FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1(d)
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Fourth
Amendment”), is made and dated as of August 28, 2007 among AMERICAN COLOR GRAPHICS, INC., a New
York corporation (together with any permitted successors and assigns, the “Borrower”), the
Guarantor signatory hereto, the financial institutions identified on the signature pages hereof as
Lenders (collectively, the “Lenders”), and BANK OF AMERICA, N.A., as Administrative Agent
(in such capacity, the “Agent”).
RECITALS
1. The Borrower, the Guarantor, the Lenders and the Agent are parties to that certain Amended
and Restated Credit Agreement, dated as of May 5, 2005, as amended by that certain First Amendment
to Amended and Restated Credit Agreement, dated as of September 26, 2006, as further amended by
that certain Second Amendment to Amended and Restated Credit Agreement, dated as of March 30, 2007,
as further amended by that certain Third Amendment to Amended and Restated Credit Agreement, dated
as of June 13, 2007, and as further amended by that certain letter agreement dated as of July 3,
2007 (as heretofore amended, the “Existing Credit Agreement”).
2. The Borrower, the Guarantor, the Lenders, and the Agent have agreed to certain additional
amendments to the Existing Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as follows:
Part 1
Definitions
Section 1.1. Certain Definitions. Unless otherwise defined herein or the context
otherwise requires, the following terms used in this Fourth Amendment have the following meanings:
“Amended Credit Agreement” means the Existing Credit Agreement as amended
hereby.
“Fourth Amendment Effective Date” shall mean August 31, 2007, subject to the
Borrower’s satisfaction of, or the Lenders’ waiver of, each of the conditions set forth in
Part 5 of this Fourth Amendment.
Section 1.2. Other Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Fourth Amendment have the meanings provided in the Amended
Credit Agreement.
Part 2
Amendments to Existing Credit Agreement
Effective on (and subject to the occurrence of) the Fourth Amendment Effective Date, the
Existing Credit Agreement is hereby amended in accordance with this Part 2. Except as so amended,
the Existing Credit Agreement shall continue in full force and effect.
Section 2.1. Amendment of Section 8.13(b). Section 8.13(b) of the Existing Credit
Agreement is amended to read in its entirety as follows:
(b) make (or give any notice or offer to purchase with respect thereto) any voluntary,
optional or other non-scheduled payment (the “buyout” price at the end of the term of any
Capital Lease or Synthetic Lease being treated hereunder as scheduled), prepayment,
redemption, acquisition for value, refund, refinance or exchange (including in each
instance, without limitation, (i) by depositing money or securities with a trustee or other
Person with respect thereto before due for the purpose of paying when due and (ii) by
borrowing, or attempting to borrow, as a Revolving Loan hereunder amounts to fund any such
payment before it becomes due and holding such funds in a deposit or other account of the
Borrower for purpose of paying when due) of any Indebtedness of such Loan Party (including,
without limitation, any interest, premium or other amounts owing in respect thereof), in
each case whether or not mandatory, except (i) with respect to Indebtedness under the Loan
Documents, (ii) for refinancings or refundings permitted by Section 8.03(b), (iii) with
respect to Intercompany Debt owed to a Loan Party, and (iv) for the non-cash retirement of
Indebtedness arising from the Sylacauga IRB Arrangements.
Part 3
Limited Waivers and Consents
Effective on (and subject to the occurrence of) the Fourth Amendment Effective Date, the
Required Lenders hereby provide the limited waivers and consents set forth in this Part 3.
Section 3.1. June 30, 2007 Compliance Certificates. With respect to the financial
statements and Compliance Certificates originally delivered by the Borrower to the Lenders for the
fiscal quarter ending June 30, 2007 pursuant to sections 7.01(b) and 7.02(b) of the Existing Credit
Agreement, the Required Lenders waive any Default or Event of Default existing or occurring in
connection with the Borrower’s calculation of Consolidated Interest Charges and Consolidated EBITDA
as provided therein. On or before the Fourth Amendment Effective Date, the Borrower shall provide
revised financial statements and a related Compliance Certificate for the fiscal quarter ending
June 30, 2007, in form, detail and substance satisfactory to the Agent. The Agent and Required
Lenders hereby consent to an extension of time for the Borrower to deliver the financial statements
and Compliance Certificate for the quarter ending June 30, 2007 through and including August 31,
2007. For the avoidance of doubt, the extension of time to deliver the financial statements and
Compliance Certificate for the fiscal quarter ending June 30, 2007 shall not imply or be deemed to
imply that any similar extension shall exist or be granted
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with respect to any of the items to be delivered pursuant to sections 7.01(b) and 7.02(b) for
any subsequent fiscal periods except as expressly provided herein.
