Exhibit 10.1.1
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment"),
dated as of August 16, 1999, is made among HMT TECHNOLOGY CORPORATION, a
Delaware corporation (the "Borrower"), the financial institutions listed
on the signature pages hereof under the heading "BANKS" (each a "Bank"
and, collectively, the "Banks"), and CREDIT SUISSE FIRST BOSTON and
FLEET NATIONAL BANK, as agents for the Banks (in such capacity, the
"Agents").
The Borrower, the Banks and the Agents are parties to a Revolving Credit
Agreement dated as of November 2, 1998 (the "Credit Agreement"). The
Borrower has requested that the Banks agree to certain amendments to the
Credit Agreement. The Banks have agreed to such request, subject to the
terms and conditions hereof.
Accordingly, the parties hereto agree as follows:
Definitions; Interpretation.
Terms Defined in Credit Agreement. All capitalized terms used in this
Amendment and not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement.
Interpretation. The rules of interpretation set forth in Section 1.2 of
the Credit Agreement shall be applicable to this Amendment and are
incorporated herein by this reference.
Amendments to the Credit Agreement.
Amendments. The Credit Agreement shall be amended as follows, effective
as of the date of satisfaction of the conditions set forth in Section 4
(the "Effective Date"):
Section 1.1 of the Credit Agreement is hereby amended as follows:
(A) The following new definitions shall be inserted
in proper alphabetical order:
"Borrowing Base. As of any date of determination, the
aggregate amount of all cash of the Borrower held in
deposit accounts at the Agents in which the Agents
have a perfected first priority security interest
securing the Obligations."
"Borrowing Base Effectiveness Period. The period
prior to the termination, if any, of the Borrowing
Base Effectiveness Period pursuant to Section 2.9."
(B) The definition of "LIBOR Spread" is amended and restated as
follows:
"LIBOR Spread. Fifty basis points (0.50%)."
(ii) Section 2.1 of the Credit Agreement is hereby amended
by amending and restating the proviso in the first sentence as
follows:
"provided that the sum of the outstanding amount
of the Revolving Credit Loans (after giving
effect to all amounts requested) plus the
Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not at any time
exceed (a) during the Borrowing Base
Effectiveness Period, the lesser of (i) the
Borrowing Base and (ii) the Total Commitment,
and (b) at any other time, the Total Commitment."
(iii) Section 2.2 of the Credit Agreement is hereby amended
and restated as follows:
"2.2 Commitment Fee. The Borrower agrees to
pay to the Agents for the respective accounts of
the Banks in accordance with their respective
Commitment Percentages a commitment fee (each a
"Commitment Fee" and, in the aggregate, the
"Commitment Fee") equal to twenty-five basis
points (0.25%), calculated on the average daily
amount during each calendar quarter, or such
shorter period as may exist from the end of the
final calendar quarter occurring prior to the
Maturity Date until the Maturity Date, by which
the Total Commitment minus the sum of the
Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the
outstanding amount of Revolving Credit Loans
during such calendar quarter. The Commitment
Fee shall be payable quarterly in arrears on the
first day of each calendar quarter for the
immediately preceding calendar quarter
commencing on the first such date following the
date hereof, with a final payment on the earlier
to occur of (i) the Maturity Date and (ii) any
earlier date on which the Commitments shall
terminate pursuant hereto."
(iv) Section 2 of the Credit Agreement is hereby further
amended by inserting a new Section 2.9 as follows:
"2.9 Termination of Borrowing Base. Provided that no
Default or Event of Default then exists, the Borrower may
elect by written notice to the Agents to terminate the
Borrowing Base Effectiveness Period upon delivery to the
Agents of Compliance Certificates evidencing Consolidated
Net Income for the Borrower and its Subsidiaries of not less
than $10,000,000 per fiscal quarter for any two consecutive
fiscal quarters ending after June 30, 1999."
(v) Section 3.2 of the Credit Agreement is hereby amended
by inserting immediately after the word "exceeds" in the third
line the following:
"(i) the Borrowing Base, during the Borrowing Base
Effectiveness Period, or (ii)"
(vi) Section 4.1.1 of the Credit Agreement is hereby
amended by inserting immediately after the word "exceed" in clause
(b) of the first proviso, which clause begins in the eleventh
line, the following:
"(A) during the Borrowing Base Effectiveness Period, the
lesser of (1) the Borrowing Base, and (2) the Total
Commitment, and (B) at any other time,"
(vii) Section 9 of the Credit Agreement is hereby amended by
inserting in the first line immediately after the text "The
Borrower covenants and agrees that," the following:
"after the termination, if any, of the Borrowing Base
Effectiveness Period,"
(viii) Section 11 of the Credit Agreement is hereby
amended by adding a new Section 11.5 as follows:
"11.5 Borrowing Base. After giving effect to any Loan to be
made hereunder and any Letter of Credit to be issued,
extended or renewed hereunder, the principal amount of all
outstanding Loans plus the Maximum Drawing Amount plus the
amount of all outstanding Unpaid Reimbursement Obligations
shall not exceed, during the Borrowing Base Effectiveness
Period, the Borrowing Base."
(ix) Section 28 of the Credit Agreement is hereby deleted
in its entirety.
Amendment to Table of Contents. The Table of Contents of the Credit
Agreement shall be amended to the extent necessary to reflect the
amendments to the Credit Agreement made in subsection (a).
References Within Credit Agreement. Each reference in the Credit
Agreement to "this Agreement" and the words "hereof," "herein,"
"hereunder," or words of like import, shall mean and be a reference to
the Credit Agreement as amended by this Amendment.
Fees. The Borrower shall pay an amendment fee to each Bank equal to
0.10% of such Bank's Commitment. Such amendment fee shall be due and
payable and fully earned on the date hereof and shall be nonrefundable.
Conditions of Effectiveness. The effectiveness of Section 2 of this
Amendment shall be subject to the satisfaction of each of the following
conditions precedent:
Executed Counterpart. The Agents shall have received from the Borrower
a duly executed counterpart of this Amendment.
Fees and Expenses. The Borrower shall have paid (i) all fees then due
in accordance with Section 3 and (ii) all invoiced costs and expenses
then due in accordance with Section 6(d).
Officer's Certificate. The Agents shall have received a certificate of
a Designated Officer of the Borrower, stating that (A) the
representations and warranties contained in Section 5 below are true and
correct on and as of the Effective Date as though made on and as of the
Effective Date, and (B) on and as of the Effective Date, after giving
effect to the amendment of the Credit Agreement contemplated hereby, no
Default shall have occurred and be continuing;
Representations and Warranties; No Default. On the Effective Date,
after giving effect to the amendment of the Credit Agreement
contemplated hereby:
the representations and warranties contained in Section 5 below shall be
true and correct on and as of the Effective Date as though made on and
as of such date; and
no Default shall have occurred and be continuing.
Additional Documents. The Agent shall have received, in form and
substance satisfactory to it, such additional approvals, documents and
other information as the Agents or any Bank (through the Agents) may
reasonably request.
Representations and Warranties. To induce the Banks to enter into this
Amendment, the Borrower hereby confirms and restates, as of the date
hereof, the representations and warranties made by it in Section 6 of
the Credit Agreement and in the other Loan Documents. For the purposes
of this Section 5, (i) each reference in Section 6 of the Credit
Agreement to "this Agreement," and the words "hereof," "herein,"
"hereunder," or words of like import in such Section, shall mean and be
a reference to the Credit Agreement as amended by this Amendment, and
each reference in such Section to "the Loan Documents" shall mean and be
a reference to the Loan Documents as amended as contemplated hereby,
(ii) Section 6.3 of the Credit Agreement shall be deemed instead to
refer to the last day of the most recent fiscal year for which financial
statements have then been delivered, and (iii) any representations and
warranties which relate solely to an earlier date shall not be deemed
confirmed and restated as of the date hereof (provided that such
representations and warranties shall be true, correct and complete as of
such earlier date).
Miscellaneous.
Notice. The Agents shall notify the Borrower and the Banks of the
occurrence of the Effective Date.
Credit Agreement Otherwise Not Affected. Except as expressly amended
pursuant hereto, the Credit Agreement shall remain unchanged and in full
force and effect and is hereby ratified and confirmed in all respects.
The Banks' and the Agents' execution and delivery of, or acceptance of,
this Amendment and any other documents and instruments in connection
herewith (collectively, the "Amendment Documents") shall not be deemed
to create a course of dealing or otherwise create any express or implied
duty by any of them to provide any other or further amendments, consents
or waivers in the future.
No Reliance. The Borrower hereby acknowledges and confirms to the
Agents and the Banks that the Borrower is executing this Amendment and
the other Amendment Documents on the basis of its own investigation and
for its own reasons without reliance upon any agreement, representation,
understanding or communication by or on behalf of any other Person.
Costs and Expenses. The Borrower agrees to pay to the Agents on demand
the reasonable out-of-pocket costs and expenses of the Agents, and the
reasonable fees and disbursements of counsel to the Agents, in
connection with the negotiation, preparation, execution and delivery of
this Amendment and any other documents to be delivered in connection
herewith.
Binding Effect. This Amendment shall be binding upon, inure to the
benefit of and be enforceable by the Borrower, the Agents and each Bank
and their respective successors and assigns.
Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
Complete Agreement; Amendments. This Amendment, together with the other
Amendment Documents and the other Loan Documents, contains the entire
and exclusive agreement of the parties hereto and thereto with reference
to the matters discussed herein and therein. This Amendment supersedes
all prior commitments, drafts, communications, discussion and
understandings, oral or written, with respect thereto. This Amendment
may not be modified, amended or otherwise altered except in accordance
with the terms of Section 25 of the Credit Agreement.
Severability. Whenever possible, each provision of this Amendment shall
be interpreted in such manner as to be effective and valid under all
applicable laws and regulations. If, however, any provision of this
Amendment shall be prohibited by or invalid under any such law or
regulation in any jurisdiction, it shall, as to such jurisdiction, be
deemed modified to conform to the minimum requirements of such law or
regulation, or, if for any reason it is not deemed so modified, it shall
be ineffective and invalid only to the extent of such prohibition or
invalidity without affecting the remaining provisions of this Amendment,
or the validity or effectiveness of such provision in any other
jurisdiction.
Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all
of which taken together shall constitute but one and the same agreement.
Interpretation. This Amendment and the other Amendment Documents are
the result of negotiations between and have been reviewed by counsel to
the Agents, the Borrower and other parties, and are the product of all
parties hereto. Accordingly, this Amendment and the other Amendment
Documents shall not be construed against any of the Banks or the Agents
merely because of the Agents' or any Bank's involvement in the
preparation thereof.
Loan Documents. This Amendment and the other Amendment Documents shall
constitute Loan Documents.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment, as of the date first above written.
THE BORROWER
HMT TECHNOLOGY CORPORATION
By
Name:
Title:
THE AGENTS
CREDIT SUISSE FIRST BOSTON,
as Agent
By
Name:
Title:
By
Name:
Title:
FLEET NATIONAL BANK, as Agent
By
Name:
Title:
THE BANKS
CREDIT SUISSE FIRST BOSTON
By
Name:
Title:
By
Name:
Title:
FLEET NATIONAL BANK
By
Name:
Title: