EXHIBIT 10.12(c)
THIRD AMENDMENT TO CREDIT AGREEMENT
AND WAIVER AND CONSENT
This THIRD
AMENDMENT TO CREDIT AGREEMENT AND WAIVER AND CONSENT (this “
Amendment ”), dated as of April 7, 2005, is by
and among AMERICAN COLOR GRAPHICS, INC., a New York Corporation
(the “ Borrower ”), EACH OF THE LENDERS
SIGNATORY HERETO, GECC CAPITAL MARKETS GROUP INC., as Syndication
Agent (the “ Syndication Agent ”), and BANK OF
AMERICA, N.A., as Administrative Agent and Collateral Agent for the
Lenders (in such capacity, the “ Agent ”).
Capitalized terms used herein and not otherwise defined shall have
the meaning assigned such term in the Credit Agreement (as defined
below).
RECITALS:
A. The
Borrower, the Lenders signatory thereto, the Syndication Agent and
the Agent are parties to that certain Credit Agreement, dated as of
July 3, 2003 (as amended to the date hereof, the “
Credit Agreement ” as amended by, and together with,
this Amendment, and as hereinafter amended, modified, supplemented,
extended or restated from time to time, being called the “
Amended Agreement ”).
B. The
Borrower has requested that the Lenders consent to (a) the
sale of certain assets of the Borrower located at its Pittsburg,
California leased facility as more specifically described on
Schedule I hereto (the “ Subject Assets
”) and (b) the release of any Liens of the Agent and the
Lenders on the Subject Assets;
C. The
parties hereto (a) agree to amend the Credit Agreement as set
forth below and (b) agree to the waiver, consent and release
as set forth below.
NOW, THEREFORE , in consideration of the premises and the
mutual covenants hereinafter contained, the parties hereto agree as
follows:
SECTION 1.01 Amendment to Annex A to the Credit
Agreement . (a) The definition of “Fixed Asset
Maximum” set forth in Annex A to the Credit Agreement is
hereby amended by (1) deleting the reference to
“$409,101” in the second line thereof and inserting the
dollar amount “$364,306” in replacement thereof and
(2) deleting the reference to the date “April 1,
2004” in the third line thereof and inserting the date
“May 1, 2005” in replacement thereof.
(b) The
definition of “Required Lenders” set forth in Annex A
to the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
“
Required Lenders ” means at any time Lenders whose Pro
Rata Shares equal 100% of the aggregate of all Lenders’ Pro
Rata Shares.
SECTION 1.02 Waiver, Consent and Release . The
Lenders hereby waive compliance with Section 7.9 of the Credit
Agreement with respect to the closing of the sale of certain assets
of the Borrower located at its Pittsburg, California leased
facility, as more specifically described on Schedule I hereto
(the “ Subject Assets ”), and consent
to
and authorize (a) the sale
of the Subject Assets and (b) the release by the Agent of any
Liens of the Agent and the Lenders on the Subject Assets. The
parties hereto acknowledge and agree that (i) the net proceeds
of the sale of the Subject Assets shall be applied as set forth in
Section 3.5(b) of the Credit Agreement and (ii) until any
adjustment in the Borrowing Base based on the Appraisal Value of
Eligible Equipment on any Scheduled Appraisal Date, the Borrowing
Base shall be reduced by an amount equal to $3,200,000 as a result
of (and effective as of the date the Borrower receives the proceeds
of) the sale of the Subject Assets, notwithstanding any other
interpretation available as to the calculation of the Borrowing
Base under the Credit Agreement. The Borrower hereby acknowledges
that the waiver contained herein is granted by the Lenders only for
the specific instance specified herein and in no manner creates a
course of dealing and that each term and provision of the Credit
Agreement continues in full force and effect except as specifically
waived hereby.
SECTION 1.03 Representations and Warranties . The
Borrower hereby represents and warrants to each Lender and the
Agent, on the Amendment Effective Date (as hereinafter defined), as
follows:
(a) After
giving effect to this amendment, the representations and warranties
set forth in Article 6 of the Credit Agreement, and in each
other Loan Document, are true and correct in all material respects
on and as of the date hereof and on and as of the Amendment
Effective Date (as defined in Section 1.03 ) with the
same effect as if made on and as of the date hereof or the
Amendment Effective Date, as the case may be, except to the extent
such representations and warranties expressly relate solely to an
early date.
(b) Each of
the Borrower and the other Credit Parties is in compliance with all
terms and conditions of the Credit Agreement and the other Loan
Documents on its part to be observed and performed and no Default
or Event of Default has occurred and is continuing.
(c) The
execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by the Borrower.
(d) This
Amendment constitutes the legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance with
its terms, except to the extent that enforceability may be limited
by applicable bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting the enforcement of creditors’
rights or by the effect of general equitable principles.
(e) The
execution, delivery and performance by the Borrower of this
Amendment do not and will not conflict with, or constitute a
violation or breach of, or result in the imposition of any Lien
upon the property of the Borrower or any of its Subsidiaries, by
reason of the terms of (i) any contract, mortgage, lease,
agreement, indenture, or instrument to which the Borrower is a
party or which is binding upon it, (ii)
2
any Requirement of Law applicable
to the Borrower, or (iii) the certificate or articles of
incorporation or by-laws or the limited liability company or
limited partnership agreement of the Borrower.
SECTION 1.04 Effectiveness . This Amendment shall
become effective only upon satisfaction of the following conditions
precedent (the first date upon which each such condition has been
satisfied being herein called the “ Amendment Effective
Date ”):
(a) The Agent
shall have received duly executed counterparts of this Amendment
which, when taken together, bear the authorized signatures of the
Borrower, the Agent and all Lenders.
(b) The Agent
and the Lenders shall be satisfied that the representations and
warranties set forth in Section 1.03 of this Amendment
are true and correct on and as of the Amendment Effective Date and
that no Default or
