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Exhibit
10.2
EXECUTIVE VERSION
FOURTH AMENDMENT AND
LIMITED WAIVER AND CONSENT TO THE SENIOR SECURED CREDIT
AGREEMENT
T HIS F
OURTH A MENDMENT AND L
IMITED W AIVER AND C
ONSENT T O T HE S
ENIOR S ECURED C REDIT
AGREEMENT , dated as of February 14, 2008
(this “ Amendment ”), in respect of and
to that certain Senior Secured Credit Agreement, dated as of
October 17, 2006, as amended by the First Amendment to the
Credit Agreement, dated as of June 5, 2007, by the Second
Amendment to the Credit Agreement, dated as of September 11,
2007 and by the Third Amendment to the Credit Agreement, dated as
of February 4, 2008 (as further amended, modified, restated,
amended and restated and/or supplemented from time to time, the
“ Credit Agreement ”), by and among S
ILICON G RAPHICS , I
NC . , a corporation formed under the laws of
Delaware (the “ Parent ”), and certain of
the Parent’s Subsidiaries identified on the signature pages
thereto, as borrowers (such Subsidiaries, together with Parent, are
referred to hereinafter each individually as a “
Borrower ”, and collectively, jointly and
severally, as the “ Borrowers ”), the
other Credit Parties thereto from time to time, as Guarantors, the
lenders party thereto from time to time (the “
Lenders ”), M ORGAN S
TANLEY S ENIOR F
UNDING , I NC . , a corporation
formed under the laws of Delaware (“ Morgan
Stanley ”), as administrative agent for the Lenders
(in such capacity, together with its successors and assigns, if
any, the “ Administrative Agent ”), as
revolving agent for the Revolving Lenders (in such capacity,
together with its successors and assigns, if any, the “
Revolving Agent ”), and M
ORGAN S TANLEY & C
O ., I NCORPORATED (“
MS& Co. ”) as collateral agent for the
Secured Creditors (in such capacity, together with its successors
and assigns, if any, the “ Collateral Agent
”). Capitalized terms used in this Amendment and not
otherwise defined shall have the meanings set forth in the Credit
Agreement.
RECITALS:
W
HEREAS , the Borrower intends to enter into that
certain Stock Purchase Agreement dated as of February 14,
2008, among the Parent and the purchasers party thereto (the
“ Stock Purchase Agreement ”) and into
that certain Bill of Sale, dated as of February 14, 2008,
among the Parent, as buyer, LB I Group, Inc., as collateral agent
for certain secured parties, and the other parties thereto (the
“ Bill of Sale ” and together with the
Stock Purchase Agreement, the “ Acquisition
Documents ”), pursuant to which and in accordance
with the terms and conditions therein the Borrower intends to
acquire selected assets of Linux Networx, Inc., a Delaware
corporation (“ Linux ”), in exchange for
up to 390,000 shares of Capital Stock (the “ Linux
Acquisition ”);
W
HEREAS , the Borrowers have requested that the
aggregate principal amount of the Term Loans be increased from
$127,500,000 to $132,500,000;
W
HEREAS , the Administrative Agent, the
Borrowers, the Required Lenders and each Lender making a Linux
Incremental Term Loan Commitment (as defined below) are willing to
consent to this Amendment pursuant to, and subject to, the terms
and conditions set forth herein.
N OW , T
HEREFORE , the parties agree as
follows:
SECTION 1.
Definitions. Capitalized terms used in this Amendment and
not otherwise defined shall have the meanings set forth in the
Credit Agreement.
SECTION 2.
Amendments to the Credit Agreement. The Credit Agreement is
hereby amended as follows:
2.1 Article I,
Section 1.03(a) is hereby amended and restated by deleting
the section in its entirety and replacing it with the
following:
“ (a) Loan
Commitments. Subject to the terms and conditions set forth
herein, each Term Lender hereby severally agrees to make a term
loan to the Borrowers (i) in the principal amount set forth
opposite each such Term Lender’s name on
Schedule B hereto to the Borrower on the Closing Date
(each an “ Initial Term Loan ”),
(ii) in the principal amount set forth opposite each such Term
Lender’s name on Schedule C hereto to the
Borrowers on the Effective Date (each an “ Incremental
Term Loan ”) and (iii) in the principal amount
set forth opposite each such Term Lender’s name on
Schedule D hereto to the Borrowers on the Linux
Effective Date (each a “ Linux Incremental Term Loan
” and together with the Initial Term Loans and Incremental
Term Loans, the “ Term Loans ”), in each
case in accordance with this Section 1.03 . The
aggregate principal amount of the Term Loans to be advanced shall
not exceed one-hundred-thirty-two million five-hundred thousand
Dollars ($132,500,000). Amounts repaid or prepaid under this
Section 1.03 may not be reborrowed.”
