Exhibit 10.9(g)
SIXTH AMENDMENT TO THE
AMENDED AND RESTATED CREDIT AGREEMENT
SIXTH AMENDMENT dated as of March 21, 2002 (this "Amendment") with
respect to the Amended and Restated Credit Agreement dated as of March 10, 1999
(as amended, the "Credit Agreement") by and among Applied Graphics Technologies,
Inc. (the "Borrower"), the lenders party thereto (the "Lenders") and Fleet
National Bank (formerly known as BankBoston, N.A.), as agent (the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have made
Advances and other financial accommodations to the Borrower which remain
outstanding; and
WHEREAS, the Borrower has requested that the Administrative Agent
and the Lenders amend the Credit Agreement, and the Administrative Agent and the
Lenders are willing to do so, but only on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. Unless otherwise defined
herein, capitalized terms used herein have the meanings assigned in the
Credit Agreement and the following terms shall have the following meanings:
"Amendment Fee" has the meaning specified in Section 5.2.
"Effective Date" means the first date on which the conditions
precedent specified in Article III of this Amendment shall have been
satisfied or the satisfaction thereof shall have been waived in accordance
with the terms hereof.
"Warrants" means warrants to purchase the common stock of the
Borrower, as more fully described in Section 5.3, and substantially in the
form of Exhibit A hereto.
ARTICLE II
AMENDMENTS
Section 2.1. Amendments to Section 1.1 (Definitions). (a) Section
1.1 of the Credit Agreement is hereby amended by (i) deleting the definition
"Revolving Credit Termination Date", and (ii) inserting the following definition
in its proper alphabetical order:
"REVOLVING CREDIT TERMINATION DATE" means the earlier of (i) April
30, 2003 and (ii) the Termination Date.
(b) The definition of "Amendment Period Revolving Credit Commitment"
is hereby amended by deleting the amount "$30,000,000" and inserting in lieu
thereof the amount "$15,000,000".
Section 2.2. Amendment to Section 2.04 (Repayment of Advances).
Section 2.04(b)(iv) of the Credit Agreement is hereby amended by deleting the
date "January 15, 2003" and inserting in lieu thereof the date "April 30, 2003".
Section 2.3. Amendment to Section 5.04(a) (Consolidated Total Funded
Debt to EBITDA Ratio). Section 5.04(a) of the Credit Agreement is hereby amended
by deleting said Section 5.04(a) in its entirety and inserting in lieu thereof
the following:
" (a) CONSOLIDATED TOTAL FUNDED DEBT TO EBITDA RATIO. Maintain a ratio of
(i) Total Funded Debt to (ii) EBITDA as at the last day of each fiscal
quarter of the Borrower of not more than the ratios set forth below
(calculated on the basis of (x) annualized amounts, cumulatively from and
including the fiscal quarter beginning April 1, 2001, in the case of any
fiscal quarter ending on or before December 31, 2001, and (y) the
cumulative aggregate amounts for the immediately preceding four full
fiscal quarters, in the case of any fiscal quarter ending after December
2001):
Period Ending In: Ratio:
----------------- ------
September 2001 9.14:1.00
December 2001 7.82:1.00
March 2002 7.88:1.00
June 2002 8.33:1.00
September 2002 9.05:1.00
December 2002 8.62:1.00
March 2003 6.82:1.00
Section 2.4. Amendment to Section 5.04(b) (Adjusted Interest
Coverage Ratio). Section 5.04(b) of the Credit Agreement is hereby amended by
deleting said Section 5.04(b) in its entirety and inserting in lieu thereof the
following:
" (b) ADJUSTED INTEREST COVERAGE RATIO. Maintain a ratio of (i) EBITDA to
(ii) Interest Expense plus Capital Expenditures as at the last day of each
fiscal quarter of the Borrower of not less than the ratios set forth below
(calculated on the basis of cumulative aggregate amounts (x) for the
period from April 1, 2001 to the last day of such fiscal quarter, in the
case of any fiscal quarter ending on or before December 31, 2001, and (y)
for the immediately preceding four full fiscal quarters, in the case of
any fiscal quarter ending after December 2001):
Period Ending In: Ratio:
----------------- ------
September 2001 0.69:1.00
December 2001 0.67:1.00
March 2002 0.65:1.00
June 2002 0.68:1.00
September 2002 0.66:1.00
December 2002 0.70:1.00
March 2003 1.04:1.00".
Section 2.5. Amendment to Section 5.04(c) (Interest Coverage Ratio).
Section 5.04(c) of the Credit Agreement is hereby amended by deleting said
Section 5.04(c) in its entirety and inserting in lieu thereof the following:
" (c) INTEREST COVERAGE RATIO. Maintain a ratio of (i) EBITDA to (ii)
Interest Expense as at the last day of each fiscal quarter of the Borrower
of not less than the ratios set forth below (calculated on the basis of
cumulative aggregate amounts (x) for the period from April 1, 2001 to the
last day of such fiscal quarter, in the case of any fiscal quarter ending
on or before December 31, 2001, and (y) for the immediately preceding four
full fiscal quarters, in the case of any fiscal quarter ending after
December 2001):
Period Ending In: Ratio:
----------------- ------
September 2001 1.14:1.00
December 2001 1.10:1.00
March 2002 1.07:1.00
June 2002 1.09:1.00
September 2002 1.06:1.00
December 2002 1.13:1.00
March 2003 1.65:1.00".
Section 2.6. Amendment to Section 5.04(d) (Fixed Charge Coverage
Ratio). Section 5.04(d) of the Credit Agreement is hereby amended by deleting
said Section 5.04(d) in its entirety and inserting in lieu thereof the
following:
" (d) FIXED CHARGE COVERAGE RATIO. Maintain a ratio of (i) EBITDA to (ii)
Fixed Charges, as at the last day of each fiscal quarter of the Borrower
of not less than the ratios set forth below (calculated on the basis of
cumulative aggregate amounts (x) for the period from April 1, 2001 to the
last day of such fiscal quarter, in the case of any fiscal quarter ending
on or before December 31, 2001, and (y) for the immediately preceding four
full fiscal quarters, in the case of any fiscal quarter ending after
December 2001):
Period Ending In: Ratio:
----------------- ------
September 2001 0.48:1.00
December 2001 0.47:1.00
March 2002 0.49:1.00
June 2002 0.56:1.00
September 2002 0.49:1.00
December 2002 0.48:1.00
March 2003 0.60:1.00".
Section 2.7. Amendment to Section 5.04(e) (Minimum Consolidated
EBITDA). Section 5.04(e) of the Credit Agreement is hereby amended by deleting
said Section 5.04(e) in its entirety and inserting in lieu thereof the
following:
" (e) MINIMUM CONSOLIDATED EBITDA. Maintain cumulative EBITDA as at the
last day of each month of not less than the amounts set forth below for
each such period (calculated on the basis of cumulative aggregate amounts
(x) for the period from April 1, 2001 to the last day of such month, in
the case of any month through February 2002 and (y) for the immediately
preceding twelve full months, in the case of any month occurring after
February 2002):
Period Ending In: Minimum Consolidated EBITDA:
----------------- ----------------------------
July 2001 $ 9,400,000
August 2001 $12,200,000
September 2001 $15,200,000
October 2001 $18,400,000
November 2001 $21,100,000
December 2001 $22,300,000
January 2002 $22,500,000
February 2002 $24,000,000
March 2002 $28,000,000
April 2002 $28,200,000
May 2002 $28,400,000
June 2002 $28,000,000
July 2002 $27,500,000
August 2002 $26,800,000
September 2002 $26,100,000
October 2002 $25,700,000
November 2002 $26,000,000
December 2002 $26,700,000
January 2003 $31,500,000
February 2003 $33,000,000
March 2003 $33,300,000
; provided, however, that for the purposes of this Section 5.04(e) only,
(i) for all periods from the date that the Borrower shall consummate the
DPG Sale and prior to December 31, 2001, EBITDA shall be deemed to include
the projected positive EBITDA of Portal Publications, Ltd. and its
Subsidiaries for such periods as heretofore provided to the Administrative
Agent which amounts shall be prorated for partial months (provided,
however, that EBITDA of Portal Publications, Ltd. and its Subsidiaries for
any month shall in no event exceed the projected amount for such month as
heretofore provided to the Administrative Agent) and (ii) for all monthly
periods beginning January 1, 2002 and thereafter, EBITDA shall not include
the EBITDA, if any, of Portal Publications, Ltd. and its Subsidiaries."
Section 2.8. Amendment to the Credit Agreement. The Credit
Agreement is hereby amended by replacing Schedule I with the Schedule I
attached hereto as Exhibit B.
ARTICLE III
EFFECTIVE DATE
Section 3.1. Effective Date. This Amendment shall become
effective as of the date hereof upon receipt by the Administrative Agent of
the following:
(a) counterparts of this Amendment, duly executed and delivered by
the Borrower, each of the Subsidiaries listed on the signature pages
hereto, the Administrative Agent and the Lenders; and
(b) the Amendment Fee, along with the reasonable fees and
disbursements of the Administrative Agent's professionals that have been
invoiced.
ARTICLE IV
INTERPRETATION
Section 4.1. Continuing Effect of the Credit Agreement. The
Borrower, the Administrative Agent and each Lender hereby acknowledges and
agrees that the Credit Agreement shall continue to be and shall remain unchanged
and in full force and effect in accordance with its terms, except as expressly
modified hereby. Any terms or conditions contained in this Amendment shall
control over any inconsistent terms or conditions in the Credit Agreement or the
other Loan Documents.
Section 4.2. No Waiver. Nothing contained in this Amendment shall be
construed or interpreted or is intended as a waiver of any Default or Event of
Default or of any rights, powers, privileges or remedies that the Administrative
Agent or the Lenders have or may have under the Credit Agreement, any other
related document or applicable law on account of such Default or Event of
Default.
ARTICLE V
MISCELLANEOUS
Section 5.1. Agreements. (a) The Borrower hereby agrees to provide
to the Administrative Agent and the Lenders (i), on or before May 31, 2002, a
broker's letter as to value, in form reasonably satisfactory to the
Administrative Agent, with respect to each of the Real Properties and (ii) with
respect to each Real Property for which the broker's letter referred to in
clause (i) indicates a fair market value in excess of $3,000,000, on or before
July 31, 2002, a comprehensive appraisal, in form reasonably satisfactory to the
Administrative Agent.
