1
EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT AND
MASTER ASSIGNMENT AND ACCEPTANCE
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND MASTER ASSIGNMENT AND
ACCEPTANCE (the "Amendment"), dated as of June 28, 1996, is among SOFTWARE
SPECTRUM, INC. (the "Borrower"), each of the banks or other lending
institutions which are a party hereto (individually a "Bank" and collectively,
the "Banks") and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, individually as a
Bank (in its individual capacity and not as agent, herein "TCB") and as agent
for itself and the other Banks (in such capacity as agent, together with its
successors in such capacity, the "Agent").
RECITALS:
A. BORROWER, TCB and the Agent have entered into that certain
Credit Agreement dated May 3, 1996 (the "Agreement").
B. Pursuant to Section 14.8 of the Agreement, TCB desires to
assign interest in its rights and obligations under the Agreement and the other
Loan Documents to the Banks identified on the signature pages hereto as the
"New Banks" (herein so called).
C. In connection with the assignments to the New Banks, the
Borrower, Banks and the Agent desire to amend the Agreement as herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. Capitalized terms used in this Amendment,
to the extent not otherwise defined herein, shall have the same meanings as in
the Agreement, as amended hereby.
ARTICLE 2
Amendments
Section 2.1 Amendment to Section 1.1. Effective as of the Effective
Date (as defined below), the first sentence in the definition of the term
"Interest Period" in section 1.1 of the Agreement is hereby amended in its
entirety to read as follows:
FIRST AMENDMENT TO CREDIT AGREEMENT AND
MASTER ASSIGNMENT AND ACCEPTANCE - Page 1
2
"Interest Period" means with respect to any Libor Account, each
period commencing on the date such Account is established or Converted
from a Base Rate Account or the last day of the next preceding Interest
Period with respect to such Libor Account, and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Borrower may select as provided in Section 4.5 or
5.1, except that each such Interest Period which commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate subsequent
calendar month.
Section 2.2 Amendment to Section 14.11. Effective as of the Effective
Date (as defined below), clause (a) of Section 14.11 of the Agreement is hereby
amended in its entirety to read as follows:
(a) increase Commitments of the Banks, change the definition of the
Borrowing Base or otherwise amend the Agreement to delete the
requirement that the Loans be governed by a borrowing base;
ARTICLE 3
Assignment and Acceptance
Section 3.1 Assignment. TCB hereby sells and assigns to each New Bank
without recourse, representation or warranty except as specifically set forth
herein, and each New Bank hereby purchases and assumes from TCB, such New
Bank's Pro-Rata Interest in and to all TCB's rights and obligations under the
Agreement and the other Loan Documents as of the Effective Date (as defined
below) (including, without limitation, such Pro-Rata Interest in the
Commitments of TCB on the Effective Date and such Pro-Rata Interest in the
Loans owing to, and Letter of Credit Liabilities held by TCB and outstanding on
the Effective Date, together with such Pro-Rata Interest in all unpaid interest
and fees accrued from the Effective Date) (the "Assignments"). TCB's Assignment
to a New Bank shall not be effective until TCB shall have received the purchase
price for the Assignment from such New Bank in the amount specified opposite
such New Bank's name on Exhibit A hereto in the column entitled "Purchase
Price." The term "Pro-Rata Interest" means, with respect to a New Bank, the
percentage interest specified on Exhibit A hereto opposite such New Bank's name
in the column entitled "Pro-Rata Interest."
Section 3.2 TCB Representations and Disclosures. TCB (i) represents to
each New Bank that as of the date hereof, its Revolving Commitment is
$60,000,000.00, no principal is outstanding under the Revolving Loans, a total
of $6,600,000 of Letter of Credit Liabilities are outstanding and the
outstanding principal balance of the Term Loan is $30,000,000.00 (all as
unreduced by any assignments which have not yet become effective or by the
Assignments); (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Agreement or any other Loan
FIRST AMENDMENT TO CREDIT AGREEMENT AND
MASTER ASSIGNMENT AND ACCEPTANCE - Page 2
3
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Agreement or any other Loan Document, other than
that it is legally authorized to enter in this Amendment, it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any Obligated Party or the performance
or observance by the Borrower or any Obligated Party of any of their
obligations under the Agreement or any other Loan Document.
Section 3.3 New Bank Representations and Agreements. Each New Bank
(i) represents and warrants to TCB that it is legally authorized to enter in
this Amendment; (ii) confirms that it has received a copy of the Agreement,
together with copies of the most recent financial statements delivered pursuant
to Section 9.1 thereof, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Amendment; (iii) agrees that it will, independently and without reliance
upon the Agent, TCB, or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Agreement and the
other Loan Documents; (iv) confirms that it is an "Eligible Assignee;" (v)
appoints and authorizes the Agent to take such action on its behalf and to
exercise such powers under the Loan Documents as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; (vi) agrees that it will perform in accordance with their terms all
obligations which by the terms of the Agreement and the other Loan Documents
are required to be performed by it as a Bank; and (vii), if it is organized
under the laws of a jurisdiction outside the United States, agrees to provide
Agent the forms prescribed by the Internal Revenue Service of the United States
certifying as to its exemption from United States withholding taxes with
respect to all payments to be made to it under the Agreement or such other Loan
Documents as are necessary to indicate that all such payments are subject to
such tax at a rate reduced by an applicable tax treaty.
Section 3.4 Effective Date. The effective date for each Assignment
shall be June 28, 1996 subject to receipt of the purchase price for such
Assignment (the "Effective Date"). By execution below this Amendment and the
Assignments are accepted by the Borrower and the Agent for purposes of Section
14.8 of the Agreement. From and after the Effective Date, (i) each New Bank
shall be a party to the Agreement and shall have the rights and obligations of
a Bank thereunder and under the other Loan Documents, (ii) TCB shall, to the
extent of the Assignments provided in this Article 3, relinquish its rights and
be released from its obligations under the Agreement and the other Loan
Documents, and (iii) the Agent shall make all payments in respect of the
interest assigned hereby (including payments of principal, interest, fees, and
other amounts) to the applicable New Bank. TCB and each New Bank shall make all
appropriate adjustments in payments under the Agreement and the Notes for
periods prior to the Effective Date directly between themselves.
Section 3.5 Exchange of Notes; New Commitments. Borrower agrees to
exchange TCB's existing Notes for New Notes payable to the order of (i) each
New Bank in amounts equal to the Commitments assumed by each New Bank pursuant
hereto and the outstanding principal amount
FIRST AMENDMENT TO CREDIT AGREEMENT AND
MASTER ASSIGNMENT AND ACCEPTANCE - Page 3
4
of the Loans assigned to each New Bank pursuant hereto, as applicable, and (B)
TCB in amounts equal to the Commitments and Loans retained by TCB under the
Agreement as specified herein. The Commitments of each Bank and the Loans of
each Bank after giving effect to the Assignments are set forth on Exhibit A
hereto.
Section 3.6 Address for Notices. For purposes of Section 14.13 of the
Agreement, the "Address for Notices" for each New Bank is as set forth on
Exhibit B hereto.
ARTICLE 4
Miscellaneous
Section 4.1 Ratifications. The terms and provisions set forth in this
Agreement shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and except as expressly modified and superseded by this
Amendment, the terms and provisions of the Agreement and the other Loan
Documents are ratified and confirmed and shall continue in full force and
effect. Borrower, Spectrum Integrated Services, Inc. (by its execution below),
the Banks and Agent agree that the Agreement, as amended hereby, and the other
Loan Documents shall continue to be legal, valid, binding and enforceable in
accordance with their respective terms.
Section 4.2 Survival of Representations and Warranties. All
representations and warrants made in this Amendment shall survive the execution
and delivery of this Amendment and no investigation by any party or any closing
shall affect the representations and warranties or the right of any party to
rely upon them.
Section 4.3 Reference to Agreement. Each of the Loan Documents,
including the Agreement, are hereby amended so that any reference in such Loan
Documents to the Agreement shall mean a reference to the Agreement as amended
hereby.
Section 4.4 Severability. Any 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 provision so held to be invalid or unenforceable.
Section 4.5 Applicable Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and the applicable
laws of the United State of America.
Section 4.6 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of Borrower, Agent, the Banks and their respective
successors and assigns, except Borrower may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of the Banks.
FIRST AMENDMENT TO CREDIT AGREEMENT AND
MASTER ASSIGNMENT AND ACCEPTANCE - Page 4
5
Section 4.7 Counterparts. This Amendment may be executed in one or more
counterparts, 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.
Section 4.8 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 4.9 ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO 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.
Executed as of the date first written above.
BORROWER:
SOFTWARE SPECTRUM, INC.
By: /s/ DEBORAH A. NUGENT
------------------------------
Deborah A. Nugent
Vice President
Accepted and agreed to:
SPECTRUM INTEGRATED SERVICES, INC.
By: /s/ DEBORAH A. NUGENT
------------------------------
Deborah A. Nugent
Secretary/Treasurer
FIRST AMENDMENT TO CREDIT AGREEMENT AND
MASTER ASSIGNMENT AND ACCEPTANCE - Page 5
6
AGENT:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, individually as a Bank and as the Agent
By: /s/ J. SCOT BRUNKE
------------------------------------------------
J. Scot Brunke
Senior Vice President
FIRST AMENDMENT TO CREDIT AGREEMENT AND
MASTER ASSIGNMENT AND ACCEPTANCE - Page 6
7
NEW BANKS:
BANQUE PARIBAS
By: /s/ KENNETH E. MOORE, JR.
------------------------------------------------
Name: Kenneth E. Moore, Jr.
------------------------------------------
Title: Vice President
-----------------------------------------
By: /s/ ROSEMARY DAVIS
------------------------------------------------
Name: Rosemary Davis
------------------------------------------
Title: Vice President
-----------------------------------------
NATIONAL CITY BANK, KENTUCKY
By: /s/ DON PULLEN
------------------------------------------------
Name: Don Pullen
------------------------------------------
Title: Vice President
-----------------------------------------
COMERICA BANK
By: /s/ REGINALD M. GOLDSMITH, III
------------------------------------------------
Name: Reginald M. Goldsmith, III
------------------------------------------
Title: Vice President
-----------------------------------------
PNC BANK, N.A.
By: /s/ GREGORY T. GASCHLER
------------------------------------------------
Name: Gregory Gaschler
------------------------------------------
Title: Vice President
-----------------------------------------
WELLS FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By: /s/ KEN TAYLOR
------------------------------------------------
Name: Ken Taylor
------------------------------------------
Title: Assistant Vice President
-----------------------------------------
NBD BANK
By: /s/ WILLIAM J. MCCAFFREY
------------------------------------------------
Name: William J. McCaffrey
------------------------------------------
Title: Vice President
-----------------------------------------
FIRST AMENDMENT TO CREDIT AGREEMENT AND
MASTER ASSIGNMENT AND ACCEPTANCE - Page 7