AMENDMENT ▇▇. ▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇▇▇, dated as of November 30, 1998 (this
"Amendment"), to the Credit Agreement, dated as of March 24, 1998 (as amended,
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supplemented or otherwise modified prior to the date hereof, the "Credit
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Agreement"), among UNIDIGITAL INC., a Delaware corporation (the "Borrower"), the
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various lenders from time to time a party thereto (the "Lenders"), CANADIAN
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IMPERIAL BANK OF COMMERCE, as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders and CANADIAN IMPERIAL BANK OF COMMERCE
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(in such capacity, the "Issuing Lender.").
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RECITALS
The Borrower has advised the Administrative Agent and the Lenders that it
will acquire (the "SuperGraphics Acquisition") all of the issued and outstanding
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shares of SuperGraphics Holding Company, Inc., a Delaware corporation
("SuperGraphics"), pursuant to the Agreement for Purchase and Sale of Stock,
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dated as of November 16, 1998 (as amended, supplemented or otherwise modified as
permitted by the Credit Agreement as amended hereby, the "SuperGraphics
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Acquisition Agreement"), among the Borrower, SuperGraphics, SuperGraphics OpCo
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(as defined below), and all the stockholders of SuperGraphics parties thereto.
The Borrower has further advised the Administrative Agent that SuperGraphics
Corporation, a California corporation ("SuperGraphics OpCo") is the wholly-owned
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subsidiary of SuperGraphics and the operating entity of the business conducted
thereby. The Borrower has further advised the Administrative Agent that it
intends to use borrowings under the Term Loan Commitments (as increased hereby)
to finance the SuperGraphics Acquisition and the payment of fees and expenses
incurred in connection therewith. In connection with the SuperGraphics
Acquisition and the borrowings referenced above, the Borrower has requested the
Administrative Agent and the Lenders to agree to amend and waive certain
provisions of the Credit Agreement as set forth in this Amendment. The
Administrative Agent and the Lenders parties hereto are willing to agree to such
amendments and waivers, but only on the terms and subject to the conditions set
forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower and the Administrative Agent and the Lenders parties
hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
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Credit Agreement are used herein as therein defined including, in Section 3, as
defined in the Credit Agreement as amended by this Amendment.
2. Amendments.
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(a) Section 1.1 of the Credit Agreement is hereby amended by adding the
following new definitions thereto in the appropriate alphabetical order:
"Amendment No. 3 and Waiver": Amendment No. 3 and Waiver, dated as of
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November 30, 1998, to the Credit Agreement.
"Consolidated Funded Debt": as of any date, the sum of all aggregate
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indebtedness of the Borrower and its Subsidiaries of the types set forth in
clauses (a), other than, to the extent included therein, the Senior
Subordinated Obligations, (b), (c), (d), (e) and (g) of Indebtedness,
determined on a consolidated basis in accordance with GAAP, including, in
any event, the Term Loans, the Acquisition Loans, Revolving Credit Loans
and any purchase money Indebtedness.
"Initial Term Loan": as to any Lender, the term loan made by such
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Lender on the Closing Date pursuant to the Initial Term Loan Commitment of
such Lender.
"Initial Term Loan Commitment": as to any Lender, its obligation to
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make a Term Loan to the Borrower on the Closing Date pursuant to Section
2.1(a) in the amount set forth opposite such Lender's name on Schedule 1.0
under the caption "Initial Term Loan".
"Second Supplemental Closing Date": the date on which the conditions
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precedent to the effectiveness of Amendment No. 3 set forth in Section 4 of
Amendment No. 3 shall have been satisfied.
"Second Supplemental Fee Letter": that certain Fee Letter, dated
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November 30, 1998, among CIBC, and the Borrower, as amended, supplemented
or otherwise modified from time to time.
"Securities Purchase Agreement": the Securities Purchase Agreement,
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dated as of November 30, 1998, among the Borrower, the guarantors parties
thereto and CIBC Wood Gundy Capital Corp., as purchaser, as the same may be
amended, supplemented or otherwise modified from time to time as permitted
under Section 10.11.
