Exhibit 10.9(c)
SECOND AMENDMENT TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDMENT dated as of July 23, 2003 (this "Amendment") with
respect to the Second Amended and Restated Credit Agreement, dated as of April
15, 2003 (the "Credit Agreement") by and among Applied Graphics Technologies,
Inc., as borrower (the "Borrower"), the lenders party thereto (the "Lenders")
and Fleet National Bank, as agent (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have made
Advances and other financial accommodations to the Borrower which remain
outstanding; and
WHEREAS, the Borrower has requested that the Administrative Agent
and the Lenders amend the Credit Agreement, and the Administrative Agent and the
Lenders are willing to do so, but only on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, capitalized terms used herein have
the meanings assigned in the Credit Agreement.
ARTICLE II
AMENDMENT; AGREEMENTS
Section 2.1. Amendment. Section 6.01(o) of the Credit Agreement is
hereby amended by deleting the date "July 28, 2003" and inserting in lieu
thereof the date "July 31, 2003".
Section 2.2. Agreements. The Borrower hereby agrees that,
notwithstanding anything to the contrary set forth in the Credit Agreement, it
shall not apply the proceeds of the Advances or the Collateral to the payment or
prepayment of any principal or interest owing in respect of the Subordinated
Debt.
ARTICLE III
CONDITIONS PRECEDENT
This Amendment shall not become effective unless and until each of
the conditions precedent set forth below have been satisfied or the satisfaction
thereof shall have been waived in accordance with the terms hereof:
(a) receipt by the Administrative Agent of counterparts of this
Amendment, duly executed and delivered by the Borrower, the Subsidiaries
listed on the signature pages hereto, the Administrative Agent and the
Lenders, and
(b) receipt by the Administrative Agent of payment in full in cash
of the reasonable fees and expenses of the Administrative Agent's
professionals including reasonable attorney's fees and expenses incurred
by the Administrative Agent, in connection with the preparation,
negotiation and execution of this Amendment.
ARTICLE IV
INTERPRETATION
Section 4.1. Continuing Effect of the Credit Agreement. The
Borrower, the Administrative Agent and each Lender hereby acknowledges and
agrees that the Credit Agreement shall continue to be and shall remain unchanged
and in full force and effect in accordance with its terms, except as expressly
modified hereby. Any terms or conditions contained in this Amendment shall
control over any inconsistent terms or conditions in the Credit Agreement or the
other Loan Documents.
Section 4.2. No Waiver. Nothing contained in this Amendment shall be
construed or interpreted or is intended as a waiver of any Default or Event of
Default or of any rights, powers, privileges or remedies that the Administrative
Agent or the Lenders have or may have under the Credit Agreement, any other
related document or applicable law on account of such Default or Event of
Default.
ARTICLE V
MISCELLANEOUS
Section 5.1. Representations and Warranties. The Borrower hereby
represents and warrants as of the date hereof that, after giving effect to this
Amendment, (a) no Default or Event of Default has occurred and is continuing,
and (b) all representations and warranties of the Borrower contained in the
Credit Agreement are true and correct in all material respects on and as of the
date hereof (or if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date).
Section 5.2. Fees and Expenses. The Borrower agrees to pay to the
Administrative Agent on demand all reasonable expenses including reasonable
attorney's fees and expenses of the Administrative Agent, incurred by the
Administrative Agent, in connection with the preparation, negotiation and
execution of this Amendment.
Section 5.3. Counterparts. This Amendment may be executed by the
parties hereto in any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 5.4. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW PRINCIPLES).
Section 5.5. Reservation of Rights. Notwithstanding anything
contained in this Amendment, the Borrower acknowledges that the Administrative
Agent and the Lenders do not waive, and expressly reserve, the right to
exercise, at any time, any and all of their rights and remedies under the Credit
Agreement, any other related document and applicable law on account of any
Default or Event of Default.
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Section 5.6. Release. The Loan Parties hereby release, waive, and
forever relinquish all claims, demands, obligations, liabilities and causes of
action of whatever kind or nature, whether known or unknown, which any of them
has, may have, or might assert at the time of execution of this Amendment or in
the future against the Administrative Agent, the Lenders and/or their respective
parents, affiliates, participants, officers, directors, employees, agents,
attorneys, accountants, consultants, successors and assigns, directly or
indirectly, which occurred, existed, was taken, permitted or begun prior to the
execution of this Amendment, arising out of, based upon, or in any manner
connected with (i) any transaction, event, circumstance, action, failure to act
or occurrence of any sort or type, whether known or unknown, with respect to the
Credit Agreement, any other Loan Document and/or the administration thereof or
the obligations created thereby, (ii) any discussions, commitments,
negotiations, conversations or communications with respect to the refinancing,
restructuring or collection of any obligations related to the Credit Agreement,
any other Loan Document and/or the administration thereof or the obligations
created thereby, or (iii) any matter related to the foregoing.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the date first above written.
APPLIED GRAPHICS TECHNOLOGIES, INC.
By: _________________________________
Title:
MIRAMAR EQUIPMENT, INC.
DEVON GROUP, INC.
BLACK DOT GRAPHICS, INC.
XXXXX GRAPHICARTS, INC.
TYPO-GRAPHICS, INC.
XXXXXXX & ASSOCIATES, INC.
WEST COAST CREATIVE, INC.
ABD GROUP, INC.
MERIDIAN RETAIL, INC.
TAPROOT INTERACTIVE, INC.
PROOF POSITIVE/FARROWLYNE
ASSOCIATES, INC.
ONE 2 ONE, INC.
COLOR CONTROL, INC.
AGILE ENTERPRISE, INC.
AGT SYSTEM SERVICES, INC.
RETAIL PROFIT SOLUTIONS, INC.
RE GRAPHICS, INC.
SEVEN WORLDWIDE, INC.
WUSA RE, INC.
By: _________________________________
Title:
FLEET NATIONAL BANK, as Administrative Agent,
Issuing Bank and Swing Line Bank
By: ___________________________________
Title:
FLEET NATIONAL BANK, as a Lender
By: ___________________________________
Title:
BANK OF AMERICA, N.A., as a Lender
By: ___________________________________
Title:
WACHOVIA BANK, N.A. , as a Lender
By: ___________________________________
Title:
XX XXXXXX XXXXX BANK (formerly known as
Chase Manhattan Bank), as a Lender
By: ___________________________________
Title:
THE BANK OF NEW YORK, as a Lender
By: ___________________________________
Title:
SOVEREIGN BANK, as a Lender
By: ___________________________________
Title:
GE CAPITAL CFE, INC., as a Lender
By: ___________________________________
Title:
SUNTRUST BANK, N.A., as a Lender
By: ___________________________________
Title:
CITIZENS BANK OF MASSACHUSETTS, as a Lender
By: ___________________________________
Title:
THE BANK OF NOVA SCOTIA, as a Lender
By: ___________________________________
Title:
PB CAPITAL CORPORATION, as a Lender
By: ___________________________________
Title:
By: ___________________________________
Title:
