Exhibit 10.46
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FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 27, 2000
Among
PC CONNECTION, INC.,
the Borrower
and
CITIZENS BANK OF MASSACHUSETTS,
as Agent
and
THE BANKS PARTIES HERETO
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FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
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This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the "First
Amendment") is entered into as of December 27, 200O by and among PC CONNECTION,
INC., a Delaware corporation (the "Borrower"), CITIZENS BANK OF NEW HAMPSHIRE,
CITIZENS BANK OF MASSACHUSETTS and FLEET NATIONAL BANK (successor by merger to
Fleet Bank - NH) (together, the "Lenders"), and CITIZENS BANK OF MASSACHUSETTS
as Agent (the "Agent").
Recitals
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The Borrower, the Lenders and the Agent are parties to an Amended and
Restated Credit Agreement dated as of February 25, 2000, as amended (the "Credit
Agreement"). The Borrower, the Lenders and the Agent desire to amend the Credit
Agreement as set forth below. All capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement.
NOW, THEREFORE, subject to the satisfaction of the conditions to
effectiveness specified in Article 3, the Borrower, the Lenders and the Agent
hereby amend the Credit Agreement as follows:
Section 1. Definitions. Section 1.1 of the Credit Agreement is hereby
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amended as follows.
(a) The definition of "Maximum Credit Amount" is hereby deleted in its
entirety and replaced as follows:
"Maximum Credit Amount" shall mean $70,000,000; provided that if the
---------------------
obligations of the Lenders to make further Advances is terminated upon the
occurrence of a Default, the Maximum Credit Amount as of any date of
determination thereafter shall be deemed to be $0.
Section 2. Commitment Percentages. Schedule 1 of the Credit Agreement is
----------------------
hereby deleted in its entirety and replaced with Schedule 1 attached hereto.
Section 3. Notes. The Borrower shall execute and deliver to Agent new
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promissory notes in the form of Exhibit A-l, A-2 and A-3 hereof (the "New
Notes"), amending, restating and replacing the Notes previously issued in
connection with the Credit Agreement.
Section 4. Effectiveness; Conditions to Effectiveness. This First
------------------------------------------
Amendment shall become effective upon execution hereof by the Borrower and the
Lenders and satisfaction of the following conditions:
(a) Copies of Resolutions of the Board of Directors of the Borrower
authorizing
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the execution, delivery and performance (i) of the Borrower under
this First Amendment and the New Notes and (ii) the Guarantors
under the Guaranty Confirmation certified by a Secretary or an
Assistant Secretary of the Borrower or one of the subsidiaries,
respectively, which certificate shall state that the resolutions
are in full force and effect.
(b) Certificate of the Secretary or Assistant Secretary of the
Borrower certifying the name and signatures of the officers of
the Borrower authorized to sign this First Amendment and other
documents to be delivered in connection therewith, as well as
certifying and delivering certified articles of incorporation and
bylaws.
(c) Certificate of the Secretary or Assistant Secretary of each of
the Guarantors certifying the name and signatures of the officers
of the respective Guarantor authorized to sign the Guaranty
Confirmation as well as certifying and delivering certified
articles of incorporation and by-laws.
(d) Certificates of legal existence and corporate good standing and
certificates of foreign qualification for the Borrower of recent
date issued by the appropriate governmental authorities.
(e) Delivery to the Agent of this First Amendment and the New Notes.
(f) Delivery to the Agent of the Guaranty Confirmation executed by
the Guarantors.
(g) Opinion of Borrower's counsel in form and substance satisfactory
to the Agent.
(h) Compliance and Bring Down Certificate regarding representations,
warranties and covenants.
(i) Payment to Agent of a Commitment Fee of $20,000.
(j) Delivery to the Agent such other documents as the Agent shall
reasonably require, including without limitation, a so-called
399-B Certificate.
Section 5. Miscellaneous.
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(a) The Borrower agrees that each of the Loan Documents shall remain
in full force and effect after giving effect to this First
Amendment. The guarantees of the Borrower's Subsidiaries
guarantee all of the Lender Obligations as may be amended by this
First Amendment.
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(b) This First Amendment represents the entire agreement among the
parties hereto relating to this First Amendment, and supersedes
all prior understandings and agreements among the parties
relating to the subject matter of this First Amendment.
(c) The Borrower agrees to pay on demand all of the Agent's
reasonable expenses in preparing, executing and delivering this
First Amendment, and all related instruments and documents,
including, without limitation, the reasonable fees and
out-of-pocket expenses of the Agent's special counsel.
(d) The Borrower hereby confirms to the Agent that the
representations and warranties of the Borrower set forth in
Article 5 of the Credit Agreement (as amended and supplemented
hereby) are true and correct as of the date hereof, as if set
forth herein in full.
(e) The Borrower has reviewed the provisions of this First Amendment
and all documents executed in connection therewith or pursuant
thereto or incident or collateral hereto or thereto from time to
time and there is no Event of Default thereunder, and no
condition which, with the passage of time or giving of notice or
both, would constitute an Event of Default thereunder.
(f) The Borrower represents and warrants that the execution, delivery
or performance by the Borrower of any of the obligations
contained in this First Amendment or in any Loan Document do not
require the consent, approval or authorization of any person or
governmental authority or any action by or on account of with
respect to any person or governmental authority.
(g) This First Amendment shall be a Loan Document and shall be
governed by and construed and enforced under the laws of The
Commonwealth of Massachusetts without regard to principles
relating to choice of law.
(h) The parties to this First Amendment agree that the definition of
Guarantors shall include COMTEQ FEDERAL OF NEW HAMPSHIRE INC., a
direct wholly-owned subsidiary of Comteq.
[END OF TEXT]
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IN WITNESS WHEREOF, the Borrower and the Lenders have caused this First
Amendment to Amended and Restated Credit Agreement to be executed by their duly
authorized officers as of the date first set forth above.
PC CONNECTION, INC.
By: __________________________________
Name:
Title:
CITIZENS BANK OF MASSACHUSETTS, as Agent
By: __________________________________
Name:
Title:
CITIZENS BANK OF MASSACHUSETTS, as Lender
By: __________________________________
Name:
Title:
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▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No:
Attention:
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FLEET NATIONAL BANK (Successor by Merger to
Fleet Bank - NH)
By: _________________________________
Name:
Title:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No:
Attention:
CITIZENS BANK OF NEW HAMPSHIRE
By: _________________________________
Name:
Title:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No:
Attention:
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SCHEDULE 1
Commitment Percentages
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Commitment Commitment
Lender Percentage Amount
------ ---------- ----------
Citizens Bank of Massachusetts 42.86% $ 30,000,000
Citizens Bank of New Hampshire 14.28% $ 10,000,000
Fleet National Bank 42.86% $ 30,000,000
TOTALS 100.00% $ 70,000,000
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EXHIBIT A-l
FORM OF REVOLVING CREDIT NOTE
-----------------------------
$ 30,000,000 December 27, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
FOR VALUE RECEIVED, the undersigned, PC CONNECTION, INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of CITIZENS
BANK OF MASSACHUSETTS (the "Lender") the principal sum of THIRTY MILLION DOLLARS
($30,000,000) (or, if less, the aggregate unpaid principal amount of all
Advances made by the Lender to the Borrower pursuant to the Credit Agreement as
hereinafter defined), together with interest on the unpaid principal from time
to time outstanding at the rate or rates and computed and payable at the times
as described in the Credit Agreement. The entire balance of outstanding
principal and accrued and unpaid interest shall be paid in full on the Credit
Termination Date (as defined in the Credit Agreement).
