EXHIBIT 10.32.1
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
("Amendment") is entered into as of September 8, 2004, 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, 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, (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 Requisite 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) The following definition is hereby added to Annex A to the
Credit Agreement in appropriate alphabetical order:
"First Amendment" shall mean the First Amendment to Amended
and Restated Credit Agreement dated as of September 8, 2004.
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(b) Section 6.10 of the Credit Agreement is hereby deleted in its
entirety and the following is substituted in lieu therefor:
6.10 Financial Covenants. Borrower shall not breach or fail
to comply with any of the financial covenants set forth in Annex
G (the "Financial Covenants"); provided, that the Financial
Covenants shall not be tested until such time as (a) there are
any outstanding Revolving Credit Advances or Letter of Credit
Obligations (excluding Letters of Credit (i) for bank guarantees
issued on behalf of WD UK, (ii) to support Borrower's replacement
real estate lease for its headquarters location, (iii) posted in
the approximate amount of $25,200,000 in satisfaction of the
writs of attachment obtained by Cirrus Logic, Inc. against
Borrower and WD Malaysia, and (iv) to support other corporate
purposes acceptable to Agent in an aggregate outstanding amount
not to exceed $10,000,000), or (b) (i) as of the end of September
2003, Borrower and its Subsidiaries (other than Excluded
Subsidiaries) shall have Available Liquidity of less than
$285,000,000, or (ii) as of the end of any March, June, September
or December of each year (other than September 2003), Borrower
and its Subsidiaries (other than Excluded Subsidiaries) shall
have Available Liquidity of less than $300,000,000.
(c) The introductory paragraph to Annex G is hereby deleted in
its entirety and the following is substituted in lieu therefor:
So long as (a) there are any outstanding Revolving Credit
Advances or Letter of Credit Obligations (excluding Letters of
Credit (i) for bank guarantees issued on behalf of WD UK, (ii) to
support Borrower's replacement real estate lease for its
headquarters location, (iii) posted in the approximate amount of
$25,200,000 in satisfaction of the writs of attachment obtained
by Cirrus Logic, Inc. against Borrower and WD Malaysia, and (iv)
to support other corporate purposes acceptable to Co-Agents in an
aggregate outstanding amount not to exceed $20,000,000), or (b)
(i) as of the end of September 2003, Borrower and its
Subsidiaries (other than Excluded Subsidiaries) shall have
Available Liquidity of less than $285,000,000, or (ii) as of the
end of any March, June, September or December of each year (other
than September 2003), Borrower and its Subsidiaries (other than
Excluded Subsidiaries) shall have Available Liquidity of less
than $300,000,000, then Borrower shall not breach or fail to
comply with any of the following financial covenants, each of
which shall be calculated in accordance with GAAP consistently
applied:
(d) Paragraph (a) of Annex G to the Credit Agreement is hereby
deleted in its entirety and the following is substituted in lieu therefor:
(a) Maximum Capital Expenditures. Borrower and its
Subsidiaries (other than the Excluded Subsidiaries) on a
consolidated basis shall not make aggregate Capital Expenditures
during any Fiscal Year that exceed the respective amounts set
forth opposite each such Fiscal Year:
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Fiscal Year Ending On Maximum Capital Expenditures
- --------------------- ----------------------------
July 1, 2005 $275,000,000
June 30, 2006 $280,000,000
June 29, 2007, and each Fiscal Year thereafter $290,000,000
provided; that, to the extent that the maximum capital
expenditure amount identified above (the "Maximum Capital
Expenditure") for any such Fiscal Year (i.e., Year 1) exceeds the
amount of Capital Expenditures actually made by Borrower and such
Subsidiaries during such Fiscal Year (such excess being the
"Excess Amount"), then the amount of permitted Capital
Expenditures for the immediately succeeding Fiscal Year (i.e.,
Year 2) will be increased by the positive amount (the "Carry Over
Amount") equal to the lesser of (i) the Excess Amount and (ii)
25% of the amount of the Maximum Capital Expenditure for such
Fiscal Year (i.e., Year 1), and for purposes of measuring
compliance herewith, the Carry Over Amount shall be deemed to be
the last amount spent on Capital Expenditures in any Fiscal Year.
(e) The following is hereby added as paragraph (c) of Annex G to
the Credit Agreement:
(c) Borrower and its Subsidiaries (other than the Excluded
Subsidiaries) on a consolidated basis shall not make aggregate
Capital Expenditures in any Fiscal Year that exceed the total
EBITDA for Borrower and its Subsidiaries (other than the Excluded
Subsidiaries) on a consolidated basis for such Fiscal Year.
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,
each of the other Credit Parties, Agent and Requisite 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, the other Loan Documents and the letter agreement of even date
herewith among Borrower, each of the other Credit Parties, Agent, and Requisite
Lenders, 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
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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.
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]
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IN WITNESS WHEREOF, this First 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/ Scott B. Kaplan
------------------------------------
Scott B. Kaplan
Duly Authorized Signatory
BANK OF AMERICA, N.A.,
as Documentation Agent and a Lender
By: /s/ Robert Motsert
------------------------------------
Name: Robert Motsert
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.,
a Delaware corporation, as Borrower
By: /s/ Steven M. Slavin
------------------------------------
Steven M. Slavin
Vice President, Taxes and Treasurer
[Signatures Continued on Following Page]
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WESTERN DIGITAL (U.K.), LTD.,
a corporation organized under the laws
of the United Kingdom, as a Credit Party
and a Guarantor
By: /s/ Raymond M. Bukaty
------------------------------------
Name: Raymond M. Bukaty
Title: Director & Asst. Secretary
WESTERN DIGITAL (I.S.) LIMITED,
a corporation organized under the laws
of Ireland, as a Credit Party and a
Guarantor
By: /s/ Raymond M. Bukaty
------------------------------------
Name: Raymond M. Bukaty
Title: Director & Secretary
WESTERN DIGITAL FREMONT, INC.,
a Delaware corporation, as a Credit
Party and a Guarantor
By: /s/ Steven M. Slavin
------------------------------------
Steven M. Slavin
Vice President, Finance
WESTERN DIGITAL CORPORATION,
a Delaware corporation, as a Guarantor
By: /s/ Steven M. Slavin
------------------------------------
Name: Steven M. Slavin
Title: Vice President, Taxes and
Treasurer
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