Exhibit 10.1
FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of this 23rd day of December, 2002, by and among ImageMax, Inc., a
Pennsylvania corporation, and ImageMAX of Delaware, Inc., a Delaware corporation
(collectively, the "Borrowers"); and the Lenders who are or may become a party
to such Credit Agreement (as further amended hereby, and COMMERCE BANK, NA, as
Agent for the Lenders (this "First Amendment").
Background
The Borrowers, Lenders and Agent are parties to that certain
Amended and Restated Credit Agreement, dated as of June 9, 2000, and the Second
Amendment to Credit Agreement dated as of June 13, 2002, pursuant to which the
Lenders agreed to extend certain credit facilities to the Borrowers on the terms
and conditions of set forth therein and in the other Loan Documents as defined
therein (collectively, the "Credit Agreement"). All initially capitalized terms
used herein, and not otherwise defined herein shall have the same meaning as
ascribed to such terms in the Credit Agreement.
The Borrowers have requested that the Lenders increase the
amount of the Maximum Available Credit to an amount not to exceed Six Million
($6,000,000) Dollars, subject to certain limitations as otherwise set forth in
the Credit Agreement, as amended by this First Amendment, and the Lenders have
agreed to such increase in the Maximum Available Credit, all as more
particularly set forth herein, which agreement is expressly subject to the
terms, conditions and provisions hereof.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
such parties hereby agree as follows:
1. Amendments to Credit Agreement
(a) Amendment and Restatement of Paragraph 2.1.4 of the Credit
Agreement. Paragraph 2.1.4 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
2.1.4 Maximum Available Credit. The outstanding
principal balance of the Revolving Credit Facility shall not exceed, at any
time, the lesser of: (i) Six Million ($6,000,000) Dollars, less the aggregate
face amount of Letters of Credit issued by the Agent for the benefit of the
Borrowers pro rata on account of the Lenders; or (ii) the sum of (a) Eighty
(80%) Percent of Borrowers' Eligible Accounts Receivable (or such lesser
percentage as the Agent in its sole and absolute discretion (exercised in good
faith in its reasonable judgment), may determine) less an amount equal to the
aggregate amount of trade payables of any of the Borrowers due to Minolta
Corporation and Canon USA, Inc., and any of their respective Affiliates, and (b)
Thirty-Five (35%) Percent of Borrower's accounts receivable, which are in excess
of ninety (90) days from the date of the billing thereof, but in all other
respects comport to the definition of Eligible Accounts Receivables of the
Borrower (the "Over 90-Day Receivables"), provided, however that the Advance
against such Over 90-Day Receivables shall not exceed Three Hundred Fifty
Thousand ($350,000) Dollars, all of the forgoing determined in accordance with
the last prevailing Borrowing Base Certificate delivered to Agent Bank in the
form of Schedule 2.1.4 hereof (the "Maximum Available Revolving Credit").
Borrowers jointly and severally agree to immediately repay, without notice or
demand, any principal balance of the Revolving Credit Facility in excess of the
Maximum Available Revolving Credit. Unless Agent or the Lenders shall request
more frequently, Borrowers shall submit to the Agent no less frequently than
once a month, a Borrowing Base Certificate.
To evidence the increase in the potential amount of the Maximum
Available Credit, and as a condition precedent to the effectiveness of this
First Amendment, Borrowers shall execute and deliver to Agent for the benefit of
the respective Lenders the First Amended Revolving Credit Notes in the form
attached hereto as Schedule 1.
(b) Amendment and Restatement of Schedule 1 to Credit Agreement.
Schedule 1 of the Credit Agreement is herby Amended and Restated as of the date
hereof as follows:
Commitments
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LENDER COMMITMENT REVOLVING CREDIT TERM LOAN FACILITY TOTAL COMMITMENT
PERCENTAGE FACILITY
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COMMERCE BANK, NA 60% $3,600,000 $ 738,000 $4,338,000
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FIRSTRUST BANK 40% $2,400,000 $ 492,000 $2,892,000
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TOTAL 100% $6,000,000 $1,230,000 $7,230,000
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2. Amendment Fee; and Expenses of Agent and Lenders. In consideration
of the accommodations to be extended by the Lenders for the benefit of the
Borrowers hereunder, and as a condition precedent to the Lenders' agreement to
extend such accommodations, the Borrowers shall forthwith pay to: (i) the Agent,
ratably for the benefit of the Lenders, an Amendment Fee in the amount of Five
Thousand ($5,000) Dollars, which Amendment Fee is hereby deemed fully earned and
non-refundable; and (ii) the Agent, all costs and expenses incurred by the Agent
in connection with the documentation of this First Amendment, including, but not
limited to, all fees and expenses of Agent's counsel incurred in connection
herewith.
3. Certain Acknowledgements of Borrowers. Borrowers hereby acknowledge,
ratify and confirm, for the benefit of the Agent and the Lenders, each and all
of the following:
(a) Borrowers hereby unconditionally acknowledge and confirm
that as of the date hereof, the outstanding Obligations of the Borrowers in
respect of the Term Loan is in the amount of Five Million Two Hundred
Sixty-Three Thousand Eight Hundred Eighteen Dollars and Twenty-Seven Cents
($5,263,818.27) Dollars, and in respect of the Revolving Credit Loans is in the
amount of One Million Two Hundred Thirty-Four Thousand Six Hundred Sixty-Three
Dollars and Nineteen Cents ($1,234,663.19) and that all Obligations under the
Loan Documents are owing to the Lenders without claim, counterclaim, right to
recoupment, defense, or setoffs of any kind or nature whatsoever; and
(b) Except as expressly set forth herein, Borrowers hereby
ratify, confirm and reaffirm in all respects, without condition, all terms,
covenants and conditions set forth in the Loan Documents, and hereby agree that
the Borrowers remain jointly, severally and unconditionally liable to the Agent
and the Lenders in accordance with the terms thereof, as amended by this First
Amendment. Each of the Borrowers further herby ratifies, confirms and reaffirms
that all of the Collateral, liens, security interests and pledges created
pursuant to the Loan Documents, and/or referenced therein, shall continue
unimpaired, in full force and effect, and secure and shall continue to secure
each of the Borrower's Obligations to the Agent and the Lenders. Without
limiting the foregoing, Borrowers each hereby ratify, confirm and reaffirm any
and all warrants of attorney contained in any of the Loan Documents to confess
judgment against any or all of the Borrowers remain in full force and effect and
that such warrants of attorney were knowingly and voluntarily granted by each of
the Borrowers.
4. Representations and Warranties. To induce the Agent and Lenders to
enter into this First Amendment, and to otherwise perform hereunder, each of the
Borrowers hereby represents and warrants to the Agent and Lenders both before
and after giving effect to the transactions contemplated hereunder that:
(a) Organization; Power; and Qualification. Each of the
Borrowers is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, has the power and
authority to own its properties and to carry on its business as now being and
hereafter proposed to be conducted and is duly qualified and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification and authorization. The
jurisdictions in which the Borrowers and their respective Subsidiaries are
organized and qualified to do business as of the Closing Date are described on
Schedule 6.1.1 of the Credit Agreement;
(b) Authorization of the First Amendment. Each of the
Borrowers has the right, power and authority and has taken all necessary
corporate and other action to authorize the execution, delivery and performance
of this First Amendment. This First Amendment has been duly executed and
delivered by the duly authorized officers of the respective Borrowers and each
of their respective Subsidiaries party hereto, and each such document
constitutes the legal, valid and binding obligation of the Borrowers party
thereto, enforceable in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
state or federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies;
(c) Compliance. The execution, delivery and performance by the
Borrowers of this First Amendment does not and will not, by the passage of time,
the giving of notice or otherwise; (i) require any Governmental Approval or
violate any Applicable Law relating to such Borrower; (ii) conflict with, result
in a breach of or constitute a default under the articles of incorporation,
bylaws or other organizational documents of such Borrower or any indenture,
agreement or other instrument to which such Borrower is a party or by which any
of its properties may be bound or any Governmental Approval relating to such
Person; or (iii) result in or require the creation or imposition of any Lien
upon or with respect to any property now owned or hereafter acquired by such
Borrower other than Liens arising under the Loan Documents; and
(d) Ratification. Each and all of the other representations
and warranties made by either of the Borrowers to the Agent or the Lenders,
whether in the Loan Documents or otherwise are herby ratified and confirmed in
full as if republished herein as of the date hereof.
