Exhibit 10.3
SECOND AMENDMENT AND CONSENT
SECOND AMENDMENT AND CONSENT (this "Amendment"), dated as of November 24,
1998, among BIG FLOWER HOLDINGS, INC., a Delaware corporation ("Holdings"), BIG
FLOWER PRESS HOLDINGS, INC., a Delaware corporation ("BFPH"), TREASURE CHEST
ADVERTISING COMPANY, INC., a Delaware corporation and a Wholly-Owned Subsidiary
of BFPH ("Treasure Chest"), WEBCRAFT, INC., a Delaware corporation and a
Wholly-Owned Subsidiary of BFPH ("Webcraft"), BIG FLOWER DIGITAL SERVICES, INC.,
a Delaware corporation and a Wholly-Owned Subsidiary of BFPH ("BF Digital"), BIG
FLOWER LIMITED, a Wholly-Owned Subsidiary of BFPH and a limited company
organized under the laws of England ("BFL"), OLWEN DIRECT MAIL LIMITED, a
Wholly-Owned Subsidiary of BFL and a limited company organized under the laws of
England ("Olwen"), BIG FLOWER DIGITAL SERVICES LIMITED, an indirect Wholly-Owned
Subsidiary of BF Digital and a limited company organized under the laws of
England ("BFDSL"), TROYPEAK LIMITED, an indirect Wholly-Owned Subsidiary of BF
Digital and a limited company organized under the laws of England ("Troypeak"),
PISMO LIMITED, an indirect Wholly-Owned Subsidiary of BF Digital and a limited
company organized under the laws of England ("Pismo"), and BROADCAST SYSTEMS
SOFTWARE LIMITED, an indirect Wholly-Owned Subsidiary of BF Digital and a
limited company organized under the laws of England ("Broadcast", and together
with Treasure Chest, Webcraft, BF Digital, BFL, Olwen, BFDSL, Troypeak and
Pismo, the "Borrowers", and each, a "Borrower"), the Banks from time to time
party to the Credit Agreement referred to below, BANK OF AMERICA NT & SA and THE
INDUSTRIAL BANK OF JAPAN, LIMITED, as Co-Agents (collectively, the "Co-Agents,"
and each, a "Co-Agent"), CREDIT SUISSE FIRST BOSTON, as Documentation Agent,
BANKERS TRUST COMPANY, as Administrative Agent (the "Administrative Agent") and
BANKERS TRUST COMPANY, as Pledgee and Collateral Agent (the "Pledgee") . All
capitalized terms used herein and not otherwise defined shall have the
respective meanings provided such terms in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, Holdings, BFPH, the Borrowers, the Banks, the Co-Agents, the
Documentation Agent and the Administrative Agent are parties to an Amended and
Restated Credit Agreement, dated as of June 22, 1998 (as in effect on the date
hereof, the "Credit Agreement");
WHEREAS, Holdings, BFPH, the U.S. Borrowers, the U.S. Subsidiary
Guarantors and the Pledgee are parties to a U.S. Pledge and Security Agreement,
dated as of June 12, 1997 and amended and restated as of June 22, 1998 (as in
effect on the date hereof, the "U.S. Pledge and Security Agreement"); and
WHEREAS, subject to the terms and conditions of this Amendment, the Banks
hereby agree to grant certain consents under the Credit Agreement and the
parties hereto wish to
amend the Credit Agreement and the U.S. Pledge and Security Agreement, in each
case as herein provided;
NOW, THEREFORE, it is agreed:
I. AMENDMENTS TO CREDIT AGREEMENT.
1. Notwithstanding anything to the contrary contained in Sections 9.05,
9.11 and 9.13(a) of the Credit Agreement and the definition of Unrestricted
Subsidiary contained therein but subject to the proviso to this Section 1 below,
the Banks acknowledge and agree that (i) one or more U.S. Borrowers and/or U.S.
