EXHIBIT 10.1
EXECUTION
WORLD COLOR PRESS, INC.
LIMITED WAIVER, CONSENT AND SECOND AMENDMENT
TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
This LIMITED WAIVER, CONSENT AND SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED CREDIT AGREEMENT (this "Amendment") is dated as of June 9, 1997 and
entered into by and among WORLD COLOR PRESS, INC., a Delaware corporation
("Company"), the Lenders party to the Credit Agreement referred to below on
the date hereof (the "Lenders"), and BANKERS TRUST COMPANY, as
Administrative Agent, and, for purposes of Section 8 hereof, THE SUBSIDIARIES
OF COMPANY LISTED ON THE SIGNATURE PAGES HERETO (each a "Guarantor" and
collectively, the "Guarantors"). All capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Credit
Agreement (as defined below).
RECITALS
WHEREAS, Company, the Lenders, BancAmerica Securities, Inc., as
Syndication Agent, Citibank, N.A., as Documentation Agent and Bankers Trust
Company, as Administrative Agent are parties to that certain Second Amended
and Restated Credit Agreement dated as of June 6, 1996, as amended or
modified by that certain First Amendment to Second Amended and Restated
Credit Agreement dated as of June 10, 1996 (as so amended and modified, the
"Credit Agreement");
WHEREAS, Company has informed Administrative Agent and Lenders that
Company plans to form a special purpose corporation or other entity solely
for the purpose of acquiring Receivables Assets from Company and certain of
its other Subsidiaries and engaging in activities related thereto (such
special purpose entity, the "New Receivables SPC") and, together with the
New Receivables SPC and such other Subsidiaries, to enter into a receivables
facility (the "New Receivables Facility") with ABN Amro Bank, N.V. ("ABN
Amro") and Amsterdam Funding Corporation ("Amsterdam Funding") and certain
other parties, as described in the term sheet describing the New Receivables
Facility a copy of which
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will be delivered to Administrative Agent and each Lender prior to the First
Effective Date (as defined herein) (the "New Receivables Facility Term
Sheet").
WHEREAS, the parties hereto wish to (i) waive and modify compliance with
the provisions of subsections 2.1A(ii)(b)(1), 2.4A(ii)(f), 2.4A(iii)(b),
2.4A(iii)(c) and 2.4D of the Credit Agreement to the extent such subsections
require that the Receivables Proceeds from the New Receivables Facility (the
"New Receivables Proceeds") be applied to repay the Tranche C Acquisition
Term Loans and permanently reduce the Tranche B Commitments and Revolving
Loan Commitments in the manner and to the limited extent described herein,
(ii) waive compliance with the provisions of subsections 5.8 and 5.13 of the
Credit Agreement in the manner and to the limited extent described herein,
(iii) amend the applicable interest margin for certain Loans extended
pursuant to the Credit Agreement, (iv) modify certain financial covenants and
(v) make certain other amendments as set forth below.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as
follows:
1. LIMITED WAIVERS
Subject to the terms and conditions set forth herein and in reliance on
the representations and warranties of Company herein contained, Lenders
hereby waive and modify compliance with:
(i) the order of application of the New Receivables Proceeds to the Loans
and Commitments required pursuant to subsections 2.4A(ii)(f), 2.4A(iii)(b)
and 2.4A(iii)(c) of the Credit Agreement solely to the extent necessary such
that (a) the first $55,000,000 of New Receivables Proceeds shall be applied
as follows: (x) $30,000,000 shall be applied to prepay the entire principal
amount of the Existing Term Loans scheduled to be repaid in Fiscal Year 1998
(it being understood that the amortization of the Existing Term Loans shall
be as provided under Scheduled Existing Term Repayment Amount I whether or
not an Additional Subordinated Indebtedness Refinancing occurs after the date
hereof) and (y) $25,000,000 shall be applied to prepay the entire principal
amount of Tranche A Acquisition Term Loans scheduled to be repaid in Fiscal
Year 1998 (it being understood that the amortization of the Tranche A
Acquisition Term Loans
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shall be as provided under Scheduled Tranche A Repayment Amount I whether or
not an Additional Subordinated Indebtedness Refinancing occurs after the date
hereof) and (b) the remaining amount of New Receivables Proceeds up to
$145,000,000 shall be applied as follows: (x) the first $100,000,000 shall be
applied to prepay the principal amount of the Tranche B Acquisition Term
Loans and (y) the remaining portion of such New Receivables Proceeds whenever
received up to $45,000,000 shall be applied to prepay the principal amount of
the Revolving Loans;
(ii) the provisions of subsections 2.1A(ii)(b)(1), 2.4A(ii)(f),
2.4A(iii)(b), 2.4A(iii)(c) and 2.4D of the Credit Agreement to the extent and
only to the extent that such subsections require that the Revolving Loan
Commitments and Tranche B Commitments be reduced in connection with the
application of the remaining $145,000,000 of New Receivables Proceeds
described in clause (i)(b) above; and
(iii) the provisions of subsection 5.8 to the extent that such provisions
require that the New Receivables SPC execute and deliver the Guaranty and a
counterpart to the Security Agreement; provided that Company shall promptly
cause all of the equity and any Intercompany Indebtedness owed by the New
Receivables SPC to the Company or any of its Subsidiaries to be pledged to
Collateral Agent under the Security Agreement as required under subsection
5.8.
2. AMENDMENTS
2.1 Amendments to Section 1: Definitions
A. Subsection 1.1 of the Credit Agreement is hereby amended by amending
the definition of "Consolidated Excess Cash Flow" therein by adding the
following after the words "(except to the extent of any such Consolidated
Capital Expenditures financed during such Fiscal Year from the proceeds of
Indebtedness incurred for such purpose)" in clause (c) thereof:
"minus cash the Company uses to make Acquisitions during such Fiscal
Year (except to the extent that any such Acquisition is made during such
Fiscal Year with the proceeds of Indebtedness incurred for such purpose
or the Cash Proceeds of any Asset Sale)".
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B. Subsection 1.1 of the Credit Agreement is hereby amended by amending
and restating the definition of "Receivables Assets" as follows:
"Receivables Assets" means any accounts receivable arising in
connection with the sale of inventory or services of Company or any of
its Subsidiaries in the ordinary course of business and any related
contract rights with respect to such accounts receivable (including,
without limitation, rights with respect to such accounts receivable
under printing contracts and security interests), any books, records and
other documents or information (including computer programs, tapes,
disks, software and related property and rights) with respect to, in
each case, such accounts receivable and any lock boxes or Deposit
Accounts into which only the proceeds of accounts receivable or any
contract rights with respect to accounts receivable are transferred and
any proceeds of the foregoing."
C. Subsection 1.1 of the Credit Agreement is hereby amended by amending
the definition of "Receivables SPC" therein by adding the following after
the word "means" therein, it being understood that the New Receivables SPC
shall be a Subsidiary of the Company that is a Receivables SPC under the Loan
Documents:
"a Subsidiary or".
D. Subsection 1.1 of the Credit Agreement is hereby amended by amending
the definition of "Indebtedness" by adding the following after the words
"Consolidated Total Indebtedness" contained in the proviso therein:
"and subsection 7.2".
E. Subsection 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definitions, which shall be inserted in proper
alphabetical order:
"Cumulative Receivables Proceeds Prepayment Amount" means an amount
equal to (i) the aggregate of all Receivables Proceeds Prepayment
Amounts minus (ii) prepayments that have occurred pursuant to subsection
2.4A(ii)(f) as a result of the increase of the New Receivables Facility
over and above $200,000,000; provided that no Receivables Proceeds
Prepayment Amount calculated with respect to any Acquisition shall be
counted for purposes of clause (i) above to the extent
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that, at the time the applicable New Receivables Proceeds are received
and a calculation is required pursuant to the proviso of subsection
2.4A(ii)(f), the Receivables Assets allocable to the business acquired
in such Acquisition are not being transferred to the New Receivables SPC
under the New Receivables Documents."
"New Receivables Agreement" means that certain receivables sale
agreement among New Receivables SPC (as defined in the Second
Amendment), Amsterdam Funding Corporation and certain other parties, as
such agreement may be amended, restated, supplemented or otherwise
modified from time to time.
"New Receivables Documents" means the New Receivables Agreement
together with the documents entered into by Company or any of its
Subsidiaries in connection therewith or pursuant thereto, including,
without limitation, each agreement between Company and one or more of
its Subsidiaries which provides for the transfer of Receivables Assets,
as the same may be amended, restated, supplemented or otherwise modified
from time to time."
"New Receivables Facility" means that certain receivables facility with
Amsterdam Funding Corporation approved by Lenders pursuant to the Second
Amendment in the initial aggregate principal amount of approximately
$200,000,000."
"New Receivables Proceeds" means the Receivables Proceeds received by
the Company or any of its Subsidiaries in connection with the New
Receivables Facility."
"Receivables Proceeds Prepayment Amount" means in connection with any
Acquisition consummated after the effectiveness of the Second Amendment
which the Company directly or indirectly consummates with proceeds of
any Loans, an amount equal to (i) the product of (a) the accounts
receivable of the Target of such Acquisition or the accounts receivable
allocable to the assets of the Target being acquired in such Acquisition
that would qualify as "eligible receivables" under the New Receivables
Agreement as in effect on the date of such Acquisition to the extent
reflected on the consolidated financial statements of Company as of the
time immediately following such Acquisition and (b) a fraction, the
numerator of which equals the amount of
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cash consideration financed directly or indirectly with Loans and the
denominator of which equals the aggregate cash consideration paid by the
Company and its Subsidiaries in connection with such Acquisition,
multiplied by (ii) 80%."
"Second Amendment" means that certain Limited Waiver, Consent and
Second Amendment to Second Amended and Restated Credit Agreement dated
as of June 9, 1997 among Company, Lenders, Administrative Agent and the
Subsidiaries of Company listed on the signature pages thereto.
2.2 Amendments to Section 2: Amounts and Terms of Commitments and
Loans; Notes
A. Rate of Interest.
(i) Applicable Margin. Subsection 2.2A(i) is hereby amended by deleting
the table set forth therein in its entirety and substituting the following
therefor, with the understanding that the Applicable Margin with respect to
outstanding Loans will change upon the effectiveness of this subsection
2.2A(i):
APPLICABLE APPLICABLE
LEVERAGE RATIO MARGIN I MARGIN II
---------------------- ----------- -----------
Less than 2.50:1.00 0.000% 0.000%
2.50:1.00--2.99:1.00 0.000% 0.000%
3.00:1.00--3.49:1.00 0.000% 0.000%
3.50:1.00--3.99:1.00 0.000% 0.000%
4.00:1.00--4.49:1.00 0.000% 0.000%
4.50:1.00 and greater 0.250% 0.125%
(ii) Applicable Eurodollar Rate Margin. Subsection 2.2A(ii) is hereby
amended by deleting the table set forth therein in its entirety and
substituting the following therefor with the understanding that the
Applicable Eurodollar Rate Margin with respect to outstanding Loans will
change upon the effectiveness of this subsection 2.2A(ii):
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APPLICABLE APPLICABLE
EURODOLLAR EURODOLLAR
LEVERAGE RATIO RATE MARGIN I RATE MARGIN II
---------------------- --------------- ---------------
Less than 2.50:1.00 0.250% 0.125%
2.50:1.00--2.99:1.00 0.375% 0.250%
3.00:1.00--3.49:1.00 0.625% 0.500%
3.50:1.00--3.99:1.00 0.750% 0.625%
4.00:1.00--4.49:1.00 1.000% 0.875%
4.50:1.00 and greater 1.250% 1.125%
B. Prepayments from Proceeds of Permitted Receivables Transaction.
Subsection 2.4A(ii)(f) is hereby amended by adding the following proviso at
the end thereof:
"; provided that New Receivable Proceeds (as defined in the Second
Amendment) received by Company or any of its Subsidiaries that
constitute an increase in the New Receivables Facility to an amount
greater than $200,000,000 shall not be required to be applied to prepay
the Loans and reduce the Commitments as provided herein except to the
extent of the Cumulative Receivables Proceeds Prepayment Amount in
effect at the time of such receipt by the Company or such Subsidiary of
Company."
C. Prepayments and Reductions Due to Issuance of Debt. Subsection
2.4A(ii)(c) is hereby amended by adding the following proviso at the end of
the first sentence thereof:
"; provided, further that cash proceeds (net of underwriting discounts
and commissions and other reasonable costs associated therewith) from
the issuance or sale of any Additional Subordinated Indebtedness or
other debt Securities of Company or any of its Subsidiaries shall not
include any Receivables Proceeds for purposes of this subsection
2.4A(ii)(c)."
2.3. Amendments to Section 5: Affirmative Covenants
Deposit Accounts and Cash Management Systems. Subsection 5.13 is hereby
amended by adding the following at the end thereof:
"Notwithstanding anything herein and to the contrary, this subsection
5.13 shall not apply to any Deposit Accounts of the New Receivables SPC
or any Deposit Accounts of Company which only hold payments in respect
of Receivables
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Assets which Receivables Assets have been transferred to the New
Receivables SPC."
