FOURTH AMENDMENT TO EQUIPMENT FACILITY
AND REVOLVING CREDIT AGREEMENT
THIS AMENDMENT dated as of November 5, 1999, by and between SUMMIT BANK
(the "Bank") and VESTCOM INTERNATIONAL, INC., a New Jersey corporation
("Borrower").
WHEREAS, the Bank and Borrower are parties to a certain Equipment
Facility and Revolving Credit Agreement dated as of August 13, 1997, as amended
by Amendment Number One dated July 28, 1998, Waiver and Amendment Number Two
dated February 17, 1999 and a certain Memorandum dated as of March 29, 1999 (as
same has been amended from time to time, the "Existing Credit Agreement"),
pursuant to which the Bank has agreed to make certain loans to Borrower;
WHEREAS, Borrower has requested the Bank, and the Bank has agreed, to
extend the term of the Existing Credit Agreement and to amend the Existing
Credit Agreement, all on the terms and conditions contained in this Amendment.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, the parties hereto agree as follows:
1. Definitions.
a. All defined terms used herein and not defined herein shall
have the meanings ascribed thereto in the Existing Credit Agreement.
b. As used herein and hereafter as used in the Credit
Documents, the term "Agreement", "Credit Agreement", and any other term
referring to the Existing Credit Agreement on or after the date hereof, shall
mean the Existing Credit Agreement as amended by this Amendment.
c. As used herein and hereafter as used in the Credit
Documents, the term "Revolving Credit Note" shall mean and refer to the
Revolving Credit Note as defined in the Existing Credit Agreement and as amended
by the Allonge to Revolving Credit Note dated the date hereof (the "Allonge").
d. The definition of each of the following terms contained in
the Existing Credit Agreement is hereby amended and restated to read as follows:
(i) Applicable Margin. The term "Applicable Margin" means
initially the percentage corresponding to the Consolidated
Funded Debt to EBITDA Ratio of the Borrower set forth on the
table set forth below based on the quarterly financial
statements for the fiscal period ending as of June 30, 1997,
provided, however, that from and after the first day of any
Applicable Margin Adjustment Period to and including the last
day of such Applicable Margin Adjustment Period, the
Applicable Margin shall be determined by reference to
percentages corresponding to the
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Consolidated Funded Debt to EBITDA Ratio of the Borrower for
the Test Period last ended, in accordance with the following
table:
Applicable
Margin for
If Such Ratio Commitment Applicable Margin Alternate Base
Is: Fee for LIBOR Loans Rate Loans
------------- ---------- ----------------- --------------
Less than 25 basis 125 basis points
1.15 to 1.00 points (.25%) (1.25%) -0-
Greater than 25 basis 150 basis points 50 basis points
or equal to points (.25%) (1.50%) (.50%)
1.15 to 1.00,
but less than
1.50 to 1.00
Greater than 30 basis 200 basis points 75 basis points
or equal to points (2.00%) (.75%)
1.50 to 1.00, (.30%)
but less
than 2.00 to
1.00
Greater than 37.5 basis 225 basis points 100 basis points
or equal to points (2.25%) (1.00%)
2.00 to 1.00, (.375%)
but less than
2.50 to 1.00
Greater than 50 basis 265 basis points 150 basis points
or equal to points (2.65%) (1.50%)
2.50 to 1.00 (.50%)
Notwithstanding the foregoing, at all times during which there
exists an Event of Default, the Applicable Margin as
determined in accordance with the foregoing table (A) with
respect to Alternate Base Rate Loans, shall be an additional
100 basis points (1.00%) and (B) with respect to LIBOR Loans,
shall be an additional 225 basis points (2.25%), added to the
applicable rate of interest to calculate the "Default Rate"
pursuant to the relevant Note.
(ii) Consolidated Fixed Charge Ratio. The term "Consolidated
Fixed Charge Ratio" means the ratio of (i) the Borrower's
Consolidated EBITDA to (ii) the Current Maturities of the
Borrower's Funded Debt plus all cash and non-cash
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interest (including, without limitation, capitalized interest)
paid during the relevant Test Period on or in connection with
any Indebtedness of the Borrower of any type, plus net taxes
paid in each case determined for the relevant Test Period on a
Consolidated basis in accordance with GAAP, consistently
applied.
(iii) Guarantors. The term "Guarantors" means, collectively,
all of the Subsidiaries of the Borrower listed on Schedule A
hereto and any Subsidiary of the Borrower that becomes a
guarantor of the Obligations in accordance with Section 8.08
of the Credit Agreement, each of which is also referred to
herein individually as a "Guarantor".