This note represents indebtedness for one or more Advances made by the
Lender to the Borrower under the Amended and Restated Credit Agreement dated as
of February 25,200O as amended by the First Amendment thereto dated December 27,
2000 (as the same may be amended, modified or supplemented from time to time,
the "Credit Agreement") by and among the Borrower, the Lenders from time to time
parties thereto, and Citizens Bank of Massachusetts, as Agent for the Lenders
(the "Agent"). Capitalized terms used herein and not otherwise defined shall
have the meaning set forth in the Credit Agreement.
The Borrower shall have the right, at any time, to voluntarily prepay all
or any part of the outstanding principal amount of this note subject to the
provisions of the Credit Agreement.
In addition to the payment of interest as provided above, the Borrower
shall, on demand, pay interest on any overdue installments of principal and, to
the extent permitted by applicable law, on overdue installments of interest at
the rate set forth in the Credit Agreement.
If any payment of principal or interest due hereunder is not made within
ten (10) days of its due date, the Borrower will pay to the Agent for the
account of the Lender, on demand, a late payment charge equal to the amount
set forth in the Credit Agreement.
The holder of this note is entitled to all the benefits and rights of a
Lender under the Credit Agreement to which reference is hereby made for a
statement of the terms and conditions under which the entire unpaid balance of
this note, or any portion hereof, shall become immediately due and payable. Any
capitalized term used in this note which is not otherwise expressly defined
herein shall have the meaning ascribed thereto in the Credit Agreement.
8
The Borrower hereby waives presentment, demand, notice, protest and other
demands and notices in connection with the delivery, acceptance or enforcement
of this note.
No delay or omission on the part of the holder of this note in exercising
any right hereunder shall operate as a waiver of such right or of any other
right under this note, and a waiver, delay or omission on any one occasion shall
not be construed as a bar to or waiver of any such right on any future occasion.
The Borrower hereby agrees to pay on demand all reasonable costs and
expenses, including, without limitation, reasonable attorneys' fees and legal
expenses, incurred or paid by the holder of this note in enforcing this note on
default.
THE LENDER AND THE BORROWER AGREE THAT NEITHER OF THEM NOR ANY OF THEIR
ASSIGNEES OR SUCCESSORS SHALL (A) SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM OR ANY OTHER ACTION BASED UPON OR ARISING OUT OF, THIS NOTE, THE
CREDIT AGREEMENT, ANY LENDER AGREEMENT, ANY DOCUMENT, INSTRUMENT OR AGREEMENT
EXECUTED IN CONNECTION WITH ANY OF THE FOREGOING, ANY COLLATERAL SECURING ALL OR
ANY PART OF THE LENDER OBLIGATIONS OR THE DEALINGS OR THE RELATIONSHIP BETWEEN
OR AMONG ANY OF THEM, OR (B) SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER
ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF
THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY EACH OF THE LENDER AND THE BORROWER
WITH THEIR RESPECTIVE COUNSEL, AND THESE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NEITHER THE LENDER NOR THE BORROWER HAS AGREED WITH OR REPRESENTED
TO THE OTHER THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
This note shall be deemed to be under seal, and all rights and obligations
hereunder shall be governed by the laws of The Commonwealth of Massachusetts
(without giving effect to any conflicts of law provisions contained therein).
This Note amends, restates and replaces the $25,000,000 promissory note
dated February 25, 2000 issued to the Lender by the undersigned.
PC CONNECTION, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
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EXHIBIT A-2
REVOLVING CREDIT NOTE
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$ 30,000,000 December 27, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
FOR VALUE RECEIVED, the undersigned, PC CONNECTION, INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of FLEET
NATIONAL BANK (the "Lender") the principal sum of THIRTY MILLION DOLLARS ($
30,000,OOO) (or, if less, the aggregate unpaid principal amount of all Advances
made by the Lender to the Borrower pursuant to the Credit Agreement as
hereinafter defined), together with interest on the unpaid principal from time
to time outstanding at the rate or rates and computed and payable at the times
as described in the Credit Agreement. The entire balance of outstanding
principal and accrued and unpaid interest shall be paid in full on the Credit
Termination Date (as defined in the Credit Agreement).
