FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
This FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as of
October 19, 2009 (this “ Amendment ”), is
by and among BOWNE & CO., INC., a Delaware corporation (the
“ Company ”), the other US Borrowers party
hereto (collectively with the Company, the “ US
Borrowers ”), BOWNE OF CANADA, LTD. (the “
Canadian Borrower ” and, together with the US
Borrowers, the “ Borrowers ”), the other Loan
Parties party hereto (such other Loan Parties, together with the
Borrowers, being hereinafter referred to collectively as the
“ Loan Parties ”), JPMORGAN CHASE BANK, N.A.,
BANK OF AMERICA, N.A. and CAPITAL ONE, N.A. (collectively, the
“ Continuing Lenders ”), WELLS FARGO FOOTHILL,
LLC and SOVEREIGN BANK (collectively, the “ New
Lenders ”), and solely for the purposes of Section 3
hereof, CITIBANK, N.A., WACHOVIA BANK, NATIONAL ASSOCIATION and US
BANK, NATIONAL ASSOCIATION (collectively, the “ Exiting
Lenders ”), JPMORGAN CHASE BANK, N.A. as US
Administrative Agent for the Lenders under the Credit Agreement
described below (in such capacity, the “ US Administrative
Agent ”), and JPMORGAN CHASE BANK, N.A., TORONTO BRANCH,
as Canadian Administrative Agent for the Lenders under such Credit
Agreement (in such capacity, the “ Canadian Administrative
Agent ” and, together with the US Administrative Agent,
the “ Administrative Agents ”).
WHEREAS the
Borrowers are party to an Amended and Restated Credit Agreement
dated as of March 31, 2009 among the Borrowers, the other Loan
Parties party thereto, the Lenders party thereto and the
Administrative Agents (as amended, supplemented or otherwise
modified from time to time, the “ Credit Agreement
”), pursuant to which the Lenders agreed, subject to the
terms and conditions set forth therein, to make certain Loans to
the Borrowers; and
WHEREAS, the
Borrowers have requested and the Administrative Agents and the
Lenders party hereto have agreed, on the terms set forth herein, to
amend the Credit Agreement as set forth herein;
NOW, THEREFORE, in
consideration of the foregoing and the agreements contained herein,
the parties hereby agree as follows:
1.
Capitalized Terms . Capitalized terms used herein which are
defined in the Credit Agreement have the same meanings herein as
therein, except to the extent that such meanings are amended
hereby.
2.
Amendments to Credit Agreement. Subject to the satisfaction
of the terms and conditions set forth in Section 5 hereof, the
Loan Parties, the Continuing Lenders, the New Lenders and the
Administrative Agents agree that the Credit Agreement is hereby
amended as follows:
(a)
Amendments to Section 1.01 of the Credit Agreement
.
(i)
Amendments to Existing Definitions . Section 1.01 of
the Credit Agreement is hereby amended by deleting the definitions
of “Availability Period”, “Canadian Revolving
Exposure”, “Full Cash Dominion Period” and
“Revolving Maturity Date” and substituting the
following therefor:
“
Availability Period ” means the period from and
including the Effective Date to but excluding the earlier of the
Revolving Maturity Date and the date of termination of the
Revolving Commitments.
“
Canadian Revolving Exposure ” means, with respect to
any Lender at any time, the sum of the outstanding principal amount
of such Lender’s Canadian Revolving Loans and its
Canadian LC
Exposure and an amount equal to its Applicable Percentage of the
aggregate principal amount of Canadian Swingline Loans and Canadian
Protective Advances outstanding at such time.
“ Full
Cash Dominion Period ” means (a) any period
commencing with the occurrence and during the continuance of an
Event of Default until such Event of Default has been cured or
waived and (b) any period (i) commencing on the date that
Aggregate Availability shall have been less than $22,500,000 for
three consecutive days and (ii) ending on the date thereafter
on which Aggregate Availability shall have exceeded $27,500,000 for
ninety (90) consecutive days; provided , that solely for
purposes of clause (b) above, during the period from January 1
through March 31 of each year, a Full Cash Dominion Period
shall not commence unless Aggregate Availability shall have been
less than $17,500,000 for three consecutive days.
“
Revolving Maturity Date ” means May 31,
2013.
(ii)
Amendment to Definition of Permitted Acquisition .
Section 1.01 of the Credit Agreement is hereby further amended
by deleting clauses (iii) and (iv) of the definition of
“Permitted Acquisition” set forth therein in their
entirety and substituting the following therefor:
“(iii) the
aggregate amount of Acquisition Consideration paid by the Loan
Parties for such acquisition and all other Permitted Acquisitions
consummated in any fiscal year shall not exceed the Maximum
Acquisition Consideration Amount for such fiscal year;
(iv) as soon as
available, but not less than five (5) Business Days prior to
the closing of such acquisition, the Loan Parties shall submit to
the Administrative Agents (A) notice of such acquisition,
(B) copies of all business and financial information
reasonably requested by any Administrative Agent, (C) pro
forma financial statements which demonstrate, on a pro forma basis
(1) a Fixed Charge Coverage Ratio for the period of twelve
consecutive months most recently ended of not less than 1.25 to
1.00, (2) Aggregate Availability after giving effect to
payment of all consideration for such acquisition of not less than
$30,000,000 (or such greater amount as is set forth in the
definition of Maximum Acquisition Consideration Amount) (it being
understood that the Accounts and Inventory being acquired in
connection with such acquisition may be included in the
determination of Aggregate Availabilty under this clause
(2) if and only if the Borrowers have complied with the
requirements of clause (v) of this definition set forth
below), and (3) Average Aggregate Quarterly Availability
during the period of two consecutive fiscal quarters most recently
ended prior to the consummation of such acquisition of not less
than $30,000,000 (or such greater amount as is set forth in the
definition of Maximum Acquisition Consideration Amount); and
(D) a certificate of a Financial Officer certifying that such
pro forma financial statements present fairly in all material
respects the financial condition of the Company and its
Subsidiaries on a consolidated basis as of the date thereof after
giving effect to such acquisition and setting forth reasonably
detailed calculations demonstrating compliance with the minimum
Fixed Charge Coverage Ratio, minimum Aggregate Availability and
minimum Average Aggregate Quarterly Availability set forth in
clause (C) above, and which shall include a representation and
warranty as to compliance with each of the other criteria for a
“Permitted Acquisition”;”
(iii) New
Definitions . Section 1.01 of the Credit Agreement is
hereby further amended by inserting the following new definitions
therein in appropriate alphabetical order:
“
Acquisition Consideration ” means, with respect to any
acquisition, the aggregate consideration paid by the Loan Parties
for such acquisition, including all Indebtedness (including all
earn out payments and similar obligations) incurred or assumed in
connection with such acquisition or otherwise reflected in the
balance sheet of the Company and its Subsidiaries on a Consolidated
Basis.
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“ First
Amendment Effective Date ” means October 19,
2009.
“ Maximum
Acquisition Consideration Amount ” means $25,000,000;
provided , that in any given fiscal year, the Maximum
Acquisition Consideration Amount may be increased to $50,000,000,
so long as, with respect to each acquisition the Acquisition
Consideration for which causes the aggregate amount of Acquisition
Consideration for such fiscal year to exceed $25,000,000,
(a) the Borrowers shall have Aggregate Availability after
giving effect to the payment of all Acquisition Consideration for
such acquisition of not less than $40,000,000 (it being understood
that the Accounts and Inventory being acquired in connection with
such acquisition may be included in the determination of Aggregate
Availabilty under this clause (a) if and only if the Borrowers
have complied with the requirements of clause (v) of the
definition of Permitted Acquisition) and (b) the Borrowers
shall have Average Aggregate Quarterly Availability during the
period of two consecutive fiscal quarters most recently ended prior
to the consummation of such acquisition of not less than
$40,000,000.
(b)
Amendment to Section 2.02 of the Credit Agreement .
Section 2.02 of the Credit Agreement is hereby amended by
deleting Section 2.02(d) in its entirety and substituting the
following therefor:
“(d) Notwithstanding
any other provision of this Agreement, the Borrower Representative
shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Revolving Maturity
Date.”
(c)
Amendment to Section 2.06 of the Credit Agreement .
Section 2.06 of the Credit Agreement is hereby amended by
deleting Section 2.06(c) thereof in its entirety and
substituting the following therefor:
“(c)
Expiration Date . Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date
one year after the date of the issuance of such Letter of Credit
(or, in the case of any renewal or extension thereof, one year
after such renewal or extension) and (ii) the date that is
five Business Days prior to the Revolving Maturity
Date.”
(d)
Amendment to Section 6.08 of the Credit Agreement .
Section 6.08(a) of the Credit Agreement is hereby amended and
restated in its entirety and replaced with the
following:
“(a) No
Loan Party will, nor will it permit any Subsidiary to, declare or
make, or agree to pay or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except (i) the Company may declare and
pay dividends with respect to its common stock payable solely in
additional shares of its common stock, and, with respect to its
preferred stock, payable solely in additional shares of such
preferred stock or in shares of its common stock,
(ii) Subsidiaries may declare and pay dividends ratably with
respect to their Equity Interests, (iii) the Company may make
Restricted Payments, in an aggregate amount not to exceed
$25,000,000 during any fiscal year, pursuant to and in accordance
with stock option plans or other benefit plans for management or
employees of the Borrowers and their Subsidiaries, (iv) the
Company may pay cash dividends in an aggregate amount not to exceed
$2,500,000 during any fiscal quarter provided that immediately
prior to and after giving effect to the payment of such dividends
no Default or Event of Default shall have occurred and be
continuing, and (v) the Company may pay cash dividends in
aggregate amount not to exceed $15,000,000 per fiscal year
(inclusive of any dividends paid in accordance with the provisions
of clause (iv) of this Section 6.08(a)) provided
that immediately prior to and after giving effect to the payment of
such dividends (w) no Default or Event of Default shall have
occurred and be continuing, (x) the Fixed Charge Coverage
Ratio shall equal or exceed 1.25 to 1.00, (y) the Borrowers
shall have Average Aggregate Quarterly Availability for the period
of two consecutive fiscal quarters most recently ended of at least
$30,000,000 and (z) the Borrowers shall have Aggregate
Availability after giving effect to such payment of
$30,000,000.”
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(e)
Amendment to Section 6.12 of the Credit Agreement .
Section 6.12 of the Credit Agreement is hereby amended and
restated in its entirety and replaced with the
following:
“SECTION
6.12. Fixed Charge Coverage Ratio . The Loan Parties will
not permit the Fixed Charge Coverage Ratio, determined for any
period of four consecutive fiscal quarters ending on the last day
of each fiscal quarter, to be less than 1.00 to 1.00 as of the last
day of any fiscal quarter.”
(f)
Amendment to Article VIII of the Credit Agreement .
Article VIII of the Credit Agreement is hereby amended by
inserting the following therein as new subsection
(k) thereof:
“(k) Each
Lender acknowledges and agrees that either Administrative Agent may
at any time or from time to time submit requests to the Lenders
pursuant to which such Administrative Agent shall inquire as to
whether any Lender or any of its affiliates has entered into any
Swap Agreement with or provided any Banking Services to any Loan
Party and, upon receipt of any such request, each Lender shall
provide the applicable Administrative Agent with such information
and, to the extent requested by such Administrative Agent, copies
of all such Swap Agreements and all agreements evidencing or
governing such Banking Services.”
(g)
Amendment to Section 9.02 of the Credit Agreement .
Section 9.02(b) of the Credit Agreement is hereby amended by
deleting such Section 9.02(b) in its entirety and substituting
the following therefor:
“(b) Neither
this Agreement nor any other Loan Document nor any provision hereof
or thereof may be waived, amended or modified except (i) in
the case of this Agreement, pursuant to an agreement or agreements
in writing entered into by the Borrowers and the Required Lenders
or, (ii) in the case of any other Loan Document, pursuant to
an agreement or agreements in writing entered into by the
Administrative Agents and the Loan Party or Loan Parties that are
parties thereto, with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such
Lender, (ii) reduce or forgive the principal amount of any
Loan or LC Disbursement or reduce the rate of interest thereon, or
reduce or forgive any interest or fees payable hereunder, without
the written consent of each Lender directly affected thereby,
(iii) extend the Revolving Maturity Date, postpone the
scheduled date of expiration of any Commitment, or postpone any
scheduled date of payment of the principal amount of any Loan or LC
Disbursement without the written consent of each Lender directly
affected thereby, (iv) postpone any date for the payment of
any interest, fees or other Obligations (other than the principal
amount of any Loan or LC Disbursement) payable hereunder, or reduce
the amount of, waive or excuse any such payment, without the
written consent of each Lender directly affected thereby,
(v) change Section 2.18(b) or (d) in a manner that
would alter the manner in which payments are shared, without the
written consent of each Lender, (vi)&nbs
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