EXHIBIT 10.12(a)
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"),
dated as of February 9, 2004, is by and among AMERICAN COLOR GRAPHICS, INC., a
New York Corporation (the "Borrower"), each of the Lenders signatory hereto (the
"Lenders"), GECC CAPITAL MARKETS GROUP INC., as Syndication Agent (the
"Syndication Agent"), and BANK OF AMERICA, N.A., as Administrative Agent and
Collateral Agent for the Lenders (in such capacity, the "Agent"). Capitalized
terms used herein and not otherwise defined shall have the meaning assigned such
term in the Credit Agreement (as defined below).
RECITALS:
A. The Borrower, the Lenders, the Syndication Agent and the
Agent are parties to that certain Credit Agreement, dated as of July 3, 2003
(the "Credit Agreement" as amended by, and together with, this First Amendment,
and as hereinafter amended, modified, supplemented, extended or restated from
time to time, being called the "Amended Agreement").
B. The parties hereto have agreed to amend the Credit
Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
SECTION 1.01 Amendments to Credit Agreement.
(a) Amendments to Section 5.2. Section 5.2(d) of the Credit Agreement
is hereby amended by inserting at the end of the first sentence thereof the
following:
, together with (i) a analysis of the ten (10) largest print
customers of the Parent and its Subsidiaries setting forth
detail as to year-to-date sales, value-added revenue, past due
Accounts and such other matters relating to such customers as
the Agent may reasonably request and (ii) a detailed variance
analysis (actual compared to the forecasts provided to the
Agent and the Lenders on January 16, 2004) of the Parent's and
its Subsidiaries' results of operations (income and cash flow)
for the most recently ended fiscal quarter, all in form
reasonably acceptable to the Agent.
(b) Amendments to Section 7.10. Section 7.10 of the Credit Agreement is
hereby deleted and the following new Section 7.10 is inserted in replacement
thereof:
7.10 Distributions and Restricted Investments. None of the
Parent, the Borrower or any of its Subsidiaries shall directly or
indirectly declare or make, or incur any liability to make, any
Distribution or Restricted Investment, except (a) Distributions to the
Borrower by its
34
EXHIBIT 10.12(a)
Subsidiaries; (b) Distributions or Restricted Investments from the
Borrower to the Parent to enable the Parent to make Distributions
otherwise permitted to be made by it hereunder and to enable the Parent
to pay its general operating expenses; (c) Permitted Distributions; (d)
the Digiscope Loans; (e) loans and advances to employees, officers and
directors in an aggregate principal amount not to exceed $1,000,000 at
any time outstanding; (f) contributions of capital to Immaterial
Subsidiaries provided such Subsidiaries use such contributions to
simultaneously pay off accumulated intercompany debt of such Immaterial
Subsidiaries to the Borrower or the Parent existing on the Closing Date
in an amount not in excess of $7,000,000; (g) payments made pursuant to
the Tax Sharing Agreement; (h) Distributions and Restricted Investments
made in connection with the 2003 Recapitalization; (i) loans made
giving rise to Debt permitted under Section 7.13(d); (j) purchases of
Equipment (not included in the Borrowing Base) owned by Borrower but
subject to a purchase option in favor of the customer for whose account
such Equipment was purchased, with such option being exercisable at the
end of a specified contractual term, entered into in accordance with
past practice and in the ordinary course of business; (k) purchases of
spare parts inventory booked as a long-term rather than current asset
in accordance with past practice and in the ordinary course of
business; (l) payments described in clause (i) of the definition of the
term "Permitted Affiliate Transactions"; (m) payments in amounts
necessary to permit Parent to (x) make payments in respect of its
indemnification obligations owing to directors, officers or other
Persons under Parent's charter or by-laws or pursuant to written
agreements with any such Person, or obligations in respect of director
and officer insurance (including premiums therefor) or (y) satisfy its
