Exhibit 10.11
DIMAC CORPORATION
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT (this "AMENDMENT"), dated as of July 23,
1999, to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 22,
1998, as amended by the First Amendment, dated as of March 26, 1999 (as amended,
the "CREDIT AGREEMENT"), is entered into by and among DIMAC CORPORATION, a
Delaware corporation (the "COMPANY"), DIMAC HOLDINGS, INC., a Delaware
corporation ("HOLDINGS"), THE CREDIT SUPPORT PARTIES listed on the signature
pages hereto (each individually referred to herein as a "CREDIT SUPPORT PARTY"
and collectively as "CREDIT SUPPORT PARTIES"), THE FINANCIAL INSTITUTIONS party
hereto, CREDIT SUISSE FIRST BOSTON ("CSFB"), as administrative agent for Lenders
(in such capacity, "ADMINISTRATIVE AGENT"), and as Arranger, WARBURG DILLON READ
LLC, as Syndication Agent, and FIRST UNION NATIONAL BANK, as Documentation
Agent.
RECITALS:
WHEREAS, capitalized terms used herein without definition
shall have the same meanings herein as set forth in the Credit Agreement, as
amended hereby;
WHEREAS, Company, Holdings, the Lenders, Administrative Agent,
Arranger, Syndication Agent and Documentation Agent are parties to the Credit
Agreement, pursuant to which the Lenders have extended certain credit facilities
to Company;
WHEREAS, Company has requested that (i) the aggregate
Revolving Loan Commitments of the Lenders holding Revolving Loan Commitments be
reduced, pro rata, by $28,281,363.31, (ii) the Lenders holding Term Loans
extend, pro rata, additional Term Loans in an aggregate principal amount of
$28,281,363.31, the proceeds of which will be used to provide financing for
working capital and other general corporate purposes of Company and its
Subsidiaries, and (iii) certain other changes be made to the Credit Agreement as
more fully set forth herein;
WHEREAS, the Lenders have agreed to amend the Credit Agreement
to provide for each of the foregoing, which amendment shall become effective
upon satisfaction of the conditions precedent set forth herein; and
WHEREAS, it is the intent of Loan Parties to confirm that all
Obligations of Loan Parties under the other Loan Documents shall continue in
full force and effect and that, from and after the Second Amendment Effective
Date, all references to the "CREDIT AGREEMENT" contained therein shall be deemed
to refer to the Credit Agreement, as amended hereby.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Holdings, Company,
Lenders and Agents agree that, on the Second Amendment Effective Date, the
Credit Agreement shall be amended as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1.
A. SUBSECTION 1.1 of the Credit Agreement is hereby amended by
amending the definitions of "Commitments", "Consolidated Adjusted EBITDA",
"Notes" "Term A Loan Commitment", "Term A Loan Exposure", "Term A Loans", "Term
B Loan Commitment", "Term B Loan Exposure", "Term B Loans", "Term C Loan
Commitment", "Term C Loan Exposure" and "Term C Loans" as set forth below:
"COMMITMENTS" means (i) with respect to the period prior to
the Second Amendment Effective Date, the commitments of Lenders to make Loans as
set forth in subsection 2.1A of this Agreement, and (ii) on and after the Second
Amendment Effective Date, the commitments of Lenders to make Loans as set forth
in subsection 2.1A(v) of this Agreement.
CONSOLIDATED ADJUSTED EBITDA" means, for any period, the sum
(without duplication) of the amounts for such period (as determined for Company
and its Subsidiaries on a consolidated basis and in accordance with subsection
7.6E(ii), if applicable) of (i) Consolidated Net Income, (ii) Consolidated
Interest Expense, (iii) provisions for taxes based on income, (iv) total
depreciation expense, (v) total amortization expense, (vi) other non-cash items
reducing Consolidated Net Income, (vii) all one-time cash compensation payments
made in connection with the Acquisition, (viii) those items described on
SCHEDULES 1.1(i) and 1.1(ii) annexed hereto, and (ix) Management Fees to the
extent accrued but not paid, LESS (a) other non-cash items increasing
Consolidated Net Income, (b) to the extent not otherwise deducted in determining
Consolidated Net Income, any payments made under Permitted Earn Out Agreements
entered into on or after the Closing Date and Management Fees paid, and (c) any
payments (net of indemnification) by Company and its Subsidiaries of any
demands, obligations, interest, penalties, suits, judgments, orders,
liabilities, debts, claims, actions, causes of action, costs and expenses
(including legal, consultants' and witness' fees) in connection with the postal
inspection service investigation disclosed on Schedule 5.14 of the DIMAC Acquisi
tion Agreement. With respect to the determination of Consolidated Adjusted
EBITDA for any period prior to the completion of four Fiscal Quarters following
the Closing Date, Consolidated Adjusted EBITDA shall be calculated for certain
Fiscal Quarters in the manner set forth in subsection 7.6E(i).
"NOTES" means one or more of the Term Notes, Revolving Notes
or Swing Line Note or any combination thereof (including any such Notes issued
pursuant to the Second Amendment)
"TERM A LOAN COMMITMENT" means the commitment of a Lender to
make a Term A Loan to Company pursuant to subsections 2.1A(i)(a) and 2.1A(v)(a)
of this Agreement, and "TERM A LOAN COMMITMENTS" means such commitments of all
Lenders in the aggregate.
"TERM A LOANS" means the Term A Loans made pursuant to
subsections 2.1A(i)(a) and 2.1A(v)(a) of this Agreement.
-2-
"TERM B LOAN COMMITMENT" means the commitment of a Lender to
make a Term B Loan to Company pursuant to subsections 2.1A(i)(b), 2.1A(ii)(a)
and 2.1A(v)(b) of this Agreement, and "TERM B LOAN COMMITMENTS" means such
commitments of all Lenders in the aggregate.
"TERM B LOAN EXPOSURE" means, with respect to any Lender as of
any date of determination the outstanding principal amount of the Term B Loan of
that Lender.
"TERM B LOANS" means the Term B Loans made pursuant to
subsections 2.1A(i)(b), 2.1A(ii)(a) and 2.1A(v)(b) of this Agreement.
"TERM C LOAN COMMITMENT" means the commitment of a Lender to
make a Term C Loan to Company pursuant to subsections 2.1A(i)(c), 2.1A(ii)(b)
and 2.1A(v)(c) of this Agreement, and "TERM C LOAN COMMITMENTS" means such
commitments of all Lenders in the aggregate.
"TERM C LOAN EXPOSURE" means, with respect to any Lender as of
any date of determination the outstanding principal amount of the Term C Loan of
that Lender.
"TERM C LOANS" means the Term C Loans made pursuant to
subsections 2.1A(i)(c), 2.1A(ii)(b) and 2.1A(v)(c) of this Agreement.
B. SUBSECTION 1.1 of the Credit Agreement is hereby further
amended by adding the following definitions in appropriate alphabetical order:
""SECOND AMENDMENT" means that certain Second Amendment, dated
as of July 23, 1999, to this Agreement by and among Company, Holdings, the
Credit Support Parties named therein, the Agents, and the Lenders party thereto.
