SIXTH AMENDMENT TO CREDIT AGREEMENT
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SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
as of June 30, 1997, among XXXXXXXX COMMUNICATIONS, INC. ("Communications"),
XXXXXXXX GRAPHICS, INC. (the "Borrower"), the financial institutions party to
the Credit Agreement referred to below (the "Lenders"), BT COMMERCIAL
CORPORATION, as Agent (the "Agent") for the Lenders, and BANKERS TRUST
COMPANY, as Issuing Bank (the "Issuing Bank"). 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 :
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WHEREAS, Communications, the Borrower, the Lenders, the Agent
and the Issuing Bank are parties to a Credit Agreement, dated as of August 15,
1995 (as amended, modified or supplemented to 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 "Borrowing Base" contained in Section 1.1
of the Credit Agreement is hereby amended by (i) deleting the period at the
end of clause (D) thereof and inserting in lieu thereof the phrase ", minus"
and (ii) inserting at the end of said definition the following new clause:
"(E) an amount equal to (i) on any date prior to December 31,
1997, $4,000,000, (ii) on any date from and including December 31 to
and including March 30, 1998, $3,000,000 and (iii) on any date
thereafter, 0.".
2. Section 1.1 of the Credit Agreement is hereby amended by
inserting in the appropriate alphabetical order the following new definitions:
"New Term Loan Agreement" shall mean a term loan agreement to be
entered into among Communications, the Borrower, the financial
institutions a party thereto and Bankers Trust Company, as
Administrative Agent thereunder, providing for the making of up
$25,000,0000 aggregate principal amount of term loans to the
Borrower, as same may be amended, modified or supplemented from time
to time. It is understood that the new Term Loan Agreement shall be
on terms and conditions substantially in accordance with the
provisions attached as Exhibit A to the Sixth Amendment, with such
changes as would be permitted pursuant to Permitted New Term Loan
Amendments.
"New Term Loan Documents" shall mean the New Term Loan Agreement
and all guaranties, security documents and other documents
(including, without limitation, all Credit Documents as defined in
the New Term Loan Agreement) delivered pursuant to the requirements
of the New Term Loan Agreement.
"Permitted New Term Loan Amendments" shall mean any amendment,
modification or waiver to the New Term Loan Agreement and/or any
other New Term Loan Documents (x) which makes such document or
documents less restrictive or waives any provision contained therein
or (y) which makes the covenants, defaults or other provisions
contained in the New Term Loan Agreement more restrictive, provided
that any such Permitted New Term Facility Amendment pursuant to
clause (y) of this definition (i) is deemed necessary or desirable in
connection with the syndication of the New Term Loan Agreement by the
lenders thereunder and (ii) does not make the covenants, defaults or
other provisions contained therein more restrictive than those
contained in this Credit Agreement.
"Sixth Amendment" shall mean the Sixth Amendment to this Credit
Agreement, dated as of June 30, 1997, among Communications, the
Borrower, various of the Lenders, the Agent and the Issuing Bank.
3. Section 2.6(f) of the Credit Agreement is hereby Amended by
inserting at the end thereof the following new sentence:
"Notwithstanding anything to the contrary contained above, with
respect to mandatory repayments pursuant to this Section 2.6(f) only
as a result of equity issuances by Communications, at the time of
each event giving rise to a mandatory repayment pursuant to such
Section, to the extent the amount otherwise required to be applied
pursuant to the terms of said Section is used to permanently repay
Indebtedness under the New Term Loan Agreement, the amount so applied
shall apply to reduce the amount of the mandatory repayment otherwise
required pursuant to this Section 2.6(f)."
4. Section 7.1(a) of the Credit Agreement is hereby amended by
inserting the parenthetical "(or, in the case of fiscal year 1997 only, 120
days)" immediately following the phrase "90 days" contained in the first
sentence of said Section.
5. Section 7.1(b) of the Credit Agreement is hereby amended by
inserting immediately following the phrase "in any event within 45 days"
appearing in the first sentence thereof the parenthetical "and in any event
not later than July 20, 1998 in the case of the fiscal quarter ending on, or
closest to, June 30, 1998)".
6. Section 8.2 (c) of the Credit Agreement is hereby amended
by inserting the following parenthetical immediately after the phrase "other
Credit Documents" appearing therein:
"(it being understood and agreed that, from and after the date of any
extension of loans pursuant to Section 8.3(l), all such loans and
obligations relating thereto may be secured pursuant to the Credit
Documents, on a second-priority basis to the Obligations, in
accordance with the amendments to the various Collateral Documents
authorized pursuant to the Sixth Amendment, and any Collateral
Documents thereafter entered into may likewise secure such
Indebtedness and related obligations pursuant to 8.3(l) on
substantially the same basis)".
