Exhibit 10.46
AMENDMENT NO. 1
TO
SENIOR SUBORDINATED NOTE AND WARRANT PURCHASE AGREEMENT
This AMENDMENT NO. 1 (this "AMENDMENT NO. 1") is made as of
this 19th day of August, 1999, by and among POLYVISION CORPORATION, a New York
corporation (the "COMPANY"), POSTERLOID CORPORATION, a Delaware corporation
("POSTERLOID"), GREENSTEEL, INC., a Delaware corporation ("GREENSTEEL") (each of
Posterloid and Greensteel, a "GUARANTOR" and collectively, the "GUARANTORS") and
▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company, ▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance
Company and ▇▇▇▇▇▇▇ Mezzanine Partners L.P. (collectively, the "PURCHASERS").
WHEREAS:
(A) The Purchasers are collectively the holders of $25,000,000
in aggregate principal amount of the Company's 12.5% Senior Subordinated Notes
due December 30, 2006 (the "NOTES") issued by the Company under a Senior
Subordinated Note and Warrant Purchase Agreement dated as of December 30, 1998
(the "NOTE Agreement"). Under the Note Agreement, the Guarantors have guaranteed
the obligations of the Company under the Note Agreement and the Notes. Certain
defined terms used in this Amendment No. 1 have the meanings given in Section
1.1 hereof. Capitalized terms not otherwise defined in this Amendment No. 1 have
the meanings given therefor in the Note Agreement.
(B) The Company has requested and the Purchasers have agreed,
upon and subject to the terms and conditions set forth herein, (i) to permit the
Company to increase the amount of term Senior Debt under the Senior Credit
Facility by an aggregate principal amount of $22,000,000, to be used solely to
finance the acquisition by the Company of 100% of the issued and outstanding
capital stock of ▇. ▇▇▇▇▇ Corporation, a California corporation ("▇. ▇▇▇▇▇")
from the "Sellers" as identified in the Stock Purchase Agreement dated May 17,
1999, as amended on July 26, 1999, relating to such proposed transaction, (ii)
to amend the definition of Senior Debt under the Note Agreement to reflect such
additional term Senior Debt, and (iii) to permit the issuance by the Company of
$6,000,000 of its Series D Convertible Preferred Stock ("SERIES D PREFERRED") to
such sellers in connection with the acquisition of ▇. ▇▇▇▇▇.
NOW, THEREFORE, the parties agree:
ARTICLE I.
AMENDMENTS TO NOTE AGREEMENT.
The Note Agreement is hereby amended, effective upon the
satisfaction of the conditions precedent set forth in Article IV hereof, as
follows:
1.1. Section 10.1, "Terms Defined", is amended:
(a) To insert the following new definitions in alphabetical
order:
"▇. ▇▇▇▇▇"' means ▇. ▇▇▇▇▇ Corporation, a California
corporation that became a Wholly-Owned Subsidiary of the Company upon
the consummation of the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition and was
contemporaneously merged into Greensteel.
"AMENDMENT NO. 1" means Amendment No. 1 to this Agreement
dated as of August 19, 1999, among the Company, the Guarantors and the
Purchasers,
"AMENDMENT NO. 1 EFFECTIVE DATE" means the date set forth in
Amendment No. 1 as the "Amendment No. 1 Effective Date".
"FISCAL YEAR" means a fiscal year of the Company and its
Subsidiaries ending on December 31 in any calendar year.
"GREENSTEEL" means Greensteel, Inc., a Delaware corporation
and Wholly-Owned Subsidiary of the Company.
"▇▇▇▇▇▇ ▇▇▇▇▇ ACQUISITION" means the acquisition by the
Company of all of the issued and Outstanding capital stock of ▇. ▇▇▇▇▇
pursuant to the ▇▇▇▇▇▇ ▇▇▇▇▇ Stock Purchase Agreement.
"▇▇▇▇▇▇ ▇▇▇▇▇ ACQUISITION DOCUMENTS" means the ▇▇▇▇▇▇ ▇▇▇▇▇
Stock Purchase Agreement and each of the other agreements, instruments,
and documents executed or delivered by any of the parties thereto or
their respective Subsidiaries pursuant thereto or in connection
herewith, and all schedules and exhibits related to such agreement.
"▇▇▇▇▇▇ ▇▇▇▇▇ MERGER DOCUMENTS" The plan and agreement of
merger between Greensteel and ▇. ▇▇▇▇▇ dated August 19, 1999 and all
agreements, instruments, and documents executed and delivered in
connection therewith, and all exhibits, annexes and schedules annexed
thereto, and all amendments and modifications to any of the foregoing.
"▇▇▇▇▇▇ ▇▇▇▇▇ STOCK PURCHASE AGREEMENT" means the Stock
Purchase Agreement dated as of May 17, 1999, as amended on July 26,
1999, together with all schedules, exhibits and annexes thereto or
delivered as a part thereof.
"▇▇▇▇▇▇ ▇▇▇▇▇ TRANSACTION" means the transactions contemplated
by the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition Documents, the ▇▇▇▇▇▇ ▇▇▇▇▇ Merger
Documents, Amendment No. 1, and the Amendment and Supplement No. 2 to
the Senior Credit Agreement dated August 19, 1999.
