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EXHIBIT 10.9(b)
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "FIRST AMENDMENT") is
entered into this 2nd day of June, 1999, among:
APPLIED GRAPHICS TECHNOLOGIES, INC., a Delaware corporation
(hereinafter referred to as the "BORROWER");
The banks, financial institutions and other institutional lenders from
time to time party to the Credit Agreement (as defined herein) (each a "LENDER"
and, collectively, the "LENDERS"); and
FLEET BANK, N.A., a national banking association, as administrative
agent for the Lenders (in such capacity, together with its successors in such
capacity, the "ADMINISTRATIVE AGENT");
RECITALS
WHEREAS:
(A) The Borrower has entered into a certain Amended and Restated
Credit Agreement dated as of March 10, 1999 (as it may hereafter from time to
time be further amended, modified, supplemented, or restated, the "CREDIT
AGREEMENT"); and
(B) The Borrower and the Lenders have agreed to amend certain
provisions of the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the agreements and provisions
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is
hereby amended, as follows:
2.1 Section 1 (Definitions) of the Credit Agreement is
hereby amended by modifying certain definitions contained therein as follows:
(a) The definition of "Advance" set forth therein
is deleted in its entirety and the following is substituted therefor:
"'ADVANCE' means a Term Loan A Advance, a Term Loan B Advance,
a Term Loan C Advance, a Revolving Credit Advance, a Swing Line
Advance or a Letter of Credit Advance."
(b) The definition of "Applicable Margin" set
forth therein is deleted in its entirety and the following is substituted
therefor:
"'APPLICABLE MARGIN' means at any date of determination
thereof:
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(i) with respect to Term Loan A Advances and Revolving
Credit Advances, the applicable percentage set forth below opposite
the applicable ratio of Consolidated Total Funded Debt to EBITDA
determined as set forth below:
APPLICABLE MARGIN FOR TERM LOAN A ADVANCES AND REVOLVING CREDIT ADVANCES
RATIO OF CONSOLIDATED APPLICABLE MARGIN FOR APPLICABLE MARGIN FOR
TOTAL FUNDED DEBT/EBITDA EURODOLLAR RATE ADVANCES PRIME RATE ADVANCES
------------------------- ------------------------ ---------------------
Equal to or greater than 4.00
to 1.00 2.75% 1.50%
Equal to or greater than 3.75
to 1.00, but less than 4.00
to 1.00 2.50% 1.25%
Equal to or greater than 3.00
to 1.00, but less than 3.75
to 1.00 2.25% 1.00%
Equal to or greater than 2.50
to 1.00, but less than 3.00
to 1.00 2.00% 0.75%
Equal to or greater than 2.00
to 1.00, but less than 2.50
to 1.00 1.75% 0.50%
Less than 2.00 to 1.00 1.50% 0.25%
The Applicable Margin for each Eurodollar Rate Advance and Prime Rate Advance
that is a Term Loan A Advance or a Revolving Credit Advance shall be determined
on a quarterly basis by reference to the ratio of Consolidated Total Funded
Debt to EBITDA for the preceding four (4) full fiscal quarters, as reflected on
the financial statements provided to the Administrative Agent pursuant to
Section 5.03(c) or (d), three (3) Business Days after the date on which the
Administrative Agent receives the foregoing financial statements, together with
a certificate of a Responsible Officer of the Borrower demonstrating the ratio
of Consolidated Total Funded Debt to EBITDA. If the Borrower has not submitted
to the Administrative Agent the information described above as and when
required under Section 5.03(c) or (d), as the case may be, the Administrative
Agent may determine, in its reasonable judgment, the ratio referred to above
that would have been in effect as at such date, and, consequently, the
Applicable Margin in effect for the period commencing on such date until such
time as the Borrower submits to the Administrative Agent the information so
required, and within three (3) Business Days after receipt thereof the
Applicable Margin shall be adjusted retroactively for the relevant period.
Notwithstanding the above schedule, prior to the delivery to the Administrative
Agent of the Borrower's financial statements for its fiscal quarter ending
September 30, 1999, the Applicable Margin for a Revolving Credit Advance and a
Term Loan A Advance shall be 2.75% for a Eurodollar Advance and 1.50% for a
Prime Rate Advance;
(ii) with respect to Term Loan B Advances, 3.25% for Eurodollar
Rate Advances, and 2.00% for Prime Rate Advances; and
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(iii) with respect to Term Loan C Advances, 3.50% for
Eurodollar Rate Advances, and 2.25% for Prime Rate Advances."
(c) The definition of "Borrowing" set forth
therein is deleted in its entirety and the following is substituted therefor:
"'BORROWING' means a Term Loan A Borrowing, a Term Loan B
Borrowing, a Term Loan C Borrowing, a Revolving Credit Borrowing or a
Swing Line Borrowing."
(d) The definition of "Commitment" set forth therein is
deleted in its entirety and the following is substituted therefor:
"'COMMITMENT' means a Term Loan A Commitment, a Term Loan B
Commitment, a Term Loan C Commitment, a Revolving Credit Commitment or
a Letter of Credit Commitment."
(e) The definition of "Excess Cash Flow" set forth
therein is amended by deleting the period at the end of clause (i) contained
therein and adding the following thereto: "(other than the Transaction)."
(f) The definition of "Facility" set forth therein is
deleted in its entirety and the following is substituted therefor:
"'FACILITY' means the Term Loan A Facility, the Term Loan B
Facility, the Term Loan C Facility, the Revolving Credit Facility, the
Letter of Credit Facility or the Swing Line Facility."
(g) The definition of "Note" set forth therein is deleted
in its entirety and the following is substituted therefor:
"'NOTE' means, individually, a Term Loan A Note, a Term Loan B
Note, a Term Loan C Note, a Revolving Credit Note or a Swing Line
Note, and collectively, the 'NOTES'."
