THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.1
THIRD
AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT
AGREEMENT (this “Amendment”), dated as
of April 24, 2009, 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 Amendment as “Lenders” (the
“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”), Swing Line Lender and L/C Issuer (as such terms are defined in
the Credit Agreement).
W
I T N E S S E T H
WHEREAS, the Borrower,
Holdings, the Lenders and the Administrative Agent are parties to that certain
Credit Agreement dated as of June 21, 2006, as amended by the First Amendment to
Credit Agreement, dated as of March 7, 2007, and the Second Amendment to Credit
Agreement, dated as of August 27, 2007 (as so amended and as further amended,
modified, extended, restated, replaced, or supplemented from time to time to but
excluding the date hereof, the “Existing Credit
Agreement”);
WHEREAS, the Borrower has
requested that the Required Lenders amend certain provisions of the Credit
Agreement; and
WHEREAS, the Required Lenders
are willing to make such amendments to the Credit Agreement, subject to the
terms and conditions set forth herein.
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 Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed thereto in the Existing Credit Agreement as amended hereby (as so
amended and as otherwise amended, modified, extended, restated, replaced, or
supplemented from time to time, the “Credit
Agreement”).
ARTICLE
II
AMENDMENTS
TO CREDIT AGREEMENT
2.1 Amendments
to Credit Agreement. Subject to the
satisfaction of the conditions precedent set forth in Section 4.1 below,
from and after the Third Amendment Effective Date (as hereinafter defined), the
Existing Credit Agreement is hereby amended as follows:
(a) The
definition of “Acquisition Debt”
contained in Section 1.01 of the Existing Credit Agreement is amended by
inserting the phrase “or Section 7.02(m)”
immediately after the reference to “Section
7.02(j)”.
(b) The
definition of “Applicable Commitment Fee
Percentage” contained in Section 1.01 of the Existing Credit Agreement is
amended and restated in its entirety to read as follows:
“Applicable Commitment Fee
Percentage” means, at any time, in respect of the Revolving Credit
Facility, (a) from the Closing Date to the Third Amendment Effective Date, the
rate per annum determined in accordance with the definition of “Applicable
Commitment Fee Percentage” set forth in this Section 1.01 prior to the
effectiveness of the Third Amendment and (b) thereafter, 0.75% per
annum.
(c)
The last
sentence of the definition of “Applicable
Percentage” contained in Section 1.01 of the Existing Credit Agreement is
amended by deleting the phrase “set forth opposite the name of such Lender on
Schedule 2.01
or in the Assignment and Assumption or Credit Agreement Supplement pursuant to
which such Lender becomes a party hereto” in its entirety and substituting
therefor the new phrase “set forth opposite the name of such Lender on Schedule 2.01 or in
the Assignment and Assumption, Credit Agreement Supplement or Accession and
Amendment Agreement pursuant to which such Lender becomes a party
hereto”.
(d) The
definition of “Applicable Rate”
contained in Section 1.01 of the Existing Credit Agreement is amended and
restated in its entirety to read as follows:
“Applicable Rate”
means, in respect of each Facility, (a) from the Closing Date to the Third
Amendment Effective Date, the rate per annum determined in accordance with the
definition of “Applicable Rate” set forth in this Section 1.01 prior to the
effectiveness of the Third Amendment and (b) thereafter, the applicable
percentage per annum set forth below determined by reference to the Consolidated
Leverage Ratio as set forth in the most recent Compliance Certificate received
by the Administrative Agent pursuant to Section 6.02(b):
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Applicable
Rate
|
|||
Pricing
Level
|
Consolidated
Leverage Ratio
|
Eurodollar
Rate
(Letters
of Credit)
|
Base
Rate
|
1
|
≥
4.00:1
|
4.50%
|
3.50%
|
2
|
<
4.00:1
|
4.00%
|
3.00%
|
Any
increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to
Section 6.02(b); provided, however, that if a
Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level 1 shall apply as of the first Business Day
after the date on which such Compliance Certificate was required to have been
delivered (provided, that on the
first Business Day immediately following the date on which such Compliance
Certificate is delivered to the Administrative Agent, any such increase or
decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective).
(e) The
definition of “Base
Rate” contained in Section 1.01 of the Existing Credit Agreement is
amended and restated in its entirety as follows:
“Base Rate” means, for
any day, a fluctuating rate per annum equal to the highest of (a) the Federal
Funds Rate plus
1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its “prime rate,” and (c) the Eurodollar
Rate for an Interest Period of one month plus
1.00%. The “prime rate” is a rate set by Bank of America based upon
various factors including Bank of America’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced
rate. Any change in the Base Rate due to a change in the “prime rate”
or the Federal Funds Rate shall take effect at the opening of business on the
day specified in the public announcement of such change. For the
purposes of subsection (c) above, the Eurodollar Rate shall be determined daily
and any change in the Eurodollar Rate shall take effect on the day of such
change.
(f) Subsection
(c)(i) of the definition of “Consolidated Adjusted
EBITDA” contained in Section 1.01 of the Existing Credit Agreement is
amended by deleting the phrase “cash restructuring, integration, impairment and
related fees, expenses and charges in an aggregate amount of up to $20,000,000
incurred during the fiscal year ending December 31, 2007” in its entirety and
substituting therefor the new phrase “cash restructuring, integration,
impairment and related fees, expenses and charges in an aggregate amount of up
to (A) $20,000,000 incurred during the fiscal year ending December 31, 2007, (B)
$25,000,000 incurred during the fiscal year ending December 31, 2009 and (C)
$25,000,000 incurred during the fiscal year ending December
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31, 2010
(provided, for
the avoidance of doubt, that any of the foregoing amounts not incurred during
the fiscal year specified in clauses (A) – (C) may not be carried over in any
succeeding fiscal year)”.
(g) The
definition of “Defaulting Lender” in
Section 1.01 of the Existing Credit Agreement is amended and restated in its
entirety as follows:
“Defaulting Lender”
means any Lender (i) that has failed to fund any portion of the Loans required
to be funded by it hereunder (each such Loan, a “Defaulted Loan”)
within three Business Days of the date required to be funded by it hereunder,
(ii) that has otherwise failed to pay over to the Administrative Agent, the
Swing Line Lender, the L/C Issuer or any other Lender any other amount required
to be paid by it hereunder (each such payment, a “Defaulted Payment”)
within three Business Days of the date when due, unless the subject of a good
faith dispute, or (iii) as to which a Distress Event has occurred, in each case
in clauses (i) and (ii) above, for so long as the applicable Default Period is
in effect.
(h) The first
sentence of the definition of “Eurodollar Rate” in
Section 1.01 of the Existing Credit Agreement is hereby amended and restated in
its entirety as follows:
“Eurodollar Rate”
means, for any Interest Period with respect to a Eurodollar Rate Loan, the rate
per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to (i) such Interest
Period or (ii) three (3) months, whichever results in the higher Eurodollar
Rate.
