Exhibit 10.33
-------------
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Fifth
-----
Amendment") is entered into as of February 26, 2002 among Mail-Well I
---------
Corporation, a Delaware corporation (the "Company"), as borrower, Mail-Well,
-------
Inc., a Colorado corporation (the "Parent"), and certain other U.S.
------
Subsidiaries of the Parent, as guarantors, the several financial
institutions from time to time party to the Credit Agreement referred to
below (individually, a "Lender" and, collectively, the "Lenders"), ABN AMRO
------ -------
Bank N.V., as syndication agent, The Bank of Nova Scotia, as documentation
agent, SunTrust Bank and Union Bank of California, N.A., as managing agents,
and Bank of America, N.A., as Issuing Bank, Swingline Bank and as
administrative agent for itself and the other Lenders (in such capacity, the
"Agent").
-----
WHEREAS, the Company, the Parent and the other Loan
Parties, the Lenders and the Agent entered into a Credit Agreement dated as
of February 18, 2000, as amended by that certain First Amendment to Credit
Agreement dated as of July 28, 2000, that certain Second Amendment to Credit
Agreement dated as of March 28, 2001, and that certain Third Amendment to
Credit Agreement dated as of June 29, 2001, and that certain Fourth
Amendment to Credit Agreement dated as of August 7, 2001 (as so amended, the
"Credit Agreement"); and
----------------
WHEREAS, the Company has requested that the Majority
Lenders agree to certain amendments to the Credit Agreement, and the
Majority Lenders have agreed to such request, subject to the terms and
conditions of this Fifth Amendment;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions; References; Interpretation.
---------------------------------------
(a) Unless otherwise specifically defined herein, each term used
herein (including in the Recitals hereof) which is defined in the Credit
Agreement shall have the meaning assigned to such term in the Credit
Agreement.
(b) Each reference to "this Agreement", "hereof", "hereunder",
"herein" and "hereby" and each other similar reference contained in the
Credit Agreement, and each reference to "the Credit Agreement" and each
other similar reference in the other Loan Documents, shall from and after
the Effective Date (as defined below) refer to the Credit Agreement as
amended hereby.
(c) The rules of interpretation set forth in Section 1.02 of the
Credit Agreement shall be applicable to this Fifth Amendment.
2. Amendments to Credit Agreement. Subject to the terms and conditions
------------------------------
hereof, the Credit Agreement is amended as follows, effective as of the date
of satisfaction of the conditions set forth in Section 4 (the "Effective
---------
Date"):
----
(a) Section 1.01 of the Credit Agreement is hereby amended as
follows:
(i) The defined term "Borrowing Base" shall be amended and
--------------
restated as follows:
"Borrowing Base" means asset-based lending limits
--------------
reasonably satisfactory to the Agent, the Majority Lenders and the
Loan Parties to become effective not later than May 15, 2003 in
accordance with Section 5 of the Fifth Amendment to Credit
Agreement dated as of February 26, 2002.
(ii) The defined term "Compliance Event" shall be amended
----------------
and restated as follows:
"Compliance Event" means the occurrence of the Borrowing
----------------
Base Agreement Date and delivery by the Parent of its initial
completed Borrowing Base Certificate pursuant to subsection
7.02(g).
(iii) Subsection (iv)(A) of the first paragraph of the
defined term "EBITDA" set forth in Section 1.01 of the Credit Agreement is
------
amended by deleting the dollar amount "$90,000,000" and replacing it with
"$165,000,000".
(iv) The defined term "Senior Funded Debt" shall be
------------------
amended and restated as follows:
"Senior Funded Debt" means, as of any date of
------------------
determination, all Funded Debt of the Parent and its Subsidiaries on such
date which is not subordinated in right of payment to the Obligations minus
-----
unencumbered cash and cash equivalents (but including cash and cash
equivalents encumbered only by a Lien in favor the Agent and the Lenders to
secure the Obligations) of the Parent and its Subsidiaries on such date in
an amount up to the aggregate principal amount of the 5% Convertible
Subordinated Notes due 2002 then outstanding, in each case, as determined on
a consolidated basis in accordance with GAAP.