Section 3.2. September 30, 2007 Compliance Certificates. The Lenders agree that (a)
with respect to the financial statements and Compliance Certificate which the Borrower is required
to deliver, pursuant to sections 7.01(b) and 7.02(b) of the Amended Credit Agreement, for the
fiscal quarter ending September 30, 2007, the Borrower shall have an extension through and until
November 29, 2007 (the “Extension Period”) to timely deliver such financial statements and
Compliance Certificate, and (b) the Borrower’s compliance with section 8.11 of the Amended Credit
Agreement as of September 30, 2007 shall not be measured or determined for any purposes (including,
without limitation, section 5.02(b)) under the Amended Credit Agreement until the end of the
Extension Period. Failure by the Borrower to deliver such financial statements and Compliance
Certificate to the Agent, in form, detail and substance satisfactory to the Agent and the Lenders,
on or before 1:00 p.m. (New York time) on November 29, 2007, shall constitute an immediate Event of
Default under the Amended Credit Agreement and no grace or cure period will be applicable thereto.
Section 3.3. Prior Financial Statements and Compliance Certificates. On or before
the Fourth Amendment Effective Date, the Borrower shall prepare and deliver to the Agent restated
financial statements (collectively, the “Restated Financial Statements”) for the fiscal
years ended March 31, 2007, March 31, 2006, and March 31, 2005 (collectively, the “Affected
Fiscal Periods”). The Required Lenders waive any Default or Event of Default occurring pursuant
to sections 6.05(d), 7.01(a), 7.01(b), or 7.01(c) of the Existing Credit Agreement in respect of
the Borrower’s prior delivery of financial statements for the Affected Fiscal Periods to the extent
that such financial statements were not prepared in accordance with GAAP and the Restated Financial
Statements properly account for the Affected Fiscal Periods in accordance with GAAP. The Required
Lenders further waive any Default or Event of Default occurring with respect to any inaccuracies
contained in Compliance Certificates prepared by the Borrower pursuant to section 7.02(b) of the
Existing Credit Agreement with respect to the Affected Fiscal Periods to the extent that items
creating such inaccuracies have been corrected in the Restated Financial Statements. The Required
Lenders further waive any Default or Event of Default occurring with respect to the Borrower’s
prior calculation of the “First Lien Leverage Ratio” or the Borrower’s breach, if any, of section
8.11 of the Existing Credit Agreement, in each case for the applicable Affected Fiscal Periods, to
the extent that any inaccuracies in such prior calculation have been corrected in the Restated
Financial Statements. The Borrower has informed the Agent that the Restated Financial Statements
for the fiscal year ended March 31, 2007 shall include a “going concern” qualification as of March
31, 2007 in the opinion provided by the Borrower’s certified public accountants pursuant to section
7.01(a). The Required Lenders waive through the Extension Period, any Default or Event of Default
occurring under section 7.01(a) of the Existing Credit Agreement as a result of the inclusion of
such “going concern” qualification in such accountants’ opinion. Upon the expiration of the
Extension Period, an Event of Default shall exist under section 7.01(a) unless further waived by
the Required Lenders. The Required Lenders have made no commitment or agreement to provide such
further waiver. Notwithstanding the foregoing, to the extent that the Borrower further restates or
is required to further restate, at any time after the Fourth Amendment Effective Date, any
financial statements for the Affected Fiscal Periods or any other
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fiscal periods, then the Lenders are not waiving herein or agreeing to waive any Default or
Event of Default arising as a result of any such further restatement.
Section 3.4. Waiver of Notification of Potential Default. To the extent that the
Borrower has failed to comply with section 7.03 of the Existing Credit Agreement by not notifying
the Agent of any Default, if any, under sections 8.11 or 7.01(a) or 7.01(b) of the Existing Credit
Agreement with respect to the financial statements and Compliance Certificates due for the fiscal
quarter ending June 30, 2007 or due for any Affected Fiscal Period, or has violated section 5.02(b)
of the Existing Credit Agreement on account of any such Default in connection with any Borrowings
made prior to the Fourth Amendment Effective Date, the Required Lenders hereby waive any such
Defaults. Such waiver shall be deemed to be a one-time waiver and shall not imply or be deemed to
imply that any similar waiver shall be granted in the future for any subsequent failure to provide
notice required by section 7.03 of the Amended Credit Agreement or any subsequent violation of
section 5.02(b) of the Amended Credit Agreement.