(b) To amend the following terms as follows:
(i) The definition of "SENIOR CREDIT AGREEMENT" is amended and
restated as follows:
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"SENIOR CREDIT AGREEMENT - means the Credit
Agreement, dated November 20, 1998, among the Company, the
banks, financial institutions and other institutional lenders
named therein, and Fleet National Bank, as Administrative
Agent, as Initial Issuing Bank and as Swing Line Bank, as
amended by an Amendment No. 1 dated as of December 30, 1998
and an Amendment and Supplement No. 2 dated as of August 19,
1999 and as thereafter amended in compliance with the
provisions of Section 7.16."
(ii) The phrase "Sixty Million Dollars" and the
amount "$60,000,000" are replaced, respectively, with the phrase
"Eighty-Two Million Dollars" and the amount "$82,000,000" each time
they appear in the definition of the "SENIOR DEBT".
(iii) Clause (b) of the definition of "RESTRICTED
INVESTMENT" is amended and restated as follows:
"(b) Investments in one or more Subsidiaries or any
corporation that concurrently with such Investment becomes a
Subsidiary provided at the time of such Investment (x) no
Default or Event of Default shall then exist or could
reasonably be expected to result therefrom and (y) on a pro
forma basis, the Company would be in compliance with its
financial covenants set forth in Sections 4.4 and 4.12"
(c) The definition of "DE-LEVERAGING TRANSACTION" is deleted.
1.2. A new Section 5.8 is added to the Note Agreement to read in its
entirety as follows:
"5.8 ▇▇▇▇▇▇ ▇▇▇▇▇ FINANCIALS. The Company shall
provide the Holders on or before the date which is 75 days
following the consummation of the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition,
audited financial statements for ▇. ▇▇▇▇▇'▇ fiscal years ended
1996, 1997 and 1998 prepared by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, which
shall be in form and substance (excluding in immaterial
respects) satisfactory to the Required Holders."
1.3. Section 4.4, "CAPITAL EXPENDITURES", is amended to replace the
chart set forth therein with the following:
Period Amount
------ ------
Fiscal Year ended December 31, 1999 $3,000,000.00
Fiscal Year ended December 31, 2000 $3,000,000.00
Each Fiscal Year thereafter $3,500,000.00
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1.4. Section 4.5 "INCURRENCE OF DEBT AND ISSUANCE OF PREFERRED STOCK"
is amended as follows:
(a) The reference to the amount "$45.0 million" in clause (i)
of Section 4.5 is replaced with the amount "$67.0 million".
(b) Clause (ix) of Section 4.5 is deleted and clauses (x) and
(xi) of Section 4.5, and any cross references thereto, are renumbered as clauses
(ix) and (x).
(c) Clause (ix) (formerly clause (x)) of Section 4.5 is
amended and restated as follows:
"(ix) Acquired Debt not exceeding $5,000,000 in the
aggregate in connection with the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition."
1.5. Section 4.12 "FINANCIAL COVENANTS", is amended and restated in its
entirety to read as follows:
a. CONSOLIDATED DEBT TO EBITDA RATIO. Maintain as of the end
of each fiscal quarter of the Company and its Subsidiaries a
Consolidated Debt to EBITDA Ratio of not more than the ratio set forth
below:
-------------------------------------------------------
Date of Determination: Maximum Ratio
-------------------------------------------------------
September 30, 1999 5.30 to 1.0
-------------------------------------------------------
December 31, 1999 5.30 to 1 .0
-------------------------------------------------------
March 31, 2000 5.05 to 1.0
-------------------------------------------------------
June 30, 2000 5.05 to 1.0
-------------------------------------------------------
September 30, 2000 4.55 to 1.0
-------------------------------------------------------
December 31, 2000 4.55 to 1.0
-------------------------------------------------------
March 31, 2001 4.55 to 1.0
-------------------------------------------------------
June 30, 2001 4.55 to 1.0
-------------------------------------------------------
September 30, 2001 4.25 to 1.0
-------------------------------------------------------
December 31, 2001 4.25 to 1.0
-------------------------------------------------------
March 31, 2002 4.25 to 1.0
-------------------------------------------------------
June 30, 2002 4.25 to 1.0
-------------------------------------------------------
September 30, 2002 3.75 to 1.0
-------------------------------------------------------
December 31, 2002 3.75 to 1.0
-------------------------------------------------------
March 31, 2003 3.75 to 1.0
-------------------------------------------------------
June 30, 2003 3.75 to 1.0
-------------------------------------------------------
September 30, 2003 and thereafter 3.25 to 1.0
-------------------------------------------------------
PROVIDED, HOWEVER, that for purposes of calculating EBITDA for
the most recently completed four fiscal quarters of the Company and its
Subsidiaries ending on each of the following dates, there shall be added to such
EBITDA the amounts set forth next to such dates
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(representing in each case estimated cost savings resulting from the AIG
Acquisition and the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition):
-------------------------------------------------------
Date Amount
-------------------------------------------------------
September 30, 1999 $2,500,000
-------------------------------------------------------
December 31, 1999 $1,500,000
-------------------------------------------------------
March 31, 2000 $ 750,000
-------------------------------------------------------
June 30, 2000 $ 500,000