(h) The definition of "Permitted Acquisition" set forth
therein is amended by deleting the word "and" at the end of clause (e)
contained therein, deleting the period at the end of clause (f) thereof and
substituting "; and" therefor, and adding the following clause (g) thereto:
"(g) for the most recent period of four consecutive fiscal
quarters preceding such Permitted Acquisition (calculated on a
pro-forma basis as if such Permitted Acquisition had been consummated
as of the first day of such four quarter period): (i) the ratio of
Consolidated Total Funded Debt as of the last day of such period to
EBITDA for such period is not greater than the ratio required to be
maintained pursuant to Section 5.04(a) for such period, less 0.25; and
(ii) the ratio of Consolidated Senior Debt as of the last day of such
period to EBITDA for such period is not greater than the ratio
required to be maintained pursuant to Section 5.04(b) for such period,
less 0.25."
(i) The definition of "Pledge Agreement" set
forth therein is deleted in its entirety and the following is substituted
therefor:
"'PLEDGE AGREEMENT' has the meaning specified in Section
3.02(g)(i)(E)."
(j) The definition of "Required Lenders" set
forth therein is deleted in its entirety and the following is substituted
therefor:
"'REQUIRED LENDERS means at any time Lenders holding greater
than 50% of the aggregate of the Term Loan Commitments and the
Revolving Credit Commitments; provided, however, that if any Lender
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shall be a Defaulting Lender at such time, there shall be excluded
from the determination of Required Lenders at such time the aggregate
Term Loan Commitment and Revolving Credit Commitment of such Lender at
such time."
(k) The definition of "Term Loan Advance" set
forth therein is deleted in its entirety and the following is substituted
therefor:
"'TERM LOAN ADVANCE' means a Term Loan A Advance, a Term Loan B
Advance or a Term Loan C Advance. "
(l) The definition of "Term Loan Borrowing" set
forth therein is deleted in its entirety and the following is substituted
therefor:
"'TERM LOAN BORROWING' means a Term Loan A Borrowing, a Term
Loan B Borrowing or a Term Loan C Borrowing. "
(m) The definition of "Term Loan Commitment" set
forth therein is deleted in its entirety and the following is substituted
therefor:
"'TERM LOAN COMMITMENT' means, with respect to any Term Loan
Lender at any time, such Term Loan Lender's Term Loan A Commitment,
Term Loan B Commitment or Term Loan C Commitment, as applicable."
(n) The definition of "Term Loan Facility" set
forth therein is deleted in its entirety and the following is substituted
therefor:
"'TERM LOAN FACILITY' means, at any time, the aggregate amount
of all Term Loan Lenders' Term Loan Commitments at such time."
(o) The definition of "Term Loan Lender" set
forth therein is deleted in its entirety and the following is substituted
therefor:
"'TERM LOAN LENDER' means any Lender that has a Term Loan A
Commitment, Term Loan B Commitment or Term Loan C Commitment."
(p) The definition of "Term Loan Note" set forth
therein is deleted in its entirety and the following is substituted therefor:
"'TERM LOAN NOTE' means a Term Loan A Note, a Term Loan B
Note, or a Term Loan C Note."
2.2 Section 1 (Definitions) of the Credit Agreement is
hereby amended by adding the following definitions in their appropriate
alphabetic locations:
"'TERM LOAN A ADVANCE' has the meaning specified in Section
2.01(b)(i)."
"'TERM LOAN A BORROWING' means a borrowing consisting of
simultaneous Term Loan A Advances of the same Type made by the Term
Loan A Lenders."
"'TERM LOAN A COMMITMENT' means, with respect to any Term Loan
A Lender at any time, the amount set forth opposite such Lender's name
on Schedule I hereto under the caption "Term Loan A Commitment" or, if
such Lender has entered into one or more Assignments and Acceptances,
the amount set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as such Lender's
"Term Loan A Commitment" as such amount may be reduced at or prior to
such
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time pursuant to Section 2.05. The initial aggregate amount of the
Lenders' Term Loan A Commitments is $125,000,000.
"'TERM LOAN A FACILITY' means, at any time, the aggregate
amount of the Term Loan A Lenders' Term Loan A Commitments at such
time."
"'TERM LOAN A LENDER' means any Lender that has a Term Loan A
Commitment."
"'TERM LOAN A NOTE' means a promissory note of the Borrower
payable to the order of any Term Loan A Lender, in substantially the
form of Exhibit C-1 hereto, evidencing the indebtedness of the
Borrower to such Lender resulting from the Term Loan A Advance made by
such Lender, as each may hereafter be amended, restated, supplemented,
replaced or otherwise modified from time to time."
"'TERM LOAN A TERMINATION DATE' means the earlier of (x) the
sixth anniversary of the Initial Funding Date and (y) the Termination
Date."
"'TERM LOAN B ADVANCE' has the meaning specified in Section
2.01(b)(ii)."
"'TERM LOAN B BORROWING' means a borrowing consisting of
simultaneous Term Loan B Advances of the same Type made by the Term
Loan B Lenders."
"'TERM LOAN B COMMITMENT' means, with respect to any Term Loan
B Lender at any time, the amount set forth opposite such Lender's name
on Schedule I hereto under the caption 'Term Loan B Commitment' or, if
such Lender has entered into one or more Assignments and Acceptances,
the amount set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as such Lender's
'Term Loan B Commitment' as such amount may be reduced at or prior to
such time pursuant to Section 2.05. The initial aggregate amount of
the Lenders' Term Loan B Commitments is $75,000,000."
"'TERM LOAN B FACILITY' means, at any time, the aggregate
amount of the Term Loan B Lenders' Term Loan B Commitments at such
time."
"'TERM LOAN B LENDER' means any Lender that has a Term Loan B
Commitment."
"'TERM LOAN B NOTE' means a promissory note of the Borrower
payable to the order of any Term Loan B Lender, in substantially the
form of Exhibit C-2 hereto, evidencing the indebtedness of the
Borrower to such Lender resulting from the Term Loan B Advance made by
such Lender, as each may hereafter be amended, restated, supplemented,
replaced or otherwise modified from time to time."
"'TERM LOAN B TERMINATION DATE' means the earlier of (x) the
seventh anniversary of the Initial Funding Date and (y) the
Termination Date."
"'TERM LOAN C ADVANCE' has the meaning specified in Section
2.01(b)(iii)."
"'TERM LOAN C BORROWING' means a borrowing consisting of
simultaneous Term Loan C Advances of the same Type made by the Term
Loan C Lenders."
"'TERM LOAN C COMMITMENT' means, with respect to any Term Loan
C Lender at any time, the amount set forth opposite such Lender's name
on Schedule I hereto under the caption 'Term Loan C Commitment' or, if
such Lender has entered into one or more Assignments and Acceptances,
the amount set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as such Lender's
'Term Loan C Commitment' as such amount may be reduced at or prior to
such
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time pursuant to Section 2.05. The initial aggregate amount of the
Lenders' Term Loan C Commitments is $50,000,000."
"'TERM LOAN C FACILITY' means, at any time, the aggregate
amount of the Term Loan C Lenders' Term Loan C Commitments at such
time."
"'TERM LOAN C LENDER' means any Lender that has a Term Loan C
Commitment."
"'TERM LOAN C NOTE' means a promissory note of the Borrower
payable to the order of any Term Loan C Lender, in substantially the
form of Exhibit C-3 hereto, evidencing the indebtedness of the
Borrower to such Lender resulting from the Term Loan C Advance made by
such Lender, as each may hereafter be amended, restated, supplemented,
replaced or otherwise modified from time to time."
"'TERM LOAN C TERMINATION DATE' means the earlier of (x) the
eighth anniversary of the Initial Funding Date and (y) the Termination
Date."
2.4 Section 2.01 (The Advances) of the Credit Agreement
is hereby amended by deleting subsections (b) and (c) thereof in their entirety
and substituting the following therefor:
"(b) THE TERM LOAN ADVANCES.
(i) Each Term Loan A Lender severally agrees, on
the terms and conditions hereinafter set forth, to make a single
advance (a "TERM LOAN A ADVANCE") to the Borrower on the Initial
Funding Date in an amount not to exceed such Lender's Term Loan A
Commitment at such time. The Term Loan A Borrowing shall consist of
Term Loan A Advances made simultaneously by the Term Loan A Lenders
ratably according to their Term Loan A Commitments. Amounts borrowed
under this Section 2.01(b)(i) and repaid or prepaid may not be
reborrowed.
(ii) Each Term Loan B Lender severally agrees, on
the terms and conditions hereinafter set forth, to make a single
advance (a "TERM LOAN B ADVANCE") to the Borrower on the Initial
Funding Date in an amount not to exceed such Lender's Term Loan B
Commitment at such time. The Term Loan B Borrowing shall consist of
Term Loan B Advances made simultaneously by the Term Loan B Lenders
ratably according to their Term Loan B Commitments. Amounts borrowed
under this Section 2.01(b)(ii) and repaid or prepaid may not be
reborrowed.
(iii) Each Term Loan C Lender severally agrees, on
the terms and conditions hereinafter set forth, to make a single
advance (a "TERM LOAN C ADVANCE") to the Borrower on the Initial
Funding Date in an amount not to exceed such Lender's Term Loan C
Commitment at such time. The Term Loan C Borrowing shall consist of
Term Loan C Advances made simultaneously by the Term Loan C Lenders
ratably according to their Term Loan C Commitments. Amounts borrowed
under this Section 2.01(b)(iii) and repaid or prepaid may not be
reborrowed.
(c) THE SWING LINE ADVANCES. The Borrower may request the
Swing Line Bank to make, and the Swing Line Bank shall, so long as no
Default or Event of Default shall have occurred and be continuing,
make, on the terms and conditions hereinafter set forth, Swing Line
Advances to the Borrower from time to time on any Business Day during
the period from the Initial Funding Date until the Revolving Credit
Termination Date (i) in an aggregate amount not to exceed at any time
outstanding $10,000,000 (the "SWING LINE FACILITY") and (ii) in an
amount for each such Swing Line Borrowing not to exceed an amount
equal to (x) the aggregate of the Unused Revolving Credit Commitments
of the Revolving Credit Lenders at such time minus (y) the aggregate
Swing Line Advances outstanding at such time. Each Swing Line Advance
shall be in integral multiples of $100,000. No Swing Line Advance
shall be used for the purpose of funding the payment of principal of
any other Swing Line Advance. Each Swing Line Borrowing shall bear
interest at the rate established pursuant to the Fee Letter (the
"SWING LINE RATE").
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Within the limits of the Swing Line Facility and within the limits
referred to in this Section 2.01(c), the Borrower may borrow and
reborrow under this Section 2.01(c) and may repay or prepay the Swing
Line Advances at such times prior to the Revolving Credit Termination
Date, and in such integral multiples, as the Borrower may elect."
2.5 Section 2.04 (Repayment of Advances) of the Credit
Agreement is hereby amended by deleting subsection (b) thereof in its entirety
and substituting the following therefor:
"(b) TERM LOAN ADVANCES.
(i) TERM LOAN A ADVANCES. The Borrower shall
repay to the Administrative Agent for the ratable account of the Term
Loan A Lenders the aggregate outstanding principal amount of the Term
Loan A Advances as follows: the first payment date shall be April 3,
2000, the second payment date shall be July 1, 2000, and the third
payment date and each payment date subsequent thereto shall be the
first day of each third month thereafter. Each payment shall be made
in equal quarterly installments (except that the payments on April 3,
2000 and July 1, 2000 shall be one-half of the aggregate amount for
Year 1) based upon the annual amounts set forth below (which amounts
shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.06):
YEAR AMOUNT
---- ------
Year 1 $ 8,750,000
Year 2 $20,000,000
Year 3 $21,250,000
Year 4 $25,000,000
Year 5 $25,000,000
Year 6 $25,000,000
provided, however, that notwithstanding the foregoing, the final
principal installment shall occur no later than the Term Loan A
Termination Date and shall be in an amount equal to the aggregate
principal amount of the Term Loan A Advances outstanding on such date.
(ii) TERM LOAN B ADVANCES. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term Loan B
Lenders the aggregate outstanding principal amount of the Term Loan B
Advances as follows: the first payment date shall be April 3, 2000,
the second payment date shall be July 1, 2000, and the third payment
date and each payment date subsequent thereto shall be the first day
of each third month thereafter. Each payment shall be made in equal
quarterly installments (except that the payments on April 3, 2000 and
July 1, 2000 shall be one-half of the aggregate amount for Year 1)
based upon the annual amounts set forth below (which amounts shall be
reduced as a result of the application of prepayments in accordance
with the order of priority set forth in Section 2.06):
YEAR AMOUNT
---- ------
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Year 1 $ 750,000
Year 2 $ 750,000
Year 3 $ 750,000
Year 4 $ 750,000
YEAR AMOUNT
---- ------
Year 5 $ 750,000
Year 6 $31,250,000
Year 7 $40,000,000
provided, however, that notwithstanding the foregoing, the final
principal installment shall occur no later than the Term Loan B
Termination Date and shall be in an amount equal to the aggregate
principal amount of the Term Loan B Advances outstanding on such date.
(iii) TERM LOAN C ADVANCES. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term Loan C
Lenders the aggregate outstanding principal amount of the Term Loan C
Advances as follows: the first payment date shall be April 3, 2000,
the second payment date shall be July 1, 2000, and the third payment
date and each payment date subsequent thereto shall be the first day
of each third month thereafter. Each payment shall be made in equal
quarterly installments (except that the payments on April 3, 2000 and
July 1, 2000 shall be one-half of the aggregate amount for Year 1)
based upon the annual amounts set forth below (which amounts shall be
reduced as a result of the application of prepayments in accordance
with the order of priority set forth in Section 2.06):
YEAR AMOUNT
---- ------
Year 1 $ 500,000
Year 2 $ 500,000
Year 3 $ 500,000
Year 4 $ 500,000
Year 5 $ 500,000
Year 6 $ 500,000
Year 7 $17,000,000
Year 8 $30,000,000
provided, however, that notwithstanding the foregoing, the final
principal installment shall occur no later than the Term Loan C
Termination Date and shall be in an amount equal to the aggregate
principal amount of the Term Loan C Advances outstanding on such
date."
2.5 Section 2.05 (Termination or Reduction of the Commitments) of
the Credit Agreement is hereby amended by deleting subsections (b)(i) and
(b)(ii) thereof in their entirety and substituting the following therefor:
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"(b) MANDATORY.
(i) (A) On the date of the Term Loan A
Borrowing, after giving effect to such Term Loan A Borrowing, and from
time to time thereafter upon each repayment or prepayment of the Term
Loan A Advances, the aggregate Term Loan A Commitments of the Term
Loan A Lenders shall be automatically and permanently reduced, on a
pro rata basis, by an amount equal to the amount by which the
aggregate Term Loan A Commitments immediately prior to such reduction
exceed the aggregate unpaid principal amount of the Term Loan A
Advances then outstanding; provided, however, that the Term Loan A
Commitments shall terminate, and all Term Loan A Advances made
thereunder shall be repaid in full, no later than the Term Loan A
Termination Date.
(B) On the date of the Term Loan B
Borrowing, after giving effect to such Term Loan B Borrowing, and from
time to time thereafter upon each repayment or prepayment of the Term
Loan B Advances, the aggregate Term Loan B Commitments of the Term
Loan B Lenders shall be automatically and permanently reduced, on a
pro rata basis, by an amount equal to the amount by which the
aggregate Term Loan B Commitments immediately prior to such reduction
exceed the aggregate unpaid principal amount of the Term Loan B
Advances then outstanding; provided, however, that the Term Loan B
Commitments shall terminate, and all Term Loan B Advances made
thereunder shall be repaid in full, no later than the Term Loan B
Termination Date.
(C) On the date of the Term Loan C
Borrowing, after giving effect to such Term Loan C Borrowing, and from
time to time thereafter upon each repayment or prepayment of the Term
Loan C Advances, the aggregate Term Loan C Commitments of the Term
Loan C Lenders shall be automatically and permanently reduced, on a
pro rata basis, by an amount equal to the amount by which the
aggregate Term Loan C Commitments immediately prior to such reduction
exceed the aggregate unpaid principal amount of the Term Loan C
Advances then outstanding; provided, however, that the Term Loan C
Commitments shall terminate, and all Term Loan C Advances made
thereunder shall be repaid in full, no later than the Term Loan C
Termination Date.
(ii) On and after the date that all Term Loan
Advances shall have been repaid in full, the Revolving Credit Facility
shall be automatically and permanently reduced on each date on which
prepayment thereof is required to be made pursuant to Section
2.06(b)(i), (ii), (iii), (iv) or (v) in an amount equal to the
applicable Reduction Amount, provided that each such reduction of the
Revolving Credit Facility shall be made ratably among the Revolving
Credit Lenders in accordance with their Revolving Credit Commitments."
2.6 (a) Section 2.06 (Prepayments and Repayments) of
the Credit Agreement is hereby amended by deleting subsection (c) thereof in
its entirety and substituting the following therefor:
"(c) APPLICATION OF PREPAYMENTS AND REPAYMENTS.
All prepayments or repayments, as the case may be, made pursuant to
clause (b) of this Section 2.06 shall be applied to the outstanding
Advances as follows:
(i) All mandatory prepayments and repayments
pursuant to clauses (i), (iii) or (iv) of clause (b) of this Section
2.06 shall be applied:
(A) first, an amount of such prepayment
or repayment which, when added to any prior prepayments pursuant to
clauses (i), (iii) or (iv) of clause (b) of this Section 2.06 shall
equal $10,000,000, shall be applied to prepay Term Loan A Advances,
Term Loan B Advances and Term Loan C Advances, then outstanding on a
pro rata basis in the direct order of the maturity of the principal
payments due in respect thereof;
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(B) second, to prepay or reduce any Term
Loan A Advances, Term Loan B Advances and Term Loan C Advances, then
outstanding on a pro rata basis in the inverse order of the maturity
of the principal payments due in respect thereof until all such Term
Loan Advances are paid in full;
(C) third, to prepay Letter of Credit
Advances then outstanding until all such Letter of Credit Advances are
paid in full;
(D) fourth, to prepay Revolving Credit
Advances then outstanding (whereupon the Revolving Credit Facility
shall be permanently reduced as set forth in Section 2.05(b)(ii) in
the amount of such prepayment) until such Revolving Credit Advances
are paid in full; and
(E) fifth, deposited in the L/C Cash
Collateral Account to cash collateralize 100% of the Available Amount
of the Letters of Credit then outstanding.
(ii) All mandatory prepayments and repayments
pursuant to clauses (ii) or (v) of clause (b) of this Section 2.06
shall be applied:
(A) first, to prepay Term Loan A
Advances, Term Loan B Advances and Term Loan C Advances, then
outstanding on a pro rata basis in the inverse order of the maturity
of the principal payments due in respect thereof until all such Term
Loan Advances are paid in full;
(B) second, to prepay Letter of Credit
Advances then outstanding until all such Letter of Credit Advances are
paid in full;
(C) third, to prepay Revolving Credit
Advances then outstanding (whereupon the Revolving Credit Facility
shall be permanently reduced as set forth in Section 2.05(b)(ii) in
the amount of such prepayment) until such Revolving Credit Advances
are paid in full; and
(D) fourth, deposited in the L/C Cash
Collateral Account to cash collateralize 100% of the Available Amount
of the Letters of Credit then outstanding.
(b) Section 2.06 (Prepayments and Repayments) of the
Credit Agreement is hereby amended by adding a new subsection (e) thereto as
follows:
"(e) Notwithstanding the foregoing application of proceeds
of prepayments and repayments, any Term Loan B Lender or Term Loan C
Lender may, with respect to any voluntary or mandatory prepayment, so
long as Term Loan A Advances are outstanding (after giving effect to
the application of such prepayment to the Term Loan A Advances), by
notice to the Administrative Agent by telephone (confirmed by
telecopy) not later than 10:00 a.m. (New York time) one Business Day
prior to the prepayment date, elect not to have all or any part of any
prepayments applied to such Lender's Term Loan B Advances or Term Loan
C Advances, as the case may be, in which case the Administrative Agent
shall immediately by telephone (confirmed by telecopy) notify the
Borrower thereof and, subject to the proviso set forth below, the
aggregate amount of such prepayments so declined shall be applied to
the remaining scheduled installments of payments on the Term Loan A
Advances in accordance with the instructions of the Borrower, with
respect to an optional prepayment, or in accordance with Section
2.06(c), with respect to a mandatory prepayment (to the extent that
the aggregate principal amount of the Term Loan A Advances after
giving effect to such prepayment is less than the aggregate amount so
declined by the Term Loan B Lenders and the Term Loan C Lenders, such
amount of the Term Loan A Advances shall be allocated pro rata to such
declining Lenders based on the aggregate amount declined); provided,
however, that in the event that the Borrower determines not to accept
such election by such Term Loan B Lenders or Term Loan C Lenders not
to have all or any part of any prepayments applied to such Lender's
Term Loan
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B Advances or Term Loan C Advances, as the case may be, the Borrower
may, not later than 12:00 noon (New York time) on such Business Day
prior to the prepayment date, notify the Administrative Agent by
telephone (confirmed by telecopy) of such determination not to accept
such Lenders' election, whereupon the Administrative Agent shall
notify such Lenders by telephone (confirmed by telecopy) that such
Lenders' election to decline is not available; provided further,
however, that in the event that the Borrower fails to so notify the
Administrative Agent within the specified time period, such election
to decline shall be available to the Term Loan B Lenders and the Term
Loan C Lenders."
2.7 Section 3.02 (Conditions Precedent to Initial
Funding) of the Credit Agreement is hereby amended by deleting
subsection (a) thereof in its entirety and substituting the following
therefor:
"(a) NOTES. The Notes in substantially
the form of Exhibit B, Exhibit C-1, Exhibit C-2, Exhibit C-3, and
Exhibit D payable to the order of the applicable Lender Parties duly
executed by the Borrower."
2.8 Section 3.02 (Conditions Precedent to Initial Funding
Date) of the Credit Agreement is hereby amended by deleting subsection
(g)(i)(E) thereof in its entirety and substituting the following therefor:
"(E) in the case of Bidco, all action
necessary to allow the Administrative Agent to obtain a valid and
enforceable, first priority, perfected security interest in sixty-five
(65%) percent of the capital stock of Target including, without
limitation, the execution and delivery to the Administrative Agent of
one or more pledge agreements in form and substance satisfactory to
the Administrative Agent (in each case as amended, supplemented or
otherwise modified from time to time in accordance with its terms,
each a "PLEDGE AGREEMENT")."
2.9 Section 5.02(b)(iii)(E) (Debt) of the Credit
Agreement is hereby amended by adding the following parenthetical
immediately following the words "Subordinated Debt" appearing on the
second line thereof: "(other than Subordinated Debt issued in
connection with the financing of the portion of the Target Shares
constituting the preference shares)".
2.10 Section 5.02(e) (Sales, Etc. of Assets) of the Credit
Agreement is hereby amended by adding to the end of clause (iii) thereof
(immediately before the semicolon) the following: ", but only as and to the
extent permitted under Section 1(a) of the Security Agreement;".
2.11 Section 5.02(f) (Investments in Other Persons) of the
Credit Agreement is hereby amended by deleting in its entirety clause (x)
thereof and substituting therefor "(x) Intentionally Omitted".
2.12 Section 5.02(k) (Prepayments, Etc. of Debt) of the
Credit Agreement is hereby amended by deleting in its entirety the following:
"and (D) the prepayment or repayment of Subordinated Debt issued in connection
with the original financing of the portion of the Target Shares constituting
the preference shares", and inserting immediately before clause (C) contained
therein, the word "and".
