SECOND AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 10.15
SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT TO CREDIT AGREEMENT dated as of February 24, 2003, by and among NU HORIZONS ELECTRONICS CORP., a Delaware corporation having its executive offices at 00 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx (the “Borrower”), each of the lenders that is a signatory thereto identified under the caption “Lenders” on the signature pages to the Credit Agreement (as defined below) (individually, a “Lender”, and collectively, the “Lenders”), and MELLON BANK, N.A., a national banking association, having offices at 000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).
RECITALS
The Borrower, the Lenders and the Administrative Agent entered into a Credit Agreement dated as of October 18, 2000 as amended by a First Amendment dated as of October 30, 2002 (collectively, the “Credit Agreement”), pursuant to which certain financial accommodations were made available to the Borrower.
The Borrower has requested that the Lenders and the Administrative Agent modify a financial covenant set forth in the Credit Agreement and the Lenders and the Administrative Agent are willing to comply with such request but only upon and subject to the following terms and conditions.
NOW, THEREFORE, in consideration of the premises and mutual covenants and promises exchanged herein, the parties hereto mutually agree as follows:
Section 1. Definitions. Except as otherwise defined in this Second Amendment, terms defined in the Credit Agreement are used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the conditions precedent specified in Section 3 below, the Credit Agreement shall be amended as follows:
1. Section 6.2 of the Credit Agreement is hereby deleted and the following is substituted therefor:
“6.2 Tangible Net Worth. Maintain Tangible Net Worth plus Subordinated Debt at all times during the periods indicated of at least:
| • | $122,000,000 from 2/24/03 to 5/31/03 |
| • | 6/1/03 to 2/27/04—$125,000,000 plus 75% of fiscal year 2003 net income (“‘03 Base”) |
| • | 2/28/04 and thereafter—‘03 Base plus 75% of fiscal year 2004 net income. |
In addition, 75% of the net proceeds received by the Borrower or its Subsidiaries in any fiscal year from any equity offering will be added to the applicable base Tangible Net Worth amount required as set forth above for the next succeeding fiscal year and in each fiscal year thereafter. Net losses, if any, will not be deducted from the applicable base.”
Section 3. Conditions Precedent. The amendment to the Credit Agreement set forth in Section 2 hereof shall become effective, as of the date hereof, upon the execution and delivery of this Second Amendment by the Borrower, the Administrative Agent and each of the Lenders and the satisfaction of the following conditions:
(A) Costs and Expenses. The Administrative Agent shall have received evidence of payment of the Administrative Agent’s reasonable attorneys’ fees and disbursements associated with the preparation of this Second Amendment and any documents executed in connection herewith.
(B) Reaffirmation of Guarantee. The Administrative Agent shall have received a reaffirmation and acknowledgment of the Guarantee duly executed by each of the Guarantors.
(C) Reaffirmation of Security Agreements. The Administrative Agent shall have received a reaffirmation and acknowledgment of the Security Agreements duly executed by the Borrower and each of its Domestic Subsidiaries together with Form UCC-1 financing statement in favor of the Administrative Agent for the benefit of the Lenders (if required), Uniform Commercial Code searches and security agreement questionnaires.