Section 3.5. Delivery of July 2007 Financial Statements. The Administrative Agent
and the Required Lenders hereby agree that the Borrower shall have an extension of five (5)
Business Days to deliver the financial statements required by section 7.01(c) of the Existing
Credit Agreement for the calendar month of July 2007. As a result of such five Business Day
extension, the Borrower may timely deliver such financial statements through and including
September 7, 2007. Such extension shall be deemed to be a one-time extension and shall not imply or
be deemed to imply that any similar extension shall be granted in the future.
Part 4
Representations and Warranties
Each of the Loan Parties represents and warrants to the Agent and the Lenders that, as of the
Fourth Amendment Effective Date:
Section 4.1. Authority. Each Loan Party has all the necessary corporate power to
make, execute, deliver, and perform this Fourth Amendment, has taken all necessary corporate action
to authorize the execution, delivery and performance of this Fourth Amendment and has duly executed
and delivered this Fourth Amendment. This Fourth Amendment and the Amended Credit Agreement
constitute the legal, valid and binding obligations of each of the Loan Parties, enforceable
against each of them in accordance with its terms except as such enforceability may be subject to
(a) applicable Debtor Relief Laws and (b) general principles of equity.
Section 4.2. No Legal Obstacle to Agreement. Neither the execution of this Fourth
Amendment, the making by the Borrower of any borrowings under the Amended Credit Agreement, nor the
performance of the Amended Credit Agreement has constituted or resulted in or will constitute or
result in a breach of the provisions of any contract to which any Loan Party is a party, or the
violation of any law, judgment, decree or governmental order, rule or regulation applicable to any
Loan Party, or result in the creation under any agreement or instrument of any security interest,
lien, charge, or encumbrance upon any of the assets of any Loan Party. No approval or
authorization of any governmental authority is required to permit the execution,
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delivery or performance by any Loan Party of this Fourth Amendment, the Amended Credit
Agreement, or the transactions contemplated hereby or thereby, or the making of any borrowings by
the Borrower under the Amended Credit Agreement.
Section 4.3. Incorporation of Certain Representations. The representations and
warranties set forth in Article VI of the Amended Credit Agreement are true and correct in all
material respects on and as of the Fourth Amendment Effective Date as though made on and as of the
date hereof, except for any representations and warranties that expressly relate solely to an
earlier date, which representations and warranties were true and accurate in all material respects
on and as of such earlier date.
Section 4.4. Default. No Default or Event of Default has occurred and is continuing
under the Amended Credit Agreement.
Part 5
Conditions to Effectiveness
This Fourth Amendment shall be and become effective as of the Fourth Amendment Effective Date
provided that each of the conditions set forth in this Part 4 shall have been satisfied (or
satisfaction thereof has been waived by the Agent and the Lenders) on or before August 31, 2007.
If the Borrower fails to satisfy each of the conditions set forth in this Part 5 prior to 5:00 p.m.
(Eastern time) on August 31, 2007, then, at the option of the Agent and the Required Lenders, upon
notice to the Borrower, this Fourth Amendment shall be null and void.
Section 5.1. Counterparts of Amendment. The Agent shall have received counterparts
(or other evidence of execution, including telephonic message, satisfactory to the Agent) of this
Fourth Amendment, which collectively shall have been duly executed on behalf of each of the
Borrower, the Guarantor, the Required Lenders and the Agent.
Section 5.2. Corporate Action. The Borrower shall have delivered to the
Administrative Agent certified copies of all necessary corporate action taken by each Loan Party
approving this Fourth Amendment, and each of the documents executed and delivered in connection
herewith or therewith (including, without limitation, a certificate setting forth the resolutions
of the board of directors of each Loan Party authorizing the amendments to the Existing Credit
Agreement herein provided for and the execution, delivery and performance of this Fourth
Amendment). The Agent shall have received a certificate, signed by the Secretary or an Assistant
Secretary of each Loan Party, dated as of the date hereof, as to the incumbency of the person or
persons authorized to execute and deliver this Fourth Amendment and any instrument or agreement
required hereunder on behalf of each Loan Party, as applicable.
Section 5.3. June 30th Financial Statements and Compliance Certificates.
The Borrower shall have delivered to the Agent copies of its revised financial statements and the
related revised Compliance Certificate for the fiscal quarter ending June 30, 2007, each in form,
detail and substance satisfactory to the Agent. Such revised financial statements shall be
substantively identical to financial statements filed by the Borrower with the SEC,
contemporaneously with the Fourth Amendment Effective Date, for such fiscal quarter.
