Exhibit 10.2
FIRST AMENDMENT AND CONSENT
FIRST AMENDMENT AND CONSENT (this "Amendment"), dated as of November 10,
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, and
BANKERS TRUST COMPANY, as Administrative Agent (the "Administrative Agent"). 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"); and
WHEREAS, subject to the terms and conditions of this Amendment, the Banks
wish to grant certain consents under the Credit Agreement and the parties hereto
wish to amend the Credit Agreement, in each case as herein provided;
NOW, THEREFORE, it is agreed:
I. AMENDMENTS AND CONSENTS TO CREDIT AGREEMENT.
1. Section 8.11(a) of the Credit Agreement is hereby amended by (i)
inserting the text "(other than a Shell Corporation, so long as it remains a
Shell Corporation)" immediately after the text "each Domestic Subsidiary"
appearing in clause (x) of said Section, (ii) inserting the text "(other than a
Shell Corporation, so long as it remains a Shell Corporation)" immediately after
the text "each U.K. Subsidiary" appearing in clause (y) of said Section, (iii)
inserting the text "(I) in the case of an Immaterial U.K. Subsidiary, as soon as
reasonably practicable but in any event within 90 days after its establishment,
creation or acquisition, and (II) in the case of any other U.K. Subsidiary, at
the time of its establishment, creation or acquisition," immediately following
the text "that does not become a U.K. Borrower pursuant to Section 6," appearing
in clause (y)(i) of said Section and (iv) inserting the text "(I) in the case of
an Immaterial U.K. Subsidiary, as soon as reasonably practicable but in any
event within 90 days after its establishment, creation or acquisition, and (II)
in the case of any other U.K. Subsidiary, at the time of its establishment,
creation or acquisition," immediately after the text "(ii)" appearing in clause
(y) of said Section.
2. Notwithstanding anything to the contrary contained in Section 9.01 of
the Credit Agreement, Liens incurred or deposits made by a U.K. Credit Party to
secure the Indebtedness permitted pursuant to Section 6 of Part I of this
Amendment below shall be permitted.
3. Notwithstanding anything to the contrary contained in Section 9.02,
9.04 or 9.05 of the Credit Agreement, (i) Holdings may transfer to the
Investment Subsidiary any equity interests representing an Investment
distributed to it as permitted by clause (ii) of Section 4 below in exchange for
a promissory note substantially in the form of an Intercompany Note (the
"Holdings Intercompany Note"), so long as such Holdings Intercompany Note is
pledged to the Collateral Agent pursuant to the U.S. Pledge and Security
Agreement and (ii) the Investment Subsidiary may incur Indebtedness to Holdings
evidenced by Holdings Intercompany Notes to the extent issued in connection with
a transfer permitted by clause (i) above.
4. Notwithstanding anything to the contrary contained in Section 9.02 or
9.03 of the Credit Agreement, (i) BFPH may distribute all of the capital stock
of the Investment Subsidiary to Holdings, so long as, immediately after giving
effect to such distribution, all of the capital stock of the Investment
Subsidiary is pledged to the Collateral Agent pursuant to, and in accordance
with the requirements of, Section 9.11(y)(ii) of the Credit Agreement and (ii)
BFPH may distribute to Holdings any equity interests representing an existing
Investment set forth on Schedule IX to the Credit Agreement (other than the
Investment referred to in item 2 on said Schedule) held by BFPH, so long as,
immediately following such distribution, (x) Holdings contributes any such
Investment as a capital contribution to the Investment Subsidiary or transfers
such Investment to the Investment Subsidiary in exchange for a Holdings
Intercompany Note and (y) any such Holdings Intercompany Note is pledged to the
Collateral Agent pursuant to the U.S. Pledge and Security Agreement.
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5. Section 9.03(x) of the Credit Agreement is hereby amended by inserting
the text ", either directly or through a Wholly-Owned Subsidiary of Holdings,"
immediately following the text "are used by Holdings" appearing in said Section.
6. Notwithstanding anything to the contrary contained in Section 9.04 of
the Credit Agreement, Indebtedness of any U.K. Credit Party evidenced by a
secured promissory note (each, a "U.K. Permitted Seller Note") issued as
consideration to a seller in connection with a Permitted Acquisition shall be
permitted, so long as (i) no Default or Event of Default is then in existence or
would result from the respective issuance, (ii) the aggregate principal amount
of any such U.K. Permitted Seller Note at any time outstanding does not exceed
the remainder of (x) the initial aggregate principal amount of such U.K.
Permitted Seller Note LESS (y) the sum of (I) the aggregate amount of all
repayments of principal thereof after the date of its issuance, (II) the
aggregate amount of all redemptions or other acquisitions for value of such U.K.
Permitted Seller Note after the date of its issuance pursuant to, and in
accordance with the terms of, such U.K. Permitted Seller Note and (III) the
aggregate amount of all reductions to the principal amount thereof permitted or
required under the terms of such U.K. Permitted Seller Note or the acquisition
agreement governing the respective Permitted Acquisition and (iii) such
Indebtedness is secured only by a cash deposit made by or on behalf of such U.K.