-------------------------------------------------------
September 30, 2000 $ 250,000
-------------------------------------------------------
b. INTEREST COVERAGE RATIO. Maintain as of each date set forth
below, a ratio of (i) EBITDA for the most recently completed four
fiscal quarters of the Company and its Subsidiaries to (ii)
Consolidated Interest Expense (to the extent paid in cash during such
period) for such period of not less than the ratio set forth below for
such period:
-------------------------------------------------------
Date of Determination: Minimum Ratio
-------------------------------------------------------
September 30, 1999 1.70 to 1.0
-------------------------------------------------------
-------------------------------------------------------
December 31,1999 1.90 to 1.0
-------------------------------------------------------
-------------------------------------------------------
March 31, 2000 1.90 to 1.0
-------------------------------------------------------
-------------------------------------------------------
June 30, 2000 1.90 to 1.0
-------------------------------------------------------
-------------------------------------------------------
September 30, 2000 2.20 to 1.0
-------------------------------------------------------
-------------------------------------------------------
December 31, 2000 2.20 to 1.0
-------------------------------------------------------
-------------------------------------------------------
March 31, 2001 2.20 to 1.0
-------------------------------------------------------
-------------------------------------------------------
June 30, 2001 2.20 to 1.0
-------------------------------------------------------
-------------------------------------------------------
September 30, 2001 2.20 to 1.0
-------------------------------------------------------
-------------------------------------------------------
December 31, 2001 2.70 to 1.0
-------------------------------------------------------
-------------------------------------------------------
March 31, 2002 2.70 to 1.0
-------------------------------------------------------
-------------------------------------------------------
June 30, 2002 2.70 to 1.0
-------------------------------------------------------
-------------------------------------------------------
September 30, 2002 and thereafter 3.00 to 1.0
-------------------------------------------------------
Notwithstanding the foregoing: (1) if, as at any date (a
"CALCULATION DATE"), fewer than four complete fiscal quarters
have elapsed subsequent to the Amendment No. 1 Effective Date,
Interest Expense shall be calculated only for the portion of
such period commencing on the Amendment No. 1 Effective Date
and ending on the calculation date and shall then be
annualized by multiplying the amount of such Interest Expense
by a fraction, the numerator of which is 365 and the
denominator of which is the number of days during the period
commencing on the date immediately following the Amendment No.
1 Effective Date through and including the calculation date;
and
(2) for purposes of calculating EBITDA for the most
recently completed four fiscal quarters of the Company and its
Subsidiaries ending on each of the following dates, there
shall be added to such EBITDA the amounts set forth next
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to such dates (representing in each case estimated cost
savings resulting from the AIG Acquisition and the ▇▇▇▇▇▇
▇▇▇▇▇ Acquisition):
-------------------------------------------------------
Date Amount
-------------------------------------------------------
September 30, 1999 $2,500,000
-------------------------------------------------------
December 31, 1999 $1,500,000
-------------------------------------------------------
March 31, 2000 $ 750,000
-------------------------------------------------------
June 30, 2000 $ 500,000
-------------------------------------------------------
September 30, 2000 $ 250,000
-------------------------------------------------------
c. FIXED CHARGE COVERAGE RATIO. Maintain as of the end of each
fiscal quarter of the Company and its Subsidiaries a Fixed Charge
Coverage Ratio for the most recently completed four fiscal quarters of
the Company and its Subsidiaries of not less than the following ratios
for the requisite periods set forth below:
-------------------------------------------------------------------------
Four Fiscal Quarters ending on:
-------------------------------------------------------------------------
Each September 30, December 31, March 31 and June 30 .05 to 1.0
after the Amendment No. 1 Effective Date and continuing
through (and including) September 30, 2003
-------------------------------------------------------------------------
Each December 31, March 31, June 30 and September 30 .00 to l.0
commencing on December 31, 2003 and thereafter
-------------------------------------------------------------------------
Notwithstanding the foregoing: (1) (i) if any portion of the
period for which the Fixed Charge Coverage Ratio is being
determined shall occur prior to the Amendment No. 1 Effective
Date, and in any event through the period ending June 30, 2000
the aggregate amount of Interest Expense and taxes paid or
payable by the Company and its Subsidiaries shall be
calculated only for the portion of such period commencing on
the Amendment No. 1 Effective Date and ending on the last day
of such period (the "CALCULATION DATE") and shall then be
annualized by multiplying the amount of such Interest Expense
or taxes by a fraction, the numerator of which is 365 and the
denominator of which is the number of days during the period
commencing on the day immediately following the Amendment No.
1 Effective Date through and including the calculation date
and (ii) if any portion of the period for which the Fixed
Charge Coverage Ratio is being determined shall occur on or
prior to September 30, 2000, the scheduled amortization of
Debt for such period shall be deemed to be $2,453,717.60 or
BEF43,601,707.11 (to be calculated in U.S. Dollars at the
current exchange rate.); and
(2) for purposes of calculating EBITDA for the most
recently completed four fiscal quarters of the Company and its
Subsidiaries ending on each of the following dates, there
shall be added to such EBITDA the amounts set forth next
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to such dates (representing in each case estimated cost
savings resulting from the AIG Acquisition and the ▇▇▇▇▇▇
▇▇▇▇▇ Acquisition:
--------------------------------------------------------
Date Amount
--------------------------------------------------------
September 30, 1999 $2,500,000
--------------------------------------------------------
December 31,1999 $1,500,000
--------------------------------------------------------
March 31, 2000 $ 750,000
--------------------------------------------------------
June 30, 2000 $ 500,000
--------------------------------------------------------
September 30, 2000 $ 250,000
--------------------------------------------------------
1.6. A new Section 4.14 is added as follows:
"4.14 LOYALTY PAYMENTS AND INCENTIVE PLAN PAYMENTS.
The Company will not, and will not permit any Subsidiary, to
(a) make any "Loyalty Payments", as such term is defined in
Section 11 of the amendment to the ▇▇▇▇▇▇ ▇▇▇▇▇ Stock Purchase
Agreement dated July 26, 1999, ▇▇▇▇▇▇ ▇▇▇▇▇ (the "▇▇▇▇▇▇ ▇▇▇▇▇
Amendment") or (b) make any payments pursuant to the existing
▇▇▇▇▇▇ ▇▇▇▇▇ Incentive Plan including, without limitation, any
payments described in Section 5 of the ▇▇▇▇▇▇ ▇▇▇▇▇ Amendment
unless (i) no Default or Event of Default would exist after
making any such Loyalty Payments or Incentive Plan payments
and (ii) the Company is then in compliance with the financial
covenants set forth in Section 4.12 and the reporting
requirements set forth in Section 5.1(a) and (b)."
1.7. A new Section 4.15 is added as follows:
"4.15 CHARTER AMENDMENTS. From and after the
consummation of the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition, the Company will
not amend any provision of its charter relating to any class
of its Preferred Stock without the prior consent of the
Required Holders."
1.8. Section 6.1, "EVENTS OF DEFAULT" is amended to insert immediately
after the reference to "3.7" the following: "or 5.8".
1.9. Section 12.6(d) is amended to add the words "and the ▇▇▇▇▇▇ ▇▇▇▇▇
Transaction" at the end of clause (i) thereof.
ARTICLE II.
CONSENT TO ▇▇▇▇▇▇ ▇▇▇▇▇ ACQUISITION
2.1. Solely for the purposes of Section 4.4 "CAPITAL EXPENDITURES", of
the Note Agreement, the Purchasers hereby consent to the treatment of
the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition as a "permitted acquisition" under such
Section 4.4. Such consent shall not constitute a waiver of any Default
or Event of Default under the Note Agreement arising as a result of, or
in connection with, the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition or a waiver of any
7
other term or condition of the Note Agreement (as amended hereby)
required to be complied with in connection with the ▇▇▇▇▇▇ ▇▇▇▇▇
Acquisition.
ARTICLE III.
REPRESENTATION AND WARRANTIES; ADDITIONAL COVENANTS.
The Company and the Guarantors jointly and severally
represent, warrant to and covenant and agree with the Purchasers that
(with any such representation or warranty applying to Greensteel being
deemed to apply to Greensteel both before and after giving effect to
the merger with ▇. ▇▇▇▇▇):
3.1. No Default or Event of Default exists under the Note Agreement as
of the date hereof or will exist after giving effect to the ▇▇▇▇▇▇
▇▇▇▇▇ Transaction.
3.2. Each of the representations and warranties set forth in Section 8
of the Note Agreement is true in all respects as if made on the date
hereof and will be true as of the Amendment No. 1 Effective Date,
except (a) for changes in the ordinary course of business not
prohibited by the Note Agreement, none of which, either singly or in
the aggregate, have had a Material Adverse Effect on the Company and
its Subsidiaries taken as a whole; and (b) as set forth the amended
Schedules to the Note Agreement attached hereto as Schedule 1 to this
Amendment No. 1 (provided no such disclosure shall constitute a waiver
of any breach of any such representation or warranty existing as of the
Closing Date).
3.3. Each Loan Party (a) to the extent it is a party thereto, has all
requisite corporate power and authority to execute and deliver this
Amendment No. 1, and each other agreement, instrument or document
contemplated to be executed or delivered by any Loan Party pursuant to
this Amendment No. 1 (collectively, together with this Amendment No. 1,
the "AMENDMENT NO. 1 DOCUMENTS") and to consummate the transactions
contemplated hereby and thereby and (b) has taken all action, corporate
or otherwise, necessary to authorize the execution and delivery of the
Amendment No. 1 Documents to which it is a party and the consummation
of the transactions contemplated hereby and thereby.
3.4. Neither the execution and delivery of the Amendment No. 1
Documents by any Loan Party nor the consummation by it of the
transactions contemplated hereby and thereby (a) conflict with, or
result in any breach or violation of any provision of, the charter or
by-laws of any Loan Party, (b) conflict with or result in any breach or
violation of, or constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) under, or result
in the termination of, or accelerate the performance required by, or
result in the creation of a Lien upon any of the properties or assets
of any Loan Party or any of its Subsidiaries (other than Liens
permitted by the Note Agreement) under any of the terms, conditions or
provisions of any loan agreement, indenture, mortgage, deed of trust,
lease or other material contract, instrument or agreement binding on or
affecting any Loan Party, any of its Subsidiaries or any of their
respective properties, or (c) violate any law (including, without
limitation, the Securities Act, the
8
Exchange Act, and the Racketeer Influenced and Corrupt Organizations
Chapter of the Organized Crime Control Act of 1970), rule, regulation
(including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award applicable to such Loan
Party or any of its Subsidiaries.
3.5. No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any
other third party is or will be required for (a) the due execution,
delivery, recordation, filing or performance by any Loan Party of any
Amendment No. 1 Document to which it is a party, or (b) the exercise by
the Purchasers of their rights under the Transaction Documents.
3.6. Each Amendment No. 1 Document has been duly executed and delivered
by each Loan Party that is a party thereto and each of them, and the
Note Agreement as amended hereby constitutes the legal, valid and
binding obligation of each Loan Party thereto, enforceable against each
such Loan Party in accordance with its terms,
3.7. (a) Each party thereto has all necessary power and authority to
execute, deliver and perform each of the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition
Documents and each of the ▇▇▇▇▇▇ ▇▇▇▇▇ Merger Documents.
(b) Each ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition Document and ▇▇▇▇▇▇ ▇▇▇▇▇
Merger Document has been duly executed and delivered by each party
thereto, is in full force and effect and enforceable against the
parties thereto in accordance with its terms. The representations and
warranties of each party thereto contained in each ▇▇▇▇▇▇ ▇▇▇▇▇
Acquisition Document and ▇▇▇▇▇▇ ▇▇▇▇▇ Merger Document are true and
correct in all material respects on the date hereof and will be true
and correct in all material respects on the closing of the ▇▇▇▇▇▇ ▇▇▇▇▇
Acquisition, as if made on such date, and each Purchaser shall be
entitled to rely upon such representations and warranties with the same
force and effect as if they were incorporated in this Amendment No. 1
directly.
(c) The execution, delivery and performance of each of the
▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition Documents and ▇▇▇▇▇▇ ▇▇▇▇▇ Merger Documents by
the parties thereto does not (i) violate any law, rule or regulation
(including, without limitation, the ▇▇▇▇▇▇▇▇ Act, Sections 13 and 14 of
the Exchange Act, and the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, and Regulations T, U, and X of the Board of Governors of the
Federal Reserve System and the rules and regulations promulgated
thereunder) or (ii) conflict with or result in a breach of any order,
writ, injunction, ordinance, resolution, decree, or other similar
document or instrument of any governmental entity, or any certificate
of incorporation or by-laws of or applicable to any such party or
create (with or without the giving of notice or lapse of time, or both)
a default under or breach of or conflict with any agreement,
instrument, ordinance, resolution, decree, determination, award, bond,
note, indenture, mortgage, deed of trust, lease, writ, order or
judgment to which any Loan Party is a party or is bound, or any other
agreement or instrument by which any of the properties or assets owned
by any Loan
9
Party or used in the conduct of its business is affected (other than
any agreement or other instrument of any kind the assets, revenues or
liabilities in respect of which do not exceed $100,000 individually or
$250,000 in the aggregate and the breach thereof or conflict therewith
does not have and could not reasonably be expected to have a Material
Adverse Effect) or result in the imposition of any Lien of any nature
whatsoever upon any of the properties or assets owned by or used in
connection with the business of any Loan Party or any of its
Subsidiaries or ▇. ▇▇▇▇▇, except for the Liens permitted under the Note
Agreement.
(d) True, complete and correct executed copies of the ▇▇▇▇▇▇
▇▇▇▇▇ Acquisition Documents have been delivered to the Purchasers. The
▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition shall be consummated pursuant to the term and
conditions of the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition Documents in the form
previously delivered to the Purchasers and in compliance with all
applicable laws. Upon such consummation, ownership of all of the
capital stock of ▇. ▇▇▇▇▇ shall be vested in the Company free and clear
of all Liens, other than those permitted by the Note Agreement. No Loan
Party or any of their Subsidiaries has waived compliance by any of the
other parties to the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition Documents with any term,
covenant or condition thereof, and no party thereto has breached any
covenant set forth therein or failed to perform any of its obligations
thereunder which breach or failure to perform is of a material term or
condition thereof or could reasonably be expected to have a Material
Adverse Effect.
(e) The ▇▇▇▇▇▇ ▇▇▇▇▇ Merger Documents heretofore delivered by
the Company to the Purchasers are true, complete and correct executed
copies thereof. The merger of ▇. ▇▇▇▇▇ with and into Greensteel shall
be consummated solely pursuant to the terms of the ▇▇▇▇▇▇ ▇▇▇▇▇ Merger
Documents. None of the parties to the ▇▇▇▇▇▇ ▇▇▇▇▇ Merger Documents
have waived compliance by any of the other parties thereto with any
term, covenant or condition thereof, and no party thereto has breached
any covenant set forth therein or failed to perform any of its
obligations thereunder.
(f) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is or will be required for the due execution,
delivery, recordation, filing or performance by any party thereto of
any ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition Document or ▇▇▇▇▇▇ ▇▇▇▇▇ Merger Document
other than the filing of the Certificate of Merger with the Secretaries
of State of the States of Delaware and California.
(g) True, complete, and correct executed copies of the
Amendment and Supplement No, 2 to the Senior Credit Agreement dated as
of August 19, 1999 and all other documents, instruments or agreement
executed in connection therewith (the "SENIOR CREDIT DOCUMENTS") have
been delivered to the Purchasers. The transactions contemplated by the
Senior Credit Documents shall be consummated solely pursuant to the
terms and conditions of such Senior Credit Documents and the proceeds
thereof shall be used solely to finance the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition.
None of the parties to the Senior Credit Documents have waived
compliance by any of the other parties thereto
10
with any term, covenant or condition thereof, and no party thereto has
breached any covenant set forth therein or failed to perform any of its
obligations thereunder.
(h) The merger of ▇. ▇▇▇▇▇ with and into Greensteel shall be
consummated simultaneously with the closing of the ▇▇▇▇▇▇ ▇▇▇▇▇
Acquisition. Upon such consummation all of the assets and properties of
▇. ▇▇▇▇▇ shall be vested in Greensteel, subject to the liabilities of
▇. ▇▇▇▇▇.
(i) No Loan Party nor any Loan Party's Subsidiaries nor ▇.
▇▇▇▇▇ is an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," as
such terms are defined in the Investment Company Act of 1940, as
amended. No Loan Party nor ▇. ▇▇▇▇▇ is subject to regulation under any
federal, state or foreign statute or regulation which limits its
ability to incur Debt.
3.8. The ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition, on a pro forma basis (calculated as
if the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition had occurred at the beginning of the
applicable four-quarter reference period) results in (i) the ratio of
Consolidated Debt to EBITDA as at June 30, 1999 being lower and (ii)
the Fixed Charge Coverage Ratio as at June 30, 1999 being higher, than
if the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition is not consummated. Acquired Debt
incurred in connection with the consummation of the ▇▇▇▇▇▇ ▇▇▇▇▇
Acquisition shall not exceed $5,000,000.
3.9. The consolidated pro forma balance sheet of the Company and its
Subsidiaries as at June 30, 1999 and the related consolidated pro forma
statement of income and cash flows of the Company and its Subsidiaries
for the period then ended, certified by the chief executive officer or
chief financial officer of the Company, copies of which have been
finished to each Purchaser, fairly present the consolidated pro forma
financial condition of the Company and its Subsidiaries as at such date
and the consolidated pro forma results of operations of the Company and
its Subsidiaries for the period ended on such date, in each case after
giving effect to the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition, all in accordance with
GAAP (to the extent that pro forma information can comply with GAAP).
3.10. The projections to be delivered pursuant to Section 4.10 shall be
prepared on the basis of the assumptions accompanying them and reflect
as of the date thereof the Company's good faith projections, after
reasonable analysis, of the matters set forth therein, based on such
assumptions (it being understood that projected financial information
is not to be viewed as facts and that the actual results during the
period or periods covered thereby may differ from the projected results
and that the differences may be material).
3.11. None of the information, exhibits or reports furnished by any
Loan Party to any Purchaser in connection with this Amendment No. 1
contained any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements made therein not
misleading.
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ARTICLE IV.
CONDITIONS.
The effectiveness of this Amendment No. 1 shall be subject to
the fulfillment of each of the conditions set forth in this Article IV. The date
on which all such conditions shall have been fulfilled and this Amendment No. 1
shall have become effective, is the "Amendment No. 1 Effective Date":
4.1. Each of the parties hereto shall have executed and delivered this
Amendment No. 1.
4.2. The representations and warranties contained herein and each other
agreement, instrument, certificate or other writing delivered to the
Purchasers pursuant hereto shall be correct on and as of the date
hereof and the Amendment No. 1 Effective Date after giving effect to
this Amendment No. 1 as though made on and as of such dates except to
the extent modified hereby. No Default or Event of Default shall have
occurred and be continuing on the Amendment No. 1 Effective Date.
4.3. The Company shall have paid all reasonable legal (U.S. and
foreign) and other out-of-pocket expenses incurred by the Purchasers in
connection with the transactions contemplated by or referred to in this
Amendment No. 1, including, without limitation, out-of-pocket due
diligence, transportation, computer, duplication, appraisal, audit and
consultant fees.
4.4. The Loan Parties shall have otherwise complied in all respects
with the terms hereof and of any other agreement, document, instrument
or other writing to be delivered by any Loan Party in connection
herewith.
