Exhibit 10.31
CONSENT, WAIVER AND AMENDMENT NO. 4
TO
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
This Consent, Waiver and Amendment No. 4 to Second Amended and
Restated Credit Agreement (this "Consent, Waiver and Amendment"), dated as
-----------------------------
of March 24, 2006, amends that certain Second Amended and Restated Credit
Agreement, dated as of March 25, 2004, as amended by Amendment No. 1 to
Second Amended and Restated Credit Agreement, dated as of February 8, 2005,
Amendment No. 2 to Second Amended and Restated Credit Agreement, dated as of
December 23, 2005 and Amendment No. 3 to Second Amended and Restated Credit
Agreement, dated as of January 20, 2006 (as so amended, the "Agreement"),
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among the financial institutions from time to time parties hereto (such
financial institutions, together with their respective successors and
assigns, are referred to hereinafter each individually as a "Lender" and
------
collectively as the "Lenders"), Bank of America, N.A., with an office at 55
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Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, as administrative
agent for the Lenders (in its capacity as agent, the "Agent"), Cenveo, Inc.
-----
(f/k/a Mail-Well, Inc.), a Colorado corporation ("Parent"), Cenveo
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Corporation (f/k/a Mail-Well I Corporation), a Delaware corporation
("Cenveo"), and certain subsidiaries of Cenveo (Cenveo and each such
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subsidiary, individually, a "Borrower", and, collectively, the "Borrowers").
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Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to such terms in the Agreement.
R E C I T A L S
WHEREAS, Parent, the Borrowers, the Lenders and the Agent have
entered into the Agreement;
WHEREAS, the parties are concurrently herewith entering into that
certain Amendment No. 2 to Amended and Restated Security Agreement, dated of
even date herewith (the "Security Agreement Amendment");
----------------------------
WHEREAS, Parent and the Borrowers desire to amend the Agreement in
order to amend and waive certain provisions of the Agreement in connection
with the Lenders' consent to the Supremex Sale (as defined herein) and
related transactions; and
WHEREAS, the Agent and the Lenders are willing to do so, subject to
the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the premises herein contained
and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Agent, the Lenders, Parent and the Borrowers
hereby agree as follows.
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A G R E E M E N T
Section 1. Amendments to the Agreement. The Agent, the Lenders,
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Parent and the Borrowers agree that the Agreement shall be amended as
follows:
A. The defined term "Affiliate" contained in Annex A of the
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Agreement is hereby amended by deleting the phrase "5% or more of the
outstanding equity interest" in its entirety and substituting therefor the
new phrase "10% or more of the outstanding equity interest".
B. The defined term "Permitted Strategic Investment" contained in
Annex A of the Agreement is hereby amended and restated in its entirety to
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read as follows:
"Permitted Strategic Investment" means any investment (including
------------------------------
loans and advances) by Parent or any of its Subsidiaries that conforms
to the following requirements: (i) the Person in whom such investment is
made is in a substantially similar or ancillary line of business as one
or more of the Borrowers, (ii) all transactions related to such
investment shall be consummated in accordance with applicable
Requirements of Law, (iii) such investment shall be non-hostile in
nature, (iv) such investment does not constitute an Acquisition, (v) the
aggregate amount of consideration (other than Capital Stock of Parent)
paid by Parent or any of its subsidiaries for all such investments since
the Closing Date shall not exceed $20,000,000, and (vi) immediately
after giving effect to such investment: (A) no Default or Event of
Default exists or would result therefrom, and, for purposes of this
clause, Parent shall deliver a certificate, signed by a Responsible
Officer of Parent, demonstrating that Parent will continue to be in
compliance with its financial covenants hereunder on a pro forma basis,
taking such investment into account, (B) any investment securities
resulting from such investment shall be owned directly by the Parent or
a Loan Party, and such Person shall have taken all actions required by
the Agent with respect to perfecting the Agent's Liens in any such
investment securities resulting from such investment, and (C) with
respect to any investment where some or all of the consideration paid by
Parent or any of its Subsidiaries is other than Capital Stock of Parent,
Borrowers would have Availability of not less than $50,000,000 (with all
obligations of Borrowers and their Subsidiaries being current) after
giving effect to such investment.
C. Annex A of the Agreement is hereby amended by adding a new
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definition thereto which shall read as follows:
"Supremex Income Fund" means Supremex Income Fund, an
--------------------
unincorporated open-ended trust established under the laws of the
Province of Quebec.
