AMENDMENT NO. 2 TO CREDIT AGREEMENT
Exhibit
10.1
Dated
as
of March 31, 2006
AMENDMENT
NO. 2 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. Amendment.
As of
the Effective Date (as defined in Section 3), the Credit Agreement is hereby
amended as follows:
(a) the
definition of “Responsible Officer” contained in Section 1.1 of the Credit
Agreement is hereby deleted and replaced with the following:
“Responsible
Officer”
means,
with respect to any Person, any of the principal executive officers, managing
members or general partners of such Person but, in any event, with respect
to
financial matters, the chief financial officer, vice president (finance and
accounting), treasurer or controller of such Person.
(b) a
new
definition is added to Section 1.1 of the Credit Agreement in appropriate
alphabetical order as follows:
“Available
Basket Amount”
means,
at any date of determination, the excess of (i) the sum of (A) $35.0 million
plus
(B) the
amount of Excess Cash Flow for the period from January 1, 2006 through the
end
of the last Fiscal Year ending at least 101 days prior to such date of
determination that was not required to prepay Term Loans pursuant to
Section
2.9(b)
(Mandatory
Prepayments)
(assuming for this purpose that no credit was available against the Company’s
obligation to prepay Term Loans out of Excess Cash Flow) over (ii) the
cumulative amount applied to repay Subordinated Debt prior to such date of
determination pursuant to Section
8.6(iii)
(Prepayment
of Subordinated Debt).
(c) the
final
proviso to Section 2.9(b) of the Credit Agreement is deleted and replaced with
the following:
“provided,
further,
that
the Borrowers’ obligations to prepay Term Loans pursuant to this clause
(b)
shall be
reduced in an amount equal to the aggregate Dollar Equivalent amount of (x)
Term
Loans optionally prepaid by the Borrowers pursuant to Section
2.8(b) (Optional
Prepayments)
during
such Fiscal Year plus
(y) the
lesser of (A) the amount of Subordinated Debt prepaid by the Borrowers pursuant
to Section
8.6(iii)
(Prepayment
of Subordinated Debt)
during
such Fiscal Year and (B) the amount set forth in the foregoing clause
(x).”
(d) Section
6.1(b) of the Credit Agreement is amended by adding the following proviso at
the
end thereof immediately prior to the final period in such clause:
“;
provided,
that
the certificate of the Company Accountants with respect to whether the Company
Accountants have become aware of any such Event of Default may be provided
at
the time of delivery of the Compliance Certificate relating to such fiscal
year”
(e) Section
8.6 of the Credit Agreement is deleted and replaced with the
following:
“Section
8.6 Prepayment
of Subordinated Debt.
None
of
the Borrowers shall, nor shall they permit any of their respective Subsidiaries
to, prepay, redeem, purchase, defease or otherwise satisfy (“prepay”)
prior
to the scheduled maturity thereof in any manner, or make any payment in
contravention of any subordination terms of, any Subordinated Debt; provided,
that,
notwithstanding the foregoing, so long as no Event of Default has occurred
and
is continuing at the time of any such prepayment, the Company may prepay
Subordinated Debt (i) in connection with a Permitted Refinancing of such
Subordinated Debt pursuant to Section
8.1(p)
(Indebtedness),
(ii)
out of the Net Cash Proceeds of an Excluded Issuance within 365 days of the
consummation of such Excluded Issuance and (iii) in an amount not to exceed
(measured at the time of any prepayment pursuant to this clause (iii)) the
Available Basket Amount; pro-
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vided,
that in
the case of this clause (iii) after giving effect to such prepayment, (x) the
sum of the Dollar Equivalent amount of (A) the unused portion of the Revolving
Credit Commitments plus
(B) the
aggregate unrestricted cash balance (including Cash Equivalents) of the Company
and its Subsidiaries at such time is not less than $50,000,000 and (y) the
Borrowers would be in pro
forma
compliance with each of the financial covenants contained in Article
V (Financial Covenants) as
of the
last day of the most recent Fiscal Quarter or Fiscal Year for which a Compliance
Certificate has been delivered pursuant to clause
(c)
of
Section
6.1 (Financial Statements).”
(f) Section
10.8(b)(iv) of the Credit Agreement is amended by adding the following
immediately after the last parenthetical contained therein:
“and
the
Stock or Stock Equivalents of any Person upon the winding up or dissolution
of
such Person pursuant to a transaction that does not otherwise violate any
prohibition contained in the Credit Agreement”.
SECTION
2. Conditions
to Effectiveness.
This
Amendment shall become effective when, and only when, and as of the date
(the
“Effective
Date”)
on
which (a) the Administrative Agent shall have received counterparts of this
Amendment executed by the Borrowers and the Requisite Lenders, (b) the Company
shall have prepaid not less than $25.0 million of U.S. Term Loans following
March 27, 2006, pursuant to Section 2.8(b) of the Credit Agreement and shall
have elected to apply such prepayment entirely to the scheduled payment of
principal on the U.S. Term Loans that is due on the U.S. Term Loan Maturity
Date, (c) the Administrative Agent shall have received a
certificate signed by a duly authorized officer of the Company dated the
Effective Date, 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
Effective Date 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); and
(ii) no Default has occurred and is continuing.
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 re-
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ferring
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.
(c) The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, 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.
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 expenses of the Administrative Agent’s
counsel 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
By:
/s/ Xxxx X.
Xxxxxxx
Name: Xxxx
X. Xxxxxxx
Title: Executive
Vice President and Chief Financial Officer
ACCO
Brands Europe Ltd.,
as
U.K. Borrower
By:
/s/ Xxxx X. Fenwick____________________________
Name: Xxxx X. Xxxxxxx
Title: Director
ACCO
Nederland Holdings B.V.,
as
Dutch Borrower
By:
/s/ Xxxx Chapman____________________________
Name: Xxxx Xxxxxxx
Title: Director
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Citicorp
North America, Inc.,
as
Administrative Agent
By:
/s/ Xxxxx Kassin___________________________
Name: Xxxxx Xxxxxx
Title: Vice President
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