EXHIBIT 10.30
Execution Copy
AMENDMENT AND TEMPORARY WAIVER AGREEMENT
THIS AMENDMENT AND TEMPORARY WAIVER
AGREEMENT (this “ Amendment ”), is made and
entered into as of November 14, 2007 among AMERICAN COLOR
GRAPHICS, INC., a New York corporation (together with any permitted
successors and assigns, “ ACG ”), AMERICAN COLOR
GRAPHICS FINANCE, LLC, a Delaware limited liability company
(together with any permitted successors and assigns, “ ACG
Finance ” and, together with ACG, the “ ACG
Parties ”), the financial institutions identified on the
signature pages hereof as Lenders (collectively, the “
Lenders ”), and BANK OF AMERICA, N.A., as
Administrative Agent (in such capacity, “ Administrative
Agent ”) and collateral agent (in such capacity, “
Collateral Agent ”).
RECITALS
1. ACG Finance, the
Administrative Agent, the Collateral Agent and the Lenders are
parties to that certain Credit Agreement, dated as of
September 26, 2006, as amended by that certain Omnibus
Amendment of Loan Documents, dated as of June 13, 2007 (the
“ Omnibus Amendment ”) (as amended prior to the
date hereof, the “ Existing Credit Agreement ”);
ACG Finance, ACG, in its capacity as servicer (in such capacity,
the “ Servicer ”) and the Administrative Agent
are parties to that certain Servicing Agreement, dated as of
September 26, 2006, as amended by that certain First Amendment
to Servicing Agreement, dated as of March 30, 2007, as further
amended by the Omnibus Amendment, and as further amended by that
certain letter amendment dated July 3, 2007 (as amended prior
to the date hereof, the “ Existing Servicing
Agreement” ); and ACG Finance and ACG are parties to that
certain Contribution and Sale Agreement, dated as of
September 26, 2006 (the “ Existing Contribution
Agreement ”).
2. The ACG Parties have advised
the Administrative Agent and the Lenders that they will be unable
to satisfy the requirements of (i) Section 5.01(a) of the
Existing Credit Agreement, Section 3.2(a) of the Existing Servicing
Agreement and Section 5.1(j)(i) of the Existing Contribution
Agreement, with respect to delivery of an opinion by its certified
public accountants not subject to a going concern qualification,
for the fiscal year ending March 31, 2007, and
(ii) Section 5.3 of the Existing Servicing Agreement,
with respect to the fiscal quarters ending September 30, 2007
and December 31, 2007.
3. ACG has further advised the
Administrative Agent and the Lenders that it has reached an
agreement with certain holders of the Second Lien Notes (as
hereinafter defined) pursuant to which ACG will solicit the consent
of the holders of at least 90% of the outstanding principal amount
of the Second Lien Notes (such holders being referred to herein as
the “ Consenting Noteholders ”) by which such
Consenting Noteholders would (i) accept promissory notes (the
“ Second Lien Supplemental Notes ”), due
March 15, 2008, in lieu of cash payment of scheduled interest
due on December 15, 2007 under the Second Lien Notes,
(ii) prospectively waive any default or event of default as a
result of ACG’s failure to pay in cash the interest due to
the Consenting Noteholders on December 15, 2007 under the
Second Lien Notes, and (iii) cause the Second Lien Indenture to be
amended to allow the incurrence by ACG of an additional $5 million
of secured indebtedness.
4. ACG Finance and ACG have
requested that the Lenders (i) provide a limited waiver of the
Pending Defaults (as hereinafter defined), and (ii) continue
to make available to ACG Finance the Loans.
5. The Lenders and the
Administrative Agent are willing to provide a limited waiver of the
Pending Defaults and continue to make available the Loans to ACG
Finance, based upon and subject to the terms and conditions
specified in this Amendment.
NOW, THEREFORE , for good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
Definitions
Section 1.1 Certain
Definitions . Unless otherwise defined herein or the context
otherwise requires, the following terms used in this Amendment have
the following meanings:
“ Amended and Restated
Indenture ” means that certain Amended and Restated
Indenture, dated as of November 14, 2007, among ACG, ACG
Holdings, Inc. and The Bank of New York Trust Company, N.A., as
trustee, issued in connection with the Second Lien Supplemental
Notes and amending the Second Lien Indenture.
“ Amended Contribution
Agreement ” means the Existing Contribution Agreement as
amended hereby.
“ Amended Credit
Agreement ” means the Existing Credit Agreement as
amended hereby.
“ Amended Servicing
Agreement ” means the Existing Servicing Agreement as
amended hereby.
“ Amendment Effective
Date ” shall mean, in accordance with Article V of
this Amendment, the date upon which ACG and ACG Finance have
satisfied in the determination of the Administrative Agent and the
Lenders (or satisfaction thereof has been waived by the
Administrative Agent and the Lenders) each of the conditions set
forth in Article V of this Amendment.
“ Consenting Noteholders
” shall have the meaning ascribed to it in the Recitals
hereto.
“ Pending Defaults
” means (A) ACG Finance’s and ACG’s failure
to satisfy the requirements of (i) Section 5.01(a) of the
Existing Credit Agreement, Section 3.2(a) of the Existing
Servicing Agreement and Section 5.1(j)(i) of the Existing
Contribution Agreement, with respect to delivery of an opinion by
its certified public accountants not subject to a going concern
qualification, for the fiscal year ending March 31, 2007, and
(ii) Section 5.3 of the Existing Servicing Agreement,
with respect to the fiscal quarters ending September 30, 2007
and December 31, 2007, and (B) any Default existing as
a
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result of ACG
Finance’s and ACG’s acknowledgements set forth in
Section 2.1(c) of the Amendment.