Subsidiary Guarantors (collectively, the "U.S. Investing Credit Parties") shall
be permitted to form a Delaware limited liability company, which shall
thereafter be at all times a direct subsidiary of such U.S. Investing Credit
Parties and an indirect Wholly-Owned Subsidiary of Holdings ("Special
Unrestricted Leasing Subsidiary II") and shall be deemed to be an Unrestricted
Subsidiary for all purposes of the Credit Agreement, (ii) Special Unrestricted
Leasing Subsidiary II shall not be required to engage in a Media Business and
(iii) each U.S. Investing Credit Party shall be permitted to make Investments
from time to time in Special Unrestricted Leasing Subsidiary II in an aggregate
amount for all such entities not to exceed $22,000,000, so long as the proceeds
of such Investments are used by Special Unrestricted Leasing Subsidiary II as
soon as reasonably practicable to make Investments in one or more special
purpose Delaware business trusts to be formed by (and thereafter to be at all
times direct Wholly-Owned Subsidiaries of) Special Unrestricted Leasing
Subsidiary II (collectively, "Special Purpose Leasing Trusts II"), which, in
turn, shall as soon as reasonably practicable use the proceeds thereof to make
advance payments of rent owing by them pursuant to lease agreements to be
entered into between them and a foreign corporation in respect of certain
property located outside the United States (the "Lease II Documents") (it being
understood that the Investments referred to in clause (iii) above are
independently permitted hereby and shall not be applied to reduce the Available
Basket Amount as provided in the definition of Unrestricted Subsidiary);
PROVIDED that (x) at the time of the creation of Special Unrestricted Leasing
Subsidiary II, all of the equity interests in Special Unrestricted Leasing
Subsidiary II shall be owned by the U.S. Investing Credit Parties and shall be
pledged to the Collateral Agent pursuant to the U.S. Pledge and Security
Agreement, (y) Special Unrestricted Leasing Subsidiary II shall not engage
(directly or indirectly) in any business other than (1) the ownership of all of
the equity interests in Special Purpose Leasing Trusts II, (2) entering into and
performing its obligations under the Lease II Documents and (3) activities
incidental thereto and to (I) the maintenance of its existence in compliance
with applicable law and (II) related legal, tax and accounting matters and (z)
all Investments made by the U.S. Investing Credit Parties in Special
Unrestricted Leasing Subsidiary II and by Special Unrestricted Leasing
Subsidiary II in Special Purpose Leasing Trusts II pursuant to clause (iii)
above shall be made on or prior to January 31, 1999.
2. Notwithstanding anything to the contrary contained in Sections 9.05,
9.11 and 9.13(a) of the Credit Agreement and the definition of Unrestricted
Subsidiary contained therein but subject to the proviso to this Section 2 below,
the Banks acknowledge and agree that each Special Purpose Leasing Trust II (i)
shall be an Unrestricted Subsidiary for all purposes of
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the Credit Agreement and (ii) shall not be required to engage in a Media
Business; PROVIDED that no Special Purpose Leasing Trust II shall engage
(directly or indirectly) in any business other than the entering into, and
performance of its obligations under, the Lease II Documents, and activities
incidental thereto and to (I) the maintenance of its existence in compliance
with applicable law and (II) related legal, tax and accounting matters.
3. The definition of "Applicable Margin" appearing in Section 11 of the
Credit Agreement is hereby amended by (i) deleting the text "0.375%" appearing
in clause (iii) of the first sentence of said definition and inserting the text
"0.500%" in lieu thereof, (ii) deleting the text "0.375%" in each place it
appears under the column entitled "Commitment Commission Fee" in the table in
said definition and inserting the text "0.500%" in lieu thereof and (iii)
deleting the text "0.250%" in each place it appears under the column entitled
"Commitment Commission Fee" in the table in said definition and inserting the
text "0.375%" in lieu thereof.
4. The definition of "Permitted Subordinated Indebtedness" appearing in
Section 11 of the Credit Agreement is hereby amended by inserting the following
sentence immediately after the first sentence appearing in said Section:
"Notwithstanding the foregoing, additional general unsecured subordinated
Indebtedness for borrowed money incurred by Holdings or BFPH in an aggregate
principal amount not to exceed $250,000,000 at any time outstanding shall also
constitute Permitted Subordinated Indebtedness for all purposes of this
Agreement, so long as (i) such additional Indebtedness is incurred on or prior
to May 31, 1999, (ii) no such Indebtedness shall be secured by any asset of
Holdings or any of its Subsidiaries, (iii) such Indebtedness shall have
substantially the same (or, from the perspective of the Banks, more favorable)
terms and provisions as are contained in the 8-7/8% Senior Subordinated Note
Indenture (including, without limitation, maturity, defaults, remedies and
subordination provisions) and (iv) promptly after the incurrence of such
Indebtedness, Holdings shall have distributed the documentation therefor to the
Agents."
II. AMENDMENTS TO U.S. PLEDGE AND SECURITY AGREEMENT.
1. Section 2 of the Pledge Agreement is hereby amended by (I) deleting
clause (A) to the proviso to clause (i) appearing in the first sentence of said
Section in its entirety and inserting the following new clause (A) in lieu
thereof:
"(A) the term "Stock" shall not include (x) any capital stock of any
corporation (other than an Excluded Investment Subsidiary Entity) that is not a
Subsidiary of any Pledgor to the extent (and only to the extent) the aggregate
amount invested in all such capital stock owned or held by the Pledgors, when
combined with the aggregate amount invested in all membership interests and
partnership interests owned or held by the Pledgors in any limited liability
company or partnership, as the case may be, (other than an Excluded Investment
Subsidiary Entity) that is not
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a Subsidiary of any Pledgor, does not exceed $5,000,000 and (y) any capital
stock of any Excluded Investment Subsidiary Entity",
(II) inserting the following text at the end of clause (iii) appearing in the
first sentence of said Section:
"PROVIDED that the term "Partnership Interest" shall not include (x) any
partnership interest in any partnership (other than an Excluded Investment
Subsidiary Entity) that is not a Subsidiary of any Pledgor to the extent (and
only to the extent) the aggregate amount invested in all such partnership
interests owned or held by the Pledgors, when combined with the aggregate amount
invested in all capital stock and membership interests owned or held by the
Pledgors of or in any corporation or limited liability company, as the case may
be, (other than an Excluded Investment Subsidiary Entity) that is not a
Subsidiary of any Pledgor, does not exceed $5,000,000 and (y) any partnership
interest in any Excluded Investment Subsidiary Entity",
(III) deleting the proviso to clause (iv) appearing in the first sentence of
said Section and inserting the following new proviso in lieu thereof:
"PROVIDED that the term "Membership Interest" shall not include (x) any
membership interest in any limited liability company (other than an Excluded
Investment Subsidiary Entity) that is not a Subsidiary of any Pledgor to the
extent (and only to the extent) the aggregate amount invested in all such
membership interests owned or held by the Pledgors, when combined with the
aggregate amount invested in all capital stock and partnership interests owned
or held by the Pledgors of or in any corporation or partnership, as the case may
be, (other than an Excluded Investment Subsidiary Entity) that is not a
Subsidiary of any Pledgor, does not exceed $5,000,000 and (y) any membership
interest in any Excluded Investment Subsidiary Entity",
(IV) deleting the word "and" appearing at the end of clause (vi) of the first
sentence of said Section and inserting a comma in lieu thereof and (V) inserting
the text "and (viii) the term "Excluded Investment Subsidiary Entity" shall mean
any corporation, partnership or limited liability company that is not a
Subsidiary of the Investment Subsidiary (or any other Pledgor) but in which the
Investment Subsidiary owns or holds capital stock, partnership interests or
membership interests, as the case may be" after clause (vii) appearing in the
first sentence of said Section.
III. MISCELLANEOUS PROVISIONS.
1. In order to induce the Banks to enter into this Amendment, each Credit
Agreement Party hereby represents and warrants that:
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(a) no Default or Event of Default exists as of the Second Amendment
Effective Date, both immediately before and immediately after giving
effect to this Amendment; and
(b) all of the representations and warranties contained in the
Credit Agreement or the other Credit Documents are true and correct in all
material respects on the Second Amendment Effective Date both immediately
before and immediately after giving effect to this Amendment, with the
same effect as though such representations and warranties had been made on
and as of the Second Amendment Effective Date (it being understood that
any representation or warranty made as of a specific date shall be true
and correct in all material respects as of such specific date).
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
3. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with Holdings and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
5. This Amendment shall become effective on the date (the "Second
Amendment Effective Date") when each Credit Agreement Party, the Required Banks
and the Pledgee shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at its Notice Office.
6. So long as the Second Amendment Effective Date occurs, Holdings shall
pay (or cause one or more to its relevant Subsidiaries to pay) to each Bank
which has executed a counterpart hereof on or prior to 5:00 P.M. (New York time)
on the later to occur of December 1, 1998 or the Second Amendment Effective
Date, a consent fee equal to 0.05% of its Revolving Loan Commitment as in effect
on the Second Amendment Effective Date. All fees payable pursuant to the
immediately preceding sentence shall be paid to the Administrative Agent within
one Business Day after the later date specified in the immediately preceding
sentence, which fees shall be distributed by the Administrative Agent to the
relevant Banks in the amounts specified in the immediately preceding sentence.
