EXHIBIT 10.3
AMENDMENT XX. 0
Xxxxxxxxx Xx. 0, dated as of December 7, 2000 (the "Amendment"), to
the Senior Subordinated Credit Agreement, dated as of December 7, 1999, as
amended, among Xxxxxx, Inc. (f/k/a Big Flower Press Holdings, Inc.), a Delaware
corporation (the "Company"), Verbs Holdings, Inc. (f/k/a Big Flower Holdings,
Inc.), a Delaware corporation ("Holdings"), the Subsidiary Guarantors named on
the signature pages hereto, the Lenders named on the signature pages hereto (the
"Lenders") and Bankers Trust Company, The Chase Manhattan Bank and Banc of
America Bridge LLC (f/k/a NationsBridge, L.L.C.) as Agents for the Lenders (in
such capacity, the "Agents") (the "Credit Agreement"). Except as otherwise
indicated herein, capitalized terms used herein have the same meanings as set
forth in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to Section 12.6 of the Credit Agreement, the Company
and the Required Lenders desire to amend certain provisions of the Credit
Agreement;
NOW THEREFORE, in consideration of the premises and covenants
contained herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. AMENDMENT.
(a) COVER PIE AND PREAMBLE.
(i) The cover page of the Credit Agreement is hereby amended
(A) by deleting the reference to "Big Flower Press Holdings, Inc." and replacing
it with "Verbs, Inc.," (B) by deleting the reference to "Big Flower Holdings,
Inc." and replacing it with. "Xxxxxx Holdings, Inc." and (C) by deleting the
reference to "NationsBridge, L.L.C." and replacing it with "Banc of America
Bridge LLC"
(ii) The preamble of the Credit Agreement is hereby amended (A)
by inserting the words "Xxxxxx, Inc., formerly known as" immediately before the
words "Big Flower Press Holdings, Inc.," (B) by inserting the words "Xxxxxx
Holdings, Inc., formerly known as" immediately before the words "Big Flower
Holdings, Inc." and changing the defined term "Big Flower" and all references
thereto in the Credit Agreement to "Holdings" and (C) by inserting the words
"Banc of America Bridge LLC, formerly known as" immediately before the words
"NationsBridge, L.L.C."
(b) SECTION 1.1. Section 1.1 of the Credit Agreement is hereby
amended as follows:
(i) The definition of "Big Flower" is hereby deleted in its
entirety and is replaced with the following:
"'Holdings' has the meaning ascribed to such term in the
introduction to this Agreement."
(ii) The definition of "Demand Take-Out Notes" is hereby
amended by deleting the words "Bridge Notes" and "Bridge Loan" therein and
replacing them with the words "Term Loan."
(iii) The definition of "Eligible Assignee" is hereby amended by
adding the following proviso immediately before the period at the end of the
definition:
"; provided that any Eligible Assignee that only satisfies
clause (A)(iv) of this definition who will be the beneficial owner of
75% or more of the aggregate amount of all equity that could be issued
pursuant to Section 5.12 and Section 5.13(iv) shall be reasonably
acceptable to the Company"
(iv) The definition of "Senior Subordinated Indenture" is
hereby deleted in its entirety and is replaced with the following:
"'Senior Subordinated Indenture' means an indenture
between the Company and a trustee which shall include guarantees by
the Subsidiary Guarantors substantially identical to the guarantees
contained in Section 10, and subordination provisions substantially
identical to those contained in Sections 8 and 11, and which shall
include the terms set forth in Exhibit XIV attached hereto and which
shall be substantially in the form of the Agents' customary high yield
indenture (and, if any notes issued thereunder are sold in a public
offering, with appropriate changes as the Company and the Agents may
approve to reflect such public offering), as the same may at any time
be amended, modified and supplemented."
(v) The definition of "Take-Out Banks" is hereby deleted in
its entirety and is replaced with the following:
"'Take-Out Banks' means Deutsche Bank Securities Inc.,
Chase Securities, Inc., Bank of America Securities LLC and Fleet
Securities, Inc."
(c) SECTION 2.4. Section 2.4 is hereby deleted in its entirety and is
replaced with the following:
"The Company shall pay all of the fees and other
obligations in accordance with, and at the times specified by, that
certain fee letter, dated as of December 7, 2000, by and among the
Company, Bankers Trust Corporation, The Chase Manhattan Bank, Banc of
America Bridge LLC and the other lenders parties thereto."