7. Section 8.3 of the Credit Agreement is hereby amended by
(i) deleting the period at the end of clause (l) of said Section and inserting
a semicolon in lieu thereof, (ii) redesignating clause (m) of said Section as
clause (n), (iii) deleting the text "(l)" appearing in redesignated clause
(n) of said Section and inserting in lieu thereof the text "(m)" and (iv)
inserting the following new clause (m) immediately after clause (l) of said
Section:
"(m) Indebtedness of the Borrower in an aggregate principal
amount not to exceed $25,000,000 (less any payments of principal
thereon) in respect of loans made pursuant to the New Term Loan
Agreement and guarantees thereof by the Guarantors; provided that the
cash proceeds of the loans under the New Term Loan Agreement (net of
any costs, fees and expenses payable in connection therewith) are
used by the Borrower to repay outstanding Revolving Loans hereunder
(although no reduction to the Total Revolving Loan Commitment shall
be required in connection therewith); and".
8. Section 8.9 of the Credit Agreement is hereby amended by
deleting in its entirety the table appearing in said Section and inserting in
lieu thereof the following new table:
"Fiscal Quarter Ended Minimum EBITDA
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March 31, 1997 $46,600,000
June 30, 1997 $45,700,000
September 30, 1997 $43,500,000
December 31, 1997 $41,500,000
March 31, 1998 $44,200,000
June 30, 1998 $50,100,000
September 30, 1998 $62,000,000
December 31, 1998 $63,000,000
March 31, 1999 $65,000,000
June 30, 1999 $65,000,000
September 30, 1999 $66,000,000
December 31, 1999 $67,000,000
Each fiscal quarter
ended thereafter $68,000,000
; provided, that should the Borrower fail to deliver the financial statements
and accompanying information for the fiscal quarter ended June 30, 1998 by
July 20, 1998 as required by to Section 7.1(b), EBITDA of the Borrower
required to be achieved (x) for the period ending June 30, 1998 shall be
$61,000,000 and (y) for each period ending after June 30, 1998 shall be
respective amount as provided in the Credit Agreement before giving effect to
the Sixth Amendment, in each case rather than the amount set forth for such
period in the table above."
9. Section 8.10 of the Credit Agreement is hereby amended by
inserting immediately prior to the period at the end thereof the following
parenthetical:
"(or, for the three fiscal quarters ended June 30, 1997, December 31,
1997 and June 30, 1998, 1.05:1.0, provided that should the Borrower
fail to deliver the financial statements and accompanying information
for the fiscal quarter ended June 30, 1998 by July 20, 1998 as
required by Section 7.1(b), the minimum Current Ratio for the fiscal
quarter ended June 30, 1998 shall be 1.1:1.0 rather than 1.05:1.0)".
10. Section 8.11 of the Credit Agreement is hereby amended by
deleting the table appearing in said Section in its entirety and inserting in
lieu thereof the following new table:
"Fiscal Quarter Ended Minimum Fixed Charge Ratio
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March 31, 1997 0.68:1.0
June 30, 1997 0.60:1.0
September 30, 1997 0.60:1.0
December 31, 1997 0.60:1.0
March 31, 1998 0.67:1.0
June 30, 1998 0.72:1.0
Each fiscal quarter
ended thereafter 0.80:1.0
; provided that should the Borrower fail to deliver the financial statements
and accompanying information for the fiscal quarter ended June 30, 1998 by
July 20, 1998 as required by to Section 7.1(b), the Minimum Fixed Charge Ratio
required to be achieved (x) for the period ending June 30, 1998 shall be
0.80:1.0 and (y) for each period ending after June 30, 1998 shall be
respective amount as provided in the Credit Agreement before giving effect to
the Sixth Amendment, in each case rather than the ratio set forth for such
period in the table above."
11. Section 8.12 of the Credit Agreement is hereby amended by
(i) deleting the word "or" at the end of clause (iii) of said Section and
inserting in lieu thereof a comma and (ii) inserting immediately prior to the
period at the end of said Section the following new clauses:
", (v) after any incurrence of Indebtedness pursuant to Section
8.3(l), make (or give any notice in respect of) any voluntary or
optional payment or prepayment of principal on or voluntary or
optional redemption of or acquisition for value of, exchange or
purchase, redeem or acquire for value (whether as a result of a Change
of Control, the consummation of asset sales or otherwise) any of the
Indebtedness outstanding pursuant to the New Term Loan Agreement
except payments or prepayments with proceeds of sales or issuances of
equity of Communications or (vi) amend or modify, or permit the
amendment or modification of, any provision of the New Term Loan
Agreement or the other New Term Loan Documents other than (a)
Permitted New Term Facility Amendments and (b) modifications to the
Collateral Documents made in accordance with the respective terms and
provisions thereof".
12. Section 9.1(c)(i) of the Credit Agreement is hereby
amended by inserting the phrase "or fail to deliver, by July 20, 1998,
financial statements and accompanying information for the fiscal quarter ended
June 30, 1998 as required by Section 9.1(b)" immediately prior to the comma at
the end thereof.
13. The Banks hereby agree that if and when the New Term Loan
Agreement is entered into by the parties thereto and loans are made
thereunder, then Communications, the Borrower, the Subsidiary Guarantors and
the Collateral Agent shall be permitted (and are hereby authorized) (i) to
enter into amendments to the Pledge Agreement substantially in the form of
Exhibit H-2 hereto, (ii) to enter into amendments to the Security Agreement
substantially in the form of Exhibit I-2 hereto, (iii) to enter into such
amendments to the Mortgages, the Canadian Debenture and the Canadian Pledge
Agreement as they may deem necessary and desirable in light of the New Term
Loan Agreement so long as any such amendments are consistent with the
amendments described in clauses (i) and (ii) of this Section 13, (iv) to enter
into revised Lockbox Agreements, Blocked Account Agreements and Concentration
Account Agreements substantially in the forms of Xxxxxxxx X-0, X-0 and D-3
hereto, respectively, and (v) to obtain new Collateral Access Agreements in
the form of Exhibit N hereto. Furthermore, from and after the date of the
occurrences described above in this Section 13, and on a prospective basis, all
Collateral Assignments of Equipment Purchase Contracts shall be in the form of
Exhibit B hereto, and any new Lockbox Agreement, Blocked Account Agreement,
Concentration Account Agreement or Collateral Access Agreement shall be
entered into in the forms of Xxxxxxxx X, X-0, X-0, X-0 or N hereto,
respectively, rather than in the forms originally annexed as said Exhibits
pursuant to the Credit Agreement.
14. In order to induce the Lenders to enter into this
Amendment, the Borrower hereby represents and warrants that (x) no Default or
Event of Default exists as of the Sixth Amendment Effective Date (as defined
below), both before and after giving effect to this Amendment and (y) all of
the representations and warranties contained in the Credit Agreement and the
other Credit Documents are true and correct in all material respects on the
Sixth 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 Sixth 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).
15. The Borrower hereby agrees to pay to the Agent for the
account of each Non-Defaulting Lender which has approved, executed and
delivered a copy of this Amendment as set forth in Section 20 hereof a fee
equal to 1/5 of 1% of (x) such Lender's Revolving Loan Commitment in effect at
the time of such payment and (y) the principal amount of the Term Loans made
by such Lender that are outstanding at the time of such payment.
16. 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.
17. 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 Agent.
18. 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.
19. This Amendment shall become effective on the date (the
"Sixth Amendment Effective Date") when each of Communications, the Borrower,
each Subsidiary Guarantor and the Required Lenders shall have signed a copy
hereof (whether the same or different copies) and shall have delivered
(including by way of facsimile transmission) the same to the Agent at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx Xxxxxxx.
20. From and after the Sixth 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 amended hereby.
* * *
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.
XXXXXXXX COMMUNICATIONS, INC.
By
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Title:
XXXXXXXX GRAPHICS, INC.
By
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Title:
BT COMMERCIAL CORPORATION,
Individually and as Agent
By
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Title:
BTM CAPITAL CORPORATION
By
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Title:
BNY FINANCIAL CORPORATION
(successor by merger to THE BANK OF
NEW YORK COMMERCIAL CORPORATION)
By
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Title:
DEUTSCHE FINANCIAL SERVICES
HOLDING CORP.
By
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Title:
FINOVA CAPITAL CORPORATION
By
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Title:
GIBRALTAR CORPORATION OF
AMERICA
By
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Title:
LASALLE NATIONAL BANK
By
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Title:
SANWA BUSINESS CREDIT
CORPORATION
By
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Title:
XXXXXX BUSINESS CREDIT
CORPORATION
By
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Title:
Each of the undersigned, each being a Subsidiary Guarantor pursuant to the
Credit Agreement referenced in the foregoing Amendment and a party to various
Collateral Documents, hereby acknowledges and agrees to the foregoing
provisions of the Amendment.
Acknowledged and
Agreed this _______ day
of _______, 1997.
AMERICAN IMAGES OF NORTH
AMERICA, INC.
By
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Name:
Title:
XXXXXXXX MARKETING, INC.
By
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Name:
Title:
XXXXXXXX MEDIA CORPORATION
By
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Name:
Title:
