Exhibit 10.51
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SECOND AMENDMENT
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TO
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CREDIT AGREEMENT
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SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of this 30th day of
March, 2001, by and among ImageMax, Inc., a Pennsylvania corporation, together
with its wholly owned direct and indirect subsidiaries, ImageMax of Virginia,
Inc., a Virginia corporation, ImageMax of Arizona, Inc., a Pennsylvania
corporation, ImageMax of Ohio, Inc., an Ohio corporation, ImageMax of Indiana,
Inc., an Indiana corporation, ImageMAX of Delaware, Inc., a Delaware
corporation, and Ammcorp Acquisition Corp., Pennsylvania corporation
(collectively, the "Borrowers", with ImageMax, Inc., and ImageMAX of Delaware,
Inc., collectively, the "Surviving Borrowers"); the Lenders who are or may
become a party to such Credit Agreement (as further amended hereby, and COMMERCE
BANK, NA, as Agent for the Lenders (this "Second Amendment").
STATEMENT OF PURPOSE
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The Borrowers, Lenders and Agent are parties to that certain Credit
Agreement (the "Initial Credit Agreement") and First Amendment to Credit
Agreement both dated as of June 9, 2000, pursuant to which the Lenders agreed to
extend certain credit facilities to the Borrowers on the terms and conditions of
set forth therein and in the other Loan Documents as defined therein
(collectively, the "Credit Agreement"). All initially capitalized terms used
herein shall have the same meaning as ascribed to such terms in the Credit
Agreement.
The Surviving Borrowers have advised the Agent that Surviving
Borrowers anticipate that they will be unable to comply with the covenants set
forth in Section 9.2 of the Initial Credit Agreement and have sought from the
Agent and the Lenders a waiver of the requirements of such covenant. The Agent
and the Lenders have agreed to grant such waiver, and perform certain other
covenants all as more particularly set forth herein, which agreement of the
Agent and the Lenders is expressly subject to the terms, conditions and
provisions hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
1. Amendment and Restatement of Paragraph Section 9.2 of the Credit
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Agreement. Section 9.2 of the Initial Credit Agreement is hereby amended and
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restated as follows:
9.2 Consolidated EBITDA: At anytime, measured quarterly on a rolling four
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quarter basis, as of the quarter then ended, permit the EBITDA of the
Surviving Borrowers on a Consolidated basis to be less than: (i) Six
Million ($6,000,000) Dollars as of the June 30, 2000 measurement; (ii) Six
Million One Hundred Thousand ($6,100,000) Dollars as of the September 30,
2000 measurement; (iii) Six Million Two Hundred Thousand ($6,200,000)
Dollars as of December 31, 2000 measurement; (iv) Five Million Three
Hundred Thousand ($5,300,000)
Dollars as of the March 31, 2001 measurement; (v) Four Million Seven
Hundred Fifty Thousand ($4,750,000) Dollars as of the June 30, 2001
measurement; (vi) Five Million One Hundred Thousand ($5,100,000) Dollars as
of the September 30, 2001 measurement; and (iv) Five Million Five Hundred
Thousand ($5,500,000) as of each measurement period thereafter. For the
purposes of the calculation of Consolidated EBITDA, and notwithstanding the
definition of the term Consolidated EBITDA as set forth in Section 1.1
hereof, severance payments payable to Xxxxx Xxxxx shall be charged against
EBITDA with respect to such period only to the extent of the actual cash
severance payments paid to Xxxxx Xxxxx during such period.
2. Amendments to Amortization of the Term Loan Credit Facility.
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(a) Notwithstanding the provisions of Paragraph 2.2.3 hereof, Surviving
Borrowers shall be jointly and severally required to make an additional
principal payment in respect of the Term Loan in the amount of One Million
($1,000,000) Dollars in accordance with the following: (i) on or before May 30,
2001, Surviving Borrowers shall pay the sum of Six Hundred Thousand ($600,000)
Dollars (which shall include payments, if any, made under Paragraph 2.2.4.4 of
the Initial Credit Agreement); (ii) on or before June 30, 2001, Surviving
Borrowers shall pay the sum of One Hundred Fifty Thousand ($150,000) Dollars;
(iii) on or before September 30, 2001, Surviving Borrowers shall pay the sum of
One Hundred Fifty Thousand ($150,000) Dollars; (iv) on or before December 31,
2001, Surviving Borrowers shall pay the sum of Fifty Thousand ($50,000) Dollars,
and (e) on or before March 31, 2002, Surviving Borrowers shall pay the sum of
Fifty Thousand ($50,000) Dollars (collectively, the "Additional Term Loan
Payment Obligation"). Payment made by the Borrower from the net proceeds of the
sale of Surviving Borrowers' California record storage operations shall be
applied as a credit against the Additional Term Loan Payment Obligation and
applied against the next succeeding payment obligation(s) as set forth above.
(b) To more fully evidence the revised amortization of the Term Loan,
the Surviving Borrowers shall jointly and severally execute and deliver to the
respective Lenders the Amended and Restated Term Loan Notes in the form attached
hereto as Exhibit 2(b).