"SECOND AMENDMENT EFFECTIVE DATE" means the "Second Amendment
Effective Date" as such term is defined in the Second Amendment.
"SECOND AMENDMENT LOANS" means, the Second Amendment Term
Loans and the Revolving Loans made on the Second Amendment Effective Date.
"SECOND AMENDMENT TERM A LOAN COMMITMENT" means the commitment
of a Lender to make a Term A Loan to Company pursuant to subsection 2.1A(v)(a)
of this Agreement, and "SECOND AMENDMENT TERM A LOAN COMMITMENTS" means such
commitments of all Lenders in the aggregate.
"SECOND AMENDMENT TERM A LOANS" means a portion of the Term A
Loans, in an aggregate principal amount not exceeding $7,976,794.78, that may be
borrowed by Company on the Second Amendment Effective Date.
"SECOND AMENDMENT TERM B LOAN COMMITMENT" means the commitment
of a Lender to make a Term B Loan to Company pursuant to subsection 2.1A(v)(b)
of this
-3-
Agreement, and "SECOND AMENDMENT TERM B LOAN COMMITMENTS" means such commitments
of all Lenders in the aggregate.
"SECOND AMENDMENT TERM B LOANS" means a portion of the Term B
Loans, in an aggregate principal amount not exceeding $11,602,610.59, that may
be borrowed by Company on the Second Amendment Effective Date.
"SECOND AMENDMENT TERM C LOAN COMMITMENT" means the commitment
of a Lender to make a Term C Loan to Company pursuant to subsection 2.1A(v)(c)
of this Agreement, and "SECOND AMENDMENT TERM C LOAN COMMITMENTS" means such
commitments of all Lenders in the aggregate.
"SECOND AMENDMENT TERM C LOANS" means a portion of the Term C
Loans, in an aggregate principal amount not exceeding $8,701,957.94, that may be
borrowed by Company on the Second Amendment Effective Date.
"SECOND AMENDMENT TERM LOANS" means the Second Amendment Term
A Loans, Second Amendment Term B Loans and the Second Amendment Term C Loans,
collectively.
1.2 AMENDMENTS TO SECTION 2.
A. SUBSECTION 2.1A(iii) of the Credit Agreement is hereby
amended by deleting the final paragraph thereof and substituting the following
therefor:
"Notwithstanding the foregoing, x) no more than $1,718,636.69
of Revolving Loans may be made on the Second Amendment Effective Date, and such
Revolving Loans may not be repaid until all other Revolving Loans are repaid and
the Revolving Loan Commitments have been terminated y) after the Second
Amendment Effective Date, Lenders shall have no obligation to make new Revolving
Loans (and Swing Line Lender shall have no obligation to make Swing Line Loans
and Issuing Lender shall have no obligation to issue any Letters of Credit)
until such time as the Company is in compliance with the provisions of
subsection 7.6A through 7.6E (whether or not such subsections are otherwise
required to be complied with under the terms of subsection 7.6F) and z) on and
after the Second Amendment Effective Date, the Revolving Loan Commitments shall
be reduced from $75,000,000 to $46,718,636.69, such reduction to be allocated
among the Revolving Loan Commitments of the Lenders on the basis of their Pro
Rata Shares in the Revolving Loan Commitments."
B. SUBSECTION 2.1A of the Credit Agreement is hereby amended
by adding the following:
(v) SECOND AMENDMENT TERM LOANS.
(a) Each Lender severally agrees to lend to Company on the
Second Amendment Effective Date an aggregate amount not exceeding its Pro Rata
Share of the aggregate amount of the Second Amendment Term A Loan Commitments,
in each case to be used for the purposes identified in subsection 2.5B. The
amount of each Lender's Second
-4-
Amendment Term A Loan Commitment is set forth opposite its name on SCHEDULE 2.1
annexed to the Second Amendment and the aggregate amount of the Second Amendment
Term A Loan Commitments is $7,976,794.78. Each Lender's Second Amendment Term A
Loan Commitment in respect of the Second Amendment Term A Loans shall expire
immediately and without further action on the Second Amendment Effective Date in
the event the Second Amendment Term A Loans are not made on that date. Amounts
borrowed under this subsection 2.1A(v)(a) and subsequently repaid or prepaid may
not be reborrowed.
(b) Each Lender severally agrees to lend to Company on the
Second Amendment Effective Date an aggregate amount not exceeding its Pro Rata
Share of the aggregate amount of the Second Amendment Term B Loan Commitments,
in each case to be used for the purposes identified in subsection 2.5B. The
amount of each Lender's Second Amendment Term B Loan Commitment is set forth
opposite its name on SCHEDULE 2.1 annexed to the Second Amendment and the
aggregate amount of the Second Amendment Term B Loan Commitments is
$11,602,610.59. Each Lender's Second Amendment Term B Loan Commitment in respect
of the Second Amendment Term B Loans shall expire immediately and without
further action on the Second Amendment Effective Date in the event the Second
Amendment Term B Loans are not made on that date. Amounts borrowed under this
subsection 2.1A(v)(b) and subsequently repaid or prepaid may not be reborrowed.
(c) Each Lender severally agrees to lend to Company on the
Second Amendment Effective Date an aggregate amount not exceeding its Pro Rata
Share of the aggregate amount of the Second Amendment Term C Loan Commitments,
in each case to be used for the purposes identified in subsection 2.5B. The
amount of each Lender's Second Amendment Term C Loan Commitment is set forth
opposite its name on SCHEDULE 2.1 annexed to the Second Amendment and the
aggregate amount of the Second Amendment Term C Loan Commitments is
$8,701,957.94. Each Lender's Second Amendment Term C Loan Commitment in respect
of the Second Amendment Term C Loans shall expire immediately and without
further action on the Second Amendment Effective Date in the event the Second
Amendment Term C Loans are not made on that date. Amounts borrowed under this
subsection 2.1A(v)(c) and subsequently repaid or prepaid may not be reborrowed.
C. Each of SUBSECTIONS 2.4A(i), 2.4A(ii), and 2.4A(iii) of the
Credit Agreement is hereby by amended to read in their entirety as follows:
"(i) SCHEDULED PAYMENTS OF TERM A LOANS. Company shall make
principal payments on the Term A Loans in installments on the dates set forth
below, each such installment to be in an amount equal to the corresponding
percentages set forth below of the principal amount of the Term A Loans (other
than Second Amendment Term A Loans):
=================================== ==================================
DATE SCHEDULED REPAYMENT
OF
TERM A LOANS
=================================== ==================================
March 31, 2001 4.00%
June 30, 2001 4.00%
September 30, 2001 4.25%
-5-
----------------------------------- ----------------------------------
December 31, 2001 4.25%
----------------------------------- ----------------------------------
March 31, 2002 7.625%
June 30, 2002 7.625%
September 30, 2002 7.625%
December 31, 2002 7.625%
----------------------------------- ----------------------------------
March 31, 2003 8.35%
June 30, 2003 8.35%
September 30, 2003 8.35%
December 31, 2003 8.35%
=================================== ==================================
March 31, 2004 9.60%
June 30, 2004 10.00%
=================================== ==================================
; PROVIDED that the scheduled installments of principal of
such Term A Loans set forth above shall be reduced in
connection with any voluntary or mandatory prepayments of the
Term A Loans in accordance with subsection 2.4C; and PROVIDED,
FURTHER that such Term A Loans and all other amounts owed
hereunder with respect to the Term A Loans shall be paid in
full no later than June 30, 2004 and the final installment
payable by Company in respect of the Term A Loans on such date
shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by
Company under this Agreement with respect to the Term A Loans.
