Exhibit 10.1
WAIVER AND AMENDMENT NUMBER THREE
TO
LOAN AND SECURITY AGREEMENT
This Waiver and Amendment Number Three to Loan and Security Agreement (this
"Amendment") is entered into as of May 12, 2005, by and among, on the one hand,
ADVANCED MARKETING SERVICES, INC., a Delaware corporation ("Parent"), PUBLISHERS
GROUP WEST INCORPORATED, a California corporation, and PUBLISHERS GROUP
INCORPORATED, a California corporation (collectively, "Borrowers"), and, on the
other hand, the lenders identified on the signature pages to the Agreement (as
defined below) ("Lenders"), and XXXXX FARGO FOOTHILL, INC., a California
corporation ("Agent"), as the arranger and administrative agent for the Lenders,
in light of the following:
A. Borrowers and the Lender Group have previously entered into that certain
Loan and Security Agreement, dated as of April 27, 2004 (as amended by the First
Amendment, and the Second Amendment the "Agreement"), that certain Amendment
Number One to Loan and Security Agreement, dated as of October 8, 2004 (the
"First Amendment"), and that certain Amendment Number Two to Loan and Security
Agreement, dated as of February 28, 2005 (the "Second Amendment").
B. Borrowers and the Lender Group desire to further amend the Agreement as
provided for and on the conditions herein.
NOW, THEREFORE, Borrowers and the Lender Group hereby amend and supplement
the Agreement as follows:
1. DEFINITIONS. All initially capitalized terms used in this Amendment
shall have the meanings given to them in the Agreement unless specifically
defined herein.
2. AMENDMENTS.
(a) The "Exhibits and Schedules" page to the Agreement shall be amended and
restated in its entirety as set forth on Exhibit A attached hereto.
(b) Schedules C-1, 5.5, 5.7(a), 5.7(b), 5.7(c), 5.8(b), 5.8(c), 5.10, 5.18
and 5.20 to the Agreement shall be amended and restated in their entirety as set
forth on Exhibit B attached hereto.
(c) Section 1.1 of the Agreement is hereby amended as follows:
(i) The defined term "Applicable Margin" is hereby amended and restated
in its entirety as follows:
"Applicable Margin" means, with respect to Base Rate Loans or LIBOR
Rate Loans, as the case may be, as of any date of determination, the margin set
forth in the following table that corresponds to the most recent TTM EBITDA
calculation (determined as set forth in the following paragraph) for the most
recently completed fiscal quarter of Parent; provided, however, that for the
period from May 12, 2005 through the date Agent receives a Compliance
Certificate in respect of the covenant testing period ending June 30, 2005, the
Applicable Margin shall be the Base Rate plus 1.50%:
1
--------------------------------------------------------------------------------
Margin above Margin above
Level TTM EBITDA Base Rate LIBOR Rate
--------------------------------------------------------------------------------
I greater than $20,000,000 0.00% 1.75%
--------------------------------------------------------------------------------
II greater than $15,000,000 0.50% 2.25%
but less than or equal to
$20,000,000
--------------------------------------------------------------------------------
III greater than $10,000,000 1.00% 2.75%
but less than or equal to
$15,000,000
--------------------------------------------------------------------------------
IV less than or equal to 1.50% 2.75%
$10,000,000
--------------------------------------------------------------------------------
The Applicable Margin shall be based upon the most recent TTM EBITDA
calculation and shall be redetermined each fiscal quarter of Parent as of the
first day of the month following the date Agent receives the certified
calculation of TTM EBITDA in a Compliance Certificate pursuant to Section
6.3(a)(ii) hereof; provided, however, that if Borrower fails to provide the
Compliance Certificate when due, the Applicable Margin shall be the margin in
the row styled "Level IV" as of the first day of the month following the date on
which the Compliance Certificate was required to be delivered until the first
day of the month following the date on which it is delivered (on which date (but
not rectroactively), without constituting a waiver of any Default or Event of
Default caused by the failure to timely deliver the Compliance Certificate, the
Applicable Margin shall be set at a margin based upon the TTM EBITDA calculation
set forth therein.
