Exhibit 10.31.2
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made as of the 1st day of November, 2002, by and among CADMUS
COMMUNICATIONS CORPORATION (the "Borrower"), WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent and as a Bank, BANK OF AMERICA, N.A., FLEET NATIONAL BANK,
SUNTRUST BANK, NATIONAL CITY BANK, and CREDIT LYONNAIS NEW YORK BRANCH
(collectively referred to herein as the "Banks"), CADMUS JOURNAL SERVICES, INC.,
PORT CITY PRESS, INC., WASHBURN GRAPHICS, INC., and MACK PRINTING COMPANY
(collectively referred to herein as the "Guarantors").
R E C I T A L S:
The Borrower, the Agent and the Banks have entered into a
certain Amended and Restated Credit Agreement dated June 21, 2001, as amended by
that First Amendment to Amended and Restated Credit Agreement dated as of June
21, 2002 (as amended, the "Credit Agreement"). Capitalized terms used in this
Amendment which are not otherwise defined in this Amendment shall have the
respective meanings assigned to them in the Credit Agreement.
The Guarantors have executed or otherwise become a party to a
certain Guaranty Agreement dated as of June 21, 2001 (the "Guaranty").
The Borrower and Guarantors have requested the Agent and the
Banks to amend the Credit Agreement upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the Recitals and the
mutual promises contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Agent and the Banks, intending to be legally bound hereby, agree as follows:
SECTION 1. Recitals. The Recitals are incorporated herein by
reference and shall be deemed to be a part of this Amendment.
SECTION 2. Amendment. The Credit Agreement is hereby amended
as set forth in this Section 2.
SECTION 2.1 Amendment to Definition. The following definition
is hereby amended and restated in its entirety to read as follows:
"Consolidated Net Income" means, for any period, the
Net Income of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis, but excluding (i)
extraordinary items, (ii) any equity interests of the Borrower
or
any Subsidiary in the unremitted earnings of any Person that
is not a Subsidiary, (iii) cash and non-cash restructuring
charges incurred during the Fiscal Quarters ending March 31,
2001 and June 30, 2001, determined on a pre-tax basis, in an
amount not to exceed $17,500,000 in the aggregate and (iv) for
the purpose of calculating compliance with the covenants in
Article VI only, cash and non-cash restructuring charges
incurred during the four Fiscal Quarter period ending
September 30, 2003, determined on a pre-tax basis, in an
amount not to exceed $12,000,000 in the aggregate.
SECTION 2.2 Amendment to Section 6.05. Section 6.05 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
SECTION 6.05 Minimum Consolidated Net Worth.
Consolidated Net Worth will at no time be less than the amount
determined by the following computation: (1) 90% of
Consolidated Net Worth, determined as of March 31, 2001 (such
90% of Consolidated Net Worth being equal to $100,050,300);
plus (2) the sum of (i) 100% of the cumulative Net Proceeds of
Capital Stock received during any period after the Closing
Date, calculated quarterly, and (ii) 100% of the cumulative
Reported Net Income of the Borrower and its Consolidated
Subsidiaries during any period after March 31, 2001 (taken as
one accounting period), but, for purposes of calculating
cumulative Reported Net Income under this clause (ii),
excluding any quarter in which Reported Net Income is
negative; minus (3) any Restricted Payments made during such
period to the extent permitted by Section 6.31, calculated
quarterly; minus (4) the after-tax charges of the Borrower for
restructuring charges incurred during the Fiscal Quarter
ending June 30, 2001 (not to exceed $1,500,000); minus (5) the
non-cash charges (not to exceed $50,000,000) incurred by the
Borrower upon the adoption of Financial Accounting Standards
Board Statement No. 142; and minus (6) the after-tax charges
of the Borrower for restructuring charges incurred during the
four Fiscal Quarter period ending September 30, 2003 (not to
exceed $12,000,000).
Notwithstanding the foregoing, for the purposes of
calculating cumulative Reported Net Income in clause (ii)
above for the quarter in which the Borrower shall have adopted
Financial Accounting Standards Board Statement No. 142, the
non-cash charges described in clause (5) above shall be
excluded from the calculation of Reported Net Income in clause
(ii) above.
SECTION 3. Consent and Waiver.
(a) The parties hereto agree that, notwithstanding
anything contrary in the Credit Agreement, (i) the Borrower or one of its
Subsidiaries will be permitted to invest an amount not to exceed $3,200,000 into
a joint venture with Datamatics, a corporation organized under the laws of the
Republic of India, for the purposes of forming a new corporation to be organized
under the laws of the Republic of India
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and as to which the Borrower or such Subsidiary shall hold a controlling
interest (referred to herein as "NewCo"), and (ii) such investment will not
constitute a Default.
(b) So long as not expressly prohibited by the laws of the
Republic of India, the Borrower shall, or shall cause the applicable Subsidiary
to, pledge sixty-five percent (65%) of the outstanding ownership interests of
NewCo within thirty (30) days of the date upon which Borrower or the applicable
Subsidiary makes an investment with respect to NewCo (the "NewCo Pledge")
pursuant to a pledge agreement in form and substance substantially similar to
the Pledge Agreement by execution and delivery by the Borrower or such
Subsidiary to the Collateral Agent and shall deliver to the Collateral Agent the
evidence of such pledged ownership interests with such powers of attorney
executed in blank as is satisfactory to the Collateral Agent in its sole
discretion.
(c) The parties hereto agree that failure to provide the
NewCo Pledge as provided in clause (b) above, other than by reason of an express
prohibition under the laws of the Republic of India, within the time set forth
in clause (b) above, shall constitute an Event of Default and the Agent and the
Banks may exercise any and all rights and remedies available to them under the
terms of any and all of the Loan Documents.
(d) The parties further agree that the provisions of
Section 6.23(d) of the Credit Agreement will not be applicable to NewCo until
such time as (i) NewCo becomes 100% owned by the Borrower, (ii) NewCo
contributes more than 5% of Consolidated EBITDA during the four (4) consecutive
Fiscal Quarters immediately preceding any Fiscal Quarter or (iii) NewCo
constitutes more than 5% of Consolidated Total Assets at the end of any Fiscal
Quarter.
SECTION 4. Conditions to Effectiveness. The effectiveness of
this Amendment and the obligations of the Banks hereunder are subject to the
following conditions:
(a) receipt by the Agent from each of the parties hereto of
a duly executed counterpart of this Amendment signed by the Borrower, the
Guarantors, and the Required Banks;
(b) receipt by the Agent from the Borrower for the ratable
account of the Banks executing this Amendment of fees in an amount equal to
fifteen basis points (0.15%) times the aggregate amount of the Revolving Credit
Commitments, on the date of this Amendment;
(c) receipt by the Agent from the Borrower of any and all
fees and expenses to be paid by the Borrower to the Agent in connection with
this Amendment; and
(d) the fact that the representations and warranties of the
Borrower contained in Article V of the Credit Agreement and in Section 6 of this
Amendment shall be true on and as of the date hereof.
SECTION 5. No Other Amendment. Except for the amendments set
forth above, the text of the Credit Agreement shall remain unchanged and in full
force and effect. This Amendment is not intended to effect, nor shall it be
construed as, a novation. The Credit Agreement and this Amendment shall
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be construed together as a single agreement. Nothing herein contained shall
waive, annul, vary or affect any provision, condition, covenant or agreement
contained in the Credit Agreement, except as herein amended, nor affect nor
impair any rights, powers or remedies under the Credit Agreement as hereby
amended. The Banks and the Agent do hereby reserve all of their rights and
remedies against all parties who may be or may hereafter become secondarily
liable for the repayment of the Notes. The Borrower promises and agrees to
perform all of the requirements, conditions, agreements and obligations under
the terms of the Credit Agreement, as heretofore and hereby amended, the Credit
Agreement, as amended, being hereby ratified and affirmed. The Borrower hereby
expressly agrees that the Credit Agreement, as amended, is in full force and
effect.
SECTION 6. Representations and Warranties. The Borrower hereby
represents and warrants to each of the Banks as follows:
(a) No Default under the Credit Agreement has occurred and is
continuing unwaived by the Banks on the date hereof.
(b) The Borrower and Guarantors have the power and authority
to enter into this Amendment and to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by them.
(c) This Amendment has been duly authorized, validly executed
and delivered by one or more authorized officers of the Borrower and Guarantors
and constitutes a legal, valid and binding obligation of the Borrower, and each
Guarantor enforceable against it in accordance with its terms, provided that
such enforceability is subject to general principles of equity.
(d) The execution and delivery of this Amendment and the
performance of the Borrower and Guarantors hereunder do not and will not require
the consent or approval of any regulatory authority or governmental authority or
agency having jurisdiction over the Borrower or any Guarantor, nor be in
contravention of or in conflict with the articles of incorporation or bylaws of
the Borrower, or any Guarantor, or the provision of any statute, or any
judgment, order or indenture, instrument, agreement or undertaking, to which the
Borrower, or any Guarantor is party or by which the assets or properties of the
Borrower and Guarantors are or may become bound.
SECTION 7. Counterparts. This Amendment may be executed in
multiple counterparts, each of which shall be deemed to be an original and all
of which, taken together, shall constitute one and the same agreement.
SECTION 8. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Georgia.
SECTION 9. Consent by Guarantors. The Guarantors consent to
the foregoing amendments. The Guarantors promise and agree to perform all of the
requirements, conditions, agreements and obligations under the terms of the
Guaranty and Indemnity, Subrogation and Contribution Agreement,
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said Guaranty and Indemnity, Subrogation and Contribution Agreement being hereby
ratified and affirmed. The Guarantors hereby expressly agree that the Guaranty
and Indemnity, Subrogation and Contribution Agreement are in full force and
effect.
SECTION 10. Effective Date. This Amendment shall be effective
as of November 1, 2002.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered, or have
caused their respective duly authorized officers or representatives to execute
and deliver, this Amendment as of the day and year first above written.
BORROWER:
CADMUS COMMUNICATIONS CORPORATION
By: /s/ Stephen E. Hare
-------------------------------
Name: Stephen E. Hare
-----------------------------
Title: Executive VP & CFO
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Signature Page of
Second Amendment to Amended and Restated Credit Agreement
Page 1 of 8
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent and as a Bank
By: /s/ Anne L. Sayles
--------------------------------
Name: Anne L. Sayles
-----------------------------
Title: Director
----------------------------
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Signature Page of
Second Amendment to Amended and Restated Credit Agreement
Page 2 of 8
BANK OF AMERICA, N.A.
By: /s/ B. Kenneth Burton, Jr.
---------------------------------
Name: B. Kenneth Burton, Jr.
------------------------------
Title: Vice President
-----------------------------
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Signature Page of
Second Amendment to Amended and Restated Credit Agreement
Page 3 of 8
FLEET NATIONAL BANK
By: /s/ Deanne M. Horn
----------------------------
Name: Deanne M. Horn
--------------------------
Title: Director
-------------------------
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Signature Page of
Second Amendment to Amended and Restated Credit Agreement
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SUNTRUST BANK
By: /s/ Mark A. Flatin
---------------------------
Name: Mark A. Flatin
-----------------------
Title: Director
-----------------------
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Signature Page of
Second Amendment to Amended and Restated Credit Agreement
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NATIONAL CITY BANK
By: /s/ Kelly L. Moyer
---------------------------
Name: KELLY L. MOYER
-----------------------
Title: VICE PRESIDENT
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Signature Page of
Second Amendment to Amended and Restated Credit Agreement
Page 6 of 8
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Scott R. Chappelka
---------------------------------
Name: Scott R. Chappelka
------------------------------
Title: Vice President
-----------------------------
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Signature Page of
Second Amendment to Amended and Restated Credit Agreement
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GUARANTORS:
CADMUS JOURNAL SERVICES, INC.
By: /s/ Christopher T. Schools
-----------------------------
Name: Christopher T. Schools
Title: VP & Treasurer
MACK PRINTING COMPANY
By: /s/ Christopher T. Schools
-----------------------------
Name: Christopher T. Schools
Title: VP & Treasurer
PORT CITY PRESS, INC.
By: /s/ Christopher T. Schools
-----------------------------
Name: Christopher T. Schools
Title: VP & Treasurer
WASHBURN GRAPHICS, INC.
By: /s/ Christopher T. Schools
-----------------------------
Name: Christopher T. Schools
Title: VP & Treasurer
Signature Page of
Second Amendment to Amended and Restated Credit Agreement
Page 8 of 8