Exhibit 10.55
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
this 11th day of April, 2003, 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 "Second Amendment").
Background
The Borrowers, Lenders and Agent are parties to that certain Amended
and Restated Credit Agreement, dated as of June 13, 2002, and the First
Amendment to Credit Agreement dated as of December 23, 2002 (the "First
Amendment"), pursuant to which the Lenders agreed to extend certain credit
facilities to the Borrowers on the terms and conditions 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 Seven Million
($7,000,000) Dollars, subject to certain limitations as otherwise set forth in
the Credit Agreement, as amended by this Second 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 Definition of "Eligible Accounts
Receivable". The definition of "Eligible Accounts Receivable" in the Credit
Agreement is hereby amended and restated in its entirety as follows:
"Eligible Accounts Receivable" means any account of the
Borrowers arising in the ordinary course of business which has not
remained unpaid for more than ninety (90) days from its invoice date.
Eligible Accounts shall not include any account: (i) in connection with
any pre-billing; (ii) any account in connection with which the account
debtor disputes the amount owed to such Borrower; (iii) arising from a
consignment or other arrangement for which goods are returnable if not
sold by the account debtor; (iv) constituting partial xxxxxxxx and
returns that provide that an account debtor need make no payment prior
to full shipment or full performance; any account with respect to all
or part of which a check, promissory note, draft, trade acceptance of
other instrument has been received; (v) of any account debtor that is
an Affiliate of any of the Borrowers; (vi) where the account debtor is
insolvent, whether or not such account debtor has filed for protection
under federal or state insolvency laws; (vii) where the account debtor
is located outside of the continental United States; (viii) which are
subject to offset, deduction or are "contra accounts"; (ix) portion
from any customer and any Affiliate of such customer which exceeds
Seven Hundred Fifty ($750,000) Dollars and which are thirty (30) or
more days past due, unless Agent, in its sole and absolute discretion,
determines such account is an Eligible Account Receivable; (x) to the
extent that such account of the account debtor exceeds ten (10%)
percent of all such Borrower's (together with such Borrower's
Affiliates) other Eligible Accounts Receivable; or (xi) such other
accounts as the Agent in its sole and absolute discretion deem
appropriate.
(b) Amendment and Restatement of Definition of "Revolving Credit
Termination Date". The definition of "Revolving Credit Termination Date" in the
Credit Agreement is hereby amended and restated in its entirety as follows:
"Revolving Credit Termination Date" means January 15, 2004.
(c) 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) Seven Million ($7,000,000) 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)(1)
from the date of the Second Amendment through September 30, 2003, Fifty
(50%) Percent of Borrowers' 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"); or (2) from October 1,
2003 through December 31, 2003, Thirty-Five (35%) Percent of Borrowers'
Over 90-Day Receivables accounts receivable, provided, however that any
Advance against such Over 90-Day Receivables shall not exceed Five
Hundred Thousand ($500,000) Dollars, all of the foregoing determined in
accordance with the last prevailing Borrowing Base Certificate
delivered to Agent 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
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frequently, Borrowers shall submit to the Agent no less frequently than
once a month, a Borrowing Base Certificate.
(d) Amendment and Restatement of Paragraph 7.1.3 of the Credit
Agreement. Paragraph 7.1.3 of the Credit Agreement is hereby amended and
restated in its entirety as follows
7.1.3 Annual Financial Statements. As soon as practicable and
in any event within ninety (90) days after the end of each Fiscal Year:
(i) an audited Consolidated balance sheet of the Borrowers and their
respective Subsidiaries as of the close of such Fiscal Year and audited
Consolidated statements of income, retained earnings and cash flows for
the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding
figures for the preceding Fiscal Year and prepared by an independent
certified public accounting firm acceptable to the Agent in accordance
with GAAP and, if applicable, containing disclosure of the effect on
the financial position or results of operation of any change in the
application of accounting principles and practices during the year, and
accompanied by a report thereon by such certified public accountants
that is not qualified with respect to scope limitations imposed by the
Borrowers or any of their respective Subsidiaries or with respect to
accounting principles followed by the Borrowers or any of their
respective Subsidiaries not in accordance with GAAP (the "Accountant
Report"), provided, however, that Borrowers shall use their best
efforts to ensure that Borrowers obtain a valid, going concern opinion
as part of the Accountant Report; together with (ii) a demonstration of
the calculation of the Borrowers' Cash Flow Leverage Ratio as of the
end of each Fiscal Year.
