Exhibit 10.34
_______________________________
CREDIT FACILITY AGREEMENT
_______________________________
between
POLYVISION BELGIUM NV
and
POLYVISION FRANCE EURL
as Borrowers
and
KBC BANK N.V.
TABLE OF CONTENTS
PART I - INTERPRETATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
PART II - BELGIUM CREDIT FACILITY. . . . . . . . . . . . . . . . . . . . . . 4
2. BELGIUM TERM CREDIT FACILITY . . . . . . . . . . . . . . . . . . 4
PART III - FRANCE CREDIT FACILITY. . . . . . . . . . . . . . . . . . . . . . 4
3. FRANCE TERM CREDIT FACILITY. . . . . . . . . . . . . . . . . . . 4
PART IV - INTEREST, FEES AND CHARGES . . . . . . . . . . . . . . . . . . . . 5
4. INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. DEFAULT RATE OF INTEREST . . . . . . . . . . . . . . . . . . . . 5
6. MAXIMUM INTEREST . . . . . . . . . . . . . . . . . . . . . . . . 6
7. COMPUTATION OF INTEREST AND FEES . . . . . . . . . . . . . . . . 6
8. FINANCIAL ANALYSIS AND OTHER FEES. . . . . . . . . . . . . . . . 6
9. REIMBURSEMENT OF EXPENSES. . . . . . . . . . . . . . . . . . . . 6
10. TAX CONSIDERATIONS . . . . . . . . . . . . . . . . . . . . . . . 8
PART V - LOAN ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . 9
11. MANNER OF SETTING BIBOR TERM PORTIONS. . . . . . . . . . . . . . 9
12. REPAYMENT OF OBLIGATIONS . . . . . . . . . . . . . . . . . . . . 10
13. MANDATORY AND OPTIONAL PREPAYMENTS . . . . . . . . . . . . . . . 11
14. APPLICATION OF PAYMENTS AND COLLECTIONS. . . . . . . . . . . . . 12
15. LIABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
16. STATEMENTS OF ACCOUNT. . . . . . . . . . . . . . . . . . . . . . 13
PART VI - TERM AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . 13
17. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
18. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
PART VII - SECURITY INTERESTS. . . . . . . . . . . . . . . . . . . . . . . . 14
19. SECURITY ASSETS. . . . . . . . . . . . . . . . . . . . . . . . . 14
PART VIII - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . 15
20. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . 15
21. CONTINUOUS NATURE OF REPRESENTATIONS
AND WARRANTEES . . . . . . . . . . . . . . . . . . . . . . . . . 21
22. SURVIVAL OF REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . 22
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PART IX - COVENANTS AND CONTINUING AGREEMENTS. . . . . . . . . . . . . . . . 22
23. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . 22
24. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 25
25. SPECIFIC FINANCIAL COVENANTS . . . . . . . . . . . . . . . . . . 30
PART X - CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . . . . 31
26. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . 31
PART XI - EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT. . . . . . . . . 32
27. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . 32
28. ACCELERATION OF THE OBLIGATIONS. . . . . . . . . . . . . . . . . 35
29. OTHER REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . 35
30. REMEDIES CUMULATIVE; NO WAIVER . . . . . . . . . . . . . . . . . 36
PART XII - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 36
31. INDEMNITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
32. ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
33. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . 37
34. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . 37
35. CUMULATIVE EFFECT; CONFLICT OF TERMS . . . . . . . . . . . . . . 37
36. EXECUTION IN COUNTERPARTS. . . . . . . . . . . . . . . . . . . . 38
37. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
38. CREDIT INQUIRIES . . . . . . . . . . . . . . . . . . . . . . . . 40
39. TIME OF ESSENCE. . . . . . . . . . . . . . . . . . . . . . . . . 40
40. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . 40
41. INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . 40
42. CONFIDENTIALITY. . . . . . . . . . . . . . . . . . . . . . . . . 41
43. GOVERNING LAW; CONSENT TO FORUM. . . . . . . . . . . . . . . . . 41
INTEREST COVERAGE RATIO . . . . . . . . . . . . . . . . . . . COVENANTS - 2
FIXED CHARGE COVERAGE RATIO . . . . . . . . . . . . . . . . . COVENANTS - 3
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LIST OF EXHIBITS AND APPENDICES
Appendix A General Definitions
Appendix B Credit Regulations
Appendix C Tax Identification Numbers of Subsidiaries
Appendix D Costs and Expenses
Exhibit A Repayment Schedule
Exhibit 20.2 Jurisdictions in which Borrowers are Authorized to do Business
Exhibit 20.6 Capital Structure of Borrowers
Exhibits 20.10 Corporate Names
Exhibit 20.13 Business Locations
Exhibit 20.15 Same as Exhibit 20.13
Exhibit 20.36 Plans
Exhibit 23.3 Compliance Certificate
Exhibit 25.1 Financial Covenants
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CREDIT FACILITY AGREEMENT
THIS CREDIT FACILITY AGREEMENT this 20th November 1998,
BY AND AMONG:
(1) POLYVISION BELGIUM NV, a limited liability company incorporated under the
laws of Belgium as a "NAAMLOZE VENNOOTSCHAP", in the process of
registration with the Registry of Commerce of Tongeren, having its
registered office at Xxxxxxxxxx 00, 0000 Xxxx, Xxxxxxx, represented for
the purposes of this Agreement by Xxxxxx Xxxx (sometimes referred to
herein, individually, as "POLYVISION BELGIUM" or "BORROWER", and,
together with PolyVision France EURL, as "BORROWERS");
(2) POLYVISION FRANCE EURL, a limited liability company incorporated as a
"ENTREPRISE UNIPERSONNELLE A RESPONSABILITE LIMITEE (EURL)" under the
laws of France and registered with the Companies' Registry of
Valenciennes under number B 420 517 476, having its registered office at
Crespin (Nord), Rue des Deportes, R.C.S. Valenciennes, France,
represented for the purposes of this Agreement by Xxxxxx Xxxx (sometimes
referred to herein, individually, as "POLYVISION FRANCE" or "BORROWER",
and, together with PolyVision Belgium, as "BORROWERS");
AND:
(3) KBC BANK N.V., a limited liability company incorporated under the laws of
Belgium as a "NAAMLOZE VENNOOTSCHAP", having its registered office at
1080, Xxxxxxxx, Xxxxxxxxx 0, registered with the Registry of Commerce of
Brussels under number 623.074 and licensed as a bank in Belgium, acting
through its Genk branch located at 3600 Genk, Xxxxxxxxxxxxx 00, Xxx 00
registered with the Commercial Registry of Tongeren under number 2.254,
bank account number 4886088351-83, represented for the purposes of this
Agreement by Wim Leemen (hereinafter referred to as "LENDER");
WHEREAS:
(A) Lender is willing to make Loans and other financial accommodations to
Borrowers on the terms and conditions set forth herein;
(B) As partial security for such loans and other financial accommodations,
Lender has required that Lender be provided with two irrevocable standby
letters of credit, in the amounts referred to in clause (C) (iii) below;
and
(C) Concurrently with the execution and delivery of this Agreement,
(i) Fleet National Bank, a United States national banking
association, having an office at 1185 Avenue of the Americas, Xxx
Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx of America, individually and
as Administrative Agent for itself and the other lenders party
thereto (in its individual capacity, "FLEET" and in such capacity
as Administrative Agent, together with any successors in its
capacity as Administrative Agent, the "FLEET AGENT");
(ii) certain financial institutions from time to time parties thereto
(collectively the "FLEET LENDERS"); and
(iii) PolyVision Corporation, a corporation organized under the laws of
New York, United States of America ("POLYVISION"), Posterloid
Corporation, a corporation organized under the laws of Delaware,
United States of America ("POSTERLOID"); and Greensteel, Inc., a
corporation organized under the laws of Delaware, United States
of America ("GREENSTEEL"),
have entered into a Credit Agreement (as it may be amended, modified or
supplemented from time to time, the "FLEET CREDIT AGREEMENT"), pursuant
to which Fleet has agreed, among other things, to issue two irrevocable
standby letters of credit, one in the face amount of BEF171,510,970.00
(together with any amendments thereto and substitutions therefor, the
"BELGIUM STANDBY LETTER OF CREDIT"), and one in the face amount of
BEF98,006,268.00 (together with any amendments thereto and substitutions
therefor, the "FRANCE STANDBY LETTER OF CREDIT"), respectively.
NOW, THEREFORE, in consideration of the premises and covenants and in reliance
upon the representations and warranties set out below, the parties hereto agree
as follows:
PART I - INTERPRETATION
1. DEFINITIONS
1.1 For the purposes of this Agreement, capitalized words and
expressions shall have the meanings assigned to them in APPENDIX
A, GENERAL DEFINITIONS.
1.2. Accounting terms not otherwise specifically defined herein shall
be construed in accordance with the generally accepted accounting
principles in effect in the country in which the relevant party
is located, applied on a consistent basis ("GAAP").
1.3 For the purpose of determining compliance with the covenant and
Default limitations set out in this Agreement, amounts expressed
in US Dollars shall be measured by aggregating the applicable
items denominated in US Dollars with the Dollar Equivalent of all
such items in foreign currencies.
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1.4 In this Agreement and its Appendices, Exhibits and Schedules,
unless the context otherwise requires:
(a) references to this Agreement and/or its Appendices,
Exhibits and/or Schedules or any other document, include
this Agreement and its Appendices, Exhibits and/or
Schedules or such other document as varied, modified or
supplemented in any manner from time to time;
(b) references to any party shall, where relevant, be deemed
to be references to or to include, as appropriate, their
respective permitted successors, assigns or transferees;
(c) references to recitals, clauses and schedules and
sub-divisions of them are references to the recitals and
clauses of, and schedules to, this Agreement and
sub-divisions of them respectively;
(d) references to any enactment include references to such
enactment as reenacted, amended or extended on or before
the date of this Agreement and any subordinate legislation
made from time to time under it;
(e) references to a "person" include any individual, company,
corporation, firm, partnership, joint venture,
association, organization, institution, trust or agency,
whether or not having a separate legal personality;
(f) references to the one gender include all genders, and
references to the singular include the plural and vice
versa;
(g) any reference to indemnifying any person against any
circumstance includes indemnifying and holding that person
harmless from all actions, claims, demands and proceedings
of any nature made against that person and all losses,
damages, payments, awards, costs or expenses made,
suffered or incurred by that person as a consequence of,
or which would not have arisen but for, that circumstance;
and
(h) headings are inserted for convenience only and shall be
ignored in construing this Agreement.
1.5 The Appendices, Exhibits and Schedules and the Recitals form part
of this Agreement and shall be construed and shall have the same
full force and effect as if expressly set out in the body of this
Agreement.
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1.6 Any reference in this Agreement to a document being "in the
agreed terms" is to a document in the terms agreed between the
parties and for identification purposes only signed or initialed
by them or on their behalf on or before the date of this
Agreement.
1.7 Where under the terms of this Agreement any party accepts an
obligation to use its "best endeavors" in and towards the
fulfillment of any objective or occurrence the full extent of
that party's obligation shall be to take all such steps which a
prudent, determined and reasonable person, acting in its own
interests and intent on the fulfillment of such obligation, would
take irrespective of the costs of or associated with taking such
steps.
PART II - BELGIUM CREDIT FACILITY
2. BELGIUM TERM CREDIT FACILITY
2.1 In reliance upon the representations and warranties and subject
to the terms and conditions set out in this Agreement and the
Loan Documents, Lender agrees, provided that no Default or Event
of Default then exists, to make a term credit facility (the
"BELGIUM TERM CREDIT FACILITY") available to PolyVision Belgium
on or about the Closing Date in a principal amount equal to
BEF240,555,000.00 to be drawn down in full by PolyVision Belgium
on the Closing Date (the "BELGIUM TERM LOAN").
2.2 Until the Borrowers and Lender shall agree otherwise, the Belgium
Term Credit Facility shall bear interest for interest periods,
applicable to the different BIBOR Term Portions, having durations
of minimum one (1) month, two (2) months, three (3) months or
maximum six (6) months, which may not be repaid before maturity,
such interest periods (i.e., BIBOR Periods) to be selected for
the BIBOR Term Portions in accordance with the provisions and as
more fully described in Section 11 hereof;
PROVIDED, THAT PolyVision Belgium shall select BIBOR Term Portions in a
manner consistent with the repayment schedule attached hereto in EXHIBIT
A.
PART III - FRANCE CREDIT FACILITY
3. FRANCE TERM CREDIT FACILITY
3.1 In reliance upon the representations and warranties and subject
to the terms and conditions set out in this Agreement and the
Loan Documents, Lender agrees, provided that no Default or Event
of Default then exists, to make a term credit facility (the
"France Term Credit Facility") available to PolyVision France on
or about the Closing Date in a principal amount equal to
BEF137,460,000.00 to be
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drawn down in full by PolyVision France on the Closing Date ( the
"FRANCE TERM LOAN").
3.2 Until the Borrowers and Lender shall agree otherwise, the France
Term Credit Facility shall bear interest for interest periods,
applicable to the different BIBOR Term Portions, having durations
of minimum one (1) month, two (2) months, three (3) months or
maximum six (6) months, which may not be repaid before maturity,
such interest periods (i.e., BIBOR Periods) to be selected for
the BIBOR Term Portions in accordance with the provisions and as
more fully described in Section 11 hereof;
PROVIDED, THAT PolyVision France shall select BIBOR Term Portions in a
manner consistent with the repayment schedule attached hereto in EXHIBIT
A.
PART IV - INTEREST, FEES AND CHARGES
4. INTEREST
4.1 BIBOR TERM PORTION
4.1.1 Interest shall accrue on the principal amount of each
BIBOR Term Portion at an annual rate equal to the BIBOR
Rate applicable to such BIBOR Term Portion for the
corresponding BIBOR Period PLUS the Applicable Margin.
4.2 BIBOR PERIODS AND BIBOR RATE
4.2.1 BIBOR Periods and the BIBOR Rate applicable to each BIBOR
Term Portion shall be determined in accordance with the
terms of this Agreement.
4.2.2 The total number of all BIBOR Periods at any time
outstanding for all Borrowers together shall not at any
time exceed six (6).
5. DEFAULT RATE OF INTEREST
5.1 Upon and after the occurrence of an Event of Default, and during
the continuation thereof, the principal amount of all Loans
shall, at the option of Lender, bear interest at a rate per annum
equal to the interest rate otherwise applicable thereto plus 2%,
or, in the event of termination of the credit facility provided
hereunder, in whole or in part, such other rate as is provided in
the Credit Regulations (the "DEFAULT RATE").
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6. MAXIMUM INTEREST
6.1 In no event whatsoever shall the aggregate of all amounts deemed
interest hereunder and charged or collected pursuant to the terms
of this Agreement exceed the highest rate permissible under any
law which a court of competent jurisdiction shall, in a final
determination, deem applicable hereto.
6.2 If any provisions of this Agreement are in contravention of any
such law, such provisions shall be deemed amended to conform
thereto.
7. COMPUTATION OF INTEREST AND FEES
7.1 Interest, financial analysis fees and service fees hereunder
shall be calculated daily and shall be computed on the actual
number of days elapsed over a year of 360 days.
8. FINANCIAL ANALYSIS AND OTHER FEES
8.1 Borrowers shall from time to time pay to Lender or to Lender's
designated representative in connection with periodic visits to
Borrowers' places of business in order to perform financial and
collateral analysis all reasonable out-of-pocket expenses
incurred by Lender or Lender's designated representative in
connection with such visits.
8.2 Expenses under Article 8.1 shall be payable on the first day of
the quarter following the date of issuance by Lender or by
Lender's designated representative of a request for payment
thereof to the applicable Borrower as the case may be.
8.3 During the term of this Agreement, Borrowers shall pay to Lender
a service fee equal to 1/8% per annum of the outstanding
principal balance of the respective Belgium Term Loan and the
France Term Loan, as the case may be.
8.4 The service fee shall be payable at the end of each relevant
BIBOR Period in respect of the BIBOR Term Portions.
9. REIMBURSEMENT OF EXPENSES
9.1 If, at any time or times regardless of whether or not an Event of
Default then exists, Lender incurs legal or accounting expenses
or any other reasonable costs or out-of-pocket expenses in
connection with:
(a) the negotiation and preparation of this Agreement or any
of the other Loan Documents, any amendment of or
modification of this Agreement or any of the other Loan
Documents;
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(b) the administration of this Agreement or any of the other
Loan Documents and the transactions contemplated hereby
and thereby;
(c) any litigation, contest, dispute, suit, proceeding or
action (whether instituted by Lender, any Borrower or any
other Person) in any way relating to the Collateral, this
Agreement or any of the other Loan Documents or any
Borrower's affairs;
(d) any attempt to enforce any rights of Lender against any
Borrower or any other Person which may be obligated to
Lender by virtue of this Agreement or any of the other
Loan Documents, including, without limitation, the Account
Debtors; or
(e) any attempt to inspect, verify, protect, preserve,
restore, collect, sell, liquidate or otherwise dispose of
or realize upon the Collateral;
then, to the extent permitted by applicable law, all such legal and
accounting expenses, other reasonable costs and out-of-pocket expenses of
Lender shall be charged to the Borrower(s) on whose behalf such legal and
accounting expenses or other costs and out-of-pocket expenses have been
incurred by Lender. Borrowers shall also reimburse Lender for any costs
or expenses incurred by Lender or Fleet in connection with the transfer
of funds by Lender to Fleet pursuant to the Letter of Credit Agreement,
excluding however any costs or expenses incurred as a result of currency
rate fluctuations.
9.2 All expenses of protecting, storing, warehousing, insuring,
handling, maintaining and shipping the Collateral, any and all
excise, property, sales, and use taxes imposed by any national or
local authority on any of the Collateral or in respect of the
sale thereof shall, to the extent permitted by applicable law, be
borne and paid by the Borrower(s) on whose behalf such expenses
have been incurred by Lender.
9.3 If any party fails to promptly pay any portion thereof when due,
Lender may, at its option, but shall not be required to, pay the
same and charge such party therefor.
9.4 Borrowers shall pay to Lender, on demand, any and all fees, costs
or expenses which Lender is required to pay to a bank or other
similar institution (including, without limitation, any fees paid
by Lender to any other Person) arising out of or in connection
with:
(a) the forwarding to any Borrower or any other Person on
behalf of such Borrower, by Lender, of proceeds of loans
made by Lender to such Borrower pursuant to this
Agreement; and
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(b) the depositing for collection, by Lender, of any check or
item of payment received or delivered to Lender on account
of the Belgium Obligations or on account of the France
Obligations.
9.5 All amounts chargeable to Borrowers under Part IV hereof shall be
Belgium Obligations or France Obligations, respectively, secured
by all of the Collateral, shall be payable on demand and shall
bear interest from the date such amounts become payable until
paid in full at the highest rate then applicable to any BIBOR
Term Portion from time to time.
10. TAX CONSIDERATIONS
10.1 All payments by Borrowers to Lender under this Agreement, whether
in respect of principal, interest, fees or any other item, and
all payments by Lender to Fleet under the Letter of Credit
Agreement, shall be made in full without any deduction or
withholding (whether in respect of set off, counterclaim, duties,
taxes, charges or otherwise whatsoever) unless the deduction or
withholding is required by law, in which case the applicable
Borrower as the case may be, shall:
(a) ensure that the deduction or withholding does not exceed
the minimum amount legally required;
(b) forthwith pay to Lender or Fleet, as the case may be, such
additional amount so that the net amount received by
Lender or Fleet, as the case may be, will equal the full
amount which would have been received by it had no such
deduction or withholding been made;
(c) pay to the relevant taxation or other authorities within
the period for payment permitted by applicable law the
full amount of the deduction or withholding (including,
but without limitation, the full amount of any deduction
of withholding from any additional amount paid pursuant to
this sub-clause); and
(d) furnish to Lender or Fleet, as the case may be, within the
period for payment permitted by the relevant law, either:
(i) an official receipt of the relevant taxation
authorities involved in respect of all amounts so
deducted or withheld; or
(ii) if such receipts are not issued by the taxation
authorities concerned on payment to them of
amounts so deducted or held, a certificate of
deduction or equivalent evidence of the relevant
deduction or withholding.
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PART V - LOAN ADMINISTRATION.
11. MANNER OF SETTING BIBOR TERM PORTIONS
11.1 The borrowings hereunder shall be drawn in full on the date
hereof but may bear interest at interest rates applicable to
different portions of such borrowings from time to time, and the
rates applicable thereto are applicable to the different BIBOR
Term Portions. The request for establishing or changing the
BIBOR Periods applicable to BIBOR Term Portions shall be made, or
shall be deemed to be made, in the following manner:
(a) Any Borrower may give Lender notice of its intention to
establish a BIBOR Term Portion, by sending to Lender and
Fleet simultaneously, by telex or facsimile transmission,
not later than 11:00 AM Brussels time, four (4) Business
Days prior to the date hereof or date of termination of
any then terminating BIBOR Term Portion, a duly completed
BIBOR Period Request,
PROVIDED, THAT no such request may be made at a time when there
exists a Default or an Event of Default.
(b) Each BIBOR Period Request sent to Lender and Fleet
pursuant to Article 11.1(a) above shall be irrevocable and
shall specify:
(i) the date on which the applicable Borrower, as the
case may be, proposes to commerce a BIBOR Period
for a BIBOR Term Portion, which shall be a
Business Day;
(ii) the BIBOR Period of the proposed BIBOR Term
Portion.
11.2 Each Borrower hereby irrevocably authorizes Lender to charge to
its respective Loan Account hereunder, a sum sufficient to pay
all interest accrued on the Belgium Obligations and/or the France
Obligations, respectively, during the immediately preceding month
or quarter or applicable BIBOR Interest Payment Date and to pay
all costs, fees and expenses at any time owed by the applicable
Borrower, as the case may be, to Lender under this Agreement.
11.3. If any Borrower fails to give a timely borrowing notice with
respect to the commencement of a new BIBOR Period after any
maturing BIBOR Term Portion, Lender shall be entitled to treat
such failure as a request for a new BIBOR Term Portion having the
same BIBOR Period as the maturing BIBOR Term Portion, taking into
account the repayment schedule of the applicable Term Loan set
forth in EXHIBIT A.
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12. REPAYMENT OF OBLIGATIONS
12.1 Except where evidenced by notes or other instruments issued or
made by the applicable Borrower, as the case may be, to Lender
and accepted by Lender specifically containing payment provisions
which are in conflict with this Article 12 (in which event the
conflicting provisions of said notes or other instruments shall
govern and control), the Belgium Obligations and the France
Obligations, respectively, shall be payable as follows:
(a) Principal payable on account of the Belgium Term Credit
Facility or on the France Term Credit Facility shall be
due and payable on a quarterly basis in installments as
set out in EXHIBIT A hereto, PROVIDED THAT:
(i) the entire remaining principal amount then
outstanding, together with any and all other
amounts due hereunder, shall be due and payable on
October 31, 2004 at the latest; and
(ii) the entire unpaid principal balance and accrued
interest on the Belgium Term Loan or the France
Term Loan shall, notwithstanding the foregoing, be
due and payable immediately upon any termination
of this Agreement pursuant to Article 17 or 18
hereof.
(b) Interest accrued on any BIBOR Term Portion shall be due
and payable on each BIBOR Interest Payment Date, as the
case may be, and on the earliest of;
(i) the last day of the BIBOR Period applicable to
such BIBOR Term Portion;
(ii) the occurrence and continuance of an Event of
Default in consequence of which Lender elects to
accelerate the maturity and payment of the Belgium
Obligations and/or France Obligations; or
(iii) termination of this Agreement pursuant to Article
17 or 18 hereof.
(c) Costs, fees and charges payable pursuant to this Agreement
shall be payable by the applicable Borrower, as and when
provided in Part IV hereof, to Lender or to any other
Person designated by Lender in writing.
(d) the payment of money, if any, shall be payable by the
applicable Borrower, as the case may be, to Lender as and
when provided in this Agreement, the Other Agreements or
the Security Documents, or on demand, whichever is
earlier.
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13. MANDATORY AND OPTIONAL PREPAYMENTS
13.1 Within fifteen (15) days after any receipt by any Borrower of Net
Cash Proceeds from Asset Dispositions (other than Extraordinary
Receipts the disposition of which shall be governed by the terms
of subsection 13.1(a) below) made by any Subsidiary of such
Borrower, the applicable Borrower shall prepay the then
outstanding Loans in an amount equal to one-hundred percent
(100%) of such Net Cash Proceeds in excess of $500,000 (including
in such computation of $500,000, all Net Cash Proceeds received
by PolyVision and any one or more of its Subsidiaries) in any
Fiscal Year, PROVIDED that no such prepayment need be made (A)
unless the Net Cash Proceeds from any single Asset Disposition or
series of related Asset Dispositions (in either case, by
PolyVision and all of its Subsidiaries) exceed $500,000 (in which
case a prepayment shall be made in the amount of the entire Asset
Disposition) or until the cumulative Net Cash Proceeds from all
Asset Dispositions by PolyVision and any one or more of its
Subsidiaries in any particular fiscal year exceed $500,000 (in
which case a prepayment shall be made in the amount of the Net
Cash Proceeds from the specific Asset Disposition (or portion
thereof) causing the limit to be exceeded), except that the terms
of this subsection (A) shall not be applicable in respect of Net
Cash Proceeds reinvested in accordance with the terms of the
following subsection (B); and (B) with respect to Asset
Dispositions by a Subsidiary of any Borrower, if the Net Cash
Proceeds therefrom are used to reinvest in fixed assets (for use
in its business or the business of the Subsidiaries) within 180
days (or 360 days with respect to real estate and improvements on
real estate) of such Asset Disposition, PROVIDED that any such
Net Cash Proceeds not so reinvested shall be used to prepay the
Loans on the 181st day (or 361st day with respect to real estate
and improvements on real estate).
(a) Within fifteen (15) days after receipt of Net Cash
Proceeds by a Borrower from any Extraordinary Receipt
received by or paid to or for the account of such party or
its Subsidiaries and not otherwise included in Article
13.1 above, such party shall prepay the then outstanding
Loans in an amount equal to one hundred percent (100%) of
such Net Cash Proceeds in excess of $500,000 as computed
in the aggregate with respect to PolyVision and all of its
Subsidiaries.
13.2 The applicable prepayment shall be applied in the case of the
applicable Borrower to the installments of principal due under
its respective Term Loans PRO RATA based on the remaining amounts
of such installments until paid in full.
13.3 [INTENTIONALLY OMITTED]
13.4 Each Borrower shall prepay its respective Term Credit Facility in
amounts equal to their respective pro-rata share (calculated as
set forth below) of Excess Cash Flow
11
with respect to each fiscal year of Parent during the Term
hereof, such prepayments to be made within two (2) Business Days
following the due date for delivery by Borrowers to Lender of the
annual financial statements required by Article 23.1(c)(i) hereof
and each such prepayment shall be applied to the installments of
principal due under its respective Term Credit Facility on a
pro-rata basis until payment of the Term Credit Facility in full.
For purposes of this Article 13.4, Borrowers' pro-rata share of
Excess Cash Flow will be determined by calculating the percentage
that the outstanding principal balance of the Term Credit
Facility is of the total of such principal balance plus the
outstanding balance of the "Term Loans" under the Fleet Credit
Agreement and the "Term Loans" under the Other KBC Loan Agreement
and multiplying total Excess Cash Flow by such percentage.
13.5 Borrowers may, at their option, from time to time prepay
installments of their Term Credit Facility at the Borrowers
option, either in the inverse order of maturity or pro-rata with
respect to the remaining installments.
13.6 Any such optional prepayment shall be credited against the amount
of the mandatory prepayment required under Article 13.4 for the
fiscal year in which such optional prepayment was made.
13.7 Except for charges under APPENDIX D applicable to prepayments of
BIBOR Term Portions, such prepayments shall be without premium or
penalty.
13.8 This Agreement may not be prepaid in full or terminated unless
the Other KBC Loan Agreement is prepaid in full and terminated
concurrently therewith, and all Obligations hereunder and
"Obligations" under (and as defined in) the Other KBC Loan
Agreement shall have been paid in full.
14. APPLICATION OF PAYMENTS AND COLLECTIONS
14.1 During any period in which an Event of Default exists, each of
the Borrowers irrevocably waives the right to direct the
application of any and all payments and collections at any time
or times hereafter received by Lender from or on behalf of such
Borrower, and each of the Borrowers does hereby irrevocably agree
that Lender shall have the continuing exclusive right (subject to
the provisions of this Agreement) to apply and reapply any and
all such payments and collections received in respect of such
Borrower at any time or times hereafter by Lender or its agents
against the Belgium Obligations (in respect of payments or
collections from or on behalf of PolyVision Belgium), and/or the
France Obligations (in respect of payments or collections from or
on behalf of PolyVision France), as the case may be, in such
manner as Lender may deem advisable, notwithstanding any entry by
Lender upon any of its books and records.
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15. LIABILITY
15.1 PolyVision Belgium shall be liable for and bound by the Belgium
Obligations, and in no event shall PolyVision Belgium be liable
for any of the France Obligations.
15.2 PolyVision France shall only be liable for and bound by the
France Obligations, and in no event shall PolyVision France be
liable for any of the Belgium Obligations.
16. STATEMENTS OF ACCOUNT
16.1 Lender will account to Borrowers from time to time with a
statement of Loans, charges and payments made pursuant to this
Agreement, and such account rendered by Lender shall be deemed
final, binding and conclusive upon Borrowers, absent manifest
error.
PART VI - TERM AND TERMINATION
17. TERM
17.1 Subject to the right of Lender to cease making Loans to Borrowers
upon or after the occurrence and during the continuance of any
Event of Default, this Agreement shall be in effect until
October 31, 2004, unless it is terminated as provided in
Section 18 hereof.
18. TERMINATION
18.1 In accordance with and without prejudice to Article 13 of the
Credit Regulations, Lender may terminate this Agreement in
accordance with Part VI hereof without notice upon or after the
occurrence and during the continuance of an Event of Default.
18.2 Upon at least ten (10) Business Days prior written notice to
Lender, Borrowers may, at their option, terminate this Agreement;
PROVIDED, HOWEVER, THAT no such termination may be made prior to
the first anniversary date of this Agreement and no such
termination shall be effective until Borrowers have paid all of
the Belgium Obligations and the France Obligations (including,
without limitation, all amounts payable, as described in Section
2.2.3 of Appendix D annexed hereto), respectively, in immediately
available funds.
18.3 Any notice of termination given by Borrowers shall be irrevocable
unless Lender otherwise agrees in writing, and Lender shall have
no obligation to make any Loans on or after the termination date
stated in such notice.
13
18.4 Borrowers may elect to terminate this Agreement in its entirety
only. No section of this Agreement or type of Loan available
hereunder may be terminated singly.
18.5 All of the Belgium Obligations and the France Obligations shall
be immediately due and payable upon the termination date stated
in any notice of termination of this Agreement.
18.6 Notwithstanding any such termination, all undertakings,
agreements, covenants, warranties and representations of
Borrowers contained in the Loan Documents shall survive any such
termination, Lender shall retain its Liens in the Collateral, and
Lender shall retain all of its rights and remedies under the Loan
Documents, until Borrowers, respectively, have paid the Belgium
Obligations and the France Obligations to Lender, in full, in
immediately available funds, together with the applicable
termination charge, if any.
18.7 Notwithstanding the payment in full of the Belgium Obligations
and the France Obligations, Lender shall not be required to
terminate its security interests in the Collateral unless, with
respect to any loss or damage Lender may incur as a result of
dishonored checks or other items of payment received by Lender
from any Borrower and applied to the Belgium Obligations and/or
the France Obligations, as the case may be, Lender shall, at its
option:
(a) have received a written agreement, executed by Borrowers,
indemnifying Lender from any such loss or damage for a
period of up to 60 days after the effective date of
termination; or
(b) have retained such monetary reserves for such period of
time as Lender, in its reasonable discretion, may deem
necessary to protect Lender from any such loss or damage.
PART VII - SECURITY INTERESTS
19. SECURITY ASSETS
19.1 To secure the prompt payment and performance by the Borrowers to
Lender of the Belgium Obligations:
(a) PolyVision Belgium on the Closing Date shall grant to
Lender a first ranking pledge ("GAGE COMMERCIAL") on all
the shares it owns in Alliance Europe;
(b) PolyVision France on the Closing Date shall grant to
Lender a first ranking pledge ("NANTISSEMENT D'ACTIONS ET
DE COMPTE D'INSTRUMENTS FINANCIERS Y RELATIFS") on all the
shares it owns in Aubecq (the "Shares");
14
PROVIDED, THAT the security described in Article 19.1(b) shall not secure
the Belgium Obligations and the security described in Article 19.1(a)
shall not secure the France Obligations.
19.2 To secure the prompt payment and performance by the Borrowers of
the Obligations, PolyVision, Posterloid and Greensteel shall at
the latest on the date of this Agreement execute one or more
Guaranties of the Obligations, secured by a first ranking pledge
on 65% of all the shares PolyVision owns in PolyVision Belgium
and PolyVision France.
19.3 To secure the payment and performance of the Obligations, Fleet
has issued the Belgium Standby Letter of Credit and the France
Standby Letter of Credit.
19.4 All security interests in favor of Lender hereunder shall (except
as provided therein) be supplemental to each other.
19.5 Without prejudice to any other rights of Lender under this
Agreement, but subject to any express requirements under this
Agreement, Lender shall at all times be entitled to apply in its
discretion all monies arising from the enforcement of any
security interest or guarantee towards the discharge of any of
the obligations secured by such security interest or guarantee.
PART VIII - REPRESENTATIONS AND WARRANTIES
20. REPRESENTATIONS AND WARRANTIES.
In order to induce Lender to enter into this Agreement and to make Loans
hereunder, Borrowers warrant, represent and covenant to Lender, the Fleet
Lenders and Fleet Agent that:
20.1 Each of the Borrowers is a company duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation:
(a) PolyVision Belgium is a limited liability company
("NAAMLOZE VENNOOTSCHAP"), duly organized, validly
existing and in good standing under the laws of Belgium;
(b) PolyVision France is a limited liability company
"ENTREPRISE UNIPERSONNELLE A RESPONSABILITE LIMITEE EURL,
duly organized, validly existing and in good standing
under the laws of France.
20.2 Each of the Borrowers is duly qualified and authorized to do
business in its jurisdiction of incorporation and is in good
standing as a foreign company in each state or jurisdiction
listed on EXHIBIT 20.2 hereto and in all other states and
15
jurisdictions in which the failure of such Borrower to be so
qualified would have a Material Adverse Effect.
20.3 Each of the Borrowers is duly authorized and empowered to enter
into, execute, deliver and perform this Agreement and each of the
other Loan Documents to which it is a party.
20.4 The execution, delivery and performance of this Agreement and
each of the other Loan Documents have been duly authorized by all
necessary corporate and other action of Borrowers and relevant
Subsidiaries and do not and will not:
(a) require any consent or approval of the shareholders of
either Borrower or any Subsidiary except as shall have
been obtained and is in full force and effect on the
Closing Date;
(b) contravene any Borrower's or Subsidiary's charter,
articles or certificate of incorporation or by-laws;
(c) violate, or cause any Borrower or Subsidiary to be in
default under any provision of any law, rule, regulation,
order, writ, judgment, injunction, decree, determination
or award in effect having applicability to any Borrower,
or Subsidiary;
(d) result in a breach of or constitute a default under any
indenture or loan or credit agreement or any other
agreement, lease or instrument to which any Borrower or
Subsidiary is a party or by which it or their Properties
may be bound or affected, the breach of or default under
which would be reasonably likely to have a Material
Adverse Effect; or
(e) result in, or require, the creation or imposition of any
Lien (other than Permitted Liens) upon or with respect to
any of the Properties now owned or hereafter acquired by
any Borrower or Subsidiary.
20.5 This Agreement is, and each of the other Loan Documents when
delivered under this Agreement will be, a legal, valid and
binding obligation of each Borrower party thereto, enforceable
against it in accordance with their respective terms.
20.6 EXHIBIT 20.6 hereto states:
(a) the correct name of each Borrower, its jurisdiction of
incorporation and the percentage of its Voting Stock owned
by any Person;
16
(b) the correct name of each Borrower's corporate or joint
venture Affiliates and the nature of the affiliation;
(c) the correct number, nature and holder of all outstanding
securities of each Borrower; and
(d) the correct number of authorized and issued and treasury
(I.E., shares redeemed or repurchased by a Borrower)
shares of each Borrower.
20.7 All such shares have been duly issued and are fully paid and
non-assessable.
20.8 There are no outstanding options to purchase, or any rights or
warrants to subscribe for, or any commitments or agreements to
issue or sell, or any securities or obligations convertible into,
or any powers of attorney relating to, shares of the capital
stock of any Borrower except the Option Agreement between Bragi
X. Xxxxx and the Lender relating to ten shares of common stock in
PolyVision Belgium.
20.9 Except for the pledge to Lender or Fleet of the outstanding
shares of each Borrower, there are no outstanding agreements or
instruments binding upon any of Borrower's shareholders relating
to the ownership of its shares of capital stock except the
Option Agreement between Bragi X. Xxxxx and the Lender relating
to the Shares of Common Stock in PolyVision Belgium.
20.10 Neither of the Borrowers has in the past six years been known as
or used any corporate, fictitious or trade names.
20.11 Neither of the Borrowers has in the past six years been the
surviving company of a merger or consolidation or has acquired
all or substantially all of the assets of any Person.
20.12 Neither of the Borrowers has conducted any business since its
formation other than acquisition of the shares acquired by them
respectively pursuant to consummation of the Acquisition, and as
of the Closing Date has no liabilities other than as set forth in
the Purchase Documents, in connection with this Agreement and the
ordinary costs of formation and consummation of the Acquisition.
20.13 Each of the Borrower's chief executive office and other places of
business are as listed on EXHIBIT 20.13 hereto, as updated from
time to time.
20.14 During the preceding one-year period, neither Borrower has had an
office, place of business or agent for service of process.
17
20.15 If applicable, all Collateral other than Inventory in transit and
motor vehicles, is and will at all times be kept by Borrowers or
Subsidiaries at one or more of the locations set forth on EXHIBIT
20.15 hereto, as updated from time to time, and shall not,
without the prior written approval of Lender, be moved therefrom
except, prior to an Event of Default and Lender's acceleration of
the maturity of the Belgium Obligations and/or the France
Obligations, as the case may be, in consequence thereof, for
sales of Inventory and movement of motor vehicles in the ordinary
course of business.
20.16 Each Borrower has good, indefeasible and marketable title to all
of its real Property (if any), and good title to all of the
Collateral and all of its other Property, in each case, free and
clear of all Liens except Permitted Liens.
20.17 Each of the Borrowers has paid or discharged all lawful claims,
in particular those which, if unpaid, might become a Lien against
any of their Properties or Collateral that is not a Permitted
Lien.
20.18 The Liens granted to Lender under Article 19 hereof are first
priority Liens, subject only to Permitted Liens.
20.19 The consolidated and consolidating balance sheets of Parent, and
such other Persons described therein as of (as to Parent) April
30, 1998, or (as to the Subsidiaries of the Borrowers) December
31, 1997, and the related statements of income, changes in
stockholder's equity, and cash flow statements for the periods
ended on such dates, (and the interim financial statements
delivered to Lender on the date hereof and certified as delivered
pursuant to this Agreement or the Fleet Credit Agreement) have
been prepared in accordance with generally accepted accounting
principles, applied on a consistent basis, and present fairly in
accordance with accounting principles, in each case, in effect
for the applicable country in which it is located, the financial
positions of Parent, each of the Borrowers and Subsidiaries and
such other Persons at such dates and the results of Parent's ,
Borrower's, Subsidiaries' and such Person's operations for such
periods (in each case, to the extent each such entity is covered
by such statements).
20.20 Since 31 January 1998 and to the date hereof, there has been no
material adverse change in the condition, financial or otherwise,
of Parent, the Borrowers and their Subsidiaries (taken as a
whole) and such other Persons as shown on the applicable
Consolidated balance sheet as of such date and no change in the
aggregate value of Equipment and real Property owned by Parent,
and such other Persons covered by any such financial statement,
except changes in the ordinary course of business, none of which
individually or in the aggregate have represented a material
adverse change.
20.21 The fiscal year of PolyVision France ends on April 30 of each
year and the fiscal year of PolyVision Belgium ends on December
31 of each year.
18
20.22 The financial statements referred to in Article 20.19 hereof do
not, nor does this Agreement or any other written statement of
Parent and/or each of the Borrowers and/or Subsidiaries to
Lender, contain any untrue statement of a material fact or omit a
material fact necessary to make the statements contained therein
or herein not misleading.
20.23 There is no fact which Parent or any of the Borrowers has failed
to disclose to Lender in writing which is reasonably likely to
have a Material Adverse Effect.
20.24 Each of the Borrowers is now and, after giving effect to the
Loans to be made and the Letters of Credit to be issued
hereunder, is fully Solvent.
20.25 Neither of the Borrowers is obligated as surety or indemnitor
under any surety or similar bond or other contract issued or
entered into to assure payment, performance or completion of
performance of any undertaking or obligation of any Person.
20.26 Each of the Borrowers has filed all national, state and local tax
returns and other reports it is required by law to file, except
where the failure to so file such tax return would not be
reasonably likely to have a Material Adverse Effect, and has paid
or made sufficient provision for the payment of, all taxes,
assessments, fees, levies and other governmental charges upon it,
its income and Properties as and when such taxes, assessments,
fees, levies and charges are due and payable, unless and to the
extent any thereof are being actively contested in good faith and
by appropriate proceedings and such Borrower maintains reasonable
reserves on its books therefor. Each Borrower's tax
identification number is set forth on APPENDIX C hereto.
20.27 There are no claims for taxes, brokerage commissions, finder's
fees or investment banking fees in connection with the
transactions contemplated by this Agreement.
20.28 Each of the Borrowers has been at all times, and presently is in
good standing with respect to, all governmental consents,
approvals, licenses, authorizations, permits, certificates,
inspections and franchises necessary to continue to conduct its
business as heretofore or proposed to be conducted by it and to
own or lease and operate its Properties as now owned or leased by
it, except for immaterial non-compliance, and except that the
registration of PolyVision Belgium with the Registry of Commerce
of Tongeren is still pending as of the date hereof.
20.29 Each of the Borrowers has duly complied, in all material respects
with, and its Properties, business operations and leaseholds are
in compliance in all material respects with, the provisions of
all national, state and local laws, rules and regulations
applicable to such Borrower, as applicable, its Properties or the
conduct of its business and there have been no citations, notices
or orders of noncompliance
19
issued to such Borrower under any such law, rule or regulation,
except for immaterial non-compliance.
20.30 Each of the Borrowers has established and maintains an adequate
monitoring system to insure that it remains in compliance with
all national, state and local laws, rules and regulations
applicable to it.
20.31 Neither of the Borrowers is a party or subject to any contract,
agreement, or charter or other corporate restriction, which
materially and adversely affects its business or the use or
ownership of any of its Properties.
20.32 Except for this Agreement and the Other KBC Loan Agreement,
neither of the Borrowers is a party or subject to any contract or
agreement which restricts its right or ability to incur
Indebtedness, none of which prohibit the execution of or
compliance with this Agreement or the other Loan Documents by any
of the Borrowers, as the case may be.
20.33 Except as disclosed in Exhibit 20.33, there are no actions,
suits, proceedings or litigation or investigations pending,
threatened, against or affecting any Borrower or their
Subsidiaries, as the case may be, or the business, operations,
Properties, prospects, profits or condition of any Borrower or
their Subsidiaries, as the case may be, involving partial loss or
liability in excess of $250,000 in the aggregate with respect to
the Borrowers and their Subsidiaries or which in any case is
reasonably likely to have a Material Adverse Effect.
20.34 Neither of the Borrowers is in default with respect to any order,
writ, injunction, judgment, decree or rule of any court,
governmental authority or arbitration board or tribunal.
20.35 No event has occurred and no condition exists which would, upon
or after the execution and delivery of this Agreement or any of
the Borrower's performance hereunder, constitute a Default or an
Event of Default.
20.36 Except as disclosed on EXHIBIT 20.36 hereto, neither of the
Borrowers has any Plan, and each of the Borrowers and each of
their respective Subsidiaries is in compliance with the
applicable legal requirements and regulations promulgated
thereunder with respect to each Plan, except where the failure to
so comply would not be reasonably likely to have a Material
Adverse Effect.
20.37 No fact or situation that could result in a material adverse
change in the financial condition of any of the Borrowers or
their Subsidiaries exists in connection with any Plan.
20
20.38 There exists no actual or threatened termination, cancellation or
limitation of, or any modification or change in, the business
relationship between any Borrower or any of its Subsidiaries or
between Alliance Europe and Aubecq and any customer or any group
of customers whose purchases individually or in the aggregate are
material to the business of such Borrower and its Subsidiaries,
taken as a whole, or with any material supplier, except in each
case, where the same would not be reasonably likely to cause a
Material Adverse Effect, and there exists no present condition or
state of facts or circumstances which would materially adversely
affect any Borrower, Alliance Europe or any of its Subsidiaries,
as the case may be, or prevent any Borrower, as the case may be,
from conducting such business after the consummation of the
transactions contemplated by this Agreement in substantially the
same manner in which it has heretofore been conducted.
20.39 Neither of the Borrowers is a party to any collective bargaining
agreement, and neither of the Borrowers or their Subsidiaries is
the subject of a bankruptcy or similar procedure or, to the best
of its respective knowledge, is in a condition which could or
should result in such a procedure.
20.40 There are no material grievances, disputes or controversies with
any union or any other organization of any employees of either
Borrower or their Subsidiaries, or threats of strikes, work
stoppages or any asserted pending demands for collective
bargaining by any union or organization, except those that would
not be reasonably likely to have a Material Adverse Effect.
20.41 The Acquisition has been consummated substantially in accordance
with the terms of the Purchase Documents.
20.42 Each Borrower has made appropriate analysis of the Projections of
each of its Subsidiary's current and future financial condition
and capacity, and has reasonable grounds to believe that such
Subsidiaries will be able to generate and distribute sufficient
dividends in order to enable such Borrower to comply with its
respective obligations hereunder. The Borrowers have ensured
that they will have sufficient support from PolyVision in order
to meet their obligations under the Loan Documents.
21. CONTINUOUS NATURE OF REPRESENTATIONS AND WARRANTEES
21.1 Each representation and warranty contained in this Agreement and
the other Loan Documents shall be continuous in nature and shall
remain accurate, complete and not misleading at all times during
the term of this Agreement, except for changes in the nature of
the business or operations of either Borrower that would render
the information in any exhibit attached hereto or to any other
Loan Document either
21
inaccurate, incomplete or misleading, so long as Lender has
consented to such changes or such changes are expressly permitted
by this Agreement.
22. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
22.1 All representations and warranties of each of the Borrowers
contained in this Agreement or any of the other Loan Documents
shall survive the execution, delivery and acceptance thereof by
Lender and the parties thereto and the closing of the
transactions described therein or related thereto.
PART IX - COVENANTS AND CONTINUING AGREEMENTS
23. AFFIRMATIVE COVENANTS
23.1 During the term of this Agreement, and thereafter for so long as
there are any Belgium Obligations and/or France Obligations, as
the case may be, outstanding, Borrowers covenant that, unless
otherwise consented to by Lender in writing, each Borrower shall:
(a) permit representatives of Lender and any person designated
by Lender, from time to time, as often as may be
reasonably requested, but only during normal business
hours, to visit and inspect the Properties of each
Borrower, inspect, audit and make extracts from its books
and records, and discuss with its officers, its employees
and its independent accountants, each Borrower's business,
assets, liabilities, financial condition, business
prospects and results of operations; Lender, if no Default
or Event of Default then exists, shall give the applicable
Borrower, as the case may be, reasonable prior notice of
any such inspection or audit;
(b) promptly notify Lender in writing, with a simultaneous
copy to Fleet Agent and each Fleet Lender, of the
occurrence of any event or the existence of any fact which
renders any representation or warranty in this Agreement
or any of the other Loan Documents inaccurate, incomplete
or misleading in any material respect.
(c) keep adequate records and books of account with respect to
its business activities in which proper entries are made
in accordance with generally accepted accounting
principles in effect for the country in which it is
located applied on a consistent basis, reflecting all its
financial transactions; and cause to be prepared and
furnished to Lender, with a simultaneous copy to Fleet
Agent and each of the Fleet Lenders, each of the following
(all to be prepared in accordance with generally accepted
accounting principles in effect for the country in which
it is located applied on a consistent basis,
22
unless a Borrower's certified public accountant concurs in
any change therein and such change is disclosed to Lender
and Fleet Agent and is consistent with generally accepted
accounting principles in effect for the country in which
it is located):
(i) not later than 90 days after the close of each
fiscal year of Parent, unqualified (except for a
qualification for a change in accounting
principles with which the accountant concurs)
audited financial statements of each of the
Borrowers and Subsidiaries as of the end of such
year, on a Consolidated and consolidating basis,
certified by a firm of independent certified
public accountants of recognized standing selected
by Borrowers, but reasonably acceptable to Lender,
together with a copy of any management letter
issued in connection therewith;
(ii) not later than 30 days after the end of each month
hereafter which is not a fiscal quarter end,
unaudited interim financial statements of each
Borrower as of the end of such month and for the
portion of each Borrower's fiscal year then
elapsed, on a Consolidated and consolidating
basis, certified by the principal financial
officer of such Parent as prepared in accordance
with generally accepted accounting principles in
effect for the country in which it is located
applied on a consistent basis, and fairly
presenting the consolidating and Consolidated
financial position and results of operations of
Parent and each Borrower for such month and period
subject only to changes from audit and year-end
adjustments and except that such statements need
not contain notes;
(iii) if requested at any time by Lender, within 10 days
after each delivery of financial statements
pursuant to clauses (i) and (ii) of this Article
23.1 during the first 8 months following the
Closing Date and on the date of each such delivery
thereafter, a management report:
(1) describing the operations and financial
condition of the Borrowers for the month
then ended and the portion of the current
fiscal year then elapsed (or for the fiscal
year then ended in the case of year-end
financials);
(2) setting forth in comparative form the
corresponding figures for the corresponding
periods of the previous fiscal year and the
corresponding figures from the most recent
Projections for the current fiscal year
delivered to Lender pursuant to this
Agreement; and
23
(3) discussing the reasons for any significant
variations;
the information above shall be presented in reasonable
detail and shall be certified on behalf of each Borrower
by the chief financial officer or a financial vice
president or "Gerant" of each Borrower, as the case may
be, to the effect that such information fairly presents
the results of operation and financial condition of each
Borrower, as the case may be, as at the dates and for the
periods indicated;
(iv) promptly after the sending or filing thereof, as
the case may be, copies of any proxy statements,
financial statements or reports which any of the
Borrowers has made available to its shareholders
and copies of any regular, periodic and special
reports or registration statements which any of
the Borrowers files with the competent companies
registry, national securities exchange and/or any
tax administration or any governmental authority;
(v) upon request by Lender, copies of any annual
report to be filed pursuant to the applicable
legal requirements in particular in connection
with each Plan; and
(vi) such other data and information (financial and
otherwise) as Lender, from time to time, may
reasonably request, bearing upon or related to the
Collateral or any Borrower's or Subsidiaries'
properties, financial condition or results of
operations.
23.2 Concurrently with the delivery of the financial statements
described in Article 23.1(c)(i), each of the Borrowers shall
forward to Lender, with a simultaneous copy to the Fleet Agent, a
copy of any accountants' letter or report to Borrowers'
management, and of any Borrower's management report, as the case
may be, that is prepared in connection with such financial
statements.
23.3 Concurrently with the delivery of the financial statements
described in Articles 23.1(c)(I) and 23.1(c)(i), or more
frequently if requested by Lender, each of the Borrowers shall
cause to be prepared and furnished to Lender, with a simultaneous
copy to the Fleet Agent and each of the Fleet Lenders, a
Compliance Certificate in the form of EXHIBIT 23.3 hereto
executed on behalf of each Borrower by the Chief Financial
Officer or a financial vice president or "Gerant" of such
Borrower.
23.4 Within ninety (90) days after the Closing Date, each Borrower on
behalf of itself shall obtain or Parent shall have caused to be
obtained on behalf of each Borrower and thereafter keep in effect
one or more interest rate Bank Hedge Agreements (the terms and
other provisions of all such Bank Hedge Agreements to be subject
to the
24
prior written consent of Lender) covering at least fifty percent
(50%) of the Belgium Term Loan and France Term Loan,
respectively, outstanding on the Closing Date for an aggregate
period of not less than three (3) years commencing on the Closing
Date.
23.5 Take all necessary measures in order to preserve and maintain the
Collateral until all Obligations are satisfied.
23.6 On the Lender's first request, take all necessary measures in
order to maintain the Loan Documents in full force and effect,
and sign all documents as and when necessary for this purpose and
for the purpose of the enforcement of the Lender's Rights under
the Loan Documents.
23.7 PolyVision France agrees that it shall cause the pledge granted
by it over the shares of Aubecq to secure Aubecq's obligations to
KBC Bank N.V. under the Other KBC Loan Agreement, and if
PolyVision France is financially able it will promptly execute
and delivery a guaranty to such effect.
24. NEGATIVE COVENANTS
24.1 During the term of this Agreement, and thereafter for so long as
there are any France Obligations or Belgium Obligations
outstanding, each of the Borrowers, severally, covenants that,
unless otherwise consented to by Lender in writing, no Borrower
shall, nor shall it permit any Subsidiary (to the extent that a
limitation is expressly made applicable to a Subsidiary in any
particular subsection(s) of this Article 24), unless otherwise
consented to by Lender in writing (or, with respect to any
Subsidiary, if permitted under the Other KBC Loan Agreement), to:
(a) merge or consolidate with any Person, or acquire all or
any substantial part of the Properties of any Person,
except for a transfer of the assets of any Borrower to its
parent company, any merger or consolidation of any
Borrower with any of their respective Subsidiaries, any
merger of any such Subsidiary into a wholly-owned
Subsidiary or any transfer of the assets of any Subsidiary
of any Borrower to the parent of such Subsidiary; PROVIDED
that Lender shall have received at least thirty (30) days'
written notice of any of the foregoing and Lender shall be
satisfied in its sole discretion, as evidenced by its
written consent, that there would be no adverse impact on
Lender's rights in respect of the Collateral or its rights
and remedies generally hereunder or in respect of any
collateral or its rights and remedies generally under the
Other KBC Loan Agreement;
(b) make any loans or other advances of money (other than for
salary, travel advances, advances against commissions and
other similar advances in the ordinary course of business)
to any Person, except as permitted hereby;
25
(c) create, incur, assume, or suffer to exist any
Indebtedness, except:
(i) Obligations owing to Lender under this Agreement
or hereafter consented to by Lender;
(ii) Subordinated Debt existing on the date of this
Agreement or hereafter consented to by Lender;
(iii) accounts payable to trade creditors and current
operating expenses (other than for Money Borrowed)
which are not aged more than 120 days from billing
date or more than (30) days from the due date, in
each case incurred in the ordinary course of
business and paid within such time period, unless
the same are being actively contested in good
faith and by appropriate and lawful proceedings
and such Borrower shall have set aside such
reserves, if any, with respect thereto as are
required by generally accepted accounting
principles in effect for the country in which it
is located and deemed adequate by such Borrower,
as the case may be, and its independent
accountants;
(iv) Obligations to pay Rentals permitted by Article
31.1(k);
(v) contingent liabilities arising out of endorsements
of checks and other negotiable instruments for
deposit or collection in the ordinary course of
business;
(vi) Indebtedness in respect of interest rate swap,
cap, or collar agreements, interest rate future or
option contracts, currency swap agreements,
currency future or option contractors or similar
agreements designed to hedge against fluctuations
in interest rates incurred in the ordinary course
of business and consistent with prudent business
practice;
(vii) to the extent not mentioned above, accruals in the
ordinary course of business not for Money
Borrowed;
(viii) guaranties of Indebtedness permitted hereunder;
(ix) unsecured indebtedness incurred for the purpose of
paying taxes, vacation pay and Christmas bonuses
to employees, in an amount not to exceed BEF
18,278,750.00 in the aggregate with respect to the
Borrowers and their Subsidiaries at any time
outstanding;
26
(x) non-interest bearing grants from any governmental
entity shown as a liability on the balance sheet
but not required to be repaid;
(xi) unsecured indebtedness not included in paragraphs
(i) through (xii) above which does not exceed at
any time the sum of USD250,000.00 in the aggregate
for Borrowers and PolyVision and its other
Subsidiaries;
(xii) loans made by any Borrower or by Alliance Europe
to PolyVision or any of its U.S. Subsidiaries
after the Closing Date in an aggregate outstanding
amount with respect to all of the foregoing at any
one time not to exceed BEF36,557,500.00, PROVIDED,
THAT, prior to making any such loan Alliance
Europe or the applicable Borrower establishes to
the satisfaction of Lender that (i) its Board of
Directors or GERANT has determined that Alliance
Europe or the applicable Borrower will continue to
be Solvent after making such loan and (ii) such
loans do not infringe any applicable law, and
conform to the Borrower's corporate interest, and
PROVIDED FURTHER THAT Alliance Europe will have
excess Availability of not less than
BEF36,557,500.00 after giving effect to each such
loan by Alliance Europe;
(xiii) Guarantees by PolyVision of obligations of the
Borrowers and their Subsidiaries, guarantees by
the Borrowers (if such guarantees do not infringe
any applicable law) of obligations of Wholly-Owned
Subsidiaries;
(d) except for transactions otherwise expressly permitted
hereunder, enter into, or be a party to enter into or be a
party to, any transaction (including the payment of
management fees) with any Affiliate or stockholder of any
Borrower and except in the ordinary course of and pursuant
to the reasonable requirements of such Borrower's
business, as the case may be, and upon fair and reasonable
terms which are fully disclosed to Lender and are no less
favorable to the applicable Borrower, as the case may be,
than would obtain in a comparable arm's length transaction
with a Person not an Affiliate or stockholder of such
Borrower, as the case may be; PROVIDED, THAT Borrowers and
their Subsidiaries may pay management fees to PARENT in an
aggregate amount not to exceed BEF36,557,500 per annum and
Subsidiaries of a Borrower may pay management fees, if
appropriate, and in full compliance with all applicable
laws and regulations, to their respective shareholder
corporation in an aggregate amount not to exceed
USD300,000.00 per annum for each such Subsidiary; provided
further, that profits arising from such management fees
shall be used exclusively for the
27
repayment (to the extent then due and payable) of the
Borrowers' Obligations under the Loan Documents;
(e) create or suffer to exist any Lien upon any of its
Property, income or profits, whether now owned or
hereafter acquired, except:
(i) Liens at any time granted in favor of Lender;
(ii) Liens for taxes, assessments or governmental
charges (excluding any Lien imposed pursuant to
any applicable pension laws) not yet due, or being
contested in the manner described in Article 20.26
hereof, but only if the existence of such Lien
would not be likely to have a Material Adverse
Effect;
(iii) Liens arising in the ordinary course of business
of a Borrower by operation of law or Regulation,
but only if payment in respect of any such Lien is
not at the time required and such Liens do not, in
the aggregate, materially detract from the value
of the Property of such Borrower, or materially
impair the use thereof in the operation of such
Borrower's business;
(iv) Liens incurred or deposits made in the ordinary
course of business:
(1) in connection with worker's compensation,
social security, unemployment insurance and
other like laws; or
(2) in connection with sales contracts, leases,
statutory obligations, work in progress
advances and other similar obligations not
incurred in connection with the borrowing
of money or the payment of the deferred
purchase price of property;
(v) Liens with respect to judgments, attachments and
the like which do not constitute Events of Default
hereunder;
(vi) Liens arising from leases or subleases granted to
others which do not interfere in any material
respects with the business of a Borrower or any of
its Subsidiaries;
(vii) such other Liens as Lender may hereafter approve
in writing;
(f) make any payment of any part or all of any Subordinated
Debt or take any other action or omit to take any other
action in respect of any Subordinated
28
Debt, except in accordance with the Subordination
Agreement relative thereto;
(g) declare or make any Distributions to their respective
shareholders without the prior written consent of Lender,
PROVIDED, THAT any Subsidiary of a Borrower may make
Distributions to its Borrower shareholder in accordance
with applicable law to enable such Borrower to make
payments payable under this Agreement; and Alliance
Graphics and Pentagon may make Distributions to Alliance
Europe and Alliance Europe may make Distributions to
PolyVision Belgium, and Aubecq may make Distributions to
PolyVision France (i) all of the foregoing of which are
used (except to the extent otherwise permitted in clause
(g)(ii) and/or (g)(iii) below) to make Distributions to
PolyVision as necessary (A) subject to the subordination
provisions contained in the Subordinated Debt, to enable
PolyVision to pay the regularly-scheduled interest
payments on the Subordinated Debt, (B) to pay Obligations
to Lender Parties under the Fleet Credit Agreement, and/or
(C) to enable PolyVision to pay dividends on its
outstanding preferred stock as and to the extent permitted
by the Fleet Credit Agreement, or (ii) in the case of
Aubecq's Distributions, to pay indebtedness of PolyVision
France to Lender or (iii) in the case of distributions to
PolyVision Belgium, to pay indebtedness of PolyVision
Belgium;
(h) make Capital Expenditures;
(i) sell, lease or otherwise dispose of any of its Properties,
including any disposition of Property as part of a sale
and leaseback transaction, to or in favor of any Person.
(j) issue equity or debt instruments or additional shares of
its share capital or reduce its share capital;
(k) make or have any Restricted Investment;
(l) become a lessee under any operating lease (other than a
lease under which any Borrower or PolyVision or any of its
other Subsidiaries, as the case may be, is lessor) of
Property, including, without limitation, real estate
operating leases;
(m) fail to charge an appropriate market rate of interest on
loans to Affiliates;
(n) permit its respective Subsidiary's(ies) share capital to
be reduced by redemption of rights or otherwise, and
neither Borrower shall fail to cause all
29
new shares issued by any such Subsidiary to be pledged in
favor of Lender in form and substance satisfactory to the
Lender;
(o) purchase shares or interests in other companies or
entities or engage in activities other than holding the
shares, respectively, in Alliance Europe (PolyVision
Belgium) and Aubecq (PolyVision France) without Lender's
prior written consent;
(p) amend, supplement or terminate the management agreement
referred in Article 26 hereof without the prior written
consent of Lender;
(q) notwithstanding any provision to the contrary contained in
this Article 24, incur any liabilities to any third party
(other than related to the Obligations owing under this
Agreement or the Other KBC Loan Agreement or to Affiliates
(as and to the extent permitted hereunder) or taxes or
customary amounts required for maintenance of business
existence) even if otherwise permitted hereunder or
acquire assets after the date hereof having an aggregate
value in excess of USD250,000.00 even if otherwise
permitted hereunder, in each case unless Lender shall have
received fifteen Business Days prior notice thereof in
order to enable Lender to confirm or obtain security from
the applicable Borrower of a type or types and perfected
in a manner and upon terms and conditions satisfactory to
Lender in its sole discretion;
(r) amend its by-laws or articles of association ("statuts");
(s) change or modify its corporate purpose; or
(t) allow or permit its Subsidiaries to engage in activities
which could have a Material Adverse Effect on the
Borrowers or which could reasonably be expected to
adversely affect the Collateral or could adversely affect
the rights of Lender under the Loan Documents.
(u) establish or maintain any Bank accounts at any financial
institution other than Lender.
25. SPECIFIC FINANCIAL COVENANTS
25.1 During the term of this Agreement, and thereafter for so long as
there are outstanding any Belgium Obligations or France
Obligations to Lender, Borrowers covenant that they will be in
full compliance with each of the financial covenants set forth on
EXHIBIT 25.1 hereto.
30
25.2 If the generally accepted accounting principles in effect for the
country in which any Borrower is located change from the basis
used in preparing the audited financial statements delivered to
Lender by Borrowers on or before the Closing Date, Borrowers will
provide Lender with certificates demonstrating compliance with
such financial covenants and will include, at the election of
Borrowers or upon the request of Lender, calculations setting
forth the adjustments necessary to demonstrate how Borrowers are
in compliance with such financial covenants based upon the
generally accepted accounting principles in effect for the
country in which they are located as in effect on the Closing
Date.
