EXHIBIT 10.25
WAIVER TO CREDIT AGREEMENT
WAIVER TO CREDIT AGREEMENT (this "Waiver"), dated as of September 28,
2001, among XXXXXX HOLDINGS, INC. (f/k/a Big Flower Holdings, Inc.), a Delaware
corporation ("Holdings"), XXXXXX, INC. (f/k/a Big Flower Press Holdings, Inc.),
a Delaware corporation ("Xxxxxx"), XXXXXX LIMITED (f/k/a Big Flower Limited), a
Wholly-Owned Subsidiary of Xxxxxx and a limited company organized under the laws
of England ("VL"), XXXXXX DIRECT MARKETING SERVICES (CROYDON) LIMITED (f/k/a
Olwen Direct Mail Limited), a Wholly-Owned Subsidiary of VL and a limited
company organized under the laws of England ("VDMS"), XXXXXX DIGITAL SERVICES
LIMITED (f/k/a Big Flower Digital Services Limited), an indirect Wholly-Owned
Subsidiary of Xxxxxx and a limited company organized under the laws of England
("VDSL"), FUSION PREMEDIA GROUP LIMITED (f/k/a Troypeak Limited), an indirect
Wholly-Owned Subsidiary of Xxxxxx and a limited company organized under the laws
of England ("Fusion"), PISMO LIMITED, an indirect Wholly-Owned Subsidiary of
Xxxxxx and a limited company organized under the laws of England ("Pismo"),
XXXXXX DIRECT RESPONSE LIMITED (f/k/a Colorgraphic Direct Response Limited), a
Wholly-Owned Subsidiary of VL and a limited company organized under the laws of
England ("VDRL"), and THE ADMAGIC GROUP LIMITED, an indirect Wholly-Owned
Subsidiary of Xxxxxx and a limited company organized under the laws of England
("Admagic" and, together with Vertis, VL, VDMS, VDSL, Fusion, Pismo and VDRL,
the "Borrowers", and each, a "Borrower"), the Lenders from time to time party to
the Credit Agreement referred to below, CHASE SECURITIES, INC. and DEUTSCHE BANK
SECURITIES, INC., as Joint Lead Arrangers and Joint Book Managers (in such
capacity, the "Joint Lead Arrangers"), THE CHASE MANHATTAN BANK, as
Administrative Agent (the "Administrative Agent"), BANKERS TRUST COMPANY, as
Syndication Agent, BANK OF AMERICA, N.A., as Documentation Agent, and certain
Managing Agents party to the Credit Agreement. All capitalized terms used herein
and not otherwise defined shall have the respective meanings provided such terms
in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Holdings, the Borrowers, the Lenders, the Agents, the Joint
Lead Arrangers and the Managing Agents are parties to a Credit Agreement, dated
as of December 7, 1999 (as amended, modified or supplemented from time to time
to but not including the date hereof, the "Credit Agreement"); and
WHEREAS, subject to the terms and conditions of this Waiver, the
Lenders wish to waive compliance with certain provisions of the Credit
Agreement, and the parties to the Credit Agreement wish to enter into certain
agreements, in each case as herein provided;
NOW, THEREFORE, it is agreed:
I. WAIVER AND AGREEMENTS.
1. The Lenders hereby waive, during (and only during) the period
commencing on September 30, 2001 and ending on November 30, 2001 (the "Waiver
Period"), compliance by Holdings with Section 9.08 of the Credit Agreement for
(and only for) the Test Period ending on the last day of the fiscal quarter of
Holdings ended September 30, 2001 (the "Subject Test Period"), it being
understood and agreed that upon the expiration of the Waiver Period, the failure
of Holdings to comply with Section 9.08 of the Credit Agreement for the Subject
Test Period shall give rise to an immediate Event of Default under Section 10.03
of the Credit Agreement.
2. The Lenders hereby waive, during (and only during) the Waiver
Period, compliance by Holdings with Section 9.09 of the Credit Agreement at all
times during the Waiver Period, it being understood and agreed that at all times
after the expiration of the Waiver Period, the failure of Holdings to comply
with Section 9.09 of the Credit Agreement shall give rise to an immediate Event
of Default under Section 10.03 of the Credit Agreement.
3. Notwithstanding anything to the contrary contained in Section
9.03(xii) of the Credit Agreement, no Dividends may be made or paid by Xxxxxx to
Holdings pursuant to said Section 9.03(xii) of the Credit Agreement at any time
during the Waiver Period.
II. MISCELLANEOUS PROVISIONS.
1. In order to induce the Lenders to enter into this Waiver, each
Credit Agreement Party hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Waiver
Effective Date (as defined below), both immediately before and immediately
after giving effect to this Waiver; and
(b) all of the representations and warranties contained in the
Credit Agreement or the other Credit Documents are true and correct in all
material respects on the Waiver Effective Date both immediately before and
immediately after giving effect to this Waiver, with the same effect as
though such representations and warranties had been made on and as of the
Waiver Effective Date (it being understood that any representation or
warranty made as of a specific date shall be true and correct in all
material respects as of such specific date).
