EXHIBIT 10.4
AMENDMENT XX. 0
Xxxxxxxxx Xx. 0, dated as of February 22, 2001 (the "Amendment"), to
the Senior Subordinated Credit Agreement, dated as of December 7,1999, as
amended, among Xxxxxx, Inc, (f/k/a Big Flower Press Holdings, Inc.), a Delaware
corporation (the "Company"), Xxxxxx Holdings, Inc. (f/k/a Big Flower Holdings,
Inc.). a Delaware corporation ("Holdings"), the Subsidiary Guarantors named on
the signature pages hereto, the Lenders named on the signature pages hereto (the
"Lenders") and Bankers Trust Company, The Chase Manhattan Bank and Banc of
America Bridge LLC (f/k/a NationsBridge, L.L.C.) as Agents for the Lenders (in
such capacity, the "Agents") (the "Credit Agreement"). Except as otherwise
indicated herein, capitalized terms used herein have the same meanings as set
forth in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, pursuant to Section 12.6 of the Credit Agreement, the
Company and the Required Lenders desire to amend certain provisions of the
Credit Agreement;
NOW THEREFORE, in consideration of the premises and covenants
contained herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged. the parties hereto, intending to
be legally bound hereby, agree as follows:
1. AMENDMENT. (a) Section 1.1 of the Credit Agreement is hereby amended
as follows:
(i) The definition of "Xxxxx Permitted Holders" is hereby deleted
in its entirety.
(ii) The definition of "Change of Control" is hereby deleted in
its entirety and replaced with the following:
"Change of Control" means the occurrence of one or more of the following
events: (i) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all of the
assets of the Company to any Person or group of related Persons for
purposes of Section 13(d) of the Exchange Act (a "Group"), together with to
Affiliates thereof (other than the Permitted Holders); (ii) the approval by
the holders of Capital Stock of the Company of any plan or proposal for the
liquidation or dissolution of the Company; (iii) any person or Group (other
than the Permitted Holders) shall became the owner, directly or indirectly,
beneficially or of record, of shares representing more than 25% of the
Voting Stock of Holdings, unless at such time the Equity Investors
beneficially own, in the aggregate, not less than a majority of the Voting
Stock of Holdings, on a fully diluted basis; (iv) any Equity Investor shall
cease to own S 1 % of the outstanding Capital Stock of Holdings owned by
such Person on the Closing Date; (v) the replacement of a majority of the
Board of Directors of the Company over a two year period from the directors
who constituted the Board of Directors of the Company at the beginning of
such period, and such replacement shall not have been approved by a vote of
at least a majority of the Board of Directors of the Company then
still in office who either were members of such Board of Directors at the
beginning of such period or whose election as a member of such Board of
Directors was previously so approved; or (vi) the occurrence of any "Change
of Control" as defined in each of the Senior Subordinated Indenture or the
indenture pursuant to which any Demand Take-Out Notes are issued or in the
Senior Credit Facility.
(iii) The definition of Management Participants is hereby deleted
in its entirety.
(iv) The definition of "Permitted Holders" is hereby deleted in
its entirety and replaced with the following:
"Permitted Holders" shall mean and include (i) THL, THL Affiliates and THL.
Investors and (ii) ECP, ECP Affiliates and ECP Investors.
(b) EXHIBITS. The Exhibits to the Credit Agreement are hereby amended as
follow:
(1) EXHIBIT XIV. Exhibit XIV is hereby amended as follows: .
(i) The definition of "Xxxxx Permitted Holders" is hereby deleted
in its entirety.
