Exhibit 10.11
AMENDMENT NO. 1
This AMENDMENT NO. 1, dated as of September 19, 2002 (as amended,
supplemented, amended and restated or otherwise modified from time to time, this
"Amendment"), is among XXX XXXXXXXX HOLDINGS, INC., a Delaware corporation
formerly known as Xxx Xxxxxxxx Corporation (the "Parent"), XXX XXXXXXXX
CORPORATION, a Delaware corporation formerly known as Xxx Xxxxxxxx Press, Inc.
("VHC"), H&S GRAPHICS, INC., PRECISION OFFSET PRINTING COMPANY, INC., PREFACE,
INC., ONE THOUSAND REALTY & INVESTMENT COMPANY and certain other Subsidiaries of
VHC which may from time to time become party as Borrowers to the Credit
Agreement referred to below (together with VHC, each a "Borrower" and,
collectively, the "Borrowers"), and the Lenders signatory hereto.
The Borrowers, the banks and other lending institutions party thereto
from time to time (each a "Lender" and, collectively, the "Lenders"), THE CIT
GROUP/BUSINESS CREDIT, INC., as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), CREDIT SUISSE FIRST BOSTON, CAYMAN
ISLANDS BRANCH, as syndication agent for the Lenders (in such capacity, the
"Syndication Agent"), and US BANK NATIONAL ASSOCIATION, as documentation agent
for the Lenders (in such capacity, the "Documentation Agent") have heretofore
entered into a Credit Agreement dated as of March 26, 2002 (as heretofor
amended, the "Credit Agreement");
The Obligors and the Lenders desire to amend the Credit Agreement to,
among other things, reflect certain changes to the cash management practices of
the Borrowers effected subsequent to the closing under the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, capitalized terms defined in the
Credit Agreement shall have the same meanings when used in this Amendment. The
following additional terms, as used herein, shall have the following respective
meanings:
"Amendment" has the meaning set forth in the preamble hereof.
"Amendment Effective Date" has the meaning set forth in Article III.
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
Subject to the conditions and on the terms set forth herein, and in
reliance on the representations and warranties of the Obligors contained herein,
the Credit Agreement is hereby amended, as of the Amendment Effective Date, in
accordance with this Article II.
SECTION 2.01 AMENDMENTS TO CERTAIN DEFINITIONS SET FORTH IN SECTION
1.1. (a) The definitions of "Collection Account", "Concentration Account",
"Disbursement Account", "Notice of Cash Dominion" and "Operating Account" set
forth in Section 1.1 of the Credit Agreement are hereby amended to read in full
as follows:
"Collection Account" means a Deposit Account of VHC or any
one or more of its Subsidiaries designated as a "ZBA collection"
account on Schedule VI hereto.
"Concentration Account" means a Deposit Account of VHC or
any one or more of its Subsidiaries designated as a "concentration"
account on Schedule VI hereto.
"Disbursement Account" means the Operating Account and any
other Deposit Account of VHC or any one or more of its Subsidiaries
listed on Schedule VI hereto and which is not a Collection Account or
a Concentration Account.
"Notice of Cash Dominion" means a notice by the
Administrative Agent to each bank maintaining any Collection Account
of any Borrower or one or more of its Subsidiaries (with a copy to
such Borrower), substantially in the form of Exhibit B-4 hereto,
notifying such banks and such Borrower that the Administrative Agent
has elected to effect the cash dominion procedures in accordance with
Section 2.8.
"Operating Account" means the Concentration Account
numbered 1001613379 maintained with the Depositary Bank by VHC on
which VHC draws checks to pay operating expenses.
(b) Clause (ii) of the definition of "Eligible Account"
set forth in Section 1.1 of the Credit Agreement is hereby amended to
read in full as follows:
(ii) Accounts more than 90 days past the
original billing date therefore;
SECTION 2.02 AMENDMENT TO SECTION 3.1.1(D). Section 3.1.1(d) of the
Credit Agreement is hereby amended to read in full as follows:
(d) Mandatory Repayments from Collection Accounts.
