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SEVENTH AMENDMENT TO LOAN AGREEMENT
This SEVENTH AMENDMENT TO LOAN AGREEMENT ("Amendment") dated February 27,
1998 is made by and among APOGEE, INC., a Delaware corporation ("Apogee"), and
each Subsidiary identified on the attached Schedule 6.1(c) (collectively, the
"Borrowing Subsidiaries" and together with Apogee, the "Borrowers" and
individually, a "Borrower") and PNC BANK, NATIONAL ASSOCIATION, a national
banking association (the "Bank").
Reference is made to the Revolving Credit Agreement dated as of April 11,
1996 by and among the Borrowers and the Bank, as amended on June 21, 1996,
November 1, 1996, March 11, 1997, August 8, 1997, December 22, 1997 and January
29, 1998 (the "Agreement"). The obligations under the Agreement and the Loan
Documents were evidenced by the Borrowers' several Revolving Credit Notes
payable to the Bank. (Capitalized terms used herein not otherwise defined shall
have the meanings provided for in the Agreement.)
The Borrowers have requested, and the Bank has agreed upon the following
terms and conditions, that the maturity of the two short-term advances
heretofore made pursuant to the terms of the amendments to the Revolving Credit
Agreement dated December 22, 1997 and January 29, 1998 and evidenced by the
Revolving Credit Notes dated those dates each be extended to March 31, 1998.
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NOW, THEREFORE, in consideration of the foregoing and for other
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Amendment to Agreement.
(a) The Agreement and the Loan Documents are hereby amended by
extending to March 31, 1998 the latest date by which the January Advance Note in
the principal amount of $1,700,000 dated January 29, 1998 and the December
Advance Note in the principal amount of $700,000 dated December 22, 1997 must
each be repaid.
(b) The reference to March 1, 1998 in the definition of "Action
Date" in the Fifth Amendment to Loan Agreement dated December 22, 1997 is hereby
amended to refer to March 31, 1998 and item "(c)" of that definition, relating
to January 3, 1998, is hereby deleted.
2. Acknowledgement of Default.
The Borrowers acknowledge that the Loan Parties are in violation, as of
December 31, 1997, of the provisions of Sections 8.2(1), 8.2(m), 8.2(n) and
8.2(o) of the Agreement (collectively, the "Existing Potential Defaults").
3. Miscellaneous.
(a) Recognizing and in consideration of the Bank's agreement to the
amendments herein set forth, the Borrowers hereby waive and release the Bank and
its officers, attorneys, agents, and employees from any liability, suit, damage,
claim, loss or expense of any kind or nature whatsoever and howsoever arising
out of or relating to the Bank's acts or omissions with respect to the Revolving
Credit Loans. The Borrowers further
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hereby agree to indemnify and hold the Bank and its officers, attorneys, agents
and employees harmless from any loss, damage, judgment, liability or expense
(including counsel fees) suffered by or rendered against the Bank or any of them
on account of anything arising out of the Revolving Credit Note, the January
Advance Note, the December Advance Note, the Agreement, this Amendment, the Loan
Documents or any other document delivered pursuant thereto up to and including
the date hereof.
(b) All of the terms, conditions, provisions and covenants in the
Notes, the Agreement, the Loan Documents, and all other documents delivered to
the Bank in connection with any of the foregoing documents and obligations
secured thereby shall remain unaltered and in full force and effect except as
modified by this Amendment.
(c) The Borrowers hereby represent and warrant to the Bank as of the
date of this Amendment that, other than the Existing Potential Defaults, there
exists no Event of Default or Potential Default under any of the Loan Documents.
(d) The Borrowers agree to pay all of the Bank's expenses incurred
in connection with the preparation of this Amendment and the transactions
contemplated by this Amendment, including without limitation, the reasonable
fees and expenses of the Bank's counsel.
(e) This Amendment shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
(f) Each and every one of the terms and provisions of this Amendment
shall be binding upon and shall inure to the benefit of the Borrowers and the
Bank and their respective successors and assigns.
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(g) This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original as against any party whose signature
appears thereon, and all of which shall constitute but one and the same
instrument.
(h) Apogee represents and warrants that all of its subsidiaries are
listed on the attached Schedule 6.1(c).