(ii) The definition of "Change of Control" is hereby deleted in
its en tlxety and replaced with the following:
"Change of Control" means the occurrence of one or more of the following
events:
(1) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially
all of the ands of the Company to any Person or group of related Persons
for purposes of Section 13(d) of the Exchange Act (a "Group"), together
with any Affiliates thereof (other than one or more Permitted Holders);
(2) the approval by the holders of Capital Stock of the Company
of any plan or proposal fox the liquidation or dissolution of the Company;
(3) any Person or Group (other than one or more Permitted
Holders) shall become the beneficial owner, directly or indirectly, of
shares representing more than 25% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of Holdings or the
Company, unless at such time the Equity Investors beneficially own,
directly or indirectly, in the aggregate, shares representing not less than
a majority of the voting power represented by the issued and outstanding
Capital Stock of the Company; or
(4) the first day on which a majority of the Board of Directors
of the Company are not Continuing Directors,
(iii) The definition of "Permitted Holders" is hereby deleted in
its entirety and. replaced with the following:
"Permitted Holders" shall mean and include (i) THL, THL Affiliates
and TEL Investors and (ii) ECP, ECP Affiliates and ECP Investors.
2. ADDITIONAL FEES. The Company agrees to pay on demand all costs and
expenses of the Agents and Lenders in connection with the preparation, execution
and delivery of this Amendment, including the reasonable fees and out-of-pocket
expenses of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Agents and Lenders, with
respect thereto.
3. SCOPE OF AMENDMENT. Except as specifically amended hereby, the
Credit Agreement shall remain unchanged. It is declared and agreed by each of
the parties hereto that the Credit Agreement, subject to this Amendment, shall
continue, in full force and effect, and that the Amendment and the Credit
Agreement shall be read as and shall constitute one document.
4. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED 1N ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
6. ACKNOWLEDGMENT AND CONSENT BY THE SUBSIDIARY GUARANTORS. Each
Subsidiary Guarantor hereby acknowledges that it has read this Amendment and
consents to the terms hereof and fiurther confirms and agrees that,
notwithstanding the effectiveness of this Amendment, its obligations under its
Guarantee shall not be impaired or affected and its Guarantee is, and shall
continue to be, in fail force and effect and is hereby confirmed ,and ratified
in all respects.
WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
XXXXXX HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
SUBSIDIARY GUARANTORS:
PRINTCO., INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
WEBCRAFT LLC
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
WEBCRAFT CHEMICALS LLC
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
ENTERON GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
MASTER EAGLE GRAPHICS SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
REVERE PHOTO PLATEMAKERS COMPANY
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
COMPUTER COLOR GRAPHICS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
BIG FLOWER DIGITAL SERVICES (DELAWARE),
INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
BIG FLOWER DIGITAL LLC
By: BIG FLOWER DIGITAL SERVICES
(DELAWARE), INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
AGENTS:
BANKERS TRUST COMPANY,
as co-agent
By: /s/ C. Leyand
------------------------------
Title:
THE CHASE MANHATTAN BANK,
as co-agent
By: /s/ Xxxx Xxxxxx
------------------------------
Title: Vice President
BANC OF AMERICA BRIDGE LLC,
as co-agent
By: /s/ X.X.Xxxxx
------------------------------
Title: Senior Vice President
LENDERS:
BANKERS TRUST COMPANY,
as co-agent
By: /s/ C. Leyand
------------------------------
Title:
THE CHASE MANHATTAN BANK,
as co-agent
By: /s/ Xxxx Xxxxxx
------------------------------
Title: Vice President
BANC OF AMERICA BRIDGE LLC,
as co-agent
By: /s/ X.X.Xxxxx
------------------------------
Title: Senior Vice President
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxx Xxxxxxx
------------------------------
Title: Vice President
OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II, L.P.,
its General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------
Title: Vice President
D.K. ACQUISITION PARTNERS, L.P.
By: X.X. Xxxxxxxx & Co.,
its General Partner
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Title:
FRANKLIN FLOATING RATE TRUST
By: /s/ Xxxxxxxx Xxxxxx
------------------------------
Title: Vice President
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd.,
as General Partner
By: /s/ Xxxx X. Gold
------------------------------
Title: Managing Director
By: Investment Management Company,
as Investment Adviser
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------
Title: Senior Vice President
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW Advisers (Bermuda), Ltd.,
as General Partner
By: /s/ Xxxx X. Gold
------------------------------
Title: Managing Director
By: Investment Management Company,
as Investment Adviser
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------
Title: Senior Vice President
FLEET CORPORATE FINANCE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Title: Senior Vice President
XXXXXXX XXXXX GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
