EXHIBIT 10.48
AMENDMENT AND SUPPLEMENT NO. 3
TO
CREDIT AGREEMENT
AGREEMENT, made as of this 21st day of January, 2000, 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");
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, as further amended by
Amendment No. 2 to Credit Agreement dated as of August 19, 1999, 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 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
assumed liabilities, 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,
(iii) to increase the Term A Facility by an aggregate principal amount of Ten
Million ($10,000,000) Dollars, which amount shall be used to finance, in part,
the Amendment No. 3 Acquisitions (as hereinafter defined), (iv) to amend and
restate Section 2.4(a) of the Credit Agreement relating to the repayment of the
Term A Advances, (v) to add a new Lender; and (vi) to revise certain other
provisions of the Credit Agreement; and
(C) 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. 3 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. 3 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:
"AMENDMENT NO. 3" means the Amendment and Supplement No. 3 to
Credit Agreement dated as of January 21, 2000 among the Borrowers, the Lender
Parties signatory thereto and the Administrative Agent.
"AMENDMENT NO. 3 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. 3 Acquisition
Documents.
"AMENDMENT NO. 3 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. 3 EFFECTIVE DATE" means the date set forth in
Amendment No. 3 as the "Amendment No. 3 Effective Date".
"AMENDMENT NO. 3 TRANSACTIONS" means the transactions
contemplated by the Amendment No. 3 Acquisition Documents and by Amendment No.
3.
"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 as of JANUARY 21, 2000 (as it may from time to time be
amended, supplemented, restated or otherwise modified to the extent not
prohibited under this Agreement), 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.
"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 as of JANUARY 21, 2000 (as it may from time to time be
further amended, supplemented, restated or otherwise modified to the extent not
prohibited under this Agreement), between Greensteel and Peninsular Slate,
together with all schedules, exhibits and annexes thereto or delivered as a part
thereof.
1.2 The definition of "Material Adverse Effect" is amended to
add immediately following the words "on the Closing Date and after giving effect
to the consummation of the Xxxxxx Xxxxx Acquisition on the Amendment No. 2
Effective Date" the words "and after giving effect to the consummation of the
Amendment No. 3 Acquisitions on the Amendment No. 3 Effective Date".
1.3 The definition of "Existing Debt" is amended to insert
immediately following the words "the Xxxxxx Xxxxx Transaction" the words "and
(as of the date of Amendment No. 3) the Amendment No. 3 Transactions".
1.4 Section 2.1(a), "THE TERM A ADVANCES", is amended and
restated to read as follows:
(a) THE TERM A ADVANCES. The Borrowers acknowledge that each
of the Term A Lenders (other than Bankers Trust Company, which
became a Lender pursuant to Amendment No. 3) has made a Term A
Advance to the Borrowers either on the Closing Date or on the
Amendment No. 2 Effective Date (or assumed a portion thereof
by assignment after the Closing Date) 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 Date by
assignment). Bankers Trust Company agrees, on the terms and
conditions hereinafter set forth, to make a Term A Advance to
the Borrowers on the Amendment No. 3 Effective Date in an
amount not to exceed Bankers Trust Company's Term A Commitment
on such date. Except for the Term A Advance made by Bankers
Trust Company to the Borrowers on the Amendment No. 3
Effective Date, 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.
1.5 (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
---- ------
January 31, 2000 $649,887.84
Each of April 30, July 31 and October 31, 2000 $1,098,293.92
Each of January 31, April 30, July 31 and
October 31, 2001 $1,308,742.52
Each of January 31, April 30, July 31 and
October 31, 2002 $1,462,362.98
Each of January 31, April 30, July 31 and
October 31, 2003 $2,048,525.52
Each of January 31, April 30, July 31 and
October 31, 2004 $ 479,970.48
1.7 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 and the Amendment
No. 3 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 the Amendment No. 3 Acquisitions, nor
shall any Revolving Credit Advances be borrowed in
anticipation of the Amendment No. 3 Acquisitions, and (b) the
proceeds of the Term A Advance made on the Amendment No. 3
Effective Date shall be used to finance, in part, the
Amendment No. 3 Acquisitions, with the remainder of such
proceeds to be used to pay fees and expenses related to the
Amendment No. 3 Acquisitions and for working capital and
capital expenditures of the Borrowers.
1.8 Sections 4.27 and 11.4(b) are amended to insert a comma
immediately following the words "Transaction" or "Transactions", to delete the
word "or" before the words "the Xxxxxx Xxxxx Transaction", and to add,
immediately following the words "the Xxxxxx Xxxxx Transaction" the words "or the
Amendment No. 3 Transactions."
1.9 Section 5.15, "PERFORMANCE OF AIG ACQUISITION DOCUMENTS",
is amended to add immediately following the words "Xxxxxx Xxxxx Acquisition
Documents"(but before the end of the parenthetical), the phrase "and Permitted
Acquisition Documents".
1.10 Section 6.12, "AMENDMENT, ETC. OF AIG ACQUISITION
DOCUMENTS", is amended to add immediately following the words "Xxxxxx Xxxxx
Acquisition Documents" (but before the end of the parenthetical), the phrase
"and Permitted Acquisition Documents."
1.11 Section 8.1, "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 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, the Xxxxxx Xxxxx Acquisition and the
Amendment No. 3 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
1.12 Section 8.2, "INTEREST COVERAGE 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 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, the Xxxxxx Xxxxx Acquisition and the
Amendment No. 3 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
1.13 Section 8.3, "FIXED CHARGE COVERAGE 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 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, the Xxxxxx Xxxxx Acquisition and the
Amendment No. 3 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
1.14 Section 11.4(b) is amended to add immediately following
the words "Xxxxxx Xxxxx Acquisition" the words "and/or Permitted Acquisitions."
1.15 Schedule I to the Credit Agreement is replaced by
Schedule I annexed hereto as EXHIBIT A.
1.16 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.
ARTICLE II.
ADDITION OF NEW LENDER; CHANGES IN COMMITMENTS
2.1 (a) The parties hereto hereby acknowledge and confirm that
immediately upon the Amendment No. 3 Effective Date (as defined in Article V
below), Bankers Trust Company shall become a party to the Credit Agreement
(including any amendments thereto) and shall have the rights and obligations of
a Lender thereunder.
(b) Bankers Trust Company (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 decisions 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 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 Commencing as of the Amendment No. 3 Effective Date,
Schedule I to the Credit Agreement shall be deemed amended and restated in the
form annexed hereto as EXHIBIT A to reflect the addition of Bankers Trust
Company as a Term A Lender and its Term A Commitment as of the Amendment No. 3
Effective Date.
2.3 The Borrowers shall, simultaneously with the execution and
delivery of this Amendment No. 3, execute and deliver in favor of Bankers Trust
Company, 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 Bankers Trust
Company as shown on EXHIBIT A annexed hereto (the "NEW TERM A NOTE").
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 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. 3, the Lender
Parties and the Administrative Agent hereby consent to the acquisition by
Greensteel of substantially all of the assets of American Chalkboard and the
acquisition by Greensteel of all or substantially all of the assets of
Peninsular Slate (hereinafter collectively referred to as the "ACQUIRED ASSETS")
(as defined in Section 1.1 hereof and hereafter, the "AMENDMENT NO. 3
ACQUISITIONS"), upon the terms and conditions set forth in the Amendment No. 3
Acquisition Documents (as defined in Section 1.1 hereof and hereafter, the
"AMENDMENT NO. 3 ACQUISITION 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. The Amendment
No. 3 Acquisitions shall be deemed to be Permitted Acquisitions, as such term is
defined in the Credit Agreement and all references in the Credit Agreement and
this Amendment No. 3 to Permitted Acquisitions shall be deemed to include the
Amendment No. 3 Acquisitions.
3.2 The Administrative Agent and the Lender Parties
acknowledge that simultaneously with the execution and delivery of this
Amendment No. 3, each of the Borrowers and each Domestic Subsidiary has executed
and delivered to the Administrative Agent appropriate amendments to 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. 3) 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; and (b)
that certain amended Schedules to the Credit Agreement are attached hereto as
SCHEDULE 1 to this Amendment No. 3; such Schedules having been amended to
reflect, in all applicable respects, Greensteel's acquisition of the Acquired
Assets.
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. 3, the New Term A Note, amendments to the Initial Security
Agreement and the Intellectual Property Security Agreement, and each other
agreement, instrument or document contemplated to be executed or delivered by
the Borrowers or any other Loan Party pursuant to this Amendment No. 3 (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. 3, 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 Amendment No. 3
Acquisitions, (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, and except for filing UCC financing statements in additional
jurisdictions as occasioned by the Amendment No. 3 Acquisitions. All applicable
waiting periods in connection with the Amendment No. 3 Acquisitions have expired
without any action having been taken by any competent authority restraining,
preventing or imposing materially adverse conditions upon the Amendment No. 3
Acquisitions 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. 3, the New Term A Note 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 Term A Note and the Credit Agreement as amended hereby.
Except for the filing of UCC financing statements in additional jurisdictions as
occasioned by the Amendment No. 3 Acquisitions, 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 portion of the Term A Advance that is being made
pursuant to this Amendment No. 3.
4.8 (a) The Borrowers and each other Loan Party thereto has
the corporate power to execute and deliver each of the Amendment No. 3
Acquisition Documents to which it is or will be a party and to perform such
Amendment No. 3 Acquisition Documents.
(b) Each Amendment No. 3 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 Amendment No. 3 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 Amendment No. 3 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 Amendment No. 3 Effective Date and the date of consummation of
the Amendment No. 3 Acquisitions, 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 Administrative Agent and each
Lender Party directly as of the date hereof, the Amendment No. 3 Effective Date,
and the date of consummation of the Amendment No. 3 Acquisitions.
(c) The execution and delivery by any Loan Party of each
of the Amendment No. 3 Acquisition Documents to which it is or will be a party
and the performance by each such Loan Party under each of the Amendment No. 3
Acquisition 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 the Borrowers and
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 each of the Amendment No. 3
Acquisitions, each such Amendment No. 3 Acquisition shall have been consummated
pursuant to the terms and conditions of the applicable Amendment No. 3
Acquisition Documents and in compliance with all applicable laws, and ownership
of all of the Acquired Assets shall have vested in Greensteel 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 Amendment No. 3 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 Assets or
otherwise have a Material Adverse Effect.
(e) Each Amendment No. 3 Acquisition 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 Amendment No. 3
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 Amendment No. 3 Acquisition 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.
(f) True, correct and complete copies of each of the
Amendment No. 3 Acquisition Documents have been delivered to the Administrative
Agent, and as of the Amendment No. 3 Effective Date, each of the Amendment No. 3
Acquisitions shall have been consummated in accordance therewith, and no party
thereto shall have waived any material term or condition contained therein.
(g) Each Amendment No. 3 Acquisition Document to which any
Loan Party or American Chalkboard or Peninsular Slate is a party, when duly
executed and delivered by such Loan Party, American Chalkboard or Peninsular
Slate, as applicable, constitutes the valid and legally binding obligation of
each such Loan Party or (to the best knowledge of the Borrowers) American
Chalkboard and Peninsular Slate, as the case may be, enforceable in accordance
with its terms.
(h) 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. 3 or any Amendment No. 3
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. (a) 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 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 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 American Chalkboard as at such dates and the Consolidated
results of the operations of American Chalkboard 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.
(b) 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
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
Peninsular Slate Company as at such dates and the Consolidated results of the
operations of Peninsular Slate Company 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.
(c) 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 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
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 period ended on such date, 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.
4.10 PRO FORMA FINANCIAL STATEMENTS; PROJECTIONS. (a) The
Consolidated pro forma balance sheet of the Borrowers and their Subsidiaries as
at September 30, 1999 and the related Consolidated pro forma statement of income
and cash flows of the Borrowers and their Subsidiaries for the twelve month
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 Amendment No. 3
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. 3 PRO FORMA FINANCIALS").
(b) The projections delivered on the Amendment No. 3 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 this Amendment No. 3
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. 3 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. 3 shall have
become effective, shall be herein called the "AMENDMENT NO. 3 EFFECTIVE DATE":
5.1 Each of the parties hereto shall have executed this
Amendment No. 3 and delivered its signature hereon 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. 3 as though made on and as of such date except to the extent
modified hereby and subject to permitted changes in accordance with Section 4.2
hereof and (b) no Default or Event of Default shall have occurred and be
continuing on the Amendment No. 3 Effective Date or would result from the taking
effect of this Amendment No. 3, or the transactions contemplated hereby,
including the Amendment No. 3 Acquisitions.
5.3 The Borrowers shall have:
(a) executed and delivered to Bankers Trust Company its
New Term A Note, in form and substance satisfactory to the Administrative Agent
and the Lender Parties;
(b) paid to each Lender who was a party to the Credit
Agreement with outstanding Advances immediately prior to the Amendment No. 3
Effective Date (or to the Administrative Agent for distribution to such
Lenders), $10,000;
(c) 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;
(d) paid all reasonable legal (U.S. and foreign) and
other out-of-pocket expenses incurred by the Administrative Agent in connection
with the transactions contemplated by or referred to in this Amendment No. 3,
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 reasonable out-of-pocket expenses theretofore incurred by the
Administrative Agent in connection with the administration of the loan
documentation;
(e) 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:
(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. 3 and the other New Documents; and (ii) the Amendment No.
3 Acquisitions and the execution, delivery and consummation of the Amendment No.
3 Acquisition Documents to which any of the Borrowers or APV is or is to be a
party;
(b) 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, stating that there have been no
amendments to such Borrower's, or APV's, charter since the Closing Date, or, in
the case of PolyVision, since the Amendment No. 2 Effective Date; and
(d) 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. 3 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 Acquired Assets, the Administrative
Agent shall have received each of the following duly executed by each applicable
Loan Party, and otherwise in form and substance satisfactory to the
Administrative Agent:
(a) an amendment to the 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 Acquired Assets of the type of Collateral described in the Initial
Security Agreement, 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. 3 Effective
Date, listing all effective financing statements filed that name either American
Chalkboard or Peninsular Slate 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 American
Chalkboard and Peninsular Slate; and
(vi) evidence that all other action that the
Administrative Agent may reasonably 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, INCLUDING, without limitation payment of all necessary or
appropriate filing and recording fees and taxes;
(b) an amendment to the 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
Acquired Assets of the type of Collateral described in the Intellectual Property
Security Agreement, 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;
(c) (1) mortgages and leasehold mortgages (as
applicable) on such owned and leased real property as the
Administrative Agent may reasonably 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 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 to the Credit
Agreement (as amended hereby), 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 Secured Parties; and
(d) evidence that each Borrower is duly qualified and in
good standing or existence as a foreign corporation in each State in which
applicable law requires such Borrower to be so qualified, after giving effect to
the acquisition of the Acquired Assets.
5.6 (a) The Administrative Agent shall have received copies of
the Amendment No. 3 Acquisition Documents which shall be certified as true,
correct and complete by a Responsible Officer of Greensteel, and shall be
satisfactory to the Administrative Agent and the Lender Parties in all respects;
(b) The American Chalkboard Acquisition (as defined in
Section 1.1 hereof and hereafter the "AMERICAN CHALKBOARD ACQUISITION") shall
have been consummated (prior to or simultaneously with the Amendment No. 3
Effective Date) pursuant to the terms and conditions of the American Chalkboard
Asset Purchase Agreement (as defined in Section 1.1 hereof) for an aggregate
cash amount at the Amendment No. 3 Effective Date not exceeding Five Million Two
Hundred and Fifty Thousand ($5,250,000) Dollars (before assumed liabilities,
fees and expenses);
(c) The Peninsular Slate Acquisition (as defined in
Section 1.1 hereof and hereafter the "PENINSULAR SLATE ACQUISITION") shall have
been consummated (prior to or simultaneously with the Amendment No. 3 Effective
Date) pursuant to the terms and conditions of the Peninsular Slate Asset
Purchase Agreement (as defined in
Section 1.1 hereof) for an aggregate cash amount at the Amendment No. 3
Effective Date not exceeding Four Million Two Hundred Thousand ($4,200,000)
Dollars (before assumed liabilities, fees and expenses);
(d) Upon the Administrative Agent's request, the
Borrowers 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; and
(e) The Borrowers shall have (i) 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.3
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 Amendment No. 3 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.
5.7 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) the Amendment No. 3 Pro Forma Financials;
(b) projections for the Borrowers and their Subsidiaries
commencing with Fiscal Year ended December 31, 2000 through Fiscal Year ended
December 31, 2006;
(c) A computation in detail of consolidated pro forma
trailing twelve-month EBITDA of Polyvision and its Subsidiaries (as of 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. 3 Acquisitions)) and determined in accordance with the
Amendment No. 3 Pro Forma Financials;
(d) A computation of the Consolidated Debt to EBITDA
Ratio, including in Consolidated Debt the debt evidenced by the Junior
Subordinated Note,
demonstrating that such Ratio is not greater than 4.5:1 on the Amendment No. 3
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 4.2:1 on the Amendment No. 3 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 as amended by this Amendment No. 3);
(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
Lenders;
(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 Lenders; 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 Lenders.
5.8 All governmental and third party consents and approvals
necessary in connection with each aspect of the Amendment No. 3 Acquisitions 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 Amendment No. 3
Acquisitions or the Facilities.
5.9 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. 3 Acquisitions or the
Facilities.
5.10 The Lender Parties shall have received all additional
financial, business and other information regarding the Borrowers and their
respective properties and assets (including, without limitation, the Acquired
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.
5.11 The Borrowers shall have delivered a certificate, in form
and substance reasonably satisfactory to the Administrative Agent and the Lender
Parties, attesting to the Solvency of the Borrowers immediately before and
immediately after giving effect to the Amendment No. 3 Acquisitions, from the
chief financial officer of each of the Borrowers.
5.12 The Administrative Agent shall have received a favorable
written opinion of Xxxxxxxxx Traurig, counsel to the Borrowers and APV, and of
such other counsel to the Borrowers (including foreign counsel) as the
Administrative Agent may reasonably require, as to such matters relating to the
transactions contemplated by this Amendment No. 3 (including the Amendment No. 3
Acquisitions (and absence of any required governmental consents in connection
therewith)) and the Collateral Documents executed in connection therewith in
form and substance as the Lender Parties may reasonably request.
5.13 All proceedings in connection with the transactions
contemplated by this Amendment No. 3 including each of the Amendment No. 3
Acquisitions, 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.
5.14 In order to reflect the addition of Bankers Trust Company
as a Lender under the Credit Agreement and to reflect the Term A Advance being
made pursuant to the terms of this Amendment No. 3, the Administrative Agent
shall have received amendments to all Mortgages previously delivered in
connection with the Credit Agreement, duly executed by the applicable Loan
Party.
5.15 In order to reflect the addition of Bankers Trust Company
as a Lender under the Credit Agreement and to reflect the Term A Advance being
made by Bankers Trust Company pursuant to the terms of this Amendment No. 3, the
Administrative Agent shall have received an amendment to the Pledge Agreement
relating to shares in PolyVision France duly executed by PolyVision France.
ARTICLE VI.
ACKNOWLEDGEMENTS, CONFIRMATIONS AND GENERAL AMENDMENTS
6.1 APV hereby (i) acknowledges and consents to this Amendment
No. 3 (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. 3;
(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. 3, and under
the New Term A Note; and (iv) confirms and agrees that the Liens 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 Term A Note 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 Note.
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" 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. 3.
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. 3 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 Credit
Agreement shall mean the Credit Agreement as amended and supplemented by this
Amendment No. 3.
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. 3 shall be governed by 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. 3 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. 3, 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. 3 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. 3 in any jurisdiction.
8.5 This Amendment No. 3 may be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument. Signatures may be delivered by fax with the same
binding effect as original ink signatures.
8.6 This Amendment No. 3 shall be binding upon and inure to
the benefit of the Borrowers and their respective successors and the
Administrative Agent and the Lender Parties and their respective successors and
assigns. The rights and obligations of the Borrowers under this Amendment No. 3
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.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 3 to be duly executed on the date first above written.
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
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/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx X. Xxxxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
KBC BANK N.V.,
as a Lender under the Credit Agreement and each of
the KBC Loan Agreements
By /s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
By /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
SOVEREIGN BANK
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
GREATER BAY CORPORATE FINANCE,
A DIVISION OF CUPERTINO
NATIONAL BANK
By: /s/ Xxxx XxXxxxxx
----------------------------------------
Name: Xxxx XxXxxxxx
Title: Vice President
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY
By: /s/ Xxxxx Xxxx
----------------------------------------
Name: Xxxxx Xxxx
Title: Principal
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. 3 AND CONFIRMS THE TRUTH AND ACCURACY OF THE REPRESENTATIONS AND WARRANTIES
RELATING TO THE UNDERSIGNED.
APV, INC.
