Exhibit 10.1(e)
FIFTH AMENDMENT
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FIFTH AMENDMENT (this "Amendment"), dated as of March 21, 2002, among
ACG HOLDINGS, INC., a Delaware corporation ("Holdings"), AMERICAN COLOR
GRAPHICS, INC., a New York corporation (the "Borrower"), the lenders party to
the Credit Agreement referred to below (the "Lenders") and BANKERS TRUST
COMPANY, as Administrative Agent (in such capacity, the "Administrative Agent").
All capitalized terms used herein and not otherwise defined herein shall have
the respective meanings provided such terms in the Credit Agreement referred to
below.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Holdings, the Borrower, the Lenders, General Electric Capital
Corporation, as Documentation Agent, Xxxxxx Xxxxxxx Senior Funding, Inc., as
Syndication Agent, and the Administrative Agent are parties to a Credit
Agreement, dated as of August 15, 1995 and amended and restated as of May 8,
1998 (as so amended and restated and as the same has been further amended,
modified and/or supplemented to, but not including, the date hereof, the "Credit
Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement as
herein provided;
NOW, THEREFORE, it is agreed:
1. The definition of "Applicable Margin" appearing in Section 1.1 of
the Credit Agreement is hereby amended by (i) deleting the last sentence
appearing in said definition and inserting the following new sentence in lieu
thereof:
"Notwithstanding anything to the contrary contained above in this
definition, (i) at all times prior to the Specified Financial Covenant
Compliance Date, the percentages specified as "Applicable Margins" in
clauses (i), (ii), (iii) and (v) of the first sentence of this definition
and in the table above (other than shall the percentage specified for the
Unused Line Fee) shall be increased by 0.25% and (ii) the Applicable
Margins shall be those described in the first sentence of this definition
(as increased pursuant to preceding clause (i), in the applicable
circumstances) at all times during which there shall exist a Default or any
Event of Default."
and (ii) inserting the following new sentence at the end of said definition:
"It is understood and agreed that (x) the increased "Applicable Margins"
applicable as a result of inclusion of clause (i) of the preceding sentence
pursuant to the Fifth Amendment shall be effective for all purposes of this
Agreement on and after the Fifth Amendment Effective Date and prior to the
Specified Financial Covenants Compliance
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Date and shall not be effective for periods prior to the Fifth Amendment
Effective Date and (y) the definition of Specified Financial Covenants
Compliance Date appearing above in this definition may be amended as
provided in the definition thereof."
2. The definition of "Consolidated EBITDA" appearing in Section 1.1 of
the Credit Agreement is hereby amended by inserting the following proviso at the
end of said definition:
"provided that for purposes of any determination of compliance with Section
8.9 (including any determination of compliance with Section 8.9 pursuant to
Section 7.13 in connection with a Permitted Transaction), (I) for any Test
Period (or Calculation Period) which includes any portion of the period
from April 1, 2002 to and including December 31, 2002, "Consolidated
EBITDA" shall be determined as otherwise required above pursuant to this
definition (without regard to this proviso), adjusted by adding thereto
certain one-time cash restructuring costs identified to the Administrative
Agent and actually paid by Holdings and its Subsidiaries during such period
(to the extent deducted in any determination of Consolidated EBITDA
(directly or through reductions to Consolidated Net Income) during such
period), so long as (x) the aggregate amount of all such costs paid and
added to Consolidated EBITDA pursuant to this clause (I) does not exceed
$7,000,000 and (y) Holdings has at all times complied with the requirements
of Sections 7.1(a) and (b), requiring Holdings to certify as to the amount
and type of such costs incurred in any fiscal quarter of Holdings included
in such Test Period and added back to Consolidated EBITDA for such Test
Period and (II) during the period commencing on June 30, 2002 and ending on
January 1, 2003, "Consolidated EBITDA" shall be determined as otherwise
required above pursuant to this definition (after giving effect to clause
(I) of this proviso but without regard to this clause (II)), adjusted by
adding $5,000,000 thereto".
3. Section 1.01 of the Credit Agreement is hereby further amended by
inserting the following new definitions in appropriate alphabetical order in
said Section:
"Fifth Amendment Effective Date" shall have the meaning provided
in the Fifth Amendment.
"Fifth Amendment" shall mean the Fifth Amendment to this
Agreement, dated as of March 7, 2002.