D. Sections 5.3(j) and (k) of the Agreement and hereby amended and
restated in their entirety to read as follows:
2
(j) (1) At least 10 Business Days prior written notice of
any change in any Loan Party's name as it appears in the state of
its incorporation or other organization, state of incorporation or
organization, type of entity, organizational identification number,
or form of organization, trade names under which it will sell
Inventory or create Accounts, or to which instruments in payment of
Accounts may be made payable, and (2) concurrent written notice of
the disposition (including any Permitted Disposition) of any
Eligible Equipment with an orderly liquidation value of $1,000,000
or more, in the aggregate, and (3) written notice within one month
after (y) any disposition (including any Permitted Disposition) of
Eligible Equipment with an orderly liquidation value of less than
$1,000,000, in the aggregate, or other Equipment with a Fair Market
Value of $1,000,000 or more, in the aggregate, or (z) the change in
location of any Collateral with a Fair Market Value of $1,000,000
or more, in the aggregate;
(k) Within 10 Business Days after Parent or any of its
ERISA Affiliates knows or has reason to know, that an ERISA Event
or a prohibited transaction (as defined in Sections 406 of ERISA
and 4975 of the Code), which could reasonably be expected to result
in liability of one or more Loan Parties in excess of $500,000, has
occurred, and, when known, any action taken or threatened by the
IRS, the DOL or the PBGC with respect thereto;
E. Section 6.19(c) of the Agreement is hereby amended and restated
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in its entirety to read as follows:
(i) No ERISA Event has occurred or is reasonably expected
to occur which would reasonably be expected to have a Material
Adverse Effect; (ii) no Pension Plan has any Unfunded Pension
Liability in an amount in excess of $10,000,000; (iii) neither
Parent, nor any of its Subsidiaries, nor any of their ERISA
Affiliates has incurred, or reasonably expects to incur, any
liability (A) under Title IV of ERISA with respect to any Pension
Plan (other than premiums due and not delinquent under Section 4007
of ERISA), (B) under Section 4201or 4243 of ERISA with respect to a
Multi-employer Plan (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such
liability), or (C) as a result of a transaction that could be
subject to Section 4069 or 4212(c) of ERISA, which liability
described in the foregoing clauses (A) through (C), individually or
in the aggregate, could reasonably be expected to exceed
$10,000,000.
F. Section 7.15 of the Agreement is hereby amended and restated in
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its entirety to read as follows:
7.15 Transactions with Affiliates. Except as set forth
----------------------------
below in this Section 7.15, or as explicitly permitted in another
------------
Section of this Credit Agreement, neither Parent nor any Loan Party
shall, sell, transfer, distribute, or pay any money or property,
including, but not limited to, any fees or expenses of
3
any nature (including, but not limited to, any fees or expenses for
management services), to any Affiliate, or lend or advance money or
property to any Affiliate, or invest in (by capital contribution or
otherwise) or purchase or repurchase any stock or indebtedness, or
any property, of any Affiliate, or become liable on any Guaranty of
the indebtedness, dividends, or other obligations of any Affiliate.
Notwithstanding the foregoing, but subject to the limitations set
forth in Sections 7.9, 7.10, 7.12, 7.13, or 7.18, while no Default
------------ ---- ---- ---- ----
or Event of Default has occurred and is continuing Parent and the
Loan Parties may engage in (i) ordinary course cash management
transactions among themselves and with other Affiliates
notwithstanding the failure to charge interest in connection with
such transactions, (ii) Permitted Intercompany Transfers, and (iii)
transactions with Affiliates in the ordinary course of business,
consistent with past practices (if any), and to the extent the
aggregate consideration for such transaction(s), individually or in
the aggregate with respect to a series of related transactions,
exceeds $1,000,000, then in amounts and upon terms fully disclosed
to the Agent, and no less favorable to Parent and such Loan Parties
than would be obtained in a comparable arm's-length transaction
with a third party who is not an Affiliate.
G. Section 7.21 of the Agreement is hereby amended and restated in
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its entirety to read as follows:
7.21 Fiscal Year. Parent shall not (i) except upon 30 days
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prior written notice to the Agent, change its Fiscal Year, and (ii)
permit any of its Subsidiaries to have a fiscal year different from
Parent's.