(iv) Guaranties. The term "Guaranties" means, collectively,
the Amended and Restated Guaranty and Suretyship Agreement
dated November 5, 1999 executed by the Guarantors in favor of
the Bank and any other guaranty agreement executed by any
Subsidiary of the Borrower pursuant to or in connection with
the Credit Agreement.
(v) LIBOR Loan. The term "LIBOR Loan" means any Loan at all
times during which such Loan bears interest based upon LIBOR.
(vi) Equipment Facility Expiration Date. The term "Equipment
Facility Expiration Date" means the date that is the earliest
to occur of (a) January 1, 2002, (b) the date on which the
Maximum Equipment Facility Amount has been funded by the Bank,
and (c) the date on which this Agreement is terminated
pursuant to Section 3.03 hereof.
(vii) Revolving Credit Expiration Date. The term "Revolving
Credit Expiration Date" means the earlier to occur of (a)
January 1, 2002, as the same may be extended from time to
time, in the sole and absolute discretion of the Bank and (b)
the date on which this Agreement is terminated pursuant to
Section 3.03 hereof.
e. The definition of the term "Interest Period" contained in
the Existing Credit Agreement is hereby amended by adding thereto a new
paragraph (c), to be inserted between the end of paragraph (b) and before the
proviso paragraphs, and to read as follows:
"(c) If at any time the Borrower fails to select an Interest
Period in connection with a LIBOR Loan, the Borrower shall be
deemed to have selected an Interest Period of 1 month in
duration."
f. The following defined terms (and all references thereto)
contained in the Existing Credit Agreement are hereby deleted in their entirety:
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(i) Fixed Rate; and
(ii) Fixed Rate Loan.
g. The following defined term is hereby added to the Existing
Credit Agreement:
"Closing Net Worth. The term "Closing Net Worth" means
Consolidated Stated Net Worth determined as of the date of the
initial public offering of stock by the Borrower, August 1,
1997."
2. Amendments to Existing Credit Agreement.
a. The last sentence of Section 1.01 of the Existing Credit
Agreement is hereby deleted in its entirety and is replaced with the following:
"The Equipment Loans funded on or after November 5, 1999 shall
bear interest, at the Borrower's option, at an annual rate of
interest equal to LIBOR plus 225 basis points (i.e. 2.25%).
The Borrower shall give the Bank an irrevocable notice (which
may be by telephone and promptly confirmed in writing) of such
election, together with the desired duration of the Interest
Period for such Loan, at least 2 Business Days prior to the
funding of such Equipment Loan."
b. The fifth sentence of Section 1.03 of the Existing Credit
Agreement is hereby deleted in its entirety and is replaced with the following:
"Promptly upon receipt of said notice, the Bank shall give the
Borrower notice of the interest rates (consistent with Section
1.01) applicable to the proposed Equipment Loan based upon the
desired Equipment Loan Term."
c. Section 1.04 of the Existing Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"Interest on Equipment Loans/Term Loan. Interest on each
Equipment Loan funded on or after November 5, 1997 shall
accrue at the interest rate selected by the Borrower in
accordance with Section 1.01 and shall be payable monthly, in
arrears, on each Payment Date during which such Loan is
outstanding, and upon payment in full of the aggregate
outstanding balance thereof."
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d. Section 1.12(c) of the Existing Credit Agreement is hereby
amended by deleting the reference to "Section 1.13" contained therein, and
substituting therefor a reference to "Section 1.12".
e. Notwithstanding anything in this Amendment to the contrary,
the interest rate in effect on all LIBOR Loans outstanding as of the date of
this Amendment shall continue unchanged until the expiration of their respective
Interest Periods, at which time the interest rate on such outstanding LIBOR
Loans shall be set in accordance with the provisions of this Amendment.
