SECOND AMENDMENT AGREEMENT
dated as of January 15, 1996
among
MICRO WAREHOUSE, INC.
MICRO WAREHOUSE (AUSTRALIA) PTY LIMITED
THE LENDERS SIGNATORY HERETO
and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
as Administrative Agent
SECOND AMENDMENT AGREEMENT
SECOND AMENDMENT AGREEMENT (this "Agreement") dated as of January 15, 1996
among MICRO WAREHOUSE, INC., a corporation organized under the laws of Delaware
("Micro Warehouse"); MICRO WAREHOUSE (AUSTRALIA) PTY LIMITED, a corporation
organized under the laws of Australia (the "New Subsidiary Borrower"); each of
the financial institutions which is a signatory hereto as a "Lender"
(individually a "Lender" and collectively the "Lenders"); and THE CHASE
MANHATTAN BANK (NATIONAL ASSOCIATION), a national banking association organized
under the laws of the United States of America, as agent for the Lenders (in
such capacity, together with its successors in such capacity, the
"Administrative Agent").
WHEREAS, Micro Warehouse, each of the Subsidiaries of Micro Warehouse which
is signatory thereto as a "Subsidiary Borrower" (collectively, together with the
New Subsidiary Borrower, the "Subsidiary Borrowers" and, together with Micro
Warehouse, the "Borrowers"), each of the other Subsidiaries of Micro Warehouse
which is a signatory thereto as a "Subsidiary Guarantor" (collectively the
"Subsidiary Guarantors" and, together with the Borrowers, the "Obligors"), the
Lenders and the Administrative Agent have entered into that certain Credit
Agreement dated as of July 25, 1995 (as in effect prior to the effectiveness of
this Agreement, the "Existing Credit Agreement," and, as amended by this
Agreement, the "Amended Credit Agreement") pursuant to which the Lenders have
extended credit to the Obligors evidenced by certain Revolving Credit Notes
issued by the respective Borrower and guarantied by the other Borrowers and the
Subsidiary Guarantors;
WHEREAS, Micro Warehouse, the New Subsidiary Borrower, the Lenders and the
Administrative Agent have agreed to enter this Agreement to provide for the
addition of the New Subsidiary Borrower as a "Subsidiary Borrower" under the
Existing Credit Agreement and the other Facility Documents;
WHEREAS, the New Subsidiary Borrower hereby acknowledges and confirms that
it has received a copy of the Existing Credit Agreement and the other Facility
Documents and hereby acknowledges and confirms, as being applicable to it, the
recitals set forth in the Facility Documents, and in particular that it expects
to derive benefit, direct or indirect, from the credit heretofore and hereafter
outstanding to the Obligors under the Amended Credit Agreement; and
WHEREAS, the Facility Documents, as amended and supplemented by this
Agreement (including, without limitation, this Agreement and the Amended Credit
Agreement) and as each may be amended or supplemented from time to time, are
referred to herein as the "Amended Facility Documents".
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
20. AMENDMENTS TO EXISTING CREDIT AGREEMENT.
Each of Micro Warehouse, the New Subsidiary Borrower and, subject to the
satisfaction of the conditions set forth in Article 3, the Administrative Agent
and the Lenders hereby consents and agrees to the amendments to the Existing
Credit Agreement set forth below:
(a) The definition of "Subsidiary Borrower" in the introductory
paragraph of the Existing Credit Agreement is hereby amended to add the
following Subsidiary Borrower: MICRO WAREHOUSE (AUSTRALIA) PTY LIMITED.
(b) The definition of "Subsidiary Guarantor" in the introductory
paragraph of the Existing Credit Agreement is hereby amended to add the
following Subsidiary Guarantor: MICRO WAREHOUSE (AUSTRALIA) PTY LIMITED.
(c) Schedule I to the Existing Credit Agreement is hereby
amended and restated as set forth in SCHEDULE I hereto.
21. REPRESENTATIONS AND WARRANTIES.
Each of Micro Warehouse and the New Subsidiary Borrower (as to itself and
its Subsidiaries) hereby represents and warrants that:
01. EXISTING REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties contained in Article 6 of the Existing Credit Agreement and in
each of the other Facility Documents are true and correct (except that all
references to March 31, 1995 in Section 6.05 of the Existing Credit Agreement
shall be to September 30, 1995).
02. NO DEFAULTS. No event has occurred and no condition exists which
would constitute a Default or an Event of Default under the Facility Documents,
and no event has occurred and no condition exists which would constitute a
Default or an Event of Default under the Amended Facility Documents.
