1
Exhibit 10.9(b)
AMENDMENT NO. 1 TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment No. 1"), dated as of July 31,
1998, to the CREDIT AGREEMENT (as defined below), is entered into among APPLIED
GRAPHICS TECHNOLOGIES, INC., a Delaware corporation (the "Borrower"), the banks,
financial institutions and other institutional lenders that are parties to the
Credit Agreement (each called a "Lender" and collectively called the "Lenders"),
FIRST UNION NATIONAL BANK ("First Union"), as Syndication Agent, BANKBOSTON,
N.A.("BankBoston"), as Documentation Agent, FLEET BANK, N.A., as a Lender,
Initial Issuing Bank, Swing Line Bank and Administrative Agent ("Fleet" and, in
its capacity as administrative agent, the "Administrative Agent") and each of
the Guarantors (as defined herein).
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, First Union, BankBoston and Fleet
are parties to that certain Credit Agreement (the "Credit Agreement"), dated as
of May 27, 1998;
WHEREAS, (i) Portal Publications, Ltd., The Xxxx Art 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., and
One 2 One Inc. (the "Devon Subsidiary Guarantors") executed and delivered in
favor of the Lender Parties, Fleet, as Initial Issuing Bank, Swing Line Bank and
Administrative Agent and Hedge Banks (collectively, the "Guaranteed Parties") a
guaranty dated as of May 27, 1998 (the "Devon Guaranty") and (ii) Devon Group,
Inc. (formerly known as AGT Acquisition Corp.), AmuseMatte Corp., Miramar
Equipment, Inc., and Color Control, Inc. (the "AGT Subsidiary Guarantors")
executed and delivered in favor of the Guaranteed Parties a guaranty dated as of
May 27, 1998 and supplemented as of June 18, 1998 (the "AGT Guaranty", and,
together with the Devon Guaranty, the "Guaranties"). The AGT Subsidiary
Guarantors and the Devon Subsidiary Guarantors are hereinafter collectively
referred to as the "Guarantors";
WHEREAS, the Borrower and Lenders desire to amend the Credit Agreement
in order to increase the Revolving Credit Commitment and the Acquisition Line
Commitment and to provide for certain related changes under the Credit
Agreement;
WHEREAS, in connection with the increase in the Revolving Credit
Commitment and the Acquisition Line Commitment contemplated by this Amendment
No. 1, the Guarantors desire to confirm and reaffirm each of the Guaranties; and
WHEREAS, terms not otherwise defined herein shall have the respective
meanings ascribed thereto in the Credit Agreement,
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of the loans or other extensions of credit now or hereafter made
to, or for the benefit of, the Borrower by the Lenders, the parties hereto agree
as follows:
SECTION 1 AMENDMENTS TO CREDIT AGREEMENT.
1.01 AMENDMENT TO RECITALS. Paragraph numbered (2) of the Preliminary
Statements of the Credit Agreement is hereby amended by deleting the reference
to "Two Hundred Fifty Million Dollars ($250,000,000)" in the third line of such
paragraph and replacing it with "Three Hundred Million Dollars ($300,000,000)".
1.02 AMENDMENTS TO SECTION 1.01.Section 1.01 of the Credit Agreement is
hereby amended by (i) deleting the last sentence of the definition of
"Acquisition Line Commitment" in its entirety, (ii) deleting the last sentence
of the definition of "Revolving Credit Commitment" in its entirety and (iii)
inserting "(as any of the foregoing may hereafter be amended, restated,
supplemented, replaced or otherwise modified from time to time)" at the end of
definitions of each of Acquisition Line Note, Revolving Credit Note and Swing
Line Note.
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1.03 AMENDMENTS TO SECTION 5.02.
A. Clause (ii) of Section 5.02(b) is hereby amended by
deleting such clause (ii) in its entirety and replacing it with the following:
"(ii) unsecured Debt (w) of the Borrower to any of its
Subsidiaries, (x) of any Domestic Subsidiary of the
Borrower to the Borrower or any other Domestic
Subsidiary of the Borrower, (y) of any Foreign
Subsidiary of the Borrower to the Borrower or any
Domestic Subsidiary of the Borrower; provided,
however, that the aggregate of all unsecured Debt of
a Foreign Subsidiary of the Borrower to the Borrower
or any Domestic Subsidiary of the Borrower and
Investments by the Borrower or any Domestic
Subsidiary of the Borrower in any Person organized
under the laws of any jurisdiction other than the
United States of America or any state thereof as
permitted pursuant to Section 5.02(f)(i) herein shall
not exceed $7,500,000 outstanding at any time and (z)
of any Foreign Subsidiary of the Borrower to any
other Foreign Subsidiary;"
B. Clause (i) of Section 5.02(f) is hereby amended by deleting
such clause (i) in its entirety and replacing it with the following:
"(i) Investments by the Borrower or any of its
Subsidiaries in their respective Subsidiaries;
provided, however, that the aggregate of all
unsecured Debt permitted pursuant to Section
5.02(b)(ii)(y) and Investments from the Closing Date
by the Borrower or any Domestic Subsidiary of the
Borrower in any Person organized under the laws of
any jurisdiction other than the United States of
America or any state thereof shall not exceed
$7,500,000 outstanding at any time; and provided,
further, that, with respect to Investments by the
Borrower or any of its Subsidiaries in any newly
acquired or created wholly-owned Subsidiary of the
Borrower or such Subsidiary that is a Domestic
Subsidiary of the Borrower, any such Subsidiary shall
become a Guarantor pursuant to the provisions of
Section 5.01(k);"
1.04 AMENDMENT TO SCHEDULE I. Schedule I of the Credit Agreement is
hereby deleted in its entirety and replaced with the Schedule I attached hereto
as Annex A.
SECTION 2 REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants that:
2.01 NO DEFAULT. There exists no Default or Event of Default under the
Credit Agreement, as amended hereby, as of the date hereof.
2.02 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. Each of the
representations and warranties contained in the Credit Agreement is true and
correct in all material respects on, and as though made as of the date hereof
(except for any representation or warranty which by its terms is made on or as
of a specified date, in which case such representation or warranty shall be
true, correct and complete in all material respects only as of such specified
date).
2.03 CORPORATE POWER, ETC. The Borrower and each of the Guarantors (i)
has all requisite corporate power and authority to execute and deliver this
Amendment No. 1 and the Replacement Notes (as defined herein) and to consummate
the transactions contemplated hereby and thereby and (ii) has taken all action,
corporate or otherwise, necessary to authorize the execution and delivery of
this Amendment No. 1 and the Replacement Notes and the consummation of the
transactions contemplated hereby and thereby.
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2.04 NO CONFLICT. Neither the execution and delivery of this Amendment
No. 1 and the Replacement Notes (as defined herein) nor consummation of the
transactions contemplated hereby and thereby will (i) conflict with or result in
any breach or violation of any provision of the certificate of incorporation or
by-laws of the Borrower, (ii) result in any breach or violation of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in the creation of a Lien upon
any of the properties or assets of the Borrower under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease agreement or other instrument or obligation to which the Borrower
is a party or to which any of its properties or assets are subject, (iii)
require any consent, approval, authorization or permit of, or filing with or
notification to, any third party or any governmental, judicial, administrative
or regulatory authority of the United States of America or of any state, local
or foreign government or subdivision thereof (a "Governmental Entity") or (iv)
violate any order, writ, injunction, decree, judgment, ruling, law, statute,
rule or regulation of any Governmental Entity.
2.05 BINDING EFFECT. This Amendment No. 1 and the Replacement Notes
have been duly executed and delivered by the Borrower and constitute the valid
and legally binding obligation of the Borrower enforceable in accordance with
their respective terms, except as such enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, relating to or affecting the enforcement of
creditors' rights generally, and (ii) the application of general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
SECTION 3 CONDITIONS.
The effectiveness of the amendments set forth in Section 1 of this
Amendment No. 1 shall be subject to the fulfillment by the Borrower, in a manner
satisfactory to the Administrative Agent and the Lenders, of all of the
following conditions precedent set forth in this Section 3:
3.01 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The
representations and warranties contained herein and in each other agreement,
instrument, certificate or other writing delivered to the Administrative Agent
or any Lender pursuant hereto or to the Credit Agreement shall be correct in all
material respects on and as of the date hereof after giving effect to this
Amendment No. 1 as though made on and as of such date (except for any
representation or warranty which by its terms is made on or as of a specified
date, in which case such representation or warranty shall be true, correct and
complete in all material respects only as of such specified date) except to the
extent modified hereby.