(v) A new defined term "Senior Secured Debt Coverage
----------------------------
Ratio" shall be added to Section 1.01 in proper alphabetical order as
-----
follows:
"Senior Secured Debt Coverage Ratio" means, as of any date
----------------------------------
of determination, the ratio of (a) the aggregate value on such date of (i)
70% of the value of all accounts receivable, plus (ii) 25% of the value of
----
all inventory, plus (iii) 40% of (A) the net value of all property, plant
----
and equipment minus (B) all Indebtedness then outstanding secured by a Lien
-----
on property, plant and equipment (other than the Obligations), in each case,
as determined for the Parent and its Subsidiaries on a consolidated basis in
accordance with GAAP, to (b) the Effective Amount of all Revolving Loans
plus the Effective Amount of all Swingline Loans plus the Effective Amount
---- ----
of all L/C Obligations plus the Effective Amount of all Term Loans.
----
(vi) The defined term "Total Funded Debt" shall be amended
-----------------
and restated as follows:
"Total Funded Debt" means, as of any date of
-----------------
determination, all Funded Debt of the Parent and its Subsidiaries on such
date minus unencumbered cash and cash equivalents (but including cash and
-----
cash equivalents encumbered only by a Lien in favor the Agent and the
Lenders to secure the Obligations) of the Parent and its Subsidiaries on
such date in an amount up to the aggregate principal amount of the 5%
Convertible Subordinated Notes due 2002 then
2
outstanding, in each case, as determined on a consolidated basis in
accordance with GAAP.
(b) Subsection (c) of Section 2.01 of the Credit Agreement shall be
amended by deleting the last sentence thereof.
(c) Section 2.07 of the Credit Agreement shall be amended by
deleting the last sentence thereof.
(d) Subsection (d) of Section 2.08 of the Credit Agreement shall be
amended and restated as follows:
"(d) Equity or Debt Issuance. If the Parent, the Company or any
-----------------------
Subsidiary shall issue common or preferred equity (other than to the Parent,
the Company or any Subsidiary, and other than in connection with
compensation of employees, directors or consultants) or incur any
indebtedness for borrowed money (other than any money borrowed by the
Company under this Agreement, any money borrowed pursuant to subsection
8.05(n) and intercompany loans otherwise permitted under this Agreement made
by and among the Parent, the Company and/or one or more Subsidiaries), the
Company shall promptly notify the Agent of the estimated Net Issuance
Proceeds of such issuance or incurrence to be received by the Parent, the
Company or such Subsidiary in respect thereof. Promptly upon, and in no
event later than one Business Day after, receipt by the Parent, the Company
or such Subsidiary of Net Issuance Proceeds of such issuance or incurrence,
the Company shall prepay the Revolving Loans and the Term Loans as follows:
(i) such Net Issuance Proceeds shall be applied, first, to prepay the
Revolving Loans in an aggregate amount equal to the lesser of (A) 50% of the
amount of such Net Issuance Proceeds and (B) the Effective Amount of the
Revolving Loans then outstanding, provided, however, that that amount of Net
-------- -------
Issuance Proceeds so applied to prepay the Revolving Loans shall not exceed
$130,000,000 in the aggregate after February 26, 2002; and (ii) next, such
Net Issuance Proceeds not used to prepay the Revolving Loans as provided in
the preceding clause (i) shall be applied to prepay the Term Loans in an
aggregate amount equal to the lesser of (A) the amount of such unapplied Net
Issuance Proceeds and (B) the Effective Amount of the Term Loans then
outstanding. Notwithstanding the foregoing, the Company's obligation to
apply Net Issuance Proceeds from the incurrence of indebtedness for borrowed
money to prepay the Revolving Loans and Term Loans as provided in this
subsection 2.08(d) shall cease from and after the date on which the Company
has applied a total amount of $300,000,000 in combined Net Issuance Proceeds
and Net Proceeds arising from and after February 21, 2002, to prepay the
Revolving Loans and Term Loans as provided in this Section 2.08.
Notwithstanding any provisions of this Agreement to the contrary,
the Parent may from time to time satisfy all or any portion of the
outstanding principal and accrued and unpaid interest in respect of any
Indebtedness (other than Indebtedness owing by the Parent, the Company or
any Subsidiary under this Agreement or any other Loan Document) by
exchanging common stock of the Parent in satisfaction of such outstanding
principal and accrued and unpaid interest pursuant to a non-cash transaction
approved in good faith by the Board of Directors of the Parent. The Company
shall promptly notify the Agent of any such exchange."
