EXHIBIT 10.24
SIXTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT; AND FIRST AMENDMENT TO
SUBORDINATION AGREEMENT
SIXTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT; AND FIRST AMENDMENT
TO SUBORDINATION AGREEMENT (collectively, this "Amendment"), dated as of June
13, 2002, among XXXXXX HOLDINGS, INC. (f/k/a Big Flower Holdings, Inc.), a
Delaware corporation ("Holdings"), XXXXXX, INC. (f/k/a Big Flower Press
Holdings, Inc.), a Delaware corporation ("Xxxxxx"), XXXXXX LIMITED (f/k/a Big
Flower Limited), a Wholly-Owned Subsidiary of Xxxxxx and a limited company
organized under the laws of England ("VL"), XXXXXX DIRECT MARKETING SERVICES
(CROYDON) LIMITED (f/k/a Olwen Direct Mail Limited), a Wholly-Owned Subsidiary
of VL and a limited company organized under the laws of England ("VDMS"), XXXXXX
DIGITAL SERVICES LIMITED (f/k/a Big Flower Digital Services Limited), an
indirect Wholly-Owned Subsidiary of Xxxxxx and a limited company organized under
the laws of England ("VDSL"), FUSION PREMEDIA GROUP LIMITED (f/k/a Troypeak
Limited), an indirect Wholly-Owned Subsidiary of Xxxxxx and a limited company
organized under the laws of England ("Fusion"), PISMO LIMITED, an indirect
Wholly-Owned Subsidiary of Xxxxxx and a limited company organized under the laws
of England ("Pismo"), XXXXXX DIRECT RESPONSE LIMITED (f/k/a Colorgraphic Direct
Response Limited), a Wholly-Owned Subsidiary of VL and a limited company
organized under the laws of England ("VDRL"), and THE ADMAGIC GROUP LIMITED, an
indirect Wholly-Owned Subsidiary of Xxxxxx and a limited company organized under
the laws of England ("Admagic" and, together with Vertis, VL, VDMS, VDSL,
Fusion, Pismo and VDRL, the "Borrowers", and each, a "Borrower"), the Lenders
from time to time party to the Credit Agreement referred to below, X.X. XXXXXX
SECURITIES, INC. and DEUTSCHE BANK SECURITIES, INC., as Joint Lead Arrangers and
Joint Book Managers (in such capacity, the "Joint Lead Arrangers"), JPMORGAN
CHASE BANK (f/k/a The Chase Manhattan Bank), as Administrative Agent (the
"Administrative Agent"), DEUTSCHE BANK TRUST COMPANY AMERICAS (f/k/a Bankers
Trust Company), as Syndication Agent, BANK OF AMERICA, N.A., as Documentation
Agent, and certain Managing Agents party to the Credit Agreement. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings provided such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Holdings, the Borrowers, the Lenders, the Agents, the Joint
Lead Arrangers and the Managing Agents are parties to a Credit Agreement, dated
as of December 7, 1999 (as amended, modified or supplemented from time to time
to, but not including, the date hereof, the "Credit Agreement");
WHEREAS, Holdings, the Borrowers, various Subsidiaries of Holdings and
the Administrative Agent are parties to a Subordination Agreement, dated as of
December 7, 1999 (as amended, modified or supplemented from time to time to, but
not including, the date hereof, the "Subordination Agreement"); and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto wish to amend the Credit Agreement and the Subordination
Agreement and to enter into certain agreements relating to the Credit Agreement,
and the Lenders party hereto wish to grant certain consents to the provisions of
the Credit Agreement, in each case as herein provided;
NOW, THEREFORE, it is agreed:
I. AMENDMENTS AND CONSENTS TO CREDIT AGREEMENT.
1. Section 1.03(b) of the Credit Agreement is hereby amended by
deleting the text "1:30 P.M." appearing in said Section and inserting the text
"2:00 P.M." in lieu thereof.
2. Section 1.04 of the Credit Agreement is hereby amended by (i)
deleting the text "1:00 P.M. (London Time)" appearing in said Section and
inserting the text "2:00 P.M. (London Time) (or, if later, one hour after the
receipt of the related notice of borrowing)" in lieu thereof and (ii) deleting
the text "2:00 P.M. (London time)" appearing in clause (z) of said Section and
inserting the text "3:00 P.M. (London time)" in lieu thereof.
3. Section 1.09 of the Credit Agreement is hereby amended by
inserting the text "or two-week" immediately after the text "Revolving Loans, a
one-week" appearing in clause (z) of the preamble of said Section.
4. Section 4.02(c) of the Credit Agreement is hereby amended by
(i) deleting the text "PROVIDED that with respect to Net Sale Proceeds (other
than Net Sale Proceeds from the sale of any Public Internet Investment) received
by Holdings or its Subsidiaries in any fiscal year of Holdings not to exceed (in
the aggregate) $20,000,000 (or, at any time on or after the Revised Financial
Covenants Compliance Date, $75,000,000)," appearing in the first sentence of
said Section and inserting the following text in lieu thereof:
"PROVIDED that with respect to Net Sale Proceeds (other than Net Sale
Proceeds from the sale of any Public Internet Investment) received by
Holdings or its Subsidiaries (I) on and after the Fifth Amendment Effective
Date and prior to the Second Revised Financial Covenants Compliance Date in
an amount not to exceed (in the aggregate) $20,000,000 and (II) at any time
on or after the Second Revised Financial Covenants Compliance Date, in any
fiscal year of Holdings in an amount not to exceed (in the aggregate)
$75,000,000,",
(ii) inserting the text "Second" immediately before the text "Revised Financial
Covenants Compliance Date" appearing in the second sentence of said Section and
(iii) inserting the text ", Permanent Senior Notes, Permitted Senior Note
Refinancing Indebtedness, Holdings Senior Notes, Permitted Holdings Senior Note
Refinancing Indebtedness" immediately after the text "Permitted Subordinated
Refinancing Indebtedness" in each place such text appears in said Section.
5. Section 4.02(d) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
4.02(d) in lieu thereof:
"(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Effective
Date on which
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Holdings or any of its Subsidiaries receives any cash proceeds from any
incurrence of Indebtedness (other than Indebtedness permitted to be
incurred pursuant to clauses (i) through (xxi), inclusive, clause (xxii)
(other than Excess Permanent Senior Note Indebtedness) and clauses (xxiii),
(xxiv) and (xxv) of Section 9.04 as in effect on the Sixth Amendment
Effective Date and any Attributed Receivables Facility Indebtedness) or any
issuance of Preferred Stock by Holdings or any issuance of capital stock or
other equity interests by any Subsidiary of Holdings (other than issuances
of equity by any Subsidiary of Holdings to Holdings or any other
Wholly-Owned Subsidiary of Holdings), an amount equal to 100% of the Net
Cash Proceeds of the respective incurrence of Indebtedness or issuance of
Preferred Stock or other equity interests shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements
of Sections 4.02(i) and (j)."
6. Section 4.02(i) of the Credit Agreement is hereby amended by (i) inserting
the text "(x)" immediately after the text "PROVIDED that" appearing in the last
sentence of said Section and (ii) inserting the following text at the end of the
proviso appearing in the last sentence of said Section:
"and (y) any repayment of outstanding Tranche A Term Loans required to be
made pursuant to Sections 4.02(d) and (i) with the proceeds of Excess
Permanent Senior Note Indebtedness incurred pursuant to the first (and only
the first) issuance of Permanent Senior Notes shall be applied in direct
order of maturity to reduce the then remaining Tranche A Term Loan
Scheduled Repayments (based upon the then remaining Tranche A Term Loan
Scheduled Repayments after giving effect to all prior reductions
thereto).".
7. Section 7.25(b) of the Credit Agreement is hereby amended by
inserting the text ", Holdings Senior Notes, Permitted Holdings Senior Note
Refinancing Indebtedness" immediately after the text "Permitted Subordinated
Refinancing Indebtedness" appearing in said Section.
8. Section 7.26(b) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
7.26(b) in lieu thereof:
"(b) (x) The Receivables Subsidiary in existence on December 7, 1999
was formed for the purpose of purchasing, and receiving contributions of,
receivables from any U.S. Subsidiary Guarantor, and selling such
receivables to, or obtaining secured loans from, the Receivables Purchasers
(or to the Master Trust created pursuant to the Receivables Facility),
pursuant to the Receivables Facility; and (y) except in connection with the
foregoing (and activities reasonably incidental thereto), and the
purchasing of, and receiving contributions of, receivables from Xxxxxx and
any U.S. Subsidiary Guarantor, and selling such receivables to, or
obtaining secured loans from, the Receivables Purchasers (or to the Master
Trust created pursuant to the Receivables Facility), pursuant to the
Receivables Facility (and activities reasonably incidental thereto), the
Receivables Subsidiary engages in no business activiti4
and has no significant assets or liabilities and shall in no event
purchase receivables from any Unrestricted Subsidiary.".
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9. Section 8.01(f) of the Credit Agreement is hereby amended by
(i) deleting the word "and" appearing immediately prior to the text "(x)"
appearing in clause (z) of said Section and inserting a comma in lieu thereof
and (ii) inserting the text "and (xi)" immediately after the text "(x)"
appearing in clause (z) of said Section.
10. Section 8.01(h) of the Credit Agreement is hereby amended by
inserting the text ", the Permanent Senior Notes, any Permitted Senior Note
Refinancing Indebtedness, the Holdings Senior Notes, any Permitted Holdings
Senior Note Refinancing Indebtedness" immediately after the text "the Permanent
Senior Subordinated Notes" appearing in said Section.
