EXHIBIT 10.49
AMENDMENT NO. 2
TO
SENIOR SUBORDINATED NOTE AND WARRANT PURCHASE AGREEMENT
This AMENDMENT NO. 2 (this "AMENDMENT NO. 2") is made as of
this 21st day of January, 2000, by and among POLYVISION CORPORATION, a New York
corporation (the "COMPANY"), POSTERLOID CORPORATION, a Delaware corporation
("POSTERLOID"), GREENSTEEL, INC., a Delaware corporation ("GREENSTEEL") (each of
Posterloid and Greensteel, a "GUARANTOR" and collectively, the "GUARANTORS") and
Xxxx Xxxxxxx Mutual Life Insurance Company, Xxxx Xxxxxxx Variable Life Insurance
Company and Xxxxxxx Mezzanine Partners L.P. (collectively, the "PURCHASERS").
WHEREAS:
(A) The Purchasers are collectively the holders of $25,000,000
in aggregate principal amount of the Company's 12.5% Senior Subordinated Notes
due December 30, 2006 (the "NOTES") issued by the Company under a Senior
Subordinated Note and Warrant Purchase Agreement dated as of December 30, 1998
and previously amended by an Amendment No. 1 dated as of August 19, 1999 (the
"NOTE AGREEMENT"). Under the Note Agreement, the Guarantors have guaranteed the
obligations of the Company under the Note Agreement and the Notes. Certain
defined terms used in this Amendment No. 2 have the meanings given in Section
1.1 hereof. Capitalized terms not otherwise defined in this Amendment No. 2 have
the meanings given therefor in the Note Agreement, as amended.
(B) The Company has requested and the Purchasers have agreed,
upon and subject to the terms and conditions set forth herein, (i) to consent to
the acquisition by Greensteel of substantially all of the assets of American
Chalkboard Company, L.L.C., an Alabama limited liability company ("AMERICAN
CHALKBOARD"), pursuant to the terms of the Asset Purchase Agreement dated
JANUARY 21, 2000 for an aggregate cash purchase price not to exceed Five
Million, Two Hundred and Fifty Thousand Dollars ($5,250,000) before fees and
expenses, (ii) to permit the acquisition by Greensteel of substantially all of
the assets of Peninsular Slate Company and Peninsular Slate Company of Texas
(hereinafter referred to collectively, as "PENINSULAR SLATE"), pursuant to the
terms of the Asset Purchase Agreement dated JANUARY 21, 2000 for an aggregate
cash purchase price not to exceed Four Million, Two Hundred Thousand Dollars
($4,200,000) before fees and expenses, and (iii) to amend the definition of
Senior Credit Agreement under the Note Agreement to reflect the Amendment and
Supplement No. 3 to the Credit Agreement of even date and certain other
provisions.
NOW, THEREFORE, the parties agree:
ARTICLE I
AMENDMENTS TO NOTE AGREEMENT
The Note Agreement is hereby amended, effective upon the
satisfaction of the conditions precedent set forth in Article IV hereof, as
follows:
I.1 Section 10.1, "TERMS DEFINED", is amended:
(a) To insert the following new definitions in alphabetical order:
"AMENDMENT NO. 2" means the Amendment No. 2 to this Agreement dated as
of January 21, 2000 among the Company, the Guarantors and the Purchasers.
"AMENDMENT NO. 2 ACQUISITIONS" means the acquisitions by Greensteel of
all or substantially all of the assets of American Chalkboard and Peninsular
Slate, pursuant to the terms of the Amendment No. 2 Acquisition Documents.
"AMENDMENT NO. 2 ACQUISITION DOCUMENTS" means the American Chalkboard
Asset Purchase Agreement and the Peninsular Slate Asset 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
agreements; including, without limitation, any escrow agreements relating
thereto.
"AMENDMENT NO. 2 EFFECTIVE DATE" means the date set forth in Amendment
No. 2 as the "Amendment No. 2 Effective Date".
"AMERICAN CHALKBOARD" means American Chalkboard Company, L.L.C., an
Alabama limited liability company.
"AMERICAN CHALKBOARD ACQUISITION" means the acquisition by Greensteel
of substantially all of the assets of American Chalkboard, pursuant to the terms
of the American Chalkboard Asset Purchase Agreement.
"AMERICAN CHALKBOARD ASSET PURCHASE AGREEMENT" means the Asset Purchase
Agreement dated JANUARY 21, 2000, between Greensteel and American Chalkboard,
together with all schedules, exhibits and annexes thereto or delivered as a part
thereof.
"PENINSULAR SLATE" means, collectively, Peninsular Slate Company and
Peninsular Slate Company of Texas.
"PENINSULAR SLATE COMPANY" means Peninsular Slate Company, a Michigan
corporation.
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"PENINSULAR SLATE COMPANY OF TEXAS" means Peninsular Slate Company of
Texas, a Texas corporation.
"PENINSULAR SLATE ACQUISITION" means the acquisition by Greensteel of
all or substantially all of the assets of Peninsular Slate, pursuant to the
terms of the Peninsular Slate Asset Purchase Agreement.
"PENINSULAR SLATE ASSET PURCHASE AGREEMENT" means the Asset Purchase
Agreement dated JANUARY 21, 2000, between Greensteel and Peninsular Slate,
together with all schedules, exhibits and annexes thereto or delivered as a part
thereof.
(b) To amend the definition of "SENIOR CREDIT AGREEMENT" as follows:
"SENIOR CREDIT AGREEMENT - means the Credit Agreement, dated
November 20, 1998, among the Company, the banks, financial institutions
and other institutional lenders named therein, and Fleet National Bank,
as Administrative Agent, as Initial Issuing Bank and as Swing Line
Bank, as amended by an Amendment No. 1 dated as of December 30, 1998
and an Amendment and Supplement No. 2 dated as of August 19, 1999 and
an Amendment and Supplement No. 3 dated as of January 21, 2000 and as
thereafter amended in compliance with the provisions of Section 7.16."
I.2 Section 4.5 "Incurrence of Debt and Issuance of Preferred Stock"
is amended as follows:
(a) The reference to the amount "67.0 million" in clause (i) of Section
4.5 is replaced with the amount "$77.0 million".
I.3 Section 4.12 "FINANCIAL COVENANTS", is amended as follows:
(a) Subparagraph a of Section 4.12, "CONSOLIDATED DEBT TO EBITDA
RATIO", is amended to change both the proviso and the chart following such
proviso to read as follows (leaving the chart that appears prior to such proviso
unaltered):
PROVIDED, HOWEVER, that for purposes of calculating EBITDA for
the most recently completed four fiscal quarters of the Company and its
Subsidiaries 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 and the Amendment No.
2 Acquisitions):
Date Amount
---- ------
September 30, 1999 $3,300,000
December 31, 1999 $2,300,000
March 31, 2000 $1,350,000
June 30, 2000 $ 900,000
September 30, 2000 $ 450,000
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(b) Clause (2) of subparagraph b of Section 4.12, "INTEREST COVERAGE
RATIO", is amended to read as follows:
(2) for purposes of calculating EBITDA for the most recently
completed four fiscal quarters of the Company and its Subsidiaries
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 and the Amendment No. 2 Acquisitions):
Date Amount
---- ------
September 30, 1999 $3,300,000
December 31, 1999 $2,300,000
March 31, 2000 $1,350,000
June 30, 2000 $ 900,000
September 30, 2000 $ 450,000
(c) Clause (2) of subparagraph c of Section 4.12 "FIXED CHARGE COVERAGE
RATIO", is amended to read as follows:
(2) for purposes of calculating EBITDA for the most recently
completed four fiscal quarters of the Company and its Subsidiaries
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 and the Amendment No. 2 Acquisitions):
Date Amount
---- ------
September 30, 1999 $3,300,000
December 31, 1999 $2,300,000
March 31, 2000 $1,350,000
June 30, 2000 $ 900,000
September 30, 2000 $ 450,000
I.4 Section 12.6(d) is amended to add the words "and the Amendment No.
2 Acquisitions" at the end of clause (i) thereof.
ARTICLE II
CONSENT TO AMENDMENT NO. 2 ACQUISITIONS
II.1 Solely for the purposes of Section 4.4 "CAPITAL EXPENDITURES", of
the Note Agreement, the Purchasers hereby consent to the treatment of the
Amendment No. 2
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Acquisitions as a "permitted acquisition" under such Section 4.4. Such consent
shall not constitute a waiver of any Default or Event of Default under the Note
Agreement arising as a result of, or in connection with, the Amendment No. 2
Acquisitions or a waiver of any other term or condition of the Note Agreement
(as amended hereby) required to be complied with in connection with the
Amendment No. 2 Acquisitions.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS
The Company and the Guarantors jointly and severally represent, warrant
to and covenant and agree with the Purchasers that (with any such representation
or warranty applying to Greensteel being deemed to apply to Greensteel both
before and after giving effect to the Amendment No. 2 Acquisitions):
III.1 No Default or Event of Default exists under the Note Agreement
as of the date hereof or will exist after giving effect to the Amendment No.
2 Acquisitions.
III.2 Each of the representations and warranties set forth in
Section 8 of the Note Agreement is true in all respects as if made on the
date hereof and will be true as of the Amendment No. 2 Effective Date, except
(a) for changes in the ordinary course of business not prohibited by the Note
Agreement, none of which, either singly or in the aggregate, have had a
Material Adverse Effect on the Company and its Subsidiaries taken as a whole;
and (b) as set forth the amended Schedules to the Note Agreement attached
hereto as Schedule 1 to this Amendment No. 2 (provided no such disclosure
shall constitute a waiver of any breach of any such representation or
warranty existing as of the Closing Date).
III.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, and each other agreement, instrument or document
contemplated to be executed or delivered by any Loan Party pursuant to this
Amendment No. 2 (collectively, together with this Amendment No. 2, the
"AMENDMENT NO. 2 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 Amendment No. 2
Documents to which it is a party and the consummation of the transactions
contemplated hereby and thereby.
III.4 Neither the execution and delivery of the Amendment No. 2
Documents by any Loan Party nor the consummation by it of the transactions
contemplated hereby and thereby (a) conflict with, or result in any breach or
violation of any provision of, the charter 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 permitted by the Note Agreement) 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, the Exchange Act, 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,
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judgment, injunction, decree, determination or award applicable to such Loan
Party or any of its Subsidiaries.
III.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 any Amendment No. 2
Document to which it is a party, or (b) the exercise by the Purchasers of
their rights under the Transaction Documents.
III.6 Each Amendment No. 2 Document has been duly executed and
delivered by each Loan Party that is a party thereto and each of them, and
the Note Agreement as amended hereby constitutes the legal, valid and binding
obligation of each Loan Party thereto, enforceable against each such Loan
Party in accordance with its terms.
III.7 (a) Each party thereto has all necessary power and authority
to execute, deliver and perform each of the Amendment No. 2 Acquisition
Documents.
(b) Each Amendment No. 2 Acquisition Document has been duly executed
and delivered by each party thereto, is in full force and effect and enforceable
against the parties thereto in accordance with its terms. The representations
and warranties of each party thereto contained in each Amendment No. 2
Acquisition Document 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 of
the Amendment No. 2 Acquisitions, as if made on such date, and each Purchaser
shall be entitled to rely upon such representations and warranties with the same
force and effect as if they were incorporated in this Amendment No. 2 directly.
(c) The execution, delivery and performance of each of the Amendment
No. 2 Acquisition Documents by the parties thereto does not (i) violate any law,
rule or regulation (including, without limitation, the Xxxxxxxx Act, Sections 13
and 14 of the Exchange Act, 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
such 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 any Loan Party
is a party or is bound, or any other agreement or instrument by which any of the
properties or assets owned by any Loan Party 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 and the breach thereof or conflict
therewith does not have and could not reasonably be expected to have a Material
Adverse Effect) 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
permitted under the Note Agreement.
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(d) True, complete and correct executed copies of the Amendment No. 2
Acquisition Documents have been delivered to the Purchasers. The Amendment No. 2
Acquisitions shall be consummated pursuant to the terms and conditions of the
Amendment No. 2 Acquisition Documents in the form previously delivered to the
Purchasers. No Loan Party or any of their Subsidiaries has waived compliance by
any of the other parties to the Amendment No. 2 Acquisition Documents 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 breach or failure to perform is of a material term or condition
thereof or could reasonably be expected to have a Material Adverse Effect.
(e) 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 the due execution, delivery, recordation,
filing or performance by any party thereto of any Amendment No. 2 Acquisition
Documents.
(f) True, complete, and correct executed copies of the Amendment and
Supplement No. 3 to the Senior Credit Agreement dated as of January 21, 2000
and all other documents, instruments or agreement executed in connection
therewith (the "SENIOR CREDIT DOCUMENTS") have been delivered to the
Purchasers. The transactions contemplated by the Senior Credit Documents
shall be consummated solely pursuant to the terms and conditions of such
Senior Credit Documents and the proceeds thereof shall be used solely to
finance the Amendment No. 2 Acquisitions, for working capital and otherwise
permitted capital expenditures. None of the parties to the Senior Credit
Documents have 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..
(g) No Loan Party nor any Loan Party'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. No Loan Party is subject to regulation under
any federal, state or foreign statute or regulation which limits its ability to
incur Debt.
III.8 The Amendment No. 2 Acquisitions, on a pro forma basis
(calculated as if the Amendment No. 2 Acquisitions had occurred at the
beginning of the applicable four-quarter reference period) results in (i) the
ratio of Consolidated Debt to EBITDA as at December 31, 1999 being lower and
(ii) the Fixed Charge Coverage Ratio as at December 31, 1999 being higher,
than if the Amendment No. 2 Acquisitions are not consummated. No Acquired
Debt is being incurred in connection with the consummation of the Amendment
No. 2 Acquisitions.
III.9 FINANCIAL STATEMENTS. The Consolidated balance sheets of
American Chalkboard as at the fiscal years ended December 31, 1996, December
31, 1997 and December 31, 1998 and the related Consolidated statements of
income and statements of cash flows of American Chalkboard for the fiscal
years ended 1996, 1997 and 1998, accompanied by an opinion of Xxxxxxxx,
Xxxxxx & Company, P.C., and the unaudited Consolidated balance sheet of
American
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Chalkboard as applicable at September 30, 1999, and the related unaudited
Consolidated statement of income and Consolidated statement of cash flows of
American Chalkboard for the nine months ended September 30, 1999 duly certified
by the chief financial officer of American Chalkboard, copies of which have been
furnished to each Purchaser by the Company, 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 American Chalkboard as at such dates and the
Consolidated results of the operations of American Chalkboard for the periods
ended on such dates, 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.
(a) The Consolidated balance sheets of Peninsular Slate Company as at
the fiscal years ended December 31, 1996, December 31, 1997 and December 31,
1998 and the related Consolidated statements of income and statements of cash
flows of Peninsular Slate Company for the fiscal years ended 1996, 1997 and
1998, compiled by Xxxxx & Xxxxx, P.C. and the unaudited Consolidated balance
sheet of Peninsular Slate Company as applicable at September 30, 1999, and the
related unaudited Consolidated statement of income and Consolidated statement of
cash flows of Peninsular Slate Company for the nine months ended September 30,
1999 duly certified by the chief financial officer of Peninsular Slate Company,
copies of which have been furnished to each Purchaser by the Company, 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 Peninsular Slate
Company as at such dates and the Consolidated results of the operations of
Peninsular Slate Company for the periods ended on such dates, 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.
(b) The Consolidated balance sheets of Peninsular Slate Company of
Texas as at the fiscal years ended April 30, 1998 and April 30, 1999 and the
related Consolidated statements of income and statements of cash flows of
Peninsular Slate Company of Texas for the fiscal years ended 1997, 1998 and
1999, compiled by of Xxxxx & Xxxxx, P.C. and the unaudited Consolidated balance
sheet of Peninsular Slate Company of Texas as applicable at September 30, 1999,
and the related unaudited Consolidated statement of income and Consolidated
statement of cash flows of Peninsular Slate Company of Texas for the five months
ended September 30, 1999 duly certified by the chief financial officer of
Peninsular Slate Company of Texas, copies of which have been furnished to each
Purchaser by the Company, 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 adjustments, the Consolidated
financial condition of Peninsular Slate Company of Texas as at such dates and
the Consolidated results of the operations of Peninsular Slate Company of Texas
for the periods ended on such dates, all in accordance with GAAP applied on a
consistent basis, and, since April 30, 1999 there has been no change which could
reasonably be expected to result in a Material Adverse Effect.
III.10 PRO FORMA FINANCIAL STATEMENTS; PROJECTIONS. The Consolidated
pro forma balance sheet of the Company and its Subsidiaries as at September
30, 1999 and the related
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Consolidated pro forma statement of income and cash flows of the Company and its
Subsidiaries for the twelve month period then ended, certified by the chief
executive officer or chief financial officer of the Company, copies of which
have been furnished to each Purchaser by the Company, fairly present the
Consolidated pro forma financial condition of the Company and its Subsidiaries
as at such date and the Consolidated pro forma results of operations of the
Company and its Subsidiaries for the period ended on such date, in each case
after giving effect to the Amendment No. 2 Acquisitions, all in accordance with
GAAP (to the extent that pro forma information can comply with GAAP) and subject
to the assumptions stated therein (the aforementioned financial statements are
hereinafter referred to collectively as the "AMENDMENT NO. 2 PRO FORMA
FINANCIALS").
(a) 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 Company's 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).
III.11 ACCURATE INFORMATION. None of the information, exhibits or
reports furnished by any Loan Party to any Purchaser in connection with this
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 IV
CONDITIONS
The effectiveness of this Amendment No. 2 shall be subject to the
fulfillment of each of the conditions set forth in this Article IV. The date on
which all such conditions shall have been fulfilled and this Amendment No. 2
shall have become effective, is the "Amendment No. 2 Effective Date":
IV.1 Each of the parties hereto shall have executed and delivered this
Amendment No. 2.
IV.2 The representations and warranties contained herein and each other
agreement, instrument, certificate or other writing delivered to the Purchasers
pursuant hereto shall be correct on and as of the date hereof and the Amendment
No. 2 Effective Date after giving effect to this Amendment No. 2 as though made
on and as of such dates except to the extent modified hereby. No Default or
Event of Default shall have occurred and be continuing on the Amendment No. 2
Effective Date.
IV.3 The Company shall have paid all reasonable legal (U.S. and
foreign) and other out-of-pocket expenses incurred by the Purchasers in
connection with the transactions
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contemplated by or referred to in this Amendment No. 2, including, without
limitation, out-of-pocket due diligence, transportation, computer, duplication,
appraisal, audit and consultant fees.
IV.4 The Loan Parties shall have otherwise complied in all respects
with the terms hereof and of any other agreement, document, instrument or other
writing to be delivered by any Loan Party in connection herewith.
IV.5 The Purchasers shall have received the following, each in form and
substance satisfactory to them:
(a) copies of the resolutions of the Board of Directors of each Loan
Party, certified by a Senior Officer thereof, authorizing, to the extent a party
thereto, the execution, delivery and performance by such Loan Party of this
Amendment No. 2 and the other Amendment No. 2 Documents;
(b) long-form good standing certificates of recent date for each Loan
Party 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 Loan Party by a Senior
Officer and the Secretary or an Assistant Secretary of each Loan Party,
certifying the names and true signatures of the officers of such Loan Party
authorized to sign the Amendment No. 2 Documents, together with evidence of the
incumbency of such authorized officers; and certifying that the other conditions
set forth in this Article IV have been satisfied.
IV.6 The Amendment No. 2 Acquisitions shall have been consummated
pursuant to the terms and conditions of the Amendment No. 2 Acquisition
Documents for an aggregate cash amount not exceeding $9,450,000 (before fees and
expenses).
IV.7 The Amendment No. 2 Acquisition Documents and the Senior Credit
Documents shall be satisfactory in form and substance to the Purchasers in their
sole discretion.
IV.8 The Purchasers shall have received the following all of which
shall be satisfactory in form and substance to the Purchasers, certified by the
chief financial officer of the Company:
(a) the Amendment No. 2 Pro Forma Financials;
(b) projections for the Company and its Subsidiaries commencing with
the Fiscal Year ending 12/31/00 through Fiscal Year ending 12/31/06;
(c) A computation in detail of consolidated pro forma trailing
twelve-month EBITDA for the Company and its Subsidiaries for the period ended
September 30, 1999 which shall not be less than $24,500,000 (provided, however,
there shall be added to such EBITDA the amount of $3,300,000 (representing
estimated cost savings resulting from the AIG Acquisition, the Xxxxxx Xxxxx
Acquisition and the Amendment No. 2 Acquisitions)) and determined in accordance
with the Amendment No. 2 Pro Forma Financials; and
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(d) A computation of the Consolidated Debt to EBITDA Ratio, including
in Consolidated Debt the Debt evidenced by the Notes, demonstrating that such
ratio is not greater than 4.5:1 on the Amendment No. 2 Effective Date and a
computation of the Consolidated Debt to EBITDA Ratio, excluding the Debt
evidenced by the Notes, demonstrating that such ratio is not greater than 4.2:1
on the Amendment No. 1 Effective Date (and in each case such ratio shall be
calculated in the same manner as is set forth in Section 4.12(a) of the Note
Agreement as amended by this Amendment No. 2).
(e) Audited financial statements for American Chalkboard's fiscal years
ended December 31, 1996, December 31, 1997 and December 31, 1998 prepared by
Xxxxxxxx, Xxxxxx & Company, P.C., in form and substance (excluding in immaterial
respects) satisfactory to the Required Holders;
(f) Compiled financial statements for Peninsular Slate Company's fiscal
years ended December 31, 1996, December 31, 1997 and December 31, 1998 prepared
by Xxxxx & Xxxxx, P.C., in form and substance (excluding in immaterial respects)
satisfactory to the Required Holders; and
(g) Compiled financial statements for Peninsular Slate Company of
Texas' fiscal years ended April 30, 1997, April 30, 1998 and April 30, 1999
prepared by Xxxxx & Xxxxx, P.C., in form and substance (excluding in immaterial
respects) satisfactory to the Required Holders.
IV.9 All governmental and third party consents and approvals necessary
in connection with the Amendment No. 2 Acquisitions shall have been obtained,
including, without limitation, the consent of holders of the Senior Debt
(without the imposition of any conditions that are not acceptable to the
Required Holders) 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
Required Holders that restrains, prevents or imposes materially adverse
conditions upon any of the Amendment No. 2 Acquisitions or the Note Agreement.
IV.10 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 Amendment No. 2 Acquisitions or the Note Agreement.
IV.11 The Purchasers shall have received all financial, business and
other information regarding the Company and its Subsidiaries and its properties
and assets as they shall have reasonably requested, and all of the foregoing
shall be acceptable to the Purchasers in their sole discretion.
IV.12 The Company shall have delivered a certificate, in form and
substance reasonably satisfactory to the Purchasers, attesting to the Solvency
of the Company and its Subsidiaries, individually and on a consolidated basis
immediately before and immediately after giving effect to the Amendment No. 2
Acquisitions, from the chief financial officer of the Company.
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IV.13 The Purchaser shall have received a favorable written opinion of
Xxxxxxxxx Traurig LLP, counsel to the Company, as to such matters as the
Purchasers may reasonably require relating to the Amendment No. 2 Acquisitions
(including the absence of any required governmental consents in connection
therewith) and the Amendment No. 2 Documents in form and substance as the
Purchasers may reasonably request.
IV.14 All proceedings in connection with the transactions contemplated
by this Amendment No. 2 and the Amendment No. 2 Acquisitions, and all documents
incidental thereto shall be reasonably satisfactory to the Purchasers, and each
Purchaser shall have received all such information and such counterpart
originals or certified copies of documents as may have been reasonably
requested.
ARTICLE V
CONFIRMATION OF GUARANTY
V.1 Each Guarantor hereby (i) acknowledges and consents to this
Amendment No. 2 (whether or not its consent is required); (ii) confirms and
agrees that its guaranty as set forth in Section 11 of the Note Agreement is,
and shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects, and all references in the Note Agreement shall mean
the Note Agreement as amended by this Amendment No. 2; and (iii) confirm and
agree that the obligations guaranteed by such Guarantor in such Section 11
include the obligations of the Company to the Holders under the Note Agreement
and the Notes as amended by this Amendment No. 2.
ARTICLE VI
CONTINUED EFFECTIVENESS OF NOTE AGREEMENT
Except as specifically amended herein, the Note Agreement and the other
Transaction Documents are, and shall remain, in full force and effect, and are
hereby ratified and confirmed in all respects except that on and after the
Amendment No. 2 Effective Date all references to the Note Agreement shall mean
the Note Agreement as amended and supplemented by this Amendment No. 2.
ARTICLE VII
MISCELLANEOUS
VII.1 This Amendment No. 2 shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, without
regard to any conflicts of law rules which would require the application of
the laws of any other jurisdiction.
VII.2 No modification or waiver of or with respect to any provisions
of this Amendment No. 2 or any other agreements, instruments and documents
delivered pursuant hereto nor consent by the Purchasers to any departure by
the Company or either Guarantor from any of the terms or
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conditions thereof, shall in any event be effective unless it shall be in
writing and executed in accordance with the provisions of the Note 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 Company or
either Guarantor 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 Note Agreement, as so amended, and the other Transaction
Documents embodies the entire agreement and understanding among the Loan Parties
and the Purchasers, and supersedes all prior agreements and understandings,
relating to the subject matter hereof.
VII.3 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.
VII.4 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.
VII.5 This Amendment No. 2 shall be binding upon and inure to the
benefit of the Loan Parties and their respective successors and to the
benefit of the Purchasers, any Holder and their respective successors and
assigns. The rights and obligations of the Loan Parties under this Amendment
No. 2 shall not be assigned or delegated without the prior written consent of
the Required Holders, and any purported assignment or delegation without such
consent shall be void.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be
duly executed on the date first above written.
LOAN PARTIES: POLYVISION CORPORATION
By /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer, Treasurer
and Secretary
POSTERLOID CORPORATION
By /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer, Treasurer
and Secretary
GREENSTEEL, INC.
By /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer, Treasurer
and Secretary
PURCHASERS: XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By /s/ Xxxxx Agretzlis
------------------------------------
Name: Xxxxx Agretzlis
Title: Assistant Investment Officer
SIGNATURE PAGE TO AMENDMENT NO. 2
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President Investments
XXXXXXX MEZZANINE PARTNERS L.P.
BY: XXXXXXX MEZZANINE
INVESTMENTS LLC, its General Partner
BY: Xxxx Xxxxxxx Mutual Life Insurance
Company, as Investment Manager
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Second Vice President
Consented to:
FLEET NATIONAL BANK,
as Administrative Agent under the Senior Credit
Agreement referenced herein on behalf of the
Lenders
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 2