(e) A new subsection (f) of Section 5.02 shall be inserted into the
Credit Agreement as follows:
3
"(f) Borrowing Base Certificate. Effective upon the
--------------------------
Borrowing Base Agreement Date, the Agent shall have received a completed
Borrowing Base Certificate as of the last day of the fiscal month then most
recently ended pursuant to subsection 7.02(g)."
(f) A new subsection (g) of Section 5.02 shall be inserted into the
Credit Agreement as follows:
"(g) Senior Secured Debt Coverage Ratio. The Agent shall
----------------------------------
have received a certificate of a Responsible Officer of the Parent
demonstrating that the Parent and its Subsidiaries are in full pro forma
compliance with subsection 8.21(e), measured as of the last day of the
fiscal quarter than most recently ended, after giving effect to such Credit
Extension."
(g) Subsection (g) of Section 7.02 of the Credit Agreement shall be
amended and restated as follows:
"(g) from and after the Borrowing Base Agreement Date, as
soon as available and in any event not later than twenty (20) days after the
end of each fiscal month (A) a completed Borrowing Base Certificate as of
such fiscal month-end, and (B) such reports with respect to the Collateral
included in the Borrowing Base as the Agent or the Majority Lenders
reasonably shall request in connection therewith, in form and substance
satisfactory to the Agent;"
(h) A new Section 7.18 shall be inserted into the Credit Agreement
as follows:
"7.18 Additional Proceeds. By not later than September 30,
-------------------
2002, the Parent, the Company or its Subsidiaries (i) shall have received
gross proceeds of not less than $225,000,000 (of which not less than
$215,000,000 shall be comprised of Net Issuance Proceeds) from the issuance,
after February 26, 2002, of additional debt or equity, the issuance of which
is otherwise permitted under the terms of this Agreement (including Section
8.05), (ii) shall have received after February 21, 2002, combined Net
Proceeds and Net Issuance Proceeds in an aggregate amount of not less than
$300,000,000 (inclusive of those amounts received under the preceding clause
(i)) and (iii) shall have applied the Net Proceeds and Net Issuance Proceeds
received pursuant to the preceding clauses (i) and (ii) to the prepayment of
the Revolving Loans and Term Loans in accordance with Section 2.08."
(i) Section 8.01 shall be amended by (i) deleting "and" at
the end of the subsection (l); (ii replacing the period at the end of
subsection (m) with a semi-colon and inserting "and" at the end of the such
subsection, and (iii) inserting a new subsection (n) as follows:
"(n) Liens on assets of Foreign Subsidiaries organized
under the laws of Canada and located in Canada, to secure Indebtedness
permitted under subsection 8.05(n)."
(i) Subsection (g) of Section 8.02 of the Credit Agreement shall be
amended by amending and restating the second proviso as follows:
"provided further, however, that (1) the restrictions set
-------- ------- -------
forth in clauses (iii) and (v) of this subsection (g) shall not apply to the
complete or partial disposition of the following business units, divisions
or Subsidiaries or any assets thereof: (A) the Label group, (B) ▇▇▇▇▇▇ 1000,
Inc., (C) the Pre-Press group, (D) the Filenet group and (E) PrintXcel or,
in the case of this
4
clause (E), upon the prior written consent of the Agent, any other
Subsidiary or division the sale of which would generate Net Proceeds similar
to the Net Proceeds that would be generated by the sale of PrintXcel and (2)
the restrictions set forth in clause (iii) of this subsection (g) shall not
apply to the disposition of real or personal property of the Parent, the
Company or any Subsidiary that is, as a result of the implementation of the
strategic plan to divest certain business units and consolidate operations
within certain business units undertaken by the Loan Parties on or about
June 2001, no longer of any strategic or commercial value to the Loan
Parties in their reasonable business judgement."
