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Exhibit 10.1
AMENDMENT NO. 3 AND RELEASE
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AMENDMENT NO. 3 AND RELEASE (this "AMENDMENT"), dated as of August 26,
1998, under the Credit Agreement, dated as of April 26, 1996, by and among
Xxxxxx Greetings, Inc., the Lenders party thereto, and The Bank of New York, as
Agent (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT").
RECITALS
I. Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
II. The Borrower has requested certain amendments to the Credit
Agreement.
Accordingly, in consideration of the Recitals and the covenants and
conditions hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the Borrower and the
Agent agree as follows:
1. Section 1.1 of the Credit Agreement is hereby amended by adding the
following defined terms thereto in alphabetical order:
"INK GROUP COMPANIES": as defined in Section 8.5(d).
"NON-GUARANTOR INTERCOMPANY DEBT" (a) Indebtedness of the Borrower to
one or more of the Domestic Subsidiaries or Foreign Subsidiaries which are not
Guarantors, and (b) demand indebtedness of one or more of the Domestic
Subsidiaries or Foreign Subsidiaries which are not Guarantors to the Borrower or
any one or more of the Domestic Subsidiaries or Foreign Subsidiaries.
"TVM": as defined in Section 8.5(f).
2. Section 8.1 of the Credit Agreement is amended by adding the
following at the end thereof:
, (h) Indebtedness of the Ink Group Companies to the Borrower to the
extent permitted by Section 8.5, (i) Indebtedness of TVM to the
Borrower to the extent permitted by Section 8.5, and (j) Non-Guarantor
Intercompany Debt to the extent permitted by Section 8.5(g).
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3. Section 8.3 of the Credit Agreement is amended by adding the
following at the end thereof:
, and (e) the Disposition by the Borrower of all of the capital stock
of The Paper Factory of Wisconsin, Inc. (the " TPF Disposition").
4. Section 8.4 of the Credit Agreement is amended by adding the
following at the end thereof:
, and (d) other Acquisitions the cost of which, when aggregated with
the aggregate cost of all Investments made pursuant to Section 8.5(g)
and Restricted Payments made pursuant to Section 8.6(c) shall not
exceed $10,000,000.
5. Section 8.5 of the Credit Agreement is amended by adding the
following at the end thereof:
, (d) the Borrower may make equity Investments in The Ink Group,
provided however that (1) the Borrower shall acquire not less than 100%
of the ownership interests in The Ink Group subsidiary operating in the
United Kingdom and not less than 60% of the ownership interests in The
Ink Group's operating companies in Australia and New Zealand (such
United Kingdom, Australian and New Zealand companies being referred to
as the "Ink Group Companies"), and (2) the cash consideration therefor
paid by the Borrower and its Subsidiaries shall not be in excess
$1,000,000, (e) the Borrower may make loans to and advances for the
benefit of the Ink Group Companies, provided that the aggregate
principal balance of all such loans and advances shall not exceed
$8,000,000 at any one time outstanding, (f) the Borrower may make one
or more additional Investments in The Virtual Mall, Inc. ("TVM"),
provided that immediately after giving effect thereto, the aggregate
cost of all Investments made by the Borrower and its Subsidiaries in
TVM shall not exceed $5,000,000, and (g) other Investments the cost of
which, when aggregated with the aggregate cost of all Acquisitions made
pursuant to Section 8.4(d) and Restricted Payments made pursuant to
Section 8.6(c) shall not exceed $10,000,000.
6. Section 8.6 of the Credit Agreement is amended by adding the
following at the end thereof:
, and (c) provided that immediately before and after giving effect
thereto no Default or Event of Default shall or would exist, the
Borrower may pay additional dividends and make additional distributions
on and additional
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redemption of any class of Stock or other type or class of equity
interest or equity investment the cost of which, when aggregated with
the aggregate cost of all Acquisitions made pursuant to Section 8.4(d)
and Investments made pursuant to Section 8.5(g) shall not exceed
$10,000,000.
7. The Agent agrees that on and as of the date of the TPF Disposition,
if any, TPF shall be released from all of its obligations and liabilities under
the Subsidiary Guaranty.
8. Paragraphs 1 - 7 of this Amendment shall not be effective until such
date as the Agent shall have received counterparts of this Amendment executed by
the Borrower and Required Lenders.
9. On the date hereof, the Borrower hereby (a) reaffirms and admits the
validity and enforceability of the Loan Documents and all of its obligations
thereunder, (b) agrees and admits that it has no defenses to or offsets against
any such obligation, and (c) represents and warrants that, after giving effect
to this Amendment, no Default or Event of Default exists and that the
representations and warranties contained in the Credit Agreement are true and
correct with the same effect as though such representations and warranties had
been made on the date hereof.
10. In all other respects, the Loan Documents shall remain in full
force and effect, and no consent or other agreement in respect of any term or
condition of any Loan Document contained herein shall be deemed to be a consent
or other agreement in respect of any other term or condition contained in any
Loan Document.
11. This Amendment may be executed in any number of counterparts all of
which, taken together, shall constitute one Amendment. In making proof of this
Amendment, it shall only be necessary to produce the counterpart executed and
delivered by the party to be charged.
12. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS INTENDED
TO BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCEABLE
IN ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
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AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
XXXXXX GREETINGS, INC.
By: /s/ X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: CFO
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THE BANK OF NEW YORK
individually and as Agent
By: /s/ Xxxxxx X. Xxxxxxxxx III
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Name: Xxxxxx X. Xxxxxxxxx III
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Title: Vice President
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U.S. Commercial Banking
Each of the following Lenders consents
to the execution and delivery of this
Amendment by the Agent and agrees to all
of the terms and conditions hereof:
FIFTH THIRD BANK
By: /s/ Xxxxxx X. Haven
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Name: Xxxxxx X. Haven
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Title: Vice President
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XXXXXX TRUST AND SAVINGS BANK
By: /s/ W. A. XxXxxxxxx
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Name: Xxxxxxx XxXxxxxxx
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Title: Vice President
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(000) 000-0000
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NBD BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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