(ii) The defined term "Applicable Prepayment Premium" is hereby amended
and restated in its entirety as follows:
"Applicable Prepayment Premium" means, as of any date of
determination, an amount equal to, (i) during the period from and after the date
of the execution and delivery of the Second Amendment up to and including April
30, 2006, 1.0% times the Maximum Revolver Amount, and (ii) during the period
from and after April 30, 2006 up to and including April 30, 2007, 0.50% times
the Maximum Revolver Amount; provided, however, that if this Agreement is
terminated and the Obligations prepaid as a result of refinancing by a
commercial banking unit of Xxxxx Fargo, then the Applicable Prepayment Premium
shall be $0.
2
(iii) The defined term "Borrowing Base" is hereby amended and restated
in its entirety as follows:
"Borrowing Base" means, as of any date of determination, the result
of:
(a) the lesser of:
(i) 85% of the amount of Eligible Accounts, and
(ii) an amount equal to Borrowers' Collections with respect to
Accounts for the immediately preceding 45 day period, plus
(b) the lowest of:
(i) $30,000,000,
(ii) 35% of the value of Eligible Inventory,
(iii) 80% times the then extant Net Liquidation Percentage times the
book value of Borrowers' Inventory, and
(iv) 50% of the amount of credit availability created by clause (a)
above, minus
(c) the sum of (i) the Inventory Availability Block, (ii) the Bank
Product Reserve, (iii) the Dilution Reserve, and (iv) reserves established by
Agent under Section 2.1(b).
(iv) The defined term "Cash Dominion Triggering Event" is hereby
amended and restated in its entirety as follows:
"Cash Dominion Triggering Event" means the occurrence of any of
the following (i) an Event of Default, or (ii) Availability is less than
$20,000,000.
(v) The defined term "Collateral Reporting Triggering Event" is
deleted.
(vi) The defined term "Eligible Accounts" is hereby amended by
deleting clause (i) therein in its entirety and replaced with the following:
(i) Accounts with respect to an Account Debtor whose total
obligations owing to Borrower exceed 10% (or, with respect to Costco, 45%, or,
with respect to each of Sam's Club and BJ's Wholesale, 35%) of Eligible Accounts
(with all such percentages, as applied to a particular Account Debtor, being
subject to reduction by Agent in its Permitted Discretion if the
creditworthiness of such Account Debtor deteriorates), to the extent of the
obligations owing by such Account Debtor in excess of such percentage; provided,
however, that, in each case, the amount of Eligible Accounts that are excluded
because they exceed the foregoing percentage shall be determined by Agent based
on all of the otherwise Eligible Accounts prior to giving effect to any
eliminations based upon the foregoing concentration limit,
3
(vii) The defined term "Eligible Inventory" is hereby added to the
Agreement in the appropriate alphabetic order and shall read as follows:
"Eligible Inventory" means Inventory of Borrowers consisting of
first quality finished goods held for sale in the ordinary course of Borrowers'
business, that complies with each of the representations and warranties
respecting Eligible Inventory made in the Loan Documents, and that is not
excluded as ineligible by virtue of one or more of the excluding criteria set
forth below; provided, however, that such criteria may be revised from time to
time by Agent in Agent's Permitted Discretion to address the results of any
audit or appraisal performed by Agent from time to time after the Closing Date.