f. Section 4.05 of the Existing Credit Agreement is hereby
amended by renumbering clause (iv) thereof to be clause (v), deleting the "or"
at the end of clause (iii) and substituting therefor a comma, and inserting
between clauses (iii) and clause (v), a new clause (iv) that shall read as
follows:
"(iv) default by the Borrower in making any Borrowing
of a LIBOR Loan under the Equipment Facility after
the Borrower has given notice thereof in accordance
with Section 1.03 hereof, or"
g. Sections 8.03 (B)(iv) and (v) of the Existing Credit
Agreement are hereby amended and restated in their entirety to read as follows:
"(iv) the aggregate cash and non-cash consideration
paid or exchanged by the Borrower (including, without
limitation, any Indebtedness assumed by the Borrower,
and all amounts payable under or in respect of any
non-compete covenants, earn-outs or similar
agreements) shall not exceed (x) $5,000,000 in any
single acquisition and (y) $15,000,000 in the
aggregate for all acquisitions in any period of 12
consecutive months. For the purposes of determining
the consideration paid or exchanged in any such
acquisition, the value attributed to any capital
stock of the Borrower given or exchanged shall not be
included therein; and
(v) immediately after giving effect to such proposed
acquisition and the incurrence or assumption of
Indebtedness, if any, in connection therewith,
Sections 8.01, 8.02, 8.13, 8.14, 8.15, 8.16 and 8.17
hereof shall not have been violated, and no other
default or Event of Default shall result from such
proposed acquisition."
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h. Section 8.12 of the Existing Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"Consolidated Stated Net Worth. Permit as at the end
of any Test Period Consolidated Stated Net Worth to
be less than the sum of (A) 90% of Closing Net Worth,
plus (B) 90% of the Borrower's aggregate net income
for all fiscal years subsequent to the Closing Date
in which the Borrower reported positive net income
(excluding any extraordinary items or non-recurring
items), plus (C) 90% of year-to-date earnings for the
Test Period if the Borrower reported positive net
income (excluding any extraordinary items or
non-recurring items), plus (D) 100% of net proceeds
of any equity offerings subsequent to August 1, 1997
(the date of the Borrower's initial public offering
of stock), tested quarterly and determined in each
case on a Consolidated basis in accordance with GAAP,
consistently applied."
i. Section 8.13 of the Existing Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"Consolidated Tangible Net Worth. Permit at any time,
its Consolidated Tangible Net Worth to be less than
10% of the Consolidated Stated Net Worth, tested
quarterly and determined in accordance with GAAP,
consistently applied."
3. Conditions to Amendment.
a. Unless otherwise agreed to by the Bank in writing,
concurrently with the execution of this Amendment, and as a condition of its
effectiveness:
(i) Borrower shall execute and deliver to the Bank
the Allonge in the form annexed hereto as Exhibit A;
(ii) Borrower and each of the Guarantors shall
execute and deliver to the Bank a Security Agreement in the form annexed hereto
as Exhibit B (the "Security Agreement"), granting to the Bank a valid security
interest in all present and future inventory and accounts receivable of the
Borrower and each of the Guarantors, and all proceeds thereof;
(iii) Borrower and each Guarantor shall execute and
deliver to the Bank UCC-1 financing statements, satisfactory in form and
substance to the Bank, necessary to perfect a first position security interest
in the collateral described in the Security Agreement;
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(iv) Each Subsidiary of the Borrower shall execute
and deliver to the Bank an Amended and Restated Guaranty and Suretyship
Agreement in the form annexed hereto as Exhibit C, guaranteeing all present and
future obligations of the Borrower to the Bank;
(v) Borrower shall have paid the $15,000 facility fee
due and payable in connection with this Amendment and all costs and expenses
(including, without limitation, reasonable attorneys' fees) incurred by the Bank
in connection with this Amendment;
(vi) Borrower and the Guarantors shall have delivered
to the Bank a Landlord Waiver and Estoppel, in form and substance reasonably
satisfactory to the Bank, from such landlords of Borrower and the Guarantors as
may be reasonably requested by the Bank;
(vii) The Bank shall have received the legal opinion
of counsel to Borrower and the Guarantors, covering such matters reasonably
requested by the Bank and in form and substance reasonably satisfactory to the
Bank; and
(viii) The Bank shall have received all searches,
reports, certificates, corporate resolutions and other documents and instruments
as may reasonably be required by the Bank to verify the accuracy of the
representations and warranties and compliance with the covenants contained in
the Credit Agreement.
