EXHIBIT 10.2
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "First Amendment"), dated as of June 16, 1998, is entered into among
CompUSA Inc., a Delaware corporation ("Borrower"), the banks listed on the
signature pages hereof (collectively, the "Lenders"), and NationsBank, N.A.
(successor by merger to NationsBank of Texas, N.A.), as Administrative Lender
(in said capacity, the "Administrative Lender").
BACKGROUND
A. Borrower, Lenders and Administrative Lender are parties to that
certain Second Amended and Restated Credit Agreement, dated as of March 12,
1998 (the "Credit Agreement"; the terms defined in the Credit Agreement and
not otherwise defined herein shall be used herein as defined in the Credit
Agreement).
B. Borrower, Lenders and Administrative Lender desire to make certain
amendments to the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are all hereby acknowledged,
Borrower, Lenders and Administrative Lender covenant and agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) The defined term "SPECIAL REPURCHASE PERIOD" is hereby added to
SECTION 1.1 of the Credit Agreement in proper alphabetical order to read as
follows:
"SPECIAL REPURCHASE PERIOD" means a period which begins on the date
when the Borrower elects, by written notice to the Administrative Lender,
to repurchase its shares of common capital stock in public market
transactions as part of a special Treasury Stock Purchase program in the
aggregate amount not to exceed $150,000,000 and ends on the earliest of the
following events: (a) December 26, 1998, (b) the Borrower consummates
Treasury Stock Purchases in the aggregate amount of $150,000,000, or
(c) the Borrower terminates such period pursuant to a written notice to the
Administrative Lender. The Borrower may have only one Special Repurchase
Period election."
(b) SECTION 7.6 of the Credit Agreement is hereby amended to read as
follows:
"Section 7.6 RESTRICTED PAYMENTS. The Borrower shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly declare,
pay or make any Restricted Payments; provided, however, (a) any Restricted
Subsidiary may declare and pay Dividends to the Borrower or another
Restricted Subsidiary, (b) the Borrower may make loans to directors,
officers and employees of Borrower and its Subsidiaries during any Fiscal
Year (calculated net of loan repayments), together with the Guaranty of
Indebtedness of directors, officers and employees permitted pursuant to
SECTION 7.5 hereof during such Fiscal Year, in an aggregate amount not to
exceed $1,000,000, (c) the Borrower may defease, redeem, repurchase or
prepay the Senior Subordinated Notes in part or in full, (d) the Borrower
may make Treasury Stock Purchases of its common capital stock during the
Special Repurchase Period not to exceed $150,000,000 in aggregate amount,
and (e) the Borrower may pay Dividends and make Treasury Stock Purchases
other than during the Special Repurchase Period (net of cash proceeds
received by the Borrower upon the reissuance of any treasury stock) of its
shares of capital stock in an aggregate amount (excluding the amount of any
Treasury Stock Purchases during the Special Repurchase Period) not to
exceed the sum of (i) $50,000,000, plus (ii) 50% of cumulative Net Income
for the period from, but not including, September 27, 1997 through the date
of the proposed payment or purchase (but excluding from the calculation of
such cumulative Net Income the effect, if any, of any Fiscal Quarter (or
portion of a Fiscal Quarter not then ended) of the Borrower for which Net
Income was a negative number); provided, however, the Borrower shall not
pay or make any such Restricted Payments set forth in clause (b), (c), (d)
or (e) above unless there shall exist no Default prior to or after giving
effect to any such proposed Restricted Payment.
(c) SECTION 7.11 of the Credit Agreement is hereby amended to read as
follows:
"Section 7.11 NET WORTH. The Borrower shall not permit the Net Worth
to be less than an amount equal to the sum of (a) $384,800,000, plus
(b) 50% of cumulative Net Income for the period from, but not including,
September 27, 1997 through the date of calculation (but excluding from the
calculation of such cumulative Net Income the effect, if any, of any fiscal
quarter (or portion of a fiscal quarter not then ended) of the Borrower for
which Net Income was a negative number), plus (c) an amount equal to 75% of
the net worth of any Person that becomes a Subsidiary of the Borrower or is
merged into or consolidated with the Borrower or any Subsidiary of the
Borrower or substantially all of the assets of which are acquired by the
Borrower or any Subsidiary of the Borrower to the extent the purchase price
paid therefor if paid in equity securities of the Borrower or any of its
Subsidiaries (including the reissuance of any treasury stock purchased
during the Special Repurchase Period), plus (d) 75% of the Net Cash
Proceeds (but without duplication) of any offerings of capital stock or
other equity interests of the Borrower or any of its Subsidiaries
(including the reissuance of any treasury stock purchased during the
Special Repurchase Period) or pursuant to the conversion or exchange of any
convertible Subordinated Debt or redeemable preferred stock into capital
stock or other equity interests of the Borrower or any of its Subsidiaries
since September 27, 1997, minus (e) the amount of Treasury Stock
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Purchases by the Borrower during the Special Repurchase Period not to
exceed $150,000,000 in aggregate amount."