(j) Subsection (d) of Section 8.04 is amended and restated in its
entirety as follows:
"(d) Permitted Acquisitions otherwise permitted herein,
provided that (i) such Acquisitions are undertaken after the Compliance
--------
Event, (ii) the principal amount of the Term Loans then outstanding is less
than $100,000,000, (iii) the consideration consisting of cash or the
assumption of Indebtedness given by the Parent, the Company and the
Subsidiaries for all such Acquisitions in the aggregate may not exceed
$25,000,000 in fiscal year 2002 and in each fiscal year thereafter, and (iv)
the consideration consisting of the issuance of capital stock of the Parent,
the Company and the Subsidiaries for all such Acquisitions in the aggregate
shall not exceed $50,000,000 in fiscal year 2002 and in each fiscal year
thereafter."
(k) Section 8.05 shall be amended by (i) deleting the "and" at the
end of subsection (l), (ii) replacing the period at the end of the
subsection (m) with "; and" and (iii) inserting a new subsection (n) as
follows:
"(n) Indebtedness incurred by one or more Foreign
Subsidiaries organized under the laws of Canada and located in Canada, in an
aggregate amount not to exceed $7,500,000 at any time outstanding."
(l) Section 8.14 of the Credit Agreement shall be amended and
restated as follows:
"8.14 Certain Payments. The Parent and the Company shall
----------------
not, and shall not permit any of its Subsidiaries to, (i) prepay, redeem,
repurchase or otherwise acquire for value any of the Subordinated Debt; or
(ii) make any principal, interest or other payments on any Subordinated Debt
if not permitted by the respective subordination provisions of the
Subordinated Debt Documents. Notwithstanding the foregoing, the Parent shall
be permitted to repay, purchase, redeem or repurchase in the open market
some or all of the 5% Convertible Subordinated Notes due 2002, and also seek
such consents as are necessary under the terms of the 8-3/4% Senior
Subordinated Notes due 2008 in connection therewith which are not
inconsistent with this Section 8.14 or Section 8.15; provided however, that
-------- -------
no repayment, purchase, redemption or repurchase of the 5% Convertible
Subordinated Notes due 2002 of the Parent or any other Subordinated Debt
shall be permitted if (i) any Default or Event of Default then exists or
would result therefrom, (ii) the Parent, the Company or its Subsidiaries
have failed to raise Net Issuance Proceeds and Net Proceeds from and after
February 21, 2002, in an aggregate combined amount of at least $300,000,000,
including the satisfaction of the requirements to raise at least
$225,000,000 of gross proceeds (of which not less than $215,000,000 shall be
comprised of Net Issuance Proceeds) and to apply the Net Issuance Proceeds
to the prepayment of the Revolving Loans and Term Loans pursuant to Section
7.18 or (iii) after giving effect to such repayment, purchase, redemption or
repurchase, the Parent would not be in full pro forma compliance with
subsection 8.21(e), measured as of the last day of the
5
fiscal quarter then most recently ended, but using those levels of
compliance required under subsection 8.21(e) as of September 30, 2002, if
such date is later than the last day of the fiscal quarter then most
recently ended."
(m) Section 8.21 of the Credit Agreement shall be amended as
follows:
(i) Subsection (a) of Section 8.21 of the Credit Agreement
shall be amended by (A) deleting the dollar amount "$90,000,000" from clause
(iv) and replacing it with "$165,000,000" and (B) inserting a new clause
(vi) immediately after clause (v) as follows:
"minus (vi) deferred financing costs in connection with
-----
new debt issuances in an aggregate amount of up to $15,000,000."
(ii) Subsection (b) of Section 8.21 of the Credit
Agreement shall be amended and restated as follows:
"(b) The Parent shall not permit the Total Leverage Ratio
as of the last day of any fiscal quarter to be greater than (i)
5.75 to 1.00 for each of the first and second fiscal quarters of
2002; (ii) 5.50 to 1.00 for the third fiscal quarter of 2002, (iii)
5.00 to 1.00 for the fourth fiscal quarter of 2002, (iv) 4.75 to
1.00 for the first and second fiscal quarter of 2003; (v) 4.50 to
1.00 for the third and fourth quarters of 2003, (vi) 4.25 to 1.00
for the first and second quarters of 2004 and (v) 4.00 to 1.00 for
the third fiscal quarter of 2004 and each fiscal quarter ending
thereafter.