4.5. The Purchasers shall have received the following, each in form and
substance satisfactory to them:
(a) copies of the resolutions of the Board of Directors of
each Loan Party, certified by a Senior Officer thereof, authorizing, to
the extent a party thereto, the execution, delivery and performance by
such Loan Party of this Amendment No. 1 and the other Amendment No. 1
Documents;
(b) long-form good standing certificates of recent date for
each Loan Party and ▇. ▇▇▇▇▇ (prior to its merger into Greensteel) from
the Secretary of State of its state of incorporation and the state in
which its chief executive office is located;
(c) a certificate signed on behalf of each Loan Party by a
Senior Officer and the Secretary or an Assistant Secretary of each Loan
Party, certifying the names and true signatures of the officers of such
Loan Party authorized to sign the Amendment No. 1 Documents, together
with evidence of the incumbency of such authorized officers; and
certifying that the other conditions set forth in this Article IV have
been satisfied.
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4.6. The ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition shall have been consummated pursuant
to the terms and conditions of the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition Documents
for an aggregate cash amount not exceeding $24 million (before fees and
expenses) and not more than $6 million in Series D Preferred.
4.7. The merger of ▇. ▇▇▇▇▇ with and into Greensteel shall have been
consummated contemporaneously with the consummation of the ▇▇▇▇▇▇ ▇▇▇▇▇
Acquisition pursuant to the terms and conditions of the ▇▇▇▇▇▇ ▇▇▇▇▇
Merger Documents, and the Purchasers shall have received Certificates
of Merger certified by the Secretaries of State of the States of
California and Delaware evidencing such merger.
4.8. The ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition Documents, the ▇▇▇▇▇▇ ▇▇▇▇▇ Merger
Documents and the Senior Credit Documents shall be satisfactory in form
and substance to the Purchasers in their sole discretion.
4.9. The terms of the Company's Series D Preferred shall be
satisfactory to the Purchasers in their sole discretion and shall
prohibit payment of dividends on or redemption of such Series D
Preferred (i) until 180 days after none of the Notes are outstanding;
and (ii) until full and complete performance of all of the Company's or
any other Loan Party's other obligations arising under the Notes and
the Note Agreement.
4.10. The Purchasers shall have received the following all of which
shall be satisfactory in form and substance to the Purchasers,
certified by the chief financial officer of the Company:
(a) pro forma consolidated balance sheet and income statement
(for the preceding twelve months) of the Company and its Subsidiaries
and ▇. ▇▇▇▇▇ as of June 30, 1999 as if giving effect to consummation of
the ▇▇▇▇▇▇ ▇▇▇▇▇ Transaction as of such date and reflecting that no
indebtedness owed by ▇. ▇▇▇▇▇ prior to the ▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition
remains outstanding except for capital leases and purchase money
security interests aggregating less than $5,000,000;
(b) projections for the Company and its Subsidiaries
commencing with the six-month period ending 12/31/99 through Fiscal
Year ended 12/31/06;
(c) A computation in detail of consolidated pro forma trailing
twelve-month EBITDA for the Company and its Subsidiaries and ▇. ▇▇▇▇▇
for the period ended June 30, 1999 which shall not be less than $17.5
million (exclusive of any add-backs for cost savings (unless actually
realized during such period) associated with the ▇▇▇▇▇▇ ▇▇▇▇▇
Acquisition, the AIG Acquisition, and any non-recurring expenses); and
(d) A computation of the Consolidated Debt to EBITDA Ratio,
including in Consolidated Debt the Debt evidenced by the Notes,
demonstrating that such ratio is not greater than 4.8:1 on the
Amendment No. 1 Effective Date and a computation of the Consolidated
Debt to EBITDA Ratio, excluding the Debt evidenced by the Notes,
demonstrating that such ratio is not greater than 4.5:1 on the
Amendment No. 1 Effective
13
Date (and in each case such ratio shall be calculated in the same
manner as is set forth in Section 4.12(a) of the Note Agreement).
4.11. Alpine shall have contributed not less than Two Million
($2,000,000) Dollars in cash to the company to fund a portion of the
▇▇▇▇▇▇ ▇▇▇▇▇ Acquisition on terms and conditions satisfactory to the
Purchasers in their sole discretion.
4.12. All governmental and third party consents and approvals necessary
in connection with the ▇▇▇▇▇▇ ▇▇▇▇▇ Transaction shall have been
obtained, including, without limitation, the consent of holders of the
Senior Debt (without the imposition of any conditions that are not
acceptable to the Required Holders) and shall remain in effect; all
applicable waiting periods shall have expired without any adverse
action being taken by any competent authority; and no law or regulation
shall be applicable in the judgment of the Required Holders that
restrains, prevents or imposes materially adverse conditions upon any
of the ▇▇▇▇▇▇ ▇▇▇▇▇ Transaction or the Note Agreement.
4.13. There shall exist no action, suit, investigation, litigation or
proceeding pending or threatened in any court or before any arbitrator
or governmental or regulatory agency or authority that purports to
adversely affect any aspect of the ▇▇▇▇▇▇ ▇▇▇▇▇ Transaction or the Note
Agreement.
4.14. The Purchasers shall have received all financial, business and
other information regarding ▇. ▇▇▇▇▇ and its properties and assets as
they shall have reasonably requested, and all of the foregoing shall be
acceptable to the Purchasers in their sole discretion.
4.15. The Company shall have delivered a certificate, in form and
substance reasonably satisfactory to the Purchasers, attesting to the
Solvency of the Company and its Subsidiaries, individually and on a
consolidated basis immediately before and immediately after giving
effect to the ▇▇▇▇▇▇ ▇▇▇▇▇ Transaction, from the chief financial
officer of the Company.
4.16. Revolving credit advances then outstanding under the Senior
Credit Facility less the amount of cash of the Company (on a
Consolidated basis but excluding ▇. ▇▇▇▇▇) on the Amendment No. 1
Effective Date shall not exceed $4,000,000.
4.17. The Purchaser shall have received a favorable written opinion of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, counsel to the Company as to such matters as the
Purchasers may reasonably require relating to the ▇▇▇▇▇▇ ▇▇▇▇▇
Transactions (including the absence of any required governmental
consents in connection therewith) and the Amendment No. 1 Documents in
form and substance as the Purchasers may reasonably request.
4.18. True, correct and complete copies of any amendments to the KBC
Loan Agreements shall have been delivered to the Purchaser and shall be
in form and substance satisfactory to the Purchasers in their sole
discretion.
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4.19. All proceedings in connection with the ▇▇▇▇▇▇ ▇▇▇▇▇ Transaction,
and all documents incidental thereto shall be reasonably satisfactory
to the Purchasers, and each Purchaser shall have received all such
information and such counterpart originals or certified copies of
documents as may have been reasonably requested.
ARTICLE V.
CONFIRMATION OF GUARANTY.
5.1. Each Guarantor hereby (i) acknowledges and consents to this
Amendment No. 1 (whether or not its consent is required); (ii) confirms
and agrees that its guaranty as set forth in Section 11 of the Note
Agreement is, and shall continue to be, in full force and effect and is
hereby ratified and confirmed in all respects, and all references in
the Note Agreement shall mean the Note Agreement as amended by this
Amendment No. 1; and (iii) confirm and agree that the obligations
guaranteed by such Guarantor in such Section 11 include the obligations
of the Company to the Holders under the Note Agreement and the Notes as
amended by this Amendment No. 1.
ARTICLE VI.
CONTINUED EFFECTIVENESS OF NOTE AGREEMENT.
Except as specifically amended herein, the Note Agreement and the other
Transaction Documents are, and shall remain, in full force and effect, and are
hereby ratified and confirmed in all respects except that on and after the
Amendment No. 1 Effective Date all references to the Note Agreement shall mean
the Note Agreement as amended and supplemented by this Amendment No. 1.
ARTICLE VII.
MISCELLANEOUS.
7.1. This Amendment No. 1 shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, without
regard to any conflicts of law rules which would require the
application of the laws of any other jurisdiction.
7.2. No modification or waiver of or with respect to any provisions of
this Amendment No. 1 or any other agreements, instruments and documents
delivered pursuant hereto nor consent by the Purchasers to any
departure by the Company or either Guarantor from any of the terms or
conditions thereof, shall in any event be effective unless it shall be
in writing and executed in accordance with the provisions of the Note
Agreement, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No consent
to or demand on the Company or either Guarantor in any case shall, of
itself, entitle them to any other or further notice or demand in
similar or other circumstances. This Amendment No. 1, together with the
Note Agreement, as so amended, and the other Transaction Documents
embodies the entire agreement and understanding among the Loan Parties
and the Purchasers, and supersedes all prior agreements and
understandings, relating to the subject matter hereof.
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7.3. The provisions of this Amendment No. 1 are severable, and if any
clause or provision shall be held invalid or unenforceable in whole or
in part in any jurisdiction, then such invalidity or unenforceability
shall affect only such clause or provision, or part thereof, in such
jurisdiction and shall not in any manner affect such clause or
provision in any other jurisdiction, or any other clause or provision
in this Amendment No. 1 in any jurisdiction.
7.4. This Amendment No. 1 may be signed in any number of counterparts
with the same effect as if the signatures thereto and hereto were upon
the same instrument.
7.5. This Amendment No. 1 shall be binding upon and inure to the
benefit of the Loan Parties and their respective successors and to the
benefit of the Purchasers, any Holder and their respective successors
and assigns. The rights and obligations of the Loan Parties under this
Amendment No. 1 shall not be assigned or delegated without the prior
written consent of the Required Holders, and any purported assignment
or delegation without such consent shall be void.
SIGNATURES FOLLOW ON NEXT PAGE
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be
duly executed on the date first above written.
LOAN PARTIES: POLYVISION CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
POSTERLOID CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
GREENSTEEL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
17
PURCHASERS: ▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Second Vice President
▇▇▇▇ ▇▇▇▇▇▇▇ VARIABLE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President - Investments
▇▇▇▇▇▇▇ MEZZANINE PARTNERS L.P.
BY: ▇▇▇▇▇▇▇ MEZZANINE INVESTMENTS
LLC, its General Partner
BY: ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance
Company, as Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Officer
Consented to:
FLEET NATIONAL BANK
as Administrative Agent under the Senior Credit Agreement
referenced herein on behalf of the Lenders
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
18