EXHIBIT 10g
FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment"), dated as of June 8,
1998, among ACG HOLDINGS, INC., a Delaware corporation ("Holdings"),
AMERICAN COLOR GRAPHICS, INC., a New York corporation (the "Borrower"), the
lenders party to the Credit Agreement referred to below on the date hereof
and immediately before giving effect to this Amendment (the "Existing
Lenders"), GENERAL ELECTRIC CAPITAL CORPORATION, as Documentation Agent (in
such capacity, the "Documentation Agent"), XXXXXX XXXXXXX SENIOR FUNDING,
INC., as Syndication Agent (in such capacity, the "Syndication Agent"), and
BANKERS TRUST COMPANY, as Administrative Agent (in such capacity, the
"Administrative Agent"), and each of the lenders listed on Schedule A
hereto (each, a "New Lender" and, collectively, the "New Lenders"). All
capitalized terms used herein and not otherwise defined herein shall have
the respective meanings provided such terms in the Credit Agreement
referred to below.
W I T N E S S E T H :
WHEREAS, Holdings, the Borrower, the Existing Lenders, the
Documentation Agent, the Syndication Agent and the Administrative Agent are
parties to a Credit Agreement, dated as of August 15, 1995 and amended and
restated as of May 8, 1998 (the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit
Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Each Existing Lender hereby sells and assigns to each New
Lender without recourse and without representation or warranty (other than as
expressly provided herein), and each New Lender hereby purchases and assumes
from each Existing Lender, that interest in and to each Existing Lender's rights
and obligations in respect of those Tranches set forth on Schedule B hereto
under the Credit Agreement as of the date hereof which in the aggregate for each
such New Lender represents such New Lender's pro rata share (for each such New
Lender, its "Pro Rata Share") in such Tranches as set forth on such Schedule B
(calculated after giving effect to this Amendment), and such Pro Rata Share
represents all of the outstanding rights and obligations under the Credit
Agreement in respect of the Tranches that are being sold and assigned to each
such New Lender pursuant to this Amendment, including, without limitation, (i)
in the case of any assignment of the outstanding A Term Loans, all rights and
obligations with respect to such New Lender's Pro Rata Share of such outstanding
A Term Loans, (ii) in the case of any assignment of the outstanding B Term
Loans, all rights and obligations with respect to such New Lender's Pro Rata
Share of such outstanding B Term Loans and (iii) in the case of any assignment
of any portion of the Total Revolving Loan Commitments, all rights and
obligations with respect to such New Lender's Pro Rata Share of the Total
Revolving Loan Commitments and of any outstanding Revolving Loans and Letters of
Credit. After giving effect to this Amendment, each Lender's outstanding A Term
Loans, B Term Loans and Revolving Loan Commitment will be as set forth on
Schedule C hereto.
2. In accordance with the requirements of Section 11.6(b) of
the Credit Agreement, on the First Amendment Effective Date (as defined below),
(i) the Credit Agreement shall be amended by deleting Schedule I thereto in its
entirety and by inserting in lieu thereof a new Schedule I in the form of
Schedule C hereto and (ii) the Borrower agrees that it will issue an appropriate
A Term Note, B Term Note and/or Revolving Note to each Lender in conformity with
the requirements of Sections 2.1(a), 2.1(b) and 2.2, respectively, of the Credit
Agreement.
3. Each Existing Lender (i) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of Holdings or
any of its Subsidiaries or the performance or observance by Holdings or any of
its Subsidiaries of any of their respective obligations under the Credit
Agreement or the other Credit Documents to which they are a party or any other
instrument or document furnished pursuant thereto.
