EXHIBIT 10.85.9
CLOSING
CHECKLIST
RENEWAL AND EXTENSION OF
THE
REVOLVING LINE OF CREDIT PROVIDED
BY
COMERICA BANK
TO
MICROSEMI
CORPORATION
MARCH 29, 2005
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LENDER:
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Comerica
Bank (“Comerica”)
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BORROWER:
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Microsemi
Corporation
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TRANSACTION:
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Amendment to
$30,000,000 Revolving Line of Credit
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I.
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PRIMARY LOAN
DOCUMENTS
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1.
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Amendment to
Credit Agreement 1
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2.
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Consent of
Guarantors 1
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3.
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Judicial
Reference Letter 1
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4.
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Reimbursement
of Bank’s Legal Fees and Expenses 2
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2
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To
be provided by Borrower.
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NINTH AMENDMENT
TO
CREDIT AGREEMENT
Dated as of March 29,
2005
This NINTH AMENDMENT TO CREDIT
AGREEMENT (this “ Amendment ”) is among
MICROSEMI CORPORATION , a Delaware corporation (the “
Borrower ”), the several financial institutions party
to the Credit Agreement referred to below (collectively, the
“ Lenders ”; individually, a “
Lender ”), and COMERICA BANK , as
administrative agent for the Lenders (the “ Administrative
Agent ”).
PRELIMINARY
STATEMENTS:
(1) The Borrower, the Lenders and
the Administrative Agent have entered into that certain Credit
Agreement dated as of April 2, 1999, as amended by the First
Amendment to Credit Agreement dated as of June 25, 1999, the Second
Amendment to Credit Agreement dated as of February 14, 2000, the
Third Amendment to Credit Agreement dated as of April 2, 2001, the
Fourth Amendment to Credit Agreement dated as of May 25, 2002, the
Fifth Amendment to Credit Agreement dated as of December 5, 2002,
the Sixth Amendment to Credit Agreement dated as of December 10,
2003, the Seventh Amendment to Credit Agreement dated as of March
31, 2004 and the Eighth Amendment to Credit Agreement dated as of
March 31, 2004 (as so amended the “ Credit Agreement
”; capitalized terms used and not otherwise defined herein
have the meanings assigned to such terms in the Credit
Agreement).
(2) The Borrower has requested that
the Administrative Agent and the Lenders make certain amendments to
the Credit Agreement.
(3) The Administrative Agent and the
Lenders are, on the terms and conditions stated below, willing to
grant the request of the Borrower.
NOW, THEREFORE
in consideration of the premises and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as: follows:
SECTION 1. Amendments to
Credit Agreement . Effective as of the date hereof and subject to
the satisfaction of the conditions precedent set forth in Section 2
hereof, the Credit Agreement is hereby amended as
follows:
(a) The definition of the term
“Stated Maturity Date” in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
“ Stated Maturity Date
means March 31, 2007.”
(b) Section 10.9, Governing Law,
shall be amended and restated in its entirely to read as
follows:
“Section 10.9. Governing
Law; Entire Agreement. THIS AGREEMENT, THE NOTES AND EACH OTHER
LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA (WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS).
This Agreement, the Notes and the other Loan Documents constitute
the entire understanding among the parties hereto with respect to
the subject matter hereof and supersede prior agreements, written
or oral, with respect thereto.”
(c) Section 10.13., Forum Selection
and Consent to Jurisdiction, shall be amended and restated in its
entirety to read as follows:
“Section 10.13 Forum
Selection and Consent to Jurisdiction . Borrower, Lenders and
Administrative Agent hereby irrevocably submit to the non-exclusive
jurisdiction of any United States Federal Court or California state
court sitting in Los Angeles, California in any action or
proceeding arising out of or relating to this Agreement or any of
the Loan Documents and Borrower, Lenders and Administrative Agent
hereby irrevocably agree that all claims in respect of such action
or proceeding may be heard and determined in any such United States
Federal Court or California state court. Borrower irrevocably
consents to the service of any and all process in any such action
or proceeding brought in any court in or of the State of California
by the delivery of copies of such process to Borrower at its
address specified on the signature page hereto or by certified mail
directed to such address or such other address as may be designated
by Borrower in a notice to the other parties that complies as to
delivery with the terms of Section 10.2. Nothing in this Section
shall affect the right of Administrative Agent to serve process in
any other manner permitted by law or limit the right of the
Administrative Agent to bring any such action or proceeding against
Borrower or any of Borrower’s Subsidiaries or any of their
property in the courts with subject matter jurisdiction of any
other jurisdiction. Borrower irrevocably waives any objection to
the laying of venue of any such suit or proceeding in the above
described courts.”
SECTION 2. Conditions to
Effectiveness . The
amendments in Section 1 of this Amendment shall be effective as of
the date hereof, subject to the Administrative Agent’s
receipt of the following on or before March 29, 2005:
(a) counterparts of this Amendment
executed by the Administrative Agent, the Borrower and all
Lenders;
(b) a reaffirmation of the Guaranty,
in form and substance satisfactory to the Agent, duly-executed by
each Guarantor; and
(c) such other documentation as the
Administrative Agent or any Lender shall reasonably
request.
SECTION 3. Representations and
Warranties . The
Borrower represents and warrants as follows:
(a) Authority: Enforceability
. The Borrower has the requisite corporate power and authority to
execute, deliver and perform this Amendment, and to perform its
obligations under the Credit Agreement as amended hereby. The
execution, delivery and performance by the Borrower of this
Amendment, and the consummation of the transactions contemplated
hereby, have been duly approved by the Board of Directors of the
Borrower and no other corporate proceedings on the part of the
Borrower are necessary to consummate such transactions. This
Amendment has been duly executed and delivered by the Borrower.
Each of this Amendment and the Credit Agreement as amended hereby
constitutes the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its
terms.
(b) Loan Document Representations
and Warranties . The representations and warranties contained
in each Loan Document are true and correct on and as of the date
hereof, before and after giving effect to this Amendment, as though
made on and as of such date (unless stated to relate solely to an
earlier date, in which case such representations and warranties
shall be true and correct as of such earlier date).
(c) Absence of Default . No
event has occurred and is continuing, or would result from the
effectiveness of this Amendment, that constitutes a
Default.
SECTION 4. Reference to and
Effect on the Loan Documents . (a) Upon and after the effectiveness of this
Amendment, each reference in the Credit Agreement to “this
Agreement”, “hereunder”, “hereof” or
words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to “the Credit
Agreement”, “thereunder”, “thereof”
or words of like import referring to the Credit Agreement, shall
mean and be a reference to the Credit Agreement as modified and
amended hereby.
(b) Except as specifically amended
above, the Credit Agreement and all other Loan Documents are and
shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed.
(c) The execution, delivery and
effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy
of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the
Loan