2. This Waiver is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
3. This Waiver may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same
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instrument. A complete set of counterparts shall be lodged with Holdings and the
Administrative Agent.
4. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. This Waiver shall become effective on the date (the "Waiver
Effective Date") when each Credit Agreement Party, the Administrative Agent and
the Lenders constituting the Required Lenders shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered
(including by way of facsimile transmission) the same to the Administrative
Agent at its Notice Office.
6. From and after the Waiver Effective Date, all references in the
Credit Agreement and each of the other Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement as modified hereby.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Waiver as of the date first
above written.
XXXXXX HOLDINGS, INC. (f/k/a Big Flower
Holdings, Inc.), as a Guarantor
By /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXXX, INC. (f/k/a Big Flower Press Holdings,
Inc.), as a Borrower and a Guarantor
By /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXXX LIMITED (f/k/a Big Flower Limited)
as a Borrower
By /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
FUSION PREMEDIA GROUP LIMITED (f/k/a
Troypeak Limited), as a Borrower
By /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
PISMO LIMITED, as a Borrower
By /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
XXXXXX DIRECT RESPONSE LIMITED (f/k/a
Colorgraphic Direct Response Limited),
as a Borrower
By /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
THE ADMAGIC GROUP LIMITED, as a Borrower
By /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
XXXXXX DIRECT MARKETING SERVICES
(CROYDON) LIMITED (f/k/a Olwen Direct Mail
Limited)
By /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
XXXXXX DIGITAL SERVICES LIMITED (f/k/a
Big Flower Digital Services Limited)
By /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
THE CHASE MANHATTAN BANK,
Individually, and as Administrative Agent
By /s/ Xxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
BANKERS TRUST COMPANY,
Individually, and as Syndication Agent
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Director
BANK OF AMERICA, N.A.
Individually, and as Documentation Agent
By /s/ W. Xxxxx Xxxx
-----------------------------------------------
Name: W. Xxxxx Xxxx
Title: Managing Director
ADDISON CDO, LIMITED (Acct 1279)
By: Pacific Investment Management Company,
LLC, as its Investment Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
AMARA-I FINANCE, LTD.
By: INVESCO Senior Secured Management, Inc.
as Subadviser
By /s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
ARCHIMEDES FUNDING II, LTD.
By
------------------------------------------
Name:
Title:
ATHENA CDO, LIMITED (Acct 1227)
By: Pacific Investment Management Company,
as its Investment Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
AVALON CAPITAL LTD.
BY: INVESCO Senior Secured Management, Inc.,
as Portfolio Advisor
By /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD. II
BY: INVESCO Senior Secured Management, Inc.,
as Portfolio Advisor
By /s/ Xxxxxx Xxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
FLEET NATIONAL BANK
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
BEFORD CDO, LIMITED (Acct 1276)
By: Pacific Investment Management Company,
as its Investment Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
BLUE SQUARE FUNDING LTD., SERIES 3
By: Bankers Trust Company, as Trustee
By /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
BOEING CAPITAL CORPORATION
By /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Senior Documentation Director
CAPTIVA III FINANCE LTD.,
as advised by Pacific Investment Management
Company
By /s/ Xxxxx Xxxx
-----------------------------------------------
Name: Xxxxx Xxxx
Title: Director
CAPTIVA IV FINANCE LTD.
as advised by Pacific Investment Management
Company
By /s/ Xxxxx Xxxx
-----------------------------------------------
Name: Xxxxx Xxxx
Title: Director
CATALINA CDO LTD. (Acct 1287)
By: Pacific Investment Management Company,
as its Investment Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
THE CIT GROUP/EQUIPMENT
FINANCING, INC.
By
------------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By /s/ Xxxx XxXxxxxxx
-----------------------------------------------
Name: Xxxx XxXxxxxxx
Title: FVP
By /s/ Xxxx Xxxxxxx
-----------------------------------------------
Name: Xxxx XxXxxxx
Title: VP - SRM
CYPRESSTREE SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By
-----------------------------------------------
Name:
Title:
CYPRESTREE INVESTMENT FUND, LLC
By
-----------------------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED
By /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
DELANO COMPANY (Acct 274)
By: Pacific Investment Management Company, as its
Investment Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
ELF FUNDING TRUST I
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/ Xxxx X. Xxxxx
----------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
EMERALD ORCHARD LIMITED
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney in fact
FIRST UNION NATIONAL BANK N.C.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
AIM FLOATING RATE FUND
BY: INVESCO Senior Secured
Management, Inc. as Attorney in Fact
By
------------------------------------------------
Name:
Title:
FRANKLIN FLOATING RATE TRUST
By
------------------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORP.
By
------------------------------------------------
Name:
Title:
GLENEAGLES TRADING LLC
By /s/ Xxx X. Xxxxxx
-----------------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
HIGHLAND LEGACY LIMITED
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/ Xxxx X. Xxxxx
----------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
JISSEKIKUN FUNDING, LTD. (Acct 1288)
By: Pacific Investment Management Company,
as its Investment Advisor
By /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
KZH CYPRESSTREE-1 LLC
By /s/ Xxxxx Xxx
---------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH LANGDALE LLC
By /s/ Xxxxx Xxx
-----------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH HIGHLAND-2 LLC
By /s/ Xxxxx Xxx
-----------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH PAMCO LLC
By /s/ Xxxxx Xxx
-----------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
MAPLEWOODS (CAYMAN) LIMITED
BY: MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY, AS
INVESTMENT MANAGER
By
------------------------------------------------
Name:
Title:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By
------------------------------------------------
Name:
Title:
MASSMUTUAL HIGH YIELD PARTNERS II,
LLC
By: HYP Management, Inc.
