Circuit City 2005 Annual Report Download - page 67

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AMENDMENT NO. 1
TO
AMENDED AND RESTATED CREDIT AGREEMENT
WAIVER AND CONSENT
THIS AMENDMENT NO. 1, WAIVER AND CONSENT (“Amendment No. 1, Waiver and Consent”) is
entered into as of December 19, 2005 by and among SYSTEMAX INC., a corporation organized under the laws of the
State of Delaware (“SYX”), SYSTEMAX MANUFACTURING INC., a corporation organized under the laws of the
State of Delaware (“SMI”), GLOBAL COMPUTER SUPPLIES INC., a corporation organized under the laws of the
State of New York (“GCS”),
GLOBAL EQUIPMENT COMPANY INC., a corporation organized under the laws of the
State of New York (“GEC”), TIGERDIRECT, INC., a corporation organized under the laws of the State of Florida
(“Tiger”), DARTEK CORPORATION, a corporation organized under the laws of the State of Delaware (“Dartek”),
NEXEL INDUSTRIES, INC., a corporation organized under the laws of the State of New York (
“NII”), MISCO
AMERICA INC., a corporation organized under the laws of the State of Delaware (“Misco”), ONREBATE.COM
INC., a corporation organized under the laws of the State of Delaware (“OCI”), PAPIER CATALOGUES, INC., a
corporation organized under the laws of the State of New York (“PCI”), CATALOG DATA SYSTEMS, INC., a
corporation organized under the laws of the State of New York (“CDS”), MILLENNIUM FALCON CORP., a
corporation organized under the laws of the State of Delaware (“MFC”), TEK SERV INC., a corporation organized
under the laws of the State of Delaware (“TSI”), B.T.S.A., Inc., a corporation organized under the laws of the State of
New York (
“BTSA”), PROFIT CENTER SOFTWARE INC., a corporation organized under the laws of the State of
New York (
“PCS”), GLOBAL GOV/ED SOLUTIONS INC., a corporation organized under the laws of the State of
Delaware (“GGES”), GLOBAL GOVERNMENT & EDUCATION INC., a corporation organized under the laws of
the State of Delaware (“GGE”), SYX DISTRIBUTION INC., a corporation organized under the laws of the State of
Delaware (“SYXD”), SYX SERVICES INC., a corporation organized under the laws of the State of New York (“SSI”
),
and ULTRA PRODUCTS INC., a corporation organized under the laws of the State of Delaware (“UPI”) (SYX, SMI,
GCS, GEC, Tiger, Dartek, NII, Misco, OCI, PCI, CDS, MFC, TSI, BTSA, PCS, GGES, GGE, SYXD, SSI and UPI,
each a “US Borrower” and jointly and severally the “US Borrowers”), SYSTEMAX EUROPE LIMITED, a
corporation organized under the laws of Scotland (“the UK Borrower”; the US Borrowers and the UK Borrower
hereinafter each a “Borrower” and, jointly and severally as the context may require, the “Borrowers”), SYSTEMAX
SUWANEE LLC, a limited liability company organized under the laws of the State of Delaware (“SSLLC”), and THE
MILLENIUM GROUP LLC, a limited liability company organized under the laws of the State of Connecticut
(“TMGLLC”) (SSLLC, TMGLLC and each US Borrower, each a “Loan Guarantor” and, jointly and severally as the
context may require, the “Loan Guarantors”), the Lenders party hereto, J.P. MORGAN EUROPE LIMITED, as UK
Administrative Agent, and JPMORGAN CHASE BANK, N.A., as US Administrative Agent.
BACKGROUND
Borrowers, Agent and Lenders are parties to an Amended and Restated Credit Agreement dated as of October
27, 2005 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”) pursuant to
which the Lenders provided the Borrowers with certain financial accommodations.
On the Effective Date of the Credit Agreement, the Borrowers agreed that on or before November 30, 2005 (the
“Required Date”), US Administrative Agent would receive “the financial statements of Borrowers on a Consolidated
Basis for the months ended July 31, 2005, August 31, 2005 and September 30, 2005, with each of the foregoing
prepared in accordance with Section 5.01(c) of the Credit Agreement”. US Administrative Agent did not receive the
financial statements for the month ended September 30, 2005 (the “Overdue Monthly Financial Statements”) by the
Required Date, which constitutes an Event of Default under the Credit Agreement (the “Financial Statements Default”
).
Borrowers have agreed to provide to US Administrative Agent the Overdue Monthly Financial Statements by no later
than December 31, 2005, and have requested Lenders to waive the Financial Statements Default. Lenders are willing to
waive the Financial Statements Default on the terms and conditions hereafter set forth.
Borrowers have informed Administrative Agents and Lenders that (a) SSLLC intends to sell the Suwanee Real
Property on or about June 15, 2006 (the
“
Suwanee Sale
”
),
and (b) GEC intends to enter into a lease for premises