(iii) Subsection (c) of Section 8.21 of the Credit
Agreement shall be amended and restated as follows:
"(c) The Parent shall not permit the Senior Leverage Ratio
as of the last day of any fiscal quarter to be greater than (i)
3.50 to 1.00 for each of the first, second and third fiscal
quarters of 2002, (ii) 3.25 to 1.00 for the fourth fiscal quarter
of 2002, (iii) 3.00 to 1.00 for the first fiscal quarter of 2003,
(iv) 2.75 to 1.00 for the second fiscal quarter of 2003 and (v)
2.50 to 1.00 for the third fiscal quarter of 2003 and each fiscal
quarter ending thereafter.
(iv) Subsection (d) of Section 8.21 of the Credit
Agreement shall be amended and restated as follows:
"(d) The Parent shall not permit the Fixed Charge Coverage
Ratio as of the last day of any fiscal quarter to be less than (i)
1.40 to 1.00 for the first and second fiscal quarters of 2002 and
(ii) 1.50 to 1.00 for the third fiscal quarter of 2002 and each
fiscal quarter ending thereafter.
(v) A new subsection (e) of Section 8.21 of the Credit
Agreement shall be inserted as follows:
"(e) Commencing on the last day of the third fiscal
quarter of 2002, the Parent shall not permit the Senior Secured
Debt Coverage Ratio as of the last day of any fiscal quarter to be
less than 1.25 to 1.00."
(n) Subsection (c) of Section 9.01 of the Credit Agreement shall be
amended by (i)
6
deleting the word "or" immediately prior to the reference to Section 7.15
and replacing it with a comma, and (ii) inserting immediately after the
reference to Section 7.15 the text "or 7.18".
(o) The second proviso in Section 11.01 of the Credit Agreement
shall be amended by (i) deleting "and" from immediately prior to clause (v),
(ii) deleting the period at the end of such proviso and replacing it with a
comma and (iii) inserting a new clause (vi) as follows:
"and (vi) no amendment, waiver or consents with respect to
Section 8.21(e) shall be permitted without the written consent of
Lenders holding more than 50% of the combined Revolving Commitments
(or if no such Revolving Commitments are then in existence, Lenders
holding more than 50% of the Revolving Loans, L/C Advances and L/C
Obligations then outstanding)."
(p) The pricing grid attached as Annex I to the Credit Agreement is
-------
amended and restated in its entirety in the form of Annex I hereto.
-------
(q) Schedule 2.09 to the Credit Agreement shall be amended by
inserting the following additional proviso at the bottom of such Schedule:
"Provided, further, however, that with respect to each
-------- ------- -------
date set forth above on which a principal installment of Tranche A
Term Loans and/or Tranche B Term Loans is due, the Company, subject
to Section 4.04, may elect to make such payment on an earlier date
that represents the last day of the Company's fiscal quarter, and
such payment on such earlier date shall not constitute an optional
prepayment of Loans for purposes of Section 2.07."
3. Representations and Warranties. The Parent and the Company hereby
------------------------------
represent and warrant to the Agent and the Lenders as follows:
(a) No Default or Event of Default has occurred and is continuing
(or would result from the amendment of the Credit Agreement contemplated
hereby).
(b) The execution, delivery and performance by the Parent, the
Company and the other Loan Parties of this Fifth Amendment and the Credit
Agreement (as amended by this Fifth Amendment) have been duly authorized by
all necessary corporate and other action and do not and will not require any
registration with, consent or approval of, or notice to or action by, any
Person (including any Governmental Authority) in order to be effective and
enforceable.
(c) This Fifth Amendment and the Credit Agreement (as amended by
this Fifth Amendment) constitute the legal, valid and binding obligations of
the Parent, the Company and each other Loan Party, enforceable against it in
accordance with their respective terms.
(d) All representations and warranties of the Parent, the Company
and the other Loan Parties contained in the Credit Agreement are true and
correct (except to the extent such representations and warranties expressly
refer to an earlier date, in which case they shall be true and correct as of
such earlier date, and except that this subsection (d) shall be deemed
instead to refer to the last day of the most recent quarter and year for
which financial statements have then been delivered in respect of the
representation and warranty made in subsection 6.11(a) of the Credit
Agreement and to take into account any amendments to the Schedules to the
Credit
7
Agreement and other disclosures made in writing by the Parent or the Company
to the Agent and the Lenders after the Closing Date and approved by the
Agent and the Majority Lenders).
