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EXHIBIT 10.47.1
[GE CAPITAL COMMERCIAL FINANCE, INC. LETTERHEAD]
March 8, 2001
Western Digital Corporation
8105 Irvine Center Drive
Irvine, CA 92618
Attn: Mr. Steven M. Slavin
Vice President, Taxes and Treasurer
Re: First Amendment to Credit Agreement
Gentlemen:
Reference is made to (a) the Credit Agreement dated as of September 20,
2000 (including all annexes, exhibits and schedules thereto, as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Western Digital Corporation ("Borrower"), the
other credit parties party thereto, the lenders from time to time signatory
thereto ("Lenders"), General Electric Capital 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") and
(b) the open items letter agreement dated September 20, 2000, as amended by the
Amendment to Open Items Letter dated as of October 19, 2000 (collectively, the
"Open Items Letter"). 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.
Connex intends to form a wholly owned Subsidiary named SANavigator,
Inc., a Delaware corporation ("SANavigator"). In connection with the formation
of SANavigator, Borrower has requested that Co-Agents and Lenders (a) consent to
the formation of SANavigator, (b) amend the definition of "Excluded Subsidiary"
in the Credit Agreement to include SANavigator, and (c) amend the Open Items
Letter, and Co-Agents and Lenders are willing to do so subject to the terms and
conditions of this First Amendment to Credit Agreement ("First Amendment").
1. Ratification and Incorporation of Credit Agreement. Except as
expressly modified under this First 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 (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. Consent under Credit Agreement. Pursuant to Section 6.1 of the Credit
Agreement, Borrower is prohibited from forming or acquiring or permitting any of
its Subsidiaries from forming or acquiring, any Subsidiary (with certain
exceptions) unless Co-Agents and Requisite
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Lenders have given their prior written consent thereto. At the request of
Borrower, Co-Agents and Requisite Lenders hereby consent to the formation by
Connex of SANavigator.
3. Amendment to Credit Agreement. The definition of "Excluded
Subsidiary" in Annex A of the Credit Agreement is hereby deleted in its entirety
and the following is substituted therefor:
"Excluded Subsidiaries" shall mean Connex, SageTree, Pacifica, Cameo
Technologies, Inc, a Delaware corporation formerly known as WDC.NET,
Inc., Keen Personal Media, Inc., a Delaware corporation, Keen Personal
Technologies, Inc., a Delaware corporation, SANavigator, Inc., a
Delaware corporation, and Targets that become "Excluded Subsidiaries" in
accordance with the provisions of Section 6.1.
4. Extension of Deadline for Certain Open Items. At Borrowers' request,
Agent agrees to extend the deadline for the occurrence of the Corporation
Reorganization under and as defined in the Open Items Letter. Paragraph 10 of
the Open Items Letter is deleted in its entirety and the following is
substituted therefor:
10. If the Corporate Reorganization has not occurred on or before May
31, 2001, then (a) the Loan Documents shall be amended to exclude Intera
Systems, Inc., a California corporation ("Intera"), and Aristos Logic
Corporation, a California corporation ("Aristos"), as Excluded
Investments, and (b) Borrower shall pledge its current interests in
Intera and Aristos to Agent, for the benefit of Agent and Lenders, in
whatever form such interests are in as of May 31, 2001, and deliver to
Agent, for the benefit of Agent and Lenders, such current interests
accompanied by duly executed instruments of transfer or assignment in
blank in accordance with the terms of the Pledge Agreement and shall
constitute "Pledged Collateral" thereunder; provided, that prior to May
31, 2001, Borrower shall have no duty whatsoever to preserve the Intera
or Aristos investments and may deal with such investments in its sole
discretion.
If Borrower fails to comply with the provisions of Paragraph 10 of the Open
Items Letter, then such failure shall constitute an Event of Default under the
Credit Agreement.
5. Conditions to Effectiveness. The effectiveness of this First
Amendment is subject to satisfaction of each of the following conditions
precedent:
(a) receipt by Co-Agents of a copy of this First Amendment duly
executed by Borrower, each of the other Credit Parties, Co-Agents and Requisite
Lenders;
(b) receipt by Co-Agents of a copy of the Second Amendment to
Patent, Trademark and Copyright Security Agreement executed by Borrower,
Co-Agents and Lenders; and
(c) the absence of any Defaults or Events of Default.
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6. Entire Agreement. This First 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 First Amendment
supersedes all prior and contemporaneous oral and written agreements and
discussions with respect to the subject matter hereof. Except as otherwise
expressly modified herein, the Loan Documents shall remain in full force and
effect.
7. 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 such
other Credit Party has previously advised Co-Agents in writing as contemplated
under the Credit Agreement, are true and correct in all material respects as of
the date hereof. This First Amendment has been duly executed and delivered by
each Credit Party and constitutes a legal, valid and binding Obligation of such
Person, enforceable against such Person in accordance with its terms.
8. Miscellaneous.
(a) Counterparts. This First 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 First Amendment or the Consent 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 First Amendment, and are not to be taken
into consideration in interpreting this First Amendment.
(c) Governing Law. This First Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of California
applicable to contracts made and performed in such state, without regard to the
principles thereof regarding conflict of laws.
(d) Effect. Upon the effectiveness of this First 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 Sections 2, 3 and 4
of this First Amendment, the execution, delivery, and effectiveness of this
First Amendment shall not (i) limit, impair, constitute a waiver of, or
otherwise affect any right, power, or remedy of Co-Agents and Lenders 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
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contained in the Credit Agreement, 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 First Amendment and any provision of the Credit Agreement or
the Open Items Letter, the terms and provisions of this First Amendment shall
govern and control.
9. Reaffirmation by Guarantors. Each Credit Party that is also a
Guarantor, by its execution of this First Amendment, consents to the terms
hereof and ratifies and reaffirms all of the provisions of the Guaranties.
[Remainder of Page Intentionally Left Blank]
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Please indicate your acknowledgment and agreement to all of the
foregoing by executing a copy of this letter where indicated below and returning
it to the undersigned.
Very truly yours,
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent and a Lender
By: /s/ ROBERT S. YASUDA
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Robert S. Yasuda
Duly Authorized Signatory
BANK OF AMERICA, N.A.,
as Documentation Agent and a Lender
By: /s/ STEPHEN E. ROSSI
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Name: Stephen E. Rossi
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Title: AVP
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THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ DALE GEORGE
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Name: Dale George
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Title: Vice President
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AGREED TO AND ACCEPTED BY:
WESTERN DIGITAL CORPORATION
By: /s/ STEVEN M. SLAVIN
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Name: Steven M. Slavin
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Title: V.P. Taxes & Treasurer
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[Signatures Continued on Following Page]
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WESTERN DIGITAL (U.K.), LTD., a
corporation organized under the laws of
the United Kingdom
By: /s/ MICHAEL A. CORNELIUS
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Name: Michael A. Cornelius
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Title: Director
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WESTERN DIGITAL (I.S.) LIMITED, a
corporation organized under
the laws of Ireland
By: /s/ MICHAEL A. CORNELIUS
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Name: Michael A. Cornelius
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Title: Director
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