(d) SECTION 3.2. Section 3.2G is hereby deleted in its entirety and
is replaced with the following:
"The Company shall have paid all fees owing on or prior to
the Conversion Date pursuant to Section 2.4 in cash."
(e) SECTION 5.12. Section 5.12 B is hereby deleted in its entirety
and replaced with the following:
"If it shall be reasonably determined by the Take-Out
Banks in consultation with the Company and Holdings based upon the
prevailing market conditions that it is necessary and advisable to
sell the Demand Take-Out Notes with an equity component, Holdings
shall issue common equity to the purchasers of the Demand Take-Out
Notes in such amount as is necessary in order for the Company to repay
the Term Loan in whole or in part, after taking into account the
prevailing market conditions; provided that in no event will Holdings
be required to issue common equity in excess of the Warrant Basket.
For purposes of this Agreement, Warrant Basket means 5% of Holdings'
fully diluted common equity at the earlier of (x) the time of sale of
the first Demand Take-Out Notes with an equity component pursuant to
this Section 5.12B or (y) June 30, 2001 (such date being referred to
as the "Initial Warrant Issuance Date") less the amount of any common
equity issued in accordance with the provisions of Section 5.13(iv)
and less any common equity previously issued pursuant to this Section
5.12B, it being understood that prior to June 30, 2001 the Take-Out
Banks can allocate, in their sole discretion, more or less than the
pro rata amount of warrants in connection with the issuance of Demand
Take-Out Notes. After June 30, 2001, the number of warrants issued in
connection with the sale of Demand Take-Out Notes shall be determined
on a pro rata basis based upon the aggregate principal amount of Term
Loans outstanding on June 30, 2001 unless, with respect to any
particular Lender, such Lender agrees and so directs the Take-Out
Banks with respect to any portion of the common equity that such
Lender would be entitled to receive pursuant to Section 5.13(iv) in
connection with an Exchange Request to relinquish the future right to
receive all or a portion of such common equity and instead have it
issued in connection with the sale of Demand Take-Out Notes, it being
further understood that if the Take-Out Banks sell Demand Take-Out
Notes without using the full amount of the Warrant Basket, then the
full amount of the Warrant Basket shall be available, as needed, in
connection with subsequent issuances of Demand Take-Out Notes in
accordance with this Section 5.12B and for issuance pursuant to
Section 5.13(iv). Such common equity will take the form of warrants
substantially in the form attached hereto as Exhibit XIII or as
otherwise agreed to by Holdings and the Agents (the "Warrant
Agreement") and shall have the benefit of the Registration Rights and
Stockholders Agreement."
(f) SECTION 5.13. Section 5.13 is hereby deleted in its entirety and
replaced with the following:
"On any date after June 30, 2001, on the 15th Business Day
following the written request (the "Exchange Request") of a holder of
Term Notes requesting the exchange of Term Notes for Exchange Notes:
(i) The Company shall execute and deliver, cause each
Subsidiary Guarantor to execute and deliver, and cause a bank or trust
company acting as trustee thereunder to execute and deliver, the
Senior Subordinated Indenture, if such Senior Subordinated Indenture
has not previously been executed and delivered;
(ii) The Company shall execute and deliver to such
holders or beneficial owners in accordance with the Senior
Subordinated Indenture notes in the form attached to the Senior
Subordinated Indenture (the "Exchange Notes") bearing a fixed interest
rate equal 13.5% per annum in exchange for such Term Notes dated the
date of the issuance of such Exchange Notes, payable to the order of
such holder or owner, as the case may be, in the same principal amount
as such Term Notes being exchanged, and cause each Subsidiary
Guarantor to endorse its guarantee thereon;
(iii) The Company shall execute and deliver, and cause
each Subsidiary Guarantor to execute and deliver, to such holder or
owner, as the case may be, a Registration Rights Agreement in the form
of Exhibit V; if such Registration Rights Agreement has not previously
been executed and delivered or, if such Registration Rights Agreement
has previously been executed and delivered and such holder or owner is
not already a party thereto, permit such holder or owner to become a
party thereto; and
(iv) Holdings shall issue to each holder requesting
Exchange Notes common equity in an amount equal to such holder's pro
rata share (based upon its respective ownership of the aggregate
principal amount of Term Loans outstanding at June 30, 2001) of the
Warrant Basket as of June 30, 2001, and such common equity will take
the form of warrants substantially in the form of the Warrant
Agreement and shall have the benefits of the Registration Rights and
Stockholders Agreement. Any transfer of Term Loans by any Lender may,
at the option of the transferor Lender, include the right of any such
transferee Lender to receive all or a portion of such transferor
Lender's share of common equity upon a receipt of Exchange Notes
pursuant to an Exchange Request by such transferee Lender. The right
to receive common equity not so transferred pursuant to the
immediately preceding sentence shall remain available to such
transferor Lender for any future transfer of Term Loans by such
transferor Lender and/or upon a request for Exchange Notes by such
transferor Lender or, at the request of such transferor Lender, such
common equity shall be available to the Take-Out Banks pursuant to
Section 5.12B.
