EXHIBIT 10.5.1
THIRD AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT AND LOAN DOCUMENTS
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THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND LOAN DOCUMENTS (this "Amendment") is made and entered into as of May 8,
1998, by and among GLOBAL IMAGING SYSTEMS INC., a Delaware corporation
("Global"), GLOBAL IMAGING OPERATIONS, INC., a Delaware corporation
("Operations"), GLOBAL IMAGING FINANCE COMPANY, a Delaware corporation
("Finance"), COPY SERVICE & SUPPLY, INC., a North Carolina corporation ("Copy
Service"), OFFICE FURNITURE CONCEPTS, INC., a North Carolina corporation
("Office Concepts"), CSS LEASING, LLC, a North Carolina limited liability
company ("CSS Leasing"), FELCO OFFICE SYSTEMS, INC., a Texas corporation
("Felco"), ▇▇▇▇▇▇, INC., an Alabama corporation ("▇▇▇▇▇▇"), ▇▇▇▇▇▇ OFFICE
PRODUCTS, INC. a New Hampshire corporation ("▇▇▇▇▇▇"), AMERICAN PHOTOCOPY
EQUIPMENT COMPANY OF PITTSBURGH, a Delaware corporation ("AMCOM"), SOUTHERN COPY
SYSTEMS, INC., an Alabama corporation ("Southern Copy"), BUSINESS EQUIPMENT
UNLIMITED, a Maine corporation ("Business Equipment"), CAMERON OFFICE PRODUCTS,
INC., a Massachusetts corporation ("Cameron"), SOUTHERN BUSINESS COMMUNICATIONS,
INC., a Georgia corporation ("Southern Business"), ELECTRONIC SYSTEMS, INC., a
Virginia corporation ("Electronic Systems"), EASTERN COPY PRODUCTS, INC., a New
York corporation ("Eastern Copy"), QUALITY BUSINESS SYSTEMS, INC., a Washington
corporation ("Quality Business"), DUPLICATING SPECIALTIES, INC., an Oregon
corporation ("Duplicating Specialties"), ELECTRONIC SYSTEMS OF RICHMOND, INC., a
Virginia corporation ("ESR"), CONNECTICUT BUSINESS SYSTEMS, INC., a Connecticut
corporation ("CBS"), (Global, Operations, Finance, Copy Service, Office
Concepts, CSS Leasing, Felco, Berney, Conway, AMCOM, Southern Copy, Business
Equipment, Cameron, Southern Business, Electronic Systems, Eastern Copy, Quality
Business, Duplicating Specialties and ESR are each individually and collectively
referred to herein as "Borrower"; ▇▇▇▇▇▇▇ NATIONAL LIFE INSURANCE COMPANY, a
Michigan insurance corporation, ("▇▇▇▇▇▇▇" or "Lender" and collectively with all
other Lenders, if any, the "Lenders") and PPM AMERICA, INC., a Delaware
corporation, as Agent for the Lenders (the "Agent").
PRELIMINARY STATEMENTS
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A. Borrower, Lender and Agent are parties to that Amended and
Restated Credit Agreement, dated as of August 14, 1996 as amended and restated
from time to time and most recently by that certain Second Amendment to Amended
and Restated Credit Agreement and Loan Documents dated as of January 9, 1998
(the "Credit Agreement").
B. Global anticipates consummating an initial public offering of its
shares of common stock on or around May 15, 1998 (the "Offering") pursuant to
the terms and conditions of, and in accordance with, that certain Registration
Statement under the Securities Act of 1933 which was filed on or around March
17, 1998 (the "Registration Statement").
C. In connection with the Offering, Borrower has requested that (a)
certain terms and conditions of the Credit Agreement be modified, amended or
waived in order for the Offering to be in compliance therewith, and (b) Agent
and the Lender consent to the consummation of the Offering.
D. The Borrower, Agent and Lender desire to modify and amend the
Credit Agreement and the Agent and the Lender have agreed to grant the waivers
and/or consents as hereinafter set forth in accordance with the terms herein.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
AGREEMENT
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ARTICLE I
Definitions
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Unless otherwise defined herein, capitalized terms used in this
Amendment are defined in the Credit Agreement, as amended hereby.
ARTICLE II
General Consents
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In connection with the Offering, the Agent and the Lender hereby
consent to: (i) the Offering; (ii) Global's authorization and issuance of common
and preferred stock in connection therewith; and (iii) the use of the name of
the Agent or the Lender in any press releases, filings or other documentation in
connection therewith; provided, however, that any use of the Agent or the
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Lender's name shall be approved by the Agent prior to its release, which
approval shall not be unreasonably withheld.
