Exhibit 4.3
SECOND AMENDMENT TO FORBEARANCE
AGREEMENT
This Amendment to Forbearance
Agreement (this “ Agreement ”) is dated
May 27, 2008 and is entered into by and among
Vertis, Inc. (“ Borrower ”), as Borrower,
the other Credit Parties signatory hereto, General Electric Capital
Corporation, as a Lender and as Agent for Lenders (“
Agent ”), and the Lenders party hereto.
W I T N E S S E T H
:
WHEREAS, the parties hereto are the
parties to that certain Forbearance Agreement dated April 3,
2008 (as amended by that certain Amendment to Forbearance Agreement
dated May 2, 2008 and hereby, the “ Forbearance
Agreement ”);
WHEREAS, Borrower represents to
Agent and 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 the
February 2003 Senior Subordinated Notes (such circumstances,
excluding any further events or actions, the “ Missed
Senior Subordinated Payment ”);
WHEREAS, Borrower acknowledges that
the Missed Senior Subordinated Payment will constitute a Default
(the “ Senior Subordinated Default ”) under the
Credit Agreement;
WHEREAS, Borrower represents to
Agent and 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 the 2002 Senior Notes (such
circumstances, excluding any further events or actions, the “
Missed Senior Notes Payment ”);
WHEREAS, Borrower acknowledges that
the Missed Senior Notes Payment will constitute a Default (the
“ Senior Notes Default ”) under the Credit
Agreement;
WHEREAS, Borrower and the other
Credit Parties have requested that Agent and Lenders party to the
Forbearance Agreement amend the Forbearance Agreement as set forth
herein so as to modify the definitions of “Forbearance
Default” and “Forbearance Termination Date” set
forth therein and so as to modify certain other provisions
thereof;
WHEREAS, subject to the terms and
conditions hereof, Agent and Requisite Lenders have agreed to grant
this request; and
WHEREAS, this Agreement constitutes
a Loan 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 Credit Agreement); provided , however ,
that, as used herein, the term “ Senior Subordinated Event
of Default ” shall
mean an Event of Default under
Section 7.1(b)(1) of the Credit Agreement on account of
the Missed Senior Subordinated Payment, and the term “
Senior Notes Event of Default ” shall mean an Event of
Default under Section 7.1(b)(1) of the Credit Agreement
on account of the Missed Senior Notes Payment; provided ,
further , that the defined term “Existing
Default”, as used herein and in the Forbearance
Agreement shall mean, collectively, (i) the Default under the
Credit Agreement engendered by the Missed Payment; (ii) the
Senior Subordinated Default; (iii) the Senior Subordinated
Event of Default; (iv) the Senior Notes Default; and
(v) the Senior Notes Event of Default.
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 Default
” means (i) the occurrence of any Default or Event of
Default, other than the Existing Default or an Event of Default
under Section 7.1(b)(1) of the Credit Agreement on
account of the Missed Payment (the “ 2003 Indenture Event
of Default ”), (ii) the failure of Borrower to
comply with any term, condition or covenant set forth in this
Agreement, (iii) any representation made by Borrower 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 the 2003 Senior Secured Notes
or the taking of any enforcement action or exercise of any right or
remedy 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 Credit Parties or the property of any such
Person, or to reorganize Borrower or any of the other Credit
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, 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 (as defined herein); (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 Agent and Required 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, the payment by the Borrower or any
other Credit Party of any principal, interest, fees, costs,
expenses, or reimbursement or indemnification claim under the 2003
Senior Secured Notes, the February 2003 Senior Subordinated
Notes, the 2002 Senior Notes or the Mezzanine Notes.
(b)
deleting
Section 1(c) therefrom and replacing it with the
following:
(c)
“
Forbearance Termination Date ” means the earliest to
occur of (i) 5:00 p.m. (New York time) on July 16,
2008, (ii) the fifth calendar day following the first day, if
any, on which Borrowing Availability is $7,000,000 or less, or
(iii) the date upon which a Forbearance Default
occurs.
3.
Conditions to
Effectiveness . The effectiveness of
this Agreement is expressly conditioned upon Agent’s receipt
(on behalf of itself and each of the Lenders party hereto) from
Borrower of the following:
(a)
Agreement
. A duly
executed counterpart of this Agreement from Agent, Requisite
Lenders, Borrower and the other Credit Parties listed on the
signature pages hereto.
(b)
Restructuring
Agreement . An execution copy of
the Restructuring and Lock-Up Agreement dated as of May 22,
2008 (the “ Restructuring Agreement ”) among,
inter alia , Borrower, various other Credit Parties and the
holders of the 2003 Senior Secured Notes, the February 2003
Senior Subordinated Notes, the 2002 Senior Notes and the Mezzanine
Notes party thereto or to agreements (each, an “ Ancillary
Noteholder Agreement ”
