FIRST AMENDMENT AND WAIVER
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TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT (this "First
Amendment") is made and entered into as of the 14th day of February, 2000, by
and among GLOBAL IMAGING SYSTEMS, INC., a corporation organized under the laws
of Delaware (the "Company"), the Material Subsidiaries of the Company listed on
the signature pages hereto (together with the Company, the "Borrowers"), the
Lenders party to the Credit Agreement referred to below (the "Lenders"), FIRST
UNION NATIONAL BANK, as Administrative Agent for the Lenders (the
"Administrative Agent"), KEY CORPORATE CAPITAL, INC., as Syndication Agent for
the Lenders (the "Syndication Agent"), and SCOTIABANC INC., as Documentation
Agent for the Lenders (the "Documentation Agent")
Statement of Purpose
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The Lenders agreed to extend certain credit facilities to the Borrowers
pursuant to the Amended and Restated Credit Agreement dated as of June 23, 1999
by and among the Borrowers, the Lenders, the Administrative Agent, the
Syndication Agent and the Documentation Agent (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement").
The parties now desire to amend certain provisions of the Credit Agreement
in certain respects and waive certain provisions of the Credit Agreement in
certain respects, all on the terms and conditions set forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Capitalized Terms. All capitalized undefined terms used in this First
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Amendment shall have the meanings assigned thereto in the Credit Agreement.
2. Modification of Certain Provisions of the Credit Agreement. The Credit
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Agreement is hereby modified as follows:
(a) Amendment to Existing Definitions. The definitions of the quoted terms
---------------------------------
set forth below which are set out in Section 1.1 of the Credit Agreement are
hereby amended in their entirety to read as follows:
"Post-Closing Vendor-Provided Financing" means all existing
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Vendor-Provided Financing and all other existing trade payable of any
Borrower or Borrowers (other than the Closing Date Vendor-Provided
Financing) (i) which is secured by a Lien which covers assets of the
applicable Borrower or Borrowers other than or in addition to the property
and related receivables financed by such trade payable and (ii) with
respect to which the corresponding Lien shall be released or modified
pursuant to Section 6.4(b)(ii). The Post-Closing Vendor-Provided Financing
is set forth on Schedule 6.4(b)(ii) attached hereto.
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(b) Additional Defined Terms. Section 1.1 of the Credit Agreement is
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hereby amended by the addition of the following definitions:
"VPF Customer" means any Borrower which is party to any Vendor-
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Provided Financing arrangement.
"VPF Intercompany Note" means any intercompany note which is payable
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by a VPF Customer to a VPF Intercompany Noteholder.
"VPF Intercompany Noteholder" means any Borrower which is the payee
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under a VPF Intercompany Note.
"VPF Intercompany Subordination Agreement" means any intercompany
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subordination agreement which is executed by the applicable VPF
Intercompany Noteholder in favor of the applicable VPF Provider pursuant to
which payments by the applicable VPF Customer to the applicable VPF
Intercompany Noteholder on or under the applicable VPF Intercompany Note
shall be subordinated to certain senior indebtedness, including, without
limitation, the applicable Vendor-Provided Financing and the Obligations.
"VPF Provider" means any vendor or a third party financial institution
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or "aggregator" which has extended Vendor-Provided Financing to a VPF
Customer.
(c) Amendment to Section 6.4(b)(ii). Subsection (b)(ii) of Section 6.4 of
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the Credit Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
(ii) Post-Closing Vendor-Provided Financing. No later than February
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15, 2000, with respect to each Post-Closing Vendor-Provided Financing, (A)
(1) an Aggregator Letter of Credit shall have been issued to secure such
Post-Closing Vendor-Provided Financing and (2) the Borrowers shall have
delivered to the Administrative Agent UCC termination statements and other
applicable release documents, in form and substance satisfactory thereto,
with respect to all Liens securing such Post-Closing Vendor-Provided
Financing, (B) the Borrowers shall have delivered to the Administrative
Agent an intercreditor agreement, in form and substance satisfactory to the
Administrative Agent, with each applicable financial institution which has
provided such Post-Closing Vendor-Provided Financing or (C) the Borrowers
shall have delivered to the Administrative Agent a modification to the
security documents of each applicable financial institution which has
provided such Post-Closing Vendor-Provided Financing, which modification
shall limit the collateral security for such Post-Closing Vendor-Provided
Financing to the property and related receivables financed thereby and
which modification shall be in form and substance satisfactory to the
Administrative Agent (provided that that the applicable Borrower or
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Subsidiary thereof may enter into a VPF Intercompany Subordination
Agreement in connection with this clause (C) if, and only if, such VPF
Intercompany Subordination Agreement (i) provides that the ability of the
applicable VPF Customer to make dividends, advances or other distributions
of any kind
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whatsoever to the applicable VPF Intercompany Noteholder or any other
Borrower or Subsidiary thereof (other than, to the extent that the
applicable VPF Intercompany Subordination Agreement is in effect, payments
by the applicable VPF Customer to the applicable VPF Noteholder on or under
the applicable VPF Intercompany Note) shall not be restricted or otherwise
limited, and (ii) is in form and substance satisfactory to the
Administrative Agent).