In determining the amount to be so included, Inventory shall be valued at the
lower of cost or market on a basis consistent with Borrowers' historical
accounting practices. An item of Inventory shall not be included in Eligible
Inventory if:
(a) a Borrower does not have good, valid, and marketable title
thereto,
(b) it is not located at one of the locations in the continental
United States set forth on Schedule E-1 (or in-transit from one such location to
another such location),
(c) it is not subject to a valid and perfected first priority
Agent's Lien,
(d) it consists of goods that are obsolete or slow moving,
restrictive or custom items (other than books that are printed and bound for
Borrower in a proprietary format), work-in-process, raw materials, or goods that
constitute spare parts, packaging and shipping materials, supplies used or
consumed in a Borrower's business, xxxx and hold goods, defective goods,
"seconds," or Inventory acquired on consignment,
(e) such Inventory is subject to a license agreement or other
arrangement with a third party which restricts in any material respects the
ability of the Agent to exercise its rights under this Agreement with respect to
such Inventory, or
4
(f) such Inventory is Inventory which is held by a Borrower for
return to a vendor in accordance with the terms of any agreement between such
Borrower and vendor.
provided, however, that, with respect to Inventory located at a leased facility
or a public warehouse at which the Borrowers maintain Inventory in the event the
Borrowers are not able to obtain a Collateral Access Agreement duly executed by
the landlord or warehouseman at such facility or public warehouse, as
applicable, the aggregate amount of "Eligible Inventory" shall, upon five (5)
Business Days' prior written notice to and following good faith consultation
with the Borrowers, be reduced by an inventory reserve determined from time to
time by the Agent in its commercially reasonable credit judgment on a basis
consistent with credit procedures for lending and in an amount equal to the
lesser of (A) three (3) months rent for such leased facility or public warehouse
or (B) the aggregate value of the Eligible Inventory located at such leased
facility or public warehouse.
(viii) The defined term "Fee Letter" is hereby amended and restated
in its entirety as follows:
"Fee Letter" means that certain amended and restated fee letter,
dated as of May 12, 2005, between Borrowers and Agent, in form and substance
satisfactory to Agent.
(ix) The defined term "Financial Covenant Triggering Event" is
deleted.
(x) The defined term "First Amendment" is hereby added to the
Agreement in the appropriate alphabetic order and shall read as follows:
"First Amendment" means that certain Amendment Number One to Loan
and Security Agreement dated as of October 8, 2004 by and among the Borrowers
and Agent.
(xi) The defined term "Inventory Availability Block" is hereby added
in the appropriate alphabetic order and shall read as follows:
"Inventory Availability Block" means a reserve in an amount equal
to the amount of credit availability created by clause (b) of the definition of
"Borrowing Base"; provided, however, that such reserve shall be eliminated upon
Agent's receipt of an Inventory appraisal performed by Hilco Appraisal Services,
Inc.
(xii) The defined term "Maximum Revolver Amount" is hereby amended
and restated in its entirety as follows:
"Maximum Revolver Amount" means $90,000,000.
5
(xiii) The defined term "Net Liquidation Percentage" is hereby added
to the Agreement in the appropriate alphabetic order and shall read as follows:
"Net Liquidation Percentage" means the percentage of the book
value of Borrowers' Inventory that is estimated to be recoverable in an orderly
liquidation of such Inventory, such percentage to be as determined from time to
time by a qualified appraisal company selected by Agent.
(xiv) The defined term "Required Lenders" is hereby amended and
restated in its entirety as follows:
"Required Lenders" means, at any time, Lenders whose aggregate Pro
Rata Shares (calculated under clause (d) of the definition of Pro Rata Shares)
equal or exceed 66-2/3%, but in any event no fewer than two Lenders if there
exist at least two Lenders at such time.
(xv) The defined term "Second Amendment" is hereby added to the
Agreement in the appropriate alphabetic order and shall read as follows:
"Second Amendment" means that certain Amendment Number Two to Loan
and Security Agreement, dated as of February 28, 2005 by and among the Borrowers
and Agent.
(xvi) The defined term "Third Amendment" is hereby added to the
Agreement in the appropriate alphabetic order and shall read as follows:
"Third Amendment" means that certain Waiver and Amendment Number
Three to Loan and Security Agreement, dated as of May 12, 2005 by and among the
Borrowers and Agent.
