EXHIBIT 10.29
AMENDMENT AGREEMENT NO. 1
This Amendment Agreement No. 1 (this "Amendment"), dated as of
September 25, 2002, amends (i) that certain Second Amended and Restated
Guaranty Agreement, dated as of August 6, 2002 ("Guaranty"), among Mail-Well
I Corporation, a Delaware corporation ("Lessee"); Mail-Well, Inc., a
Colorado corporation ("Mail-Well" or "Parent"), and certain subsidiaries of
Lessee (Parent and each such subsidiary, individually, a "Guarantor", and,
collectively, the "Guarantors"); Fleet National Bank, a national banking
association, ORIX Financial Services, Inc., a New York corporation, and U.S.
Bank, National Association, a national banking association (the "Certificate
Holders"); Fleet Capital Corporation, a Rhode Island corporation, as Agent
for the Certificate Holders (the "Agent"); and Wells Fargo Bank Northwest,
National Association, a national banking association, as trustee (in such
capacity, the "Lessor Trustee") under the Second Amended and Restated Lessor
Trust Agreement, dated as of August 6, 2002 between it and the Certificate
Holders, and (ii) that certain Participation Agreement, dated as of August
6, 2002 (the "Participation Agreement"), among Lessee, the Certificate
Holders, the Agent and the Lessor Trustee. Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to such terms in
the Guaranty.
RECITALS
WHEREAS, the Guarantors, Lessee, the Agent, the Certificate Holders
and the Lessor Trustee have entered into the Guaranty, and the Lessee, the
Agent, the Certificate Holders and the Lessor Trustee have entered into the
Participation Agreement;
WHEREAS, the Guarantors and Lessee desire to amend the Guaranty,
and the Lessee desires to amend the Participation Agreement; and
WHEREAS, the Agent, the Certificate Holders and the Lessor Trustee
are willing to do so, subject to the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the premises herein contained
and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Guarantors, Lessee, the Agent, the Certificate
Holders and the Lessor Trustee hereby agree as follows.
AGREEMENT
Section 1. Amendments to the Guaranty. The Guarantors, Lessee, the
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Agent, the Trust Certificate Purchasers and the Lessor Trustee amend the
Guaranty as follows:
A. The first two sentences of Section 4.2(d) of the
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Guaranty are hereby amended in their entirety to read as follows:
With each of the annual audited Financial
Statements delivered pursuant to Section 4.2(a), and with
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each of the monthly unaudited Financial Statements
delivered pursuant to Section 4.2(b), a certificate of a
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Responsible Officer of Parent setting forth in reasonable
detail the calculations required to establish that
Parent and its Subsidiaries were in compliance with the
covenants set forth in Sections 5.22 through 5.23 during
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the period covered (excluding the comparable prior period)
in such Financial Statements and as at the end thereof.
Within 30 days after the end of each month, a certificate
of a Responsible Officer of Parent (i) stating that,
except as explained in reasonable detail in such
certificate, (A) all of the representations and warranties
of Lessee and the Guarantors contained in the Operative
Agreements are correct and complete in all material
respects as at the date of such certificate as if made at
such time, except for those that speak as of a particular
date, (B) Lessee and the Guarantors are, at the date of
such certificate, in compliance in all material respects
with all of their respective covenants and agreements in
the Operative Agreements, and (C) no Default or Event of
Default then exists or existed during the period covered
by the Financial Statements for such month, and (ii)
describing and analyzing in reasonable detail all material
trends, changes, and developments in each and all
Financial Statements, and explaining the variances of the
figures in the corresponding budgets and prior Fiscal Year
financial statements, which explanations, descriptions,
and analysis to be given pursuant to this Section
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4.2(d)(ii) shall be satisfied by the availability to the
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Agent and the Certificate Holders of the discussion
appearing in the "Management's Discussion and Analysis of
Financial Condition and Results of Operation" sections of
either Parent's Annual Report on Form 10-K or Parent's
Quarterly Report on Form 10-Q.
B. The following new Section 4.4 is hereby added to
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the Guaranty:
4.4 Management Discussions. In addition to any
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discussions provided for in Sections 4.2(a), Parent and
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each of its Subsidiaries shall make available their chief
financial officer, treasurer or other relevant members of
management for a telephonic meeting upon the request of
the Agent or any of the Certificate Holders acting through
the Agent (but not more frequently than one call per month
for all Certificate Holders) to discuss the financial
results of Parent and its Subsidiaries reflected in the
monthly Financial Statements delivered to the Agent and
the Certificate Holders pursuant to Section 4.2(a) or (b).
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Such meetings shall take place within 5 Business Days of
the dissemination of such Financial Statements.
C. The following new Section 5.6 is hereby added to
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the Guaranty:
5.6 Standby Letter of Credit. On or before
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October 1, 2002, Lessee shall cause a $2,000,000 standby
letter of credit to be issued by an issuer acceptable to
the Certificate Holders, substantially in the form of
Exhibit B hereto or otherwise in form and substance
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satisfactory to the Certificate Holders, in the name of
the Agent for the ratable benefit of the Certificate
Holders and maintained until all amounts owing under the
Trust Certificates have been paid in full. The letter of
credit shall provide that upon the occurrence of an Event
of Default and at any time thereafter, the Agent may
present the letter of credit to the issuer and it shall be
honored, regardless of whether the Event of Default is
later cured. An Event of Default resulting from Lessee's
failure to comply with this
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Section 5.6 shall be deemed to be material. The Agent
shall apply any proceeds of the letter of credit in
accordance with the provisions of Section 5.6 of the Trust
Agreement.
D. Section 5.9 of the Guaranty is hereby amended by
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adding the following to the end thereof:
For purposes of this Agreement, "disposition"
shall not include any change in the carrying value of any
assets recognized by Parent or its Subsidiaries under or
in connection with FAS 142 or FAS 144.
E. Sections 5.22 and 5.23 of the Guaranty are hereby
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amended in their entirety to read as follows:
5.22 A. Fixed Charge Coverage Ratio. Parent
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will maintain a Fixed Charge Coverage Ratio for each
period of four consecutive fiscal quarters ended on the
last day of each fiscal quarter set forth below (or, with
respect to each of the fiscal quarters ending on or before
June 28, 2003, for the period commencing on July 1, 2002
and ending on the last day of such fiscal quarter) of at
least the ratio set forth below opposite each such fiscal
quarter:
Fiscal Quarter Finding Minimum Fixed Charge Coverage Ratio
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September 2002 0.45:1.00
December 2002 0.70:1.00
March 2003 0.90:1.00
June 2003 0.95:1.00
September 2003 and thereafter 1.15:1.00
provided, however, that following the reduction of the
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Maximum PP&E Loan Amount to $0, the above minimum Fixed
Charge Coverage Ratios will each be reduced by 0.05:1.00.
B. Minimum Availability. Lessee and each
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Subsidiary shall maintain Availability of not less than
$25,000,000 (with all obligations of Lessee and its
Subsidiaries current) at all times until and including the
date on which Lessee and its Subsidiaries demonstrate to
the satisfaction of the "Agent" under the Credit Agreement
that they can provide weekly reporting of their sales and
collections and weekly accounts receivable roll-forwards.
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5.23 Adjusted Tangible Net Worth. Parent will
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maintain Adjusted Tangible Net Worth, determined as of the
last day of each of the following fiscal months, of at
least the amounts below opposite such month:
Measurement Date Minimum Amount
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June 2002 - August 2002 $295,000,000
September 2002 - November 2002 $255,000,000
December 2002 - February 2003 $255,000,000
March 2003 - May 2003 $265,000,000
June 2003 - August 2003 $275,000,000
September 2003 - November 2003 $300,000,000
December 2003 and thereafter $325,000,000
provided, however, that the foregoing Minimum Amounts
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shall be adjusted, by: (a) increasing such amounts to
reflect 100% of the net cash proceeds received by Parent
from the issuance of Capital Stock since June 27, 2002,
and any gains recognized by Parent or its Subsidiaries
resulting from the disposition of Assets Held For
Disposition or Restructuring Assets since June 27, 2002,
and (b) decreasing such amounts to reflect: (i) any losses
(not to exceed an aggregate amount of $32,000,000)
recognized by Parent or its Subsidiaries since June 27,
2002 resulting from the disposition of Assets Held For
Disposition or Restructuring Assets, and (ii) any
reduction in Adjusted Tangible Net Worth resulting from a
Permitted Acquisition (but only up to an aggregate amount
for all Permitted Acquisitions equal to 25% of the amount
received by Parent from the issuance of Capital Stock
since June 27, 2002).
F. Section 6.1 of the Guaranty is hereby amended by
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adding the following definition immediately after the definition of
"Assets Held for Disposition":
"Availability" has the meaning specified in the
Credit Agreement.
G. The definition of "Credit Agreement" set forth in
Section 6.1 of the Guaranty is restated as follows:
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"Credit Agreement" means the Amended and Restated
Credit Agreement, dated as of June 27, 2002, as amended by
Amendment No. 1 to Amended and Restated Credit Agreement,
dated as of September 25, 2002, each among Mail-Well,
certain affiliates of Mail-Well, including the Lessee,
Bank of America, N.A. and the other financial institutions
party thereto.
Section 2. Amendments to Participation Agreement. The Lessee, the
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Agent, the Certificate Holders and the Lessor Trustee amend the
Participation Agreement as follows:
A. Section 9.2 of the Participation Agreement is
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hereby amended by adding "; provided that once an Event of Default
has occurred, any Certificate Holder may direct the Agent to draw,
in whole or in part, on the letter of credit described in Section
5.6 of the Guaranty Agreement" immediately before the period at the
end of the first sentence.
B. The definition of "Applicable Margin" set forth in
Annex I to the Participation Agreement is restated as follows:
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"Applicable Margin" means, with respect to any
Interest Period, (i) for any Series A Trust Certificate or
Series B Trust Certificate, an amount to be determined for
such Interest Period in accordance with the following
schedule:
IF FIXED CHARGE COVERAGE RATIO IS: LEVEL OF APPLICABLE MARGINS:
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>1.50:1.00 Level I
-
>1.25:1.0, but <1.50:1.00 Level II
-
<1.25:1.00 Level III
LOAN APPLICABLE MARGINS
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Level I Level II Level III
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LIBOR Revolving Loans 3.50% 3.75% 4.00%
Section 3. Conditions. The effectiveness of this Amendment is
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subject to the satisfaction of the following conditions precedent:
A. Amendments. Receipt by the Agent of copies of this
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Amendment signed by Lessee, the Guarantors, the Agent, the
Certificate Holders and the Lessor Trustee and of Amendment No. 1
to the Credit Agreement signed by the parties thereto.
B. Fee. The Agent shall have received an amendment
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fee, for the ratable benefit of the Certificate Holders, equal to
50 basis points of the outstanding principal amount of the Trust
Certificates as of the date of this Amendment, which shall be fully
earned when paid.
C. Other Documents. Lessee and the Guarantors shall
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have executed and delivered to the Agent such other documents and
instruments as the Agent may reasonably require in furtherance of
this Amendment.
Section 4. Miscellaneous.
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A. Exhibit B to Guaranty. Exhibit B attached to this
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Amendment is hereby incorporated into the Guaranty as Exhibit B
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thereto.
B. Representation by Lessee. Lessee represents as
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follows: No Item of Equipment is located at any commercial print
plant that Lessee or any Guarantor intends to close, sell or
consolidate as part of Parent's cost cutting programs that are
contemplated as of the date of this Amendment.
C. Survival of Representations and Warranties. All
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representations and warranties made in the Guaranty, the
Participation Agreement or any other document or documents relating
thereto, including, without limitation, any Operative Agreement
furnished in connection with this Amendment shall survive the
execution and delivery of this Amendment and the other Operative
Agreements, and no investigation by the Agent or the Certificate
Holders or any closing shall affect the representations and
warranties or the right of the Agent or Certificate Holders to rely
thereon.
D. Reference to Agreements. The Guaranty, the
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Participation Agreement and each other Operative Agreement, and any
and all other agreements, documents or instruments now or hereafter
executed and delivered pursuant to the terms hereof, or pursuant to
the terms of the Guaranty or the Participation Agreement as amended
hereby,
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are hereby amended so that any reference therein to the Guaranty or
the Participation Agreement shall mean a reference to the Guaranty
or the Participation Agreement as amended hereby.
E. Agreements Remain in Effect. The Guaranty, the
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Participation Agreement and other Operative Agreements, as amended
hereby, remain in full force and effect and Lessee and the
Guarantors ratify and confirm their agreements and covenants
contained therein. Lessee and the Guarantors hereby confirm that,
after giving effect to this Amendment no Event of Default or
Default exists as of the date hereof.
F. Severability. Any provision of this Amendment held
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by a court of competent jurisdiction to be invalid or unenforceable
shall not impair or invalidate the remainder of this Amendment and
the effect thereof shall be confined to the provision so held to be
invalid or unenforceable.
G. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED
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BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (EXCLUDING ITS CHOICE OF LAWS PRINCIPLES THAT WOULD
REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION).
H. Successors and Assigns. This Amendment is binding
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upon and shall inure to the benefit of the Agent, the Lessor
Trustee, the Certificate Holders, Lessee and the Guarantors and
their respective successors and assigns; provided, that Lessee and
the Guarantors may not assign or transfer any of their rights or
obligations hereunder without the prior written consent of the
Certificate Holders.
I. Counterparts. This Amendment may be executed in
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one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together
shall constitute one and the same instrument. Each party agrees
that it will be bound by its own telecopied signature and that it
accepts the telecopied signature of the other party.
J. Headings. The headings, captions and arrangements
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used in this Amendment are for convenience only and shall not
affect the interpretation of this Amendment.
K. NO ORAL AGREEMENTS. THIS AMENDMENT, TOGETHER
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WITH THE OTHER OPERATIVE AGREEMENTS AS WRITTEN, REPRESENT THE FINAL
AGREEMENT AMONG THE AGENT, THE CERTIFICATE HOLDERS, THE LESSOR
TRUSTEE, LESSEE AND THE GUARANTORS AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF THEIR PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE AGENT,
THE CERTIFICATE HOLDERS, THE LESSOR TRUSTEE, LESSEE AND THE
GUARANTORS.
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IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first above written.
GUARANTORS
MAIL-WELL, INC.
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
ABP BOOKS, INC.
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
DISCOUNT LABELS, INC.
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
HILL GRAPHICS, INC.
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
MAIL-WELL COMMERCIAL PRINTING, INC.
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
[Amendment Agreement No. 1]
GUARANTORS
MAIL-WELL GOVERNMENT PRINTING, INC.
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
MAIL-WELL MEXICO HOLDINGS, INC.
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
MAIL-WELL SERVICES, INC.
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
MAIL-WELL TEXAS FINANCE LP
By: MAIL-WELL I CORPORATION,
its General Partner
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
MAIL-WELL WEST, INC.
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
[Amendment Agreement No. 1]
GUARANTORS
MMTP HOLDINGS, INC.
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
NATIONAL GRAPHICS COMPANY
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
POSER BUSINESS FORMS, INC.
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
WISCO III, L.L.C.
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
[Amendment Agreement No. 1]
LESSEE
MAIL-WELL I CORPORATION
By ________________________________
ROBERT MEYER
Its: VICE PRESIDENT-TREASURER & TAX
[Amendment Agreement No. 1]
AGENT
FLEET CAPITAL CORPORATION
By ________________________________
Its:
[Amendment Agreement No. 1]
TRUST CERTIFICATE PURCHASER
FLEET NATIONAL BANK
By ________________________________
Its:
[Amendment Agreement No. 1]
TRUST CERTIFICATE PURCHASER
ORIX FINANCIAL SERVICES, INC.
By _________________________________
Its:
[Amendment Agreement No. 1]
TRUST CERTIFICATE PURCHASER
U.S. BANK, NATIONAL ASSOCIATION
By _________________________________
Its:
[Amendment Agreement No. 1]