(d) Amendment to Section 9.14. Section 9.14 of the Credit Agreement is
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hereby deleted in its entirety and the following is substituted in lieu thereof:
SECTION 9.14. Vendor-Provided Financing. Within sixty (60) days of
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the creation, incurrence or assumption of any Vendor-Provided Financing or
any other trade payable which is secured by a Lien which covers assets of
any applicable Borrower or any Subsidiary thereof other than or in addition
to the property and related receivables financed by such financing or trade
payable, in each case which Lien is not permitted by clause (x) of Section
11.3(h)(iv), (i) (A) an Aggregator Letter of Credit shall be issued to
secure such financing or trade payable and (B) the applicable Borrower or
Subsidiary thereof shall deliver to the Administrative Agent UCC
termination statements and other applicable release documents, in form and
substance satisfactory to the Administrative Agent, with respect to all
Liens securing such financing or trade payable, (ii) the applicable
Borrower or Subsidiary thereof shall deliver to the Administrative Agent an
intercreditor agreement, in form and substance satisfactory to the
Administrative Agent, with each applicable financial institution which has
provided such financing or trade payable or (iii) the applicable Borrower
or Subsidiary thereof shall deliver to the Administrative Agent a
modification to the security documents of each applicable financial
institution which has provided such financing or trade payable, which
modification shall limit the collateral security for such financing or
trade payable to the property and related receivables financed thereby and
which modification shall be in form and substance satisfactory to the
Administrative Agent (provided that the applicable Borrower or Subsidiary
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thereof may enter into a VPF Intercompany Subordination Agreement in
connection with this clause (iii) if, and only if, such VPF Intercompany
Subordination Agreement (1) provides that the ability of the applicable VPF
Customer to make dividends, advances or other distributions of any kind
whatsoever to the applicable VPF Intercompany Noteholder or any other
Borrower or Subsidiary thereof (other than, to the extent that that
applicable VPF Intercompany Subordination Agreement is in effect, payments
by the applicable VPF Customer to the applicable VPF Noteholder on or under
the applicable VPF Intercompany Note) shall not be restricted or otherwise
limited, and (2) is in form and substance satisfactory to the
Administrative Agent).
(e) Amendment to Section 11.1. The final proviso to Section 11.1 of the
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Credit Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
provided, that none of the Debt permitted to be incurred by this Section
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11.1 (other than (1) the Subordinated Debt of the Company evidenced by the
Existing Subordinated Notes and (2) any intercompany Debt of any Borrower
which is evidenced by a VPF Intercompany Note and in connection with which
a VPF Intercompany Subordination
3
Agreement is executed) shall restrict, limit or otherwise encumber (by
covenant or otherwise) the ability of any Subsidiary of any Borrower to
make any payment to any Borrower or any of its Subsidiaries (in the form of
dividends, intercompany advances or otherwise) for the purpose of enabling
such Borrower to pay the Obligations.
3. Waiver of Certain Events of Default under the Credit Agreement.
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(a) Pursuant to the Waiver Letter dated as of October 28, 1999, Section
6.4(b)(ii) of the Credit Agreement provides that (i) the Borrowers will take
certain actions with respect to the Post-Closing Vendor Provided Financing by
December 6, 1999 and (ii) the failure of the Borrowers to take such actions by
such date shall constitute an immediate Event of Default under the Credit
Agreement and the other Loan Documents. The Borrowers have failed to comply with
the requirements of Section 6.4(b)(ii) as of the date hereof (the "VPF Event of
Default").
