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EXHIBIT 4.1
FIRST AMENDMENT TO CREDIT AGREEMENT
AND LIMITED CONSENT
This FIRST AMENDMENT TO CREDIT AGREEMENT AND LIMITED CONSENT
(this "AMENDMENT") is dated as of December 3, 1999 and entered into by and among
GOSS GRAPHIC SYSTEMS, INC., a corporation organized under the laws of the State
of Delaware ("COMPANY") and whose registered office is at 700 Oakmont Lane,
Westmont, Illinois 60559, GOSS GRAPHIC SYSTEMS LIMITED (Company Number 3212468),
a company organized under the laws of England ("GOSS UK") and whose registered
office is at Greenbank Street, Preston, Lancashire PR1 7LA, GOSS SYSTEMES
GRAPHIQUES NANTES, S.A., a SOCIETE ANONYME organized under the laws of the
Republic of France ("GOSS FRANCE") and whose registered office is at 20, rue de
Koufra, 44300 Nantes, GOSS GRAPHIC SYSTEMS JAPAN CORPORATION, a corporation
organized under the laws of Japan ("GOSS JAPAN"; and together with Company, Goss
UK and Goss France, the "BORROWERS") and whose registered office is at Mitsuya
Toranomon Building, 22-14 Toranomon 1-Chome, Minato-Ku, Tokyo 105, THE FINANCIAL
INSTITUTIONS ACTING AS LENDERS AND LISTED ON THE SIGNATURE PAGES HEREOF, THE
FINANCIAL INSTITUTIONS ACTING AS INDEMNIFYING LENDERS AND LISTED ON THE
SIGNATURE PAGES HEREOF, BANKERS TRUST COMPANY, as administrative agent for the
Lenders (in such capacity, "ADMINISTRATIVE AGENT") and whose registered office
is at One Bankers Trust Plaza, 130 Liberty Street, New York, New York 10006, and
LEHMAN BROTHERS, as documentation agent for Lenders (in such capacity,
"DOCUMENTATION AGENT") and whose registered office is at 3 World Financial
Center, New York, New York 10285, and, for purposes of Section 4 hereof, the
Credit Support Parties (as defined in Section 4 hereof) listed on the signature
pages hereof, and is made with reference to that certain Second Amended and
Restated Multicurrency Credit Agreement dated as of November 19, 1999, by and
among Borrowers, Lenders, Indemnifying Lenders, Administrative Agent and
Documentation Agent (the "CREDIT AGREEMENT"). Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Credit Agreement.
RECITALS
WHEREAS, Borrowers have requested that the Credit Agreement be
amended to (i) amend certain provisions relating to asset sales contained
therein, and (ii) make certain other amendments, all as more specifically set
forth herein:
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1.1: DEFINED TERMS.
Subsection 1.1 of the Credit Agreement is hereby amended by:
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(1) deleting the proviso contained in the definition of "ASSET
SALE" in its entirety and substituting the following therefor:
"PROVIDED that the term "Asset Sale" shall not include (x) the
sale of Accounts, notes and other evidences of Indebtedness,
whether secured or unsecured, which sale is non-recourse to
Company and its Subsidiaries, in each case in the ordinary
course of business and consistent with the past practices of
Company and its Subsidiaries as part of a governmental
sponsored or private agency export credit program, and (y) any
transaction in which Company transfers or permits the transfer
of title relating to subassemblies or other parts to a
customer upon full payment by such customer for such
subassemblies or parts (PROVIDED that if any finished goods
constituting Inventory includes any such subassemblies or
other parts in which title has been transferred or is asserted
to have been transferred to a third party, then such finished
goods shall not be included in Eligible Inventory)."; and
(2) deleting clause (i) contained in the definition of
"Eligible Inventory" in its entirety and substituting the following
therefor:
"(i) it is not owned solely by Company or Company
does not have good, valid and marketable title thereto, or it
consists of finished goods constituting Inventory which
includes any subassemblies or other parts in which title has
been transferred or is asserted to have been transferred to a
third party; or"
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "FIRST AMENDMENT
EFFECTIVE DATE"):
A. BORROWER DOCUMENTS. On or before the First Amendment
Effective Date, each Borrower shall deliver to Lenders (or to Administrative
Agent for Lenders) the following, each, unless otherwise noted, dated the First
Amendment Effective Date:
1. Signature and incumbency certificates of their respective
officers executing this Amendment; and
2. Six executed copies of this Amendment.
B. EXECUTION OF AMENDMENT BY REQUISITE LENDERS. On or before
the First Amendment Effective Date, Requisite Lenders shall have executed and
delivered copies of this Amendment to Administrative Agent.
C. OTHER PROCEEDINGS. On or before the First Amendment
Effective Date, all corporate and other proceedings taken or to be taken in
connection with the transactions
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contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its
counsel shall be satisfactory in form and substance to Administrative Agent
and such counsel, and Administrative Agent and such counsel shall have
received all such counterpart originals or certified copies of such documents
as Administrative Agent may reasonably request.
SECTION 3. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, each Borrower
represents and warrants to each Lender that the following statements are true,
correct and complete:
A. CORPORATE POWER AND AUTHORITY. Each Borrower has all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of each Borrower.
C. NO CONFLICT. The execution and delivery by each Borrower of
this Amendment and the performance by each Borrower of the Amended Agreement do
not and will not (i) violate any provision of any law or any governmental rule
or regulation applicable to such Borrower or any of its Subsidiaries, the
Certificate or Articles of Incorporation or Bylaws of such Borrower or any of
its Subsidiaries or any order, judgment or decree of any court or other agency
of government binding on such Borrower or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of such Borrower or any of its
Subsidiaries, (iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of such Borrower or any of its Subsidiaries
(other than Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of such Borrower or any of its Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by each
Borrower of this Amendment and the performance by such Borrower of the Amended
Agreement do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body.