11. Section 8 of the Credit Agreement is hereby amended by
inserting the following new Section 8.22 at the end of said Section:
"8.22 HOLDINGS SENIOR NOTES, ETC. (a) On and after the date of the
initial issuance of Holdings Senior Notes, Holdings shall pay interest
owing on any outstanding Holdings Senior Notes solely through (x) the
accretion of the principal amount thereof or (y) the issuance of additional
Holdings Senior Notes, rather than in cash, to the maximum extent permitted
by the Holdings Senior Notes Documents.
(b) On and after the date of the initial issuance of any Permitted
Holdings Senior Note Refinancing Indebtedness, Holdings shall pay interest
owing on any outstanding Permitted Holdings Senior Note Refinancing
Indebtedness solely through (x) the accretion of the principal amount
thereof or (y) the issuance of additional notes evidencing Permitted
Holdings Senior Note Refinancing Indebtedness, rather than in cash, to the
maximum extent permitted by the Permitted Holdings Senior Note Refinancing
Indebtedness (and the documentation governing the same).".
12. Notwithstanding anything to the contrary contained in Sections
8.13, 9.02(vi) and 9.05(viii) of the Credit Agreement or in the Fifth Amendment,
at all times on and after the Fifth Amendment Effective Date and prior to the
First Revised Financial Covenants Compliance Date (as defined in the Credit
Agreement after giving effect to this Amendment), neither Xxxxxx nor any of its
Subsidiaries shall be permitted to consummate any Permitted Acquisition without
the express written consent of the Required Lenders. The Credit Agreement
Parties and the Lenders understand and agree that this Section 12 supersedes and
replaces Part I, Section 3 of the Fifth Amendment.
13. Section 8.13(a) of the Credit Agreement is hereby amended by
(A) inserting the text "(I) at any time on and after the First Revised Financial
Covenants Compliance Date and prior to the Second Revised Financial Covenants
Compliance Date, $10,000,000 and (II) at all times on and after the Second
Revised Financial Covenants Compliance Date," immediately after the text "does
not exceed" appearing in clause (vii) of said Section, (B) inserting the text
"(I) at any time on and after the First Revised Financial Covenants Compliance
Date and prior to the Second Revised Financial Covenants Compliance Date,
$10,000,000 and (II) at all times on and after the Second Revised Financial
Covenants Compliance Date," immediately after the text "does not exceed"
appearing in clause (viii) of said Section, (C) inserting the text "(I) at any
time on and after the First Revised Financial Covenants Compliance Date and
prior to the Second Revised Financial Covenants Compliance Date, $10,000,000 and
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(II) at all times on and after the Second Revised Financial Covenants Compliance
Date," immediately after the text "does not exceed" appearing in clause (ix) of
said Section and (D) deleting the text "$25,000,000" appearing in clause (x) of
said Section and inserting in lieu thereof the text "(I) at any time on and
after the Sixth Amendment Effective Date and prior to the Second Revised
Financial Covenants Compliance Date, $5,000,000 and (II) at all times on and
after the Second Revised Financial Covenants Compliance Date, $25,000,000".
14. Notwithstanding anything to the contrary contained in Section
9.02(vii) of the Credit Agreement or in the Fifth Amendment, neither Xxxxxx nor
any of its Subsidiaries shall consummate any acquisition, merger, consolidation
or combination pursuant to (or in reliance on the provisions of) said Section
9.02(vii) at any time on or after the Fifth Amendment Effective Date and prior
to the First Revised Financial Covenants Compliance Date. The Credit Agreement
Parties and the Lenders understand and agree that this Section 14 supersedes and
replaces Part I, Section 4 of the Fifth Amendment.
15. Section 9.02(xiii) of the Credit Agreement is hereby amended by
inserting the text "First" immediately prior to the text "Revised Financial
Covenants Compliance Date," appearing in said Section.
16. The Credit Agreement Parties and the Lenders understand and
agree that the prohibitions on certain cash Dividends described in Part I,
Section 6 of the Fifth Amendment shall (i) cease to be effective on and after
the Sixth Amendment Effective Date and (ii) be replaced and superseded by any
new prohibitions included in revised Section 9.03(xii) of the Credit Agreement
pursuant to Part I, Section 17 of this Amendment.
17. Section 9.03 of the Credit Agreement is hereby amended by (i)
deleting clause (xii) of said Section in its entirety and inserting the
following new clause (xii) in lieu thereof:
"(xii) Xxxxxx may pay cash Dividends to Holdings, which in turn shall
utilize the full amount of such cash Dividends for the purpose of paying
(and so long as Holdings, by the immediately succeeding Business Day,
utilizes the full amount of such cash Dividends to pay) cash interest as
and when due on the Mezzanine Subordinated Debt then outstanding, PROVIDED
that (x) notwithstanding the foregoing provisions of this clause (xii), no
cash Dividends may be made or paid by Xxxxxx to Holdings pursuant to (or in
reliance on the provisions of) this clause (xii) at any time on or after
the Sixth Amendment Effective Date and prior to the Second Revised
Financial Covenants Compliance Date, (y) the amount of cash Dividends
payable by Xxxxxx pursuant to this clause (xii) shall not exceed the
amounts necessary to pay the cash interest owing with respect to the
Mezzanine Subordinated Debt and (z) no such Dividends shall be paid at any
time following the occurrence and during the continuance of any Default or
Event of Default or if a Default or Event of Default would exist
immediately after giving effect to the payment of such Dividend;",
(ii) deleting the period at the end of clause (xiii) of said Section and
inserting the text "; and" in lieu thereof and (iii) inserting the following new
clause (xiv) at the end of said Section:
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"(xiv) Xxxxxx may pay cash Dividends to Holdings, which in turn shall
utilize the full amount of such cash Dividends for the purpose of paying
(and so long as Holdings, by the immediately succeeding Business Day,
utilizes the full amount of such cash Dividends to pay) cash interest as
and when due on the Holdings Senior Notes or any Permitted Holdings Senior
Note Refinancing Indebtedness then outstanding, PROVIDED that (x)
notwithstanding the foregoing provisions of this clause (xiv), no cash
Dividends may be made or paid by Xxxxxx to Holdings pursuant to (or in
reliance on the provisions of) this clause (xiv) at any time on or after
the Sixth Amendment Effective Date and prior to the Second Revised
Financial Covenants Compliance Date, (y) the amount of cash Dividends
payable by Xxxxxx pursuant to this clause (xiv) shall not exceed the
amounts necessary to pay the cash interest owing with respect to the
Holdings Senior Notes or the Permitted Holdings Senior Note Refinancing
Indebtedness, as the case may be, and (z) no such Dividends shall be paid
at any time following the occurrence and during the continuance of any
Default or Event of Default or if a Default or Event of Default would exist
immediately after giving effect to the payment of such Dividend.".
18. Section 9.04(vi) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
9.04(vi) in lieu thereof:
"(vi) Indebtedness under Interest Rate Protection Agreements
reasonably related to outstanding floating or fixed rate debt permitted
under this Agreement, so long as at least 50% of the aggregate Indebtedness
of Holdings and its Subsidiaries at any time outstanding constitutes "fixed
rate debt" (whether by virtue of the interest rate provisions applicable
thereto or as a result of Interest Rate Protection Agreements which
effectively fix the interest rate applicable thereto);".
19. Section 9.04(xiii) of the Credit Agreement is hereby amended by
inserting the text "(including any deemed repayment occurring as a result of any
exchange of Mezzanine Subordinated Debt for Holdings Senior Notes issued
pursuant to clause (xxiv) below)" immediately after the text "reduced by any
repayments of principal thereof" appearing in said Section.
20. Section 9.04(xv) of the Credit Agreement is hereby amended by
inserting the text "Second" immediately before the text "Revised Financial
Covenants Compliance Date" appearing in said Section.
21. Section 9.04(xviii) of the Credit Agreement is hereby amended
by deleting the text "$7,000,000 (or, at any time on or after the Revised
Financial Covenants Compliance Date, $50,000,000)" appearing in said Section and
inserting the text "$7,000,000 (or, (I) at any time on or after the First
Revised Financial Covenants Compliance Date and prior to the Second Revised
Financial Covenants Compliance Date, $15,000,000 and (II) at any time on and
after the Second Revised Financial Covenants Compliance Date, $50,000,000)" in
lieu thereof.
