EX 10.30
AMENDMENT NO. 6
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 6 TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
December 20, 1999 ("this Amendment"), among:
(i) MIAMI COMPUTER SUPPLY CORPORATION, an Ohio corporation
(herein, together with its successors and assigns, the "Borrower");
(ii) the financial institutions listed on the signature pages
hereof (the "Lenders");
(iii) NATIONAL CITY BANK, a national banking association, as a
Lender and as Documentation Agent: and
(iv) PNC BANK, NATIONAL ASSOCIATION, a national banking
association, as a Lender, the Swing Line Lender, a Letter of Credit
Issuer and as Administrative Agent (the "Administrative Agent") for the
Lenders under the Credit Agreement:
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders named therein, and the Administrative
Agent entered into the Amended and Restated Credit Agreement, dated as
of December 1, 1998, as amended by Amendment No. 1 thereto, dated as of
March 31, 1999. Amendment No. 2 thereto, dated as of April 19,1999,
Amendment No. 3 thereto, dated as of August 13, 1999, Amendment No. 4
thereto, dated as of August 31, 1999, and Amendment No. 5 thereto, dated
as of December 20, 1999 (as so amended, the "Credit Agreement": with the
terms defined therein, or the definitions of which are incorporated
therein, being used herein as so defined).
(2) The parties hereto desire to amend certain of the provisions of the
Credit Agreement, all as more fully, set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
1. Amendments, etc. 1.1 Increase in Total General Revolving
Committment Additional Lender. Effective on the Effective Date of this
Amendment provided for in section 3 hereof:
(a) the Total General Revolving Commitment is increased from
$150,000,000 to 160,000,000:
(b) the General Revolving Commitments of all of the existing
Lenders (herein, together with their successors and assigns, the "Existing
Lenders") remain at the existing levels, namely $25,000,000 each: and
(c) The Provident Bank (herein, together with its successors and
assigns, the "New Lender") joins in the Agreement with a General Revolving
Commitment of $10,000,000, and
Annex 1 to the Credit Agreement is amended to reflect the addition of The
Provident Bank as a Lender with a General Revolving Commitment of $10,000,000.
1.2 ACTIONS NECESSARY FOR PRO RATA PARTICIPATION BY NEW LENDER IN
OUTSTANDING LOANS, ETC. Notwithstanding anything to the contrary contained
in the Credit Agreement:
(a) during the period ending March 31, 2000 (or such earlier date
as the Administrative Agent may specify on notice to the other parties),
the parties will take such actions as the Administrative Agent may
specify so that by the end of such period the New Lender's percentage of
each Borrowing of General Revolving Loans which is then outstanding is
identical to its General Revolving Facility Percentage;
(b) in furtherance of and without limitation of the foregoing,
during such period the Administrative Agent may require that the New
Lender fund new General Revolving Loans disproportionately to, or to the
exclusion of, some or all of the other Lenders, until the New Lender's
percentage of each Borrowing of General Revolving Loans which is then
outstanding is identical to its General Revolving Facility Percentage;
(c) during the period referred to above.
(1) all selections by the Borrower of the duration of
an Interest Period shall be subject to the approval of the
Administrative Agent.
(2) the Administrative Agent may permit a new
Interest Period to be of a specified duration shorter than one
month (but priced as if it were a one month period).
(3) to the extent reasonably feasible, the
Administrative Agent shall endeavor to coordinate new
Borrowings such that all Eurodollar Loans have Interest Periods
which end at the same time or reasonably contemporaneously, and
(4) the Administrative Agent may restrict the
availability of Eurodollar Loans consistent with the foregoing;
(d) if on March 31, 2000 (or an earlier date selected by the
Administrative Agent and notified to the other parties), the percentage
of any Lender of any Borrowing of General Revolving Loans is not the
same as such Lender's General Revolving Facility Percentage, then the
Borrower will on such Business Day as may be selected by the
Administrative Agent and notified to all of the other parties on not
less than two Business Day's prior written notice, prepay such
Borrowings of General Revolving Loans as the Administrative Agent may
specify, together with accrued interest and any breakage compensation
payable under section 2.10 of the Credit Agreement, subject to the right
of the Borrower to re-borrow some or all of such General Revolving Loans
on a pro rata basis from all Lenders;
(e) during the period referred to above and in order to eliminate
any further complications which might result therefrom. The Provident
Bank will not assign or transfer any Commitment under the Credit
Agreement without the prior approval of the Administrative Agent; and
2
(f) notwithstanding the above, no Lender shall be obligated to
make any General Receiving Loan which would result in such Lender's
aggregate General Revolving Loans, plus its General Revolving Facility
Percentage of the Letter of Credit Outstandings, exceeding its then
General Revolving Commitment.
2. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Lenders and the Administrative Agent as follows:
(a) AUTHORIZATION, VALIDITY AND BINDING EFFECT. This Amendment has
been duly authorized by all necessary corporate action on the part of
the Borrower, has been duly executed and delivered by a duly authorized
officer or officers of the Borrower, and constitutes the valid and
binding agreement of the Borrower, enforceable against the Borrower in
accordance with its terms.
(b) REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The
representations and warranties of the Borrower contained in the Credit
Agreement, as amended hereby, are true and correct on and as of the date
hereof as though made on and as of the date hereof, except to the extent
that such representations and warranties expressly relate to the
specified date, in which case such representations and warranties are
hereby reaffirmed as true and correct when made.
(c) NO EVENT OF DEFAULT, ETC. No condition or event has occurred
or exists which constitutes or which, after notice or lapse of time or
both, would constitute an Event of Default.
(d) COMPLIANCE. The Borrower is in full compliance with all
covenants and agreements contained in the Credit Agreement, as amended
hereby.
(e) RECENT FINANCIAL STATEMENTS. The Borrower has furnished to
the Lenders and the Administrative Agent complete and correct copies of
the unaudited condensed consolidated balance sheet of the Borrower and
its consolidated subsidiaries as of September 30, 1999, and the related
unaudited condensed consolidated statements of income and of cash flows
of the Borrower and its consolidated subsidiaries for the fiscal period
then ended, as contained in the Form 10-Q Quarterly Report of the
Borrower filed with the SEC. All such financial statements have been
prepared in accordance with GAAP, consistently applied (except as stated
therein), and fairly present the financial position of the Borrower and
its consolidated subsidiaries as of the date indicated and the
consolidated results of their operations and cash flows for the period
indicated, subject to normal audit adjustments, none of which will
involve a Material Adverse Effect.
3. EFFECTIVENESS. This Amendment shall become effective on the date
(the "EFFECTIVE DATE"), on or before January 20, 2000, if the following
conditions are satisfied on or before the Effective Date:
(a) this Amendment shall have been executed by the Borrower and
the Administrative Agent, and counterparts hereof as so executed shall
have been delivered to the Administrative Agent;
(b) the Acknowledgment and Consent appended hereto shall have
been executed by the Credit Parties named therein, and counterparts
hereof as so executed shall have been delivered to the Administrative
Agent;
3
(c) the Administrative Agent shall have been notified by the New
Lender and all of the Existing Lenders that such Lenders have executed
this Amendment (which notification may be by facsimile or other written
confirmation of such execution);
(d) the Borrower shall have duly executed and delivered to the
Administrative Agent, for the account of the New Lender, a General
Revolving Note made payable to the order of the New Lender and
conforming to the requirements of the Credit Agreement;
(e) the Borrower shall have delivered to the Administrative Agent
a certificate of its Secretary or an Assistant Secretary, dated as of a
recent date, certifying the due adoption by the Board of Directors of a
resolution or resolutions approving the increase in the Total General
Revolving Commitment under the Credit Agreement to $160,000,000, and
certifying that such resolution(s) remains in full force and effect, and
such certificate and resolution(s) shall be satisfactory in form and
substance to the Administrative Agent; and
(f) either (x) the Borrower shall have paid directly to the New
Lender such nonrefundable closing fees as have been previously agreed to
between the Borrower and the New Lender, or (y) the Borrower shall have
paid such fees to the Administrative Agent, for the account of the New
Lender (the Administrative Agent hereby agreeing to promptly re-transmit
such fees to the New Lender).