(b) Notwithstanding anything to the contrary set forth in the Credit
Agreement, the Borrower hereby agrees that, through the date of consummation of
a comprehensive restructuring of the indebtedness of the Borrower and its
Subsidiaries, the proceeds of the Advances and the issuances of Letters of
Credit shall not be used, directly or indirectly, for the settlement of
obligations of the Borrower or any of its Subsidiaries relating to (i)
termination or modification of leases and related obligations with respect to
real or personal property (except for the lease on the Xxxxxx Drive property in
Chicago in an amount up to $725,000), (ii) disputed or unmatured taxes or other
governmental charges, assessments or levies owing to U.S. or foreign
jurisdictions, (iii) any actual or threatened action, suit, investigation or
other legal, equitable, arbitration or administrative proceeding, other than
payments in the ordinary course of business, or (iv) non-operating liabilities
associated with operations that are being closed or consolidated, including
severance costs (other than ordinary course severance costs); provided, however,
that the Borrower may use the proceeds of the Advances and the issuances of
Letters of Credit for any such settlement in an amount up to
$1,500,000 but not to exceed $3,000,000 in the aggregate. The Administrative
Agent and the Required Lenders may waive the provisions of this Section 5.1(b).
(c) Any breach on the part of the Borrower in respect of the
agreements set forth in this Section 5.1 shall constitute an Event of Default.
Section 5.2. Representations and Warranties. The Borrower hereby
represents and warrants as of the date hereof that, after giving effect to this
Amendment, (a) no Default or Event of Default has occurred and is continuing,
and (b) all representations and warranties of the Borrower contained in the
Credit Agreement are true and correct in all material respects on and as of the
date hereof (or if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date).
Section 5.3. Fees and Expenses.
(a) The Borrower agrees to pay to the Administrative Agent on demand
all reasonable expenses including reasonable attorney's fees and expenses of the
Administrative Agent, incurred by the Administrative Agent, in connection with
the preparation, negotiation and execution of this Amendment and the letter of
intent referred to in Section 5.3 below.
(b) The Borrower shall pay to the Administrative Agent, for the
account of each Lender on a pro rata basis, a $250,000 amendment fee (the
"Amendment Fee") payable on the Effective Date.
Section 5.4. Warrants. (a) In the event that the Administrative
Agent and the Borrower shall have either failed (i) to execute a letter of
intent with respect to a comprehensive restructuring of the indebtedness of the
Borrower and its Subsidiaries on or before June 30, 2002 or (ii) upon
satisfaction of clause (i) above, to execute definitive documentation with
respect to the implementation of such restructuring on or before September 30,
2002, then the Borrower shall immediately issue to the Lenders detachable and
freely transferable (subject to applicable securities laws) five-year Warrants
for the purchase of common stock of the Borrower representing in the aggregate
five (5) percent of the outstanding common stock of the Borrower as of the
Effective Date (i.e., 453,378 shares). All such Warrants would be exercisable at
any time prior to their expiration date at a nominal strike price.
(b) The Administrative Agent, the Lenders and the Borrower hereby
agree that any Warrants (as defined in the Fifth Amendment) issued pursuant to
Section 6.3 of the Fifth Amendment in connection with a Type B Capital Event
shall represent an aggregate five (5) percent of the outstanding common stock of
the Borrower as of the Effective Date (as defined in the Fifth Amendment) (i.e.,
453,378 shares).
Section 5.5. Confirmation of Indebtedness. The Borrower and the
Subsidiary Guarantors hereby confirm and acknowledge that, as of the Effective
Date, (i) the Borrower is truly and justly indebted to the Lenders, without
defense, counterclaim or offset of any kind, (ii) the Borrower is liable to the
Lenders in respect of Advances made under the Credit Agreement, as of March 15,
2002, in the aggregate principal amount of $207,510,640.41 and (iii) each
Subsidiary Guarantor is contingently liable to the Lenders in respect of such
amount.
Section 5.6. Counterparts. This Amendment may be executed
by the parties hereto in any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 5.7. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW PRINCIPLES).
Section 5.8. Reservation of Rights. Notwithstanding anything
contained in this Amendment, the Borrower acknowledges that the Administrative
Agent and the Lenders do not waive, and expressly reserve, the right to
exercise, at any time, any and all of their rights and remedies under the Credit
Agreement, any other related document and applicable law on account of any
Default or Event of Default.
Section 5.9. Waiver. The Loan Parties hereby release, waive, and
forever relinquish all claims, demands, obligations, liabilities and causes of
action of whatever kind or nature, whether known or unknown, which any of them
has, may have, or might assert at the time of execution of this Amendment or in
the future against the Administrative Agent, the Lenders and/or their respective
parents, affiliates, participants, officers, directors, employees, agents,
attorneys, accountants, consultants, successors and assigns (collectively, the
"Lender Group"), directly or indirectly, which occurred, existed, was taken,
permitted or begun prior to the execution of this Amendment, arising out of,
based upon, or in any manner connected with (i) any transaction, event,
circumstance, action, failure to act or occurrence of any sort or type, whether
known or unknown, with respect to the Credit Agreement, any other Loan Document
and/or the administration thereof or the obligations created thereby, (ii) any
discussions, commitments, negotiations, conversations or communications with
respect to the refinancing, restructuring or collection of any obligations
related to the Credit Agreement, any other Loan Document and/or the
administration thereof or the obligations created thereby, or (iii) any matter
related to the foregoing.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the date first above written.