“ Second Lien Indenture
” means that certain Indenture, dated as of July 3,
2003, among ACG, ACG Holdings, Inc. and The Bank of New York, as
trustee, as amended by the Amended and Restated Indenture.
“ Second Lien Notes
” shall means ACG’s 10% Senior Second Secured Notes due
2010 issued pursuant to the Second Lien Indenture.
“ Second Lien Supplemental
Notes ” shall have the meaning ascribed to it in the
Recitals hereto.
Section 1.2. Other
Definitions . Unless otherwise defined herein or the context
otherwise requires, terms used in this Amendment have the meanings
provided in the Amended Credit Agreement.
ARTICLE II
Limited Waiver and Reaffirmation
Section 2.1 Limited
Waiver . (a) The ACG Parties acknowledge that the Pending
Defaults will result from ACG Finance’s and ACG’s
failure to be able to comply with (i) the financial covenant
contained in Section 5.3 of the Existing Servicing Agreement
for the fiscal quarters ending nearest September 30, 2007 and
December 31, 2007, respectively, and (ii) the requirement
in Section 5.01(a) of the Existing Credit Agreement,
Section 3.2(a) of the Existing Servicing Agreement and
Section 5.1(j)(i) of the Existing Contribution Agreement that
ACG’s annual financial statements be accompanied by the
opinion of its certified public accountants not subject to a going
concern qualification, for the fiscal year ending March 31,
2007. Effective on (and subject to the occurrence of) the Amendment
Effective Date, the Lenders hereby waive the Pending Defaults for
the period from September 30, 2007 through and including
February 15, 2008 (the “ Waiver Period ”)
for all purposes of the Existing Credit Agreement (including,
without limitation, Section 4.03(b) thereof), the Existing
Servicing Agreement and the other Loan Documents. This limited
waiver shall not modify or affect (i) ACG’s obligation
to comply with the terms of Section 5.3 of the Amended Servicing
Agreement as measured for the fiscal quarters ending nearest
September 30, 2007 and December 31, 2007, respectively,
(ii) ACG’s obligation to comply with the terms of
Section 5.3 of the Amended Servicing Agreement as measured at
the end of any fiscal quarter other than the ones ending nearest
September 30, 2007 and December 31, 2007, (iii) the
ACG Parties’ obligation to comply with the terms of
Section 5.01(a) of the Existing Credit Agreement, Section
3.2(a) of the Existing Servicing Agreement and
Section 5.1(j)(i) of the Existing Contribution Agreement for
the fiscal year ending nearest March 31, 2007, (iv) the
ACG Parties’ obligation to comply with the terms of
Section 5.01(a) of the Existing Credit Agreement,
Section 3.2(a) of the Existing Servicing Agreement and
Section 5.1(j)(i) of the Existing Contribution Agreement for
any fiscal year other than the one ending nearest March 31,
2007, or (iv) the ACG Parties’ obligation to comply
fully with any other duty, term, condition, obligation or covenant
contained in the Amended Credit Agreement, the Amended Servicing
Agreement or the other Loan Documents.
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(b) Except for the limited
waiver set forth above, nothing contained herein shall be deemed to
constitute or imply a waiver of any rights or remedies which the
Administrative Agent or any Lender may have under the Amended
Credit Agreement, the Amended Servicing Agreement, any other Loan
Document, or under applicable law; it being understood that the
Administrative Agent and the Lenders may not exercise their rights
and remedies with respect to the Pending Defaults during the Waiver
Period as long as no other Servicer Default, Default or Event of
Default occurs or exists. The limited waiver set forth herein shall
be effective only in this specific instance for the duration of the
Waiver Period and shall not obligate the Lenders or the
Administrative Agent to waive any other Servicer Default, Default
or Event of Default, now existing or hereafter arising. This is a
one-time waiver, and the Administrative Agent and the Lenders shall
have no obligation to extend the waiver or otherwise amend the
Amended Credit Agreement or the Amended Servicing Agreement at the
end of the Waiver Period. This limited waiver shall not establish a
custom or course of dealing or conduct between the Administrative
Agent, any Lender, ACG Finance, ACG or any other ACG Party.
(c) The ACG Parties acknowledge
and agree that unless the Required Lenders further amend the
Amended Credit Agreement, the Amended Servicing Agreement and the
Amended Contribution Agreement or otherwise agree in writing to
continue this waiver beyond February 15, 2008, an Event of
Default and a Servicer Default will exist under the Amended Credit
Agreement and the Amended Servicing Agreement as of
February 15, 2008, for which no grace period or cure period
shall apply, and the Administrative Agent and the Lenders may
pursue all rights and remedies available to them under the Amended
Credit Agreement, the Amended Servicing Agreement, the other Loan
Documents and applicable law. The ACG Parties further acknowledge
and agree that, to the extent any Servicer Defaults, Defaults or
Events of Default (other than the Pending Defaults) now exist or
hereafter arise during the Waiver Period, the Administrative Agent
and the Lenders may immediately pursue all rights and remedies
available to them in respect thereof under the Amended Credit
Agreement, the Amended Servicing Agreement, the other Loan
Documents, and applicable law. The Administrative Agent hereby
acknowledges that, to the best of its knowledge as of the date
hereof, before giving effect to the foregoing limited waiver, there
are no Servicer Defaults, Defaults or Events of Default under the
Existing Credit Agreement or the Existing Servicing Agreement other
than the Pending Defaults.
Section 2.2
Reaffirmation of ACG Party Obligations . Each ACG Party
hereby ratifies the Amended Credit Agreement and the Amended
Servicing Agreement and acknowledges and reaffirms (i) that it is
bound by all terms of the Amended Credit Agreement and the Amended
Servicing Agreement and (ii) that it is responsible for the
observance and full performance of the Obligations, including
without limitation the repayment of the Loa
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