AMENDMENT NO. 4 TO CREDIT AGREEMENT
EXHIBIT
10.1
Dated
as of January
18,
2008
AMENDMENT
NO. 4 TO CREDIT AGREEMENT (this “Amendment”)
among ACCO Brands Corporation, a Delaware corporation (the “Company”),
ACCO Nederland Holdings B.V. (as successor to Furlon Holding B.V.), a private
company with limited liability (besloten
vennootschap met beperkte aansprakelijkheid) organized under the laws of
The Netherlands (the “Dutch
Borrower”), ACCO Brands Europe Ltd.,
a limited company organized under the laws of England and Wales with registered
number 5532999 (the “U.K.
Borrower” and, together with the Company and the Dutch Borrower, the
“Borrowers”),
the Lenders listed on the signature pages hereto, Citicorp North America, Inc.,
as administrative agent (the “Administrative
Agent”).
PRELIMINARY
STATEMENTS
(1)
WHEREAS, the Borrowers are parties to a certain Credit Agreement, dated as
of
August 17, 2005 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the “Credit
Agreement” (terms used herein without definition in this Amendment have
the meanings given such terms by the Credit Agreement)), among the Borrowers,
the Lenders, the Administrative Agent and the other parties named
therein;
(2)
WHEREAS, the Borrowers have requested that the Requisite Lenders agree to amend
certain provisions of the Credit Agreement;
(3)
WHEREAS, the Requisite Lenders have agreed, subject to the terms and conditions
hereinafter set forth, to amend certain provisions of the Credit Agreement
as
set forth below;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the sufficiency and receipt of all of which is hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION
1. Amendments. As
of the Effective Date (as defined in Section 2 below), the Credit Agreement
is
hereby amended as follows:
(a)
the definition of “EBITDA” contained in Section 1.1 of the Credit Agreement is
hereby amended by (i) deleting the word “and” immediately prior to the reference
therein to “(ix)” and (ii) adding the following immediately prior to the
reference therein to “minus”:
“,
and
(x) additional cash restructuring and related expenses, charges and losses
of
the Company and its Subsidiaries in a cumulative amount not to exceed (A) for
any measurement period ending on or prior to December 31, 2007, $20,000,000,
(B)
for any measurement period ending thereafter, but on or prior to December 31,
2008, $70,000,000 and (C) for any measurement period ending thereafter, but
on
or prior to December 31, 2010, $85,000,000,”
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(b)
the definition of “Financial Covenant Debt” contained in Section 1.1 of the
Credit Agreement is hereby deleted and replaced with the
following:
“Financial
Covenant Debt” of any Person means the amount of Indebtedness of such
Person and its Subsidiaries that would, in accordance with GAAP, be required
to
be reflected as indebtedness on a Consolidated balance sheet of such Person;
provided,
that to the extent not required to be so reflected as indebtedness on such
balance sheet, all Indebtedness of such Person and its Subsidiaries in respect
of Permitted Receivables Financing shall be added thereto.
(c)
the reference to“clause (i) of Section 2.9(a) (Mandatory
Prepayments)” in clause (a) of the definition of “Net Cash Proceeds”
contained in Section 1.1 of the Credit Agreement is hereby deleted and
replaced
with “clause (i) of Section 2.9(a)(x) (Mandatory
Prepayments)”.
(d)
clause (c) of the definition of “Permitted Acquisition” contained in Section 1.1
of the Credit Agreement is hereby deleted and replaced with the
following:
(c)
the Dollar Equivalent of the sum of all consideration payable in connection
with
such Proposed Acquisition and all other Permitted Acquisitions consummated
on or
prior to the date of the consummation of such Proposed Acquisition (including
all transaction costs and all Indebtedness, liabilities and Guaranty Obligations
incurred or assumed in connection therewith or otherwise reflected in a
Consolidated balance sheet of the Company and the Proposed Acquisition Target
shall not exceed $100,000,000 in the aggregate (or $150,000,000
in the aggregate, if at the time of any such Permitted Acquisition on a Pro
Forma Basis, the Leverage Ratio as of the date of the most recently delivered
Financial Statements pursuant to Section
6.1(a) or (b)
(Financial Statements) would have been less than 3.5 to
1.0);
(e)
Section 1.1 of the Credit Agreement is hereby further amended by adding the
following new definition thereto in proper alphabetical
order:
“CLSG
Business Disposition” means the disposition of all or any portion of the
Company’s CLSG Segment identified in the Company’s filings with the Securities
and Exchange Commission beginning on March 28, 2007.
(f)
Section 2.9(a) of the Credit Agreement is hereby deleted and replaced with
the
following:
“(a)
Net
Cash Proceeds, etc. The Borrowers shall immediately prepay the
Loans in accordance with clause
(c) below:
(x)
upon receipt by any Borrower or any of its Subsidiaries of Net Cash Proceeds
arising from:
(i)
subject to clause
(c) below, any Asset Sale (other than an Asset Sale permitted by clause
(a), (c), (d), (e), (h),
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(k),
(l), (m), (n), (o)
or (r) of Section
8.4 (Asset Sales)), or Property Loss Event, in an amount equal to 100% of
such Net Cash Proceeds in excess of the Dollar Equivalent of $5,000,000 in
the
aggregate in any Fiscal Year;
(ii)
any Debt Issuance (x) under clause (i) of the definition thereof in an amount
equal to 100% of such Net Cash Proceeds and (y) under clause (ii) of the
definition thereof in an amount equal to 50% of such Net Cash Proceeds;
and
(iii)
any Equity Issuance (other than an Excluded Issuance), in an amount equal to
50%
of such Net Cash Proceeds; and
(y)
in the case of any CLSG Business Disposition, in an amount, if any, necessary
to
ensure that the Leverage Ratio on a Pro Forma Basis after giving effect to
such
CLSG Business Disposition and any mandatory prepayment required under this
clause (y), as of the date of the most recently delivered Financial Statements
pursuant to Section
6.1(a) or (b)
(Financial Statements), would not have been greater than the actual
Leverage Ratio for such date.