obligations, or through the Company satisfy its obligations, under any
registration rights agreement or (z) make payments in respect of
indemnification obligations of Parent in connection with any issuance
by Parent of capital stock of Parent; (n) Distributions and Restricted
Investments by the Parent in an aggregate amount of up to $500,000 made
to permit repurchases of common stock of the Parent or to purchase
options to purchase common stock of the Parent granted to directors,
officers and certain key employees of the Parent or the Borrower
pursuant to stock option plans adopted by the board of directors of the
Parent or the Borrower; and (o) other Distributions and Restricted
Investments in an aggregate amount outstanding of up to $500,000;
provided, however, the Parent, the Borrower or any Subsidiary may (I)
make the Distributions and Restricted Investments permitted under
clauses (n) and (o) above only if no Default or Event of Default shall
exist immediately prior to or immediately after giving effect to such
Distribution or Restricted Investment and (II) make additional
Distributions and Restricted Investments in an aggregate amount of up
to $1,500,000 in excess of those permitted under clause (n) above and
35
EXHIBIT 10.12(a)
additional Distributions and Restricted Investments in an aggregate
amount of up to $1,500,000 in excess of those permitted under clause
(o) above, in each case, only if (i) no Default or Event of Default
shall exist immediately prior to or immediately after giving effect to
such Distribution or Restricted Investment, (ii) the Fixed Charge
Coverage Ratio shall be no less than 1.00 to 1.00 (A) for the
two-fiscal quarter period ended December 31, 2003 (taken together as
one accounting period) for any Distribution or Restricted Investment
made during the period between delivery of financial statements for the
fiscal quarter ended December 31, 2003 and the delivery of financial
statements for the fiscal quarter ended Xxxxx 00, 0000, (X) for the
three-fiscal quarter period ended March 31, 2004 (taken together as one
accounting period) for any Distribution or Restricted Investment made
during the period between delivery of financial statements for the
fiscal quarter ended March 31, 2004 and the delivery of financial
statements for the fiscal quarter ended June 30, 2004, and (C) for the
Four Quarter Period ended most recently prior to such Distribution or
Restricted Investment for which the financial statements have been
delivered to the Agent pursuant to Section 5.2 at any time after
delivery of financial statements for the fiscal quarter ended September
30, 2004, and (iii) Availability prior to and after giving effect to
such Distribution or Restricted Investment shall be (A) for any
Distribution or Restricted Investment made prior to March 31, 2004,
greater than $20,000,000 and (B) for any Distribution or Restricted
Investment made thereafter, greater than $18,000,000.
(c) Amendments to Section 7.22. Section 7.22 of the Credit Agreement is
hereby deleted and the following new Section 7.22 is inserted in replacement
thereof:
7.22 Capital Expenditures. The Parent shall not make any
Capital Expenditures. Neither the Borrower nor any of its Subsidiaries
shall make or incur any Capital Expenditure if, after giving effect
thereto, the aggregate amount of all Capital Expenditures by the
Borrower and its Subsidiaries on a consolidated basis, in excess of
insurance proceeds or condemnation awards, would exceed (a) $18,500,000
during the Fiscal Year ending Xxxxx 00, 0000, (x) $15,000,000 during
the Fiscal Year ending March 31, 2005, or (c) $17,000,000 during any
Fiscal Year thereafter. To the extent that the aggregate amount of
Capital Expenditures of the Borrower and the Subsidiaries during a
Fiscal Year is less than the amount that is permitted by the preceding
sentence (the result of such permitted amount minus the actual amount
of Capital Expenditures during a Fiscal Year being the "Unused
Amount"), the aggregate amount of Capital Expenditures that may be made
by the Borrower and the Subsidiaries during the next succeeding Fiscal
Year will be the sum of the amount otherwise permitted by the preceding
sentence plus the Unused Amount from the previous Fiscal Year.