22. Section 9.04 of the Credit Agreement is hereby further amended
by (i) deleting the word "and" appearing at the end of clause (xx) of said
Section, (ii) deleting clause (xxi) of said Section in its entirety and
inserting the following new clause (xxi) in lieu thereof:
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(xxi) at any time on and after the first issuance of Permanent Senior
Notes, Indebtedness of Xxxxxx, and subordinated guarantees thereof by the
U.S. Subsidiary Guarantors, under the Permanent Senior Subordinated Notes
and the other Permanent Senior Subordinated Notes Documents may be incurred
in an aggregate principal amount at any time outstanding not to exceed the
remainder of (x) the sum of the aggregate principal amount of each issuance
of Permanent Senior Subordinated Notes on the respective dates of issuance
thereof in accordance with the requirements of the definition thereof LESS
(y) any repayment of principal of any such Permanent Senior Subordinated
Notes, so long as same is incurred in accordance with the requirements of
the definition of Permanent Senior Subordinated Notes;",
and (iii) inserting the following new clauses (xxii), (xxiii), (xxiv) and (xxv)
at the end of said Section:
"(xxii) unsecured Indebtedness of Xxxxxx, and senior unsecured
guarantees thereof by the U.S. Subsidiary Guarantors, under the Permanent
Senior Notes and the other Permanent Senior Notes Documents in an aggregate
principal amount at any time outstanding not to exceed the remainder of (x)
the sum of the Permanent Senior Notes Issuance Amounts of each issuance of
Permanent Senior Notes LESS (y) any repayment of principal of any such
Permanent Senior Notes, so long as (A) the sum of the Permanent Senior
Notes Issuance Amounts of each issuance of Permanent Senior Notes shall not
exceed $350,000,000, (B) such Indebtedness is incurred in accordance with
the requirements of the definition of Permanent Senior Notes, (C) in the
case of any incurrence of such Indebtedness pursuant to a second or any
further issuance of Permanent Senior Notes, the holders of the Permitted
Subordinated Refinancing Indebtedness (if outstanding after giving effect
to the incurrence of such Indebtedness) shall have consented thereto, to
the extent required under the documentation relating to the Permitted
Subordinated Refinancing Indebtedness and (D) promptly following the
incurrence thereof, (I) Net Cash Proceeds of such Indebtedness constituting
Excess Permanent Senior Note Indebtedness shall have been applied to repay
Loans (and/or reduce the Total Revolving Loan Commitment) in accordance
with the requirements of Sections 4.02(d) and (i) and (II) after giving
effect to the application of Net Cash Proceeds from the incurrence of
Excess Permanent Senior Note Indebtedness pursuant to preceding subclause
(I), the remaining portion of the Net Cash Proceeds from the incurrence of
such Indebtedness shall have been applied to repay Permitted Subordinated
Refinancing Indebtedness in accordance with the requirements of Section
9.10;
(xxiii) Permitted Senior Note Refinancing Indebtedness, so long as no
Default or Event of Default is in existence at the time of the incurrence
of such Permitted Senior Note Refinancing Indebtedness and immediately
after giving effect thereto;
(xxiv) Indebtedness of Holdings under the Holdings Senior Notes and
the other Holdings Senior Notes Documents in an aggregate principal amount
at any time outstanding not to exceed an amount equal to the sum of (i)
$100,000,000 PLUS (ii) the aggregate principal amount of all Mezzanine
Subordinated Debt issued to pay-in-kind regularly accruing interest on
outstanding Mezzanine Subordinated Debt after the Initial Borrowing Date
and prior to the date of the first issuance of the Holdings Senior Notes
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PLUS (iii) the amount of reasonable fees, commissions and expenses actually
paid by Holdings in connection with the issuance of the Holdings Senior
Notes (as such amount may be (x) increased as a result of (I) the accretion
of the principal amount of Holdings Senior Notes in accordance with the
terms of the Holdings Senior Notes Documents or (II) the issuance of
additional Holdings Senior Notes to pay in kind any regularly accruing
interest on then outstanding Holdings Senior Notes in accordance with the
terms of the Holdings Senior Notes Documents and (y) reduced by any
repayments of principal thereof); and
(xxv) Permitted Holdings Senior Note Refinancing Indebtedness, so long
as no Default or Event of Default is in existence at the time of the
incurrence of such Permitted Holdings Senior Note Refinancing Indebtedness
and immediately after giving effect thereto.".
23. Section 9.04 of the Credit Agreement is hereby further amended
by deleting clauses (w) and (x) appearing in the last sentence of said Section
and inserting the following new clauses (v), (w) and (x) in lieu thereof:
"(v) in no event shall any Subsidiary of Holdings guarantee any
Indebtedness of Holdings under the Holdings Senior Notes Documents, (w)
Indebtedness incurred to Refinance any theretofore outstanding Senior
Subordinated Bridge Loans, Permitted Subordinated Refinancing Indebtedness,
Permanent Senior Notes and Permitted Senior Note Refinancing Indebtedness
may only be incurred pursuant to the provisions of clauses (xx), (xxi),
(xxii) and (xxiii) of Section 9.04 (and not in reliance on any other
provisions of Section 9.04), (x) at no time shall the aggregate principal
amount of all Indebtedness outstanding at any time pursuant to clauses
(xix), (xx), (xxi), (xxii) and (xxiii) (except (I) in the case of clauses
(xxii) and (xxiii), to the extent the Indebtedness incurred thereunder
constitutes Excess Permanent Senior Note Indebtedness or refinancing
Indebtedness in respect thereof, as the case may be, and (II) in the case
of clauses (xxi), (xxii) and (xxiii), to the extent the Indebtedness
incurred thereunder was incurred (A) to pay reasonable fees, commissions
and expenses incurred in connection with the incurrence of the respective
Indebtedness or (B) to Refinance Indebtedness of the type described in
clause (A), as the case may be) exceed $450,000,000,".
24. Notwithstanding anything to the contrary contained in Section
9.05(vii) of the Credit Agreement or in the Fifth Amendment, neither Xxxxxx nor
any of its Subsidiaries shall make any Investment pursuant to (or in reliance on
the provisions of) said Section 9.05(vii) at any time on or after the Fifth
Amendment Effective Date and prior to the First Revised Financial Covenants
Compliance Date, except that Xxxxxx Direct Marketing Services (Leicester)
Limited, a U.K. Subsidiary of Xxxxxx, may contribute to a joint venture to be
formed by it and one or more third-parties as a common equity capital
contribution printing presses with a fair market value (as determined in good
faith by senior management of Holdings) not to exceed $3,000,000 pursuant to
(and in reliance on) said Section 9.05(vii). The Credit Agreement Parties and
the Lenders understand and agree that this Section 24 supersedes and replaces
Part I, Section 9 of the Fifth Amendment.
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25. Notwithstanding anything to the contrary contained in Section
9.05(xxii) of the Credit Agreement or in the Fifth Amendment, neither Xxxxxx nor
any of its Subsidiaries shall make any cash equity contributions pursuant to (or
in reliance on the provisions of) said Section 9.05(xxii) at any time on or
after the Fifth Amendment Effective Date and prior to the First Revised
Financial Covenants Compliance Date. The Credit Agreement Parties and the
Lenders understand and agree that this Section 25 supersedes and replaces Part
I, Section 10 of the Fifth Amendment.
26. Section 9.05(xv) of the Credit Agreement is hereby amended by
deleting the text "to the capital of Treasure Chest, which shall in turn
contribute such promissory notes" appearing immediately after the text "BFPH may
at any time contribute one or more promissory notes" appearing in said Section.
27. Notwithstanding anything to the contrary contained in Section
9.06 of the Credit Agreement, Holdings may enter into, and perform its
obligations under, the Holdings Senior Notes Documents, certain debt and warrant
exchange agreements and certain warrant, registration rights and related
agreements to be entered into by Holdings in connection with the issuance of
units of Holdings consisting of Holdings Senior Notes and warrants to purchase
Holdings Common Stock; PROVIDED that (i) promptly upon the execution and
delivery of such documents and agreements, true and correct copies of the same
shall have been delivered to the Administrative Agent and (ii) neither Holdings,
Xxxxxx nor any of their respective Subsidiaries shall be required to make any
cash payments to their Affiliates under any such documents and agreements (other
than (x) payments of interest and principal on the Holdings Senior Notes in
accordance with the terms of the Holdings Senior Notes Documents and (y)
payments pursuant to customary indemnity provisions therein).
28. Section 9.07(a) of the Credit Agreement is hereby amended by
inserting the text "First" immediately prior to the text "Revised Financial
Covenants Compliance Date, $100,000,000)" appearing in the table in said Section
opposite the text "Each fiscal year ended thereafter".
29. Notwithstanding anything to the contrary contained in Sections
9.07(b), (c), (f) and (g) of the Credit Agreement or in the Fifth Amendment,
neither Xxxxxx nor any of its Subsidiaries shall make any Capital Expenditures
pursuant to (or in reliance on the provisions of) any of said Sections at any
time on or after the Fifth Amendment Effective Date and prior to the First
Revised Financial Covenants Compliance Date. The Credit Agreement Parties and
the Lenders understand and agree that this Section 29 supersedes and replaces
Part I, Section 12 of the Fifth Amendment.
30. Section 9.08 of the Credit Agreement is hereby amended by
deleting the table appearing in said Section in its entirety and inserting the
following new table in lieu thereof:
FISCAL QUARTER ENDED RATIO
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March 31, 2002 1.50:1.0
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June 30, 2002 1.55:1.0
September 30, 2002 1.60:1.0
December 31, 2002 1.60:1.0
March 31, 2003 1.60:1.0
June 30, 2003 1.60:1.0
September 30, 2003 1.60:1.0
December 31, 2003 1.60:1.0
March 31, 2004 1.60:1.0
June 30, 2004 1.60:1.0
September 30, 2004 1.60:1.0
December 31, 2004 1.60:1.0
March 31, 2005 1.75:1.0
June 30, 2005 1.75:1.0
September 30, 2005 1.80:1.0
December 31, 2005 1.90:1.0
March 31, 2006 and each 2.25:1.0
fiscal quarter of Holdings
thereafter
31. Section 9.09 of the Credit Agreement is hereby amended by
deleting the table appearing in said Section in its entirety and inserting the
following new table in lieu thereof:
FISCAL QUARTER ENDED RATIO
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March 31, 2002 6.50:1.0
June 30, 2002 6.35:1.0
September 30, 2002 6.25:1.0
December 31, 2002 6.15:1.0
March 31, 2003 6.15:1.0
June 30, 2003 6.00:1.0
September 30, 2003 6.00:1.0
December 31, 2003 5.75:1.0
March 31, 2004 5.65:1.0
June 30, 2004 5.50:1.0
September 30, 2004 5.50:1.0
December 31, 2004 5.25:1.0
March 31, 2005 4.95:1.0
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FISCAL QUARTER ENDED RATIO
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June 30, 2005 4.75:1.0
September 30, 2005 4.75:1.0
December 31, 2005 4.50:1.0
March 31, 2006 and each 4.25:1.0
fiscal quarter of Holdings
ended thereafter
32. Section 9.10 of the Credit Agreement is hereby amended by (i)
inserting the text ", any Permanent Senior Notes Document, any Holdings Senior
Notes Document" immediately after the text "any Permitted Acquired Subsidiary
Preferred Stock" in each place where such text appears in said Section, (ii)
deleting the proviso appearing at the end of clause (ii) of said Section in its
entirety and inserting the following new proviso in lieu thereof:
"PROVIDED that so long as no Default or Event of Default then exists or
would result therefrom, Mezzanine Subordinated Debt may be Refinanced with
the issuance of Holdings Senior Notes in accordance with the requirements
of the definition thereof and the other relevant provisions of this
Agreement",
(iii) inserting the text ", any Permanent Senior Note, any Holdings Senior Note"
immediately after the text "any Qualified Preferred Stock" appearing in clause
(iii) of said Section, (iv) inserting the text ", Permanent Senior Notes"
immediately after the text "Permanent Senior Subordinated Notes" appearing in
subclause (B) of the proviso contained in clause (iii) of said Section, (v)
deleting the word "and" appearing immediately prior to the text "(D)" appearing
in the proviso to clause (iii) of said Section and (vi) inserting the following
new subclauses (E), (F), (G) and (H) after subclause (D) of the proviso
contained in clause (iii) of said Section:
", (E) Permanent Exchange Senior Notes may be issued as contemplated by the
definition of Permanent Senior Notes and consistent with the definition of
Permanent Exchange Senior Notes, (F) so long as no Default or Event of
Default then exists or would result therefrom, Permanent Senior Notes and
any Permitted Senior Note Refinancing Indebtedness incurred to Refinance
same may be Refinanced with Permitted Senior Note Refinancing Indebtedness
in accordance with the relevant requirements of this Agreement, (G)
Permanent Exchange Holdings Senior Notes may be issued as contemplated by
the definition of Holdings Senior Notes and consistent with the definition
of Permanent Exchange Holdings Senior Notes and (H) so long as no Default
or Event of Default then exists or would result therefrom, Holdings Senior
Notes and any Permitted Holdings Senior Note Refinancing Indebtedness
incurred to Refinance same may be Refinanced with Permitted Holdings Senior
Note Refinancing Indebtedness in accordance with the relevant requirements
of this Agreement".
33. Notwithstanding anything to the contrary contained in Section
9.10 of the Credit Agreement, the Lenders hereby agree that Holdings and the
holders of the Mezzanine
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Subordinated Debt may amend the Mezzanine Subordinated Debt Documents to (i)
increase the rate of interest on the Mezzanine Subordinated Debt from 12% per
annum to up to 13% per annum, (ii) provide that the full amount of such interest
(or such lesser portion thereof as may be agreed by Holdings) shall be payable
in cash on and after the Second Revised Financial Covenants Compliance Date (or
such later date as may be agreed by Holdings) and (iii) incorporate new
market-based covenants therein, so long as such covenants (x) do not provide for
guaranties or security and (y) are not, taken as a whole, less favorable to
Holdings and its Subsidiaries than those applicable to Xxxxxx and its
Subsidiaries and contained in the agreement governing the Permitted Subordinated
Refinancing Indebtedness and (after the execution and delivery thereof) the
Permanent Senior Notes Indenture, so long as, in the case of any such amendment
described in this clause (iii), the Mezzanine Amendment/Refinancing Condition
has been satisfied (or, immediately after giving effect to the respective
amendment or amendments, will be satisfied).
34. Section 9.14(a) of the Credit Agreement is hereby amended by
inserting the text ", the Permanent Senior Notes Documents and the Holdings
Senior Notes Documents" immediately after the text "Permanent Senior
Subordinated Notes Documents" appearing in said Section.
35. [Intentionally omitted].
36. The definition of "Applicable Margin" appearing in Section
11.01 of the Credit Agreement is hereby amended by (i) inserting the text ",
Permanent Senior Notes, Holdings Senior Notes" immediately after the text
"Permanent Senior Subordinated Notes" in the first two places such text appears
in said definition, (ii) inserting the text "Permanent Senior Notes, Holdings
Senior Notes," immediately after the text "Permanent Senior Subordinated Notes,"
in the third and fourth places such text appears in said definition and (iii)
inserting the text "First" immediately before the text "Revised Financial
Covenants Compliance Date" in each place such text appears in said definition.
37. The definition of "Available Basket Amount" appearing in
Section 11.01 of the Credit Agreement is hereby amended by deleting the last
sentence appearing in said definition in its entirety and inserting the
following new sentence in lieu thereof:
"Notwithstanding anything to the contrary contained above in this
definition, (I) in the case of any determination of the Available Basket
Amount at any time on and after the Fifth Amendment Effective Date and
prior to the First Revised Financial Covenants Compliance Date, the term
"Available Basket Amount" shall mean an amount equal to the remainder of
(x) $3,000,000 MINUS (y) fair market value (as determined in good faith by
senior management of Holdings) of all Investments made in reliance on the
exception described in Section 24 of the Sixth Amendment and (II) in the
case of any determination of the Available Basket Amount at any time on and
after the First Revised Financial Covenants Compliance Date and prior to
the Second Revised Financial Covenants Compliance Date, the term "Available
Basket Amount" shall mean an amount equal to the remainder of (i)
$10,000,000 MINUS (ii) the aggregate amount of consideration paid by
Holdings and its Subsidiaries (including the amount of any Indebtedness
assumed) in connection with acquisitions effected pursuant to Section
9.02(vii) on and after the First
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Revised Financial Covenants Compliance Date, MINUS (iii) the aggregate
amount of Investments made pursuant to Section 9.05(vii) on and after the
First Revised Financial Covenants Compliance Date, MINUS (iv) the aggregate
amount of Capital Expenditures made pursuant to Section 9.07(g) on and
after the First Revised Financial Covenants Compliance Date."
38. The definition of "Change of Control" appearing in Section
11.01 of the Credit Agreement is hereby amended by inserting the text "any
Permanent Senior Notes Document, any Permitted Senior Note Refinancing
Indebtedness, any Holdings Senior Notes Document, any Permitted Holdings Senior
Note Refinancing Indebtedness," immediately after the text "any Permanent Senior
Subordinated Notes Document," in each place such text appears in said
definition.
39. The definition of "Consolidated EBITDA" appearing in Section
11.01 of the Credit Agreement is hereby amended by (i) deleting the word "and"
at the end of clause (ix) of said definition and inserting a comma in lieu
thereof and (ii) inserting the following text immediately after clause (x) of
said definition:
"and (xi) for any Test Period which includes any portion of the period from
April 1, 2002 to and including December 31, 2002, to the extent deducted in
any determination of Consolidated EBITDA (directly or through reductions to
Consolidated Net Income), severance costs and certain one-time
restructuring costs not reported as such in accordance with GAAP (such as
retention bonuses and employee relocation costs) incurred (on an accrual
basis) by Holdings and its Subsidiaries on or after April 1, 2002 and on or
prior to December 31, 2002, so long as (x) the aggregate amount of all such
costs so incurred and added to Consolidated EBITDA pursuant to this clause
(xi) after the Sixth Amendment Effective Date does not exceed $12,000,000
and (y) Holdings has at all times complied with the requirements of clause
(z) of Section 8.01(f), requiring Holdings to certify as to the amount and
type of such costs so incurred in any fiscal quarter of Holdings included
in such Test Period and added back to Consolidated EBITDA for such Test
Period.".
40. The definition of "Document" appearing in Section 11.01 of the
Credit Agreement is hereby amended by (i) deleting the word "and" appearing
immediately prior to the text "(x)" appearing in said definition and inserting a
comma in lieu thereof and (ii) inserting the text "and, on and after the
execution and delivery thereof, (xi) the Permanent Senior Subordinated Notes
Documents, (xii) the Permanent Senior Notes Documents, (xiii) the instruments
and agreements governing any Permitted Senior Note Refinancing Indebtedness,
(xiv) the Holdings Senior Notes Documents and (xv) the instruments and
agreements governing any Permitted Holdings Senior Note Refinancing
Indebtedness" immediately after clause (x) appearing in said definition.
41. The definition of "Minimum Borrowing Amount" appearing in
Section 11.01 of the Credit Agreement is hereby amended by deleting the text
"125,000" appearing in clause (vi) of said Section and inserting the text
"50,000" in lieu thereof.
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42. The definition of "Permitted Debt" appearing Section 11.01 of
the Credit Agreement is hereby amended by inserting the text ", Permitted Senior
Note Refinancing Indebtedness, Permitted Holdings Senior Note Refinancing
Indebtedness" immediately after the text "Permitted Subordinated Refinancing
Indebtedness" appearing in said definition.
43. The definition of "Receivables Amendment Conditions" appearing
in Section 11.01 of the Credit Agreement is hereby amended by (i) inserting the
text "Xxxxxx and" immediately after the text "shrinkage of receivables of"
appearing in clause (A) of said definition, (ii) inserting the following text
before the semi-colon appearing in clause (B) of said definition:
", it being understood, for avoidance of doubt, that this condition
requires only that such new scheduled maturities extend to a point in time
equal to or beyond the then maturities of the Investor Certificates issued
under the then existing Receivables Facility (not that the absolute
duration of the scheduled maturities of Investor Certificates issued under
a replacement Receivables Facility are identical to that of the then
existing Receivables Facility)",
(iii) inserting the following proviso before the semi-colon appearing in clause
(C) of said definition:
"; PROVIDED that if the pricing condition in this clause (C) is to be
satisfied at the time the then existing Receivables Facility is to be
replaced in its entirety as contemplated by the definition of "Receivables
Facility", the PER ANNUM interest rate applicable to such replacement
"Receivables Facility" shall not be subject to the limitations described
above in this clause (C), so long as same does not exceed the PER ANNUM
market interest rate then applicable to a receivables facility which
otherwise meets the requirements of this definition (as determined by
Holdings and the Administrative Agent)",
and (iv) inserting the following proviso before the semi-colon appearing in
clause (G) of said definition:
"; PROVIDED that notwithstanding the foregoing, if the condition in this
clause (G) is to be satisfied at the time the then existing Receivables
Facility is to be replaced in its entirety as contemplated by the
definition of "Receivables Facility", the condition in this clause (G)
shall be deemed to be satisfied so long as any such additional covenants
included in the Receivables Documents are determined by Holdings and the
Administrative Agent as market covenants for a Receivables Facility which
otherwise meets the requirements of this definition".