(b) Subject to the terms and conditions set forth herein, the Lenders
hereby waive the VPF Event of Default; provided that (i) the Borrowers shall
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comply with the requirements of Section 6.4(b)(ii) (as amended pursuant to
Section 2(b) of this First Amendment) within the time frame provided therein and
(ii) the failure to so comply within the time frame provided therein shall
constitute an immediate Event of Default under the Credit Agreement and the
other Loan Documents.
4. Effect of Amendment and Waiver. Except as expressly amended hereby,
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the Credit Agreement and Loan Documents shall be and remain in full force and
effect. The amendments and waivers granted herein are specific and limited and
shall not constitute a modification, acceptance or waiver of any other provision
of or default under the Credit Agreement, the Loan Documents or any other
document or instrument entered into in connection therewith or a future
modification, acceptance or waiver of the provisions set forth therein (except
to the extent necessary to give effect to the specific waivers and agreements
set forth herein).
5. Representations and Warranties/No Default.
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(a) By its execution hereof, the Borrowers hereby certify that each of the
representations and warranties set forth in the Credit Agreement and the other
Loan Documents is true and correct as of the date hereof as if fully set forth
herein and that no Default or Event of Default has occurred and is continuing as
of the date hereof.
(b) By its execution hereof, the Borrowers hereby represent and warrant
that each Borrower and each Subsidiary thereof has the right, power and
authority and has taken all necessary corporate and other action to authorize
the execution, delivery and performance of this First Amendment and each other
document executed in connection herewith to which it is a party in accordance
with their respective terms.
4
(c) This First Amendment and each other document executed in connection
herewith has been duly executed and delivered by the duly authorized officers of
each Borrower and each Subsidiary thereof party thereto, and each such document
constitutes the legal, valid and binding obligation of each Borrower or each
Subsidiary thereof party thereto, enforceable in accordance with its terms.
6. Expenses. The Borrowers shall pay all reasonable out-of-pocket
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expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this First Amendment, including, without limitation,
the reasonable fees and disbursements of counsel for the Administrative Agent.
7. Governing Law. This First Amendment shall be governed by and construed
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in accordance with the laws of the State of North Carolina, without reference to
the conflicts or choice of law provisions thereof.
8. Counterparts. This First Amendment may be executed in separate
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counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
9. Fax Transmission. A facsimile, telecopy or other reproduction of this
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First Amendment may be executed by one or more parties hereto, and an executed
copy of this First Amendment may be delivered by one or more parties hereto by
facsimile or similar instantaneous electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this First Amendment as well as any facsimile, telecopy
or other reproduction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed as of the date and year first above written.
BORROWERS:
[CORPORATE SEAL] GLOBAL IMAGING SYSTEMS, INC., as Borrower
By:
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: CFO, Senior Vice President, Treasurer
and Secretary
[CORPORATE SEAL] GLOBAL IMAGING OPERATIONS, INC., as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
[CORPORATE SEAL] GLOBAL IMAGING FINANCE
COMPANY, as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: CFO, Vice President, Treasurer and
Secretary
[CORPORATE SEAL] AMERICAN PHOTOCOPY EQUIPMENT COMPANY OF
PITTSBURGH (d/b/a AMCOM Office Systems), as
Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
[CORPORATE SEAL] ▇▇▇▇▇▇, INC., as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
[Signatures Continued On The Following Page]
[CORPORATE SEAL] BUSINESS EQUIPMENT UNLIMITED, as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
[CORPORATE SEAL] CAMERON OFFICE PRODUCTS, INC., as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
[CORPORATE SEAL] CONNECTICUT BUSINESS SYSTEMS, INC., as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
[CORPORATE SEAL] ▇▇▇▇▇▇ OFFICE PRODUCTS, INC., as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Assistant Secretary and
Assistant Treasurer
[CORPORATE SEAL] COPY SERVICE AND SUPPLY, INC., as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
[Signatures Continued On The Following Page]
[CORPORATE SEAL] DUPLICATING SPECIALTIES, INC., as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, CFO, Assistant Secretary
and Treasurer
[CORPORATE SEAL] EASTERN COPY PRODUCTS, INC., as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
[CORPORATE SEAL] ELECTRONIC SYSTEMS, INC., as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
[CORPORATE SEAL] ELECTRONIC SYSTEMS OF RICHMOND, INC., as
Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
GLOBAL OPERATIONS TEXAS, L.P.