By
------------------------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By /s/ Xxxxx Xxxxx
-----------------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
MASTER SENIOR FLOATING RATE TRUST,
INC.
By: Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
By /s/ Xxxxx Xxxxx
-----------------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
By /s/ Xxxxx Xxxxx
-----------------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
METROPOLITAN LIFE INSURANCE
COMPANY
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
ML CLO XX PILGRIM AMERICA (CAYMAN)
By
------------------------------------------------
Name:
Title:
XXXXXX XXXXXXX XXXX XXXXXX PRIME
INCOME TRUST
By
------------------------------------------------
Name:
Title:
NATEXIS BANQUE POPULAIRES
By:
-----------------------------------------------
Name:
Title:
NEMEAN CLO, LTD.
By
-----------------------------------------------
Name:
Title:
NORTH AMERICAN SENIOR FLOATING RATE
FUND
By
------------------------------------------------
Name:
Title:
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.,
its General Partner
By: Oak Hill Securities Mrp Inc.,
its General Partner
By /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II, L.P.,
its General Partner
By: Oak Hill Securities MGP II, Inc.,
its General Partner
By /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
OAKHILL CREDIT PARTNERS I, LIMITED
By: Oak Hill CLO Management, LLC
as Investment Manager
By /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
OASIS COLLATERALIZED HIGH INCOME
PORTFOLIO-1, LTD.
By: INVESCO Senior Secured Management, Inc.
as Subadviser
By /s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Rotondon
Title: Authorized Signatory
ORIX USA CORPORATION
By
------------------------------------------------
Name:
Title:
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.,
as its investment manager
By
------------------------------------------------
Name:
Title:
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.
as Collateral Manager
By /s/ Xxxx X. Xxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD.
By: Pilgrim Investments, Inc.
as its investment manager
By
------------------------------------------------
Name:
Title:
PILGRIM CLO 1999-1 LTD.
By: Pilgrim Investments, Inc.
as its investment manager
By
-----------------------------------------------
Name:
Title:
PROMETHEUS INVESTMENT FUNDING I LTD
By: CPF Asset Advisory, LLC, as Investment
Manager
By /s/ Xxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Associate Director
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
XXXXXX DIVERSIFIED INCOME TRUST
By:
-----------------------------------------------
Name:
Title:
XXXXXX HIGH YIELD ADVANTAGE FUND
By:
-----------------------------------------------
Name:
Title:
XXXXXX HIGH YIELD MANAGED TRUST
By:
-----------------------------------------------
Name:
Title:
XXXXXX HIGH YIELD TRUST
By:
-----------------------------------------------
Name:
Title:
XXXXXX HIGH YIELD TRUST II
By:
-----------------------------------------------
Name:
Title:
XXXXXX MASTER INCOME TRUST
By:
-----------------------------------------------
Name:
Title:
XXXXXX MASTERINTERMEDIATE INCOME
TRUST
By:
-----------------------------------------------
Name:
Title:
XXXXXX PREMIER INCOME TRUST
By:
-----------------------------------------------
Name:
Title:
XXXXXX STRATEGIC INCOME FUND
By:
-----------------------------------------------
Name:
Title:
XXXXXX VT DIVERSIFIED INCOME FUND
By:
-----------------------------------------------
Name:
Title:
XXXXXX VARIABLE TRUST HIGH YIELD FUND
By:
-----------------------------------------------
Name:
Title:
ROYALTON COMPANY (Acct 280)
By: Pacific Investment Management Company,
as its Investment Advisor
By /s/ Xxxxx X. Phransalkar
-----------------------------------------------
Name: Xxxxx X. Phransalkar
Title: Executive Vice President
SEQUILS - PILGRIM I, LTD.
By: Pilgrim Investments, Inc.
as its investment manager
By
-----------------------------------------------
Name:
Title:
SIMSBURY CLO, LIMITED
BY: MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY, AS
COLLATERAL MANAGER
By
-----------------------------------------------
Name:
Title:
SRV HIGHLANDS, INC.
By /s/ Xxx X. Xxxxxx
-----------------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
TEXTRON FINANCIAL CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
TORONTO DOMINION (NEW YORK), INC
By /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
TRAVELERS SERIES FUND-XXXXXX DIV.
By
-----------------------------------------------
Name:
Title:
TRITON CDO IV LIMITED
By: INVESCO Senior Secured Management, Inc.
as Investment Advisor
By /s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management, L.P.,
as Collateral Manager
By /s/ Xxxx X. Xxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
HIGHLAND LOAN FUNDING V LTD.
By: Highland Capital Management, L.P.,
as Collateral Manager
By /s/ Xxxx X. Xxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