H. The second sentence of Section 12.11(a) of the Agreement is
hereby amended and restated in its entirety to read as follows:
Except as provided above, the Agent will not release any of the
Agent's Liens without the prior written authorization of all of
the Lenders; provided that the Agent may, in its discretion,
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release the Agent's Liens on Collateral valued in the aggregate
not in excess of $2,000,000 during each Fiscal Year without the
prior written authorization of the Lenders and the Agent may
release the Agent's Liens on Collateral valued in the aggregate
not in excess of $3,000,000 during each Fiscal Year with the
prior written authorization of Required Lenders.
Section 2. Waiver and Consent to Prepayment of Fleet Lease.
-----------------------------------------------
Pursuant to Section 7.14 of the Agreement, neither Parent nor any of its
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Subsidiaries shall voluntarily prepay any Debt. Parent and Borrowers have
informed the Agent that they desire to prepay in full and terminate the Debt
under the Fleet Lease (the "Fleet Lease Prepayment"), and have requested the
----------------------
consent of Agent and the Lenders to such prepayment. Agent and the Lenders
hereby consent to the Fleet Lease Prepayment and waive any Defaults in
connection with the Fleet Lease Prepayment, so long as the amount of the
Fleet Lease Prepayment does not exceed US$12,000,000 and so long as the
prepayment is made from proceeds of the Supremex Inc. sale and related
transactions referred to in Section 3 below. The foregoing waiver shall be
limited
4
precisely as written and shall not be deemed to be a waiver or modification
of any other term or condition of the Agreement, or prejudice any right or
remedy which Agent and the Lenders may now or in the future have under or in
connection with the Agreement.
Section 3. Consent to Sale of Supremex Inc. and Related
--------------------------------------------
Transactions. Subject to the conditions precedent contained in this Consent,
------------
Waiver and Amendment and notwithstanding Sections 7.2, 7.9, 7.13(i), 7.15 or
------------ --- ------- ----
7.26 of the Agreement or any other provision contained therein or in any
----
other Loan Document, the Lenders hereby consent to each of the transactions
set forth in Schedule 1 attached hereto. In order to facilitate the
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consummation of the transactions enumerated in Schedule 1 hereto, the
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Lenders hereby irrevocably authorize the Agent to release any Agent's Liens
upon (i) Cenveo Canada's and Supremex's (as such terms are defined in
Schedule 1 hereto) right, title and interest in the Portland Facility, the
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Omemee Facility and the St. Louis Facility (it being understood and agreed
that the Agent shall, upon the sale of the Portland Facility and the St.
Louis Facility to Cenveo, have a Lien upon Cenveo's right, title and
interest therein pursuant to the Security Agreement), (ii) the Buffalo
Assets (as defined in Schedule 1 hereto), and (iii) the outstanding capital
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stock of Amalco (as defined in the Acquisition Agreement referenced below),
PNG, Innova, Supremex, Cenveo Canada, Cenveo International, Texas LP and
Cenveo West (as such terms are defined in Schedule 1 hereto) that has been
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pledged to Agent for the ratable benefit of the Lenders pursuant to the
Pledge Agreement and/or the Security Agreement, which release shall be
effective immediately and automatically upon the closing of the sale and
purchase of the Shares (as defined in the Acquisition Agreement referenced
below) pursuant to the Acquisition Agreement. The Lenders also hereby
consent to the release of (i) PNG, Innova, Supremex and Cenveo Canada as
Canadian Guarantors (and as "Grantors" under the Canadian Security
Documents), (ii) Cenveo International, Texas LP and Cenveo West as
Guarantors (and as "Grantors" under the Security Agreement), and (iii) all
Liens granted by PNG, Innova, Supremex, Cenveo Canada, Cenveo International,
Texas LP and Cenveo West in favor of the Agent pursuant to the Loan
Documents, which release shall be effective immediately and automatically
upon the closing of the sale and purchase of the Shares (as defined in the
Acquisition Agreement referenced below) pursuant to the Acquisition
Agreement. The Agent is hereby authorized to execute, deliver and/or file
such lien releases, mortgage releases, discharges of security interests,
termination statements and other similar discharge or release documents (in
recordable form if applicable) as are necessary to effectuate such releases.
Cenveo, the Agent and the Lenders acknowledge and agree that Cenveo's right,
title and interest in and to the Vendor Units (as defined in the Acquisition
Agreement) issued to Cenveo by Supremex Income Fund will all be subject to
the pledge and security interest granted to the Agent under the Security
Agreement and the Pledge Agreement, subject to the restrictions on
disposition set forth in Section 20 of the Underwriting Agreement (as
defined in the Acquisition Agreement). Notwithstanding anything to the
contrary in the Agreement, the Pledge Agreement or the Security Agreement,
the Collateral shall not include any shares of any "unlimited liability
company" organized under the laws of the Province of Nova Scotia, Canada,
including, without limitation, the shares of Cenveo XxXxxxx Xxxxxx and Xxxx
Company that are being transferred by Amalco to Cenveo.
Section 4. Consent to Sale of Assets in Xxxxxxxxx White Facility
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and Related Loan. Subject to the conditions precedent contained in this
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Consent, Waiver and Amendment and
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notwithstanding any provision contained in the Agreement or any other Loan
Document, the Lenders hereby consent to (i) a sale by Cenveo of all of the
assets used in its Xxxxxxxxx White facility located in Bloomfield Hills, MI,
for a purchase price consisting of $250,000 in cash and certain other
consideration, and (ii) a one-year, interest-bearing, $1,000,000 loan from
Cenveo to the purchasers of such assets.
Section 5. Consent to Sale of Assets in Chestertown, Maryland and
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Business and Assets in Somerville, Massachusetts. Subject to the conditions
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precedent contained in this Consent, Waiver and Amendment and notwithstanding
any provision contained in the Agreement or any other Loan Document, the
Lenders hereby consent to (i) a sale by Cenveo of the fixtures and building
in its facility located in Chestertown, Maryland for a purchase price of not
less than $1,500,000 in cash, and (ii) a sale by Cenveo of the business and
all assets in its facility located in Somerville, Massachusetts (and, until
the sale thereof, the leasing of the building located at such facility) for
a purchase price of not less than $6,500,000 in cash.
Section 6. Consent to Security Agreement Amendment. Subject to the
---------------------------------------
conditions precedent contained in this Consent, Waiver and Amendment, the
Lenders hereby consent to the Security Agreement Amendment.
Section 7. Conditions. The effectiveness of this Consent, Waiver
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and Amendment is subject to the satisfaction of the following conditions
precedent:
A. Consent, Waiver and Amendment. A fully executed copy of
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this Consent, Waiver and Amendment signed by Parent, the Borrowers, and the
Lenders shall be delivered to the Agent, together with a consent hereto from
the Guarantors;
B. Security Agreement Amendment. A fully executed copy of the
----------------------------
Security Agreement Amendment signed by the Grantors shall be delivered to
the Agent;
C. Acquisition Documents. A fully executed copy of (i) the
---------------------
Acquisition Agreement among Supremex Income Fund, Cenveo and Parent (the
"Acquisition Agreement") and (ii) the Asset Purchase Agreement (as defined
---------------------
in the Acquisition Agreement), each in form and substance satisfactory to
the Agent and signed by all of the parties thereto shall be delivered to the
Agent, together with all schedules, exhibits related thereto and other
related documents.
D. Other Documents. Parent and the Borrowers shall have
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executed and delivered to the Agent such other documents and instruments as
the Agent may reasonably require in furtherance of this Consent, Waiver and
Amendment.
Section 8. Miscellaneous.
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A. Survival of Representations and Warranties. All
------------------------------------------
representations and warranties made in the Agreement or any other document
or documents relating thereto, including, without limitation, any Loan
Document furnished in connection with this Consent, Waiver and Amendment,
shall survive the execution and delivery of this Consent, Waiver and
Amendment and the other Loan Documents, and no investigation by Agent or
Lenders or any
6
closing shall affect the representations and warranties or the right of
Agent or Lenders to rely thereon.
B. Reference to Agreement. The Agreement, each of the Loan
----------------------
Documents, and any and all other agreements, documents or instruments now or
hereafter executed and delivered pursuant to the terms hereof, or pursuant
to the terms of the Agreement as amended hereby, are hereby amended so that
any reference therein to the Agreement shall mean a reference to the
Agreement as amended hereby.
C. Agreement Remains in Effect. The Agreement and the Loan
---------------------------
Documents, as amended hereby, remain in full force and effect and the
Borrowers ratify and confirm their agreements and covenants contained
therein. Parent and the Borrowers hereby confirm that, after giving effect
to this Consent, Waiver and Amendment, no Event of Default or Default exists
as of the effective date thereof.