The principal amount of the Term Notes to be exchanged
pursuant to this Section 5.13 shall be at least $5,000,000 and
integral multiples of $10,000
in excess thereof. Term Notes delivered to the Company under this
Section 5.13 in exchange for Exchange Notes shall be canceled by the
Company and the corresponding amount of the Term Loan deemed repaid
and the Exchange Notes shall be governed by and construed in
accordance with the terms of the Senior Subordinated Indenture.
The bank or trust company acting as trustee under the
Senior Subordinated Indenture shall at all times be a corporation
organized and doing business under the laws of the United States of
America or the State of New York, in good standing and having its
principal offices in the Borough of Manhattan, in The City of New
York, which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by Federal or
State authority."
(g) SECTION 6.15. The Credit Agreement is hereby amended by adding
the following new Section 6.15 to the Credit Agreement:
"6.15 COVENANTS POST-JUNE 30, 2001.
Subsequent to June 30, 2001 and provided that the fees payable
pursuant to Section 2.4 have been paid in full, the Company will no longer be
subject to the covenants set forth in Sections 6.1 through 6.14 but instead will
be subject to the covenants set forth in Exhibit XIV attached hereto, with
appropriate modifications thereto to reflect Loans instead of Exchange Notes. As
soon as reasonably practicable after June 30, 2001, the Company, Holdings, the
Agents and the Lenders shall enter into an amended and restated senior
subordinated credit agreement incorporating such revised covenants."
(h) SECTION 12.6. Section 12.6 of the Credit Agreement is hereby
amended by deleting the "or" prior to the "(viii)" in the first proviso to the
first sentence of Section 12.6 and adding the following at the end of such first
proviso:
"(ix) modify the third sentence of Section 5.1213 regarding the
issuance of warrants after June 30, 2001 in connection with an issuance of
Demand Take-Out Notes in a manner adverse to any Lender; or (x) modify Section
5.13(iv) in a manner adverse to any Lender"
(i) EXHIBITS. The Exhibits to the Credit Agreement are hereby amended
as follows:
(i) EXHIBIT V. The form of Registration Rights Agreement is
hereby amended (A) by deleting the reference to "$150,000,000" in the first
sentence of Section 2(a) thereof and replacing it with "$90,000,000;" (B) by
deleting the two references to "$50,000,000" in Section 2(d) thereof and
replacing each of them with "$25,000,000;" and (C) by deleting the reference to
"$100 million" in the first sentence of Section 3(a) thereof and replacing it
with "$50,000,000."
(ii) EXHIBIT XIII. The form of Warrant is hereby amended by
deleting all references to "after the date of issuance of this Warrant" in
Article IV thereof and replacing each of them with "after the Initial Warrant
Issuance Date."
(iii) EXHIBIT XVI, which is attached hereto, is hereby added to
the list of exhibits to the Credit Agreement.
2. OTHER AGREEMENTS. The parties hereto acknowledge that, subject to
prevailing market conditions, the Company, Holdings and the Take-Out Banks will
be seeking to consummate a senior subordinated notes financing in the first
quarter of 2001 to refinance the outstanding Loans. In connection with such
proposed refinancing, the Company and Holdings acknowledge and agree that they
will take all actions reasonably requested by the Take-Out Banks (including the
preparation of an offering memorandum as soon as reasonably practicable after
the date hereof) to consummate such refinancing and will comply with Section
5.12 of the Credit Agreement and the Take-Out Banks will act in good faith in
connection with any request for the issuance of Demand Take-Out Notes pursuant
to Section 5.12. The Company agrees to use its reasonable best efforts and act
in good faith to complete and distribute to the Lenders a form of the Senior
Subordinated Indenture on or prior to January 31, 2001.
3. ADDITIONAL FEES. The Company agrees to pay on demand all costs and
expenses of the Agents and Lenders in connection with the preparation, execution
and delivery of this Amendment, including the reasonable fees and out-of-pocket
expenses of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Agents and Lenders, with
respect thereto.
