SEC Info℠

Home

Search

My Interests

Help

Sign In

Please Sign In

Weiss Zev, et al. – ‘SC 13D/A’ on 4/1/13 re: American Greetings Corp – ‘EX-7’

On:  Monday, 4/1/13, at 4:55pm ET   ·   Accession #:  1193125-13-136805   ·   File #:  5-14133

Previous ‘SC 13D’:  ‘SC 13D/A’ on 1/17/13   ·   Next:  ‘SC 13D/A’ on 7/2/13   ·   Latest:  ‘SC 13D/A’ on 8/12/13

in

this entire Filing. an “Entity” Search.

Show

Documents searched

and

each “hit”. the 1st “hit”.

↓↑Hints

 Text Wildcards:  ? (any letter/digit),  * (many).  Search Logic:  for Documents:  & (and),  | (or);  for Text:  | (anywhere),  "(&)" (near).  Details... 

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 4/01/13  Weiss Zev                         SC 13D/A               8:1.3M American Greetings Corp           Donnelley … Solutions/FA
          Elie Weiss
          Gary Weiss
          Irving I. Stone Foundation
          Irving I. Stone Ltd Liability Co
          Jeffrey Weiss
          Judith Stone Weiss
          Morry Weiss

Document/Exhibit                   Description                      Pages   Size 

 1: SC 13D/A    Amendment to General Statement of Beneficial        HTML    114K 
                          Ownership                                              
 4: EX-8        Opinion re: Tax Matters                             HTML     72K 
 5: EX-9        Voting Trust Agreement                              HTML     20K 
 6: EX-10       Material Contract                                   HTML    270K 
 2: EX-99.6     Ex-6                                                HTML    407K 
 3: EX-7        Letter re: Non-Reliance upon a Previously Issued    HTML    170K 
                          Audit Report or Completed Interim Review               
 7: EX-11       Statement re: Computation of Earnings Per Share     HTML     79K 
 8: EX-12       Statement re: Computation of Ratios                 HTML     11K 

Exhibit 7

CONFIDENTIAL

March 29, 2013

Century Intermediate Holding Company

1 American Road

Cleveland, Ohio 44144

Attention: Zev Weiss

Project Century

Commitment Letter

$600,000,000 Senior Credit Facilities

Ladies and Gentlemen:

Bank of America, N.A. (“Bank of America”) and Merrill Lynch, Pierce, Fenner & Smith Incorporated (“MLPFS” and, together with Bank of America, “BAML”), Deutsche Bank AG New York Branch (“DBNY”) and Deutsche Bank Securities Inc. (“DBSI” and, together with DBNY, “Deutsche Bank”), PNC Bank, National Association (“PNC Bank”) and PNC Capital Markets LLC (“PNC Capital” and, together with PNC Bank, “PNC”), KeyBank National Association (“KeyBank”), and Macquarie Capital (USA), Inc. (“Macquarie Capital”) and MIHI LLC (“MIHI” and together with Macquarie Capital, “Macquarie”; BAML, Deutsche Bank, PNC, KeyBank and Macquarie are hereinafter referred to as the “Commitment Parties”, “we” or “us”) have been advised that a company (“Holdings” or “you”) to be formed by certain members of the Weiss family (the “Weiss Family”) intends to acquire (the “Acquisition”) all of the capital stock of American Greetings Corporation, an Ohio corporation (the “Target”), for not more than $584.5 million in cash. The Acquisition will be effected through the merger of a newly created wholly-owned subsidiary of Holdings (“Merger Sub”) into the Target, with the Target being the surviving corporation, pursuant to the Acquisition Agreement (as hereinafter defined) between Holdings, Merger Sub, and the Target. After giving effect to the Acquisition, Holdings will be a holding company that directly owns, and the sole asset of which is, all of the equity interests in the Target. Holdings, the Target and their respective subsidiaries are sometimes collectively referred to herein as the “Companies” and the Target and its subsidiaries are sometimes collectively referred to herein as the “Acquired Business”.

You have also advised us that you intend to finance the Acquisition, the costs and expenses related to the Transaction (as hereinafter defined), the repayment of certain existing indebtedness of the Companies (other than the Target’s existing 7.375% Senior Notes due 2021 (the “Existing Senior Rollover Notes due 2021”) and the Target’s existing 6.10% Senior Notes due 2028 (the

“Existing Senior Rollover Notes due 2028” and, collectively with the Existing Senior Rollover Notes due 2021, the “Existing Senior Rollover Notes”) and, at your election, other than the Target’s existing accounts receivable securitization program, up to a maximum of $50.0 million (the “AR Facility”)) (the “Refinancing”) from the following sources (and that no financing other than the following described financing will be required in connection with the Transaction): (a) at least $40.8 million of common equity of the Target currently held by certain existing shareholders of the Target (which in any event shall include all of the common equity of the Target owned by the Weiss family) will be rolled over (directly or indirectly) into common equity of Holdings, which shall be contributed to the Borrower in cash as common equity (the “Equity Contribution”); (b) $600.0 million in senior secured credit facilities of the Borrower (collectively, the “Senior Credit Facilities”), comprised of (i) a senior secured term loan facility of $400.0 million (the “Term Loan Facility”) and (ii) a senior secured revolving credit facility to $200.0 million (the “Revolving Credit Facility”); (c) at least $240.0 million of gross proceeds under a preferred equity investment provided to Holdings by one or more affiliates of Koch Equity Investments, LLC (the “Preferred Investor”) (the “New Holdco Preferred Investment”) pursuant to the Holdco Securities Purchase Agreement (as hereinafter defined), the proceeds of which shall be contributed to Merger Sub in cash as common equity to be used to pay part of the purchase price for the Acquisition and which New Holdco Preferred Investment is non-recourse to and receives no credit support from any Company other than Holdings; and (d) approximately $225.2 million of Existing Senior Rollover Notes will remain outstanding and continue as an obligation of the Target after giving effect to the Transaction. The Acquisition, the Equity Contribution, the entering into and funding of the Senior Credit Facilities and the New Holdco Preferred Investment, the Refinancing, the rollover of the Existing Senior Rollover Notes and all related transactions are hereinafter collectively referred to as the “Transaction.” The estimated sources and uses for the financing for the Transaction are as set forth on Schedule I hereto. Notwithstanding anything in this Commitment Letter, the Fee Letter, the Credit Documentation (as hereinafter defined) or any other letter agreement or other undertaking concerning the financing of the Transaction to the contrary, you may elect prior to a date to be mutually agreed by you and the Lead Arrangers to issue on the Closing Date less than $240.0 million of gross proceeds of the New Holdco Preferred Investment so long as on the Closing Date and after giving pro forma effect to the Transaction (a) the aggregate amount of the Equity Contribution plus the aggregate gross proceeds of the New Holdco Preferred Investment so issued (collectively, the “Total Equity Contribution”) is not less than 30.0% of the sum of (i) the aggregate amount of the Senior Credit Facilities funded on the Closing Date (excluding, for the avoidance of doubt, (x) any issued but undrawn letters of credit and (y) the effects of any exercise of the “market flex” provisions of the Fee Letter), (ii) the aggregate outstanding principal amount of the Existing Senior Rollover Notes, (iii) if applicable, the aggregate amount outstanding under the AR Facility, and (iv) the Total Equity Contribution, and (b) both immediately before and after giving pro forma effect to the Transaction, the Net Leverage Ratio (as defined in the Existing 2021 Indenture described in Annex II hereto) shall not be greater than 3.0 to 1.0.

1. Commitments. In connection with the foregoing, (a) Bank of America is pleased to advise you of its several commitment to provide 20% of the full principal amount of the Senior Credit Facilities, DBNY is pleased to advise you of its several commitment to provide 20% of the full principal amount of the Senior Credit Facilities, PNC Bank is pleased to advise you of its several commitment to provide 20% of the full principal amount of the Senior Credit

2

Facilities, KeyBank is pleased to advise you of its several commitment to provide 20% of the full principal amount of the Senior Credit Facilities, and MIHI is pleased to advise you of its several commitment to provide 20% of the full principal amount of the Senior Credit Facilities, all upon and subject solely to the terms and conditions set forth in this commitment letter, the summary of terms attached as Annex I hereto and the conditions precedent to closing attached as Annex II hereto (Annex I and Annex II being collectively referred to as the “Summaries of Terms” and, together with this commitment letter, this “Commitment Letter”), (b) MLPFS, DBSI, PNC Capital, KeyBank and Macquarie Capital are pleased to advise you of their willingness, as joint lead arrangers and joint book running managers (in such capacities, the “Lead Arrangers”) for the Senior Credit Facilities, to form a syndicate of financial institutions and institutional lenders (collectively, the “Lenders”) in consultation with you for the Senior Credit Facilities (which Lenders, solely in the case of the Revolving Credit Facility, shall be reasonably acceptable to you, such consent not to be unreasonably withheld or delayed), including the Commitment Parties and (c) Bank of America is pleased to advise you of its willingness to act as the master administrative agent and collateral agent for the Senior Credit Facilities (in such capacity, the “Administrative Agent”) and PNC Bank is pleased to advise you of its willingness to act as the operational administrative agent for the Revolving Credit Facility (in such capacity, the “Revolver Administrative Agent” and, together with the Administrative Agent, the “Agents”). It is further agreed that (i) BAML will have “left-side” designation and will appear on the top left of any offering or marketing materials in respect of the Senior Credit Facilities and (ii) the Commitment Parties other than BAML will appear on any offering or marketing materials in respect of the Senior Credit Facilities to the right of BAML in the following order from left to right: Deutsche Bank, PNC, KeyBank and Macquarie, and that each of DBSI, PNC Capital, KeyBank and Macquarie Capital shall receive the title of co-syndication agent. No other agents, co-agents, arrangers or bookrunners will be appointed, and no other titles will be awarded and no compensation (other than that expressly contemplated by this Commitment Letter and the Fee Letter (as hereinafter defined)) will be paid to any Lender in connection with the Senior Credit Facilities, unless you and each of the Commitment Parties so agree. All capitalized terms used and not otherwise defined herein shall have the same meanings as specified therefor in the Summaries of Terms. If you accept this Commitment Letter, the date of the initial funding under the Senior Credit Facilities is referred to herein as the “Closing Date.”

2. Syndication. The Lead Arrangers intend to commence syndication of the Senior Credit Facilities promptly after your acceptance of the terms of this Commitment Letter and the Fee Letter to Lenders in consultation with you (and, with respect to Lenders under the Revolving Credit Facility, subject to your approval thereof, not to be unreasonably withheld or delayed but excluding in all cases any Disqualified Lender (as defined in the Summaries of Terms)); provided that, notwithstanding the right of the Lead Arrangers to syndicate the Senior Credit Facilities and receive commitments with respect thereto, it is agreed that (a) any syndication of, or receipt of commitments in respect of, all or any portion of the Commitment Parties’ commitments hereunder prior to the initial funding under the Senior Credit Facilities shall not be a condition to the Commitment Parties’ commitments nor reduce the Commitment Parties’ commitments hereunder with respect to any of the Senior Credit Facilities, (b) unless you otherwise agree in writing, no assignments may be made prior to the initial funding of the Senior Credit Facilities and (c) unless you otherwise agree in writing, the Commitment Parties shall retain exclusive control over all rights and obligations with respect to their respective commitments, including all rights with respect to consents, modifications and amendments, until

3

the Closing Date has occurred. You agree to assist, and to use your commercially reasonable efforts to cause the Acquired Business to assist, but in all instances subject to, and not in contravention of, the terms of the Acquisition Agreement, the Lead Arrangers in achieving a Successful Syndication (as defined in the Fee Letter). Such assistance shall include (a) your providing and causing your advisors to provide, and using your commercially reasonable efforts to cause the Acquired Business and its advisors to provide (consistent with the terms of the Acquisition Agreement), the Lead Arrangers and the Lenders upon request with all information reasonably deemed necessary by the Lead Arrangers to complete such syndication, including, but not limited to, information and evaluations prepared by you, the Acquired Business and your and their advisors, or on your or their behalf, relating to the Transaction, (b) your using commercially reasonable efforts to assist the Lead Arrangers in the preparation of a confidential information memorandum with respect to the Senior Credit Facilities in form and substance customary for a transaction of this type and reasonably satisfactory to the Lead Arrangers to be used in connection with the syndication of the Senior Credit Facilities (the “Confidential Information Memorandum”), (c) your using your commercially reasonable efforts to ensure that the syndication efforts of the Lead Arrangers benefit from your existing lending relationships and the existing lending relationships of the Acquired Business, (d) your using commercially reasonable efforts to obtain, prior to the launch of the primary syndication of the Senior Credit Facilities, monitored public corporate credit or family ratings of the Borrower after giving effect to the Transaction and ratings of the Senior Credit Facilities from Moody’s Investors Service, Inc. (“Moody’s”) and Standard & Poor’s (“S&P”), a division of The McGraw-Hill Companies, Inc. and (e) your otherwise assisting the Lead Arrangers in their syndication efforts, including by making your officers and advisors, and using your commercially reasonable efforts to make the officers and advisors of the Acquired Business (consistent with the terms of the Acquisition Agreement), reasonably available from time to time to attend and make presentations regarding the business and prospects of the Companies and the Transaction, as appropriate, at one or more meetings of prospective Lenders at times and locations mutually agreed upon.

It is understood and agreed that the Lead Arrangers will manage and control all aspects of the syndication of the Senior Credit Facilities in consultation with you, including decisions as to the selection of prospective Lenders (subject to your reasonable consent rights above with respect to the Lenders under the Revolving Credit Facility but excluding Disqualified Lenders) and any titles offered to proposed Lenders, when commitments will be accepted and the final allocations of the commitments among the Lenders. It is understood that no Lender participating in the Senior Credit Facilities will receive compensation from you in order to obtain its commitment, except on the terms contained herein and in the Summaries of Terms. It is also understood and agreed that the amount and distribution of the fees among the Lenders will be determined by the Lead Arrangers but in consultation with you. It is further understood and agreed that with respect to the foregoing the obligations of the Lead Arrangers to consult with you shall include, but not be limited to the following: (i) providing to you as soon as reasonably practical after the date upon which you accept this Commitment Letter a preliminary list of prospective Lenders to whom the Lead Arrangers would intend to syndicate the Revolving Credit Facility, (ii) providing to you as soon as reasonably practical after your acceptance of this Commitment Letter a proposed syndication calendar indicating expected dates upon which any Lender meetings would be held and the location thereof, the dates upon which commitments would be required from Lenders and the dates upon which those commitments would be accepted, and (iii) providing to you the proposed titles, proposed final allocation and proposed amount and distribution of fees sufficiently in advance of the determination thereof to allow you a reasonable opportunity to review the same in consultation with the Lead Arrangers.

4

In addition to the foregoing, you hereby agree that, prior to the earlier of 90 days after the Closing Date and the completion of a Successful Syndication (as defined in the Fee Letter), there shall be no offering, placement or arrangement of any debt financing by or on behalf of any of the Companies (other than the Senior Credit Facilities and, for the avoidance of doubt, the New Holdco Preferred Investment).

3. Information Requirements. You hereby represent, warrant and covenant that (a) all written information, other than Projections (as defined below) and information of a general economic or general industry nature, that has been or is hereafter made available to the Lead Arrangers or any of the Lenders by you or any of your representatives (or on your or their behalf) or by any of the Acquired Business or any of their representatives (or on their behalf) in connection with any aspect of the Transaction (the “Information”) is and will be, when furnished and when taken as a whole, complete and correct in all material respects and does not and will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein in the light of the circumstances under which they were made not materially misleading (in each case, after giving effect to all supplements and updates provided thereto) and (b) all financial projections and other forward looking statements concerning the Companies that have been or are hereafter made available to the Lead Arrangers or any of the Lenders by you or any of your representatives (or on your or their behalf) or by any of the Acquired Business or their representatives (or on their behalf) (the “Projections”) have been or will be prepared in good faith based upon assumptions that were believed by the preparer thereof to be reasonable at the time the Projections were prepared and furnished to the Lenders; it being understood and agreed that such Projections are not to be viewed as facts and are subject to significant uncertainties and contingencies many of which are beyond your control, and that actual results during the period or periods covered by any such Projections may differ significantly from the projected results, and that no assurance can be given that the projected results will be realized. You agree to furnish us with such Information and Projections as we may reasonably request and to supplement the Information and the Projections from time to time until the Closing Date so that the representation, warranty and covenant in the immediately preceding sentence is correct in all material respects on the Closing Date. In issuing this commitment and in arranging and syndicating the Senior Credit Facilities, the Commitment Parties are and will be using and relying on the Information and the Projections without independent verification thereof.

You hereby acknowledge that (a) subject to the confidentiality obligations contained herein, the Lead Arrangers will make available Information and Projections (collectively, “Information Materials”) to the proposed syndicate of Lenders by posting the Information Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the proposed Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Companies, their respective affiliates or any other entity, or the respective securities of any of the foregoing) (each, a “Public Lender”). You hereby agree that (w) you will use commercially reasonable efforts to identify that portion of the Information Materials that may be distributed to the Public Lenders and include a reasonably detailed term sheet among such Information Materials and that all Information Materials that are

5

to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Information Materials “PUBLIC,” you shall be deemed to have authorized the Commitment Parties and the proposed Lenders to treat such Information Materials as not containing any material non-public information with respect to the Companies, their respective affiliates or any other entity, or the respective securities of any of the foregoing for purposes of United States federal and state securities laws, it being understood that certain of such Information Materials may be subject to the confidentiality requirements of the Credit Documentation; (y) all Information Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Commitment Parties shall be entitled to treat any Information Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”

4. Fees and Indemnities. You agree to pay the fees set forth in the Fee Letter dated as of the date hereof (the “Fee Letter”) among the parties hereto. You also agree to reimburse the Commitment Parties from time to time on demand for all reasonable and documented out-of-pocket fees and expenses (but limited, in the case of legal fees and expenses, to the reasonable and documented fees, disbursements and other charges of Latham & Watkins LLP, as counsel to the Lead Arrangers and the Agents and one local counsel to the Lead Arrangers and the Agents in each relevant jurisdiction) incurred in connection with the Senior Credit Facilities, the syndication thereof, the preparation of the Credit Documentation and the other transactions contemplated hereby. You acknowledge that we may receive a future benefit on matters unrelated to this matter, including without limitation, a discount, credit or other accommodation, from any of such counsel based on the fees such counsel may receive on account of their relationship with us including, without limitation, fees paid pursuant hereto.

You also agree to indemnify and hold harmless each Commitment Party, each other Lender and each of their affiliates and their officers, directors, employees, agents, advisors and other representatives, in each case, in connection with this Commitment Letter, the Fee Letter or the Senior Credit Facilities (each an “Indemnified Party”) from and against (and will reimburse each Indemnified Party as the same are incurred for) any and all claims, damages, losses, liabilities and expenses (including, without limitation, the reasonable fees, disbursements and other charges of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (a) any aspect of the Transaction and any of the other transactions contemplated hereby or (b) the Senior Credit Facilities, or any use made or proposed to be made with the proceeds thereof, except (1) to the extent such claim, damage, loss, liability or expense (A) is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s bad faith, gross negligence or willful misconduct or (B) result from a claim brought by either Holdings or Merger Sub against an Indemnified Party for a material breach of such Indemnified Party’s obligations under this Commitment Letter, the Fee Letter or other Credit Documentation if either Holdings or Merger Sub has obtained a final, non-appealable judgment by a court of competent jurisdiction in its favor on such claims or (2) any disputes solely among the Indemnified Parties and not arising out of or in connection with any act or omission of any Company (other than a dispute involving a claim

6

against any Commitment Party solely in its capacity as a Lead Arranger, Administrative Agent, Revolver Administrative Agent or similar role). In the case of an investigation, litigation or proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by you, your equity holders or creditors or an Indemnified Party, whether or not an Indemnified Party is otherwise a party thereto and whether or not any aspect of the Transaction is consummated. You also agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or your subsidiaries or affiliates or to your or their respective equity holders or creditors arising out of, related to or in connection with any aspect of the Transaction, except to the extent of direct (as opposed to special, indirect, consequential or punitive) damages determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s bad faith, gross negligence or willful misconduct or a material breach of such Indemnified Party’s obligations under this Commitment Letter. It is further agreed that the Commitment Parties shall only have liability to you (as opposed to any other person), and that each Commitment Party shall be liable solely in respect of its own commitment to the Senior Credit Facilities on a several, and not joint, basis with any other Lender or Commitment Party. Notwithstanding any other provision of this Commitment Letter, (i) no Indemnified Party shall be liable for any damages arising from the use by others of information or other materials obtained through electronic telecommunications or other information transmission systems, other than for direct, actual damages resulting from the bad faith, gross negligence or willful misconduct of such Indemnified Party as determined in a final non-appealable judgment by a court of competent jurisdiction and (ii) you shall not be liable for any settlement of any claim effected without your consent (which consent shall not be unreasonably withheld or delayed), but if settled with your written consent or if there is a final judgment for the plaintiff in any such claim, you agree to indemnify and hold harmless each Indemnified Party from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment in accordance with this paragraph.

5. Conditions to Financing. The commitment of the Commitment Parties in respect of the Senior Credit Facilities and the undertaking of the Lead Arrangers to provide the services described herein are subject solely to the satisfaction of each of the conditions set forth in Annex II hereto and each of the following conditions precedent (and no other conditions): (a) you shall have accepted the Fee Letter and you shall have paid, or caused the other Companies to pay, all applicable fees and expenses (including the reasonable fees and disbursements of counsel) that are due thereunder, and (b) the negotiation, execution and delivery of definitive documentation with respect to the Senior Credit Facilities mutually acceptable to you and the Commitment Parties consistent with this Commitment Letter and the Fee Letter and otherwise subject to the Documentation Principles (as hereinafter defined) (the “Credit Documentation”).

Notwithstanding anything in this Commitment Letter, the Fee Letter, the Credit Documentation or any other letter agreement or other undertaking concerning the financing of the Transaction to the contrary, (i) the only representations the accuracy of which shall be a condition to the availability of the Senior Credit Facilities on the Closing Date shall be (A) such representations made by or with respect to the Acquired Business in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that you or any of your affiliates have the right to terminate your or its obligations under the Acquisition Agreement, or to decline to consummate the Acquisition pursuant to the Acquisition Agreement, as a result of a

7

breach of such representations in the Acquisition Agreement (the “Acquisition Agreement Representations”) and (B) the Specified Representations (as hereinafter defined) and (ii) the terms of the Credit Documentation shall be in a form such that they do not impair the availability of the Senior Credit Facilities on the Closing Date if the conditions set forth in this fifth paragraph and Annex II hereto are satisfied (it being understood that to the extent any security interest in the intended collateral (other than any collateral the security interest in which may be perfected by the filing of a UCC financing statement, the filing of short-form security agreements with the United States Patent and Trademark Office or the United States Copyright Office or the delivery of certificates evidencing equity interests of an issuer organized under the laws of the United States or any state thereof) is not provided on the Closing Date after your use of commercially reasonable efforts to do so, the provision of such perfected security interest(s) shall not constitute a condition precedent to the availability of the Senior Credit Facilities on the Closing Date but shall be required to be delivered no later than 90 days after the Closing Date (or such longer period as agreed to by the Administrative Agent)). For purposes hereof, “Specified Representations” means the representations and warranties of the Loan Parties relating to corporate status, corporate power and authority to enter into the Credit Documentation, due authorization, execution, delivery and enforceability of the Credit Documentation against the Loan Parties, no conflicts of the Credit Documentation or the Transaction in any material respect with charter documents, solvency of the Companies on a consolidated basis after giving effect to the Transaction (in form and scope consistent with the solvency certificate to be delivered pursuant to Exhibit I to Annex II), Federal Reserve margin regulations, the U.S.A. Patriot Act, the Investment Company Act, Foreign Corrupt Practices Act, OFAC, and the creation, validity, priority and perfection of the security interests granted in the intended collateral (subject to the terms of this section 5). This paragraph is referred to as the “Certain Funds Provision”.

6. Confidentiality and Other Obligations. This Commitment Letter and the Fee Letter and the contents hereof and thereof are confidential and, except for the disclosure hereof or thereof on a confidential basis to your accountants, attorneys and other professional advisors retained in connection with the Transaction, may not be disclosed in whole or in part to any person or entity without our prior written consent; provided, however, it is understood and agreed that (i) you may disclose this Commitment Letter (including the Summaries of Terms) but not the Fee Letter (a) on a confidential basis to the Preferred Investor and the board of directors (including any special committee thereof) and accountants, attorneys and other professional advisors of the Companies in connection with the Transaction, (b) after your acceptance of this Commitment Letter and the Fee Letter, in filings with the Securities and Exchange Commission and other applicable regulatory authorities and stock exchanges and (c) pursuant to the order of any court or administrative agency in any pending legal or administrative proceeding or otherwise as otherwise required by law or compulsory legal process based on the reasonable advice of legal counsel (in which case, you agree, to the extent practicable and not prohibited by applicable law, to provide written notice to the Lead Arrangers promptly thereof prior to such disclosure), (ii) to the extent portions thereof have been redacted in a manner reasonably acceptable to us, you may disclose the Fee Letter and the contents thereof on a confidential basis to the Preferred Investor and to the board of directors (including any special committee thereof) and accountants, attorneys and other professional advisors of the Companies in connection with the Transaction, and (iii) after your acceptance of this Commitment Letter and the Fee Letter, (a) you may disclose the Summaries of Terms to any rating agency in connection with the Transaction to the extent necessary to satisfy your obligations or the conditions hereunder, and

8

(b) you may disclose the aggregate fee amounts (expressed in Dollars) contained in the Fee Letter as part of Projections, pro forma information or a generic disclosure of aggregate sources and uses related to fee amounts related to the Transaction to the extent customary or required in offering and marketing materials for the Senior Credit Facilities or in any public filing relating to the Transaction.

You acknowledge that the Commitment Parties or their affiliates may be providing financing or other services to parties whose interests may conflict with yours. However, be assured that, consistent with their longstanding policy to hold in confidence the affairs of their customers, the Commitment Parties will not furnish confidential information obtained from you to any of their other customers and will treat confidential information relating to you, the other Companies and your and their respective affiliates with the same degree of care as they treat their own confidential information. By the same token, the Commitment Parties will not make available to you confidential information that they have obtained or may obtain from any other customer. In connection with the services and transactions contemplated hereby, you agree that the Commitment Parties are permitted to access, use and share with any of their bank or non-bank affiliates, agents, advisors (legal or otherwise) or representatives, any information concerning you, the other Companies or any of your or their respective affiliates that is or may come into the possession of the Commitment Parties or any of such affiliates.

In connection with all aspects of each transaction contemplated by this Commitment Letter, you acknowledge and agree, and acknowledge your affiliates’ understanding, that: (i) the Senior Credit Facilities and any related arranging or other services described in this Commitment Letter are arm’s-length commercial transactions between you and your affiliates, on the one hand, and the Commitment Parties and the Lead Arrangers, on the other hand, and you are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated by this Commitment Letter; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction, each Commitment Party and each Lead Arranger is and has been acting solely as a principal and is not acting as an agent or fiduciary, for you or any of your affiliates, stockholders, creditors or employees or any other party; (iii) neither any Commitment Party nor any Lead Arranger has assumed or will assume an advisory or fiduciary responsibility in your or your affiliates’ favor with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether any Commitment Party or any Lead Arranger has advised or is currently advising you or your affiliates on other matters) and neither any Commitment Party nor any Lead Arranger has any obligation to you or your affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth in this Commitment Letter; (iv) each Commitment Party, each Lead Arranger and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from yours and your affiliates and neither any Commitment Party nor any Lead Arranger has any obligation to disclose any of such interests by virtue of any fiduciary or advisory relationship; and (v) neither any Commitment Party nor any Lead Arranger has provided any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby and you have consulted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate. You hereby waive and release, to the fullest extent permitted by law, any claims that you may have against any Commitment Party or any Lead Arranger with respect to any breach or alleged breach of fiduciary duty.

9

Notwithstanding anything contained herein to the contrary, until this Commitment Letter is accepted by you, each Commitment Party shall continue to be subject to the terms of the Non-Disclosure Agreement executed by such Commitment Party, if any, in favor of you. From and after your acceptance of this Commitment Letter any such Non-Disclosure Agreements shall be superceded in their entirety by the terms of this paragraph and the Commitment Parties shall use all confidential information provided to them by or on behalf of you hereunder solely for the purpose of providing the services which are the subject of this Commitment Letter and otherwise in connection with the Transaction and shall treat confidentially all such information; provided, however, that nothing herein shall prevent the Commitment Parties from disclosing any such information (i) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law or compulsory legal process (in which case the Commitment Parties agree to inform you promptly thereof prior to such disclosure to the extent not prohibited by law, rule or regulation), (ii) upon the request or demand of any regulatory authority having jurisdiction over the Commitment Parties or any of their respective affiliates, (iii) to the extent that such information becomes publicly available other than by reason of disclosure in violation of this Commitment Letter by the Commitment Parties, (iv) to the Commitment Parties’ and their respective affiliates’ employees, legal counsel, independent auditors and other experts or agents who need to know such information in connection with the Transaction and are informed of the confidential nature of such information, (v) for purposes of establishing a “due diligence” defense, (vi) to the extent that such information is or was received by the Commitment Parties from a third party that is not to the Commitment Parties’ knowledge subject to confidentiality obligations to you, (vii) to the extent that such information is independently developed by the Commitment Parties or (viii) to potential Lenders, participants or assignees who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph or as otherwise reasonably acceptable to you and each Commitment Party, including as may be agreed in any confidential information memorandum or other marketing material). This paragraph shall terminate on the earlier of (x) the 18 month anniversary of the date hereof and (y) to the extent the Credit Documentation are entered into on such date, the Closing Date.

Each Commitment Party hereby notifies you that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Act”), each of them is required to obtain, verify and record information that identifies you, which information includes your name and address and other information that will allow the Commitment Parties to identify you in accordance with the Act.

7. Survival of Obligations. The provisions of numbered paragraphs 3, 4, 6 and 8 shall remain in full force and effect regardless of whether any definitive documentation for the Senior Credit Facilities shall be executed and delivered and notwithstanding the termination of this Commitment Letter or any commitment or undertaking of any Commitment Party hereunder; provided, however, that you shall be deemed released from your obligations hereunder (other than those contained in numbered paragraphs 2 and 6) if you have accepted the commitments hereunder in respect of the Senior Credit Facilities, upon the execution and delivery by the Companies of all definitive documentation for the Senior Credit Facilities and the initial extension of credit thereunder.

10

8. Miscellaneous. This Commitment Letter and the Fee Letter may be executed in multiple counterparts and by different parties hereto in separate counterparts, all of which, taken together, shall constitute an original. Delivery of an executed counterpart of a signature page to this Commitment Letter or the Fee Letter by telecopier, facsimile or other electronic transmission (e.g., a “pdf” or “tiff”) shall be effective as delivery of a manually executed counterpart thereof.

This Commitment Letter and the Fee Letter shall be governed by, and construed in accordance with, the laws of the State of New York; provided, however, that the laws of the State of Ohio shall govern in determining (a) the interpretation of a Material Adverse Effect (as defined below) and whether a Material Adverse Effect has occurred, (b) the accuracy of any Acquisition Agreement Representation and whether as a result of any inaccuracy thereof you have the right (without regard to any notice requirement) to terminate your obligations (or to refuse to consummate the merger) under the Acquisition Agreement and (c) whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement (in each case, without regard to the principles of conflicts of laws thereof, to the extent that the same are not mandatorily applicable by statute and would require or permit the application of the law of another jurisdiction). Each party hereto hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Commitment Letter (including, without limitation, the Summaries of Terms), the Fee Letter, the Transaction and the other transactions contemplated hereby and thereby or the actions of any Commitment Party in the negotiation, performance or enforcement hereof. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of any New York State court or Federal court sitting in the Borough of Manhattan in New York City in respect of any suit, action or proceeding arising out of or relating to the provisions of this Commitment Letter (including, without limitation, the Summaries of Terms), the Fee Letter, the Transaction and the other transactions contemplated hereby and thereby and irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court. Each party hereto hereby waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceedings brought in any such court, and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

This Commitment Letter, together with the Summaries of Terms and the Fee Letter, embodies the entire agreement and understanding among the Commitment Parties, you and your affiliates with respect to the Senior Credit Facilities and supersedes all prior agreements and understandings relating to the subject matter hereof. No party has been authorized by any Commitment Party to make any oral or written statements that are inconsistent with this Commitment Letter. Neither this Commitment Letter (including the attachments hereto) nor the Fee Letter may be amended or any term or provision hereof or thereof waived or modified except by an instrument in writing signed by each of the parties hereto.

This Commitment Letter is not assignable by you without our prior written consent and is intended to be solely for the benefit of the parties hereto and the Indemnified Parties. Each Commitment Party may assign its commitment hereunder, in whole or in part, to any of its affiliates; provided, that, without your prior consent, no Commitment Party shall be released from its obligations with respect to such commitment until after the funding of the Senior Credit Facilities. No Commitment Party or Lead Arranger shall assign its rights under this Commitment Letter or the Fee Letters as a Commitment Party or Lead Arranger, as applicable, in its capacity as such (other than to one of its affiliates) without the prior written consent of each of the parties hereto.

11

All commitments and undertakings of the Commitment Parties and the Lead Arrangers under this Commitment Letter will expire at 11:59 p.m. (New York City time) on March 29, 2013 unless you execute this Commitment Letter as provided below and the Fee Letter as provided therein to accept such commitments and return them to us prior to that time. Thereafter, all accepted commitments and undertakings of the Commitment Parties and the Lead Arrangers hereunder will expire on the earliest of (a) the outside closing date set forth in the Acquisition Agreement but in any event no later than September 30, 2013, unless the Closing Date occurs on or prior thereto, (b) the closing of the Acquisition and (c) the acceptance by any of the Companies or any of their affiliates of an offer for all or any substantial part of the capital stock or property and assets of the Companies other than as part of the Transaction.

Each of the parties hereto agrees that this Commitment Letter is a binding and enforceable agreement with respect to the subject matter contained herein (including an obligation to negotiate in good faith), it being acknowledged and agreed that the commitments provided hereunder are subject solely to satisfaction of the conditions set forth or referred to in paragraph 5 above.

[The remainder of this page intentionally left blank.]

12

We are pleased to have the opportunity to work with you in connection with this important financing.

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

Signature Page to Commitment Letter – Project Century

DEUTSCHE BANK AG NEW YORK BRANCH

DEUTSCHE BANK SECURITIES INC.

Signature Page to Commitment Letter – Project Century

PNC BANK, NATIONAL ASSOCIATION

PNC CAPITAL MARKETS LLC

Signature Page to Commitment Letter – Project Century

KEYBANK NATIONAL ASSOCIATION

Signature Page to Commitment Letter – Project Century

MACQUARIE CAPITAL (USA), INC.

MIHI LLC

Signature Page to Commitment Letter – Project Century

Accepted and agreed to as of the date first written above:

CENTURY INTERMEDIATE HOLDING COMPANY

Signature Page to Commitment Letter – Project Century

SCHEDULE I

ESTIMATED SOURCES AND USES OF FUNDS

($ millions)

Schedule I-1

ANNEX I

SUMMARY OF TERMS AND CONDITIONS

SENIOR CREDIT FACILITIES

Capitalized terms not otherwise defined herein have the same meanings as specified therefor in the Commitment Letter to which this Annex I is attached

Annex I-1

Annex I-2

Annex I-3

Annex I-4

Annex I-5

Annex I-6

Annex I-7

Annex I-8

Annex I-9

Annex I-10

Annex I-11

Annex I-12

Annex I-13

Annex I-14

Annex I-15

Annex I-16

Annex I-17

ANNEX II

CONDITIONS PRECEDENT TO CLOSING

$600,000,000 SENIOR CREDIT FACILITIES

Capitalized terms not otherwise defined herein have the same meanings as specified therefor in the Commitment Letter to which this Annex II is attached.

The closing and the initial extension of credit under the Senior Credit Facilities will be subject solely to the following:

Annex II-1

effects or occurrences to the extent, or to the extent attributable to: (A) generally affecting the greeting card or social expressions industry in the geographies in which the Company operates, (B) generally affecting the economy, credit or financial markets in the geographies in which the Company operates, (C) changes after the date of the Acquisition Agreement in Law or in generally accepted accounting principles or in accounting standards, or any regulatory and political conditions or developments, (D) the announcement of the Acquisition Agreement or the consummation of the Merger (other than for purposes of any representation or warranty contained in Sections 3.3(b)-(c) of the Acquisition Agreement), (E) acts of war or military action, sabotage or terrorism, or any escalation or worsening of any such acts of war or military action, sabotage or terrorism, (F) earthquakes, hurricanes, tornados or other natural disasters, except, in the case of each of clauses (A), (B), (C), (E) and (F), to the extent any fact, circumstance, event, change, effect or occurrence disproportionately impacts the assets, properties, business, results of operation or financial condition of the Company and its Subsidiaries, taken as a whole, relative to other participants in the industries in which the Company and its Subsidiaries operate, (G) any action taken by the Company or its Subsidiaries (1) that is expressly required by the Acquisition Agreement (other than with respect to the Company’s obligations to comply with Section 5.1(a) or Section 5.5 of the Acquisition Agreement), (2) taken with Parent’s and the Lead Arrangers’ written consent, or (3) resulting from any action taken at the written request of Parent with the consent of the Lead Arrangers, (H) resulting from any change in the market price or trading volume of securities of the Company in and of itself; provided that a fact, circumstance, event, change, effect or occurrence causing or contributing to the change in market price or volume will not be disregarded from the determination of a Material Adverse Effect, or (I) the fact of any failure to meet revenue or earnings projections, forecasts, estimates or guidance for any period, whether relating to financial performance or business metrics, including revenues, net incomes, cash flows or cash positions, provided that a fact, circumstance, event, change, effect or occurrence causing or contributing to such failure shall not be disregarded from the determination of a Material Adverse Effect; or (ii) that would reasonably be expected to prevent or materially delay or impair the ability of the Company to perform its obligations under the Acquisition Agreement or to consummate the Transactions. Each of the capitalized terms used in the definition of “Material Adverse Effect” (other than “Acquisition Agreement”, “Lead Arrangers” and “Material Adverse Effect” which shall have the meanings given to such terms in the Commitment Letter) shall have the meanings given to such terms in the Acquisition Agreement as of the date hereof.

Annex II-2

Facilities and creation and perfection of the liens granted thereunder on the Collateral) customary for financings of this type and reasonably acceptable to the Lead Arrangers and such corporate resolutions, customary secretary certificates, officer’s certificates and other corporate documents as such Lenders shall reasonably require and (b) satisfactory evidence that subject to the Certain Funds Provision, the Administrative Agent (on behalf of the Lenders) shall have a valid and perfected first priority (subject to certain exceptions to be set forth in the Credit Documentation) lien and security interest in such capital stock that constitutes Collateral and in the other Collateral.

Annex II-3

Annex II-4

EXHIBIT I

FORM OF SOLVENCY CERTIFICATE

[•], 20[•]

This Solvency Certificate is being executed and delivered pursuant to Section [•] of that certain [•] (the “Credit Agreement”; the terms defined therein being used herein as therein defined).

The undersigned, [•], [•] of Holdings, is familiar with the properties, businesses, assets and liabilities of Holdings and its Subsidiaries and is duly authorized to execute this certificate (this “Solvency Certificate”) on behalf of Holdings.

The undersigned certifies, on behalf of Holdings and not in his or her individual capacity, that he or she has made such investigation and inquiries as to the financial condition of Holdings and its Subsidiaries as the undersigned deems reasonably necessary and prudent for the purposes of providing this Solvency Certificate. The undersigned acknowledges that the Administrative Agent, the Issuing Bank and the Lenders are relying on the truth and accuracy of this Solvency Certificate in connection with the making of Loans and the issuance of Letters of Credit under the Credit Agreement.

The undersigned certifies, on behalf of Holdings and not in his or her individual capacity, that (a) the financial information, projections and assumptions which underlie and form the basis for the representations made in this Solvency Certificate were made in good faith and were based on assumptions reasonably believed by Holdings to be fair in light of the circumstances existing at the time made and continue to be reasonable as of the date hereof; and (b) for purposes of providing this Solvency Certificate, the amount of contingent liabilities has been computed as the amount that, in the light of all the facts and circumstances existing as of the time of such computation, represents the amount that can reasonably be expected to become an actual or matured liability.

BASED ON THE FOREGOING, the undersigned certifies, on behalf of Holdings and not in his or her individual capacity, that, on the date hereof, after giving effect to the Transactions (and the Loans made or to be made and other obligations incurred or to be incurred on the Closing Date): (a) the fair value of the property of Holdings and its Subsidiaries, on a consolidated basis, is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of Holdings and its Subsidiaries, on a consolidated basis, (b) the present fair salable value of the assets of Holdings and its Subsidiaries, on a consolidated basis, is not less than the amount that will be required to pay the probable liability of Holdings and its Subsidiaries, on a consolidated basis, on their debts as they become absolute and matured, (c) Holdings and its Subsidiaries, on a consolidated basis, do not intend to, and do not believe that they will, incur debts or liabilities beyond Holdings’ and its Subsidiaries’, on a consolidated basis, ability to pay such debts and liabilities as they mature, (d) Holdings and its Subsidiaries, on a consolidated basis, are not engaged in business or a transaction, and are not about to engage in business or a transaction, for which Holdings’ and its Subsidiaries’, on a consolidated basis, property would constitute unreasonably small capital, and (e) Holdings and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities as the same become due and payable. For purposes of the immediately preceding sentence, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

[Remainder of page intentionally left blank]

Exhibit I-1

IN WITNESS WHEREOF, I have executed this Solvency Certificate on the date first written above.

Exhibit I-2

---

Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘SC 13D/A’ Filing		Date		Other Filings
		2/28/14		10-K,  8-K,  NT 10-K
		9/30/13
		9/3/13
		8/16/13
		7/5/13		8-K,  DEFA14A,  PRER14A,  SC 13D/A,  SC 13E3/A
		7/4/13		8-K,  DEFA14A,  SC 13D/A
Filed on:		4/1/13		8-K,  DEFA14A
		3/29/13
		3/26/13		UPLOAD
		3/1/12
		6/11/10		8-K,  DEF 14A
		10/26/01
				List all Filings

↑Top

---

Filing Submission 0001193125-13-136805   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

---

---

Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help — Mon., Apr. 29, 5:45:41.1pm ET