(g)
Section 8.4 of the Credit Agreement is hereby amended by (i) deleting the word
“and” as it appears at the end of subsection (p) thereof, (ii) deleting the
period at the end of subsection (q) thereof and replacing it with “; and” and
(iii) adding a new subsection (r) thereto, which shall read in its entirety
as
follows:
(r)
the Company and its Subsidiaries may consummate any Asset Sale that constitutes
a CLSG Business
Disposition.
SECTION
2. Conditions
to Effectiveness . This Amendment shall become effective as of December
31, 2007 (the
“Effective
Date”)
upon the satisfaction of the following conditions:
(a) the Administrative Agent shall have received counterparts of this Amendment
executed by the Borrowers and the Requisite Lenders, (b) the Administrative
Agent shall have received
a certificate signed by a duly authorized officer of the Company to
the
effect that, after giving effect to this Amendment: (i) the representations
and warranties contained in each of the Loan Documents are true and correct
in
all material respects on and as of the date of such certificate and as of the
Effective Date as though made on and as of each such date (unless stated to
relate solely to an earlier date, in which case such representations and
warranties are true and correct in all material respects as of such earlier
date); and (ii) no Default has occurred and is continuing and (c) the
Borrowers shall have (i) paid the Administrative Agent all the fees due to
the
Administrative Agent, (ii) reimbursed or paid all expenses required to be paid
or reimbursed by the Borrowers pursuant to the Credit Agreement and Section
8
hereof and (iii) paid a fee to each Lender who consents to this Amendment on
or
prior to noon, Eastern Standard Time, on January 18, 2008 in an amount equal
to
10 basis points of such consenting Lender’s outstanding Revolving Commitments
and/or Term Loans under the Credit Agreement on the date each of the conditions
to effectiveness contained in this Section 2 are satisfied.
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SECTION
3. Representations
and Warranties . The Borrowers represent and warrant as
follows:
(a)
The representations and warranties contained in each of the Loan Documents
are
true and correct in all material respects on and as of the date of this
Amendment, as though made on and as of such date (unless stated to relate solely
to an earlier date, in which case such representations and warranties are true
and correct in all material respects as of such earlier
date).
(b)
No Default has occurred and is continuing on the date
hereof.
SECTION
4. Reference
to and Effect on the Loan Documents. (a) On and after the
Effective Date, each reference in the Credit Agreement to “this
Agreement”, “hereunder”,
“hereof”
or words of like import referring to the Credit Agreement, and each reference
in
the other Loan Documents to “the
Agreement”, “thereunder”,
“thereof”,
or words of like import referring to the Credit Agreement shall mean and be
a
reference to the Credit Agreement, as modified hereby.
(b)
The Credit Agreement and each of the other Loan Documents, as specifically
modified by this Amendment, are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed. For the avoidance
of doubt, this Amendment shall be considered a Loan
Document.
(c)
The execution, delivery and effectiveness of this Amendment shall not operate
as
a waiver of any right, power or remedy of the Credit Agreement or the other
Loan
Documents, nor constitute a waiver of any provision of the Credit Agreement
or
the other Loan Documents.
SECTION
5. GOVERNING
LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION
6. WAIVER
OF JURY TRIAL . EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHTS
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR
THE
ACTIONS OF THE COLLATERAL TRUSTEES OR THE AGENT IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION
7. Execution
in Counterparts . This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the
same
instrument.
SECTION
8. Costs
and Expenses . Without duplication of any amounts previously paid or
reimbursed, the Borrowers hereby agree to pay all reasonable costs and expenses
of the Administrative Agent associated with the preparation, execution,
delivery, administration, and enforcement of this Amendment, including, without
limitation, the reasonable fees and ex-
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penses
of
Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent and other
out of pocket expenses related hereto. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall be
effective as delivery of a manually executed counterpart of this
Amendment.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by
their respective officers thereunto duly authorized, as of the date first above
written.
ACCO
BRANDS CORPORATION,
as U.S. Borrower
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By:
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/s/Xxxxxxx Xxxxxxxx | |
Name: | |||
Title: Treasurer |
ACCO
BRANDS EUROPE LTD.,
as U.K. Borrower
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By:
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/s/Xxxx X. Xxxxxxx | |
Name: | |||
Title: Director |
ACCO
NEDERLAND HOLDINGS B.V.,
as Dutch Borrower
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By:
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/s/Xxxx Xxxxxxxx | |
Name: | |||
Title: Head of FSSC | |||
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CITICORP
NORTH AMERICA, INC.,
as Administrative Agent
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By:
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/s/Xxxxxxxxxxx Xxxxxx | |
Name: | |||
Title: Managing Director | |||
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[LENDERS]
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By:
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Name: | |||
Title: | |||
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