3.02 EXECUTION OF AMENDMENT NO. 1. Each of the parties hereto shall
have executed and delivered an original counterpart of this Amendment No. 1 to
the Administrative Agent.
3.03 COMPLIANCE WITH TERMS. The Borrower and each Guarantor shall have
complied in all respects with the terms hereof and of any other agreement,
document, instrument or other writing to be delivered by the Borrower or such
Guarantor in connection herewith.
3.04 DELIVERY OF DOCUMENTS. The Administrative Agent shall have
received all of the following, each duly executed and dated the date hereof, in
form and substance reasonably satisfactory to the Administrative Agent:
(i) Replacement Notes. Replacement Acquisition Line Notes
substantially in the form of Exhibit A and
Replacement Revolving Credit Notes substantially in
the form of Exhibit B (collectively called the
"Replacement Notes") for each of the Lenders,
delivered to the Administrative Agent for the account
of each such Lender in the applicable amounts equal
to the amounts set forth opposite such Lender's name
on the revised Schedule I attached hereto.
(ii) Resolutions of the Borrower and each Guarantor.
Copies, duly certified by the secretary or assistant
secretary of the Borrower and each Guarantor of (i)
resolutions of the Board of Directors of the Borrower
and the Guarantors authorizing or ratifying the
execution and delivery of this Amendment No.1, (ii)
resolutions of the Board of Directors of the
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Borrower authorizing or ratifying the execution and
delivery of the Replacement Notes, (iii) all
documents evidencing other necessary corporate
action, and (iv) all approvals or consents, if any,
with respect to this Amendment No. 1 and the
Replacement Notes.
(iii) Incumbency Certificates. Certificates of the
secretary or assistant secretary of the Borrower and
each Guarantor certifying the names of the respective
officers of the Borrower and each Guarantor
authorized to sign this Amendment No. 1, the
Replacement Notes and all other documents or
certificates to be delivered hereunder or in
connection herewith, together with the true
signatures of such officers.
(iv) Opinion. An opinion of counsel to the Borrower
addressed to the Administrative Agent and Lenders, in
substantially the form of Exhibit C hereto.
(v) Other. All other such instruments, documents and
agreements as Administrative Agent may reasonably
request.
3.05 FEES. The Borrower shall have paid (x) to the Administrative Agent
for the benefit of the Lenders a closing fee in the amount of $75,000 and (y) to
the Administrative Agent for its sole account, all reasonable fees and expenses,
including reasonable attorneys' fees, incurred by the Administrative Agent in
connection with the preparation, negotiation, execution and delivery of this
Amendment No.1.
3.06 OTHER PROCEEDINGS. All proceedings in connection with the
transactions contemplated by this Amendment No. 1 and all documents incidental
hereto shall be satisfactory to the Administrative Agent, the Lenders and their
respective counsel.
SECTION 4 GENERAL CONFIRMATIONS AND AMENDMENTS.
4.01 CONTINUING EFFECT. The Credit Agreement, the other Loan Documents
and the other agreements to which the Borrower or any Guarantor is a party
delivered in connection herewith or with the Credit Agreement are, and shall
continue to be, in full force and effect, and are hereby ratified and confirmed
in all respects except that on and after the date hereof (i) all references in
the Credit Agreement to "this Agreement", "hereto", "hereof", "hereunder" or
words of like import referring to the Credit Agreement shall mean the Credit
Agreement as amended hereby, (ii) all references in the Credit Agreement, the
other Loan Documents or any other agreement, instrument or document executed and
delivered in connection therewith to the "Credit Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Credit
Agreement shall mean the Credit Agreement as amended hereby.
4.02 DEFINITION OF CERTAIN TERMS. The terms "Obligations" or
"Guaranteed Obligations" as used in the Loan Documents (or any other term used
therein to refer to the Debt, liabilities and obligations of the Borrower to the
Lenders) include, without limitation, Debt, liabilities and obligations to the
Lenders under the Credit Agreement as amended by this Amendment No. 1.