2.4. Amendments to Section 6: Negative Covenants
A. Indebtedness. Subsection 6.1 is hereby amended by deleting the period
at the end of subsection 6.1(xii), adding a semi-colon in its place and by
adding new subsections 6.1(xiii) and 6.1(xiv) thereto as follows:
"(xiii) New Receivables SPC (as defined in the Second Amendment) may
become and remain liable with respect to any Indebtedness under the New
Receivables Documents; provided that neither Company nor any of its
other Subsidiaries (other than the New Receivables SPC) shall have
guarantied or pledged any of their respective assets to secure such
Indebtedness, it being understood that Company may enter into customary
unsecured indemnities (as reasonably determined by Company) under the
New Receivables Documents (including without limitation an indemnity as
to customary yield protection, increased cost and reduced return
obligations (as reasonably determined by the Company) of the New
Receivables SPC); provided that such indemnities do not constitute a
guaranty of collectibility of any Receivables Assets or a guaranty of
the payment of principal or interest of any Indebtedness of the New
Receivables SPC (or the equivalent with respect to Receivables Assets
sold by the New Receivables SPC); and
(xiv) New Receivables SPC (as defined in the Second Amendment) may
become and remain liable with respect to promissory notes issued to
Company or any Subsidiary of Company that evidence payment of the
purchase price of Receivables Assets acquired by the New Receivables SPC
(as defined in the Second Amendment) from the Company or such Subsidiary
as provided for under the New Receivables Documents."
B. Liens. Subsection 6.2 is hereby amended by deleting the period at the
end of subsection 6.2(vi), adding a semi-colon in its place and by adding new
subsection 6.2(vii) thereto as follows:
"and (vii) Liens granted by the New Receivables SPC (as defined in the
Second Amendment) in its Receivables Assets and in its rights under the
New Receivables Documents pursuant to the New Receivables Documents."
C. Investments; Joint Ventures. Subsection 6.3 is hereby amended by
deleting the period at the end of subsection
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6.3(xi), adding a semi-colon in its place and by adding new subsections
6.3(xii) and 6.3(xiii) thereto as follows:
"(xii) Company may own the equity interests in the New Receivables
SPC (as defined in the Second Amendment); and
(xiii) Company and its Subsidiaries may receive and hold promissory
notes issued by the New Receivables SPC (as defined in the Second
Amendment) in connection with the sale of Receivable Assets to the New
Receivables SPC (as defined in the Second Amendment) as provided under
the New Receivables Documents."
D. Contingent Obligations. Subsection 6.4 is hereby amended by deleting
the period at the end of subsection 6.4(vi), adding a semi-colon in its place
and by adding new subsection 6.4(viii) thereto as follows:
"(viii) New Receivables SPC may become and remain liable with respect
to Contingent Obligations incurred pursuant to the New Receivables
Documents."
E. Consolidated Fixed Charge Coverage Ratio. Subsection 6.6A is hereby
amended by deleting the table set forth therein in its entirety and
substituting the following therefor:
MINIMUM
CONSOLIDATED
FIXED CHARGE
REFERENCE DATE COVERAGE RATIO
-------------- --------------
Second Fiscal Quarter 1996.............. 1.85:1.00
Third Fiscal Quarter 1996............... 1.90:1.00
Fourth Fiscal Quarter 1996.............. 2.00:1.00
First Fiscal Quarter 1997............... 2.00:1.00
Second Fiscal Quarter 1997.............. 2.00:1.00
Third Fiscal Quarter 1997............... 2.00:1.00
Fourth Fiscal Quarter 1997.............. 2.00:1.00
First Fiscal Quarter 1998............... 2.00:1.00
Second Fiscal Quarter 1998.............. 1.75:1.00
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MINIMUM
CONSOLIDATED
FIXED CHARGE
REFERENCE DATE COVERAGE RATIO
-------------- --------------
Third Fiscal Quarter 1998............... 1.75:1.00
Fourth Fiscal Quarter 1998.............. 1.50:1.00
First Fiscal Quarter 1999............... 1.50:1.00
Second Fiscal Quarter 1999.............. 1.30:1.00
Third Fiscal Quarter 1999............... 1.30:1.00
Fourth Fiscal Quarter 1999.............. 1.30:1.00
First Fiscal Quarter 2000............... 1.30:1.00
Second Fiscal Quarter 2000.............. 1.30:1.00
Third Fiscal Quarter 2000............... 1.30:1.00
Fourth Fiscal Quarter 2000.............. 1.20:1.00
First Fiscal Quarter 2001............... 1.20:1.00
Second Fiscal Quarter 2001.............. 1.20:1.00
Third Fiscal Quarter 2001............... 1.20:1.00
Fourth Fiscal Quarter 2001.............. 1.20:1.00
First Fiscal Quarter 2002............... 1.20:1.00
Second Fiscal Quarter 2002.............. 1.00:1.00
Third Fiscal Quarter 2002............... 1.00:1.00
F. Leverage Ratio. Subsection 6.6B is hereby amended by deleting the
table set forth therein in its entirety and substituting the following
therefor:
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REFERENCE DATE MAXIMUM LEVERAGE RATIO
-------------- ----------------------
Second Fiscal Quarter 1996.............. 4.95:1.00