(i) THE EXECUTION AND DELIVERY OF THIS AMENDMENT SHALL NOT BE
CONSTRUED TO ESTABLISH A COURSE OF CONDUCT OR IMPLY THAT ANY OTHER, FUTURE OR
FURTHER WAIVERS, CONSENTS OR FORBEARANCE SHALL BE CONSIDERED, PROVIDED OR AGREED
TO. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO BE A WAIVER OF ANY OF THE RIGHTS
AND REMEDIES AVAILABLE TO THE BANK UNDER APPLICABLE LAW OR ANY OF THE LOAN
DOCUMENTS, AND THE BANK RESERVES ALL RIGHTS AND REMEDIES AGAINST THE BORROWERS.
NO FAILURE TO EXERCISE, NO DELAY IN EXERCISING, NO MAKING OF ANY ADVANCE TO ANY
OF THE BORROWERS BY THE BANK, AND NO ACCEPTANCE OF ANY PAYMENT OR NEGOTIATION BY
THE BANK, NOW OR IN THE FUTURE, SHALL OPERATE AS A WAIVER OF ANY POWER, REMEDY,
OR RIGHT OF THE BANK UNDER THIS AGREEMENT, THE LOAN DOCUMENTS OR APPLICABLE LAW,
NOR SHALL ANY SINGLE OR PARTIAL EXERCISE OF ANY POWER, REMEDY, OR RIGHT PRECLUDE
ANY OTHER OR FURTHER EXERCISE OF ANY SUCH POWER, REMEDY OR RIGHT.
(j) This Amendment, and each of the two Revolving Credit Notes
(Amended and Restated) dated the date hereof, is a "Loan Document" under the
Agreement and any breach of the terms hereof or thereof shall be an Event of
Default under Section 9.1 (d) of the Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
APOGEE, INC., a Delaware corporation, and
each of the other Borrowers and Guarantors
listed on Schedule 6.1(c)
By:
------------------------------------
[Name],
the [Title] of each of the
-----------------
Borrowers and Guarantors listed on Schedule
6.1(c),
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PNC BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
----------------------------------
Title:
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REVOLVING CREDIT NOTE
(Amended and Restated)
$700,000 Philadelphia, Pennsylvania
FEBRUARY 27, 1998
FOR VALUE RECEIVED, the undersigned, APOGEE, INC., a Delaware corporation
and each Subsidiary identified on the attached Schedule 6.1 (c) (collectively,
the "Borrowers") hereby promise, jointly and severally, to pay to the order of
PNC BANK, NATIONAL ASSOCIATION (the "Bank") the principal sum of Seven Hundred
Thousand U.S. Dollars (U.S. $700,000). This Note evidences each Borrower's
obligation to repay a Revolving Credit Loan made by the Bank on this date to the
Borrowers pursuant to Section 2 of the Credit Agreement dated April 11, 1996 by
and among the Borrowers, the Guarantors and the Bank, as thereafter amended,
including on the date hereof (the "Credit Agreement"). All amounts outstanding
hereunder, including principal, interest and fees, shall be due and payable on
the Action Date. As used herein, Action Date shall mean the earliest to occur of
the following:
(a) March 31, 1998;
(b) the completion of the "Special Asset Sale" referred to in the Fifth
Amendment to Loan Agreement dated December 22, 1997; or
(c) the date on which the definitive asset sale agreement referred to in
item (b) hereof is cancelled, terminated or made ineffective.
The Borrowers shall pay interest on the unpaid principal balance
hereof from time to time outstanding from the date hereof at the rate or rates
per annum specified by the Borrowers pursuant to Section 4.1(a) of, or as
otherwise provided in, the Credit Agreement.
Upon the occurrence and during the continuation of an Event of
Default, the Borrowers shall pay interest on the entire principal amount of the
then outstanding Revolving Credit Loans evidenced by this Revolving Credit Note
at an increased rate of interest as more fully set forth in Section 4.3 of the
Credit Agreement. Such interest rate will accrue before and after any judgment
has been entered.
Interest on this Revolving Credit Note will be payable as set forth
in Section 5.2 of the Credit Agreement on the Action Date and at such other
times as are specified in the Credit Agreement.
Except as otherwise provided in the Credit Agreement, any payment or
action to be made or taken hereunder shall be stated to be or become due on a
day which is not a
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Business Day, such payment or action shall be extended to the next succeeding
Business Day unless such Business Day falls in the next calendar month, in which
case such Euro-Rate Interest Period shall end on the next preceding Business
Day.
Subject to the provisions of the Credit Agreement, payments of both
principal and interest shall be made without setoff, counterclaim or other
deduction of any nature at the office of the Bank located at One PNC Plaza,
Fifth Avenue & Wood Street, Pittsburgh, Pennsylvania 15265, in lawful money of
the United States of America in immediately available funds.
This Note is one of the Revolving Credit Notes referred to in, and
is entitled to the benefits of, the Credit Agreement and other Loan Documents,
including the representations, warranties, covenants, conditions, security
interests or Liens contained or granted therein. The Credit Agreement among
other things contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayment, in certain
circumstances, on account of principal hereof prior to maturity upon the terms
and conditions therein specified. Failure to pay any amount due hereunder on the
Action Date shall constitute an Event of Default under Section 9.1(a) of the
Credit Agreement.
All capitalized terms used herein shall, unless otherwise defined
herein, have the same meanings given to such terms in the Credit Agreement.
Except as otherwise provided in the Credit Agreement, the Borrowers
waive presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note and the Credit Agreement.
This Note shall bind the Borrowers and their respective successors
and assigns, and the benefits hereof shall inure to the benefit of the Bank and
its successors and assigns. All references herein to the "Borrowers" and the
"Bank" shall be deemed to apply to the Borrower and the Bank, respectively, and
their respective successors and assigns.
This Note and any other documents delivered in connection herewith
and the rights and obligations of the parties hereto and thereto shall for all
purposes be governed by and construed and enforced in accordance with the
internal laws of the Commonwealth of Pennsylvania without giving effect to its
conflicts of law principles.
EACH BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OR ANY CLERK OF ANY COURT OF RECORD, TO APPEAR FOR AND CONFESS JUDGMENT
AS OF ANY TERM AGAINST SUCH BORROWER FOR SUCH SUMS AS ARE DUE, IN EITHER CASE
WITH OR WITHOUT DECLARATION, WITH COSTS OF SUIT, RELEASE OF ERRORS, WITHOUT STAY
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OF EXECUTION AND WITH AN AMOUNT NOT TO EXCEED THE LESSER OF $2000 OR TWO PERCENT
(2%) OF THE AMOUNT OF SUCH JUDGMENT ADDED FOR ATTORNEY'S FEES FOR COLLECTION. IF
A COPY OF THIS AGREEMENT, VERIFIED BY AFFIDAVIT OF THE BANK OR SOMEONE ON BEHALF
OF THE BANK, SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO
FILE THE ORIGINAL OF THIS NOTE AS A WARRANT OF ATTORNEY. NO SINGLE EXERCISE OF
THE FOREGOING WARRANT OF ATTORNEY TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST
THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE
INVALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE
EXERCISED FROM TIME TO TIME AS OFTEN AS THE BANK SHALL ELECT, UNTIL ALL OF THE
OBLIGATION HAVE BEEN SATISFIED IN FULL AND THIS AGREEMENT SHALL BE SUFFICIENT
WARRANT THEREFOR.
EACH BORROWER HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID
PROCEEDINGS, WAIVES STAY OF EXECUTION AND EXTENSION OF TIME OF PAYMENT, AND
WAIVES ALL EXEMPTIONS FROM LEVY AND SALE OF ANY PROPERTY THAT NOW IS OR
HEREAFTER MAY BE EXEMPTED BY LAW.
Each Guarantor consents to the execution and delivery of this Note
and agrees that the obligations evidenced hereby shall be "Guaranteed
Indebtedness" under the Guaranty Agreement.
THIS AMENDED AND RESTATED REVOLVING CREDIT NOTE REPLACES AND
SUPERSEDES THE REVOLVING CREDIT NOTE DATED DECEMBER 22, 1997 IN THE PRINCIPAL
AMOUNT OF $700,000 (THE "PRIOR NOTE"). TO THE EXTENT THAT THE PRINCIPAL BALANCE
OF THIS NOTE INCLUDES THE BORROWER'S INDEBTEDNESS HITHERTO EVIDENCED BY THE
PRIOR NOTE, THIS NOTE (I) MERELY RE-EVIDENCES THE INDEBTEDNESS HITHERTO
EVIDENCED BY THE PRIOR NOTE, (II) IS GIVEN AS SUBSTITUTION FOR, AND NOT AS
PAYMENT OF, THE PRIOR NOTE AND (III) IS IN NO WAY INTENDED TO CONSTITUTE A
NOVATION OF THE PRIOR NOTE. BORROWERS HEREBY AGREE THAT THIS NOTE SHALL IN ALL
RESPECTS TAKE THE PLACE OF AND INCLUDE ANY PRINCIPAL AMOUNT OF THE PRIOR NOTE.