4. SCOPE OF AMENDMENT. Except as specifically amended hereby, the Credit
Agreement, shall remain unchanged. It is declared and agreed by each of the
parties hereto that the Credit Agreement, including but not limited to Section
5.12 thereof, subject to this Amendment, shall continue, in full force and
effect, and that the Amendment and the Credit Agreement shall be read as and
shall constitute one document.
5. COUNTERPARTS. This Amendment may be executed in multiple counterparts,
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
7. ACKNOWLEDGMENT AND CONSENT BY THE SUBSIDIARY GUARANTORS. Each
Subsidiary Guarantor hereby acknowledges that it has read this Amendment and
consents to the terms hereof and further confirms and agrees that,
notwithstanding the effectiveness of this Amendment, its obligations under its
Guarantee shall not be impaired or affected and its Guarantee is, and shall
continue to be, in full force and effect and is hereby confirmed and ratified in
all respects.
WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
XXXXXX HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
SUBSIDIARY GUARANTORS:
TREASURE CHEST ADVERISING COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
TREASURE CHEST ADVERTISING COMPANY OF
NEW YORK, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
TREASURE CHEST ADVERTISING HOLDING
COMPANY OF TEXAS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
TREASURE CHEST ADVERTISING COMPANY OF
TEXAS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
PRINTCO., INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
X.X. XXXXX INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
WEBCRAFT, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
COLORSTREAM TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
WEBCRAFT MIDWEST, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
WEBCRAFT CHEMICALS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
KSS TRANSPORTATION CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
OLWEN INTERNATIONAL DIRECT MAIL, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
XXXXXX TECH COLOR, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
PACIFIC COLOR CONNECTION, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
DCS, INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
GAMMA ONE, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
ENTERON GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
MASTER EAGLE GRAPHICS SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
MASTER VU INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
REVERE PHOTO PLATEMAKERS COMPANY
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
COMPUTER COLOR GRAPHICS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
IMAGING CONSORTIUM, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
REACH AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
BIG FLOWER DIGITAL SERVICES (DELAWARE),
INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
BIG FLOWER DIGITAL LLC
By: BIG FLOWER DIGITAL SERVICES
(DELAWARE), INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
AGENTS:
BANKERS TRUST COMPANY,
as co-agent
By:/s/ Xxxxx X. Xxxxxxxx
-----------------------------
Title: Managing Director
THE CHASE MANHATTAN BANK,
as co-agent
By:/s/ Xxxxxx Xxxx
-----------------------------
Title:
BANC OF AMERICA BRIDGE LLC,
as co-agent
By: X.X. Xxxxx
-----------------------------
Title: Senior Vice President
LENDERS:
BANKERS TRUST CORPORATION
By:/s/ Xxxxx X. Xxxxxxxx
-----------------------------
Title: Managing Director
THE CHASE MANHATTAN BANK
By:/s/ Xxxxxx Xxxx
-----------------------------
Title:
BANC OF AMERICA BRIDGE LLC
By:/s/ X.X. Xxxxx
-----------------------------
Title: Senior Vice President
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By:/s/ Xxx Xxxxxxx
-----------------------------
Title: Vice President
OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II, L.P.,
its General Partner
By: Oak Hill Securites MGP II, L.P.,
its General Partner
By:/s/ Xxxxx X. Xxxxx
-----------------------------
Title: Vice President
D.K. ACQUISITION PARTNERS, L.P.
By: X.X. Xxxxxxxx & Co.,
its General Partner
By:/s/ Xxxxxx Xxxxxxx
-----------------------------
Title: General Partner
FRANKLIN FLOATING RATE TRUST
By:/s/ Xxxxxxxx Xxxxxx
-----------------------------
Title: Vice President
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd.,
as General Partner
By:/s/ Xxxx X. Gold
-----------------------------
Title: Managing Director
By: Investment Management Company,
as Investment Adviser
By:/s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Title: Senior Vice President
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW Advisers (Bermuda), Ltd.,
as General Partner
By: /s/ Xxxx X. Gold
-----------------------------
Title: Managing Director
By: TCW Investment Management
Company,
as Investment Adviser
By:/s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Title: Senior Vice President
FLEET CORPORATE FINANCE, INC.
By:/s/ Xxxxxxx X. Xxxxxx
-----------------------------
Title: Managing Director
XXXXXXX XXXXX GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By: /s/ Xxxxx Xxxxx
-----------------------------
Title: Vice President