36
(d) Amendment to Section 7.23. Section 7.23 of the Credit Agreement is
hereby deleted and the following new Section 7.23 is inserted in replacement
thereof:
7.23 Fixed Charge Coverage Ratio. The Borrower will have a
Fixed Charge Coverage Ratio of not less than (a) 1.00 to 1.00 for the
one-fiscal quarter period ended December 31, 2003, (b) 0.89 to 1.00 for
the two-fiscal quarter period ended March 31, 2004 (taken together as
one accounting period), (c) 0.86 to 1.00 for the three-fiscal quarter
period ended June 30, 2004 (taken together as one accounting period)
and (d) the ratio set forth below opposite each fiscal quarter for each
Four Quarter Period ended on the last day of such fiscal quarter set
forth below:
Four Quarter Fixed Charge
Period Ending Coverage Ratio
------------------------------- ----------------------
September 30, 2004 0.82 to 1.00
December 31, 2004 0.77 to 1.00
March 31, 2005 0.87 to 1.00
June 30, 2005 0.91 to 1.00
September 30, 2005 0.97 to 1.00
December 31, 2005 0.98 to 1.00
March 31, 2006 and each fiscal 1.00 to 1.00
quarter end thereafter
(e) Amendments to Annex A to the Credit Agreement.
(i) The following new defined terms are hereby added to Annex
A to the Credit Agreement in alphabetical position:
"Actual Fixed Asset Amortization Amount" means the
aggregate amount of the amortized reduction in the Fixed Asset
Maximum from February 9, 2004 to the date of calculation of
the applicable Adjusted Fixed Charge Coverage Ratio including
amortization based on any recalculation or reduction of the
Fixed Asset Maximum arising under the first proviso to the
definition of "Fixed Asset Maximum" in Annex A hereto.
"Adjusted Fixed Charge Coverage Ratio" means, with
respect to any fiscal period of the Parent, the ratio of (a)
EBITDA minus Capital Expenditures paid in cash during such
period to (b) Fixed Charges plus the Actual Fixed Asset
Amortization Amount.
"Adjusted Value" means an amount equal to (a) eighty
percent (80%) of the Appraisal Value of Eligible Equipment
plus (b) fifty percent (50%) of the Appraisal Value of
Mortgaged Property.
37
EXHIBIT 10.12(a)
"Scheduled Appraisal Date" means each date after the
Closing Date upon which the Agent receives results of an
annual appraisal conducted by an Eligible Appraiser which
receipt shall occur on or about March 31, 2004 and on or
about each anniversary of such date.
"Scheduled Fixed Asset Amortization Amount" means the
aggregate pro forma amount of the amortized reduction in the
Fixed Asset Maximum from February 9, 2004 to the date of
calculation thereof without giving effect to any
recalculation or reduction in the Fixed Asset Maximum or the
monthly amortization thereof arising under the first proviso
to the definition of "Fixed Asset Maximum" in Annex A hereto.
"Scheduled Fixed Asset Maximum" means, on any date of
calculation thereof, (a) the lesser of (i) $34,364,500 or
(ii) the Adjusted Value of Fixed Assets set forth in the
appraisal received on the first Scheduled Appraisal Date
minus (b) the Scheduled Fixed Asset Amortization Amount as of
such date.
(ii) The definition of "Applicable Margin" set forth in Annex
A to the Credit Agreement is hereby amended by (A) deleting the
references to "1.50%" and "2.50%" in clauses (i) and (ii) thereof,
respectively, and inserting "2.00%" and "3.00%" in replacement thereof,
respectively, (B) deleting the date "December 31, 2003" therein and
inserting the date "September 30, 2004" in replacement thereof and (C)
deleting the pricing grids therein and replacing them with the
following new pricing grids:
---------------------------- -------------------------------
IF FIXED CHARGE LEVEL OF
COVERAGE RATIO IS: APPLICABLE MARGINS:
---------------------------- -------------------------------
> Greater than or equal Level I
to 1.50 to 1.00
---------------------------- -------------------------------
Greater than or equal Level II
to 1.25 to 1.00 but
less than 1.50 to 1.00
---------------------------- -------------------------------
Less than 1.25 to 1.00 Level III
---------------------------- -------------------------------
LOW TO HIGH
------------------------------ ----------------------------------------
APPLICABLE MARGINS
------------------------------ ----------------------------------------
LEVEL I LEVEL II LEVEL III
------------------------------ -------------- -------------- ----------
Base Rate Loans 1.50% 1.75% 2.00%
------------------------------ -------------- -------------- ----------
LIBOR Loans 2.50% 2.75% 3.00%
------------------------------ -------------- -------------- ----------
38
EXHIBIT 10.12(a)
(iii) The definition of "Appraisal Date" set forth in Annex A
to the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
"Appraisal Date" means each of (a) the Closing Date,
(b) each Scheduled Appraisal Date and (c) any other date on
which results are received by the Agent of an appraisal
conducted by an Eligible Appraiser at the Borrower's request
or, if an Event of Default exists, the Agent's request.