All Second Amendment Term A Loans shall be paid in full on
June 30, 2004.
(ii) SCHEDULED PAYMENTS OF TERM B LOANS. Company shall make
principal payments on the Term B Loans in installments on the dates set forth
below, each such installment to be in an amount equal to the corresponding
percentages set forth below of the principal amount of the Term B Loans (other
than Second Amendment Term B Loans):
================================== ==================================
DATE SCHEDULED REPAYMENT
OF
TERM B LOANS
================================== ==================================
March 31, 2001 0.25%
June 30, 2001 0.25%
September 30, 2001 0.25%
December 31, 2001 0.25%
---------------------------------- ----------------------------------
March 31, 2002 0.25%
June 30, 2002 0.25%
September 30, 2002 0.25%
December 31, 2002 0.25%
---------------------------------- ----------------------------------
March 31, 2003 0.25%
June 30, 2003 0.25%
September 30, 2003 0.25%
December 31, 2003 0.25%
---------------------------------- ----------------------------------
March 31, 2004 0.25%
June 30, 2004 0.25%
-6-
September 30, 2004 7.50%
December 31, 2004 7.50%
---------------------------------- ----------------------------------
March 31, 2005 7.50%
June 30, 2005 7.50%
September 30, 2005 16.0%
December 31, 2005 16.0%
---------------------------------- ----------------------------------
March 31, 2006 16.0%
June 30, 2006 18.5%
================================== ==================================
; PROVIDED that the scheduled installments of principal of
such Term B Loans set forth above shall be reduced in
connection with any voluntary or mandatory prepayments of the
Term B Loans in accordance with Subsection 2.4C; and PROVIDED,
FURTHER that such Term B Loans and all other amounts owed
hereunder with respect to such Term B Loans shall be paid in
full no later than June 30, 2006 and the final installment
payable by Company in respect of the Term B Loans on such date
shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by
Company under this Agreement with respect to the Term B Loans.
All Second Amendment Term B Loans shall be paid in full on
June 30, 2006.
(iii) SCHEDULED PAYMENTS OF TERM C LOANS. Company shall make
principal payments on the Term C Loans in installments on the dates set forth
below, each such installment to be in an amount equal to the corresponding
percentages set forth below of the original principal amount of the Term C Loans
(other than Second Amendment Term C Loans):
========================================= ==============================
SCHEDULED
DATE REPAYMENT
OF
TERM C LOANS
========================================= ==============================
March 31, 2001 0.25%
June 30, 2001 0.25%
September 30, 2001 0.25%
December 31, 2001 0.25%
----------------------------------------- ------------------------------
March 31, 2002 0.25%
June 30, 2002 0.25%
September 30, 2002 0.25%
December 31, 2002 0.25%
----------------------------------------- ------------------------------
March 31, 2003 0.25%
June 30, 2003 0.25%
September 30, 2003 0.25%
December 31, 2003 0.25%
----------------------------------------- ------------------------------
March 31, 2004 0.25%
June 30, 2004 0.25%
September 30, 2004 0.25%
December 31, 2004 0.25%
-7-
----------------------------------------- ------------------------------
March 31, 2005 0.25%
June 30, 2005 0.25%
September 30, 2005 0.25%
December 31, 2005 0.25%
----------------------------------------- ------------------------------
March 31, 2006 0.25%
June 30, 2006 0.25%
September 30, 2006 46.75%
December 31, 2006 47.75%
========================================= ==============================
; PROVIDED that the scheduled installments of principal of
such Term C Loans set forth above shall be reduced in
connection with any voluntary or mandatory prepayments of the
Term C Loans in accordance with Subsection 2.4C; and PROVIDED,
FURTHER that such Term C Loans and all other amounts owed
hereunder with respect to such Term C Loans shall be paid in
full no later than December 31, 2006 and the final installment
payable by Company in respect of such Term C Loans on such
date shall be in an amount, if such amount is different from
that specified above, sufficient to repay all amounts owing by
Company under this Agreement with respect to the Term C Loans.
All Second Amendment Term C Loans shall be paid in full on
December 31, 2006."
D. SUBSECTION 2.5B of the Credit Agreement is hereby amended
to read in its entirety as follows:
"B. Phase II Term Loans and Revolving Loans Made On the
Effective Date; Second Amendment Term Loans.
(i) The proceeds of $45,000,000 in aggregate principal amount
of Phase II Term Loans and an aggregate principal amount of Revolving Loans not
to exceed an amount acceptable to Agents made to Company on the Effective Date,
together with the net proceeds from the issuance of equity by Holdings on the
Effective Date, the Senior Subordinated Notes and the Holdings Notes shall be
applied (a) to finance the redemption, repurchase or other repayment of
outstanding Indebtedness with respect to the Existing Senior Notes, the Existing
TCW Notes and the Existing AmeriComm Credit Agreement, and (b) to pay fees,
costs and expenses payable by Holdings and its Subsidiaries on or before the
Effective Date in connection with such refinancing.
(ii) The proceeds of the Second Amendment Term Loans shall be
applied to provide financing for working capital and other general corporate
purposes of Company and its Subsidiaries."
1.3 AMENDMENT FOR SECTION 5: REPRESENTATIONS AND WARRANTIES.
Subsection 5.4 of the Credit Agreement is hereby amended to
read in its entirety as follows:
-8-
"Since the Second Amendment Effective Date, no event or change
has occurred that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect. Since the Closing Date, neither Company
nor any of its Subsidiaries has directly or indirectly declared, ordered, paid
or made, or set apart any sum of property for, any Restricted Junior Payment or
agreed to do so except as permitted by subsection 7.5."