2.2 Article I,
Section 1.03(e) is hereby amended by deleting the table in
its entirety and replacing it with the following:
|
|
|
|
|
Date
|
|
Term Loan
Scheduled Repayment |
| December 26, 2008 |
|
$ |
4,250,000 |
| March 27, 2009 |
|
$ |
4,250,000 |
| June 26, 2009 |
|
$ |
4,250,000 |
| September 25, 2009 |
|
$ |
4,250,000 |
| December 25, 2009 |
|
$ |
5,250,000 |
| March 26, 2010 |
|
$ |
5,250,000 |
| June 25, 2010 |
|
$ |
5,250,000 |
| September 24, 2010 |
|
$ |
5,250,000 |
| December 24, 2010 |
|
$ |
6,250,000 |
| March 25, 2011 |
|
$ |
6,250,000 |
| June 24, 2011 |
|
$ |
6,250,000 |
| Maturity Date |
|
$ |
75,750,000 |
|
|
|
|
| Total |
|
$ |
132,500,000 |
2.3 Article IV is
hereby amended by adding the following new Section 4.04
as follows:
“Section 4.04.
Conditions Precedent to the Linux Incremental Term Loans. The
obligation of each Lender to make the Linux Incremental Term Loans
requested on the Linux Effective Date shall be subject to the
satisfaction, or waiver by the Administrative Agent of each of the
following conditions precedent:
(a) Authority. The
Administrative Agent shall have received certified copies of all
resolutions, certificates or other documents evidencing other
necessary corporate action and governmental approvals, if any, with
respect to the authorization for the execution, delivery and
performance of each Loan Document by a Credit Party and for the
consummation of the transactions contemplated thereby. All
certificates shall state that the resolutions or other information
referred to in such certificates have not been amended, modified,
revoked or rescinded as of the Linux Effective Date.
(b) Loan Documents.
The Administrative Agent shall have received, on or before the
Linux Effective Date, counterparts of each of the following
documents duly executed and delivered by each party thereto, and in
full force and effect and in form and substance reasonably
satisfactory to the Administrative Agent:
(i) this Agreement (including
any amendments thereto);
(ii) the Notes, if
any;
(iii) such corporate
resolutions, certificates and other documents as the Administrative
Agent reasonably requests; and
(iv) all other documents and
legal matters in connection with the transactions contemplated by
the Agreement (including any amendments thereto) shall have been
delivered, executed, or recorded.
(c) No Change in
Condition. There shall not have occurred any event,
circumstance, change or condition since March 31, 2006,
other than the filing of the Bankruptcy Petition, which could
reasonably be expected to have a Material Adverse
Effect.
(d) No Legal
Impediment. No injunction, writ, restraining order, or other
order of any nature (whether temporary, preliminary or permanent)
restricting or prohibiting, directly or indirectly, the extending
of such credit shall have been issued and remain in force by any
Governmental Authority against any Borrower, any Agent or any
Lender, and such extension of credit shall not violate any
requirement of applicable law.
(d) Consents, Etc.
Each Credit Party shall have received all material consents and
authorizations required pursuant to any material contract with any
other Person and shall have obtained all material Permits of, or
approvals from, and effected all notices to and filings with, any
Governmental Authority as may be necessary to allow such Credit
Party lawfully (A) to execute, deliver and perform, in all
material respects,
their respective obligations under the
Loan Documents to which each of them is, or shall be, a party and
each other agreement or instrument to be executed and delivered by
each of them pursuant thereto or in connection therewith,
(B) consummate the transactions contemplated hereunder and
under the other Loan Documents (including the making of the
Incremental Term Loans) and (C) create and perfect the Liens
on the Collateral to be owned by each of them to the extent, in the
manner and for the purpose contemplated by the Loan Documents. Each
Credit Party shall have received all shareholder, governmental and
material third-party consents, licenses, approvals or evidence of
other actions, necessary in connection with the execution and
delivery of the Loan Documents, and the performance thereunder and
the transactions contemplated by the Loan Documents, and any
applicable waiting period shall have expired without any action
being taken by any Governmental Authority that could restrain,
prevent or impose any material adverse conditions on such Credit
Party or such transactions or that could seek to restrain or
threaten any of the foregoing, and no law or regulation shall be
applicable which in the reasonable judgment of the Administrative
Agent could have such effect.
(e) Solvency.
Immediately after the incurrence of the Linux Incremental Term
Loans on the Linux Effective Date, and after giving effect to such
Linux Incremental Term Loans, and use of the proceeds of the Loans,
the Credit Parties, taken as a whole, shall be Solvent.
(f) Opinions of
Borrower’s Counsel. Within ten (10) business days
after the incurrence of the Linux Incremental Term Loans, the
Borrowers shall deliver to the Lenders, and the Lenders shall have
received the opinion of Weil, Gotshal and Manges
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