(i) The
definition of “Interest Period” in
Section 1.01 of the Existing Credit Agreement is hereby amended by deleting in
its entirety the phrase “ending on the date one, two, three or six months
thereafter” and substituting therefor the new phrase “ending on the date one,
two or three months thereafter”.
(j) Subsection
(b) in the definition of “Net Cash Proceeds”
contained in Section 1.01 of the Existing Credit Agreement is amended by
deleting the phrase “the incurrence or issuance of any Indebtedness” in its
entirety and substituting therefor the new phrase “the issuance of any Equity
Interests or the incurrence or issuance of any Indebtedness, in each
case”.
(k) The
definition of “Revolving Credit
Commitment” contained in Section 1.01 of the Existing Credit Agreement is
amended by deleting the phrase “in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto” in its entirety and
4
substituting
therefor the new phrase “in the Assignment and Assumption or the Accession and
Amendment Agreement pursuant to which such Lender becomes a party
hereto”.
(l) The
following new definitions are added to Section 1.01 of the Existing Credit
Agreement in the appropriate alphabetical order:
“Accession and Amendment
Agreement” means an Accession and Amendment Agreement entered into by a
New Lender, the Administrative Agent and the Borrower, in substantially the form
of Exhibit
M.
“Default Amount”
means, with respect to any Revolving Credit Lender that is a Defaulting Lender,
the aggregate Outstanding Amount of the Defaulted Loans (if any) of such
Defaulting Lender.
“Default Period”
means, with respect to any Defaulting Lender (in the case of clauses (i), (ii)
and (iii) below) or any Impacted Lender (in the case of clause (iv)
below),
(i) in
the case of any Defaulted Loan, the period commencing on the date the applicable
Defaulted Loan was required to be extended to the Borrower under this Agreement
and ending on the earlier to occur of the following: (x) the date on which (A)
the Default Amount with respect to such Defaulting Lender has been reduced to
zero and (B) such Defaulting Lender shall have delivered to the Borrower and the
Administrative Agent a written reaffirmation (in form and substance satisfactory
to the Borrower and the Administrative Agent) of its intention to honor all of
its obligations as a Lender under this Agreement and the other Loan Documents
(including, without limitation, its obligations hereunder with respect to its
Commitment); and (y) the date on which the Borrower (so long as no Event of
Default has occurred and is continuing), the Administrative Agent and the
Required Lenders (and not including such Defaulting Lender in any such
determination) agree (in their sole and absolute discretion) in writing to
suspend or terminate the Default Period with respect to the Defaulted Loans such
Defaulting Lender (provided, that any
such suspension shall be in effect only for such period as may be agreed by such
Persons, and the Default Period with respect to the Defaulted Loans of such
Defaulting Lender shall resume immediately following the end of such
period);
(ii) in
the case of any Defaulted Payment, the period commencing on the date the
applicable Defaulted Payment was required to have been paid to the
Administrative Agent, the Swing Line Lender, the L/C Issuer or any other Lender
under this Agreement and ending on the earlier to occur of the following: (x)
the date on which (A) such Defaulted Payment has been paid (whether by the
funding of such Defaulted Payment by such Defaulting Lender or by the
application of any amount pursuant to Section
5
11.23(a))
to the Administrative Agent, the Swing Line Lender, the L/C Issuer or such other
Lender (or, to the extent that the Borrower was required to pay such Defaulted
Payment to any such Person pursuant to the terms of this Agreement, to the
Borrower), as applicable, together with interest thereon for each day
from and including the date such Defaulted Payment was required to have been
paid by such Defaulting Lender to but excluding the date of payment thereof, at
the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with its then-applicable policies regarding
interbank compensation and (B) such Defaulting Lender shall have delivered to
the Borrower and the Administrative Agent a written reaffirmation (in form and
substance satisfactory to the Borrower and the Administrative Agent) of its
intention to honor all of its obligations as a Lender under this Agreement and
the other Loan Documents (including, without limitation, its obligations
hereunder with respect to such payments; and (y) the date on which the Borrower
(so long as no Event of Default has occurred and is continuing), the
Administrative Agent, the Swing Line Lender, the L/C Issuer and any such other
Lender agree (in their sole and absolute discretion) in writing to suspend or
terminate the Default Period with respect to the Defaulted Payments of such
Defaulting Lender (provided, that any
such suspension shall be in effect only for such period as may be agreed by such
Persons, and the Default Period with respect to the Defaulted Payments of such
Defaulting Lender shall resume immediately following the end of such
period);
(iii) in
the case of any Distress Event determined by the Administrative Agent (in its
good faith judgment) or the Required Lenders (in their respective good faith
judgment) to exist with respect to such Defaulting Lender (it being understood
and agreed that the Administrative Agent shall make such determination promptly
after being requested to do so by the Borrower or any Lender), the period
commencing on the date that the applicable Distress Event was so determined to
exist and ending on the earlier to occur of the following: (x) the date on which
(A) such Distress Event is determined by the Administrative Agent (in its good
faith judgment) or the Required Lenders (in their respective good faith
judgment) to no longer exist and (B) such Defaulting Lender shall have delivered
to the Borrower and the Administrative Agent a written reaffirmation (in form
and substance satisfactory to the Borrower and the Administrative Agent) of its
intention to honor all of its obligations as a Lender under this Agreement and
the other Loan Documents (including, without limitation, its obligations
hereunder with respect to its Commitment); and (y) such date as the Borrower (so
long as no Event of Default has occurred and is continuing), the Administrative
Agent, the Swing Line Lender and the L/C Issuer agree (in their sole and
absolute discretion) in writing to suspend or terminate the Default
Period with
6
respect
to the Distress Event applicable to such Defaulting Lender (provided, that any
such suspension shall be in effect only for such period as may be agreed by such
Persons, and the Default Period with respect to the Distress Event applicable to
such Defaulting Lender shall resume immediately following the end of such
period); and
(iv) the
period commencing on the date of the event giving rise to such Lender’s status
as an Impacted Lender (each, an “Impacted Lender
Event”) and ending on the earlier to occur of (x) the date on which (A)
such Impacted Lender Event is determined by (1) the Borrower (in its good faith
judgment) and (2) the Administrative Agent (in its good faith judgment) or the
Required Revolving Lenders (in their respective good faith judgment) to no
longer exist and (B) such Impacted Lender shall have delivered to the Borrower
and the Administrative Agent a written reaffirmation (in form and substance
satisfactory to the Borrower and the Administrative Agent) of its intention to
honor all of its obligations as a Lender under this Agreement and the other Loan
Documents (including, without limitation, its obligations hereunder with respect
to its Commitment), and (y) such date as the Borrower (so long as no Event of
Default has occurred and is continuing), the Administrative Agent, the Swing
Line Lender and the L/C Issuer agree (in their sole and absolute discretion) in
writing to suspend or terminate the Default Period with respect to the Impacted
Lender Event applicable to such Impacted Lender (provided, that any such
suspension shall be in effect only for such period as may be agreed by such
Persons, and the Default Period with respect to the Impacted Lender Event
applicable to such Impacted Lender shall resume immediately following the end of
such period).
“Defaulted Loan” has
the meaning specified in the definition of “Defaulting
Lender”.
“Defaulted Payment”
has the meaning specified in the definition of “Defaulting
Lender”.
“Designated Lenders”
means the collective reference to (a) any Defaulting Lenders and (b) any
Impacted Lenders with respect to which the Borrower has been required to provide
cash collateral or other credit support to the L/C Issuer or the Swing Line
Lender, as the case may be, or otherwise as a result of which the Borrower
cannot obtain a Letter of Credit or a Swing Line Loan hereunder.
“Distress Event”
means, with respect to any Person (each, a “Distressed Person”),
(i) a voluntary or involuntary case (or comparable proceeding) has been
commenced with respect to such Person under any Debtor Relief Law, (ii) a
custodian, conservator, receiver or similar official has been appointed for such
Person or for any substantial part of such Person’s assets, or (iii) such Person
has made a general assignment for the benefit of creditors or has otherwise
been
7
adjudicated as, or determined by any Governmental Authority having
regulatory authority over such Person or its assets to be, insolvent or
bankrupt; provided, that a
Lender shall not be a Distressed Person solely as the result of the acquisition
or ownership of an equity interest in such Lender or any Person controlling such
Lender or the exercise of control over a Lender or any Person controlling such
Lender by a Governmental Authority or instrumentality
thereof.
“Distressed Person”
has the meaning specified in the definition of “Distress
Event”.
“Impacted Lender”
means any Revolving Credit Lender (a) that has given written notice to the
Borrower, the Administrative Agent, the Swing Line Lender, the L/C Issuer or any
Lender or has otherwise publicly announced that such Revolving Credit Lender
believes it will become, or that fails following inquiry promptly to provide to
the Borrower, the Administrative Agent, the Swing Line Lender or the L/C Issuer
making such inquiry reasonably satisfactory assurance that such Revolving Credit
Lender will not become, a Defaulting Lender, (b) as to which the Borrower, the
Administrative Agent, the Swing Line Lender or the L/C Issuer has a good faith
belief that such Revolving Credit Lender has defaulted more than once in
fulfilling its funding obligations (as a lender, letter of credit issuer or
issuer of bank guarantees and including, but not limited to, funding or paying
when due loan requests, swing line participations, letter of credit
participations, pro rata sharing obligations and expense and indemnification
obligations) under any other syndicated credit facility and such Revolving
Credit Lender shall not have provided assurances satisfactory to the Borrower,
the Administrative Agent, the Swing Line Lender and the L/C Issuer that despite
such defaults such Revolving Credit Lender will not become a Defaulting Lender
hereunder, (c) as to which a Distress Event has occurred with respect to any
Affiliate of such Revolving Credit Lender that directly or indirectly controls
such Revolving Credit Lender or (d) after the Third Amendment Effective Date, as
to which such Revolving Credit Lender or any Affiliate of such Revolving Credit
Lender that directly or indirectly controls such Revolving Credit Lender has
consummated or entered into a commitment to consummate a forced (in the good
faith judgment of the Administrative Agent) liquidation, merger, sale of assets
or other transaction resulting, in the good faith judgment of the Administrative
Agent, in a change of ownership or operating control of such Person supported in
whole or in part by guaranties, assumption of liabilities or other comparable
credit support of (including without limitation the nationalization or
assumption of ownership or operating control by) any Governmental Authority and
the Administrative Agent (in its good faith judgment) or the Required Lenders
(in their respective good faith judgment) believe that such event increases the
risk that such Revolving Credit Lender could default in performing its
obligations hereunder for so long as the Administrative Agent (in its good faith
judgment) or the Required Lenders (in their respective good faith judgment) so
believe (it being understood and agreed that the Administrative Agent shall make
any
8
determination
under this clause (d) promptly after being requested to do so by the Borrower or
any Lender); provided, that no
Revolving Credit Lender shall be an Impacted Lender solely as the result of the
acquisition or ownership of an equity interest in such Revolving Credit Lender
or any Person controlling such Revolving Credit Lender or the exercise of
control over such Revolving Credit Lender or any Person controlling such
Revolving Credit Lender by a Governmental Authority or instrumentality
thereof.
“Increasing Lender”
has the meaning specified in Section
2.01(d).
“Increasing Lender
Agreement” means an Increasing Lender Agreement entered into by an
Increasing Lender, the Administrative Agent and the Borrower, in substantially
the form of Exhibit
N.
“New Lender” has the
meaning specified in Section
2.01(c).
“Pro Forma Adjustment
Compliance Certificate” means a certificate substantially in the form of
Exhibit
O.
“Third Amendment”
means the Third Amendment to Credit Agreement, dated as of April 24, 2009, by
and among the Borrower, Holdings, the Lenders party thereto, the Administrative
Agent, the Swing Line Lender and the L/C Issuer.
“Third Amendment Effective
Date” means April 24, 2009.
(m) Section
1.03(c)(i) of the Existing Credit Agreement is amended by deleting the phrase
“under the definitions of “Applicable Rate” and “Applicable Commitment Fee
Percentage”” in its entirety and substituting therefor the new phrase “under the
definition of “Applicable Rate””.
(n) The last
sentence of Section 1.03(c) of the Existing Credit Agreement is amended and
restated in its entirety to read as follows:
“Pro
Forma Basis” may also include such adjustments for expected cost savings as
forecasted by the Borrower in a reasonable manner with appropriate supporting
documentation and representations by management, reasonably satisfactory to the
Administrative Agent; provided, that
following the Third Amendment Effective Date, (i) “Pro Forma Basis” shall not
include any expected cost savings arising from (A) any Acquisition of property
by any Loan Party or any of its Subsidiaries from any Affiliate thereof or (B)
any Disposition of any Property by any Loan Party or any of its Subsidiaries to
any Affiliate thereof, and (ii) prior to taking into account any such expected
cost savings in calculating any financial ratio or financial amount pursuant to
this paragraph, the Borrower shall deliver to the Administrative Agent a Pro
Forma Adjustment Compliance Certificate.