D. Severability. Any provision of this Consent, Waiver and
------------
Amendment held by a court of competent jurisdiction to be invalid or
unenforceable shall not impair or invalidate the remainder of this Consent,
Waiver and Amendment and the effect thereof shall be confined to the
provision so held to be invalid or unenforceable.
E. APPLICABLE LAW. THIS CONSENT, WAIVER AND AMENDMENT SHALL
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BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS
OPPOSED TO THE CONFLICT OF LAWS PROVISIONS PROVIDED THAT ISSUES WITH RESPECT
TO THE CREATION, PERFECTION, AND ENFORCEMENT OF LIENS UNDER DIVISION 9 OF
THE UCC MAY GIVE EFFECT TO APPLICABLE CHOICE OR CONFLICT OF LAW RULES SET
FORTH IN ARTICLE 9 OF THE UCC) OF THE STATE OF CALIFORNIA; PROVIDED, THAT,
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THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
F. Successors and Assigns. This Consent, Waiver and
----------------------
Amendment is binding upon and shall inure to the benefit of Agent, the
Lenders, Parent and the Borrowers and their respective successors and
assigns; provided, however, that Parent and the Borrowers may not assign or
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transfer any of their rights or obligations hereunder without the prior
written consent of the Lenders.
G. Counterparts. This Consent, Waiver and Amendment may be
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executed in one or more counterparts, each of which when so executed shall
be deemed to be an original, but all of which when taken together shall
constitute one and the same instrument.
H. Headings. The headings, captions and arrangements used
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in this Consent, Waiver and Amendment are for convenience only and shall not
affect the interpretation of this Consent, Waiver and Amendment.
I. NO ORAL AGREEMENTS. THIS CONSENT, WAIVER AND AMENDMENT,
------------------
TOGETHER WITH THE OTHER LOAN DOCUMENTS AS WRITTEN, REPRESENTS THE FINAL
AGREEMENT AMONG THE AGENT, THE LENDERS,
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PARENT AND THE BORROWERS AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE AGENT, THE LENDERS, PARENT AND THE
BORROWERS.
*****
8
IN WITNESS WHEREOF, the parties have executed this Consent, Waiver
and Amendment on the date first above written.
"PARENT"
CENVEO, INC.,
a Colorado corporation
By:___________________________
Name:_________________________
Title:________________________
"BORROWERS"
CENVEO CORPORATION,
a Delaware corporation
By:___________________________
Name:_________________________
Title:________________________
CENVEO SERVICES, LLC,
a Colorado limited liability company
By:___________________________
Name:_________________________
Title:________________________
DISCOUNT LABELS, INC.,
an Indiana corporation
By:___________________________
Name:_________________________
Title:________________________
S-1
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
CENVEO WEST, INC.,
a Delaware corporation
By:___________________________
Name:_________________________
Title:________________________
CENVEO GOVERNMENT PRINTING, INC.,
a Colorado corporation
By:___________________________
Name:_________________________
Title:________________________
S-2
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
The undersigned (the "U.S. Guarantors"), (i) consent to and approve
---------------
the execution and delivery of this Consent, Waiver and Amendment by the
parties hereto, (ii) agree that this Consent, Waiver and Amendment does not
and shall not limit or diminish in any manner the obligations of each of the
U.S. Guarantors pursuant to the guarantees delivered in connection with the
Agreement (the "U.S. Guarantees") by each of the undersigned and that such
---------------
obligations would not be limited or diminished in any manner even if the
U.S. Guarantors had not executed this Consent, Waiver and Amendment, (iii)
agree that this Consent, Waiver and Amendment shall not be construed as
requiring the consent of the U.S. Guarantors in any other circumstance, (iv)
reaffirm each of their obligations under the U.S. Guarantees, and (v) agree
that the U.S. Guarantees remains in full force and effect and each is hereby
ratified and confirmed.