ARTICLE III
Amendments and/or Waivers to the Credit Agreement
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In connection with, and for purposes of consummating the Offering,
the Credit Agreement is hereby amended and certain provisions thereof are hereby
waived as follows:
3.01 The Agent and the Lender hereby waive the requirement set forth in
the first sentence of Section 1.5(D) that the Borrower prepay the Term Loans
with the entire amount of the net proceeds received from the Offering (the
"Proceeds"). The Borrower shall be permitted to use a portion of the Proceeds
to: (i) redeem its shares of Class A Common Stock in accordance
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with Section 3.05(i)(a) hereof; and (ii) pay any costs, fees and expenses
incurred in connection with the Offering (collectively, the "Permitted
Payments"). All of the remaining Proceeds, after giving effect to the Permitted
Payments (the "Remaining Proceeds"), shall be used to repay the Obligations
within sixty days from the completion of the Offering. It is understood and
agreed that payment of the Remaining Proceeds shall be subject to a Prepayment
Fee which shall be calculated in accordance with Subsection 1.7(A) unless the
Borrower fully and indefeasibly prepays all of the Obligations within sixty days
after the completion of the Offering, in which case the Prepayment Fee shall be
reduced to $250,000 in accordance with 1.7(B)(i).
3.02 The third sentence of Subsection 1.5(D) is deleted in its entirety
and the following is substituted in lieu thereof:
"All such prepayments shall be applied to the Obligations in
the order set forth in subsection 1.5(A)."
3.03 Subsections 1.7(A)(i), (ii), (iii), (iv) and (v) are deleted in
their entirety and the following is substituted in lieu thereof:
"(i) 4.0% of the Second 12 month
prepayment amount period following the
Original Closing Date
(ii) 3.0% of the Third 12 month
prepayment amount period following the
Original Closing Date
(iii) 2.0% of the Fourth 12 month
prepayment amount period following the
Original Closing Date
(iv) 1.0% of the Fifth and Sixth 12
prepayment amount month periods
following the Original
Closing Date"
3.04 Subsection 1.7(B)(i) is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"(i) in the event that Global completes the Offering
and fully and indefeasibly prepays all of the
Obligations within sixty days from completion of the
Offering, then in such event, Borrower shall only be
required to pay a prepayment fee in an amount equal
to $250,000."
3.05 The restrictions set forth in Section 3.5 are hereby waived to the
extent necessary to permit Global in connection with the Offering to: (i) redeem
all of the outstanding shares of its Class A Common Stock in exchange for (a)
payments in the amount of ninety ($90) dollars per
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share plus the unpaid yield thereon, and (b) shares of Common Stock, in an
aggregate amount not to exceed ten (10%) percent of Global's issued and
outstanding Common Stock; and (ii) convert its Class C Common Stock into Common
Stock, for no additional cash, stock or other consideration.
3.06 The restrictions set forth in Section 3.6(A)(i) are hereby waived
to the extent necessary to permit Global to amend its charter and by-laws in
connection with the Offering substantially in the form of Exhibit A hereto and
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upon completion of the Offering, substantially in the form of Exhibit B hereto.
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3.07 Section 6.1(T) is deleted in its entirety and the following is
substituted in lieu thereof:
"(T) Change in Control. Except in connection with the
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Offering, GTCR IV sells or otherwise disposes of any of its
shares of the Common Stock of Global."
3.08 Section 10.1 Certain Defined Terms is hereby amended to add the
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following terms, in alphabetical order, respectively.
"Offering" means the initial public offering of
Global's Common Stock pursuant to the terms and
conditions of, and in accordance with the
Registration Statement."
"Registration Statement" means Global's Registration
Statement under the Securities Act of 1933 which was
filed with the Securities and Exchange Commission on
or around March 17, 1998."
ARTICLE IV
Conditions
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Conditions to Effectiveness. The effectiveness of this
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Agreement is subject to (i) the consummation of the Offering, and (ii) the
satisfaction of the following conditions precedent, unless specifically waived
in writing by Lender:
(a) Agent shall have received, in form and substance satisfactory to
Agent:
(i) this Amendment, duly executed by each Borrower;
(ii) copies of the Registration Statement as filed with the
Securities and Exchange Commission and any other
documentation in connection therewith required by Agent;
(iii) a company general certificate certified by the Secretary of
each of the Borrowers that its Board of Directors has
adopted and ratified resolutions
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which authorize the execution, delivery and performance by
it of this Agreement;
(iv) such additional documents, instruments and information as
Agent or its legal counsel may reasonably request.
(b) The representations and warranties contained herein, in the Credit
Agreement and in the other Loan Documents, shall be true and correct as of the
date hereof, as if made on the date hereof.
(c) No Event of Default or event or condition which, with notice or
passage of time or both, would constitute an Event of Default, shall have
occurred and be continuing, unless such event, condition or Event of Default has
been specifically waived in writing by Agent or Lenders.
ARTICLE V
No Waiver
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Except as specifically set forth herein, nothing contained in this
Amendment shall be construed as a waiver by Agent or any Lender of any covenant
or provision of the Credit Agreement or the other Loan Documents or of any other
contract or instrument between Borrower and any Lender or Agent, and the failure
of any Lender or Agent at any time or times hereafter to require strict
performance by Borrower of any provision thereof shall not waive, affect or
diminish any right of Lenders or Agent to thereafter demand strict compliance
therewith. Each of Lenders and Agent hereby reserve all rights granted under the
Credit Agreement, the other Loan Documents and any other contract or instrument
between Borrower and any Lender or Agent.