44. The definition of "Receivables Facility" appearing in Section
11.01 of the Credit Agreement is hereby amended by inserting the text "Xxxxxx
and" immediately after the text "pursuant to which (x)" appearing in said
definition.
45. The definition of "Receivables Facility Assets" appearing in
Section 11.01 of the Credit Agreement is hereby amended by inserting the text
"Xxxxxx and" immediately prior to the text "any of the Domestic Subsidiaries"
appearing in said definition.
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46. The definition of "Receivables Facility Threshold Amount"
appearing in Section 11.01 of the Credit Agreement is hereby amended by deleting
the text "the sum of (x) $130,000,000 plus (y) the Initial Receivables Facility
Reduction Amount (if greater than $0)" appearing in said definition and
inserting the text "$150,000,000" in lieu thereof.
47. The definition of "Revised Financial Covenants Compliance Date"
appearing in Section 11.01 of the Credit Agreement is hereby amended by
inserting the text "First" immediately before the text "Revised" appearing in
said definition.
48. The definition of "Senior Debt" appearing in Section 11.01 of
the Credit Agreement is hereby amended by (i) deleting the word "and" appearing
immediately prior to the text "(vii)" appearing in said definition and inserting
a comma in lieu thereof and (ii) inserting the text ", (viii) the aggregate
outstanding principal amount of the Holdings Senior Notes at such time and (ix)
the aggregate outstanding principal amount of any Permitted Holdings Senior Note
Refinancing Indebtedness at such time" immediately after clause (vii) appearing
in said definition.
49. The definition of "Treasure Chest" appearing in Section 11.01
of the Credit Agreement is hereby amended by deleting the text "and a
Wholly-Owned Subsidiary of BFPH" appearing in said definition and inserting the
text ", and any successor thereto by merger or consolidation, to the extent such
transaction is permitted by this Agreement" in lieu thereof.
50. Section 11.01 of the Credit Agreement is hereby amended by (i)
deleting the definitions of "Excess Senior Subordinated Note Indebtedness",
"Mezzanine Subordinated Debt" and "Permanent Senior Subordinated Notes"
appearing in said Section and (ii) inserting the following new definitions in
appropriate alphabetical order:
"Excess Permanent Senior Note Indebtedness" shall mean the
Indebtedness of Xxxxxx under the Permanent Senior Notes required to be
applied to Refinance outstanding Loans as contemplated by clause (II) and
subclauses (e) and (f) appearing in the first sentence of the definition of
Permanent Senior Notes.
"Holdings Senior Notes" shall mean any Indebtedness of Holdings
evidenced by senior notes issued to (A) Refinance outstanding Mezzanine
Subordinated Debt in aggregate principal amount not to exceed the sum of
(i) $100,000,000 PLUS (ii) the aggregate principal amount of all Mezzanine
Subordinated Debt issued to pay-in-kind regularly accruing interest on
outstanding Mezzanine Subordinated Debt after the Initial Borrowing Date
and prior to the date of the initial incurrence of such Indebtedness and
(B) pay in kind regularly accruing interest on any such theretofore
outstanding senior notes, so long as (a) such Indebtedness has a final
maturity not earlier than the date occurring 6 months after the final
maturity of the Permitted Subordinated Refinancing Indebtedness, (b) such
Indebtedness does not (x) provide for guaranties (except for guaranties by
Subsidiaries of Holdings, in the event such Subsidiaries guarantee any
other Indebtedness incurred by Holdings after the initial issuance of the
Holdings Senior Notes (other than any Indebtedness of Holdings incurred
under the "Senior Credit Facility" (as defined in the Senior Subordinated
Credit Agreement, without giving effect to any termination thereof)) or
security (it being understood, however, that such
-15-
Indebtedness may include a customary negative pledge covenant consistent
with the requirements of clause (f) below) or (y) in the case of the
Indebtedness incurred as contemplated by clause (A) above, increase the
principal amount of the Indebtedness being Refinanced thereby and
outstanding immediately prior to such refinancing (except to the extent of
reasonable fees, commissions and expenses actually paid in connection with
such refinancing), (c) such Indebtedness does not provide for the payment
of cash interest prior to the Second Revised Financial Covenants Compliance
Date, (d) the interest rate applicable to such Indebtedness does not exceed
13.0% per annum, (e) the Mezzanine Amendment/Refinancing Condition shall
have been satisfied (or, immediately after giving effect to the incurrence
of such Indebtedness, shall have been satisfied), and (f) all other terms
of such Indebtedness (including, without limitation, with respect to
amortization, redemption provisions, maturities, covenants, and defaults),
are not, taken as a whole, less favorable in any material respect to
Holdings and its Subsidiaries than those applicable to Xxxxxx and its
Subsidiaries and contained in the agreement governing the Permitted
Subordinated Refinancing Indebtedness and (after the execution and delivery
thereof) the Permanent Senior Notes Indenture, except that the initial
amount of the basket for indebtedness under the Credit Documents contained
in the debt covenant in the indenture governing such Indebtedness may be
reduced from $850.0 million (as set forth in the documentation governing
the Permitted Subordinated Refinancing Indebtedness) to the Senior Credit
Facility Basket Amount referred to in the definition of Permanent Senior
Notes, it being understood that the terms and conditions of such
Indebtedness specifically required (or expressly permitted) pursuant to the
immediately preceding exception or the other subclauses of this definition
shall not be taken into account in making any determination pursuant to
this clause (f). As used herein, the term "Holdings Senior Notes" shall
also include any Permanent Exchange Holdings Senior Notes issued pursuant
to the Holdings Senior Notes Indenture in exchange for theretofore
outstanding Holdings Senior Notes as contemplated by the definition of
Permanent Exchange Holdings Senior Notes. The issuance of Holdings Senior
Notes shall be deemed to be a representation and warranty by Holdings that
all conditions thereto have been satisfied in all material respects and
that same is permitted in accordance with the terms of this Agreement,
which representation and warranty shall be deemed to be a representation
and warranty for all purposes hereunder, including, without limitation,
Sections 5.03(a) and 10.
"Holdings Senior Notes Documents" shall mean the Holdings Senior Notes
Indenture, the Holdings Senior Notes and each other agreement, document or
instrument relating to the issuance of the Holdings Senior Notes.
"Holdings Senior Notes Indenture" shall mean any indenture or similar
agreement entered into in connection with the issuance of Holdings Senior
Notes or Permanent Exchange Holdings Senior Notes.
"Mezzanine Amendment/Refinancing Condition" shall mean (i) in the case
of a proposed amendment to the Mezzanine Subordinated Debt Documents as
contemplated by Section 33, Part I of the Sixth Amendment, the requirement
that at least 75% of the aggregate outstanding principal amount of
Mezzanine Subordinated Debt be held by persons other than Permitted Holders
and their Affiliates and (ii) in the case of an
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issuance of Holdings Senior Notes, the requirement that at least 75% of the
aggregate outstanding principal amount of the Holdings Senior Notes
(determined immediately after giving effect to such issuance) be held by
persons other than Permitted Holders and their Affiliates.
"Mezzanine Subordinated Debt" shall mean the unsecured Mezzanine
Subordinated Notes due 2010 issued by Holdings under the Mezzanine
Subordinated Debt Documents, which notes bear interest at a rate of (i) at
all times on and after the Initial Borrowing Date and prior to the later to
occur of (x) the Second Financial Covenants Compliance Date and (y) the
date of the effectiveness of the amendment described in Part I, Section 33
of the Sixth Amendment, 12% per annum (10% per annum of which shall be
payable in cash and 2% per annum of which shall be payable in kind) and
(ii) at all times on after the later to occur of the dates referred to in
subclauses (x) and (y) of preceding clause (i), 13% per annum (or such
lesser percentage as may be agreed by Holdings), all of which (or such
lesser portion of which (as may be agreed by Holdings)) shall be payable in
cash.
"Permanent Exchange Holdings Senior Notes" shall mean senior
subordinated notes issued in exchange for Holdings Senior Notes pursuant to
the Holdings Senior Notes Indenture, which Permanent Exchange Holdings
Senior Notes are substantially identical securities to the Holdings Senior
Notes and shall be issued pursuant to a registered exchange offer or
private exchange offer for the Holdings Senior Notes; PROVIDED that in no
event will the issuance of any Permanent Exchange Holdings Senior Notes
increase the aggregate principal amount of Holdings Senior Notes
theretofore outstanding or otherwise result in an increase in the interest
rate applicable to the Holdings Senior Notes.
"Permanent Exchange Senior Notes" shall mean senior notes issued in
exchange for Permanent Senior Notes pursuant to the Permanent Senior Notes
Indenture, which Permanent Exchange Senior Notes are substantially
identical securities to the Permanent Senior Notes and shall be issued
pursuant to a registered exchange offer or private exchange offer for the
Permanent Senior Notes; PROVIDED that in no event will the issuance of any
Permanent Exchange Senior Notes increase the aggregate principal amount of
Permanent Senior Notes theretofore outstanding or otherwise result in an
increase in the interest rate applicable to the Permanent Senior Notes.
"Permitted Holdings Senior Note Refinancing Indebtedness" shall mean
any Indebtedness of Holdings incurred (A) to Refinance Holdings Senior
Notes or any other Indebtedness incurred pursuant to this definition to so
Refinance any theretofore outstanding Indebtedness incurred pursuant to
this definition, (B) to pay in kind regularly accruing interest on any
Indebtedness theretofore issued pursuant to this definition and/or (C) as a
result of the accretion of the principal amount of theretofore outstanding
Indebtedness at the rate specified therein, so long as (a) such
Indebtedness has a weighted average life to maturity greater than or equal
to the weighted average life to maturity of the Indebtedness being
refinanced, (b) in the case of the Indebtedness incurred as contemplated by
clause (A) above, such Indebtedness does not increase the amount of such
Indebtedness outstanding immediately prior to such refinancing (except to
the extent
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of reasonable fees and expenses actually paid in connection with such
refinancing), (c) such Indebtedness does not add guarantors, obligors or
security from that which applied to such Indebtedness being Refinanced, (d)
such Indebtedness does not provide for the payment of cash interest prior
to the Second Revised Financial Covenants Compliance Date, (e) the interest
rate applicable to such Indebtedness does not exceed 13.0% per annum, and
(f) all other terms of such Indebtedness (including, without limitation,
with respect to the amortization, redemption provisions, maturities,
covenants, defaults and remedies), are not, taken as a whole, less
favorable in any material respect to Holdings and its Subsidiaries than
those previously existing with respect to the Indebtedness being
Refinanced.
"Permanent Senior Notes" shall mean any Indebtedness of Xxxxxx
evidenced by senior notes and incurred to Refinance (I) up to $162,500,000
in aggregate principal amount of then outstanding Permitted Subordinated
Refinancing Indebtedness and (II) up to $187,500,000 in aggregate principal
amount of outstanding Loans, so long as (a) such Indebtedness has a final
maturity equal to or later than the seventh anniversary of the date of the
incurrence of such Indebtedness and no required amortizations prior to such
date, (b) such refinancing does not (x) add guarantors, obligors or
security from that which applied to the Permitted Subordinated Refinancing
Indebtedness, except that the terms of such Indebtedness may require
(pursuant to a lien covenant contained in the documentation therefor) that
a pledge of any assets of Xxxxxx and its Subsidiaries to secure new debt of
Xxxxxx and its Subsidiaries incurred after the Sixth Amendment Effective
Date (excluding (A) Indebtedness under the "Senior Credit Facility" (as
defined in the Senior Subordinated Credit Agreement, without giving effect
to any termination thereof), (B) Indebtedness under Interest Rate
Protection Agreements and Currency Agreements, (C) Attributed Receivables
Facility Indebtedness, (D) capitalized lease obligations and certain
acquired indebtedness expressly permitted to be incurred under the
documentation governing such Indebtedness and (E) additional Indebtedness
in an aggregate principal amount equal to $35.0 million) secure such
Indebtedness on an equal and ratable basis with such new debt (or on a
senior basis, if such new debt is subordinated to such Indebtedness) or (y)
increase the principal amount of the Indebtedness being Refinanced and
outstanding immediately prior to such refinancing (except to the extent of
reasonable fees, commissions and expenses actually paid in connection with
such refinancing), (c) the interest rate applicable to such Indebtedness
shall not exceed the rate applicable to the Permitted Subordinated
Refinancing Indebtedness, (d) all terms of such Indebtedness (including,
without limitation, with respect to amortization, redemption provisions,
maturities, covenants, defaults and remedies), are not, taken as a whole,
less favorable in any material respect to Xxxxxx and its Subsidiaries than
those previously existing with respect to the Permitted Subordinated
Refinancing Indebtedness, except that (i) the indenture governing such
Indebtedness may contain a lien covenant restricting liens, and providing
for equal and ratable security, on the basis described in the exception set
forth in clause (b)(x) above, (ii) such Indebtedness may have a final
maturity shorter than the final maturity of the Permitted Subordinated
Refinancing Indebtedness and (iii) the initial amount of the basket for
indebtedness under the Credit Documents contained in the debt covenant in
the indenture governing such Indebtedness may be reduced from $850.0
million (as set forth in the documentation governing the Permitted
Subordinated Refinancing Indebtedness) to an
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amount (the "Senior Credit Facility Basket Amount") equal to the sum of (I)
the Total Revolving Loan Commitment as in effect on the date of the first
incurrence of such Indebtedness, (II) the aggregate principal amount of the
Term Loans outstanding on the date of the first incurrence of such
Indebtedness (after giving effect to any repayment thereof with the
proceeds of such Indebtedness on such date) PLUS (III) $35.0 million, it
being understood that the terms and conditions of such Indebtedness
specifically required (or expressly permitted) pursuant to immediately
preceding clauses (i) and (ii) or the other subclauses of this definition
shall not be taken into account in making any determination pursuant to
this clause (d), (e) in connection with the first incurrence of such
Indebtedness, Net Cash Proceeds in an amount equal to the sum of (x)
$25,000,000 PLUS (y) 50% of the Net Cash Proceeds from such incurrence in
excess of $25,000,000, shall have been applied to repay Loans (and/or
reduce the Total Revolving Loan Commitment) in accordance with the
requirements of Sections 4.02(d) and (i) and (f) in connection with any
subsequent incurrence of such Indebtedness, Net Cash Proceeds in an amount
equal to 50% of the Net Cash Proceeds from such incurrence of Indebtedness
shall have been applied to repay Loans (and/or reduce the Total Revolving
Loan Commitment) in accordance with the requirements of Sections 4.02(d)
and (i). As used herein, the term "Permanent Senior Notes" shall also
include any Permanent Exchange Senior Notes issued pursuant to the
Permanent Senior Notes Indenture in exchange for theretofore outstanding
Permanent Senior Notes as contemplated by the definition of Permanent
Exchange Senior Notes. The issuance of Permanent Senior Notes shall be
deemed to be a representation and warranty by Xxxxxx that all conditions
thereto have been satisfied in all material respects and that same is
permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and
warranty for all purposes hereunder, including, without limitation,
Sections 5.03(a) and 10.
"Permanent Senior Notes Documents" shall mean the Permanent Senior
Notes Indenture, the Permanent Senior Notes and each other agreement,
document or instrument relating to the issuance of the Permanent Senior
Notes.
"Permanent Senior Notes Indenture" shall mean any indenture or similar
agreement entered into in connection with the issuance of Permanent Senior
Notes or Permanent Exchange Senior Notes.
"Permanent Senior Notes Issuance Amount" shall mean, as to any
issuance of Permanent Senior Notes, the aggregate principal amount of such
Permanent Senior Notes on the date of issuance thereof.
"Permanent Senior Subordinated Notes" shall mean any Indebtedness of
Xxxxxx evidenced by senior subordinated notes and incurred pursuant to one
or more issuances of such subordinated notes to Refinance all or a portion
of the then outstanding Permitted Subordinated Refinancing Indebtedness, so
long as (a) such Indebtedness has (x) a weighted average life to maturity
greater than or equal to the weighted average life to maturity of the
Permitted Subordinated Refinancing Indebtedness and (y) a final maturity
identical to or later than the final maturity of the Permitted Subordinated
Refinancing Indebtedness, (b) such Indebtedness does not (x) add
guarantors, obligors or security
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from that which applied to the Permitted Subordinated Refinancing
Indebtedness or (y) increase the principal amount of the Indebtedness being
refinanced and outstanding immediately prior to such refinancing (except to
the extent of reasonable fees, commissions and expenses actually paid in
connection with such refinancing), (c) such Indebtedness has substantially
the same (or, from the perspective of the Lenders, more favorable)
subordination provisions as those contained in the Senior Subordinated
Credit Agreement, and (d) all other terms of such Indebtedness (including,
without limitation, with respect to amortization, redemption provisions,
maturities, covenants, defaults and remedies), are not, taken as a whole,
less favorable in any material respect to Xxxxxx and its Subsidiaries than
those previously existing with respect to the Permitted Subordinated
Refinancing Indebtedness, except that the initial amount of the basket for
indebtedness under the Credit Documents contained in the debt covenant in
the indenture governing such Indebtedness may be reduced from $850.0
million (as set forth in the documentation governing the Permitted
Subordinated Refinancing Indebtedness) to the Senior Credit Facility Basket
Amount referred to in the definition of Permanent Senior Notes, it being
understood that the terms and conditions of such Indebtedness specifically
required (or expressly permitted) pursuant to the immediately preceding
exception or the other subclauses of this definition shall not be taken
into account in making any determination pursuant to this clause (d). As
used herein, the term "Permanent Senior Subordinated Notes" shall also
include any Permanent Exchange Senior Subordinated Notes issued pursuant to
the Permanent Senior Subordinated Notes Indenture in exchange for
theretofore outstanding Permanent Senior Subordinated Notes as contemplated
by the definition of Permanent Exchange Senior Subordinated Notes. The
issuance of Permanent Senior Subordinated Notes shall be deemed to be a
representation and warranty by Xxxxxx that all conditions thereto have been
satisfied in all material respects and that same is permitted in accordance
with the terms of this Agreement, which representation and warranty shall
be deemed to be a representation and warranty for all purposes hereunder,
including, without limitation, Sections 5.03(a) and 10.
"Permitted Senior Note Refinancing Indebtedness" shall mean any
Indebtedness of Xxxxxx and its Subsidiaries issued to Refinance Permanent
Senior Notes or any Indebtedness issued to so Refinance any such
Indebtedness, so long as (a) such Indebtedness has a weighted average life
to maturity greater than or equal to the weighted average life to maturity
of the Indebtedness being refinanced, (b) such Indebtedness does not (i)
increase the amount of such Indebtedness outstanding immediately prior to
such refinancing or renewal (except to the extent of reasonable fees,
commissions and expenses actually paid in connection with such refinancing)
or (ii) add guarantors, obligors or security from that which applied to
such Indebtedness being refinanced or renewed, and (c) all other terms of
such Indebtedness (including, without limitation, with respect to the
amortization, redemption provisions, maturities, covenants, defaults and
remedies), are not, taken as a whole, less favorable in any material
respect to Xxxxxx and its Subsidiaries than those previously existing with
respect to the Indebtedness being refinancing or renewed.