2.13 Section 5.02(p) (Capital Expenditures) of the Credit
Agreement is hereby amended by decreasing the dollar limitation contained
therein from "$25,000,000" to "$20,000,000".
2.14 Section 5.04(a) (Consolidated Total Funded Debt to
EBITDA Ratio) of the Credit Agreement is hereby deleted in its entirety and the
following is substituted therefor:
"(a) CONSOLIDATED TOTAL FUNDED DEBT TO EBITDA RATIO.
Maintain as of the last day of each fiscal quarter of the Borrower
commencing with the first complete fiscal quarter after the Initial
Funding Date a ratio of (i) Consolidated Total Funded Debt to (ii)
EBITDA for the most recently completed four fiscal quarters of the
Borrower of not more than the ratio set forth below:
00
XXXX XXXXXX XXXXXXXX XXXXXX XX: RATIO
------------------------------- -------
First Quarter 5.25:1.00
Second Quarter 5.25:1.00
Third Quarter 5.25:1.00
Fourth Quarter 5.00:1.00
Fifth Quarter 4.75:1.00
Sixth Quarter 4.75:1.00
Seventh Quarter 4.50:1.00
Eighth Quarter 4.25:1.00
Ninth Quarter 4.00:1.00
Tenth Quarter 4.00:1.00
Eleventh Quarter 3.75:1.00
Twelfth Quarter 3.75:1.00
Thirteenth Quarter 3.75:1.00
Fourteenth Quarter 3.75:1.00
Fifteenth Quarter 3.75:1.00
Sixteenth Quarter 3.75:1.00
Seventeenth Quarter 3.75:1.00
Eighteenth Quarter 3.75:1.00
Nineteenth Quarter 3.50:1.00
Twentieth Quarter 3.25:1.00
Twenty-first Quarter 3.00:1.00
Twenty-second Quarter 2.75:1.00
Twenty-third Quarter and each
Fiscal Quarter Thereafter 2.50:1.00"
2.15 Section 5.04(b) (Consolidated Senior Debt to EBITDA
Ratio) of the Credit Agreement is hereby deleted in its entirety and the
following is substituted therefor:
"(b) CONSOLIDATED SENIOR DEBT TO EBITDA RATIO. Maintain as
of the last day of each fiscal quarter of the Borrower commencing with
the first complete fiscal quarter after the Initial Funding Date a
ratio of (i) Consolidated Senior Debt to (ii) EBITDA for the most
recently completed four fiscal quarters of the Borrower of not more
than the ratio set forth below:
FOUR FISCAL QUARTERS ENDING ON: RATIO
------------------------------- -----
First Quarter 4.25:1.00
Second Quarter 4.25:1.00
Third Quarter 4.25:1.00
Fourth Quarter 4.00:1.00
Fifth Quarter 3.75:1.00
Sixth Quarter 3.75:1.00
Seventh Quarter 3.50:1.00
Eighth Quarter 3.25:1.00
Ninth Quarter 3.00:1.00
Tenth Quarter 3.00:1.00
Eleventh Quarter 2.75:1.00
Twelfth Quarter 2.75:1.00
Thirteenth Quarter 2.75:1.00
Fourteenth Quarter 2.75:1.00
Fifteenth Quarter 2.75:1.00
Sixteenth Quarter 2.75:1.00
00
Xxxxxxxxxxx Xxxxxxx 2.75:1.00
Eighteenth Quarter 2.75:1.00
Nineteenth Quarter 2.75:1.00
Twentieth Quarter 2.50:1.00
Twenty-first Quarter 2.25:1.00
Twenty-second Quarter 2.00:1.00
Twenty-third Quarter and each
Fiscal Quarter Thereafter 1.75:1.00"
2.16 Section 5.04(d) (Fixed Charge Coverage Ratio) of the
Credit Agreement is hereby deleted in its entirety and the following is
substituted therefor:
"(d) FIXED CHARGE COVERAGE RATIO. Maintain as of the last
day of each fiscal quarter of the Borrower commencing with the first
complete fiscal quarter after the Initial Funding Date a ratio of (i)
EBITDA for the most recently completed four fiscal quarters of the
Borrower, less cash Capital Expenditures made by the Borrower and its
Subsidiaries during such four fiscal quarters less the aggregate
amount of federal, state, local and foreign income taxes paid by the
Borrower and its Subsidiaries in cash during such four fiscal
quarters, less cash dividends, if any, paid by the Borrower to the
holders of its common stock during such four fiscal quarters, to the
(ii) sum of (x) cash interest paid by the Borrower and its
Subsidiaries on all Debt during such four fiscal quarters plus (y)
scheduled payments of principal amounts of all Debt paid by the
Borrower and its Subsidiaries during such four fiscal quarters, at not
less than the ratio set forth below for such period:
FOUR FISCAL QUARTERS ENDING ON: RATIO
------------------------------- -----
First Quarter 1.20:1.00
Second Quarter 1.20:1.00
Third Quarter 1.20:1.00
Fourth Quarter 1.20:1.00
Fifth Quarter 1.30:1.00
Sixth Quarter 1.30:1.00
Seventh Quarter 1.30:1.00
Eighth Quarter 1.30:1.00
Ninth Quarter and
Each Fiscal Quarter Thereafter 1.40:1.00"
2.17 Section 8.01 (Amendments, Etc.) of the Credit
Agreement is hereby amended by (a) deleting the reference to "the Borrower"
contained in the second line thereof and substituting "any Loan Party"
therefor, and (b) deleting the reference to "the Term Loan Facility" contained
in subsection (b) thereof and substituting "any Term Loan Facility" therefor.
2.18 Section 8.02 (Notices Etc.) of the Credit Agreement
is hereby amended by deleting the following reference contained in clause (ii)
thereof:
"Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000"
14
and substituting the following therefor:
"Xxxxx, Xxxxxx & Xxxxxx, LLP
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000"
2.19 Section 8.07 (Assignments and Participations) of the
Credit Agreement is hereby amended by deleting subsection (a)(i) thereof in its
entirety and substituting the following therefor: "(i) with respect to the Term
Loan A Facility and the Revolving Credit Facility, each such assignment shall
be of a uniform, and not a varying, percentage of all rights and obligations
under and in respect of such Facilities on a pro rata basis with respect to
such Facilities".
