THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT 10.1 (c)
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Third
Amendment”), is made and dated as of June 13, 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, “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, and as further amended by
that certain Second Amendment to Amended and Restated Credit Agreement, dated as of March 30, 2007
(as heretofore amended, the “Existing Credit Agreement”).
2. The Borrower, the Guarantor, the Lenders, and the Agent have agreed to certain 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 Third Amendment have the following meanings:
“Amended Credit Agreement” means the Existing Credit Agreement as amended
hereby.
“Third Amendment Effective Date” shall mean June 13, 2007, subject to the
Borrower’s satisfaction of, or the Lenders’ waiver of, each of the conditions set forth in
Part 4 of this Third Amendment.
Section 1.2. Other Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Third 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 Third 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. Addition of New Defined Terms in Section 1.01. Section 1.01 of the
Existing Credit Agreement is hereby amended by adding the following new definitions in the
appropriate alphabetical order:
“Total Liquidity” means the sum of (i) the aggregate amount of all cash and
Cash Equivalents of the Loan Parties and all cash and Cash Equivalents of Xxxxx which are
available for distribution to the Borrower, (ii) the Aggregate Revolving Commitments minus
the Total Revolving Outstandings, and (iii) the amount of Xxxxx’x Availability (as defined
in that certain Credit Agreement, dated as of September 26, 2006, by and among Xxxxx, the
Receivables Financier, and Bank of America, N.A. as agent for the Receivables Financier, as
such agreement may be modified or supplemented from time to time). For purposes of this
definition, cash and Cash Equivalents of the Loan Parties and Xxxxx shall include (without
duplication) all deposits which have been made into lockboxes of the Loan Parties and Xxxxx
in the ordinary course of business but which have not cleared or been released.
“Total Liquidity Measurement Dates” means November 30, 2007, December 13, 2007,
December 31, 2007, January 31, 2008, February 29, 2008, and March 31, 2008.
Section 2.2. Amendment of Section 7.02. Section 7.02 of the Existing Credit Agreement
is hereby amended by (i) striking the word “and” after the semi-colon in subsection 7.02(j), (ii)
changing the period at the end of subsection 7.02(k) to a semi-colon and the word “and”, and (iii)
adding a new subsection 7.02(l) reading in its entirety as follows:
(l) Within five (5) Business Days after each Total Liquidity Measurement Date, deliver
to the Administrative Agent a certificate, in form, detail and substance reasonably
satisfactory to the Administrative Agent, signed by the chief financial officer of the
Borrower, calculating the Total Liquidity as of such Total Liquidity Measurement Date (a
“Total Liquidity Certificate”); provided, however, notwithstanding
the foregoing, the Borrower shall deliver the Total Liquidity Certificate within one (1)
Business Day of the Total Liquidity Measurement Date occurring on December 13, 2007.
Section 2.3. Amendment of Section 8.11. Section 8.11 of the Existing Credit
Agreement is amended by replacing the table for the First Lien Leverage Ratio with the following
revised table:
| March 31 | June 30 | September 30 | December 31 | |||||
2007 |
N/A | 2.55 to 1.00 | 2.55 to 1.00 | 2.50 to 1.00 | ||||
2008 |
2.40 to 1.00 | 2.10 to 1.00 | 2.10 to 1.00 | 2.05 to 1.00 | ||||
Thereafter |
2.00 to 1.00 | 2.00 to 1.00 | 2.00 to 1.00 | 2.00 to 1.00 |
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Section 2.4. Addition of New Section 8.22. Article VIII of the Existing Credit
Agreement is further amended by adding a new section 8.22 which reads in its entirety as follows:
8.22 Minimum Total Liquidity. Permit the Total Liquidity as of the close of
business on any Total Liquidity Measurement Date to be less than the corresponding amount
indicated below:
| Total Liquidity | Minimum Total | |
| Measurement Date | Liquidity | |
| November 30, 2007 | $19,150,000 | |
| December 13, 2007 | $18,150,000 | |
| December 31, 2007 | $ 7,150,000 | |
| January 31, 2008 | $ 5,150,000 | |
| February 29, 2008 | $ 4,150,000 | |
| March 31, 2008 | $ 8,150,000 |
Section 2.5. Amendment of Section 9.01. Section 9.01 of the Existing Credit Agreement
is hereby amended by revising Section 9.01(b) and (c) to read in their entirety as follows:
(b) Specific Covenants. Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Sections 7.02(l), 7.03(a), 7.05, 7.10, 7.11, 7.12,
7.13 or 7.15 or Article VIII; or
(c) Other Defaults. (i) Any Loan Party fails to perform or observe any
covenant or agreement contained in any of Sections 7.01, 7.02(a)-(k), or 7.03(b)-(f) and
such failure continues for 5 Business Days; or
Part 3
Representations and Warranties
Each of the Loan Parties represents and warrants to the Agent and the Lenders that, as of the
Third Amendment Effective Date:
Section 3.1. Authority. Each Loan Party has all the necessary corporate power to
make, execute, deliver, and perform this Third Amendment, has taken all necessary corporate action
to authorize the execution, delivery and performance of this Third Amendment and has duly executed
and delivered this Third Amendment. This Third 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.
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Section 3.2. No Legal Obstacle to Agreement. Neither the execution of this Third
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, delivery or
performance by any Loan Party of this Third 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 3.3. 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 Third 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 3.4. Default. No Default or Event of Default has occurred and is continuing
under the Amended Credit Agreement.
Section 3.5. Additional Disclosures. Except as set forth on Schedule 3.5 to
this Third Amendment, (a) none of the Loan Parties owns or leases any Real Properties other than
those Properties set forth on Schedule 6.20(a) of the Existing Credit Agreement; (b) none of the
Loan Parties owns or has exclusive rights to use any Intellectual Property registered or pending
registration with the United States Copyright Office or the United States Patent and Trademark
Office (or any applications therefor) other than the Intellectual Property set forth on Schedule
6.17 of the Existing Credit Agreement; and (c) none of the Loan Parties owns Capital Stock in any
Subsidiaries other than as set forth on Schedules 6.13(a) and (b) of the Existing Credit Agreement.
Section 3.6. Revised Schedule 6.13(b). Schedule 6.13(b) of the Existing Credit
Agreement is replaced in its entirety by a new Schedule 6.13(b) which is attached to this Third
Amendment as Exhibit “A”.
Part 4
Conditions to Effectiveness
This Third Amendment shall be and become effective as of the Third 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 June 13, 2007. If
the Borrower fails to satisfy each of the conditions set forth in this Part 4 prior to
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4:00 p.m. (Eastern time) on June 13, 2007, then, at the option of the Agent and the Required Lenders,
upon notice to the Borrower, this Third Amendment shall be null and void.
Section 4.1. Counterparts of Amendment. The Agent shall have received counterparts
(or other evidence of execution, including telephonic message, satisfactory to the Agent) of this
Third Amendment, which collectively shall have been duly executed on behalf of each of the
Borrower, the Guarantor, the Required Lenders and the Agent.
Section 4.2. 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 Third 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 Third 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 Third Amendment and any instrument or agreement required
hereunder on behalf of each Loan Party, as applicable.
Section 4.3. Amendment Fee. As more specifically set forth in that certain letter
agreement dated as of June 13, 2007 by and between the Borrower and the Agent, the Borrower shall
have paid to the Agent an amendment fee, for the ratable benefit of each Lender executing this
Third Amendment and returning it to the Agent no later than 4:00 p.m. (Eastern time) on June 13,
2007.
Section 4.4. Other Fees and Out-of-Pocket Costs. The Borrower shall have paid (to
the extent invoiced) all costs, expenses, fees and other amounts required to be paid by it pursuant
to Section 5.11 of this Third Amendment.
Part 5
Miscellaneous
Section 5.1. 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
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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 Third Amendment by
the Agent and the Lenders.
Section 5.2. Within 45 days of the Third Amendment Effective Date, or such longer period as
the Agent may agree in its reasonable discretion, the Borrower shall deliver to the Agent
agreements executed by the owner of the real Property located in Dayton, New Jersey that is leased
by the Borrower and used by it to operate its TMC facility, with such agreements to be in form and
substance reasonably satisfactory to the Agent (taking into account customary and usual real estate
practices in the market in which such Property is located): (a) permitting the Agent to have access
to such Property for purposes of enforcing its rights under the Loan Documents as a secured party
with respect to all Collateral constituting personal property and located on such Property and (b)
waiving or subordinating any landlord’s lien it may have with respect such Collateral.
Section 5.3. Instrument Pursuant to Existing Credit Agreement. This Third 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 5.4. 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 Third 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 5.5. References in Other Loan Documents. At such time as this Third
Amendment shall become effective pursuant to the terms of Part 4 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 Third Amendment.
Section 5.6. Counterparts. This Third 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.
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Section 5.7. Integration. This Third 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 Third Amendment supersedes all prior drafts and communications
with respect thereto. This Third Amendment may not be amended except in writing.
Section 5.8. 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 5.9. Governing Law. THIS THIRD 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 5.10. Successors and Assigns. This Third Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns.
Section 5.11. 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 Third 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 Third 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/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Senior Vice President | |||
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