(e) The Parent, the Company and each other Loan Party are entering
into this Fifth Amendment on the basis of its own investigation and for its
own reasons, without reliance upon the Agent and the Lenders or any other
Person.
(f) The Parent's, the Company's and each other Loan Party's
obligations under the Credit Agreement and under the other Loan Documents
are not subject to any defense, counterclaim, set-off, right of recoupment,
abatement or other claim.
4. Conditions of Effectiveness.
---------------------------
(a) The effectiveness of Section 2 of this Fifth Amendment shall be
subject to the satisfaction of each of the following conditions precedent:
(i) The Agent or Banc of America Securities LLC ("BAS")
shall have received from the Company all amounts payable under that certain
fee letter dated as of February 26, 2002, delivered by the Company to BAS in
connection herewith.
(ii) The Agent or BAS shall have received from the Company
all amounts payable under Section 8(g) to the extent invoiced prior to the
Effective Date.
(iii) The Agent shall have received from the Parent, the
Company and each other Loan Party and the Majority Lenders a duly executed
original (or, if elected by the Agent, an executed facsimile copy) of this
Fifth Amendment.
(iv) The Agent shall have received in a form to its
satisfaction all those items listed in Schedule 1.
----------
(v) The Agent shall have received all other documents it
or the Majority Lenders may reasonably request relating to any matters
relevant hereto, all in form and substance satisfactory to the Agent and the
Majority Lenders.
(vi) The representations and warranties in Section 3 of
this Fifth Amendment shall be true and correct on and as of the Effective
Date with the same effect as if made on and as of the Effective Date.
(b) For purposes of determining compliance with the conditions
specified in Section 4(a), each Lender that has executed this Fifth
Amendment shall be deemed to have consented to, approved or accepted, or to
be satisfied with, each document or other matter either sent, or made
available for inspection, by the Agent to such Lender for consent, approval,
acceptance or satisfaction, or required hereunder to be consented to or
approved by or acceptable or satisfactory to such Lender.
(c) From and after the Effective Date, the Credit Agreement is
amended as set forth herein. Except as expressly amended pursuant hereto,
the Credit Agreement shall remain unchanged and in full force and effect and
is hereby ratified and confirmed in all respects.
(d) The Agent will notify the Parent, the Company and the Lenders
of the occurrence of the Effective Date.
8
5. Borrowing Base. Notwithstanding Section 5 of the Fourth Amendment, not
--------------
later than May 15, 2003, the Loan Parties and the Agent shall have agreed to
a Borrowing Base and a form of Borrowing Base Certificate, in each case, in
form and substance satisfactory to the Agent and the Majority Lenders, and
the Agent shall be satisfied with the results of such field audits as it may
reasonably require (such date on which the parties agree on such items and
the Agent shall be satisfied with the results of its field audits, the
"Borrowing Base Agreement Date"). The Agent, the Lenders and the Loan
-----------------------------
Parties hereby agree that the failure of the Borrowing Base Agreement Date
to occur on or prior to May 15, 2003 shall constitute an immediate Event of
Default under Section 9.01(c) of the Credit Agreement and for all purposes
of the Credit Agreement and the other Loan Documents, unless the reason that
the Borrowing Base Agreement Date does not occur on or prior to May 15, 2003
is the failure of the Agent and/or the Lenders to act in good faith.
6. Consent of Guarantors. Each of the Parent and the other Guarantors, in
---------------------
its capacity as a Guarantor, acknowledges that its consent to this Fifth
Amendment and the amendments to the Credit Agreement contemplated hereby is
not required, but each of such Persons nevertheless does hereby consent to
this Fifth Amendment and the amendments to the Credit Agreement contemplated
hereby and to the documents and agreements referred to herein. Nothing
herein shall in any way limit any of the terms or provisions of the Guaranty
of the Parent or any of the other Guarantors or the Collateral Documents
executed by the Parent or any of the other Guarantors in the Agent's and the
Lenders' favor, or any other Loan Document executed by the Parent or any of
the other Guarantors (as the same may be amended from time to time), all of
which are hereby ratified and affirmed in all respects.
7. Reduction of Revolving Commitments. Effective upon the Effective Date,
----------------------------------
the aggregate Revolving Commitments of the Lenders shall immediately and
permanently reduce to $150,000,000.