1.4 AMENDMENTS TO SECTION 7: NEGATIVE COVENANTS.
Subsection 7.6F of the Credit Agreement is hereby amended in
its entirety as follows:
"F. SECOND AMENDMENT FINANCIAL COVENANTS. Notwithstanding any
provisions of this Agreement to the contrary (other than as provided under
subsection 2.1A(iii) with respect to the obligation of Lenders to make Revolving
Loans and Swing Line Lenders to make Swing Line Loans and Issuing Lender to
issue Letters of Credit), during the period from the Second Amendment Effective
Date to December 31, 2000, Company and its Subsidiaries shall not be required to
comply with the financial covenants set forth in subsection 7.6A through and
including subsection 7.6E (other than as provided under subsection 2.1A(iii)
with respect to the obligation of Lenders to make Revolving Loans and Swing Line
Lenders to make Swing Line Loans and Issuing Lender to issue Letters of Credit),
but rather, the Company and its Subsidiaries shall be required to comply with
the following financial covenants:
(i) MINIMUM EBITDA. Company shall not permit Consolidated
Adjusted EBITDA for any four Fiscal Quarter period ending on a date set forth
below to be less than the correlative amount indicated:
==================================================
DATE MINIMUM
CONSOLIDATED
ADJUSTED EBITDA
==================================================
September 30, 1999 $28,000,000
-------------------
December 31, 1999 $29,000,000
-------------------
March 31, 2000 $31,000,000
-------------------
June 30, 2000 $34,000,000
-------------------
September 30, 2000 $34,000,000
-------------------
December 31, 2000 $34,000,000
==================================================
(ii) MAXIMUM CAPITAL EXPENDITURES. Company shall not and shall
not permit any of its Subsidiaries to incur Consolidated Capital Expenditures,
for either the two Fiscal Quarter period or for the Fiscal Year, in each case,
ending on the dates set forth below in excess of the correlative amount
indicated below (each such amount to be increased by any amount of Consolidated
Capital Expenditures permitted to be incurred during the prior period, but not
actually incurred):
-9-
==========================================================
DATE MAXIMUM CAPITAL EXPENDITURES
==========================================================
$5,300,000
Fiscal Year ending
December 31, 2000 $13,000,000
==========================================================
1.5 AMENDMENT TO SECTION 10: MISCELLANEOUS.
Subsection 10.1C of the Credit Agreement is hereby amended to
read in its entirety as follows:
"Except as otherwise agreed to by Administrative Agent and
Company, no holder of any participation, other than an Affiliate of the Lender
granting such participation, shall be entitled to require such Lender to take or
omit to take any action hereunder except action (i) effecting the extension of
the final maturity of the Loan allocated to such participation, (ii) effecting a
reduction of the principal amount of or affecting the rate of interest payable
on any Loan allocated to such participation, (iii) releasing all or
substantially all of the Collateral, or (iv) releasing all of the Guarantors
from their obligations under the Guaranties, and all amounts payable by Company
hereunder (including, without limitation, amounts payable to such Lender
pursuant to subsections 2.6D, 2.7 and 3.6) shall be determined as if such Lender
had not sold such participation. Company and each Lender hereby acknowledge and
agree that, except as otherwise agreed by all Lenders and any participant,
solely for purposes of subsections 10.4 and 10.5, (a) any participation will
give rise to a direct obligation of Company to the participant and (b) the
participant shall be considered to be a "Lender"."
1.6 AMENDMENTS TO EXHIBITS IV, V, VI AND VII AND SCHEDULE 1.1(ii) TO THE
CREDIT AGREEMENT.
Exhibits IV, V, VI and VII and SCHEDULE 1.1(ii) to the Credit
Agreement are hereby amended by deleting them in their entirety and inserting,
in lieu thereof, Exhibits IV, V, VI and VII and SCHEDULE 1.1(ii) hereto,
respectively.
SECTION 2. CONDITIONS TO EFFECTIVENESS
The effectiveness of the amendments set forth in Section 1
hereof and the several obligations of Lenders to make the Second Amendment Term
Loans and any Revolving Loans to be made on the Second Amendment Effective Date
are, in addition to the conditions precedent specified in SUBSECTION 4.2 of the
Credit Agreement, subject to the prior or concurrent satisfaction of the
following conditions (the date of satisfaction of such conditions being referred
to herein as the "SECOND AMENDMENT EFFECTIVE DATE"):
A. CERTAIN DOCUMENTS. On or before the Second Amendment
Effective Date, each Loan Party shall deliver or cause to be delivered to
Lenders (or to Administrative Agent for Lenders with sufficient originally
executed copies, where appropriate, for each Lender and its counsel):
-10-
(i) Certified copies of its Certificate of Incorporation,
together with a good standing certificate from the Secretary of State of the
State of Delaware, each dated a recent date prior to the Second Amendment
Effective Date;
(ii) resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this Amendment, certified
as of the Second Amendment Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without modification or
amendment;
(iii) signature and incumbency certificates of its officers
executing this Amendment and the other Loan Documents to which it is a party as
of the Second Amendment Effective Date; and
(iv) executed originals of this Amendment and (to the extent
not previously executed and delivered to Lenders) the other Loan Documents to
which it is a party.
B. NOTICE OF BORROWING. Administrative Agent shall have
received before the Second Amendment Effective Date, in accordance with the
provisions of Subsection 2.1B, an originally executed Notice of Borrowing, with
such changes and modifications thereto that are acceptable to Administrative
Agent in order to reflect the borrowing of the Second Amendment Term Loans and
Revolving Loans made as of such date, signed by the chief executive officer or
the chief financial officer of Company or by any executive officer of Company
designated by the resolutions of the Board of Directors referred to above and in
a writing delivered to Administrative Agent.
C. OPINIONS OF COUNSEL TO LOAN PARTIES. Lenders and their
respective counsel shall have received originally executed copies of one or more
favorable written opinions of White & Case LLP, counsel to Loan Parties, dated
as of the Second Amendment Effective Date, in substantially the form of Exhibit
A to this Amendment, and Company hereby requests such counsel for Loan Parties
to deliver such opinions.
D. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS.
Company shall have delivered to Administrative Agent an Officer's Certificate,
in form and substance satisfactory to Administrative Agent, to the effect that
(i) the representations and warranties contained in Section 5 of the Credit
Agreement, as amended hereby, are and will be true, correct and complete in all
material respects on and as of the Second Amendment Effective Date to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date, and (ii) Company shall have performed in all material
respects all agreements and satisfied all conditions which this Amendment
provides shall be performed or satisfied by Company on or before the Second
Amendment Effective Date, except as otherwise disclosed to and agreed to in
writing by Administrative Agent.
E. COMPLETION OF PROCEEDINGS. All corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated by this Amendment and the
-11-
Credit Agreement, as amended hereby, and all documents incidental thereto not
previously found acceptable by Agent, acting on behalf of Lenders, and its
counsel shall be satisfactory in form and substance to Agent and such counsel,
and Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as Agent may reasonably request.
F. FEES. The Administrative Agent shall have received
reimbursement or other payment of all out-of-pocket expenses required to be
reimbursed or paid by the Company hereunder or under any other Loan Document.
G. NECESSARY CONSENTS. Each Loan Party shall have obtained all
material consents necessary or advisable in connection with the execution of
this Amendment.
H. LENDERS' CONSENT. Each Lender shall have executed this
Amendment and shall have delivered an original thereof to the Administrative
Agent.
I. CERTAIN COLLATERAL. Company shall have established cash
collateralization arrangements with respect to the proceeds of the Second
Amendment Loans reasonably acceptable to Administrative Agent.
J. OTHER REQUIREMENTS. Administrative Agent and Lenders shall
have received such other documents and information regarding the Loan Parties as
reasonably requested by the Administrative Agent.
Second Amendment Effective Date, the Credit Agreement and Exhibits IV, V, VI,
and VII and SCHEDULE 1.1(ii) thereto shall be amended as set forth in Section 1
hereof and all references in any other Loan Document to the Credit Agreement or
any of Exhibits IV, V, VI or VII or SCHEDULE 1.1(ii) thereto shall be a
reference to such Agreement or such Exhibit or such Schedule, as the case may
be, as amended pursuant to Section 1 hereof. Any Lender that has been issued a
Note prior to the Second Amendment Effective Date may request that Company issue
to such Lender a new Note (in exchange for the corresponding existing Note) in
the form of Exhibit IV, V, VI or VII hereto, as applicable, and, subject to
Section 2.1D of the Credit Agreement, Company shall issue such Note or Notes, as
applicable; PROVIDED, that the issuance of any such Note shall be solely in
substitution for, and not in satisfaction of, the existing Note of such Lender.
SECTION 3. CERTAIN REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, each of the Company
and Holdings represents and warrants to each Lender that the following
statements are true, correct and complete in all material respects:
A. CORPORATE POWER AND AUTHORITY. Each Loan Party has all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement, as amended hereby, and the other Loan Documents.
-12-
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment and the performance of the Credit Agreement, as amended hereby,
and the other Loan Documents have been duly authorized by all necessary
corporate action on the part of each Loan Party.
C. NO CONFLICT. The execution and delivery by each Loan Party
of this Amendment and the performance by each Loan Party of the Credit
Agreement, as amended hereby, and the other Loan Documents and the other
transactions consummated on the Second Amendment Effective Date do not and will
not (i) violate (A) any provision of any law, statute, rule or regulation, or of
the certificate or articles of incorporation or partnership agreement, other
constitutive documents or by-laws of Holdings, the Company or any Subsidiary,
(B) any applicable order of any court or any rule, regulation or order of any
governmental authority or (C) any provision of any indenture, certificate of
designation for preferred stock, agreement or other instrument to which
Holdings, the Company or any Subsidiary is a party or by which any of them or
any of their property is or may be bound, (ii) be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or both) a
default under any such indenture, certificate of designation for preferred
stock, agreement or other instrument, where any such conflict, violation, breach
or default referred to in clause (i) or (ii) of this SUBSECTION 3.C,
individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect, (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of each Loan Party (other than any
Liens created under any of the Loan Documents in favor of Administrative Agent
on behalf of Lenders), or (iv) require any approval of stockholders or partners
or any approval or consent of any Person under any contractual obligation of
each Loan Party, except for such approvals or consents which will be obtained on
or before the Second Amendment Effective Date.
D. GOVERNMENTAL CONSENTS. No action, consent or approval of,
registration or filing with or any other action by any governmental authority is
or will be required in connection with the execution and delivery by each Loan
Party of this Amendment and the performance by Company and Holdings of the
Credit Agreement, as amended hereby, and the other Loan Documents, except for
such actions, consents and approvals the failure to obtain or make which could
not reasonably be expected to result in a Material Adverse Effect or which have
been obtained and are in full force and effect.
E. BINDING OBLIGATION. This Amendment and the Credit
Agreement, as amended hereby, have been duly executed and delivered by each Loan
Party thereto and each constitutes a legal, valid and binding obligation of the
Loan Parties to the extent a party thereto enforceable against the Loan Party in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting creditors' rights generally and except as enforceability may be
limited by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement, as amended hereby, are and will be true, correct and complete
in all material respects on and as of
-13-
the Second Amendment Effective Date to the same extent as though made on and as
of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
G. ABSENCE OF DEFAULT. After giving effect to this Amendment,
no event has occurred and is continuing or will result from the consummation of
the transactions contemplated by this Amendment that would constitute an Event
of Default or a Potential Event of Default.
SECTION 4. ACKNOWLEDGMENT AND CONSENT
Each of the Credit Support Parties hereby acknowledges that it
has reviewed the terms and provisions of the Credit Agreement and this Amendment
and consents to the amendment of the Credit Agreement effected pursuant to this
Amendment. Each Credit Support Party hereby confirms that each Loan Document to
which it is a party or otherwise bound and all Collateral encumbered thereby
will continue to guarantee or secure, as the case may be, in accordance with the
Loan Documents the payment and performance of all "Obligations" under each of
the Loan Documents to which is a party (in each case as such terms are defined
in the applicable Loan Document).
Each of the Credit Support Parties acknowledges and agrees
that each of the Loan Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties contained in the
Credit Agreement, as amended hereby, and the Loan Documents to which it is a
party or otherwise bound are true, correct and complete in all material respects
on and as of the Second Amendment Effective Date to the same extent as though
made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true,
correct and complete in all material respects on and as of such earlier date.
Each of the Credit Support Parties acknowledges and agrees
that (i) notwithstanding the conditions to effectiveness set forth in this
Amendment, it is not required by the terms of the Credit Agreement or any other
Loan Document to consent to the amendments to the Credit Agreement effected
pursuant to this Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to require the consent of
Credit Support Parties to any future amendments to the Credit Agreement.
SECTION 5. MISCELLANEOUS
A. Reference to, and Effect on, the Credit Agreement and the
Other Loan Documents.
(i) On and after the Second Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement," "hereunder,","hereof,"
"herein," "hereto" or words of like import referring to the Credit Agreement,
and each reference in the other Loan Documents to the
-14-
"Credit Agreement," "thereunder," "thereof" or words of like import referring to
the Credit Agreement shall mean and be a reference to the Credit Agreement as
amended by this Amendment.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy of any
Agent or Lender under, the Credit Agreement or any of the other Loan Documents.
B. HEADINGS. Section and Subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
C. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
[Remainder of page intentionally left blank]
-15-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
DIMAC CORPORATION
By:/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
HOLDINGS:
DIMAC HOLDINGS, INC.
By:/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
CREDIT SUPPORT PARTIES (for the purposes of
Section 4 only):
AMERICOMM HOLDINGS, INC.
By:/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
AMERICOMM DIRECT MARKETING, INC.
By:/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
-16-
DIMAC MARKETING CORPORATION
By:/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
PALM COAST DATA INC.
By:/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
MBS/MULTIMODE INC.
By:/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
DIMAC DIRECT, INC.
By:/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
DMW WORLDWIDE, INC.
By:/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
-17-
LENDERS
CREDIT SUISSE FIRST BOSTON
AND AGENTS:
By:/s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By:/s/ W. XXXXXXX XXXXXX
----------------------------------------
Name: W. Xxxxxxx Xxxxxx
Title: Assistant Vice President
WARBURG DILLON READ LLC
By:/s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
By:/s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
FIRST UNION NATIONAL BANK
By:/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
UBS AG, STAMFORD BRANCH
By:/s/ Xxxxxxx Saint
----------------------------------------
Name: Xxxxxxx Saint
Title: Associate Director,
Loan Portfolio Support, US
-18-
By:/s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Associate Director,
Loan Portfolio Support, US
FLEET BANK, N.A.