(iv) The definition of "EBITDA" set forth in Annex A to the
Credit Agreement is hereby deleted in its entirety and replaced with
the following:
"EBITDA" means, with respect to any fiscal period of
the Parent, Adjusted Net Earnings from Operations, plus, to
the extent deducted in the determination of Adjusted Net
Earnings from Operations for that fiscal period, Interest
Expense, Federal, state, local, foreign and deferred income
tax expense, depreciation and amortization, plus restructuring
charges, severance expenses and other non-recurring charges
accrued during such period and minus restructuring charges,
severance expenses and other non-recurring charges paid during
such period whether or not such charges and expenses were
accrued during such period; provided, however, there shall be
excluded from the immediately foregoing deduction (a) up to
$2,000,000 of such restructuring charges, severance expenses
and other non-recurring charges accrued during the Fiscal Year
ended March 31, 2002, and the Fiscal Year ended March 31, 2003
of the Borrower and unpaid as of the Closing Date and (b) for
the purposes of calculating EBITDA in connection with
determining the Fixed Charge Coverage Ratio for compliance
with Section 7.23 and the determination of the Applicable
Margin only, up to $5,000,000 of such other restructuring
charges, severance expenses and other non-recurring charges
accrued during the fiscal quarter ending March 31, 2004,
irrespective of when paid.
(v) The definition of "Fixed Asset Maximum" set forth in Annex
A to the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
"Fixed Asset Maximum" means $34,364,500 as such
amount shall be reduced on the first day of each month by
$409,101 (based on even monthly amortization over a seven year
period), beginning April 1, 2004; provided, however, that if,
as of any Appraisal Date, the Adjusted Value of Fixed Assets
is less than the Fixed Asset Maximum (as reduced pursuant to
the amortization described above or pursuant to the
establishment of a new Fixed Asset Maximum as provided
herein), such Adjusted
39
EXHIBIT 10.12(a)
Value shall become the new Fixed Asset Maximum; provided
further, however, that if, as of any Scheduled Appraisal Date
occurring after January 1, 2006, (a) the Adjusted Value of
Fixed Assets is greater than the Fixed Asset Maximum (as
reduced pursuant to the establishment of a new Fixed Asset
Maximum as provided in the first proviso above or as increased
pursuant to the establishment of a new Fixed Asset Maximum as
provided in this second proviso), (b) the Adjusted Fixed
Charge Coverage Ratio for the most recently ended twelve month
period is greater than 1.00 to 1.00 and (c) no Default or
Event of Default shall exist, then a new Fixed Asset Maximum
shall be established at the lower of (i) the Adjusted Value as
of such Scheduled Appraisal Date or (ii) the Scheduled Fixed
Asset Maximum. Any new Fixed Asset Maximum established
pursuant to the first or second proviso above shall be reduced
on the first day of each month, beginning with the first month
after the Appraisal Date establishing such new Fixed Asset
Maximum, based on even monthly amortization over the remainder
of the seven year period first described above.