"Senior Subordinated Obligation": the Indebtedness evidenced by the
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Senior Subordinated Increasing Rate Notes.
"Senior Subordinated Obligation Documents": collectively, the
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Securities Purchase Agreement, the Senior Subordinated Increasing Rate
Notes, the other documents listed in Schedule 1.1 to this Amendment No. 3
and Waiver, and any other documents executed in connection with the
SuperGraphics Acquisition.
"Senior Subordinated Increasing Rate Notes": the Borrower's 12.5%
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Senior Subordinated Increasing Rate Notes issued pursuant to the Securities
Purchase
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Agreement in an original aggregate amount of $10,000,000.00, with interest
to be paid in cash except in the cases provided for in Section 2.05(c)(i)
of the Securities Purchase Agreement.
"SuperGraphics": SuperGraphics Holding Company, Inc.
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"SuperGraphics Acquisition": the purchase by the Borrower of all of
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the issued and outstanding Capital Stock of SuperGraphics pursuant to the
SuperGraphics Acquisition Documents.
"Supplemental Fee Letter": that certain Fee Letter, dated October 30,
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1998, among CIBC, and the Borrower, as amended, supplemented or otherwise
modified from time to time.
"Supplemental Term Loan": as to any Lender, the term loan made by such
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Lender on the Second Closing Date pursuant to the Supplemental Term Loan
Commitment of such Lender.
"Supplemental Term Loan Commitment": as to any Lender, its obligation
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to make a Supplemental Term Loan to the Borrower pursuant to Section 2.1(b)
in the amount set forth opposite such Lender's name on Schedule 1.0 under
the caption "Supplemental Term Loan".
"Supplemental Term Note Endorsement": with respect to the Term Note of
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each Lender, the promissory note endorsement made by the Borrower,
substantially in the form of Exhibit A to Amendment No. 3, modifying the
Term Note of such Lender (as in effect prior to the Second Supplemental
Closing Date) to take account of the Supplemental Term Loan of such Lender.
(b) Section 1.1 of the Credit Agreement is hereby amended by amending the
following definitions in their entirety to read as follows:
"Consolidated EBITDA": for any period, the sum, for the Borrower and
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its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), for such period of (a) Consolidated Net Income for
such period, (b) the sum of provisions for such period for income taxes,
interest expense, and depreciation and amortization expense used in
determining such Consolidated Net Income, (c) amounts deducted in such
period in respect of non-cash expenses in accordance with GAAP, (d)
non-capitalized transaction costs deducted in such period in connection
with the Kwik Acquisition, the Mega Art Acquisition, the ▇▇▇▇▇▇
Acquisition, the SuperGraphics Acquisition and any Permitted Acquisitions
and the financings relating thereto, (e) the amount of any aggregate net
loss (or minus the amount of any gain) during such period arising from the
sale, exchange or other disposition of capital assets, (f) non-cash
expenses deducted in such period in connection with any earn-out
agreements, stock appreciation rights, "phantom" stock plans, employment
agreements, non-competition agreements, subscription and stockholders
agreements and other
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incentive and bonus plans and similar arrangements made in connection with
acquisitions of Persons or businesses by the Borrower or its Subsidiaries
or the retention of executives, officers or employees by the Borrower or
its Subsidiaries, including (but without duplication) any Person that has
become a Subsidiary during such specified period, on a pro forma basis as
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if such acquisition had occurred on the first day of such period plus other
non-recurring, non-operating expenses as shall have been approved by the
Administrative Agent as exclusions from the determination of Consolidated
EBITDA; provided, that Consolidated EBITDA shall in any event exclude, from
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and after the Closing Date, (x) the effect of any write-up of the assets of
Kwik, Mega Art, ▇▇▇▇▇▇, SuperGraphics or any of its Subsidiaries or any
other assets acquired in any Permitted Acquisitions and (y) the amount of
any non-cash income recognized during any period for which Consolidated
EBITDA is determined.
"Term Loans": collectively, the Initial Term Loans and the
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Supplemental Term Loans.
"Term Loan Commitment": as to any Lender, collectively, such Lender's
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Initial Term Loan Commitment and Supplemental Term Loan Commitment.
(c) Section 1.1 of the Credit Agreement is hereby amended by inserting, at
the end of the definition of "Consolidated Fixed Charges" immediately before the
period, the following new proviso:
"; provided, that, in calculating the amounts set forth in clauses (i)
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and (ii) of this definition the Senior Subordinated Obligation shall
be disregarded, unless the Borrower has exceeded the covenant level
stated therein."
(d) Section 2.1 of the Credit Agreement as heretofore amended is hereby
amended by deleting such Section in its entirety and substituting in lieu
thereof a new Section 2.1 to read as follows:
"2.1 Term Loan Commitments. (a) Each Lender made a term loan (an
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"Initial Term Loan") to the Borrower on the Closing Date in an amount equal
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to the amount of the Initial Term Loan Commitment of such Lender.
(b) Subject to the terms and conditions hereof, each Lender
severally agrees to make a term loan (a "Supplemental Term Loan") to the
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Borrower on the Second Supplemental Closing Date in an amount not to
exceed the amount of the Supplemental Term Loan Commitment of such Lender
then in effect; provided, that the Supplemental Term Loan Commitments
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shall terminate at 3:00 p.m., New York City time, on November 25, 1998, if
the Supplemental Term Loans have not been made prior to that time.
(c) The Term Loans may from time to time be (i) Eurodollar Loans, (ii)
Base Rate Loans or (ii) a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with
Sections 2.5 and 5.2."
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(e) Section 2.2 of the Credit Agreement as heretofore amended is
hereby amended by deleting the parenthetical phrase "(a "Term Note")" and
substituting in lieu thereof the phrase "(as supplemented by a Supplemental
Term Note Endorsement, a "Term Note")".
(f) Section 2.3 of the Credit Agreement as heretofore amended is
hereby amended by deleting such Section in its entirety and substituting in
lieu thereof a new Section 2.3 to read as follows:
"2.3 Procedure for Borrowing. The Borrower shall give the
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Administrative Agent irrevocable written notice substantially in the
form attached hereto as Exhibit A-4 (which notice must be received by
the Administrative Agent prior to 10:00 a.m., New York City time) (a)
three Business Days prior to the Closing Date or the Supplemental
Closing Date, as applicable, if all or any part of the Term Loans to
be made on such date are to be initially Eurodollar Loans or (b) one
Business Day prior to the Closing Date or the Supplemental Closing
Date, as applicable, otherwise requesting that the Lenders make
Initial Term Loans on the Closing Date or Supplemental Term Loans on
the Supplemental Closing Date, as applicable, and specifying (i) the
Closing Date or the Supplemental Closing Date, as applicable, (ii) the
amount to be borrowed, (iii) whether the Term Loans to be made on such
date are to be initially Eurodollar Loans, Base Rate Loans or a
combination thereof and (iv) if the Term Loans to be made on such date
are to be entirely or partly Eurodollar Loans, the respective amounts
of each such Type of Loan and the respective lengths of the initial
Interest Periods therefor. Upon receipt of such notice the
Administrative Agent shall promptly notify each Lender thereof. Not
later than 11:00 a.m. on the Closing Date or the Supplemental Closing
Date, as applicable, each Lender shall make available to the
Administrative Agent at its office specified in Section 13.2 the
amount of such Lender's pro rata share of such borrowing in
immediately available funds. The Administrative Agent shall on such
date credit the account of the Borrower on the books of such office of
the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds
as received by the Administrative Agent."
(g) Section 6.5 of the Credit Agreement is hereby amended by adding,
at the end of clause (d) thereof, the following new sentence:
"Any portion of such Net Proceeds not so applied to the repair,
rebuilding or replacement of such property within such time shall
immediately be applied to the prepayment of the Loans and the
reduction of the Commitments as provided in Section 6.5(b)."