This note represents indebtedness for one or more Advances made by the
Lender to the Borrower under the Amended and Restated Credit Agreement dated as
of February 25,200O as amended by the First Amendment thereto dated December 27,
2000 (as the same may be amended, modified or supplemented from time to time,
the "Credit Agreement") by and among the Borrower, the Lenders from time to time
parties thereto, and Citizens Bank of Massachusetts, as Agent for the Lenders
(the "Agent"). Capitalized terms used herein and not otherwise defined shall
have the meaning set forth in the Credit Agreement.
The Borrower shall have the right, at any time, to voluntarily prepay all
or any part of the outstanding principal amount of this note subject to the
provisions of the Credit Agreement.
In addition to the payment of interest as provided above, the Borrower
shall, on demand, pay interest on any overdue installments of principal and, to
the extent permitted by applicable law, on overdue installments of interest at
the rate set forth in the Credit Agreement.
If any payment of principal or interest due hereunder is not made within
ten (10) days of its due date, the Borrower will pay to the Agent for the
account of the Lender, on demand, a late payment charge equal to the amount set
forth in the Credit Agreement.
The holder of this note is entitled to all the benefits and rights of a
Lender under the Credit Agreement to which reference is hereby made for a
statement of the terms and conditions under which the entire unpaid balance of
this note, or any portion hereof, shall become immediately due and payable. Any
capitalized term used in this note which is not otherwise expressly defined
herein shall have the meaning ascribed thereto in the Credit Agreement.
10
The Borrower hereby waives presentment, demand, notice, protest and other
demands and notices in connection with the delivery, acceptance or enforcement
of this note.
No delay or omission on the part of the holder of this note in exercising
any right hereunder shall operate as a waiver of such right or of any other
right under this note, and a waiver, delay or omission on any one occasion shall
not be construed as a bar to or waiver of any such right on any future occasion.
The Borrower hereby agrees to pay on demand all reasonable costs and
expenses, including, without limitation, reasonable attorneys' fees and legal
expenses, incurred or paid by the holder of this note in enforcing this note on
default.
THE LENDER AND THE BORROWER AGREE THAT NEITHER OF THEM NOR ANY OF THEIR
ASSIGNEES OR SUCCESSORS SHALL (A) SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM OR ANY OTHER ACTION BASED UPON OR ARISING OUT OF, THIS NOTE, THE
CREDIT AGREEMENT, ANY LENDER AGREEMENT, ANY DOCUMENT, INSTRUMENT OR AGREEMENT
EXECUTED IN CONNECTION WITH ANY OF THE FOREGOING, ANY COLLATERAL SECURING ALL OR
ANY PART OF THE LENDER OBLIGATIONS OR THE DEALINGS OR THE RELATIONSHIP BETWEEN
OR AMONG ANY OF THEM, OR (B) SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER
ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF
THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY EACH OF THE LENDER AND THE BORROWER
WITH THEIR RESPECTIVE COUNSEL, AND THESE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NEITHER THE LENDER NOR THE BORROWER HAS AGREED WITH OR REPRESENTED
TO THE OTHER THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
This note shall be deemed to be under seal, and all rights and obligations
hereunder shall be governed by the laws of The Commonwealth of Massachusetts
(without giving effect to any conflicts of law provisions contained therein).
This Note amends, restates and replaces the $15,000,000 promissory note
dated February 25, 2000 issued to the Lender, as successor by merger to FLEET -
NH, by the undersigned.