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IN WITNESS WHEREOF, the undersigned has executed this Note by its
duly authorized officers with the intention that it constitute a sealed
instrument.
APOGEE, INC., a Delaware corporation, and
each of the other Borrowers and Guarantors
listed on Schedule 6.1(c)
By:
------------------------------------
[Name],
the [Title] of each of the
-----------------
Borrowers and Guarantors listed on Schedule
6.1(c)
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Schedule 6.1(c)
(Dated FEBRUARY 27, 1998)
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REVOLVING CREDIT NOTE
(Amended and Restated)
$1,700,000 Philadelphia, Pennsylvania
February 27, 1998
FOR VALUE RECEIVED, the undersigned, APOGEE, INC., a Delaware
corporation and each Subsidiary identified on the attached Schedule 6.1 (c)
(collectively, the "Borrowers") hereby promise, jointly and severally, to pay to
the order of PNC BANK, NATIONAL ASSOCIATION (the "Bank") the principal sum of
One Million Seven Hundred Thousand U.S. Dollars (U.S.$1,700,000). This Revolving
Credit Note evidences each Borrower's obligation to repay a Revolving Credit
Loan made by the Bank on this date to the Borrowers pursuant to Section 2 of the
Credit Agreement dated April 11, 1996 by and among the Borrowers, the Guarantors
and the Bank, as thereafter amended, including on the date hereof (the "Credit
Agreement"). All amounts outstanding hereunder, including principal, interest
and fees, shall be due and payable on the Action Date. As used herein, Action
Date shall mean the earliest to occur of the following:
(a) March 31, 1998;
(b) the completion of the "Special Asset Sale" referred to in the
Sixth Amendment to Loan Agreement dated January 29, 1998; or
(c) the date on which the "Sale Agreement" referred to in the Sixth
Amendment to Loan Agreement is cancelled, terminated or made ineffective.
The Borrowers shall pay interest on the unpaid principal balance
hereof from time to time outstanding from the date hereof at the rate or rates
per annum specified by the Borrowers pursuant to Section 4.1(a) of, or as
otherwise provided in, the Credit Agreement.
Upon the occurrence and during the continuation of an Event of
Default, the Borrowers shall pay interest on the entire principal amount of the
then outstanding Revolving Credit Loans evidenced by this Revolving Credit Note
at an increased rate of interest as more fully set forth in Section 4.3 of the
Credit Agreement. Such interest rate will accrue before and after any judgment
has been entered.
Interest on this Revolving Credit Note will be payable as set forth
in Section 5.2 of the Credit Agreement on the Action Date and at such other
times as are specified in the Credit Agreement.
Except as otherwise provided in the Credit Agreement, any payment or
action to be made or taken hereunder shall be stated to be or become due on a
day which is not a
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Business Day, such payment or action shall be extended to the next succeeding
Business Day unless such Business Day falls in the next calendar month, in which
case such Euro-Rate Interest Period shall end on the next preceding Business
Day.
Subject to the provisions of the Credit Agreement, payments of both
principal and interest shall be made without setoff, counterclaim or other
deduction of any nature at the office of the Bank located at One PNC Plaza,
Fifth Avenue & Wood Street, Pittsburgh, Pennsylvania 15265, in lawful money of
the United States of America in immediately available funds.
This Revolving Credit Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Credit Agreement and
other Loan Documents, including the representations, warranties, covenants,
conditions, security interests or Liens contained or granted therein. The Credit
Agreement among other things contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayment, in certain circumstances, on account of principal hereof prior to
maturity upon the terms and conditions therein specified. Failure to pay any
amount due hereunder on the Action Date shall constitute an Event of Default
under Section 9.1(a) of the Credit Agreement.
All capitalized terms used herein shall, unless otherwise defined
herein, have the same meanings given to such terms in the Credit Agreement.
Except as otherwise provided in the Credit Agreement, the Borrowers
waive presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Revolving Credit Note and the Credit Agreement.
This Revolving Credit Note shall bind the Borrowers and their
respective successors and assigns, and the benefits hereof shall inure to the
benefit of the Bank and its successors and assigns. All references herein to the
"Borrowers" and the "Bank" shall be deemed to apply to the Borrower and the
Bank, respectively, and their respective successors and assigns.
This Revolving Credit Note and any other documents delivered in
connection herewith and the rights and obligations of the parties hereto and
thereto shall for all purposes be governed by and construed and enforced in
accordance with the internal laws of the Commonwealth of Pennsylvania without
giving effect to its conflicts of law principles.
EACH BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OR ANY CLERK OF ANY COURT OF RECORD, TO APPEAR FOR AND CONFESS JUDGMENT
AS OF ANY TERM AGAINST SUCH BORROWER FOR SUCH SUMS AS ARE DUE, IN EITHER CASE
WITH OR WITHOUT
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DECLARATION, WITH COSTS OF SUIT, RELEASE OF ERRORS, WITHOUT STAY OF EXECUTION
AND WITH AN AMOUNT NOT TO EXCEED THE LESSER OF $2000 OR TWO PERCENT (2%) OF THE
AMOUNT OF SUCH JUDGMENT ADDED FOR ATTORNEY'S FEES FOR COLLECTION. IF A COPY OF
THIS AGREEMENT, VERIFIED BY AFFIDAVIT OF THE BANK OR SOMEONE ON BEHALF OF THE
BANK, SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE
THE ORIGINAL OF THIS NOTE AS A WARRANT OF ATTORNEY. NO SINGLE EXERCISE OF THE
FOREGOING WARRANT OF ATTORNEY TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST THE
POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE
INVALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE
EXERCISED FROM TIME TO TIME AS OFTEN AS THE BANK SHALL ELECT, UNTIL ALL OF THE
OBLIGATION HAVE BEEN SATISFIED IN FULL AND THIS AGREEMENT SHALL BE SUFFICIENT
WARRANT THEREFOR.
EACH BORROWER HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID
PROCEEDINGS, WAIVES STAY OF EXECUTION AND EXTENSION OF TIME OF PAYMENT, AND
WAIVES ALL EXEMPTIONS FROM LEVY AND SALE OF ANY PROPERTY THAT NOW IS OR
HEREAFTER MAY BE EXEMPTED BY LAW.
Each Guarantor consents to the execution and delivery of this
Revolving Credit Note and agrees that the obligations evidenced hereby shall be
"Guaranteed Indebtedness" under the Guaranty Agreement.
THIS AMENDED AND RESTATED REVOLVING CREDIT NOTE REPLACES AND
SUPERSEDES THE REVOLVING CREDIT NOTE DATED January 29, 1998 IN THE PRINCIPAL
AMOUNT OF $1,700,000 (THE "PRIOR NOTE"). TO THE EXTENT THAT THE PRINCIPAL
BALANCE OF THIS NOTE INCLUDES THE BORROWER'S INDEBTEDNESS HITHERTO EVIDENCED BY
THE PRIOR NOTE, THIS NOTE (I) MERELY RE-EVIDENCES THE INDEBTEDNESS HITHERTO
EVIDENCED BY THE PRIOR NOTE, (II) IS GIVEN AS SUBSTITUTION FOR, AND NOT AS
PAYMENT OF, THE PRIOR NOTE AND (III) IS IN NO WAY INTENDED TO CONSTITUTE A
NOVATION OF THE PRIOR NOTE. BORROWERS HEREBY AGREE THAT THIS NOTE SHALL IN ALL
RESPECTS TAKE THE PLACE OF AND INCLUDE ANY PRINCIPAL AMOUNT OF THE PRIOR NOTE.
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IN WITNESS WHEREOF, the undersigned has executed this Revolving
Credit Note by its duly authorized officers with the intention that it
constitute a sealed instrument.
APOGEE, INC., a Delaware corporation, and
each of the other Borrowers and Guarantors
listed on Schedule 6.1(c)
By:
------------------------------------
[Name],
the [Title] of
-----------------
each of the Borrowers and Guarantors
listed on Schedule 6.1(c)
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Schedule 6.1(c)
(Dated FEBRUARY 27, 1998)
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