(e) Addition of Paragraph 7.4.7. The Credit Agreement is hereby amended
by, and the following paragraph is added as, Paragraph 7.4.7 of the Credit
Agreement:
7.4.7 As soon as practicable and in any event within ten (10)
days after the end of each fiscal quarter, a report, in form and
substance satisfactory to Agent, informing Agent as to the status of
Borrowers' efforts to refinance Subordinated Debt.
(f) Amendment and Restatement of Schedule 1 to Credit Agreement.
Schedule 1 of the Credit Agreement is hereby amended and restated as of the date
hereof as follows:
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Commitments
-----------
------------------------------ ---------------------- --------------------- --------------------- ----------------------
LENDER COMMITMENT REVOLVING CREDIT TERM LOAN FACILITY TOTAL COMMITMENT
PERCENTAGE FACILITY
------------------------------ ---------------------- --------------------- --------------------- ----------------------
COMMERCE BANK, NA 60% $4,200,000 $1,338,000 $5,538,000
------------------------------ ---------------------- --------------------- --------------------- ----------------------
FIRSTRUST BANK 40% $2,800,000 $892,000 $3,692,000
------------------------------ ---------------------- --------------------- --------------------- ----------------------
TOTAL 100% $7,000,000 $2,230,000 $9,230,000
------------------------------ ---------------------- --------------------- --------------------- ----------------------
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 Forty
Thousand ($40,000) Dollars, which Amendment Fee is hereby deemed fully earned
and non-refundable, payable on the date hereof and not later than ninety (90)
days after the date hereof in equal installments of Twenty Thousand ($20,000)
Dollars; and (ii) the Agent, all costs and expenses incurred by the Agent in
connection with the documentation of this Second 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
Revolving Credit Loan is in the amount of $5,990,260.33, and in respect of the
Term Loan is in the amount of $365,000 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 Second
Amendment. Each of the Borrowers further hereby 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.
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4. Representations and Warranties. To induce the Agent and Lenders to enter
into this Second 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 date hereof are described on Schedule 6.1.1
of the Credit Agreement;
(b) Authorization of the Second 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 Second
Amendment. This Second 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 Second 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 hereby ratified and confirmed in full as
if republished herein as of the date hereof.
5. Conditions Precedent to the Effectiveness of this Second Amendment. The
obligation of the Lenders to close this Second 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:
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(a) Receipt by Agent of an executed copy of this Second Amendment;
(b) Receipt by each Lender of an executed Second Amended and Restated
Revolving Credit Note in the form attached hereto as Exhibit A (the "Second
Amended Notes");
(c) Receipt by Agent, in form and substance satisfactory to Agent, of a
Second 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 (the "Second
Subordination Amendment");
(d) Payment of the Amendment Fee and all costs and expenses incurred by
the Agent in connection with the documentation of this Second Amendment,
including, but not limited to, all fees and expenses of Agent's counsel incurred
in connection herewith;
(e) Receipt by Agent of 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
Second Amendment, no Default or Event of Default has occurred and is continuing;
and that the Borrowers have satisfied each of the conditions precedent;
(f) Receipt by Agent of 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 Second Amendment,
the Second Amended Notes, the Second Subordination Amendment, 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 Second Amendment, the Second Amended Notes, the Second
Subordination Amendment, 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 Second Amendment, the Loan Documents and such other matters as the Lenders
shall request; and
(h) No Default or Event of Default shall have occurred and be
continuing.
6. Miscellaneous.
(a) Counterparts. This Second 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.
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(b) Headings. Headings and titles to Sections and Paragraphs under this
Second 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 Second Amendment, together with the Credit
Agreement and the First Amendment 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 Second 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, without reference to the conflicts or choice of law principles
thereof.
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IN WITNESS WHEREOF, intending to be legally bound hereby, the parties
hereto have caused this Second Amendment to Amended and Restated Credit
Agreement 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, CFO 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
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EXHIBIT A
SECOND AMENDED NOTES
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