Exhibit 10.43
THIRD AMENDMENT AND CONSENT
THIRD AMENDMENT AND CONSENT (this "Amendment"), dated as of February 23,
1999, among BIG FLOWER HOLDINGS, INC., a Delaware corporation ("Holdings"), BIG
FLOWER PRESS HOLDINGS, INC., a Delaware corporation ("BFPH"), TREASURE CHEST
ADVERTISING COMPANY, INC., a Delaware corporation and a Wholly-Owned Subsidiary
of BFPH ("Treasure Chest"), WEBCRAFT, INC., a Delaware corporation and a
Wholly-Owned Subsidiary of BFPH ("Webcraft"), BIG FLOWER DIGITAL SERVICES, INC.,
a Delaware corporation and a Wholly-Owned Subsidiary of BFPH ("BF Digital"), BIG
FLOWER LIMITED, a Wholly-Owned Subsidiary of BFPH and a limited company
organized under the laws of England ("BFL"), OLWEN DIRECT MAIL LIMITED, a
Wholly-Owned Subsidiary of BFL and a limited company organized under the laws of
England ("Olwen"), BIG FLOWER DIGITAL SERVICES LIMITED, an indirect Wholly-Owned
Subsidiary of BF Digital and a limited company organized under the laws of
England ("BFDSL"), TROYPEAK LIMITED, an indirect Wholly-Owned Subsidiary of BF
Digital and a limited company organized under the laws of England ("Troypeak"),
PISMO LIMITED, an indirect Wholly-Owned Subsidiary of BF Digital and a limited
company organized under the laws of England ("Pismo"), and BROADCAST SYSTEMS
SOFTWARE LIMITED, an indirect Wholly-Owned Subsidiary of BF Digital and a
limited company organized under the laws of England ("Broadcast", and together
with Treasure Chest, Webcraft, BF Digital, BFL, Olwen, BFDSL, Troypeak and
Pismo, the "Borrowers", and each, a "Borrower"), the Banks from time to time
party to the Credit Agreement referred to below, BANK OF AMERICA NT & SA and THE
INDUSTRIAL BANK OF JAPAN, LIMITED, as Co-Agents (collectively, the "Co-Agents,"
and each, a "Co-Agent"), CREDIT SUISSE FIRST BOSTON, as Documentation Agent, and
BANKERS TRUST COMPANY, as Administrative Agent (the "Administrative Agent"). 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, BFPH, the Borrowers, the Banks, the Co-Agents, the
Documentation Agent and the Administrative Agent are parties to an Amended and
Restated Credit Agreement, dated as of June 22, 1998 (as in effect on the date
hereof, the "Credit Agreement"); and
WHEREAS, subject to the terms and conditions of this Amendment, the Banks
hereby agree to grant certain consents under the Credit Agreement and the
parties hereto wish to amend the Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
I. AMENDMENTS AND CONSENTS TO CREDIT AGREEMENT.
1. The Banks hereby agree that the pledge of all of the shares of capital
stock of Pismo (the "Pismo Shares") to the Collateral Agent pursuant to the
Charge Over Shares and Intercompany Promissory Notes, dated as of June 22, 1998,
between BFDSL and the Collateral Agent shall be released on the Third Amendment
Effective Date (as defined below), so long as (i) BFDSL as soon as reasonably
practicable (but in any event within 5 Business Days after the Third Amendment
Effective Date) transfers the Pismo Shares to Troypeak, (ii) immediately after
giving effect to the transfer of the Pismo Shares to Troypeak contemplated
above, the Pismo Shares become subject to the Charge Over Shares and
Intercompany Promissory Notes, dated as of November 19, 1998, between Troypeak
and the Collateral Agent (as in effect on the date hereof, the "Troypeak Charge
Over Shares") and (iii) after giving effect to the release, transfer and pledge
of the Pismo Shares as contemplated above, the security interest granted to the
Collateral Agent in the Pismo Shares pursuant to the Troypeak Charge Over Shares
shall be in full force and effect and perfected (to at least the same extent as
in effect immediately prior to such release and transfer); PROVIDED that
Troypeak shall not be obligated to deliver to the Collateral Agent the share
certificates representing the Pismo Shares and any related documentation until
the earlier to occur of (x) such date as Troypeak has obtained an appropriate
stamp duty exemption or has paid the relevant stamp duty with respect to the
transfer of the Pismo Shares (for which Troypeak shall apply as soon as
reasonably practicable following the transfer of the Pismo Shares to Troypeak)
or (y) the date occurring 60 days following the transfer of the Pismo Shares to
Troypeak as contemplated above.
2. Section 9.11 of the Credit Agreement is hereby amended by inserting
the text "(other than a Negative Equity Entity)" immediately following the
phrase "in the case of a U.K. Subsidiary" appearing in clause (y)(vi) of the
first sentence of said Section.
5. The definition of "Non-Facility Letter of Credit" appearing in Section
11.01 of the Credit Agreement is hereby amended by (i) inserting the text "or
trade" immediately after the text "any standby" appearing in said definition and
(ii) deleting the word "Standby" appearing in said definition.
