Exhibit 10.44
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
AMENDMENT, dated as of December 30, 1998 ("AMENDMENT"), to the
Credit Agreement dated as of November 20, 1998 (as amended hereby and from time
to time hereafter, the "CREDIT AGREEMENT"), by and among POLYVISION CORPORATION,
a New York corporation ("POLYVISION"), POSTERLOID CORPORATION, a Delaware
corporation ("POSTERLOID"), GREENSTEEL, INC., a Delaware corporation
("GREENSTEEL") (each of PolyVision, Posterloid and Greensteel, a "BORROWER" and
collectively, the "BORROWERS"), the banks, financial institutions and other
institutional lenders from time to time party thereto (each a "LENDER" and
collectively, the "LENDERS"), KBC BANK N.V. ("KBC" or "KBC LENDER"), FLEET
NATIONAL BANK, as the Initial Issuing Bank, SwingLine Bank, European Letter of
Credit Bank ("FLEET," and together with KBC, each a "SENIOR LENDER" and together
the "SENIOR LENDERS") and Fleet National Bank as administrative agent for the
Lenders (in such capacity, together with its successors in such capacity, the
"ADMINISTRATIVE AGENT").
W I T N E S S E T H:
WHEREAS, the Borrowers have requested that the Lenders and the
Administrative Agent (a) consent to (i) the issuance and sale of certain 12.5%
Senior Subordinated Notes in the aggregate principal amount of $25,000,000 and
certain Warrants by PolyVision to Xxxx Xxxxxxx Mutual Life Insurance Company,
Xxxxxxx Mezzanine Partners L.P. and Xxxx Xxxxxxx Variable Life Insurance Company
(each a "Purchaser" and together the "Purchasers") pursuant to a Senior
Subordinated Note and Warrant Purchase Agreement dated as of the date hereof and
more fully identified below (as defined below, the "Subordinated Note
Agreement"), (ii) the use of the proceeds of such sale to prepay the Bridge Loan
and terminate the Bridge Loan Warrant (as such terms are defined in the
Subordinated Note Agreement), and (b) make certain other changes in the Credit
Agreement as hereinafter set forth; and
WHEREAS, capitalized terms used and not defined herein shall
have the respective meanings ascribed thereto in the Credit Agreement except as
otherwise indicated herein;
NOW, THEREFORE, in consideration of the premises, the
Borrowers, the Lenders, the Senior Lenders and the Administrative Agent agree as
follows:
ARTICLE I. AMENDMENTS TO CREDIT AGREEMENT.
This Amendment to Credit Agreement shall be deemed to be an
amendment to the Credit Agreement, and shall not be construed in any way as a
replacement therefor. All of the terms and provisions of this Amendment ,
including, without limitation, the representations and warranties set forth
herein, are hereby incorporated by reference into the Credit Agreement as if
such terms and provisions were set forth in full therein. The Credit Agreement
is hereby amended, effective as of the Effective Date (as defined in Section 5.1
hereof) upon the satisfaction of the conditions precedent set forth in Article V
hereof, in the following respects.
1.1 Paragraph 3(c) of the Preliminary Statements is amended to correct
the following typographical errors: the reference to "BEF 640,240,846" in clause
(a) is replaced with "BEF 378,015,000 with respect to PolyVision Belgium and
PolyVision France (and BEF 897,978,347 in the aggregate when taken together with
the amendment and restatement of the credit facility referred to in the
following clause (b) "; and the reference to "Twenty-Six Million One Hundred
Thirty Thousand Six Hundred Eight ($26,130,608)" in clause (c) is replaced with
"Eighteen Million Six Hundred Thirty Thousand Six Hundred Eight ($18,630,608)".
1.2 The definitions of "SENIOR SUBORDINATED NOTES" and "SENIOR
SUBORDINATED NOTE AGREEMENT" appearing in Section 1.1 of the Credit Agreement
are amended and restated in their entireties to read as follows:
"SENIOR SUBORDINATED NOTES" means, collectively, the Senior
Subordinated Note and Warrant Purchase Agreement dated as of
December 30, 1998 among PolyVision, Posterloid, Greensteel,
and the Purchasers thereunder, relating to the issuance of $25
million in Senior Subordinated Notes together with all
exhibits, attachments, annexes and schedules thereto and all
agreements, instruments and documents executed or delivered
pursuant thereto as in effect on December 30, 1998 with such
amendments, modifications and supplements thereto or
replacements thereof as are permitted to be made in accordance
with the terms of this Agreement.
"SENIOR SUBORDINATED NOTE AGREEMENT" (or "SENIOR SUBORDINATED
LOAN AGREEMENT") means the Senior Subordinated Note and Warrant Purchase
Agreement referred to in the definition of "Senior Subordinated Notes".
1.3 Section 5.21, "GRANT OF SECURITY INTEREST IN FOREIGN DEBT" is
amended to replace all references to "Administrative Agent" with "KBC."
1.4 Section 6.1(f), "LIENS, ETC." is amended to replace the reference
to "Section 4.14(a)" with a reference to "Section 3.8".
1.5 Section 6.2(c) (iv), "DEBT", is amended to add at the conclusion
thereof the following:
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"PROVIDED, FURTHER, that if any prepayment penalty or similar
amount is actually paid by any of the Borrowers upon any
refinancing of the Senior Subordinated Notes (as such term is
defined herein after giving effect to Amendment No. 1 to this
Agreement) an amount equal to the aggregate sum of (1) plus
(2) and the costs and expenses associated with such
refinancing shall be added to the principal amount of the
Senior Subordinated Notes; and"
1.6 Section 6.7, "DIVIDENDS, ETC.", is amended to include the following
words immediately after the first reference therein to "dividends":
", make any payments in the nature of or in lieu of dividends
to holders of warrants"
1.7 Section 6.7(a), "DIVIDENDS, ETC.", is amended as follows
(underlined text indicates additions):
"(a) PolyVision and any Borrower may declare and pay dividends
and distributions payable solely in common stock of PolyVision
or such Borrower; and the Borrowers and Subsidiaries may,
subject to the applicable subordination provisions of the
Senior Subordinated Note Agreement pay dividends and
distributions to PolyVision in an amount equal to interest AND
SCHEDULED PRINCIPAL PAYMENTS (but no sooner than (2) days
prior to the due date of such PRINCIPAL OR interest payments)
payable from time to time in respect of the Senior
Subordinated Notes, [remainder of paragraph is unchanged]..."
1.8 Section 6.13(b)(ii) , "AMENDMENT OF MATERIAL CONTRACTS", is amended
to delete the period at the conclusion of clause (b)(ii) and to insert in lieu
thereof the following:
"; and none of the "Transaction Documents" as defined in the
Senior Subordinated Note Agreement (as defined herein after
giving effect to Amendment No. 1 to this Agreement) relating
to the warrants issued pursuant thereto shall mandate or
require the Borrowers to, and no holder thereof shall have the
right to require the Borrowers to, (i) declare or pay any cash
dividends or cash distributions in respect thereof (other than
payments to warrant holders in lieu of dividends on common
stock (which payments of dividends are not permitted to be
made hereunder) on the terms set forth in the Warrant
Agreement or Warrants (as defined in the Senior Subordinated
Note Agreement as in effect on the date of Amendment No. 1 to
this Agreement), or (ii) purchase, redeem, retire, defease or
otherwise acquire for cash any of its capital stock, warrants,
options or rights to acquire such capital stock (provided that
the terms of this clause (ii) shall not be deemed to limit the
rights of the holders of the warrants issued in connection
with the Senior Subordinated Note Agreement (as in effect on
the date of Amendment No. 1 to this Agreement) under Section
5.01 of said Agreement in respect of anti-dilution protection
for such warrants) or (iii) issue securities in respect
thereof which payments of or in respect of which are not
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subordinate to the Obligations under the Loan Documents, and,
PROVIDED, further that no such equity interests shall contain
any rights, whether or not on conversion or otherwise that, if
exercisable or exercised at any time could result in a Change
of Control."
1.9 Section 6.13(b)(ii) , "AMENDMENT OF MATERIAL CONTRACTS", is amended
to read as follows in clause (vi) (underlined text indicates additions):
"(vi) provide for any security in respect of the obligations
under the Senior Subordinated Note Agreement OTHER THAN AS PERMITTED BY SECTION
6.1(F) [reminder of clause is unchanged] . . ."
1.10 Section 6.18, "ISSUANCE OF STOCK," is amended to add the following
new subparagraph (f):
"and (f) PolyVision may issue the warrants described
in the Senior Subordinated Note Agreement and the
shares of its common stock or other securities
required to be issued by it pursuant to the terms of
the "Warrants" and "Warrant Agreement" (as such terms
are defined in the Senior Subordinated Note
Agreement) (as such Warrants and Warrant Agreement
are in effect on the date of Amendment No. 1 to this
Agreement) upon exercise of any such warrant subject
to the provisions of Section 6. 13(b)(ii)."
1.11 Section 6.22, "RETENTION OF CASH," is amended as follows
(underlined text indicates additions):
"SECTION 6.22 RETENTION OF CASH. Retained cash at
PolyVision or in any accounts of PolyVision except
for such amounts as are reasonably expected to be
used for the payments of amounts contemplated
hereunder OR THE SENIOR SUBORDINATED NOTE AGREEMENT
OR THE SENIOR SUBORDINATED NOTES (SUBJECT TO THE
SUBORDINATION PROVISIONS IN SUCH AGREEMENT AND NOTES)
and are due within a reasonably short period of time"
[remainder of Section unchanged].
ARTICLE II. ACKNOWLEDGMENT UNDER KBC LOAN AGREEMENTS.
2.1 The KBC Lender acknowledges that the definition "Senior
Subordinated Loan Agreement" in each KBC Loan Agreement is a reference to the
"Senior Subordinated Note Agreement" in the Credit Agreement after giving effect
to this Amendment No. 1.
ARTICLE III. CONSENT TO SENIOR SUBORDINATED NOTE AGREEMENT.
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3.1 The Lenders, Fleet and the Administrative Agent hereby consent to
the execution and delivery by the Company and its Subsidiaries of the Senior
Subordinated Note Agreement and the Senior Subordinated Notes as defined in
Section 1.2 hereof (herein sometimes referred to as the "Subordinated Note
Agreement"), the related Warrant Agreement, the related Warrants, the related
Registration Agreement and the Intracompany Subordination Agreement all in
substantially the form of the drafts dated December 30, 1998 (with appropriate
completion of blanks (the "Subordination Documents") (to the extent each is a
party thereto) and their performance of their obligations thereunder (subject to
Section 7 of the Subordinated Note Agreement) and the issuance and sale of the
Senior Subordinated Notes and Warrants by the Company are hereby consented to by
the Lenders, Fleet, the Administrative Agent and the KBC Lender.
3.2 The Lenders, Fleet, the Administrative Agent and the KBC Lender
hereby confirm that none of (i) the execution and delivery by the Company and
its Subsidiaries of the Senior Subordinated Note Agreement, the Senior
Subordinated Notes, the related Warrant Agreement, the related Warrants, the
related Registration Agreement and the related Intracompany Subordination
Agreement (to the extent each is a party thereto); (ii) the issuance and sale of
the Notes and Senior Subordinated Notes and Warrants by the Company; and (iii)
the use of the proceeds thereof to prepay the Bridge Loan and terminate the
Bridge Loan Warrant constitute a "Default" or "Event of Default" under the
Credit Agreement or the KBC Loan Agreements.
3.3 The Lenders, Fleet, the Administrative Agent and the KBC Lender
acknowledge and agree that the Purchasers, in connection with their execution
and delivery of the Subordinated Note Agreement, may rely on: (i) the due
authorization of each officer of a Lender, Fleet, the Administrative Agent or
the KBC Lender executing this Amendment on behalf of such Lender, Fleet, the
Administrative Agent and the KBC Lender and (ii) the Lenders, Fleet, the
Administrative Agent and the KBC Lender party hereto as being the sole parties
under the Credit Agreement and the KBC Loan Agreements whose consent are
required to take the action being taken hereby.
ARTICLE IV. REPRESENTATION AND WARRANTIES OF BORROWERS.
Each of the Borrowers represents and warrants as follows:
4.1 Each Borrower has the power to execute and deliver this Amendment
and to perform the Credit Agreement, as amended hereby, and the transactions
contemplated hereby and each Borrower has taken all necessary action, corporate
or otherwise, to authorize the execution and delivery of this Amendment, the
performance of the Credit Agreement, as amended hereby, and the delivery of and
performance under the Subordinated Documents. No consent or approval of any
Person (including, without limitation, any stockholder of any Borrower), no
consent or approval of any landlord or mortgagee, no waiver of any Lien or right
of distraint or other similar right and no consent, license, approval,
authorization or declaration of any governmental authority, bureau or agency, is
or will be required in connection with the execution or delivery by any Borrower
of this Amendment or the performance by any Borrower, or the validity or
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enforcement of the Credit Agreement as amended hereby or of the transactions
contemplated hereby.
4.2 The execution and delivery by the Borrower of this Amendment and
performance by it hereunder and under the Credit Agreement as amended hereby,
does not and will not violate any provision of law (including, without
limitation, the Xxxxxxxx Act, Sections 13 and 14 of the Securities and Exchange
Act of 1934, and the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, and
Regulations U, G and X of the Board of Governors of the Federal Reserve System
and the rules and regulations promulgated thereunder) and does not and will not
conflict with or result in a breach of any order, writ, injunction, ordinance,
resolution, decree, or other similar document or instrument of any court or
governmental authority, bureau or agency, domestic or foreign, or any
certificate of incorporation or by-laws of any Borrower or create (with or
without the giving of notice or lapse of time, or both) a default under or
breach of any agreement, instrument, document, bond, note or indenture to which
any Borrower is a party, or by which it is bound or any of its properties or
assets is affected, or result in the imposition of any Lien of any nature
whatsoever upon any of the properties or assets owned by or used in connection
with the business of the Borrowers, except for the Liens created and granted
pursuant to the Security Documents or otherwise permitted under the Credit
Agreement.
4.3 This Amendment has been duly executed and delivered by the
Borrowers and this Amendment and the Credit Agreement as amended hereby each
constitutes the valid and legally binding obligation of the Borrowers,
enforceable in accordance with its terms.
4.4 The Liens granted pursuant to the Security Documents secure,
without limitation, the Obligations under the Credit Agreement as amended by
this Amendment whether or not so stated in the Security Documents. The terms
"Obligations" as used in the Security Documents (or any other term used therein
to refer to the Indebtedness, liabilities and obligations of the Borrower to the
Lenders) include, without limitation, Indebtedness, liabilities and obligations
to the Lenders under the Credit Agreement as amended by this Amendment.
4.5 The representations and warranties contained herein and in the
Credit Agreement and other Loan Documents are correct on and as of the Effective
Date after giving effect to this Amendment as though made on and as of such date
except for changes in the ordinary course of business not prohibited by the
Credit Agreement and not individually or in the aggregate having a Material
Adverse Effect, and (ii) no Default or Event of Default has occurred and is
continuing on the Effective Date or would result from the taking effect of this
Amendment; and execution and delivery hereof by the Borrowers shall constitute
confirmation that the terms of this Section 4.5 are true and correct.
ARTICLE V. CONDITIONS PRECEDENT.
5.1 EFFECTIVE DATE CONDITIONS. The effectiveness of the amendments set
forth in Article I hereof shall be subject to the fulfillment by the Borrowers,
in a manner satisfactory to the Administrative Agent and the Lenders, of all of
the conditions precedent set forth in this Article V, and the date on which the
last of all such conditions shall have been fulfilled to the
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satisfaction of the Administrative Agent and the Lenders, shall be herein called
the "EFFECTIVE DATE":
(a) The Borrower, the Lenders and the Administrative Agent
shall have executed and delivered this Amendment.
(b) The Borrowers shall have paid all outstanding fees and
expenses of counsel to the Administrative Agent incurred in connection herewith.
(c) All legal matters incident to this Amendment and the
Credit Agreement shall be reasonably satisfactory to the Administrative Agent
and counsel to the Administrative Agent.
Article VI. MISCELLANEOUS.
6.1 The Credit Agreement and the other agreements to which any Borrower
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 Effective Date (a) 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, (b) all references in the Credit
Agreement, the Security 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.
6.2 The Credit Agreement 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. Except as so amended hereby, the Credit Agreement
and the other Loan Documents shall remain in full force and effect in accordance
with their respective terms. The execution and delivery of this Amendment by the
Borrowers, the Lenders and the Administrative Agent shall not waive or be deemed
to waive any default which has occurred or which may be occurring in respect of
the Credit Agreement.
6.3 The miscellaneous provisions under Article 11 of the Credit
Agreement, together with the definitions of all terms used therein, and all
other Sections of the Credit Agreement to which such Sections refer are hereby
incorporated by reference as if the provisions thereof were set forth in full
herein.
6.4 This Amendment may be executed in counterparts by the parties
hereto, and each such counterpart shall be considered an original, and all such
counterparts shall constitute one and the same instrument.
6.5 THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF
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CONFLICTS OF LAWS), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment No. 1 to the Credit Agreement to be duly executed as of the date first
above written.
POLYVISION CORPORATION
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
POSTERLOID CORPORATION
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
GREENSTEEL, INC.
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
FLEET NATIONAL BANK,
as Administrative Agent, as European
Letter of Credit Bank as Initial Issuing Bank,
as SwingLine Bank, as a Lender
By: /s/ XXXX XXXX
--------------------------------
Name: Xxxx Xxxx
Title: Director
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KBC BANK N.V.,
as a Lender under the Credit Agreement
and each of the KBC Loan Agreements
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: First Vice President
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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