5. Borrower's Representations and Warranties. Except as otherwise
stated in Schedule 2 hereto, Borrower hereby represents and warrants to the Bank
as follows:
a. All of the representations and warranties made by Borrower
in the Existing Credit Agreement and in the other Loan Documents remain true,
complete and accurate as of the date hereof and as applied to this Amendment and
the Credit Documents, except to the extent that Borrower has advised the Bank
otherwise in writing.
b. No Event of Default and no default exists, and no event has
occurred which with notice or lapse of time or both would constitute a default
or an Event of Default under the Existing Credit Agreement, except to the extent
that Borrower has previously advised the Bank otherwise in writing and the Bank
has waived such default in writing or except as described on Schedule 2 hereto,
which the Bank hereby waives, and the Bank acknowledges that it is not aware of
any existing defaults under the Loan Documents other than those identified in
Schedule 2 hereto; Borrower has no claims, defenses or set-offs to its
obligations under the Credit Documents.
c. As of the date hereof, there has been no material adverse
change in the financial condition of Borrower from that reflected in the
financial statements of the Borrower dated as of June 30, 1999.
d. The execution and performance by Borrower of this
Amendment, the Security Agreement and the Allonge to Revolving Credit Note, by
the Guarantors of the Guaranty, and the Security Agreement, and by the Borrower
and the Guarantors of all other documents and agreements
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in connection herewith (collectively, the "Other Modification Documents") have
been duly authorized by all necessary corporate action, will not violate any
provision of law applicable to Borrower or any Guarantor or any provision of
their respective charters or by-laws, will not result in a breach of or
constitute a default or require any consent under, or result in the creation of
any lien, charge or encumbrance upon any property or assets of Borrower or any
Guarantor pursuant to any indenture or other agreement or instrument by which
Borrower or any Guarantor or any of their respective properties may be bound or
affected. This Amendment, the Allonge, the Guaranty, the Security Agreement, and
the Other Modification Documents constitute legal, valid and binding agreements
of Borrower and the Guarantors, as the case may be, enforceable in accordance
with their respective terms, except as enforceability may be affected by
bankruptcy, insolvency, moratorium or other laws affecting creditors' rights
generally.
e. The advent of the year 2000 shall not materially adversely
affect Borrower's or any Guarantor's operations or the performance of its
information technology. Without limiting the generality of the foregoing, (i)
the hardware and software utilized by Borrower and each Guarantor are designed
to be used prior to, during, and after calendar year 2000 A.D. and such hardware
and software will operate during each such time period without material error
relating to date data, specifically including any material error relating to, or
the conduct of, date data which represents or references different centuries or
more than one century, (ii) the hardware and software utilized by Borrower and
each Guarantor will not abnormally end or provide materially invalid or
incorrect results as a result of date data, and (iii) the hardware and software
utilized by Borrower and each Guarantor have been designed to ensure year 2000
A.D. compatibility in all material respects, including date data, century
recognition, leap year, calculations which accommodate same century and
multicentury formulas and date values, and date data interface values that
reflect the century.
5. Events of Default. A breach of any covenant, representation or
warranty set forth in this Amendment by Borrower shall constitute an Event of
Default under the Credit Agreement.
6. Effect of Amendment. Except as expressly amended and supplemented
hereby, the Existing Credit Agreement and all other Loan Documents in effect as
of the date hereof shall remain in full force and effect, unmodified, and are
enforceable against Borrower in accordance with their respective terms.
7. Further Modifications. This Amendment contains all of the
modifications to the Existing Credit Agreement, and no further or other
modifications to the Existing Credit Agreement shall be effective unless in
writing executed by the Bank and Borrower.
8. Binding Effect. This Amendment shall extend to and bind the parties
hereto and their respective successors and assigns.
9. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New Jersey.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
SUMMIT BANK
By: /s/ Xxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
ATTEST: VESTCOM INTERNATIONAL, INC.
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------------- -----------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx
Title: President and COO Title: EVP and CFO
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EXHIBIT A
ALLONGE TO REVOLVING CREDIT NOTE
November 5, 1999
FOR VALUE RECEIVED, the Revolving Credit Note dated August 13, 1997
(the "Note") of VESTCOM INTERNATIONAL, INC. (the "Borrower") in the original
principal amount of $25,000,000, to which this Allonge is attached, evidencing
advances made by SUMMIT BANK to the Borrower under a certain Equipment Facility
and Revolving Credit Agreement also dated August 13, 1997, is hereby amended by
extending the maturity date thereof from August 12, 2000 until January 1, 2002.
This Allonge is limited precisely as drafted, and except as expressly
stated herein, the Note, and all other terms thereof, shall continue in full
force and effect, unchanged.
Attest: VESTCOM INTERNATIONAL, INC.
By:
---------------------------------- ------------------------
Name: Name:
Title: Title:
SUMMIT BANK
By:
------------------------
Xxxxxxx Xxxxxx
Vice President
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