8. Miscellaneous.
-------------
(a) The Parent, the Company and each other Loan Party acknowledges
and agrees that the execution and delivery by the Agent and the Majority
Lenders of this Fifth Amendment shall not be deemed to create a course of
dealing or an obligation to execute similar waivers or amendments under the
same or similar circumstances in the future.
(b) This Fifth Amendment and the Credit Agreement as amended by
this Fifth Amendment shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns.
(c) This Fifth Amendment shall be governed by and construed in
accordance with the law of the State of California, provided that the Agent
--------
and the Lenders shall retain all rights arising under Federal law.
(d) This Fifth Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each
of the parties hereto understands and agrees that this document (and any
other document required herein) may be delivered by any party thereto either
in the form of an
9
executed original or an executed original sent by facsimile transmission to
be followed promptly by mailing of a hard copy original, and that receipt by
the Agent of a facsimile transmitted document purportedly bearing the
signature of a Lender or any Loan Party shall bind such Lender or such Loan
Party, respectively, with the same force and effect as the delivery of a
hard copy original. Any failure by the Agent to receive the hard copy
executed original of such document shall not diminish the binding effect of
receipt of the facsimile transmitted executed original of such document of
the party whose hard copy page was not received by the Agent.
(e) This Fifth Amendment contains the entire and exclusive
agreement of the parties hereto with reference to the matters discussed
herein. This Fifth Amendment supersedes all prior drafts and communications
with respect hereto. This Fifth Amendment may not be amended except in
accordance with the provisions of Section 11.01 of the Credit Agreement.
(f) If any term or provision of this Fifth Amendment shall be
deemed prohibited by or invalid under any applicable law, such provision
shall be invalidated without affecting the remaining provisions of this
Fifth Amendment, the Credit Agreement or the other Loan Documents.
(g) The Company agrees to pay or reimburse BofA (including in its
capacity as Agent), upon demand, for all reasonable costs and expenses
(including reasonable Attorney Costs) incurred by BofA (including in its
capacity as Agent) in connection with the development, preparation,
negotiation, execution and delivery of this Fifth Amendment.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the parties hereto have caused this
Fifth Amendment to be duly executed and delivered in San Francisco,
California, by their proper and duly authorized officers as of the day and
year first above written.
MAIL-WELL, INC.
By: ___________________________________
Title: _________________________________
MAIL-WELL I CORPORATION
By: ___________________________________
Title: _________________________________
EACH SUBSIDIARY GUARANTOR LISTED ON
ANNEX II
By: ___________________________________
Title: _________________________________
BANK OF AMERICA, N.A., as Agent, Issuing
Bank, Swingline Bank and as a Lender
By: ___________________________________
Title: _________________________________
[Other Lenders.]
11
ANNEX I
To Fifth Amendment to Credit Agreement
--------------------------------------
PRICING GRID
------------
From the Effective Date (as such term is defined in the
Fifth Amendment to the Credit Agreement dated as of February 26, 2002) until
the date on which the Parent delivers a Compliance Certificate pursuant to
Section 7.02(b) of the Credit Agreement for the fiscal quarter ending March
31, 2002 (the "Initial Period"), the Applicable Margin and the Applicable
--------------
Fee Amount shall be fixed at Level 7. From and after the last day of the
Initial Period, the Applicable Margin and the Applicable Fee Amount for any
day shall be the amount per annum set forth below based on the Total
Leverage Ratio set forth in the most recently delivered Compliance
Certificate delivered by the Parent pursuant to Section 7.02(b) of the
Credit Agreement. Changes in the Applicable Margin and the Applicable Fee
Amount resulting from a change in the Total Leverage Ratio shall become
effective on the date of delivery by the Parent to the Agent of a new
Compliance Certificate pursuant to Section 7.02(b), except that no such
change shall take effect until the end of the Initial Period. If the Parent
shall fail to deliver a Compliance Certificate and accompanying financial
statements within the number of days after the end of any fiscal quarter or
fiscal year as required pursuant to Section 7.02(b), the parties agree that
the Applicable Margin and the Applicable Fee Amount shall be fixed at Level
7 until such time as the Parent delivers such new Compliance Certificate and
accompanying financial statements pursuant to Section 7.02(b).
