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EXHIBIT 10.8
SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of February 11, 1999, is by and among Genicom Corporation
(the "Borrower"), the subsidiaries of the Borrower identified on the signature
pages hereto (the "Guarantors"), the several lenders identified on the signature
pages hereto (each a "Lender" and, collectively, the "Lenders") and NationsBank,
N.A., as agent for the Lenders (in such capacity, the "Agent").
WITNESSETH
WHEREAS, the Borrower, the Guarantors, the Lenders and the Agent entered
into that certain Amended and Restated Credit Agreement dated as of September 5,
1997, as amended by that First Amendment to Amended and Restated Credit
Agreement dated as of October 31, 1997, as amended by that Second Amendment to
Amended and Restated Credit Agreement dated as of March 12, 1998, as amended by
that letter agreement dated May 5, 1998, as amended by that Fourth Amendment to
Amended and Restated Credit Agreement and Waiver dated as of July 2, 1998, and
as amended by that Fifth Amendment to Amended and Restated Credit Agreement
dated as of October 30, 1998 (as so amended, the "Existing Credit Agreement").
WHEREAS, the Borrower, the Guarantors and the Agent entered into that
certain Amended and Restated Pledge Agreement dated as of September 5, 1997 (the
"Pledge Agreement").
WHEREAS, the parties have agreed to amend the Existing Credit Agreement
and the Pledge Agreement as set forth herein.
NOW, THEREFORE, in consideration of the agreements hereinafter set forth,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
PART I
DEFINITIONS
1. Certain Definitions. Unless otherwise defined herein or the
context otherwise requires, the following terms used in this Amendment,
including its preamble and recitals, have the following meanings:
"Amended Credit Agreement" means the Existing Credit Agreement as amended
hereby.
"Amendment No. 6 Effective Date" is defined in Part IV.
2. Other Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Amendment, including its preamble and
recitals, have the meanings provided in the Amended Credit Agreement.
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PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 6
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II. Except as so amended, the Existing Credit Agreement and all
other Credit Documents shall continue in full force and effect.
1. Amendment to Section 1.1. The following definition appearing in
Section 1.1 of the Existing Credit Agreement is amended in its entirety to read
as follows:
"Borrowing Base" means (i) as of any day prior to April 5, 1999,
the sum of (a) 85% of Eligible Receivables and (b) 55% of Eligible Inventory, in
each case as set forth in the most recent Borrowing Base Report delivered to the
Agent and the Lenders in accordance with the terms of Section 7.1(e); provided,
however, that the amount determined pursuant to clause (b) above shall not
exceed 50% of the total Borrowing Base, and (ii) as of any day on or after April
5, 1999, the Original Borrowing Base.
2. Amendment to Section 7.10. Section 7.10 of the Existing Credit
Agreement is hereby amended in its entirety to read as follows:
7.10 Audits/Inspections.
Upon reasonable notice and during normal business hours, the
Borrower will, and will cause each of its Subsidiaries to, permit
representatives appointed by the Agent, including, without limitation,
independent accountants, consultants, agents, attorneys, and appraisers
to visit and inspect its property, including its books and records, its
accounts receivable and inventory, its facilities and its other business
assets, and to make photocopies or photographs thereof and to write down
and record any information such representative obtains and shall permit
the Agent and its representatives to investigate and verify the accuracy
of information provided to the Lenders and to discuss all such matters
and such other matters as the Agent and its representatives shall
request, including without limitation, its operations, projections and
business plans, with the officers, employees, representatives, auditors,
and consultants of such Person; provided, however, that any costs or
expenses incurred by or at the request of the Agent or any of the Lenders
in connection with any of the foregoing shall not be for the Borrower's
account. Each of the Credit Parties agrees that the Agent, and its
representatives, may conduct an annual audit of the Collateral, at the
expense of the Borrower.
PART III
AMENDMENTS TO PLEDGE AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 6
Effective Date, the Pledge Agreement is hereby amended in accordance with this
Part III. Except as so amended, the Pledge Agreement and all other Credit
Documents shall continue in full force and effect.
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1. Amendment to Section 2(a). Section 2(a) of the Pledge Agreement is
hereby amended in its entirety to read as follows:
(a) Pledged Shares. (i) All of the issued and outstanding
shares of capital stock of the Domestic Subsidiaries of such Pledgor set
forth on Schedule 1 attached hereto and (ii) sixty-five percent (65%) of
the issued and outstanding shares of capital stock of the Foreign
Subsidiaries of such Pledgor set forth on Schedule 1 attached hereto (all
certificates representing such shares and all options and other rights,
contractual or otherwise, with respect thereto, collectively the "Pledged
Shares"). Nothing in this Section 2, Section 4(b) or any other provision
of this Pledge Agreement shall require that Pledgor pledge, and in no
event shall Pledgor be deemed to have pledged, more than 65% of the total
combined voting power of all classes of capital stock of any Foreign
Subsidiary.
