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EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT (this "Amendment") is entered into as of June 5,
1998, among Xxxxxxx Computer Services, Inc., a Delaware corporation (the
"Company"), the several financial institutions from time to time party to the
Credit Agreement (as defined herein) (collectively, the "Banks"; individually,
a "Bank") and Bank of America National Trust and Savings Association, as agent
for the Banks (the "Administrative Agent") and as Swing Line Bank, Wachovia
Bank, N.A., as documentary agent and the various co-agents identified as such
on the signature pages hereto.
BACKGROUND
WHEREAS, the Company, the Banks and the Administrative Agent have
entered into that certain Credit Agreement dated as of October 31, 1997 (as
the same may be further amended or modified from time to time, the "Credit
Agreement") and the Loan Documents referred to in the Credit Agreement;
WHEREAS, the Company, the Banks and the Administrative Agent have
determined that the Credit Agreement should be amended in certain respects and
to make certain other changes agreed to by the parties.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Credit Agreement.
2. Certain Amendments to Credit Agreement. The Credit Agreement is hereby
amended, effective on the date this Amendment becomes effective in accordance
with Section 4 hereof, as follows:
2.1 The definition of "Subsidiary Guarantee Agreement" set forth in
Section 1.01 of the Credit Agreement is hereby amended by deleting it in its
entirety.
2.2 Section 6.13 of the Credit Agreement is hereby amended by inserting a
period after the phrase "of the capital stock of Graphic Industries" and
deleting the remainder of the sentence.
2.3 Section 6.14 of the Credit Agreement is hereby amended by deleting it
in its entirety.
2.4 Section 7.05(c) of the Credit Agreement is hereby amended by deleting
it in its entirety and inserting the following in lieu thereof:
"(c) Indebtedness of Subsidiaries of the Company in a principal amount
not in excess of $50,000,000 in principal amount outstanding at any time,
provided, however, that
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Indebtedness of Graphic Industries and its Subsidiaries under this clause (c)
may not be in excess of $25,000,000 in principal amount outstanding at any
time; and"
2.5 Section 8.01(k) of the Credit Agreement is hereby amended by deleting
it in its entirety and inserting the following in lieu thereof:
"(k) [Intentionally Omitted]; or"
2.6 Section 10.01(f) of the Credit Agreement is hereby amended by deleting
it in its entirety and inserting the following in lieu thereof:
"(f) [Intentionally Omitted];"
2.7 Exhibit K is hereby amended by deleting it in its entirety.
2.8 The Subsidiary Guarantee Agreement entered into as of December 23,
1997, by Graphic Industries, Inc. in favor of the Administrative Agent (the
"Graphics Guarantee"), is as of the effective date of this Amendment terminated
and of no further force or effect. Each of the Banks hereby authorizes and
directs the Administrative Agent to deliver to Graphic Industries or the
Borrower any instruments, amendment or other documents in order to effect the
foregoing.
3. Conditions to Effectiveness of this Amendment. This Amendment shall
become effective upon the satisfaction of the receipt by the Administrative
Agent of duly executed counterparts of this Amendment from the Company and the
Banks and the receipt by the Administrative Agent of such other documents,
certificates, instruments or opinions as may reasonably be requested by it.
4. Certain Representations and Warranties by the Company. In order to
induce the Banks and the Administrative Agent to enter into this Amendment, the
Company represents and warrants to the Banks and the Administrative Agent that:
4.1 Authority. The Company has the right, power and capacity and has been
duly authorized and empowered by all requisite corporate and shareholder action
to enter into, execute, deliver and perform this Amendment and the Credit
Agreement as amended hereby.
4.2 Validity. This Amendment and the Credit Agreement as amended hereby
have each been duly and validly executed and delivered by the Company and
constitute its legal, valid and binding obligations, enforceable against the
Company in accordance with its respective terms, except as enforcement thereof
may be subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law or otherwise).
4.3 No Conflicts. The Company's execution, delivery and performance of
this Amendment and the Credit Agreement as amended hereby does not and will not
violate its
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Certificates of Incorporation or Bylaws, any law, rule, regulation, order,
writ, judgment, decree or award applicable to the Company or any contractual
provision to which the Company is party or to which the Company or any of its
Subsidiaries are subject.
4.4 Approvals. No authorization or approval or other action by, and no
notice to or filing or registration with, any Governmental Authority or
regulatory body (other than those which have been obtained and are in force and
effect) is required in connection with the Company's execution, delivery and
performance of this Amendment and the Credit Agreement as amended hereby.
4.5 Incorporated Representations and Warranties. All representations and
warranties contained in the Loan Documents are true and correct in all material
respects with the same effect as though such representations and warranties had
been made on and as of the date hereof and the effective date hereof, except as
to any representations or warranties which expressly relate to an earlier date,
in which event, such representations and warranties are true as of such date.
4.6 No Defaults. No Default or Event of Default exists as of the date
hereof or will exist after giving effect to this Amendment.
5. Miscellaneous. The parties hereto hereby further agree as follows:
5.1 Expenses. The Company agrees to pay the Administrative Agent upon
demand for all reasonable expenses, including reasonable attorneys' and legal
assistants' fees (which attorneys and legal assistants may be employees of the
Administrative Agent), incurred by the Administrative Agent in connection with
the preparation, negotiation and execution of this Amendment and any document
required to be furnished therewith.
5.2 Further Assurances. Each of the parties hereto hereby agrees to do
such further acts and things and to execute, deliver and acknowledge such
additional agreements, powers and instruments as any other party hereto may
reasonably require to carry into effect the purposes of this Amendment and the
Credit Agreement as amended hereby.
5.3 Counterparts. This Amendment may be executed in one or more
counterparts, each of which, when executed and delivered, shall be deemed to be
an original and all of which counterparts, taken together, shall constitute but
one and the same document with the same force and effect as if the signatures
of all of the parties were on a single counterpart, and it shall not be
necessary in making proof of this Amendment to produce more than one such
counterpart.
5.4 Headings. Headings used in this Amendment are for convenience of
reference only and shall not affect the construction of this Amendment.
5.5 Integration. This Amendment and the Loan Documents constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof and thereof.
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5.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF ILLINOIS, AND FOR ALL PURPOSES SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF SAID STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
5.7 Binding Effect. This Amendment shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns; provided, however, that the Company may not assign or
transfer its rights, interests or obligations hereunder without the prior
written consent of the Administrative Agent and all of the Banks. Except as
expressly set forth to the contrary herein, this Amendment shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Amendment and their respective successors and permitted
assigns.
5.8 Amendment; Waiver; Reaffirmation of Loan Documents. The parties
hereto agree and acknowledge that nothing contained in this Amendment in any
manner or respect limits or terminates any of the provisions of the Credit
Agreement or the other Loan Documents other than as expressly set forth herein
and further agree and acknowledge that the Credit Agreement and each of the
other Loan Documents remain and continue in full force and effect and are
hereby ratified and reaffirmed in all respects. No delay on the part of any
Bank or the Administrative Agent in exercising any of their respective rights,
remedies, powers and privileges under the Credit Agreement or any of the other
Loan Documents or partial or single exercise thereof, shall constitute a waiver
thereof. None of the terms and conditions of this Amendment may be changed,
waived, modified or varied in any manner, whatsoever, except in accordance with
Section 10.01 of the Credit Agreement.
5.9 Reference to and Effect on the Credit Agreement and the other Loan
Documents. Upon the effectiveness hereof, 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
Loan 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. The Credit Agreement shall
be deemed to be amended wherever and as necessary to reflect the foregoing
amendments.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company, the Administrative Agent and each Bank
have cause this Amendment to be executed and delivered by their duly authorized
officers as of the date first above written.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXXX COMPUTER SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
Title: Vice President and Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: /s/ Xxxxxx Xxxxxx
Title: Vice President
WACHOVIA BANK N.A.
By: /s/ Xxxx X. Xxxxx
Title: Vice President
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxxx X. Xxxxxxx
Title: Vice President
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NATIONSBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
Title: Sr. Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxxx X. Xxxxxxxxx
Title: Associate Underwriter
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxx
Title: Sr. Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxxxxxx X. Xxxxxx
Title: First Vice President
By: /s/ Xxxxx Xxxxx
Title: Head of Corporate Banking Chicago
MELLON BANK, N.A.
By: /s/ Xxxx X. Xxxxx
Title: Assistant Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxx
Title: Vice President
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THE NORTHERN TRUST COMPANY
By: /s/ Jaron Grimin
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Xxxxxx Xxxxxxxx
Title: Deputy General Manager
FLEET NATIONAL BANK
By: /s/ Xxx X. Xxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxxx X. XxXxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxx, Xx.
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN
CHICAGO BRANCH
By: /s/ Xxxxxx Xxxxx
Title: S.V.P./Deputy General Manager
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