EXHIBIT 10.32.2
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
("Amendment") is entered into as of April 22, 2005, by and among WESTERN DIGITAL
TECHNOLOGIES, INC., a Delaware corporation ("Borrower"), WESTERN DIGITAL
(FREMONT), INC., a Delaware corporation ("WD Fremont"), the other credit parties
and guarantors party hereto (each individually a "Credit Party" and
collectively, the "Credit Parties"), the lenders signatory hereto (each
individually a "Lender" and collectively the "Lenders"), GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware corporation, as administrative agent for Lenders
(in such capacity, "Agent"), and BANK OF AMERICA, N.A., as documentation agent
for Lenders ("Documentation Agent"; Agent and Documentation Agent are
collectively referred to as "Co-Agents" and each, a "Co-Agent").
RECITALS
A. Borrower, WD Fremont, the other Credit Parties party thereto, Lenders,
and Co-Agents have entered into the Amended and Restated Credit Agreement dated
as of September 19, 2003, as amended by the First Amendment to Amended and
Restated Credit Agreement dated as of September 8, 2004 (collectively, "Credit
Agreement"), pursuant to which Co-Agents and Lenders are providing financial
accommodations to or for the benefit of Borrower upon the terms and conditions
contained therein. Unless otherwise defined herein, capitalized terms or matters
of construction defined or established in Annex A to the Credit Agreement shall
be applied herein as defined or established therein.
B. Borrower has requested that Agent and Lenders amend the Credit
Agreement, and Agent and Lenders are willing to do so subject to the terms and
conditions of this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the continued performance by
Borrower and each other Credit Party of their respective promises and
obligations under the Credit Agreement and the other Loan Documents, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Borrower, the other Credit Parties signatory hereto,
Lenders, and Co-Agents hereby agree as follows:
1. Ratification and Incorporation of Credit Agreement. Except as
expressly modified under this Amendment, (a) each Credit Party hereby
acknowledges, confirms, and ratifies all of the terms and conditions set forth
in, and all of its obligations under, the Credit Agreement and the other Loan
Documents, and (b) all of the terms and conditions set forth in the Credit
Agreement are incorporated herein by this reference as if set forth in full
herein.
2. Amendment to Credit Agreement.
(a) Clause (b) of the definition of the term "Borrowing Base" in
ANNEX A to the Credit Agreement is hereby deleted in its entirety and the
following is substituted in lieu therefor:
(b) the least of (i) $75,000,000, (ii) 25% of the value of
all Collateral included in clauses (a), (b) and (c) of this
definition of
"Borrowing Base," (iii) (A) 85% of Borrower's Eligible Foreign
Accounts, minus (B) the Dilution Reserve with respect to such
Eligible Foreign Accounts, and (iv) 85% of Borrower's Designated
Eligible Foreign Accounts; plus
(b) The following definition is hereby added to Annex A to the
Credit Agreement in appropriate alphabetical order:
"Designated Eligible Foreign Account" shall mean an Eligible
Foreign Account that consists of obligations of any Account
Debtor that is located in a foreign country (other than Canada)
and (a) is a wholly-owned Subsidiary of (i) a corporation that is
organized under the laws of the United States or (ii) a
corporation or other entity organized under the laws of a foreign
country (other than Canada), and in the case of each of clauses
(i) and (ii), the Stock of such corporation or other entity is
publicly traded on a national securities exchange and the market
capitalization of such corporation or other entity is greater
than $1,000,000,000, or (b) such Account is covered by credit
insurance in form and substance, and issued by an institution,
satisfactory to Agent in Agent's sole discretion and is in a
scope acceptable to Agent and its counsel.
3. Conditions to Effectiveness. The effectiveness of this Amendment is
subject to satisfaction of each of the following conditions:
(a) receipt by Agent of this Amendment duly executed by
Borrower, WD Fremont, WD UK, WD IS, Agent and Lenders; and
(b) the absence of any Defaults or Events of Default as of
the date hereof.
4. Entire Agreement. This Amendment, together with the Credit
Agreement and the other Loan Documents, is the entire agreement between the
parties hereto with respect to the subject matter hereof. This Amendment
supersedes all prior and contemporaneous oral and written agreements and
discussions with respect to the subject matter hereof.
5. Representations and Warranties. Borrower and each other Credit
Party hereby represents and warrants that the representations and warranties
contained in the Credit Agreement were true and correct in all material respects
when made and, except to the extent that (a) a particular representation or
warranty by its terms expressly applies only to an earlier date or (b) Borrower
or any other Credit Party, as applicable, has previously advised Agent in
writing as contemplated under the Credit Agreement, are true and correct in all
material respects as of the date hereof.
2
6. Reaffirmation by Guarantors. Each Guarantor, by its execution of
this Amendment, consents to the terms hereof and ratifies and reaffirms all of
the provisions of the Guaranties.
7. Miscellaneous.
(a) Counterparts. This Amendment may be executed in identical
counterpart copies, each of which shall be an original, but all of which shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Amendment by facsimile transmission shall be effective as
delivery of a manually executed counterpart thereof.
(b) Headings. Section headings used herein are for convenience of
reference only, are not part of this Amendment, and are not to be taken into
consideration in interpreting this Amendment.
(c) Recitals. The recitals set forth at the beginning of this
Amendment are true and correct, and such recitals are incorporated into and are
a part of this Amendment.
(d) Effect. Upon the effectiveness of this Amendment, from and
after the date hereof, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof," or words of like import shall mean and be a
reference to the Credit Agreement as amended hereby and each reference in the
other Loan Documents to the Credit Agreement, "thereunder," "thereof," or words
of like import shall mean and be a reference to the Credit Agreement as amended
hereby.
(e) No Novation. Except as expressly provided in Section 2 of
this Amendment, the execution, delivery, and effectiveness of this Amendment
shall not (i) limit, impair, constitute a waiver of, or otherwise affect any
right, power, or remedy of Agent or any Lender under the Credit Agreement or any
other Loan Document, (ii) constitute a waiver of any provision in the Credit
Agreement or in any of the other Loan Documents, or (iii) alter, modify, amend,
or in any way affect any of the terms, conditions, obligations, covenants, or
agreements contained in the Credit Agreement or any other Loan Document, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect.
(f) Conflict of Terms. In the event of any inconsistency between
the provisions of this Amendment and any provision of the Credit Agreement, the
terms and provisions of this Amendment shall govern and control.
[Remainder of Page Intentionally Left Blank]
3
IN WITNESS WHEREOF, this Second Amendment to Amended and Restated
Credit Agreement has been duly executed as of the date first written above.
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent and a Lender
By: /s/ Jeff Chiu
------------------------------------
Jeff Chiu
Duly Authorized Signatory
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ Robert Mostert
------------------------------------
Name: Robert Mostert
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Thomas H. Hopkins
------------------------------------
Name: Thomas H. Hopkins
Title: Vice President
WESTERN DIGITAL TECHNOLOGIES, INC.,
By: /s/ Steven M. Slavin
------------------------------------
Steven M. Slavin
Vice President, Taxes and Treasurer
WESTERN DIGITAL FREMONT, INC.
By: /s/ Steven M. Slavin
------------------------------------
Steven M. Slavin
Vice President, Finance
WESTERN DIGITAL (U.K.), LTD.,
By: /s/ Raymond M. Bukaty
------------------------------------
Name: Raymond M. Bukaty
Title: Director & Asst. Secretary
WESTERN DIGITAL (I.S.) LIMITED,
By: /s/ Raymond M. Bukaty
------------------------------------
Name: Raymond M. Bukaty
Title: Director & Secretary