(d) The Compliance Certificate is hereby amended to be in the form of
EXHIBIT C attached to this First Amendment.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its
execution and delivery hereof, Borrower represents and warrants that, as of
the date hereof and after giving effect to the amendments contemplated by the
foregoing Section 1:
(a) the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct on and as of the
date hereof as made on and as of such date;
(b) no event has occurred and is continuing which constitutes a Default
or an Event of Default;
(c) Borrower has full power and authority to execute and deliver this
First Amendment and the Credit Agreement, as amended hereby, and this First
Amendment and the Credit Agreement, as amended hereby, constitute the legal,
valid and binding obligations of Borrower, enforceable in accordance with
their respective terms, except as enforceability may be limited by applicable
debtor relief laws and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except as
rights to indemnity may be limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this First
Amendment or the Credit Agreement, as amended hereby, nor the consummation of
any transactions contemplated herein or therein, will conflict with any Law,
the articles of incorporation, bylaws or other governance document of
Borrower or any of its Subsidiaries, or any indenture, agreement or other
instrument to which Borrower or any of its Subsidiaries or any of their
respective property is subject; and
(e) no authorization, approval consent, or other action by, notice to,
or filing with, any governmental authority or other Person, is required for
the execution, delivery or performance by Borrower of this First Amendment or
the acknowledgement of this First Amendment by any Guarantor.
3. CONDITIONS OF EFFECTIVENESS. This First Amendment shall be
effective as of June 16, 1998, subject to the following:
(a) Administrative Lender shall have received counterparts of this
First Amendment executed by Determining Lenders;
(b) Administrative Lender shall have received counterparts of this
First Amendment executed by Borrower and acknowledged by each Guarantor;
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(c) Administrative Lender shall have received from Borrower, for the
account of each Lender executing this First Amendment, an amount equal to the
product of (i) 0.05% multiplied by (ii) each such Lender's pro rata part of
the Commitment; and
(d) Administrative Lender shall have received, in form and substance
satisfactory to Administrative Lender and its counsel, such other documents,
certificates and instruments as Administrative Lender shall require.
4. GUARANTOR ACKNOWLEDGEMENT. By signing below, each of the
Guarantors (i) acknowledges, consents and agrees to the execution and
delivery of this First Amendment, (ii) acknowledges and agrees that its
obligations in respect of its Subsidiary Guaranty are not released,
diminished, waived, modified, impaired or affected in any manner by this
First Amendment or any of the provisions contemplated herein, (iii) ratifies
and confirms its obligations under its Subsidiary Guaranty, and (iv)
acknowledges and agrees that it has no claims or offsets against, or defenses
or counterclaims to, its Subsidiary Guaranty.
5. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this First Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", or words of like
import shall mean and be a reference to the Credit Agreement, as amended by
this First Amendment.
(b) The Credit Agreement, as amended by this First Amendment, and all
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
6. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand all
costs and expenses of each Lender in connection with the preparation,
reproduction, execution and delivery of this First Amendment and the other
instruments and documents to be delivered hereunder (including the reasonable
fees and out-of-pocket expenses of counsel for each Lender with respect
thereto and with respect to advising each Lender as to its rights and
responsibilities under the Credit Agreement, as amended by this First
Amendment).
7. EXECUTION IN COUNTERPARTS. This First Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
8. GOVERNING LAW: BINDING EFFECT. This First Amendment shall be
governed by and construed in accordance with the laws of the State of Texas
and shall be binding upon Borrower and each Lender and their respective
successors and assigns.
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9. HEADINGS. Section headings in this First Amendment are included
herein for convenience of reference only and shall not constitute a part of
this First Amendment for any other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS FIRST
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as the date first above written.
CompUSA Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
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Title: Vice President Finance
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NATIONSBANK, N.A., as Administrative Lender
and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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▇▇▇▇▇ FARGO BANK (TEXAS), N.A., as a
Co-Agent and as a Lender
By: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇ ▇▇▇▇
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Title: Vice President
---------------------------------
HIBERNIA NATIONAL BANK, as a Co-Agent and as
a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
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CREDIT LYONNAIS NEW YORK BRANCH, as a
Co-Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President
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CREDIT SUISSE FIRST BOSTON, as a Co-Agent
and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
---------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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FLEET NATIONAL BANK, as a Co-Agent and as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
---------------------------------
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BANK OF AMERICA NT&SA, as a Co-Agent and as
a Lender
By:
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Name:
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Title:
---------------------------------
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President
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FIFTH THIRD BANK
By: /s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
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Title: National Accounts Officer
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THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. ▇▇▇▇▇
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Name: F.C.H. ▇▇▇▇▇
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Title: Senior Manager Loan Operations
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CHASE BANK OF TEXAS NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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THE BANK OF NEW YORK
By:
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Name:
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Title:
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BANK ONE, TEXAS, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
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ACKNOWLEDGED AND AGREED:
COMPUSA HOLDINGS II INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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COMPUSA HOLDINGS I INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
PCs COMPLEAT, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
COMPTEAM INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
COMPUSA MANAGEMENT COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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COMPUSA STORES L.P.
By: COMPUSA INC., its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇. Vice President-Secretary
COMPUSA HOLDINGS COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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