Exhibit 10.33
EXECUTION COPY
AMERICAN REPROGRAPHICS COMPANY, L.L.C.
FIRST AMENDMENT TO
FIRST LIEN CREDIT AND GUARANTY AGREEMENT
This FIRST AMENDMENT TO FIRST LIEN CREDIT AND GUARANTY AGREEMENT,
dated as of October 11, 2004 (this "AMENDMENT"), is entered into by and among
AMERICAN REPROGRAPHICS COMPANY, L.L.C., a California limited liability company
(the "COMPANY"), AMERICAN REPROGRAPHICS HOLDINGS, L.L.C., (f/k/a Ford Graphics
Holdings, L.L.C.) a California limited liability company ("HOLDINGS"), the
CREDIT SUPPORT PARTIES listed on the signature pages hereto, the Lenders listed
on the signature pages hereto, GENERAL ELECTRIC CAPITAL CORPORATION, as
Administrative Agent (together with its permitted successors in such capacity,
"ADMINISTRATIVE AGENT") and as Collateral Agent, XXXXXXX XXXXX CREDIT PARTNERS
L.P., as Lead Arranger, Sole Bookrunner, and as Syndication Agent (in such
capacities, "SYNDICATION AGENT"), and is made with reference to that certain
First Lien Credit and Guaranty Agreement, dated as of December 18, 2003 (as
amended through the date hereof, the "CREDIT AGREEMENT"). Capitalized terms used
herein not otherwise defined herein or otherwise amended hereby shall have the
meanings ascribed thereto in the Credit Agreement.
RECITALS:
WHEREAS, the Company has requested that the Lenders agree to make
amendments to certain provisions of the Credit Agreement in connection with the
Company's proposed purchase of Holdings Capital Stock from X. Xxxxxxx Xxxxxx,
III and Lewiston Atlas, Ltd.;
WHEREAS, the Company intends to issue the Xxxxxx Subordinated Seller
Notes in connection with the acquisition of Holdings Capital Stock from X.
Xxxxxxx Xxxxxx, III and Lewiston Atlas, Ltd.;
WHEREAS, the Lenders have agreed to amend certain provisions of the
Credit Agreement, in each case in the manner, and on the terms and conditions,
provided for herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION I. AMENDMENTS TO CREDIT AGREEMENT
Upon satisfaction of the conditions set forth in Section III herein, the
Credit Agreement shall be amended as follows in this Section I:
A. AMENDMENTS TO SECTION 1: DEFINITIONS
Section 1.1 of the Credit Agreement is hereby further amended by adding the
following definitions in proper alphabetical sequence:
"'FIRST AMENDMENT' means that certain First Amendment to First
Lien Credit and Guaranty Agreement dated as of October 11, 2004, among
the Company, Holdings, Administrative Agent, Syndication Agent, and
the financial institutions and the Credit Support Parties listed on
the signature pages thereto."
"'FIRST AMENDMENT EFFECTIVE DATE' means the First Amendment
Effective Date, as defined in the First Amendment."
"'XXXXXX SUBORDINATED SELLER NOTES' means the unsecured
subordinated promissory notes in an aggregate principal amount not to
exceed $4,000,000 issued by Holdings to the sellers in connection with
the acquisition of all the outstanding Holdings Capital Stock from X.
Xxxxxxx Xxxxxx, III and Lewiston Atlas, Ltd., which promissory notes
are expressly subordinated and made junior to the payment and
performance in full of all the Obligations on terms and conditions
acceptable to (i) Syndication Agent and (ii) Administrative Agent,
each in its sole discretion."
B. AMENDMENTS TO SECTION 6: NEGATIVE COVENANTS
(i) Section 6.1 of the Credit Agreement is hereby amended by
deleting the word "and" at the end of clause (o), replacing the "." with ";
and" at the end of clause (p), and by adding the following clause to
Section 6.1:
"(q) Indebtedness owed under the Xxxxxx Subordinated Seller
Notes."
