Exhibit 10.121
--------------
SEVENTH AMENDMENT
-----------------
This Seventh Amendment (this "Amendment") to the Credit Agreement (as
---------
defined below) is entered into as of this 30th day of March, 2000 among IMPAC
GROUP, INC., a Delaware corporation (the "Company"), AGI INCORPORATED, an
-------
Illinois corporation ("AGI"), KLEARFOLD, INC., a Pennsylvania corporation
---
("Klearfold", and together with AGI, each a "L/C Borrower" and collectively, the
--------- ------------
"L/C Borrowers"), Bank of America, N.A., as Agent (the "Agent"), and the
------------- -----
financial institutions from time to time party thereto (the "Lenders"). Unless
-------
otherwise specified herein, capitalized terms used in this Agreement shall have
the meanings ascribed to them by the Credit Agreement (as defined below).
RECITALS
--------
WHEREAS, the Company, the L/C Borrowers, the Agent and the Lenders are
party to the Amended and Restated Multicurrency Credit Agreement, dated as of
March 12, 1998 and as amended and restated as of July 7, 1998 (as amended by
that certain First Amendment dated as of September 11, 1998, that certain Second
Amendment dated as of November 13th, 1998, that certain Third Amendment dated as
of November 16, 1998, that certain Fourth Amendment dated as of December 10,
1998, that certain Fifth Amendment dated as of January 11, 1999 and that certain
Sixth Amendment dated as of November 2, 1999, the "Credit Agreement");
----------------
WHEREAS, the Company, the L/C Borrowers, the Agent and the undersigned
Lenders now wish to enter into certain further amendments to the Credit
Agreement to, among other things, permit Commercial Lithographing LLC, a
Delaware limited liability company and Wholly-Owned Subsidiary of the Company,
to acquire substantially all of the operating assets of Commercial Lithographing
Company, a Kentucky corporation, as more specifically set forth herein;
NOW THEREFORE, in consideration of the mutual execution hereof and other
good and valuable consideration, the parties hereto agree as follows:
Section 1. Amendments. A. Section 1.01 of the Credit Agreement is hereby
---------- ------------
amended by inserting the following new definitions in alphabetical order as
appropriate:
"CLC" means Commercial Lithographing Company, a Kentucky corporation.
---
"CLC Acquisition" means the acquisition by CLC LLC of substantially
---------------
all of the operating assets of CLC pursuant to the CLC Acquisition Documents and
as more fully described on Schedule 1(d) hereto.
-------------
"CLC Acquisition Documents" has the meaning specified in Section
------------------------- -------
6.25(b) hereto.
-------
*Confidential treatment requested. Materials have been omitted and filed
separately with the Securities and Exchange Commission.
"CLC LLC" means Commercial Lithographing LLC, a Delaware limited
-------
liability company and Wholly-Owned Subsidiary of the Company.
B. Section 2.07(i)(ii) of the Credit Agreement is hereby amended by
-------------------
(a) deleting the reference "Section 8.05(b)" contained therein and inserting in
lieu thereof the reference "Section 8.03(b)" and (b) deleting the phrase
"******* Acquisition or Atlantic Acquisition" contained therein and inserting in
lieu thereof the phrase "******* Acquisition, CLC Acquisition or Atlantic
Acquisition."
C. Section 6.25(b) of the Credit Agreement is hereby amended in its
---------------
entirety to read as follows:
"(b) The agreements in connection with (i) the Thamesdown Acquisition
(the "Thamesdown Acquisition Documents"), (ii) the CLC Acquisition (the
--------------------------------
"CLC Acquisition Documents"), (iii) the ******* Acquisition (the "*******
------------------------- -------
Acquisition Documents") and (iv) the Atlantic Acquisition (the "Atlantic
--------------------- --------
Acquisition Documents" and together with each of the Thamesdown Acquisition
---------------------
Documents, the CLC Acquisition Documents and the ******* Acquisition
Documents, collectively, the "New Acquisition Documents") are, or when
-------------------------
executed will be, in full force and effect, and if previously executed,
have not been terminated, rescinded or withdrawn, and no material portion
thereof has been amended or waived by any party. All requisite approvals by
governmental authorities and regulatory bodies having jurisdiction over a
Credit Party and other Persons referenced therein, with respect to the
transactions contemplated by the New Acquisition Documents, have been
obtained or will be obtained prior to the consummation of any such
Acquisition, and no such approvals impose any conditions to the
consummation of the transactions contemplated by the New Acquisition
Documents or to the conduct in any material respect by a Credit Party and
its Subsidiaries of its business thereafter. To the best of each Credit
Party's knowledge, none of any Person's representations or warranties in
the New Acquisition Documents contain or will contain when made any untrue
statement of a material fact or omit any fact necessary to make the facts
therein not misleading."
