EXHIBIT 10.14
WAIVER, CONSENT AND AMENDMENT
Waiver, Consent and Amendment, dated as of May 30, 2002 (the
"Amendment"), to the Senior Subordinated Credit Agreement, dated as of December
7, 1999, as amended, among ▇▇▇▇▇▇, Inc. (f/k/a Big Flower Press Holdings, Inc.),
a Delaware corporation (the "Company"), ▇▇▇▇▇▇ Holdings, Inc. (f/k/a Big Flower
Holdings, Inc.), a Delaware corporation ("Holdings"), the Subsidiary Guarantors
named on the signature pages hereto, the Lenders named on the signature pages
hereto (the "Lenders") and Deutsche Bank Trust Company Americas (f/k/a Bankers
Trust Company), ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank (f/k/a The Chase Manhattan Bank) and Banc
of America Bridge LLC (f/k/a NationsBridge, L.L.C.) as Agents for the Lenders
(in such capacity, the "Agents") (the "Credit Agreement"). Except as otherwise
indicated herein, capitalized terms used herein have the same meanings as set
forth in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Company is contemplating issuing up to $300.0 million of
unsecured senior notes on or prior to July 31, 2002, which notes will be sold
pursuant to Rule 144A or Regulation S under the Securities Act of 1933, as
amended, substantially on the terms set forth in that certain draft offering
memorandum dated May 30, 2002 which terms have been approved by the Agents (such
issuance, the "Senior Notes Issuance");
WHEREAS, pursuant to Section 12.6 of the Credit Agreement, the Company
desires to have the Required Lenders waive certain provisions of the Credit
Agreement and consent to the departure of the Company therefrom and amend
certain provisions of the Credit Agreement;
NOW THEREFORE, in consideration of the premises and covenants
contained herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. WAIVER AND CONSENT. The Required Lenders hereby waive compliance by
the Company with and consent to the departure from the provisions of the Credit
Agreement (including, without limitation, Exhibit XIV to the Credit Agreement)
with respect to the Senior Note Issuance; provided that the proceeds of such
Senior Notes Issuance are applied as follows: First, to the repayment of $25
million of revolving credit borrowings under the Senior Credit Facility; Second,
to the payment of all fees and expenses relating to the Senior Notes Offering;
and Third, 50% of the remaining proceeds to the repayment of term loan
borrowings under the Senior Credit Facility and 50% of the remaining proceeds to
the repayment
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of amounts outstanding under the Credit Agreement. The Required Lenders hereby
agree that the Senior Note Issuance or the application of the proceeds thereof
as described above shall not constitute an Event of Default or Potential Event
of Default under the Credit Agreement.
2. AMENDMENT.
(a) SECTION 1.1. Section 1.1 of the Credit Agreement is hereby
amended as follows:
(1) By adding the following definition in alphabetical order
therein:
"Senior Note Offering" means the Company's issuance of
senior notes in an aggregate principal amount not to exceed
$300.0 million."
(2) The definition of "Trigger Date" is hereby amended as
follows:
"Trigger Date" means July 31, 2002; provided, however, that
if the Company has consummated the Senior Note Offering on or
prior to July 31, 2002, then the Trigger Date will be extended to
January 31, 2003."
(3) The definition of "A/R Facility" is hereby amended to
read as follows:
"A/R Facility" means the Receivable Purchase Agreement dated
as of March 19, 1996, as amended among Holdings, certain
subsidiaries of Holdings (including the Company) and BFP
Receivables Corporation in each case as such agreement may be
amended (including any amendment and restatement thereof),
supplemented or otherwise modified from time to time, including
any agreement extending the term thereof of, or any successor or
replacement agreement, including, without limitation, any
agreement or agreements governing a Qualified Receivables
Transaction (as defined in Exhibit XIV to the Credit
Agreeement)."
(b) EXHIBIT XIV. Exhibit XIV to the Credit Agreement is hereby
amended as follows:
(1) The section entitled "Certain Definitions" is hereby
amended by adding the following definition in alphabetical order
therein:
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"Senior Notes" means the Company's senior notes issued
between May 1, 2002 and July 31, 2002 in an aggregate principal
amount not to exceed $300.0 million.