"Second Revised Financial Covenants Compliance Date" shall mean the
earlier to occur of (i) the date of the first delivery by Holdings of a
compliance certificate pursuant to (and in accordance with the requirements
of) Section 8.01(f) in respect of any fiscal
-20-
quarter or fiscal year of Holdings ending on or after the fiscal year of
Holdings ended December 31, 2005, demonstrating, INTER ALIA, compliance
with the financial covenants contained in Sections 9.08 and 9.09 as at the
end of the relevant fiscal quarter or fiscal year, as the case may be, and
(ii) the first date occurring after December 31, 2005 on which the chief
financial officer of Holdings shall have delivered to the Lenders a
compliance certificate to the effect that, to the best of such officer's
knowledge, Holdings is in compliance with the financial covenants contained
in Sections 9.08 and 9.09 as at the end of the relevant fiscal quarter or
fiscal year, as the case may be, then last ended, together with
calculations (in reasonable detail) required to establish such compliance.
"Sixth Amendment" shall mean the Sixth Amendment to this Agreement,
dated as of June 13, 2002.
"Sixth Amendment Effective Date" shall have the meaning provided in
the Sixth Amendment.
51. The Credit Agreement is hereby further amended by (i) deleting
each reference to "BFPH" appearing in the Credit Agreement and inserting
the text "Xxxxxx" in lieu thereof and (ii) placing the definition of
"Xxxxxx" appearing in Section 11.01 of the Credit Agreement (as amended
pursuant to preceding clause (i)) in appropriate alphabetical order in said
Section.
II. AMENDMENTS TO SUBORDINATION AGREEMENT.
1. The Subordination Agreement is hereby amended by deleting each
reference to "BFPH" appearing in the Subordination Agreement and inserting the
text "Xxxxxx" in lieu thereof.
2. The definition of "REQUIRED SENIOR CREDITORS" appearing in
Section 7 of the Subordination Agreement is hereby amended by inserting the text
"; PROVIDED that for purposes of the last sentence appearing in Section 2(b),
the term "Required Senior Creditors" shall mean the holders of at least a
majority of the sum of (v) all outstanding Credit Document Obligations, (w) all
outstanding Permanent Senior Note Obligations (as defined below), (x) all
outstanding Permitted Senior Note Refinancing Obligations (as defined below),
(y) if the Subordinated Debt in respect of which a payment is to be permitted
(as contemplated by said sentence) is owed by Holdings, all outstanding Holdings
Senior Note Obligations (as defined below) and (z) if the Subordinated Debt in
respect of which a payment is to be permitted (as contemplated by said sentence)
is owed by Holdings, all outstanding Permitted Holdings Senior Note Refinancing
Obligations (as defined below)" after clause (ii) appearing in said definition.
3. The definition of "SENIOR CREDITORS" appearing in Section 7 of
the Subordination Agreement is hereby amended by inserting the text ", the
Permanent Senior Noteholders, the Permitted Senior Note Refinancing Creditors,
the Holdings Senior Noteholders, the Permitted Holdings Senior Note Refinancing
Creditors" immediately after the text "Hedging Creditors" appearing in said
definition.
4. The definition of "SENIOR INDEBTEDNESS" appearing in Section 7
of the Subordination Agreement is hereby amended by (i) deleting the period
appearing at the end of
-21-
clause (iii) of said definition and inserting a semi-colon in lieu thereof and
(ii) inserting the following new clauses (iv), (v), (vi) and (vii) at the end of
said definition:
"(iv) all Obligations (including Obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become
due) and liabilities (including, without limitation, indemnities, Fees and
interest thereon) of the respective Credit Party (whether as obligor,
guarantor or otherwise) to the Permanent Senior Noteholders, now existing
or hereafter incurred under, arising out of or in connection with any
Permanent Senior Notes Document to which it is at any time a party
(including, without limitation, all such obligations and liabilities of the
respective Credit Party under the Permanent Senior Notes Indenture (if a
party thereto) and under any other guarantee by it of obligations pursuant
to the Permanent Senior Notes Documents) and the due performance and
compliance by the respective Credit Party with the terms of each such
Permanent Senior Notes Document (all such obligations and liabilities under
this clause (iv) being herein collectively called the "PERMANENT SENIOR
NOTE OBLIGATIONS");
(v) all Obligations (including Obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become
due) and liabilities (including, without limitation, indemnities, Fees and
interest thereon) of the respective Credit Party (whether as obligor,
guarantor or otherwise) to the Permitted Senior Note Refinancing Creditors,
now existing or hereafter incurred under, arising out of or in connection
with any Permitted Senior Note Refinancing Indebtedness (and any agreement
or instrument governing or evidencing the same) to which it is at any time
a party (including, without limitation, all such obligations and
liabilities of the respective Credit Party under any guarantee by it of
obligations under, or relating to, pursuant to Permitted Senior Note
Refinancing Indebtedness) and the due performance and compliance by the
respective Credit Party with the terms of all such Permitted Senior Note
Refinancing Indebtedness (and each agreement and instrument governing or
evidencing the same) (all such obligations and liabilities under this
clause (v) being herein collectively called the "PERMITTED SENIOR NOTE
REFINANCING OBLIGATIONS");
(vi) in the case of the Subordinated Debt of Holdings only, all
Obligations (including Obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities
(including, without limitation, indemnities, Fees and interest thereon) of
Holdings (whether as obligor or otherwise) to the Holdings Senior
Noteholders, now existing or hereafter incurred under, arising out of or in
connection with any Holdings Senior Notes Documents to which it is at any
time a party and the due performance and compliance by Holdings with the
terms of each such Holdings Senior Notes Document (all such obligations and
liabilities under this clause (vi) being herein collectively called the
"HOLDINGS SENIOR NOTE OBLIGATIONS"); and
(vii) in the case of the Subordinated Debt of Holdings only, all
Obligations (including Obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities
(including, without limitation, indemnities, Fees and interest thereon) of
the respective Credit Party (whether as obligor, guarantor or otherwise) to
the Permitted Holdings Senior Note Refinancing Creditors, now existing or
hereafter incurred under, arising out of or in connection with any
-22-
Permitted Holdings Senior Note Refinancing Indebtedness (and any agreement
or instrument governing or evidencing the same) to which it is at any time
a party (including, without limitation, all such obligations and
liabilities of the respective Credit Party under any guarantee by it of
obligations under, or relating to, pursuant to Permitted Holdings Senior
Note Refinancing Indebtedness) and the due performance and compliance by
the respective Credit Party with the terms of all such Permitted Holdings
Senior Note Refinancing Indebtedness (and each agreement and instrument
governing or evidencing the same) (all such obligations and liabilities
under this clause (vii) being herein collectively called the "PERMITTED
HOLDINGS SENIOR NOTE REFINANCING OBLIGATIONS").".
5. Section 7 of the Subordination Agreement is hereby further
amended by (i) deleting the definition of "PERMANENT SENIOR SUBORDINATED NOTE
DOCUMENTS" appearing in said Section in its entirety and (ii) inserting the
following definitions in appropriate alphabetical order:
"HOLDINGS SENIOR NOTEHOLDERS" shall mean the holders from time to time
of the Holdings Senior Notes.
"PERMANENT SENIOR NOTEHOLDERS" shall mean the holders from time to
time of the Permanent Senior Notes.
"PERMITTED HOLDINGS SENIOR NOTE REFINANCING CREDITORS" shall mean the
holders from time to time of Permitted Holdings Senior Note Refinancing
Indebtedness.
"PERMITTED SENIOR NOTE REFINANCING CREDITORS" shall mean the holders
from time to time of Permitted Senior Note Refinancing Indebtedness.
III. MISCELLANEOUS PROVISIONS.
1. In order to induce the Lenders to enter into this Amendment,
each Credit Agreement Party hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Sixth Amendment
Effective Date, both immediately before and immediately after giving effect
to this Amendment; and
(b) all of the representations and warranties contained in the
Credit Agreement or the other Credit Documents are true and correct in all
material respects on the Sixth Amendment Effective Date both immediately
before and immediately after giving effect to this Amendment, with the same
effect as though such representations and warranties had been made on and
as of the Sixth Amendment Effective Date (it being understood that any
representation or warranty made as of a specific date shall be true and
correct in all material respects as of such specific date).
2. This Amendment is limited as specified and shall not constitute
a modification, acceptance or waiver of any other provision of the Credit
Agreement, the Subordination Agreement or any other Credit Document.
-23-
3. This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with Holdings and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. This Amendment shall become effective on the date (the "Sixth
Amendment Effective Date") when each of the following conditions shall have been
satisfied; PROVIDED that the Sixth Amendment Effective Date may occur
concurrently with the last of such conditions to be satisfied:
(i) each Credit Agreement Party, each Party (as defined in the
Subordination Agreement) party to the Subordination Agreement, the
Administrative Agent, the Lenders constituting the Required Lenders and the
Lenders holding Tranche A Term Loans constituting the Majority Lenders of
such Tranche of Term Loans shall have signed a counterpart hereof (whether
the same or different counterparts) and shall have delivered (including by
way of facsimile transmission) the same to the Administrative Agent at its
Notice Office;
(ii) the Lenders shall have received an amendment to the Senior
Subordinated Credit Agreement executed by Xxxxxx, the subsidiaries of
Xxxxxx party thereto and the Required Lenders under, and as defined in, the
Senior Subordinated Credit Agreement, which amendment shall permit the
issuance of the Permanent Senior Notes and otherwise be in form and
substance satisfactory to the Administrative Agent;
(iii) Holdings and Xxxxxx shall have paid to the Administrative Agent
and the Lenders all fees, costs and expenses (including legal fees and
expenses but excluding the Amendment Fee referred to Section 6 below)
payable to the Administrative Agent and the Lenders to the extent then due;
(iv) the Permanent Senior Notes shall have been issued generating Net
Cash Proceeds of at least $240.0 million and at least $132.5 million of
such Net Cash Proceeds shall have been applied to repay Loans in accordance
with the requirements of the Credit Agreement (as amended hereby); and
(v) the Administrative Agent shall have received a certificate signed
on behalf of Holdings by an appropriate officer of Holdings, stating that
the conditions in clauses (iii) and (iv) above and Section 5.03(a) of the
Credit Agreement have been satisfied on such date.
