any Person
(including any Governmental Authority) in order to be effective and enforceable.
The Credit Agreement as amended by this Amendment constitutes the legal, valid
and binding obligations of the Company, enforceable against it in accordance
with its respective terms, without defense, counterclaim or offset.
(c) All representations and warranties of the Company contained in
the Credit Agreement are true and correct.
(d) The Company is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon the Agent and
the Banks or any other Person.
4. Effective Date. This Amendment will become effective as of November
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___, 1994 (the "Effective Date"), provided that each of the following conditions
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precedent is satisfied:
(a) The Agent has received from the Company and each of the Majority
Banks a duly executed original (or, if elected by the Agent, an executed
facsimile copy) of this Amendment.
(b) The Agent has received from the Company a copy of a resolution
passed by the board of directors of such corporation, certified by the Secretary
or an Assistant Secretary of the Company as being in full force and effect on
the date hereof, authorizing the execution, delivery and performance of this
Amendment.
5. Reservation of Rights. The Company acknowledges and agrees that the
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execution and delivery by the Agent and the Banks of this Amendment shall not be
deemed to create a course of dealing or otherwise obligate the Agent or the
Banks to forbear or execute similar amendments under the same or similar
circumstances in the future.
6. Miscellaneous.
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(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and effect
and all references therein to such Credit Agreement shall henceforth refer to
the Credit Agreement as amended by this Amendment. This Amendment shall be
deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and thereto and their respective successors and assigns. No
third party beneficiaries are intended in connection with this Amendment.
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(c) This Amendment shall be governed by and construed in accordance
with the law of the State of California.
(d) 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 Company shall bind such Bank or the Company, 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.
(e) This Amendment, together with the Credit Agreement, contains the
entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior
drafts and communications with respect thereto. This Amendment may not be
amended except in accordance with the provisions of Section 10.01 of the Credit
Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(g) The Company covenants to pay to or reimburse the Agent and the
Banks, 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, including without
limitation appraisal, audit, search and filing fees incurred in connection
therewith.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
CONNER PERIPHERALS, INC.
By: /s/ P. Jackson Bell
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Title: Executive Vice
President & Chief
Financial Officer
By: /s/ James A. Taylor
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Title: Vice President &
Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ Wendy M. Young
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Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank
By: /s/ Kevin McMahon
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Title: Vice President
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THE FIRST NATIONAL BANK OF BOSTON
By: /s/ E. M. Praul
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Title: Director
BARCLAYS BANK PLC
By: /s/ Douglas Butler
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Title: Associate Director
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