By /s/ XXXX X. XXXXXXX
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer, Treasurer
and Secretary
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 EUROPEAN
(LETTERS OF TERM A TERM B LETTER OF CREDIT
NAME OF LENDER CREDIT ARE A COMMITMENT COMMITMENT COMMITMENT
SUBLIMIT OF THE
REVOLVING
CREDIT
(COMMITMENTS)
-------------------------------------------------------------------------------------------
Fleet National Bank $2,311,358.43 $3,684,348.04 $7,514,956.15 BEF
80,813,700.50
(LC = 24.3% x
$5,000,000.00 =
$1,215,000.00)
-------------------------------------------------------------------------------------------
KBC Bank N.V. $1,273,331.46 $2,029,713.87 $4,140,002.67 BEF
0
(LC = 13.4% x
-------------------------------------------------------------------------------------------
SWINGLINE
COMMITMENT DOMESTIC EURODOLLAR
(A SUBLIMIT OF LENDING LENDING
NAME OF LENDER THE REVOLVING OFFICE OFFICE
CREDIT
COMMITMENT)
-------------------------------------------------------------------------------------
Fleet National Bank $3,000,000 Xxx Xxxxxxx Xxxxxx One Federal Street
Boston, Xxxxxx,
Xxxxxxxxxxxxx 00000 Xxxxxxxxxxxxx 00000
Fax: (617) Fax: (617)
346-4375 346-4375
Phone: (617) Phone: (617)
346-4388 346-4388
-------------------------------------------------------------------------------------
KBC Bank N.V. $0 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx
10th Floor 10th Floor
New York, New York New York, New York
-------------------------------------------------------------------------------------
$5,000,000.00 =
$670,000.00)
---------------------------------------------------------------------------------------------------
Sovereign Bank $1,720,044.00 $2,741,781.93 $5,592,406.23 BEF
162,007,863.42
(LC = 18.1% x
$5,000,000.00 =
$905,000.00)
---------------------------------------------------------------------------------------------------
Greater Bay Corporate $1,078,782.72 $1,719,599.58 $3,507,463.27 BEF
Finance, a division of 101,608,611.39
Cupertino National Bank (LC = 11.4% x
$5,000,000.00 =
$570,000.00)
---------------------------------------------------------------------------------------------------
Xxx Xxxx, Xxx Xxxx Xxx Xxxx, Xxx Xxxx
00000 10019
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
-------------------------------------------------------------------------------
Sovereign Bank $0 00 Xxxxx Xxxxx 00 Xxxxx Xxxxx
Suite 430 Suite 430
Boston, MA 02110 Xxxxxx, XX 00000
Fax: (617) Fax: (617)
Phone: (617) Phone: (617)
-------------------------------------------------------------------------------
Greater Bay Corporate $0 0000 Xxxxx Xxxxxxxxx 0000 Xxxxx Xxxxxxxxx
Finance, a division of Xxxxx 000 Xxxxx 000
Cupertino National Bank Xxxxxx Xxxxx, XX 00000 Xxxxxx Xxxxx, XX 00000
Fax: (000)-000-0000 Fax: (000)-000-0000
Phone: (000)-000-0000 Phone: (000)-000-0000
-------------------------------------------------------------------------------
Union Bank of $1,558,241.70 $2,483,866.06 $5,066,335.84 BEF
California, N.A. 146,767,994.23
(LC = 16.4% x
$5,000,000.00 =
$820,000.00)
----------------------------------------------------------------------------------------------------
SunTrust Bank, Atlanta $1,558,241.70 $2,483,866.06 $5,066,335.94 BEF
146,767,994.23
(LC = 16.4% x
$5,000,000.00 =
$820,000.00)
----------------------------------------------------------------------------------------------------
Bankers Trust Company $0 $10,000,000.00 $0 BEF
0
----------------------------------------------------------------------------------------------------
Union Bank of $0 000 Xxxxx Xxxxxxxx 000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, N.A. Street Street
00xx Xxxxx 00xx Xxxxx
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
Fax: (000)-000-0000 Fax: (000)-000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
-----------------------------------------------------------------------------------
SunTrust Bank, Atlanta $0 00 Xxxx Xxxxx 25 Park Place
26th Floor 26th Floor
Atlanta, GA 30303 Xxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
-----------------------------------------------------------------------------------
Bankers Trust Company $0 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
00xx Xxxxx 00xx Xxxxx
XX 2291 MS 2291
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
-----------------------------------------------------------------------------------