PART X - CONDITIONS PRECEDENT
26. CONDITIONS PRECEDENT
26.1 Notwithstanding any other provision of this Agreement or any of
the other Loan Documents, and without affecting in any manner the
rights of Lender under the other sections of this Agreement,
Lender shall not be required to make any Loan under this
Agreement unless and until each of the following conditions has
been and continues to be satisfied:
(a) Lender shall have received, in form and substance
satisfactory to Lender and its counsel, a duly executed
copy of this Agreement and the other Loan Documents,
together with such additional documents, instruments and
certificates as Lender and its counsel shall require in
connection therewith from time to time, all in form and
substance satisfactory to Lender and its counsel;
(b) no Default or Event of Default shall exist;
(c) each of the conditions precedent set forth in the Loan
Documents shall have been satisfied;
(d) no action, proceeding, investigation, regulation or
legislation be pending or threatened or proposed before
any court, governmental agency or legislative body to
enjoin, restrain or prohibit, or to obtain damages in
respect of, or which is related to or arises out of this
Agreement or the consummation of the transactions
contemplated hereby;
(e) the Acquisition shall have been consummated substantially
in accordance with the terms of the Purchase Documents;
(f) the due execution and the entry into full force and effect
of the Fleet Credit Agreement, the Other KBC Loan
Agreement and of the Senior Subordinated
31
Loan Agreement (as defined in the Fleet Credit Agreement)
and all related documents and agreements;
(g) the issuance by Fleet of the Belgium Standby Letter of
Credit and of the France Standby Letter of Credit;
(h) confirmation that the security interests, mortgages, liens
and pledges in respect of the Other KBC Loan Agreement are
in full force and effect and secure all obligations
thereunder after giving effect to the execution and
delivery of such Other KBC Loan Agreement;
(i) the due execution of all documents needed to create or
maintain the security interests pursuant to Article 19 and
submission to Lender of satisfactory evidence of the due
perfection of the security interests referred to in
Article 19, creating or maintaining the security interests
referred to in Article 19;
(j) submission to Lender, if required by Lender, of
satisfactory evidence that customary business interruption
insurance has been taken out by each of the Borrower's
Subsidiaries; and
(k) the issuance by Xxxxx, Star Busmann, Hanotiau in Belgium
and ASA-Avocats Associes in France of legal opinions in
form and substance satisfactory to Lender, and to the
extent requested by Fleet, Fleet shall be entitled to rely
thereupon (to the extent, in respect of the opinion of
Xxxxx, Star, Busmann and Hanotiau, specified in the letter
of said firm dated November 20, 1998).
PART XI - EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT
27. EVENTS OF DEFAULT
27.1 In accordance with, and without prejudice to the provisions of
Article 13 of the Credit Regulations, the occurrence of one or
more of the following events shall constitute an "EVENT OF
DEFAULT":
(a) any of the Borrowers shall fail to pay (i) any installment
of principal owing on the Term Credit Facility on the due
date of such installment, or (ii) any interest or premium,
if any, due on any Loan under the Term Credit Facility and
such failure shall continue for a period of 5 days;
(b) any of the Borrowers shall fail to pay any of their
Obligations not covered by Article 27.1(a) on the due date
thereof (whether due at stated maturity, on
32
demand, upon acceleration or otherwise) and such failure
shall continue for a period of 5 days;
(c) any representation, warranty or other statement made or
furnished to Lender by or on behalf of any Borrower in
this Agreement, any of the other Loan Documents or any
instrument, certificate or financial statement furnished
in compliance with or in reference thereto or any
representation, warranty or other statement made or
furnished in the Other KBC Loan Agreement in relation to
the Borrowers' Subsidiaries proves to have been false or
misleading in any material respect when made or furnished
or when reaffirmed;
(d) any Borrower shall fail or neglect to perform, keep or
observe any covenant contained in Articles 23.1(a),
23.1(c)(i), (ii), (iii) or (vi), 23.5, 23.6, 24 or 25
hereof on the date that such covenant is required to be
performed, kept or observed or contained in 23.1(c)(iv)
and (v) within 10 days following the date that such
covenant is required to be performed, kept or observed;
(e) any Borrower shall fail or neglect to perform, keep or
observe any covenant contained in this Agreement (other
than a covenant which is dealt with specifically elsewhere
in Article 27.1 hereof) and the breach of such other
covenant is not cured within 30 days after the sooner to
occur of Borrowers' receipt of notice of such breach from
Lender or the date on which such failure or neglect first
becomes known to any officer of any Borrower;
(f) any event of default shall occur under, or any Borrower
shall default (after applicable notice or grace periods,
if any) in the performance or observance of any material
term, covenant, undertaking, obligation, condition or
agreement contained in, or any representation, warranty or
other statement by any Borrower or any Subsidiary is or
becomes false or misleading in any material respect which
is contained in, any of the Security Documents, the Other
Agreements or the Purchase Documents or the Fleet Credit
Agreement or the Other KBC Loan Agreement and such default
shall continue beyond any applicable grace period;
(g) there shall occur any default or event of default on the
part of any Borrower or PolyVision, or any of its
Subsidiaries under any agreement, document or instrument
to which such Borrower or PolyVision, or any of its
Subsidiaries, as the case may be, is a party or by which
such Borrower or PolyVision, or any of its Subsidiaries or
any of their respective Property is bound, creating or
relating to any Indebtedness for an aggregate principal
amount in excess of USD500,000.00 (other than the
Obligations), if the payment or maturity of such
Indebtedness is accelerated or is permitted to be
accelerated in
33
consequence of such event of default or demand for payment
of such Indebtedness is made or the holder of any such
Indebtedness is permitted to cause such Indebtedness to
mature; or any such Indebtedness shall be declared to be
due and payable or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment
or redemption), purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Indebtedness
shall be required to be made, in each case prior to the
stated maturity thereof;
(h) any material loss, theft, damage or destruction of any
portion of the Collateral covered by this Agreement or the
Other KBC Loan Agreement or the Fleet Credit Agreement
having a fair market value of USD500,000.00, in the
aggregate for Borrowers and Parent and its other
Subsidiaries, if not fully covered (subject to ordinary
deductibles) by insurance;
(i) any Borrower and/or its Subsidiaries shall cease to be
Solvent or shall suffer the appointment of a receiver,
trustee or administrator in bankruptcy, custodian or
similar fiduciary, or shall make an assignment for the
benefit of creditors, or any petition for an order for
relief shall be filed by or against any Borrower under the
applicable bankruptcy laws (if against any Borrower, the
continuation of such proceeding for more than 60 days), or
any Borrower shall make any offer of settlement, extension
or composition to their respective unsecured creditors
generally;
(j) there shall occur a cessation of a substantial part of the
business of any Borrower and/or its Subsidiary for a
period which significantly affects such Borrower's or
Subsidiary's capacity, as the case may be, to continue its
business, on a profitable basis for a period in excess of
30 consecutive days; or any Borrower shall suffer the loss
or revocation of any material license or permit now held
or hereafter acquired by such Borrower which is necessary
to the continued or lawful operation of any material
portion of its business; or any Borrower shall be
enjoined, restrained or in any way prevented by court,
governmental or administrative order from conducting all
or any material part of its business affairs for a period
in excess of 30 consecutive days; or any material lease or
agreement pursuant to which such Borrower leases, uses or
occupies any Property shall be canceled or terminated
(other than by reason of casualty) prior to the expiration
of its stated term, and adequate or comparable alternate
premises are not secured within 30 days; or any material
portion of the Collateral shall be taken through
condemnation or the value of such Property shall be
impaired through condemnation, unless replacement
Collateral of comparable value is obtained within 30 days
after the taking of the condemned Collateral;
34
(k) a Change of Control;
(l) any of the Borrowers, or any Subsidiary or Affiliate of
any of them, shall challenge or contest in any action,
suit or proceeding the validity or enforceability of this
Agreement or any of the other Loan Documents, the legality
or enforceability of any of the Obligations or the
perfection or priority of any Lien granted to Lender;
(m) any money judgments, writ of attachment or similar
processes are issued or rendered against any Borrower, or
any of their respective Property in an amount of
BEF3,655,750.00 or more for any single judgment,
attachment or process or BEF9,139,375.00 or more for all
such judgments, attachments or processes in the aggregate,
in each case in excess of any applicable insurance
(subject to ordinary deductibles) with respect to which
the insurer has admitted liability (or defended subject to
normal reservation of rights) and which judgment,
attachment or process is not stayed, released or
discharged within 30 days; or
(n) any Loan Document or the Other KBC Loan Agreement and
related documents cease to be in full force and effect, or
is not enforceable at any time or from time to time under
any applicable law.
28. ACCELERATION OF THE OBLIGATIONS
28.1 Without in any way limiting the right of Lender to demand payment
of any portion of the Obligations payable on demand in accordance
with Article 12 hereof, upon or at any time after the occurrence
and during the continuance of an Event of Default, all or any
portion of the Obligations shall, at the option of Lender and
without presentment, demand, protest or further notice by Lender,
become at once due and payable and Borrowers shall forthwith pay
to Lender the full amount of such Obligations, PROVIDED, THAT
upon the occurrence of an Event of Default specified in Article
27.1(i) hereof, all of the Obligations for which such Borrower is
liable hereunder or under the Security Documents or under the
Other Agreements shall become automatically due and payable
without declaration, notice or demand by Lender, including any
"mise en demeure."
29. OTHER REMEDIES
29.1 Upon the occurrence and during the continuance of an Event of
Default, Lender may exercise from time to time all of the rights
and remedies of a secured party under other applicable law, and
all other legal and equitable rights to which Lender may be
entitled, all of which rights and remedies shall be cumulative
and shall be in addition
35
to any other rights or remedies contained in this Agreement or
any of the other Loan Documents, and none of which shall be
exclusive.
30. REMEDIES CUMULATIVE; NO WAIVER
30.1 All covenants, conditions, provisions, warranties, guaranties,
indemnities, and other undertakings of any Borrowers contained in
this Agreement and the other Loan Documents, or in any document
referred to herein or contained in any agreement supplementary
hereto or in any schedule or in any Guaranty Agreement given to
Lender or contained in any other agreement between Lender and any
of the Borrowers, heretofore, concurrently, or hereafter entered
into, shall be deemed cumulative to and not in derogation or
substitution of any of the terms, covenants, conditions, or
agreements of any of the Borrowers herein contained.
30.2 The failure or delay of Lender to require strict performance by
any of the Borrowers of any provision of this Agreement or to
exercise or enforce any rights, Liens, powers, or remedies
hereunder or under any of the aforesaid agreements or other
documents or security or Collateral shall not operate as a waiver
of such performance, Liens, rights, powers and remedies, but all
such requirements, Liens, rights, powers, and remedies shall
continue in full force and effect until all Loans and all other
Obligations owing or to become owing from Borrowers, to Lender
shall have been fully satisfied.
30.3 None of the undertakings, agreements, warranties, covenants and
representations of the Borrowers contained in this Agreement or
any of the other Loan Documents and no Event of Default by
Borrowers under this Agreement or any other Loan Documents shall
be deemed to have been suspended or waived by Lender, unless such
suspension or waiver is by an instrument in writing specifying
such suspension or waiver and is signed by a duly authorized
representative of Lender and directed to the Borrowers.
PART XII - MISCELLANEOUS
31. INDEMNITY
31.1 Borrowers agree to indemnify Lender and (in particular as a
result of the subrogation of Fleet Agent and each Fleet Lender in
or to Lender's rights of the transfer of such rights herein and
under the Loan Documents), Fleet Agent and each Fleet Lender and
to hold Lender, Fleet Agent and each Fleet Lender harmless from
and against any liability, loss, damage, suit, action or
proceeding which may be suffered or incurred by Lender or any
Fleet Lender (including reasonable attorneys fees and legal
expenses) as the result of the Borrowers' failure to observe,
perform or discharge the Borrowers' duties hereunder.
36
31.2 In addition, Borrowers shall defend Lender, Fleet Agent and each
Fleet Lender against and save them harmless from all claims of
any Person with respect to the Collateral (except those resulting
from the gross negligence or intentional misconduct of Lender or
Fleet Agent or a Fleet Lender, as applicable, as determined by a
judgment of a court of competent jurisdiction after final appeal
or expiration of time for appeal).
32. ASSIGNMENT
32.1 Borrowers may not sell, assign or transfer any interest in this
Agreement, any of the other Loan Documents, or any of the
Obligations, or any portion thereof, including, without
limitation, the Borrowers' rights, title, interests, remedies,
powers, and duties hereunder or thereunder.
33. SEVERABILITY
33.1 Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
34. SUCCESSORS AND ASSIGNS
34.1 This Agreement, the Other Agreements and the Security Documents
shall be binding upon the successors and assigns of Borrowers and
Lender and shall inure to the benefit of Lender and its
successors and assigns.
35. CUMULATIVE EFFECT; CONFLICT OF TERMS
35.1 The provisions of the Other Agreements and the Security Documents
are hereby made cumulative with the provisions of this Agreement.
35.2 Except as otherwise provided in any of the other Loan Documents
by specific reference to the applicable provision of this
Agreement, if any provision contained in this Agreement is in
direct conflict with, or inconsistent with, any provision in any
of the other Loan Documents, the provision contained in this
Agreement shall govern and control.
35.3 The Term Credit Facility will be governed by the terms and
conditions and by the special provisions set out in the Credit
Regulations, which form an integral part of this Agreement, save
to the extent that they are modified or amended, whether
37
expressly or by implication, by the other provisions of this
Agreement. In the Credit Regulations the term "credit" refers,
to the Term Credit Facility, unless the context requires
otherwise.
36. EXECUTION IN COUNTERPARTS
36.1 This Agreement 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 counterparts taken together shall
constitute but one and the same instrument.
37. NOTICES
37.1 Except as otherwise provided herein, all notices, requests and
demands to or upon a party hereto, to be effective, shall be in
writing and shall be sent by certified or registered mail, return
receipt requested, by personal delivery against receipt, by
overnight courier or by facsimile and, unless otherwise expressly
provided herein, shall be deemed to have been validly served,
given or delivered immediately when delivered against receipt,
three Business Days after deposit in the mail, postage prepaid,
or two days after delivery to an overnight courier properly
addressed or, in the case of facsimile notice, when sent,
addressed as follows:
If to Lender: KBC Bank NV
Xxxxxxxxxxxxx 00
0000 Xxxx
Attention: Wim Leemen, Branch Manager
Facsimile No.: 00-00-00-00-00
With a copy to: KBC Bank N.V.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx
Attention: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
and to: Fleet National Bank
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
38
With a copy to: Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx-Xxxxxxxxx
Facsimile No.: (000) 000-0000
Xxxxxxxxxxx Xxxxx & Xxxxxxxx XXX
Xxxxxx Xxxxxx 000
0000 Xxxxxxxx Xxxxxxx
Attention: Didier de Vliegher
Facsimile No.: 011-32-2-626-05-10
Xxxxxx Xxxxx &
Xxxxxxx, 37 Avenue
Pierre 0xx xx Xxxxxx,
00000 Xxxxx, Xxxxxx
Attention: Xxxxxxx Xxxxx
Facsimile No.: 011-331 47 23 9612
If to Borrowers: x/x Xxxxxxxx Xxxxxx
XX-Xxxx 0X, Xxxxxxxxxx 56, 3600 Genk
Attention: X. Xxxx
Facsimile No.: 00-00-00-00-00
PolyVision France Eurl
Xxxxxxx (Nord)
Rue des Deportes
R.C.S. Valenciennes, France
With a copy to: Xxxxxxxxx Traurig
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Xxxxx, Star Busmann, Xxxxxxxx
Xxxxxx Xxxxxx 000 Xxxxxxxxxx
X-0000 Xxxxxxxx
Belgium
Attention: Bruno Duquesne
Facsimile No.: 000-000-000-00-00
and
39
ASA-Avocats Associes
44, Xxx Xxxxxxxx xxx
00000 Xxxxx
Xxxxxx
Attention: Thierry Gontard
Facsimile No.: : 011-33-1-4070-1832
or to such other address as each party may designate for itself
by notice given in accordance with this Article 37; PROVIDED,
HOWEVER, THAT any notice, request or demand to or upon Lender
pursuant to Article 11 or 18.2 hereof shall not be effective
until received by Lender.
38. CREDIT INQUIRIES
38.1 Borrowers hereby authorize and permit Lenders and the Fleet Agent
to respond to usual and customary credit inquiries from third
parties (other than persons engaged in similar or comparable
businesses to those of Borrowers) concerning Borrowers.
39. TIME OF ESSENCE
39.1 Time is of the essence in respect of this Agreement, the Other
Agreements and the Security Documents.
40. ENTIRE AGREEMENT
40.1 This Agreement and the other Loan Documents, together with all
other instruments, agreements and certificates executed by the
parties in connection therewith or with reference thereto, embody
the entire understanding and agreement between the parties hereto
and thereto with respect to the subject matter hereof and thereof
and supersede all prior agreements, understandings and
inducements, whether express or implied, oral or written. There
are no unwritten oral agreements between the parties. Any
amendment or waiver of any provision hereof must be in writing
signed by all parties to be charged therewith, subject to the
terms of the Letter of Credit Agreement.
41. INTERPRETATION
41.1 No provision of this Agreement or any of the other Loan Documents
shall be construed against or interpreted to the disadvantage of
any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have
structured or dictated such provision.
40
42. CONFIDENTIALITY
42.1 Lender shall hold all non-public information obtained pursuant to
the requirements of this Agreement in accordance with Lender's
customary procedures for handling confidential information of
this nature and in accordance with safe and sound banking
practices and in any event may make disclosure reasonably
required by a prospective participant or assignee in connection
with the contemplated participation or assignment or as required
or requested by any governmental authority or representative
thereof or pursuant to legal process and shall require any such
participant or assignee to agree to comply with this Article 42;
PROVIDED, THAT Lender may disclose any such non-public
information available to the Fleet Agent and the Fleet Lenders.
43. GOVERNING LAW; CONSENT TO FORUM
43.1 This agreement has been negotiated, executed and delivered in and
is made in Brussels, Belgium.
43.2 In accordance with Article 40 of the Credit Regulations, this
Agreement is governed by, and shall be construed in accordance
with, the laws of Belgium, without reference to its conflict of
law rules.
43.3 For the benefit of Lender, all the parties agree that the courts
of Brussels (Belgium) and of Tongeren (Belgium) are to have
jurisdiction to settle any disputes which may arise out of or in
connection with this Agreement, and for such purpose all the
parties submit to the jurisdiction of such courts.
43.4 Each of the Borrowers expressly submits and consents in advance
to such jurisdiction in any action or suit commenced in any such
court, and each of the Borrowers hereby waives any objection
which it may have based upon lack of personal jurisdiction,
improper venue or FORUM NON CONVENIENS and hereby consents to the
granting of such legal or equitable relief as is deemed
appropriate by such court.
41
IN WITNESS WHEREOF, this Agreement has been duly executed in Brussels, Belgium,
on the day and year specified at the beginning of this Agreement.
WITNESS: POLYVISION BELGIUM NV
/s/ Xxxxxxx Wahsager By /s/ Bragi X. Xxxxx
------------------------------ ----------------------------
Its Director
----------------------------
/s/ Xxxx X. Xxxxx
------------------------------
POLYVISION FRANCE EURL
/s/ Xxxx Xxxxxx By /s/ Bragi X. Xxxxx
------------------------------ ----------------------------
Its Director
----------------------------
KBC BANK N.V.
By /s/ Xxx Xxxxxx
----------------------------
Its Branch Manager
----------------------------
42
APPENDIX A
GENERAL DEFINITIONS
When used in the Credit Facility Agreement dated as of 20 November 1998, by and
among (1) POLYVISION BELGIUM NV, (2) POLYVISION FRANCE EURL and (3) KBC BANK
N.V., as Lender, the following terms shall have the following meanings (terms
defined in the singular to have the same meaning when used in the plural and
vice versa):
ACQUISITION - the acquisition by PolyVision of all of the issued and
outstanding stock of Alliance International Group, Inc., a Georgia corporation,
and the acquisition by PolyVision Belgium of all (other than directors'
qualifying shares) of the issued and outstanding stock of Alliance Europe and
the acquisition by PolyVision France of 9,620 shares in Aubecq's share capital,
pursuant to the Purchase Documents, including, without limitation, through
"ORDRES DE MOUVEMENT" as far as French law is concerned relating to Aubecq's
shares.
BIBOR Period Request- a request for an advance made in accordance with the
provisions of Article 11 of the Agreement.
AFFILIATE - a Person (other than a Subsidiary):
(a) which directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, a Person;
(b) which beneficially owns or holds 5% or more of any class of the Voting
Stock of a Person; or
(c) 5% or more of the Voting Stock (or in the case of a Person which is not a
corporation, 5% or more of the equity interest) of which is beneficially
owned or held by a Person or a Subsidiary of a Person.
Without limiting the foregoing, Borrowers, PolyVision and each of PolyVision's
other Subsidiaries shall all be deemed to be Affiliates of each other.
AGREEMENT - the Credit Facility Agreement referred to in the first sentence of
this APPENDIX A, including all Appendices and Exhibits thereto.
AIG - Alliance International Group, Inc., a Delaware corporation, and the sole
stockholder of Alliance Europe prior to the consummation of the Acquisition,
and Alliance International Group, Inc. is intended to merge with and into
PolyVision on the Closing Date.
ALLIANCE EUROPE - Alliance Europe NV, a Belgium limited liability company.
Appendix A-1
ALLIANCE GRAPHICS - Alliance Graphics NV, a Belgium limited liability company.
APPLICABLE MARGIN - the percentages set forth below with respect to the BIBOR
Term Portions determined pursuant to the last paragraph of this definition by
reference to the Consolidated Debt to EBITDA Ratio at such time, as set forth
below:
APPLICABLE MARGIN FOR BIBOR TERM PORTIONS
Applicable Margin for
Consolidated Debt to EBITDA Ratio BIBOR Term Portions
--------------------------------- -------------------
Equal to or greater than 5.0 to 1.0 3%
Equal to or greater than 4.5 to 1.0 but
less than 5.0 to 1.0 2.75%
Equal to or greater than 4.0 to 1.0 but
less than 4.5 to 1.0 2.50%
Less than 4.0 to 1.0 2.25%
The Applicable Margin for each BIBOR Term Portion shall be determined by
reference to the Consolidated Debt to EBITDA Ratio which shall be determined
five (5) Business Days after the date on which Lender receives financial
statements pursuant to Article 23.1(c)(i) or (ii) and a certificate of the chief
financial officer or any financial vice president of PolyVision and the
Borrowers demonstrating the Consolidated Debt to EBITDA Ratio. If the Borrowers
have not submitted to Lender the information described above as and when
required under Article 23.1(c)(i) or (ii), as the case may be, the Applicable
Margin shall be as determined by Lender in its reasonable discretion (upon
consultation and agreement with the Fleet Agent and taking into account, among
other things, the Consolidated Debt to EBITDA Ratio theretofore in effect) for
so long as such information has not been received by Lender. The Applicable
Margin shall be adjusted, if applicable, as of the first day of the month
following the date of determination described in the two preceding sentences.
In the event that the financial statements received pursuant to Article
23.1(c)(i) indicate that the Applicable Margin determined on the basis of
financial statements theretofore received pursuant to Article 23.1(c)(i) is
lower than the Applicable Margin that would have been determined on the basis of
the Article 23.1(c)(i) financial statements, the Applicable Margin shall be
adjusted retroactively for the relevant period.
ASSET DISPOSITION - the disposition of any or all of the fixed assets of any
Borrower whether by sale, lease, transfer, loss, damage, destruction,
condemnation or otherwise; PROVIDED, HOWEVER, that for purposes of Article 13.1,
the term "Asset Disposition" shall not include any sale, lease, transfer or
other disposition of Inventory in the ordinary course of business.
AUBECQ - Emailleries de Blanc Misseron, A. Aubecq SA., a french limited
liability company.
Appendix A-2
BANK HEDGE AGREEMENT means any interest rate Hedge Agreement required or
permitted under Article 23.4 that is entered into by and between any Borrower
(or Parent on behalf of any Borrower) and any of Lender, Fleet Agent or any
Fleet Lender or any affiliate thereof.
BELGIUM OBLIGATIONS - all Loans and all other advances, debts, liabilities,
obligations, reimbursement obligations, covenants and duties, together with all
interest, fees and other charges thereon, owing, arising, due or payable from
Borrowers to Lender of any kind or nature, present or future, whether or not
evidenced by any note, guaranty or other instrument, arising under the Agreement
or any of the other Loan Documents, whether direct or indirect, absolute or
contingent, primary or secondary, due or to become due, now existing or
hereafter arising.
BELGIUM TERM CREDIT FACILITY - as defined in Article 2.1.
BELGIUM TERM LOAN - as defined in Article 2.1.
BIBOR INTEREST PAYMENT DATE - with respect to any BIBOR Term Portion, the last
day of the applicable BIBOR Period.
BIBOR PERIOD - any period of one (1), two (2), three (3) or six (6) months
commencing on a Business Day, selected as provided in Article 11; PROVIDED,
however that no BIBOR Period shall extend beyond the final scheduled principal
installment due hereunder, unless Borrowers and Lender have agreed to an
extension of the final maturity date beyond the expiration of the BIBOR Period
in question and that, with respect to any BIBOR Term Portion, no applicable
BIBOR Period shall extend beyond the scheduled installment payment date for such
BIBOR Term Portion. If any BIBOR Period so selected shall end on a date that is
not a Business Day, such BIBOR Period shall instead end on the next preceding or
succeeding Business Day as determined by Lender in accordance with the then
current lender practice in Brussels; PROVIDED, THAT Borrowers shall not be
required to pay double interest, even though the preceding BIBOR Period ends and
the new BIBOR Period begins on the same day. Each determination by Lender of
the BIBOR Period shall, in the absence of manifest error, be conclusive.
BIBOR RATE - with respect to any BIBOR Period, (i) the rate for Belgian Francs
for the relevant term appearing on page 3288 of the Telerate screen (or such
other page which may replace such page from time to time on the Telerate screen)
at or about 11 a.m. Brussels time on the relevant Interest Determination Date;
or (ii) if the relevant page is not displayed on the Telerate screen or the
Telerate screen is not operating at the relevant time or if no such offered rate
appears on the Telerate screen, the rate for Belgian Francs for the relevant
term which appears on page "BELO" of the Reuters screen (or such other pages
which may replace such page from time to time on the Reuters screen) at or about
11 a.m. Brussels time on the relevant Interest Determination Date; or (iii) if
the relevant page is not displayed on the Reuters screen or the Reuters screen
is not operating at the relevant time or if such offered rate does not appear on
the Reuters screen, the rate determined by Lender to be that at which loans in
Belgian Francs and in an amount comparable with the amount in relation to which
Appendix A-3
BIBOR is to be determined and for a period equal to the relevant period were
being offered to Lender in the Brussels Interbank Market at or about 11 a.m.
(Brussels time) on the relevant Interest Determination Date; PROVIDED, that if
such loans are not offered, then BIBOR shall be determined by Lender in its
reasonable discretion.
BIBOR TERM PORTION - each portion of the Term Loans outstanding to a Borrower
with respect to which a BIBOR Period has commenced and has not terminated;
PROVIDED, that each BIBOR Term Portion shall be in an amount not less than
BEF5,000,000.00, subject to the repayment schedule set forth in EXHIBIT A.
BUSINESS DAY - shall mean any day which is not a legal holiday under the laws of
Belgium or is a day on which banking institutions located in Brussels are open.
CAPITAL EXPENDITURES - shall mean, for any Person for any period, the sum of all
expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for Equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or Equipment on a Consolidated balance sheet of
such Person; PROVIDED, that Capital Expenditures shall not include capital
expenditures to the extent that such expenditures constitute a reinvestment of
Net Cash Proceeds from any Asset Disposition permitted under this Agreement in
similar fixed assets, which investment is made or committed to be made under
contract with an unaffiliated third party to be made before or within one
hundred eighty days after receipt of such Net Cash Proceeds (or three hundred
sixty (360) days after receipt of such Net Cash Proceeds in respect of real
estate or improvements thereon subject to a casualty loss or condemnation).
CAPITALIZED LEASE OBLIGATIONS - any indebtedness represented by obligations
under a lease that is required to be capitalized for financial reporting
purposes in accordance with generally accepted accounting principles in effect
in the country in which the relevant party is located, applied on a consistent
basis.
CHANGE OF CONTROL shall mean any of the following events: (a) Alpine shall at
any time cease to own and control (directly or through any Wholly-Owned
Subsidiary) at least 30% of the outstanding capital stock or voting power of
PolyVision; or (b) PolyVision (directly or through any wholly-owned Subsidiary)
shall at any time cease to own directly or indirectly one hundred (100%) percent
of the outstanding capital stock or voting power of any of its Subsidiaries
(other than the directors' qualifying shares); or (c) with respect to Alpine, a
change of control of Alpine or PolyVision that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A, as in effect on the
date hereof, promulgated under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT") shall occur; PROVIDED that, without limitation, such a
Change of Control shall be deemed to occur if: (i) any "Person" (as such term is
used in Section 13(d) and Section 14(d) of the Exchange Act), (except for (with
respect to the Borrowers) Alpine, Xxxxxx Xxxxxx or any employee benefit plan of
Alpine or any Borrower or any Subsidiary or related corporation, or any entity
holding voting securities of Alpine or either Borrower for or pursuant to the
terms of any such plan), shall become
Appendix A-4
the beneficial owner, directly or indirectly, of securities of Alpine
representing 30% or more of the combined voting power of Alpine's then
outstanding securities or of securities of PolyVision representing 30% or more
(excluding in respect of ownership of PolyVision Alpine in this clause and the
following clause (ii)) of the combined voting power of PolyVision's then
outstanding securities; (ii) there shall occur a contested proxy solicitation of
Alpine's or PolyVision's shareholders that results in the contesting party
obtaining the ability to vote securities representing 30% or more of the
combined voting power of Alpine's or PolyVision's then outstanding securities;
(iii) there shall occur: (A) a sale, lease, exchange, transfer or other
disposition in one or a series of related transactions of all or substantially
all of the assets of Alpine or PolyVision to another Person or entity or group
(as such term is defined in Section 13(d)(3) of the Securities Act as amended),
(B) a merger or consolidation in which Alpine is a constituent unless the
surviving entity is controlled directly or indirectly by the same Persons (as
defined in this Agreement) that controlled Alpine immediately prior to such
merger or consolidation or (C) the adoption of a plan of liquidation or
dissolution of Alpine other than pursuant to bankruptcy or insolvency laws; or
(iv) during any period of twelve (12) calendar months, individuals who at the
beginning of such period constituted the Board of Directors of Alpine or
PolyVision shall cease for any reason to constitute at least a majority thereof
unless the election, or the nomination for election by Alpine's shareholders or
by PolyVision's shareholders, as applicable, of each new director shall be
approved by a vote of at least two-thirds (2/3) of the directors then still in
office who were directors at the beginning of the period provided, however, that
no Change of Control shall be deemed to have occurred under clause (iii) (A),
(B) or (C) or clause (iv) in respect, in each such case, of Alpine if so
excluded from the definition of "Change of Control" under the Fleet Credit
Agreement, or (d) either Borrower shall at any time cease to own directly all of
the shares issued by its respective Subsidiaries (except director's qualifying
shares). For purposes of this definition "control", when used with respect to
any specified Person, means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract, by family relationship or otherwise; and the terms
"controlling" and "controlled" have the meanings correlative to the foregoing.
CLOSING DATE - the date of this Agreement in October 1998.
COLLATERAL - all of the Shares and interests in Shares described in Article 19
of the Agreement, and all other Property and interests in Property that now or
hereafter secure the payment and performance of any of the Obligations.
CONSOLIDATED - the consolidation in accordance with that which is required to be
consolidated for financial reporting purposes in accordance with generally
accepted accounting principles in effect in the country in which the relevant
party is located of the accounts or other items as to which such term applies.
CONSOLIDATED DEBT TO EBITDA RATIO - as defined in Exhibit 25.1.
Appendix A-5
CREDIT REGULATIONS - the Credit Regulations attached to the Agreement as
APPENDIX B, with such amendments as Lender shall enact in the ordinary course of
business (provided that any such amendment shall not apply to the Agreement
unless approved by the Fleet Agent).
CURRENT ASSETS - at any date means the amount at which all of the current assets
of a Person would be properly classified as current assets shown on a balance
sheet at such date in accordance with generally accepted accounting principles
in effect in the country in which the relevant party is located.
DEFAULT - an event or condition the occurrence of which would, with the lapse of
time or the giving of notice, or both, become an Event of Default.
DEFAULT RATE - as defined in Article 5 of the Agreement.
DISTRIBUTION - in respect of any company means and includes:
(a) the payment of any dividends or other distributions on share capital of
the company (except distributions in such stock); and
(b) the redemption or acquisition of securities of such company unless made
contemporaneously from the net proceeds of the sale of securities.
DOLLAR EQUIVALENT - with respect to any monetary amount in any currency other
than US Dollars, at any time, the amount of US Dollars obtained by converting
such currency into US Dollars at the spot rate for such transaction as quoted by
Lender at such time.
EBITDA - as defined in EXHIBIT 25.1.
ENVIRONMENTAL LAWS - all national, state and local laws, rules, regulations,
ordinances, programs, permits, guidances, orders and consent decrees relating to
health, safety and environmental matters.
EQUIPMENT - all machinery, apparatus, equipment, fittings, furniture, fixtures,
motor vehicles and other tangible personal Property (other than Inventory) of
every kind and description used in any Borrower's operations or owned by any
Borrower or in which a Borrower has an interest, whether now owned or hereafter
acquired by such Borrower and wherever located, and all parts, accessories and
tools and all increases and accessions thereto and substitutions and
replacements therefor.
EVENT OF DEFAULT - as defined in Article 27 of the Agreement.
EXCESS CASH FLOW - an amount determined to be Excess Cash Flow as defined in and
pursuant to the Fleet Credit Agreement, as such amount is set forth in writing
delivered by the Fleet Agent to Lender.
Appendix A-6
EXTRAORDINARY RECEIPT - any cash received by or paid to or for the account of
any Person not in the ordinary course of business (other than by sale, lease or
transfer), including, without limitation, tax refunds, pension plan reversions,
proceeds of insurance (other than proceeds of business interruption insurance to
the extent such proceeds constitute compensation for lost earnings),
condemnation awards (and payments in lieu thereof) and indemnity payments;
PROVIDED, HOWEVER, that an Extraordinary Receipt shall not include cash receipts
received from proceeds of insurance, condemnation awards (and payments in lieu
thereof) or indemnity payments to the extent that such proceeds, awards or
payments (a) in respect of loss or damage to Equipment, fixed assets or real
property are applied (or in respect of which expenditures were previously
incurred) to replace or repair the Equipment, fixed assets or real property in
respect of which such proceeds, awards or payments were received in accordance
with the terms of the Loan Documents, so long as (i) such application is made
within one hundred eighty (180) days (or three hundred sixty (360) days, with
respect to real estate or improvements on real estate), after such Person's
receipt of such proceeds, awards or payments and (ii) such proceeds, awards or
payments are received by such Person within fifteen (15) months after the
occurrence of such damage or loss; or (b) are received by any Person in respect
of any third party claim against such Person and applied to pay (or to reimburse
such Person for its prior payment of) such claim and the costs and expenses of
such Person with respect thereto.
FISCAL YEAR - a fiscal year of PolyVision and its Consolidated Subsidiaries
ending on April 30 in any calendar year, except for PolyVision Belgium the
fiscal year of which ends on December 31.
FLEET - as defined in the Recitals to the Agreement.
FLEET AGENT - as defined in the Recitals to the Agreement.
FLEET CREDIT AGREEMENT - as defined in the Recitals to the Agreement.
FLEET LENDERS - as defined in the Recitals to the Agreement.
FRANCE OBLIGATIONS - the France Term Loan and all other advances, debts,
liabilities, obligations, reimbursement obligations, covenants and duties,
together with all interest, fees and other charges thereon, owing, arising, due
or payable from PolyVision France to Lender of any kind or nature, present or
future, whether or not evidenced by any note, guaranty or other instrument,
arising under the Agreement or any of the other Loan Documents, whether direct
or indirect, absolute or contingent, primary or secondary, due or to become due,
now existing or hereafter arising.
FRANCE TERM CREDIT FACILITY - as defined in Article 3.1.
FRANCE TERM LOAN - as defined in Article 3.1.
Appendix A-7
FRAUDULENT CONVEYANCE - a fraudulent conveyance or transfer under the provisions
of any applicable fraudulent conveyance or fraudulent transfer law or similar
law of any state, province, nation or other governmental unit, as in effect from
time to time.
GENERAL INTANGIBLES - all personal property of any Borrower (including things in
action) other than goods, accounts, chattel paper, documents, instruments and
money, whether now owned or hereafter created or acquired by any Borrower.
GUARANTORS - PolyVision, Posterloid and Greensteel and any other Person who may
on the date of the Agreement or hereafter guarantee payment or performance of
the whole or any part of the Obligations under this Agreement.
GUARANTY AGREEMENTS - the Continuing Guaranty Agreements which are to be
executed by each Guarantor in form and substance satisfactory to Lender.
HEDGE AGREEMENTS - means interest rate swap, cap or collar agreements, interest
rate future or option contracts, currency swap agreements, currency future or
option contracts and other similar agreements.
INDEBTEDNESS - as applied to a Person means, without duplication:
(a) all items which in accordance with GAAP would be included in determining
total liabilities as shown on the liability side of a balance sheet of
such Person as at the date as of which Indebtedness is to be determined,
including, without limitation, Capitalized Lease Obligations;
(b) all obligations of other Persons which such Person has guaranteed or for
which such Person is liable;
(c) all reimbursement obligations in connection with letters of credit or
letter of credit guaranties issued for the account of any Person;
(d) in the case of PolyVision Belgium (without duplication), the Belgium
Obligations; and
(e) in the case of PolyVision France (without duplication), the France
Obligations.
INTERCOMPANY SUBORDINATION AGREEMENT - that certain Subordination Agreement
dated the Closing Date in favor of Lender and Administrative Agent executed by
PolyVision and certain of its Subsidiaries pursuant to which the repayment of
certain intercompany obligations is made subject and subordinate on the terms
set forth therein to the repayment of obligations owing to Lender under this
Agreement and the Other KBC Loan Agreement and owing to the Fleet Lenders and
Fleet Agent
Appendix A-8
under the Fleet Credit Agreement, as it may from time to time be amended with
the consent of the Administrative Agent.
INTEREST COVERAGE RATIO - as defined in EXHIBIT 25.1.
INTEREST DETERMINATION DATE - with respect to any BIBOR Period for which BIBOR
is to be determined, the second Business Day prior to the first day of such
period.
INVENTORY - all of any Borrower's (if any) and its Subsidiaries' inventory,
whether now owned or hereafter acquired including, but not limited to, all goods
intended for sale or lease by a Borrower or its Subsidiaries, or for display or
demonstration; all work in process; all raw materials and other materials and
supplies of every nature and description used or which might be used in
connection with the manufacture, printing, packing, shipping, advertising,
selling, leasing or furnishing of such goods or otherwise used or consumed in a
Borrower's or its Subsidiaries' business; and all documents evidencing and
General Intangibles relating to any of the foregoing, whether now owned or
hereafter acquired by a Borrower or its Subsidiaries.
INVESTMENT PROPERTY - all of any Borrower's investment property, whether now
owned or hereafter acquired, including, but not limited to, all securities
(certificated or uncertificated), securities accounts, securities entitlement,
commodity accounts and commodity contracts.
ISSUER - Fleet National Bank, a national banking association organized under the
laws of the United States of America.
KBC - KBC Bank N.V.
LEGAL REQUIREMENT - any requirement imposed upon Lender by any law, regulation,
order, interpretation, ruling or official directive (whether or not having the
force of law) of any board, central bank or governmental or administrative
agency, institution or authority or any political subdivision of either thereof.
LETTER OF CREDIT AGREEMENT - the Letter of Credit Agreement dated the date of
the Agreement between Lender and Fleet, providing, among other things, for the
allocation of various administrative and monitoring responsibilities relating to
the Agreement between Lender and Fleet.
LIEN - any interest in Property securing an obligation owed to, or a claim by, a
Person other than the owner of the Property, whether such interest is based on
common law, statute or contract. The term "Lien" shall also include rights of
seller under conditional sales contracts or title retention agreements,
reservations, exceptions, encroachments, easements, rights-of-way, covenants,
conditions, restrictions, leases and other title exceptions and encumbrances
affecting Property. For the purpose of the Agreement, a Borrower shall be
deemed to be the owner of any Property which it has acquired or holds subject to
a conditional sale agreement or other arrangement pursuant to which title to the
Property has been retained by or vested in some other Person for security
purposes.
Appendix A-9
LOAN ACCOUNT - the loan account established for each Borrower on the books of
Lender.
LOAN DOCUMENTS - the Agreement, the Other Agreements and the Security Documents.
LOANS - all loans and advances of any kind made by Lender pursuant to this
Agreement.
MATERIAL ADVERSE EFFECT -
(a) a material adverse effect on the business, condition (financial or
otherwise), operation, performance or properties of any Borrower;
(b) a material adverse effect on the rights and remedies of Lender under the
Loan Documents; or
(c) the material impairment of the ability of any Borrower to perform its
obligations hereunder or under any Loan Document including, regarding
PolyVision France or Aubecq, the incapacity to meet its current
liabilities with its available assets.
MONEY BORROWED - means:
(a) Indebtedness arising from the lending of money by any Person to a
Borrower;
(b) Indebtedness, whether or not in any such case arising from the lending by
any Person of money to a Borrower:
(i) which is represented by notes payable or drafts accepted that
evidence extensions of credit;
(ii) which constitutes obligations evidenced by bonds, debentures,
notes or similar instruments; or
(iii) upon which interest charges are customarily paid (other than
accounts payable) or that was issued or assumed as full or
partial payment for Property;
(c) Indebtedness that constitutes a Capitalized Lease Obligation;
(d) reimbursement obligations with respect to letters of credit or guaranties
of letters of credit or guarantees generally; and
(e) Indebtedness of a Borrower under any guaranty of obligations that would
constitute Indebtedness for Money Borrowed under clauses (a) through (c)
hereof, if owed directly by a Borrower.
Appendix A-10
NET CASH PROCEEDS - with respect to any sale, lease, transfer or other
disposition of any asset by any Person, or any Extraordinary Receipt received by
or paid to or for the account of any Person, the aggregate amount of cash
received from time to time (whether as initial consideration or through payment
or disposition of deferred consideration) by or on behalf of such Person in
connection with such transaction after deducting therefrom only (without
duplication) (a) reasonable and customary brokerage commissions, underwriting
fees and discounts, legal and accounting fees, finder's fees, printing costs and
other similar out-of-pocket costs, (b) the amount of taxes payable in connection
with or as a result of such transaction and (c) with respect to any asset, the
amount of any indebtedness secured by a Lien on such asset that, by the terms of
such transaction or the terms of such indebtedness, is required to be repaid
upon such disposition, in each case to the extent, but only to the extent, that
the amounts so deducted are, at the time of receipt of such cash, actually paid
or due and payable or set aside for payment (because due and payable) within ten
(10) Business Days after receipt by the applicable Borrower or PolyVision or
other Subsidiary of PolyVision to a Person that is not an Affiliate of such
Borrower or PolyVision or other Subsidiary of PolyVision and are properly
attributable to such transaction or to the asset that is the subject thereof.
OBLIGATIONS - the Belgium Obligations and France Obligations together.
OTHER AGREEMENTS - any and all agreements, instruments and documents (other than
the Agreement and the Security Documents), heretofore, now or hereafter executed
by a Borrower, or any other third party (other than legal counsel or
accountants), and delivered to Lender in respect of the transactions
contemplated by the Agreement.
OTHER KBC LOAN AGREEMENT - means the Credit Facility Agreement dated the Closing
Date by and among Alliance Europe, Alliance Graphics, Aubecq and Pentagon and
KBC, as it may be amended, supplemented, restated or otherwise modified from
time to time.
PARENT - PolyVision.
PENTAGON - Alliance Pentagon A/S, a Danish limited liability company.
PERMITTED LIENS - any Lien permitted by Article 24.1(e) of the Agreement.
PERSON - an individual, partnership, corporation, limited liability company,
joint stock company, land trust, business trust or unincorporated organization,
or a government or agency or political subdivision thereof.
PLAN - an employee benefit plan now or hereafter maintained for employees of any
Borrower or Pentagon under the relevant provisions of the laws and regulations
applicable to such Borrower or Pentagon.
POLYVISION - as defined in the Recitals to the Agreement.
Appendix A-11
POLYVISION BELGIUM - as defined in the Recitals to the Agreement.
POLYVISION FRANCE - as defined in the Recitals to the Agreement.
PROJECTIONS - Borrowers' forecasted Consolidated and consolidating:
(a) balance sheets;
(b) profit and loss statements;
(c) cash flow statement; and
(d) capitalization statements;
all prepared on a consistent basis with Borrowers' historical financial
statements, together with appropriate supporting details and a statement of
underlying assumptions.
PROPERTY - any interest in any kind of property or asset, whether real, personal
or mixed, or tangible or intangible including shares in registered capital of
companies.
PURCHASE DOCUMENTS - the Stock Purchase Agreement dated as of September 1, 1998
(as amended prior to the date of this Agreement) by and between PolyVision
Corporation, PolyVision Belgium and PolyVision France, AIG and the stockholders
of AIG and AIG Holdings, Inc., pursuant to which the Acquisition shall have
been consummated.
RESTRICTED INVESTMENT - any investment made in cash or by delivery of Property
to any Person, whether by acquisition of stock, Indebtedness or other obligation
or security, or by loan, advance or capital contributions, or otherwise, or in
any Property except the following:
(a) investments, to the extent existing on the Closing Date, by that Borrower
or any Subsidiary;
(b) Property to be used in the ordinary course of business;
(c) Current Assets arising from the sale (to the extent expressly permitted
hereunder) of goods and services in the ordinary course of business of
any Borrower;
(d) investments in direct obligations of any of the jurisdictions in which
any Borrower's registered office is located, or any agency thereof or
obligations guaranteed by any such jurisdictions, or any agency thereof,
PROVIDED, THAT such obligations mature within one year from the date of
acquisition thereof;
(e) investments in certificates of deposit maturing within one year from the
date of acquisition issued by a bank or trust company organized under the
laws of any of the jurisdictions in
Appendix A-12
which any Borrower registered office is located, or any agency thereof
having capital surplus and undivided profits aggregating at least the
Dollar Equivalent of $100,000,000;
(f) investments in commercial paper given the highest rating by a national
credit rating agency and maturing not more than 360 days from the date of
creation thereof; and
(g) investments permitted under the Agreement.
SECURITY DOCUMENTS - all instruments, agreements and documents now or at any
time hereafter securing the whole or any part of the Obligations, including
without limitation all of the security documents described in Article 19 of the
Agreement.
SENIOR SUBORDINATED LOAN AGREEMENT - as defined in the Fleet Credit Agreement.
SENIOR SUBORDINATED NOTE - has the meaning provided in the Fleet Credit
Agreement.
SOLVENT - as to any Person, such Person:
(a) owns Property whose fair saleable value is greater than the amount
required to pay all of such Person's Indebtedness (including contingent
debts);
(b) is able to pay all of its Indebtedness as such Indebtedness matures; and
(c) has capital sufficient to carry on its business and transactions and all
business and transactions in which it is about to engage.
STATUTORY RESERVES - a fraction (expressed as a decimal) the numerator of which
is the number one, and the denominator of which is the number one MINUS the
aggregate of the maximum reserve percentages (including, without limitation, any
marginal, special, emergency or supplemental reserves), expressed as a decimal,
established by any banking authority to which Lender is subject for Eurocurrency
Liabilities. BIBOR Term Portions shall be deemed to constitute Eurocurrency
Liabilities and as such shall be deemed to be subject to such reserve
requirements without benefit of or credit for proration. Statutory Reserves
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
SUBORDINATED DEBT - Indebtedness evidenced by the Senior Subordinated Note owing
by PolyVision in an aggregate principal amount of USD25,000,000 and any
guaranties thereof, as in effect on the Closing Date or as amended or
refinanced as permitted under the Fleet Credit Agreement, and any other
indebtedness of a Borrower that is subordinated to the Obligations in a manner
satisfactory to Lender.
Appendix A-13
SUBSIDIARY - any company of which a Person owns, directly or indirectly through
one or more intermediaries, more than 50% of the Voting Stock at the time of
determination. Unless otherwise stated, references in the Agreement to
Subsidiaries refer to Subsidiaries of the respective Borrowers.
TERM CREDIT FACILITY - collectively the Belgium Term Credit Facility and the
France Term Credit Facility.
TERM LOANS - the Loans described in Articles 2 and 3.
TERM LOAN COMMITMENT - the amount of Lender's commitment pursuant to Articles 2
and 3 of the Agreement.
VOTING STOCK - securities of any class or classes of a corporation the holders
of which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions
such as a "GERANT").
WHOLLY-OWNED SUBSIDIARIES - of any Person, means a Subsidiary of such Person all
of the outstanding Voting Stock (other than directors' qualifying shares) of
which shall at the time be owned by such Person or by one or more Wholly-Owned
Subsidiaries of that Person or a combination thereof.
Appendix A-14
APPENDIX D
to the
Credit Facility Agreement dated as of 20 November 1998
by and among
(1) POLYVISION BELGIUM NV,
(2) POLYVISION FRANCE EURL, and
(3) KBC BANK N.V., as Lender (the "AGREEMENT")
1. All capitalized terms used but not defined in this Appendix shall have
the meanings given to those terms in the Agreement.