ARTICLE VI
Ratifications, Representations and Warranties
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6.01 Ratifications. The terms and provisions set forth herein shall
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modify and supersede all inconsistent terms and provisions set forth in the
Credit Agreement and the other Loan Documents, and, except as expressly modified
and superseded by this Amendment, the terms and provisions of the Credit
Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. Borrower, Agent and Lenders agree that the
Credit Agreement and the other Loan Documents, as amended hereby, shall continue
to be legal, valid, binding and enforceable in accordance with their respective
terms.
6.02 Representations and Warranties. Borrower hereby represents and
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warrants to Lender that (a) the execution, delivery and performance of this
Amendment and any and all other Loan Documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of Borrower and will not violate the Restated Certificate of
Incorporation or Bylaws of Borrower; (b) the representations and warranties
contained in the
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Credit Agreement, as amended hereby, and any other Loan Documents are true and
correct on and as of the date hereof and on and as of the date of execution
hereof as though made on and as of each such date; (c) no Event of Default or
event or condition which, with notice or passage of time or both, would
constitute an Event of Default under the Credit Agreement, as amended hereby,
has occurred and is continuing; and (d) Borrower is in full compliance with all
covenants and agreements contained in the Credit Agreement and the other Loan
Documents, as amended hereby.
ARTICLE VII
Miscellaneous Provisions
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7.01 Survival of Representations and Warranties. All representations
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and warranties made in the Credit Agreement or any other Loan Document,
including without limitation, any document furnished in connection with this
Amendment, shall survive the execution and delivery of this Amendment and the
other Loan Documents, and no investigation by Agent or any Lender or any closing
shall affect the representations and warranties or the right of Agent or Lenders
to rely upon them.
7.02 Reference to Credit Agreement. Each of the Credit Agreement and
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the other Loan Documents, and any and all other agreements, documents or
instruments now or hereafter executed and delivered pursuant to the terms hereof
or pursuant to the terms of the Credit Agreement, as amended hereby, are hereby
amended so that any reference in the Credit Agreement and such other Loan
Documents to the Credit Agreement or any such Loan Documents shall mean a
reference to the Credit Agreement and the other Loan Documents as amended
hereby.
7.03 Expenses of Agent. As provided in the Credit Agreement, Borrower
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agrees to pay on demand all reasonable costs and expenses incurred by Agent in
connection with the preparation, negotiation and execution of this Amendment and
the other Loan Documents executed pursuant hereto, and any and all amendments,
modifications and supplements thereto, including without limitation, the
reasonable costs and fees of Agent's legal counsel.
7.04 Severability. Any provision of this Amendment held by a court of
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competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
7.05 Successors and Assigns. This Amendment is binding upon and shall
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insure to the benefit of Agent, Lenders and Borrower and their respective
successors and assigns, except that Borrower may not assign or transfer any of
its rights or obligations hereunder without the prior written consent of Agent
and Lenders.
7.06 Counterparts. This Amendment may be executed in one or more
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counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
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7.07 Effect of Waiver. No consent or waiver, express or implied, by
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Agent or Lender to or for any breach of or deviation from any covenant or
condition by Borrower shall be deemed a consent to or waiver of any other breach
of the same or any other covenant, condition or duty.
7.08 Headings. The headings, captions, and arrangements used in this
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Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
7.09 Applicable Law. THIS AMENDMENT AND ALL OTHER AGREEMENTS EXECUTED
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PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW).
7.10 Final Agreement. THE CREDIT AGREEMENT AND THE OTHER LOAN
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DOCUMENTS, EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS
EXECUTED. THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY,
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES. NO MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY
PROVISION OF THIS AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED
BY BORROWER, AGENT AND LENDERS.
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Witness the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
GLOBAL IMAGING SYSTEMS INC.
GLOBAL IMAGING OPERATIONS, INC.
GLOBAL IMAGING FINANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
COPY SERVICE AND SUPPLY, INC.
OFFICE FURNITURE CONCEPTS, INC.
FELCO OFFICE SYSTEMS, INC.
▇▇▇▇▇▇, INC.
▇▇▇▇▇▇ OFFICE PRODUCTS, INC.
AMERICAN PHOTOCOPY EQUIPMENT COMPANY
OF PITTSBURGH
SOUTHERN COPY SYSTEMS, INC.
BUSINESS EQUIPMENT UNLIMITED
CAMERON OFFICE PRODUCTS, INC.
SOUTHERN BUSINESS COMMUNICATIONS, INC.
ELECTRONIC SYSTEMS, INC.
EASTERN COPY PRODUCTS, INC.
QUALITY BUSINESS SYSTEMS, INC.
DUPLICATING SPECIALTIES, INC.
ELECTRONIC SYSTEMS OF RICHMOND, INC.
CONNECTICUT BUSINESS SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman
CSS LEASING, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Manager and President
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▇▇▇▇▇▇▇ NATIONAL LIFE INSURANCE
COMPANY, as Lender
By: PPM America, Inc.,
Attorney-in-Fact
By: /s/ ▇▇▇ ▇▇▇▇▇
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Title: Managing Director
PPM AMERICA, INC., as Agent
By: /s/ ▇▇▇ ▇▇▇▇▇
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Title: Managing Director
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