EXHIBIT 10.84
AGREEMENT AND RELEASE
This Agreement and Release (the "Agreement"), dated as of July 19, 2003, is
made and entered into between ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇, ▇▇. (the "Chairman") and
Workflow Management, Inc., a Delaware corporation (the "Company") (collectively,
the "Parties"). The Parties acknowledge that the terms and conditions of this
Agreement have been voluntarily agreed to and that such terms are intended to be
final and binding.
WHEREAS, the Chairman is a director of the Company and Chairman of the
Board of the Company;
WHEREAS, the Parties entered into an agreement dated as of January 6, 2003
governing Chairman's service as Chairman of the Board of the Company (the
"January 2003 Agreement") and the Parties represent that the January 2003
Agreement constitutes the only agreement between Chairman and the Company; and
WHEREAS, the Parties intend this Agreement to supercede the January 2003
Agreement and all rights and obligations of the Parties thereunder, except as
set forth herein.
NOW THEREFORE, in consideration of the foregoing premises and the mutual
agreements, covenants and promises contained herein, the Parties acknowledge and
agree as follows:
1. Termination of Employment; Resignation as Chairman and Director.
Chairman agrees to resign, and hereby submits his resignation, effective on July
21, 2003 (the "Resignation Date"), from all of his positions as an officer and
director of the Company and of any subsidiaries or affiliates of the Company,
including as Chairman of the Board of the Company. As of the Resignation Date,
Chairman shall cease to be an employee, officer or director of the Company.
2. No Severance or Other Payments. Chairman hereby releases and
discharges the Company, effective on the Resignation Date, from any obligation
to pay severance or any other amounts (including accrued and unpaid amounts)
under the January 2003 Agreement or any agreement or understanding between
Chairman and the Company.
3. No Benefits. Chairman understands and agrees that beginning on and
after the Resignation Date, he shall not be entitled to any benefits,
perquisites or other compensation from the Company, including but not limited
to, salary, bonus, vacation pay, insurance coverage, office stipend or payment
of travel or other expenses, or benefits under the Director Health Benefit
Program, except as may be required by law, in which case Chairman shall pay for
all applicable premiums and other costs.
4. Settlement Payment to Company; Effectiveness. In consideration for the
Company's agreements contained herein, Chairman agrees to pay to the Company an
amount equal to four hundred thousand dollars ($400,000) in immediately
available funds (the "Settlement Payment"), to be wired to the Company's account
as set forth below, and received by the Company before 12:00 noon, eastern time
on the Resignation Date. If the Settlement Payment is not received by the
Company before 12:00 noon, eastern time on the Resignation
Date, this Agreement shall be of no force or effect, as if never executed, and
neither Party shall be bound by any of the provisions hereof.
Company: Workflow Management, Inc.
Bank: Bank of America, Norfolk, VA
ABA Number: ▇▇▇▇▇▇▇▇▇
Account Name: Concentration Account
Account Number: 004122851256
5. Representations of Chairman. Chairman hereby represents and warrants
to the Company that:
(a) he has not filed any complaints, charges or claims or initiated any
action against or involving the Company with any governmental or
quasi-governmental authority of any nature (including any agency, department,
board, commission, court, tribunal or arbitrator); and
(b) he has not breached any provision of Sections 6, 7, 8 or 9 of the
January 2003 Agreement on or before the Resignation Date.
Chairman acknowledges that the Company is entering into this Agreement in
reliance on the representations of Chairman contained in this Agreement.
6. Representations of the Company. The Company hereby represents and
warrants to Chairman that Company has not filed any complaints, charges or
claims or initiated any action against or involving the Company with any
governmental or quasi-governmental authority of any nature (including any
agency, department, board, commission, court, tribunal or arbitrator). The
Company acknowledges that Chairman is entering into this Agreement in reliance
on the representations of the Company contained in this Agreement.
7. Releases and Waivers of the Company. Except with regard to obligations
created by, arising out of or described in this Agreement, effective on the
Resignation Date, the Company agrees to, and hereby, releases, discharges and
covenants not to ▇▇▇ Chairman for any claims, debts, demands, accounts,
judgments, rights, causes of action, claims for equitable relief, damages,
costs, charges, complaints, obligations, promises, agreements, controversies,
suits, expenses, compensation, responsibility and liability of every kind and
character whatever (including attorneys' fees and costs), whether in law or
equity, known or unknown, asserted or unasserted, suspected or unsuspected,
which it may now have against the Chairman.
8. Releases and Waivers of Chairman. Except with regard to obligations
created by, arising out of or described in this Agreement, effective on the
Resignation Date, Chairman agrees to, and hereby, releases, discharges and
covenants not to ▇▇▇ the Company for any claims, debts, demands, accounts,
judgments, rights, causes of action, claims for equitable relief, damages,
costs, charges, complaints, obligations, promises, agreements, controversies,
suits, expenses, compensation, responsibility and liability of every kind and
character whatever (including attorneys' fees and costs), whether in law or
equity, known or unknown, asserted or unasserted, suspected or unsuspected,
which he may now have against the Company, including any claims relating to the
public disclosure of this Agreement and related circumstances. This release
includes a release of any rights or claims Chairman may have under Title VII of
the Civil Rights Act of 1964; the Americans with Disabilities Act; and claims
pursuant to any other federal, state or local law regarding discrimination based
on age, race,
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sex, religion, national origin, marital status or disability, or any other
unlawful basis, claims for alleged violation of any other local, state or
federal law, regulation, ordinance, public policy or common law duty having any
bearing whatsoever upon the terms and conditions of, and/or the cessation of
Chairman's employment with the Company. Chairman understands that this release
also includes a release by Chairman of claims for breach of express or implied
contract, wrongful discharge, constructive discharge, breach of an implied
covenant of good faith and fair dealing, negligent or intentional infliction of
emotional distress, and any claim under the Employee Retirement Income Security
Act of 1974. Chairman also explicitly waives any right or option he may have to
enter into any agreement with the Company pursuant to Section 10 of the January
2003 Agreement.
9. Breach. If Chairman files any action against the Company (or any of
its affiliates or any of their directors, officers, employees, agents or
representatives) based on a claim that has been released under this Agreement,
Chairman agrees to pay for all costs incurred by the Company and its directors,
officers, employees, agents or representatives, including reasonable attorneys'
fees, in defending the claim. If the Company files any action against Chairman
based on a claim that has been released under this Agreement, the Company agrees
to pay for all costs incurred by Chairman, including reasonable attorneys' fees,
in defending the claim.