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Section 5.4. Restated Financial Statements. The Borrower shall have delivered to the
Agent copies of the Revised Financial Statements, each in form, detail and substance satisfactory
to the Agent. Such Revised Financial Statements shall be substantively identical to the restated
financial statements filed by the Borrower with the SEC, contemporaneously with the Fourth
Amendment Effective Date, with respect to the Affected Fiscal Periods.
Part 6
Miscellaneous
Section 6.1. Reaffirmation of Loan Party Obligations. Each Loan Party hereby
ratifies the Amended Credit Agreement and acknowledges and reaffirms (i) that it is bound by all
terms of the Amended Credit Agreement and (ii) that it is responsible for the observance and full
performance of the Obligations. Without limiting the generality of the preceding sentence, (i) the
Parent as Guarantor restates that it guarantees the prompt payment when due of all Obligations, in
accordance with, and pursuant to the terms of, Article IV of the Amended Credit Agreement
and (ii) each of the Loan Parties agrees that all references in the Collateral Documents to the
term “Secured Obligations” shall be deemed to include all of the obligations of the Loan Parties to
the Lenders and the Agent, whenever arising, under the Amended Credit Agreement, the Collateral
Documents or any of the other Loan Documents (including, but not limited to, any interest, expenses
and cost and charges that accrue after the commencement by or against any Loan Party or any
Affiliate thereof or any proceedings under any Debtor Relief Laws naming such Person as the debtor
in such proceeding). Each Loan Party further represents and warrants to the Agent and the Lenders
that none of the Loan Parties has any claims, counterclaims, offsets, credits or defenses to the
Loan Documents or the performance of their respective obligations thereunder, or if any Loan Party
has any such claims, counterclaims, offsets, creditors or defenses to the Loan Documents or any
transaction related to the Loan Documents, the same are hereby waived, relinquished and released in
consideration of the execution and delivery of this Fourth Amendment by the Agent and the Lenders.
Section 6.2. Instrument Pursuant to Existing Credit Agreement. This Fourth
Amendment is a Loan Document executed pursuant to the Existing Credit Agreement and shall (unless
otherwise expressly indicated therein) be construed, administered and applied in accordance with
the terms and provisions of the Existing Credit Agreement.
Section 6.3. Effect. Except as expressly herein amended, the terms and conditions of
the Existing Credit Agreement shall remain in full force and effect without amendment or
modification, express or implied. The entering into this Fourth Amendment by the Lenders shall not
be construed or interpreted as an agreement by the Lenders to enter into any future amendment or
modification of the Amended Credit Agreement or any of the other Loan Documents.
Section 6.4. References in Other Loan Documents. At such time as this Fourth
Amendment shall become effective pursuant to the terms of Part 5 hereof, all references in
the Existing Loan Documents to the “Credit Agreement” and/or “First Lien Credit Agreement” shall be
deemed to refer to the Credit Agreement as amended by this Fourth Amendment.
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Section 6.5. Counterparts. This Fourth Amendment may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original and all of which
shall constitute together but one and the same agreement, and all of such counterparts taken
together shall be deemed to constitute one and the same instrument. Any signature delivered or
transmitted by a party by facsimile transmission shall be deemed to be an original signature
hereto.
Section 6.6. Integration. This Fourth Amendment, together with the Loan Documents,
contains the entire and exclusive agreement of the parties hereto with reference to the matters
discussed herein and therein. This Fourth Amendment supersedes all prior drafts and communications
with respect thereto. This Fourth Amendment may not be amended except in writing.
Section 6.7. Further Assurances. The Borrower agrees to take such further actions as
the Agent shall reasonably request from time to time in connection herewith to evidence or give
effect to the amendments set forth herein or any of the transactions contemplated hereby.
Section 6.8. Governing Law. THIS FOURTH AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICTS OF
LAWS PRINCIPLES.
Section 6.9. Successors and Assigns. This Fourth Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns.
Section 6.10. Costs, Expenses. The Borrower agrees to pay on demand any and all
reasonable costs and expenses of the Agent or Banc of America Securities LLC and all other fees and
other amounts payable to the Agent or Banc of America Securities, LLC, in each case incurred in
connection with the preparation, execution, delivery and administration of this Fourth Amendment
(including, without limitation, the reasonable fees and expenses of counsel to the Agent) in
accordance with the terms of Section 11.04 of the Existing Credit Agreement.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be duly
executed and delivered as of the date first written above.
| AMERICAN COLOR GRAPHICS, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | SVP/CFO | |||
| ACG HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | SVP/CFO | |||
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| BANK OF AMERICA, N.A., as Administrative Agent |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| BANK OF AMERICA, N.A., as L/C Issuer |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Senior Vice President | |||
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