"Specified Financial Covenants Compliance Date" shall mean date
of the first delivery by Holdings of a compliance certificate pursuant to
(and in accordance with the requirements of) Section 7.1(a) or (b) in
respect of any fiscal quarter or fiscal year of Holdings ending on or after
the fiscal quarter of Holdings ended December 31, 2002, demonstrating,
inter alia, compliance with the financial covenants contained in Sections
8.9, 8.10 and 8.11 as at the end of the relevant fiscal quarter or fiscal
year, as the case may be, it being understood and agreed that this
definition (as used anywhere in this Agreement) may be amended by the
Required Lenders with the consent of Holdings and the Borrower.
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4. Exhibit I to the Credit Agreement is hereby amended by (i)
redesignating subclause (iv) of clause (d) appearing in said Exhibit as
subclause (v) and (ii) inserting new subclause (iv) after subclause (iii)
appearing in clause (d) of said Exhibit:
", [and] (iv) the type and amount of costs (set forth in reasonable detail)
incurred during each fiscal quarter included in the Test Period then last
ended and added back to Consolidated EBITDA for such Test Period pursuant
to clause (I) of the proviso appearing in the definition of "Consolidated
EBITDA"".
5. In order to induce the Lenders to enter into this Amendment, each of
Holdings and the Borrower hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Fifth Amendment
Effective Date (as defined below), both before and after giving effect to
this Amendment;
(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 Fifth Amendment Effective Date both before and
after giving effect to this Amendment, with the same effect as though such
representations and warranties had been made on and as of the Fifth
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);
6. 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.
7. 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 the Borrower and the Administrative Agent.
8. 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.
9. This Amendment shall become effective on the date (the "Fifth
Amendment Effective Date") when Holdings, the Borrower, the Administrative Agent
and the Lenders constituting the Required Lenders 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.
10. So long as the Fifth Amendment Effective Date occurs, the Borrower
shall pay to each Lender which has executed a counterpart hereof on or prior to
5:00 P.M. (New York time) on the later to occur of March 21, 2002 or the Fifth
Amendment Effective Date, a consent fee equal to 0.25% of the sum of (x) its
Revolving Loan Commitment as in effect on the Fifth
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Amendment Effective Date and (y) the aggregate principal amount of its A Term
Loans and B Term Loans outstanding on the Fifth 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 Lenders in the amounts specified in the
immediately preceding sentence.
11. From and after the Fifth Amendment Effective Date, all references
in the Credit Agreement and each of the Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement as amended hereby.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
ACG HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: Executive Vice President/CFO
AMERICAN COLOR GRAPHICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President/CFO
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BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By: /s/ Xxxxx X. XxXxxxx
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Title: Director
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GENERAL ELECTRIC CAPITAL CORPORATION,
Individually and as Documentation Agent
By: /s/ Xxxx Xxxxxxxx Xxxxxx
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Title: Manager-Operations
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XXXXXX XXXXXXX SENIOR FUNDING, INC.,
Individually and as Syndication Agent
By: /s/ Xxxxxxx Xxxxxx
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Title: Vice President
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NORTH AMERICAN SENIOR FLOATING RATE
FUND INC.
By: XXXXXXXXX CAPITAL PARTNERS LLC
as Subadvisor
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Title: Partner
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DEUTSCHE FINANCIAL SERVICES CORPORATION
By:
------------------------------------
Name:
Title:
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EMERALD ORCHARD LIMITED
By: /s/ Xxxxx X. Xxxxxx
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Title: Attorney In Fact
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HIGHLAND LEGACY
By: Highland Capital Management, L.P.,
As Collateral Manager
By: /s/ Xxxxx Xxxxx
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Title: Executive Vice President/
CFO
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FLEET BUSINESS CREDIT CORPORATION
By:
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Name:
Title:
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TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Title: Senior Vice President
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UPS CAPITAL CORPORATION
By: /s/ Xxx Xxxxxxxxx
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Title: Senior Credit Officer
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KZH CYPRESSTREE-1 LLC
By: /s/ Xxxxx Xxx
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Title: Authorized Agent
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KZH HIGHLAND-2 LLC
By: /s/ Xxxxx Xxx
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Title: Authorized Agent
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ORIX BUSINESS CREDIT, INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Title: Vice President
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