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Exhibit
10.25
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”) is made as of the 20th day of April, 2007,
by and among SCANSOURCE, INC., a South Carolina corporation,
NETPOINT INTERNATIONAL, INC., a Florida corporation, SCANSOURCE
EUROPE LIMITED, SCANSOURCE UK LIMITED, 4100 QUEST, LLC, PARTNER
SERVICES, INC. and T2 SUPPLY, INC., BRANCH BANKING AND TRUST
COMPANY (successor by merger to Branch Banking and Trust Company of
South Carolina), as Administrative Agent and a Bank, WACHOVIA BANK,
NATIONAL ASSOCIATION, as Syndication Agent, an Other Currency
Lender and a Bank, and FIFTH THIRD BANK, FIRST TENNESSEE BANK
NATIONAL ASSOCIATION and CAPITAL ONE, N.A. (collectively referred
to herein as the “Banks”).
R E C I T A L S
:
The Borrowers, the
Guarantors, the Administrative Agent and the Banks have entered
into a certain Amended and Restated Credit Agreement dated as of
July 16, 2004, as amended by a First Amendment to Amended and
Restated Credit Agreement dated May 13, 2005 and a Second
Amendment to Amended and Restated Credit Agreement dated
October 6, 2006 (referred to herein as the “Credit
Agreement”). Capitalized terms used in this Amendment which
are not otherwise defined in this Amendment shall have the
respective meanings assigned to them in the Credit
Agreement.
The Borrowers and Guarantors
have requested that: (1) Sections 2.01(b) and 2.16(a)(2) of
the Credit Agreement be amended as set forth herein; and
(2) the Credit Agreement and the Commitments of the respective
Banks be amended to reflect the increase in the Commitments of the
Banks to $180,000,000 effective April 20, 2007.
The Borrowers and Guarantors
have requested the Administrative Agent and the Banks to amend the
Credit Agreement to modify certain additional provisions of the
Credit Agreement as more fully set forth herein. The Banks, the
Administrative Agent, the Guarantors and the Borrowers desire to
amend the Credit Agreement upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in
consideration of the Recitals and the mutual promises contained
herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Borrowers,
the Guarantors, the Administrative Agent and the Banks, intending
to be legally bound hereby, agree as follows:
SECTION 1. Recitals .
The Recitals are incorporated herein by reference and shall be
deemed to be a part of this Amendment.
SECTION 2. Amendments
. The Credit Agreement is hereby amended as set forth in this
Section 2 .
SECTION 2.01. Amendment to
Section 2.01(b) . Section 2.01(b) of the Credit
Agreement is amended and restated to read in its entirety as
follows:
(b) Subject to the terms and
conditions set forth herein, the Borrowers shall have the right, at
any time and from time to time from the Restatement Effective Date
until the Termination Date, to request an increase to the total
Revolving Advance Commitments (together with a corresponding
increase in the Facility Commitment and Other Currency Commitment)
in an aggregate amount not to exceed $20,000,000 (for a total
maximum Revolving Advance Commitment (and Facility Commitment),
assuming no reductions, of $200,000,000) in the aggregate;
provided, however, that: (x) the amount of each such increase
shall be a multiple of $1,000,000; and (y) only two
(2) such increases may be made hereunder. The following terms
and conditions shall apply to any such increase: (i) any such
increase shall be obtained from existing Revolving Advance Lenders
or from other banks or other financial institutions, in each case
in accordance with the terms set forth below, (ii) the
Revolving Advance Commitment of any Revolving Advance Lender may
not be increased without the prior written consent of such
Revolving Advance Lender, (iii) any increase in the aggregate
Revolving Advance Commitments shall be in a minimum principal
amount of $10,000,000 (except that the second increase may be in
the aggregate amount equal to the difference between $200,000,000
and the amount of the aggregate Revolving Advance Commitments
immediately prior to such second increase), (iv) the Loan
Parties and Banks shall execute an acknowledgement in form and
content satisfactory to the Administrative Agent to reflect the
revised Revolving Advance Commitments and compliance with other
terms of this Agreement (including, without limitation,
Section 2.16(a)(2)) (the Banks do hereby agree to execute such
acknowledgement unless the acknowledgement purports to increase the
Commitment of a Bank without such Bank’s consent),
(v) the Borrowers shall execute such Notes as are necessary to
reflect the increase in the Revolving Advance Commitments,
(vi) if any Revolving Advances are outstanding at the time of
any such increase, the Borrowers shall make such payments and
adjustments on the Revolving Advances as necessary to give effect
to the revised commitment percentages and outstandings of the
Revolving Advance Lenders, (vii) the conditions set forth in
Section 3.02 shall be true and correct, (viii) any
existing Revolving Advance Lender or other bank or other financial
institution which agrees to provide such increase in the Revolving
Advance Commitment shall also agree to provide an increased Other
Currency Commitment in an amount equal to the increase in the
Revolving Advance Commitment, and (ix) the Loan Parties shall
satisfy all terms and conditions of Section 2.16(a)(2). The
amount of any increase in the Revolving Advance Commitments
hereunder may be offered by the Borrowers first to banks and
financial institutions that are not a party to this Agreement as a
Revolving Advance Lender (a “New Revolving Advance Financial
Institution”) so long as such New Revolving Advance Financial
Institution is approved by the Administrative Agent (such approval
not to be unreasonably withheld) and the Revolving Advance
Commitment of any such New Revolving Advance Financial Institution
(and the amount of the additional commitments requested by the
Borrowers which are allocated to the Revolving Advance Lenders then
party to this Agreement) shall be acceptable to the Borrowers and
the Administrative Agent. Any such New Financial Institution shall
enter into such joinder agreements to give effect thereto as the
Administrative Agent and the Borrowers may reasonably
request.
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SECTION 2.02. Amendment to
Section 2.16(a)(2) . Section 2.16(a)(2) of the Credit
Agreement is amended and restated to read in its entirety as
follows:
(2) Subject to the terms and
conditions set forth herein, the Borrowers shall have the right, at
any time and from time to time from the Restatement Effective Date
until the Termination Date, to request an increase to the total
Other Currency Commitments (together with a corresponding increase
in the Facility Commitment and Revolving Advance Commitment) in an
aggregate amount not to exceed $20,000,000 (for a total maximum
Other Currency Commitment (and Facility Commitment), assuming no
reductions, of $200,000,000) in the aggregate; provided, however,
that (x) the amount of each such increase shall be a multiple
of $1,000,000; and (y) only two (2) such increases may be
made hereunder. The following terms and conditions shall apply to
any such increase: (i) any such increase shall be obtained
from existing Other Currency Lenders or from other banks or other
financial institutions, in each case in accordance with the terms
set forth herein, (ii) the Other Currency Commitment of any
Other Currency Lender may not be increased without the prior
written consent of such Other Currency Lender and BB&T,
(iii) any increase in the aggregate Other Currency Commitments
shall be in a minimum principal amount of $10,000,000 (except that
the second increase may be in the aggregate amount equal to the
difference between $200,000,000 and the amount of the aggregate
Other Currency Commitments immediately prior to such second
increase), (iv) the Loan Parties, the Banks (including without
limitation, the Other Currency Lenders) and the Administrative
Agent shall execute an amendment to this Agreement in form and
content satisfactory to the Administrative Agent to reflect the
revised Other Currency Commitment and to incorporate the terms of
any amendment, supplement or modification requested by the
Administrative Agent pursuant to Section 2.16(b)(5), (the
Banks do hereby agree to execute such amendment unless the
amendment purports to increase the Facility Commitment, Revolving
Advance Commitment or Other Currency Commitment of a Bank without
such Bank’s consent), (v) the Borrowers shall execute
such Notes as are necessary to reflect the increase in the Facility
Commitments and Other Currency Commitment, (vi) if any
Advances are outstanding at the time of any such increase, the
Borrower shall make such payments and adjustments on the Advances
(including payment of any break-funding amount owing under
Section 8.05) as necessary to give effect to the revised
commitment percentages and outstandings of the Banks,
(vii) the conditions set forth in Section 3.02 shall be
true and correct; (viii) any existing Other Currency Lender or
other bank or other financial institution which agrees to provide
such increase in the Other Currency Commitment shall also agree to
provide an increased Revolving Advance Commitment in an amount
equal to the increase in the Other Currency Commitment;
(ix) the Loan Parties shall satisfy all terms and conditions
of Section 2.01(b); and (x) the U.S. Borrowers shall have
not reduced the Facility Commitments at any time. The amount of any
increase in the Other Currency Commitments hereunder may be offered
by the Borrowers first to banks and financial institutions that are
not a party to this Agreement as an Other Currency Lender (a
“New
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Other Currency Financial
Institution”) so long as such New Other Currency Financial
Institution is approved by the Administrative Agent and the Other
Currency Sub-Agent (such approval not to be unreasonably withheld)
and the Other Currency Commitment of any such New Other Currency
Financial Institution (and the additional commitments requested by
the Non-U.S. Borrowers and allocated to the Other Currency Lenders
then a party to this Agreement) shall be acceptable to the Non-U.S.
Borrowers, the Other Currency Sub-Agent and the Administrative
Agent. Any such new Other Currency Financial Institution shall
enter into such joinder agreements to give effect thereto as the
Administrative Agent, the Other Currency Sub-Agent and the
Borrowers may reasonably request.
SECTION 2.03. Amendment to
Commitments . (a) The Borrowers and Guarantors acknowledge
and agree effective April 20, 2007, the total Revolving
Advance Commitment and the total Other Currency Commitment shall
each be increased pursuant to Sections 2.01(b) and 2.16(a)(2) of
the Credit Agreement in an amount equal to $30,000,000 (together
with a corresponding increase in the Facility Commitment) for a
total maximum Revolving Advance Commitment of $180,000,000, a total
Other Currency Commitment of $180,000,000 and a total Facility
Commitment of $180,000,000;
(b) The signature page to the
Credit Agreement for each of the Banks is hereby amended by
deleting the U.S. Dollar Letter of Credit Commitment, the
Other Currency Letter of Credit Commitment, and each of the other
Commitments of such Bank set forth on such signature page and by
substituting therefor the new U.S. Dollar Letter of Credit
Commitment, the Other Currency Letter of Credit Commitment, and
other Commitments set forth for each such Bank on the signature
page to this Amendment with respect to such Bank.
SECTION 3. Conditions to
Effectiveness . The effectiveness of this Amendment and the
obligations of the Banks hereunder are subject to the following
conditions, unless the Required Banks waive such
conditions:
(a) receipt by the
Administrative Agent from each of the parties hereto of a duly
executed counterpart of this Amendment signed by such
party;
(b) the Bank shall have
received a duly executed Replacement Note for the account of each
Bank; and
(c) the fact that the
representations and warranties of the Borrowers and Guarantors
contained in Section 5 of this Amendment shall be true on and
as of the date hereof except to the extent such representations and
warranties specifically relate to an earlier date, in which case
such representations and warranties were true on and as of such
earlier date.
SECTION 4. No Other
Amendment . Except for the amendments set forth above, the text
of the Credit Agreement shall remain unchanged and in full force
and effect. This Amendment is not intended to effect, nor shall it
be construed as, a novation. The Credit Agreement and this
Amendment shall be construed together as a single agreement.
Nothing herein contained shall waive, annul, vary or affect any
provision, condition, covenant or
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agreement contained in the Credit
Agreement, except as herein amended, nor affect nor impair any
rights, powers or remedies under the Credit Agreement as hereby
amended. The Banks and the Administrative Agent do hereby reserve
all of their rights and remedies against all parties who may be or
may hereafter become secondarily liable for the repayment of the
Notes. The Borrowers and Guarantors promise and agree to perform
all of the requirements, conditions, agreements and obligations
under the terms of the Credit Agreement, as heretofore and hereby
amended, the Credit Agreement, as amended, and the other Loan
Documents being hereby ratified and affirmed. The Borrowers and
Guarantors hereby expressly agree that the Credit Agreement, as
amended, and the other Loan Documents are in full force and
effect.
SECTION 5. Representations
and Warranties . The Borrowers and Guarantors hereby represent
and warrant to each of the Banks as follows:
(a) No Default or Event of
Default under the Credit Agreement or any other Loan Document has
occurred and is continuing unwaived by the Banks on the date
hereof.
(b) The Borrowers and
Guarantors have the power and authority to enter into this
Amendment and the Replacement Notes and to do all acts and things
as are required or contemplated hereunder to be done, observed and
performed by them.
(c) This Amendment and the
Replacement Notes have been duly authorized, validly executed and
delivered by one or more authorized officers of the Borrowers and
Guarantors and constitutes the legal, valid and binding obligations
of the Borrowers and Guarantors enforceable against them in
accordance with its terms, provided that such enforceability is
subject to general principles of equity.
(d) The execution and
delivery of this Amendment and the Replacement Notes and the
performance by the Borrowers and Guarantors hereunder and
thereunder do not and will not, as a condition to such execution,
delivery and performance, require the consent or approval of any
regulatory authority or governmental authority or agency having
jurisdiction over the Borrowers, or any Guarantor, nor be in
contravention of or in conflict with the articles of incorporation,
bylaws or other organizational documents of the Borrowers, or any
Guarantor that is a corporation, the articles of organization or
operating agreement of 4100 Quest, LLC or the provision of any
statute, or any judgment, order or indenture, instrument, agreement
or undertaking, to which any Borrower, or any Guarantor is party or
by which the assets or properties of the Borrowers, and Guarantors
are or may become bound.
SECTION 6.
Counterparts . This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and
all of which, taken together, shall constitute one and the same
agreement.
SECTION 7. Governing
Law . This Amendment shall be construed in accordance with and
governed by the laws of the State of South Carolina.
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SECTION 8. Effective
Date . Section 2.01 of this Amendment shall be effective
as of April 20, 2007.
SECTION 9. Consent by
Guarantors . The Guarantors consent to the foregoing
amendments. The Guarantors promise and agree to perform all of the
requirements, conditions, agreements and obligations under the
terms of the Credit Agreement as hereby amended, said Credit
Agreement, as hereby amended, being hereby ratified and affirmed.
In furtherance and not in limitation of the foregoing, the
Guarantors acknowledge and agree that the “Guaranteed
Obligations” (as defined in the Credit Agreement) include,
without limitation, the indebtedness, liabilities and obligations
evidenced by the Replacement Notes and the Loans made and Letters
of Credit issued under the Credit Agreement as hereby amended. The
Guarantors hereby expressly agree that the Credit Agreement, as
hereby amended, is in full force and effect.
SECTION 10. Commitment
. The Borrowers shall deliver to each Revolving Advance Lender a
replacement Note (in the amount of such Revolving Advance
Lender’s Revolving Advance Commitment) (such notes are
collectively referred to herein as the “Replacement
Notes”), executed by the Borrowers, in exchange for the
applicable Notes of such Revolving Advance Lender currently
outstanding. All references contained in the Credit Agreement and
the other Loan Documents to the Notes shall mean and include the
Swing Line Note, the Other Currency Notes and the Replacement Notes
as supplemented, modified, amended, renewed or extended.
[The remainder of this page
intentionally left blank.]
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IN WITNESS WHEREOF, the
parties hereto have executed and delivered, or have caused their
respective duly authorized officers or representatives to execute
and deliver, this Amendment as of the day and year first above
written.
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| SCANSOURCE, INC. |
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/s/ Richard P.
Cleys |
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(SEAL) |
| Title: |
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VP and
Chief Financial Officer |
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| NETPOINT INTERNATIONAL, INC. |
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| By: |
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/s/ Linda B.
Davis |
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(SEAL) |
| Title: |
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Vice
President and Treasurer |
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| 4100 QUEST, LLC |
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By: |
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ScanSource, Inc., its sole member |
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By: |
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/s/ Richard P.
Cleys |
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(SEAL) |
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Title: |
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VP and Chief Financial Officer |
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| PARTNER SERVICES, INC. |
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| By: |
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/s/ Linda B.
Davis |
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(SEAL) |
| Title: |
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Vice
President and Treasurer |
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| SCANSOURCE EUROPE LIMITED |
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| By: |
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/s/ Linda B.
Davis |
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(SEAL) |
| Title: |
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Director |
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| SCANSOURCE UK LIMITED |
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| By: |
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/s/ Linda B.
Davis |
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(SEAL) |
| Title: |
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Director |
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| T2 SUPPLY, INC. |
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| By: |
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/s/ Richard P.
Cleys |
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(SEAL) |
| Title: |
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VP & Chief Financial Officer |
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[Remainder of this page
intentionally left blank]
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| BRANCH BANKING AND TRUST COMPANY (successor by merger to Branch
Banking and Trust Company of South Carolina), as Administrative
Agent, U.S. Dollar Issuing Bank, Other Currency Issuing Bank,
and as a Bank |
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| By: |
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/s/ Michael
Skorich |
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(SEAL) |
| Title: |
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Vice
President |
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COMMITMENTS
Facility
Commitment:
$90,000,000
Revolving Advance
Commitment:
$90,000,000
U.S. Dollar Letter of
Credit
Commitment:
$12,500,000
Other Currency
Commitment:
$130,500,000
Other Currency Letter of
Credit
Commitment: $10,875,000
[Remainder of this page
intentionally left blank]
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| WACHOVIA BANK, NATIONAL ASSOCIATION, as an Other Currency
Lender, Other Currency Issuing Bank and a Bank |
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| By: |
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/s/ Thomas F |
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