In the event the condition described in clause (iv) above shall not have been
satisfied on or prior to September 30, 2002, any signature page to this
Amendment theretofore tendered by any Lender shall be deemed withdrawn at such
time and clause (i) above shall thereafter be deemed not to be satisfied.
-24-
6. The Borrowers hereby covenant and agree (on a joint and several
basis) that, so long as the Sixth Amendment Effective Date occurs, they shall
pay (in U.S. Dollars) to each Lender which executes and delivers to the
Administrative Agent (or its designee) a counterpart hereof by 12:00 Noon (New
York City time) on June 13, 2002, a non-refundable cash fee (the "Amendment
Fee") in an amount equal to 12.5 basis points (0.125%) of an amount equal to the
sum of (i) the aggregate principal amount of all Term Loans made by such Lender
and outstanding on the Sixth Amendment Effective Date (after giving effect to
the repayment of Term Loans of such Lender on such date with the Net Cash
Proceeds from the issuance of Permanent Senior Notes) PLUS (ii) the Revolving
Loan Commitment of such Lender as in effect on the Sixth Amendment Effective
Date, which Amendment Fee shall not be subject to counterclaim or set-off, or be
otherwise affected by, any claim or dispute relating to any other matter and
shall be paid by the Borrowers to the Administrative Agent for distribution to
the Lenders not later than the second Business Day following the Sixth Amendment
Effective Date.
7. From and after the Sixth Amendment Effective Date, all
references in the Credit Agreement and each of the other Credit Documents to the
Credit Agreement and the Subordination Agreement shall be deemed to be
references to the Credit Agreement or the Subordination Agreement, as the case
may be, as modified hereby.
* * *
-25-
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
XXXXXX HOLDINGS, INC. (f/k/a Big Flower
Holdings, Inc.), as a Guarantor
By /s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXXX, INC. (f/k/a Big Flower Press Holdings,
Inc.), as a Borrower and a Guarantor
By /s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXXX LIMITED (f/k/a Big Flower Limited),
as a Borrower
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
FUSION PREMEDIA GROUP LIMITED (f/k/a
Troypeak Limited),
as a Borrower
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
PISMO LIMITED, as a Borrower
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
XXXXXX DIRECT RESPONSE LIMITED (f/k/a
Colorgraphic Direct Response Limited),
as a Borrower
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
XXXXXX DIRECT MARKETING SERVICES
(CROYDON) LIMITED
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
XXXXXX DIGITAL SERVICES LIMITED
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
JPMORGAN CHASE BANK,
Individually, and as Administrative Agent
By /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
DEUTSCHE BANK TRUST COMPANY
AMERICAS (f/k/a Bankers Trust Company),
Individually, and as Syndication Agent
By /s/ Xxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxx XxXxxxx
Title: Director
BANK OF AMERICA, N.A.
Individually, and as Documentation Agent
By /s/ S. Xxxx Xxxxxxx, III
--------------------------------------------
Name: S. Xxxx Xxxxxxx, III
Title: Managing Director
[OTHER LENDERS]
By
-----------------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION
By /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
FLEET NATIONAL BANK
By /s/ Xxxxx X. Jalelig
--------------------------------------------
Name: Xxxxx X. Jalelig
Title: Managing Director
BOEING CAPITAL CORP.
By /s/ Xxxxx X. Xxxxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Authorized Agent
CARLYLE HIGH YIELD PARTNERS II, LTD
By /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Principal
CARLYLE HIGH YIELD PARTNERS III, LTD
By /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Principal
CARLYLE HIGH YIELD PARTNERS IV, LTD
By /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Principal
THE CIT GROUP/EQUIPMENT
FINANCING, INC.
By /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Sr. Vice President
PROMETHEUS INVESTMENT FUNDING NO.1
LTD.
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Associate Director
FRANKLIN FLOATING RATE TRUST
By /s/ Xxxxxxx X'xxxxxxx
--------------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
ARCHIMEDES FUNDING II, LTD.
By ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxx Xxxxxx Xxxxxx
--------------------------------------------
Name: Xxxx Xxxxxx Xxxxxx
Title: Managing Director
NEMEAN CLO, LTD.
By ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxx Xxxxxx Xxxxxx
--------------------------------------------
Name: Xxxx Xxxxxx Xxxxxx
Title: Managing Director
AMARA-I FINANCE, LTD.
By: INVESCO Senior Secured Management, Inc.
as Financial Manager
By /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management, Inc.
as Portfolio Advisor
By /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management, Inc.
as Portfolio Advisor
By /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
CERES II FINANCE LTD.
By: INVESCO Senior Secured Management, Inc.
as Sub-Managing Agent (Financial)
By /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
OASIS COLLATERALIZED HIGH INCOME
PORTFOLIOS-1 LTD.
By: INVESCO Senior Secured Management, Inc.
as Subadvisor
By /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AIM FLOATING RATE FUND
By: INVESCO Senior Secured Management, Inc.
as Attorney in fact
By /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
TRITON CDO IV, LIMITED
By: INVESCO Senior Secured Management, Inc.
as Investment Advisor
By /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
KZH CYPRESSTREE-1 LLC
By /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Agent
MASSMUTUAL HIGH YIELD PARTNERS II
LLC
By: HYP Management, Inc.
By /s/ Xxxx Xxx Xxxxxxxx
--------------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
MAPLEWOOD (CAYMAN) LTD.
By: Mass Mutual Life Insurance Company,
as Investment Manager
By /s/ Xxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Second Vice President and
Associate General Counsel
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Second Vice President and
Associate General Counsel
SIMSBURY CLO, LIMITED
By: Mass Mutual Life Insurance Company,
as Collateral Manager
By /s/ Xxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Second Vice President and
Associate General Counsel
MASTER SENIOR FLOATING RATE TRUST
By /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Investment Managers, L.P.,
as Investment Advisor
By /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
LONGHORN CDO (CAYMAN) LTD.
By: Xxxxxxx Xxxxx Investment Managers, L.P.,
as Investment Advisor
By /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
METROPOLITAN LIFE INSURANCE
COMPANY
By /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
XXXXXX XXXXXXX PRIME INCOME TRUST
By /s/ Xxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities Genpar, L.P.,
its General Partner
By: Oak Hill Securities Mgp, Inc.,
its General Partner
By /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities Genpar, L.P.,
its General Partner
By: Oak Hill Securities Mgp, Inc.,
its General Partner
By /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
OAK HILL CREDIT PARTNERS LIMITED
By /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
ORIX FINANCE CORP. I
By /s/ Xxxxxxxx X.x. Xxxxx, Xx.
--------------------------------------------
Name: Xxxxxxxx X.X. Xxxxx, Xx.
Title: Authorized Representative
SEABOARD CLO 2000 CLO LTD.
By: ORIX Capital Markets, LLC,
Collateral Manager
By /s/ Xxxxxxxx X.X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxxxxxx X.X. Xxxxx, Xx.
Title: Authorized Representative
NATEXIS BANQUIES POPULAIRES
By /s/ Xxxxx X. Xxxxxx, Xx.
--------------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President and Group Manager
ADDISON CDO, LIMITED (Acct. 1279)
By: Pacific Investment Management Company,
LLC, as its Investment Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
ATHENA CDO, LIMITED (Acct. 12277)
By: Pacific Investment Management Company,
LLC, as its Investment Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
BEDFORD CDO, LIMITED (Acct. 1276)
By: Pacific Investment Management Company,
LLC, as its Investment Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
CAPTIVA III FINANCE LTD. (Acct. 275)
as advised by Pacific Investment Management
Company, LLC
By /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Director
CAPTIVA IV FINANCE LTD. (Acct. 1276)
as advised by Pacific Investment Management
Company, LLC
By /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Director
CATALINA CDO LTD. (Acct. 1287)
By: Pacific Investment Management Company,
LLC, as its Investment Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
DELANO COMPANY (Acct. 274)
By: Pacific Investment Management Company,
LLC, as its Investment Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
JISSEKIKAN FUNDING LTD. (Acct. 1288)
By: Pacific Investment Management Company,
LLC, as its Investment Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
ROYALTON COMPANY (Acct. 280)
By: Pacific Investment Management Company,
LLC, as its Investment Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
XXXXXXXX CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC,
as its Collateral Manager
By /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Partner
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
TEXTRON FINANCIAL CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
Each of undersigned Subsidiaries of Holdings hereby (i) consents to the
provisions of this Amendment and (ii) acknowledges that it is a U.K. Subsidiary
Guarantor for all purposes of the Credit Documents.
ABACUS STUDIOS LIMITED, as a U.K.
Subsidiary Guarantor
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
ADMAGIC LIMITED, as a U.K. Subsidiary
Guarantor
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
PRODUCTION REPSONSE LIMITED, as a U.K.
Subsidiary Guarantor
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
XXXXXX DIRECT MARKETING SERVICES
(LEICESTER) LIMITED., as a U.K. Subsidiary
Guarantor
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
XXXXXX FULFILLMENT SERVICES, LIMITED.,
as a U.K. Subsidiary Guarantor
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
XXXXXX XXXXXX XXXXXX, LIMITED, as a
U.K. Subsidiary Guarantor
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
XXXXXX MAILING SERVICES LIMITED, as a
U.K. Subsidiary Guarantor
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
XXXXXX MARKETING SERVICES LIMITED, as
a U.K. Subsidiary Guarantor
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