Third Fiscal Quarter 1996............... 4.65:1.00
Fourth Fiscal Quarter 1996.............. 4.15:1.00
First Fiscal Quarter 1997............... 4.15:1.00
Second Fiscal Quarter 1997.............. 4.15:1.00
Third Fiscal Quarter 1997............... 4.15:1.00
Fourth Fiscal Quarter 1997.............. 3.90:1.00
First Fiscal Quarter 1998............... 3.90:1.00
Second Fiscal Quarter 1998.............. 3.65:1.00
Third Fiscal Quarter 1998............... 3.65:1.00
Fourth Fiscal Quarter 1998.............. 3.65:1.00
First Fiscal Quarter 1999............... 3.40:1.00
Second Fiscal Quarter 1999.............. 3.40:1.00
Third Fiscal Quarter 1999............... 3.40:1.00
Fourth Fiscal Quarter 1999.............. 3.15:1.00
First Fiscal Quarter 2000............... 3.15:1.00
Second Fiscal Quarter 2000.............. 3.15:1.00
Third Fiscal Quarter 2000............... 3.15:1.00
Fourth Fiscal Quarter 2000.............. 2.65:1.00
First Fiscal Quarter 2001............... 2.65:1.00
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REFERENCE DATE MAXIMUM LEVERAGE RATIO
-------------- ----------------------
Second Fiscal Quarter 2001.............. 2.65:1.00
Third Fiscal Quarter 2001............... 2.65:1.00
Fourth Fiscal Quarter 2001.............. 2.15:1.00
First Fiscal Quarter 2002............... 2.15:1.00
Second Fiscal Quarter 2002.............. 2.15:1.00
Third Fiscal Quarter 2002............... 2.15:1.00
G. Restriction on Fundamental Changes. Subsection 6.7 is hereby amended
by deleting the period at the end of subsection 6.7(ix), adding a semi-colon
in its place and by adding the following clause (x) at the end thereof:
"and (x) in addition to the Acquisitions permitted under subsection
6.7(v) and the dispositions permitted under subsection 6.7(iii), the
Company may exercise its early buyout option with respect to any or all
of the equipment being leased under the GECC Leveraged Lease and may
sell any or all of such equipment to a third party in connection with
its entry into another Operating Lease for such equipment within 30 days
of exercising its early buyout option, it being understood and agreed
that such sale shall not be deemed to be an Asset Sale for purposes of
this Agreement, that subsection 2.4 hereof shall not apply to the
proceeds of any such sale and that, during the 30 day period after the
acquisition of such equipment by the Company, such equipment shall be
"Excluded Collateral" that is not pledged to secure any Obligations."
H. Limitation on Net Consolidated Capital Expenditures. Subsection 6.9 is
hereby amended by adding "(i)" after the words "Notwithstanding the
foregoing," in the second sentence and by adding the following at the end
thereof:
"and (ii) if the Company exercises its early buyout option with respect
to the equipment being leased under the GECC Leveraged Lease to the
extent that the Company enters into another Operating Lease with respect
to equipment previously leased pursuant to the GECC Leveraged Lease
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within 30 days it will not be deemed to be a Consolidated Capital
Expenditure under this subsection 6.9."
I. Sale or Discount of Receivables. Subsection 6.10 is hereby amended by
adding the following after the words "or otherwise convey their respective
Receivables Assets to a Receivables SPC" contained in the proviso therein:
"(or to the Company which then sells, transfers or otherwise conveys
such Receivables Assets to a Receivables SPC)."
Subsection 6.10 is further amended by adding the words "to the extent
required" after the words "so long as Company applies the Receivables
Proceeds thereof to prepay the Loans" contained in the proviso therein.
J. Transactions with Affiliates. Subsection 6.11 is hereby amended by
adding the following at the end thereof:
"or (v) the transactions contemplated by the New Receivables
Documents."
K. Other Indebtedness; Amendments and Waivers of Certain Documents.
Subsection 6.12 is hereby amended by adding the following paragraph after the
first paragraph thereof:
"Neither Company nor any of its Subsidiaries will amend or otherwise
change the terms of the New Receivables Documents as in effect on the
Second Effective Date (as such term is defined in the Second Amendment)
or make any payment consistent with an amendment or change thereto, if
the effect of such amendment or change is to increase the applicable
interest rate thereunder in a material amount, change the dates upon
which payments are due thereunder in a manner adverse in any material
respect to the obligor, change any event of default or termination event
or condition to an event of default or termination event under such New
Receivables Documents in a manner adverse in any material respect to the
Company or any of its Subsidiaries, or which amendment or change,
together with all other amendments or changes made, increases in any
material respect the obligations of the Company or any of its
Subsidiaries or confers additional rights on the holder of the
Indebtedness or other obligations of the Company and its Subsidiaries
which would be adverse in any material respect to Company, any of its
Subsidiaries or Lenders."
