EXECUTION VERSION
XXXXXX AMERICAN CORP.
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT, dated as of May 4, 2007 (this "Amendment"), is
entered into by and among Xxxxxx American Corp., a Delaware corporation (the
"Borrower"), the Lenders party hereto, Credit Suisse, Cayman Islands Branch
("Credit Suisse"), as administrative agent and collateral agent for the Lenders
(in such capacities, the "Agent"), Credit Suisse Securities (USA) LLC ("CS
Securities") and Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), as joint lead
arrangers, CS Securities, Bear Xxxxxxx, X.X. Xxxxxx Securities Inc. and
Citigroup Global Markets Inc. ("Citigroup"), as joint bookrunners, Bear Xxxxxxx
Corporate Lending Inc., as syndication agent (in such capacity, the "Syndication
Agent"), and JPMorgan Chase Bank, N.A. and Citigroup, as co-documentation agents
(in such capacity, the "Documentation Agents") and is made with reference to
that certain Credit Agreement, dated as of April 4, 2007 (the "Credit
Agreement"), entered into by and among the Borrower, the Lenders party thereto,
the Agent, the Syndication Agent and the Documentation Agents. Capitalized terms
used herein and not otherwise defined herein or otherwise amended hereby shall
have the meanings ascribed to them in the Credit Agreement.
RECITALS:
WHEREAS, the parties to the Credit Agreement desire to amend the
Credit Agreement as herein set forth.
NOW, THEREFORE, in consideration of the premises and the agreements,
herein contained, the parties agree as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT
a. The definition of "Excess Designated Proceeds" contained in Section
1.1 of the Credit Agreement is hereby deleted in its entirety, and the
following is inserted in replacement thereof:
" "Excess Designated Proceeds" means with respect to any Designated
Asset Sale (i) 100% of the Net Proceeds from such sale if after giving
pro forma effect thereto, but before applying any portion of the Net
Proceeds thereof to prepay, purchase or retire any Indebtedness the
Consolidated Leverage Ratio of the Borrower and its Restricted
Subsidiaries is no greater than 4.00 to 1.00 and is no greater than
the Consolidated Leverage Ratio of the Borrower and its Restricted
Subsidiaries in effect immediately prior to such Designated Asset
Sale, or (ii) that portion of the Net Proceeds of such Designated
Asset Sale that remains after giving effect to the prepayment,
purchase or other retirement of Indebtedness of the type permitted to
be prepaid, purchased or otherwise retired under the applicable
provision of Section 2.20 in an amount sufficient such that the
Consolidated Leverage Ratio of the Borrower and its Restricted
Subsidiaries after giving effect to the Designated Asset Sale and such
prepayment, purchase or other retirement is no greater than 4.00 to
1.00 and is no greater than the Consolidated Leverage Ratio of the
Borrower
and its Restricted Subsidiaries in effect immediately prior to such
Designated Asset Sale and application of Net Proceeds and (iii) in
either case of (i) or (ii), any non-cash proceeds of any Designated
Asset Sale. For the avoidance of doubt, for purposes of Section
6.04(b)(ix), any Designated Assets (as defined below) used to make a
Restricted Payment in kind shall be deemed to be Excess Designated
Proceeds if the Consolidated Leverage Ratio of the Borrower and its
Restricted Subsidiaries, after giving pro forma effect to such
Restricted Payment and the prepayment, purchase or other retirement
(if any) of any Indebtedness in connection with the making of such
Restricted Payment, is no greater than either (x) the Consolidated
Leverage Ratio of the Borrower and its Restricted Subsidiaries
immediately prior to such transactions or (y) 4.00 to 1.00. For
purposes of the foregoing, "Designated Assets" means any property or
assets (including Capital Stock of any Subsidiary) other than (i)
property or assets of the Printed Products Business, (ii) Capital
Stock of the Borrower and (iii) Capital Stock of any Restricted
Subsidiary conducting any material portion of the Printed Products
Business at the time of such Restricted Payment."
b. The proviso in the parenthetical in Section 6.06(a)(ii) is hereby
amended by inserting the following provision following clause (C) of
such proviso and immediately prior to the language "shall be deemed to
be cash for purposes of this provision and for no other purpose":
"and (D) the proceeds of any Designated Asset Sale,"
c. The proviso in the parenthetical in Section 6.06(b)(ii) is hereby
amended by inserting the following provision following clause (C) of
such proviso and immediately prior to the language "shall be deemed to
be cash for purposes of this provision and for no other purpose":
"and (D) the proceeds of any Designated Asset Sale,"
d. The following clarifying language is hereby inserted following "Xxxxxx
American Corp." as the Borrower in the preamble to the Credit
Agreement:
"(to be renamed Xxxxxxx Xxxxxx Holdings Corp.)"
e. Certain references to the entities holding agency and lending roles
are hereby revised as follows:
1. References to "Bear, Xxxxxxx Corporate Lending Inc." as
Joint Lead Arranger are hereby replaced with "Bear, Xxxxxxx
& Co. Inc."
2. References to "Bear, Xxxxxxx Corporate Lending Inc." as
Syndication Agent are hereby amended to read "Bear Xxxxxxx
Corporate Lending Inc."
3. References to "Citigroup Global Markets Inc." as a Lender
are hereby replaced with "Citibank, N.A."
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SECTION 2. REPRESENTATIONS AND WARRANTIES
A. ORGANIZATION.
The Borrower has full power and authority and holds all requisite
governmental licenses, permits and other approvals to enter into this Amendment.
B. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC.
The execution, delivery and performance by the Borrower of this Amendment
have been duly authorized by all necessary corporate action, and do not (i)
contravene the Borrower's charter documents or (ii) contravene any contractual
restriction, law or governmental regulation or court decree or order binding on
or affecting the Borrower, where such contravention, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
C. VALIDITY, ETC.
This Amendment constitutes the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
SECTION 3. MISCELLANEOUS
A. BINDING EFFECT
This Amendment shall be binding upon and shall inure to the benefit of the
parties hereto and each of the Lenders and their respective successors and
assigns.
B. SEVERABILITY
Any provision of this Amendment which is prohibited or unenforceable in any
jurisdiction shall, as to such provision and such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Amendment or affecting the validity or
enforceability of such provision in any other jurisdiction.
C. REFERENCE TO CREDIT AGREEMENT
On and after the effective date of the Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement, and each reference in the
other Loan Documents to the "Credit Agreement", "thereunder", "thereof" or words
of like import referring to the Credit Agreement shall mean and be a reference
to the Credit Agreement as amended by this Amendment.
D. EFFECT ON CREDIT AGREEMENT
Except as specifically amended by this Amendment, the Credit Agreement and
the other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
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E. EXECUTION
The execution, delivery and performance of this Amendment shall not, except
as expressly provided herein, constitute a waiver of any provision of, or
operate as a waiver of any right, power or remedy of the Agent, the Syndication
Agent, the Documentation Agent or any Lender under the Credit Agreement or any
of the other Loan Documents.
F. HEADINGS
The various headings of this Amendment are inserted for convenience only
and shall not affect the meaning or interpretation of this Amendment or any
provisions hereof.
G. APPLICABLE LAW
THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
H. COUNTERPARTS; EFFECTIVENESS
This Amendment shall become effective upon execution of this Amendment by
the Borrower and the Agent with the consent of the Required Lenders, which
consent shall be deemed to have been granted unless objections to this Amendment
are received by the Agent from Required Lenders prior to 5:00 p.m., New York
time, on Thursday, May 3, 2007.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
XXXXXX AMERICAN CORP.
By: /s/ Xxxxx X. Xxxx, Xx.
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Name: Xxxxx X. Xxxx, Xx.
Title: Executive Vice President and
Chief Financial Officer
[Signature Page to First Amendment]
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Agent and a Lender
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Associate
[Signature Page to First Amendment]
