EXHIBIT 10.30
FIRST AMENDMENT TO AMENDED AND RESTATED
---------------------------------------
SUBORDINATION AND INTERCREDITOR AGREEMENT
-----------------------------------------
THIS FIRST AMENDMENT TO AMENDED AND RESTATED SUBORDINATION AND
INTERCREDITOR AGREEMENT (the "Amendment"), dated as of August ___, 1995, is by
and among XXXXXXX INTERNATIONAL, INC. f/k/a Xxxxxxx Graphics Corporation (the
"Company"), XXXXXXXX-XXXXXXX GROUP, INC., PMC LIQUIDATION, INC. f/k/a POST
MACHINERY CO., INC., ZERAND-XXXXXX GROUP, INC., PRINTING & PACKAGING EQUIPMENT
FINANCE CORPORATION, XXXXXXX SECURITIES SYSTEMS INTERNATIONAL, INC.
(collectively, "Guarantors"), BANK OF AMERICA TEXAS, N.A. ("Bank of America"),
as assignee of Bank One, Milwaukee, National Association ("Bank One"), AETNA
LIFE INSURANCE COMPANY, THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, MONY LIFE
INSURANCE COMPANY OF AMERICA (collectively, "Purchasers") and NATIONSBANK OF
TEXAS, N.A. ("NationsBank") (in its capacity as Collateral Agent for the holders
of the Subordinated Debt).
R E C I T A L S:
A. The Company, the Purchasers, the Guarantors, NationsBank and Bank
One heretofore entered into that certain Amended and Restated Subordination and
Intercreditor Agreement (as amended, the "Intercreditor Agreement") dated as of
April 26, 1994.
B. Bank One assigned all of its, right, title
and interest in the Intercreditor Agreement to Bank of America.
C. The Company, the Guarantors, the Purchasers, NationsBank and Bank
of America now desire to amend the Intercreditor Agreement as herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
---------
Definitions
-----------
Section 1.1. Definitions. Capitalized terms used in this Amendment,
-----------
to the extent not otherwise defined herein, shall have the same meanings as in
the Intercreditor Agreement, as amended hereby.
ARTICLE II
----------
Amendments
----------
Section 2.1. Amendment to Definition of Bank Credit Agreement.
------------------------------------------------
Effective as of the date hereof, subsection (i) of the definition of "Bank
Credit Agreement" in Section 1 of the Intercreditor Agreement is hereby amended
to read as follows:
(i) that certain Credit Agreement dated as of May 16, 1995, among the
Company and Senior Lender (as the same may be amended and restated from
time to time, the "Bank Credit Agreement").
Section 2.2. Amendment to Definition of Permitted Refinancing. Effective
------------------------------------------------
as of the date hereof, subsection (a) of the definition of "Permitted
Refinancing" in Section 1 of the Intercreditor Agreement is hereby amended to
read as follows:
(a) the maximum credit available to the Company and the Guarantors
under any Permitted Refinancing shall not exceed $27,000,000.00,
Section 2.3. Amendment to Definition of Senior Debt. Effective as of the
--------------------------------------
date hereof, the definition of Senior Debt in Section 1 of the Intercreditor
Agreement is hereby amended to read as follows:
Senior Debt means all present and future obligations, indebtedness and
-----------
liabilities of the Company or to any Guarantor arising under or pursuant to
the Bank Credit Agreement, any Permitted Refinancing, all other agreements
or financing arrangements with Senior Lender, all interest accruing
pursuant to the aforementioned agreements and arrangements, all attorneys'
fees, costs, expenses or other fees incurred in the enforcement and
collection thereof and any and all renewals, extensions, increases, and
amendments thereto; provided that, the aggregate principal amount of such
Senior Debt (excluding attorneys' fees, costs, expenses, other fees or any
indemnified amounts) shall not exceed the sum of $27,000,000.
Section 2.4. Amendment to Definition of Senior Lender. The definition of
----------------------------------------
"Senior Lender" in Section 1 of the Intercreditor Agreement is hereby amended to
read as follows:
Senior Lender means Bank of America Texas, N.A. and any assignee or
-------------
participant, in whole or in part, of the Senior Debt.
Section 2.5. References in the other Senior Documents and Subordinated
---------------------------------------------------------
Documents. All references in the other Senior Documents and Subordinated
---------
Documents are hereby modified and amended wherever necessary to reflect the
modifications to the Intercreditor Agreement referenced in Sections 2.1 through
2.4 above.
-2-
ARTICLE III
-----------
Conditions Precedent
--------------------
Section 3.1. Conditions. The effectiveness of this Amendment is subject
----------
to the satisfaction of the following conditions precedent:
(a) Purchasers and Bank of America shall have received all of the
following, each dated (unless otherwise indicated) the date of this Amendment,
in form and substance satisfactory to them:
(1) Resolutions. Resolutions of the Board of Directors of the
-----------
Company and each Guarantor certified by the Secretary or an Assistant
Secretary which authorize the execution, delivery and performance by such
Person of this Amendment;
(2) Incumbency. A certificate of incumbency certify by the
----------
Secretary or an Assistant Secretary of the Company and each Guarantor
certifying the names of the officers of such Person authorized to sign this
Amendment together with specimen signatures of such officers;
(3) Articles of Incorporation. The articles of incorporation for
-------------------------
the Company and each Guarantor certified by the appropriate government
official of the state of incorporation for such Person within thirty (30)
days prior to the date of this Amendment;
(4) Bylaws. The bylaws of the Company and each Guarantor
------
certified by the Secretary or an Assistant Secretary of such Person; and
(5) Government Certificates. Certificates of the appropriate
-----------------------
government officials of the state of incorporation of the Company and each
Guarantor as to the existence and good standing of such Person, each dated
within thirty (30) days prior to the date of this Amendment.
ARTICLE IV
----------
Ratification
-------------
Section 4.1. Ratification. The terms and provisions set forth in this
------------
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Intercreditor Agreement and except as expressly modified and
superseded by this Amendment, the terms and provisions of the Intercreditor
Agreement and the other Senior Documents and Subordinated Documents are ratified
and confirmed and shall continue in full force and effect. The Company, the
Guarantors, the Purchasers, NationsBank and Senior Lender agree that the
Intercreditor
-3-
Agreement as amended hereby shall continue to be legal, valid, binding and
enforceable in accordance with its terms.
ARTICLE V
---------
Miscellaneous
-------------
Section 5.1. Reference to Agreement. Each of the Senior Documents and
----------------------
Subordinated Documents, including the Intercreditor Agreement and any and all
other agreements, documents, or instruments now or hereafter executed and
delivered pursuant to the terms hereof or thereof, are hereby amended so that
any reference in such Senior Documents, Subordinated Documents or Intercreditor
Agreement to the Intercreditor Agreement shall mean a reference to the
Intercreditor Agreement as amended hereby.
Section 5.2 Severability. Any provision of this Amendment held by a court
------------
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 5.3 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER SUBORDINATED
--------------
DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE
PERFORMABLE IN TEXAS, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS.
Section 5.6 Successors and Assigns. This Amendment is binding upon and
----------------------
shall inure to the benefit of the Purchasers, the Company, the Guarantors,
NationsBank and Senior Lender and their respective successors and assigns.
Section 5.7 Counterparts. This Amendment may be executed in one or more
------------
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument. Telecopies of signatures shall be binding and effective as
originals.
Section 5.8 Effect of Waiver. No consent or waiver, express or implied,
----------------
by Purchasers to or for any breach of or deviation from any covenant, condition
or duty by the Company or any Guarantor shall be deemed a consent or waiver to
or of any other breach of the same or any other covenant, condition or duty.
Section 5.9 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
----------------
DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS
AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR
-4-
COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS
OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
XXXXXXX INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
----------------------------------
Title:
---------------------------------
XXXXXXXX-XXXXXXX GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title:
---------------------------------
PMC LIQUIDATION, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title:
---------------------------------
ZERAND-XXXXXX GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title:
---------------------------------
-5-
PRINTING & PACKAGING EQUIPMENT
FINANCE CORPORATION, a Texas corporation
By: /s/ W. Xxxxx Xxxxxx
----------------------------------------
Name: W. XXXXX XXXXXX
--------------------------------------
Title: Treasurer
-------------------------------------
XXXXXXX SECURITIES SYSTEMS
INTERNATIONAL, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title:
---------------------------------
AETNA LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Investment Manager
---------------------------------
THE MUTUAL LIFE INSURANCE COMPANY
OF NEW YORK
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Title: XXXXX X. XXXXXXX
--------------------------------------
Managing Director
MONY LIFE INSURANCE COMPANY
OF AMERICA
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Title: XXXXX X. XXXXXXX
--------------------------------------
Authorized Agent
-6-
BANK OF AMERICA TEXAS, N.A.,
a national banking association
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Title: Vice President
------------------------------------
NATIONSBANK OF TEXAS, N.A.,
as Collateral Agent
By: ^[SIGNATURE APPEARS HERE]^
---------------------------------------
Title: Vice President
------------------------------------
-7-
