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Exhibit 4.4(e)
AMENDMENT NO. 3
TO
CREDIT AND SECURITY AGREEMENT
This AMENDMENT NO. 3 TO CREDIT AND SECURITY AGREEMENT (this
"Amendment"), made as of this 10th day of May, 2000, 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").
WITNESSETH:
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, as amended by that certain Amendment No. 1 to Credit and Security
Agreement, dated as of March 17, 1999, as further amended by that certain
Amendment No. 2 to Credit and Security Agreement, dated as of March 31, 2000,
(as amended, 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; 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 INTRODUCTORY PARAGRAPH. The introductory paragraph on
Page 1 of the Credit Agreement is hereby amended by deleting the reference to
"U.S. $37,000,000" and replacing it with "U.S. $32,000,000".
2.2 AMENDMENT TO SECTION 8.3(a). Section 8.3(a) is amended to read as
follows:
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(a) EQUITY TRANSACTIONS; PERMITTED ACQUISITIONS. The Borrower shall
not, and shall not permit any of its Subsidiary Guarantors to, without the prior
written consent of the Required Banks, which shall not be unreasonably withheld,
(i) merge or consolidate with or into, or enter into any agreement to merge or
consolidate with or into, any other Person or otherwise be a party to any merger
or consolidation; (ii) purchase all or substantially all of the assets and
business of another Person; or (iii) except as permitted under Section 8.3(d),
lease as lessor, sell, sell-leaseback, license or otherwise transfer (whether in
one transaction or a series of transactions, but excluding a Permitted Sale) any
of its assets (whether now owned or hereafter acquired); PROVIDED, HOWEVER, that
(A) the Borrower and the Subsidiary Guarantors may sell or otherwise dispose of
(I) Inventory in the ordinary course of business, (II) to the extent permitted
under Section 6.10, Inventory that is slow-moving or obsolete, and (III)
Equipment that is no longer used or useful in the Borrower's or such Subsidiary
Guarantor's business or that is obsolete, PROVIDED, that the Net Proceeds of any
such sales of Inventory or Equipment shall be applied first to the Obligations
in accordance with Section 2.13(c), and (B) subject to the requirements
contained in the definition of Permitted Acquisition, the Borrower and the
Subsidiary Guarantors may from time to time after the Closing Date effect
Permitted Acquisitions.
2.3 AMENDMENT TO SECTION 8.3(c). Section 8.3(c) is amended to read as
follows:
(c) INDEBTEDNESS. The Borrower shall not, and shall not permit any of
its Subsidiary Guarantors to, create, assume, incur, suffer to exist or have
outstanding at any time any Indebtedness or other debt of any kind, EXCEPT that
this Section 8.3(c) shall not prohibit: (i) the Obligations and the Guaranty by
the Subsidiary Guarantors thereof, (ii) ordinary course trade payables, (iii)
the Indebtedness on the Supplemental Schedule (which Indebtedness shall not be
renewed or increased), (iv) Indebtedness secured by a Lien permitted by Section
8.3(d) of this Agreement, (v) any Indebtedness which results from a Credit
Extension permitted in Section 8.3(b) of this Agreement, (vi) the Senior Notes
and the Guaranty by the Subsidiary Guarantors thereof, (vii) the incurrence by
the Company or any of its Subsidiary Guarantors of Hedging Obligations, (viii)
the incurrence by the Company or any of its U.S. domestic Subsidiaries of
additional Indebtedness in an aggregate principal amount (or accreted value, as
applicable) at any time outstanding not to exceed $10,000,000, or (ix) the
guarantee by the Borrower or any Subsidiary Guarantor of Indebtedness of the
Borrower or a Subsidiary of the Company that was permitted to be incurred by
another provision of this Agreement. Notwithstanding the foregoing, the Borrower
may incur Indebtedness if the Borrower's Consolidated Fixed Charge Coverage
Ratio for the Borrower's most recently ended four full Fiscal Quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred would have been at least 2.0 to
1.0, determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom), as if the additional Indebtedness had been incurred.
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2.4 AMENDMENT TO SECTION 8.3(e). Section 8.3(e) is amended to read as
follows:
(e) INVESTMENTS. Other than as disclosed in the Supplemental
Schedule, the Borrower shall not, and shall not permit any of the Subsidiary
Guarantors to, (i) other than in connection with a Permitted Acquisition, create
any Subsidiary after the Closing Date, (ii) make or hold any investment in any
common stocks, bonds or securities of any kind or any further capital
contribution to any Person other than (x) the common stock of its Subsidiaries
existing on the Closing Date, together with the common stock of Subsidiaries
created in connection with a Permitted Acquisition and as are otherwise
permitted under the Senior Note Indenture (y) notes or securities issued by a
customer of the Borrower or its Subsidiary Guarantors in connection with a
proceeding in respect of the Financial Impairment of such customer and (z) Cash
Equivalents, (iii) be or become a party to any joint venture or other
partnership, (iv) make or keep outstanding any advance or loan (except as
permitted under Sections 8.3(b) or 8.3(c)), or (v) be or become a Guarantor of
any kind (other than a Subsidiary Guarantor of the Obligations or a Guarantor of
the Senior Notes).
2.5 AMENDMENT TO SECTION 8.4(a). Section 8.4(a) is amended to read as
follows:
(a) MINIMUM CONSOLIDATED EBITDA. The Borrower shall not permit
the Consolidated EBITDA of A. B. Dick as of the end of any of the following
cumulative fiscal periods to be less than the amount set forth opposite such
cumulative fiscal period:
CUMULATIVE FISCAL CONSOLIDATED EBITDA
PERIOD
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January 1, 2000 -- June 3O, 2000 $2,050,000
January 1, 2000 -- September 30, 2000 $5,700,000
January 1, 2000 -- December 31, 2000
and each Cumulative Four Quarter Fiscal
Period thereafter $11,000,000
2.6 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:
(i) the Consolidated Fixed Charge Coverage Ratio of
the Borrower as at the end of any of the following cumulative
fiscal periods of the Borrower to be less than the ratio set
forth opposite such cumulative fiscal period:
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CUMULATIVE FISCAL CONSOLIDATED FIXED CHARGE
PERIOD COVERAGE RATIO
--------------------------------------------------------------
January 1, 2000 -- September 30, 2000 0.25 to 1.0
January 1, 2000 -- December 31, 2000 0.50 to 1.0
January 1, 2001 -- March 3l, 2001 1.20 to 1.0
January 1, 2001 -- June 30, 2001 1.20 to 1.0
January 1, 2001 -- September 30, 2001 1.20 to 1.0
January 1, 2001 -- December 31, 2001,
and each Cumulative Four Quarter Fiscal
Period thereafter 1.20 to 1.0;
or
(ii) the Consolidated Fixed Charge Coverage Ratio of
A.B. Dick as at the end of any of the following cumulative
fiscal periods of the Borrower to be less than the ratio set
forth opposite such cumulative fiscal period:
CUMULATIVE FISCAL CONSOLIDATED FIXED CHARGE
PERIOD COVERAGE RATIO
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January l, 2000 -- June 3O,2000 0.50 to 1.0
January 1, 2000 -- September 30, 2000 1.20 to 1.0
January 1, 2000 -- December 31, 2000,
and each Cumulative Four Quarter Fiscal
Period thereafter 1.20 to 1.0
2.7 AMENDMENT TO ANNEX I. Annex I is hereby amended by deleting all
references to "$37,000,000" and replacing each such reference with
"$32,000,000".
2.8 AMENDMENT TO ANNEX II. Annex II to the Credit Agreement is amended
by deleting the definitions of "Contract Receivables", "Curtis Eligible
Accounts", "Curtis Eligible Inventory", "Curtis Guaranty Agreement", "Curtis
Intercompany Loans" and "PC+ Products" in their entirety and by deleting the
definitions of "Borrowing Base", "Eligible Accounts", "Guaranty Agreement",
"Intercompany Loans", and "Subsidiary Guarantor" and replacing them with the
following new definitions:
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"BORROWING BASE" means, at any date of determination, an amount not in
excess of the difference of the following:
(a) the sum of:
(i) eighty percent (80%) of the amount due and
owing on the A.B. Dick Eligible Accounts;
PLUS
(ii) the lesser of:
(x) Sixteen Million Dollars ($16,000,000) or
(y) sixty percent (60%) of the cost or
market value (whichever is lower) of the
A.B. Dick Eligible Inventory; PLUS
(iii) ten percent (10%) of the cost or market
value (whichever is lower) of the A.B. Dick
Accumulated Depreciation Inventory; MINUS
(b) the Reserve Amount.
"ELIGIBLE ACCOUNTS" means, with respect to any Person, only such
Accounts of such Person as the Agent, in its reasonable discretion,
shall from time to time consider to be Eligible Accounts and, by way of
example and not limitation, excluding Accounts which:
(a) either: (i) remain unpaid more than ninety (90)
days after the original invoice date or (ii) have an original
due date greater than ninety (90) days after the original date
of invoice;
(b) have arisen from services performed by the
Account Creditor to or for the Account Debtor outside the
ordinary course of business;
(c) have arisen from the sale by the Account Creditor
of goods where such goods have not been shipped or delivered
to the Account Debtor;
(d) have arisen from transactions which are not
complete, are not bona fide, or require further acts on the
part of the Account Creditor to make such Account payable by
the Account Debtor;
(e) have arisen in connection with sales of goods
which were shipped or delivered to the Account Debtor on other
than an absolute sale basis, such as shipments or deliveries
made on consignment, a sale or return basis, a guaranteed sale
basis, a bill and hold basis, or on the basis of any similar
understanding;
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(f) have arisen in connection with sales of goods
which were, at the time of sale thereof, subject to any Lien,
except the security interest in favor of the Agent created by
the Loan Documents;
(g) are subject to any provision prohibiting
assignment or requiring notice of or consent to such
assignment;
(h) are subject to any Lien other than the Lien in
favor of the Agent;
(i) are Accounts with respect to which the Account
Debtor is currently asserting setoff, counterclaim, defense,
allowance, dispute, or adjustment rights, or are Accounts that
have arisen in connection with the sale of goods which have
been returned, rejected, repossessed, lost or damaged;
(j) are owed from an Account Debtor about which the
Account Creditor has received notice that such Account Debtor
is the subject of Financial Impairment or has suspended normal
business operations, dissolved, liquidated or terminated its
existence;
(k) are owed by any Account Debtor located in New
Jersey or Minnesota unless the Account Creditor has filed all
legally required Notice of Business Activities Reports with
the New Jersey Department of Taxation or the Minnesota
Department of Revenue, respectively;
(l) are Accounts with respect to which the Account
Debtor is located in any jurisdiction which requires that the
Account Creditor, in order to sue any Person in such
jurisdiction's courts, either (i) qualify to do business in
such jurisdiction or (ii) file a report with the taxation
division of such jurisdiction for the then current year,
unless the Account Creditor has fulfilled such requirements to
the extent applicable for the then current year;
(m) are evidenced by Chattel Paper or any Instrument
of any kind (including, without limitation, any promissory
notes);
(n) are Accounts with respect to which any of the
representations, warranties, covenants and agreements
contained in this Agreement or any of the other Loan Documents
are not or have ceased to be complete and correct or have been
breached;
(o) are Accounts with respect to which the Account
Debtor is also a supplier or creditor of the Account Creditor,
except to the extent that the aggregate amount owed to the
Account Creditor by such Account Debtor exceeds the aggregate
amount owed to such Account Debtor by the Account Creditor;
(p) are Accounts with respect to which the Agent does
not have a first priority, perfected security interest;
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(q) represent a progress billing or have had the time
for payment extended by the Account Creditor without the
consent of the Agent (for the purposes hereof, "progress
billing" means any invoice for goods sold or leased or
services rendered under a contract or agreement pursuant to
which the Account Debtor's obligation to pay such invoice is
conditioned upon the Account Creditor's completion of any
further performance under the contract or agreement);
(r) are owed by a Person that is not a citizen of or
organized under the laws of the United States or any State or
are owed by any Person located outside of the United States
unless (i) such Accounts are owed by an Account Debtor located
in Canada and the Agent has a first priority lien perfected to
its satisfaction in such Accounts, or (ii) payment of such
Accounts is guaranteed by a letter of credit in form and
substance and issued by a financial institution satisfactory
to the Agent, in its sole discretion, and which has been
transferred or assigned to the Agent as security for the
Obligations.
(s) are owed any government or any department,
agency, or instrumentality thereof;
(t) are owed by any State or any department, agency,
or instrumentality thereof unless the Account Creditor has
complied with any applicable statutory or regulatory
requirements thereof in respect of the Agent's security
interest therein as granted hereunder;
(u) are owed by an Affiliate of the Account Creditor;
(v) are owed by an Account Debtor with respect to
which more than fifty percent (50%) of the balances then
outstanding on Accounts owed by such Account Debtor and its
Affiliates to the Account Creditor has remained unpaid for
more than ninety (90) days from the dates of their original
due dates, as applicable; or
(w) are, in the Agent's reasonable credit judgment,
Accounts of an Account Debtor which is deemed to be an
unacceptable credit risk or Accounts which are otherwise
deemed unacceptable. The Agent shall use reasonable efforts to
notify the Borrower of any such determination under this
clause (v), but shall not be liable for any damages arising
out of any failure to so notify the Borrower.
"GUARANTY AGREEMENT" means, collectively, the A.B. Dick Guaranty
Agreement and the agreements of any Guarantor(s) of the Obligations
incurred after the Closing Date.
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"INTERCOMPANY LOANS" means loans from the Borrower to a Subsidiary
Guarantor using the proceeds of Advances hereunder and includes, as of
the Closing Date, A.B. Dick Intercompany Loans. All funds downstreamed
by the Borrower to a Subsidiary Guarantor using the proceeds of
Advances hereunder are deemed to be Intercompany Loans.
"SUBSIDIARY GUARANTOR" means any Subsidiary that is also a Guarantor of
the Borrower's Obligations under this Agreement, and includes, as of
the Closing Date, A.B. Dick.
2.9 AMENDMENT TO ANNEX II. Annex II to the Credit Agreement is amended
by adding the following new definition of "Permitted Sale":
"PERMITTED SALE" means a sale of all or substantially all of the assets
and business of Curtis.
2.10 AMENDMENT SUPPLEMENTAL ANNEX IV. Annex IV to the Credit Agreement
is amended by deleting Section 7.1 and replacing it with the following new
Section 7.1:
7.1 A.B. DickNetherland B.V.
A.B. Dick B.V.
A.B. Dick/Itek Limited (UK)
A.B. Dick S.A. (Belgium)
A.B. Dick Company of Canada, Ltd. (Canada)
Itek Graphix Corp.
Multigraphics LLC
3. WAIVER.
3.1 WAIVER. Subject to and conditioned on the effectiveness of this
Amendment, to the extent that the following actions have resulted in Borrower's
failure to comply with the Credit Agreement, the Agent and each Bank hereby
waives, as of the date of this Amendment:
(a) solely with respect to the formation and/or acquisition of
Multi Acquisition Corp., Multigraphics, Inc. and Multigraphics LLC, any
failure of the Borrower to comply with the requirement set forth in
Section 7.1 of the Credit Agreement that so long as the Obligations
shall remain outstanding "the Borrower has no Subsidiaries other than
as listed in the Supplemental Schedule";
(b) solely with respect to the purchase of substantially all
of the assets of Multigraphics LLC by A.B. Dick; any failure of the
Borrower to comply with the requirement set forth in Section 83(a)(ii)
of the Credit Agreement that Borrower shall not permit any of its
Subsidiary Guarantors to, without the prior written consent of the
Required Banks, which shall not be unreasonably withheld, "purchase
all or substantially all of the assets and business of another
Person";
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(c) solely with respect to any failure of the Borrower as of
this date to comply with Section 7.1 of the Credit Agreement, any Event
of Default under Section 9.2 of the Financing Agreement; and
(d) solely with respect to any failure of the Borrower as of
this date to comply with Section 8.3(a)(ii) of the Credit Agreement,
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.