4. Each New Lender (i) confirms that it has received a copy of
the Credit Agreement and the other Credit Documents, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Amendment; (ii) agrees that it will, independently
and without reliance upon the Documentation Agent, the Syndication Agent, the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iii) confirms that it is a parent company or an affiliate of an Existing Lender
which is at least 50% owned by such Existing Lender or its parent company or an
Eligible Transferee under Section 11.6 of the Credit Agreement; (iv) appoints
and authorizes the Administrative Agent, the Syndication Agent and the
Collateral Agent to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement and the other Credit Documents as are
delegated to the Administrative Agent, the Syndication Agent and the Collateral
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender; and (vi) in the event such New
Lender is not a commercial bank, represents that either (I) no part of its
acquisition of its Loans or Commitments is made out of assets of any employee
benefit plan, or (II) after consultation, in good faith, with the Borrower and
provision by the Borrower of such information as may be reasonably requested by
such New Lender, the acquisition and holding of such Commitments and Loans does
not constitute a non-exempt prohibited transaction under Section 406 of ERISA
and Section 4975 of the Code or (III) such assignment is an "insurance company
general account," as such term is defined in the Department of Labor Prohibited
Transaction Class Exemption 95-60 (issued July 12, 1995) ("PTCE 95-60"), and, as
of the date of the transfer, there is no "employee benefit plan" with respect to
which the aggregate amount of such general account's reserves and liabilities
for the contracts held by or on behalf of such "employee benefit plan" and all
other "employee benefit plans" maintained by the same employer (and affiliates
thereof as defined in Section V(a)(1) of PTCE 95-60) or by the same employee
organization (in each case determined in accordance with the provisions of PTCE
95-60) exceeds 10% of the total reserves and liabilities of such general account
(as determined under PTCE 95-60) (exclusive of separate account liabilities)
plus surplus as set forth in the National Association of Insurance Commissioners
Annual Statement filed with the state of domicile of such New Lender.
5. Each of the Existing Lenders, the New Lenders and the
Administrative Agent hereby agree that (x) all interest on any New Lender's Pro
Rata Share of the Loans, all Commitment Fees (if any) on such New Lender's Pro
Rata Share of the Total Revolving Loan Commitments, and all Letter of Credit
Fees (if applicable) on such New Lender's participation in all Letters of
Credit, in each case accrued prior to the delivery by such New Lender of the
amount referred to in clause (ii) of Section 13 of this Amendment, shall be for
the account of the respective Existing Lenders and (y) all such interest,
Commitment Fees and Letter of Credit Fees accrued on and after the delivery of
the amount referred to in clause (ii) of such Section 13 shall be for the
account of such New Lender.
6. In accordance with Section 11.6(b) of the Credit Agreement,
on and as of the date upon which each New Lender delivers the amount referred to
in clause (ii) of Section 13 of this Amendment, such New Lender shall become a
"Lender" under, and for all purposes of, the Credit Agreement and the other
Credit Documents and, notwithstanding anything to the contrary in Section 11.12
of the Credit Agreement, the Administrative Agent shall record the transfers
contemplated hereby in the Register. The Administrative Agent hereby waives the
assignment fee referred to in Section 11.6(b) of the Credit Agreement in
connection with the assignments effected hereby.
7. The definition of "Unrestricted Subsidiary" appearing in
Section 1.1 of the Credit Agreement is hereby amended by (i) deleting the word
"and" appearing after the text "(excluding other Unrestricted Subsidiaries)" in
said definition and inserting a comma in lieu thereof and (ii) inserting the
following new clause (d) at the end of the second sentence of said definition:
"and (d) on the date of such designation, such Subsidiary
(except to the extent same is a Subsidiary of an
Unrestricted Subsidiary on such date of designation) does
not own or hold assets with an aggregate value in excess
of $10,000."