By:/s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
BANKBOSTON, N.A.
By:/s/ Xxxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:/s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
By:/s/ XXXXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
HSBC BANK USA
By:/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Authorized Signatory
-19-
FRANKLIN FLOATING RATE TRUST
By:/s/ Xxxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
By:/s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
MERCANTILE BANK N.A.
By:/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
BY: PPM AMERICA, INC., AS ATTORNEY
IN FACT, ON BEHALF OF XXXXXXX
XX TIONAL LIFE INSURANCE COMPANY
By:/s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
XXX XXXXXX PRIME RATE INCOME TRUST
By:/s/ XXXX X. XXXXXXXXX
----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
-20-
XXX XXXXXX SENIOR FLOATING RATE FUND
By:/s/ Xxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By:/s/ B. Xxxx Xxxxx
----------------------------------------
Name: B. Xxxx Xxxxx
Title: Vice President
XXXXX XXX & XXXXXXX INCORPORATED, as
Agent for KEYPORT LIFE INSURANCE COMPANY
By:/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY
By:/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital as Portfolio Advisor
By:/s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
-21-
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital as Portfolio Advisor
By:/s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Senior Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By:/s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
NATIONAL BANK OF CANADA
By:/s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
By:/s/ Xxxxxxx Xxxx
----------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
-22-
Exhibit A
FORM OF OPINION OF LOAN PARTIES' COUNSEL:
[to be provided]
Exhibit IV
Page 1
[FORM OF TERM A NOTE]
DIMAC CORPORATION
PROMISSORY NOTE DUE JUNE 30, 2004
$(1)[1] New York, New York
July 23, 1999
FOR VALUE RECEIVED, DIMAC CORPORATION, a Delaware corporation
("COMPANY"), promises to pay to (2)[2] ("PAYEE") or its registered assigns, the
principal amount of [1] ($[1]), in the installments referred to below.
Company also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at the
times which shall be determined in accordance with the provisions of that
certain Amended and Restated Credit Agreement dated as of October 22, 1998, as
amended by the First Amendment, dated as of March 26, 1999, and as further
amended by the Second Amendment, dated as of July 23, 1999, and as it may be
further amended, restated, supplemented or otherwise modified (said Amended and
Restated Credit Agreement, as so amended, restated, supplemented or otherwise
modified, being the "CREDIT AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among
Company, DIMAC Holdings, Inc., a Delaware corporation, the financial
institutions listed therein as Lenders, Credit Suisse First Boston, as
Administrative Agent (in such capacity, "ADMINISTRATIVE AGENT"), Credit Suisse
First Boston, as Arranger, Warburg Dillon Read LLC, as Syndication Agent and
First Union National Bank, as Documentation Agent.
Company shall make principal payments on this Note in
consecutive quarterly installments as set forth in the Credit Agreement,
commencing on March 31, 2001 and ending on June 30, 2004. Each such installment
shall be due on the date specified in the Credit Agreement and in an amount
determined in accordance with the provisions thereof; PROVIDED that the last
such installment shall be in an amount sufficient to repay the entire unpaid
principal balance of this Note, together with all accrued and unpaid interest
thereon.
This Note is one of Company's "Term A Notes" in the aggregate
principal amount of $62,976,794.78 and is issued, together with the other Term A
Notes, to amend and restate without interruption or novation, all indebtedness
evidenced by the Term A Notes and is issued pursuant to and entitled to the
benefits of the Credit Agreement, to which reference is hereby made for a more
--------------------------
(1) Insert aggregate amount of Lender's Term A Loans plus Lender's Second
Amendment Term A Loan Commitment.
(2) Insert name of Lender.
Exhibit IV
Page 2
complete statement of the terms and conditions under which the Term A Loans
evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in same day funds
at the Funding and Payment Office or at such other place as shall be designated
in writing for such purpose in accordance with the terms of the Credit
Agreement. Unless and until an Assignment Agreement effecting the assignment or
transfer of this Note shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 10.1B(ii) of the Credit
Agreement, Company and Administrative Agent shall be entitled to deem and treat
Payee as the owner and holder of this Note and the Loan evidenced hereby. Payee
hereby agrees, by its acceptance hereof, that before disposing of this Note or
any part hereof it will make a notation hereon of all principal payments
previously made hereunder and of the date to which interest hereon has been
paid; PROVIDED, HOWEVER, that the failure to make a notation of any payment made
on this Note shall not limit or otherwise affect the obligations of Company
hereunder with respect to payments of principal of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in
subsection 2.4B(iii) of the Credit Agreement and to prepayment at the option of
Company as provided in subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GEN ERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may (or, with respect to certain Events of
Default, shall) be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit Agreement.
This Note is entitled to the benefits of the Subsidiary
Guaranty and the Holdings Guaranty and is secured pursuant to the Collateral
Documents.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in subsections 10.1 and 10.17 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligations of
Company, which are absolute and
Exhibit IV
Page 3
unconditional, to pay the principal of and interest on this Note at the place,
at the respective times, and in the currency herein prescribed.
Company promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in subsection 10.2 of the Credit
Agreement, incurred in the collection and enforcement of this Note. Company and
any endorsers of this Note hereby consent to renewals and extensions of time at
or after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
DIMAC CORPORATION
By:
-----------------------------------
Name:
Title:
Exhibit V
Page 1
[FORM OF TERM B NOTE]
DIMAC CORPORATION
PROMISSORY NOTE DUE JUNE 30, 2006
$(3)[1] New York, New York
July 23, 1999
FOR VALUE RECEIVED, DIMAC CORPORATION, a Delaware corporation
("COMPANY"), promises to pay to (4)[2] ("PAYEE") or its registered assigns, the
principal amount of [1] ($[1]), in the installments referred to below.
Company also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at the
times which shall be determined in accordance with the provisions of that
certain Amended and Restated Credit Agreement dated as of October 22, 1998, as
amended by the First Amendment, dated as of March 26, 1999, and as further
amended by the Second Amendment, dated as of July 23, 1999, and as it may be
further amended, restated, supplemented or otherwise modified (said Amended and
Restated Credit Agreement, as so amended, restated, supplemented or otherwise
modified, being the "CREDIT AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among
Company, DIMAC Holdings, Inc., a Delaware corporation, the financial
institutions listed therein as Lenders, Credit Suisse First Boston, as
Administrative Agent (in such capacity, "ADMINISTRATIVE AGENT"), Credit Suisse
First Boston, as Arranger, Warburg Dillon Read LLC, as Syndication Agent and
First Union National Bank, as Documentation Agent.
Company shall make principal payments on this Note in
consecutive quarterly installments as set forth in the Credit Agreement,
commencing on March 31, 2001 and ending on June 30, 2006. Each such installment
shall be due on the date specified in the Credit Agreement and in an amount
determined in accordance with the provisions thereof; PROVIDED that the last
such installment shall be in an amount sufficient to repay the entire unpaid
principal balance of this Note, together with all accrued and unpaid interest
thereon.
This Note is one of Company's "Term B Notes" in the aggregate
principal amount of $91,602,610.59 and is issued, together with the other Term B
Notes, to amend and restate without interruption or novation, all indebtedness
evidenced by the Term B Notes and is issued pursuant to and entitled to the
benefits of the Credit Agreement, to which reference is hereby made for a more
-----------------------------------
(3) Insert aggregate amount of Lender's Term B Loans plus Lender's Second
Amendment Term B Loan Commitment.
(4) Insert name of Lender.
Exhibit V
Page 2
complete statement of the terms and conditions under which the Term B Loans
evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in same day funds
at the Funding and Payment Office or at such other place as shall be designated
in writing for such purpose in accordance with the terms of the Credit
Agreement. Unless and until an Assignment Agreement effecting the assignment or
transfer of this Note shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 10.1B(ii) of the Credit
Agreement, Company and Administrative Agent shall be entitled to deem and treat
Payee as the owner and holder of this Note and the Loan evidenced hereby. Payee
hereby agrees, by its acceptance hereof, that before disposing of this Note or
any part hereof it will make a notation hereon of all principal payments
previously made hereunder and of the date to which interest hereon has been
paid; PROVIDED, HOWEVER, that the failure to make a notation of any payment made
on this Note shall not limit or otherwise affect the obligations of Company
hereunder with respect to payments of principal of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in
subsection 2.4B(iii) of the Credit Agreement and to prepayment at the option of
Company as provided in subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GEN ERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may (or, with respect to certain Events of
Default, shall) be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit Agreement.
This Note is entitled to the benefits of the Subsidiary
Guaranty and the Holdings Guaranty and is secured pursuant to the Collateral
Documents.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in subsections 10.1 and 10.17 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligations of
Company, which are absolute and
Exhibit V
Page 3
unconditional, to pay the principal of and interest on this Note at the place,
at the respective times, and in the currency herein prescribed.
Company promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in subsection 10.2 of the Credit
Agreement, incurred in the collection and enforcement of this Note. Company and
any endorsers of this Note hereby consent to renewals and extensions of time at
or after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
DIMAC CORPORATION
By:
---------------------------------
Name:
Title:
Exhibit VI
Page 1
[FORM OF TERM C NOTE]
DIMAC CORPORATION
PROMISSORY NOTE DUE DECEMBER 31, 2006
$(5)[1] New York, New York
July 23, 1999
FOR VALUE RECEIVED, DIMAC CORPORATION, a Delaware corporation
("COMPANY"), promises to pay to (6)[2] ("PAYEE") or its registered assigns, the
principal amount of [1] ($[1]), in the installments referred to below.
Company also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at the
times which shall be determined in accordance with the provisions of that
certain Amended and Restated Credit Agreement dated as of October 22, 1998, as
amended by the First Amendment, dated as of March 26, 1999, and as further
amended by the Second Amendment, dated as of July 23, 1999, and as it may be
further amended, restated, supplemented or otherwise modified (said Amended and
Restated Credit Agreement, as so amended, restated, supplemented or otherwise
modified, being the "CREDIT AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among
Company, DIMAC Holdings, Inc., a Delaware corporation, the financial
institutions listed therein as Lenders, Credit Suisse First Boston, as
Administrative Agent (in such capacity, "ADMINISTRATIVE AGENT"), Credit Suisse
First Boston, as Arranger, Warburg Dillon Read LLC, as Syndication Agent and
First Union National Bank, as Documentation Agent.
Company shall make principal payments on this Note in
consecutive quarterly installments as set forth in the Credit Agreement,
commencing on March 31, 2001 and ending on December 31, 2006. Each such
installment shall be due on the date specified in the Credit Agree ment and in
an amount determined in accordance with the provisions thereof; PROVIDED that
the last such installment shall be in an amount sufficient to repay the entire
unpaid principal balance of this Note, together with all accrued and unpaid
interest thereon.
This Note is one of Company's "Term C Notes" in the aggregate
principal amount of $68,701,957.94 and is issued, together with the other Term C
Notes, to amend and restate without interruption or novation, all indebtedness
evidenced by the Term C Notes and is issued pursuant to and entitled to the
benefits of the Credit Agreement, to which reference is hereby made for a more
complete statement of the terms and conditions under which the Term C Loans
evidenced hereby were made and are to be repaid.
-------------------------------
(5) Insert aggregate amount of Lender's Term C Loans plus Lender's Second
Amendment Term C Loan Commitment.
(6) Insert name of Lender.
Exhibit VI
Page 2
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in same day funds
at the Funding and Payment Office or at such other place as shall be designated
in writing for such purpose in accordance with the terms of the Credit
Agreement. Unless and until an Assignment Agreement effecting the assignment or
transfer of this Note shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 10.1B(ii) of the Credit
Agreement, Company and Administrative Agent shall be entitled to deem and treat
Payee as the owner and holder of this Note and the Loan evidenced hereby. Payee
hereby agrees, by its acceptance hereof, that before disposing of this Note or
any part hereof it will make a notation hereon of all principal payments
previously made hereunder and of the date to which interest hereon has been
paid; PROVIDED, HOWEVER, that the failure to make a notation of any payment made
on this Note shall not limit or otherwise affect the obligations of Company
hereunder with respect to payments of principal of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in
subsection 2.4B(iii) of the Credit Agreement and to prepayment at the option of
Company as provided in subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GEN ERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may (or, with respect to certain Events of Default, shall)
become, or may be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit Agreement.
This Note is entitled to the benefits of the Subsidiary
Guaranty and the Holdings Guaranty and is secured pursuant to the Collateral
Documents.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in subsections 10.1 and 10.17 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligations of
Company, which are absolute and uncondi tional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
Exhibit VI
Page 3
Company promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in subsection 10.2 of the Credit
Agreement, incurred in the collection and enforcement of this Note. Company and
any endorsers of this Note hereby consent to renewals and extensions of time at
or after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
DIMAC CORPORATION
By:
---------------------------------
Name:
Title:
Exhibit VI
Page 4
[FORM OF REVOLVING NOTE]
DIMAC CORPORATION
PROMISSORY NOTE DUE JUNE 30, 2004
$(7)[1] New York, New York
July 23, 1999
FOR VALUE RECEIVED, DIMAC CORPORATION, a Delaware corporation
("COMPANY"), promises to pay to (8)[2] ("PAYEE") or its registered assigns,
on or before June 30, 2004, the lesser of (x) ($[1]) and (y) the unpaid
principal amount of all advances made by Payee to Company as Revolving Loans
under the Credit Agreement referred to below.