(h) Section 10.2(i) of the Credit Agreement is hereby amended by
amending such section in its entirety to read as follows:
"(i) (A) the Senior Subordinated Debt, and (B) other Indebtedness
in an amount and having terms approved by the Required Lenders which
is subordinated on terms approved by the Required Lenders in each case
in their sole discretion; and".
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(i) Section 10 of the Credit Agreement is hereby amended by adding at
the end thereof the following new Section 10.21:
"10.21 Certain Fees. Pay any portion of the fee payable pursuant
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to the "Fee Letter", as defined in the Securities Purchase Agreement,
unless, at the time of such payment (and after giving effect thereto),
the Borrower would not be required pursuant to Section 2.05(c)(ii) of
the Securities Purchase Agreement to pay interest on the Senior
Subordinated Increasing Rate Notes in "PIK Notes", as defined in the
Securities Purchase Agreement; provided, however, that if payment of
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such fee on the scheduled payment date therefor under such Fee Letter
was prohibited pursuant to this Section 10.21, and if on any
subsequent Cash Interest Payment Date, as defined in the Securities
Purchase Agreement, the Borrower would not be so required pursuant to
Section 2.05(c)(ii) of the Securities Purchase Agreement to pay
interest on the Senior Subordinated Increasing Rate Notes in such PIK
Notes, then such fee (together with interest thereon pursuant to such
Fee Letter) may be paid on such subsequent Cash Interest Payment
Date."
(j) Section 11 of the Credit Agreement is hereby amended by (i) adding
at the end of subsection (l) thereof the word "or", and (ii) adding
immediately following subsection (l) thereof the following new subsection
(m):
"(m) Any "Change of Control", as defined in the Securities
Purchase Agreement, shall have occurred;".
(k) The Credit Agreement is hereby amended by (i) deleting Schedules
1.0 and 2.2 to the Credit Agreement and substituting in lieu thereof
Schedules 1.0 and 2.2 to this Amendment, and (ii) supplementing Schedules
7.2, 7.6, 7.15, 7.16, 7.18, 7.19, 7.22, 10.2(b), 10.3 and 10.4 by adding to
such Schedules the material set forth on Schedules 7.2, 7.6, 7.15, 7.16,
7.18, 7.19, 7.22, 10.2(b), 10.3 and 10.4 to this Amendment.
3. Waiver. Each of the Administrative Agent and the Lenders hereby waives,
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solely for the purposes of making Supplemental Term Loans on the date hereof for
the financing the SuperGraphics Acquisition during the 1998 Fiscal Year, any
failure of the capital expenditures made by the Borrower during the fiscal year
of the Borrower ended August 31, 1998 to be less than or equal to the amount set
forth for such fiscal year in Section 10.9 of the Credit Agreement; provided
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that this waiver is granted on the condition that the actual amount of such
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capital expenditures for such fiscal year do not exceed $3,400,000.
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4. Effectiveness. The effectiveness of this Amendment and Waiver, and the
obligation of the Lenders to make their Supplemental Term Loans, is subject to
the satisfaction of the following conditions precedent (the date of such
satisfaction being herein referred to as the "Supplemental Closing Date"):
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(a) Amendment Documents. The Administrative Agent shall have received:
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(i) this Amendment, executed and delivered by a duly authorized
officer of the Borrower and each Subsidiary of the Borrower party to
the Subsidiaries Guarantee, with a counterpart for each Lender,
(ii) for the account of each Lender having a Term Loan Commitment
to be increased hereunder, a Supplemental Term Note Endorsement of the
Borrower conforming to the requirements hereof and executed by a duly
authorized officer of the Borrower,
(iii) a supplement to the Borrower Pledge Agreement,
substantially in the form of Exhibit B to this Amendment (the "Pledge
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Agreement Supplement"), executed and delivered by a duly authorized
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officer of the Borrower, with a counterpart or a conformed copy for
each Lender,
(iv) a Pledge Agreement, substantially in the form of Exhibit G
to this Amendment (the "SuperGraphics Pledge Agreement") executed and
delivered by a duly authorized officer of SuperGraphics, with a
counterpart or conformed copy for each Lender,
(v) a Supplement to the Subsidiaries Guarantee, substantially in
the form of Exhibit C to this Amendment, executed and delivered by a
duly authorized officer of SuperGraphics, with a counterpart or a
conformed copy for each Lender, and
(vi) a Supplement to the Security Agreement, substantially in the
form of Exhibit D to this Amendment, executed and delivered by a duly
authorized officer of SuperGraphics, with a counterpart or a conformed
copy for each Lender.