4.03 FURTHER AMENDMENTS; INCORPORATION BY REFERENCE. The Credit
Agreement, the other Loan Documents and all agreements, instruments and
documents executed and delivered in connection with any of the foregoing shall
each be deemed amended hereby to the extent necessary, if any, to give effect to
the provisions of this Amendment No. 1. All of the terms and provisions of this
Amendment No. 1 are hereby incorporated by reference into the Credit Agreement
as if such terms and provisions were set forth in full therein.
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SECTION 5 MISCELLANEOUS.
5.01 GOVERNING LAW. This Amendment No. 1, the Replacement Notes and the
confirmation attached hereto shall be governed by and construed in accordance
with the laws of the State of New York (without giving affect to conflicts of
law principles).
5.02 SEVERABILITY. The provisions of this Amendment No. 1 are
severable, and if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction and shall not in any manner affect such clause or provision in
any other jurisdiction, or any other clause or provision in this Amendment No. 1
in any jurisdiction.
5.03 COUNTERPARTS. This Amendment No. 1 and the confirmation attached
to the signature page hereto may be signed in any number of counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
5.04 BINDING EFFECT; ASSIGNMENT. This Amendment No. 1 shall be binding
upon and inure to the benefit of the Borrower, each Guarantor and their
respective successors and to the benefit of the Administrative Agent and the
Lenders and their respective successors and assigns. The rights and obligations
of the Borrower under this Amendment No. 1 shall not be assigned or delegated
without the prior written consent of the Lenders.
5.05 EXPENSES. The Borrower agrees to pay the Administrative Agent upon
demand for all reasonable expenses, including reasonable fees of attorneys and
paralegals for the Administrative Agent (who may be employees of the
Administrative Agent), incurred by the Administrative Agent in connection with
the preparation, negotiation and execution of this Amendment No. 1 and any
document required to be furnished herewith.
5.06 CONTINUING EFFECT. Except as specifically provided herein, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect in accordance with their respective terms.
SECTION 6 CONFIRMATION AND REAFFIRMATION OF GUARANTIES.
6.01 REAFFIRMATION AND CONFIRMATION. Each Guarantor hereby agrees that
its respective Guaranty shall remain in full force and effect and that such
Guaranty is hereby ratified and confirmed in all respects.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be executed by their respective officers thereunto duly authorized, on the
date first above written.
APPLIED GRAPHICS TECHNOLOGIES, INC.
By: ______________________________________
Name:
Title:
PORTAL PUBLICATIONS, LTD.
THE XXXX ART 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.
By:____________________________________
Name:
Title:
[Signature page to Amendment No. 1]
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DEVON GROUP, INC. (FORMERLY KNOWN AS AGT
ACQUISITION CORP.),
By:____________________________________
Name:
Title:
AMUSEMATTE CORPORATION
By:____________________________________
Name:
Title:
COLOR CONTROL, INC.
By:____________________________________
Name:
Title:
[Signature page to Amendment No. 1]
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MIRAMAR EQUIPMENT, INC.
By:____________________________________
Name:
Title:
FLEET BANK, N.A. AS INITIAL ISSUING
BANK, SWING LINE BANK, ADMINISTRATIVE AGENT
AND LENDER
By:______________________________________
Name:
Title:
[Signature page to Amendment No. 1]
9
THE BANK OF NEW YORK, AS A LENDER
By:________________________________
Name:
Title:
[Signature page to Amendment No. 1]
10
MELLON BANK, N.A., AS A LENDER
By:______________________________________
Name:
Title:
[Signature page to Amendment No. 1]
11
THE CHASE MANHATTAN BANK,
AS A LENDER
By:______________________________________
Name:
Title:
[Signature page to Amendment No. 1]
12
FIRST UNION NATIONAL BANK,
AS SYNDICATION AGENT AND AS A LENDER
By:______________________________________
Name:
Title:
[Signature page to Amendment No. 1]
13
STATE STREET BANK AND TRUST COMPANY,
AS A LENDER
By:______________________________________
Name:
Title:
[Signature page to Amendment No. 1]
14
KEYBANK NATIONAL ASSOCIATION,
AS A LENDER
By:______________________________________
Name:
Title:
[Signature page to Amendment No. 1]
15
BANKBOSTON, N.A.,
AS DOCUMENTATION AGENT AND AS A LENDER
By:______________________________________
Name:
Title:
[Signature page to Amendment No. 1]
16
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCH,
AS A LENDER
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
[Signature page to Amendment No. 1]
17
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION,
AS A LENDER
By:______________________________________
Name:
Title:
[Signature page to Amendment No. 1]
18
SUNTRUST BANK, ATLANTA,
AS A LENDER
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
[Signature page to Amendment No. 1]
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COMERICA BANK,
AS A LENDER
By:______________________________________
Name:
Title:
[Signature page to Amendment No. 1]
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EUROPEAN AMERICAN BANK,
AS A LENDER
By:______________________________________
Name:
Title:
[Signature page to Amendment No. 1]
21
BANK OF TOKYO- MITSUBISHI TRUST
COMPANY,
AS A LENDER
By:______________________________________
Name:
Title:
[Signature page to Amendment No. 1]
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EXHIBIT A
TO AMENDMENT NO. 1
FORM OF REPLACEMENT ACQUISITION LINE PROMISSORY NOTE
$_________________ Dated: ______, __, ____
FOR VALUE RECEIVED, the undersigned, Applied Graphics
Technologies, Inc., a Delaware corporation (the "Borrower"), HEREBY PROMISES TO
PAY to the order of ________________________ (the "Lender") for the account of
its Applicable Lending Office (as defined in the Credit Agreement referred to
below) the principal sum of ________________ DOLLARS AND _______ CENTS
($__________________) or, if less, the aggregate unpaid principal amount of the
Acquisition Line Advances owing to the Lender by the Borrower pursuant to the
Credit Agreement, dated as of May 27, 1998 (as amended, supplemented, restated
or otherwise modified, the "Credit Agreement"; terms defined therein being used
herein as therein defined), among the Borrower, the Lender and certain other
Lender Parties thereto, First Union National Bank, as Syndication Agent,
BankBoston, N.A., as Documentation Agent and Fleet Bank, N.A., as Initial
Issuing Bank, Fleet Bank, N.A., as Swing Line Bank, and Fleet Bank, N.A., as
Administrative Agent for the Lender and the other Lender Parties, on the dates
and in the amounts specified in the Credit Agreement.
The Borrower further promises to pay interest on the unpaid
principal amount of each Acquisition Line Advance from the date of such
Acquisition Line Advance until such principal amount is paid in full, at such
interest rates and at such times as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Fleet Bank, N.A., as Administrative Agent for the
Lender Parties, at ___________ _________________________________________,
Account No.____________, Attention: Loan Administration, in same day funds. Each
Acquisition Line Advance owing to the Lender by the Borrower and the maturity
thereof, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto or any continuation thereof, which is part of this Promissory
Note; provided, however, that the failure of such Lender to so record any such
information or any error in so recording any such information shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any other
Loan Document.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Acquisition Line Advances by
the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Acquisition Line Advance
being evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
This Promissory Note shall be deemed to be in substitution for
and replacement of, and not a repayment of, the Acquisition Line Promissory Note
dated May 27, 1998 made by the Borrower to the Lender (the "Prior Note"),
provided that all principal and interest accrued and unpaid under such Prior
Note shall be deemed evidenced by this Promissory Note and payable hereunder
from and after the date of accrual thereof. The execution and delivery of this
Promissory Note shall not be construed to have constituted repayment of any
amount of principal or interest on the Prior Note.
This Promissory Note shall be governed by and construed in
accordance with the laws of the State of New York.
APPLIED GRAPHICS TECHNOLOGIES, INC.
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By:_____________________________________
Name: __________________________________
Title: _________________________________
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ACQUISITION LINE ADVANCES AND PAYMENTS OF PRINCIPAL
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
AMOUNT OF AMOUNT OF UNPAID PRINCIPAL NOTATION MADE BY
DATE ACQUISITION LINE PRINCIPAL PAID OR BALANCE
ADVANCE PREPAID
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
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EXHIBIT B
TO AMENDMENT NO. 1
FORM OF REPLACEMENT REVOLVING CREDIT PROMISSORY NOTE
$_________________ Dated: ______ __, _____
FOR VALUE RECEIVED, the undersigned, Applied Graphics
Technologies, Inc., a Delaware corporation (the "Borrower"), HEREBY PROMISES TO
PAY to the order of ________________________ (the "Lender") for the account of
its Applicable Lending Office (as defined in the Credit Agreement referred to
below) the principal sum of __________ DOLLARS AND ___ CENTS ($___________) or,
if less, the aggregate unpaid principal amount of the Revolving Credit Advances
owing to the Lender by the Borrower pursuant to the Credit Agreement, dated as
of May 27, 1998 (as amended, supplemented, restated or otherwise modified, the
"Credit Agreement"; terms defined therein being used herein as therein defined),
among the Borrower, the Lender and certain other Lender Parties thereto, First
Union National Bank, as Syndication Agent, BankBoston, N.A., as Documentation
Agent and Fleet Bank, N.A., as Initial Issuing Bank, Fleet Bank, N.A., as Swing
Line Bank, and Fleet Bank, N.A., as Administrative Agent for the Lender and the
other Lender Parties, on the Revolving Credit Termination Date.
The Borrower further promises to pay interest on the unpaid
principal amount of each Revolving Credit Advance from the date of such
Revolving Credit Advance until such principal amount is paid in full, at such
interest rates and at such times as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Fleet Bank, N.A., as Administrative Agent for the
Lender Parties, at ___________________________, ________________________,
Account No.____________, Attention: Loan Administration, in same day funds. Each
Revolving Credit Advance owing to the Lender by the Borrower and the maturity
thereof, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto or any continuation thereof, which is part of this Promissory
Note; provided, however, that the failure of such Lender to so record any such
information or any error in so recording any such information shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any other
Loan Document.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Revolving Credit Advances by
the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Revolving Credit Advance
being evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
This Promissory Note shall be deemed to be in substitution for
and replacement of, and not a repayment of, the Revolving Credit Promissory Note
dated May 27, 1998 made by the Borrower payable to the Lender (the "Prior
Note"), provided that all principal and interest accrued and unpaid under such
Prior Note shall be deemed evidenced by this Promissory Note and payable
hereunder from and after the date of accrual thereof. The execution and delivery
of this Promissory Note shall not be construed to have constituted repayment of
any amount of principal or interest on the Prior Note.
This Promissory Note shall be governed by and construed in
accordance with the laws of the State of New York.
APPLIED GRAPHICS TECHNOLOGIES, INC.
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By:_____________________________________
Name: __________________________________
Title: _________________________________
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REVOLVING CREDIT ADVANCES AND PAYMENTS OF PRINCIPAL
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
AMOUNT OF REVOLVING AMOUNT OF UNPAID PRINCIPAL NOTATION MADE BY
DATE CREDIT ADVANCE PRINCIPAL PAID OR BALANCE
PREPAID
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
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EXHIBIT C
FORM OF OPINION
July __,1998
To the Lenders to the Credit Agreement
referred to below, Fleet Bank, N.A.
as Issuing Bank and Swing Line Bank, and
Fleet Bank, N.A.
as Administrative Agent for such Lenders
Ladies and Gentlemen:
I have acted as counsel to Applied Graphics Technologies,
Inc.(the "Borrower"), a Delaware corporation, in connection with the
preparation, authorization, execution and delivery of, and the consummation of
the transactions contemplated by, Amendment Xx. 0 ("Xxxxxxxxx Xx. 0"), dated as
of the date hereof, to the Credit Agreement dated as of May 27, 1998, among the
Borrower, the banks, financial institutions and other institutional lenders
named therein, First Union National Bank, as Syndication Agent, BankBoston,
N.A., as Documentation Agent and Fleet Bank, N.A., as Initial Issuing Bank,
Swing Line Bank and Administrative Agent (the "Credit Agreement"). Capitalized
terms defined in the Credit Agreement or Amendment No. 1 and used but not
otherwise defined herein are as so defined.
In so acting, I have examined originals or copies, certified
or otherwise identified to my satisfaction, of Amendment No. 1, the Credit
Agreement, the Replacement Notes, and such corporate records, agreements,
documents and other instruments, and such certificates or comparable documents
of public officials and of officers and representatives of the Borrower, and
have made such inquiries of such officers and representatives, as I have deemed
relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, I have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to me as originals, the conformity to original documents of
all documents submitted to me as certified, conformed or photostatic copies, and
the authenticity of the originals of such latter documents. As to all questions
of fact material to this opinion that have not been independently established, I
have relied upon certificates or comparable documents of officers and
representatives of the Borrower and upon the representations and warranties of
the Borrower contained in the Loan Documents.
Based on the foregoing, and subject to the qualifications
stated herein, I am of the opinion that:
1. The Borrower is incorporated, validly existing and in good
standing under the laws of Delaware and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. The Borrower is duly qualified to transact business and
is in good standing as a foreign corporation in each jurisdiction where the
character of its activities requires such qualification, except where the
failure of the Borrower to be so qualified would not have a Material Adverse
Effect.
2. The execution, delivery and performance of the Credit
Agreement as amended by Amendment No. 1 and each of the Replacement Notes by the
Borrower and the consummation by the Borrower of the transactions contemplated
thereby have been duly authorized by all necessary corporate action on the part
of the Borrower. Amendment No. 1 and each of the Replacement Notes has been duly
and validly executed and delivered by the Borrower thereto.
3. The execution, delivery and performance of the Credit
Agreement as amended by Amendment No. 1 and each of the Replacement Notes, the
consummation of the transactions contemplated thereby
29
and compliance by the Borrower with the provisions thereof will not conflict
with, constitute a default under or violate any of the terms, conditions or
provisions of the certificate of incorporation or by-laws of the Borrower.
4. No consent, approval, waiver, license or authorization or
other action by or filing with any Governmental Authority is required in
connection with the execution and delivery by the Borrower of the Credit
Agreement as amended by Amendment No. 1 and each of the Replacement Notes or the
consummation by the Borrower of the transactions contemplated thereby, except
for the filings and other actions required pursuant to state securities or blue
sky laws, as to which I express no opinion, and those already obtained.
The opinions set forth above are subject to the following
qualifications:
I am a member of the Bar of the District of Columbia, and I
express no opinion as to the laws of any jurisdiction other than the laws of the
District of Columbia, the corporate laws of Delaware and the Federal laws of the
United States of America.
The opinions expressed herein are rendered solely for your
benefit in connection with the transactions described herein. Those opinions may
not be used or relied upon by any other person, nor may this letter or any
copies thereof be furnished to a third party, filed with a governmental agency,
quoted, cited or otherwise referred to without my prior written consent, or as
required by law, other than to bank regulatory authorities or permitted assigns
of any Lender Party.
Very truly yours,
30
ANNEX A
31
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
------------------------- ---------------- ----------------- ---------------- -----------------
REVOLVING ACQUISITION SWING LETTER OF CREDIT
CREDIT LINE COMMITMENT LINE COMMITMENT
NAME OF INITIAL LENDER COMMITMENT COMMITMENT
------------------------- ---------------- ----------------- ---------------- -----------------
Fleet Bank, N.A.,as $5,000,000
Initial Issuing Bank
------------------------- ---------------- ----------------- ---------------- -----------------
Fleet Bank, N.A., as $5,000,000
Swing Line Bank
------------------------- ---------------- ----------------- ---------------- -----------------
Fleet Bank, N.A. $27,300,000 $14,700,000
------------------------- ---------------- ----------------- ---------------- -----------------
The Bank of New York $15,600,000 $8,400,000
------------------------- ---------------- ----------------- ---------------- -----------------
First Union National $21,450,000 $11,550,000
Bank
------------------------- ---------------- ----------------- ---------------- -----------------
Mellon Bank, N.A.
------------------------------------ ---------------------------------------
DOMESTIC EURODOLLAR
LENDING LENDING
OFFICE OFFICE
------------------------------------ ---------------------------------------
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
------------------------------------ ---------------------------------------
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
------------------------------------ ---------------------------------------
0000 Xxxxxx of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
------------------------------------ ---------------------------------------
000 Xxxxx Xxxxxx, 0xx Xxxxx 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx Commercial Building Manhattan Commercial Building
Division Division
New York, New York 10036 Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
------------------------------------ ---------------------------------------
------------------------------------ ---------------------------------------
0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx
32
------------------------- ---------------- ----------------- ---------------- -----------------
REVOLVING ACQUISITION SWING LETTER OF CREDIT
CREDIT LINE COMMITMENT LINE COMMITMENT
NAME OF INITIAL LENDER COMMITMENT COMMITMENT
------------------------- ---------------- ----------------- ---------------- -----------------
$ 9,750,000 $ 5,250,000
------------------------- ---------------- ----------------- ---------------- -----------------
BankBoston, N.A. $21,450,000 $11,550,000
------------------------- ---------------- ----------------- ---------------- -----------------
Comerica Bank $11,700,000 $6,300,000
------------------------- ---------------- ----------------- ---------------- -----------------
$7,800,000 $4,200,000
European American Bank
------------------------- ---------------- ----------------- ---------------- -----------------
SunTrust Bank, Atlanta $11,700,000 $6,300,000
------------------------- ---------------- ----------------- ---------------- -----------------
State Street Bank and $11,700,000 $6,300,000
Trust Company
------------------------- ---------------- ----------------- ---------------- -----------------
Bank of America $11,700,000 $6,300,000
National Trust and
Savings Association
------------------------------------ ---------------------------------------
DOMESTIC EURODOLLAR
LENDING LENDING
OFFICE OFFICE
------------------------------------ ---------------------------------------
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
------------------------------------ ---------------------------------------
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
XX-00-00-00 XX-00-00-00
Xxxxxx, XX 02110 Xxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
------------------------------------ ---------------------------------------
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000 Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
------------------------------------ ---------------------------------------
------------------------------------ ---------------------------------------
00 Xxxx Xxxxx, 00xx Xxxxx, 00 Xxxx Xxxxx, 00xx Xxxxx,
Center 112 Center 112
Atlanta, Georgia 30303 Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
------------------------------------ ---------------------------------------
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Contact: Xxxxxxxxxxx X. XxxXxxxxxx Contact: Xxxxxxxxxxx X. XxxXxxxxxx
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
------------------------------------ ---------------------------------------
000 X. XxXxxxx Xxxxxx 000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Contact: Xxxxxx Xxxxxx Contact: Xxxxxx Xxxxxx
33
------------------------- ---------------- ----------------- ---------------- -----------------
REVOLVING ACQUISITION SWING LETTER OF CREDIT
CREDIT LINE COMMITMENT LINE COMMITMENT
NAME OF INITIAL LENDER COMMITMENT COMMITMENT
------------------------- ---------------- ----------------- ---------------- -----------------
------------------------- ---------------- ----------------- ---------------- -----------------
Deutsche Bank AG New $11,700,000 $6,300,000
York and Cayman Island
Branches
------------------------- ---------------- ----------------- ---------------- -----------------
Keybank National $11,700,000 $6,300,000
Association
------------------------- ---------------- ----------------- ---------------- -----------------
Bank of Tokyo- $9,750,000 $5,250,000
Mitsubishi Trust Company
------------------------- ---------------- ----------------- ---------------- -----------------
The Chase Manhattan Bank $11,700,000 $6,300,000
------------------------- ---------------- ----------------- ---------------- -----------------
TOTAL $195,000,000 $105,000,000
------------------------- ---------------- ----------------- ---------------- -----------------
------------------------------------ ---------------------------------------
DOMESTIC EURODOLLAR
LENDING LENDING
OFFICE OFFICE
------------------------------------ ---------------------------------------
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
------------------------------------ ---------------------------------------
Deutsche Bank AG Deutsche Bank AG Cayman islands
New York Branch Branch c/o
00 Xxxx 00xx Xxxxxx Xxx Xxxx Branch
Xxx Xxxx, Xxx Xxxx, 00000 00 Xxxx 00xx Xxxxxx
Fax: (000) 000-0000 Xxx Xxxx, Xxx Xxxx, 00000
Phone: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000
------------------------------------ ---------------------------------------
000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
XX-00-00-0000 OH-01-27-0606
Cleveland, Ohio 44114 Xxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
------------------------------------ ---------------------------------------
BTM Information Services, Inc. BTM Information Services, Inc.
Xxxxxxxxxx, Xxx Xxxxxx 00000 Xxxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000/5636 Fax: (000) 000-0000/5636
Phone: (000) 000-0000 Phone: (000) 000-0000
Contact: Xx. Xxxxxxx Xx, Contact: Xx. Xxxxxxx Xx,
Operations Officer Operations Officer
------------------------------------ ---------------------------------------
000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
------------------------------------ ---------------------------------------