3. Disposal of Certain Business Operations. Surviving Borrowers have
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heretofore advised the Lenders that Surviving Borrowers' operations in Eugene,
Oregon and Dallas, Texas (each a "Facility", and collectively, the "Facilities")
have suffered and continue to suffer losses. Surviving Borrowers have advised
the Lenders that Surviving Borrowers shall conduct a financial analysis of the
economic viability of each of the Facilities; accordingly, Surviving Borrowers
jointly and severally covenant and agree that on or before May 30, 2001, they
shall have conducted such financial analysis and shall present to the Agent a
written report thereof in form and substance acceptable to the Agent (the
"Plan"). By way of illustration and not limitation, the Plan shall demonstrate
to the satisfaction of the Agent a plan with measurable benchmarks by which each
of the Facilities shall demonstrate economic viability on or before September
30, 2001. In the event that: (i) the Surviving Borrowers fail to present to the
Agent the Plan on or before May 30, 2001; (ii) the Agent in good faith believes
that the goals set forth
(2)
in the Plan are unobtainable by the Surviving Borrowers by September 30, 2001;
or (iii) the Surviving Borrowers have failed to demonstrate to the Agent by
September 30, 2001 that such Facilities (a) are economically viable, and (b) are
likely to remain economically viable thereafter, then upon the occurrence of any
of such events, the Borrower shall take such actions appropriate and
commensurate with such concern about the lack of economic viability of such
Facilities, including, but not limited to the prompt sale, closure, or
downsizing thereof.
4. Elimination of Certain Borrowers. The Surviving Borrowers have
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advised the Agent and the Lenders that ImageMax of Virginia, Inc., a Virginia
corporation, ImageMax of Arizona, Inc., a Pennsylvania corporation, ImageMax of
Ohio, Inc., an Ohio corporation, ImageMax of Indiana, Inc., an Indiana
corporation, and Ammcorp Acquisition Corp., Pennsylvania corporation, all of
which were Borrowers under the Initial Credit Agreement pursuant to certain
Agreements and Plans of Merger have been merged into and are survived by
ImageMax, Inc., all as more specifically represented to the Agent and the
Lenders in Paragraph 7(c) hereof. In consideration of the foregoing, the
definition of the term "Borrowers" in Section 1.1 of the Initial Credit
Agreement is hereby amended and restated as follows:
"Borrowers" means collectively ImageMax, Inc., a Pennsylvania corporation,
together with its wholly-owned subsidiary, ImageMAX of Delaware, Inc., a
Delaware corporation.
5. Amendment Fee; and Expenses of Agent and Lenders. In consideration of
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the accommodations to be extended by the Lenders for the benefit of the
Surviving Borrowers hereunder, and as a condition precedent to the Lenders'
agreement to extend such accommodations, the Surviving Borrowers shall forthwith
pay to: (i) the Agent, ratably for the benefit of the Lenders, an Amendment Fee
in the amount of Thirty-Four Thousand ($34,000) Dollars, which Amendment Fee is
hereby deemed fully earned and non-refundable; and (ii) the Agent, all costs and
expenses incurred by the Agent in connection with the documentation of this
Second Amendment, including, but not limited to, all fees and expenses of
Agent's counsel incurred in connection herewith.
6. Certain Acknowledgements of Surviving Borrowers. Surviving Borrowers
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hereby acknowledge, ratify and confirm, for the benefit of the Agent and the
Lenders, each and all of the following:
(a) Surviving Borrowers hereby unconditionally acknowledge and confirm
that as of the date hereof, the outstanding Obligations of the Borrower in
respect of the Term Loan is in the amount of Three Million Eight Hundred Sixty-
Nine Thousand Two Hundred Sixty Dollars and Thirty-Three Cents ($3,869,260.33),
and in respect of the Revolving Credit Loans is in the amount of Six Million
Five Hundred Thousand ($6,500,000) Dollars and that all Obligations under the
Loan Documents are owing to the Lenders without claim, counterclaim, right to
recoupment, defense, or setoffs of any kind or nature whatsoever; and
(b) Except as expressly set forth herein, Surviving Borrowers hereby
ratify, confirm and reaffirm in all respects, without condition, all terms,
covenants and conditions set
(3)
forth in the Loan Documents, and hereby agree that the Surviving Borrowers
remain jointly, severally and unconditionally liable to the Agent and the
Lenders in accordance with the terms thereof, as amended by this Second
Amendment. Each of the Surviving Borrowers further herby ratifies, confirms and
reaffirms that all of the Collateral, liens, security interests and pledges
created pursuant to the Loan Documents, and/or referenced therein, shall
continue unimpaired, in full force and effect, and secure and shall continue to
secure each of the Borrower's Obligations to the Agent and the Lenders. Without
limiting the foregoing, Surviving Borrowers each hereby ratify, confirm and
reaffirm any and all warrants of attorney contained in any of the Loan Documents
to confess judgment against any or all of the Surviving Borrowers remain in full
force and effect and that such warrants of attorney were knowingly and
voluntarily granted by each of the Surviving Borrowers.
7. Representations and Warranties. To induce the Agent and Lenders to
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enter into this Second Amendment, and to otherwise perform hereunder, each of
the Borrowers hereby represents and warrants to the Agent and Lenders both
before and after giving effect to the transactions contemplated hereunder that:
(a) Organization; Power; and Qualification. Each of the Surviving
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Borrowers and their respective Subsidiaries is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
formation, has the power and authority to own its properties and to carry on its
business as now being and hereafter proposed to be conducted and is duly
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification and authorization. The jurisdictions in which the Surviving
Borrowers and their respective Subsidiaries are organized and qualified to do
business as of the Closing Date are described on Schedule 6.1.1 of the Initial
Credit Agreement;
(b) Authorization of the Second Amendment. Each of the Surviving
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Borrowers and their respective Subsidiaries has the right, power and authority
and has taken all necessary corporate and other action to authorize the
execution, delivery and performance of this Second Amendment. This Second
Amendment has been duly executed and delivered by the duly authorized officers
of the respective Surviving Borrowers and each of their respective Subsidiaries
party hereto, and each such document constitutes the legal, valid and binding
obligation of the Surviving Borrowers or its Subsidiary party thereto,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar state
or federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies;
(c) Merger of Subsidiaries.
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(i) Pursuant to an Agreement and Plan of Merger dated December 31,
2000, ImageMax of Arizona, Inc., and Ammcorp Acquisition Corp., together with
ImageMax of South Carolina, Inc., and ImageMax of Tennessee, Inc., all
Pennsylvania subsidiary corporations,
(4)
merged into and with ImageMax, Inc., a Pennsylvania corporation, and pursuant to
which ImageMax, Inc., became with sole surviving corporation;
(ii) Pursuant to an Agreement and Plan of Merger dated December
31, 2000, ImageMax of Indiana, Inc., an Indiana subsidiary corporation, merged
into and with ImageMax, Inc., a Pennsylvania parent corporation, and pursuant to
which ImageMax, Inc., became with sole surviving corporation.
(iii) Pursuant to an Agreement and Plan of Merger dated December
31, 2000, ImageMax of Virginia, Inc., a Virginia subsidiary corporation, merged
into and with ImageMax, Inc., a Pennsylvania parent corporation, and pursuant to
which ImageMax, Inc., became with sole surviving corporation.
(iv) Pursuant to an Agreement and Plan of Merger dated December
31, 2000, ImageMax of Ohio, Inc., an Ohio subsidiary corporation, merged into
and with ImageMax, Inc., a Pennsylvania parent corporation, and pursuant to
which ImageMax, Inc., became with sole surviving corporation.
(v) Attached hereto and made a part hereof as Schedule 7 are
true, correct and complete copies of such Agreements and Plans of Merger,
together with the respective Articles of Merger each as filed with the Secretary
of State of the Commonwealth of Pennsylvania, and where applicable the states of
incorporation of the merged subsidiaries.
(d) Compliance. The execution, delivery and performance by the
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Surviving Borrowers and their respective Subsidiaries of this Second Amendment
does not and will not, by the passage of time, the giving of notice or
otherwise; (i) require any Governmental Approval or violate any Applicable Law
relating to such Borrower or any of such Borrower's Subsidiaries; (ii) conflict
with, result in a breach of or constitute a default under the articles of
incorporation, bylaws or other organizational documents of such Borrower or any
of such Borrower's Subsidiaries or any indenture, agreement or other instrument
to which such Person is a party or by which any of its properties may be bound
or any Governmental Approval relating to such Person; or (iii) result in or
require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by such Person other than Liens arising
under the Loan Documents; and
(e) Ratification. Each and all of the other representations and
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warranties made by any of the Surviving Borrowers, or any of their respective
Subsidiaries, to the Agent or the Lenders, whether in the Loan Documents or
otherwise are herby ratified and confirmed in full as if republished herein as
of the date hereof.
8. Miscellaneous.
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(a) Counterparts. This Second Amendment may be executed in any
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number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
(5)
(b) Headings. Headings and titles to Sections under this Second
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Amendment are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(c) One Agreement. This Second Amendment, together with the Credit
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Agreement and that certain letter agreement dated March 29, 2001 by and between
the Surviving Borrowers and the Agent, shall constitute one and the same
agreement by and among the parties hereto and thereto and reflects the entire
understanding of the parties with respect to the subject matter thereof, as
corrected and amended hereby.
(d) Pennsylvania Law. The provisions of this Second Amendment shall
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be construed in accordance with the laws of the Commonwealth of Pennsylvania
with respect to contracts to be executed and performed within the Commonwealth
of Pennsylvania.
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties
hereto have caused this Second Amendment to be executed under seal by their duly
authorized officers, all as of the day and year first written above.
IMAGEMAX, INC.
IMAGEMAX OF DELAWARE, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Chief Financial Officer of
ImageMax, Inc., and Treasurer of ImageMAX
of Delaware, Inc.
COMMERCE BANK, NA,
as Agent and Lender
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, Senior Vice Pres.
FIRSTRUST BANK, as Lender
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, Vice President
(6)