(D) Certified Copies and Other Documents. The Administrative Agent shall have received the following with respect to the Borrower and, unless otherwise indicated below, the Guarantors:
(i) for the Borrower and each Domestic Subsidiary, certificates of good standing from the Secretary of State of New York if incorporated under the laws of the State of New York or doing business in New York and, if incorporated in a jurisdiction other than New York, from the Secretary of State or other applicable Governmental Authority of such jurisdiction of incorporation and from the Secretary of State or other applicable Governmental Authority of each jurisdiction in which an office is maintained, except any jurisdiction where the failure to be qualified would not have a Material Adverse Effect;
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(ii) certificates of an officer of the Borrower dated the date of this Second Amendment certifying (x) no changes in the certificate of incorporation or by-laws from the date of the Credit Agreement or attaching copies of any amendments, (y) true and correct copies of resolutions adopted by the board of directors of the Borrower (1) authorizing the borrowings and the other extensions of credit from the Lenders under the Credit Agreement as amended hereby, the execution, delivery and performance by the Borrower of this Second Amendment and the Reaffirmation and Acknowledgment of Security Agreements and any related documents including the grant of the security interest provided for therein, (2) approving forms in substantially execution form of this Second Amendment and the Security Agreement, and (3) authorizing officers of the Borrower to execute and deliver this Second Amendment and the Security Agreement and any related documents, and (z) the incumbency and specimen signatures of the officers of the Borrower executing any documents delivered to the Administrative Agent or a Lender by the Borrower in connection herewith; and
(iii) certificates of an officer of each Guarantor dated the date of this Second Amendment certifying, (w) no changes in the certificate of incorporation or by-laws from the date of the Credit Agreement or First Amendment, as the case may be, or attaching copies of any amendments, (x) true and correct copies of resolutions adopted by the board of directors of each Guarantor (1) authorizing the execution, delivery and performance by any Guarantor that is a party to the Security Agreements of the Reaffirmation and Acknowledgment of Security Agreements and any related documents including the grant of the security interest provided for therein, (2) authorizing the execution, delivery and performance by such Guarantor of the Reaffirmation and Acknowledgment of Guarantee, and (3) authorizing officers of such Guarantor to execute and deliver the reaffirmations and any related documents, (y) the incumbency and specimen signatures of the officers of such Guarantor executing any documents delivered to the Administrative Agent or a Lender by such Guarantor in connection herewith, and (z) true and correct copies of resolutions adopted by the shareholders of such Guarantor authorizing the execution and delivery of the reaffirmations.
(E) Legal Opinion. The Administrative Agent and each Lender shall have received a favorable opinion of counsel to the Borrower and the Guarantors satisfactory in form and substance to the Administrative Agent and the Lenders and covering such matters incident to the transactions contemplated by this Second Amendment as the Administrative Agent shall reasonably require.
(F) Approval of the Administrative Agent’s Counsel. All other documents and legal matters in connection with the transactions contemplated by this Second Amendment shall be satisfactory in form and substance to the Administrative Agent and its counsel.
Section 4. Representations and Warranties. The Borrower represents and warrants to the Banks that the representations and warranties set forth in the Credit Agreement and in the other Loan Documents are true and complete on the date hereof and as if made on and as of the date hereof (or, if such representation warranty is expressly stated to have been made as of a specific date, as of such specific date) and that no Default or Event of Default has occurred and is continuing.
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Section 5. Governing Law; Execution in Counterparts. Except as herein provided, the Credit Agreement shall remain unchanged and in full force and effect. This Second Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same amendatory instrument and any of the parties hereto may execute this Second Amendment by signing any such counterpart. This Second Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York (without regard to New York conflicts of laws principles).
Section 6. Expenses, etc. The Borrower agrees to pay or reimburse the Administrative Agent for all reasonable out-of-pocket costs and expenses of the Administrative Agent (including, without limitation, the reasonable fees and expenses of Xxxxx & Xxxx-Xxxxx, LLP) in connection with the negotiation, preparation, execution and delivery of this Second Amendment and the transactions contemplated hereby.
Section 7. Effective Date. This Second Amendment is dated for convenience as of February 24, 2003 and shall be effective as of such date, on the delivery of an executed counterpart to the Borrower upon satisfaction of the conditions precedent contained in Section 3 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Credit Agreement to be duly executed and delivered by their duly authorized officers, all as of the day and year first above written.