APPLIED GRAPHICS TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxxx
Title: President & COO
MIRAMAR EQUIPMENT, INC.
DEVON GROUP, INC.
BLACK DOT GRAPHICS, INC.
XXXXX GRAPHICARTS, INC.
TYPO-GRAPHICS, INC.
XXXXXXX & ASSOCIATES, INC.
WEST COAST CREATIVE, INC.
ABD GROUP, INC.
MERIDIAN RETAIL, INC.
TAPROOT INTERACTIVE, INC.
PROOF POSITIVE/FARROWLYNE
ASSOCIATES, INC.
ONE 2 ONE, INC.
PORTAL PUBLICATIONS, LTD.
THE XXXX ART GROUP, LTD.
COLOR CONTROL, INC.
AGILE ENTERPRISE, INC.
AGT SYSTEM SERVICES, INC.
RETAIL PROFIT SOLUTIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxxx
Title: President & COO
FLEET NATIONAL BANK, as Administrative Agent
By: /s/Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
Title: Senior Vice President
FLEET NATIONAL BANK, as a Lender, Issuing
Bank
and Swing Line Bank
By: /s/Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxx
Title: Senior Vice President
WACHOVIA BANK, N.A. , as a Lender
By: /s/ R. Xxxxx Xxxxx
-------------------------------------
R. Xxxxx Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as a Lender
By: /s/ Xxxxxx Xxxx
-------------------------------------
Xxxxxx Xxxx
Title: Senior Vice President
THE BANK OF NEW YORK, as a Lender
By: /s/Xxxxx Xxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxx
Title: Vice President
SOVEREIGN BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
Title: Vice President
GE CAPITAL CFE, INC., as a Lender
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx
Title: Senior Vice President
SUNTRUST BANK, N.A., as a Lender
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxxx
Title: Director
CITIZENS BANK OF MASSACHUSETTS, as a
Lender
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ X.X. Xxxxxxx
-------------------------------------
X.X. Xxxxxxx
Title: Managing Director
PB CAPITAL CORPORATION, as a Lender
By: /s/ Xxxx X. XxXxxxxxx
-------------------------------------
Xxxx X. XxXxxxxxx
Title: Vice President
By: /s/Xxxx Xxxxxx
-------------------------------------
Xxxx Xxxxxx
Title: Managing Director
EXHIBIT A TO THE
SIXTH AMENDMENT
FORM OF WARRANT
THIS WARRANT AND THE SHARES OF COMPANY COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR QUALIFIED UNDER ANY STATE
SECURITIES LAW, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS
THEY HAVE BEEN REGISTERED UNDER SUCH LAWS OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE AND IF AN EXEMPTION SHALL BE APPLICABLE, THE WARRANT HOLDER SHALL HAVE
DELIVERED AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT NECESSARY.
Date of Issuance: ___________, 2002 Number of
Shares: _____
(subject to adjustment)
WARRANT CERTIFICATE TO PURCHASE
COMMON STOCK OF
APPLIED GRAPHICS TECHNOLOGIES, INC.
This Warrant Certificate (the "Warrant Certificate") is to certify that
[NAME OF LENDER] or its registered assigns (the "Warrantholder") is entitled, at
any time from the date hereof through the date that is five (5) years from the
date hereof (the "Expiration Date"), to purchase, at the Exercise Price (as
hereinafter defined), shares (as may be modified pursuant to Section 5,
the "Initial Exercise Amount") of common stock ("Company Common Stock") of
Applied Graphics Technologies, Inc., a Delaware corporation (the "Company").
Capitalized terms used but not otherwise defined herein shall have the meanings
given to them in the Amended and Restated Credit Agreement dated as of March 10,
1999 among the Company, the lenders party thereto, and Fleet National Bank, as
Administrative Agent (as amended, the "Credit Agreement").
1. Exercise of Warrant.
1.1 This Warrant Certificate is exercisable by the Warrantholder at
the Exercise Price per share of Company Common Stock issuable hereunder, payable
in cash, by certified or official bank check or by surrender of (a) other
Securities of the Company whose aggregate principal amount or stated liquidation
value, together with any accrued but unpaid interest or principal due thereon,
is equal to the Exercise Price or (b) shares of Common Stock with an aggregate
Fair Market Value, as of the business day on which the Warrantholder surrenders
this Warrant to the Company, equal to the Exercise Price. In lieu of payment of
the Exercise Price as provided above, the Warrantholder may elect a cashless net
exercise. In the case of such cashless net exercise, the Warrantholder shall
surrender this Warrant for cancellation and receive in exchange therefor the
full number of duly authorized, validly issued, fully paid and nonassessable
shares of Common Stock specified, subject to adjustment in accordance with
Section 5,
less the number of shares of Common Stock with an aggregate Fair Market Value as
of the business day on which the Warrantholder surrenders this Warrant to the
Company (the "Exercise Date") equal to the aggregate Exercise Price. Upon
surrender of this Warrant Certificate with the attached Subscription Form duly
completed and executed, together with any required payment of the Exercise Price
for the shares of Company Common Stock being purchased, at the Company's
principal executive offices presently located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, the Warrantholder shall be entitled to receive a certificate or
certificates for the shares of Company Common Stock so purchased.
1.2 The purchase rights represented by this Warrant Certificate are
exercisable at the option of the Warrantholder, in whole or in part (but not as
to fractional shares of Company Common Stock), at any time and from time to time
from the date hereof to the Expiration Date.
1.3 In the case of the purchase of less than all the shares of
Company Common Stock purchasable under this Warrant Certificate, the Company
shall cancel this Warrant Certificate upon the surrender hereof and shall
execute and deliver a new Warrant Certificate as soon as practicable to the
Warrantholder of like tenor for the balance of the shares of Company Common
Stock purchasable hereunder.
2. Issuance of Stock Certificates.
2.1 The issuance of certificates for shares of Company Common Stock
upon the exercise of this Warrant Certificate shall be made as soon as
practicable thereafter or in any event within twenty (20) days of such exercise
without charge to the Warrantholder, including, without limitation, any tax that
may be payable in respect thereof, and such certificates shall (subject to the
provisions of this Section 2) be issued in the name of, or in such names as may
be directed by, the Warrantholder; provided, however, that the Company shall not
be required to pay any income tax to which the Warrantholder may be subject in
connection with the issuance of this Warrant Certificate or of shares of Company
Common Stock upon the exercise of this Warrant Certificate; provided, further,
that the Company shall not be required to pay any tax that may be payable in
respect of any transfer involved in the issuance and delivery of any such
certificate in a name other than that of the Warrantholder and the Company shall
not be required to issue or deliver such certificates unless or until the person
or persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
2.2 All shares of Company Common Stock issued upon the exercise of
this Warrant Certificate shall be validly issued, fully paid and nonassessable.
2.3 Each person in whose name any such certificate for shares of
Company Common Stock is issued shall for all purposes be deemed to have become
the holder of record of such shares on the date on which the Warrant Certificate
was surrendered and payment of the Exercise Price and any applicable taxes was
made, irrespective of the date of delivery of such certificate, except that, if
the date of such surrender and payment is a date when the stock transfer books
of the Company are closed, such person shall be deemed to have become the holder
of such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
3. Restrictions on Transfer.
3.1 Investment Representation and Transfer Restriction Legend. The
Warrantholder, by acceptance of this Warrant Certificate, represents and
warrants to the Company that it is acquiring this Warrant Certificate and the
shares of Company Common Stock issued or issuable upon exercise hereof (the
"Warrant Shares") for its own account, for investment purposes only and not with
a view towards the
resale or other distribution thereof. Each certificate representing Warrant
Shares, unless at the same time of exercise such Warrant Shares are registered
under the Act, shall bear a legend in substantially the following form on the
face thereof:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAW,
AND MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THEY
HAVE BEEN REGISTERED UNDER SUCH LAWS OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE AND IF AN EXEMPTION SHALL BE APPLICABLE,
THE WARRANT HOLDER SHALL HAVE DELIVERED AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT
NECESSARY.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a distribution under a registration statement covering the securities
represented thereby) shall also bear such legend unless, in the opinion of
counsel to the Company, the securities represented thereby may be transferred as
contemplated by such Warrantholder without violation of the registration
requirements of the Securities Act.
4. Exercise Price and Exercise Amount.
4.1 Exercise Price. The exercise price of this Warrant Certificate
shall be $0.01 per share of Company Common Stock (the "Exercise Price").
4.2 Exercise Amount. The term "Exercise Amount" shall mean the
Initial Exercise Amount or the adjusted Exercise Amount determined pursuant to
Section 5 depending upon the context.
5. Adjustment of Exercise Amount and Number of Shares.
5.1 For purposes of this Warrant, the following definitions shall
apply:
(a) "Fair Market Value" shall mean (i) with respect to any Security,
(A) if such Security is traded on a national securities exchange, the
Nasdaq Stock Market or the domestic over-the-counter market, the average
of the closing prices of such Security's sales on all national securities
exchanges or markets on which such Security may at the time be listed, or,
if there have been no sales on any such national securities exchange or
market on any day, the average of the highest bid and lowest asked prices
on all such national securities exchanges or markets at the end of such
day, or, if on any day such Security is not so listed, the average of the
representative bid and asked prices quoted on the Nasdaq Stock Market as
of 4:00 p.m., New York time, or, if on any day such Security is not quoted
on the Nasdaq Stock Market, the average of the highest bid and lowest
asked prices on such day in the domestic over-the-counter market as
reported by the National Quotation Bureau, Incorporated, or any similar
successor organization, in each such case averaged over a period of twenty
consecutive trading days prior to the date upon which "Fair Market Value"
is sought to be determined, or (B) if such Security is not so traded, the
market price of such Security as determined in good faith by the Company's
board of directors, and (ii) with respect to any property or assets other
than cash or Securities, the fair value thereof determined in good faith
by the Company's board of directors.
(b) "Person" shall mean an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, governmental authority or other
entity of whatever nature.
(c) "Securities" shall mean, with respect to any Person, such
Person's "securities" as defined in Section 2(1) of the Securities Act, or
any other debt or equity securities, and includes such Person's capital
stock or other equity interests or any options, warrants or other
securities or rights that are directly or indirectly convertible into, or
exercisable or exchangeable for, such Person's capital stock or other
equity interests.
5.2 The Exercise Amount specified in Section 4.2 shall be subject to
adjustment from time to time as follows:
(a) Adjustment for Stock Splits and Combinations. If the Company
shall at any time or from time to time after the date this Warrant
Certificate was granted (the "Original Issue Date") effect a subdivision
of the outstanding Company Common Stock into a greater number of shares,
the Exercise Amount then in effect immediately before the subdivision
shall be proportionately increased and the Exercise Price then in effect
immediately before the subdivision shall, subject to Section 8.2(b), be
proportionately reduced. If the Company shall at any time or from time to
time after the Original Issue Date combine the outstanding shares of
Company Common Stock into a smaller number of shares, the Exercise Amount
then in effect immediately before the combination shall be proportionately
decreased and the Exercise Price then in effect immediately before the
combination shall be proportionately increased. Any adjustment under this
paragraph shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(b) Adjustment for Certain Dividends and Distributions. In the event
the Company at any time, or from time to time, after the Original Issue
Date shall make or issue, or fix a record date for the determination of
holders of Company Common Stock entitled to receive, a dividend or other
distribution payable in additional shares of Company Common Stock, then in
each such event the Exercise Amount then in effect shall be increased as
of the time of such issuance or, in the event such a record date shall
have been fixed, as of the close of business on such record date, to an
amount equal to the amount determined by multiplying the Exercise Amount
then in effect by a fraction:
(i) the numerator of which shall be the total number of shares
of Company Common Stock issued and outstanding immediately prior to
the time of such issuance or the close of business on such record
date plus the number of shares of Company Common Stock issuable in
payment of such dividend or distribution; and
(ii) the denominator of which shall be the total number of
shares of Company Common Stock issued and outstanding immediately
prior to the time of such issuance or the close of business on such
record date;
provided, however, if such record date shall have been fixed and such
dividend is not fully paid or if such distribution is not fully made on
the date fixed therefor, the Exercise Amount shall be recomputed
accordingly as of the close of business on such record date and thereafter
the Exercise Amount shall be adjusted pursuant to this paragraph as of the
time of actual payment of such dividends or distributions.
(c) Adjustments for Other Dividends and Distributions. In the event
the Company at any time or from time to time after the Original Issue Date
shall make or issue, or fix a record date for the determination of holders
of Company Common Stock entitled to receive, a dividend or other
distribution payable in securities of the Company or any Subsidiary or
Affiliate thereof other than shares of Company Common Stock, then and in
each such event provision shall be made so that the Warrantholder shall
receive upon exercise thereof, in addition to the number of shares of
Company Common Stock receivable thereupon, the amount and type of
securities that it would have received had its Warrant Certificate been
exercised for shares of Company Common Stock on the date of such event and
had it thereafter, during the period from the date of such event to and
including the actual exercise date, retained such securities receivable by
it as aforesaid during such period giving application to all adjustments
called for during such period. In the event of the spinoff or other
creation of a subsidiary or affiliate of the Company whose assets consist
in whole or in part of a significant component of the Company's business
(a "Spinoff Transaction"), the Warrantholder shall be entitled to receive,
without any requirement that this Warrant be exercised, Warrants (the "New
Warrants") with terms substantially equivalent to the terms of this
Warrant Certificate, to purchase the amount and type of securities (the
"Spinoff Securities") that it would have received in such Spinoff
Transaction had this Warrant been exercised immediately prior to such
Spinoff Transaction. The exercise price of the New Warrants (the "New
Warrant Exercise Price") shall be equal to the Exercise Price in effect
immediately prior to the Spinoff Transaction multiplied by the product of
(A) the relative value per share of the business or assets subject to the
Spinoff Transaction as compared to the total value per share of the
Company at the time of the Spinoff Transaction (as determined in good
faith by the Board) times (B) one (1) minus the percentage of such
business or assets retained by the Company, if any. The Exercise Price
shall thereafter be reduced by the amount of the New Warrant Exercise
Price such that the sum of the New Warrant Exercise Price plus the
Exercise Price shall not exceed the Exercise Price as in effect
immediately prior to the Spinoff Transaction. In the event a Spinoff
Transaction involves a third party whose contribution to the entity or
business subject to the Spinoff Transaction is other than cash or other
consideration to the Company, the Board, in good faith, shall determine
the appropriate adjustment in the application of the provisions in this
Section 5 with respect to the rights and interest thereafter of the
Warrantholder.
(d) Adjustment for Reclassification, Exchange, or Substitution. If
the Company Common Stock issuable upon exercise of this Warrant
Certificate shall be changed into the same or a different number of shares
of any class or classes of stock, whether by capital reorganization,
reclassification, or otherwise (other than a subdivision or combination of
shares or stock dividend provided for above, or a reorganization, merger,
consolidation, or sale of assets provided for below), then and in each
such event the Warrantholder shall have the right thereafter to exercise
this Warrant Certificate for the kind and amount of shares of stock and
other securities and property receivable upon such reorganization,
reclassification, or other change, by holders of the number of shares of
Company Common Stock into which this Warrant Certificate was exercisable
immediately prior to such reorganization, reclassification, or change, all
subject to further adjustment as provided herein.
(e) Adjustment for Merger or Reorganization, etc. In case of any
consolidation or merger of the Company with or into another Person or the
sale of all or substantially all of the assets of the Company to another
Person, this Warrant Certificate shall thereafter be exercisable for the
kind and amount of shares of stock or other securities or property to
which a holder of the number of shares of Company Common Stock of the
Company deliverable upon exercise of this Warrant Certificate would have
been entitled upon such consolidation, merger or sale; and, in such case,
appropriate adjustment (as determined in good faith by the Board) shall be
made in the
application of the provisions in this Section 5 with respect to the rights
and interest thereafter of the Warrantholder, to the end that the
provisions set forth in this Section 5 (including provisions with respect
to changes in and other adjustments of the Exercise Amount) shall
thereafter be applicable, as nearly as reasonably may be, in relation to
any shares of stock or other property thereafter deliverable upon exercise
of this Warrant Certificate.
(f) No Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by
the Company but will at all times in good faith assist in the carrying out
of all the provisions of this Section 5 and in the taking of all such
action as may be necessary or appropriate in order to protect the exercise
rights of the Warrantholder against impairment.
(g) Certificate as to Amendments. Upon the occurrence of each
adjustment or readjustment of the Exercise Price pursuant to this Section
5, the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms thereof and furnish to each
Warrantholder a certificate setting forth such adjustment or readjustment
and showing in detail the facts upon which such adjustment or readjustment
is based. The Company shall, upon the written request at any time of any
Warrantholder, furnish or cause to be furnished to such holder a similar
certificate setting forth (i) such adjustments and readjustments, (ii) the
Exercise Amount then in effect, and (iii) the number of shares of Company
Common Stock and the amount, if any, of other property which then would be
received upon exercise of this Warrant Certificate.
(h) Notice of Record Date. In the event:
(i) that the Company declares a dividend (or any other
distribution) on its Company Common Stock payable in Company Common
Stock or other securities of the Company;
(ii) that the Company subdivides or combines its
outstanding shares of Company Common Stock;
(iii) of any reclassification of the Company Common Stock
(other than a subdivision or combination of its outstanding shares
of Company Common Stock or a stock dividend or stock distribution
thereon), or of any consolidation or merger of the Company into or
with another corporation, or of the sale of all or substantially all
of the assets of the Company; or
(iv) of the involuntary or voluntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed at its principal office or at the
office of the transfer agent of the Company Common Stock, and shall cause
to be mailed to the Warrantholders at their last addresses as shown on the
records of the Company or such transfer agent, at least 15 days prior to
the record date specified in (A) below or 30 days before the date
specified in (B) below, a notice stating
(A) the date as of which the holders of Company Common Stock
of record to be entitled to such dividend, distribution,
subdivision or combination are to be determined, or
(B) the date on which such reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up is
expected to become effective, and the date as of which
it is expected that holders of Company Common Stock of
record shall be entitled to exchange their shares of
Company Common Stock for securities or other property
deliverable upon such reclassification, consolidation,
merger, sale, dissolution or winding up.
6. Exchange and Replacement of Warrant Certificate.
6.1 On surrender for exchange of this Warrant Certificate, or any
Warrant Certificate or Warrant Certificates issued upon subdivision, exercise,
or transfer in whole or in part of this Warrant Certificate, properly endorsed,
to the Company, the Company at its expense will issue and deliver to or on the
order of the holder thereof a new Warrant Certificate or Warrant Certificates of
like tenor, in the name of such holder or as such holder (on payment by such
holder of any applicable transfer taxes) may direct, calling in the aggregate on
the face or faces thereof for the number of shares of Company Common Stock
called for on the face or faces of the Warrant Certificate or Warrant
Certificates so surrendered.
6.2 In the event this or any subsequently issued Warrant Certificate
is lost, stolen, mutilated or destroyed, the Company may, upon receipt of a
proper affidavit (and surrender of any mutilated Warrant Certificate) and an
indemnity agreement or security reasonably satisfactory in form and amount to
the Company, in each instance protecting the Company, issue a new Warrant
Certificate of like denomination, tenor and date as the Warrant Certificate so
lost, stolen, mutilated or destroyed. Any such new Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant Certificate shall be at
any time enforceable by anyone.
7. Elimination of Fractional Interests.
7.1 The Company shall not issue any fraction of a share in
connection with the exercise of this Warrant Certificate, but in any case where
the Warrantholder would, except for the provisions of this Section 7, be
entitled under the terms of this Warrant Certificate to receive a fraction of a
share upon the exercise of this Warrant Certificate, the Company shall, upon the
exercise of the Warrant Certificate for the largest number of full shares then
called for thereby and receipt of the Exercise Price thereof, pay a sum in cash
equal to the Fair Market Value of such fraction of a share on the day preceding
such exercise. The Warrantholder expressly waives its rights to receive any
fraction of a share or a Warrant Certificate representing a fractional share
upon exercise thereof.
7.2 If the taking of any action would cause an adjustment in the
Exercise Price so that the exercise of this Warrant Certificate while such
Exercise Price is in effect would cause shares to be issued at a price below
their then par value, the Company will take such action as may, in the opinion
of its counsel, be necessary in order that it may validly and legally issue
fully paid and nonassessable shares of Company Common Stock upon the exercise of
this Warrant Certificate.
8. Reservation of Shares.
8.1 The Company will cause to be reserved and kept available out of
its authorized and unissued shares of Company Common Stock the number of whole
shares of Company Common Stock sufficient to permit the exercise in full of this
Warrant Certificate.