2. In addition to the terms and conditions set out in the Agreement, Lender
and Borrowers agree as follows:
2.1. INCREASED COSTS
2.1.1. Subject to paragraph (b) below, where Lender determines
that, as a result of the introduction or variation of any
law or any change in the interpretation or application of
any law, or compliance with any request (whether or not
having the force of law but, if not having the force of
law, being of a type with which Lender is accustomed to
comply and including any request or requirement which
affect the manner in which Lender is required to or does
maintain capital resources in relation to its obligations
under this Agreement) from any central bank or other
fiscal, monetary or other authority or agency, the cost to
Lender of maintaining or funding the Loans is increased or
the amount of any sum received or receivable by it in
respect of this Agreement or the effective return to it
under this Agreement is reduced or it is obligated to make
any payment (except in respect of tax on its overall net
income) or foregoes any interest or other return on, or
calculated by reference to, the amount of any sum received
or receivable by it from Borrowers under this Agreement,
then:
(a) Lender shall notify Borrowers of the event
promptly upon becoming aware of it and deliver to
Borrowers a certificate to that effect containing
relevant details; and
(b) Borrowers shall on demand pay to Lender such
amounts as Lender from time to time and at any
time notifies Borrowers to be necessary to
compensate it for such increased cost, reduction,
payment or foregone interest or return (provided
that PolyVision France shall not be liable for any
obligations of PolyVision Belgium and PolyVision
Xxxxxxxx X-0
Belgium shall not be liable for any of the
obligations of PolyVision France) under this
Section 2.1 or under Section 2.2.3 of this
Appendix D.
2.2. INDEMNIFICATION
2.2.1. In accordance with Article 20 of the Credit Regulations,
Borrowers shall on demand pay, in each case on the basis
of a full indemnity to Lender all expenses (including
legal, printing and reasonable out-of-pocket expense and
taxes) incurred in connection with the negotiation,
preparation or completion of this Agreement or in
connection with the preservation, enforcement or the
attempted preservation or enforcement of any of Lender's
rights under this Agreement.
2.2.2. Without prejudice to Clause 2.2.3 below, Borrowers shall
fully indemnify Lender from and against any expense, loss,
damage or liability which it may incur as a consequence of
the occurrence of any Event of Default or otherwise in
connection with this Agreement and the indemnity shall
include, without limitation (but without duplication of
the interest charged under the Agreement), any interest,
fees or other sums whatsoever paid or payable on account
of any funds borrowed in order to carry any unpaid amount.
2.2.3. If Lender incurs any loss or expense by reason of the
liquidation or reemployment of deposits or other funds
acquired by Lender to make or maintain all or any portion
of the Term Credit Facility or any BIBOR Term Portion as
a result of any repayment of all or any portion of the
principal amounts of the Term Credit Facility or of a
BIBOR Term Portion in each case bearing interest based on
a BIBOR Interest Period on a date other than the scheduled
due dates therefore (such loss or expense to be referred
to as the "FUNDING LOSS"), Borrowers shall, at the first
demand of Lender, pay to Lender such amount as will
reimburse Lender for such loss or expense.
(a) The Funding Loss shall be calculated on an
actuarial basis. Consequently, the Funding Loss
shall be equal to the discounted difference
between the income that Lender would have received
from making the Belgium Term Credit Facility or
France Term Credit Facility (as the case may be)
and/or the BIBOR Term Portion available if no
early repayment had been made and the income that
Lender will receive upon reinvestment at the
prevailing market rate of the amounts repaid
early. In the event of partial early repayments,
the income Lender continues to receive from the
amount of the Belgium Term Credit Facility or
France Term Credit Facility or any
Appendix D-2
BIBOR Term Portion not repaid early must be added
to the income it receives upon reinvestment.
(b) The Funding Loss shall be calculated on the amount
of the early repayment and for the period
commencing from the date of early repayment and
lasting until the date originally agreed for the
repayment of the relevant amount. The interbank
deposit rate prevailing at the time of early
repayment plus 200 basis points shall serve as the
discount rate.
(c) A statement setting forth the amount of any such
loss or expense shall be submitted by Lender to
Borrowers and shall, in the absence of
demonstrable error, be conclusive on Borrowers.
2.2.4. Should the above-mentioned calculation of the Funding Loss
result in a negative amount, Lender shall transfer such
amount ("FUNDING PROFIT") to Borrowers having deducted all
taxes, duties, charges or otherwise required by law.
2.2.5. Clauses 2.2.3 and 2.2.4 shall not apply to any repayment
or prepayments pursuant to Article 11, 12 and 13 of the
Credit Regulations.
Xxxxxxxx X-0
EXHIBIT A
TO
POLYVISION BELGIUM AND POLYVISION
FRANCE LOAN AGREEMENT
POLYVISION BELGIUM PAYMENT SCHEDULE
Principal shall be due and payable quarterly, commencing January 31, 1999 and
continuing on the last day of each three months thereafter to and including the
last day of October 2004 in installments as set forth below:
Date of Payment:
Each January 31, April 30,
July 31, and October 31 Quarterly Principal
Commencing January 31, 1999 Amount Due
--------------------------- -------------------
1999 360,833.00
2000 4,811,100.00
2001 11,666,918.00
2002 13,230,525.00
2003 14,433,300.00
2004 15,636,075.00
PROVIDED that in any event the entire remaining principal balance then
outstanding, together with any other amounts due hereunder, shall be due on
October 31, 2004.
POLYVISION FRANCE PAYMENT SCHEDULE
Principal shall be due and payable quarterly, commencing January 31, 1999 and
continuing on the last day of each three months thereafter to and including the
last day of October 2004 in installments as set forth below:
Date of Payment:
Each January 31, April 30,
July 31, and October 31 Quarterly Principal
Commencing January 31, 1999 Amount Due
--------------------------- -------------------
1999 206,190.00
2000 2,749,200.00
2001 6,666,810.00
2002 7,560,300.00
2003 8,247,600.00
2004 8,934,900.00
PROVIDED that in any event the entire remaining principal balance then
outstanding, together with any other amounts due hereunder ,shall be due on
October 31, 2004.
Exhibit A-1
EXHIBIT 25.1
FINANCIAL COVENANTS
CONSOLIDATED DEBT TO EBITDA RATIO shall mean, as of any date of determination, a
ratio of (a) Debt of PolyVision and its Subsidiaries as at the end of such
fiscal quarter (exclusive of Subordinated Debt held by Alpine or its Affiliates
but excluding for purposes of this parenthetical any portion of the Senior
Subordinated Note which may be held by Alpine or its Affiliates) to (b) EBITDA
for the most recently completed four fiscal quarters of PolyVision and its
Subsidiaries.
DEBT of any Person means, without duplication,
(a) all indebtedness of such Person for borrowed money,
(b) all Obligations (for all purposes of this definition of Debt, as
defined below in this Exhibit 25.1) of such Person for the deferred purchase
price of property or services,
(c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments,
(d) all Obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property),
(e) all Obligations of such Person as lessee under Capitalized
Leases,
(f) all Obligations, contingent or otherwise, of such Person under
bankers acceptance, letter of credit or similar facilities,
(g) all Obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of (i) any capital stock of or
other ownership or profit interest in such Person or any other Person or (ii)
any warrants, rights or options to acquire such capital stock,
(h) all Obligations of such Person in respect of Hedge Agreements,
(i) all Debt of others referred to in clauses (a) through (h) above
or clause (j) below guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person through an
agreement (A) to pay or purchase such Debt or to advance or supply funds for the
payment or purchase of such Debt, (B) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the holder of such
Debt against loss in respect thereof, (C)
Exhibit 25.1-1
to supply funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether such property
is received or such services are rendered) or (D) otherwise to assure the holder
of such Debt against loss in respect thereof, and
(j) all Debt referred to in clauses (a) through (i) above of another
Person secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts, contract rights or inventory) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Debt.
EBITDA shall mean, for any period, the sum, for PolyVision and its Subsidiaries
determined on a Consolidated basis, of (i) Net Income (or net loss), (ii)
Interest Expense, (iii) income tax expense, (iv) depreciation expense, (v)
extraordinary and nonrecurring losses, (vi) amortization expense and other
non-ordinary non-cash charges deducted in the calculation of Net Income or net
losses (including, without limitation, amortization of fees and expenses related
to the Acquisition and compensation expense not paid in cash) and (vii) to the
extent deducted in the computation of Net Income, non-recurring restructuring
charges resulting from plant closing expenses, severance obligations and
reorganization expenses relating to the consummation of the Acquisition as
described in the Projections (as defined in the Fleet Credit Agreement)
delivered on the Closing Date, MINUS extraordinary and nonrecurring gains (or
plus extraordinary losses) (in each case determined in accordance with GAAP),
PLUS the pro forma effect on EBITDA for such period of any permitted acquisition
(permitted by the Fleet Agent) made by PolyVision or its Subsidiaries (such pro
forma effect to be determined in a manner reasonably acceptable to the Fleet
Agent).
FIXED CHARGE COVERAGE RATIO shall mean, for the four consecutive fiscal quarters
of PolyVision and its Subsidiaries ending on the date of determination, the
ratio of (a) EBITDA of PolyVision and its Subsidiaries for such four fiscal
quarters (or such other period specified in the covenants set forth below
entitled "Fixed Charge Coverage Ratio"), to (b) Fixed Charges for such four
fiscal quarters (or other period specified in such covenant).
FIXED CHARGES means the sum, for PolyVision and its Subsidiaries on a
Consolidated basis for any period, of (i) Interest Expense, PLUS (ii) scheduled
amortization of Debt payable during such period, plus (iii) income taxes and
other taxes payable in respect of such period, plus (iv) Capital Expenditures
during such period to the extent permitted by the Fleet Credit Agreement, this
Agreement or the Other KBC Loan Agreement.
HEDGE AGREEMENTS - shall mean interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
INTEREST EXPENSE shall mean, with respect to PolyVision and its Subsidiaries
for any period, interest expense on all Debt of such Person for such period
whether paid or accrued, determined on a Consolidated basis for such Person and
its Subsidiaries and in accordance with GAAP, and
Exhibit 25.1-2
including, without limitation, (a) in the case of PolyVision and its
Subsidiaries, interest expense in respect of Debt resulting from Loans under
this Agreement, the Fleet Credit Agreement or the Other KBC Loan Agreement, (b)
the interest component of all obligations under Capitalized Leases, (c)
commissions, discounts and other fees and charges payable in connection with
letters of credit (including, without limitation, Letters of Credit), (d) the
net payment, if any, payable in connection with Hedge Agreements less the net
credit, if any, received in connection with Hedge Agreements and (e) all fees
paid by PolyVision or any of its Subsidiaries pursuant to in connection with the
commitments hereunder or under the Fleet Credit Agreement or under the Other KBC
Loan Agreement.
OBLIGATION - shall mean, with respect to any Person, any payment, performance or
other obligation of such Person of any kind, including, without limitation, any
liability of such Person on any claim, whether or not the right of any creditor
to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 27.1(i).
Without limiting the generality of the foregoing, the Obligations of the
Borrowers under this Agreement, the Security Documents and the Other Agreements
include (a) the obligation to pay principal, interest, letter of credit
reimbursements, commissions, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by any Borrower under any
of this Agreement, the Security Documents and the Other Agreements, (b) the
obligation of any Borrower to reimburse any amount in respect of any of the
foregoing that Lender may, after the occurrence and during the continuance of an
Event of Default, elect to pay or advance on behalf of such Borrower, and (c)
any other obligations arising out of or under, based upon or relating to this
Agreement, the Security Documents and the Other Agreements, and shall, with
respect to the Borrowers' Subsidiaries, the "Obligations" as defined in the
Other KBC Loan Agreement, and with respect to PolyVision and its Subsidiaries,
"Obligations" as defined in the Fleet Credit Agreement.
Any capitalized terms used in this Exhibit 25.1 not otherwise defined herein
shall have the respective meanings ascribed thereto in the Fleet Credit
Agreement.
Exhibit 25.1-3
COVENANTS
CONSOLIDATED DEBT TO EBITDA RATIO. Maintain as of the end of each fiscal
quarter of PolyVision a Consolidated Debt to EBITDA Ratio of not more than the
ratio set forth below:
------------------------------------------- --------------------
Date of Determination: Maximum Ratio
------------------------------------------- --------------------
January 31, 1999 6.0 to 1.0
------------------------------------------- --------------------
April 30, 1999 6.0 to 1.0
------------------------------------------- --------------------
July 31, 1999 5.75 to 1.0
------------------------------------------- --------------------
October 31, 1999 5.5 to 1.0
------------------------------------------- --------------------
January 31, 2000 5.25 to 1.0
------------------------------------------- --------------------
April 30, 2000 5.25 to 1.0
------------------------------------------- --------------------
July 31, 2000 5.25 to 1.0
------------------------------------------- --------------------
October 31, 2000 5.00 to 1.0
------------------------------------------- --------------------
January 31, 2001 5.00 to 1.0
------------------------------------------- --------------------
April 30, 2001 4.50 to 1.0
------------------------------------------- --------------------
July 31, 2001 4.50 to 1.0
------------------------------------------- --------------------
October 31, 2001 4.50 to 1.0
------------------------------------------- --------------------
January 31, 2002 4.50 to 1.0
------------------------------------------- --------------------
April 30, 2002 through (and including)
October 31, 2005 4.0 to 1.0
------------------------------------------- --------------------
PROVIDED, HOWEVER, that for purposes of calculating EBITDA for the most recently
completed four fiscal quarters of PolyVision ending on each of the following
dates, there shall be added to such EBITDA the amounts set forth next to such
dates (representing in each case cost savings resulting from the Acquisition):
------------------------------------------- --------------------
Date Amount
------------------------------------------- --------------------
January 31, 1999 $2,000,000
------------------------------------------- --------------------
April 30, 1999 $1,750,000
------------------------------------------- --------------------
July 31, 1999 $1,250,000
------------------------------------------- --------------------
October 31, 1999 $ 500,000
------------------------------------------- --------------------
Covenants-1
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 PolyVision to
(ii) cash Interest Expense for such period of not less than the ratio set forth
below for such period:
------------------------------------------- --------------------
Date of Determination: Minimum Ratio
------------------------------------------- --------------------
January 31, 1999 1.70 to 1.0
------------------------------------------- --------------------
April 30, 1999 1.70 to 1.0
------------------------------------------- --------------------
July 31, 1999 1.75 to 1.0
------------------------------------------- --------------------
October 31, 1999 1.85 to 1.0
------------------------------------------- --------------------
January 31, 2000 1.85 to 1.0
------------------------------------------- --------------------
April 30, 2000 2.00 to 1.0
------------------------------------------- --------------------
July 31, 2000 2.00 to 1.0
------------------------------------------- --------------------
October 31, 2000 2.00 to 1.0
------------------------------------------- --------------------
January 31, 2001 2.00 to 1.0
------------------------------------------- --------------------
April 30, 2001 2.25 to 1.0
------------------------------------------- --------------------
July 31, 2001 2.25 to 1.0
------------------------------------------- --------------------
October 31, 2001 2.25 to 1.0
------------------------------------------- --------------------
January 31, 2002 2.25 to 1.0
------------------------------------------- --------------------
April 30, 2002 through (and including)
October 31, 2005 2.50 to 1.0
------------------------------------------- --------------------
PROVIDED, HOWEVER, that for purposes of calculating EBITDA for the most recently
completed four fiscal quarters of PolyVision ending on each of the following
dates, there shall be added to such EBITDA the amounts set forth next to such
dates (representing in each case cost savings resulting from the Acquisition):
------------------------------------------- --------------------
Date Amount
------------------------------------------- --------------------
January 31, 1999 $2,000,000
------------------------------------------- --------------------
April 30, 1999 $1,750,000
------------------------------------------- --------------------
July 31, 1999 $1,250,000
------------------------------------------- --------------------
October 31, 1999 $ 500,000
------------------------------------------- --------------------
Covenants-2
FIXED CHARGE COVERAGE RATIO. Maintain as of the end of each fiscal quarter of
PolyVision a Fixed Charge Coverage Ratio for the most recently completed four
fiscal quarters of PolyVision and its Subsidiaries on a Consolidated basis of
not less than the following ratios for the requisite periods set forth below
(except that in respect of the first three testing periods referred to below,
EBITDA and Fixed Charges shall be computed only for the one, two and three
fiscal quarterly periods respectively described below, provided that Capital
Expenditures shall be computed within fixed charges in an amount equal to the
greater of one-quarter of the Capital Expenditures permitted during [the twelve
month period] during which a testing period ends and actual Capital Expenditures
made during the testing period specified below):
------------------------------------------- --------------------
Four Fiscal Quarters ending on:
------------------------------------------- --------------------
Each October 31, January 31, April 30 and
July 31 after the Closing Date and
continuing through (and including)
October 31, 2005 1.10 to 1.0
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PROVIDED, HOWEVER, that for purposes of calculating EBITDA for the most recently
completed four fiscal quarters of PolyVision ending on each of the following
dates, there shall be added to such EBITDA the amounts set forth next to such
dates (representing in each case cost savings resulting from the Acquisition):
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Date Amount
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January 31, 1999 $2,000,000
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April 30, 1999 $1,750,000
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July 31, 1999 $1,250,000
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October 31, 1999 $ 500,000
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Covenants-3