2. Amendment to Section 5(e). The last sentence in Section 5(e) of
the Pledge Agreement is hereby amended in its entirety to read as follows:
Except as set forth in this Section 5(e), no action is necessary to
perfect or otherwise protect such security interest; provided however,
with respect to the Pledged Shares issued by Genicom Canada Inc., a
financing statement must be submitted for registration pursuant to the
Personal Property Security Act (Ontario) disclosing Genicom Corporation
as the debtor and the Agent as the secured party.
3. Amendment to Schedule 1. All references in the Pledge Agreement to
"Schedule 1" are hereby deemed to refer to the "Schedule 1" attached hereto as
Annex A.
PART IV
CONDITIONS TO EFFECTIVENESS
1. Amendment No. 6 Effective Date. This Amendment shall be and become
effective as of the date hereof (the "Amendment No. 6 Effective Date") when all
of the conditions set forth in this Part IV shall have been satisfied, and
thereafter this Amendment shall be known, and may be referred to, as "Amendment
No. 6."
2. Execution of Counterparts of Amendment. The Agent shall have
received counterparts (or other evidence of execution, including telephonic
message, satisfactory to the Agent) of this Amendment, which collectively shall
have been duly executed on behalf of each of the Borrower, the Guarantors and
the Required Lenders.
3. Officer's Certificate. The Agent shall have received a certificate
executed by the chief financial officer of the Borrower as of the Amendment No.
6 Effective Date stating that, immediately after giving effect to this Amendment
and the transactions contemplated hereby, (i) each of the Credit Parties is
Solvent, (ii) no Default or Event of Default exists and (iii) the
representations and warranties set forth in the Existing Credit Agreement are
true and correct in all material respects.
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4. Delivery of Pledged Stock. The Agent shall have received original
stock certificates of the Pledged Shares (as defined in the Pledge Agreement, as
amended hereby) of Genicom Canada Inc., along with stock powers executed in
blank.
5. Material Adverse Change. Except as otherwise previously disclosed
in writing to the Lenders, no material adverse change shall have occurred since
December 29, 1996 in the condition (financial or otherwise), business or
management of the Borrower or of the Borrower and its Subsidiaries taken as a
whole.
6. Fees and Expenses. All out-of-pocket fees and expenses of Agent or
any Lender in connection with the Credit Documents, including this Amendment,
including legal and other professional fees and expenses incurred on or prior to
the date of this Amendment, including, without limitation, the fees and expenses
of Xxxxxxxx Xxxxxxxx & Xxxxxx P.C, shall have been paid.
7. Other Items. The Agent shall have received such other documents,
agreements or information which may be reasonably requested by the Agent.
PART V
CONDITIONS SUBSEQUENT
As conditions subsequent to the effectiveness of this Amendment, the
Borrower will deliver, or cause to be delivered, on or before March 1, 1999 the
following items and if such items are not delivered to the Agent on or before
such date, then Section 1 of Part II of this Amendment will be null and void and
of no force and effect whatsoever:
(a) Legal Opinion. An opinion with respect to the Genicom
Canada Inc. and the pledge of the shares addressed to Agent and the
Lenders, of Canadian legal counsel to Borrower, such opinion to be
satisfactory to Agent and the Lenders; and
(b) PPSA Filings. Applicable Canadian and provincial personal
property filings evidencing the security interest of the Agent, for the
benefit of itself and the Lenders, in the stock certificates of Genicom
Canada Inc.
PART VI
MISCELLANEOUS
1. Representations and Warranties. Borrower hereby represents and
warrants to the Agent and the Lenders that, after giving effect to this
Amendment, (a) no Default or Event of Default exists under the Credit Agreement
or any of the other Credit Documents which has not been waived and (b) the
representations and warranties set forth in Section 6 of the Existing Credit
Agreement are, subject to the limitations set forth therein, true and correct in
all material respects as of the date hereof (except for those which expressly
relate to an earlier date).
2. Releases. In consideration of Lenders' agreements herein and
certain other good and valuable consideration, the Borrower and each Guarantor
hereby expressly acknowledge and agree
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that none of them has any setoffs, counterclaims, adjustments, recoupments,
defenses, claims or actions of any character, whether contingent,
non-contingent, liquidated, unliquidated, fixed, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured, known or unknown, against
any Lender or the Agent or any grounds or cause for reduction, modification or
subordination of the obligations of Borrower or any Guarantor under the Credit
Documents or any liens or security interests of any Lender or the Agent in each
case which arose on or prior to the date hereof. To the extent Borrower or any
Guarantor may possess any such setoffs, counterclaims, adjustments, recoupments,
claims, actions, grounds or causes, each of the Borrower and Guarantors hereby
waives, and hereby releases each Lender and Agent from, any and all of such
setoffs, counterclaims, adjustments, recoupments, claims, actions, grounds and
causes, such waiver and release being with full knowledge and understanding of
the circumstances and effects of such waiver and release and after having
consulted counsel with respect thereto.
3. Cross-References. References in this Amendment to any Part are,
unless otherwise specified, to such Part of this Amendment.
4. Instrument Pursuant to Existing Credit Agreement. This Amendment
is a Credit Document executed pursuant to the Existing Credit Agreement and
shall (unless otherwise expressly indicated therein) be construed, administered
and applied in accordance with the terms and provisions of the Existing Credit
Agreement.
5. References in Other Credit Documents. At such time as this
Amendment No. 6 shall become effective pursuant to the terms of Part IV, all
references in the Credit Documents to the "Credit Agreement" shall be deemed to
refer to the Credit Agreement as amended by this Amendment No. 6.
6. Counterparts. This Amendment may be executed by the parties hereto
in several counterparts, each of which shall be deemed to be an original and all
of which shall constitute together but one and the same agreement.
7. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE COMMONWEALTH OF VIRGINIA
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
8. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF the parties hereto have caused this Amendment to be
duly executed on the date first above written.
BORROWER:
GENICOM CORPORATION
By \s\ Xxxxx X. Xxxx
Title: Senior Vice President
GUARANTORS:
GENICOM INTERNATIONAL HOLDINGS
CORPORATION
By \s\ Xxxxx X. Xxxx
Title: President
GENICOM INTERNATIONAL SALES
CORPORATION
By \s\ Xxxxx X. Xxxx
Title: President
RASTEK CORPORATION
By \s\ Xxxxx X. Xxxx
Title: President and Treasurer
ENTERPRISING SERVICE SOLUTIONS
CORPORATION
By \s\ Xxxxx X. Xxxx
Title: Vice President
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PRINTER SYSTEMS CORPORATION
By \s\ Xxxxx X. Xxxx
Title: Vice President
THE PRINTER CONNECTION, INC.
By \s\ Xxxxx X. Xxxx
Title: Vice President
PRINTER SYSTEMS INTERNATIONAL, LTD.
By \s\ Xxxxx X. Xxxx
Title: Vice President
LENDERS:
NATIONSBANK, N.A. (formerly NationsBank of
Texas, N.A.), individually as a Leader and in its
capacity as Agent
By \s\ Xxx X. Xxxxxxx
Title: Senior Vice President
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC. (as successor in interest to
CREDITANSTALT CORPORATE FINANCE, INC.)
By \s\ Xxxx Xxxxxxx
Title: Vice President
By \s\ Xxxxxx Xxxxxxx
Title: Vice President
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DEEPROCK & COMPANY
By: Xxxxx Xxxxx Management, as Investment
Advisor
By \s\ Xxxxx X. Page
Title: Vice President
CRESTAR BANK
By \s\ X.X. Xxxxxxxx
Title: Senior Vice President
THE XXXXX NATIONAL BANK OF
WASHINGTON, D.C.
By \s\ Xxxxxx Xxxxxxxx
Title: Executive Vice President
FLOATING RATE PORTFOLIO
By: Invesco Senior Secured Management, Inc., as
attorney-in-fact
By \s\ Xxxx X. XxXxxxxx
Title: Authorized Signatory
KZH III LLC
By \s\ Xxxxxxxx Xxxxxx
Title: Authorized Agent
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TORONTO DOMINION (TEXAS), INC.
By
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Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By \s\ Xxxxx X. Page
Title: Vice President
CERES FINANCE LTD.
By \s\ Xxxx X. Xxxxxxxxx
Title: Director
AERIES FINANCE LTD.
By \s\ Ian Xxxxx Xxxxxx
Title: Director
BANK OF SCOTLAND
By \s\ Xxxxx Xxxx Tat
Title: Senior Vice President
NATIONAL CITY BANK OF KENTUCKY
By \s\ Xxxxxx X. Xxxxx
Title: Senior Vice President
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ANNEX A
SCHEDULE 1 TO PLEDGE AGREEMENT
[See Attached]
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Schedule 1
to Pledge Agreement
NAME OF PLEDGOR: PRINTER SYSTEMS CORPORATION
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Name of Domestic Subsidiary Number of Shares Certificate Number
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The Printer Connection, Inc. 10 2
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Printer Systems
International, Ltd. 2,500 1
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NAME OF PLEDGOR: GENICOM CORPORATION
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Name of Domestic Subsidiary Number of Shares Certificate Number
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Genicom International
Holdings Corporation 5,000 1
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Genicom International Sales
Corporation 2,500 1
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Rastek Corporation 1,000 2
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Enterprising Service
Solutions Corporation 100 1
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9,900,000 40
Printer Systems Corporation 6,250 (preferred) 2
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Name of Foreign Subsidiary Number of Shares Certificate Number
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6,502 C-1
Genicom Canada Inc. 6,061,387( preferred) P-3
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