D. Subsection 8.03(b)(II) of the Credit Agreement is hereby amended
----------------------
in its entirety to read as follows:
"(II) on and after October 25, 1999 a Credit Party or a Subsidiary
Guarantor or, subject to the limitations set forth below, a Wholly-Owned
Subsidiary of the Company which is not a Subsidiary Guarantor or a Credit Party
may enter into an Acquisition (including the Thamesdown Acquisition, the CLC
Acquisition, the ******* Acquisition and the Atlantic Acquisition) provided that
(i) in any such Acquisition (whether in one transaction or a series of related
transactions) the aggregate consideration consisting of cash, assumed
Indebtedness and Capital Lease Obligations, earn-outs, promissory notes or other
instruments or similar items (other than common stock of the Company) (the
"Non-Equity Consideration") does not exceed $15,000,000 for a single Acquisition
------------------------
and $30,000,000 for all Acquisitions without the prior written approval of the
Majority Lenders, (ii) no Default or Event of Default is in existence both
before and after
-2-
*Confidential treatment requested. Material has been omitted and filed
separately with the Securities and Exchange Commission.
giving effect to such Acquisition (and/or as set forth in clause (vi)
-----------
below, the creation of a new Subsidiary), (iii) such Acquisition is
undertaken in all material respects in accordance with all applicable
Requirements of Law, (iv) the target business of, or the assets subject to,
such Acquisition are shown in good faith by the Company to have generated
positive EBITDA on a pro forma basis for the twelve month period
immediately preceding the date of such Acquisition based on assumptions
showing cost savings reasonably acceptable to the Agent, (v) the prior,
effective written consent or approval to such Acquisition of the board of
directors or equivalent governing body of the acquiree is obtained, (vi)
such Acquisition shall be structured as an asset acquisition by a Credit
Party or a Subsidiary Guarantor, or subject to the limitations set forth
below, a Wholly-Owned Subsidiary of the Company which is not a Subsidiary
Guarantor or a Credit Party, or the purchase of all of the capital stock of
the target of such Acquisition by a Credit Party or a Subsidiary Guarantor
or, subject to the limitations set forth below, a Wholly-Owned Subsidiary
of the Company which is not a Subsidiary Guarantor or a Credit Party,
provided that such target or the Person purchasing the assets of such
target will be merged with and into a Credit Party or a Subsidiary
Guarantor or shall execute a counterpart of and become a party to a
Guaranty (pursuant to documentation reasonably acceptable to the Agent)
simultaneously with the consummation of such Acquisition, (vii) the
business being acquired is otherwise permitted by Section 8.13, (viii)
------------
except as set forth in paragraph (e) below, the Agent (on behalf of the
-------------
Lenders) will simultaneously with the consummation of such Acquisition be
granted a first priority perfected security interest (subject to Permitted
Liens) in any assets being so acquired and any capital stock if a new
Subsidiary is being formed, (ix) at least fifty percent (50%) of the first
$10,000,000 of aggregate Non-Equity Consideration and one hundred percent
(100%) of all amounts above $10,000,000 paid in connection with the *******
Acquisition and the Atlantic Acquisition and one hundred percent (100%) of
the Non-Equity Consideration paid in any other Acquisition (other than the
Thamesdown Acquisition) must be financed through the substantially
simultaneous issuance of Subordinated Acquisition Debt, the assumption of
Capital Leases, and/or the sale by the Company of additional shares of its
common stock (all as otherwise permitted hereunder) and (x) except with
respect to the Thamesdown Acquisition, the Company shall have received a
loan of at least $4,900,000 from Heritage under the Heritage Subordinated
Liquidity Facility prior to the consummation of any such Acquisition."
E. Section 8.05 of the Credit Agreement is hereby amended by deleting
------------
the "and" at the end of paragraph (i) thereof, inserting the word "and" at the
-------------
end of the paragraph (j) thereof and adding the following new paragraph (k):
------------- -------------
"(k) the Company shall be permitted to issue (I) $4,900,000 in
principal amount of indebtedness under the Heritage Subordinated Liquidity
Facility in accordance with the terms and conditions of Section 7.20
------------
hereof, and (II) up to $20,000,000 (less the Dollar Equivalent of the
amount of any Capital Lease Obligations assumed (directly or indirectly) in
connection with Acquisitions permitted by Section 8.03(b) other than the
---------------
Thamesdown Acquisition) in principal amount of new subordinated
indebtedness ("Subordinated Acquisition Debt") so long as such Subordinated
-----------------------------
Acquisition Debt (A) is issued pursuant to fully executed documents,
-3-
*Confidential treatment requested. Material has been omitted and filed
separately with the Securities and Exchange Commission.
promissory notes and agreements reasonably acceptable in form and substance
to Agent; (B) is subject to a valid and effective subordination agreement
on customary and commercially reasonable terms and conditions as determined
by the Agent which are at least as favorable in all material respect to the
Lenders as the subordination provisions set forth in the Senior
Subordinated Note Indenture; (C) is unsecured; (D) requires no more than
semi-annual interest payments; (E) has a market interest rate (as
acknowledged by the Agent), which in any event must be less than 14% per
annum (including all capitalized fees and expenses); (F) has a maturity
date of no earlier than March 31, 2006 and requires no scheduled or
mandatory principal prepayments or repayments before the maturity date; (H)
has no financial covenants of any type and the other affirmative and
negative covenants with respect thereto are less restrictive than those in
the Senior Subordinated Note Indenture as of the time such Subordinated
Acquisition Debt is incurred; (I) is not required to be used (and is not
voluntarily used) to prepay the Senior Subordinated Notes or to redeem the
Preferred Stock; and (J) is only issued on or after delivery to the Agent
of a legal opinion from counsel to the Company and the lender of such
Subordinated Acquisition Debt reasonably acceptable to the Agent, and in
form and substance acceptable to the Agent including, without limitation,
opinions concerning the execution, delivery, validity and enforceability of
all agreements related to the Subordinated Acquisition Debt, opinions that
such agreements do not conflict with, violate or require any prepayments
under this Agreement, the Senior Subordinated Note Documents or the
Preferred Stock Documents, and opinions that all Obligations under the
Credit Agreement constitute "Senior Debt" under the agreements with respect
to the Subordinated Acquisition Debt;".
F. Section 8.09 of the Credit Agreement is hereby amended by adding
------------
the following new language at the end of such section before the period:
", and the CLC Acquisition Documents"
G. Section 8.21 of the Credit Agreement is hereby amended by deleting
------------
paragraph (v) thereof and replacing it with the following new paragraph(v):
------------- ------------
"(v) in no event shall the aggregate amount of such intercompany
Indebtedness owing by the Subsidiaries other than the Credit Parties to the
Credit Parties exceed the amount permitted pursuant to Section 8.04(1) plus
---------------
$20,000,000, provided, however, that no more than $10,000,000 of such
-------- -------
amount shall be intercompany loans to Van Xx Xxxxx Packaging B.V., and no
more than (x) at any time prior to the date the Target delivers the Target
Security Document, $10,000,000 and (y) thereafter $5,000,000, shall be
attributable to intercompany loans made to a Subsidiary that is not a
Subsidiary Guarantor; provided further, that in addition to the amounts set
-------- -------
forth above in this paragraph (v) the Company may also make intercompany
-------------
loans to any Wholly-Owned Subsidiary of the Company that will be the
acquiror of ******* in an aggregate amount up to $3,000,000 to fund the
******** Acquisition, plus up to $5,500,000 to any Wholly-Owned Subsidiary
that may be created to purchase Atlantic in connection with the Atlantic
Acquisition, so long as such new Subsidiary created in the Atlantic
Acquisition becomes a Subsidiary Guarantor simultaneously with the making
of such intercompany loan, plus up to $8,000,000 to CLC LLC to purchase CLC
in connection
-4-
*Confidential treatment requested. Material has been omitted and filed
separately with the Securities and Exchange Commission.
with the CLC Acquisition, so long as CLC LLC becomes a Subsidiary Guarantor
simultaneously with the making of such intercompany loan."
H. A new Schedule 1(d) is added to the Agreement in the
-------------
form of Exhibit A hereto and the existing Schedule 6.19 to the Credit Agreement
--------- -------------
is hereby amended by replacing such schedule in its entirety with the
Schedule 6.19 attached hereto as Exhibit B.
------------- ---------
Section 2. Consents. The Agent and the undersigned Lenders hereby
--------
consent to and permit:
(a) the transactions contemplated by this Amendment and by
the CLC Acquisition Documents;
(b) subject to compliance with Section 2.07(l) of the Credit
---------------
Agreement, the sale by Tophurst Properties Limited of real property located at
Sirdar Road, London, England, and authorize the Agent to take such actions
necessary to release any Lien held by the Agent in such property; and
(c) the transfer of 100% of the equity interests in
Thamesdown held by the Company to IMPAC Europe Limited.
Section 3. Reference to and Effect Upon the Credit Agreement.
-------------------------------------------------
(a) Except as specifically amended above, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
(b) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of the
Agent or any Lenders under the Credit Agreement, nor constitute a waiver of any
provision of the Credit Agreement, except as specifically set forth herein. Upon
the effectiveness of this Amendment, each reference in the Agreement to "this
Agreement", "hereunder", "hereo", "herein" or words of similar import shall mean
and be reference to the Credit Agreement as amended hereby.
Section 4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
Section 5. Headings. Section headings in this Amendment are
--------
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purposes.
Section 6. Counterparts. This Amendment may be executed in any
------------
number of counterparts, each of which when so executed shall be deemed an
original but all such counterparts shall constitute one and the same instrument.
-5-
Section 7. Amendment Fee. In connection with the approval of this
-------------
Amendment, the Company hereby agrees to pay to the Agent for the pro-rata
benefit of each Lender consenting to this Amendment prior to 5:00 p.m. (Chicago
time) on March 31, 2000 an amendment fee equal to 1/8th of 1% of each such
consenting Lender's Commitment (the "Amendment Fee").
-------------
Section 8. Effectiveness.
-------------
This Amendment shall become effective as of the date first written above
after completion of the following:
(a) delivery to the Agent of executed signature pages for this
Amendment signed by the Company, the L/C Borrowers, the Subsidiary
Guarantors, the Agent and Lenders constituting Majority Lenders;
(b) receipt by the agent of an executed legal opinion from counsel to
the Company and Heritage in form and substance acceptable to the Agent
including, without limitation, opinions concerning the execution, delivery,
validity and enforceability of this Amendment and opinions that this
Amendment does not conflict with, violate or require any prepayments under
the Senior Subordinated Note Documents or the Preferred Stock Documents;
(c) delivery to the Agent of certified copies of the CLC Acquisition
Documents in form and substance reasonably satisfactory to Agent together
with evidence reasonably acceptable to the Agent of the consummation of the
CLC Acquisition in accordance therewith;
(d) payment in cash of the Amendment Fee to the Agent on behalf of the
Lenders; and
(e) such other approvals, opinions, documents or materials as the Agent
may reasonably request.
Section 9. Representations and Warranties. Each of the Company and
------------------------------
each L/C Borrower hereby represents and warrants as to itself that;
(a) The execution, delivery and performance by each such Person of this
Amendment have been duly authorized by all necessary corporate action and
that this Amendment constitutes the legal, valid and binding obligation of
such Person, enforceable against such Person in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability;
(b) The execution, delivery and performance by each such Person of this
Amendment, the consummation of the CLC Acquisition (the "Proposed CLC
------------
Acquisition Transaction") will not conflict with or result in any breach or
-----------------------
contravention of, or the creation of any Lien under, any document evidencing
any Contractual Obligation
-6-
(including, but not limited to, the Preferred Stock Documents and the
Senior Subordinated Note Documents) to which such Person is a party or any
order, injunction, writ or decree of any Governmental Authority to which
such Person or its property is subject, and will not require any prepayment
of the Senior Subordinated Notes or any redemption of the Preferred Stock;
(c) Each of the representations and warranties contained in the Credit
Agreement, after giving effect to this Amendment and the Proposed CLC
Acquisition Transaction is true and correct in all material respects on and
as of the date hereof as if made on the date hereof (except to the extent
such representations and warranties expressly refer to an earlier date, in
which case they are true and correct as of such earlier date); and
(d) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
Section 10. Reaffirmation of Guaranties. The Company and each L/C
---------------------------
Borrower and Subsidiary Guarantor as a guarantor of the Obligations under each
Guaranty and the other Loan Documents, hereby reaffirms its continuing
obligations and liabilities thereunder, and agrees that each such Guaranty and
the other Loan Documents shall remain in full force and effect and cover and
extend to all Obligations under the Credit Agreement (as amended hereby).