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(o) Section
2.01 of the Existing Credit Agreement is amended by (i) renumbering the second
clause (iii) of Section 2.01(a) as clause (iv) and (ii) adding the following new
subsections (b), (c), (d), (e) and (f) at the end thereof:
(b) Notwithstanding
anything in Section
11.01 to the contrary, this Agreement may be amended, pursuant to
subsection (c) and/or subsection (d) below, from time to time following the
Third Amendment Effective Date and during the Availability Period, to increase
the Revolving Credit Commitments, at the discretion of the Borrower, pursuant to
one or more Accession and Amendment Agreements and/or Increasing Lender
Agreements, as applicable, entered into by the Borrower, the Administrative
Agent and each Eligible Assignee that shall agree to provide an additional or
increased Revolving Credit Commitment, without the consent of any other Lender;
provided, that
(i) after giving effect to any such increase, the aggregate amount of the
Revolving Credit Commitments shall not exceed $200,000,000, (ii) no Default
shall have occurred and be continuing at the time of any such increase and the
Borrower shall be in compliance with each of the financial covenants set forth
in Section 7.11
on a Pro Forma Basis after giving effect to such increase in Revolving Credit
Commitments and any Revolving Credit Loans made on such date, (iii) the
representations and warranties of the Borrower and each other Loan Party
contained in Article
V or any other Loan Document or which are contained in any document
furnished at any time under or in connection with the Loan Documents shall be
true and correct in all material respects on and as of the date of any such
increase, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date, and except that for
purposes of this clause (iii), the representations and warranties contained in
Sections
5.05(a) and (b) shall be deemed
to refer to the most recent statements furnished pursuant to Sections 6.01(a) and
(b),
respectively, and (iv) no Revolving Credit Lender shall have any obligation to
increase its Revolving Credit Commitment nor shall the Revolving Credit
Commitment of any Revolving Credit Lender be increased without the consent of
such Revolving Credit Lender in its sole discretion.
(c) In
the event that the Revolving Credit Commitments shall be increased at any time
following the Third Amendment Effective Date in accordance with subsection (b)
above by the addition of one or more Eligible Assignees (other than the
then-existing Revolving Credit Lenders) (each, a “New Lender”), each
New Lender shall execute and deliver to the Administrative Agent an Accession
and Amendment Agreement. Upon the execution and delivery of an
Accession and Amendment Agreement by a New Lender and the other parties thereto,
such New Lender shall automatically become a Revolving Credit Lender hereunder
with a Revolving Credit Commitment equal to the amount set forth opposite its
name on the signature pages of such Accession and Amendment
Agreement.
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(d) In
the event that any Revolving Credit Lender shall agree (in its sole and absolute
discretion) to increase its Revolving Credit Commitment (an “Increasing Lender”)
at any time following the Third Amendment Effective Date in accordance with
subsection (b) above, such Increasing Lender shall execute and deliver to the
Administrative Agent an Increasing Lender Agreement. Upon the
execution and delivery of an Increasing Lender Agreement by an Increasing Lender
and the other parties thereto, the Revolving Credit Commitment of such
Increasing Lender shall automatically increase to the amount set forth opposite
its name on the signature pages of such Increasing Lender
Agreement.
(e) The
Administrative Agent shall promptly notify the Lenders of each New Lender and
Increasing Lender, each New Lender’s and Increasing Lender’s Revolving Credit
Commitment and the Applicable Percentage of each Revolving Credit Lender after
taking into account the Revolving Credit Commitment of each New Lender and
Increasing Lender.
(f) On
the effective date of each Accession and Amendment Agreement and Increasing
Lender Agreement, (i) each New Lender and Increasing Lender shall purchase by
assignment from the other Revolving Credit Lenders (and such other Revolving
Credit Lenders shall assign to the New Lenders and Increasing Lenders) such
portion of the Revolving Credit Loans and L/C Advances (if any) owing to them as
shall be designated by the Administrative Agent such that, after giving effect
to all such purchases and assignments, the outstanding Revolving Credit Loans
and L/C Advances owing to each Revolving Credit Lender shall equal such
Revolving Credit Lender’s Applicable Percentage of the aggregate amount of
Revolving Credit Loans and L/C Advances owing to all Revolving Credit Lenders,
and (ii) the participations of the Revolving Credit Lenders in the L/C
Obligations and outstanding Swing Line Loans shall be redetermined based on each
Revolving Credit Lender’s Applicable Revolving Credit Percentage (as if the
outstanding Letters of Credit had been issued, the Unreimbursed Amounts had been
paid by the L/C Issuer, and the Swing Line Loans had been advanced by the Swing
Line Lender, in each case on such effective date).
(p) Section
2.03(a)(iii)(F) of the Existing Credit Agreement is amended and restated in its
entirety as follows:
(F) a
default of any Lender’s obligation to fund under Section 2.03(c)
exists or otherwise during any Default Period with respect to a Defaulting
Lender or an Impacted Lender, unless the L/C Issuer has entered into
satisfactory arrangements with the Borrower or such Lender to eliminate the L/C
Issuer’s risk with respect to such Lender or such Lender otherwise has provided
satisfactory assurance to the L/C Issuer that such Lender will satisfy all of
its obligations under Section
2.03.
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(q) Section
2.03(i) of the Existing Credit Agreement is amended by deleting the phrase “for
the account of each Revolving Credit Lender” in its entirety and substituting
therefor the new phrase “for the account of each Revolving Credit Lender (except
as set forth in Section 11.23(b))”.
(r) Section
2.04(b) of the Existing Credit Agreement is amended by inserting the following
sentence at the end of the paragraph:
Notwithstanding
anything herein to the contrary, the Swing Line Lender shall have no obligation
to honor any Swing Line Loan Notice or fund any Swing Line Loan at any time a
default of any Revolving Credit Lender’s obligation to fund under Section 2.04(c)
exists or otherwise at any time during any Default Period with respect to any
Revolving Credit Lender that is a Defaulting Lender or Impacted Lender, unless
the Swing Line Lender has entered into satisfactory arrangements with the
Borrower or such Revolving Credit Lender to eliminate the Swing Line Lender’s
risk with respect to such Lender or such Lender otherwise has provided
satisfactory assurance to the Swing Line Lender that such Lender will satisfy
all of its obligations under Section
2.04.
(s) Section
2.05(b)(ii) of the Existing Credit Agreement is amended by deleting the phrase
“50% of Excess Cash Flow” in its entirety and substituting therefor the new
phrase “50% of Excess Cash Flow (for each fiscal year ending on or before
January 3, 2009) or 75% of Excess Cash Flow (for each fiscal year ending after
January 3, 2009)”.