(vi) The definition of "Pro Rata Share" set forth in Annex A
to the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
"Pro Rata Share" means, with respect to a Lender, a
fraction (expressed as a percentage), the numerator of which
is the amount of such Lender's Commitment and the denominator
of which is the sum of the amounts of all of the Lenders'
Commitments, or if no Commitments are outstanding, a fraction
(expressed as a percentage), the numerator of which is the
amount of Obligations (other than Obligations in respect of
Bank Products) owed to such Lender and the denominator of
which is the aggregate amount of the Obligations (other than
Obligations in respect of Bank Products) owed to the Lenders,
in each case giving effect to a Lender's participation in
Non-Ratable Loans and Agent Advances.
(vii) The definition of "Required Lenders" is hereby deleted
in its entirety and replaced with the following:
"Required Lenders" means at any time any Lender or
Lenders whose Pro Rata Shares (the "Required Pro Rata Share")
aggregate more than 50% of the aggregate of all Lenders' Pro
Rata Shares; provided, however, that if there are three or
more Lenders at such time, such aggregate Required Pro Rata
Share shall be held by at least two Lenders.
40
EXHIBIT 10.12(a)
(viii) The definition of "Restricted Investment" is hereby
deleted in its entirety and replaced with the following:
"Restricted Investment" means, as to the Parent, the
Borrower or any of its Subsidiaries, any acquisition of
property by such Person in exchange for cash or other
property, whether in the form of an acquisition of stock,
debt, or other indebtedness, obligation or equity interest, or
the purchase or acquisition of any other property, or a loan,
advance, capital contribution, or subscription, except the
following: (a) acquisitions of Equipment to be used in the
business of the Borrower so long as the acquisition costs
thereof constitute Capital Expenditures permitted hereunder;
(b) acquisitions of Inventory in the ordinary course of
business of the Borrower; (c) acquisitions of current assets
acquired in the ordinary course of business of the Borrower;
(d) direct obligations of the United States of America, or any
agency thereof, or obligations guaranteed by the United States
of America, provided that such obligations mature within one
year from the date of acquisition thereof; (e) acquisitions of
certificates of deposit maturing within one year from the date
of acquisition, bankers' acceptances, Eurodollar bank
deposits, or overnight bank deposits, in each case issued by,
created by, or with a bank or trust company organized under
the laws of the United States of America or Canada or any
state or province thereof having capital and surplus
aggregating at least $100,000,000; (f) acquisitions of
commercial paper given a rating of "A2" or better by Standard
& Poor's Corporation or "P2" or better by Xxxxx'x Investors
Service, Inc. and maturing not more than 90 days from the date
of creation thereof; (g) repurchase agreements with parties
described in clause (e) above or other parties reasonably
acceptable to the Agent, in each case with a term of not more
than 30 days; (h) Hedge Agreements; (i) shares of money market
mutual or similar funds which invest substantially all their
assets in assets satisfying the requirements of clauses (d)
through (g) above; and (j) investments held as of the date
hereof listed on Schedule 1.3.
SECTION 1.02 Representations and Warranties. The Borrower hereby
represents and warrants to each Lender and the Agent, on the First Amendment
Effective Date (as hereinafter defined), as follows:
(a) After giving effect to this amendment, the representations and
warranties set forth in Article 6 of the Credit Agreement, and in each other
Loan Document, are true and correct in all material respects on and as of the
date hereof and on and as of the First Amendment Effective Date (as defined in
Section 1.03) with the same effect as if made on and as of the date hereof or
the First Amendment Effective Date, as the case may be, except to the extent
such representations and warranties expressly relate solely to an early date.
41
EXHIBIT 10.12(a)
(b) Each of the Borrower and the other Credit Parties is in compliance
with all terms and conditions of the Credit Agreement and the other Loan
Documents on its part to be observed and performed and no Default or Event of
Default has occurred and is continuing.
(c) The execution, delivery and performance by the Borrower of this
First Amendment has been duly authorized by the Borrower.
(d) This First Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms, except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting the enforcement of creditors' rights or by the effect of general
equitable principles.