8. Section 10 of the Credit Agreement is hereby amended by
inserting the following new Section 10.13 at the end of said Section:
"10.13 Special Provisions Relating to the Responsibilities
of the Collateral Agent. Notwithstanding anything to the
contrary contained in this Agreement or any other Credit
Document, the Administrative Agent agrees to perform all
of the duties delegated to, and to assume all of the
responsibilities of, the Collateral Agent hereunder and
under the other Credit Documents other than the
performance of such ministerial duties relating to the
execution of documents and instruments as may be required
by the Collateral Agent from time to time hereunder and
thereunder (it being understood and agreed that BTCC's
continuing obligation to perform such ministerial duties
as Collateral Agent will be subject to its receipt of a
direction from the Administrative Agent to perform such
duties). The Lenders hereby irrevocably authorize Bankers
Trust Company to act as Collateral Agent for all purposes
of this Agreement and the other Credit Documents and to
take such actions on such Lenders' behalf under the
provisions of this Agreement and the other Credit
Documents and to exercise such powers and perform such
duties as are expressly delegated to the Collateral Agent
by the terms of this Agreement and the other Credit
Documents, together with such other powers as are
reasonably incidental thereto. In consideration of the
Administrative Agent's assumption of the duties and
obligations of the Collateral Agent hereunder and under
the other Credit Documents as specified above, the parties
hereto agree that the Administrative Agent shall be
entitled to the benefits of all of the rights of the
Collateral Agent granted hereunder and under the other
Credit Documents (including, without limitation, all
indemnification rights of the Collateral Agent), it being
understood and agreed that all such indemnification and
other rights shall continue to apply to BTCC as Collateral
Agent notwithstanding the transfer of responsibilities
contemplated by this Section 10.13.
9. Section 11.7 of the Credit Agreement is hereby amended by
inserting the text "its holding or parent company" immediately after the text
"auditors or counsel," appearing in said Section.
10. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
11. 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 the Borrower and the Administrative Agent.
12. 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.
13. Subject to Section 14 of this Amendment, this Amendment
shall become effective on the date (the "First Amendment Effective Date") when
(i) Holdings, the Borrower, the Administrative Agent, the Documentation Agent,
the Syndication Agent, each Existing Lender and each New Lender 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 and (ii) each New Lender shall
have delivered to the Administrative Agent for the account of the relevant
Existing Lender, an amount equal to such New Lender's relevant Pro Rata Share of
the principal amount of the outstanding Loans being assigned to such New Lender.
14. Notwithstanding Section 13 of this Amendment, if for any
reason any New Lender shall not have (i) signed a counterpart hereof and
delivered the same to the Administrative Agent at its Notice Office and (ii)
delivered to the Administrative Agent an amount equal to such New Lender's
relevant Pro Rata Share of the principal amount of the outstanding Loans being
assigned to such New Lender, in each case on or prior to June 9, 1998, then, if
the respective Existing Lender agrees, this Amendment shall become effective
notwithstanding such failure, provided that (x) Schedule C shall be modified to
delete any such New Lender and such New Lender's relevant Pro Rata Share shall
be reallocated to the respective Existing Lenders on a pro rata basis and (y)
the signature pages of this Amendment shall be deemed revised to delete such New
Lender's name therefrom.
15. From and after the First Amendment Effective Date, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
amended hereby.
* * *
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
ACG HOLDINGS, INC.
By:_____________________________________
Name:
Title:
AMERICAN COLOR GRAPHICS, INC.
By:_____________________________________
Name:
Title:
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By:_____________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
Individually and as Documentation Agent
By:_____________________________________
Name:
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
Individually and as Syndication Agent
By:_____________________________________
Name:
Title:
CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC., as Attorney-in-Fact
and on behalf of
First Allmerica Financial Life
Insurance Company,
as Portfolio Manager
By:_____________________________________
Name:
Title:
CYPRESSTREE INVESTMENT PARTNERS I, LTD.,
By: Cypresstree Investment Management
Company, Inc., as Portfolio Manager
By:_____________________________________
Name:
Title:
DEUTSCHE FINANCIAL SERVICES CORPORATION
By:_____________________________________
Name:
Title:
FINOVA CAPITAL CORPORATION
By:_____________________________________
Name:
Title:
FREMONT FINANCIAL CORPORATION
By:_____________________________________
Name:
Title:
OAK HILL SECURITIES FUND, L.P.