Credit Party in an account at a financial institution in an amount not to exceed
the then principal amount owing by such U.K. Credit Party under such U.K.
Permitted Seller Note.
7. Section 9.11 of the Credit Agreement is hereby amended by (i) deleting
the text "and (vi) in the case of a U.K. Subsidiary, such new U.K. Subsidiary"
appearing in said Section and inserting the text ", (vi) in the case of an
Immaterial U.K. Subsidiary, as soon as reasonably practicable but in any event
within 90 days after its establishment, creation or acquisition, such new
Immaterial U.K. Subsidiary executes a counterpart of the Non-Borrower U.K.
Subsidiaries Guaranty (in the event such Immaterial U.K. Subsidiary does not
become a U.K. Borrower pursuant to Section 6) or complies with the requirements
of Section 6 and becomes a U.K. Borrower hereunder and (in all cases) executes a
counterpart of the U.K. Charge Over Shares and Notes and, to the extent required
pursuant to Section 8.15, executes a counterpart of the Non-Borrower U.S.
Subsidiaries Guaranty and the U.S. Pledge Agreement, (vii) in the case of a U.K.
Subsidiary that is not an Immaterial U.K. Subsidiary, such new U.K. Subsidiary"
in lieu thereof, and (ii) deleting the text "and (v)" appearing in said Section
and inserting the text "and (viii)" in lieu thereof.
8. Section 9.13 of the Credit Agreement is hereby amended by (i) deleting
the text "Treasure Chest, Webcraft and BF Digital" appearing in clause (d) of
said Section and inserting the text "any U.S. Borrower or any U.S. Subsidiary
Guarantor" in lieu thereof and (ii) inserting the following new clause (e) at
the end of said Section:
"(e) Notwithstanding anything to the contrary contained in Section
9.13(a), the Investment Subsidiary may engage, directly or indirectly, in the
Media Business.".
9. The definition of "Shell Corporation" appearing in Section 10 of the
Credit Agreement is hereby amended by (i) inserting the text "(x)" immediately
following the
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text "Section 8.11(e)," appearing in said definition, (ii) inserting the text
"and (y) any U.K. Subsidiary which does not trade (whether for its own account
or for that of another) or owe or have outstanding any material liabilities"
immediately following the text "which has not yet occurred" appearing in said
definition and (iii) inserting the text "or owned (whether legally or
beneficially)" immediately after the text "at any time held" appearing in said
definition.
10. The definition of "Special Unrestricted Leasing Subsidiary" appearing
in Section 10 of the Credit Agreement is hereby amended by deleting the text
"and a direct subsidiary of Treasure Chest, Webcraft and BF Digital" appearing
in said definition in its entirety.
11. The definition of "Unrestricted Subsidiary" appearing in Section 10 of
the Credit Agreement is hereby amended by deleting clause (iii) appearing in
said definition in its entirety and redesignating clause (iv) of said definition
as clause (iii).
12. Section 10 of the Credit Agreement is hereby further amended by
inserting the following definition in appropriate alphabetical order in said
Section:
"Immaterial U.K. Subsidiary" shall mean, at any time, any U.K. Subsidiary
the book value of the gross assets as of the end of fiscal quarter then last
ended of which, and the net revenues for the four fiscal quarters then last
ended of which, do not exceed at such time 10% of the book value of the
consolidated gross assets or consolidated net revenues, as the case may be, of
Holdings and its Subsidiaries as of the end of the fiscal quarter of Holdings
then last ended or for the four fiscal quarters of Holdings then last ended.
"Investment Subsidiary" shall mean XL Capital Corporation (formerly known
as Big Flower Capital Corporation), a Delaware corporation.
II. MISCELLANEOUS PROVISIONS.
1. In order to induce the Banks to enter into this Amendment, each Credit
Agreement Party hereby represents and warrants that:
(a) no Default or Event of Default exists as of the 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 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 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).
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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 "Amendment
Effective Date") when (i) each Credit Agreement Party and the Required Banks
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 and (ii)
the Investment Subsidiary shall have complied with the requirements of clause
(y)(v) of Section 9.11 of the Credit Agreement.
6. From and after the Amendment Effective Date, all references in the
Credit Agreement and each of the other Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement 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
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Title:
WEBCRAFT, INC.,
as a Borrower and a Guarantor
By /s/ Authorized Signatory
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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
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Title:
PISMO LIMITED,
as a Borrower
By /s/ Authorized Signatory
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Title:
BIG FLOWER DIGITAL SERVICES LIMITED,
as a Borrower
By /s/ Authorized Signatory
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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 and as
Administrative Agent
By /s/ Authorized Signatory
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Title:
CREDIT SUISSE FIRST BOSTON,
Individually
By
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Title:
By
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Title:
CREDIT SUISSE FIRST BOSTON,
as Documentation Agent
By
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Title:
By
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Title:
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ABN AMRO BANK N.V.,
NEW YORK BRANCH
By /s/ Authorized Signatory
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Title:
By /s/ Authorized Signatory
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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 /s/ Authorized Signatory
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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 /s/ Authorized Signatory
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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
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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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