EXHIBIT 10.1
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement (the "THIRD AMENDMENT") dated as
of April 29, 1999 is by and among BMC Industries Inc., a Minnesota corporation
(the "BORROWER"), Bankers Trust Company, a New York banking corporation, as
administrative agent for the Lenders hereunder (in such capacity individually,
the "AGENT") and as a Lender, The First National Bank of Chicago (as assignee of
NBD Bank) as documentation agent and as a Lender and the several banks and other
financial institutions signatory below.
R E C I T A L S:
WHEREAS, the Borrower, the Agents and various lending institutions (the
"LENDERS") are parties to an Amended and Restated Credit Agreement dated as of
June 25, 1998 (as heretofore and hereafter amended, restated, supplemented or
otherwise modified, the "CREDIT AGREEMENT"), pursuant to which the Lenders have
made and may hereafter make loans, advances and other extensions of credit to
the Borrower;
WHEREAS, the Borrower has requested that the Agents and the Majority
Lenders delete SECTION 7.11 of the Credit Agreement (pursuant to which the
Borrower affirmatively agreed to refinance, amend or otherwise modify that
certain Credit Offer Letter between Buckbee-Mears Europe GmbH and Deutsche Bank
AG (Stuttgart) dated September 30, 1994 such that the facility become an
unsecured facility and to provide the related releases of security interests and
Liens to the Agent) and amend the Credit Agreement in certain other respects as
set forth herein and the Majority Lenders and the Agents are agreeable to the
same, subject to the terms and conditions hereof;
WHEREAS, this Third Amendment shall constitute a Loan Document and these
Recitals shall be construed as part of this Third Amendment;
NOW, THEREFORE, in consideration of the foregoing and the agreements,
promises and covenants set forth below, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined in this
Third Amendment shall have the meanings ascribed to them in the Credit
Agreement.
2. AMENDMENT TO THE CREDIT AGREEMENT. Subject to the conditions of this
Third Amendment, the Credit Agreement is hereby amended as follows:
(a) DEFINITION OF SUBSIDIARY. The definition of "Subsidiary" contained
in SECTION 1.1 of the Credit Agreement is amended by deleting such
definition in its entirety and inserting in lieu thereof the following new
definition of "Subsidiary":
"SUBSIDIARY": as to any Person, any corporation, partnership
(limited or general), limited liability company, trust or other entity
of which a majority of the stock (or equivalent ownership or
controlling interest) having voting power to elect a majority of the
board of directors (if a corporation) or to select the trustee or
equivalent controlling interest, shall, at the time such reference
becomes operative, be directly or indirectly owned or controlled by
such Person or one or more of the other subsidiaries of such Person or
any combination thereof. Unless otherwise qualified, all references to
a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of Borrower.
(b) SECTION 7.11. SECTION 7.11 of the Credit Agreement is amended by
deleting such Section in its entirety and inserting in lieu thereof the
following:
"7.11 INTENTIONALLY OMITTED."
3. CONDITIONS PRECEDENT. Notwithstanding any other provision contained in
this Third Amendment or any other document, the effectiveness of this Third
Amendment is expressly conditioned upon
the satisfaction of each matter set forth in this SECTION 3, all in form and
substance acceptable to the Agent in its sole and absolute discretion:
(a) THIRD AMENDMENT. The Agent shall have received a duly executed
copy of this Third Amendment signed by the Borrower, the Agent and the
Majority Lenders.
(b) WARRANTIES AND REPRESENTATIONS. All of the warranties and
representations of the Borrower contained in the Credit Agreement and in
the other Loan Documents (including, without limitation, in this Third
Amendment) shall be true and correct in all material respects on and as of
the date first written above (except those representations and warranties
made expressly as of a different date). The Borrower hereby represents and
warrants that the execution, delivery and performance of this Third
Amendment and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action and this Third
Amendment is a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, except as
the enforcement thereof may be subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforcement is sought in a proceeding in equity
or at law). In furtherance of the foregoing, the Borrower hereby represents
and warrants that as of the date first written above each of the conditions
precedent contained in this SECTION 3 has been fully satisfied in
accordance with the express terms thereof.
(c) NO EVENT OF DEFAULT. Except as expressly waived herein, no Event
of Default shall have occurred and be continuing as of the date first
written above, or, will occur after giving effect to this Third Amendment
in accordance with its terms.
(d) NO LITIGATION. No litigation, investigation, proceeding,
injunction, restraint or other action shall be pending or threatened
against the Borrower or any Affiliate of the Borrower, or any officer,
director, or executive of any thereof, which restrains, prevents or imposes
adverse conditions upon, or which otherwise relates to, the execution,
delivery or performance of this Third Amendment.
4. LIMITATION OF THIRD AMENDMENT. The parties hereto agree and
acknowledge that nothing contained in this Third Amendment in any manner or
respect limits or terminates any of the provisions of the Credit Agreement or
any of the other Loan Documents other than as expressly set forth herein and
further agree and acknowledge that the Credit Agreement (as amended hereby) and
each of the other Loan Documents remain and continue in full force and effect
and are hereby ratified and confirmed. Except to the extent expressly set forth
herein, the execution, delivery and effectiveness of this Agreement shall not
operate as a waiver of any rights, power or remedy of the Lenders or the Agent
under the Credit Agreement or any other Loan Document, nor constitute a waiver
of any provision of the Credit Agreement or any other Loan Document. No delay on
the part of any Lender or the Agent in exercising any of their respective
rights, remedies, powers and privileges under the Credit Agreement or any of the
Loan Documents or partial or single exercise thereof, shall constitute a waiver
thereof. None of the terms and conditions of this Third Amendment may be
changed, waived, modified or varied in any manner, whatsoever, except in
accordance with SECTION 11.1 of the Credit Agreement.
5. COSTS, EXPENSES AND TAXES. Pursuant to SECTION 11.4 of the Credit
Agreement, the Borrower agrees to pay on demand all costs and expenses of the
Lenders and the Agent in connection with the preparation, execution and delivery
of this Third Amendment including the reasonable fees and out-of-pocket expenses
of counsel to the Agent with respect thereto.
6. EXECUTION IN COUNTERPARTS. This Third 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.
7. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
INTERNAL CONFLICTS OF LAWS PROVISIONS THEREOF.
8. HEADINGS. Section headings in this Third Amendment are included herein
for convenience of reference only and shall not constitute a part of this Third
Amendment for any other purposes.
* * * *
[Signature page follows]
IN WITNESS WHEREOF, this Third Amendment has been duly executed as of the
date first written above.
BMC INDUSTRIES INC.
By: /s/ Jeffrey J. Hattara
Name: Jeffrey J. Hattara
Title: Vice President of Finance and
Administration, Chief Financial Officer
BANKERS TRUST COMPANY, in its individual capacity and as Administrative Agent
By: /s/ Robert R. Telesca
Name: Robert R. Telesca
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF CHICAGO, in its individual capacity and
as Documentation Agent
By: /s/ Jenny A. Gilpin
Name: Jenny A. Gilpin
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ David Shapiro
Name: David Shapiro
Title: Assistant Vice President
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
By: /s/ Mark H. Halldorson
Name: Mark H. Halldorson
Title: Officer
HARRIS TRUST AND SAVINGS BANK
By: /s/ Catherine C. Ciolek
Name: Catherine C. Ciolek
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Frances W. Josephic
Name: Frances W. Josephic
Title: Vice President
UNION BANK OF CALIFORNIA
By: /s/ Susan D. Biba
Name: Susan D. Biba
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Raymond A. Falkenberg
Name: Raymond A. Falkenberg
Title: Vice President, Manager
By: /s/ David Bouhl
Name: David Bouhl
Title: First Vice President,
Managing Director