EXHIBIT 10.16
WAIVER, CONSENT AND AMENDMENT
Waiver, Consent and Amendment, dated as of November 21, 2002 (the
"Amendment"), to the Senior Subordinated Credit Agreement, dated as of December
7, 1999, as amended, among Xxxxxx, Inc. (f/k/a Big Flower Press Holdings, Inc.),
a Delaware corporation (the "Company"), Xxxxxx Holdings, Inc. (f/k/a Big Flower
Holdings, Inc.), a Delaware corporation ("Holdings"), the Subsidiary Guarantors
named on the signature pages hereto, the Lenders named on the signature pages
hereto (the "Lenders") and Deutsche Bank Trust Company Americas (f/k/a Bankers
Trust Company), XX Xxxxxx Xxxxx Bank (f/k/a The Chase Manhattan Bank) and Banc
of America Bridge LLC (f/k/a NationsBridge, L.L.C.) as Agents for the Lenders
(in such capacity, the "Agents") (the "Credit Agreement"). Except as otherwise
indicated herein, capitalized terms used herein have the same meanings as set
forth in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Company is contemplating issuing up to $100.0 million of
un-secured senior notes (the "Additional Senior Notes") which notes will be sold
pursuant to Rule 144A or Regulation S under the Securities Act of 1933, as
amended (such issuance, the "Senior Notes Issuance");
WHEREAS, the Additional Senior Notes will have the same terms and
interest rate as the $250.0 million principal amount of 10 7/8% senior notes
issued by the Company on June 24, 2002;
WHEREAS, pursuant to Section 12.6 of the Credit Agreement, the Company
desires to have the Required Lenders waive certain provisions of the Credit
Agreement and consent to the departure of the Company therefrom and amend
certain provisions of the Credit Agreement;
NOW THEREFORE, in consideration of the premises and covenants
contained herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. WAIVER AND CONSENT. The Required Lenders hereby waive compliance by
the Company with and consent to the departure from the provisions of the Credit
Agreement (including, without limitation, Exhibit XIV to the Credit Agreement)
with respect to the Senior Notes Issuance; provided that the proceeds of such
Senior Notes Issuance are applied as follows: First, to the payment of all fees
and expenses relating to the Senior Notes Issuance; and Second, 50% of the
remaining proceeds after the payment of fees and expenses to the repayment of
term loan borrowings under the Senior Credit Facility and 50% of the remaining
proceeds after the payment of fees and expenses to the repayment of amounts
outstanding under the Credit Agreement. The Required Lenders hereby agree that
the Senior Note Issuance or the application of the
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proceeds thereof as described above shall not constitute an Event of Default or
Potential Event of Default under the Credit Agreement.
2. AMENDMENT.
EXHIBIT XIV. Exhibit XIV to the Credit Agreement is hereby
amended as follows:
(1) The section entitled "Certain Definitions" is hereby
amended by adding the following definition in alphabetical order
therein:
"Additional Senior Notes" means the Company's senior notes
issued after November 1, 2002 in an aggregate principal amount
not to exceed $100.0 million; PROVIDED that the proceeds from
such senior notes are used First, to the payment of all fees and
expenses relating to the issuance of such senior notes; and
Second, 50% of the remaining proceeds after the payment of fees
and expenses to the repayment of term loan borrowings under the
Senior Credit Facility and 50% of the remaining proceeds after
the payment of fees and expenses to the repayment of amounts
outstanding under the Senior Subordinated Credit Agreement;
PROVIDED, FURTHER that such senior notes have the same terms and
interest rate as the Senior Notes.
(2) The definition of "Permitted Indebtedness" is hereby
amended by (1) deleting the word "and" at the end of clause (15)
thereof and replacing it with a semicolon, and (2) deleting the
period at the end of clause (16) thereof and replacing it with a
semicolon and the word "and" and (3) adding a new clause (17)
thereto which reads as follows, "Indebtedness of the Company
represented by the Additional Senior Notes and guarantees of the
Additional Senior Notes by certain of the Company's Restricted
Subsidiaries."
3. ADDITIONAL FEES. The Company agrees to pay on demand all costs
and expenses of the Agents and Lenders in connection with the preparation,
execution and delivery of this Amendment and the documentation contemplated
hereby, including the reasonable fees and out-of-pocket expenses of Xxxxxx
Xxxxxx & Xxxxxxx, counsel for the Agents and Lenders, with respect thereto.
4. SCOPE OF AMENDMENT. Except as specifically amended hereby, the
Credit Agreement, shall remain unchanged. It is declared and agreed by each of
the parties hereto that the Credit Agreement, including but not limited to
Section 5.12 thereof, subject to this Amendment, shall continue, in full force
and effect, and that the Amendment and the Credit Agreement shall be read as and
shall constitute one document.
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5. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
7. ACKNOWLEDGMENT AND CONSENT BY THE SUBSIDIARY GUARANTORS. Each
Subsidiary Guarantor hereby acknowledges that it has read this Amendment and
consents to the terms hereof and further confirms and agrees that,
notwithstanding the effectiveness of this Amendment, its obligations under its
Guarantee shall not be impaired or affected and its Guarantee is, and shall
continue to be, in full force and effect and is hereby confirmed and ratified in
all respects.
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WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
XXXXXX, INC.
By: /s/ Xxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Vice President
XXXXXX HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Vice President
SUBSIDIARY GUARANTORS:
PRINTCO., INC.
By: /s/ Xxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Vice President
WEBCRAFT LLC
By: /s/ Xxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Vice President
WEBCRAFT CHEMICALS LLC
By: /s/ Xxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Vice President
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ENTERON GROUP LLC.
By: /s/ Xxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Vice President
BIG FLOWER DIGITAL SERVICES
(DELAWARE), INC.
By: /s/ Xxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Vice President
BIG FLOWER DIGITAL LLC
By: BIG FLOWER DIGITAL
SERVICES (DELAWARE), INC.
By: /s/ Xxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Vice President
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AGENTS:
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as co-agent
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
XX XXXXXX CHASE BANK
as co-agent
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
BANC OF AMERICA BRIDGE LLC,
as co-agent
By: /s/ S. Xxxx Xxxxxxx, III
--------------------------------
Name: S. Xxxx Xxxxxxx
Title: Managing Director
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LENDERS:
DEUTSCHE BANK TRUST CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
XX XXXXXX XXXXX BANK
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
BANC OF AMERICA BRIDGE LLC
By: /s/ S. Xxxx Xxxxxxx, III
--------------------------------
Name: S. Xxxx Xxxxxxx, III
Title: Senior Vice President
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxx Xxxxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx Xxxxxx
Title: Managing Director
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OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II, L.P.,
its General Partner
By: Oak Hill Securities MGP II, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
D.K. ACQUISITION PARTNERS, L.P.
By: X.X. Xxxxxxxx & Co.,
its General Partner
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Partner
FRANKLIN FLOATING RATE TRUST
By: /s/ Xxxxxxx Xxx
--------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
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TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd.
as Investment Adviser
By: /s/ Xxxx X. Gold
--------------------------------
Name: Xxxx X. Gold
Title: Managing Director
By: TCW Investment Management Company,
as Investment Adviser
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW Advisers (Bermuda), Ltd.
as General Partner
By: /s/ Xxxx X. Gold
--------------------------------
Name: Xxxx X. Gold
Title: Managing Director
By: TCW Investment Management Company,
as Investment Adviser
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
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FLEET CORPORATE FINANCE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX XXXXX GLOBAL INVESTMENT
SERIES: INCOME STRATEGIES
PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
