Exhibit 4.5
EXECUTION COPY
FIRST AMENDMENT TO FORBEARANCE
AGREEMENT
This First Amendment to Forbearance
Agreement (this “ Agreement ”) is dated
May 27, 2008 and is entered into by and among Vertis
Receivables II, LLC (the “ Borrower ”),
Webcraft, LLC (“ Webcraft ”), Webcraft
Chemicals, LLC (“ Webcraft Chemicals ”), Enteron
Group, LLC (“ Enteron ”), Vertis Mailing, LLC
(“ Vertis Mailing ”), Vertis, Inc. (“
Vertis ”) and General Electric Capital Corporation, as
a “Lender”, as “Swing Line Lender” (in such
capacities, the “ Lenders ”) and as
“Administrative Agent” under the Funding Agreement (in
such capacity, the “ Administrative Agent
”).
W I T N E S S E T H
:
WHEREAS, the parties hereto are the
parties to that certain Forbearance Agreement dated April 2,
2008 (as amended hereby, the “ Forbearance Agreement
”);
WHEREAS, Vertis represents to
Administrative Agent and the Lenders that, as a result, inter
alia , of its entry into the Restructuring Agreement (as
defined herein), it will not make the interest payment due on
June 1, 2008 under Vertis’ 13½% Senior Subordinated
Notes due December 7, 2009 issued pursuant to the Indenture,
dated as of February 28, 2003, between Vertis and the
indenture trustee party thereto (the “ February 2003
Senior Subordinated Notes Indenture Trustee ”) (the
“ February 2003 Senior Subordinated Notes
”) (such circumstances, excluding any further events or
actions, the “ Missed Senior Subordinated Payment
”);
WHEREAS, each of Vertis and Borrower
acknowledges that the Missed Senior Subordinated Payment will
constitute (i) an Incipient Event of Servicer Termination
under Section 8.01(b) of the Sale and Servicing Agreement
and (ii) an Incipient Termination Event under
Section 8.01(c)(1) and Section 8.01(o)(i) of
the Funding Agreement (collectively, the “ Senior
Subordinated Incipient Termination Events ”);
WHEREAS, Vertis represents to
Administrative Agent and the Lenders that, as a result, inter alia,
of its entry into the Restructuring Agreement, it will not make the
interest payment due on June 15, 2008 under Vertis’ 10
7/8% Senior Notes due June 15, 2009 issued pursuant to the
Indenture, dated as of June 24, 2002, between Vertis and the
indenture trustee party thereto (the “ 2002 Senior Notes
Indenture Trustee ”) (the “ 2002 Senior
Notes ”) (such circumstances, excluding any further
events or actions, the “ Missed Senior Notes Payment
”);
WHEREAS, each of Vertis and Borrower
acknowledges that the Missed Senior Notes Payment will constitute a
(i) an Incipient Event of Servicer Termination under
Section 8.01(b) of the Sale and Servicing Agreement and
(ii) an Incipient Termination Event under
Section 8.01(c)(1) and Section 8.01(o)(i) of
the Funding Agreement (the “ Senior Notes Incipient
Termination Events ”);
WHEREAS, Borrower, Vertis and the
other Transaction Parties have requested that Administrative Agent
and the Lenders party to the Forbearance Agreement amend the
Forbearance Agreement as set forth herein so as to modify the
definitions of “Forbearance
Termination Event” and “Forbearance
Termination Date” set forth therein and so as to modify
certain other provisions thereof;
WHEREAS, subject to the terms and
conditions hereof, Administrative Agent and the Lenders have agreed
to grant this request; and
WHEREAS, this Agreement constitutes
a Related Document and these Recitals shall be construed as part of
this Agreement;
NOW, THEREFORE, in consideration of
the representations and mutual covenants set forth herein and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1.
Defined
Terms . Each capitalized term
used herein and not otherwise defined herein shall have the meaning
attributed to such term in the Forbearance Agreement (including,
without limitation, by virtue of its reference to defined terms
used in the Funding Agreement); provided , however ,
that, as used herein, the term “ Senior Subordinated
Termination Events ” shall mean (i) an Event of
Servicer Termination under Section 8.01(b) of the Sale
and Servicing Agreement and (ii) a Termination Event under
Section 8.01(c)(1) and Section 8.01(o)(i) of
the Funding Agreement, each on account of the Missed Senior
Subordinated Payment, and the term “ Senior Notes
Termination Events ” shall mean (i) an Event of
Servicer Termination under Section 8.01(b) of the Sale
and Servicing Agreement and (ii) a Termination Event under
Section 8.01(c)(1) and Section 8.01(o)(i) of
the Funding Agreement, each on account of the Missed Senior Notes
Payment; provided , further , that the defined term
“ Existing Incipient Termination Events ”, as
used herein and in the Forbearance Agreement shall mean,
collectively, (i) the Incipient Event of Servicer Termination
under the Sale and Servicing Agreement engendered by the Missed
Payment; (ii) the Incipient Termination Event under the
Funding Agreement engendered by the Missed Payment; (iii) the
Senior Subordinated Incipient Termination Events; and (iv) the
Senior Subordinated Termination Events; (v) the Senior Notes
Incipient Termination Events; and (vi) the Senior Notes
Termination Events.
2.
Amendment to
Forbearance Agreement . The parties hereto
and to the Forbearance Agreement agree to amend the Forbearance
Agreement by:
(a)
deleting
Section 1(a) therefrom in its entirety and replacing it
with the following:
(a)
“ Forbearance
Termination Event ” means (i) the occurrence of any
Incipient Termination Event, Termination Event, Event of Servicer
Termination or Incipient Event of Servicer Termination (other than
(A) either Existing Incipient Termination Event, (B) the
Existing Incipient Event of Servicer Termination, (C) any
Termination Event under Section 8.01(c)(1) or
Section 8.01(o)(i) of the Funding Agreement on account of
the Missed Payment (a “ 2003 Indenture Termination
Events ”) and (D) any Event of Servicer Termination
under Section 8.01(b) of the Sale and Servicing Agreement
on account of the Missed
Payment (a “ 2003
Indenture Event of Servicer Termination ”)),
(ii) the failure of Borrower or any Transaction Party to
comply with any term, condition or covenant set forth in this
Agreement, (iii) any representation made by Borrower or any
Transaction Party under or in connection with this Agreement shall
prove to be false in any material respect as of the date when made,
(iv) any acceleration of the obligations under Vertis’
9-3/4% 2003 Senior Secured Notes due April 1, 2009 issued
pursuant to the Indenture, dated as of June 6, 2003, between
Vertis and the indenture trustee party thereto (the “ 2003
Senior Secured Notes Indenture Trustee ”) (the “
2003 Senior Secured Notes ”) or the Credit Agreement
or the taking of any enforcement action or exercise of any right or
remedy under the Credit Agreement or by the holders of the 2003
Senior Secured Notes or the 2003 Senior Secured Notes Indenture
Trustee whether based upon the Missed Payment or otherwise,
(v) any acceleration of the obligations under the
February 2003 Senior Subordinated Notes or the taking of any
enforcement action or exercise of any right or remedy by the
holders of the February 2003 Senior Subordinated Notes or the
February 2003 Senior Subordinated Notes Indenture Trustee
whether based upon the Missed Senior Subordinated Payment or
otherwise, (vi) any acceleration of the obligations under the
February 2002 Senior Notes or the taking of any enforcement
action or exercise of any right or remedy by the holders of the
2002 Senior Notes or the 2002 Senior Notes Indenture Trustee
whether based upon the Missed Senior Notes Payment or otherwise,
(vii) the commencement of any proceeding (whether judicial,
extra-judicial, administrative or otherwise) or the taking of any
other action to liquidate the businesses of Borrower or any of the
other Transaction Parties or the property of any such Person, or to
reorganize Borrower or any of the other Transaction Parties,
including, without limitation, the appointment of a receiver or
other custodian or the making of an assignment to an assignee for
the benefit of creditors or other custodians; (viii) the
termination (whether in accordance with its terms or otherwise) of,
or any default or material breach (which default or material breach
is not cured by the deadline (if any) under, as applicable, the
Restructuring Agreement or the Agreement and Plan of Merger or any
Ancillary Noteholder Agreement with respect thereto) under, the
Restructuring Agreement (as defined herein), the Agreement and Plan
of Merger (as defined herein) and/or any Ancillary Noteholder
Agreement; (ix) the modification or amendment of the
Restructuring Agreement, the Agreement and Plan of Merger or any
Ancillary Noteholder Agreement without the prior written consent of
the Administrative Agent and the Lenders; and/or (x) other
than the
payment of professional fees and
expenses in accordance with Section 5.05 of the Restructuring
Agreement or of ordinary course indenture trustee fees and expenses
pursuant to the existing terms of the 2002 Senior Notes Indenture,
the 2003 Senior Secured Notes Indenture or the February 2003
Senior Subordinated Notes Indenture (each as defined in the
Existing Credit Agreement), the payment by the Borrower or any
other Transaction Party of any principal, interest, fees, costs,
expenses, or reimbursement or indemnification claim under the 2003
Senior