Collectively, the documents referenced in clauses (i) through (vi) of
this Section 4(a) are referred to herein as the "Amendment Documents".
(b) Related Agreements. The Administrative Agent shall have received,
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with a copy for each Lender, true and correct copies, certified as to
authenticity by the Borrower, of each SuperGraphics Acquisition Document,
each Senior Subordinated Obligation Document and such other documents or
instruments as may be reasonably requested by the Administrative Agent,
including, without limitation, a copy of any debt instrument, security
agreement or other material contract to which SuperGraphics may be a party.
Each of the parties to the SuperGraphics Acquisition Documents (other
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than the Loan Parties) shall have consented to the grant of a security
interest in, and the assignment of, Loan Parties' interests in the
SuperGraphics Acquisition Documents pursuant to the Security Agreements, in
a manner in form and substance satisfactory to the Administrative Agent.
(c) Concurrent Transaction. (i) The Senior Subordinated Increasing
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Rate Notes shall have been issued and sold in accordance with the
requirements of the Securities Purchase Agreement and the other Senior
Subordinated Debt Documents (without any amendment, waiver of other
modification thereof without the consent of the Required Lenders), and the
Borrower shall have received not less than $10,000,000 aggregate cash
proceeds from such issuance and sale of the Senior Subordinated Increasing
Rate Notes.
(ii) The SuperGraphics Acquisition shall have been or, concurrently
with the making of the Supplemental Term Loans shall be, consummated in
accordance with the terms of the SuperGraphics Acquisition Documents, for
such total consideration (including fees) as set forth in the SuperGraphics
Acquisition Documents, in each case without any amendment, modification or
waiver thereof except with the consent of the Required Lenders, and the
Administrative Agent shall have received evidence satisfactory to it to
that effect. The Administrative Agent shall have received evidence
satisfactory to it that the aggregate amount of fees and expenses incurred
by the Borrower and the other Loan Parties in connection with the
SuperGraphics Acquisition shall not exceed $2,000,000.
(d) Borrowing Certificates. The Administrative Agent shall have
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received, with a counterpart for each Lender, (i) a certificate, signed by
a responsible officer of each of the Borrower and SuperGraphics
substantially in the form of Exhibit E to this Amendment, with appropriate
insertions and attachments, satisfactory in form and substance to the
Administrative Agent, and (ii) a certificate, signed by a responsible
officer of each of the Borrower and SuperGraphics, certifying to the
Administrative Agent and the Lenders that each of the representations and
warranties contained in the Senior Subordinated Obligation Documents are
true and correct in all material respects as of such date.
(e) Proceedings of the Borrower. The Administrative Agent shall have
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received, with a counterpart for each Lender, a copy of the resolutions, in
form and substance satisfactory to the Administrative Agent, of the
Borrower authorizing (i) the execution, delivery and performance of this
Amendment and the other Amendment Documents to which it is a party, (ii)
the borrowings contemplated hereunder and thereunder, and under the Loan
Documents as amended thereby, and (iii) the granting by it of the Liens
created pursuant to the Pledge Agreement Supplement, certified by the
Secretary or an Assistant Secretary of the Borrower as of the Supplemental
Closing Date, which certificate shall be in form and substance satisfactory
to the Administrative Agent and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded. Such
resolutions may be included as attachments to the
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Borrowing Certificate delivered by the Borrower pursuant to Section 4(d) of
this Amendment.
(f) Borrower Incumbency Certificate. The Administrative Agent shall
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have received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Supplemental Closing Date, as to the incumbency and
signature of the officers of the Borrower executing this Amendment or the
other Amendment Documents to which the Borrower is a party, satisfactory in
form and substance to the Administrative Agent, executed by the President
or any Vice President and the Secretary or any Assistant Secretary of the
Borrower. Such incumbency certificate may be included in the Borrowing
Certificate delivered by the Borrower pursuant to Section 4(d) of this
Amendment.
(g) Proceedings of SuperGraphics. The Administrative Agent shall have
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received, with a counterpart for each Lender, a copy of the resolutions, in
form and substance satisfactory to the Administrative Agent, of the Board
of Directors of SuperGraphics authorizing (i) the execution, delivery and
performance of the Amendment Documents to which it is or will become a
party pursuant to this Amendment, and (ii) the granting by it of the Liens
created pursuant to the Subsidiaries Security Agreement, certified by the
Secretary or an Assistant Secretary of SuperGraphics as of the Supplemental
Closing Date, which certificate shall be in form and substance satisfactory
to the Administrative Agent and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded. Such
resolutions may be included as attachments to the Borrowing Certificate
delivered by SuperGraphics pursuant to Section 4(d) of this Amendment.
(h) SuperGraphics Incumbency Certificate. The Administrative Agent
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shall have received, with a counterpart for each Lender, a certificate of
SuperGraphics, dated the Supplemental Closing Date, as to the incumbency
and signature of the officers of SuperGraphics executing the Amendment
Documents to which it is a party, satisfactory in form and substance to the
Administrative Agent, executed by the President or any Vice President and
the Secretary or any Assistant Secretary of SuperGraphics. Such incumbency
certificate may be included in the Borrowing Certificate delivered by
SuperGraphics pursuant to Section 4(d) of this Amendment.
(i) Governing Documents of SuperGraphics. The Administrative Agent
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shall have received, with a counterpart for each Lender, true and complete
copies of the certificate of incorporation, by-laws or other constituent
documents of SuperGraphics, certified as of the Supplemental Closing Date
as complete and correct copies thereof by the Secretary or an Assistant
Secretary of SuperGraphics.
(j) Good Standing Certificates. The Administrative Agent shall have
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received, with a copy for each Lender, certificates dated as of a recent
date from the Secretary of State or other appropriate authority, evidencing
the good standing of SuperGraphics (i) in the jurisdiction of its
organization and (ii) in each other
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jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires it to qualify as a foreign Person except,
as to this subclause (ii), where the failure to so qualify could not
reasonably be expected to have a Material Adverse Effect.
(k) Consents, Licenses and Approvals. The Administrative Agent shall
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have received, with a counterpart for each Lender, a certificate of a
Responsible Officer of SuperGraphics (i) attaching copies of any consents,
authorizations and filings referred to in Section 7.4 of the Credit
Agreement (as amended hereby) relative to SuperGraphics, and (ii) stating
that such consents, licenses and filings are in full force and effect, and
each such consent, authorization and filing shall be in form and substance
satisfactory to the Administrative Agent.
(l) Fees. The Administrative Agent shall have received the fees to be
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received on the Supplemental Closing Date referred to in the Second
Supplemental Fee Letter.
(m) Legal Opinions. The Administrative Agent shall have received, with
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a counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Professional
Corporation, counsel to the Borrower and the other Loan Parties,
substantially in the form of Exhibit F-1 to this Amendment;
(ii) the executed legal opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇, counsel
to the Borrower and the Loan Parties in the State of California,
substantially in the form of Exhibit F-2 to this Amendment.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Amendment as the Administrative Agent may
reasonably require.