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2.5. Amendments to Exhibits.
The Compliance Certificate attached to the Credit Agreement as Exhibit
IV is amended to add the following at the end thereof:
"M. Receivables Proceeds Prepayment Amount
Set forth below is a description of each Acquisition consummated
in the preceding Fiscal Quarter along with the corresponding
Receivables Proceeds Prepayment Amount for each such
Acquisition which generated a Receivables Proceeds
Prepayment Amount:
1. The Accounts Receivable of the Target of the Acquisition
or accounts receivable allocable to the assets of
the Target being acquired in the Acquisition as
indicated on the most recent audited financial
statements of the Target:
$______
2. A fraction, the numerator of which equals the amount
of cash consideration financed directly or indirectly
with Loans and the denominator of which equals the
aggregate cash consideration paid by the Company and
its Subsidiaries in connection with the Acquisition:
$______
3. Receivables Proceeds Prepayment Amount
((1) x (2) x 80%):
$______
[Repeat for each Acquisition in Fiscal Quarter]
4. Total Receivables Proceeds Prepayment Amounts
for Fiscal Quarter:
$______
N. Cumulative Receivables Proceeds Prepayment Amount
1. Cumulative Receivables Proceeds Prepayment Amount
as of the end of the preceding Fiscal Quarter:
$______
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2. Total Receivables Proceeds Prepayment Amount for
Fiscal Quarter (see item M.4. above):
$______
3. Prepayments that have occurred pursuant to
subsection 2.4A(ii)(f) as a result of the increase
of the New Receivables Facility over and above
$200,000,000 during Fiscal Quarter:
$______
4. Cumulative Receivables Proceeds Prepayment Amount
as of the end of Fiscal Quarter
((1) + (2) - (3)):
$______
O. New Receivables Facility
1. Maximum Amount of New Receivables Facility as of
the end of the preceding Fiscal Quarter:
$______
2. Amount of Indebtedness under New Receivables Agreement
as of the end of the previous Fiscal Quarter:
$______
3. CONSENT
Pursuant to subsection 6.10 of the Credit Agreement and subject to the
terms and conditions set forth herein and in reliance on the representations and
warranties of Company herein contained, Administrative Agent and Lenders hereby
consent to and approve the terms and conditions of the accounts receivables
financing described in the New Receivables Term Sheet, substantially in the form
of Exhibit A annexed hereto.
4. LIMITATION OF WAIVERS, AMENDMENTS AND CONSENT
Without limiting the generality of the provisions of subsection 9.7 of
the Credit Agreement, the waivers, amendments and consent set forth above shall
be limited precisely by their terms, shall not have any force or effect with
respect to any other matter except as expressly provided above, and nothing in
this Amendment shall be deemed to:
(a) constitute a waiver or modification of any other term,
provision or condition of the Credit Agreement
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or any other
instrument or agreement referred to therein (whether in
connection with the New Receivables Facility of otherwise); or
(b) prejudice any right or remedy that Administrative Agent or
any Lender may now have (except to the extent such right or
remedy was based upon existing defaults that will not exist after
giving effect to this Amendment) or may have in the future under
or in connection with the Credit Agreement or any other
instrument or agreement referred to therein.
Except as expressly set forth herein, the terms, provisions and
conditions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect and in all other respects are hereby ratified and
confirmed.
5. CONDITIONS TO EFFECTIVENESS
5.1. First Effective Date.
Sections 2.1A, 2.2A, 2.4E, 2.4F, 2.4G, 2.4H, 3, 4, 5, 6, 7 and 8 of
this Amendment shall become effective only upon the satisfaction of all of the
following conditions precedent on or prior to June 30, 1997 (the date of
satisfaction of such conditions being referred to herein as the "First
Effective Date"):
A. On or before the First Effective Date, Company and the Guarantors
shall have delivered to Administrative Agent executed copies of this Amendment.
B. On or before the First Effective Date, Lenders shall have
delivered to Administrative Agent an executed original or telefacsimile of a
counterpart of this Amendment or shall have orally confirmed to Administrative
Agent that such Lender agreed to all of the terms and conditions of this
Amendment, as set forth herein.
C. On or before the First Effective Date, Administrative Agent shall
have received for distribution to each Lender consenting to this Amendment in
accordance with its Pro Rata Share under the Credit Agreement a non-refundable
amendment fee equal to 0.05% of the aggregate Commitments in effect as of the
date hereof.
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5.2. Second Effective Date.