Company also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at the
times which shall be determined in accordance with the provisions of that
certain Amended and Restated Credit Agreement dated as of October 22, 1998, as
amended by the First Amendment, dated as of March 26, 1999, and as further
amended by the Second Amendment, dated as of July 23, 1999, and as it may be
further amended, restated, supplemented or otherwise modified (said Amended and
Restated Credit Agreement, as so amended, restated, supplemented or otherwise
modified, being the "CREDIT AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among
Company, DIMAC Holdings, Inc., a Delaware corporation, the financial
institutions listed therein as Lenders, Credit Suisse First Boston, as
Administrative Agent (in such capacity, "ADMINISTRATIVE AGENT"), Credit Suisse
First Boston, as Arranger, Warburg Dillon Read LLC, as Syndication Agent and
First Union National Bank, as Documentation Agent.
This Note is one of Company's "Revolving Notes" in the
aggregate principal amount of $46,718,636.69 and is issued, together with the
other Revolving Notes, to amend and restate without interruption or novation,
all indebtedness evidenced by the Revolving Notes and is issued pursuant to and
entitled to the benefits of the Credit Agreement, to which reference is hereby
made for a more complete statement of the terms and conditions under which the
Revolving Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in same day funds
at the Funding and Payment Office or at such other place as shall be designated
in writing for such purpose in accordance with the terms of the Credit
Agreement. Unless and until an Assignment Agreement effecting the assignment or
transfer of this Note shall have been accepted by Administrative Agent and
recorded in the Register
----------------------------------
(7) Insert aggregate amount of Lender's reduced Revolving Loan Commitment.
(8) Insert name of Lender.
Exhibit VI
Page 5
as provided in subsection 10.1B(ii) of the Credit Agreement, Company and
Administrative Agent shall be entitled to deem and treat Payee as the owner and
holder of this Note and the Loans evidenced hereby. Payee hereby agrees, by its
acceptance hereof, that before disposing of this Note or any part hereof it will
make a notation hereon of all principal payments previously made hereunder and
of the date to which interest hereon has been paid; PROVIDED, HOWEVER, that the
failure to make a notation of any payment made on this Note shall not limit or
otherwise affect the obligations of Company hereunder with respect to payments
of principal of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in
subsection 2.4B(iii) of the Credit Agreement and to prepayment at the option of
Company as provided in subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GEN ERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may (or, with respect to certain Events of Default, shall)
become, or may be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit Agreement.
This Note is entitled to the benefits of the Subsidiary
Guaranty and the Holdings Guaranty and is secured pursuant to the Collateral
Documents.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in subsections 10.1 and 10.17 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligations of
Company, which are absolute and uncondi tional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
Company promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in subsection 10.2 of the Credit
Agreement, incurred in the collection and enforcement of this Note. Company and
any endorsers of this Note hereby consent to renewals and extensions of time at
or after the maturity hereof, without notice, and hereby waive diligence,
Exhibit VI
Page 6
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
DIMAC CORPORATION
By:
------------------------------------
Name:
Title:
Exhibit VI
Page 7
TRANSACTIONS
ON
REVOLVING NOTE
OUTSTANDING
TYPE OF AMOUNT OF PRINCIPAL NOTATION
TYPE OF LOAN MADE AMOUNT OF BALANCE MADE BY
DATE LOAN MADE THIS DATE PRINCIPAL PAID THIS DATE THIS DATE
---- --------- --------- -------------- ----------- ---------
SCHEDULE 11(II)
SCHEDULE 1.1(ii) to the Existing Credit Agreement is hereby
amended by adding the following language:
"fees and expenses payable to entities for management and
advisory services"
Schedule 2.1
--------------------------------------------------------------------------------------------
LENDER AMOUNT OF
SECOND
AMENDMENT
LOANS
--------------------------------------------------------------------------------------------
REVOLVER:
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC. $132,202.83
MERCANTILE BANK $132,202.83
NATIONAL BANK OF CANADA/NY $132,202.83
CREDIT SUISSE FIRST BOSTON $145,423.09
BANK OF BOSTON/BOS $171,863.67
FLEET BANK, NA $171,863.67
HSBC BANK USA $171,863.67
FIRST UNION NATIONAL BANK/CHARLOTTE $198,304.23
UBS AG, STAMFORD/STAMFORD $198,304.23
UNION BANK OF CALIFORNIA, NA LA $264,405.64
Total $1,718,636.69
TERM A:
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC. $613,599.60
MERCANTILE BANK $613,599.60
NATIONAL BANK OF CANADA/NY $613,599.60
CREDIT SUISSE FIRST BOSTON $674,959.56
BANK OF BOSTON/BOS $797,679.48
FLEET BANK, NA $797,679.48
HSBC BANK USA $797,679.48
FIRST UNION NATIONAL BANK/CHARLOTTE $920,399.40
UBS AG, STAMFORD/STAMFORD $920,399.40
UNION BANK OF CALIFORNIA, NA LA $1,227,199.20
Total $7,976,794.78
Schedule 2.1
Page 2
LENDER AMOUNT OF
SECOND
AMENDMENT LOAN
--------------------------------------------------------------------------------------------
TERM B:
XXXXX XXX FLOATING RATE LLC $82,875.79
FIRST UNION NATIONAL BANK/CHARLOTTE $281,777.69
UBS AG, STAMFORD/STAMFORD $281,777.69
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC. $414,378.95
TORONTO DOMINION BANK/HOU $414,378.95
KEYPORT LIFE INSURANCE COMPANY $538,692.63
INDOSUEZ CAPITAL FUNDING III, LIMITED $690,631.58
FRANKLIN FLOATING RATE $704,444.21
PRUDENTIAL INSURANCE CO. OF AMERICA $828,757.90
SENIOR DEBT PORTFOLIO (XXXXX XXXXX) $828,757.90
CREDIT SUISSE FIRST BOSTON $845,333.06
XXX XXXXXX AM. CAP. SR. FLOATING RATE $1,118,823.16
XXX XXXXXX AMERICAN CAP. PR. XX.XXX. TR $1,118,823.16
INDOSUEZ CAPITAL FUNDING IV, LP $1,381,263.17
XXXXXXX NATIONAL LIFE INS. CO./CHI $2,071,894.75
Total $11,602,610.59
TERM C:
XXXXX XXX FLOATING RATE LLC $62,156.84
FIRST UNION NATIONAL BANK/CHARLOTTE $211,333.26
UBS AG, STAMFORD/STAMFORD $211,333.26
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC. $310,784.21
TORONTO DOMINION BANK/HOU $310,784.21
KEYPORT LIFE INSURANCE COMPANY $404,019.48
INDOSUEZ CAPITAL FUNDING III, LIMITED $517,973.69
FRANKLIN FLOATING RATE $528,333.16
PRUDENTIAL INSURANCE CO. OF AMERICA $621,568.42
SENIOR DEBT PORTFOLIO (XXXXX XXXXX) $621,568.42
CREDIT SUISSE FIRST BOSTON $633,999.79
XXX XXXXXX AM. CAP. SR. FLOATING RATE $839,117.37
XXX XXXXXX AMERICAN CAP. PR. XX.XXX. TR $839,117.37
INDOSUEZ CAPITAL FUNDING IV, LP $1,035,947.37
XXXXXXX NATIONAL LIFE INS. CO./CHI $1,553,921.06
Total $8,701,957.94
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