(f/k/a FELCO OFFICE SYSTEMS, INC.), as Borrower
[CORPORATE SEAL] By: Global Imaging Systems, Inc.
Its: General Partner
By: _____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: CFO, Senior Vice President,
Treasurer and Secretary
[Signatures Continued On The Following Page]
[CORPORATE SEAL] QUALITY BUSINESS SYSTEMS, INC., as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, CFO, Treasurer and
Assistant Secretary
[CORPORATE SEAL] SOUTHERN BUSINESS COMMUNICATIONS, INC., as
Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
[CORPORATE SEAL] ▇▇▇▇ BUSINESS MACHINES OF GREAT NECK, INC., as
Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
[CORPORATE SEAL] CAPITOL OFFICE SOLUTIONS, INC., as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
[CORPORATE SEAL] DISTINCTIVE BUSINESS PRODUCTS, INC., as
Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
[CORPORATE SEAL] ▇▇▇▇▇ & ASSOCIATES, INC. (f/k/a ▇▇▇▇▇
ACQUISITION, INC.), as Borrower
By:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
[Signatures Continued On The Following Page]
[CORPORATE SEAL] PROVIEW, INC., as Borrower
By:________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
[CORPORATE SEAL] CENTRE BUSINESS PRODUCTS, INC., as Borrower
By:________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
[CORPORATE SEAL] ▇▇▇▇▇▇ COMMUNICATIONS, INC., as Borrower
By:________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
[CORPORATE SEAL] OFFICE TECH INCORPORATED, as Borrower
By:________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
[CORPORATE SEAL] COLUMN OFFICE EQUIPMENT, INC., as Borrower
By:________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
[Signatures Continued On The Following Page]
AGENTS AND LENDERS:
FIRST UNION NATIONAL BANK, as
Administrative Agent and as Lender
By:____________________________________
Name:__________________________________
Title:_________________________________
[Signatures Continued On The Following Page]
KEY CORPORATE CAPITAL INC., as
Syndication Agent and as Lender
By:____________________________________
Name:__________________________________
Title:_________________________________
[Signatures Continued On The Following Page]
SCOTIABANC INC., as Documentation Agent
and as Lender
By:____________________________________
Name:__________________________________
Title:_________________________________
[Signatures Continued On The Following Page]
SUNTRUST BANK, TAMPA BAY, as Lender
By:____________________________________
Name:__________________________________
Title:_________________________________
[Signatures Continued On The Following Page]
LASALLE BANK NATIONAL ASSOCIATION,
as Lender
By:____________________________________
Name:__________________________________
Title:_________________________________
[Signatures Continued On The Following Page]
COMERICA BANK, as Lender
By:____________________________________
Name:__________________________________
Title:_________________________________
[Signatures Continued On The Following Page]
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK, FSB, as Lender
By:____________________________________
Name:__________________________________
Title:_________________________________
[Signatures Continued On The Following Page]
BANK LEUMI LE-ISRAEL B.M., MIAMI
AGENCY, as Lender
By:____________________________________
Name:__________________________________
Title:_________________________________
[Signatures Continued On The Following Page]
BANKBOSTON, N.A., as Lender
By: _______________________
Name:______________________
Title:_____________________
[Signatures Continued On The Following Page]
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇, as Lender
By: _________________________
Name:________________________
Title:_______________________
[Signatures Continued On The Following Page]
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BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC., as Lender
By: _____________________________
Name:____________________________
Title:___________________________
By:______________________________
Name:____________________________
Title:___________________________
[Signatures Continued On The Following Page]
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ PRIME INCOME TRUST, as
Lender
By: ______________________________
Name:_____________________________
Title:____________________________
[Signatures Continued On The Following Page]
22
TORONTO DOMINION (NEW YORK), INC., as Lender
By: _____________________________
Name:____________________________
Title:___________________________
[Signatures Continued On The Following Page]
23
GREAT POINT CLO 1999-1 LTD., as Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
[Signatures Continued On The Following Page]
▇▇▇▇▇▇ FINANCIAL, INC., as Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
[Signatures Continued On The Following Page]
ANTARES CAPITAL CORPORATION, as Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
[Signatures Continued On The Following Page]
CHASE BANK OF TEXAS, as Trustee of the
Antares Funding Trust created under Trust
Agreement dated as of November 30, 1999, as
Lender
By:______________________________________
Name:____________________________________
Title:___________________________________