[Signature Pages Follow]
-7-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment by
their duly authorized officers as of the date fist written above.
IMPAC GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Title: Chief Financial Officer
----------------------------
ACH INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Title: Chief Financial Officer
----------------------------
KLEARFOLD, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Title: Chief Financial Officer
----------------------------
BANK OF AMERICA, N.A., as Agent
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Title: Vice President
----------------------------
BANK OF AMERICA, N.A.,
individually as a Lender, the Swing Line
Lender and the Issuing Bank
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Title: Senior Vice President
----------------------------
SOCIETE GENERALE, as a Lender
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: Managing Director
-----------------------------
ABN AMRO BANK, N.V. as a Lender
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------
Title: Vice President
-----------------------------
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
-----------------------------
DRESDNER BANK AG NEW YORK
AND GRAND CAYMAN BRANCHES,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------
Title: Vice President
-----------------------------
By: /s/ Xxxxx Birtarich
--------------------------------
Name: Xxxxx Birtarich
------------------------------
Title: Vice President
-----------------------------
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ F.C.H. Xxxxx
------------------------------------
Name: F.C.H. Xxxxx
----------------------------------
Title: Senior Manager Loan Operations
---------------------------------
THE FUJI BANK, LIMITED, as a Lender
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
----------------------------------
Title: Senior Vice President & Senior
Team Leader
---------------------------------
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research, as
Investment Advisor
By: /s/ Xxxxx X. Page
------------------------------------
Name: Xxxxx X. Page
----------------------------------
Title: Vice President
---------------------------------
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NORTHWOOD CAPITAL, LIMITED, as a Lender
By: Xxxxxx Xxxxxx & Co., L.P.,
as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------------
Title: Managing Director
------------------------------
Acknowledged and Agreed to by the undersigned as of the date first set forth
above.
KF - INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Title: Chief Financial Officer
-------------------------------
KF - DELAWARE, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Title: Chief Financial Officer
-------------------------------
IMPAC EUROPE HOLDINGS LIMITED (f/k/a/
IMPAC EUROPE LIMITED)
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Title: Chief Financial Officer
-------------------------------
LEVELPROMPT LIMITED
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Title: Chief Financial Officer
-------------------------------
IMPAC EUROPE LIMITED (f/k/a XXXXXXX
ROBOR LIMITED)
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Title: Chief Financial Officer
-------------------------------
XXXXXXX ROBOR LABELS LIMITED
By: /s/ X.X. Xxxxx
----------------------------------
Title: Secretary
-------------------------------
XXXXX XXXXX LIMITED
By: /s/ X.X. Xxxxx
----------------------------------
Title: Secretary
-------------------------------
SONICON LIMITED
By: /s/ X.X. Xxxxx
----------------------------------
Title: Secretary
-------------------------------
XXXXXXX ROBOR AUDIO AND COMPUTER
SERVICES LIMITED
By: /s/ X.X. Xxxxx
----------------------------------
Title: Secretary and Director
-------------------------------
XXXXXXX ROBOR SALES LIMITED
By: /s/ X.X. Xxxxx
----------------------------------
Title: Secretary
-------------------------------
TOPHUST PROPERTIES LIMITED
By: /s/ X.X. Xxxxx
----------------------------------
Title: Secretary and Director
-------------------------------
XXXXXXX ROBOR (OVERSEAS) LIMITED
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Title: Chief Financial Officer
-----------------------------
Disclosure Schedule to the Seventh Amendment (Omitted Herein)
Schedule 1(d) Description of CLC Acquisition
Schedule 6.19 Capitalization; Subsidiaries and Minority Interests
The Company will furnish supplementally a copy of any omitted schedule or
exhibit to the Securities and Exchange Commission upon request.