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. The execution delivery, and performance of this Amendment, the Credit
Agreement (as amended hereby), and the other Loan Documents to which Borrower is
a party are within the Borrower's corporate powers, have been duly authorized,
and are not in contravention of Law or the terms of the Borrower's Certificate
of Incorporation or By-Laws or any indenture (including the Senior Note
Indenture) or other document or instrument evidencing borrowed money or any
other agreement or undertaking to which the Borrower is a party or by which it
or its property is bound.
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
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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.3.
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. 3 TO CREDIT AND SECURITY AGREEMENT. The Agent and
each Bank shall have received an original counterpart of this Amendment No. 3 to
Credit and Security Agreement, executed and delivered by a duly authorized
officer of Borrower, the Agent, and each of the Banks.
5.2 ACKNOWLEDGMENT OF GUARANTOR. The Agent shall have received the
Acknowledgment of Guarantor, attached hereto, executed and delivered by a duly
authorized officer of each of A.B. Dick and Curtis respectively.
5.3 AMENDMENT FEE. Bank shall have received from the Borrower, an
Amendment Fee in the amount of Ten Thousand Dollars ($10,000).
6. RELEASE OF CURTIS GUARANTY
6.1 RELEASE OF GUARANTY. Upon the consummation of the Permitted Sale,
that certain Subsidiary Guaranty, dated as of April 1, 1998, executed by Curtis
in favor of the Agent for the benefit of the Banks and the Letter of Credit Bank
shall be released.
7. MISCELLANEOUS.
7.1 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.
7.2 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
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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.
7.3 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.
[Signature Page to Follow]
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IN WITNESS WHEREOF, Borrower has caused this Amendment No. 3 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 PARAGON CORPORATE HOLDINGS
Agent INC.
/s/ Christine A. Schoaf /s/ Frank D. Zaffino
- --------------------------------- -----------------------------------
By: Christine A. Schoaf By: Frank D. Zaffino
------------------------------ --------------------------------
Its: AVP Its: President & CEO
----------------------------- -------------------------------
KEY CORPORATE CAPITAL INC., as a KEY CORPORATE CAPITAL INC. as a
Bank Letter of Credit Bank
/s/ Christine A. Schoaf /s/ Christine A. Schoaf
- --------------------------------- ---------------------------------
By: Christine A. Schoaf By: Christine A. Schoaf
------------------------------ ------------------------------
Its: AVP Its: AVP
----------------------------- -----------------------------
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ACKNOWLEDGMENT OF A. B. DICK COMPANY.
-------------------------------------
The undersigned, A. B. DICK COMPANY, a Delaware corporation, having
guaranteed the obligations of Paragon Corporate Holdings Inc. to Key Corporate
Capital Inc. ("KCCI"), hereby acknowledges and agrees to the terms of the
foregoing Amendment No. 3 to Credit and Security Agreement. The undersigned
represents and warrants to KCCI that the Subsidiary Guaranty Agreement, executed
and delivered by the undersigned to KCCI, dated as of April 1, 1998, remains the
valid and binding obligation of the undersigned, enforceable against it in
accordance with its respective terms.
A.B. DICK COMPANY
By: /s/ Frank D. Zaffino
-----------------------------------
Its: President & CEO
--------------------------------
Dated: May 10, 2000
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