EXHIBIT 10.43
SECOND AMENDMENT TO
FIRST AMENDED AND RESTATED MASTER CREDIT AGREEMENT
This SECOND AMENDMENT TO FIRST AMENDED AND RESTATED MASTER CREDIT
AGREEMENT (the "Second Amendment") is made as of this 12th day of June, 1998 by
and among BANKBOSTON, N.A. (successor by merger to Bank of Boston Connecticut),
a national banking association, with an office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Bank"); GREENSTEEL, INC., a Delaware corporation,
with its chief executive office located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Borrower") and, to the extent of Section 4 hereof,
POLYVISION CORPORATION, a New York corporation, having its chief executive
office located at ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Guarantor").
W I T N E S S E T H:
WHEREAS, Bank of Boston Connecticut, Borrower and Guarantor entered into a
certain First Amended and Restated Master Credit Agreement dated as of the 23rd
day of July, 1997 (the "Agreement") whereby Bank of Boston Connecticut agreed to
extend certain credit facilities to Borrower and make loans, advances and other
extensions of credit thereunder; and
WHEREAS, Borrower is a wholly-owned subsidiary of Guarantor, and Guarantor
agreed to guarantee the obligations of Borrower to Bank of Boston Connecticut
under the Agreement; and
WHEREAS, BankBoston, N.A. has succeeded to all of the rights and
obligations of Bank of Boston Connecticut under the Agreement as a result of the
merger of Bank of Boston Connecticut with and into BankBoston, N.A.; and
WHEREAS, Bank, Borrower and Guarantor amended the Agreement pursuant to a
certain First Amendment to First Amended and Restated Master Credit Agreement
dated as of January ___, 1998 (the "First Amendment"); and
WHEREAS, Bank, Borrower and Guarantor desire to further amend the
Agreement in certain respects; and
WHEREAS, Section 13.10. of the Agreement provides that no modification or
amendment of the Agreement shall be effective unless the same shall be in
writing and signed by the parties thereto;
NOW, THEREFORE, in consideration of one dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Bank, Borrower and Guarantor agree as follows:
1. Amendment of Agreement. Bank, Borrower and Guarantor hereby agree to
amend the Agreement as follows:
(a) Section 1.24. of the Agreement, entitled "Commitment Amount," is
hereby amended to read as follows:
Section 1.24. "Commitment Amount" means the aggregate principal amount of
FOUR MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($4,250,000.00)
or any lesser amount, including zero (0), resulting from a reduction or
termination of such amount in accordance with Section 2.1.5. or Section
12.1.
(b) Section 1.102 of the Agreement, entitled "Revolving Credit
Note", is hereby amended to read as follows:
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Section 1.102. "Revolving Credit Note" means that certain $4,250.000
Second Substitute Revolving Credit Note dated June 12, 1998, executed by
Borrower in substitution for that certain $3,800,000 Revolving Credit Note
dated July 23, 1997, which theretofore evidenced Revolving Loans.
(c) Section 1.32. of the Agreement, entitled "Disqualified Accounts
Receivable," is hereby amended to read as follows:
Section 1.32. "Disqualified Accounts Receivable" means:
a. An Account Receivable which does not arise out of a bona fide
sale of goods or rendering of services of the kind sold or rendered by
Borrower in the ordinary course of its business; or
b. An Account Receivable which remains unpaid for more than ninety
(90) days after the invoice date or sixty (60) days after the due date
unless such Account Receivable is an Eligible Progress Billing; or
c. An Account Receivable (other than an Account Receivable which is
an Eligible Progress Billing) owing by an Account Debtor if twenty percent
(20%) or more of the dollar value of all Accounts Receivable (exclusive of
Eligible Progress ▇▇▇▇▇▇▇▇) owed by such Account Debtor remain unpaid for
more than sixty (60) days after the due date; or
d. An Account Receivable with respect to which the Account Debtor is
a director, officer, employee or agent of Borrower or is a Subsidiary or
an Affiliate of Borrower; or
e. An Account Receivable with respect to which any covenant,
representation or warranty set forth in this Agreement has been breached;
or
f. An Account Receivable with respect to which the Account Debtor
has commenced a voluntary case in bankruptcy, or made an assignment for
the benefit of creditors, or if a decree or order for relief has been
entered by a court having jurisdiction over the Account Debtor in an
involuntary case in bankruptcy, or if any petition or other application
for relief in bankruptcy has been filed against the Account Debtor, or if
the Account Debtor has failed, ceased business operations, become
insolvent or consented to or suffered a receiver, trustee, liquidator or
custodian to be appointed for it or all or substantially all of its
properties or assets; or
g. An Account Receivable (other than an Account Receivable which is
an Eligible Progress Billing) with respect to which the goods giving rise
thereto have not been shipped by the Account Debtor or the services giving
rise thereto have not been performed by Borrower and accepted by the
Account Debtor or if the Account Receivable does not otherwise represent a
final sale; or
h. An Account Receivable owing by a single Account Debtor located
outside of the United States of America, Canada or Puerto Rico unless such
Account Receivable is a Secured Foreign Receivable or an Insured Foreign
Receivable; or
i. An Account Receivable with respect to which the sale giving rise
thereto is on a ▇▇▇▇-and-hold, sale-and-return, sale on approval,
consignment or other repurchase or return basis; or
j. An Account Receivable with respect to which the Account Debtor is
the United States of America or any department, agency or office thereof
unless Borrower assigns its right to payment of such Account Receivable to
Bank in accordance with the Federal Assignment of
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Claims Act of 1940 or Bank otherwise consents in writing to the inclusion
thereof in the Borrowing Base; or
k. An Account Receivable (other than an Account Receivable which is
an Eligible Progress Billing) to the extent that the Account Debtor has
paid or advanced to Borrower any deposit or other advance in respect of
the payment thereof; or
l. An Account Receivable to the extent that the Account Debtor has
earned or accrued, or is due, any rebate, credit or other allowance by
Borrower; or
m. An Account Receivable to the extent of any amounts owed by
Borrower to such Account Debtor; or
n. An Account Receivable in which Bank does not possess a valid and
perfected first priority security interest; or
o. An Account Receivable owing by an Account Debtor located in a
jurisdiction in which Borrower has not complied with any laws, if the
result of such non-compliance might be to restrict Borrower's ability to
collect such Account Receivable; or
p. An Account Receivable which Bank, in its reasonable credit
judgment, excludes from the calculation of the Borrowing Base under
Section 2.1.4. hereof.
(d) The following is hereby inserted as a new Section 1.37.A. of the
Agreement, entitled "Eligible Progress Billing:"
Section 1.37.A. "Eligible Progress Billing" means an Account Receivable
which represents a scheduled billing under the terms of a valid contract
for goods sold or services rendered by Borrower in respect of interim or
partial performance under such contract and with respect to which the
Account Debtor thereof has not terminated or threatened to terminate such
contract or withheld or threatened to withhold payment thereunder.
(e) Section 1.109. of the Agreement, entitled "Security Value of
Accounts Receivable" is hereby amended to read as follows:
Section 1.109. "Security Value of Accounts Receivable" means, as of any
date as of which the amount thereof shall be determined, an amount equal
to (x) eighty-five percent (85%) (or such lesser percentage as Bank may
determine in its reasonable credit judgment) of the Eligible Accounts
Receivable (other than Accounts Receivable which are Eligible Progress
▇▇▇▇▇▇▇▇) of Borrower as of the date of determination plus (y) the lesser
of (a) twenty-five percent (25%) (or such lesser percentage as Bank may
determine in its reasonable credit judgment) of Eligible Progress ▇▇▇▇▇▇▇▇
as of such date, or (b) FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($500,000.00).
(f) Section 9.1. of the Agreement, entitled "Current Ratio", is
hereby amended to read as follows:
Section 9.1. Current Ratio. The ratio of Borrower's Consolidated Current
Assets to its Consolidated Current liabilities shall not be less than 1.5
to 1.0 as of the end of each Fiscal Quarter commencing with the Fiscal
Quarter ending April 30, 1998.
(g) Section 9.4. of the Agreement, entitled "Consolidated Total
Liabilities to Consolidated Tangible Net Worth Ratio," is hereby amended to read
as follows:
Section 9.4. Consolidated Total Liabilities to Consolidated Tangible Net
Worth Ratio. The ratio of Borrower's Consolidated Total Liabilities to its
Consolidated Tangible Net Worth shall not be
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greater than 1.5 to 1.0 as of the end of each Fiscal Quarter commencing
with the Fiscal Quarter ending April 30, 1998.
(h) Exhibit A to the Agreement is hereby deleted and Exhibit A to
this Second Amendment is hereby substituted in lieu thereof.
2. Effect of Amendment. Bank, Borrower and Guarantor hereby acknowledge
and agree that except as provided in this Second Amendment, the Agreement (as
amended by the First Amendment), the Notes (as such term is defined in the
Agreement and as amended by replacement of the $3,800,000 Revolving Credit Note
by the $4,250,000 Second Substitute Revolving Credit Note) and the Other
Documents (as such term is defined in the Agreement and as amended by Second
Amendment to Open-End Mortgage Deed and Security Agreement of even date
herewith) remain in full force and effect and have not been modified or amended
in any respect, it being the intention of Bank, Borrower and Guarantor that this
Second Amendment and the Agreement (as amended by the First Amendment) be read,
construed and interpreted as one and the same instrument.
3. Confirmation of Agreements. Bank, Borrower and Guarantor hereby
acknowledge and agree that, except as provided in this Second Amendment, the
Agreement (as amended by the First Amendment), the Notes and the Other
Documents, and the grant of the liens, security interests and other encumbrances
thereunder, and their agreements, covenants, obligations, representations and
warranties thereunder and therein, are hereby expressly ratified, confirmed and
restated as of the date hereof.
4. Capitalized Terms. All capitalized terms not otherwise defined in this
Second Amendment shall have the meanings ascribed to such terms in the
Agreement (as amended by
the First Amendment.)
5. Benefit. This Second Amendment shall inure to the benefit of and bind
the parties hereto and their respective successors and assigns.
6. Amendments. This Second Amendment shall be modified only in writing,
executed by all parties hereto.
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IN WITNESS WHEREOF, Bank, Borrower and Guarantor have executed this Second
Amendment as of the date first above written.
BANKBOSTON, N.A. (successor by
merger to Bank of Boston Connecticut)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title:
GREENSTEEL, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
POLYVISION CORPORATION
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer