SECOND AMENDMENT TO CREDIT AND GUARANTY AGREEMENT
Exhibit 10.1
Execution Copy
SECOND AMENDMENT TO CREDIT AND GUARANTY AGREEMENT
SECOND AMENDMENT TO CREDIT AND GUARANTY AGREEMENT, dated as of October 5, 2009 (this
“Amendment”) by and among AMERICAN REPROGRAPHICS COMPANY, L.L.C., a California limited liability
company (the “Borrower”), AMERICAN REPROGRAPHICS COMPANY, a Delaware corporation (“Holdings”),
JPMorgan Chase Bank, N.A, as Administrative Agent and Collateral Agent, and the Lenders party
hereto (which Lenders constitute, in the aggregate, the Required Lenders). All capitalized terms
used herein and not otherwise defined herein shall have the meanings given to such terms in the
Credit Agreement (as defined below).
RECITALS
WHEREAS, Holdings, the Borrower, certain Subsidiaries of the Borrower, the Lenders and
JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent are parties to that certain
Credit and Guaranty Agreement dated as of December 6, 2007 (as amended from time to time, the
“Credit Agreement”);
WHEREAS, the parties hereto wish to amend the Credit Agreement and enter into certain
agreements with respect to the Credit Agreement, as provided herein;
WHEREAS, the Lenders party hereto (each a “Consenting Lender”) constitute the Required Lenders
and have agreed to amend the Credit Agreement, on the terms and subject to the conditions set forth
herein, to, among other things, (i) defer to the Maturity Date certain amortization payments in
respect of the Initial Term Loans that would have been due to those Consenting Lenders that have
also agreed to provide Class B Term Loan Commitments (as defined below) as set forth on Schedule 1
hereto (each such Consenting Lender, a “Class B Term Lender”), (ii) amend certain of the financial
covenants, (iii) provide for a ratable reduction of the Revolving Commitments of all Revolving
Lenders in the amount of $25,000,000 and (iv) provide for a $35,000,000 prepayment of the Initial
Term Loans; and
WHEREAS, after giving effect to this Amendment and the transactions contemplated by Section
2.01(b) of the Credit Agreement, the Initial Term Loans and the Class B Term Loans held by the Term
Lenders, in each case on the Second Amendment Effective Date (but without giving effect to the 2009
Optional Prepayment), shall be as set forth on Schedule 1 hereto;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Amendments.
(a) The following definitions are hereby added to Section 1.01 of the Credit Agreement
in the appropriate alphabetical order:
“Class B Term Lender” has the meaning given such term in the Second Amendment.
“Class B Term Loan” means a Term Loan made by a Class B Term Lender to the
Borrower pursuant to Section 2.01(b).
“Class B Term Loan Commitment” means, with respect to each Class B Term Lender,
the commitment of such Lender to make a Class B Term Loan hereunder as set forth on
Schedule 1 to the Second Amendment.
“Conversion Date” has the meaning given such term in Section 2.01(b).
“Creditable Excess Cash” means, as of the last day of any consecutive four
Fiscal Quarter Period, the difference (not to be less than zero) between (i) the
lesser of (x) the aggregate amount of Cash and Cash Equivalents held by the Credit
Parties on such day but only to the extent such amount exceeds $10,000,000 and (y)
$15,000,000 minus (ii) the aggregate principal amount of Revolving Loans
outstanding on such day.
“Deferring Lender Initial Term Loans” means Initial Term Loans held on the
Second Amendment Effective Date by the Deferring Lenders, as set forth on Schedule 3
to the Second Amendment, regardless of whether or not such Loans remain held by any
of the Deferring Lenders at any time after the Second Amendment Effective Date. The
aggregate principal amount of the Deferring Lender Initial Term Loans on the Second
Amendment Effective Date is $92,883,928.60.
“Deferring Lenders” means JPMorgan Chase Bank, N.A., Bank of America, N.A.,
Xxxxx Fargo Bank, N.A. and Wachovia Bank, National Association.
“Initial Term Loan Installment” has the meaning given such term in Section
2.10(a).
“Other Initial Term Loans” means Initial Term Loans other than the Deferring
Lender Initial Term Loans.
“Second Amendment” means the Second Amendment to Credit and Guaranty Agreement,
dated as of October 5, 2009, executed by Holdings, the Borrower and the Lenders
party thereto.
“Second Amendment Effective Date” has the meaning given such term in the Second
Amendment.
“2009 Optional Prepayment” has the meaning given such term in the Second
Amendment.
(b) The definition of “Applicable Rate” in Section 1.01 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
“Applicable Rate” means, for any day, (i) with respect to any ABR Loan or
Eurodollar Loan of any Class, the applicable rate per annum set forth in the Pricing
Schedule under the caption “ABR Spread” or “Eurodollar Spread” with respect to such
Class of Loans and (ii) with respect to the commitment fees payable hereunder, the
applicable rate per annum set forth in the Pricing Schedule under the caption
“Commitment Fee Rate”.
(c) The definition of “Class” in Section 1.01 of the Credit Agreement is hereby amended
by inserting “Class B Term Loans,” immediately following “Initial Term Loans,”.
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(d) The definition of “Fixed Charge Coverage Ratio” in Section 1.01 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
“Fixed Charge Coverage Ratio” means the ratio as of the last day of any Fiscal
Quarter of (i) Consolidated Adjusted EBITDAR for the four Fiscal Quarter period then
ending minus the sum, without duplication, of the amounts for such period of (a)
cash payments made in respect of Consolidated Capital Expenditures and (b) the
provision for current taxes based on income of Holdings and its Subsidiaries and
payable in cash with respect to such period, to (ii) the positive difference between
(x) Consolidated Fixed Charges for such four Fiscal Quarter period minus (y)
Creditable Excess Cash as of the last day of such four Fiscal Quarter Period.
(e) The definition of “Installment” in Section 1.01 of the Credit Agreement is hereby
deleted.
(f) The definition of “Loan” in Section 1.01 of the Credit Agreement is hereby amended
by inserting “a Class B Term Loan,” immediately following “Initial Term Loan,”.
(g) The definition of “Term Loan” in Section 1.01 of the Credit Agreement is hereby
amended by inserting “, a Class B Term Loan” immediately following “Initial Term Loan”.
(h) The definition of “Term Loan Commitment” in Section 1.01 of the Credit Agreement is
hereby amended by inserting “, a Class B Term Loan Commitment” immediately following
“Initial Term Loan Commitment”.
(i) Section 2.01 of the Credit Agreement is amended by inserting the following new
clauses (b), (c) and (d) immediately following subclause (ii) of Section 2.01(a):
(b) Subject to the terms and conditions set forth herein, each Class B Term
Lender agrees to make a Class B Term Loan to the Borrower in a principal amount not
to exceed its Class B Term Loan Commitment. So long as no Default or Event of
Default shall have occurred and be continuing, the Class B Term Loans shall be
borrowed by the Borrower on the second Business Day following the Second Amendment
Effective Date (the “Conversion Date”) and shall be funded by converting an equal
principal amount of the then outstanding Initial Term Loan of each Class B Term
Lender into a Class B Term Loan (up to the aggregate amount of such Class B Term
Lender’s Class B Term Loan Commitment). All Initial Term Loans converted to Class B
Term Loans shall be deemed to have been repaid in full on the Conversion Date (it
being understood and agreed that the Conversion Date shall not occur if a Default or
Event of Default shall have occurred on the second Business Day following the Second
Amendment Effective Date).
(c) On the Conversion Date, the Borrower shall pay to each applicable Lender
all accrued and unpaid interest on the aggregate amount of its Initial Term Loan
deemed repaid pursuant to Section 2.01(b) and all amounts owing under Section 2.18
as a result of such deemed repayment. With respect to the Class B Term Loans to be
borrowed on the Conversion Date, the Borrower shall designate in the relevant
Borrowing Request whether such Class B Term Loans will be maintained as Eurodollar
Loans or ABR Loans and, if any such Borrowing is to be a Eurodollar Borrowing, the
initial Interest Period with respect thereto.
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(d) The Class B Term Loan Commitment of each Class B Term Lender shall be
reduced to zero upon the first to occur of (x) the borrowing of the Class B Term
Loans pursuant to Section 2.01(b) and (y) the second Business Day following the
Second Amendment Effective Date.
(j) Section 2.10 of the Credit Agreement is amended and restated to read in its
entirety as follows:
Section 2.10. Scheduled Repayment Of Term Loans. (a) The principal amounts of the
Initial Term Loans shall be repaid in consecutive quarterly installments in the aggregate
amounts set forth below corresponding to the Deferring Lender Initial Term Loans, on the one
hand, and the Other Initial Term Loans, on the other (in each case as adjusted pursuant to
Section 2.10(b)), (the amounts due on each date set forth in the table below in respect of
Other Initial Term Loans and Deferring Lender Initial Term Loans being referred to,
collectively, as an “Initial Term Loan Installment”) together in each case with accrued and
unpaid interest on the principal amount to be paid to but excluding the date of such
payment, on the last day of each Fiscal Quarter commencing with the Fiscal Quarter ending
December 31, 2009 and on the Maturity Date:
| Deferring Lender | Total | |||||||||||
| Other Initial | Initial Term | Initial Term Loan | ||||||||||
| Fiscal Quarter | Term Loans | Loans | Installment | |||||||||
December 31, 2009 |
$ | 2,450,892.86 | $ | 2,705,357.14 | $ | 5,156,250.00 | ||||||
March 31, 2010 |
$ | 990,259.74 | $ | 1,093,073.59 | $ | 2,083,333.33 | ||||||
June 30, 2010 |
$ | 990,259.74 | $ | 1,093,073.59 | $ | 2,083,333.33 | ||||||
September 30, 2010 |
$ | 990,259.74 | $ | 1,093,073.59 | $ | 2,083,333.33 | ||||||
December 31, 2010 |
$ | 6,535,714.28 | $ | 7,214,285.72 | $ | 13,750,000.00 | ||||||
March 31, 2011 |
$ | 8,169,642.85 | $ | 0.00 | $ | 8,169,642.85 | ||||||
June 30, 2011 |
$ | 8,169,642.85 | $ | 0.00 | $ | 8,169,642.85 | ||||||
September 30, 2011 |
$ | 8,169,642.85 | $ | 0.00 | $ | 8,169,642.85 | ||||||
December 31, 2011 |
$ | 8,169,642.85 | $ | 0.00 | $ | 8,169,642.85 | ||||||
March 31, 2012 |
$ | 13,888,392.85 | $ | 15,330,357.15 | $ | 29,218,750.00 | ||||||
June 30, 2012 |
$ | 13,888,392.85 | $ | 15,330,357.15 | $ | 29,218,750.00 | ||||||
September 30, 2012 |
$ | 13,888,392.85 | $ | 15,330,357.15 | $ | 29,218,750.00 | ||||||
Maturity Date |
$ | 13,888,392.85 | $ | 15,330,357.15 | $ | 29,218,750.00 | ||||||
Total |
$ | 100,189,529.19 | $ | 74,520,292.23 | $ | 174,709,821.42 | ||||||
provided, that if the Conversion Date and the borrowing of the Class B Term Loans does not
occur, the table above shall be replaced with the table set forth in Section 2.10(a) of the
Credit Agreement as in effect immediately prior to the Second Amendment Effective Date.
(b) The Initial Term Loan Installments shall be reduced in connection with any
voluntary or mandatory prepayments of the Initial Term Loans, as the case may be, in
accordance with Sections 2.11, 2.12 and 2.13, as applicable; and the Initial Term
Loans, together with all other amounts owed hereunder with respect thereto, shall,
in any event, be paid in full no later than the Maturity Date.
(c) The principal amounts of the Class B Term Loans shall be repaid in full in
a single installment on the Maturity Date, together with accrued and unpaid interest
thereon to but excluding the Maturity Date.
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(k) The fifth sentence of Section 2.11(b) of the Credit Agreement is amended and
restated to read in its entirety as follows:
“Except as set forth in the Second Amendment with respect to the 2009 Optional
Prepayment, each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing.”
(l) Section 2.13(a) of the Credit Agreement is amended and restated to read in its
entirety as follows:
(a) Application of Voluntary Prepayments by Class of Loans. Any prepayment of
any Loan pursuant to Section 2.11 shall be applied as specified by the Borrower in
the applicable notice of prepayment; provided, in the event the Borrower fails to
specify the Loans to which any such prepayment shall be applied, such prepayment
shall be applied as follows:
first, to prepay outstanding Swingline Loans to the full extent thereof;
second, to prepay outstanding Revolving Loans to the full extent thereof; and
third, to prepay outstanding Term Loans of each Class on a pro rata basis, to
the full extent thereof.
Any prepayment of any Term Loan pursuant to Section 2.11 shall be further
applied first, to reduce the scheduled installments due in respect of the
applicable Class of Term Loans in each of the next succeeding four Fiscal Quarters
in direct order of maturity and then on a pro rata basis to reduce the
remaining scheduled installments due in respect of the applicable Class of Term
Loans on a pro rata basis. It is understood and agreed that the foregoing shall be
inapplicable to the 2009 Optional Prepayment, which shall be applied to reduce the
Initial Term Loan Installments due on March 31, 2010, June 30, 2010 and September
30, 2010 on a pro rata basis.
(m) Section 2.13(b) of the Credit Agreement is amended and restated to read in its
entirety as follows:
(b) Application of Mandatory Prepayments by Class of Loans. Any amount
required to be paid pursuant to Sections 2.12(a) through 2.12(e) and 2.12(g) shall
be applied as follows:
first, to prepay outstanding Term Loans of each Class on a pro rata basis, such
prepayments to be further applied on a pro rata basis to reduce the remaining
scheduled Initial Term Loan Installments;
second, to prepay the Swingline Loans to the full extent thereof and to
permanently reduce the Revolving Commitments by the amount of such prepayment;
third, to prepay the Revolving Loans to the full extent thereof and to further
permanently reduce the Revolving Commitments by the amount of such prepayment;
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fourth, to prepay outstanding reimbursement obligations with respect to Letters
of Credit and to further permanently reduce the Revolving Loan Commitments by the
amount of such prepayment;
fifth, to cash collateralize Letters of Credit (as described in Section
2.13(c)) and to further permanently reduce the Revolving Loan Commitments by the
amount of such cash collateralization; and
sixth, to further permanently reduce the Revolving Commitments to the full
extent thereof.
(n) Section 2.15(a) of the Credit Agreement is amended by inserting “with respect to
the applicable Class” immediately following “Applicable Rate”.
(o) Section 2.15(b) of the Credit Agreement is amended by inserting “with respect to
the applicable Class” immediately following “Applicable Rate”.
(p) Section 2.15(c) of the Credit Agreement is amended by inserting “of the applicable
Class” immediately following “ABR Loans”.
(q) Section 5.01(h) of the Credit Agreement is hereby amended and restated to read in
its entirety as follows:
(h) Financial Plan. As soon as practicable and in any event no later than
thirty (30) days after the beginning of each Fiscal Year, a consolidated plan and
financial forecast for such Fiscal Year and each Fiscal Year (or portion thereof)
through the final maturity date of the Loans (a “Financial Plan”), including (i) a
forecasted consolidated balance sheet and forecasted consolidated statements of
income and cash flows of Holdings and its Subsidiaries for each such Fiscal Year,
together with pro forma Compliance Certificates for each such Fiscal Year and an
explanation of the assumptions on which such forecasts are based, (ii) forecasted
consolidated statements of income and cash flows of Holdings and its Subsidiaries
for each fiscal quarter of such Fiscal Year, (iii) forecasts demonstrating projected
compliance with the requirements of Section 6.07 through September 30, 2012 and (iv)
forecasts demonstrating adequate liquidity through September 30, 2012 without giving
effect to any additional debt or equity offerings not reflected in the Projections,
together, in each case, with an explanation of the assumptions on which such
forecasts are based all in form and substance reasonably satisfactory to the
Administrative Agent;
(r) Section 6.01(j) of the Credit Agreement is amended by replacing “2.50:1:00” with
“the correlative ratio indicated for such Fiscal Quarter provided in Section 6.07(d)
herein.”.
(s) Section 6.01(o) of the Credit Agreement is amended by replacing “$10,000,000” with
“$15,000,000”.
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(t) Section 6.07(a) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
(a) Interest Coverage Ratio. Holdings shall not permit the Interest Coverage
Ratio as of the last day of any Fiscal Quarter set forth below to be less than the
correlative ratio indicated below for such Fiscal Quarter:
| Interest | ||||
| Period | Coverage Ratio | |||
September 30, 2009 |
2.50:1.00 | |||
December 31, 2009 |
2.00:1.00 | |||
March 31, 2010 |
1.75:1.00 | |||
June 30, 2010 |
1.75:1.00 | |||
September 30, 2010 |
1.75:1.00 | |||
December 31, 2010 |
2.00:1.00 | |||
March 31, 2011 |
2.00:1.00 | |||
June 30, 2011 |
2.00:1.00 | |||
September 30, 2011 |
2.00:1.00 | |||
December 31, 2011 |
2.50:1.00 | |||
March 31, 2012 and thereafter |
3.00:1.00 | |||
(u) Section 6.07(b) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
(b) Fixed Charge Coverage Ratio. Holdings shall not permit the Fixed Charge
Coverage Ratio as of the last day of any Fiscal Quarter set forth below to be less
than the correlative ratio indicated below for such Fiscal Quarter:
| Fixed Charge | ||||
| Fiscal Quarter Ending | Coverage Ratio | |||
September 30, 2009 |
1.10:1.00 | |||
December 31, 2009 and thereafter |
1.00:1.00 | |||
(v) Section 6.07(c) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
(c) Leverage Ratio. Holdings shall not permit the Leverage Ratio as of the
last day of any Fiscal Quarter set forth below to be greater than the correlative
ratio indicated below for such Fiscal Quarter:
| Fiscal Quarter Ending | Leverage Ratio | |||
September 30, 2009 |
3.00:1.00 | |||
December 31, 2009 |
3.25:1.00 | |||
March 31, 2010 |
3.50:1.00 | |||
June 30, 2010 |
3.85:1.00 | |||
September 30, 2010 |
3.85:1.00 | |||
December 31, 2010 |
3.25:1.00 | |||
March 31, 2011 and thereafter |
3.00:1.00 | |||
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(w) Section 6.07(d) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
(d) Senior Secured Leverage Ratio. Holdings shall not permit the Senior
Secured Leverage Ratio as of the last day of any Fiscal Quarter set forth below to
be greater than the correlative ratio indicated below for such Fiscal Quarter:
| Senior Secured | ||||
| Period | Leverage Ratio | |||
September 30, 2009 |
3.00:1.00 | |||
December 31, 2009 |
3.00:1.00 | |||
March 31, 2010 |
3.25:1.00 | |||
June 30, 2010 |
3.65:1.00 | |||
September 30, 2010 |
3.65:1.00 | |||
December 31, 2010 |
3.00:1.00 | |||
March 31, 2011 |
3.00:1.00 | |||
June 30, 2011 and thereafter |
2.50:1.00 | |||
(x) Section 9.04 of the Credit Agreement is amended by (i) replacing “Applicable
Percentage” with “pro rata share” and (ii) inserting the following new sentence at the end
thereof:
“For purposes of this Section 9.04. a Lender’s “pro rata share” shall be
determined based on its share of the aggregate principal amount of all Loans then
outstanding and all unused Commitments then in effect.”
(y) Section 10.03(c) of the Credit Agreement is amended by (i) replacing “Applicable
Percentage” with “pro rata share” and (ii) inserting the following new sentence at the end
thereof:
“For purposes of this Section 10.03(c). a Lender’s “pro rata share” shall be
determined based on its share of the aggregate principal amount of all Loans then
outstanding and all unused Commitments then in effect.”
(z) Section 10.04(b)(ii) of the Credit Agreement is amended by inserting the following
new sentence immediately following subclause (E) thereof:
“Any Term Lender wishing to assign any portion of its Initial Term Loans shall
specify in the Assignment and Assumption whether the Initial Term Loans to be
assigned are Deferring Lender Initial Term Loans or Other Initial Term Loans.”
Section 2. Commitment Reduction. On the Second Amendment Effective Date, the Total
Revolving Commitments shall be automatically and permanently reduced to $49,479,000, such reduction
to be applied ratably to the Revolving Commitment of each Revolving Lender in accordance with its
Applicable Percentage. Schedule 2 to this Amendment sets forth the Revolving Commitment of each
Revolving Lender after giving effect to the commitment reduction described in the preceding
sentence. On the Second Amendment Effective Date, the Borrower shall prepay Revolving Loans to the
extent necessary (if at all) to reflect the reduction in the Total Revolving Commitments. No other
advance notice of this commitment reduction shall be required.
Section 3. 2009 Optional Prepayment. On the Business Day following the Second
Amendment Effective Date, the Borrower shall prepay Initial Term Loans in an amount not less than
$35,000,000 (the “2009 Optional Prepayment”). The 2009 Optional Prepayment (x) shall be made
ratably to the holders of the Initial Term Loans on such date and (y) shall be applied to reduce
the Initial Term Loan Installments due on March 31, 2010, June 30, 2010 and September 30, 2010 on a
pro rata basis.
Section 4. Pricing Schedule. Appendix A to the Credit Agreement is hereby amended and
restated to read in its entirety as set forth on Schedule 4 hereto.
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Section 5. Miscellaneous.
(a) This Amendment shall constitute a Credit Document.
(b) The parties hereto agree that a failure by the Borrower to comply with its
obligations under Section 3 of this Amendment shall constitute an immediate Event of Default
for all purposes of the Credit Documents.
(c) The Credit Agreement, and the obligations of the Credit Parties thereunder and
under the other Credit Documents, are hereby ratified and confirmed and shall remain in full
force and effect according to their terms as amended by this Amendment.
(d) Each of Holdings and the Borrower represents and warrants that (i) the
representations and warranties of the Credit Parties set forth in Article 4 of the Credit
Agreement and in the other Credit Documents will be true and correct in all material
respects on and as of the Second Amendment Effective Date to the same extent as though made
on and as of the Second Amendment Effective Date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such representations
and warranties are true and correct in all material respects on and as of such earlier date
and (ii) no Default will have occurred and be continuing on the Second Amendment Effective
Date.
(e) This Amendment may be executed in any number of counterparts, each of which when so
executed and delivered shall be an original, but all of which shall constitute one and the
same instrument. Delivery of an executed counterpart of this Amendment by telecopy shall be
effective as an original and shall constitute a representation that an executed original
shall be delivered.
(f) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
Section 6. Conditions Precedent to Effectiveness. This Amendment shall become
effective on the date on which each of the following conditions shall have been satisfied (the date
on which such conditions have been satisfied, the “Second Amendment Effective Date”):
(a) The Administrative Agent shall have received counterparts of this Amendment duly
executed by Holdings, the Borrower and the Required Lenders;
(b) The Administrative Agent shall have received (i) copies of resolutions of the board
of directors or similar governing body of each of Holdings and the Borrower approving and
authorizing the execution, delivery and performance of this Amendment and the Credit
Documents as amended thereby, certified as of the Second Amendment Effective Date by its
secretary or assistant secretary as being in full force and effect as of such date without
modification or amendment and (ii) the written legal opinions of Xxxxxx Xxxxxxxx LLP and
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, addressed to the Administrative Agent, the Collateral
Agent and the Lenders and dated as of the Second Amendment Effective Date, which opinions
shall be in form and substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent;
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(c) Each of X.X. Xxxxxx Securities Inc. and Xxxxx Fargo Securities, LLC (the “Amendment
Arrangers”) shall have received all fees, expenses and other amounts that have become due
and payable to it, in its capacity as arranger of the Amendment, on or prior to the Second
Amendment Effective Date pursuant to the engagement letter dated as of September 22, 2009.
(d) The Administrative Agent shall have received, for the account of each Consenting
Lender, an amendment consent fee equal to 0.50% of the sum of each such Consenting Lender’s
Revolving Commitment and outstanding Term Loans (with the amount of such Revolving
Commitment and outstanding Term Loans being determined on a pro forma basis giving effect to
(i) the reduction of the Total Revolving Commitments described in Section 2 of this
Amendment and (ii) the 2009 Optional Prepayment);
(e) In addition to the amendment consent fee set forth in the preceding clause (c), the
Administrative Agent shall have received, for the account of each Consenting Lender that has
a Class B Term Loan Commitment, an amortization deferral fee equal to 1.00% of such
Consenting Lender’s Class B Term Loan Commitment; and
(f) The Administrative Agent shall have received all fees and expenses payable by the
Borrower pursuant to Section 10.03(a) of the Credit Agreement (including reasonable fees,
charges and disbursements of counsel to the Administrative Agent) for which invoices have
been submitted prior to the Second Amendment Effective Date.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to
be duly executed and delivered as of the date first above written.
| AMERICAN REPROGRAPHICS COMPANY, a Delaware corporation, as Holdings |
||||
| By: | /s/ Kumarakulasingam Xxxxxxxxxxx | |||
| Name: | Kumarakulasingam Xxxxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
| AMERICAN REPROGRAPHICS COMPANY, L.L.C., a California limited liability company, as the Borrower |
||||
| By: | /s/ Kumarakulasingam Xxxxxxxxxxx | |||
| Name: | Kumarakulasingam Xxxxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
[Second Amendment to Credit and Guaranty Agreement]
| JPMORGAN CHASE BANK, N.A., as Administrative Agent |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
[Second Amendment to Credit and Guaranty Agreement]
LENDERS:
| BANK OF AMERICA, N.A. as a Revolving and Term Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President | |||
[Second Amendment to Credit and Guaranty Agreement]
LENDERS:
| CITIBANK, N.A. as a Revolving and Term Lender |
||||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Senior Vice President | |||
[Second Amendment to Credit and Guaranty Agreement]
LENDERS:
| X.X. XXXXXX XXXXX BANK, N.A. as a Revolving and Term Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
[Second Amendment to Credit and Guaranty Agreement]
LENDERS:
| KBC BANK, N.V. as a Revolving and Term Lender |
||||
| By: | /s/ Xxxxxxxxx X. XxXxxxxx | |||
| Name: | Xxxxxxxxx X. XxXxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Managing Director | |||
[Second Amendment to Credit and Guaranty Agreement]
LENDERS:
| MANUFACTURERS BANK as a Revolving and Term Lender |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Vice President | |||
[Second Amendment to Credit and Guaranty Agreement]
LENDERS:
| THE NORTHERN TRUST COMPANY as a Revolving and Term Lender |
||||
| By: | /s/ Xxxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxxx X. Xxxx | |||
| Title: | Officer | |||
[Second Amendment to Credit and Guaranty Agreement]
LENDERS:
| SCOTIABANC INC., as a Term Lender |
||||
| By: | /s/ X.X. Xxxx | |||
| Name: | X.X. Xxxx | |||
| Title: | Managing Director | |||
[Second Amendment to Credit and Guaranty Agreement]
LENDERS:
| STATE BANK OF INDIA as a Revolving and Term Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President & Head (Credit) | |||
[Second Amendment to Credit and Guaranty Agreement]
LENDERS:
| SUMITOMO MITSUI BANKING CORPORATION, as a Revolving and Term Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Executive Officer | |||
[Second Amendment to Credit and Guaranty Agreement]
LENDERS:
| THE BANK OF NOVA SCOTIA as a Revolving Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Director | |||
[Second Amendment to Credit and Guaranty Agreement]
LENDERS:
| UNION BANK, N.A., formerly known as Union Bank of California as a Revolving and Term Lender |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
[Second Amendment to Credit and Guaranty Agreement]
LENDERS:
| WACHOVIA BANK, NATIONAL ASSOCIATION as a Revolving and Term Lender |
||||
| By: | /s/ Tray Xxxxx | |||
| Name: | Tray Xxxxx | |||
| Title: | Vice President | |||
[Second Amendment to Credit and Guaranty Agreement]
LENDERS:
| XXXXX FARGO BANK, N.A. as a Revolving and Term Lender |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
[Second Amendment to Credit and Guaranty Agreement]
Schedule 1
Initial Term Loans and Class B Term Loan Commitments
Immediately After Giving Effect to the Second Amendment
(before giving effect to the 2009 Optional Prepayment of Initial Term Loans)
Immediately After Giving Effect to the Second Amendment
(before giving effect to the 2009 Optional Prepayment of Initial Term Loans)
| Class B | ||||||||
| Initial Term | Term Loan | |||||||
| Term Lender | Loans | Commitment1 | ||||||
JPMorgan Chase Bank, N.A. |
$ | 24,600,446.45 | $ | 9,553,571.43 | ||||
Bank of America, N.A. |
25,290,178.58 | 9,821,428.57 | ||||||
Citibank, N.A. |
10,533,482.15 | |||||||
Guaranty Bank |
14,044,642.85 | |||||||
KBC Bank, N.V. |
14,044,642.85 | |||||||
Manufacturers Bank |
7,022,321.41 | |||||||
National
City Commercial Capital Co. LLC |
4,468,750.00 | |||||||
Scotiabanc Inc. |
17,555,803.59 | |||||||
State Bank of India |
10,533,482.15 | |||||||
Sumitomo Mitsui Banking Corporation |
21,066,964.26 | |||||||
Union Bank of California, N.A. |
7,022,321.41 | |||||||
The Northern Trust Company |
10,533,482.15 | |||||||
Wachovia Bank, National Association |
17,703,125.00 | 6,875,000.00 | ||||||
Xxxxx Fargo Bank, N.A. |
25,290,178.58 | 9,821,428.57 | ||||||
Total |
$ | 209,709,821.42 | $ | 36,071,428.58 | ||||
| 1 | Automatically upon the occurrence of the Second
Amendment Effective Date and in accordance with Sections 2.01(b) and 2.01(d) of
the Credit Agreement, each Term Lender with a Class B Term Loan Commitment
(each a “Class B Term Lender”) shall be deemed to have made a Class B Term Loan
to the Borrower in the amount of its Class B Term Loan Commitment, and the
Class B Term Loan Commitment of each Class B Term Lender shall thereafter be
reduced to zero. |
[Second Amendment to Credit and Guaranty Agreement]
Schedule 2
Revolving Commitments After Giving Effect to the Second Amendment
| Revolving Lender | Revolving Commitment | |||
JPMorgan Chase Bank, N.A. |
$ | 7,775,271.43 | ||
Bank of America, N.A. |
7,068,428.57 | |||
Citibank, N.A. |
2,120,528.57 | |||
Guaranty Bank |
2,827,371.43 | |||
KBC Bank, N.V. |
2,827,371.43 | |||
Manufacturers Bank |
1,413,685.72 | |||
Scotiabanc Inc. |
3,534,214.28 | |||
State Bank of India |
2,120,528.57 | |||
Sumitomo Mitsui Banking Corporation |
4,241,057.15 | |||
Union Bank of California, N.A. |
2,120,528.57 | |||
The Northern Trust Company |
1,413,685.72 | |||
Wachovia Bank, National Association |
4,947,900.00 | |||
Xxxxx Fargo Bank, N.A. |
7,068,428.57 | |||
Total |
$ | 49,479,000.00 | ||
[Second Amendment to Credit and Guaranty Agreement]
Schedule 3
Deferring Lender Initial Term Loans
| Deferring Lender | ||||
| Deferring Lender | Initial Term Loans | |||
JPMorgan Chase Bank, N.A. |
$ | 24,600,446.45 | ||
Bank of America, N.A. |
25,290,178.58 | |||
Xxxxx Fargo Bank, N.A. |
25,290,178.58 | |||
Wachovia Bank, National Association |
17,703,125.00 | |||
Total |
$ | 92,883,928.60 | ||
[Second Amendment to Credit and Guaranty Agreement]
Schedule 4
APPENDIX A TO THE
CREDIT AND GUARANTY AGREEMENT
CREDIT AND GUARANTY AGREEMENT
PRICING SCHEDULE
“Applicable Rate” means, for any day, for purposes of calculating interest on Loans and
commitment fees on the Unused Revolving Commitments, the rate per annum set forth under the
relevant column heading below in the table corresponding to the applicable Class of Loans based
upon the Leverage Ratio as of the relevant date of determination:
Applicable Rate with Respect to
Initial Term Loans, Revolving Loans and Unused Revolving Commitments
Initial Term Loans, Revolving Loans and Unused Revolving Commitments
| ABR | Eurodollar | Commitment | ||||||||||
| Leverage Ratio | Spread | Spread | Fee Rate | |||||||||
Category 1 Less than or equal to 2.00 to 1.00 |
2.25 | % | 3.25 | % | 0.30 | % | ||||||
Category 2 Greater than 2.00 to 1.00 but less than or equal to 2.50 to 1.00 |
2.50 | % | 3.50 | % | 0.375 | % | ||||||
Category 3 Greater than 2.50 to 1.00 |
2.75 | % | 3.75 | % | 0.50 | % | ||||||
Applicable Rate with Respect to
Class B Term Loans
Class B Term Loans
| ABR | Eurodollar | |||||||
| Leverage Ratio | Spread | Spread | ||||||
Category 1 Less than or equal to 2.00 to 1.00 |
3.25 | % | 4.25 | % | ||||
Category 2 Greater than 2.00 to 1.00 but less than or equal to 2.50 to 1.00 |
3.50 | % | 4.50 | % | ||||
Category 3 Greater than 2.50 to 1.00 |
3.75 | % | 4.75 | % | ||||
Each change in the Applicable Rate resulting from a change in the Leverage Ratio shall be
effective with respect to Unused Revolving Commitments and all Loans and Letters of Credit
outstanding on or after the date of delivery to the Administrative Agent of the financial
statements and certificates required by Section 5.01(a) or 5.01(b) and Section 5.01(c),
respectively, indicating such change until the date immediately preceding the next date of delivery
of such financial statements and certificates indicating another such change. In addition, at any
time during which Holdings has failed to deliver the
financial statements and certificates required by Section 5.01(a) or 5.01(b) and Section
5.01(c), respectively, the Leverage Ratio shall be deemed to be in Category 3 for purposes of
determining the Applicable Rate.
[Second Amendment to Credit and Guaranty Agreement]