(d) The second paragraph of Section 2.6(a) of the Agreement is hereby
amended and restated in its entirety as follows:
The foregoing notwithstanding, at no time shall any portion of the
Obligations (other than Bank Product Obligations) bear interest on the Daily
Balance thereof at a per annum rate less than 4.50%. To the extent that interest
accrued hereunder at the rate set forth herein would be less than the foregoing
minimum daily rate, the interest rate chargeable hereunder for such day
automatically shall be deemed increased to the minimum rate.
(e) Section 2.11(c) of the Agreement is hereby amended and restated in
its entirety as follows:
(c) Audit, Appraisal, and Valuation Charges; Annual Appraisals.
Audit, appraisal, and valuation fees and charges as follows (i) a fee of $850
per day, per auditor, plus out-of-pocket expenses for each collateral audit of a
Borrower performed by personnel employed by Agent, which collateral audits may
be performed as frequently as Agent deems necessary, provided, however,
Borrowers shall not be obligated to reimburse Agent for more than 2 collateral
audits during any calendar year (with additional collateral audits at the
Agent's expense), (ii) if implemented, a fee of $850 per day, per applicable
individual, plus out of pocket expenses for the establishment of electronic
collateral reporting systems, (iii) a fee of $1,500 per day per appraiser, plus
out-of-pocket expenses, for each appraisal of the Collateral, or any portion
thereof, performed by personnel employed by Agent, and (iv) the actual charges
paid or incurred by Agent if it elects to employ the services of one or more
third Persons to perform financial audits of Borrowers or their Subsidiaries, to
establish electronic collateral reporting systems, to appraise the Collateral,
or any portion thereof, or to assess Borrowers' and their Subsidiaries' business
valuation. Agent shall have the right to have the Inventory reappraised by a
qualified appraisal company selected by Agent: (1) except as provided in clauses
(2) and (3) below, once during any year following the Closing Date for the
purpose of redetermining the Net Liquidation Percentage of the Inventory portion
of the Collateral and, as a result, redetermining the Borrowing Base, (2) at any
time following an appraisal, the results of which are not satisfactory to Agent,
and (3) at any time following the occurrence of an Event of Default which is
continuing.
6
(f) The first paragraph of Section 2.12(a) of the Agreement is hereby
amended and restated in its entirety as follows:
(a) Subject to the terms and conditions of this Agreement, the
Issuing Lender agrees to issue letters of credit for the account of Borrowers
(each, an "L/C") or to purchase participations or execute indemnities or
reimbursement obligations (each such undertaking, an "L/C Undertaking") with
respect to letters of credit issued by an Underlying Issuer (as of the Closing
Date, the prospective Underlying Issuer is to be Xxxxx Fargo) for the account of
Borrowers. Each request for the issuance of a Letter of Credit or the amendment,
renewal, or extension of any outstanding Letter of Credit shall be made in
writing by an Authorized Person and delivered to the Issuing Lender and Agent
via hand delivery, telefacsimile, or other electronic method of transmission
reasonably in advance of the requested date of issuance, amendment, renewal, or
extension. Each such request shall be in form and substance satisfactory to the
Issuing Lender in its Permitted Discretion and shall specify (i) the amount of
such Letter of Credit, (ii) the date of issuance, amendment, renewal, or
extension of such Letter of Credit, (iii) the expiration of such Letter of
Credit, (iv) the name and address of the beneficiary thereof (or the beneficiary
of the Underlying Letter of Credit, as applicable), and (v) such other
information (including, in the case of an amendment, renewal, or extension,
identification of the outstanding Letter of Credit to be so amended, renewed, or
extended) as shall be necessary to prepare, amend, renew, or extend such Letter
of Credit. If requested by the Issuing Lender, Borrowers also shall be an
applicant under the application with respect to any Underlying Letter of Credit
that is to be the subject of an L/C Undertaking. The Issuing Lender shall have
no obligation to issue a Letter of Credit if any of the following would result
after giving effect to the issuance of such requested Letter of Credit:
7
(i) the Letter of Credit Usage would exceed the Borrowing Base
less the outstanding amount of Advances, or
(ii) the Letter of Credit Usage would exceed $30,000,000, or
(iii) the Letter of Credit Usage would exceed the Maximum Revolver
Amount less the outstanding amount of Advances.
(g) Section 2.13(b)(i) of the Agreement is hereby amended and restated
in its entirety as follows:
(i) Administrative Borrower may, at any time and from time to
time, so long as (1) no Event of Default has occurred and is continuing, and (2)
TTM EBITDA is greater than $10,000,000, elect to exercise the LIBOR Option by
notifying Agent prior to 11:00 a.m. (California time) at least 3 Business Days
prior to the commencement of the proposed Interest Period (the "LIBOR
Deadline"). Notice of Administrative Borrower's election of the LIBOR Option for
a permitted portion of the Advances and an Interest Period pursuant to this
Section shall be made by delivery to Agent of a LIBOR Notice received by Agent
before the LIBOR Deadline, or by telephonic notice received by Agent before the
LIBOR Deadline (to be confirmed by delivery to Agent of a LIBOR Notice received
by Agent prior to 5:00 p.m. (California time) on the same day). Promptly upon
its receipt of each such LIBOR Notice, Agent shall provide a copy thereof to
each of the Lenders having a Revolver Commitment.
(h) Section 5.3 of the Agreement is hereby amended and restated in its
entirety as follows:
5.3 Eligible Inventory. All Eligible Inventory is of good and
merchantable quality, free from known defects. As to each item of Inventory that
is identified by Administrative Borrower as Eligible Inventory in a borrowing
base report submitted to Agent, such Inventory is not excluded as ineligible by
virtue of one or more of the excluding criteria set forth in the definition of
Eligible Inventory.
(i) The table in Section 6.2 of the Agreement is hereby amended and
restated in its entirety as follows:
8
================================================================================
Weekly (a) a sales journal, collection journal, and credit
register since the last such schedule, a report
regarding credit memoranda that have been issued since
the last such report, and a calculation of the
Borrowing Base as of such date, and
(b) Inventory reports specifying the cost of Borrowers' and
their Subsidiaries Inventory, by category, and
--------------------------------------------------------------------------------
Monthly (not later (c) a detailed calculation of the Borrowing Base (including
than the 10th day detail regarding those Accounts of Borrowers that are
of each month) not Eligible Accounts),
(d) a detailed aging, by total, of the Accounts of
Borrowers, together with a reconciliation to the
detailed calculation of the Borrowing Base previously
provided to Agent, and together with a reconciliation
to the general ledger,
(e) a summary aging, by vendor, of Borrowers' and their
Subsidiaries' accounts payable, accrued expenses, held
check listing and any book overdraft, together with a
reconciliation to the general ledger,
(f) a detailed report regarding Borrowers' and their
Subsidiaries' cash and Cash Equivalents including an
indication of which amounts constitute Qualified Cash,
and
--------------------------------------------------------------------------------
Quarterly (g) a detailed list of each Borrower's and each of its
Subsidiaries' customers,
(h) a report regarding each Borrower's and each of its
Subsidiaries' accrued, but unpaid, ad valorem taxes,
and
--------------------------------------------------------------------------------
Upon request by (i) copies of invoices in connection with Borrowers' and
Agent their Subsidiaries' Accounts, credit memos, remittance
advices, deposit slips, shipping and delivery documents
in connection with Borrowers' and their Subsidiaries'
Accounts and, for Inventory and Equipment acquired by
Borrowers or their Subsidiaries, purchase orders and
invoices,
(j) such other reports as to the Collateral or the
financial condition of Borrowers and their
Subsidiaries, as Agent may request, and
(k) notice of all claims, offsets, or disputes asserted by
Account Debtors with respect to Borrowers' and their
Subsidiaries' Accounts.
================================================================================
(j) Section 7.18 of the Agreement is hereby amended and restated in its
entirety as follows:
7.18 Financial Covenants.
(a) Fail to maintain or achieve:
9
(i) Minimum EBITDA. EBITDA, measured on a quarterly basis, of at
least the required amount set forth in the following table for the applicable
period set forth opposite thereto:
--------------------------------------------------------------------------------
Applicable Amount Applicable Period
--------------------------------------------------------------------------------
($4,600,000) For the 3 month period
ending June 30 2005
--------------------------------------------------------------------------------
$(1,949,000) For the 6 month period
ending September 30, 2005
--------------------------------------------------------------------------------
$10,212,000 For the 9 month period
ending December 31, 2005
--------------------------------------------------------------------------------
$7,265,000 For the 12 month period
ending March 31, 2006
--------------------------------------------------------------------------------
The "Applicable Amount(s)" for such future For the trailing 12 month period
periods shall be determined by Agent in its ending on the last day of each
sole discretion based upon, among other fiscal quarter of Administrative
things, the Projections to be delivered to Borrower thereafter.
Agent (pursuant to Section 6.3(c) of the
Agreement) prior to the commencement of
Parent's 2007 fiscal year. Within 30 days of
Agent's receipt of such Projections, Agent
shall advise Borrowers in writing of such
future "Applicable Amount(s)".
--------------------------------------------------------------------------------
(b) Make:
(ii) Capital Expenditures. Capital Expenditures in excess of
$8,441,000 for Parent's 2006 fiscal year. For Parent's fiscal years 2007 and
beyond such amount shall be determined by Agent in its sole discretion based
upon, among other things, the Projections to be delivered to Agent (pursuant to
Section 6.3(c) of the Agreement) prior to the commencement of Parent's 2007
fiscal year. Within 30 days of Agent's receipt of such Projections, Agent shall
advise Borrowers in writing of such future amounts.
3. WAIVER. Borrowers hereby request and Agent and the Lenders hereby agree
to waive, effective as of April 29, 2005, the Cash Dominion Triggering Event and
the Collateral Reporting Triggering Event that occurred on April 29, 2005 as a
result of Borrowing Base Availability being less than $10,000,000.
4. EXTENSIONS. Pursuant to Section 6.3(d) of the Agreement, Borrowers are
required to deliver to Agent, with copies to each Lender, certain consolidated
financial statements of Parent and its Subsidiaries for each fiscal year,
audited by independent certified public accountants. Borrowers hereby request
and Agent and the Lenders hereby agree to extend to July 31, 2005 the date that
the Borrowers are required to deliver such financial statements for Parent's
fiscal year ending March 31, 2004. In addition, Borrower hereby request and
Agent and the Lenders hereby agree to extend to October 31, 2005 the date that
the Borrowers are required to deliver such financial statements for Parent's
fiscal year ending March 31, 2005.
10
5. REPRESENTATIONS AND WARRANTIES. Borrowers hereby affirm to the Lender
Group all of Borrowers' representations and warranties set forth in the
Agreement are true, complete and accurate in all respects as of the date hereof.
6. NO DEFAULTS. Borrowers hereby affirm to the Lender Group that no Event
of Default has occurred and is continuing as of the date hereof.
7. CONDITIONS PRECEDENT. The effectiveness of this Amendment is expressly
conditioned upon: (i) the receipt by Agent of a fully executed copy of this
Amendment and the Fee Letter; (ii) payment to Agent of fees payable under the
Fee Letter, which fees will be charged to Borrowers' Loan Account pursuant to
Section 2.6(d) of the Agreement; (iii) the receipt by Agent of a certificate of
status with respect to each Borrower, dated within 10 days of this Amendment,
such certificate to be issued by an appropriate officer of the jurisdiction of
organization of such Borrower, which certificate shall indicate that such
Borrower is in good standing in such jurisdiction; (iv) completion of Agent's
business, legal and collateral due diligence, the results of which are
satisfactory to Agent; and (v) review of Borrowers' business plan, the results
of which are satisfactory to Agent.