Sections 1, 2.1B, 2.1C, 2.1D, 2.1E, 2.2B, 2.2C, 2.3, 2.4A, 2.4B, 2.4C,
2.4D, 2.4I, 2.4J, 2.4K and 2.5 of this Amendment shall become effective only
upon the satisfaction of all of the following conditions precedent in
subsections 5.2A and B set forth below on or prior to September 30, 1997 (the
date of satisfaction of such conditions being referred to herein as the "Second
Effective Date"):
A. All of the conditions set forth in subsection 5.1. of this
Amendment have been satisfied.
B. On or before the Second Effective Date, Administrative Agent and
the other Agents shall have received on behalf of Lenders copies of the final
definitive agreements relating to the New Receivables Facility and, in addition
either (i) Administrative Agent shall have received an Officer's Certificate of
Company certifying that such final definitive agreements do not materially
differ from the terms set forth in the New Receivables Facility Term Sheet or
(ii) in the event that such final definitive agreements materially differ from
the terms set forth in the New Receivables Facility Term Sheet, Requisite
Lenders shall have approved such final documentation relating to such New
Receivables Facility.
C. On or after the Second Effective Date, the Collateral Agent is
authorized to release the Receivables Assets transferred to the New Receivables
SPC in connection with the New Receivables Documents, and in connection
therewith the Collateral Agent shall execute and file UCC releases and take such
other actions as are necessary to effect the release of such Liens in the
Receivables Assets.
6. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Company represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. Corporate Power and Authority. Company has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the ``Amended Agreement").
17
B. Authorization of Agreements. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of Company.
C. No Conflict. The execution and delivery by Company of this
Amendment and the performance by Company of the Amended Agreement do not and
will not (i) violate any provision of any law or any governmental rule or
regulation applicable to Company or any of its Subsidiaries, the Certificate or
Articles of Incorporation or Bylaws of Company or any of its Subsidiaries or any
order, judgment or decree of any court or other agency of government binding on
Company or any of its Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Company or any of its Subsidiaries (other than Liens created under any
of the Loan Documents in favor of Administrative Agent on behalf of Lenders), or
(iv) require any approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of Company or any of its Subsidiaries,
except for such approvals or consents which will be obtained on or before the
Second Amendment Effective date and disclosed in writing to Lenders.
D. Governmental Consents. The execution and delivery by Company of
this Amendment and the performance by Company of the Amended Agreement do not
and will not require any registration with, consent or approval of, or notice
to, or other action to, with or by, any federal, state or other governmental
authority or regulatory body.
E. Binding Obligation. This Amendment has been duly executed and
delivered by Company and, when executed and delivered, this Amendment and the
Amended Agreement will be the legally valid and binding obligations of Company,
enforceable against Company in accordance with their respective terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
F. Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 4 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First Effective Date and the Second Effective Date to
the same extent as though made on and as of that date, except to the
18
extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date.
G. Absence of Default. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
7. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
(i) On and after the First Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents
to the "Credit Agreement", "thereunder", "thereof" or words
of like import referring to the Credit Agreement shall mean and
be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force
and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of Agent or any Lender under, the
Credit Agreement or any of the other Loan Documents.
B. Fees and Expenses. Company acknowledges that all costs, fees and
expenses as described in subsection 9.3 of the Credit Agreement incurred by
Administrative Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of
Company.
C. Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
19
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts; Effectiveness. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment (other than the
provisions of Sections 1, 2 and 3 hereof, the effectiveness of which is governed
by Section 5 hereof) shall become effective upon the execution of a counterpart
hereof by Company, Lenders, Syndication Agent, Distribution Agent and
Administrative Agent and receipt by Company and Administrative Agent of written
or telephonic notification of such execution and authorization of delivery
thereof.
8. ACKNOWLEDGEMENT AND CONSENT BY GUARANTORS
Each Guarantor hereby acknowledges that it has read this Amendment and
consents to the terms thereof and further hereby confirms and agrees that,
notwithstanding the effectiveness of this Amendment, the obligations of such
Guarantor under the Guaranty shall not be impaired or affected and the Guaranty
is, and shall continue to be, in full force and effect and is hereby confirmed
and ratified in all respects.
[Remainder of page intentionally left blank]
20
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
WORLD COLOR PRESS, INC.
By:
--------------------------
Name:
Title:
THE XXXXXX COMPANIES, INC.
By:
--------------------------
Name:
Title:
XXXXXX LITHOTECH, INC.
By:
--------------------------
Name:
Title:
CENTRAL FLORIDA PRESS, L.C.
By:
--------------------------
Name:
Title:
NORTHEAST GRAPHICS INC.
By:
--------------------------
Name:
Title:
S-1
THE XXXXXX COMPANY, INC.
By:
--------------------------
Name:
Title:
IMAGE TECHNOLOGIES, INC.
By:
--------------------------
Name:
Title:
XXXX COMMUNICATIONS COMPANY
By:
--------------------------
Name:
Title:
XXXXXXX ACQUISITION CORPORATION
By:
--------------------------
Name:
Title:
KRI, INC.