(e) The execution, delivery and performance by the Borrower of this
First Amendment do not and will not conflict with, or constitute a violation or
breach of, or result in the imposition of any Lien upon the property of the
Borrower or any of its Subsidiaries, by reason of the terms of (i) any contract,
mortgage, lease, agreement, indenture, or instrument to which the Borrower is a
party or which is binding upon it, (ii) any Requirement of Law applicable to the
Borrower, or (iii) the certificate or articles of incorporation or by-laws or
the limited liability company or limited partnership agreement of the Borrower.
SECTION 1.03 Effectiveness. This First Amendment shall become effective
only upon satisfaction of the following conditions precedent (the first date
upon which each such condition has been satisfied being herein called the "First
Amendment Effective Date"):
(a) The Agent shall have received duly executed counterparts of this
First Amendment which, when taken together, bear the authorized signatures of
the Borrower, the Agent and the Lenders.
(b) The Agent and the Lenders shall be satisfied that the
representations and warranties set forth in Section 1.02 of this First Amendment
are true and correct on and as of the First Amendment Effective Date and that no
Default or Event of Default has occurred and is continuing on and as of the
First Amendment Effective Date.
(c) The Agent shall have received (a) an amendment fee for the pro rata
benefit of the Lenders in the amount of $50,000 and (b) all other fees and
expenses to be paid by the Borrower pursuant to Section 1.05 of this First
Amendment.
(d) There shall not be any action pending or any judgment, order or
decree in effect which, in the judgment of the Agent or the Lenders, is likely
to restrain, prevent or impose materially adverse conditions upon the
performance by the Borrower or any other Credit Party of its obligations under
the Credit Agreement or the other Loan Documents.
(e) The Agent shall have received such other documents, legal opinions,
instruments and certificates relating to this First Amendment as it shall
reasonably
42
EXHIBIT 10.12(a)
request and such other documents, legal opinions, instruments and certificates
that shall be reasonably satisfactory in form and substance to the Agent and the
Lenders. All corporate proceedings taken or to be taken in connection with this
First Amendment and documents incidental thereto whether or not referred to
herein shall be reasonably satisfactory in form and substance to the Agent and
the Lenders.
SECTION 1.04 Guarantor's Reaffirmation. By its acknowledgement below,
the Guarantor hereby (i) consents to the terms of this First Amendment, (ii)
acknowledges and reaffirms all of its obligations and undertakings under the
Facility Guaranty and (iii) acknowledges and agrees that the Facility Guaranty
is and shall remain in full force and effect in accordance with the terms
thereof.
SECTION 1.05 Expenses. The Borrower shall pay all reasonable
out-of-pocket expenses incurred by Agent in connection with the preparation,
negotiation, execution and delivery of this First Amendment, including, but not
limited to, the reasonable fees and disbursements of counsel to the Agent.
SECTION 1.06 Cross-References. References in this First Amendment to
any Section are, unless otherwise specified, to such Section of this First
Amendment.
SECTION 1.07 Instrument Pursuant to Credit Agreement. This First
Amendment is a Loan Document executed pursuant to the Credit Agreement and shall
(unless otherwise expressly indicated herein) be construed, administered and
applied in accordance with the terms and provisions of the Credit Agreement.
SECTION 1.08 Further Acts. Each of the parties to this First Amendment
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this First Amendment.
SECTION 1.09 Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial.
(a) THIS FIRST AMENDMENT AND EACH OF THE OTHER LOAN DOCUMENTS SHALL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK; PROVIDED THAT THE AGENT AND
THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS FIRST AMENDMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS FIRST AMENDMENT, EACH OF THE
BORROWER, EACH OTHER CREDIT PARTY, THE AGENT AND THE LENDERS CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS
43
EXHIBIT 10.12(a)
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE
BORROWER, EACH OTHER CREDIT PARTY, THE AGENT AND THE LENDERS IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
FIRST AMENDMENT OR ANY DOCUMENT RELATED HERETO. NOTWITHSTANDING THE FOREGOING:
(1) THE AGENT AND THE LENDERS SHALL HAVE THE RIGHT TO BRING ANY ACTION OR
PROCEEDING AGAINST THE BORROWER OR ANY OTHER CREDIT PARTY OR THEIR RESPECTIVE
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION THE AGENT OR THE LENDERS DEEM
NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR OTHER SECURITY
FOR THE OBLIGATIONS AND (2) EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT ANY
APPEALS FROM THE COURTS DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE THOSE JURISDICTIONS.
(c) THE BORROWER AND EACH OTHER CREDIT PARTY HEREBY WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO
THE BORROWER AT ITS ADDRESS SET FORTH IN SECTION 13.8 OF THE CREDIT AGREEMENT
AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER THE SAME
SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS POSTAGE PREPAID. NOTHING
CONTAINED HEREIN SHALL AFFECT THE RIGHT OF AGENT OR THE LENDERS TO SERVE LEGAL
PROCESS BY ANY OTHER MANNER PERMITTED BY LAW.
(d) THE BORROWER, EACH OTHER CREDIT PARTY, THE LENDERS AND THE AGENT
EACH IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS FIRST
AMENDMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. THE BORROWER, EACH OTHER CREDIT PARTY, THE LENDERS AND THE AGENT
EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT
TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE
THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS FIRST AMENDMENT
OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
44
EXHIBIT 10.12(a)
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 1.10 Counterparts. This First Amendment may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
SECTION 1.11 Severability. In case any provision in or obligation under
this First Amendment or the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 1.12 Benefit of Agreement. This First Amendment shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided that the Borrower may not
assign or transfer any of its interest hereunder without the prior written
consent of the Lenders.
SECTION 1.13 Integration. This First Amendment represents the agreement
of the Borrower, each other Credit Party, the Agent and each of the Lenders
signatory hereto with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties relative to the subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
SECTION 1.14 Confirmation. Except as expressly amended by the terms
hereof, all of the terms of the Credit Agreement and the other Loan Documents
shall continue in full force and effect and are hereby ratified and confirmed in
all respects.
SECTION 1.15 Loan Documents. Except as expressly set forth herein, the
amendments provided herein shall not by implication or otherwise limit,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders or the Agent under the Amended Agreement or any other Loan Document, nor
shall they constitute a waiver of any Event of Default, nor shall they alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Amended Agreements or any other Loan
Document. Each of the amendments provided herein shall apply and be effective
only with respect to the provisions of the Amended Agreement specifically
referred to by such amendments. Except as expressly amended herein, the Amended
Agreement and the other Loan Documents shall continue in full force and effect
in accordance with the provisions thereof. As used in the Amended Agreement, the
terms "Agreement", "herein", "hereinafter", "hereunder", "hereto" and words of
similar import shall mean, from and after the date hereof, the Amended
Agreement.
[Signature Pages to Follow]
45
EXHIBIT 10.12(a)
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this First Amendment to be duly executed and delivered as of the date first
above written.
BORROWER:
AMERICAN COLOR GRAPHICS, INC.
By: /s/
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President/Chief
Financial Officer
ADMINISTRATIVE AGENT AND
COLLATERAL AGENT:
BANK OF AMERICA, N.A., as the Agent
By: /s/
------------------------------------
Name: Jang X. Xxx
Title: Vice President
SYNDICATION AGENT:
GECC CAPITAL MARKETS GROUP
INC., as Syndication Agent
By: /s/
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
LENDERS:
BANK OF AMERICA, N.A., as a Lender
By: /s/
------------------------------------
Name: Jang X. Xxx
Title: Vice President
46
EXHIBIT 10.12(a)
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By: /s/
------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Manager - Operations
XXXXXXX BUSINESS CREDIT
CORPORATION, as a Lender
By: /s/
------------------------------------
Name: Xxx Xxxxxx
Title: Vice President
ACKNOWLEDGED AND AGREED
BY THE UNDERSIGNED GUARANTOR:
ACG HOLDINGS, INC., a Delaware corporation
By: /s/
-----------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President/Chief Financial Officer
47