"U.S. GUARANTORS"
CENVEO, INC.,
a Colorado corporation
By:___________________________
Name:_________________________
Title:________________________
CENVEO INTERNATIONAL HOLDINGS, INC.,
a Colorado corporation
By:___________________________
Name:_________________________
Title:________________________
CENVEO TEXAS FINANCE, LP,
a Texas limited partnership
By: Cenveo Corporation,
a Delaware corporation
Its: General Partner
By:___________________________
Name:_________________________
Title:________________________
S-3
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
MMTP HOLDINGS, INC.,
a Colorado corporation
By:___________________________
Name:_________________________
Title:________________________
COLORHOUSE CHINA, INC.,
a Colorado corporation
By:___________________________
Name:_________________________
Title:________________________
CENVEO COMMERCIAL OHIO, LLC,
a Colorado limited liability company
By:___________________________
Name:_________________________
Title:________________________
CENVEO RESALE OHIO, LLC,
a Colorado limited liability company
By:___________________________
Name:_________________________
Title:________________________
S-4
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
The undersigned (the "Canadian Guarantors"), (i) consent to and
-------------------
approve the execution and delivery of this Consent, Waiver and Amendment by
the parties hereto, (ii) agree that this Consent, Waiver and Amendment does
not and shall not limit or diminish in any manner the obligations of each of
the Canadian Guarantors pursuant to the guarantees delivered in connection
with the Agreement (the "Canadian Guarantees") by each of the undersigned
-------------------
and that such obligations would not be limited or diminished in any manner
even if the Canadian Guarantors had not executed this Consent, Waiver and
Amendment, (iii) agree that this Consent, Waiver and Amendment shall not be
construed as requiring the consent of the Canadian Guarantors in any other
circumstance, (iv) reaffirm each of their obligations under the Canadian
Guarantees, and (v) agree that the Canadian Guarantees remains in full force
and effect and each is hereby ratified and confirmed.
"CANADIAN GUARANTORS"
CENVEO ALBERTA FINANCE, LIMITED
PARTNERSHIP, a limited partnership organized
under the laws of the Province of Alberta
By:___________________________
Name:_________________________
Title:________________________
CENVEO XXXXXXX XXXXXX AND XXXX
COMPANY, a company organized under the laws of
the Province of Nova Scotia
By:___________________________
Name:_________________________
Title:________________________
CENVEO MM&T PACKAGING COMPANY,
a company organized under the laws of the Province
of Nova Scotia
By:___________________________
Name:_________________________
Title:________________________
S-5
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
SUPREMEX INC.,
a company organized under the laws of Canada
By:___________________________
Name:_________________________
Title:________________________
CENVEO CANADA LEASING COMPANY INC.,
a company organized under the laws of the Province
of Nova Scotia
By:___________________________
Name:_________________________
Title:________________________
PNG INC.,
a company organized under the laws of the Province
of Ontario
By:___________________________
Name:_________________________
Title:________________________
INNOVA ENVELOPE INC. - ENVELOPPE INNOVA INC.,
a company organized under the laws of the Province
of Ontario
By:___________________________
Name:_________________________
Title:________________________
S-6
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
"AGENT"
BANK OF AMERICA, N.A.,
as the Agent
By:___________________________
Name:_________________________
Title:________________________
S-7
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
"LENDERS"
BANK OF AMERICA, N.A.,
as a Lender
By:___________________________
Name:_________________________
Title:________________________
S-8
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
"LENDERS"
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By:___________________________
Name:_________________________
Title:________________________
S-9
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
"LENDERS"
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By:___________________________
Name:_________________________
Title:________________________
S-10
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
"LENDERS"
JPMORGAN CHASE BANK, N.A.,
as a Lender
By:___________________________
Name:_________________________
Title:________________________
S-11
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
"LENDERS"
XXXXX FARGO FOOTHILL, INC.,
as a Lender
By:___________________________
Name:_________________________
Title:________________________
S-12
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
"LENDERS"
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By:___________________________
Name:_________________________
Title:________________________
S-13
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
"LENDERS"
THE CIT GROUP/BUSINESS CREDIT,
INC., as a Lender
By:___________________________
Name:_________________________
Title:________________________
S-14
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
"LENDERS"
U.S. BANK, NATIONAL ASSOCIATION,
as a Lender
By:___________________________
Name:_________________________
Title:________________________
S-15
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
"LENDERS"
XXXXXXX XXXXX CAPITAL,
a division of Xxxxxxx Xxxxx Business
Financial Services Inc., as a Lender
By:___________________________
Name:_________________________
Title:________________________
S-16
Consent, Waiver and Amendment No. 4
to Second Amended and Restated
Credit Agreement
SCHEDULE 1
Reference is made to the Acquisition Agreement dated as of March
17, 2006 (the "ACQUISITION AGREEMENT") among Cenveo, Inc., a Colorado
corporation ("PARENT"), Cenveo Corporation, a Delaware corporation
("CENVEO"), and Supremex Income Fund, an unincorporated open-ended trust
established under the laws of the Province of Quebec ("SUPREMEX INCOME
FUND"). Capitalized terms used but not defined in this Schedule 1 have the
meanings assigned to them in the Acquisition Agreement.
