FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
FIRST
AMENDMENT TO SECOND AMENDED
AND
RESTATED CREDIT AND GUARANTY AGREEMENT
THIS
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND GUARANTY
AGREEMENT
(this
“Amendment”)
is
dated as of July 17, 2006 and is entered into by and among AMERICAN
REPROGRAPHICS COMPANY, L.L.C.,
a
California limited liability company (the “Borrower’’),
AMERICAN
REPROGRAPHICS COMPANY,
a
Delaware corporation ("Holdings"),
CERTAIN
FINANCIAL INSTITUTIONS
listed
on the signature pages hereto (the “Lenders”),
XXXXXXX
XXXXX CREDIT PARTNERS L.P.
(“GSCP”),
as
Sole Lead Arranger and Joint Bookrunner, JPMORGAN
CHASE BANK, N.A.,
as
Syndication Agent, JPMORGAN
SECURITIES INC.,
as
Joint Bookrunner, GENERAL
ELECTRIC CAPITAL CORPORATION ("GECC"),
as
Administrative Agent (together with its permitted successors in such capacity,
"Administrative
Agent")
and as
Collateral Agent and the CREDIT
SUPPORT PARTIES listed
on
the signature papers hereto, and is made with reference to that certain
SECOND
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
dated as
of December 21, 2005 (as amended through the date hereof, the “Credit
Agreement”)
by and
among Borrower, American Reprographics Holdings, L.L.C., Holdings, the
subsidiaries of Borrower named therein, Lenders, Syndication Agent, Collateral
Agent and Administrative Agent. Capitalized terms used herein without definition
shall have the same meanings herein as set forth in the Credit Agreement after
giving effect to this Amendment.
RECITALS
WHEREAS,
the
Credit Parties have requested that Requisite Lenders agree to amend certain
provisions of the Credit Agreement as provided for herein;
WHEREAS,
contemporaneously with the execution of this Amendment, the Borrower is
exercising its right under Section 2.24 of the Credit Agreement to incur New
Term Loans in an amount not to exceed $30,000,000; and
WHEREAS,
subject
to certain conditions, Requisite Lenders are willing to agree to such amendment
relating to the Credit Agreement.
NOW,
THEREFORE,
in
consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:
| SECTION I. |
AMENDMENTS
TO CREDIT
AGREEMENT
|
| 1.1 |
Amendments
to Section 1: Definitions.
|
Section
1.1 of the Credit Agreement is hereby amended by adding the following
definitions in proper alphabetical sequence:
“First
Amendment”
means
that certain First Amendment to Second Amended and Restated Credit and Guaranty
Agreement dated as of July 17, 2006 among Borrower, Holdings, Syndication Agent,
Administrative Agent and the financial insti-tutions and the Credit Support
Parties listed on the signature pages thereto.
“First
Amendment Effective Date”
means
the date of satisfaction of the conditions referred to in Section II of the
First Amendment.
| 1.2 |
Amendments
to Section 2.14.
|
Section
2.14 of the Credit Agreement is hereby amended by deleting the period at the
end
of clause (c) thereof, and replacing it with the phrase: “; provided,
further,
that
the issuance of up to 246,277 shares of Capital Stock of the Company to be
consummated on the First Amendment Effective Date in an aggregate amount of
up
to approximately $8,500,000 shall be excluded from the requirements of this
clause (c).”
| 1.3 |
Amendments
to Section 2.24.
|
A.
Section
2.24 of the Credit Agreement is hereby amended by deleting
the first sentence thereof in its entirety and replacing it with the
following:
“Company
may by written notice to Administrative Agent and Syndication Agent elect to
request the establishment of one or more new term loan commitments (the
"New
Term Loan Commitments"),
by an
amount not in excess of $237,500,000 in the aggregate with (i) a maximum amount
of $157,500,000 having been funded on the Effective Date; provided,
however,
any
amounts in excess of $187,500,000 will only be available to the Company if
the
Company has utilized New Term Loan Commitments up to an aggregate amount of
$187,500,000 no later than August 31, 2006 and (ii) not less than $5,000,000
individually (or such lesser amount which shall be approved by Administrative
Agent and Syndication Agent or such lesser amount that shall constitute the
difference between $5,000,0000 and all such New Term Loan Commitments obtained
prior to such date), and integral multiples of $1,000,000 in excess of that
amount.”
B.
Section
2.24 of the Credit Agreement is hereby further amended by deleting the last
paragraph thereof and replacing it with the following:
“The
terms and provisions of the New Term Loans and New Term Loan Commitments shall
be, except as otherwise set forth herein or in the Joinder Agreement, identical
to the Tranche C Term Loans. In any event (i) the weighted average life to
maturity of all New Term Loans shall be no shorter than the weighted average
life to maturity of the Tranche C Terms Loans, (ii) the applicable New Term
Loan
Maturity Date shall be no shorter than the final maturity of the Tranche C
Term
Loans and (iii) the rate of interest applicable to the New Term Loans shall
be
determined by Borrower and the applicable new Lenders and shall be set forth
in
each applicable Joinder Agreement; provided however
that the
interest rate applicable to the New Term Loans shall not be greater than the
highest interest rate that may, under any circumstances, be payable with respect
to Tranche C Term Loans plus
0.25%
per
annum
unless
the interest rate with respect to the Tranche C Term Loan is increased so as
to
equal the interest rate applicable to the New Term Loans less
0.25%
per
annum.
Each
Joinder Agreement may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Credit Documents as may be necessary
or appropriate, in the opinion of the Syndication Agent and Administrative
Agent
to effect the provision of this Section 2.24.”
| 1.4 |
Amendments
to Section 6.8(e).
|
Section
6.8(e) of the Credit Agreement is hereby amended by deleting the table therein
and replacing it with the following:
|
Fiscal
Year
|
Consolidated
Capital
Expenditures
|
|
2006
|
$35,000,000
|
|
2007
|
$35,000,000
|
|
2008
|
$35,000,000
|
|
2009
|
$20,000,000
|
| 1.5 |
Amendments
to Section 6.9(e).
|
Section
6.9(e) of the Credit Agreement is hereby amended by deleting it in its entirety
and replacing it with the following:
“Permitted
Acquisitions, the cash consideration for which constitutes (i) for so long
as
the Leverage Ratio is greater than or equal to 3.0:1.0, less than $25,000,000
in
the aggregate in any Fiscal Year and (ii) at any time after the Leverage Ratio
has fallen below 3.0:1.0, less than (x) $75,000,000 in the aggregate in Fiscal
Year 2006 and (y) $50,000,000 in each Fiscal Year thereafter;”
| 1.6 |
Waiver
of Notice Requirement.
|
A.
By
executing this Amendment the Requisite Lenders hereby waive the requirements
of
Section 2.24 of the Credit Agreement solely relating to the 10 Business Days
notice period with respect to any utilization of New Term Loan Commitments
in an
aggregate amount of up to $30,000,000 no later than August 31, 2006.
B.
By
executing this Amendment the Requisite Lenders hereby waive the requirements
of
clause (vi) of the definition of “Permitted Acquisition” in Section 1.1 of the
Credit Agreement solely relating to the 10 Business Days notice period with
respect to any acquisitions consummated as of the First Amendment Effective
Date
through July 21, 2006, so
long
as the remaining conditions set forth in such definition are satisfied.
| SECTION II. |
CONDITIONS
TO
EFFECTIVENESS
|
This
Amendment shall become effective as of the date hereof only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the “First
Amendment Effective Date”):
A.
Execution.
Administrative Agent shall have received a counterpart signature page of this
Amendment duly executed by each of the Credit Parties and Requisite
Lenders.
B.
Fees.
The
Arranger shall have received all fees and other amounts due and payable on
or
prior to the First Amendment Effective Date, including, to the extent invoiced,
reimbursement or other payment of all out-of-pocket expenses required to be
reimbursed or paid by Borrower hereunder or any other Credit
Document.
C.
Necessary
Consents.
Each
Credit Party shall have obtained all material con-sents necessary or advisable
in connection with the transactions contemplated by this Amendment.
D.
Other
Documents.
Administrative Agent and Lenders shall have received such other documents,
information or agreements regarding Credit Parties as Administrative Agent
or
Collateral Agent may reasonably request.
| SECTION III. |
REPRESENTATIONS
AND
WARRANTIES
|
In
order
to induce Lenders to enter into this Amendment and to amend the Credit Agreement
in the manner provided herein, each Credit Party which is a party hereto
represents and warrants to each Lender that the following statements are true
and correct in all material respects:
A.
Corporate
Power and Authority.
Each
Credit Party, which is party hereto, has all requisite power and authority
to
enter into this Amendment and to carry out the transactions contemplated by,
and
perform its obligations under, the Credit Agreement as amended by this Amendment
(the “Amended
Agreement”)
and the
other Credit Documents.
B.
Authorization
of Agreements.
The
execution and delivery of this Amendment and the performance of the Amended
Agreement and the other Credit Documents have been duly authorized by all
necessary action on the part of each Credit Party.
C.
No
Conflict.
The
execution and delivery by each Credit Party of this Amendment and the
performance by each Credit Party of the Amended Agreement and the other Credit
Documents do not and will not (i) violate (A) any provision of any law, statute,
rule or regulation, or of the certificate or articles of incorporation or
partnership agreement, other constitutive documents or by-laws of Holdings,
Borrower or any Credit Party or (B) any applicable order of any court or any
rule, regulation or order of any Governmental Authority, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under any Contractual Obligation of the
applicable Credit Party, where any such conflict, violation, breach or default
referred to in clause (i) or (ii) of this Section III.C., individually or in
the
aggregate could reasonably be expected to have a Material Adverse Effect, (iii)
except as permitted under the Amended Agreement, result in or require the
creation or imposition of any Lien upon any of the properties or assets of
each
Credit Party (other than any Liens created under any of the Credit Documents
in
favor of Administrative Agent on behalf of Lenders), or (iv) require any
approval of stockholders or partners or any approval or consent of any Person
under any Contractual Obligation of each Credit Party, except for such approvals
or consents which will be obtained on or before the First Amendment Effective
Date and except for any such approvals or consents the failure of which to
obtain will not have a Material Adverse Effect.
D.
Governmental
Consents.
No
action, consent or approval of, registration or filing with or any other action
by any Governmental Authority is or will be required in connection with the
execution and delivery by each Credit Party of this Amendment and the
performance by Borrower and Holdings of the Amended Agreement and the other
Credit Documents, except for such actions, consents and approvals the failure
to
obtain or make which could not reasonably be expected to result in a Material
Adverse Effect or which have been obtained and are in full force and
effect.
E.
Binding
Obligation.
This
Amendment and the Amended Agreement have been duly executed and delivered by
each of the Credit Parties party thereto and each constitutes a legal, valid
and
binding obligation of such Credit Party to the extent a party thereto,
enforce-able against such Credit Party in accordance with its terms, except
as
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors’ rights generally and
except as enforceability may be limited by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
F.
Incorporation
of Representations and Warranties from Credit Agreement.
The
representations and warranties contained in Section 4 of the Amended Agreement
are and will be true and correct in all material respects on and as of the
First
Amendment Effective Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true and correct in all
material respects on and as of such earlier date.
G.
Absence
of Default.
No event
has occurred and is continuing or will result from the consummation of the
transactions contemplated by this Amendment that would constitute an Event
of
Default or a Default.
| SECTION IV. |
REPRESENTATIONS
AND
WARRANTIES
|
Each
Domestic Subsidiary and Holdings are referred to herein as a “Credit
Support Party”
and
collectively as the “Credit
Support Parties”,
and the
Credit Documents to which they are a party are collectively referred to herein
as the “Credit
Support Documents”.
Each
Credit Support Party hereby acknowledges that it has reviewed the terms and
provisions of the Credit Agreement and this Amendment and consents to the
amendment of the Credit Agreement effected pursuant to this Amendment. Each
Credit Support Party hereby confirms that each Credit Support Document to which
it is a party or otherwise bound and all Collateral encumbered thereby will
continue to guarantee or secure, as the case may be, to the fullest extent
possible in accordance with the Credit Support Documents the payment and
performance of all “Obligations” under each of the Credit Support Documents to
which is a party (in each case as such terms are defined in the applicable
Credit Support Document).
Each
Credit Support Party acknowledges and agrees that any of the Credit Support
Documents to which it is a party or otherwise bound shall continue in full
force
and effect and that all of its obligations thereunder shall be valid and
enforceable and shall not be im-paired or limited by the execution or
effectiveness of this Amendment. Each Credit Support Party represents and
warrants that all representations and warranties contained in the Amended
Agreement and the Credit Support Documents to which it is a party or otherwise
bound are true and correct in all material respects on and as of the First
Amendment Effective Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true and correct in all
material respects on and as of such earlier date.
Each
Credit Support Party acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Amendment, such Credit Support
Party is not required by the terms of the Credit Agreement or any other Credit
Support Document to consent to the amendments to the Credit Agreement effected
pursuant to this Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Credit Support Document shall be deemed to require the
consent of such Credit Support Party to any future amendments to the Credit
Agreement.
| SECTION V. |
MISCELLANEOUS
|
A.
Reference
to and Effect on the Credit Agreement and the Other Credit
Documents.
(i)
On
and
after the First Amendment Effective Date, each reference in the Credit Agreement
to “this Amendment”, “hereunder”, “hereof”, “herein” or words of like import
referring to the Credit Agreement, and each reference in the other Credit
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.
(ii)
Except
as
specifically amended by this Amendment, the Credit Agreement and the other
Credit Documents shall remain in full force and effect and are hereby ratified
and confirmed.
(iii)
The
execution, delivery and performance of this Amendment shall not constitute
a
waiver of any pro-vision of, or operate as a waiver of any right, power or
remedy of any Agent or Lender under, the Credit Agreement or any of the other
Credit Documents.
B.
Headings.
Section
and Subsection headings in this Amendment are included herein for convenience
of
reference only and shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.
C.
Applicable
Law.
THIS AMENDMENT AND THE RIGHTS AND OB-LIGATIONS OF THE PARTIES HEREUNDER SHALL
BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRIN-CIPLES.
D.
Counterparts.
This
Amendment may be executed in any number of counter-parts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument; signature pages may be detached
from
multiple separate counterparts and attached to a single counterpart so that
all
signature pages are physically attached to the same document.
[Remainder
of this page intentionally left blank.]
IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment to be duly executed and delivered
by
their respective officers thereunto duly authorized as of the date first written
above.
| BORROWER: | AMERICAN REPROGRAPHICS COMPANY, L.L.C | |
| |
|
|
| By: | ||
|
Name: Xxxx X. Xxxx |
||
| Title: Chief Financial Officer | ||
|
CREDIT
SUPPORT PARTIES:
|
AMERICAN
REPROGRAPHICS
|
|
COMPANY
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
|
ARC
ACQUISITON CORPORATION
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
BLUE
PRINT SERVICE COMPANY, INC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
RHODE
ISLAND BLUEPRINT CO.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
LEET-MELBROOK,
INC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
PENINSULA
BLUEPRINT, INC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
QUALITY
REPROGRAPHIC SERVICES, INC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
MIRROR
PLUS TECHNOLOGIES, INC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
E.
PAVILION, LLC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
FRANKLIN
GRAPHICS CORPORATION
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
ENGINEERING
REPRO SYSTEMS, INC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
XXXX
BLUE PRINT COMPANY
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
OCB,
LLC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
XXXXXXX'X,
LTD.
|
| By: | Xxxxxxx'x XX, LLC its General Partner | ||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
REPROGRAPHICS
NORTHWEST, LLC
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
WILCO
REPROGRAPHICS, INC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
BPI
REPRO, LLC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
XXXXXXX'X
XX, LLC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
XXXXXXX'X
XX, LLC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
THE
PEiR GROUP, LLC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
THE
PEiR GROUP INTERNATIONAL, LLC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
LICENSING
SERVICES INTERNATIONAL, LLC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
PLANWELL,
LLC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: |
|
SUBHUB,
INC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
GEORGIA
BLUE PRINT COMPANY, LLC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
XXXXX
ENTERPRISES, INC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
WESTERN
BLUE PRINT COMPANY, LLC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
T-SQUARE
EXPRESS, INC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
FASTPRINT,
INC.
|
| By: | |||
|
|
|||
| Name:
Xxxx X. Xxxx Title: Chief Financial Officer |
|
XXXXXXX
XXXXX CREDIT PARTNERS LP. As Sole Lead Arranger and
Lender
|
| By: | |||
|
Authorized Signatory |
|||
| ADMINISTRATIVE AGENT: |
GENERAL
ELECTRIC CAPITAL CORPORATION
|
| By: | |||
|
|
|||
|
Name:
Title:
|
|
LENDERS:
|
By
signing below, you have indicated your consent to the First
Amendment to
Second Amended and Restated Credit and Guaranty Agreement
|
|
Name
of Institution:
|
|
|
|
|
|
| By: | |||
|
|
|||
|
Name:
Title:
|