PC CONNECTION, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
11
EXHIBIT A-3
REVOLVING CREDIT NOTE
---------------------
$ 10,000,000 December 27, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
FOR VALUE RECEIVED, the undersigned, PC CONNECTION, INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of CITIZENS
BANK OF NEW HAMPSHIRE (the "Lender") the principal sum of TEN MILLION DOLLARS ($
10,000,000) (or, if less, the aggregate unpaid principal amount of all Advances
made by the Lender to the Borrower pursuant to the Credit Agreement as
hereinafter defined), together with interest on the unpaid principal from time
to time outstanding at the rate or rates and computed and payable at the times
as described in the Credit Agreement. The entire balance of outstanding
principal and accrued and unpaid interest shall be paid in full on the Credit
Termination Date (as defined in the Credit Agreement).
This note represents indebtedness for one or more Advances made by the
Lender to the Borrower under the Amended and Restated Credit Agreement dated as
of February 25,200O as amended by the First Amendment thereto dated December 27,
2000 (as the same may be amended, modified or supplemented from time to time,
the "Credit Agreement") by and among the Borrower, the Lenders from time to time
parties thereto, and Citizens Bank of Massachusetts, as Agent for the Lenders
(the "Agent"). Capitalized terms used herein and not otherwise defined shall
have the meaning set forth in the Credit Agreement.
The Borrower shall have the right, at any time, to voluntarily prepay all
or any part of the outstanding principal amount of this note subject to the
provisions of the Credit Agreement.
In addition to the payment of interest as provided above, the Borrower
shall, on demand, pay interest on any overdue installments of principal and, to
the extent permitted by applicable law, on overdue installments of interest at
the rate set forth in the Credit Agreement.
If any payment of principal or interest due hereunder is not made within
ten (10) days of its due date, the Borrower will pay to the Agent for the
account of the Lender, on demand, a late payment charge equal to the amount set
forth in the Credit Agreement.
The holder of this note is entitled to all the benefits and rights of a
Lender under the Credit Agreement to which reference is hereby made for a
statement of the terms and conditions under which the entire unpaid balance of
this note, or any portion hereof, shall become immediately due and payable. Any
capitalized term used in this note which is not otherwise expressly defined
herein shall have the meaning ascribed thereto in the Credit Agreement.
12
The Borrower hereby waives presentment, demand, notice, protest and other
demands and notices in connection with the delivery, acceptance or enforcement
of this note.
No delay or omission on the part of the holder of this note in exercising
any right hereunder shall operate as a waiver of such right or of any other
right under this note, and a waiver, delay or omission on any one occasion shall
not be construed as a bar to or waiver of any such right on any future occasion.
The Borrower hereby agrees to pay on demand all reasonable costs and
expenses, including, without limitation, reasonable attorneys' fees and legal
expenses, incurred or paid by the holder of this note in enforcing this note on
default.
THE LENDER AND THE BORROWER AGREE THAT NEITHER OF THEM NOR ANY OF THEIR
ASSIGNEES OR SUCCESSORS SHALL (A) SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM OR ANY OTHER ACTION BASED UPON OR ARISING OUT OF, THIS NOTE, THE
CREDIT AGREEMENT, ANY LENDER AGREEMENT, ANY DOCUMENT, INSTRUMENT OR AGREEMENT
EXECUTED IN CONNECTION WITH ANY OF THE FOREGOING, ANY COLLATERAL SECURING ALL OR
ANY PART OF THE LENDER OBLIGATIONS OR THE DEALINGS OR THE RELATIONSHIP BETWEEN
OR AMONG ANY OF THEM, OR (B) SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER
ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF
THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY EACH OF THE LENDER AND THE BORROWER
WITH THEIR RESPECTIVE COUNSEL, AND THESE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NEITHER THE LENDER NOR THE BORROWER HAS AGREED WITH OR REPRESENTED
TO THE OTHER THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
This note shall be deemed to be under seal, and all rights and obligations
hereunder shall be governed by the laws of The Commonwealth of Massachusetts
(without giving effect to any conflicts of law provisions contained therein).
This Note amends, restates and replaces the $10,000,000 promissory note
dated February 25, 2000 issued to the Lender by the undersigned.
PC CONNECTION, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
13