| Borrower: | ||
| By: |
/s/ Xxxx Xxxxxxx | |
| Xxxx Xxxxxxx | ||
| Vice President/Finance | ||
| Administrative Agent: | ||
| MELLON BANK, N.A., as Administrative Agent | ||
| By: |
/s/ Xxxxx x Xx Xxxxx | |
| Xxxxx X. XxXxxxx Officer | ||
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| Notice Addresses: |
Lenders: | |||
| MELLON BANK, N.A. 3 Mellon Bank Center, 12th Floor, 153-1203, Xxxxxxxxxx, XX 00000 Attn: Xx. Xxxxxxxx Xxxxxxx |
||||
| Vice President w/a copy to 1 Mellon Bank Center Room 151-4425 Xxxxxxxxxx, XX 00000 Attn: Xx. Xxxxx X. XxXxxxx Officer |
MELLON BANK, N.A. | |||
| By: |
/s/ Xxxxx X Xx Xxxxx | |||
| Xxxxx X. XxXxxxx | ||||
| Officer | ||||
| CITIBANK, N.A. 000 Xxxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxxx, XX 00000 Attn: Xx. Xxxxxx Xxxxxx Vice President |
CITIBANK, N.A. | |||
| By: |
/s/ Xxxxxx Xxxxxx | |||
| Xxxxxx Xxxxxx | ||||
| Vice President | ||||
| HSBC BANK USA 000 Xxxxx Xxxxxx Xxxx Xxxxxxxx, XX 00000 Attn: Xx. Xxxxxx Xxxxxxx Vice President |
HSBC BANK USA | |||
| By: |
/s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx Vice President | ||||
| FLEET NATIONAL BANK 000 Xxxxx Xxxxxx Xxxx Xxxxxxxx, XX 00000 Attn: Xx. Xxxxxxxxxxx Xxxxxxxxxx Senior Vice President |
FLEET NATIONAL BANK | |||
| By: |
/s/ Xxxxxxxxxxx Xxxxxxxxxx | |||
| Xxxxxxxxxxx Xxxxxxxxxx | ||||
| Senior Vice President | ||||
| XX XXXXXX CHASE BANK 000 Xxxxx Xxxxxxx Xxxx Xxxxxxxx, XX 00000 Attn: Xx. Xxxxxxx XxXxxx, Xx. Vice President |
XX XXXXXX CHASE BANK | |||
| By: |
/s/ Xxxxxxx De Xxxx Xx. | |||
| Xxxxxxx XxXxxx, Xx. | ||||
| Vice President | ||||
| THE BANK OF NEW YORK 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxx, XX 00000 Attn: Xx. Xxxxx X. Xxxxx, Xx. Vice President |
THE BANK OF NEW YORK | |||
| By: |
/s/ Xxxxx X. Xxxxx Xx. | |||
| Xxxxx X. Xxxxx, Xx. | ||||
| Vice President | ||||
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Xxxxx xx Xxx Xxxx, Xxxxxx xx Xxxxxx, ss:
On the day of February, in the year 2003, before me the undersigned, personally appeared XXXX XXXXXXX, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument.
Notary Public
State of , County of , ss:
On the day of February, in the year 2003, before me the undersigned, personally appeared XXXXX X. XXXXXXX, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument.
Notary Public
State of , County of , ss:
On the day of February, in the year 2003, before me the undersigned, personally appeared XXXXX X. XXXXXXX, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument.
Notary Public
State of New York, County of Suffolk, ss:
On the day of February, in the year 2003, before me the undersigned, personally appeared XXXXXX XXXXXX, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument.
Notary Public
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Xxxxx xx Xxx Xxxx, Xxxxxx xx Xxxxxxx, ss:
On the day of February, in the year 2003, before me the undersigned, personally appeared XXXXXX XXXXXXX, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument.
Notary Public
State of New York, County of Suffolk, ss:
On the day of February, in the year 2003, before me the undersigned, personally appeared XXXXXXXXXXX XXXXXXXXXX, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument.
Notary Public
State of New York, County of Suffolk, ss:
On the day of February, in the year 2003, before me the undersigned, personally appeared XXXXXXX XXXXXX, XX., personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument.
Notary Public
State of New York, County of Nassau, ss:
On the day of February, in the year 2003, before me the undersigned, personally appeared XXXXX X. XXXXX, XX., personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument.
Notary Public
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