(t) Section
2.05(b)(v) of the Existing Credit Agreement is amended and restated in its
entirety to read as follows:
(v) Debt and Equity
Issuances. (A) Upon the incurrence or issuance by any Loan
Party or any of its Subsidiaries of any Indebtedness (other than permitted
Acquisition Debt and other Indebtedness expressly permitted to be incurred or
issued pursuant to Sections
7.02(a) through (i) and Sections 7.02(k) and
(l)), the
Borrower shall prepay an aggregate principal amount of Loans equal to 100% of
all Net Cash Proceeds received therefrom immediately upon receipt thereof by
such Loan Party or such Subsidiary; provided, however, that if the
Consolidated Leverage Ratio (calculated on a Pro Forma Basis based on the most
recently delivered Compliance Certificate and financial statements delivered
pursuant to Section 6.01(a)
or (b)) is less
than or equal to 3.50 to 1.0, no prepayment under this Section 2.05(b)(v)(A)
shall be required.
(B) Upon
the issuance by any Loan Party or any of its Subsidiaries of any Equity
Interests (other than any Equity Interests issued to any Loan Party or any of
its Subsidiaries) which results in the realization by such Person of Net Cash
Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal
to 50% of such Net Cash Proceeds within two (2) Business Days of receipt thereof
by such Person; provided, however, that, with
respect to any Net Cash Proceeds
12
realized
in connection with an issuance of Equity Interests described in this Section
2.05(b)(v)(B), at the election of the Borrower (as notified by the
Borrower to the Administrative Agent no more than two (2) Business Days after
the date of such issuance), and so long as no Default shall have occurred and be
continuing, such Loan Party or such Subsidiary may utilize all or any portion of
such Net Cash Proceeds to make one or more Acquisitions permitted under Section 7.03(h)
(including, without limitation, by contributing such Net Cash Proceeds to one or
more of its Subsidiaries so that such Subsidiaries may make such Acquisitions)
so long as within 90 days after the receipt of such Net Cash Proceeds, such
Acquisitions shall have been consummated (as certified by the Borrower in
writing to the Administrative Agent); and provided further, however, that (x)
immediately upon the occurrence of an Event of Default under any of Sections 8.01(a),
(e), (f) or (g), (y) no more than
ten (10) Business Days after the occurrence of any Event of Default not
otherwise described in the foregoing clause (x) (unless such Event of Default
has been waived in accordance with Section 11.01), or (z) immediately upon the
lapse of such 90-day period, as the case may be, 100% of any such Net Cash
Proceeds that have not then been applied to make such Acquisition or
Acquisitions shall be applied to the prepayment of the Loans as set forth in
this Section
2.05(b)(v)(B).
(u) Section
2.09(a) of the Existing Credit Agreement is amended by deleting the phrase “for
the account of each Revolving Credit Lender” in its entirety and substituting
therefor the new phrase “for the account of each Revolving Credit Lender (except
as set forth in Section
11.23(b))”.
(v) The first
sentence of Section 2.10 of the Existing Credit Agreement is amended by deleting
the phrase “when the Base Rate is determined by Bank of America’s ‘prime rate’”
in its entirety.
(w) Section
2.14 of the Existing Credit Agreement is amended by adding the following new
subsection (j) at the end thereof:
(j) Notwithstanding
the foregoing provisions of this Section 2.14 or any
other provision contained herein, (i) the Borrower shall not be permitted to
request an increase in any Term Facility pursuant to this Section 2.14 at any
time on or after the Third Amendment Effective Date and (ii) as of the Third
Amendment Effective Date, this Section 2.14 shall
have no further force or effect.
(x) Section
4.02(b) of the Existing Credit Agreement is amended and restated in its entirety
as follows:
(b) No
Default. No Default shall exist, or would result from such
proposed Credit Extension or from the application of proceeds thereof, and to
the extent that (i) a Delayed-Draw Term Loan is requested, the Borrower shall be
in
13
compliance
with each of the financial covenants set forth in Section 7.11 on a Pro
Forma Basis after giving effect to such Delayed-Draw Term Loan or (ii) a
Revolving Credit Loan is requested, the Borrower shall be in compliance with the
financial covenant set forth in Section 7.11(b) on a
Pro Forma Basis after giving effect to such Revolving Credit Loan.
(y) Section
6.02(c) of the Existing Credit Agreement is amended and restated in its entirety
to read as follows:
(c) Annual
Budget. Concurrently with the delivery of the financial
statements referred to in Section 6.01(a), an
annual budget of Holdings and its Subsidiaries on a consolidated basis,
including forecasts prepared by management of the Borrower, in form reasonably
satisfactory to the Administrative Agent, of consolidated balance sheets and
statements of income or operations and cash flows of Holdings and its
Subsidiaries on a quarterly basis for the then-current fiscal year;
(z) Section
6.12(a) of the Existing Credit Agreement is amended by deleting the phrase
“other than Graphic Arts Center de Mexico and any Subsidiary that is held
directly or indirectly by a CFC” in its entirety and substituting therefor the
new phrase “other than Graphic Arts Center de Mexico, any CFC and any Subsidiary
that is held directly or indirectly by a CFC”.
(aa) Section
7.02 of the Existing Credit Agreement is amended by (i) deleting the “and” at
the end of Section 7.02(k) of the Existing Credit Agreement, (ii) replacing the
period at the end of Section 7.02(l) of the Existing Credit Agreement with “;
and” and (iii) inserting the following new subsection (m) and paragraph at the
end thereof:
(m) unsecured
subordinated Indebtedness, provided that (A) no
Default exists immediately prior to, or would result from, on a Pro Forma Basis,
the incurrence of such Indebtedness, (B) no portion of such Indebtedness is
scheduled to be paid (either at maturity or as amortization) prior to the
Maturity Date of any Loan hereunder, (C) such Indebtedness is not Indebtedness
of Holdings to the Borrower or any of its Subsidiaries, (D) the material terms
and conditions of such Indebtedness are not more restrictive than the terms and
conditions of this Agreement and (E) such Indebtedness is subject to terms of
subordination substantially the same as the subordination terms contained in the
Subordinated Notes Documents or is otherwise subordinated in right of payment to
the Obligations pursuant to terms of subordination in form and substance
acceptable to the Administrative Agent.
Notwithstanding the foregoing
provisions of this Section 7.02, following the Third Amendment Effective Date,
for so long as the Consolidated Leverage Ratio calculated on a Pro Forma Basis,
as determined on the basis of the financial information most recently delivered
to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b), as applicable,
is equal to or greater than 4.50 to
14
1.0, the
aggregate amount of Acquisition Debt created, incurred or assumed pursuant to
Section 7.02(j)
and Indebtedness created, incurred or assumed pursuant to Section 7.02(g) shall
not exceed $50,000,000.
(bb) Section
7.06(d) of the Existing Credit Agreement is amended and restated in its entirety
to read as follows:
(d) Holdings
may (i) declare or pay cash dividends to its stockholders and/or
(ii) purchase, redeem or otherwise acquire for cash Equity Interests issued
by it, so long as (A) immediately prior to and/or after giving effect thereto on
a Pro Forma Basis, no Default exists or would be caused thereby, and (B) the
Consolidated Leverage Ratio calculated on a Pro Forma Basis, as determined on
the basis of the financial information most recently delivered to the
Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b), as applicable,
is less than 4.75 to 1.0; provided, however, that if the
Consolidated Leverage Ratio is greater than 3.0 to 1.0 (and less than 4.75 to
1.0) immediately prior thereto and after giving effect thereto on a Pro Forma
Basis, the aggregate amount of all such dividends, purchases, redemptions and/or
acquisitions shall not exceed $50,000,000 (the “Maximum Dividend
Amount”); provided, further, that if the
Consolidated Leverage Ratio is greater than 3.50 to 1.0 and the Borrower applies
Excess Cash Flow to (1) the purchase of Subordinated Notes or, following the
Third Amendment Effective Date, Cadmus Subordinated Notes, (2) the payment of
fees arising from an offer to purchase the Subordinated Notes or following the
Third Amendment Effective Date, the Cadmus Subordinated Notes, or (3) the
prepayment of Indebtedness permitted under Section 7.02(g), in
each such case in accordance with Section
7.15(d) or (f), the Maximum
Dividend Amount shall be reduced by the amount of such repurchase, fees paid or
prepayment, as the case may be, during the fiscal year during which such
repurchase is effected, fees are actually paid or prepayment is actually made,
as the case may be; and
(cc) Section
7.11 of the Existing Credit Agreement is amended and restated in its entirety to
read as follows:
7.11 Financial
Covenants.
(a) Consolidated Interest
Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of Holdings to be less than the ratio
set forth below opposite such fiscal quarter:
Four
Fiscal Quarters Ending
|
Minimum
Consolidated
Interest
Coverage Ratio
|
Third
Amendment Effective Date through December 31, 2009
|
1.85
to 1.00
|
March
31, 2010
|
2.00
to 1.00
|
June
30, 2010 through December 31, 2010
|
2.25
to 1.00
|
March
31, 2011 and
each fiscal quarter thereafter
|
2.50
to 1.00
|
15
(b) Consolidated Leverage
Ratio. Permit the Consolidated Leverage Ratio at any time
during any period set forth below to be greater than the ratio set forth below
opposite such period:
Period
|
Maximum
Consolidated
Leverage
Ratio
|
Third
Amendment Effective Date through March 31, 2010
|
6.25
to 1.0
|
April
1, 2010 through June 30, 2010
|
5.60
to 1.0
|
July
1, 2010 through December 31, 2010
|
5.20
to 1.0
|
January
1, 2011 through June 30, 2011
|
5.00
to 1.0
|
July
1, 2011 and
each fiscal quarter thereafter
|
4.75
to 1.0
|
(dd) Section
7.12 of the Existing Credit Agreement is amended and restated in its entirety to
read as follows:
7.12 Capital
Expenditures.
Make or
become legally obligated to make any Capital Expenditure, except for Capital
Expenditures in the ordinary course of business not exceeding (a) for each of
the fiscal years ending December 31, 2007 and December 31, 2008, $60,000,000 in
the aggregate for the Borrower and it Subsidiaries during any such fiscal year,
(b) for the fiscal year ending December 31, 2009, $30,000,000 in the aggregate
for the Borrower and it Subsidiaries during such fiscal year, (c) for the fiscal
year ending December 31, 2010, $45,000,000 in the aggregate for the Borrower and
it Subsidiaries during such fiscal year, and (d) for each of the fiscal years
ending December 31, 2011 and thereafter, $55,000,000 in the aggregate for the
Borrower and it Subsidiaries during any such fiscal year (together with any such
amounts carried over pursuant to clause (i) below, the “Maximum Cap Ex
Amounts”); provided, however, that
(i) so long as (A) no Default has occurred and is continuing or would
result from such expenditure and (B) the Consolidated Leverage Ratio set forth
in the Compliance Certificate delivered concurrently with the financial
statements most recently delivered to the Administrative Agent and
16
the
Lenders pursuant to Section 6.01(a) is
less than 4.75 to 1.0, any portion of the fixed amount set forth above, if not
expended in the fiscal year for which it is permitted, may be carried over for
expenditure in the next following fiscal year and (ii) if any such amount
is so carried over, it will be deemed used in the applicable subsequent fiscal
year after the fixed amount set forth above has been expended; and provided, further, that any
reinvestment in operating assets, in accordance with Section 2.05(b)(iii),
of any Net Cash Proceeds arising from Dispositions permitted under Section 7.05 shall
not constitute Capital Expenditures for purposes of this Section 7.12 (and,
accordingly, such reinvestments shall not reduce the amount of the unutilized
Maximum Cap Ex Amounts or otherwise be subject to the limitations on Capital
Expenditures set forth in this Section).
