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Exhibit 4.5
AMENDMENT NO. 1
TO
CREDIT AND SECURITY AGREEMENT
This AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT (this
"Amendment"), made as of this 17th day of March, 1999, among PARAGON CORPORATE
HOLDINGS INC. ("Borrower"), certain financial institutions listed on the
signature pages hereto (the "Banks"), KEY CORPORATE CAPITAL INC., as Letter of
Credit Bank (the "Letter of Credit Bank"), and KEY CORPORATE CAPITAL INC. as
Agent for the Banks and the Letter of Credit Bank (the "Agent"),
W I T N E S S E T H :
WHEREAS, the Borrower, the Banks, the Letter of Credit Bank and the
Agent have entered into that certain Credit and Security Agreement, dated as of
April 1, 1998 (the "Credit Agreement"), pursuant to which the Agent, the Banks
and the Letter of Credit Bank have made certain loans and other financial
accommodations available to Borrower;
WHEREAS, the Borrower has failed to comply with certain covenants of
the Credit Agreement and desires that the Agent and the Banks waive such
noncompliance; and
WHEREAS, the Borrower, the Banks, the Letter of Credit Bank and the
Agent desire to amend the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Borrower, the Banks, the Letter
of Credit Bank and the Agent do hereby agree as follows:
1. DEFINED TERMS.
Each defined term used herein and not otherwise defined herein shall have the
meaning ascribed to such term in the Credit Agreement.
2. AMENDMENT TO THE CREDIT AGREEMENT.
2.1 AMENDMENT TO SECTION 8.4(b). Section 8.4(b) is amended to read as
follows:
(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. The Borrower
shall not at any time permit:
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(i) the Consolidated Fixed Charge Coverage Ratio of the
Borrower as at the end of any of the following Cumulative Four Fiscal
Quarter Periods of the Borrower to be less than the ratio set forth
opposite such Cumulative Four Fiscal Quarter Period:
CUMULATIVE FOUR FISCAL QUARTER CONSOLIDATED FIXED CHARGE COVERAGE
PERIOD ENDING RATIO
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March 31, 1999 1.00 to 1.0
June 30, 1999 1.00 to 1.0
September 30, 1999 1.00 to 1.0
December 31, 1999 1.10 to 1.0
March 31, 2000 1.10 to 1.0
June 30, 2000 1.10 to 1.0
September 30, 2000 1.10 to 1.0
December 31, 2000, and
each Cumulative Four
Fiscal Quarter
Period thereafter 1.20 to 1.0
(ii) the Consolidated Fixed Charge Coverage Ratio of
▇▇▇▇▇▇ as at the end of any Cumulative Four Fiscal Quarter
Period of the Borrower to be less than 1.20 to 1.0, or
(iii) the Consolidated Fixed Charge Coverage Ratio of
A.B. Dick as at the end of any Cumulative Four Fiscal Quarter
Period of the Borrower to be less than 1.20 to 1.0.
2.2 AMENDMENT TO ANNEX II. Annex II to the Credit Agreement is amended
by deleting the definitions of "Consolidated EBITDA" and "Consolidated Fixed
Charge Coverage Ratio" and replacing them with the following new definitions:
"CONSOLIDATED EBITDA" means, with respect to any Person and
for any cumulative fiscal period, the Consolidated Net Income of such
Person and its Subsidiaries for such period plus Consolidated Interest
Expense of such Person and its Subsidiaries for such period plus
federal, state and local taxes of such Person and its Subsidiaries for
such period plus depreciation of such Person and its Subsidiaries for
such period plus amortization of such Person and its Subsidiaries for
such period, plus nonrecurring expenses of A.B. Dick in 1998 associated
with the relocation of A.B. Dick's corporate headquarters and the early
extinguishment of certain Indebtedness of A.B. Dick for such period,
plus nonrecurring expenses of the Borrower in 1998 associated with the
early extinguishment of certain Indebtedness of the Borrower, plus
nonrecurring expenses associated with the termination of a compensation
agreement in
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connection with the acquisition by the Borrower of ▇▇▇▇▇▇, each as
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, for any
Cumulative Four Quarter Fiscal Period, the ratio of: (a) the sum of (i)
the Consolidated EBITDA less (ii) the Consolidated Capital Expenditures
(but not including Capital Expenditures of A.B. Dick in 1998 relating
to the relocation of the corporate headquarters of A.B. Dick) to (b)
the sum of (i) Consolidated Interest Expense plus , (ii) the scheduled
principal payments in respect of Consolidated Senior Debt and
Consolidated Subordinated Debt as at the Fiscal Quarter ending
immediately prior to the Cumulative Four Quarter Fiscal Period in
question, plus (iv) cash Distributions made by such Person to its
shareholders.
3. WAIVER OF NON-COMPLIANCE.
3.1 WAIVER. Subject to and conditioned on the effectiveness of this
Amendment, the Agent and each Bank hereby waives, as of the date of this
Amendment:
(a) solely to the extent disclosed to the Agent and the Banks
in writing prior to the date of this Amendment, Borrower's failure to
comply with the requirement set forth in Section 8.4(a)(ii) of the
Credit Agreement that Borrower not permit the Consolidated EBITDA of
A.B. Dick to be less than $10,250,000 for the Cumulative Four Fiscal
Quarter Period ending on December 31, 1998;
(b) solely to the extent disclosed to the Agent and the Banks
in writing prior to the date of this Amendment, Borrower's failure to
comply with the requirement set forth in Section 8.4(b)(i) of the
Credit Agreement that Borrower not permit the Consolidated Fixed Charge
Coverage Ratio of the Borrower to be less than 1.20 to 1.0 for the
Cumulative Four Fiscal Quarter Period ending on December 31, 1998; and
(c) solely with respect to defaults waived pursuant to
Sections 3.1(a) and 3.1(b) of this Amendment, any Event of Default
under Section 9.4 of the Financing Agreement.
3.2 LIMITATION ON WAIVERS. The waivers granted herein are limited
strictly to their terms, apply only to the specific waivers described herein, do
not extend to or affect any of the Borrower's other obligations contained in the
Credit Agreement or any other related documents and do not impair any rights
consequent thereon. Except as expressly set forth herein, nothing contained
herein will be deemed to be a waiver of, or will in any way impair or prejudice,
any rights of the Agent, the Banks or the Letter of Credit Bank under the Credit
Agreement. Neither the Agent nor any Bank has any obligation to issue any other
or further waiver with respect to the subject matter hereof or of any other
matter, and, except as expressly provided herein, the Credit Agreement and all
documents, instruments and agreements related thereto are ratified and confirmed
in all respects and will continue in full force and effect.
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4. REPRESENTATIONS AND WARRANTIES.
Borrower hereby represents and warrants as follows:
4.1 THE AMENDMENT. This Amendment has been duly and validly executed by
an authorized executive officer of Borrower and constitutes the legal, valid and
binding obligation of Borrower enforceable against Borrower in accordance with
its terms.
4.2 CLAIMS AND DEFENSES. As of the date of this Amendment, neither the
Borrower nor any of the Subsidiary Guarantors has any defenses, claims,
counterclaims or setoffs with respect to the Credit Agreement, the Loan
Documents or any Obligations thereunder or with respect to any actions of the
Agent, the Banks, the Letter of Credit Bank or any of their respective officers,
directors, shareholders, employees, agents or attorneys, and the Borrower
irrevocably and absolutely waives any such defenses, claims, counterclaims and
setoffs and releases the Agent, the Banks and the Letter of Credit Bank, and
each of their respective officers, directors, shareholders, employees, agents
and attorneys, from the same.
4.3 CREDIT AGREEMENT. The Credit Agreement, as previously amended and
as further amended by this Amendment, remains in full force and effect and
remains the valid and binding obligation of Borrower enforceable against
Borrower in accordance with its terms.
4.4 NONWAIVER. Except as set forth in Section 3 of this Amendment, the
execution, delivery, performance and effectiveness of this Amendment shall not
operate nor be deemed to be nor construed as a waiver (i) of any right, power or
remedy of the Agent, any Bank or the Letter of Credit Bank under the Credit
Agreement, nor (ii) of any term, provision, representation, warranty or covenant
contained in the Credit Agreement or any other documentation executed in
connection therewith. Further, except as set forth in Section 3 of this
Agreement, none of the provisions of this Amendment shall constitute, be deemed
to be or construed as, a waiver of any Event of Default under the Credit
Agreement as previously amended and as further amended by this Amendment.
4.5 REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof", "herein", or words of like import shall mean
and be a reference to the Credit Agreement, as previously amended and as further
amended hereby, and each reference to the Credit Agreement in any other
document, instrument or agreement executed and/or delivered in connection with
the Credit Agreement shall mean and be a reference to the Credit Agreement, as
previously amended and as further amended hereby.
5. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT NO. 1.
In addition to all of the other conditions and agreements set forth herein, the
effectiveness of this Amendment is subject to the fulfillment of each of the
following conditions precedent:
5.1 AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT. The Agent and
each Bank shall have received an original counterpart of this Amendment No. 1 to
Credit and Security Agreement, executed and delivered by a duly authorized
officer of Borrower, the Agent, and each of the Banks.
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6. MISCELLANEOUS.
6.1 GOVERNING LAW. This Amendment has been delivered and accepted at
and shall be deemed to have been made at Cleveland, Ohio. This Amendment shall
be interpreted and the rights and liabilities of the parties hereto determined
in accordance with the laws of the State of Ohio, without regard to principles
of conflict of law, and all other laws of mandatory application.
6.2 SEVERABILITY. Each provision of this Amendment shall be interpreted
in such manner as to be valid under applicable law, but if any provision hereof
shall be invalid under applicable law, such provision shall be ineffective to
the extent of such invalidity, without invalidating the remainder of such
provision or the remaining provisions hereof.
6.3 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which, when taken together, shall constitute but one and
the same agreement.
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IN WITNESS WHEREOF, Borrower has caused this Amendment No. 1 to Credit
and Security Agreement to be duly executed and delivered by its duly authorized
officer as of the date first above written.
KEY CORPORATE CAPITAL INC., as Agent PARAGON CORPORATE HOLDINGS INC.
____________________________________ ___________________________________
By:_________________________________ By:________________________________
Its:________________________________ Its:_______________________________
KEY CORPORATE CAPITAL INC., as a Bank KEY CORPORATE CAPITAL INC., as a
Letter of Credit Bank
____________________________________ ___________________________________
By:_________________________________ By: _______________________________
Its:________________________________ Its:_______________________________
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