Subject to satisfaction of the foregoing conditions, the Administrative Agent
shall notify the Borrower and each Lender in writing of the effectiveness
hereof.
4. RATIFICATIONS. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and
provisions set forth in the Credit Agreement, and except as expressly
modified and superseded by this Amendment, the terms and provisions of
the Credit Agreement are ratified and confirmed and shall continue
in full force and effect.
5. MISCELLANEOUS. 5.1. SUCCESSORS AND ASSIGNS. This Amendment
shall be binding upon and inure to the benefit of the Borrower, each
Lender and the Administrative Agent and their respective permitted
successors and assigns.
5.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Amendment shall survive the
execution and delivery of this Amendment, and no investigation by the
Administrative Agent or any Lender or any subsequent Loan or issuance of
a Letter of Credit shall affect the representations and warranties or
the right of the Administrative Agent or any Lender to rely upon them.
5.3. REFERENCE TO CREDIT AGREEMENT. The Credit Agreement and any
and all other agreements, instruments or documentation now or hereafter
executed and delivered pursuant to the terms of the Credit Agreement as
amended hereby, are hereby amended so that any reference therein to the
Credit Agreement shall mean a reference to the Credit Agreement as
amended hereby.
5.4. EXPENSES. As provided in the Credit Agreement, but without
limiting any terms, or provisions hereof, the Borrower agrees to pay on
demand all costs and expenses incurred by the Administrative Agent in
connection with the preparation, negotiation, and execution of this
Amendment, including without limitation the costs and fees of the
Administrative Agent's special legal counsel, regardless of whether this
Amendment becomes effective in accordance with the terms hereof, and all
costs
4
and expenses incurred by the Administrative Agent or any Lender in connection
with the enforcement or preservation of any rights under the Credit
Agreement, as amended hereby.
5.5. SEVERABILITY. Any term or provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this Amendment and the effect
thereof shall be confined to the term or provision so held to be invalid or
unenforceable.
5.6. APPLICABLE LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Ohio.
5.7. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.8. ENTIRE AGREEMENT. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other
instruments, agreements and documentation executed and delivered in
connection with this Amendment embody the final, entire agreement among the
parties hereto with respect to the subject matter hereof and supersede any
and all prior commitments, agreements, representations and understandings,
whether written or oral, relating to the matters covered by this Amendment,
and may not be contradicted or varied by evidence of prior, contemporaneous
or subsequent oral agreements or discussions of the parties hereto. There are
no oral agreements among the parties hereto relating to the subject matter
hereof or any other subject matter relating to the Credit Agreement.
5.9. COUNTERPARTS. This Amendment may be executed by the parties
hereto separately in one or more counterparts, each of which when so executed
shall be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement.
5
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the date first above written.
MIAMI COMPUTER SUPPLY PNC BANK, NATIONAL ASSOCIATION,
CORPORATION INDIVIDUALLY AS A LENDER, A LETTER OF
CREDIT ISSUER, THE SWING LINE LENDER
AND AS ADMINISTRATIVE AGENT
By: /s/ Xxx X. Xxxxxxx
-------------------------- By: /s/ Xxx Xxxxxx
Title: CFO -----------------------------------
Vice President
NATIONAL CITY BANK, FIRSTAR BANK, N.A.
INDIVIDUALLY AS A LENDER AND
AS DOCUMENTATION AGENT
By: /s/ Xxxxxx Xxxxxx
-------------------------- By: /s/ Xxxx Xxxxxx
Title: Vice President -----------------------------------
Title: Vice President
KEY CORPORATE CAPITAL INC. THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxx Xxxxxxxx
-------------------------- By: /s/ Xxxxx Kelcheimer
Title: AVP -----------------------------------
Title: Vice President
BANK ONE, INDIANA, N.A. THE PROVIDENT BANK
By: /s/ Xxxxxx Xxxxxxxx
-------------------------- By: /s/ Xxxxx X. Xxxxx
Title: First Vice President -----------------------------------
Title: Vice President
6