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FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), dated as of October 30, 1998, is by and among Genicom
Corporation (the "Borrower"), the subsidiaries of the Borrower identified on
the signature pages hereto (the "Guarantors"), the several lenders identified
on the signature pages hereto (each a "Lender" and, collectively, the
"Lenders") and NationsBank, N.A., as agent for the Lenders (in such capacity,
the "Agent").
WITNESSETH
WHEREAS, the Borrower, the Guarantors, the Lenders and the
Agent entered into that certain Amended and Restated Credit Agreement dated as
of September 5, 1997, as amended by that First Amendment to Amended and
Restated Credit Agreement dated as of October 31, 1997, as amended by that
Second Amendment to Amended and Restated Credit Agreement dated as of March 12,
1998, as amended by that letter agreement dated May 5, 1998 and as amended by
that Fourth Amendment to Amended and Restated Credit Agreement and Waiver dated
as of July 2, 1998 (as so amended, the "Existing Credit Agreement").
WHEREAS, the parties have agreed to amend the Existing Credit
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
PART I
DEFINITIONS
1. Certain Definitions. Unless otherwise defined herein
or the context otherwise requires, the following terms used in this Amendment,
including its preamble and recitals, have the following meanings:
"Amended Credit Agreement" means the Existing Credit Agreement
as amended hereby.
"Amendment No. 5 Effective Date" is defined in Part III.
2. Other Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Amendment, including its
preamble and recitals, have the meanings provided in the Amended Credit
Agreement.
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PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment
No. 5 Effective Date, the Existing Credit Agreement is hereby amended in
accordance with this Part II. Except as so amended, the Existing Credit
Agreement and all other Credit Documents shall continue in full force and
effect.
1. Amendments to Section 1.1. The following definitions
appearing in Section 1.1 of the Existing Credit Agreement are amended in their
entireties to read as follows:
"Applicable Percentage" means, for purposes of
calculating the applicable interest rate for any day for any
Eurodollar Loan which is a Revolving Loan, Tranche A Term
Loan, Tranche B Term Loan or Foreign Currency Loan or for any
Base Rate Loan which is a Revolving Loan, Tranche A Term Loan
or Tranche B Term Loan, the applicable rate of the Unused Fee
for any day for purposes of Section 3.5(a) or the applicable
rate of the Standby Letter of Credit Fee for any day for
purposes of Section 3.5(b)(i), the appropriate applicable
percentage set forth below:
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Applicable
Applicable Percentage for Applicable
Percentage for Base Rate Loans Percentage Applicable
Eurodollar Loans which are for Percentage
which are Revolving Eurodollar for Base Applicable
Revolving Loans, Loans, Loans which Rate Loans Percentage Applicable
Tranche A Term Swingline Loans are Tranche which are for Standby Percentage
Loans or Foreign or Tranche A B Term Tranche B Letter of for Unused
Currency Loans Term Loans Loans Term Loans Credit Fee Fee
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3.50% 2.25% 3.50% 2.25% 3.00% 0.50%
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"Borrowing Base" means (i) as of any day prior to
February 15, 1999, the sum of (a) 85% of Eligible Receivables
and (b) 55% of Eligible Inventory, in each case as set forth
in the most recent Borrowing Base Report delivered to the
Agent and the Lenders in accordance with the terms of section
7.1(e); provided, however, that the amount determined pursuant
to clause (b) above shall not exceed 50% of the total
Borrowing Base, and (ii) as of any day on or after February
15, 1999, the Original Borrowing Base; provided further,
however, that for purposes of determining the Borrowing Base
on February 15, 1999 and the need for a prepayment under
Section 3.3(b)(i), Eligible Receivables and Eligible Inventory
will be as they existed on January 3, 1999.
"Interest Payment Date" means (i) as to any Base Rate
Loan, the last day of each calendar month and the Maturity
Date, and (ii) as to any Eurodollar Loan, the last day of each
calendar month, the last day of each Interest Period for such
Loan and the Maturity Date. If an Interest Payment Date falls
on a date which is not a Business Day, such Interest Payment
Date shall be deemed to be the next succeeding Business Day,
except that in the case where the last day of an Interest
Period for a Eurodollar Loan falls on a
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date which is not a Business Day and where the next succeeding
Business Day falls in the next succeeding calendar month, then
on the next preceding Business Day.
2. Amendment to Section 3.1. Section 3.1 of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
3.1 Default Rate. Upon the occurrence, and
during the continuance, of an Event of Default, the principal
of and, to the extent permitted by law, interest on the Loans
and any other amounts owing hereunder or under the other
Credit Documents shall bear interest, payable on demand, at a
per annum rate 2% greater than the rate which would otherwise
be applicable (or if no rate is applicable, whether in respect
of interest, fees or other amounts, then 2% greater than the
Base Rate).
3. Amendment to Section 3.3(b)(iii). Section 3.3(b)(iii)
of the Existing Credit Agreement is hereby amended to add the following
sentence at the end of such section:
Notwithstanding anything to the contrary contained herein, (x)
immediately upon receipt by the Borrower or any of its
Subsidiaries of proceeds from the sale of the Borrower's
facility located in Waynesboro, Virginia ("Waynesboro Sale"),
the Borrower shall prepay the Loans in an amount equal to the
Net Proceeds of the Waynesboro Sale to the Lenders (such
prepayment to be applied as set forth in clause (vii) below)
and (y) immediately upon receipt by the Borrower or any of its
Subsidiaries of any United States federal and state income tax
refunds, the Borrower shall prepay the Loans in an aggregate
amount equal to 100% of such income tax refunds (such
prepayment to be applied as set forth in clause (vii) below).
4. Amendment to Section 3.5(a). Section 3.5(a) of the
Existing Credit Agreement is hereby amended to add the following sentence to
the end of such Section to read as follows::
Notwithstanding anything to the contrary contained herein,
beginning November 30, 1998, the Unused Fee shall be due and
payable in arrears on the last day of each calendar month
(and any date that the Revolving Committed Amount is reduced
as provided in Section 3.4(a) and the Maturity Date) for the
immediately preceding month (or portion thereof) each such
month or portion thereof for which the Unused Fee is payable
hereunder being herein referred to as an "Unused Fee
Calculation Period"); provided however, the accrued and unpaid
Unused Fee for the period beginning October 1, 1998 until
November 30, 1998 shall be due and payable on November 30,
1998.
5. Amendment to Section 3.5(b)(i). The last sentence of
Section 3.5(b)(i) of the Existing Credit Agreement is hereby amended in its
entirety to read as follows::
The Standby Letter of Credit Fee will be payable monthly in
arrears on the last day of each calendar month, beginning
November 30, 1998, for the immediately preceding month (or a
portion thereof); provided however, the accrued and unpaid
Standby Letter of Credit Fee
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for the period beginning October 1, 1998 until November 30,
1998 shall be due and payable on November 30, 1998.
6. Amendment to Section 3.5(b)(iii)(A). Section
3.5(b)(iii)(A) of the Existing Credit Agreement is hereby amended in its
entirety to read as follows::
(A) a standby Letter of Credit fronting fee of 0.125% on the
average daily maximum amount available to be drawn under each
standby Letter of Credit computed at a per annum rate for each
day from the date of issuance to the date of expiration, such
fronting fee to be payable monthly in arrears on the last day
of each calendar month, beginning November 30, 1998, for the
immediately preceding month (or a portion thereof); provided
however, the accrued and unpaid fronting fee payable hereunder
for the period beginning October 1, 1998 until November 30,
1998 shall be due and payable on November 30, 1998,
7. Amendment to Section 7.1. A new subsection (m) is
added to Section 7.1 of the Existing Credit Agreement to read as follows:
(m) Flash Reports. As soon as available, and in
any event within 15 days after the close of each fiscal month,
a flash report containing (i) a comparison of the Borrower's
financial condition and performance with the plan presented by
the Borrower at the October 21, 1998 meeting of the Borrower
and the Lenders, and (ii) an analysis of the Borrower's
accounts payable and the status of the Borrower's vendor
relationships, all in reasonable form and detail satisfactory
to the Lenders and prepared by the Borrower and independent
consultants of recognized national standing reasonably
acceptable to the Lenders.
8. Amendment to Section 7.11. Sections 7.11(b) and (c)
of the Existing Credit Agreement are hereby amended in their entirety to read
as follows:
(b) Consolidated Funded Debt Coverage Ratio. The
Consolidated Funded Debt Coverage Ratio at each Calculation Date shall be no
greater than the following proportions:
Period Ratio
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As of the last day of 5.25 to 1.00
the third fiscal quarter
of fiscal year 1997 of the
Borrower and its Subsidiaries
As of the last day of the 6.50 to 1.00
fourth fiscal quarter of
fiscal year 1997 of the
Borrower and its Subsidiaries
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As of the last day of the 6.25 to 1.00
first fiscal quarter of fiscal
year 1998 of the Borrower and
its Subsidiaries
As of the last day of 4.00 to 1.00
the second fiscal quarter
of fiscal year 1998 of
the Borrower and its
Subsidiaries
As of the last day of 4.50 to 1.00
the third fiscal quarter
of fiscal year 1998 of
the Borrower and its
Subsidiaries
As of the last day of 4.50 to 1.00
the fourth fiscal quarter
of fiscal year 1998 of
the Borrower and its
Subsidiaries
As of the last day of 3.50 to 1.00
the first fiscal quarter
of fiscal year 1999 of
the Borrower and its
Subsidiaries
As of the last day of 3.25 to 1.00
the second fiscal quarter
of fiscal year 1999 of
the Borrower and its
Subsidiaries
As of the last day of 3.00 to 1.00
the third fiscal quarter
of fiscal year 1999
of the Borrower and its
Subsidiaries and thereafter
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(c) Consolidated Fixed Charge Coverage Ratio. The
Consolidated Fixed Charge Coverage Ratio at each Calculation Date shall be no
less than the following proportions:
Period Ratio
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For the period occurring 1.25 to 1.00
from the Closing Date
through the last
day of the first fiscal
quarter of fiscal year 1998
of the Borrower and its
Subsidiaries
For the period occurring 2.00 to 1.00
from the first day of the
second fiscal quarter of
fiscal year 1998 through
the last day of the second
fiscal quarter of fiscal
year 1998 of the Borrower
and its Subsidiaries
For the period occurring 1.75 to 1.00
from the first day of the
third fiscal quarter of
fiscal year 1998 through
the last day of the
third fiscal quarter of fiscal
year 1998 of the Borrower
and its Subsidiaries
For the period occurring 1.50 to 1.00
from the first day of the
fourth fiscal quarter of
fiscal year 1998 through
the last day of the
fourth fiscal quarter of fiscal
year 1998 of the Borrower
and its Subsidiaries
For the period occurring 1.75 to 1.00
from the first day of the
first fiscal quarter of
fiscal year 1999 of the
Borrower and its
Subsidiaries and thereafter
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9. New Sections 7.17 and 7.18. New Sections 7.17 and 7.18 are
hereby added to the Existing Credit Agreement immediately following Section
7.16 thereof which shall read as follows:
7.17 Meetings Regarding Flash Reports; Review Plan.
Upon delivery of the flash reports required under Section
7.1(m), the Borrower and the consultants involved in the
preparation of such flash reports shall immediately meet with
the Lenders to discuss such reports. The Borrower shall cause
such consultants to conduct any and all due diligence
necessary to (i) review the plan presented by the Borrower at
the October 21, 1998 meeting of the Borrower and the Lenders
and (ii) discuss and recommend any changes to such plan, if
necessary,with the Lenders on or before February 15, 1999.
7.18 Collateral Review. Borrower will, and will cause
each of its Subsidiaries to, permit representatives of the
Agent and the Lenders to conduct reviews of all assets of the
Borrower and its Subsidiaries, wherever such assets may be
located, which do not constitute Collateral. At the
reasonable request of the Agent or any Lender, Borrower will,
and will cause each of its Subsidiaries to, execute and
deliver any documents, instruments or agreements or take any
other actions requested by the Agent or any Lender to cause
any or all of its real (whether leased or owned) property or
personal property, wherever located, and which the Agent or
any such Lender shall reasonably require to be Collateral, to
be subject at all times to first priority, perfected and, in
the case of real property (whether leased or owned), title
insured Liens in favor of the Agent for the benefit of the
Lenders.
PART III
CONDITIONS TO EFFECTIVENESS
1. Amendment No. 5 Effective Date. This Amendment shall be
and become effective as of the date hereof (the "Amendment No. 5 Effective
Date") when all of the conditions set forth in this Part III shall have been
satisfied, and thereafter this Amendment shall be known, and may be referred
to, as "Amendment No. 5."
2. Execution of Counterparts of Amendment. The Agent shall
have received counterparts (or other evidence of execution, including
telephonic message, satisfactory to the Agent) of this Amendment, which
collectively shall have been duly executed on behalf of each of the Borrower,
the Guarantors and the Required Lenders.
3. Corporate Existence. The Agent shall have received all
documents it may reasonably request relating to the existence and good standing
of each of the Credit Parties, the corporate or other necessary authority for
and the validity of this Amendment, and any other matters relevant thereto, all
in form and substance reasonably satisfactory to the Agent.
4. Legal Opinion. The Agent shall have received a legal
opinion of McGuire, Woods, Battle & Boothe, counsel for the Credit Parties in
form and substance reasonably satisfactory to the Agent.
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5. Officer's Certificate. The Agent shall have received a
certificate executed by the chief financial officer of the Borrower as of the
Amendment No. 5 Effective Date stating that, immediately after giving effect to
this Amendment and the transactions contemplated hereby, (i) each of the Credit
Parties is Solvent, (ii) no Default or Event of Default exists and (iii) the
representations and warranties set forth in the Existing Credit Agreement are
true and correct in all material respects.
6. Material Adverse Change. Except as otherwise previously
disclosed in writing to the Lenders, no material adverse change shall have
occurred since December 29, 1996 in the condition (financial or otherwise),
business or management of the Borrower or of the Borrower and its Subsidiaries
taken as a whole.
7. Fees and Expenses. All out-of-pocket fees and expenses of
Agent or any Lender in connection with the Credit Documents, including this
Amendment, including legal and other professional fees and expenses incurred on
or prior to the date of this Amendment, including, without limitation, the fees
and expenses of Winstead Sechrest & Minick P.C, shall have been paid.
8. Settlement Agreement. The Agent shall have received a
copy, certified by the chief financial officer of the Borrower as true and
complete, of the executed settlement agreement by and between the Borrower and
Electronic Data Systems Corporation, pertaining to the commercialization of
accounts payable, and of each other document or instrument executed in
connection therewith.
9. UCC-1 Financing Statements; Landlord's Waivers; Security
Agreements. The Agent shall have received (i) duly executed UCC financing
statements for each appropriate jurisdiction as is necessary, in the Agent's
sole discretion, to perfect the Agent's security agreement in the Collateral;
(ii) duly executed patent or trademark filings as requested by the Agent in
order to perfect the Agent's security interest in the Collateral; and (iii)
updated and complete schedules to the Security Agreement.
10. Other Items. The Agent shall have received such other
documents, agreements or information which may be reasonably requested by the
Agent.
PART IV
MISCELLANEOUS
1. Representations and Warranties. Borrower hereby represents
and warrants to the Agent and the Lenders that, after giving effect to this
Amendment, (a) no Default or Event of Default exists under the Credit Agreement
or any of the other Credit Documents which has not been waived and (b) the
representations and warranties set forth in Section 6 of the Existing Credit
Agreement are, subject to the limitations set forth therein, true and correct
in all material respects as of the date hereof (except for those which
expressly relate to an earlier date).
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2. Releases. In consideration of Lenders' agreements herein
and certain other good and valuable consideration, the Borrower and each
Guarantor hereby expressly acknowledge and agree that none of them has any
setoffs, counterclaims, adjustments, recoupments, defenses, claims or actions
of any character, whether contingent, non-contingent, liquidated, unliquidated,
fixed, matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, known or unknown, against any Lender or the Agent or any grounds or
cause for reduction, modification or subordination of the obligations of
Borrower or any Guarantor under the Credit Documents or any liens or security
interests of any Lender or the Agent in each case which arose on or prior to
the date hereof. To the extent Borrower or any Guarantor may possess any such
setoffs, counterclaims, adjustments, recoupments, claims, actions, grounds or
causes, each of the Borrower and Guarantors hereby waives, and hereby releases
each Lender and Agent from, any and all of such setoffs, counterclaims,
adjustments, recoupments, claims, actions, grounds and causes, such waiver and
release being with full knowledge and understanding of the circumstances and
effects of such waiver and release and after having consulted counsel with
respect thereto.
3. Cross-References. References in this Amendment to any Part
are, unless otherwise specified, to such Part of this Amendment.
4. Instrument Pursuant to Existing Credit Agreement. This
Amendment is a Credit Document executed pursuant to the Existing Credit
Agreement and shall (unless otherwise expressly indicated therein) be
construed, administered and applied in accordance with the terms and provisions
of the Existing Credit Agreement.
5. References in Other Credit Documents. At such time as this
Amendment No. 5 shall become effective pursuant to the terms of Part III, all
references in the Credit Documents to the "Credit Agreement" shall be deemed to
refer to the Credit Agreement as amended by this Amendment No. 5.
6. Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
7. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE COMMONWEALTH OF
VIRGINIA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
8. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
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IN WITNESS WHEREOF the parties hereto have caused this
Amendment to be duly executed on the date first above written.
BORROWER:
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GENICOM CORPORATION
By /s/James C. Gale
Title: Senior Vice President
GUARANTORS:
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GENICOM INTERNATIONAL HOLDINGS
CORPORATION
By /s/James C. Gale
Title: President
GENICOM INTERNATIONAL SALES
CORPORATION
By /s/James C. Gale
Title: President
DELMARVA TECHNOLOGIES CORPORATION
By
Title: President
RASTEK CORPORATION
By /s/James C. Gale
Title: President and Treasurer
ENTERPRISING SERVICE SOLUTIONS
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CORPORATION
By /s/James C. Gale
Title: Vice President
PRINTER SYSTEMS CORPORATION
By /s/James C. Gale
Title: Vice President
THE PRINTER CONNECTION, INC.
By /s/James C. Gale
Title: Vice President
PRINTER SYSTEMS INTERNATIONAL, LTD.
By /s/James C. Gale
Title: Vice President
LENDERS:
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NATIONSBANK, N.A. (formerly NationsBank
of Texas, N.A.), individually as a Leader
and in its capacity as Agent
By /s/Jay Wampler
Title: Vice President
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CREDITANSTALT CORPORATE FINANCE, INC.
By
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Title:
By
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Title:
DEEPROCK & COMPANY
By: Eaton Vance Management, as Investment
Advisor
By
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Title:
CRESTAR BANK
By
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Title:
THE RIGGS NATIONAL BANK OF
WASHINGTON, D.C.
By
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Title:
FLOATING RATE PORTFOLIO
By: Chancellor LGT Senior Secured
Management, Inc., as attorney-in-fact
By
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Title:
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KZH HOLDING CORPORATION III
By
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Title:
TORONTO DOMINION (TEXAS), INC.
By
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Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By
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Title:
CERES FINANCE LTD.
By
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Title:
AERIES FINANCE LTD.
By
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Title:
BANK OF SCOTLAND
By
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Title:
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NATIONAL CITY BANK OF KENTUCKY
By
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Title: