Exhibit 4(iv)
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AMENDMENT NO. 2
TO
CREDIT AGREEMENT
AMONG
AMERICAN GREETINGS CORPORATION,
AS A BORROWER,
THE LENDING INSTITUTIONS NAMED HEREIN,
AS LENDERS,
AND
NATIONAL CITY BANK,
AS THE GLOBAL AGENT AND THE COLLATERAL AGENT
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DATED AS OF APRIL 1, 2005
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This AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "Amendment") is entered
into as of April 1, 2005, by and among the following: (i) AMERICAN GREETINGS
CORPORATION, an Ohio corporation (the "Company"); (ii) the Lenders, as defined
in the Credit Agreement referred to below; and (iii) NATIONAL CITY BANK, as
Global Agent and as Collateral Agent, each as defined in the Credit Agreement.
RECITALS:
A. The Company, the Foreign Subsidiary Borrowers from time to time party
to the Credit Agreement, the Global Agent, the Collateral Agent, the Lenders,
KEYBANK NATIONAL ASSOCIATION, as Syndication Agent, and LASALLE BANK NATIONAL
ASSOCIATION, as Documentation Agent, are parties to an Amended and Restated
Credit Agreement dated as of May 11, 2004 (as amended and as the same may from
time to time be further amended, restated or otherwise modified, the "Credit
Agreement").
B. The Company has requested that the Global Agent, the Collateral Agent,
and the Lenders agree to amend certain provisions of the Credit Agreement, as
set forth herein.
C. The Global Agent, the Collateral Agent, and the Lenders are willing to
agree to such amendments pursuant to the terms and subject to the conditions set
forth herein.
AGREEMENT:
In consideration of the premises and mutual covenants herein and for other
valuable consideration, the Company, the Global Agent, the Collateral Agent and
the Lenders agree as follows:
Section 1. Amendments.
1.1 Amendment to Definitions. Section 1.01 of the Credit Agreement is
hereby amended to delete the definition of "Permitted Subordinated Note
Repurchase" therefrom and insert in place thereof the following:
"Permitted Subordinated Note Repurchase" means the repurchase by the
Company of any notes or other securities issued by the Company pursuant to
the Subordinated Indenture in accordance with the Consent Solicitation
Documents or, in the case of any Permitted Subordinated Note Repurchase
made on or after April 1, 2005, in accordance with the terms of the
Subordinated Indenture.
1.2 Amendment to Restricted Payments Covenant.
(a) Section 7.06(c)(iii) of the Credit Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
"(c)(iii) the aggregate amount of all Cash Dividends made by
the Company during any fiscal year shall not exceed the sum of $25,000,000
plus the Maximum Dividend Amount (as defined in Schedule 2 hereto);"
(b) Section 7.06(d)(iii) of the Credit Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
"(d)(iii) the aggregate amount of all Share Repurchases made
by the Company during the term of this Agreement shall not exceed the sum
of $200,000,000 plus the Maximum Share Repurchase Amount (as defined in
Schedule 2 hereto); and"
(c) Section 7.06(e) of the Credit Agreement is hereby amended to
delete the words "February 28, 2005" therefrom and to insert the words "February
28, 2006" in place thereof.
1.3 Replacement of Schedule 2. The Credit Agreement is hereby amended to
replace Schedule 2 thereto with Schedule 2 attached to this Amendment.
Section 2. Effectiveness.
2.1 Conditions Precedent. The amendments set forth above shall become
effective as of the date first written above (the "Amendment Effective Date") if
on or before such date the following conditions have been satisfied:
(i) this Amendment shall have been executed by the Company, the
Global Agent, the Collateral Agent and the Required Lenders, and
counterparts hereof as so executed shall have been delivered to the Global
Agent;
(ii) the Company shall have caused each Subsidiary Guarantor to
consent and agree to and acknowledge the terms of this Amendment; and
(iii) the Company shall have provided such other items and shall
have satisfied such other conditions as may be reasonably required by the
Global Agent.
2.2 Amendment Effective Date. The Global Agent shall provide the Company
and the Lenders written notice immediately upon the occurrence of the Amendment
Effective Date. Unless otherwise specifically set forth herein, each of the
amendments and other modifications set forth in this Amendment shall be
effective on and after the Amendment Effective Date.
Section 3. Miscellaneous.
3.1 Representations and Warranties. The Company, by signing below, hereby
represents and warrants to the Global Agent, the Collateral Agent, and the
Lenders that:
(i) the Company has the legal power and authority to execute and
deliver this Amendment;
(ii) the officers executing this Amendment on behalf of the Company
have been duly authorized to execute and deliver the same and bind the
Company with respect to the provisions hereof;
(iii) the execution and delivery hereof by the Company and the
performance and observance by the Company of the provisions hereof do not
violate or conflict with the Organizational Documents of the Company or
any law applicable to the Company or result in a breach of any provision
of or constitute a default under any other agreement, instrument or
document binding upon or enforceable against the Company;
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(iv) no Default or Event of Default exists under the Credit
Agreement, nor will any occur immediately after the execution and delivery
of this Amendment or by the performance or observance of any provision
hereof;
(v) upon the execution and delivery of this Amendment by the
Company, this Amendment shall constitute a valid and binding obligation of
the Company in every respect, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency or other similar laws of general application affecting the
enforcement of creditors' rights or by general principles of equity
limiting the availability of equitable remedies; and
(vi) each of the representations and warranties set forth in Article
V of the Credit Agreement is true and correct in all material respects as
of the date hereof, except to the extent that any thereof expressly relate
to an earlier date.
3.2 Waiver of Claims. The Company hereby waives and releases the Global
Agent, the Collateral Agent, and each of the Lenders and their respective
directors, officers, employees, attorneys, affiliates and subsidiaries from any
and all claims, offsets, defenses and counterclaims of which any of the
undersigned is aware arising out of or relating to the Credit Agreement and the
other Loan Documents, such waiver and release being with full knowledge and
understanding of the circumstances and effect thereof and after having consulted
legal counsel with respect thereto.
3.3 Expenses. As provided in the Credit Agreement, but without limiting
any terms or provisions thereof, the Company agrees to pay on demand all
reasonable costs and expenses incurred by the Global Agent in connection with
the preparation, negotiation, and execution of this Amendment, including without
limitation the reasonable costs and fees of the Global Agent's special legal
counsel, regardless of whether this Amendment becomes effective in accordance
with the terms hereof, and all costs and expenses incurred by the Global Agent,
the Collateral Agent or any Lender in connection with the enforcement or
preservation of any rights under the Credit Agreement, as amended hereby.
3.4 Credit Agreement Unaffected. Each reference to the Credit Agreement
herein or in any other Loan Document shall hereafter be construed as a reference
to the Credit Agreement as amended hereby. Except as herein otherwise
specifically provided, all provisions of the Credit Agreement shall remain in
full force and effect and be unaffected hereby. This Amendment is a Loan
Document.
3.5 Entire Agreement. This Amendment, together with the Credit Agreement
and the other Loan Documents, integrates all the terms and conditions mentioned
herein or incidental hereto and supersedes all oral representations and
negotiations and prior writings with respect to the subject matter hereof.
3.6 Counterparts. This Amendment may be executed in any number of
counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
3.7 Governing Law. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF OHIO
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. TO THE FULLEST EXTENT PERMITTED
BY LAW, EACH CREDIT PARTY HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY
CLAIM TO ASSERT THAT THE
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LAW OF ANY JURISDICTION OTHER THAN THE STATE OF OHIO GOVERNS THIS AMENDMENT OR
ANY OF THE OTHER LOAN DOCUMENTS.
3.8 JURY TRIAL WAIVER. EACH OF THE PARTIES TO THIS AMENDMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OF THE OTHER
LOAN DOCUMENTS (INCLUDING, WITHOUT LIMITATION, ANY AMENDMENTS, WAIVERS OR OTHER
MODIFICATIONS RELATING TO ANY OF THE FOREGOING), OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
[Signature pages follow.]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as
of the date first above written.
AMERICAN GREETINGS CORPORATION
By: /s/ Stephen J. Smith
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Name: Stephen J. Smith
Title: VP, Treasurer and Investor Relations
NATIONAL CITY BANK,
as the Global Agent, the Collateral Agent, the
Swing Line Lender, a LC Issuer, and a Lender
By: /s/ Robert S. Coleman
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Name: Robert S. Coleman
Title: Senior Vice President
Signature Page
to
Amendment No. 2 to Credit Agreement,
dated as of April 1, 2005,
by and among American Greetings Corporation, as a Borrower,
National City Bank, as the Global Agent and the Collateral Agent, and
the Lenders party thereto
NAME OF INSTITUTION: National City Bank, Canada Branch
By: /s/ Caroline Stade
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Name: Caroline Stade
Title: Vice President
Signature Page
to
Amendment No. 2 to Credit Agreement,
dated as of April 1, 2005,
by and among American Greetings Corporation, as a Borrower,
National City Bank, as the Global Agent and the Collateral Agent, and
the Lenders party thereto
NAME OF INSTITUTION: KeyBank National Association
By: /s/ Brendan A. Lawlor
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Name: Brendan A. Lawlor
Title: Senior Vice President
Signature Page
to
Amendment No. 2 to Credit Agreement,
dated as of April 1, 2005,
by and among American Greetings Corporation, as a Borrower,
National City Bank, as the Global Agent and the Collateral Agent, and
the Lenders party thereto
NAME OF INSTITUTION: LaSalle Bank National Association
By: /s/ James P. Bahleda
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Name: James P. Bahleda
Title: Assistant Vice President
Signature Page
to
Amendment No. 2 to Credit Agreement,
dated as of April 1, 2005,
by and among American Greetings Corporation, as a Borrower,
National City Bank, as the Global Agent and the Collateral Agent, and
the Lenders party thereto
NAME OF INSTITUTION: PNC Bank, National Association
By: /s/ Joseph G. Moran
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Name: Joseph G. Moran
Title: Managing Director
Signature Page
to
Amendment No. 2 to Credit Agreement,
dated as of April 1, 2005,
by and among American Greetings Corporation, as a Borrower,
National City Bank, as the Global Agent and the Collateral Agent, and
the Lenders party thereto
NAME OF INSTITUTION: JPMorgan Chase Bank, N.A.
By: /s/ Jason A. Rastovski
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Name: Jason A. Rastovski
Title: Vice President
Signature Page
to
Amendment No. 2 to Credit Agreement,
dated as of April 1, 2005,
by and among American Greetings Corporation, as a Borrower,
National City Bank, as the Global Agent and the Collateral Agent, and
the Lenders party thereto
NAME OF INSTITUTION: The Bank of New York
By: /s/ Kenneth R. McDonnell
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Name: Kenneth R. McDonnell
Title: Vice President
Signature Page
to
Amendment No. 2 to Credit Agreement,
dated as of April 1, 2005,
by and among American Greetings Corporation, as a Borrower,
National City Bank, as the Global Agent and the Collateral Agent, and
the Lenders party thereto
NAME OF INSTITUTION: The Bank of Nova Scotia
By: /s/ V. Gibson
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Name: V. Gibson
Title: Assistant Agent
Signature Page
to
Amendment No. 2 to Credit Agreement,
dated as of April 1, 2005,
by and among American Greetings Corporation, as a Borrower,
National City Bank, as the Global Agent and the Collateral Agent, and
the Lenders party thereto
NAME OF INSTITUTION: The Northern Trust Company
By: /s/ David J. Sullivan
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Name: David J. Sullivan
Title: Vice President
Signature Page
to
Amendment No. 2 to Credit Agreement,
dated as of April 1, 2005,
by and among American Greetings Corporation, as a Borrower,
National City Bank, as the Global Agent and the Collateral Agent, and
the Lenders party thereto
NAME OF INSTITUTION: Barclays Bank PLC
By: /s/ Danny Lopez
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Name: Danny Lopez
Title: Director
GUARANTOR ACKNOWLEDGMENT AND AGREEMENT
Each of the undersigned consents and agrees to and acknowledges the terms
of the foregoing Amendment No. 2 to Credit Agreement, dated as of April 1, 2005
(the "Amendment"). Each of the undersigned further agrees that the obligations
of each of the undersigned pursuant to the Subsidiary Guaranty executed by each
of the undersigned shall remain in full force and effect and be unaffected
hereby. Unless otherwise defined herein, each capitalized term used in this
Amendment and not defined herein shall have such meaning ascribed to it in the
Credit Agreement (as defined in the Amendment).
Each of the undersigned, by signing below, hereby waives and releases the
Global Agent, the Collateral Agent, and each of the Lenders and their respective
directors, officers, employees, attorneys, affiliates and subsidiaries from any
and all claims, offsets, defenses and counterclaims of which any of the
undersigned is aware arising out of or relating to the Subsidiary Guaranty and
the other Loan Documents, such waiver and release being with full knowledge and
understanding of the circumstances and effect thereof and after having consulted
legal counsel with respect thereto.
EACH OF THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE
AMENDMENT, THIS GUARANTOR ACKNOWLEDGMENT AND AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS (INCLUDING, WITHOUT LIMITATION, ANY AMENDMENTS, WAIVERS OR OTHER
MODIFICATIONS RELATING TO ANY OF THE FOREGOING), OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
IN WITNESS WHEREOF, each of the undersigned has executed this Guarantor
Acknowledgment and Agreement as of April 1, 2005.
AGCM, INC.
AG.COM, INC.
EAGENTS, INC.
EGCB, INC.
By: /s/ Stephen J. Smith
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Stephen J. Smith, Assistant Treasurer
of each of the foregoing Subsidiary Guarantors
AGC HOLDINGS, INC.
By: /s/ Stephen J. Smith
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Stephen J. Smith, Vice President
AGC, INC.
A.G.C. INVESTMENTS, INC.
A.G. EUROPE, INC.
A.G. (UK), INC.
A.G. INDUSTRIES, INC.
CARLTON CARDS RETAIL, INC.
CARLTON (U.K.) RETAIL, INC.
CREATACARD, INC.
CREATACARD INTERNATIONAL
LEASING, INC.
CUSTOM HOLDINGS, INC.
GIBSON GREETINGS, INC.
GIBSON GREETINGS INTERNATIONAL
LIMITED
JOHN SANDS (AUSTRALIA) LTD.
JOHN SANDS (N.Z.) LTD.
JOHN SANDS HOLDING CORPORATION
LEARNING HORIZONS, INC.
MAGARK LLC
MAGTENN LLC
MEMPHIS PROPERTY CORPORATION
PLUS MARK, INC.
QUALITY GREETING CARD
DISTRIBUTING COMPANY, INC.
SUPERVEND, INC.
THOSE CHARACTERS FROM
CLEVELAND, INC.
By: /s/ Stephen J. Smith
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Stephen J. Smith, Treasurer of each of
the foregoing Subsidiary Guarantors
BALLOON ZONE DISTRIBUTION, INC.
By: /s/ Michael Brown
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Michael Brown, Vice President