(2) The definition of "Permitted Indebtedness" is hereby
amended by (1) deleting the word "and" at the end of clause (14)
thereof and replacing it with a semicolon, and (2) deleting the
period at the end of clause (15) thereof and replacing it with a
semicolon and the word "and" and (3) adding a new clause (16)
thereto which reads as follows, "Indebtedness of the Company
represented by the Senior Notes and guarantees of the Senior
Notes by certain of the Company's Restricted Subsidiaries."
(3) The definition of "A/R Facility" is hereby amended in
its entirety to read as follows:
"A/R Facility" means the Receivable Purchase Agreement dated as
of March 19, 1996, as amended among Holdings, certain
subsidiaries of Holdings (including the Company) and BFP
Receivables Corporation in each case as such agreement may be
amended (including any amendment and restatement thereof),
supplemented or otherwise modified from time to time, including
any agreement extending the term thereof of, or any successor or
replacement agreement, including, without limitation, any
agreement or agreements governing a Qualified Receivables
Transaction."
3. ADDITIONAL FEES. The Company agrees to pay on demand all costs and
expenses of the Agents and Lenders in connection with the preparation, execution
and delivery of this Amendment and the documentation contemplated hereby,
including the reasonable fees and out-of-pocket expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Agents and Lenders, with respect thereto.
4. SCOPE OF AMENDMENT. Except as specifically amended hereby, the
Credit Agreement, shall remain unchanged. It is declared and agreed by each of
the parties hereto that the Credit Agreement, including but not limited to
Section 5.12 thereof, subject to this Amendment, shall continue, in full force
and effect, and that the Amendment and the Credit Agreement shall be read as and
shall constitute one document.
5. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
7. ACKNOWLEDGMENT AND CONSENT BY THE SUBSIDIARY GUARANTORS. Each
Subsidiary Guarantor hereby acknowledges that it has read this Amendment and
consents to the terms hereof and further confirms and agrees that,
notwithstanding the effectiveness of this Amendment, its obligations under its
Guarantee shall not be impaired or affected and its Guarantee is, and shall
continue to be, in full force and effect and is hereby confirmed and ratified in
all respects.
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WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
▇▇▇▇▇▇ HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
SUBSIDIARY GUARANTORS:
PRINTCO., INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
WEBCRAFT LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
WEBCRAFT CHEMICALS LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
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ENTERON GROUP LLC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
BIG FLOWER DIGITAL SERVICES
(DELAWARE), INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
BIG FLOWER DIGITAL LLC
By: BIG FLOWER DIGITAL
SERVICES (DELAWARE), INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
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AGENTS:
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as co-agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇ ▇▇▇▇▇▇ CHASE BANK
as co-agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANC OF AMERICA BRIDGE LLC,
as co-agent
By: /s/ S. ▇▇▇▇ ▇▇▇▇▇▇▇, III
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Name: S. ▇▇▇▇ ▇▇▇▇▇▇▇, III
Title: Senior Vice President
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LENDERS:
DEUTSCHE BANK TRUST CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANC OF AMERICA BRIDGE LLC
By: /s/ S. ▇▇▇▇ ▇▇▇▇▇▇▇, III
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Name: S. ▇▇▇▇ ▇▇▇▇▇▇▇, III
Title: Senior Vice President
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
S-5
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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
D.K. ACQUISITION PARTNERS, L.P.
By: ▇.▇. ▇▇▇▇▇▇▇▇ & Co.,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Partner
FRANKLIN FLOATING RATE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: Vice President
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TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd.
as Investment Adviser
By: /s/ ▇▇▇▇ ▇. Gold
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Name: ▇▇▇▇ ▇. Gold
Title: Managing Director
By: TCW Investment Management Company,
as Investment Adviser
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW Advisers (Bermuda), Ltd.
as General Partner
By: /s/ ▇▇▇▇ ▇. Gold
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Name: ▇▇▇▇ ▇. Gold
Title: Managing Director
By: TCW Investment Management Company,
as Investment Adviser
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
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FLEET CORPORATE FINANCE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ GLOBAL INVESTMENT
SERIES: INCOME STRATEGIES
PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.,
as Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory