Exhibit 10.45
AMENDMENT AND SUPPLEMENT NO. 2
TO
CREDIT AGREEMENT
AGREEMENT, made as of this 19th day of August, 1999, 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 financial institutions which have executed the signature
pages annexed hereto (individually, a "LENDER PARTY" and collectively, the
"LENDER PARTIES");
UNION BANK OF CALIFORNIA, N.A., as syndication agent;
FLEET NATIONAL BANK, as European Letter of Credit Bank,
Initial Issuing Bank, Swing Line Bank and Administrative Agent (in its capacity
as Administrative Agent, together with its successors in such capacity, the
"ADMINISTRATIVE AGENT");
WHEREAS:
(A) The Borrowers are indebted to the Lender Parties pursuant
to a Credit Agreement dated as of November 20, 1998 (as amended by Amendment No.
1 to Credit Agreement dated as of December 30, 1998, and as it is hereby and as
it may hereafter from time to time be further amended, modified or supplemented,
the "CREDIT AGREEMENT");
(B) The Borrowers have requested and the Lender Parties and
the Administrative Agent have agreed, upon the terms and conditions set forth
herein, (i) to permit the acquisition by PolyVision, of 100% of the issued and
outstanding capital stock of X. Xxxxx Corporation, a California corporation
("XXXXXX XXXXX") from the "Sellers" as identified in the Stock Purchase
Agreement dated May 17, 1999 relating to such proposed transaction
(collectively, the "SELLER") for an aggregate cash purchase price not to exceed
Twenty Four Million Dollars ($24,000,000) before fees and expenses and Six
Million Dollars ($6,000,000) in the form of Series D Convertible Preferred Stock
of PolyVision, (ii) to increase the Term A Facility by an aggregate principal
amount of Eleven Million ($11,000,000) Dollars, which amount shall be used to
finance, in part, the Xxxxxx Xxxxx Acquisition (as hereinafter defined), (iii)
to increase the Term B Facility by an aggregate principal amount of Eleven
Million ($11,000,000) Dollars, which amount shall be used to finance, in part,
the Xxxxxx Xxxxx Acquisition, (iv) to amend and restate Sections 2.4(a) and
2.4(b) of the Credit Agreement relating to the repayment of the Term A Advances
and the Term B Advances, (v) to amend and restate the grid set forth in the
definition of "APPLICABLE MARGIN" in the Credit Agreement so as to change the
interest rates applicable to the Revolving Credit Advances, the Term A Advances
and the Term B Advances, (vi) to reflect the creation of Xxxxxx Xxxxx as a new
Subsidiary of
PolyVision (which is expected to be merged into Greensteel immediately
subsequent to the Xxxxxx Xxxxx Acquisition (as hereinafter defined) (the "XXXXXX
XXXXX MERGER")) and which is to become a Guarantor under the terms of Credit
Agreement and a grantor of liens to the Administrative Agent, (vii) to add new
Lenders; and (viii) to revise certain other provisions of the Credit Agreement;
(C) PolyVision will pledge the capital stock of Xxxxxx Xxxxx
to the Administrative Agent in accordance with the Initial Security Agreement;
and
(D) All capitalized terms that are used herein without
definition and which are defined in the Credit Agreement shall have the
respective meanings ascribed thereto therein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I.
AMENDMENTS TO CREDIT AGREEMENT.
This Amendment and Supplement No. 2 to Credit Agreement shall
be deemed to be an amendment and supplement 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 and Supplement No. 2 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 upon
the satisfaction of the conditions precedent set forth in Article V hereof, in
the following respects:
1.1. Article 1, "DEFINITIONS", is amended to insert the
following new definitions where alphabetically appropriate:
"X. XXXXX CORPORATION" means X. Xxxxx Corporation, a
California corporation that became a Wholly-Owned Subsidiary of PolyVision upon
the consummation of the Xxxxxx Xxxxx Acquisition and that was subsequently
merged into Greensteel on or about the date of Amendment No. 2.
"AMENDMENT NO. 2" means Amendment and Supplement No. 2 to this
Credit Agreement dated as of August 19, 1999, among the Borrowers, the Lender
Parties signatory thereto and the Administrative Agent.
"AMENDMENT NO. 2 EFFECTIVE DATE" means the date set forth in
Amendment No. 2 as the "Amendment No. 2 Effective Date".
"AMENDMENT NO. 2 TERM A BORROWING" means the Term A Advances
made by the Term A Lenders pursuant to the Credit Agreement as amended by
Amendment No. 2.
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"AMENDMENT NO. 2 TERM B BORROWING" means the Term B Advances
made by the Term B Lenders pursuant to the Credit Agreement as amended by
Amendment No. 2.
"XXXXXX XXXXX ACQUISITION" means the acquisition by PolyVision
of all of the issued and outstanding capital stock of X. Xxxxx Corporation,
pursuant to the Xxxxxx Xxxxx Stock Purchase Agreement.
"XXXXXX XXXXX ACQUISITION DOCUMENTS" means the Xxxxxx Xxxxx
Stock Purchase Agreement and each of the other agreements, instruments, and
documents executed or delivered by any of the parties thereto or their
respective Subsidiaries pursuant thereto or in connection herewith, and all
schedules and exhibits related to such agreement including, without limitation,
the Escrow Agreement relating thereto.
"XXXXXX XXXXX STOCK PURCHASE AGREEMENT" means the Stock
Purchase Agreement dated as of May 17, 1999, as amended on July 26, 1999 (as it
may from time to time be further amended, supplemented, restated or otherwise
modified to the extent not prohibited under this Agreement), by and among
PolyVision and the holders of all of the issued and outstanding capital stock of
X. Xxxxx Corporation, together with all schedules, exhibits and annexed thereto
or delivered as a part thereof.
"XXXXXX XXXXX TRANSACTION" means the transactions contemplated
by the Xxxxxx Xxxxx Acquisition Documents and by Amendment No. 2.
1.2. The grid set forth in the definition of "APPLICABLE
MARGIN" is amended and restated to read as follows:
Applicable Margin for
REVOLVING CREDIT ADVANCES AND TERM A ADVANCES
Applicable Margin for Applicable Margin for Consolidated Debt to
Eurodollar Rate Advances Prime Rate Advances Ebitda Ratio
------------------------ ------------------- ------------
3% 1.75% Equal to or greater than 4.5:1.0
2.75% 1.50% Equal to or greater than
4.0:1.0 but less than 4.5:1.0
2.50% 1.25% Equal to or greater than
3.5:1.0 but less than 4.0:1.0
2.25% 1% Less than 3.5:1.0
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APPLICABLE MARGIN FOR TERM B ADVANCES
Applicable Margin for Applicable Margin for Consolidated Debt to
Eurodollar Rate Advances Prime Rate Advances Ebitda Ratio
------------------------ ------------------- ------------
3.50% 2.25% Equal to or greater than 4.0:1.0
3.25% 2% Less than 4.0:1.0
1.3. The definition of "Fiscal Year" is amended to change
"April 30" to read "December 31".
1.4. The definition of "Material Adverse Effect" is amended to
add immediately following the words "on the Closing Date" the words "and after
giving effect to the consummation of the Xxxxxx Xxxxx Acquisition on the
Amendment No. 2 Effective Date".
1.5. The definition of "Existing Debt" is amended and restated
to read "means Debt of the Borrowers and their Subsidiaries outstanding
immediately before giving effect to the Transaction and (as of the date of
Amendment No. 2) the Xxxxxx Xxxxx Transaction and described in SCHEDULE
4.19(A)."
1.6. Section 2.1(a), "THE TERM A ADVANCES", is amended and
restated to read as follows:
(a) THE TERM A ADVANCES. (i) The Borrowers acknowledge that
each of the Term A Lenders (other than Union Bank of
California, N.A, Greater Bay Corporate Finance, a division of
Cupertino National Bank (hereinafter, "GREATER BAY") and
SunTrust Bank, Atlanta (hereinafter, "SUNTRUST"), which became
Lenders pursuant to Amendment No. 2) has made a Term A Advance
to the Borrowers on the Closing Date (or assumed a portion
thereof by assignment thereafter) in an amount equal to such
Term A Lender's Term A Commitment as in effect on such date
(or as assumed by such Lender after the Closing by
assignment). Each Term A Lender (other than Union Bank of
California, N.A,
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Greater Bay and SunTrust) severally agrees, on the terms and
conditions hereinafter set forth, to make a second Term A
Advance to the Borrowers on the Amendment No. 2 Effective Date
which shall constitute a refinancing of the existing Term A
Advances. Each of Union Bank of California, N.A, Greater Bay
and Sun Trust severally agrees, on the terms and conditions
hereinafter set forth, to make a Term A Advance to the
Borrowers on the Amendment No. 2 Effective Date; (ii) each
aforementioned Term A Advance to be in the principal amount
equal to such Lender's Term A Commitment as it exists on the
effectiveness of Amendment No. 2, with the aggregate increase
of the Term A Advances being $11,000,000. Each Term A
Borrowing shall consist of Term A Advances made simultaneously
by the Term A Lenders ratably according to their Term A
Commitments as in effect on the date of the relevant Term A
Borrowing. Amounts borrowed under this Section 2.1(a) and
repaid or prepaid may not be reborrowed.
1.7. Section 2.1(b), "THE TERM B ADVANCES", is amended and
restated to read as follows:
(b) THE TERM B ADVANCES. (i) The Borrowers acknowledge that
each of the Term B Lenders (other than Union Bank of
California, N.A., Greater Bay and SunTrust, which became
Lenders pursuant to Amendment No. 2) has made a Term B Advance
to the Borrowers on the Closing Date (or assumed a portion
thereof by assignment thereafter) in an amount equal to such
Term B Lender's Term B Commitment as in effect on such date
(or as assumed by such Lender after the Closing by
assignment). Each Term B Lender (other than Union Bank of
California, N.A., Greater Bay and SunTrust) severally agrees,
on the terms and conditions hereinafter set forth, to make a
second Term B Advance to the Borrowers on the Amendment No. 2
Effective Date which shall constitute a refinancing of the
existing Term B Advances. Each of Union Bank of California,
N.A, Greater Bay and SunTrust severally agrees, on the terms
and conditions hereinafter set forth, to make a Term B Advance
to the Borrowers on the Amendment No. 2 Effective Date; (ii)
each aforementioned Term B Advance to be in the principal
amount equal to such Lender's Term B Commitment as it exists
on the effectiveness of Amendment No. 2, with the aggregate
increase of the Term B Advances being $11,000,000. Each Term B
Borrowing shall consist of Term B Advances made simultaneously
by the Term B Lenders ratably according to their Term B
Commitments as in effect on the date of the relevant Term B
Borrowing. Amounts borrowed under this Section 2.1(b) and
repaid or prepaid may not be reborrowed.
1.8. Section 2.1(d) is amended to insert the words "Revolving
Credit" prior to the words "Termination Date" in the last sentence of such
section. Section 2.1(d) is also
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amended to replace the phrase "this Section 2.1 (e)" each time it appears in
such section with the phrase "this Section 2.1(d)."
1.9. Section 2.1(e) is amended to replace the phrase "this
Section 2.1(f)" each time it appears in such section with "this section 2.1(e)."
1.10. (a) The grid set forth in Section 2.4(a) relating to
repayment of Term A Advances, is amended and restated to read as follows:
--------------------------------------------------------------------------------
Date Amount
---- ------
--------------------------------------------------------------------------------
October 31, 1999 $ 206,554.09
--------------------------------------------------------------------------------
Each of January 31, April 30, July 31 and October 31, 2000 $649,887.84
--------------------------------------------------------------------------------
Each of January 31, April 30, July 31 and October 31, 2001 $774,415.51
--------------------------------------------------------------------------------
Each of January 31, April 30, July 31 and October 31, 2002 $865,316.56
--------------------------------------------------------------------------------
Each of January 31, April 30, July 31 and October 31, 2003 $1,212,163.52
--------------------------------------------------------------------------------
Each of January 31, April 30, July 31 and October 31, 2004 $284,010.47
--------------------------------------------------------------------------------
(b) The grid set forth in Section 2.4(b) relating to
repayment of Term B Advances, is amended and restated to read as follows:
--------------------------------------------------------------------------------
Date Amount
---- ------
--------------------------------------------------------------------------------
October 31, 1999 $65,000.00
--------------------------------------------------------------------------------
Each of January 31, April 30, July 31 and October 31, 2000 $77,500.00
thereafter continuing until (and including) October 31,
2003
--------------------------------------------------------------------------------
Each of January 31, April 30, July 31 and October 31, 2004 $1,610,273.00
--------------------------------------------------------------------------------
Each of January 31, April 30, July 31 and October 31, 2005 $5,785,352.00
--------------------------------------------------------------------------------
1.11. Section 2.6(b)(i), "PREPAYMENTS", is amended as follows:
(a) to insert in the first line immediately after the words "Fiscal Year" the
following "(commencing December 31, 1999)";
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(b) to change the proviso to delete clauses (B) and (C)
thereof, to delete the "(A)" (but not the text of clause (A)) and to change the
semi-colon at the conclusion of the remaining proviso to a period.
1.12. Section 2.6(b)(iv), "PREPAYMENTS", is amended to add a
new sentence at the conclusion thereof to read as follows:
Within fifteen (15) days after receipt by PolyVision of any
sums held in escrow under the escrow agreement executed in
connection with the Xxxxxx Xxxxx Acquisition, to the extent
that such sums are not required to be paid to a third party or
to cover expenses of the Borrowers incurred in connection with
an indemnity claim relating to the Xxxxxx Xxxxx Acquisition,
the Borrowers shall prepay the outstanding Advances in an
amount equal to one hundred percent (100%) of such sums.
1.13. Section 2.14, "USE OF PROCEEDS" is amended and restated
to read as follows:
SECTION 2.14 USE OF PROCEEDS. (a) The proceeds of the Advances
and issuances of Letters of Credit (other than the Advances
made on the Amendment No. 2 Effective Date) shall be
available, and the Borrowers shall use such proceeds and
Letters of Credit solely (i) to finance in part the AIG
Acquisition, (ii) to pay fees and expenses incurred in
connection with the AIG Acquisition and the Transaction, and
(iii) to finance working capital and capital expenditures of
the Borrowers, but not in any event to finance the Xxxxxx
Xxxxx Acquisition, nor shall any Revolving Credit Advances be
borrowed in anticipation of the Xxxxxx Xxxxx Acquisition, and
(b) the proceeds of the Term A Borrowing and the Term B
Borrowing made on the Amendment No. 2 Effective Date shall be
used to finance, in part, the Xxxxxx Xxxxx Acquisition, and to
refinance the Term A Borrowing and the Term B Borrowing made
on the Closing Date.
1.14. Sections 4.27 and 11.4(b) are amended to add immediately
following the words "Transaction" or "Transactions" the phrase "or the Xxxxxx
Xxxxx Transaction."
1.15. Section 5.15, "PERFORMANCE OF AIG ACQUISITION
DOCUMENTS", is amended to add immediately following the words "AIG Acquisition
Document", the first time they appear in Section 5.15, the following: "(which
capitalized term shall, for purposes of this Section 5.15, be deemed to include
reference to the Xxxxxx Xxxxx Acquisition Documents)".
7
1.16. A new Section 5.22 is added to the Credit Agreement to
read in its entirety as follows:
5.22 XXXXXX XXXXX FINANCIALS. The Lender Parties shall have
received on or before the date which is 75 days following the
consummation of the Xxxxxx Xxxxx Acquisition, audited financial
statements for Xxxxxx Xxxxx' fiscal years ended 1996, 1997 and 1998
prepared by Xxxxxx Xxxxxxxx LLP, in form and substance (excluding in
immaterial respects) satisfactory to the Required Lenders.
1.17. Section 6.6, "INVESTMENTS IN OTHER PERSONS", is amended
to delete the final indented paragraph at the conclusion thereof following
subsection (i).
1.18. Section 6.7, "DIVIDENDS, ETC." is amended to insert in
clause (d) immediately after the words "preferred stock" the following:
"(excluding, however, the Series D Preferred Stock)".
1.19. Section 6.12, "AMENDMENT, ETC. OF AIG ACQUISITION
DOCUMENTS", is amended to add immediately following the words "AIG Acquisition
Document", the first time they appear in Section 6.12, the following: "(which
capitalized term shall, for purposes of this Section 6.12, be deemed to include
reference to the Xxxxxx Xxxxx Acquisition Documents)".
1.20. Section 6.17, "CAPITAL EXPENDITURES", is amended to
change the chart set forth therein to read in its entirety as follows:
Period Amount
------ ------
Fiscal Year ended December 31, 1999 $3,000,000.00
Fiscal Year ended December 31, 2000 $3,000,000.00
Each Fiscal Year thereafter $3,500,000.00
1.21. A new Section 6.24 is added to the Credit Agreement to
read in its entirety as follows:
6.24 LOYALTY PAYMENTS AND INCENTIVE PLAN PAYMENTS. The
Borrowers will not, and will not permit any of their Subsidiaries, to
(a) make any Loyalty Payments, as such term is defined in Section 11 of
the amendment to the Xxxxxx Xxxxx Stock Purchase Agreement dated July
26, 1999("the Xxxxxx Xxxxx Amendment"), or (b) make any payments
pursuant to the existing Xxxxxx Xxxxx Incentive Plan including, without
limitation, any payments described in Section 5 of the Xxxxxx Xxxxx
Amendment, unless
8
(i) no Default or Event of Default would exist after making any such
Loyalty Payments or Xxxxxx Xxxxx Incentive Plan payments and (ii) the
Borrowers are in compliance with the financial covenants set forth in
Article 8 for the period ending March 31, 2000 and the reporting
requirements set forth in Section 7.3 for the period ending March 31,
2000.
1.22. Sections 8.1, 8.2 and 8.3, "CONSOLIDATED DEBT TO EBITDA
RATIO" and "INTEREST COVERAGE RATIO" and "FIXED CHARGE COVERAGE RATIO", are
amended and restated in their entireties to read in each case as follows:
8.1 CONSOLIDATED DEBT TO EBITDA RATIO. Maintain as of the end
of each fiscal quarter of the Borrowers a Consolidated Debt to EBITDA
Ratio of not more than the ratio set forth below:
---------------------------------------------------------------------
Date of Determination: Maximum Ratio
---------------------------------------------------------------------
September 30, 1999 5.00 to 1.0
---------------------------------------------------------------------
December 31, 1999 5.00 to 1.0
---------------------------------------------------------------------
March 31, 2000 4.75 to 1.0
---------------------------------------------------------------------
June 30, 2000 4.75 to 1.0
---------------------------------------------------------------------
September 30, 2000 4.25 to 1.0
---------------------------------------------------------------------
December 31, 2000 4.25 to 1.0
---------------------------------------------------------------------
March 31, 2001 4.25 to 1.0
---------------------------------------------------------------------
June 30, 2001 4.25 to 1.0
---------------------------------------------------------------------
September 30, 2001 3.75 to 1.0
---------------------------------------------------------------------
December 31, 2001 3.75 to 1.0
---------------------------------------------------------------------
March 31, 2002 3.75 to 1.0
---------------------------------------------------------------------
June 30, 2002 3.75 to 1.0
---------------------------------------------------------------------
September 30, 2002 3.25 to 1.0
---------------------------------------------------------------------
December 31, 2002 3.25 to 1.0
---------------------------------------------------------------------
March 31, 2003 3.25 to 1.0
---------------------------------------------------------------------
June 30, 2003 3.25 to 1.0
---------------------------------------------------------------------
September 30, 2003 through (and including) September 2.75 to 1.0
30, 2005
---------------------------------------------------------------------
PROVIDED, HOWEVER, that for purposes of calculating EBITDA for
the most recently completed four fiscal quarters of the Borrowers ending on each
of the following dates, there shall be added to such EBITDA the amounts set
forth next to such dates (representing in each case estimated cost savings
resulting from the AIG Acquisition and the Xxxxxx Xxxxx Acquisition):
--------------------------------------------------------------------
Date Amount
--------------------------------------------------------------------
September 30, 1999 $2,500,000
--------------------------------------------------------------------
December 31, 1999 $1,500,000
--------------------------------------------------------------------
March 31, 2000 $ 750,000
--------------------------------------------------------------------
9
---------------------------------------------------------------------
June 30, 2000 $ 500,000
--------------------------------------------------------------------
September 30, 2000 $ 250,000
--------------------------------------------------------------------
Section 8.2 INTEREST COVERAGE RATIO. Maintain as of each date set forth
below, a ratio of (i) EBITDA for the most recently completed four fiscal
quarters of the Borrowers to (ii) Consolidated Interest Expense (to the extent
paid in cash during such period) for such period of not less than the ratio set
forth below for such period:
---------------------------------------------------------------------
Date of Determination: Minimum Ratio
---------------------------------------------------------------------
September 30, 1999 2.00 to 1.0
---------------------------------------------------------------------
December 31, 1999 2.20 to 1.0
---------------------------------------------------------------------
March 31, 2000 2.20 to 1.0
---------------------------------------------------------------------
June 30, 2000 2.20 to 1.0
---------------------------------------------------------------------
September 30, 2000 2.50 to 1.0
---------------------------------------------------------------------
December 31, 2000 2.50 to 1.0
---------------------------------------------------------------------
March 31, 2001 2.50 to 1.0
---------------------------------------------------------------------
June 30, 2001 2.50 to 1.0
---------------------------------------------------------------------
September 30, 2001 2.50 to 1.0
---------------------------------------------------------------------
December 31, 2001 3.00 to 1.0
---------------------------------------------------------------------
March 31, 2002 3.00 to 1.0
---------------------------------------------------------------------
June 30, 2002 3.00 to 1.0
---------------------------------------------------------------------
September 30, 2002 through (and including) September 3.50 to 1.0
30, 2005
---------------------------------------------------------------------
Notwithstanding the foregoing: (a) if, as at any date (a
"CALCULATION DATE"), fewer than four complete fiscal quarters have elapsed
subsequent to the Amendment No. 2 Effective Date, Interest Expense shall be
calculated only for the portion of such period commencing on the Amendment No. 2
Effective Date and ending on the calculation date and shall then be annualized
by multiplying the amount of such Interest Expense by a fraction, the numerator
of which is 365 and the denominator of which is the number of days during the
period commencing on the date immediately following the Amendment No. 2
Effective Date through and including the calculation date; and
(b) for purposes of calculating EBITDA for the most recently
completed four fiscal quarters of the Borrowers ending on each of the following
dates, there shall be added to such EBITDA the amounts set forth next to such
dates (representing in each case estimated cost savings resulting from the AIG
Acquisition and the Xxxxxx Xxxxx Acquisition):
---------------------------------------------------------------------
Date Amount
---------------------------------------------------------------------
September 30, 1999 $2,500,000
---------------------------------------------------------------------
December 31, 1999 $1,500,000
---------------------------------------------------------------------
March 31, 2000 $ 750,000
---------------------------------------------------------------------
10
---------------------------------------------------------------------
June 30, 2000 $ 500,000
---------------------------------------------------------------------
September 30, 2000 $ 250,000
---------------------------------------------------------------------
Section 8.3 FIXED CHARGE COVERAGE RATIO. Maintain as of the end of each
fiscal quarter of the Borrowers a Fixed Charge Coverage Ratio for the most
recently completed four fiscal quarters of the Borrowers of not less than the
following ratios for the requisite periods set forth below:
---------------------------------------------------------------------
Four Fiscal Quarters ending on:
---------------------------------------------------------------------
Each September 30, December 31, March 31 and June 30 1.15 to 1.0
after the Amendment No. 2 Effective Date and
continuing through (and including) September 30, 2003
---------------------------------------------------------------------
Each December 31, March 31, June 30 and September 30 1.10 to 1.0
commencing on December 31, 2003 and continuing
through (and including) September 30, 2005
---------------------------------------------------------------------
Notwithstanding the foregoing: (a) (i) if any portion of the
period for which the Fixed Charge Coverage Ratio is being determined shall occur
prior to the Amendment No. 2 Effective Date, and in any event through the period
ending June 30, 2000 the aggregate amount of Interest Expense and taxes paid or
payable by the Borrowers and their Subsidiaries shall be calculated only for the
portion of such period commencing on the Amendment No. 2 Effective Date and
ending on the last day of such period (the "CALCULATION DATE") and shall then be
annualized by multiplying the amount of such Interest Expense or taxes by a
fraction, the numerator of which is 365 and the denominator of which is the
number of days during the period commencing on the day immediately following the
Amendment No. 2 Effective Date through and including the calculation date and
(ii) if any portion of the period for which the Fixed Charge Coverage Ratio is
being determined shall occur on or prior to September 30, 2000, the scheduled
amortization of Debt for such period shall be deemed to be $2,453,717.60 or
BEF43,601,707.11 (to be calculated in U.S. Dollars at the current exchange
rate.)
(b) for purposes of calculating EBITDA for the most recently
completed four fiscal quarters of the Borrowers ending on each of the following
dates, there shall be added to such EBITDA the amounts set forth next to such
dates (representing in each case estimated cost savings resulting from the AIG
Acquisition and the Xxxxxx Xxxxx Acquisition:
---------------------------------------------------------------------
Date Amount
---------------------------------------------------------------------
September 30, 1999 $2,500,000
---------------------------------------------------------------------
December 31, 1999 $1,500,000
---------------------------------------------------------------------
March 31, 2000 $ 750,000
---------------------------------------------------------------------
June 30, 2000 $ 500,000
---------------------------------------------------------------------
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---------------------------------------------------------------------
September 30, 2000 $ 250,000
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1.23. Section 9.3, "EVENTS OF DEFAULT" is amended to insert
immediately after the reference to "5.21" the following: "or 5.22".
1.24. Section 11.4(b) is amended to add immediately following
the words "AIG Acquisition" the words "the Xxxxxx Xxxxx Acquisition."
1.25. Schedule I to the Credit Agreement is replaced by
Schedule I annexed hereto as EXHIBIT A.
1.26. The Schedules annexed hereto as part of Schedule 1 shall
be deemed respectively to replace the Schedules of the respective corresponding
number presently attached to the Credit Agreement.
1.27. Section 11.7(a)(i), "ASSIGNMENTS AND PARTICIPATIONS" is
amended and restated to read in its entirety as follows: "(i) each such
assignment shall be of a uniform, and not a varying, percentage of all rights
and obligations under and in respect of the respective Facility assigned;"
ARTICLE II.
ADDITION OF NEW LENDERS; CHANGES IN COMMITMENTS.
2.1. (a) The parties hereto hereby acknowledge and confirm
that immediately upon the Amendment No. 2 Effective Date (as defined in Article
V below) (i) each of Union Bank of California, N.A., Greater Bay Corporate
Finance, a division of Cupertino National Bank (hereinafter referred to as
"GREATER BAY") and SunTrust Bank, Atlanta (hereinafter referred to as
"SUNTRUST") (each of Union Bank of California, N.A., Greater Bay and SunTrust, a
"NEW LENDER" and together, the "NEW LENDERS"), shall become a party to the
Credit Agreement (including any amendments thereto) and shall have the rights
and obligations of a Lender thereunder .
(b) Each of the New Lenders (i) confirms that it has received
a copy of the Credit Agreement and all amendments thereto, together with copies
of such financial statements and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to become a
Lender under the Credit Agreement, (ii) agrees that it will independently and
without reliance upon the Administrative Agent or any Lender other than itself,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decision in taking or not taking action
under the Credit Agreement, (iii) acknowledges that neither the Administrative
Agent nor any Lender makes any representation or warranty nor does the
Administrative Agent or any Lender assume any
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responsibility with respect to (a) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other instrument or
document furnished pursuant thereto or (b) the financial condition of the
Borrowers or any other Loan Party, or the performance or observance by the
Borrowers or any other Loan Party of any of their Obligations under the Credit
Agreement or any other instrument or document furnished pursuant thereto, (iv)
appoints and authorizes the Administrative Agent to take such action as its
agent on its behalf and to exercise such powers under the Credit Agreement as
are delegated to the Administrative Agent by the terms thereof, together with
such powers as are reasonably incidental thereto, and (v) agrees that it will
perform in accordance with their terms all of the obligations which, by the
terms of the Credit Agreement, are required to be performed by it as a Lender.
2.2. (a) Commencing as of the Amendment No. 2 Effective Date,
the Term A Commitment of each of the Term A Lenders shall be changed, and
Schedule I to the Credit Agreement shall be deemed amended and restated to
reflect the respective new amounts set forth opposite the name of each of the
Term A Lenders on EXHIBIT A annexed hereto.
(b) Commencing as of the Amendment No. 2 Effective
Date, the Term B Commitment of each of the Term B Lenders shall be changed, and
Schedule I to the Credit Agreement shall be deemed amended and restated to
reflect the respective new amounts set forth opposite the name of each of the
Term B Lenders on EXHIBIT A annexed hereto.
(c) Commencing as of the Amendment No. 2 Effective
Date, the Revolving Credit and European Letter of Credit Commitment of each of
the Revolving Credit Lenders shall be changed, and Schedule I to the Credit
Agreement shall be deemed amended and restated to reflect the respective new
amounts set forth opposite the name of each of the Revolving Credit Lenders on
EXHIBIT A annexed hereto.
2.3 (a) The Borrowers shall, simultaneously with the execution
and delivery of this Amendment No. 2, execute and deliver in favor of (i) each
of Union Bank of California, N.A., Greater Bay and SunTrust, a Term A Note,
substantially in the form of Exhibit D to the Credit Agreement, in principal
amount equal to the Term A Commitment of such Lender as shown on EXHIBIT A
annexed hereto, and (ii) each of the Term A Lenders whose Term A Commitment is
changing, a substitute Term A Note substantially in the form of Exhibit D to the
Credit Agreement, (collectively, all of the above-described Term A Notes are
defined as the "NEW TERM A Notes"), whereupon each Term A Lender whose Term A
Commitment is changing shall return its existing Term A Note to the Borrowers
marked "Replaced by New Term A Note."
(b) The Borrowers shall, simultaneously with the
execution and delivery of this Amendment No. 2, execute and deliver in favor of
(i) each of Union Bank of California, N.A., Greater Bay and SunTrust, a Term B
Note, substantially in the form of Exhibit E to the Credit Agreement, in
principal amount equal to the Term B Commitment of such Lender as shown on
EXHIBIT A annexed hereto, and (ii) each of the Term B Lenders whose Term B
Commitment is changing, a substitute Term B Note substantially in the form of
Exhibit E to the
13
Credit Agreement, (collectively, all of the above-described Term B Notes are
defined as the "NEW TERM B Notes"), whereupon each Term B Lender whose Term B
Commitment is changing shall return its existing Term B Note to the Borrowers
marked "Replaced by New Term B Note."
(c) In order to reflect the reallocation among the Lenders of
Revolving Credit Commitments and their percentage shares and relative
outstanding amounts of Revolving Credit Advances, and in order to evidence the
Revolving Credit Advances made by each of the Revolving Credit Lenders under the
Revolving Credit Commitment as amended hereby, the Borrowers shall execute and
deliver to each of the Revolving Credit Lenders a new note substantially in the
form attached to the Credit Agreement as Exhibit C, reflecting the Revolving
Credit Commitment of such Revolving Credit Lender as amended hereby, dated the
Amendment No. 2 Effective Date and otherwise duly completed (the "NEW REVOLVING
CREDIT NOTES"), whereupon each Revolving Credit Lender whose Revolving Credit
Note is being replaced shall return its existing Revolving Credit Note to the
Borrowers marked "Replaced by New Revolving Credit Note."
(d) In order to effect the foregoing, the Lenders shall, on
the Amendment No. 2 Effective Date, make appropriate adjustments among
themselves in order that the amount of Advances outstanding to the Borrowers
from any Lender under the Credit Agreement is, in principal amount (as of the
Amendment No. 2 Effective Date), in the same proportion to the outstanding
aggregate principal amount of all Advances of the respective type that such
Lender's respective Commitment for such type of Advances bears to the Aggregate
Commitments for such Advances, after giving effect to the amendments effected
hereby. Each Borrower and each of the other Loan Parties agrees and consents to
the terms of this paragraph. Any and all costs associated with any breakage of
interest periods in order to effectuate the transactions contemplated by this
Amendment shall be borne jointly and severally by the Borrowers.
2.4 All references in the Credit Agreement, Loan Documents and
all other instruments, documents and agreements executed and delivered pursuant
to any of the foregoing, to "the ratable benefit of the Lender Parties", "pro
rata", or terms of similar effect shall be deemed to refer to the ratable
interests of the Lender Parties, as their respective ratable interests shall be
adjusted to reflect the changes in the Term A Commitment, Term B Commitment,
Revolving Credit Commitment and the European Letter of Credit Commitment of each
of the Lenders as set forth on EXHIBIT A annexed hereto.
ARTICLE III.
CONSENT AND WAIVER.
3.1. Notwithstanding any provisions of the Credit Agreement to
the contrary, on the terms and conditions of this Amendment No. 2, the Lender
Parties and the Administrative Agent hereby consent to (a) the acquisition by
PolyVision of 100% of the issued and outstanding capital stock (the "ACQUIRED
STOCK") of Xxxxxx Xxxxx upon the terms and conditions set forth
14
in the Xxxxxx Xxxxx Acquisition Documents (as defined in Section 1.1 hereof and
hereafter, the "XXXXXX XXXXX ACQUISITION DOCUMENTS") (the "XXXXXX XXXXX
ACQUISITION"); and (b) the Xxxxxx Xxxxx Merger upon the terms and conditions set
forth in the Xxxxxx Xxxxx Merger Documents, and subject, FURTHER, to the
fulfillment, to the satisfaction of the Lender Parties and the Administrative
Agent, of the conditions precedent set forth in Article V hereof.
3.2. The Administrative Agent and the Lender Parties
acknowledge that simultaneously with the execution and delivery of this
Amendment No. 2: (a) PolyVision has pledged and delivered to the Administrative
Agent, for the ratable benefit of the Lender Parties, stock certificates,
together with stock powers executed in blank, representing all of the
outstanding capital stock of Xxxxxx Xxxxx and (b) Xxxxxx Xxxxx has executed and
delivered to the Administrative Agent appropriate supplements to the Subsidiary
Guaranty, the Initial Security Agreement and the Intellectual Property Security
Agreement.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES.
The Borrowers jointly and severally represent and warrant to
the Administrative Agent and the Lender Parties that:
4.1. There exists no Default or Event of Default under the
Credit Agreement, as amended hereby, as of the date hereof.
4.2. Each and every one of the representations and warranties
set forth in Article 4 (before and after giving effect to the amendments thereto
effected by this Amendment No. 2) of the Credit Agreement is true in all
respects as if made on the date hereof, except (a) for changes in the ordinary
course of business not prohibited by the Credit Agreement, none of which, either
singly or in the aggregate, have had a Material Adverse Effect on the Borrowers
and their Subsidiaries taken as a whole provided that the exception set forth in
this clause (a) shall not be deemed to qualify the representations and
warranties made regarding Xxxxxx Xxxxx (as confirmed in the following clause
(b)); and (b) that certain amended Schedules to the Credit Agreement are
attached hereto as Schedule 1 to this Amendment No. 2, and, to the extent that
any of such representations or warranties apply to any Guarantor, whether as a
"Guarantor", a "Loan Party" or otherwise, each such representation and warranty
shall be deemed to apply to Xxxxxx Xxxxx (hereinafter called the "NEW
GUARANTOR").
4.3. Each Loan Party (a) to the extent it is a party thereto,
has all requisite corporate power and authority to execute and deliver this
Amendment No. 2, the New Term A Notes, the New Term B Notes, the New Revolving
Credit Notes (collectively, all of the foregoing Notes are referred to herein as
the "NEW NOTES"), the Subsidiary Guaranty, the Initial
15
Security Agreement, the Intellectual Property Security Agreement (or supplements
to the foregoing, as applicable), the amendment to the Security Agreement
contemplated by Section 5.5 hereof, and each other agreement, instrument or
document contemplated to be executed or delivered by the Borrowers, the New
Guarantor or any other Loan Party pursuant to this Amendment No. 2 (all such
agreements, instruments and documents contemplated to be executed or delivered
in connection herewith by any Loan Party are sometimes hereinafter referred to
collectively, together with this Amendment No. 2, as the "NEW DOCUMENTS") and to
consummate the transactions contemplated hereby and thereby and (b) has taken
all action, corporate or otherwise, necessary to authorize the execution and
delivery of the New Documents and the consummation of the transactions
contemplated hereby and thereby (including by the Credit Agreement as amended
hereby).
4.4. Neither execution and delivery of the New Documents by
any Loan Party nor the consummation by it of the transactions contemplated
hereby and thereby (including by the Credit Agreement as amended hereby) (a)
conflict with, or result in any breach or violation of any provision of, the
certificate of incorporation or by-laws of any Loan Party, (b) conflict with or
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 any
Loan Party or any of its Subsidiaries (other than Liens granted or permitted by
the Collateral Documents or the Credit Agreement, as amended and supplemented to
date) under any of the terms, conditions or provisions of any loan agreement,
indenture, mortgage, deed of trust, lease or other material contract, instrument
or agreement binding on or affecting any Loan Party, any of its Subsidiaries or
any of their respective properties, or (c) violate any law (including, without
limitation, the Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended, and the Racketeer Influenced and Corrupt Organizations
Chapter of the Organized Crime Control Act of 1970), rule, regulation
(including, without limitation, Regulation T, U or X of the Board of Governors
of the Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award.
4.5. No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or any
other third party is or will be required for (a) the due execution, delivery,
recordation, filing or performance by any Loan Party of the New Documents to
which it is or is to be a party, or for the consummation of the Xxxxxx Xxxxx
Transaction, (b) the grant by any Loan Party of the Liens granted by it pursuant
to the Collateral Documents, (c) the perfection or maintenance of the Liens
created by the Collateral Documents (including the first and only priority
nature thereof, subject to Permitted Liens) or (d) the exercise by the
Administrative Agent or any Lender Party of its rights under the Loan Documents
or the remedies in respect of the Collateral pursuant to the Collateral
Documents, except for the authorizations, approvals, actions, notices and
filings listed on SCHEDULE 4.4 to the Credit Agreement, as amended hereby, all
of which have been duly obtained, taken, given or made and are in full force and
effect. All applicable waiting periods in connection with the Transaction have
expired without any action having been taken by any competent authority
16
restraining, preventing or imposing materially adverse conditions upon the
Transaction or the rights of the Loan Parties or their Subsidiaries freely to
transfer or otherwise dispose of, or to create any Lien on, any properties now
owned or hereafter acquired by any of them.
4.6. This Amendment No. 2, the New Notes and the other New
Documents have each been duly executed and delivered by each Loan Party that is
a party thereto and each of them and the Credit Agreement as amended hereby
constitutes the legal, valid and binding obligation of each Loan Party thereto,
enforceable against such Loan Party in accordance with its terms.
4.7. The Liens and security interests granted pursuant to the
Collateral Documents secure, without limitation, the indebtedness, liabilities
and obligations of the Borrowers to the Administrative Agent and the Lender
Parties under the Credit Agreement, as amended hereby, whether or not expressly
so stated in the Collateral Documents, and the terms "Obligations", "Debt" and
"Indebtedness" as used in such Collateral Documents (or any other term used
therein to describe or refer to the indebtedness, liabilities and obligations of
the Borrowers to the Administrative Agent and the Lender Parties) includes,
without limitation, the indebtedness, liabilities and obligations of the
Borrowers under the New Notes and the Credit Agreement as amended hereby. No new
filings or recordings are required in order to maintain the existing perfection
or priority of the Liens in favor of the Administrative Agent purportedly
granted by the Collateral Documents, or to secure the portions of the Advances
increased or refinanced pursuant to this Amendment No. 2.
4.8. (a) The Borrowers and each other Loan Party thereto has
the corporate power to execute and deliver each of the Xxxxxx Xxxxx Acquisition
Documents (defined in Section 1.1 hereof) and each of the Xxxxxx Xxxxx Merger
Documents (as defined in Section 1.1 hereof) to which it is or will be a party
and to perform such Xxxxxx Xxxxx Acquisition Documents and Xxxxxx Xxxxx Merger
Documents.
(b) Each Xxxxxx Xxxxx Acquisition Document to which
any Loan Party or any of its respective Subsidiaries is a party has been duly
executed and delivered by such Loan Party or such Subsidiary, as the case may
be, and, to the best knowledge of the Borrowers, each Xxxxxx Xxxxx Acquisition
Document has been duly executed and delivered by the parties thereto other than
the Borrowers and their Subsidiaries, and is in full force and effect. The
representations and warranties of any Loan Party and each of its respective
Subsidiaries contained in each Xxxxxx Xxxxx Acquisition Document to which such
Loan Party or such Subsidiary, as the case may be, is a party are true and
correct in all material respects on the date hereof and will be true and correct
in all material respects on the Closing Date and the Xxxxxx Xxxxx Acquisition
Date, as if made on each of such dates, and the Administrative Agent and each
Lender Party shall be entitled to rely upon such representations and warranties
with the same force and effect as if they were incorporated in this Agreement
and made to the
17
Administrative Agent and each Lender Party directly as of the date hereof, the
Amendment No. 2 Effective Date, and the date of consummation of the Xxxxxx Xxxxx
Acquisition.
(c) The execution and delivery by any Loan Party of
each of the Xxxxxx Xxxxx Acquisition Documents and Xxxxxx Xxxxx Merger Documents
to which it is or will be a party and the performance by each such Loan Party
under each of the Xxxxxx Xxxxx Acquisition Documents and Xxxxxx Xxxxx Merger
Documents to which it is or will be a party does not (i) violate any law, rule
or regulation (including, without limitation, the Xxxxxxxx Act, Sections 13 and
14 of the Securities Exchange Act of 1934, and the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, and Regulations T, U, and X of the Board of Governors
of the Federal Reserve System and the rules and regulations promulgated
thereunder) or (ii) conflict with or result in a breach of any order, writ,
injunction, ordinance, resolution, decree, or other similar document or
instrument of any governmental entity, or any certificate of incorporation or
by-laws of or applicable to any Loan Party or create (with or without the giving
of notice or lapse of time, or both) a default under or breach of or conflict
with any agreement, instrument, ordinance, resolution, decree, determination,
award, bond, note, indenture, mortgage, deed of trust, lease, writ, order or
judgment to which it is a party or by which it is bound, or any other agreement
or instrument by which any of the properties or assets owned by it or used in
the conduct of its business is affected (other than any agreement or other
instrument of any kind the assets, revenues or liabilities in respect of which
do not exceed $100,000 individually or $250,000 in the aggregate with respect to
all of the foregoing and the breach thereof or conflict therewith could not have
a Material Adverse Effect on Xxxxxx Xxxxx individually or on the Borrowers or
their Subsidiaries taken as a whole.), 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 any Loan Party or any of its Subsidiaries,
except for the Liens created and granted or permitted under the Collateral
Documents or Credit Agreement, as amended and supplemented to date.
(d) Upon consummation of the Xxxxxx Xxxxx
Acquisition, such Acquisition shall have been consummated pursuant to the terms
and conditions of the Xxxxxx Xxxxx Acquisition Documents and in compliance with
all applicable laws, ownership of all of the Acquired Stock shall have vested in
PolyVision free and clear of all Liens, other than those created or permitted by
the Collateral Documents or the Credit Agreement, each as amended and
supplemented to date. None of PolyVision or any of its Subsidiaries which are
parties to any of the Xxxxxx Xxxxx Acquisition Documents has waived compliance
by any of the other parties thereto with any term, covenant or condition
thereof, and no party thereto has breached any covenant set forth therein or
failed to perform any of its obligations thereunder which waiver, breach or
failure to perform is of a material term or condition or could reasonably be
expected to materially and adversely affect the Acquired Stock or otherwise have
a Material Adverse Effect.
(e) The copies of the merger plan and agreement
between Greensteel and Xxxxxx Xxxxx dated the date hereof (collectively, the
"XXXXXX XXXXX MERGER AGREEMENTS") and all agreements, instruments, and documents
executed and delivered in connection therewith, and all exhibits, annexes and
schedules annexed thereto, and all amendments and modifications to any of the
foregoing (collectively, all of the foregoing,
18
including the Xxxxxx Xxxxx Merger Agreements, are referred to as the "XXXXXX
XXXXX MERGER DOCUMENTS") heretofore delivered by the Borrowers to the
Administrative Agent are true, complete and accurate copies thereof. None of the
parties to the Xxxxxx Xxxxx Merger Documents waived compliance by any of the
other parties thereto with any term, covenant or condition thereof, and no party
thereto has breached any covenant set forth therein or failed to perform any of
its obligations thereunder.
(f) Simultaneously with the execution and delivery of
this Amendment No. 2, the Xxxxxx Xxxxx Merger shall have been consummated
pursuant to the Xxxxxx Xxxxx Merger Documents and applicable law. Upon such
consummation all of the assets and properties of Xxxxxx Xxxxx shall have been
vested in Greensteel, subject to the liabilities of Xxxxxx Xxxxx. Neither the
execution and delivery of the Xxxxxx Xxxxx Merger Documents, nor the performance
by any party thereto or the Borrowers of any obligations thereunder, or of any
obligations of any party thereto incurred by any Borrower by virtue of the
Xxxxxx Xxxxx Merger, violate any provision of law or will conflict with or
result in a breach of or create (with or without the giving of notice or lapse
of time, or both) a default under any agreement to which any party to the Xxxxxx
Xxxxx Merger is a party or by which it is bound or any of its properties is
affected.
(g) Each Xxxxxx Xxxxx Acquisition Document and Xxxxxx
Xxxxx Merger Document to which any Loan Party or any of its respective
Subsidiaries is or is to be a party has been duly executed and delivered by such
Loan Party or such Subsidiary, as the case may be, and, to the best knowledge of
the Borrowers, each Xxxxxx Xxxxx Acquisition Document and Xxxxxx Xxxxx Merger
Document has been duly executed and delivered by the parties thereto other than
the Borrowers and their Subsidiaries, and is in full force and effect. The
representations and warranties of any Loan Party and each of its respective
Subsidiaries contained in each Xxxxxx Xxxxx Acquisition Document and Xxxxxx
Xxxxx Merger Document to which such Loan Party or such Subsidiary, as the case
may be, is or is to be a party are true and correct in all material respects on
the date hereof, and the Administrative Agent and each Lender Party shall be
entitled to rely upon such representations and warranties with the same force
and effect as if they were incorporated in this Agreement and made to the
Administrative Agent and each Lender Party directly as of the date hereof.
(h) True, correct and complete copies of each of the
Xxxxxx Xxxxx Acquisition Documents and Xxxxxx Xxxxx Merger Documents have been
delivered to the Administrative Agent, and as of the Amendment No. 2 Effective
Date, each of the Xxxxxx Xxxxx Acquisition and the Xxxxxx Xxxxx Merger shall
have been consummated in accordance therewith, and no party thereto shall have
waived any material term or condition contained therein.
(i) Each Xxxxxx Xxxxx Acquisition Document to which
any Loan Party or the Seller is a party, when duly executed and delivered by
such Loan Party and the Seller, constitutes the valid and legally binding
obligation of each such Loan Party or (to the best
19
knowledge of the Borrowers) the Seller, as the case may be, enforceable in
accordance with its terms.
(j) Each Xxxxxx Xxxxx Merger Document to which any
Loan Party or Xxxxxx Xxxxx is a party, when duly executed and delivered by such
Loan Party and Xxxxxx Xxxxx, constitutes the valid and legally binding
obligation of each such Loan Party, enforceable in accordance with its terms.
(k) No Borrower and none of Borrower's Subsidiaries
is an "investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended. Neither the making of any
Advances, nor the issuance of any Letters of Credit, nor the application of the
proceeds or repayment thereof by the Borrowers, nor the consummation of any of
the transactions contemplated by this Amendment No.2 or any Xxxxxx Xxxxx
Acquisition Document will violate any provision of such Act or any rule,
regulation or order of the Securities and Exchange Commission thereunder or any
takeover, disclosure or other federal, state or foreign securities law or
Regulations T, U or X of the Federal Reserve Board. No Borrower is subject to
regulation under any federal, state or foreign statute or regulation which
limits its ability to incur Debt.
4.9. FINANCIAL STATEMENTS. The consolidated balance sheets of
Xxxxxx Xxxxx as at the fiscal years ended 1996, 1997 and 1998 and the related
consolidated statements of income and statements of cash flows of Xxxxxx Xxxxx
for the Fiscal Year then ended, accompanied by an opinion of Xxxxxx Xxxxxxxx and
the unaudited Consolidated balance sheet of Xxxxxx Xxxxx as applicable as at
December 31, 1998, and the related unaudited Consolidated statement of income
and Consolidated statement of cash flows of Xxxxxx Xxxxx for the twelve months
ended June 30, 1999, duly certified by the chief financial officer of Xxxxxx
Xxxxx, copies of which have been furnished to each Lender Party, fairly present,
or when delivered, shall fairly present, subject, in the case of said interim
balance sheet, statements of income and cash flows, to normal year-end audit
adjustments, the Consolidated financial condition of Xxxxxx Xxxxx as at such
dates and the Consolidated results of the operations of Xxxxxx Xxxxx for the
period ended on such date, all in accordance with GAAP applied on a consistent
basis, and, since December 31, 1998 there has been no change which could
reasonably be expected to result in a Material Adverse Effect.
4.10. PRO FORMA FINANCIAL STATEMENTS; PROJECTIONS. (a) The
Consolidated pro forma balance sheet of the Borrowers and their Subsidiaries as
at June 30, 1999 and the related Consolidated pro forma statement of income and
cash flows of the Borrowers and their Subsidiaries for the period then ended,
certified by the chief executive officer or chief financial officer of each
Borrower, copies of which have been furnished to each Lender Party, fairly
present the Consolidated pro forma financial condition of the Borrowers and
their Subsidiaries as at such date and the Consolidated pro forma results of
operations of the Borrowers and their Subsidiaries for the period ended on such
date, in each case after giving effect to the Xxxxxx
20
Xxxxx Acquisition, all in accordance with GAAP (to the extent that pro forma
information can comply with GAAP).
(b) The projections delivered on the Amendment No. 2 Effective
Date have been prepared on the basis of the assumptions accompanying them and
reflect as of the date thereof the Borrowers' good faith projections, after
reasonable analysis, of the matters set forth therein, based on such assumptions
(it being understood that projected financial information is not to be viewed as
facts and that the actual results during the period or periods covered thereby
may differ from the projected results and that the differences may be material).
4.11. ACCURATE INFORMATION. None of the information, exhibits
or reports furnished by any Loan Party or any of the European Borrowers to the
Administrative Agent or any Lender Party in connection with Amendment No. 2
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements made therein not misleading.
ARTICLE V.
CONDITIONS.
The effectiveness of this Amendment No. 2 shall be subject to
the fulfillment by the Borrowers, in a manner satisfactory to the Administrative
Agent and the Lender Parties, of all of the conditions precedent set forth in
this Article V, and the date on which all such conditions shall have been
fulfilled to the satisfaction of the Administrative Agent and the Lender
Parties, and this Amendment No. 2 shall have become effective, shall be herein
called the "AMENDMENT NO. 2 EFFECTIVE DATE":
5.1. Each of the parties hereto shall have executed and
delivered this Amendment No. 2 to the Administrative Agent.
5.2. (a) The representations and warranties contained herein
and each other agreement, instrument, certificate or other writing delivered to
the Administrative Agent or any Lender Party pursuant hereto or to the Credit
Agreement shall be correct on and as of the date hereof after giving effect to
this Amendment No. 2 as though made on and as of such date except to the extent
modified hereby and (b) no Default or Event of Default shall have occurred and
be continuing on the Amendment No. 2 Effective Date or would result from the
taking effect of this Amendment No. 2, or the transactions contemplated hereby,
including the Xxxxxx Xxxxx Acquisition or the Xxxxxx Xxxxx Merger.
5.3. The Borrowers shall have:
21
(a) executed and delivered to each of the Term A Lenders its
respective New Term A Note, in form and substance satisfactory to the
Administrative Agent and the Lender Parties;
(b) executed and delivered to each of the Term B Lenders its
respective New Term B Note, in form and substance satisfactory to the
Administrative Agent and the Lender Parties;
(c) executed and delivered to each of the Revolving Credit
Lenders its respective New Revolving Credit Note, in form and substance
satisfactory to the Administrative Agent and the Lender Parties;
(d) on the Amendment No. 2 Effective Date, paid to the
Administrative Agent, (i) for the ratable benefit of the Lender Parties
who were party to the Credit Agreement prior to the Amendment No. 2
Effective Date, a 0.25% fee that shall be payable to such Lender
Parties PRO RATA on any Commitments (including without limitation the
European Letter of Credit Commitments) as in effect immediately prior
to the effectiveness of this Amendment No. 2; and (ii) for the benefit
of KBC as lender under the KBC Loan Agreements, a 0.25% fee that shall
be payable to KBC (in U.S. Dollars and by payment made in New York) on
(A) the aggregate amount of KBC's Commitments under the KBC Loan
Agreements minus (B) the aggregate European Letter of Credit, in each
case as such Commitments are computed based on the Dollar Equivalent
thereof as of the date prior to the required payment date;
(e) paid to the Administrative Agent any and all fees payable
to the Administrative Agent pursuant to the terms of any separate
letter agreement with any Borrowers;
(f) paid all reasonable legal (U.S. and foreign) and other
out-of-pocket expenses incurred by Fleet in connection with the
transactions contemplated by or referred to in this Amendment No. 2,
and in connection with the merger of PolyVision Belgium N.V. with and
into Alliance Europe N.V. and amendments relating to the KBC Loan
Agreements, including, without limitation, out-of-pocket due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, audit, consultant,
search, filing and recording fees, as well as all expenses of the
Administrative Agent in connection with the administration of the loan
documentation;
(g) otherwise complied in all respects with the terms hereof
and of any other agreement, document, instrument or other writing to be
delivered by the Borrowers in connection herewith.
5.4. The Administrative Agent shall have received, on or
before the date hereof, the following, each in form and substance satisfactory
to the Administrative Agent:
22
(a) copies of the resolutions of the Board of
Directors of the Borrowers and APV, certified by a Responsible Officer thereof,
authorizing (i) the execution, delivery and performance by the Borrowers and APV
of this Amendment No. 2 and the other New Documents; (ii) the Xxxxxx Xxxxx
Acquisition and the execution, delivery and consummation of the Xxxxxx Xxxxx
Acquisition Documents to which any of the Borrowers or APV is or is to be a
party, and (iii) the Xxxxxx Xxxxx Merger and the execution, delivery and
consummation of the Xxxxxx Xxxxx Merger Documents;
(b) long-form good standing certificates of recent
date for each of the Borrowers from the Secretary of State of its state of
incorporation and the state in which its chief executive office is located;
(c) a certificate signed on behalf of each of the
Borrowers and APV by a Responsible Officer and the Secretary or an Assistant
Secretary of each of the Borrowers and APV, certifying the names and true
signatures of the officers of such Borrower or APV authorized to sign the New
Documents, together with evidence of the incumbency of such authorized officers;
a compliance certificate executed by a Responsible Officer of each of the
Borrowers and APV dated the Amendment No. 2 Effective Date certifying that the
conditions set forth in Section 5.2 and otherwise in this Article V (as they
pertain to such Borrower or APV) have been satisfied.
5.5. With respect to the New Guarantor, the Administrative
Agent shall have received each of the following duly executed by the New
Guarantor, and otherwise in form and substance satisfactory to the
Administrative Agent:
(a) a Subsidiary Guaranty (or supplement or agreement
of joinder to the existing Subsidiary Guaranty) guarantying to the
Administrative Agent and the Lender Parties the prompt payment, when and as due,
of all Obligations of the Loan Parties under the Loan Documents, including all
obligations under any Hedge Agreements or other hedging agreements;
(b) a Security Agreement (or supplement or agreement
of joinder to the existing Initial Security Agreement) granting to the
Administrative Agent, for the ratable benefit of the Secured Parties, a first
and only (subject to Permitted Liens) priority security interest in all of the
personal property and assets of the New Guarantor, together with:
(i) proper, duly executed financing
statements under the Uniform Commercial Code of all jurisdictions that the
Administrative Agent may deem necessary or desirable in order to perfect and
protect the first and only (subject to Permitted Liens) priority Liens and
security interests created under the Initial Security Agreement, covering the
Collateral described in the Initial Security Agreement;
(ii) to the extent required by the
Administrative Agent, completed requests for information, dated on or before the
Amendment No. 2 Effective Date,
23
listing all effective financing statements filed that name the New Guarantor as
debtor, together with copies of such financing statements;
(iii) evidence of the completion of all
other recordings and filings of or with respect to the Initial Security
Agreement that the Administrative Agent may deem necessary or desirable in order
to perfect and protect the Liens created thereby;
(iv) evidence of the insurance required by
the terms of the Initial Security Agreement;
(v) copies of the Assigned Agreements, if
any, referred to in the Initial Security Agreement, together with a consent (to
the extent required by the Administrative Agent) to such assignments, if any, in
substantially the form of Exhibit B to the Initial Security Agreement, duly
executed by each party to such Assigned Agreements other than the New Guarantor;
and
(vi) evidence that all other action that the
Administrative Agent may deem necessary or desirable in order to perfect and
protect the first and only (subject to Permitted Liens) priority liens and
security interests created under the Initial Security Agreement has been taken
by the New Guarantor, INCLUDING, without limitation payment of all necessary or
appropriate filing and recording fees and taxes;
(c) an Intellectual Property Security Agreement (or a
supplement or joinder to the existing Intellectual Property Security Agreement)
granting to the Administrative Agent for the ratable benefit of the Secured
Parties a first and only priority security interest in all of the New
Guarantor's owned intellectual property, together with evidence that all action
that the Administrative Agent may deem necessary or desirable in order to
perfect and protect the first and only priority Liens and security interests
created under the Intellectual Property Security Agreement has been taken;
(d) (1) mortgages and leasehold mortgages (as
applicable) on such owned and leased real property as the
Administrative Agent may require sufficient for recording in all places
to the extent necessary or desirable, in the reasonable judgment of the
Administrative Agent to create a valid and enforceable first priority
lien on each Mortgaged Property listed on Schedule 4.21 to the Credit
Agreement (as amended hereby) (subject only to Permitted Real Property
Encumbrances) in favor of the Administrative Agent (or a trustee
therefor) for the benefit of the Secured Parties; together with such
title insurance, reports, surveys and consents as the Administrative
Agent may require in connection therewith, together with evidence that
all action that the Administrative Agent may deem necessary or
desirable in order to perfect and protect the first and only priority
Liens and security interests created under such mortgages has been
taken;
(2) If required by the Administrative Agent,
mortgagee title insurance policies (or binding commitments to issue
such title insurance policies) which
24
shall (1) be issued to the Administrative Agent for the benefit of the
Secured Parties by title insurance companies reasonably satisfactory to
the Administrative Agent (the "MORTGAGE POLICIES") in amounts
reasonably satisfactory to the Administrative Agent insuring that the
Mortgages are valid and enforceable first priority mortgage liens on
the respective Mortgaged Properties, free and clear of all defects,
encumbrances and other Liens except Permitted Real Property
Encumbrances, (2) be in form and substance reasonably satisfactory to
the Administrative Agent, (3) include, as appropriate, an endorsement
for future advances under this Agreement, the Notes and the Mortgages
and such other endorsements that the Administrative Agent in its
discretion may reasonably request, (4) not include an exception for
mechanics' liens, and (5) provide for affirmative insurance and such
reinsurance (including direct access agreements) as the Administrative
Agent in its discretion may reasonably request; and
(3) If required by the Administrative Agent,
surveys, in form and substance satisfactory to the Administrative
Agent, of each Mortgaged Property listed on SCHEDULE 4.21, dated a
recent date reasonably acceptable to the Administrative Agent,
certified by a licensed professional surveyor in a manner satisfactory
to the Administrative Agent for the benefit of the Lenders.
(e) certified copies of the bylaws of the New
Guarantor and of resolutions of the Board of Directors of the New Guarantor
approving the Credit Agreement and the Xxxxxx Xxxxx Merger, approving this
Amendment No. 2 and each other Loan Document to which it is or is to be a party,
and of all documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if any, with respect
to the Credit Agreement, this Amendment No. 2, the Xxxxxx Xxxxx Acquisition, the
Xxxxxx Xxxxx Merger and each other Loan Document;
(f) a copy of the charter of the New Guarantor and
each amendment thereto, certified (as of a date reasonably near the date of the
Amendment No. 2 Effective Date) by the Secretary of State of the jurisdiction of
its incorporation as being a true and correct copy thereof;
(g) a copy of a certificate of the Secretary of State
of the jurisdiction of the New Guarantor's incorporation, dated within twenty
(20) Business Days of the date of the Amendment No. 2 Effective Date, listing
the charter of the New Guarantor and each amendment thereto on file in its
office and certifying that (A) such amendments are the only amendments to the
New Guarantor's charter on file in its office, (B) to the extent obtainable,
that the New Guarantor has paid all franchise taxes to the date of such
certificate and (C) the New Guarantor is duly incorporated and in good standing
or existing, as the case may be, under the laws of the jurisdiction of its
incorporation;
(h) a copy of a certificate of the Secretary of State
of each State (if any) listed for the New Guarantor on Schedule 4.2 to the
Credit Agreement (as amended and restated in the form annexed hereto as part of
Schedule 1) dated reasonably near the Amendment No. 2 Effective Date, stating
that the New Guarantor is duly qualified and in good standing or
25
existence as a foreign corporation in such State and has filed all annual
reports required to be filed to the date of such certificate;
(i) a certificate of the Secretary or an Assistant
Secretary of the New Guarantor certifying the names and true signatures of the
officers of the New Guarantor authorized to sign this Amendment No. 2, and each
other Loan Document to which it is or is to be a party; and
(j) such financial, business and other information
regarding the New Guarantor as any of the Lender Parties shall have reasonably
requested.
5.6. PolyVision shall have taken all action necessary to allow
the Administrative Agent to obtain a valid and enforceable, first and only
priority, perfected security interest in 100% of the outstanding capital stock
of the New Guarantor, and delivered or caused to be delivered to the
Administrative Agent certificates representing such pledged shares accompanied
by undated stock powers executed in blank and irrevocable proxies, and the
Initial Security Agreement shall have been amended to reflect the foregoing,
upon terms and conditions reasonably satisfactory to the Administrative Agent.
5.7. (a) The Administrative Agent shall have received copies
of the Xxxxxx Xxxxx Acquisition Documents which shall be certified as true,
correct and complete by a Responsible Officer of PolyVision, and shall be
satisfactory to the Administrative Agent and the Lender Parties in all respects;
(b) The Xxxxxx Xxxxx Acquisition shall have been
consummated (prior to or simultaneously with the Amendment No. 2 Effective Date)
pursuant to the terms and conditions of the Xxxxxx Xxxxx Stock Purchase
Agreement for an aggregate cash amount at the Amendment No. 2 Effective Date not
exceeding $24 million (before fees and expenses;
(c) Upon the Administrative Agent's request, the
Borrowers and Xxxxxx Xxxxx shall have delivered to the Administrative Agent the
original of all instruments, documents and chattel paper, and all other
Collateral of which the Administrative Agent determines it should have physical
possession in order to perfect its security interest therein, duly pledged,
endorsed or assigned to the Administrative Agent without restriction;
(d) (i) The Borrower and Xxxxxx Xxxxx shall have
obtained and delivered to the Administrative Agent landlord waivers, in form and
substance reasonably satisfactory to the Administrative Agent, with respect to
any Inventory or other tangible Collateral located at a location that is not
owned by the Borrowers or their Subsidiaries, (except in respect of immaterial
amounts as described by the Borrowers to the Administrative Agent in writing
prior to the Amendment No. 2 Effective Date); (ii) delivered to the
Administrative Agent warehouse receipts covering any portion of the Inventory or
other Collateral located in warehouses and for which warehouse receipts are
issued, (except in respect of immaterial amounts as described by the Borrowers
to the Administrative Agent in writing prior to the
26
Amendment No. 2 Effective Date); and (iii) taken all such other actions and
obtained all such other agreements as the Administrative Agent may reasonably
deem necessary or desirable in respect of any Collateral, and otherwise complied
with the provisions of Section 5.13 of the Credit Agreement;
5.8. The Xxxxxx Xxxxx Merger shall be consummated on the
Amendment No. 2 Effective Date immediately after consummation of the Xxxxxx
Xxxxx Acquisition pursuant to the terms and conditions of the Xxxxxx Xxxxx
Merger Documents, and the Administrative Agent shall have received certified
copies of each of the Xxxxxx Xxxxx Merger Documents, each of which shall be
satisfactory to the Administrative Agent and in full force and effect.
5.9. PolyVision shall have issued to the Seller Series D
Convertible Preferred Stock of PolyVision as payment for $6 million of the
aggregate purchase price of the Acquired Stock and the terms of such Series D
Convertible Preferred Stock shall be satisfactory to the Administrative Agent
and the Lender Parties and shall prohibit payment of dividends on or redemption
of such Series D Convertible Preferred Stock (i) while any of the Commitments is
outstanding; (ii) while any Advance or Letter of Credit remains outstanding and
(iii) until full and complete performance of all of any Borrowers' or any other
Loan Party's other obligations arising under the Credit Agreement, as amended
hereby.
5.10. The Lender Parties shall have received the following all
of which shall be satisfactory in form and substance to the Lender Parties,
together with a compliance certificate executed by the Chief Financial Officer
of each of the Borrowers certifying compliance with financial covenants set
forth in the Credit Agreement:
(a) pro forma consolidated balance sheet and income
statement (for the preceding twelve months) of PolyVision and its Subsidiaries
and Xxxxxx Xxxxx as of June 30, 1999 as if giving effect to consummation of the
Xxxxxx Xxxxx Acquisition and the making of the Term A Borrowing and Term B
Borrowing on the Amendment No. 2 Effective Date and reflecting that no
indebtedness owed by Xxxxxx Xxxxx prior to the Xxxxxx Xxxxx Acquisition remains
outstanding except for capital leases and purchase money security interests;
(b) projections for the Borrowers and their
Subsidiaries commencing with the six-month period ending 12/31/99 through Fiscal
Year ended 12/31/06.
(c) A computation in detail of consolidated pro forma
trailing twelve-month EBITDA for PolyVision and all of its Subsidiaries and
Xxxxxx Xxxxx for the period ended June 30, 1999 which shall not be less than
$17.5 million (exclusive of any add-backs for cost savings (unless actually
realized during such period) associated with the Xxxxxx Xxxxx Acquisition, the
acquisition of AIG, and any non-recurring expenses); and
(d) A computation of the Consolidated Debt to EBITDA
Ratio, including in Consolidated Debt the debt evidenced by the Junior
Subordinated Note,
27
demonstrating that such Ratio is not greater than 4.8:1 on the Amendment No. 2
Effective Date and a computation of the Consolidated Debt to EBITDA Ratio,
excluding the Junior Subordinated Note, demonstrating that such Ratio is not
greater than 4.5:1 on the Amendment No. 2 Effective Date (and in each case such
Ratio shall be calculated in the same manner as is set forth in Section 8.1 of
the Credit Agreement).
5.11. Alpine shall have contributed not less than Two Million
($2,000,000) Dollars cash to PolyVision to fund a portion of the Xxxxxx Xxxxx
Acquisition on terms and conditions satisfactory to the Administrative Agent.
5.12. All governmental and third party consents and approvals
necessary in connection with each aspect of the Xxxxxx Xxxxx Acquisition, the
Xxxxxx Xxxxx Merger and the Facilities shall have been obtained, including,
without limitation, the consent of holders of the Senior Subordinated Notes
(without the imposition of any conditions that are not acceptable to the Lender
Parties) and shall remain in effect; all applicable waiting periods shall have
expired without any adverse action being taken by any competent authority; and
no law or regulation shall be applicable in the judgment of the Lender Parties
that restrains, prevents or imposes materially adverse conditions upon any
aspect of the Xxxxxx Xxxxx Acquisition, the Xxxxxx Xxxxx Merger or the
Facilities.
5.13. There shall exist no action, suit, investigation,
litigation or proceeding pending or threatened in any court or before any
arbitrator or governmental or regulatory agency or authority that purports to
adversely affect any aspect of the Xxxxxx Xxxxx Acquisition or the Senior Credit
Facilities.
5.14. The Lender Parties shall have received all additional
financial, business and other information regarding the Borrowers and Xxxxxx
Xxxxx and their respective properties and assets as they shall have reasonably
requested, and environmental surveys and reports and assessments prepared by
third parties acceptable to the Administrative Agent and the Lender Parties, and
all of the foregoing shall be acceptable to the Lender Parties; the Borrowers
shall have demonstrated to the reasonable satisfaction of each Lender Party
that: (i) the operations of Xxxxxx Xxxxx and its Subsidiaries comply in all
material respects with applicable environmental, health and safety statutes and
regulations, including, without limitation, regulations promulgated under the
Federal Resource Conservation and Recovery Act, and (ii) such operations are not
the subject of any federal, state or local investigation evaluating the need for
remedial action involving an expenditure exceeding $100,000 in the aggregate to
respond to a release or threatened release of any toxic or hazardous waste or
substance into the environment.
5.15. The Borrowers shall have delivered a certificate, in
form and substance reasonably satisfactory to the Administrative Agent and the
Lender Parties, attesting to the
28
Solvency of the Borrowers immediately before and immediately after giving effect
to the Xxxxxx Xxxxx Acquisition, from the chief financial officer of each of the
Borrowers.
5.16. Advances then outstanding under the Revolving Credit
Facility for the Borrowers minus the amount of cash of PolyVision (on a
consolidated basis including its Domestic Subsidiaries but not including Xxxxxx
Xxxxx) on the Amendment No. 2 Effective Date shall not exceed $4,000,000.
5.17. The Administrative Agent shall have received a favorable
written opinion of Xxxxxxxxx Xxxxxxx, counsel to the Borrowers and APV, and of
Xxxxxxx Xxxxxxx, counsel to Xxxxxx Xxxxx, and of such other counsel (including
foreign counsel) as the Administrative Agent may reasonably require, as to such
matters relating to the transactions contemplated by this Amendment No. 2
(including the Xxxxxx Xxxxx Acquisition (and absence of any required
governmental consent in connection therewith) and the Xxxxxx Xxxxx Merger) and
the Collateral Documents executed by the New Guarantor in form and substance as
the Lender Parties may reasonably request.
5.18. Amendments to the KBC Loan Agreements, in form and
substance satisfactory to the Administrative Agent, shall have been duly
executed and delivered and all conditions precedent to the effectiveness thereof
shall have been satisfied.
5.19. All proceedings in connection with the transactions
contemplated by this Amendment No. 2 including each of the Xxxxxx Xxxxx
Acquisition and the Xxxxxx Xxxxx Merger, and all documents incidental thereto
shall be reasonably satisfactory to the Administrative Agent and the Lenders,
and each such Person shall have received all such information and such
counterpart originals or certified copies of documents as may have been
reasonably requested.
ARTICLE VI.
ACKNOWLEDGMENTS, CONFIRMATIONS AND GENERAL AMENDMENTS.
6.1. APV hereby (i) acknowledges and consents to this
Amendment No. 2 (whether or not its consent is required); (ii) confirms and
agrees that the Subsidiary Guaranty to which it is a party is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects, and all references in any such Subsidiary Guaranty to "the Credit
Agreement," "thereof," "thereunder" or words of like import referring to the
Credit Agreement shall mean the Credit Agreement as amended by this Amendment
No. 2; (iii) confirms and agrees that the "Guaranteed Obligations" as defined in
such Subsidiary Guaranty include the Obligations of the Borrowers to the Lender
Parties under the Credit Agreement as amended by this Amendment No. 2, and under
the New Notes; and (iv) confirms and agrees that the Liens
29
and security interests granted by it pursuant to the Collateral Documents
secure, without limitation, the indebtedness, liabilities and obligations of APV
to the Lender Parties and the Administrative Agent under the Subsidiary
Guaranty, including without limitation, the Guaranteed Obligations which
obligations include the obligations of the Borrowers under the New Notes and the
Credit Agreement as amended hereby.
6.2. All references in the Credit Agreement and every other
agreement, instrument and document executed and delivered by each of the Loan
Parties in connection therewith, including, without limitation, any of the
Collateral Documents, to "Credit Agreement" and "Agreement", as applicable, and
also, in the case of the Credit Agreement to "this Agreement", shall be deemed
to refer to the Credit Agreement as amended and supplemented hereby.
6.3. All references in the Credit Agreement, the Collateral
Documents or any other agreement, instrument and document executed and delivered
in connection therewith to "Notes" shall be deemed to include, without
limitation, the New Term A Notes, the New Term B Notes and the New Revolving
Credit Notes.
6.4. All references in the Credit Agreement, the Collateral
Documents or any other agreement, instrument or document executed and delivered
in connection therewith to the "Term A Advances", "Term B Advances" or
"Advances" (or any other term or terms used in any of such documents to describe
or refer to Advances made by the Lender Parties to the Borrowers under the
Credit Agreement) shall be deemed to refer to Advances made by the Lender
Parties to the Borrowers pursuant to the Credit Agreement as amended and
supplemented hereby.
6.5. The Credit Agreement, the Collateral 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. 2.
ARTICLE VII.
CONTINUED EFFECTIVENESS OF CREDIT AGREEMENT.
The Credit Agreement and the other agreements to which the
Borrowers are parties 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 (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 and supplemented by this Amendment
No. 2 and (b) all references in the Credit Agreement and such other agreements
to which the Borrowers are parties to the "Credit Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the
30
Credit Agreement shall mean the Credit Agreement as amended and supplemented by
this Amendment No. 2.
ARTICLE VIII.
MISCELLANEOUS.
8.1. Except as specifically amended herein, the Credit
Agreement shall remain in full force and effect in accordance with its terms.
8.2. This Amendment No. 2 shall be governed and construed in
accordance with the laws of the State of New York.
8.3. No modification or waiver of or with respect to any
provisions of this Amendment No. 2 and all other agreements, instruments and
documents delivered pursuant hereto or thereto, nor consent to any departure by
the Administrative Agent or the Lender Parties from any of the terms or
conditions thereof, shall in any event be effective unless it shall be in
writing and executed in accordance with the provisions of the Credit Agreement,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No consent to or demand on the Borrowers in
any case shall, of itself, entitle them to any other or further notice or demand
in similar or other circumstances. This Amendment No. 2, together with the
Credit Agreement, as amended, embodies the entire agreement and understanding
among the Borrowers, the Administrative Agent and the Lender Parties, and
supersedes all prior agreements and understandings, relating to the subject
matter hereof.
8.4. The provisions of this Amendment No. 2 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. 2 in any jurisdiction.
8.5. This Amendment No. 2 may be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
8.6. This Amendment No. 2 shall be binding upon and inure to
the benefit of the Borrowers and their respective successors and to the benefit
of the Administrative Agent and the Lender Parties and their respective
successors and assigns. The rights and obligations of the Borrowers under this
Amendment No. 2 shall not be assigned or delegated without the prior written
consent of the Lender Parties, and any purported assignment or delegation
without such consent shall be void.
31
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to be duly executed on the date first above written.
POLYVISION CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: CEO
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 Swing Line Bank,
and as a Lender
By /s/ Xxxx X. Xxxxxx
---------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
and as syndication agent
By: /s/ Xxxxx X. Xxxxxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
KBC BANK N.V.,
as a Lender under the Credit
KBC Agreement and each of the Loan
Agreements
By /s/ Xxx X. Xxxxx
------------------------
Name: Xxx X. Xxxxx
Title: Vice President
By /s/ Xxxxxx Xxxxxxxx
------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
SOVEREIGN BANK
By: /s/ Xxxxxx Xxxxxx
---------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
GREATER BAY CORPORATE FINANCE, A
DIVISION OF CUPERTINO NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President
SUNTRUST BANK, ATLANTA
By: /s/ Xxxx XxXxxx
-----------------------
Name: Xxxx XxXxxx
Title: Associate
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxx X. Xxxx
-----------------------
Name: Xxxxx X. Xxxx
Title: Director
THE UNDERSIGNED, WHETHER OR NOT CONSENT IS REQUIRED IN RESPECT OF ANY OF THE
FOREGOING, HEREBY CONFIRMS, AGREES TO AND ACCEPTS THE TERMS OF THIS AMENDMENT
NO. 2 AND CONFIRMS THE TRUTH AND ACCURACY OF THE REPRESENTATIONS AND WARRANTIES
RELATING TO ANY OF THE UNDERSIGNED.
APV, INC.
By /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
X. XXXXX CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
EXHIBIT A TO AMENDMENT AND
SUPPLEMENT NO. 2 TO THE CREDIT AGREEMENT
SCHEDULE I
TO CREDIT AGREEMENT
COMMITMENTS AND APPLICABLE LENDING OFFICES
------------------------------------------------------------------------------------------------------------------------------------
REVOLVING CREDIT
COMMITMENT SWINGLINE
(LETTERS OF CREDIT EUROPEAN COMMITMENT DOMESTIC
ARE A TERM A TERM B LETTER OF CREDIT (A SUBLIMIT OF THE LENDING
NAME OF LENDER SUBLIMIT OF THE COMMITMENT COMMITMENT COMMITMENT REVOLVING CREDIT OFFICE
REVOLVING COMMITMENT)
CREDIT COMMITMENTS)
------------------------------------------------------------------------------------------------------------------------------------
Fleet National Bank $2,311,358.43 $3,734,602.83 $7,514,956.15 BEF $3,000,000 Xxx Xxxxxxx Xxxxxx
80,813,700.50 Boston, Massachusetts
(LC = 24.3% x 02110
$5,000,000.00 = Fax: (617)
$1,215,000.00) 346-4375
Phone: (617)
346-4388
------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------
EURODOLLAR
LENDING
NAME OF LENDER OFFICE
----------------------------------------------
Fleet National Bank Xxx Xxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Fax: (617)
346-4375
Phone: (617)
346-4388
----------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
REVOLVING CREDIT
COMMITMENT SWINGLINE
(LETTERS OF CREDIT EUROPEAN COMMITMENT DOMESTIC
ARE A TERM A TERM B LETTER OF CREDIT (A SUBLIMIT OF THE LENDING
NAME OF LENDER SUBLIMIT OF THE COMMITMENT COMMITMENT COMMITMENT REVOLVING CREDIT OFFICE
REVOLVING COMMITMENT)
CREDIT COMMITMENTS)
------------------------------------------------------------------------------------------------------------------------------------
KBC Bank N.V. $1,273,331.46 $2,057,399.32 $4,140,002.67 BEF $0 000 Xxxx 00xx Xxxxxx
0 00xx Xxxxx
(XX = 13.4% x New York, New York
$5,000,000.00 = 10019
$670,000.00) Fax: (000) 000-0000
Phone: (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
Sovereign Bank $1,720,044.00 $2,779,180.04 $5,592,406.23 BEF $0 00 Xxxxx Xxxxx
162,007,863.42 Suite 430
(LC = 18.1% x Xxxxxx, XX 00000
$5,000,000.00 = Fax: (617)
$905,000.00) Phone: (617)
------------------------------------------------------------------------------------------------------------------------------------
Greater Bay Corporate $1,078,782.72 $1,743,055.05 $3,507,463.27 BEF $0 0000 Xxxxx Xxxxxxxxx
Finance, a division of 101,608,611.39 Suite 160
Cupertino National Bank (LC = 11.4% x Xxxxxx Xxxxx, XX 00000
$5,000,000.00 = Fax: (000)-000-0000
$570,000.00) Phone: (000)-000-0000
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------
EURODOLLAR
LENDING
NAME OF LENDER OFFICE
-----------------------------------------------
KBC Bank N.V. 000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
00000
Fax: (000) 000-0000
Phone: (212)
541-0704
-----------------------------------------------
Sovereign Bank 00 Xxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Fax: (617)
Phone: (617)
-----------------------------------------------
Greater Bay Corporate 0000 Xxxxx Xxxxxxxxx
Finance, a division of Suite 160
Cupertino National Bank Xxxxxx Xxxxx, XX
00000
Fax: (000)-000-0000
Phone: (000)-000-0000
-----------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
REVOLVING CREDIT
COMMITMENT SWINGLINE
(LETTERS OF CREDIT EUROPEAN COMMITMENT DOMESTIC
ARE A TERM A TERM B LETTER OF CREDIT (A SUBLIMIT OF THE LENDING
NAME OF LENDER SUBLIMIT OF THE COMMITMENT COMMITMENT COMMITMENT REVOLVING CREDIT OFFICE
REVOLVING COMMITMENT)
CREDIT COMMITMENTS)
------------------------------------------------------------------------------------------------------------------------------------
Union Bank of $1,558,241.70 $2,517,746.19 $5,066,335.84 BEF $0 000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, N.A. 146,767,994.23 Street
(LC = 16.4% x 18th Floor
$5,000,000.00 = Xxx Xxxxxxx, XX 00000
$820,000.00) Fax: (000)-000-0000
Phone: (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
SunTrust Bank, Atlanta $1,558,241.70 $2,517,746.19 $5,066,335.84 BEF $0 00 Xxxx Xxxxx
146,767,994.23 26th Floor
(LC = 16.4% x Xxxxxxx, XX 00000
$5,000,000.00 = Fax: (000) 000-0000
$820,000.00) Phone: (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------
EURODOLLAR
LENDING
NAME OF LENDER OFFICE
----------------------------------------------
Union Bank of 000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, X.X. Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Fax: (000)-000-0000
Phone: (000) 000-0000
----------------------------------------------
SunTrust Bank, Atlanta 00 Xxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX
00000
Fax: (000) 000-0000
Phone: (000) 000-0000
----------------------------------------------