(i) Deposits of Proceeds to Collection
Accounts. The Obligors shall instruct all Account Debtors
and other Persons obligated in respect of Accounts to make
all payments in respect of the Accounts directly to one or
more Collection Accounts. In addition, each Borrower
agrees that if the proceeds of any Accounts shall be
received by it or by any of the other Obligors, such
Borrower shall, and shall cause each of the other Obligors
to, as promptly as possible deposit such proceeds in a
Collection Account. Until so deposited, all such proceeds
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shall be held in trust by such Obligors for the
Administrative Agent on behalf of the Secured Parties and
shall not be commingled with any other funds or property
of such Obligors. So long as no Notice of Cash Dominion is
in effect, the Borrowers may from time to time transfer
the Available Balances on deposit in the Collection
Accounts to one or more Disbursement Accounts or
Concentration Accounts and may transfer Available Balances
among the Concentration Accounts and Disbursement
Accounts.
(ii) Withdrawals to Pay Obligations. On any
date on which a Notice of Dominion is in effect, (A) the
aggregate Available Balance of all Disbursement Accounts
and Concentration Accounts in excess of an aggregate
amount equal to (x) if Excess Availability on such date
exceeds $5,000,000 and no Event of Default shall have
occurred and be continuing, $5,000,000, (y) if Excess
Availability on such date exceeds $5,000,000 and an Event
of Default shall have occurred and be continuing,
$2,500,000 or (z) if Excess Availability on such date is
less than or equal to $5,000,000, $0 (provided that the
limitations set forth in this clause (ii) shall not affect
or impair any rights or remedies of the Administrative
Agent under the Pledge and Security Agreement or any other
Loan Document if an Event of Default has occurred and is
continuing), shall be transferred by the Borrowers and
their Subsidiaries to the Administrative Agent in the
manner as shall be instructed by the Administrative Agent
in the applicable Notice of Cash Dominion, (B) the
aggregate Available Balance of all Collection Accounts
shall be transferred by the respective banks maintaining
such Collection Accounts to the Administrative Agent in
the manner as shall be instructed by the Administrative
Agent in the applicable Notice of Cash Dominion and (C)
following the transfers referred to in clauses (A) and (B)
above, to the extent necessary to pay in full the Loans
and/or to Cash Collateralize in full all Letter of Credit
Outstandings, the amounts so transferred to the
Administrative Agent shall be applied by the
Administrative Agent to repay Loans or Cash Collateralize
Letter of Credit Outstandings. Each Borrower hereby
irrevocably authorizes and empowers the Administrative
Agent, its officers, employees and authorized agents at
any time during which a Notice of Cash Dominion is in
effect, to endorse and sign its name or the name of any
other Obligor on all checks, drafts, money orders or other
media of payment so delivered, and such endorsements or
assignments shall, for all purposes, be deemed to have
been made by the applicable Obligor prior to any
endorsement or assignment thereof by the Administrative
Agent. The Administrative Agent may use any convenient or
customary means for the purpose of collecting such checks,
drafts, money orders or other media of payment. If,
notwithstanding the provisions of clause (B) above and the
provisions of any applicable deposit account control
agreement, any Obligor receives any funds required to be
transferred to the Administrative Agent in accordance with
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clause (B) above or any funds required to be transferred
to the Administrative Agent in accordance with clause (B)
above are deposited into any Concentration Account or
Disbursement Account, the applicable Obligor(s) shall hold
all such funds in trust for the Administrative Agent on
behalf of the Secured Parties, shall not commingle such
funds with any other funds or property of any Obligor and
shall promptly transfer such funds to the Administrative
Agent in the manner described in the applicable Notice of
Cash Dominion.
SECTION 2.03 AMENDMENT TO SECTION 7.1.11. Section 7.1.11 of the
Credit Agreement is hereby amended to read in full as follows:
SECTION 7.1.11 Notification to Account Debtors. Each
Borrower hereby authorizes the Administrative Agent at any time
following the occurrence of and during the continuance of an Event of
Default to notify each Account Debtor in respect of any Account that
such Account has been assigned to the Administrative Agent for the
benefit of the Secured Parties and that any payments due or to become
due in respect of such Account are to be made directly to a
Collection Account in accordance with Section 3.1.1(d).
