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MCSi, INC.
AS THE BORROWER
AND
THE FINANCIAL INSTITUTIONS NAMED HEREIN
AS LENDERS
NATIONAL CITY BANK
AS A LENDER AND AS DOCUMENTATION AGENT
PNC BANK, NATIONAL ASSOCIATION
AS A LENDER, THE SWING LINE LENDER
A LETTER OF CREDIT ISSUER
AND AS ADMINISTRATIVE AGENT
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AMENDMENT NO. 14
DATED AS OF
December 20, 2001
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF
DECEMBER 1, 1998
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EXECUTION VERSION
AMENDMENT NO. 14
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 14 TO AMENDED AND RESTATED CREDIT AGREEMENT, is dated as
of December 20, 2001 ("THIS AMENDMENT") by and among:
(i) MCSi, INC., a Maryland corporation, which is the successor by
merger to 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
Administrative Agent (the "ADMINISTRATIVE AGENT") for the Lenders under the
Credit Agreement.
PRELIMINARY STATEMENTS:
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, Amendment No. 5 thereto, dated as of December 20,
1999, Amendment No. 6 thereto, dated as of January 10, 2000, Amendment No.7
thereto, dated as of February 4, 2000, Amendment No. 8 thereto, dated as of
April 30, 2000, Amendment No. 9 thereto, dated as of May 31, 2000,
Amendment No. 10 thereto, dated as of September 27, 2000, Amendment No. 11
thereto, dated as of December 8, 2000, Amendment No. 12 thereto, dated as
of March 30, 2001, and Amendment No. 13 thereto, dated as of June 29, 2001
(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).
The Borrower has requested that the Credit Agreement be further
amended and that the Administrative Agent and the Lenders consent to
certain other matters, all as more fully described herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. AMENDMENTS.
1.1 CONSOLIDATED CAPITAL EXPENDITURES. Effective as of July 1, 2001,
Section 9.9 of the Credit Agreement is hereby amended to read in its entirety as
follows:
9.9. CAPITAL EXPENDITURES. The Borrower shall not, and shall not
permit any of its Subsidiaries to, make or incur Consolidated Capital
Expenditures at any time (a) in excess of $10,500,000 during the fiscal
year of Borrower ended December 31, 1999, (b) in excess of $11,500,000
during the fiscal year of Borrower ended December 31, 2000, (iii) in excess
of $7,500,000 during the fiscal quarters of Borrower ended March 31, 2001
and June 30, 2001, (iv) in excess of $11,000,000 during the fiscal year of
Borrower ended December 31, 2001, or (v) in excess of $8,000,000 during
each subsequent fiscal year of Borrower thereafter. In the event that the
Consolidated Capital Expenditures for any fiscal period of Borrower shall
be less than the preceding respective amounts, the excess amount for any
fiscal period may not be carried over to any subsequent period.
1.2 INFORMATION AS TO SUBSIDIARIES. The Credit Agreement is hereby amended
to delete ANNEX II therefrom and to insert in place thereof a new ANNEX II in
the form of the attached Annex II.
2. CONSENTS.
2.1 CONSENTS. The parties hereto acknowledge that (i) the Borrower owned
58.5% of the issued and outstanding capital stock of Zengine, Inc. ("ZENGINE"),
(ii) the Borrower acquired the remaining outstanding capital stock of Zengine
(the "ZENGINE ACQUISITION") through a tender offer (the "ZENGINE TENDER OFFER")
which was completed on November 16, 2001, (iii) the Zengine Tender Offer
resulted in the Borrower owning more than 90% of the outstanding capital stock
of Zengine, and (iv) the Borrower merged Zengine with and into the Borrower (the
"ZENGINE MERGER") on November 19, 2001 with the Borrower being the survivor. The
Required Lenders hereby consent to the Zengine Acquisition on the terms set
forth in the purchase agreement relating to the Zengine Acquisition, provided
that the sole consideration paid by the Borrower to effect the Zengine
Acquisition shall have been previously authorized and unissued shares of common
stock of the Borrower.
3. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lenders and the Administrative
Agent as follows:
3.1 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.
3.2 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 a specified date, in which case such
representations and warranties are hereby reaffirmed as true and correct when
made.
3.3 NO EVENT OF DEFAULT, ETC. After giving effect to this Amendment, 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.
3.4 COMPLIANCE. The Borrower is in full compliance with all covenants and
agreements contained in the Credit Agreement, as amended hereby.
3.5 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, 2001, 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.
3.6 NO CLAIMS, ETC. The Borrower does not have any claim or offset
against, or defense or counterclaim to, any of its obligations or liabilities
under the Credit Agreement or any other Credit Document.
4. EFFECTIVENESS.
This Amendment shall become effective on the date first written above (the
"AMENDMENT EFFECTIVE DATE"), subject to the satisfaction of the following
conditions on or before such 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;
(c) the Administrative Agent shall have been notified by all of the
Required Lenders (and to the extent required by the Credit Agreement, all
of the Lenders affected thereby) 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 delivered to the Administrative Agent lien
searches of a recent date on Zengine in its state of incorporation and in
each other applicable jurisdiction demonstrating that the assets of Zengine
are free and clear of all liens and encumbrances;
(e) the Borrower shall have delivered to the Administrative Agent a
certificate of its Secretary or an Assistant Secretary, dated as of the
date of this Amendment, certifying the due adoption by its Board of
Directors of resolutions approving this Amendment, and certifying that such
resolutions remain in full force and effect, and such certificate and
resolution shall be satisfactory in form and substance to the
Administrative Agent; and
(f) the Borrower shall have delivered a certificate of the Borrower's
chief executive officer or chief financial officer certifying to the
Administrative Agent and the Lenders that as of the Amendment Effective
Date (i) the representations and warranties of the Borrower contained in
the Credit Agreement, as amended hereby, are true and correct on and as of
the Amendment Effective Date as though made on and as of the Amendment
Effective Date, except to the extent that such representations and
warranties expressly relate to a specified date, in which case such
representations and warranties are hereby reaffirmed as true and correct
when made; (ii) after giving effect to this Amendment, 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; and (iii) the
Borrower is in full compliance with all covenants and agreements contained
in the Credit Agreement, as amended hereby.
Subject to satisfaction of the foregoing conditions, the Administrative Agent
shall notify the Borrower and each Lender in writing of the effectiveness
hereof.
5. 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.
6. MISCELLANEOUS.
6.1 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.
6.2 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.
6.3 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.
6.4 EXPENSES. As provided in the Credit Agreement, but without limiting
any terms or provisions thereof, 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 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.
6.5 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.
6.6 APPLICABLE LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Ohio, without regard to conflicts of
laws provisions.
6.7 HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
6.8 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.
6.9 WAIVER OF CLAIMS. The Borrower, by signing below, hereby waives and
releases Administrative Agent and each of the Lenders and their respective
directors, officers, employees, attorneys, affiliates and subsidiaries from any
and all claims, offsets, defenses and counterclaims of which Borrower is aware,
such waiver and release being with full knowledge and understanding of the
circumstances and effect thereof and after having consulted legal counsel with
respect thereto.
6.10 COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts and by facsimile signature, 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.
[Remainder of page intentionally left blank.]
6.11 JURY TRIAL WAIVER. EACH OF THE PARTIES TO THIS AMENDMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO
HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as
of the date first above written.
MCSi, INC., PNC BANK, NATIONAL ASSOCIATION,
A MARYLAND CORPORATION WHICH IS THE INDIVIDUALLY AS A LENDER, A LETTER
SUCCESSOR BY MERGER TO MIAMI COMPUTER OF CREDIT ISSUER, THE SWING LINE
SUPPLY CORPORATION, AN OHIO CORPORATION LENDER AND AS ADMINISTRATIVE AGENT
BY:
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BY: VICE PRESIDENT
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TITLE:
NATIONAL CITY BANK, FIRSTAR BANK, N.A.
INDIVIDUALLY AS A LENDER AND
AS DOCUMENTATION AGENT
BY:
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BY: TITLE:
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TITLE:
KEY CORPORATE CAPITAL INC. THE HUNTINGTON NATIONAL BANK
BY: BY:
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TITLE: TITLE:
BANK ONE, INDIANA, N. A. THE PROVIDENT BANK
BY: BY:
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TITLE: TITLE:
ACKNOWLEDGMENT AND CONSENT
Each of the undersigned consents and agrees to and acknowledges the terms
of the foregoing Amendment No. 14 to Amended and Restated Credit Agreement (the
"AMENDMENT"). The undersigned specifically agrees to the waivers set forth in
such agreement, including, but not limited to, the jury trial waiver. Each of
the undersigned further agrees that the obligations of the undersigned pursuant
to the Amended and Restated Subsidiary Guaranty executed by the undersigned
shall remain in full force and effect and be unaffected hereby.
Each of the undersigned hereby waives and releases the Administrative Agent
and the Lenders and the directors, officers, employees, attorneys, affiliates
and subsidiaries of the Administrative Agent and the Lenders from any and all
claims, offsets, defenses and counterclaims of which the undersigned is aware,
such waiver and release being with full knowledge and understanding of the
circumstances and effect thereof and after having consulted legal counsel with
respect thereto.
IN WITNESS WHEREOF, each of the undersigned has duly executed and delivered
this Acknowledgment and Consent as of the date of the Amendment referred to
herein.
Diversified Data Products, Inc. Consolidated Media Systems, Inc.
Computer Showcase, Inc. Technical Industries, Inc.
Midwest Visual Equipment Co., Inc. C&G Marketing, Inc.
MCSi-Florida, Inc. (f/k/a Central Audio Visual, Inc.) Fairview-AFX, Inc.
Video Images, Inc.
By: By:
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Xxxxxxx X. Xxxxxx, an officer Xxx Xxxxxxx, an officer
ANNEX II
INFORMATION AS TO SUBSIDIARIES
(as of December 1, 2001)
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PERCENTAGE OF OUTSTANDING STOCK OR OTHER
EQUITY INTERESTS OWNED (INDICATING WHETHER
JURISDICTION OWNED BY THE BORROWER OR A SPECIFIED
TYPE OF WHERE SUBSIDIARY)
NAME OF SUBSIDIARY ORGANIZATION ORGANIZED
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3692116 Canada Inc. Corporation Canada 100%, by the Borrower
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A.V. Associates, Inc. Corporation Connecticut 100%, by the Borrower
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C&G Marketing, Inc. Corporation Alabama 100%, by the Borrower
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British Virgin
CEM (Overseas) Limited Company Islands 100%, by DDP
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Computer Showcase, Inc. Corporation Georgia 100%, by the Borrower
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Consolidated Media Systems, Inc. Corporation Tennessee 100%, by the Borrower
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Digital Networks Corporation Corporation Maryland 100%, by the Borrower
f/k/a Augora Hills Corporation
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Diversified Data Products, Inc. ("DDP") Corporation Michigan 100%, by the Borrower
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Diversified Data Products (UK) Limited
Company U.K. 99%, by DDP
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Fairview-AFX, Inc. Corporation Oklahoma 100%, by the Borrower
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MCSi-California, Inc. Corporation Maryland 100%, by the Borrower
f/k/a West Lake Acquisition Corporation
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MCSi Canada Inc. Corporation Ontario 100%, by the Borrower
f/k/a Axidata (1998) (Inc.)
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MCSi-Florida, Inc. Corporation Florida 100%, by the Borrower
f/k/a Central Audio Visual, Inc.
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MCSi Purchasing L.L.C. Limited liability Maryland 100%, by the Borrower
company
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MCSi-Texas, Inc. Corporation Texas 100%, by the Borrower
f/k/a/ MCSi-IG-PV, Inc.
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Midwest Visual Equipment Co., Inc. Corporation Illinois 100%, by the Borrower
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Technical Industries, Inc. Corporation Georgia 100%, by the Borrower
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Video Images, Inc. Corporation Wisconsin 100%, by the Borrower
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