(ee) Subsections
(d), (f) and (g) of Section 7.15 of the Existing Credit Agreement are amended
and restated in their entirety to read as follows, respectively:
(d) (i)
purchases of Subordinated Notes and Cadmus Subordinated Notes made prior to the
Third Amendment Effective Date; and (ii) the prepayment, purchase, redemption or
defeasance of the Subordinated Notes or the Cadmus Subordinated Notes after the
Third Amendment Effective Date, so long as (A) immediately before and after
giving effect to any such prepayment, purchase, redemption or defeasance, (x) no
Default shall have occurred and be continuing and (y) Holdings and its
Subsidiaries shall be in compliance with all of the covenants set forth in Section 7.11 on a Pro
Forma Basis, as determined on the basis of the financial information most
recently delivered to the Administrative Agent and the Lenders pursuant to Section
6.01(a) or (b), as applicable,
(B) no Term Loans shall be applied to such prepayment, purchase, redemption
or defeasance, (C) the Consolidated Leverage Ratio calculated on a Pro Forma
Basis, as determined on the basis of the financial information most recently
delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b), as applicable,
is less than 4.75 to 1.0, (D) if the Consolidated Leverage Ratio determined
in accordance with the foregoing clause (C) is greater than 3.50 to 1.0, no
Excess Cash Flow shall be applied to such prepayment, purchase, redemption or
defeasance (subject to the final proviso set forth in subsection
(f) below), and (E) to the extent funded by the issuance of
Indebtedness, such Indebtedness (1) shall be subordinate in all respects to
the Obligations on terms substantially the same as the Subordinated Notes or
Cadmus Subordinated Notes, as the case may be, or shall be unsecured
Indebtedness, (2) shall not increase the principal amount then owed under
the Subordinated Notes or the Cadmus Subordinated Notes, as applicable (except
by an amount equal to a reasonable premium paid, accrued but unpaid interest and
reasonable fees and expenses incurred in connection therewith), (3) shall
have the same obligor, (4) shall be subject to an equal or longer maturity
as the Subordinated Notes or the Cadmus Subordinated Notes, as applicable, and
(5) if such Indebtedness is subordinate to the Obligations, otherwise shall
be subject to material terms and conditions
17
substantially
no more restrictive than the Subordinated Notes Documents or the Cadmus
Subordinated Notes Documents, as applicable;
(f) so
long as the Consolidated Leverage Ratio calculated on a Pro Forma Basis, as
determined on the basis of the financial information most recently delivered to
the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b), as applicable,
is less than 4.75 to 1.0, prepayments of Indebtedness permitted under Section 7.02(g);
provided that
any such prepayment shall be funded by (i) a refinancing permitted under
Section
7.02(d), (ii) Loans under this Agreement or (iii) if the
Consolidated Leverage Ratio calculated on a Pro Forma Basis, as determined on
the basis of the financial information most recently delivered to the
Administrative Agent and the Lenders pursuant to Section
6.01(a) or (b), as applicable,
is less than or equal to 3.50 to 1.0, Excess Cash Flow (provided, however, that if such
Consolidated Leverage Ratio is greater than 3.50 to 1.0 (and less than 4.75 to
1.0) and subject to a dollar for dollar reduction in the Maximum Dividend Amount
in accordance with Section 7.06(d), the
Borrower may apply up to $25,000,000 of Excess Cash Flow (in addition to any
Excess Cash Flow applied to repurchase Cadmus Subordinated Notes prior to the
Third Amendment Effective Date) in the aggregate during the period from the
Closing Date through the Maturity Date to (x) pay fees arising in connection
with an offer to repurchase the Subordinated Notes or the Cadmus Subordinated
Notes, (y) purchase Subordinated Notes or Cadmus Subordinated Notes and/or (z)
prepay Indebtedness permitted under Section 7.02(g));
and
(g) so
long as (i) immediately before and after giving effect to any such
prepayment, purchase or redemption (x) no Default shall have occurred and be
continuing and (y) Holdings and its Subsidiaries shall be in compliance with all
of the covenants set forth in Section 7.11 on a Pro
Forma Basis, as determined on the basis of the financial information most
recently delivered to the Administrative Agent and the Lenders pursuant to Section
6.01(a) or (b), as applicable,
prepayments, purchases or redemptions of (A) the Equipment Loans in an aggregate
amount not to exceed $13,200,000 and (B) other Indebtedness (other than the
Subordinated Notes and the Cadmus Subordinated Notes) in an aggregate amount not
to exceed $5,000,000.
(ff) Section
11.13 of the Existing Credit Agreement is amended by (i) designating the
existing paragraph thereof as subsection (a), (ii) renumbering the existing
subsections (a) through (d) as clauses (i) through (iv), (iii) deleting the
phrase “if any Lender is a Defaulting Lender” in its entirety and substituting
therefor the new phrase “if any Lender is a Designated Lender” and (iv)
inserting the following new subsection (b):
(b) Notwithstanding
anything herein to the contrary, at any time during a Default Period with
respect to a Revolving Credit Lender that is a Designated Lender, the Borrower
may terminate in full the Revolving Credit Commitment of such Designated Lender
(without any requirement of any reduction in the
18
Revolving
Credit Commitments of any other Revolving Credit Lenders) by giving notice to
such Designated Lender and the Administrative Agent (which notice shall specify
the effective date of such termination); provided, that (i) at
the time of such termination, no Event of Default exists; (ii) concurrently with
such termination, the Borrower shall pay to such Designated Lender an amount
equal to the outstanding principal of its Revolving Credit Loans and L/C
Advances, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Loan Documents; (iii) if, on the effective
date of such termination, any Letter of Credit is outstanding, the conditions
specified in Section
2.03(a)(i) would be satisfied (after giving effect to such termination)
were each such Letter of Credit issued on such date; and (iv) if, on the
effective date of such termination, any Swing Line Loan is outstanding, the
conditions specified in Section 2.04(a) would
be satisfied (after giving effect to such termination) were each such Swing Line
Loan to be made on such date. Upon satisfaction of the conditions
specified in the foregoing clauses (i), (ii), (iii) and (iv), the Revolving
Credit Commitment of such Designated Lender shall terminate on the effective
date specified in such notice, its participation in the L/C Obligations and
outstanding Swing Line Loans (if any) shall terminate on such effective date and
the participations of the other Revolving Credit Lenders in the L/C Obligations
and outstanding Swing Line Loans shall be redetermined as of such termination
date as if the outstanding Letters of Credit had been issued, the Unreimbursed
Amounts had been paid by the L/C Issuer, and the Swing Line Loans had been
advanced by the Swing Line Lender, in each case on such termination
date. The termination of the Revolving Credit Commitment of a
Designated Lender pursuant to this Section 11.13(b)
shall not be deemed to be a waiver of any right that the Borrower, the
Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender
may have against such Designated Lender.
(gg) Article
XI of the Existing Credit Agreement is amended by inserting the following new
Section
11.23:
11.23 Defaulting
Lenders. Notwithstanding anything contained in this Agreement
to the contrary, if any Lender becomes a Defaulting Lender, then, to the extent
permitted by applicable Law,
(a) until
such time as all Defaulted Payments with respect to such Defaulting Lender shall
have been paid in full, the Administrative Agent may (in its discretion) apply
any amounts thereafter received by the Administrative Agent for the account of
such Defaulting Lender to satisfy such Defaulting Lender’s obligations to make
such Defaulted Payments; and
(b) with
respect to any Defaulting Lender with one or more Defaulted Loans, such
Defaulting Lender shall not be entitled to receive any commitment fee pursuant
to Section
2.09(a) or any Letter of Credit Fees pursuant to Section 2.03(i) for
any Default Period with respect to such Defaulting Lender (and the
Borrower
19
shall not
be required to pay any such fee that otherwise would have been required to have
been paid to such Defaulting Lender).
In
addition, notwithstanding anything contained in this Agreement to the contrary,
no assignments otherwise permitted by Section 11.06 shall
be made to a Defaulting Lender, an Impacted Lender or any of their respective
Subsidiaries or Affiliates that are Distressed Persons.
(hh) The
Existing Credit Agreement is amended to add Exhibits M, N and O attached hereto as
Exhibits M, N and O, respectively, to the Credit Agreement.
ARTICLE
III
TERMINATION
OF XXXXXX COMMERCIAL PAPER INC.
3.1
Termination
of Revolving Credit Commitment of Xxxxxx Commercial Paper Inc. Notwithstanding
anything in this Amendment to the contrary, the Borrower, the L/C Issuer,
the Swing Line Lender and the Required Lenders hereby (a) acknowledge that
Xxxxxx Commercial Paper Inc. (“Xxxxxx”) is a
Defaulting Lender, (b) agree (subject to the following subsection (c)) that
Xxxxxx will be terminated as a Revolving Credit Lender immediately upon
execution of this Amendment by the Borrower, the L/C Issuer, the Swing Line
Lender and the Required Lenders in accordance with Section 11.13(b) of the
Credit Agreement (the date of such termination being referred to herein as the
“Xxxxxx Commitment
Termination Date”), and (c) agree that notwithstanding anything to the
contrary in Section 2.06(d) or Section 11.13(b) of the Credit Agreement, on the
Xxxxxx Commitment Termination Date, (i) all of Xxxxxx’x Revolving Credit
Commitments will be terminated, (ii) the aggregate amount of the Revolving
Credit Commitments will be reduced by the amount of Xxxxxx’x Revolving Credit
Commitment ($27,500,000) not already transferred to another Person pursuant to
an Assignment and Assumption, (iii) Xxxxxx’x participation in the L/C
Obligations and outstanding Swing Line Loans (if any) shall terminate and (iv)
the participations of the other Revolving Credit Lenders in the L/C Obligations
and outstanding Swing Line Loans shall be redetermined as if the outstanding
Letters of Credit had been issued, the Unreimbursed Amounts had been paid by the
L/C Issuer, and the Swing Line Loans had been advanced by the Swing Line Lender,
in each case on such date.
ARTICLE
IV
CONDITIONS
TO EFFECTIVENESS
4.1 Closing
Conditions. This Amendment
shall become effective as of the day and year set forth above (the “Third Amendment Effective
Date”) upon satisfaction of the following conditions (in form and
substance reasonably acceptable to the Administrative Agent):
20
(a) Executed
Amendment. The Administrative Agent or its counsel shall have
received a copy of this Amendment duly executed by each of the Borrower,
Holdings, the Required Lenders, and the Administrative Agent.
(b) Executed Guarantor
Consent. The Administrative Agent or its counsel shall have
received a consent with respect to this Amendment executed by each
Guarantor.
(c) Authorization
Documents. The Administrative Agent or its counsel shall have
received such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of the Borrower
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 Amendment.
(d) Corporate
Documents. The Administrative Agent or its counsel shall have
received such documents and certifications as the Administrative Agent may
reasonably require to evidence that each of Holdings and the Borrower is duly
organized or formed and is validly existing, in good standing and qualified to
engage in business in each jurisdiction where its ownership, lease or operation
of properties or the conduct of its business requires such qualification, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
(e) Legal
Opinions. The Administrative Agent shall have received
favorable opinions of Xxxxxxx Xxxxx, Esq., General Counsel of Holdings, and
Xxxxxx Xxxxxxx & Xxxx LLP, special New York counsel to Holdings and the
Borrower, in each case in form and substance satisfactory to the Administrative
Agent and its counsel.
(f) Fees and
Expenses. The Lenders and the Administrative Agent shall have
received all fees required to be paid on or before the Third Amendment Effective
Date, and the Administrative Agent shall have received reimbursement of all
reasonable and documented out-of-pocket expenses of the Administrative Agent
payable by the Borrower in connection with this Amendment and the transactions
contemplated hereunder, to the extent invoiced prior to the Third Amendment
Effective Date.
(g) Miscellaneous. All
other documents and legal matters in connection with the transactions
contemplated by this Amendment shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel.
ARTICLE
V
MISCELLANEOUS
5.1 Amended
Terms. On and after the Third Amendment Effective Date, (a)
each reference in the Credit Agreement to “this Agreement”, “hereunder”,
“hereof” or words of like import referring to the Existing Credit Agreement
shall mean and be a reference to the Existing Credit Agreement as amended by
this Amendment, and (b) each reference in any other Loan Document to the “Credit
Agreement”, “thereunder”, “thereof” or words of like import referring to the
Existing Credit Agreement shall mean and be a reference to the Existing Credit
Agreement
21
as
amended by this Amendment. Except as specifically amended hereby or
otherwise agreed, the Existing Credit Agreement is hereby ratified and confirmed
and shall remain in full force and effect according to its terms.
5.2
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 Amendment.
(b) This
Amendment 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 Amendment, except for 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 Amendment, no event has occurred and is continuing which
constitutes a Default.
(f) The
provisions of the Collateral Documents continue to create in favor of the
Administrative Agent for the benefit of the Secured Parties a legal, valid and
enforceable first priority Lien (subject to Liens permitted by Section 7.01 of
the Credit Agreement) on all right, title and interest of the respective Loan
Parties in the Collateral described therein. Except for filings and
recordings completed prior to the Third Amendment Effective Date and as
contemplated by the Collateral Documents, no filing or other action will be
necessary to perfect or protect such Liens.
(g) Except
as specifically provided in the Credit Agreement (as amended by this Amendment),
the Obligations are not reduced or modified by this Amendment and are not
subject to any offsets, defenses or counterclaims.
5.3 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
22
Agreement
applicable to it and (b) that it is responsible for the observance and full
performance of its respective Obligations. Holdings hereby
acknowledges and reaffirms its obligations under Article X of the Credit
Agreement.
5.4 Loan
Document. This Amendment
shall constitute a Loan Document under the terms of the Credit
Agreement.
5.5 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 Amendment.
5.6 Fees and
Expenses. The Borrower
agrees to pay all reasonable and documented out-of-pocket expenses of the
Administrative Agent in connection with this Amendment.
5.7 Entirety. This
Amendment 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.
5.8 Counterparts;
Telecopy. This Amendment 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 Amendment by
telecopy or other electronic means shall be effective as an original and shall
constitute a representation that an original will be delivered.
5.9 GOVERNING
LAW. THIS AMENDMENT 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).
5.10 Successors
and Assigns. This Amendment
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
5.11 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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
23
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed on the date first
above written.
BORROWER:
|
CENVEO
CORPORATION,
|
|
a
Delaware corporation
|
By: /s/ Xxxx X.
Xxxxxxxx
Name: Xxxx X.
Xxxxxxxx
Title: Chief
Financial Officer
By: /s/ Xxxx X.
Xxxxxxxx
Name: Xxxx X.
Xxxxxxxx
Title: Chief
Financial Officer
ADMINISTRATIVE
AGENT:
|
BANK OF AMERICA,
N.A.,
|
|
as
Administrative Agent
|
By: /s/ Antonikia
Xxxxxx
Name: Antonikia
Xxxxxx
Title: Officer
LENDERS:
|
BANK OF AMERICA,
N.A.,
|
|
as
a Lender, L/C Issuer and Swing Line
Lender
|
By: /s/ Xxxx
Xxxxxxx
Name: Xxxx
Xxxxxxx
Title: Senior
Vice President