2.20 Exhibit C (Form of Term Loan Note) to the Credit
Agreement is hereby deleted in its entirety and there is substituted therefor
Exhibit C-1 (Form of Term Loan A Note), Exhibit C-2 (Form of Term Loan B Note),
and Exhibit C-3 (Form of Term Loan C Note), each annexed to this First
Amendment.
3. ACKNOWLEDGMENTS AND CONFIRMATIONS.
3.1 Collateral Documents. The Borrower and each Guarantor
that is a party thereto, hereby acknowledges and confirms that the Liens
granted or to be granted pursuant to the Collateral Documents secure or will
secure, without limitation, the Indebtedness, liabilities and obligations of
the Borrower and such Guarantors to the Lender Parties and the Administrative
Agent under the Credit Agreement as amended hereby, whether or not so stated in
the Collateral Documents, and that the terms "Obligations" and "Liabilities" as
used in the Collateral Documents (or any other term used therein to describe or
refer to the Indebtedness, liabilities and obligations of the Borrower to the
Lender Parties and/or the Administrative Agent) include, without limitation,
the Indebtedness, liabilities and obligations of the Borrower and the
Guarantors under the Credit Agreement as amended hereby and the Guaranty as
acknowledged and confirmed hereby.
3.2 Guaranty. Each of the Guarantors hereby acknowledges
and confirms that the term "Guaranteed Obligations" as used and defined in the
Guaranty (or any other term used therein to describe or refer to the
Indebtedness, liabilities and obligations of the Borrower to the Lender Parties
and/or the Administrative Agent), include, without limitation, the
Indebtedness, liabilities and obligations of the Borrower under the Credit
Agreement as amended hereby.
4. REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants to the Lender Parties and the Administrative Agent
that:
4.1 No Default. After giving effect to this First
Amendment, no Default or Event of Default shall have occurred or be continuing.
4.2 Existing Representations and Warranties. As of the
date hereof and after giving effect to this First Amendment, each and every one
of the representations and warranties set forth in the Loan Documents is true,
accurate and complete in all respects and with the same effect as though made
on the date hereof, and each is hereby incorporated herein in full by reference
as if restated herein in its entirety, except for any representation or
warranty limited by its terms to a specific date and except for changes in the
ordinary course of business which are not prohibited by the Credit Agreement
(as amended hereby) and which do not, either singly or in the aggregate, have a
Material Adverse Effect.
15
4.3 Authority; Enforceability. (i) The execution,
delivery and performance by each Loan Party of this First Amendment are within
its organizational powers and have been duly authorized by all necessary
corporate action, (ii) this First Amendment is the legal, valid and binding
obligation of each Loan Party, enforceable against such Loan Party in
accordance with its terms and (iii) this First Amendment and the execution,
delivery and performance by each Loan Party thereof does not: (A) contravene
the terms of such Loan Party's organizational documents; (B) conflict with or
result in any breach or contravention of, or the creation of any Lien (other
than Liens under the Loan Documents) under, any document evidencing any
contractual obligation to which such Loan Party is a party or any order,
injunction, writ or decree to which it or its respective property is subject;
or (C) violate any requirement of law.
5. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
5.1 Effect. Except as specifically amended hereby, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect in accordance with their terms and are hereby ratified and confirmed.
5.2 No Waiver; References. The execution, delivery and
effectiveness of this First Amendment shall not operate as a waiver of any
right, power or remedy of the Administrative Agent or any Lender under the
Credit Agreement, nor constitute a waiver of any provision of the Credit
Agreement, except as specifically set forth herein. Upon the effectiveness of
this First Amendment, each reference in:
(i) the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of similar import shall mean and be a
reference to the Credit Agreement as amended hereby;
(ii) the other Loan Documents to the Credit
Agreement shall mean and be a reference to the Credit Agreement as amended
hereby;
(iii) the Loan Documents to the Loan Documents
shall be deemed to include this First Amendment;
(iv) the Credit Agreement to Exhibit C shall be
deemed to refer to Exhibit C-1, Exhibit C-2, or Exhibit C-3, as applicable; and
(v) the Loan Documents to the Term Loan Note
shall be deemed to refer to the Term Loan A Note, the Term Loan B Note, or the
Term Loan C Note, as applicable.
6. MISCELLANEOUS.
6.1 Expenses. The Borrower agrees to pay the
Administrative Agent upon demand for all reasonable expenses, including
reasonable attorneys' fees and expenses of the Administrative Agent, incurred
by the Administrative Agent in connection with the preparation, negotiation and
execution of this First Amendment.
6.2. Headings. Section headings in this First Amendment
are included herein for convenience of reference only and shall not constitute
a part of this First Amendment for any other purposes.
6.3 Law. THIS FIRST AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
6.4 Successors. This First Amendment shall be binding
upon the Borrower, the Lender Parties and the Administrative Agent and their
respective successors and assigns, and shall inure to the benefit of the
Borrower, the Lender Parties and the Administrative Agent and the successors
and assigns of the Lender Parties and the Administrative Agent.
16
6.5 Execution in Counterparts. This First Amendment may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument.
[Signature Page to Follow]
17
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed and delivered by their respective officers thereunto
duly authorized on the date first written above.
APPLIED GRAPHICS
TECHNOLOGIES, INC.
By:
-----------------------------
Name:
----------------------------
Title:
---------------------------
FLEET BANK, N.A., AS A BANK,
AS ADMINISTRATIVE AGENT, INITIAL
ISSUING BANK AND SWING LINE BANK
By:
------------------------------
Name:
-----------------------------
Title:
----------------------------
Acknowledged and Consented to:
AMUSEMATTE CORP.
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 SYSTEMS SERVICES, INC.
RETAIL PROFIT SOLUTIONS, INC.
For each of the forgoing corporations
By:
------------------------------
Name:
-----------------------------
Title:
----------------------------
18
EXHIBIT C-1 TO THE
CREDIT AGREEMENT
FORM OF TERM LOAN A NOTE
$_______________ Dated: ________, ____
FOR VALUE RECEIVED, the undersigned, Applied Graphics Technologies,
Inc., a Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the
order of ___________________________ (the "LENDER") for the account of its
Applicable Lending Office (as defined in the Credit Agreement referred to
below) the principal amount of the Term Loan A Advances owing to the Lender by
the Borrower pursuant to the Amended and Restated Credit Agreement, dated as of
March 10, 1999 (as amended, supplemented, restated or otherwise modified, the
"CREDIT AGREEMENT"; terms defined therein being used herein as therein
defined), among the Borrower, the Lender and certain other Lender Parties party
thereto, Fleet Bank, N.A., as Initial Issuing Bank, Fleet Bank, N.A., as Swing
Line Bank, and Fleet Bank, N.A., as Administrative Agent for the Lender and the
other Lender Parties, on the dates and in the amounts specified in the Credit
Agreement.
The Borrower further promises to pay interest on the unpaid principal
amount of each Term Loan A Advance from the date of such Term Loan A Advance
until such principal amount is paid in full, at such interest rates, and at
such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Fleet Bank, N.A., as Administrative Agent for the Lender
Parties, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
0000000, Attention: Loan Administration, in same day funds.
This Promissory Note is one of the Term Loan A Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of a Term Loan A Advance by the
Lender to the Borrower in an amount not to exceed the U.S. dollar amount first
above mentioned, the indebtedness of the Borrower resulting from such Term Loan
A Advance being evidenced by this Promissory Note, and (ii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified. The
obligations of the Borrower under this Promissory Note, and the obligations of
the other Loan Parties under the Loan Documents, are secured by the Collateral
as provided in the Loan Documents.
19
This Promissory Note shall be governed by and construed in accordance
with the laws of the State of New York.
APPLIED GRAPHICS TECHNOLOGIES, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
20
EXHIBIT C-2 TO THE
CREDIT AGREEMENT
FORM OF TERM LOAN B NOTE
$_______________ Dated: ________, ____
FOR VALUE RECEIVED, the undersigned, Applied Graphics Technologies,
Inc., a Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the
order of ___________________________ (the "LENDER") for the account of its
Applicable Lending Office (as defined in the Credit Agreement referred to
below) the principal amount of the Term Loan B Advances owing to the Lender by
the Borrower pursuant to the Amended and Restated Credit Agreement, dated as of
March 10, 1999 (as amended, supplemented, restated or otherwise modified, the
"CREDIT AGREEMENT"; terms defined therein being used herein as therein
defined), among the Borrower, the Lender and certain other Lender Parties party
thereto, Fleet Bank, N.A., as Initial Issuing Bank, Fleet Bank, N.A., as Swing
Line Bank, and Fleet Bank, N.A., as Administrative Agent for the Lender and the
other Lender Parties, on the dates and in the amounts specified in the Credit
Agreement.
The Borrower further promises to pay interest on the unpaid principal
amount of each Term Loan B Advance from the date of such Term Loan B Advance
until such principal amount is paid in full, at such interest rates, and at
such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Fleet Bank, N.A., as Administrative Agent for the Lender
Parties, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
0000000, Attention: Loan Administration, in same day funds.
This Promissory Note is one of the Term Loan B Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of a Term Loan B Advance by the
Lender to the Borrower in an amount not to exceed the U.S. dollar amount first
above mentioned, the indebtedness of the Borrower resulting from such Term Loan
B Advance being evidenced by this Promissory Note, and (ii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified. The
obligations of the Borrower under this Promissory Note, and the obligations of
the other Loan Parties under the Loan Documents, are secured by the Collateral
as provided in the Loan Documents.
21
This Promissory Note shall be governed by and construed in accordance
with the laws of the State of New York.
APPLIED GRAPHICS TECHNOLOGIES, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
22
EXHIBIT C-3 TO THE
CREDIT AGREEMENT
FORM OF TERM LOAN C NOTE
$_______________ Dated: ________, ____
FOR VALUE RECEIVED, the undersigned, Applied Graphics Technologies,
Inc., a Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the
order of ___________________________ (the "LENDER") for the account of its
Applicable Lending Office (as defined in the Credit Agreement referred to
below) the principal amount of the Term Loan C Advances owing to the Lender by
the Borrower pursuant to the Amended and Restated Credit Agreement, dated as of
March 10, 1999 (as amended, supplemented, restated or otherwise modified, the
"CREDIT AGREEMENT"; terms defined therein being used herein as therein
defined), among the Borrower, the Lender and certain other Lender Parties party
thereto, Fleet Bank, N.A., as Initial Issuing Bank, Fleet Bank, N.A., as Swing
Line Bank, and Fleet Bank, N.A., as Administrative Agent for the Lender and the
other Lender Parties, on the dates and in the amounts specified in the Credit
Agreement.
The Borrower further promises to pay interest on the unpaid principal
amount of each Term Loan C Advance from the date of such Term Loan C Advance
until such principal amount is paid in full, at such interest rates, and at
such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Fleet Bank, N.A., as Administrative Agent for the Lender
Parties, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
0000000, Attention: Loan Administration, in same day funds.
This Promissory Note is one of the Term Loan C Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of a Term Loan C Advance by the
Lender to the Borrower in an amount not to exceed the U.S. dollar amount first
above mentioned, the indebtedness of the Borrower resulting from such Term Loan
C Advance being evidenced by this Promissory Note, and (ii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified. The
obligations of the Borrower under this Promissory Note, and the obligations of
the other Loan Parties under the Loan Documents, are secured by the Collateral
as provided in the Loan Documents.
23
This Promissory Note shall be governed by and construed in accordance
with the laws of the State of New York.
APPLIED GRAPHICS TECHNOLOGIES, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
