CREDIT AGREEMENT SUPPLEMENT
EXECUTION
COPY
THIS
CREDIT AGREEMENT SUPPLEMENT (this
“Supplement”), dated as of July 9, 2007, is by and
among CENVEO CORPORATION, a Delaware
corporation (the
“Borrower”), CENVEO,
INC., a Colorado corporation
(“Holdings”), the financial
institutions listed on the signature pages of this Supplement as “Supplemental
Lenders” (the “Supplemental Lenders”), and
BANK OF AMERICA, N.A., as administrative agent on
behalf of the
Lenders under the Credit Agreement (as hereinafter defined) (in such capacity,
the “Administrative Agent”).
W
I T N E S S E T H
WHEREAS,
the Borrower, Holdings, the financial institutions party thereto as of the
date
hereof, as lenders (the “Existing Lenders”) and the
Administrative Agent are parties to that certain Credit Agreement dated as
of
June 21, 2006 (as amended by that certain First Amendment to Credit Agreement,
dated as of March 7, 2007, and as otherwise amended, modified, extended,
restated, replaced or supplemented from time to time, the “Credit
Agreement”);
WHEREAS,
the Borrower has requested a $100,000,000 increase in the existing Term C
Facility pursuant to Section 2.14(a) of the Credit Agreement;
and
WHEREAS,
each Existing Lender that executes and delivers this Supplement (each, a
“Participating Lender”) will have agreed to make a new
Term C Commitment, in addition to its existing Commitment, in an aggregate
amount as agreed to by such Participating Lender (the “New
Commitment”).
NOW,
THEREFORE, in consideration of the agreements hereinafter set forth,
and for other good and valuable consideration, the receipt and adequacy of
which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
1.1 Defined
Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed thereto in the Credit
Agreement.
ARTICLE
II
INCREASE
TO THE TERM C FACILITY
2.1 Supplement
of Credit Agreement. Subject to the
satisfaction of the conditions precedent set forth in Section 3.1 below, from
and after the Effective Date (as hereinafter defined), (i) the Credit Agreement
is hereby supplemented in accordance with Section 2.14 thereof to
increase the aggregate Term C Commitments by $100,000,000 to a total of
$698,500,000, and (ii) the amortization of the Term C Loans is amended in
accordance with Section 2.14(e) of the Credit Agreement.
ARTICLE
III
CONDITIONS
TO EFFECTIVENESS
3.1 Closing
Conditions. This Supplement shall become effective as of
the day and year set forth above (the “Effective
Date”) upon satisfaction of the following conditions (in form and
substance reasonably acceptable to the Administrative Agent):
(a) Executed
Supplement. The Administrative Agent shall have received a copy
of this Supplement duly executed by each of the Borrower, Holdings, each
Participating Lender and the Administrative Agent.
(b) Executed
Guarantor Ratification. The Administrative Agent shall have
received an acknowledgment and ratification with respect to this Supplement
executed by each Guarantor.
(c) Acquisition. Contemporaneously
with the making of the additional Term C Loans by the Participating Lenders
to
the Borrower, the acquisition of Madison/Xxxxxx ColorGraphics, Inc., a
California corporation (“Color Graphics”) and its sole
subsidiary Madison/Xxxxxx ColorGraphics Interstate Services, Inc., a California
corporation (“Interstate”) (the
“Acquisition”) shall be
consummated pursuant to
that certain Stock Purchase Agreement, dated as of June 14, 2007, among the
Borrower, Color Graphics and certain sellers party thereto, and no material
provision thereof shall have been waived, amended, supplemented or otherwise
modified, except with the consent of the Administrative Agent.
(d) Executed
Joinder Agreement. The Administrative Agent shall have received a
Joinder Agreement executed by each of Color Graphics and
Interstate.
(e) Notes. The
Administrative Agent shall have received a duly executed Note, for each
Participating Lender requesting a Note.
(f) Authorization
Documents. The Administrative Agent shall have received such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may require evidencing the identity, authority and capacity
of each Responsible Officer thereof authorized to act as a Responsible Officer
in connection with this Supplement.
(g) Legal
Opinions. The Administrative Agent shall have received (i) a
favorable opinion of Xxxxxxx Xxxxx, Esq., General Counsel of Holdings, addressed
to the Administrative Agent and each Lender, and (ii) a favorable opinion of
Xxxxxx Xxxxxxx & Xxxx LLP special New York counsel to the Borrower and
Holdings addressed to the Administrative Agent and each Lender (including,
without limitation, opinions as to the enforceability of this Supplement and
the
Joinder Agreement and non-contravention of (i) the organizational documents
of
the Borrower, Holdings, Color Graphics and Interstate and (ii) Material
Contracts, including the Cadmus Subordinated Notes), in each case in form and
substance satisfactory to the Administrative Agent.
(h) Closing
Certificate. The Administrative Agent shall have received a
closing certificate of a Responsible Officer of the Borrower in the form of
Exhibit A hereto.
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(i) Miscellaneous. All
other documents and legal matters in connection with the transactions
contemplated by this Supplement shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel.
ARTICLE
IV
MISCELLANEOUS
4.1 Supplemented
Terms. On and after the Effective Date, all references
to the Credit Agreement in each of the Loan Documents shall hereafter mean
the
Credit Agreement as supplemented hereby. Except as specifically
supplemented and amended hereby or otherwise agreed, the Credit Agreement is
hereby ratified and confirmed and shall remain in full force and effect
according to its terms.
4.2 Representations
and Warranties of the Borrower and Holdings. Each of the
Borrower and Holdings represents and warrants as follows:
(a) It
has taken all necessary action to authorize the execution, delivery and
performance of this Supplement.
(b) This
Supplement has been duly executed and delivered by such Person and constitutes
such Person’s legal, valid and binding obligations, enforceable in accordance
with its terms, except as such enforceability may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors’ rights generally and
(ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
(c) No
consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is
required in connection with the execution, delivery or performance by such
Person of this Supplement, except for (i) filings and recordings necessary
to
perfect Liens created under the Collateral Documents and (ii) such consents,
approvals, authorizations, orders, filings, registrations and qualifications
that have been duly obtained, taken, given or made and are in full force and
effect.
(d) The
representations and warranties set forth in Article V of the Credit Agreement
are true and correct in all material respects as of the date hereof (except
for
those which expressly relate to an earlier date).
(e) After
giving effect to this Supplement, no event has occurred and is continuing which
constitutes a Default.
(f) Except
as specifically provided in this Supplement, the Obligations are not reduced
or
modified by this Supplement and are not subject to any offsets, defenses or
counterclaims.
4.3 Reaffirmation
of Obligations. Each of the Borrower and Holdings hereby
ratifies the Credit Agreement and acknowledges and reaffirms (a) that it is
bound by all terms of the Credit Agreement applicable to it and (b) that it
is
responsible for the observance and full
3
performance
of its respective Obligations. Holdings hereby acknowledges and
reaffirms its obligations under Article X of the Credit Agreement.
4.4 Loan
Document. This Supplement shall constitute a Loan
Document under the terms of the Credit Agreement.
4.5 Further
Assurances. Each of the Borrower and
Holdings agrees to promptly take such action, upon the reasonable request of
the
Administrative Agent, as is necessary to carry out the intent of this
Supplement.
4.6 Fees
and Expenses. The Borrower agrees to
pay all reasonable and documented out-of-pocket expenses of the Administrative
Agent in connection with this Supplement and the other transactions contemplated
hereunder.
4.7 Entirety. This
Supplement and the other Loan Documents embody the entire agreement among the
parties hereto and supersede all prior agreements and understandings, oral
or
written, if any, relating to the subject matter hereof.
4.8 Counterparts;
Telecopy. This Supplement may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same
instrument. Delivery of an executed counterpart to this Supplement by
telecopy or other electronic means shall be effective as an original and shall
constitute a representation that an original will be delivered.
4.9 GOVERNING
LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
4.10 Successors
and Assigns. This Supplement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
4.11 Consent
to Jurisdiction; Service of Process; Waiver of Jury
Trial. The jurisdiction, services of process and waiver
of jury trial provisions set forth in Sections 11.14 and 11.15 of
the Credit Agreement are hereby incorporated by reference, mutatis
mutandis.
4
IN
WITNESS WHEREOF the parties hereto have caused this Supplement to be
duly executed on the date first above written.
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BORROWER:
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CENVEO
CORPORATION,
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a
Delaware corporation
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By:
/s/ Xxxx X.
Xxxxxxxx
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Name: Xxxx
X. Xxxxxxxx
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Title: CFO
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HOLDINGS:
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a
Colorado corporation
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By:
/s/ Xxxx X.
Xxxxxxxx
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Name: Xxxx
X. Xxxxxxxx
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Title: CFO
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Signature
Page
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ADMINISTRATIVE
AGENT:
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BANK
OF AMERICA, N.A.,
as
Administrative Agent
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By:
/s/ Xxxx Xxxxxxx
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Name: Xxxx
Xxxxxxx
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Title: Vice
President
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PARTICIPATING
LENDERS:
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WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
a Participating Lender
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By:
/s/ Rit X. Xxxx
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Name:
Rit X. Xxxx
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Title:
Director
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