o Parent will make a CDN$10,000,000 contribution to the
Supremex employee pension plan in the manner described in
Section 5.7 of the Acquisition Agreement.
o Cenveo and Parent shall cause Supremex Inc., a company
organized under the laws of Canada ("SUPREMEX"), to
transfer its loan receivable from Cenveo XxXxxxx Xxxxxx
and Xxxx Company ("MM&T") (currently in the approximate
amount of CDN$18 million) to Cenveo Alberta Finance LP
("CENVEO ALBERTA") in partial satisfaction of a loan
payable (the "SUPREMEX LOAN PAYABLE") by Supremex to
Cenveo Alberta.
o Cenveo and Parent shall cause the continuation of Cenveo
Canada Leasing Company Inc. ("CENVEO CANADA") under the
Canada Business Corporations Act ("CBCA").
o Cenveo and Parent shall cause the Amalgamation (the
amalgamation of Supremex with Cenveo Canada, to form
Amalco) to occur.
o Parent will make a CDN$3,757,000 contribution to the
Supremex employee pension plan in the manner described in
Section 5.7 of the Acquisition Agreement.
o Cenveo and Parent shall cause Cenveo West, Inc. ("CENVEO
WEST"), a wholly-owned subsidiary of Cenveo and the
limited partner of Cenveo Texas Finance LP ("TEXAS LP"),
to be merged into Cenveo.
o Cenveo and Parent shall cause Cenveo International
Holdings, Inc., a wholly-owned subsidiary of Cenveo
("CENVEO INTERNATIONAL"), to be merged into Cenveo.
o Cenveo and Parent shall cause PNG Inc., a company
organized under the laws of the Province of Ontario
("PNG"), and Innova Envelope Inc. - Enveloppe Innova Inc.,
a company organized under the laws of the Province of
Ontario ("INNOVA"), each wholly-owned subsidiaries of
Amalco, to be liquidated.
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o Cenveo and Parent shall cause Amalco to sell its shares
of MM&T to Cenveo for US$6.5 million in cash.
o Cenveo and Parent shall cause Amalco to sell to Cenveo
certain real property and improvements located in
Portland, Oregon (the "PORTLAND FACILITY") and St. Louis,
Missouri (the "ST. LOUIS FACILITY") for US$11 million in
the aggregate.
o Amalco shall transfer a facility it owns in Omemee,
Ontario to an affiliate of Parent for nominal
consideration.
o Amalco will repay all its loans and advances payable other
than the loan payable to Alberta Finance LC as of the date
of the Acquisition Agreement.
o Supremex Income Fund shall cause AcquisiCo (4273681 Canada
Inc., a corporation organized under the CBCA) to be
organized and shall subscribe for 100 shares of AcquisiCo
for nominal consideration.
o Supremex Income Fund shall cause AcquisiCo to cause a new
Delaware corporation ("BUFFALO ENVELOPE INC.") to be
organized and shall cause AcquisiCo to subscribe for the
common stock of Buffalo Envelope Inc. (the capital stock
so acquired by AcquisiCo shall constitute all of the
outstanding capital stock of Buffalo Envelope Inc.) for
nominal consideration.
o Supremex Income Fund shall enter into a cost support
agreement with AcquisiCo, in form and substance
satisfactory to Cenveo and Parent, pursuant to which
AcquisiCo shall agree to pay all expenses incurred in
connection with the public offering of Units pursuant to
the Underwriting Agreement (including, without limitation,
the transactions contemplated by the Acquisition Agreement
and the fees of the underwriters under the Underwriting
Agreement).
o Supremex Income Fund, Cenveo and Parent shall cause the
closing under the Asset Purchase Agreement to occur (the
assets sold pursuant thereto being the "BUFFALO ASSETS").
o Cenveo shall sell to Supremex Income Fund all the shares of
Amalco.
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