(n) Pledged Stock. The Administrative Agent shall have received all
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certificates, if any, representing the Capital Stock pledged pursuant to
Pledge Agreement Supplement, together with an undated stock power for each
such certificate executed in blank by a duly authorized officer of the
Borrower. SuperGraphics shall have delivered an acknowledgment of and
consent to such Pledge Agreement Supplement, executed by a duly authorized
officer of SuperGraphics, in substantially the form appended to such Pledge
Agreement Supplement.
(o) Actions to Perfect Liens. The Administrative Agent shall have
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received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other actions, including, without
limitation, the filing of duly executed financing statements on form UCC-1,
necessary or, in the opinion of the Administrative Agent, desirable to
perfect the Liens created by the Security Documents shall have been
completed.
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(p) Lien Searches. The Administrative Agent shall have received the
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results of a recent search by a Person satisfactory to the Administrative
Agent, of the Uniform Commercial Code, judgment and tax lien filings which
may have been filed with respect to personal property of SuperGraphics, and
the results of such search shall be satisfactory to the Administrative
Agent.
(q) Insurance. The Administrative Agent shall have received evidence
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in form and substance satisfactory to it that all of the requirements of
Section 9.5 of the Credit Agreement shall have been satisfied with respect
to SuperGraphics.
(r) Representations and Warranties. Each of the representations and
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warranties made by the Borrower and the other Loan Parties in or pursuant
to the Loan Documents shall be true and correct in all material respects on
and as of the Supplemental Closing Date as if made on and as of
Supplemental Closing Date (and after giving effect to the amendments
provided for in this Amendment) (or, if any such representation or warranty
is expressly stated to have been made as of a specific date, as of such
specific date).
(s) No Default. No Default or Event of Default shall have occurred and
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be continuing on the Supplemental Closing Date or after giving effect to
the amendments provided for in this Amendment or the Loans to be made on
such date.
(t) Additional Matters. All corporate and other proceedings, and all
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documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement, the other Loan Documents and
the Acquisition Documents shall be satisfactory in form and substance to
the Administrative Agent, and the Administrative Agent shall have received
such other documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it shall
reasonably request.
5. Representations and Warranties. To induce the Administrative Agent and
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the Lenders to enter into this Amendment, the Borrower hereby represents and
warrants to the Administrative Agent and the Lenders that, after giving effect
to the amendments provided for herein and the additional Loans contemplated
hereby, the representations and warranties contained in the Credit Agreement and
the other Loan Documents will be true and correct in all material respects as if
made on and as of the date hereof and that no Default or Event of Default will
have occurred and be continuing (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific
date).
6. No Other Amendments. Except as expressly amended hereby, the Credit
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Agreement, the Notes and the other Loan Documents shall remain in full force and
effect in accordance with their respective terms, without any waiver, amendment
or modification of any provision thereof.
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7. Counterparts. This Amendment may be executed by one or more of the
------------
parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
8. Expenses. The Borrower agrees to pay and reimburse the Administrative
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Agent for all of the out-of-pocket costs and expenses incurred by the
Administrative Agent in connection with the preparation, execution and delivery
of this Amendment, including, without limitation, the reasonable fees and
disbursements of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to the Administrative
Agent.
9. Applicable Law. THIS AMENDMENT AND WAIVER SHALL BE GOVERNED BY, AND
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CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
UNIDIGITAL INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Chief Executive Officer
CANADIAN IMPERIAL BANK
OF COMMERCE
as Administrative Agent and a Lender
By:/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Director
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp., as agent
MARINE MIDLAND BANK
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
By:
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Name:
Title:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
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Name:
Title:
By:
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Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ BUSINESS FINANCIAL
SERVICES, INC.
By:/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The undersigned guarantors hereby consent and agree to the foregoing
Amendment:
UNIDIGITAL ELEMENTS (NY), INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Chief Executive Officer
UNIDIGITAL ELEMENTS (SF), INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Chief Executive Officer
UNISON (NY), INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Chief Executive Officer
UNISON (MA), INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Chief Executive Officer
MEGA ART CORP.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Chief Executive Officer