Notwithstanding the foregoing, the Applicable Margin for Tranche B Term
Loans shall be, at Levels 1 through 5, 3.75% for Offshore Rate Loans and
2.50% for Base Rate Loans, at ▇▇▇▇▇ ▇, 4.00% for Offshore Rate Loans and
2.75% for Base Rate Loans, and, at ▇▇▇▇▇ ▇, 4.25% for Offshore Rate Loans
and 3.00% for Base Rate Loans.
============================================================================================================
OFFSHORE RATE BASE RATE LETTER OF COMMITMENT
LEVEL TOTAL LEVERAGE RATIO SPREAD SPREAD CREDIT FEE FEE
============================================================================================================
Level 7 greater than or equal 4.00% 2.75% 4.00% 0.50%
to 5.25 to 1.00
------------------------------------------------------------------------------------------------------------
Level 6 greater than or equal 3.75% 2.50% 3.75% 0.50%
to 4.75 to 1.00 and
less than 5.25 to 1.00
------------------------------------------------------------------------------------------------------------
Level 5 greater than or equal 3.50% 2.25% 3.50% 0.50%
to 4.25 to 1.00 and
less than 4.75 to 1.00
------------------------------------------------------------------------------------------------------------
Level 4 greater than or equal 3.25% 2.00% 3.25% 0.50%
to 3.50 to 1.00 and
less than 4.25 to 1.00
------------------------------------------------------------------------------------------------------------
Level 3 greater than or equal 3.00% 1.75% 3.00% 0.50%
to 3.00 to 1.00 and
less than 3.50 to 1.0
------------------------------------------------------------------------------------------------------------
Level 2 greater than or equal 2.75% 1.50% 2.75% 0.50%
to 2.50 to 1.00 and
less than 3.00 to 1.00
------------------------------------------------------------------------------------------------------------
Level 1 less than 2.50 to 1.00 2.50% 1.25% 2.50% 0.50%
------------------------------------------------------------------------------------------------------------
12
Notwithstanding anything to the contrary set forth above,
if the Parent, the Company or its Subsidiaries have failed to raise Net
Issuance Proceeds and Net Proceeds from and after February 21, 2002, in an
aggregate combined amount of at least $200,000,000 by June 30, 2002, and to
apply such Net Issuance Proceeds and Net Proceeds by such date to the
prepayment of the Loans pursuant to Section 2.08, then 25bps shall be added
at all levels to the Applicable Fee Amount (other than with respect to the
"Commitment Fee") and to the Applicable Margin that would otherwise be
applicable from time to time to the Letters of Credit, the Revolving Loans,
the Tranche A Term Loans and the Tranche B Term Loans.
13
ANNEX II
To Fifth Amendment to Credit Agreement
--------------------------------------
ABP Books, Inc.
▇▇▇▇▇▇ 1000, Inc.
Discount Labels, Inc.
Hill Graphics, Inc.
Mail-Well Commercial Printing, Inc.
Mail-Well Label USA, Inc.
Mail-Well Mexico Holdings, Inc.
Mail-Well Services, Inc.
Mail-Well Texas Finance L.P.
Mail-Well West, Inc.
National Graphics Company
Poser Business Forms, Inc.
Wisco III, LLC
14
SCHEDULE 1
To Fifth Amendment to Credit Agreement
--------------------------------------
(1) Account Control Agreement, dated as of February 20, 2002, by and among
Bank of America, N.A., as Agent, the Parent, ▇▇▇▇▇ Fargo Bank West, N.A.,
▇▇▇▇▇ Fargo Bank, N.A., and ▇▇▇▇▇ Fargo Bank Ohio, N.A. (fully executed by
the foregoing parties).
(2) Joinder Agreement, dated as of February 22, 2002, executed by ABP Books,
Inc., Discount Labels, Inc., Hill Graphics, Inc., the Company, Mail-Well
Commercial Printing, Inc., the Parent, Mail-Well Label USA, Inc., Mail-Well
Mexico Holdings, Inc., Mail-Well Services, Inc., Mail-Well Texas Finance
L.P., Mail-Well West, Inc., National Graphics Company, Poser Business Forms,
Inc. and Wisco III, LLC (fully executed by the foregoing parties).
15