SECTION 2.04 AMENDMENT TO SCHEDULE VI. Schedule VI to the Credit
Agreement is hereby amended to read in full as set forth on Schedule VI hereto.
ARTICLE III
CONDITIONS PRECEDENT
This Amendment (and the amendments contained herein) shall become
effective on the date (the "Amendment Effective Date") when each of the
conditions set forth in this Article III shall have been satisfied.
SECTION 3.01 COUNTERPARTS AND LENDER CONSENTS. The Administrative
Agent shall have received counterparts hereof executed on behalf of each Obligor
and the Required Lenders.
SECTION 3.02 AMENDMENT NO. 1 TO SECURITY AGREEMENT. The
Administrative Agent shall have received counterparts of an Amendment No. 1 to
Security Agreement, in the form attached hereto as Exhibit A, executed on behalf
of each Obligor and the Administrative Agent.
SECTION 3.03 AMENDMENT AND RESTATEMENT OF DEPOSIT ACCOUNT CONTROL
AGREEMENT. The Administrative Agent shall have received counterparts of an
amendment and restatement of the deposit account control agreement among Xxx
Xxxxxxxx Corporation, Xxx Xxxxxxxx Holdings Inc., One Thousand Realty &
Investment Company, the Administrative Agent and US Bank National Association,
in form and substance satisfactory to the Administrative Agent and relating to
the Administrative Agent's control of each Collection Account maintained by any
Obligor with US Bank National Association, executed on behalf of each applicable
Obligor, US Bank National Association and the Administrative Agent.
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SECTION 3.04 OTHER COSTS AND EXPENSES. The Agent shall have received
all fees, costs and expenses (including, without limitation, all fees and
disbursements of Mayer, Brown, Xxxx & Maw in connection with the preparation,
negotiation, execution and delivery of this Amendment and the waivers to the
Credit Agreement dated April 26, 2002 and June 19, 2002) due and payable
pursuant to Sections 3.3 and 11.3 of the Credit Agreement to the extent then
invoiced.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 REPRESENTATIONS AND WARRANTIES. In order to induce the
Lenders to consent to the amendments contained herein and to enter into this
Amendment, each Obligor, jointly and severally, represents and warrants as set
forth below:
(a) After giving effect to this Amendment, the amendment
of certain provisions of the Credit Agreement do not impair the
validity, effectiveness or priority of the Liens granted pursuant to
any Loan Documents relating thereto (the "Security Documents"), and
such Liens continue unimpaired with the same priority to secure
repayment of all Obligations, whether heretofore or hereafter
incurred. The amendment of certain provisions of the Credit Agreement
effected pursuant to this Amendment do not require that any new
filings be made or other action taken to perfect or to maintain the
perfection of such Liens. The position of the Lenders with respect to
such Liens, the Collateral (as defined in the Security Documents) in
which a security interest was granted pursuant to the Security
Documents, and the ability of the Administrative Agent to realize
upon such Liens pursuant to the terms of the Security Documents have
not been adversely affected in any material respect by the amendment
of certain provisions of the Credit Agreement effected pursuant to
this Amendment or by the execution, delivery, performance or
effectiveness of this Amendment.
(b) Each Obligor reaffirms as of the Amendment Effective
Date such Person's respective covenants and agreements contained in
the Credit Agreement, each Security Document to which such Person is
a party, including, in each case, as such covenants and agreements
may be modified by this Amendment. Each such Obligor further confirms
that each such Loan Document to which such Person is a party is and
shall continue to be in full force and effect and the same are hereby
ratified, approved and confirmed in all respects, except that upon
the occurrence of the Amendment Effective Date, all references in
such Loan Documents to the "Credit Agreement", "Loan Documents",
"thereunder", "thereof", "therein" or words of like or similar import
shall mean and be a reference to the Credit Agreement and the Loan
Documents as amended hereby.
(c) Both immediately before and immediately after giving
effect to this Amendment, the representations and warranties set
forth in Article VI of the Credit Agreement and each other Loan
Document are, in each case, true and correct (unless stated to relate
solely to an earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date).
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SECTION 4.02 VALIDITY, ETC. This Amendment constitutes the legal,
valid and binding obligation of the Obligors enforceable in accordance with its
terms subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
SECTION 4.03 NO DEFAULT. Both immediately before and immediately
after giving effect to this Amendment, no Default has occurred and is
continuing.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01 RATIFICATION OF AND REFERENCES TO THE CREDIT AGREEMENT.
This Amendment shall be deemed to be an amendment to the Credit Agreement, and
the Credit Agreement, as amended hereby, is hereby ratified, approved and
confirmed in each and every respect. All references to the Credit Agreement in
any other document, instrument, agreement or writing shall hereafter be deemed
to refer to the Credit Agreement as amended hereby. Other than as specifically
provided herein, this Amendment shall not operate as a waiver or amendment of
any right, power or privilege of any Agent or any Lender under the Credit
Agreement or any other Loan Document or of any other term or condition of the
Credit Agreement or any other Loan Document, nor shall the entering into of this
Amendment preclude any Agent and/or any Lender from refusing to enter into any
further waivers or amendments with respect thereto.
SECTION 5.02 HEADINGS. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
SECTION 5.03 EXECUTION IN COUNTERPARTS. This 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. A counterpart hereof executed and delivered by facsimile
shall be effective as an original.
SECTION 5.04 SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 5.05 GOVERNING LAW; ENTIRE AGREEMENT. THIS AMENDMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK. This Amendment and the other Loan Documents constitute the
entire understanding among the parties hereto with respect to the subject matter
hereof and supersede any prior agreements, written or oral, with respect
thereto.
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IN WITNESS WHEREOF, the signatories hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
XXX XXXXXXXX HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Executive Vice President
& Chief Financial Officer
XXX XXXXXXXX CORPORATION
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Executive Vice President
& Chief Financial Officer
H&S GRAPHICS, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
PRECISION OFFSET PRINTING COMPANY, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
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PREFACE, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
ONE THOUSAND REALTY & INVESTMENT COMPANY
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
LENDERS: THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH
By: /s/ Xxxx X'Xxxx
-----------------------------------------------
Name: Xxxx X'Xxxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Associate
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US BANK NATIONAL ASSOCIATION
By: /s/ Xxx Xxxxxx
------------------------------------------------
Name: Xxx Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By:
------------------------------------------------
Name:
Title:
WHITEHALL BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxx Zautua
------------------------------------------------
Name: Xxxxxx Zautua
Title: Vice President
LASALLE BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
TRANSAMERICA BUSINESS CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
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CREDIT INDUSTRIEL ET COMMERCIAL
By:
------------------------------------------------
Name:
Title:
SCHEDULE VI
DEPOSIT ACCOUNTS
Obligor Bank Account Number Description
------- ---- -------------- -----------
Xxx Xxxxxxxx Holdings Inc. US Bank Corporation 1001613403 Disbursement
Xxx Xxxxxxxx Corporation US Bank Corporation 0000010537 Disbursement
US Bank Corporation 3500710789 Controlled Disbursement
US Bank Corporation 15230200293 ZBA Collection
Branch Banking & Trust 5150916161 Disbursement
US Bank Corporation 1891015495 Disbursement
US Bank Corporation 1876200619 Working Fund-Owensville Plant
Disbursements
US Bank Corporation 3500707280 Controlled Disbursement
US Bank Corporation 1001235272 Working Fund-St. Louis Office
Disbursements
US Bank Corporation 1001613379 Concentration
US Bank Corporation 3500712124 Controlled Disbursement
Central Bank 000272 Working Fund-Jefferson City Plant
Disbursements
Cass Bank 00-0000000-0 Freight Disbursement
One Thousand Realty &
Investment Company US Bank Corporation 1001485406 Disbursement
Precision Offset Printing Company Allfirst Bank 00620-6530-0 Concentration
Allfirst Bank 990238340 ZBA Collection
H & S Graphics, Inc. American National Bank 5330330351 Concentration
American National Bank 5330428866 ZBA Collection
Preface, Inc. American National Bank 5330330378 Concentration
American National Bank 5330428874 ZBA Collection