By:
--------------------------
Name:
Title:
RAI, INC.
By:
--------------------------
Name:
Title:
S-2
BCK 140 PARTNERSHIP
By: WORLD COLOR PRESS, INC.,
its General Partner
By:
--------------------------
Name:
Title:
By: THE XXXXXX COMPANIES, INC., its General
Partner
By:
--------------------------
Name:
Title:
WORLD COLOR BOOK SERVICES, INC.
By:
--------------------------
Name:
Title:
S-3
BANKERS TRUST COMPANY,
individually as a Lender and
as Administrative Agent
By:
--------------------------
Name:
Title:
BANK OF AMERICA NT & SA,
as a Lender
By:
--------------------------
Name:
Title:
CITIBANK, N.A.,
as a Lender
By:
--------------------------
Name:
Title:
ABN AMRO BANK, NV, NEW YORK BRANCH,
as Lender
By: ABN Amro North America, Inc.,
as Agent
By:
--------------------------
Name:
Title:
BANK OF MONTREAL,
as Lender
By:
--------------------------
Name:
Title:
X-0
XXX XXXX XX XXXX XXXXXX
as Lender
By:
--------------------------
Name:
Title:
BANK OF SCOTLAND,
as Lender
By:
--------------------------
Name:
Title:
BANK OF TOKYO - MITSUBISHI TRUST COMPANY,
as Lender
By:
--------------------------
Name:
Title:
BANQUE PARIBAS,
as Lender
By:
--------------------------
Name:
Title:
CIBC, INC.,
as Lender
By:
--------------------------
Name:
Title:
S-5
FLEET NATIONAL BANK,
as Lender
By:
--------------------------
Name:
Title:
THE FUJI BANK, LIMITED, NEW YORK BRANCH,
as Lender
By:
--------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LTD.,
as Lender
By:
--------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LTD. CHICAGO
BRANCH,
as Lender
By:
--------------------------
Name:
Title:
NATIONSBANK, N.A.,
as Lender
By:
--------------------------
Name:
Title:
S-6
PNC BANK, KENTUCKY, INC.,
as Lender
By:
--------------------------
Name:
Title:
THE SANWA BANK, LIMITED,
as Lender
By:
--------------------------
Name:
Title:
BANK OF IRELAND, GRAND CAYMAN BRANCH,
as Lender
By:
--------------------------
Name:
Title:
BANKBOSTON, N.A. (formerly know as The First
National Bank of Boston), as Lender
By:
--------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as Lender
By:
--------------------------
Name:
Title:
S-7
CREDIT SUISSE FIRST BOSTON (formerly
known as Credit Suisse),
as Lender
By:
--------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.,
as Lender
By:
--------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES,
as Lender
By:
--------------------------
Name:
Title:
THE SAKURA BANK, LIMITED,
as Lender
By:
--------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH,
as Lender
By:
--------------------------
Name:
Title:
S-8
THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK
BRANCH,
as Lender
By:
--------------------------
Name:
Title:
TORONTO DOMINION (NEW YORK), INC.,
as Lender
By:
--------------------------
Name:
Title:
UNITED JERSEY BANK,
as Lender
By:
--------------------------
Name:
Title:
THE YASUDA TRUST AND BANKING CO., LTD., NEW YORK
BRANCH,
as Lender
By:
--------------------------
Name:
Title:
THE TOKAI BANK, LTD., NEW YORK BRANCH,
as Lender
By:
--------------------------
Name:
Title:
S-9
XXXXXX BANK LTD NEW YORK BRANCH
as Lender
By:
--------------------------
Name:
Title:
BAYERISCHE VEREINSBANK AG, NEW YORK BRANCH,
as Lender
By:
--------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Lender
By:
--------------------------
Name:
Title:
XXXXX BANK N.A.,
as Lender
By:
--------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
as Lender
By:
--------------------------
Name:
Title:
S-10
GIROCREDIT BANK
AKTIENGESELLSCHAFT DER SPARKASSEN,
GRAND CAYMAN ISLAND BRANCH,
as Lender
By:
--------------------------
Name:
Title:
BANK LEUMI TRUST COMPANY NEW
YORK,
as Lender
By:
--------------------------
Name:
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE,
as Lender
By:
--------------------------
Name:
Title:
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Lender
By:
--------------------------
Name:
Title:
S-11
XXXXXX COMMERCIAL PAPER INC.,
as Lender
By:
--------------------------
Name:
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Lender
By:
--------------------------
Name:
Title:
THE TOYO TRUST AND BANKING CO. LTD.,
as Lender
By:
--------------------------
Name:
Title:
S-12