03. CORPORATE POWER AND AUTHORITY; NO CONFLICTS. The execution, delivery
and performance by each of the Obligors of the Amended Facility Documents to
which it is a party, the borrowings under the Amended Credit Agreement and the
issuance of the Letters of Credit have been duly authorized by all necessary
corporate action and do not and will not: (a) require any consent or approval of
its stockholders; (b) contravene its charter or by-laws; (c) violate any
provision of, or require any filing,
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registration, consent or approval under, any law, rule, regulation (including,
without limitation, any exchange control law or regulation), order, writ,
judgment, injunction, decree, determination or award presently in effect having
applicability to any Consolidated Entity; (d) result in a breach of or
constitute a default or require any consent under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which any
Consolidated Entity is a party or by which it or its Properties may be bound or
affected; (e) result in, or require, the creation or imposition of any Lien,
upon or with respect to any of the Properties now owned or hereafter acquired by
any Consolidated Entity; or (f) cause any Consolidated Entity to be in default
under any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or any such indenture, agreement, lease or instrument.
04. LEGALLY ENFORCEABLE AGREEMENTS. Each Amended Facility Document to
which any Obligor is a party is, or when delivered under this Agreement will be,
a legal, valid and binding obligation of such Obligor enforceable against such
Obligor in accordance with its terms, except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency and other similar laws
affecting creditors' rights generally.
22. CONDITIONS PRECEDENT.
The consent and the agreement of the Administrative Agent and the Lenders
to the amendments set forth in Article 1 are subject to the condition precedent
that the Administrative Agent shall have received on or before January 15, 1996
(the "Effective Date") each of the following, in form and substance satisfactory
to the Administrative Agent and its counsel:
(a) counterparts of this Agreement executed by each of Micro
Warehouse, the New Subsidiary Borrower, the Lenders and the Administrative
Agent;
(b) new Revolving Credit Notes executed by each of Micro
Warehouse and the New Subsidiary Borrower; and
(c) an opinion of Lev & Berlin, P.C., outside counsel to the
Consolidated Entities, dated the Effective Date, in substantially the form of
EXHIBIT A1 hereto, and an opinion of foreign local counsel to the New Subsidiary
Borrower, dated the Effective Date, in substantially the form of EXHIBIT A2
hereto.
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23. MISCELLANEOUS.
01. DEFINED TERMS. The terms used herein and not defined herein shall
have the meanings assigned to such terms in the Existing Credit Agreement.
02. NONWAIVER. The terms of this Agreement shall not operate as a waiver
by the Agent or the Lenders, or otherwise prejudice the rights, remedies or
powers of the Agent or the Lenders, under the Amended Facility Documents or
under applicable law. Except as expressly provide herein: (a) no terms and
provisions of the Facility Documents are modified or changed by this Agreement;
and (b) the terms and provisions of the Facility Documents shall continue in
full force and effect.
03. NEW SUBSIDIARY BORROWER. The New Subsidiary Borrower unconditionally
and irrevocably accepts, adheres to, and becomes party to and bound as a
"Subsidiary Borrower" under the Existing Credit Agreement, as fully if the New
Subsidiary Borrower had been signatory to the Existing Credit Agreement as a
"Subsidiary Borrower". In confirmation (but without limitation) of the
foregoing, the New Subsidiary Borrower hereby unconditionally agrees to make
prompt payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on all obligations under the
Revolving Credit Note to which it is the primary obligor and on all of the
Guarantied Obligations.
04. REAFFIRMATION. Micro Warehouse acknowledges and reaffirms all of its
respective obligations and duties under the Amended Facility Documents to which
it is a party.
05. LIMITATION ON GUARANTIED OBLIGATIONS. Notwithstanding anything to the
contrary contained herein or in any other Amended Facility Document, the
"Guarantied Obligations" of any Guarantor other than Micro Warehouse shall not
include the obligations of the New Subsidiary Borrower to the extent not
permitted under applicable law without further consent or action by such
Guarantor and to the extent such further consent or action has not been
previously waived or is nonwaivable under applicable law.
06. AMENDMENTS AND WAIVERS. Any provision of this Agreement may be
amended or modified only by an instrument in writing signed by Micro Warehouse,
the New Subsidiary Borrower, the Administrative Agent and the Required Lenders,
or by Micro Warehouse, the New Subsidiary Borrower and the Administrative Agent
acting with the consent of the Required Lenders and any provision of this
Agreement may be waived by the Required Lenders or by the Administrative Agent
acting with the consent of the Required Lenders.