5. Conditions Precedent to the Effectiveness of this First Amendment.
The obligation of the Lenders to close this First Amendment and to extend the
financial accommodations contemplated hereby, or to otherwise perform hereunder,
is subject to the satisfaction of the Agent and the Required Lenders in their
sole and absolute discretion, of each of the following conditions:
(a) Receipt by Agent of an executed copy of this First
Amendment;
(b) Receipt by each Lender of an executed First Amended and
Restated Revolving Credit Note in the form attached hereto as Schedule 1;
(c) Receipt by Agent in form and substance satisfactory to
Agent of a First Amendment to the Amended and Restated Subordination Agreement,
dated as of June 13, 2002, providing inter alia for the consent by the Creditors
(as such term is defined therein) to the amendments contemplated hereby;
(d) Payment of the Amendment Fee and all costs and expenses
incurred by the Agent in connection with the documentation of this First
Amendment, including, but not limited to, all fees and expenses of Agent's
counsel incurred in connection herewith;
(e) The Agent shall have received a certificate from a
Responsible Officer in form and substance satisfactory to the Agent, to the
effect that all representations and warranties of the Borrowers contained in the
Credit Agreement, as amended hereby, and the other Loan Documents are true,
correct and complete; that neither of the Borrowers is in violation of any of
the covenants contained in the credit Agreement, as amended hereby, and the
other Loan Documents; that, after giving effect to the transactions contemplated
by this First Amendment, no Default or Event of Default has occurred and is
continuing; and that the Borrowers has satisfied each of the closing conditions;
(f) The Agent shall have received a certificate of the
secretary or assistant secretary of the Borrowers certifying as to the
incumbency and genuineness of the signature of each officer of the Borrowers
executing this First Amendment, the First Amended and Restated Notes, the First
Amendment to the Amended and Restated Subordination Agreement, and any of the
other Loan Documents in connection herewith and therewith to which it is a party
and certifying that attached thereto is a true, correct and complete copy of the
resolutions duly adopted by the Board of Directors of each of the Borrowers
authorizing the borrowings contemplated hereunder and the execution, delivery
and performance of this First Amendment, the First Amended and Restated Notes,
the First Amendment to the Amended and Restated Subordination Agreement, and any
of the other Loan Documents in connection herewith and therewith;
(g) The Agent shall have received favorable opinions of
counsel to the Borrowers addressed to the Agent and the Lenders with respect to
the Borrowers, this First Amendment, the Loan Documents and such other matters
as the Lenders shall request; and
(h) No Event of Default. No Default or Event of Default shall
have occurred and be continuing.
6. Miscellaneous.
(a) Counterparts. This First Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
(b) Headings. Headings and titles to Sections under this First
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(c) One Agreement. This First Amendment, together with the
Credit Agreement shall constitute one and the same agreement by and among the
parties hereto and thereto and reflects the entire understanding of the parties
with respect to the subject matter thereof, as corrected and amended hereby.
(d) Pennsylvania Law. The provisions of this First Amendment
shall be construed in accordance with the laws of the Commonwealth of
Pennsylvania with respect to contracts to be executed and performed within the
Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties
hereto have caused this First Amendment to be executed under seal by their duly
authorized officers, all as of the day and year first written above.
IMAGEMAX, INC.
IMAGEMAX OF DELAWARE, INC.
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, Chief Financial Officer of each
of the Borrowers
COMMERCE BANK, NA,
as Agent and Lender
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx, Senior Vice President
FIRSTRUST BANK, as Lender
By: /s/ Xxxx Xxxxxx
Xxxx Xxxxxx, Vice President