8.2 The Company will not, by amendment of its charter or through
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant. Without limiting
the generality of the foregoing, the Company will (a) not increase the par value
of any shares of Common Stock obtainable upon the exercise of this Warrant and
(b) take all such actions as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
Common Stock upon the exercise of this Warrant.
9. Rights of Warrantholder.
The Company may deem and treat the person in whose name this Warrant
Certificate is registered with it as the absolute owner for all purposes
whatever (notwithstanding any notation of ownership or other writing thereon
made by anyone other than the Company) and the Company shall not be affected by
any notice to the contrary. The terms "Warrantholder" and "holder of the Warrant
Certificate" and all other similar terms used herein shall mean only such
person(s) in whose name(s) this Warrant Certificate if properly registered on
the Company's books. However, notwithstanding the foregoing, no person, entity
or group may become a Warrantholder other than the Warrantholder unless and
until (a) the provisions of Section 3.1 hereof have been complied with, (b) the
Company has received an assignment transferring all right, title and interest in
and to this Warrant Certificate, and (c) such person, entity or group represents
and warrants in writing that it will be the sole legal and beneficial owner
thereof.
10. Notices.
Any notice or demand authorized by this Warrant Certificate to be given or
made by the Warrantholder to or on the Company or to be given or made by the
Company to or on the Warrantholder shall be sufficiently given or made if sent
in writing by first-class mail, postage prepaid, addressed as follows:
(a) If to the Warrantholder, to the address for such holder as
shown on the books of the Company; or
(b) If to the Company, at the address set forth in Section 8.02 of
the Credit Agreement or at such other address as the registered holder or
the Company may hereafter have advised the other.
11. Successors.
All the covenants, agreements, representations and warranties
contained in this Warrant Certificate shall bind the parties hereto and their
respective heirs, executors, administrators, distributees, successors and
assigns.
12. Headings.
The Section headings in this Warrant Certificate have been inserted
for purposes of convenience only and shall have no substantive effect.
13. Law Governing.
This Warrant Certificate is delivered in the State of New York and
shall be construed and enforced in accordance with, and governed by, the laws of
the State of New York (without giving effect to the conflict of laws principles
of such state), regardless of the jurisdiction of creation or domicile of the
Company or its successors or of the holder at any time hereof.
14. Remedies.
The Company stipulates that the remedies at law of the holder of
this Warrant Certificate in the event of any default or threatened default by
the Company in the performance of or compliance with any of the terms of this
Warrant Certificate are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
IN WITNESS WHEREOF, the Company has executed this Warrant
Certificate by its duly authorized officer as of the day and year first above
written.
APPLIED GRAPHICS TECHNOLOGIES, INC.
By:_________________________________________
Name:
Title:
SUBSCRIPTION FORM
(To Be Executed By The Warrantholder
In Order to Exercise The Warrant Certificate)
The undersigned, pursuant to the provisions set forth in the enclosed
Warrant Certificate, hereby irrevocably elects to exercise the right to purchase
________ shares of Company Common Stock of APPLIED GRAPHICS TECHNOLOGIES, INC.
covered by such Warrant Certificate, and herewith tenders _________ having a
fair market value of $________ in full payment of the Exercise Price for such
shares (which may include foregoing receipt of ___ shares of Company Common
Stock as per Section 1.1 of the Warrant Certificate).
By: ________________________________________
Signature
________________________________________
Name
________________________________________
Address
________________________________________
EXHIBIT B TO THE
SIXTH AMENDMENT
Schedule I
COMMITMENTS
Existing Additional Total
Tranche A Tranche B Tranche C Swing Letter of Revolving Revolving Revolving
Term Loan Term Loan Term Loan Line Credit Credit Credit Credit
Lender Commitment Commitment Commitment Commitment Commitment Commitments Commitments Commitments
------ ---------- ---------- ---------- ---------- ---------- ----------- ----------- -----------
Fleet National Bank $ 9,962,398 $56,782,529 $40,924,937 $10,000,000 $10,000,000 $10,200,000 $ 3,000,000 $13,200,000
Bank of America $10,626,558 $ 6,800,000 $ 2,000,000 $ 8,800,000
Wachovia Bank $ 8,855,466 $ 5,666,667 $ 1,666,667 $ 7,333,333
The Chase Manhattan
Bank $ 8,855,466 $ 5,666,667 $ 1,666,667 $ 7,333,333
The Bank of New York $ 8,855,466 $ 5,666,667 $ 1,666,667 $ 7,333,333
Sovereign Bank $ 7,084,372 $ 4,533,333 $ 1,333,333 $ 5,866,667
GECC $ 5,313,279 $ 3,400,000 $ 1,000,000 $ 4,400,000
Suntrust Bank $ 5,313,279 $ 3,400,000 $ 1,000,000 $ 4,400,000
Citizens Bank $ 5,313,279 $ 3,400,000 $ 1,000,000 $ 4,400,000
The Bank of Nova
Scotia $ 3,542,186 $ 2,266,667 $ 666,667 $ 2,933,333
PB Capital $ 5,977,439 $ 4,603,989
Total $79,699,188 $61,386,518 $40,924,937 $10,000,000 $10,000,000 $51,000,000 $15,000,000 $66,000,000