(ii) Section 6.5 of the Credit Agreement is hereby further
amended by deleting the word "and" at the end of clause (f), replacing the
"." with ";" at the end of clause (g), and by adding the following clauses
to Section 6.5:
"(h) Company may make Restricted Junior Payments to Holdings to
the extent required to permit Holdings to make payments of principal
required by the Xxxxxx Subordinated Seller Notes, so long as the
aggregate amount of Restricted Junior Payments made pursuant to this
clause (h) shall not exceed $2,000,000 in any Fiscal Year; and
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(i) Company may make Restricted Junior Payments to Holdings to
the extent required to indemnify Xxxxxxxxxxxxx Xxxxxxxxxxxx and
Kumarakulasingam Xxxxxxxxxxx for guaranty payments required by the
Xxxxxx Subordinated Seller Notes, so long as the aggregate amount of
Restricted Junior Payments made pursuant to this clause (i) shall not
exceed the amount paid by Xxxxxxxxxxxxx Xxxxxxxxxxxx and
Kumarakulasingam Xxxxxxxxxxx pursuant to the Xxxxxx Subordinated
Seller Notes, which in no event shall exceed $2,000,000 in any Fiscal
Year; provided that any such indemnity shall be subordinated to the
Obligations on terms no less favorable to Lenders than those effective
in the Xxxxxx Subordinated Seller Notes."
(iii) Section 6.12 of the Credit Agreement is hereby amended by
deleting the word "and" prior to clause (d), deleting the "." at the end of
clause (d) and adding the following clause to the end of the Section 6.12:
"; and (e) the transaction with Xxxxxxxxxxxxx Xxxxxxxxxxxx and
Kumarakulasingam Xxxxxxxxxxx described in Section 6.5(i)."
(iv) Section 6.14 of the Credit Agreement is hereby amended by
adding the following sentence to the end of Section 6.14:
"Notwithstanding anything to the contrary set forth in this
Section 6.14, Holdings may (i) issue the Xxxxxx Subordinated Seller Notes,
(ii) purchase all of the outstanding Holdings Capital Stock from X. Xxxxxxx
Xxxxxx, III and Lewiston Atlas, Ltd., in connection with the issuance of
the Xxxxxx Subordinated Seller Notes, and (iii) indemnify Xxxxxxxxxxxxx
Xxxxxxxxxxxx and Kumarakulasingam Xxxxxxxxxxx for guaranty payments
required by the Xxxxxx Subordinated Seller Notes."
SECTION II. CONDITIONS PRECEDENT TO EFFECTIVENESS
The amendments set forth in Section I hereof shall be effective on and
as of the date hereof (the "FIRST AMENDMENT EFFECTIVE DATE") upon the
satisfaction, or waiver by the Requisite Lenders, on or after the date hereof,
of the following conditions:
(i) The Company, the Borrowers, the other Credit Parties and the
Requisite Lenders shall have indicated their consent by the execution and
delivery of the signature pages hereof to the Administrative Agent.
(ii) The Administrative Agent shall have received a certificate
from the Company, certifying that as of the First Amendment Effective Date,
the representations and warranties contained in Section III herein and in
the other Credit Documents are true and correct in all material respects on
and as of the First Amendment Effective Date to the same extent as though
made on and as of the First Amendment Effective Date, except to the extent
such representations and warranties specifically relate to an earlier date,
in
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which case such representations and warranties are true and correct in all
material respects on and as of such earlier date.
(iii) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the First Amendment Effective
Date, including, to the extent invoiced, reimbursement or other payment of
all out-of-pocket expenses required to be reimbursed or paid by Borrower
hereunder or any other Credit Document.
(iv) The Administrative Agent shall have received a certificate
from the Company, certifying that as of the First Amendment Effective Date
(after giving effect to the amendments contained herein), no event shall
have occurred and be continuing that would constitute an Event of Default
or a Default.
(v) The Administrative Agent and Lenders shall have received such
other documents and information regarding Credit Parties and the Credit
Agreement as the Administrative Agent or Lenders may have reasonably
requested prior to the date hereof.
SECTION III. REPRESENTATIONS AND WARRANTIES
A. CORPORATE POWER AND AUTHORITY.
Each Credit Party has all requisite corporate power and authority to enter
into this Amendment and to carry out the transactions contemplated by, and
perform its obligations under, this Amendment.
B. AUTHORIZATION OF AGREEMENTS.
The execution and delivery of this Amendment has been duly authorized by
all necessary corporate or partnership (as applicable) action on the part of
each Credit Party.
C. NO CONFLICT.
The execution and delivery by each Credit Party of this Amendment and the
performance by each Credit Party of the Amended Agreement and the other Credit
Documents do not and will not (i) violate (A) any provision of any law, statute,
rule or regulation, or of the certificate or articles of incorporation or
partnership agreement, other constitutive documents or by-laws of Holdings,
Borrower or any Credit Party or (B) any applicable order of any court or any
rule, regulation or order of any Governmental Authority, (ii) be in conflict
with, result in a breach of or constitute (alone or with notice or lapse of time
or both) a default under any Contractual Obligation of the applicable Credit
Party, where any such conflict, violation, breach or default referred to in
clause (i) or (ii) of this Section III.C., individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect, (iii) except as
permitted under the Amended Agreement, result in or require the creation or
imposition of any Lien upon any of the properties or assets of each Credit Party
(other than any Liens created under any of the Credit Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or partners or any approval or consent of any Person under any
Contractual Obligation of each Credit Party, except for such approvals or
consents which will be obtained on or before the First Amendment Effective Date
and except for
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any such approvals or consents the failure of which to obtain will not have a
Material Adverse Effect.
D. BINDING OBLIGATION.
This Amendment has been duly executed and delivered by each Credit Party
and constitutes a legal, valid and binding obligation of each Credit Party
enforceable against each Credit Party in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors' rights generally and
except as enforceability may be limited by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
E. GOVERNMENTAL CONSENTS.
No action, consent or approval of, registration or filing with or any other
action by any Governmental Authority is or will be required in connection with
the execution and delivery by each Credit Party of this Amendment and the
performance by Borrower and Holdings of the Amended Agreement and the other
Credit Documents, except for such actions, consents and approvals the failure to
obtain or make which could not reasonably be expected to result in a Material
Adverse Effect or which have been obtained and are in full force and effect.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT DOCUMENTS.
The representations and warranties contained in the Credit Documents are
and will be true and correct in all material respects on and as of the First
Amendment Effective Date (after giving effect to the amendments and waivers
contained herein) to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case they were true and correct in all material
respects on and as of such earlier date.
G. ABSENCE OF DEFAULT.
No event has occurred and is continuing (after giving effect to the
amendments and waivers contained herein) or will result from the consummation of
the transactions contemplated by this Amendment that would constitute an Event
of Default or a Default.
SECTION IV. ACKNOWLEDGMENT AND CONSENT
Each Domestic Subsidiary and Holdings are referred to herein as a
"CREDIT SUPPORT PARTY" and collectively as the "CREDIT SUPPORT PARTIES", and the
Credit Agreement and the Collateral Documents are collectively referred to
herein as the "CREDIT SUPPORT DOCUMENTS".
Each Credit Support Party hereby acknowledges that it has reviewed the
terms and provisions of the Credit Agreement and this Amendment and consents to
the amendment of the Credit Agreement effected pursuant to this Amendment. Each
Credit Support Party hereby confirms that each Credit Support Document to which
it is a party or otherwise bound and all Collateral encumbered thereby will
continue to guarantee or secure, as the case may be, to the
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fullest extent possible in accordance with and subject to the Credit Support
Documents the payment and performance of all "Obligations" under each of the
Credit Support Documents, as the case may be (in each case as such terms are
defined in the applicable Credit Support Document), including without limitation
the payment and performance of all such "Obligations" under each of the Credit
Support Documents, as the case may be, in respect of the Obligations of the
Company now or hereafter existing under or in respect of the Credit Agreement
and hereby pledges and assigns to the Collateral Agent, and grants to the
Collateral Agent a continuing lien on and security interest in and to all
Collateral as collateral security for the prompt payment and performance in full
when due of the "Obligations" under each of, and in accordance with and subject
to, the Credit Support Documents to which it is a party (whether at stated
maturity, by acceleration or otherwise).
Each Credit Support Party acknowledges and agrees that all of the
Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties contained in the
Credit Agreement, this Amendment and the Credit Support Documents to which it is
a party or otherwise bound are true and correct in all material respects on and
as of the First Amendment Effective Date to the same extent as though made on
and as of the First Amendment Effective Date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date.
Each Credit Support Party acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Credit Support Party (other than the Company) is not required by the terms
of the Credit Agreement or any other Credit Document to consent to the
amendments to the Credit Agreement effected pursuant to this Amendment and (ii)
nothing in the Credit Agreement, this Amendment or any other Credit Document
shall be deemed to require the consent of such Credit Support Party (other than
the Company) to any future amendments to the Credit Agreement.
SECTION V. MISCELLANEOUS
A. BINDING EFFECT.
This Amendment shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders. No Credit Party's rights or
obligations hereunder or any interest therein may be assigned or delegated by
any Credit Party without the prior written consent of all Lenders.
B. SEVERABILITY.
In case any provision in or obligation hereunder shall be invalid, illegal
or unenforceable in any jurisdiction, the validity, legality and enforceability
of the remaining provisions or obligations, or of such provision or obligation
in any other jurisdiction, shall not in any way be affected or impaired thereby.
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C. REFERENCE TO CREDIT AGREEMENT.
On and after the First Amendment Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement, and each reference in the
other Credit Documents to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended by this Amendment.
D. EFFECT ON CREDIT AGREEMENT.
Except as specifically amended by this Amendment, the Credit Agreement and
the other Credit Documents shall remain in full force and effect and are hereby
ratified and confirmed.
E. EXECUTION.
The execution, delivery and performance of this Amendment shall not, except
as expressly provided herein, constitute a waiver of any provision of, or
operate as a waiver of any right, power or remedy of any Agent or Lender under,
the Credit Agreement or any of the other Credit Documents.
F. HEADINGS.
Section headings herein are included herein for convenience of reference
only and shall not constitute a part hereof for any other purpose or be given
any substantive effect.
G. APPLICABLE LAW.
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
H. COUNTERPARTS.
This Amendment may be executed in any number of counterparts, each of which
when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. As set
forth herein, this Amendment shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by the
Administrative Agent and the Syndication Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWER: AMERICAN REPROGRAPHICS COMPANY, L.L.C.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
CREDIT SUPPORT PARTIES: AMERICAN REPROGRAPHICS HOLDINGS, L.L.C.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
ARC ACQUISITION CORPORATION
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
BLUE PRINT SERVICE COMPANY, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
INPRINT CORPORATION
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
RHODE ISLAND BLUEPRINT CO.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
OLYMPIC BLUEPRINT CO., INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
LEET-MELBROOK, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
PENINSULA BLUEPRINT, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
QUALITY REPORGRAPHIC SERVICES, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
MIRROR PLUS TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
E. PAVILION, L.L.C.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
FRANKLIN GRAPHICS CORPORATION
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
ENGINEERING REPRO SYSTEMS, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
WEST SIDE REPROGRAPHICS, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
XXXX BLUE PRINT COMPANY
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
TAMPA REPROGRAPHICS & SUPPLY COMPANY
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
OCB, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
COMMERCIAL GRAPHICS CORPORATION
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
FORD S.F., L.L.C.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
A&E ARCHITECTURAL &
ENGINEERING SUPPLY COMPANY
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
XXXXXXX'X, LTD.
By: Xxxxxxx'x XX, LLC
its General Partner
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Manager
REPROGRAPHICS NORTHWEST, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
WILCO REPROGRAPHICS, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
BPI REPRO, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
XXXXXXX'X XX, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
XXXXXXX'X XX, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
THE PEIR GROUP, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
THE PEIR GROUP INTERNATIONAL, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
LICENSING SERVICES INTERNATIONAL, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
PLANWELL, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title:
AMERICAN REPROGRAPHICS MIDCO, L.L.C.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer
SYNDICATION AGENT: XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /s/ Xxxxxxxxx Xxxxxxx
------------------------------------
Authorized Signatory
ADMINISTRATIVE AGENT: GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