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07. EXPENSES. Micro Warehouse (and, insofar it is responsible for such
expenses, the New Subsidiary Borrower) shall reimburse the Administrative Agent
on demand for all reasonable costs, expenses and charges (including, without
limitation, reasonable fees and charges of external domestic and foreign legal
counsel for the Administrative Agent) in connection with the preparation of, and
any amendment, supplement, waiver or modification to (in each case, whether or
not consummated), this Agreement, any other Amended Facility Document and any
other documents prepared in connection herewith or therewith. Micro Warehouse
(and, insofar it is responsible for such expenses, the New Subsidiary Borrower)
shall reimburse the Administrative Agent and each Lender for all reasonable
costs expenses and charges (including, without limitation, reasonable fees and
charges of external domestic and foreign legal counsel for the Administrative
Agent and each Lender) in connection with the enforcement or preservation of any
rights or remedies during the existence of an Event of Default (including,
without limitation, in connection with any restructuring or insolvency or
bankruptcy proceeding).
08. NOTICES. Unless the party to be notified otherwise notifies the other
party in writing as provided in this Section, and except as otherwise provided
in this Agreement, notices shall be given to the Administrative Agent by
telephone, confirmed by telex, telecopy or other writing, and to the Lenders and
to Micro Warehouse or the New Subsidiary Borrower by ordinary mail or telecopier
addressed to such party at its address on the signature page of this Agreement.
Notices shall be effective: (a) if given by mail, 72 hours after deposit in the
mails with first class postage prepaid, addressed as aforesaid; and (b) if given
by telecopier, when the telecopy is transmitted to the telecopier number as
aforesaid; provided that notices to the Administrative Agent and the Lenders
shall be effective upon receipt.
09. TABLE OF CONTENTS; HEADINGS. Any table of contents and the headings
and captions hereunder are for convenience only and shall not affect the
interpretation or construction of this Agreement.
Section 4.10. SEVERABILITY. The provisions of this Agreement are intended
to be severable. If for any reason any provision of this Agreement shall be
held invalid or unenforceable in whole or in part in any jurisdiction, such
provision shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
Section 4.11. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing any such
counterpart.
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Section 4.12. INTEGRATION. The Amended Facility Documents set forth the
entire agreement among the parties hereto relating to the transactions
contemplated thereby and supersede any prior oral or written statements or
agreements with respect to such transactions.
SECTION 4.13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
INTERPRETED AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CONNECTICUT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
Address for Notices: MICRO WAREHOUSE, INC.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000 By:
Telephone No.: (000) 000-0000 -----------------------
Telecopier No.: (000) 000-0000 Name:
Attention: Chief Financial Officer Title:
Attention: General Manager
[SIGNATURE PAGE TO SECOND AMENDMENT AGREEMENT]
NEW SUBSIDIARY BORROWER:
Address for Notices: MICRO WAREHOUSE (AUSTRALIA) PTY
LIMITED
Xxxxxxx Xxx 0 Xxxx 0
0/00 Xxxxxxx Xxxx By:
Xxxxx Xxxxx XXX 0000 -------------------------
Australia Name:
Telephone No.: 000-00-0000-0000 Title:
Telecopier No.: 000-00-0000-0000
Attention: General Manager
[SIGNATURE PAGE TO SECOND AMENDMENT AGREEMENT]
ADMINISTRATIVE AGENT:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By
----------------------------
Name:
Title:
Address for Notices:
New York Agency
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
with a copy to:
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Telecopier No.: (000)000-0000
[SIGNATURE PAGE TO SECOND AMENDMENT AGREEMENT]
LENDERS:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By
----------------------------
Name:
Title:
Address for Notices:
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
[SIGNATURE PAGE TO SECOND AMENDMENT AGREEMENT]
SCHEDULE I
REVOLVING CREDIT COMMITMENTS
BORROWER THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
--------------------------------------------------------------------------------
MICRO WAREHOUSE, INC. $23,000,000
MICRO WAREHOUSE FINLAND OY $1,250,000
MICRO WAREHOUSE SWEDEN AB $1,000,000
MICRO WAREHOUSE HOLDING B.V. $4,000,000
MICRO WAREHOUSE NORWAY AS $1,500,000
MICRO WAREHOUSE DENMARK APS $1,000,000
MICRO WAREHOUSE LIMITED $4,500,000
MICRO WAREHOUSE FRANCE SARL $6,000,000
MICRO WAREHOUSE (DEUTSCHLAND) GMBH $4,000,000
MICRO WAREHOUSE JAPAN, INC. $1,750,000
MICRO WAREHOUSE AG $500,000
MICRO WAREHOUSE (AUSTRALIA) PTY LIMITED $1,500,000
TOTAL REVOLVING CREDIT COMMITMENTS $50,000,000
