EXHIBIT 10.42
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of the 22nd day of September, 1997,
among SOUTHERN ELECTRONICS CORPORATION and SED INTERNATIONAL, INC.,
jointly and severally (collectively, the "Borrowers"), WACHOVIA
BANK, N.A., as Agent (the "Agent") and WACHOVIA BANK, N.A. and
NATIONAL CITY BANK OF COLUMBUS, as Banks (collectively, the
"Banks");
W I T N E S S E T H:
WHEREAS, the Borrowers, the Agent and the Banks executed and
delivered that certain $100,000,000 Amended and Restated Credit
Agreement, dated as of the 13th day of August, 1997 (the "Credit
Agreement");
WHEREAS, the Borrowers have requested and the Agent and the
Banks have agreed to make certain amendments to the Credit
Agreement, subject to the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the above premises
and other good and valuable consideration, the receipt and
sufficiency of which hereby is acknowledged by the parties hereto,
the Borrowers, the Agent and the Banks hereby covenant and agree as
follows:
1. Definitions. Unless otherwise specifically defined herein,
each term used herein which is defined in the Credit Agreement shall
have the meaning assigned to such term in the Credit Agreement.
Each reference to "hereof", "hereunder", "herein" and "hereby" and
each other similar reference and each reference to "this Agreement"
and each other similar reference contained in the Credit Agreement
shall from and after the date hereof refer to the Credit Agreement
as amended hereby.
2. Amendments to Section 1.01. (a) The new definition of
"Permitted Acquisitions" is hereby added to Section 1.01 in proper
alphabetical order:
"Permitted Acquisitions" means any investment in any
Person (or in the acquisition of their assets) in substantially
the same lines of business as now carried on and maintained by
the Borrowers so long as the following conditions are
satisfied: (i) no Default or Event of Default has occurred
before or after such investment, (ii) such investment is to be
made on a negotiated basis with the approval of the Board of
Directors of such Person, (iii) the Borrowers have delivered
pro forma financial statements demonstrating to the
satisfaction of the Agent and the Banks that the Borrowers will
be in compliance with all financial covenants contained in this
Agreement through and including the Termination Date after
giving effect to such investment, (iv) such Person, if such
investment is a capital stock acquisition, simultaneously with
the consummation of such investment, has executed and delivered
to the Agent, for the ratable benefit of the Banks, a guaranty,
security agreement and financing statements in connection
therewith, satisfactory to the Agent and the Banks in all
respects, whereby the Obligations are unconditionally
guaranteed by such Person and secured by a first and only
priority security interest in all assets of such Person which
would constitute items included as "Collateral" defined under
the Security Agreements (subject, however, to any Liens to
which the Agent and the Banks have consented in the exercise of
their sole discretion), such guaranty and security agreement to
be accompanied by such corporate documents, certificates and
opinions of counsel as may be reasonably required by the Agent,
(v) if such investment is an acquisition of such Person's
assets, the Obligations are secured by a first and only
priority security interest in all such assets which would
constitute items included as "Collateral" defined under the
Security Agreements (subject, however, to any Liens to which
the Agent and the Banks have consented in the exercise of their
sole discretion), (vi) the total consideration paid for such
investment, including, without limitation, cash, Debt and
capital stock of SEC (such capital stock to be valued at the
fair market value as of the date such investment is made), must
not exceed $15,000,000 for any single investment or $30,000,000
for all such investments in the aggregate during any Fiscal
Year, and (vii) on the date after giving effect to such
investment, the Borrowers must be able to borrow Syndicated
Loans in accordance with Section 2.01(a) in an amount equal to
at least $10,000,000 on such date.
(b) The definition "Restricted Investment" is hereby amended
by deleting the word "and" after clause (iii) thereof and adding a
new clause (v) after clause (iv) thereof as follows: "; and (v)
investments consisting of Permitted Acquisitions."
3. Restatement of Representations and Warranties. Each of the
Borrowers hereby restates and renews each and every representation
and warranty heretofore made by it in the Credit Agreement and the
other Loan Documents as fully as if made on the date hereof and with
specific reference to this Amendment and all other loan documents
executed and/or delivered in connection herewith.
4. Effect of Amendment. Except as set forth expressly
hereinabove, all terms of the Credit Agreement and the other Loan
Documents shall be and remain in full force and effect, and shall
constitute the legal, valid, binding and enforceable obligations of
the Borrowers. The amendments contained herein shall be deemed to
have prospective application only, unless otherwise specifically
stated herein.
5. Ratification. Each of the Borrowers hereby restates,
ratifies and reaffirms each and every term, covenant and condition
set forth in the Credit Agreement and the other Loan Documents
effective as of the date hereof.
6. Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which counterparts, taken
together, shall constitute but one and the same instrument.
7. Section References. Section titles and references used in
this Amendment shall be without substantive meaning or content of
any kind whatsoever and are not a part of the agreements among the
parties hereto evidenced hereby.
8. No Default; Release. To induce the Agent and the Banks to
enter into this Amendment and to continue to make advances pursuant
to the Credit Agreement, each of the Borrowers hereby acknowledges
and agrees that, as of the date hereof, and after giving effect to
the terms hereof, (i) there exists no Default or Event of Default,
(ii) there exists no right of offset, defense, counterclaim, claim
or objection in favor of the Borrowers arising out of or with
respect to any of the Loans or other obligations of the Borrowers
owed to the Banks under the Credit Agreement, and (iii) the Agent
and each of the Banks has acted in good faith and has conducted its
relationships with each of the Borrowers in a commercially
reasonable manner in connection with the negotiations, execution and
delivery of this Amendment and in all respects in connection with
the Credit Agreement, each of the Borrowers hereby waiving and
releasing any such claims to the contrary.
9. Further Assurances. Each of the Borrowers agrees to take
such further actions as the Agent shall reasonably request in
connection herewith to evidence the amendments herein contained to
the Borrowers.
10. Governing Law. This Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State
of Georgia.
11. Conditions Precedent. This Amendment shall become
effective only upon execution and delivery of this Amendment by each
of the parties hereto.
IN WITNESS WHEREOF, the Borrowers, the Agent and each of the
Banks has caused this Amendment to be duly executed, under seal, by
its duly authorized officer as of the day and year first above
written.
SOUTHERN ELECTRONICS
CORPORATION (SEAL)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: V.P. Finance
SED INTERNATIONAL, INC. (SEAL)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: V.P. Finance
WACHOVIA BANK, N.A.,
as Agent and as a Bank (SEAL)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
NATIONAL CITY BANK OF COLUMBUS (SEAL)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President