8. CONDITIONS SUBSEQUENT. The failure to satisfy any of the following
conditions subsequent shall constitute an Event of Default:
(a) Within 15 days of the Amendment, Agent shall have received (i)
updated Schedules 5.16 and 5.18 to the Agreement, (ii) an Amendment to
Memorandum of Security Interest in Intellectual Property with schedules attached
thereto, and (iii) an opinion of Borrowers' counsel in form and substance
satisfactory to Agent; and
(b) Within 30 days of the Amendment, Agent shall have received
certificates of status with respect to each Borrower, each dated within 30 days
of this Amendment, such certificates to be issued by the appropriate officer of
the jurisdictions (other than the jurisdiction of organization of such Borrower)
in which its failure to be duly qualified or licensed would constitute a
Material Adverse Change, which certificates shall indicate that such Borrower is
in good standing.
9. COSTS AND EXPENSES. Borrowers shall pay to Agent all of the Lender
Group's out-of-pocket costs and expenses (including, without limitation, the
fees and expenses of its counsel, which counsel may include any local counsel
deemed necessary, search fees, filing and recording fees, documentation fees,
appraisal fees, travel expenses, and other fees) arising in connection with the
preparation, execution, and delivery of this Amendment and all related
documents.
11
10. LIMITED EFFECT. In the event of a conflict between the terms and
provisions of this Amendment and the terms and provisions of the Agreement, the
terms and provisions of this Amendment shall govern. In all other respects, the
Agreement, as amended and supplemented hereby, shall remain in full force and
effect.
11. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which when so executed and delivered shall be deemed to be an original. All
such counterparts, taken together, shall constitute but one and the same
Amendment. This Amendment shall become effective upon the execution of a
counterpart of this Amendment by each of the parties hereto.
[Signature follow on next page]
12
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
XXXXX FARGO FOOTHILL, INC.,
a California corporation, as Agent and a Lender
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Title: Vice President
----------------------------------------
ADVANCED MARKETING SERVICES, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Title: EVP, CFO
----------------------------------------
PUBLISHERS GROUP WEST
INCORPORATED, a California corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Title: EVP, CFO
----------------------------------------
PUBLISHERS GROUP INCORPORATED,
a California corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Title: EVP, CFO
----------------------------------------
13
Exhibit A
EXHIBITS AND SCHEDULES
Exhibit A-1 Form of Assignment and Acceptance
Exhibit C-1 Form of Collateral Access Agreement (Landlord Waiver)
Exhibit C-2 Form of Compliance Certificate
Exhibit L-1 Form of LIBOR Notice
Schedule A-1 Agent's Account
Schedule C-1 Commitments
Schedule D-1 Designated Account
Schedule E-1 Eligible Inventory Locations
Schedule P-1 Permitted Investments
Schedule P-2 Permitted Liens
Schedule R-1 Real Property Collateral
Schedule 2.7(a) Cash Management Banks
Schedule 5.5 Locations of Inventory and Equipment
Schedule 5.7(a) States of Organization
Schedule 5.7(b) Chief Executive Offices
Schedule 5.7(c) Organizational Identification Numbers
Schedule 5.7(d) Commercial Tort Claims
Schedule 5.8(b) Capitalization of Borrowers
Schedule 5.8(c) Capitalization of Borrowers' Subsidiaries
Schedule 5.10 Litigation
Schedule 5.14 Environmental Matters
Schedule 5.16 Intellectual Property
Schedule 5.18 Deposit Accounts and Securities Accounts
Schedule 5.20 Permitted Indebtedness
Exhibit A
Schedule C-1
------------
Commitments
================================================================================
Lender Revolver Commitment
================================================================================
Xxxxx Fargo Foothill, Inc. $90,000,000
================================================================================
================================================================================
================================================================================
================================================================================
================================================================================
All Lenders $90,000,000
================================================================================