By:_____________________________________
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By: Pilgrim America Investments, Inc.,
as its Investment Manager
By:_____________________________________
Name:
Title:
PPM AMERICA SPECIAL INVESTMENTS FUND, L.P.
By: PPM America, Inc.
By:_____________________________________
Name:
Title:
PPM AMERICA SPECIAL INVESTMENTS CBO II, L.P.
By: PPM America, Inc.
By:_____________________________________
Name:
Title:
SANWA BUSINESS CREDIT CORPORATION
By:_____________________________________
Name:
Title:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By:_____________________________________
Name:
Title:
Schedule A
NEW LENDERS
First Allmerica Financial Life Insurance Company 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Cypresstree Investment Partners I, Ltd. 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Deutsche Financial Services Corporation 0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxx Xxxx
Tel: 000-000-0000
Fax: 000-000-0000
FINOVA Capital Corporation 000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Fremont Financial Corporation 0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Oak Hill Securities Fund, L.P. Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Pilgrim America Prime Rate Trust Two Renaissance Square
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxx
Tel: 000-000-0000
Fax: 000-000-0000
PPM America Special Investments Fund, L.P. 000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
PPM America Special Investments CBO II, L.P. 000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Tel.: 000-000-0000
Fax: 000-000-0000
Sanwa Business Credit Corporation Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Coloumb
Tel: 000-000-0000
Fax: 000-000-0000
Transamerica Business Credit Corporation 000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx X-000
Xxx, XX 00000
Attention: Xxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Schedule B
RELEVANT PERCENTAGES
A Term Loan B Term Loan Revolving Loan
Lender Commitment Commitment Commitment
------ ---------- ---------- ----------
Bankers Trust Company 12.26% 12.26%
Xxxxxx Xxxxxxx Senior Funding, Inc. 12.11% 12.11%
General Electric Capital Corporation 17.21% 17.30% 17.21%
First Allmerica Financial Life 6.00%
Insurance Company
Cypresstree Investment Partners I, Ltd. 12.00%
Deutsche Financial Services
Corporation 10.00% 10.70% 10.00%
FINOVA Capital Corporation 12.11% 12.11%
Fremont Financial Corporation 12.11% 12.11%
Oak Hill Securities Fund, L.P. 18.00%
Pilgrim America Prime Rate Trust 18.00%
PPM America Special Investments
Fund, L.P. 12.00%
PPM America Special Investments
CBO II, L.P. 6.00%
Sanwa Business Credit Corporation 12.11% 12.11%
TransAmerica Business Credit
Corporation 12.11% 12.11%
Schedule C
COMMITMENTS
A Term Loan B Term Loan Revolving Loan
Lender Commitment Commitment Commitment
------ ---------- ---------- ----------
Bankers Trust Company $3,065,789.47 $8,584,210.53
Xxxxxx Xxxxxxx Senior Funding, Inc. $3,026,315.79 $8,473,684.21
General Electric Capital Corporation $4,302,631.58 $8,650,000.00 $12,047,368.42
First Allmerica Financial Life $3,000,000.00
Insurance Company
Cypresstree Investment Partners I, Ltd. $6,000,000.00
Deutsche Financial Services Corporation $2,500,000.00 $5,350,000.00 $7,000,000.00
FINOVA Capital Corporation $3,026,315.79 $8,473,684.21
Fremont Financial Corporation $3,026,315.79 $8,473,684.21
Oak Hill Securities Fund, L.P. $9,000,000.00
Pilgrim America Prime Rate Trust $9,000,000.00
PPM America Special Investments Fund, L.P. $6,000,000.00
PPM America Special Investments CBO II, L.P. $3,000,000.00
Sanwa Business Credit Corporation $3,026,315.79 $8,473,684.21
TransAmerica Business Credit Corporation $3,026,315.79 $8,473,684.21
------------- -------------- ---------------
Total $25,000,000.00 $50,000,000.00 $70,000.000.00