7. From and after the Second Amendment Effective Date, all references in
the Credit Agreement and each of the other Credit Documents to the Credit
Agreement and the U.S. Pledge and Security Agreement shall be deemed to be
references to the Credit Agreement or the U.S. Pledge and Security Agreement, as
the case may be, as modified hereby.
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* * *
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Amendment as of the date first above
written.
BIG FLOWER HOLDINGS, INC.,
as a Guarantor
By /s/ Authorized Signatory
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Title:
BIG FLOWER PRESS HOLDINGS, INC.,
as a Guarantor
By /s/ Authorized Signatory
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Title:
TREASURE CHEST ADVERTISING
COMPANY, INC., as a Borrower and a Guarantor
By /s/ Authorized Signatory
-------------------------------------------
Title:
WEBCRAFT, INC.,
as a Borrower and a Guarantor
By /s/ Authorized Signatory
-------------------------------------------
Title:
BIG FLOWER DIGITAL SERVICES, INC.,
as a Borrower and a Guarantor
By /s/ Authorized Signatory
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Title:
BIG FLOWER LIMITED,
as a Borrower
By /s/ Authorized Signatory
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Title:
OLWEN DIRECT MAIL LIMITED,
as a Borrower
By /s/ Authorized Signatory
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Title:
TROYPEAK LIMITED,
as a Borrower
By /s/ Authorized Signatory
-------------------------------------------
Title:
PISMO LIMITED,
as a Borrower
By /s/ Authorized Signatory
-------------------------------------------
Title:
BIG FLOWER DIGITAL SERVICES LIMITED,
as a Borrower
By /s/ Authorized Signatory
-------------------------------------------
Title:
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BROADCAST SYSTEMS SOFTWARE LIMITED,
as a Borrower
By /s/ Authorized Signatory
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Title:
BANKERS TRUST COMPANY,
Individually, as Administrative Agent
and as Collateral Agent, as Pledgee
By /s/ Authorized Signatory
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Title:
CREDIT SUISSE FIRST BOSTON,
Individually
By /s/ Authorized Signatory
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Title:
By /s/ Authorized Signatory
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Title:
CREDIT SUISSE FIRST BOSTON,
as Documentation Agent
By /s/ Authorized Signatory
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Title:
By /s/ Authorized Signatory
-------------------------------------------
Title:
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ABN AMRO BANK N.V.,
NEW YORK BRANCH
By
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Title:
By
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Title:
BANK OF AMERICA NT & SA
By /s/ Authorized Signatory
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Title:
BANKBOSTON, N.A.
By /s/ Authorized Signatory
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Title:
BANK OF MONTREAL
By
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Title:
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XXX XXXX XX XXX XXXX
By /s/ Authorized Signatory
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Title:
BANK POLSKA KASA OPIEKI, S.A.
PEKAO S.A. Group, New York Branch
By /s/ Authorized Signatory
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Title:
PARIBAS
By /s/ Authorized Signatory
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Title:
By /s/ Authorized Signatory
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Title:
FIRST UNION NATIONAL BANK
By /s/ Authorized Signatory
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Title:
CREDIT AGRICOLE INDOSUEZ
By /s/ Authorized Signatory
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Title:
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CITY NATIONAL BANK
By
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Title:
CREDIT LYONNAIS, NEW YORK BRANCH
By
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Title:
DAI-ICHI KANGYO BANK, LIMITED
By
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Title:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By /s/ Authorized Signatory
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Title:
By /s/ Authorized Signatory
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Title:
THE FUJI BANK, LIMITED
NEW YORK BRANCH
By
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Title:
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ERSTE BANK DER
OESTERREICHISCHEN SPARKASSEN AG
By /s/ Authorized Signatory
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Title:
IMPERIAL BANK
By
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Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By /s/ Authorized Signatory
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Title:
NATIONSBANK, N.A.
By /s/ Authorized Signatory
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Title:
CALIFORNIA BANK AND TRUST,
formerly Sumitomo Bank of California
By
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Title:
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THE TOKAI BANK, LIMITED
By
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Title:
THE TOYO TRUST & BANKING CO., LTD.
By /s/ Authorized Signatory
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Title:
UNION BANK OF CALIFORNIA, N.A.
By /s/ Authorized Signatory
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Title:
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MICHIGAN NATIONAL CORPORATION
By /s/ Authorized Signatory
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Title:
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