EXHIBIT 10.3
AMENDMENT NO. 1 TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. 1 (this "AMENDMENT") is dated as of June 23, 1998 and is
made by and among BMC Industries, Inc. ("BORROWER"), Bankers Trust Company as a
Lender and as administrative agent ("AGENT"), NBD Bank, as a Lender and as
documentation agent, and the financial institutions signatory hereto.
A. Reference is made to the Amended and Restated Credit Agreement dated
as of June 25, 1998 by and among Borrower, Agent, and the financial institutions
and other persons parties thereto in their capacities as Lenders thereunder (as
the same may be amended, supplemented, restated or otherwise modified from time
to time in accordance with its terms and in effect, the "CREDIT AGREEMENT") and,
to the extent thereof, each of the Loan Documents (as defined in the Credit
Agreement). Capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned to them in the Credit Agreement.
B. Borrower, Agent and the undersigned Lenders desire to amend the Credit
Agreement on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT. The Credit Agreement is
hereby amended as follows effective as of the date hereof:
(a) SECTION 1.1 of the Credit Agreement is amended by deleting the
definition of "Asset Acquisition-Related and Other Special Charges" and
inserting the following in lieu thereof:
"'ASSET ACQUISITION-RELATED AND OTHER SPECIAL CHARGES' means charges
taken in 1998 for accounting purposes in connection with the Asset
Acquisition to reflect write-offs, costs, expenses or other charges related
to the Asset Acquisition and other special non-recurring non-cash
accounting charges (provided that no more than $2,000,000 may be cash
severance payments) in 1998 not to exceed $65,000,000 in the aggregate.
(b) SECTION 1.1 of the Credit Agreement is amended by deleting the
clause "and (v) Asset Acquisition-Related and Other Special Charges" from the
definition of "Consolidated EBITDA".
(c) SECTION 1.1 of the Credit Agreement is amended by deleting the
phrase
"provided that there shall be excluded" from the fourth and fifth lines of the
definition of "'Consolidated Net Income' and 'Consolidated Net Loss'" and
inserting in lieu thereof the phrase "provided that in making such determination
there shall be excluded any effect of".
2. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
3. EFFECTIVE DATE OF AMENDMENT. This Amendment shall become
effective on the date (the "EFFECTIVE DATE") upon which all of the following
conditions are satisfied:
(a) the execution and receipt by Agent originals or a telefacsimilie
of a counterpart hereof by Borrower, Agent and the Majority Lenders and
authorization of delivery thereof; and
(b) the execution of this Amendment and the consummation of the
transactions contemplated hereby shall not violate or conflict with any law,
rule or regulation or any material agreement, contract or other obligation
binding upon or affecting the property of Borrower or any of its Subsidiaries.
4. AMENDMENT FEE. Borrower agrees to pay each Lender that executes
and delivers this Amendment to Agent by the close of business on July 23, 1998
an amendment fee equal to .05% of such Lender's Revolving Commitment.
5. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. Borrower
represents and warrants to Agent and the Lenders as follows:
(a) INCORPORATION OF REPRESENTATION AND WARRANTIES FROM AGREEMENT.
The representations and warranties contained in the Agreement, as amended
hereby, are true and correct in all material respects at and as of the Effective
Date (except to the extent specifically made with regard to a particular date in
which case such representations and warranties shall be true and correct as of
such date).
(b) ABSENCE OF DEFAULT. After giving effect to this Amendment, no
Event of Default or Unmatured Event of Default will exist or will be continuing.
(c) CORPORATE POWER AND AUTHORITY. Borrower has the corporate power
and authority to execute, deliver and perform the terms and provisions of this
Amendment and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of this Amendment.
(d) NO ADDITIONAL CONSENTS REQUIRED. No authorization or approval or
other
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action by, and no notice to or filing or registration with, any Person is
required in connection with, the execution, delivery and performance hereof.
(e) BINDING OBLIGATION. This Amendment has been duly executed and
delivered by Borrower and this Amendment is a legal, valid and binding
obligation of Borrower enforceable against Borrower in accordance with its
terms, except as the enforcement thereof may be subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of equity
(regardless of whether enforcement is sought in equity or at law).
(f) NO VIOLATION OR CONFLICT. Neither execution, delivery and
performance of this Amendment by Borrower nor the consummation of the
transactions contemplated hereby or thereby will (i) contravene any provision of
any Requirement of Law applicable to Borrower or its Subsidiaries or (ii)
conflict with or result in a breach by Borrower or any of its Subsidiaries of
any organizational document of any of them or any term of any material
agreement, contract or obligation binding upon or affecting the property of
them.
(g) GOOD STANDING. Borrower is a duly organized and validity
existing corporation in good standing in its state of incorporation.
(h) NO AMENDMENTS TO BYLAWS. There have been no amendments or other
modifications to the bylaws of Borrower since the Closing Date.
6. REFERENCES TO AND EFFECT ON THE CREDIT AGREEMENT.
(a) On and after the date hereof each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of like
import, and each reference to the Credit Agreement, as the case may be, in the
Loan Documents shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as specifically amended above, the Credit Agreement and
the other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of the Lenders or Agent
under the Credit Agreement or the Loan Documents.
7. REAFFIRMATION OF GUARANTEE. Each of the Subsidiary Guarantors
hereby reaffirms that the Subsidiary Guarantee Agreement shall remain unmodified
and in full force and effect with respect to any and all Guaranteed Obligations
of Borrower and the Subsidiary Guarantors to Agent and holders of the Guaranteed
Obligations, including the Lenders and including all such Guaranteed Obligations
arising under or pursuant to the Credit Agreement.
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8. COSTS AND EXPENSES. Borrower agrees to pay all reasonable costs
and expenses in connection with the negotiation, preparation, printing, typing,
reproduction, execution and delivery of this Amendment and all other documents
furnished pursuant hereto or in connection herewith, including without
limitation, the reasonable fees and out-of-pocket expenses of Winston & Strawn,
special counsel to Agent and any local counsel retained by Agent relative
thereto or the reasonable allocated costs of staff counsel as well as the fees
and out-of-pocket expenses of counsel, independent public accountants and other
outside experts retained by Agent in connection with the administration of this
Amendment.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO THE PROVISIONS THEREOF REGARDING CONFLICTS OF LAW.
10. HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered as of the date first above written.
BMC INDUSTRIES, INC. Title:
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NBD BANK
By: /s/Jeffrey J. Hattara By: /s/Marguerite C. Gordy
-------------------------------- ---------------------------------
Name: Jeffrey J. Hattara Name: Marguerite C. Gordy
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Title: V.P. Admin & Finance and CFO Title: Vice President
----------------------------- --------------------------------
VISION-EASE LENS, INC. U.S. BANK NATIONAL ASSOCIATION
By: /s/Jeffrey J. Hattara By: /s/David Shapiro
-------------------------------- ---------------------------------
Name: Jeffrey J. Hattara Name: David Shapiro
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Title: Treasurer Title: Assistant Vice President
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VISION-EASE LENS AZUSA, INC.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/Jeffrey J. Hattara
--------------------------------
By: /s/ Mary D. Falck
-----------------------------------
Name: Jeffrey J. Hattara
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Name: Mary D. Falck
---------------------------------
Title: Treasurer
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Title: Vice President
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BANKERS TRUST COMPANY, as Agent
and as a Lender HARRIS TRUST AND SAVINGS BANK
By: /s/Robert R. Telesca
--------------------------------
By: /s/Catherine C. Ciolek
-----------------------------------
Name: Robert R. Telesca
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Name: Catherine C. Ciolek
---------------------------------
Title: Assistant Vice President
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Title: Vice President
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Title:
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CREDIT AGRICOLE
By: /s/Dean Balice
---------------------------------
Name: Dean Balice
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Title: Senior Vice President
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WACHOVIA BANK, N.A.
By: /s/Frances W. Josephic
---------------------------------
Name: Frances W. Josephic
--------------------------------
Title: Vice President
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UNION BANK OF CALIFORNIA, N.A.
By: /s/Gail L. Fletcher
---------------------------------
Name: Gail L. Fletcher
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Title: Vice President
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