6. Section 11.01 of the Credit Agreement is hereby further amended by
inserting the following definition in appropriate alphabetical order in said
Section:
"Negative Equity Entity" shall mean and include any U.K. Subsidiary
which, at the time of creation or acquisition thereof, has negative net
assets or positive net assets (i.e., a stockholders' equity) of less than
L25,000 (as set forth on the balance sheet of such entity); PROVIDED that,
if at any time (i) the book value of the gross assets of any such U.K.
Subsidiary exceeds L6,000,000 or (ii) any such U.K. Subsidiary has
positive net assets in excess of L25,000 (in each case, as set forth on
the quarterly balance sheet of such entity), then on the 120th day
following the date on which such U.K. Subsidiary meets the requirements
set forth in clause (i) or (ii) above, such U.K. Subsidiary shall cease to
be a "Negative Equity Entity" for all purposes of this Agreement.
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III. MISCELLANEOUS PROVISIONS.
1. In order to induce the Banks to enter into this Amendment, each Credit
Agreement Party hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Third Amendment
Effective Date, both immediately before and immediately after giving
effect to this Amendment; 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 Third Amendment Effective Date both immediately
before and immediately after giving effect to this Amendment, with the
same effect as though such representations and warranties had been made on
and as of the Third Amendment 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 Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
3. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with Holdings and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
5. This Amendment shall become effective on the date (the "Third
Amendment Effective Date") when each Credit Agreement Party and the Banks
constituting the Required Banks 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 Third Amendment 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 Amendment as of the date first
above written.
BIG FLOWER HOLDINGS, INC.,
as a Guarantor
By /s/ Authorized Signatory
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Title:
BIG FLOWER PRESS HOLDINGS, INC.,
as a Guarantor
By /s/ Authorized Signatory
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Title:
TREASURE CHEST ADVERTISING
COMPANY, INC., as a Borrower and a Guarantor
By /s/ Authorized Signatory
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Title:
WEBCRAFT, INC.,
as a Borrower and a Guarantor
By /s/ Authorized Signatory
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Title:
BIG FLOWER DIGITAL SERVICES, INC.,
as a Borrower and a Guarantor
By /s/ Authorized Signatory
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Title:
BIG FLOWER LIMITED,
as a Borrower
By /s/ Authorized Signatory
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Title:
OLWEN DIRECT MAIL LIMITED,
as a Borrower
By /s/ Authorized Signatory
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Title:
TROYPEAK LIMITED,
as a Borrower
By /s/ Authorized Signatory
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Title:
PISMO LIMITED,
as a Borrower
By /s/ Authorized Signatory
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Title:
BIG FLOWER DIGITAL SERVICES LIMITED,
as a Borrower
By /s/ Authorized Signatory
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Title:
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BROADCAST SYSTEMS SOFTWARE LIMITED,
as a Borrower
By /s/ Authorized Signatory
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Title:
BANKERS TRUST COMPANY,
Individually, and as Administrative Agent
By /s/ Authorized Signatory
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Title:
CREDIT SUISSE FIRST BOSTON,
Individually
By /s/ Authorized Signatory
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Title:
By /s/ Authorized Signatory
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Title:
CREDIT SUISSE FIRST BOSTON,
as Documentation Agent
By /s/ Authorized Signatory
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Title:
By /s/ Authorized Signatory
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Title:
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ABN AMRO BANK N.V.,
NEW YORK BRANCH
By
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Title:
By
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Title:
BANK OF AMERICA NT & SA
By
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Title:
BANKBOSTON, N.A.
By
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Title:
BANK OF MONTREAL
By
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Title:
-0-
XXX XXXX XX XXX XXXX
By
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Title:
BANK POLSKA KASA OPIEKI, S.A.
PEKAO S.A. Group, New York Branch
By
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Title:
PARIBAS
By
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Title:
By
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Title:
FIRST UNION NATIONAL BANK
By
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Title:
CREDIT AGRICOLE INDOSUEZ
By
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Title:
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CITY NATIONAL BANK
By
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Title:
CREDIT LYONNAIS, NEW YORK BRANCH
By
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Title:
DAI-ICHI KANGYO BANK, LIMITED
By
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Title:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By
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Title:
By
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Title:
THE FUJI BANK, LIMITED
NEW YORK BRANCH
By
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Title:
-9-
ERSTE BANK DER
OESTERREICHISCHEN SPARKASSEN AG
By
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Title:
IMPERIAL BANK
By
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Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By
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Title:
NATIONSBANK, N.A.
By
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Title:
CALIFORNIA BANK AND TRUST,
formerly Sumitomo Bank of California
By
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Title:
-10-
THE TOKAI BANK, LIMITED
By
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Title:
THE TOYO TRUST & BANKING CO., LTD.
By
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Title:
UNION BANK OF CALIFORNIA, N.A.
By
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Title:
-11-
MICHIGAN NATIONAL CORPORATION
By
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Title:
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