E. BINDING OBLIGATION. This Amendment and the Amended
Agreement have been duly executed and delivered by each Borrower and are the
legally valid and binding obligations of such Borrower, enforceable against such
Borrower in accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
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SECTION 4. ACKNOWLEDGEMENT AND CONSENT
Company is a party to certain Guaranties and each Borrower is
a party to certain Collateral Account Agreements, Security Agreements and
Mortgages pursuant to which such Borrower has created Liens in favor of
Administrative Agent on certain Collateral to secure the Obligations. New
Holdings is a party to certain Guaranties and certain Security Agreements
pursuant to which New Holdings has guarantied the Obligations and created Liens
in favor of Administrative Agent on certain Collateral to secure its obligations
under the Guaranties. Each Borrower and New Holdings are collectively referred
to herein as the "CREDIT SUPPORT PARTIES", and all such Guaranties and
Collateral Documents referred to above are collectively referred to herein as
the "CREDIT SUPPORT DOCUMENTS".
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Amendment. Each Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all Collateral encumbered
thereby will continue to guarantee or secure, as the case may be, to the fullest
extent possible the payment and performance of all "Obligations," "Guarantied
Obligations" and "Secured Obligations," as the case may be (in each case as such
terms are defined in the applicable Credit Support Document), including without
limitation the payment and performance of all such "Obligations," "Guarantied
Obligations" or "Secured Obligations," as the case may be, in respect of the
Obligations of the Borrowers now or hereafter existing under or in respect of
the Amended Agreement.
Each Credit Support Party acknowledges and agrees that any of
the Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties contained in the
Amended Agreement and the Credit Support Documents to which it is a party or
otherwise bound are true, correct and complete in all material respects on and
as of the First Amendment Effective Date to the same extent as though made on
and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
Each Credit Support Party (other than the Borrowers)
acknowledges and agrees that (i) notwithstanding the conditions to effectiveness
set forth in this Amendment, such Credit Support Party is not required by the
terms of the Credit Agreement or any other Loan Document to consent to the
amendments to the Credit Agreement effected pursuant to this Amendment and (ii)
nothing in the Credit Agreement, this Amendment or any other Loan Document shall
be deemed to require the consent of such Credit Support Party to any future
amendments to the Credit Agreement.
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SECTION 5. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
(i) On and after the First Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to the
"Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to the
Amended Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power
or remedy of Administrative Agent or any Lender under, the Credit
Agreement or any of the other Loan Documents.
B. FEES AND EXPENSES. Each Borrower acknowledges that all
costs, fees and expenses as described in subsection 10.2 of the Credit Agreement
incurred by Administrative Agent and its counsel with respect to this Amendment
and the documents and transactions contemplated hereby shall be for the account
of the Borrowers.
C. HEADINGS. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, each of the undersigned have hereunto
caused this Amendment to be duly executed and delivered in the capacities set
forth on SCHEDULE 2.1 to the Credit Agreement by their respective officers
thereunto duly authorized as of the date first written above.
GOSS GRAPHIC SYSTEMS, INC.,
as a Borrower
By: ______________________
Title: ___________________
GOSS GRAPHIC SYSTEMS LIMITED,
as a Borrower
By: ______________________
Title: ___________________
GOSS SYSTEMES GRAPHIQUES NANTES S.A.,
as a Borrower
By: ______________________
Title: ___________________
GOSS GRAPHIC SYSTEMS JAPAN CORPORATION,
as a Borrower
By: ______________________
Title: ___________________
GGS HOLDINGS, INC.,
as a Credit Support Party
By: ______________________
Title: ___________________
S-1
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LENDERS:
BANKERS TRUST COMPANY,
as Administrative Agent and as a Lender
By: ______________________
Title: ___________________
S-2
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THE BANK OF NOVA SCOTIA,
as a Lender
By: ______________________
Title: ___________________
S-3
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BANK ONE,
as a Lender
By: _______________________
Title: ____________________
S-4
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BARCLAYS BANK, PLC,
as a Lender
By: ______________________
Title: ___________________
S-5
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BEAR, STEARNS & CO. INC.,
as a Lender
By: ______________________
Title: ___________________
S-6
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CHASE SECURITIES INC., as agent for The
Chase Manhattan Bank, as a Lender
By: ______________________
Title: ___________________
S-7
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CREDIT AGRICOLE INDOSUEZ,
as a Lender
By: ______________________
Title: ___________________
By: ______________________
Title: ___________________
S-8
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DEUTSCHE FINANCIAL SERVICES CORPORATION,
as a Lender
By: ______________________
Title: ___________________
S-9
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DLJ CAPITAL FUNDING, INC.,
as a Lender
By: ______________________
Title: ___________________
S-10
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THE FUJI BANK, LIMITED,
as a Lender
By: ______________________
Title: ___________________
S-11
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GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: ______________________
Title: ___________________
S-12
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GOLDMAN SACHS CREDIT PARTNERS L.P.,
as a Lender
By: ______________________
Title: ___________________
S-13
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LEHMAN COMMERCIAL PAPER INC.,
as a Lender
By: ______________________
Title: ___________________
S-14
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NATIONAL WESTMINSTER BANK PLC,
as a Lender
By: ______________________
Title: ___________________
S-15
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TRI-LINKS INVESTMENT TRUST
(NOMURA), by Wilmington Trust Company
Owner Trustee, as a Lender
By: _______________________
Title: ____________________
S-16
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STONEHILL INSTITUTIONAL PARTNERS,
L.P., as a Lender
By: _______________________
Title: ____________________
S-17