10. January 2003 Agreement. Chairman shall continue to be bound by the
provisions of Section 7 (regarding Confidential Information), Section 8
(regarding Inventions), and Section 9 (regarding Return of Company Property) of
the January 2003 Agreement, which are hereby incorporated by reference as if set
forth fully herein; provided that Chairman agrees to comply with the provisions
of Section 9 on or before the Resignation Date (including, but not limited to,
the return to the Company of a Company-leased Jaguar, laptop, home computer,
home fax machine, cell phone, and corporate credit cards). As of the Resignation
Date, the Parties agree that, except as otherwise explicitly set forth herein,
this Agreement shall supersede and terminate all benefits, rights and
obligations under the January 2003 Agreement.
11. Arbitration. The Parties agree that any dispute regarding any aspect
of this Agreement or any act that allegedly has or would violate any provision
of this Agreement will be submitted to arbitration, which shall be conducted in
the city where the Company is located in accordance with the commercial
arbitration rules of the American Arbitration Association. The Company shall
bear the direct expense of any arbitration proceedings, and each of the Company
and the Chairman shall bear its own counsel fees and expenses. The Chairman
shall not be entitled to any indemnification from the Company in connection with
any such proceedings or any decision of the arbitrators or any payments relating
to such proceedings.
12. Confidentiality. The Parties promise to keep the terms of this
Agreement confidential except as may be required by law. Chairman agrees not to
(i) reveal, disclose or cause to be revealed or disclosed anything with respect
to the Company that is injurious or harmful to any of its interests or the
interests of its current or former employees, officers or directors, (ii)
contact or communicate with current or former employees, officers or directors
of the Company regarding Company work-related matters, or (iii) disparage the
Company in any respect.
13. Miscellaneous.
13.01 Entire Agreement; Enforcement. The Parties acknowledge and
agree that this Agreement constitutes the complete agreement between them on the
subject matter hereof and that no oral modification of this Agreement is
permissible. The Parties further
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acknowledge and agree that this Agreement and the terms contained herein
supersede the January 2003 Agreement and all previous contracts and agreements
between the Parties on the subject matter contained herein, except as explicitly
set forth herein. Nothing in this Agreement shall in any way be construed to
limit either Party's right to enforce this Agreement.
13.02 Voluntary Agreement. Chairman acknowledges and agrees that he
freely and voluntarily entered into this Agreement, that he has been encouraged
to consult an attorney before signing this Agreement, that he had an opportunity
to review this Agreement with an attorney of choice, and has had sufficient time
to do so. Chairman further acknowledges and agrees that he fully understands the
terms of this Agreement. The Parties understand and agree that all terms of this
Agreement are contractual and are not a mere recital, and represent and warrant
that they are competent to covenant and agree as herein provided.
13.03 Waiver of Review Period; Right of Revocation. Chairman
understands and acknowledges that he has the right to review and consider this
Agreement for twenty one days before signing it and that by signing this
Agreement before expiration of twenty one days, Chairman is waiving this right
freely and voluntarily. Chairman also understands and acknowledges that he has
the right to revoke this Agreement for a period of seven days following the
signing of this Agreement. To revoke this Agreement, Chairman must send written
notice to the Company as set forth below within seven days of signing it.
13.04 Amendment; Waiver. This Agreement may not be amended, modified,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by all of the Parties hereto. No provision of this Agreement
shall be waived except upon the execution and delivery of a written instrument
executed by the party to be charged with the waiver. No waiver of any of the
provisions of this Agreement shall be deemed to or shall constitute a waiver of
any other provision hereof. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof.
13.05 Notices. All notices, requests, demands and other
communications required or permitted shall be made in writing by hand-delivery,
registered first-class mail, telecopier or air courier guaranteeing overnight
delivery:
(a) If to the Company, to:
Workflow Management, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to the Chairman, to:
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇, ▇▇.
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
All such notices, requests, demands and other communications shall be deemed to
have been duly given: at the time delivered by hand, if personally delivered;
five business days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
4
13.06 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the Parties hereto and their
respective heirs, executors, administrators, legal representatives, successors
and assigns; provided, however, that neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by Chairman without
the prior written consent of the Company.
13.07 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable, and this Agreement shall be
deemed reformed on terms as substantially similar to the terms hereof as are
enforceable.
13.08 Headings. The headings of the sections of this Agreement are
inserted for convenience only and shall not constitute a part hereof or affect
in any way the meaning or interpretation of this Agreement.
13.09 Expenses. Each party shall pay all costs and expenses incurred
by it or on its behalf in connection with this Agreement and the transactions
contemplated hereby.
13.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to its conflict of law rules.
13.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have caused the Agreement to be duly
executed as of the date first written above.
WORKFLOW MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
CHAIRMAN:
/s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇, ▇▇.
5
EXHIBIT 10.85
FIRST AMENDMENT AND WAIVER TO
-----------------------------
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
--------------------------------------------
THIS FIRST AMENDMENT AND WAIVER TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (hereinafter, this "Amendment") made as of this 1/st/ day of August,
2003 by and among:
WORKFLOW MANAGEMENT, INC. ("Workflow" or the "Borrower"), a Delaware
corporation and DATA BUSINESS FORMS LIMITED ("DBF"), a corporation
organized and existing under the laws of Ontario;
FLEET NATIONAL BANK, as administrative agent for itself and the other
Lenders hereto (the "Agent");
BANK ONE, N.A., as syndication agent, and BANK OF AMERICA, COMERICA
BANK and UNION BANK OF CALIFORNIA, N.A., as co-agents for the Lenders; and
FLEET NATIONAL BANK, BANK ONE, N.A., BANK OF AMERICA, COMERICA BANK,
UNION BANK OF CALIFORNIA, N.A., NATIONAL CITY BANK, LASALLE BANK NATIONAL
ASSOCIATION, and CHEVY CHASE BANK, F.S.B. (together with such other lending
institutions from time to time party hereto, the "Lenders").
Background
----------
Reference is hereby made to the Second Amended and Restated Credit
Agreement, dated as of January 15, 2003 (as heretofore amended and in effect on
the date hereof, the "Credit Agreement") by and among the Agent, the Lenders,
Workflow and DBF. Capitalized terms used herein without definition shall have
the meanings assigned to such terms in the Credit Agreement.
Certain Events of Default (collectively, the "Specified Defaults") have
occurred under the terms of the Credit Agreement as a result of (i) Workflow's
having exceeded the Capital Expenditure Amount for the period ending April 30,
2003 in violation of Section 8.05 of the Credit Agreement, (ii) Workflow's
failure as of April 30, 2003 to comply with the Senior Leverage Ratio,
Consolidated Interest Coverage Ratio, Minimum Cumulative Consolidated EBITDA,
and Fixed Charge Ratio covenants, set forth in Sections 8.09, 8.10, 8.14 and
8.15 of the Credit Agreement, (iii) the breach of the provisions of the Credit
Agreement prior to the execution of this Amendment arising as a result of the
amount of Restructuring Costs incurred by Workflow exceeding the maximum amounts
set forth in the definition of Restructuring Costs in Section 10 of the Credit
Agreement, and (iv) Workflow's failure from time to time prior to the execution
of this Amendment to provide the rolling cash flow forecasts required under
Section 7.01(i) of the Credit Agreement on a timely basis. The Borrower has
requested that the Agent and the Lenders waive each of the Specified Defaults
and amend certain provisions of the Credit Agreement, and the Agent and the
Lenders have agreed to do so, but only upon the terms and conditions set forth
herein. Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, DBF, the Guarantors,
the Agent and the Lenders agree as follows:
1. Amendments to Credit Agreement. Subject to the satisfaction of the
conditions set forth in Paragraph 4, below, from and after August 1, 2003 (the
"First Amendment Date"), the Credit Agreement is hereby amended as follows:
(a) The date "December 31, 2003" contained in Section 1.06(e) of the
Credit Agreement is hereby deleted, and the date "May 1, 2004" is inserted
in its place.
(b) The following section is hereby inserted into the Credit
Agreement as Section 3.01(a)(ii):
"(ii) Workflow agrees to pay to the Agent for the pro rata
account of each of the Lenders a maintenance fee (the
"Maintenance Fee") on January 31, 2004, March 31, 2004 and on
July 31, 2004, each in an amount equal to the Applicable
Maintenance Fee Percentage times the sum of (A) the Total
Revolving Commitment (or if the Revolving Commitments have been
terminated, then the aggregate outstanding balance of the
Revolving Loans) on that date and (B) the aggregate outstanding
balance of the Term Loans on that date. Each of the Maintenance
Fees shall be fully earned as of the date due. The Applicable
Maintenance Fee Percentage shall mean the following percentage
for the Maintenance Fees due on the following dates:
Due Date: Percentage:
-------- ----------
1/31/04 0.5%
3/31/04 1.0%
7/31/04 1.0%"
(c) Section 3.01(e) of the Credit Agreement is hereby deleted in its
entirety, and the following is inserted in its place:
"(e)(i) On the Effective Date, the Borrower shall pay to the
Agent, for distribution to each Lender (based on its Dollar
Percentage), an amendment and restructuring fee in the sum of
$1,762,302.20.
(ii) On or before the First Amendment Date, the Borrower shall
pay to the Agent, for distribution to each Lender (on a pro rata
basis) an amendment fee (the "Amendment Fee") in an amount of
0.25% of the sum of (i) the Total Revolving Commitment as of the
First Amendment Date, and (ii) aggregate amount of Term Loans
outstanding as of the First Amendment Date. The Amendment Fee
shall be fully earned and non-refundable as of the First
Amendment Date."
(d) The date "December 31, 2003" contained in Section 3.03(a)(ii) of
the Credit Agreement is hereby deleted, and the date "May 1, 2004" is
inserted in its place.
(e) Section 3.03(i) of the Credit Agreement is hereby deleted in its
entirety, and the following inserted in its place:
"(i) On the date that Workflow or any of its Subsidiaries
makes any Earn Out Payment in cash, the Obligations shall be
prepaid by an amount equal to the amount of the Earn Out Payment
actually made (whether in conjunction with an Asset Sale or
otherwise) multiplied by 1.25. The amount so prepaid shall be
applied toward the Obligations in the manner set forth in Section
4.05(a)(vii) or 4.05(b) hereof, as applicable. After consummation
of the Specified Subsidiaries Asset Sale, provided that (x) no
Default or Event of Default has occurred, or will result
therefrom, (y) immediately after giving effect to each such
payment the Borrower has Liquidity of not less than Minimum
Liquidity, and (z) after giving effect to each such payment, on a
pro forma basis for the thirteen weeks period thereafter, the
Borrower has average Liquidity of not less than Minimum
Liquidity, then, the requirement of the Borrower to make the 1.25
times payment set forth above shall be waived, but only with
respect to the Earn Out Payments as to which the Agent has agreed
in writing."
(f) The date "December 31, 2003" contained in Section 4.02(d) of the
Credit Agreement is hereby deleted, and the date "May 1, 2004" is inserted
in its place.
(g) Section 4.05(a)(i)(A) of the Credit Agreement is hereby deleted
in its entirety, and the following inserted in its place:
"(A) Any Net Cash Proceeds received from any Asset Sale of the
Specified Subsidiaries shall be applied as follows:
FIRST, An amount equal to $1,000,000.00 to the principal
installments of the Term A Loans in order of maturity.
SECOND, An amount equal to (x) the assets so sold and
included in the Borrowing Base immediately prior to such
Asset Sale at their reported value in the most recent
Borrowing Base Certificate, multiplied by (y) the then
applicable Advance Rate for each of such assets, shall be
applied, first, in reduction of the Swingline Loans then
outstanding, second, in reduction of any Revolving Loan
then outstanding, and third, to cash collateralize the
Letters of Credit Outstandings. Any amounts so prepaid
pursuant to this clause SECOND may, subject to the terms
of this Agreement, be reborrowed.
THIRD, To the principal installments of the Term A Loans
in order of maturity until the Term A Loans have been
repaid in full.
FOURTH, To the principal of the Term B Loans until the
Term B Loans have been repaid in full.
FIFTH, To reduce the Aggregate Revolving Credit Exposure
and to permanently reduce the Total Revolving
Commitments, with all payments applied first, in
reduction of the Swingline Loans then outstanding,
second,
-3-
in reduction of any Revolving Loan then outstanding, and
third, to cash collateralize the Letters of Credit
Outstandings.
SIXTH, To all other Obligations, in such order and manner
as the Agent may reasonably determine."
(h) Section 7.01(a) of the Credit Agreement is hereby deleted in its
entirety, and the following is inserted in its place:
"(a) Annual Financial Statements. On or before August
15, 2003 for the Borrower's fiscal year ending April 30,
2003, and within 90 days after the close of each fiscal
year of Workflow thereafter, (i) the consolidated balance
sheets of each of Workflow and its Subsidiaries (both
with and without DBF and its Subsidiaries) and DBF and
its Subsidiaries, in each case as at the end of such
fiscal year and the related consolidated statements of
income and stockholders' equity and of cash flows for
such fiscal year and setting forth comparative figures
for the preceding fiscal year and comparable budgeted
figures for such fiscal year and certified by the chief
financial officer or another Authorized Financial Officer
of Workflow or DBF, as appropriate, that such statements
fairly present the consolidated financial condition of
Workflow and its Subsidiaries (both with and without DBF
and its Subsidiaries) and DBF and its Subsidiaries, as
the case may be, as of the dates indicated and the
results of their operations and changes in their cash
flows for the periods indicated and examined by
independent certified public accountants of recognized
national standing as shall be acceptable to the Agent,
whose opinion shall not be qualified as to the scope of
audit or as to the status of Workflow and its
Subsidiaries or DBF and its Subsidiaries, each as a going
concern, together with a certificate of such accounting
firm stating that in the course of its regular audit of
the business of each such Person and its Subsidiaries,
which audit was conducted in accordance with generally
accepted auditing standards, no Default or Event of
Default which has occurred and is continuing has come to
their attention or, if such a Default or Event of Default
has come to their attention a statement as to the nature
thereof (it being understood that a single auditor's
opinion and certificate addressing the items set forth
above with respect to Workflow, DBF, and their
Subsidiaries on a consolidated basis shall be
sufficient), and (ii) management's discussion and
analysis of the material operational and financial
developments during such fiscal year."
(i) Sections 7.01(i) and 7.01(j) of the Credit Agreement are hereby
deleted in their entirety, and the following inserted in their place:
"(i) Rolling Cash Flows. Not later than five (5) Business Days
after the end of each calendar week, rolling 13-week cash flow
forecasts for (i) the U.S. Credit Parties, (ii) the Canadian
Credit Parties, and (iii) the Credit Parties on a consolidated
basis, projecting the estimated cash receipts and disbursements
of the various parties, with a comparison of actual to projected
cash flows for the previous week and an explanation of any
material variances between actual and projected items and
otherwise in form and substance reasonably satisfactory to the
Agent and the Lenders.
-4-
(j) Borrowing Base Certificates. Not later than five (5)
Business Days after the end of each calendar week, a certificate
in the form of Exhibit B (a "Borrowing Base Certificate") showing
the Borrowing Base as of the close of business on the last day of
the immediately preceding week (with the exception of inventory,
which shall be shown as of the close of business on the last day
of the immediately preceding month), each such Certificate to be
certified as complete and correct by an Authorized Financial
Officer."
(j) The following section is hereby inserted into the Credit
Agreement as Section 7.01(l):
"Account Payable Agings. Not later than five (5) Business Days
after the end of each calendar week, updated accounts payable
agings, showing the accounts payable by division of Workflow and
its Subsidiaries as of the close of business on the last day of
the immediately preceding week, which report may be faxed or
electronically transmitted to the Agent or its designated
representative."
(k) The following section is hereby inserted into the Credit
Agreement as Section 7.01(m):
"Borrowing Base Calculation. Concurrently with the payment of any
amounts due under Section 3.03(b) or 3.03(c) as a result of an
Asset Sale or Recovery Event, the Borrower shall provide the
Agent with a calculation of effect of such Asset Sale or Recovery
Event upon the Borrowing Base and the proposed allocation of the
prepayment amongst the Loans pursuant to Section 4.05, which
calculation shall be made as of the last available Borrowing Base
Certificate."
(l) The word "quarterly" contained in the last line of Section
7.02(b) is hereby deleted and the words "bi-monthly" are inserted in its
place.
(m) Section 7.13 of the Credit Agreement is hereby deleted in its
entirety, and the following inserted in its place:
"7.13 Earn Out Payments. Workflow will not pay any Earn Out
Payments unless and until the consummation of the Specified
Subsidiaries Asset Sale, and then only if (i) immediately after
giving effect to each such payment the Borrower has Liquidity of
not less than Minimum Liquidity, (ii) after giving effect to each
such payment, on a pro forma basis for the thirteen weeks period
thereafter, the Borrower has average Liquidity of not less than
Minimum Liquidity, (iii) to the extent that the Person receiving
such Earn Out Payment is listed in Schedule 7.13(a) hereto, then
the non-competition agreements described in Schedule 7.13(a)
hereto are then in force and effect with respect to such Person,
and (iv) no Default or Event of Default then exists or would
arise therefrom. At the time of making any Earn Out Payment, the
Borrower shall provide the Agent with evidence reasonably
acceptable to the Agent that provisos (i), (ii), (iii) and (iv),
above have been satisfied. Notwithstanding the above, in lieu of
making any Earn Out Payment the Borrower may at any time issue to
Persons entitled to Earn Out Payments: (a) capital stock of the
Borrower and/or options or rights to acquire, whether directly or
indirectly or by exercise of any convertible feature, capital
stock of the Borrower, (b) subordinated indebtedness, and/or (c)
some combination of (a) and (b), provided
-5-
that any such issuances by the Borrower must comply with the
proviso to clause (a) of Section 8.17 and with clause (b) of
Section 8.17. The Borrower shall provide the Agent with copies of
all relevant documentation executed in connection with such
issuances and deferrals."
(n) Section 7.19 of the Credit Agreement is hereby deleted in its
entirety, and the following inserted in its place:
"7.19 Sharing of Work Product and Information. The Borrower
shall permit the Agent and the Lenders and their respective
representatives and advisors to communicate directly with
Palisades Associates, Inc. and ▇▇▇▇▇▇▇▇▇ & Company, Inc. (the
"Borrower's Advisors") and authorizes each of the Borrower's
Advisors to disclose to the Agent and the Lenders and their
respective representatives and advisors any and all financial and
other information with respect to the business, financial
condition and prospects and other affairs of the Borrower. The
Borrower shall, as and when the same become available, send the
Agent and the Lenders copies of all written analyses and reports
and other written work product and information produced in final
form by the Borrower's Advisors and, upon request of the Agent
and the Lenders, copies of all supporting documentation generated
in producing same, to the extent not prohibited by
confidentiality agreements between either of the Borrower and any
third party. Further, the Borrower shall (a) promptly notify, and
hereby authorize the Borrower's Advisors to promptly notify, and
discuss with the Agent and its representatives and advisors any
proposed sale, equity and/or capital transactions being
considered by the Borrower and/or the Borrower's Advisors and (b)
shall promptly, but in no event later than three (3) business
days after receipt by the Borrower or any of its advisors,
provide the Agent with copies of all expressions of interest,
offers, letters of intent, sales agreements, and other agreements
regarding or relating to the proposed sale or recapitalization of
the Borrower and its Subsidiaries and all material correspondence
relating to any of the foregoing. Notwithstanding the foregoing,
neither the Borrower nor the Borrower's Advisors shall be
required to deliver or disclose to the Agent or the Lenders any
materials, information or internal communications related to the
Borrower's strategy for negotiating with the Agent or the
Lenders, or any materials or information subject to
attorney-client privilege. Information delivered to Agent or the
Lenders pursuant to this paragraph shall be subject to the
confidentiality provisions of Section 12.15."
(o) Section 7.20 of the Credit Agreement is hereby deleted in its
entirety, and the following inserted in its place:
"7.20 Sale or Recapitalization of Workflow and its Subsidiaries
(a) On or before August 8, 2003, the Borrower shall have
issued and distributed to a substantial number of appropriate
parties an information memorandum regarding the proposed sale or
recapitalization of Workflow and its subsidiaries as an entirety.
(b) On or before August 31, 2003, the Borrower shall have
obtained expressions of interest for such a sale or
recapitalization of Workflow and its subsidiaries.
-6-
(c) The Borrower shall, and shall cause its agents, including
the Borrower's Advisors, to discuss with the Agent and the
Lenders the status of its efforts to repay the Obligations, any
offers or proposals which have been received and all material
developments with respect thereto, at such intervals as the Agent
and the Lenders may reasonably request. "
(p) Section 7.21 of the Credit Agreement is hereby deleted in its
entirety, and the following is inserted in its place:
"7.21 Special Committee. Until the full and final payment of
the Obligations, Workflow shall continue to engage the Borrowers'
Advisors and shall maintain a Special Committee of its Board of
Directors which shall supervise and work with the Borrowers'
Advisors in developing recommendations to Workflow's Board of
Directors regarding various strategic alternatives to be pursued
by the Borrower and its Subsidiaries. Representatives of the
Special Committee shall update the Agent and the Lenders and/or
their consultants telephonically on a bi-weekly basis with
respect to the status of the strategic alternatives and regarding
such other matters as the Agent and the Lenders and/or their
consultants may reasonably request."
(q) The following section is hereby inserted into the Credit
Agreement as Section 8.04(j):
"(j) Indebtedness evidenced by promissory notes in the form
attached hereto as Schedule 8.04(j), or in such other form as may
be acceptable to the Agent, relating to deferred Earn Out
Payments."
(r) Section 8.09 of the Credit Agreement is hereby deleted in its
entirety, and the following inserted in its place:
"8.09 Senior Leverage Ratio. The Borrower will not permit, as
at the last day of fiscal quarter set forth in the table below,
the Senior Leverage Ratio of Workflow and its Subsidiaries (other
than Specified Subsidiaries), for the applicable Test Period, to
be greater than the amount set forth opposite such period:
------------------------------------------------------------
Test Period Senior Leverage Ratio
------------------------------------------------------------
January 31, 2003 4.9:1.0
------------------------------------------------------------
April 30, 2003 4.7:1.0
------------------------------------------------------------
July 31, 2003 4.8:1.0
------------------------------------------------------------
October 31, 2003 4.8:1.0
------------------------------------------------------------
January 31, 2004 4.6:1.0
------------------------------------------------------------
April 30, 2004 4.4:1.0
------------------------------------------------------------
July 31, 2004 2.7:1.0
------------------------------------------------------------
-7-
(s) Section 8.10 of the Credit Agreement is hereby deleted in its
entirety, and the following inserted in its place:
"8.10 Consolidated Interest Coverage Ratio. (a) The Borrower
will not permit the Consolidated Interest Coverage Ratio of
Workflow and its Subsidiaries (other than Specified
Subsidiaries), as at the last day of period set forth in the
table below, on a cumulative basis, to be less than the amount
set forth opposite such period:
---------------------------------------------------------------
Consolidated Interest
Test Period Coverage Ratio
---------------------------------------------------------------
Three months ending January 31, 2003 1.5:1.0
---------------------------------------------------------------
Six months ending April 30, 2003 2.0:1.0
---------------------------------------------------------------
Nine months ending July 31, 2003 1.8:1.0
---------------------------------------------------------------
(b) The Borrower will not permit, as at the last day of the
fiscal quarter set forth in the table below, the Consolidated
Interest Coverage Ratio of Workflow and its Subsidiaries (other
than Specified Subsidiaries), for the applicable Test Period, to
be less than the amount set forth opposite such period:
--------------------------------------------------------------
Consolidated Interest
Test Period Coverage Ratio
--------------------------------------------------------------
October 31, 2003 2.0:1.0
--------------------------------------------------------------
January 31, 2004 2.3:1.0
--------------------------------------------------------------
April 30, 2004 2.5:1.0
--------------------------------------------------------------
July 31, 2004 2.6:1.0
--------------------------------------------------------------
(t) Section 8.14 of the Credit Agreement is hereby deleted in its
entirety, and the following inserted in its place:
"8.14 Minimum Cumulative Consolidated EBITDA. (a) The Borrower
will not permit, as at the last day of period set forth in the
table below, Consolidated EBITDA of the Borrower and its
Subsidiaries (other than Specified Subsidiaries), on a cumulative
basis, to be less than the amount set forth opposite such period:
------------------------------------------------------------------------
Minimum
Test Period Consolidated EBITDA
------------------------------------------------------------------------
Three months ending January 31, 2003 $ 9,000,000
------------------------------------------------------------------------
Six months ending April 30, 2003 $ 19,000,000
------------------------------------------------------------------------
Nine months ending July 31, 2003 $ 23,800,000
------------------------------------------------------------------------
-8-
(b) The Borrower will not permit, as at the last day of fiscal
quarter set forth in the table below, Consolidated EBITDA of the
Borrower and their Subsidiaries (other than Specified
Subsidiaries), for the applicable Test Period, to be less than
the amount set forth opposite such period:
--------------------------------------------------------
Minimum Consolidated
Test Period EBITDA
--------------------------------------------------------
October 31, 2003 $ 33,500,000
--------------------------------------------------------
January 31, 2004 $ 35,700,000
--------------------------------------------------------
April 30, 2004 $ 37,600,000
--------------------------------------------------------
July 31, 2004 $ 40,900,000
--------------------------------------------------------
(u) Section 8.15 of the Credit Agreement is hereby deleted in its
entirety, and the following inserted in its place:
"8.15 Fixed Charge Ratio. (a) The Borrower will not permit the
Fixed Charge Ratio of Workflow and its Subsidiaries (other than
Specified Subsidiaries), as at the last day of period set forth
in the table below, on a cumulative basis, to be less than the
amount set forth opposite such period:
------------------------------------------------------------------
Test Period Fixed Charge Ratio
------------------------------------------------------------------
Three months ending January 31, 2003 Not Applicable
------------------------------------------------------------------
Six months ending April 30, 2003 1.0:1.0
------------------------------------------------------------------
Nine months ending July 31, 2003 Not Applicable
------------------------------------------------------------------
Three months ending October 31, 2003 1.0:1.0
------------------------------------------------------------------
Six months ending January 31, 2004 1.0:1.0
------------------------------------------------------------------
Nine months ending April 30, 2004 1.0:1.0
------------------------------------------------------------------
Twelve months ending July 31, 2004 1.0:1.0
------------------------------------------------------------------
(v) Section 9.03 of the Credit Agreement is hereby deleted in its
entirety, and the following inserted in its place:
"9.03 Covenants. Any Credit Party shall (a) default in the due
performance or observance by it of any term, covenant or
agreement contained in Section 7.01(f)(x), 7.01(i), 7.01(j),
7.01(l), 7.01(m), 7.11, 7.13, 7.18, 7.19, 7.20, 7.21, or 8, or
(b) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in
Section 9.01, 9.02 or clause (a) of this Section 9.03)
-9-
contained in this Agreement and such default shall continue
unremedied for a period of at least 30 days after notice to the
defaulting party by the Agent or the Required Lenders; provided
that non-compliance with the provisions of Section 7.10 with
respect to any agreement giving rise to Indebtedness shall not
constitute an Event of Default unless such non-compliance would
result in an Event of Default under Section 9.04, below; or"
(w) The following definition is hereby inserted into Section 10 of
the Credit Agreement after the definition of "Agreement" and prior to the
definition of "Anticipated Reinvestment Amount":
"'Amendment Fee' shall have the meaning set forth in Section
3.01(e)(ii)."
(x) The definition of "Borrowing Base" contained in Section 10 of the
Credit Agreement is hereby deleted and the following inserted in its place:
"'Borrowing Base' means, at any time of calculation, an amount
equal to the sum of:
(a) Eighty-Five percent (85%) (or such lesser percentage as
the Agent from time to time may reasonably determine) of
the face amount of Eligible Accounts; plus
(b) The following during the following periods: (i) at any
time prior to January 31, 2004, sixty percent (60%) (or
such lesser percentage as the Agent from time to time may
reasonably determine) of Eligible Inventory, and (ii) from
and after January 31, 2004, fifty percent (50%) (or such
lesser percentage as the Agent from time to time may
reasonably determine) of Eligible Inventory; plus
(c) The lesser of (i) the Fixed Asset Advance, or (ii) 70% (or
such lesser percentage as the Agent from time to time may
reasonably determine) of the Orderly Liquidation Value of
Eligible Fixed Assets; minus
(d) Then existing Reserves."
(y) The chart set forth in the definition of "Capital Expenditure
Amount" contained in Section 10 of the Credit Agreement is hereby deleted
and the following is inserted in its place:
----------------------------------------------------------
Capital
Period Expenditure Amount
----------------------------------------------------------
Six month period ending April 30, 2003 $ 3,800,000
----------------------------------------------------------
Fiscal year ending April 30, 2004 $ 6,200,000
----------------------------------------------------------
Three months ending July 31, 2004 $ 2,000,000
----------------------------------------------------------
-10-
(z) The definition of "Consolidated EBIT" contained in Section 10 of
the Credit Agreement is hereby deleted, and the following inserted in its
place:
"'Consolidated EBIT' shall mean, for any period with respect to
any Person, , Consolidated Net Income of such Person, before,
without duplication, the following: (i) Restructuring Costs, (ii)
interest income, (iii) Consolidated Interest Expense, (iv)
provision (or benefit) for taxes (v) any extraordinary gains or
extraordinary losses or gains or losses (other than sales of
inventory in the ordinary course of business), (vi) Financing
Fees, (vii) Professional Fees and Expenses, (viii) loss or
(income) from interest rate hedge not to exceed the following
amounts for the following fiscal quarters of the Borrower (x)
$1,106,000 for the second quarter of 2003, (y) $301,000 for the
third quarter of 2003, and (z) $240,000 for the fourth quarter of
2003, (ix) loss or (income) from goodwill impairment charges (as
determined in accordance with GAAP), not to exceed $20,000,000 in
the aggregate for the period from the Borrower's fourth fiscal
quarter of 2003 through the Borrower's first fiscal quarter 2005,
and (x) loss or (income) from the results of operations of the
Specified Subsidiaries as determined in accordance with GAAP, not
to exceed the following amounts for the following fiscal quarters
of the Borrower (w) $236,000 for the second quarter of 2003, (x)
$17,060,000 for the third quarter of 2003, (y) ($438,000) for the
fourth quarter of 2003, and (z) $950,000 for the five quarter
period ending July 31, 2004."
(aa) The definition of "Consolidated Interest Expense" contained in
Section 10 of the Credit Agreement is hereby deleted, and the following
inserted in its place:
"'Consolidated Interest Expense' shall mean, for any period with
respect to any Person, the total interest expense (including that
attributable to Capital Leases in accordance with GAAP) required
to be paid in cash by such Person determined on a consolidated
basis with respect to all outstanding Indebtedness of such
Person, including, without limitation, all commissions, discounts
and other fees and charges owed with respect to letters of credit
and bankers' acceptance financing, but excluding, however, (i)
amortization of deferred financing costs to the extent included
in total interest expense, and (ii) amortization of the
Warrants."
(bb) The definition of "Final Maturity Date" contained in Section 10
of the Credit Agreement is hereby deleted, and the following inserted in
its place:
"'Final Maturity Date' shall mean August 1, 2004."
(cc) The following definition is hereby inserted into Section 10 of
the Credit Agreement after the definition of "Final Maturity Date" and
prior to the definition of "FIRREA":
"'Financing Fees' shall mean (i) the Amendment Fee, (ii) the
Maintenance Fee, (iii) the waiver fee paid to the Agent for the
benefit of the Lenders pursuant to the Limited Waiver and
Amendment dated October 15, 2002, and (iv) to the extent not (w)
capitalized by the Borrower, (x) included in Restructuring Costs,
(y) included in Professional Fees & Expenses, or (z) otherwise
deducted in the determination of
-11-
Consolidated EBIT, the fees and expenses previously incurred by
the Borrower in its fiscal year 2003 in connection with its
attempt to consummate a high yield offering. In no event shall
"Financing Fees" exceed, in the aggregate, the following amounts
for the following periods:
Period: Amount:
------ ------
Borrower's second fiscal quarter of 2003 $ 174,000
ending on or about 10/31/02
Borrower's third fiscal quarter of 2003 $ 985,000
ending on or about 1/31/03
Borrower's fourth fiscal quarter of 2003 $ 0
ending on or about 4/30/03
Borrower's fiscal year 2004 plus $ 3,013,000
Borrower's first fiscal quarter of 2005
ending on or about July 31, 2004"
(dd) The following definitions are hereby inserted into Section 10 of
the Credit Agreement after the definition of "FIRREA" and prior to the
definition of "Fixed Asset Advance":
"'First Amendment Date' means August 1, 2003."
"'First Amendment and Waiver' means that certain First Amendment
and Waiver to Second Amended and Restated Credit Agreement dated
as of the First Amendment Date."
(ee) The definition of "Fixed Charge Ratio" contained in Section 10 of
the Credit Agreement is hereby deleted, and the following inserted in its
place:
"'Fixed Charge Ratio' for any Person shall mean, as to any
period, the ratio of (i) the sum of (A) Consolidated EBITDA, plus
(B) Net Cash Proceeds from Asset Sales to the extent not included
in Consolidated EBITDA , plus (C) proceeds from Insider Notes to
the extent not included in Consolidated EBITDA, (D) plus cash tax
refunds received by such Person during such period, to (ii) the
sum of (A) Consolidated Interest Expense during such period (net
of cash interest income), plus (B) principal payments (including
mandatory prepayments) required to be made on account of Term A
Loan during such period, plus (C) cash Earn Out Payments actually
made during such period, plus (D) net payments on account of
Interest Rate Protection Agreements actually made during such
period, plus (E) Consolidated Capital Expenditures made during
such period, plus (F) income, franchise and other taxes paid in
cash during such period, in each case determined in accordance
with GAAP (excluding the one-time United States and Canadian
income taxes which will accrue in 2003 from the collateralization
of the Loans with the assets and stock of DBF)."
-12-
(ff) The following definition is hereby inserted into Section 10 of
the Credit Agreement after the definition of "Loan" and prior to the
definition of "Management Agreements":
"'Maintenance Fee' shall have the meaning set forth in Section
3.01(a)(ii)."
(gg) The following definition is hereby inserted into Section 10 of
the Credit Agreement after the definition of "Minimum Borrowing Amount" and
prior to the definition of "Mortgage":
"'Minimum Liquidity" shall mean Liquidity of not less than
$3,000,000.00."
(hh) The definition of "Professional Fees and Expenses" contained in
Section 10 of the Credit Agreement is hereby deleted and the following is
inserted in its place:
"'Professional Fees and Expenses' shall mean the actual fees and
expenses paid by (or credited to) the Borrower with respect to
(i) the Borrower's Advisors, (ii) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., (iii)
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, (iv) Ernst & Young Corporate Finance
LLC, (v) the Agent's local Canadian counsel, (vi) the Borrower's
local Canadian counsel, and (vii) up to $200,000.00 of fees paid
to other service providers and/or advisors retained by the
Borrower and reasonably acceptable to the Agent, in each case
relating to (a) the negotiation and preparation of the Amendment
and the Limited Waiver and Amendment each dated October 15, 2002,
(b) the negotiation and preparation of this Agreement, (c) the
negotiation and preparation of the First Amendment and Waiver,
and (d) the Borrower's Advisors continued involvement with the
Borrower. In no event shall "Professional Fees and Expenses"
exceed, in the aggregate, the following amounts for the following
periods:
Period: Amount:
------ ------
Borrower's second fiscal quarter of 2003 $ 810,000
ending on or about 10/31/02
Borrower's third fiscal quarter of 2003 $ 2,177,000
ending on or about 1/31/03
Borrower's fourth fiscal quarter of 2003 ($ 602,000)
ending on or about 4/30/03
Borrower's fiscal year 2004 plus $ 5,710,000
Borrower's first fiscal quarter of 2005
ending on or about July 31, 2004"
(ii) The definition of "Restructuring Costs" contained in Section 10
of the Credit Agreement is hereby deleted and the following is inserted in
its place:
"'Restructuring Costs' shall mean the actual costs and expenses
of restructuring incurred by the Borrower during the term of this
Agreement, (a) of the nature and types included in the
"Non-Recurring Restructuring Expenses" set forth in the
Borrower's Proposed Business Plan (November 2002), as revised in
July of 2003,
-13-
previously submitted to the Agent, (b) in the form of severance
payments paid by the Borrower in connection with implementation
of the senior management changes referenced in Section 5.16
hereof, (c) in the form of uncollectible notes receivable due
from prior officers and a director of the Borrower, and (d) in
the form of non-cash write-downs of assets either impaired or no
longer utilized as a result of the restructuring contemplated
under the Proposed Business Plan set forth in clause (a), above.
In no event shall "Restructuring Costs" (i) include Professional
Fees and Expenses, Financing Fees, or items otherwise accounted
for in the definition of Consolidated EBIT, or (ii) exceed
$12,500,000.00 in the aggregate, or, with respect to those
described in clause (c) and (d), the following aggregate amounts
for the following periods:
With respect to clause (c)
Period: Amount:
------ ------
Borrower's second fiscal quarter of 2003 $ 0
ending on or about 10/31/02
Borrower's third fiscal quarter of 2003 $ 682,000
ending on or about 1/31/03
Borrower's fourth fiscal quarter of 2003 $ 0
ending on or about 4/30/03
Borrower's fiscal year 2004 plus Borrower's $ 0
first fiscal quarter of 2005 ending on or about
July 31, 2004
With respect to clause (d)
Period: Amount:
------ ------
Borrower's second fiscal quarter of 2003 $ 0
ending on or about 10/31/02
Borrower's third fiscal quarter of 2003 $ 3,252,000
ending on or about 1/31/03
Borrower's fourth fiscal quarter of 2003 $ 600,000
ending on or about 4/30/03
Borrower's fiscal year 2004 plus Borrower's $ 0
first fiscal quarter of 2005 ending on or about
July 31, 2004
(jj) The following definition is hereby inserted into Section 10 of
the Credit Agreement after the definition of "Specified Subsidiaries" and
prior to the definition of "Stated Amount":
-14-
"'Specified Subsidiaries Asset Sale' shall mean an Asset Sale of
the Specified Subsidiaries."
(kk) The dates "October 1, 2003 through December 31, 2003" contained
in the definition of "Term B Interest Rate" contained in Section 10 of the
Credit Agreement are hereby deleted, and the following inserted in their
place:
"October 1, 2003 and thereafter"
(ll) The definition of "Warrant" contained in Section 10 of the Credit
Agreement is hereby deleted, and the following inserted in its place:
"Warrant" means the Common Stock Purchase Warrants to be
executed, delivered and issued to the Lenders by Workflow as of
the Effective Date, as amended by certain Amendment No. 1 to
Warrant dated as of the First Amendment Date, granting the
Lenders the right, in certain circumstances, to acquire up to
2,400,000 shares of Workflow's common stock in the aggregate, at
an exercise price equal to the market price on the date of
issuance of such shares, such Warrant to be in the form attached
hereto as Exhibit M."
2. Amendment to Term B Notes. Subject to the satisfaction of the
conditions set forth set forth in ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇, from and after the First
Amendment Date, each of the Term B Notes is hereby amended as follows:
The date "December 31, 2003" contained in the last line of the first
paragraph of the Term B Notes is hereby deleted, and the date "May 1, 2004"
is inserted in its place.
3. Waivers. Subject to the satisfaction of the conditions set forth in
Paragraph 4, below, the Agent and the Lenders hereby agree to waive each of the
Specified Defaults. This waiver applies only to the Specified Defaults, is a
one-time waiver, and shall not be deemed to constitute a continuing waiver of
the provisions of the Credit Agreement, or the other Credit Documents, or a
waiver of any other Defaults or Events of Default for any other period.
4. Condition to Effectiveness. The limited waivers and amendments set
forth in this Amendment shall become effective upon the satisfaction of the
following conditions:
(a) Submission to the Agent of a operating plan and financial
forecast for Workflow's 2004 fiscal year and first quarter of Workflow's
2005 fiscal year, in form and substance reasonably satisfactory to the
Agent and the Lenders.
(b) Workflow shall provide evidence of (i) Liquidity as of the First
Amendment Date of $3,000,000.00, and (ii) on a pro forma basis for the
thirteen weeks period thereafter, an average Liquidity of $3,000,000.00.
(c) The Borrowers shall have paid all reasonable expenses of the
Agent, the Agent's counsel and their respective professional advisors for
which invoices have been issued as of the First Amendment Date.
-15-
(d) No Events of Default, other than the Specified Defaults, shall
have occurred.
(e) The Agent shall have received amendments to the Warrant and the
Warrant Purchase Agreement executed by the Borrower in the form attached
hereto as Exhibit "A".
(f) The Agent shall have received the payment of the Amendment Fee as
set forth in Section 3.01(e)(ii) of the Credit Agreement as amended hereby.
(g) The Agent shall have received a copy of this Amendment, and all
other documents, instruments, and agreements required in connection
therewith, or relating thereto, duly executed by the Borrower, each of the
Guarantors, the Agent and each of the Lenders.
(h) The Agent shall have received an amended and restated Agent's Fee
Letter, in a form and of a nature acceptable to the Agent.
(i) The Agent shall have received evidence of appropriate corporate
or other entity approvals and other evidence of the enforceability of this
Amendment (including, without limitation, such opinions of counsel as the
Agent and the Lenders may reasonably require), in each case satisfactory to
the Agent in form and substance.
(j) The Agent shall have received all other documents, instruments,
and agreements required in connection herewith, or relating hereto, as the
Agent or its counsel may reasonably request.
5. No Present Claims. The Borrower and the Guarantors acknowledge and
agree that, based upon the facts and circumstances existing as of the date
hereof: (i) the Borrower and Guarantors have no claim or cause of action against
any of the Lenders or the Agent (or any of their directors, officers, employees,
agents or affiliates); (ii) the Borrower and the Guarantors have no offset
right, counterclaim or defense of any kind against any of the Obligations,
indebtedness or liabilities to the Lenders and the Agent; and (iii) each of the
Lenders and the Agent has heretofore performed and satisfied in a timely manner
all of its obligations to the Borrower, and the Guarantors, if any. The Lenders
and the Agent wish (and the Borrower and Guarantors agree) to eliminate any
possibility that any past conditions, acts, omissions, events, circumstances or
matters would impair or otherwise adversely affect any of their rights,
interests, contracts, collateral security or remedies. Therefore, the Borrower
and the Guarantors unconditionally release, waive and forever discharge (a) any
and all liabilities, obligations, duties, promises or indebtedness of any kind
of any of the Lenders or the Agent to the Borrower and the Guarantors, except
the obligations to be performed by the Lenders or the Agent hereafter as
expressly stated in this Agreement and the other Credit Documents, and (b) all
claims, offsets, causes of action, suits or defenses of any kind whatsoever (if
any), whether known or unknown, which the Borrower and/or Guarantors might
otherwise have against any of the Lenders or the
-16-
Agent or any of their directors, officers, employees, agents or affiliates for
their respective actions or omissions occurring prior to the date hereof, in
either case (a) or (b) above, on account of any condition, act, omission, event,
contract, liability, obligation, indebtedness, claim, cause of action, defense,
circumstance or matter of any kind whatsoever which existed, arose or occurred
at any time prior to the date hereof.
6. Representations and Warranties. The Borrower hereby affirms and
reaffirms that all representations and warranties contained in the Credit
Agreement, as amended hereby, and in the other Credit Documents are true and
correct in all material respects as of the First Amendment Date.
7. Miscellaneous. No waiver or amendment contained herein shall be deemed
to imply any willingness of the Agent or the Lenders to agree to, or otherwise
prejudice any rights of the Agent or the Lenders with respect to, any similar
waivers, amendments or agreements that may be requested for any future period.
This agreement shall constitute a "Credit Document". Except as specifically
waived or amended hereby, each of the terms and conditions of the Credit
Agreement and the other Credit Documents are hereby ratified and confirmed and
shall remain in full force and effect. Nothing contained herein shall in any way
prejudice, impair or effect any rights or remedies of the Lenders or the Agent
under the Credit Agreement and the other Credit Documents.
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
counterparts taken together shall be deemed to constitute one and the same
instrument.
THIS AMENDMENT SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT
REFERENCE TO CONFLICTS OF LAW).
[remainder of this page intentionally left blank]
-17-
IN WITNESS WHEREOF, this First Amendment and Waiver to Second Amended and
Restated Credit Agreement has been executed as a sealed instrument as of the
1/st/ day of August, 2003.
FLEET NATIONAL BANK, as Agent and
as a Lender
By /s/ Fleet National Bank
---------------------------------
Name: Fleet National Bank
Title:
-18-
BANK ONE, N.A.
By /s/ Bank One
---------------------------------
Name: Bank One
Title:
-19-
COMERICA BANK
By /s/ Comerica Bank
---------------------------------
Name: Comerica Bank
Title:
-▇▇-
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
By /s/ Bank of America
---------------------------------
Name: Bank of America
Title:
-▇▇-
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By /s/ Union Bank of California
---------------------------------
Name: Union Bank of California
Title:
-22-
NATIONAL CITY BANK
By /s/ National City Bank
---------------------------------
Name: National City Bank
Title:
-▇▇-
▇▇▇▇▇▇▇ ▇▇▇▇ NATIONAL ASSOCIATION
By /s/ Lasalle Bank National Association
---------------------------------------
Name: Lasalle Bank National Association
Title:
-24-
CHEVY CHASE BANK, F.S.B.
By /s/ Chevy Chase Bank
---------------------------------
Name: Chevy Chase Bank
Title:
-25-
WORKFLOW MANAGEMENT, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
-26-
DATA BUSINESS FORMS LIMITED
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
By
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Name:
Title:
-27-
ACKNOWLEDGED AND AGREED:
▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
PSE DATA PRODUCTS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
DOCUMENT OPTIONS COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
WORKFLOW DIRECT, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
SFI OF DELAWARE, LLC
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
SFI OF ILLINOIS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
-28-
SFI OF PUERTO RICO, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
WORKFLOW MANAGEMENT
ACQUISITION II CORP.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
OEI PROPERTIES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
WFMI, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
WORKFLOW OF FLORIDA, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
DIRECTPRO LLC
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
-29-
DIRECTPRO WEST, LLC
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
UNITED ENVELOPE, LLC
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
UNIVERSAL FOLDING BOX CO., INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
PREMIER GRAPHICS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
-30-
FREEDOM GRAPHIC SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
-31-
