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Exhibit 4.4(d)
AMENDMENT NO. 2
TO
CREDIT AND SECURITY AGREEMENT
This AMENDMENT NO. 2 TO CREDIT AND SECURITY AGREEMENT (this
"Amendment"), made as of this 31st day of March, 2000, among PARAGON CORPORATE
HOLDINGS INC. ("Borrower"), certain financial institutions listed on the
signature pages hereto (the "Banks"), KEY CORPORATE CAPITAL INC., as Letter of
Credit Bank (the "Letter of Credit Bank"), and KEY CORPORATE CAPITAL INC. as
Agent for the Banks and the Letter of Credit Bank (the "Agent").
WITNESSETH:
WHEREAS, the Borrower, the Banks, the Letter of Credit Bank and the
Agent have entered into that certain Credit and Security Agreement, dated as of
April 1, 1998, as amended by that certain Amendment No. 1 to Credit and Security
Agreement, dated as of March 17, 1999, (as amended, the "Credit Agreement"),
pursuant to which the Agent, the Banks and the Letter of Credit Bank have made
certain loans and other financial accommodations available to Borrower;
WHEREAS, the Borrower has failed to comply with certain covenants of
the Credit Agreement and desires that the Agent and the Banks waive such
noncompliance; and
WHEREAS, the Borrower, the Banks, the Letter of Credit Bank and the
Agent desire to amend the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Borrower, the Banks, the Letter
of Credit Bank and the Agent do hereby agree as follows:
1. DEFINED TERMS.
Each defined term used herein and not otherwise defined herein shall have the
meaning ascribed to such term in the Credit Agreement.
2. AMENDMENT TO THE CREDIT AGREEMENT.
2.1 AMENDMENT TO INTRODUCTORY PARAGRAPH. The introductory paragraph on
Page 1 of the Credit Agreement is hereby amended by deleting the reference to
"U.S. $32,000,000" and replacing it with (i) during the period commencing on
March 31, 2000, and continuing through May 30, 2000, "U.S. $37,000,000", and
(ii) commencing on May 31, 2000, and at all times thereafter, "US $32,000,000".
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2.2 AMENDMENT TO SECTION 8.4(a). Section 8.4(a) is amended to read as
follows:
(a) MINIMUM CONSOLIDATED EBITDA. The Borrower shall not permit:
(i) the Consolidated EBITDA of Curtis as of the end of any
Cumulative Four Quarter Fiscal Period ending after the Closing Date to
be less than $5,500,000, and
(ii) the Consolidated EBITDA of A. B. Dick as of the end
of any of the following cumulative fiscal periods to be less
than the amount set forth opposite such cumulative fiscal
period:
<TABLE>
<CAPTION>
CUMULATIVE FISCAL CONSOLIDATED EBITDA
PERIOD
---------------------------------------------------------------------
<S> <C>
January 1, 2000 -- June 30, 2000 $2,050,000
January 1, 2000 -- September 30, 2000 $5,700,000
January 1, 2000 -- December 31, 2000
and each Cumulative Four Quarter Fiscal
Period thereafter $11,000,000
</TABLE>
2.3 AMENDMENT TO SECTION 8.4(b). Section 8.4(b) is amended to read as
follows:
(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. The Borrower shall not at
any time permit:
(i) the Consolidated Fixed Charge Coverage Ratio of the
Borrower as at the end of any of the following cumulative fiscal
periods of the Borrower to be less than the ratio set forth opposite
such cumulative fiscal period:
<TABLE>
<CAPTION>
CUMULATIVE FISCAL CONSOLIDATED FIXED CHARGE
PERIOD COVERAGE RATIO
-----------------------------------------------------------------------
<S> <C>
January 1, 2000 -- September 30, 2000 0.25 to 1.0
January 1, 2000 -- December 31, 2000 0.50 to 1.0
January 1, 2001 -- March 31, 2001 1.20 to 1.0
January 1, 2001 -- June 30, 2001 1.20 to 1.0
January 1, 2001 -- September 30, 2001 1.20 to 1.0
January 1, 2001 -- December 3l, 2001,
and each Cumulative Four Quarter Fiscal
Period thereafter 1.20 to 1.0
</TABLE>
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(ii) the Consolidated Fixed Charge Coverage Ratio of Curtis as
at the end of any Cumulative Four Quarter Fiscal Period of the Borrower
to be less than 1.20 to 1.0, or
(iii) the Consolidated Fixed Charge Coverage Ratio of A.B.
Dick as at the end of any of the following cumulative fiscal periods of
the Borrower to be less than the ratio set forth opposite such
cumulative fiscal period:
<TABLE>
<CAPTION>
CUMULATIVE FISCAL CONSOLIDATED FIXED CHARGE
PERIOD COVERAGE RATIO
-----------------------------------------------------------------------
<S> <C>
January 1, 2000 -- June 30, 2000 0.50 to 1.0
January 1, 2000 -- September 30, 2000 1.20 to 1.0
January 1, 2000 -- December 31, 2000,
and each Cumulative Four Quarter Fiscal
Period thereafter 1.20 to 1.0
</TABLE>
2.4 AMENDMENT TO ANNEX I. Annex I is hereby amended by deleting all
references to "$32,000,000" and replacing each such reference with (i) during
the period commencing on March 31, 2000, and continuing through May 30, 2000,
"$37,000,000", and (ii) commencing on May 31, 2000, and at all times thereafter,
"$32,000,000".
3. WAIVER OF NON-COMPLIANCE.
3.1 WAIVER. Subject to and conditioned on the effectiveness of this
Amendment, the Agent and each Bank hereby waives, as of the date of this
Amendment:
(a) solely to the extent disclosed to the Agent and the Banks
in writing prior to the date of this Amendment, Borrower's failure to
comply with the requirement set forth in Section 8.4(a)(ii) of the
Credit Agreement that Borrower not permit the Consolidated EBITDA of
A.B. Dick to be less than $10,250,000 for the Cumulative Four Quarter
Fiscal Period ending on December 31, 1999 and the Cumulative Four
Quarter Fiscal Period ending on March 31, 2000;
(b) solely to the extent disclosed to the Agent and the Banks
in writing prior to the date of this Amendment, Borrower's failure to
comply with the requirement set forth in Section 8.4(b)(i) of the
Credit Agreement that Borrower not permit the Consolidated Fixed Charge
Coverage Ratio of the Borrower to be less than 1.10 to 1.0 for the
Cumulative Four Quarter Fiscal Period ending on December 31, 1999 and
the Cumulative Four Quarter Fiscal Period ending on March 31,2000;
(c) solely to the extent disclosed to the Agent and the Banks
in writing prior to the date of this Amendment, Borrower's failure to
comply with the requirement set forth in Section 8.4(b)(iii) of the
Credit Agreement that Borrower not permit the Consolidated Fixed Charge
Coverage Ratio of A.B. Dick to be less than 1.20 to 1.0 for
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the Cumulative Four Quarter Fiscal Period ending on December 31, 1999
and the Cumulative Four Quarter Fiscal Period ending on March 31, 2000;
and
(d) solely with respect to defaults waived pursuant to
Sections 3.1(a), 3.1(b) and 3.1(c) of this Amendment, any Event of
Default under Section 9.4 of the Financing Agreement.
3.2 LIMITATION ON WAIVERS. The waivers granted herein are limited
strictly to their terms, apply only to the specific waivers described herein, do
not extend to or affect any of the Borrower's other obligations contained in the
Credit Agreement or any other related documents and do not impair any rights
consequent thereon. Except as expressly set forth herein, nothing contained
herein will be deemed to be a waiver of, or will in any way impair or prejudice,
any rights of the Agent, the Banks or the Letter of Credit Bank under the Credit
Agreement. Neither the Agent nor any Bank has any obligation to issue any other
or further waiver with respect to the subject matter hereof or of any other
matter, and, except as expressly provided herein, the Credit Agreement and all
documents, instruments and agreements related thereto are ratified and confirmed
in all respects and will continue in full force and effect.
4. REPRESENTATIONS AND WARRANTIES.
Borrower hereby represents and warrants as follows:
4.1 THE AMENDMENT. This Amendment has been duly and validly executed by
an authorized executive officer of Borrower and constitutes the legal, valid and
binding obligation of Borrower enforceable against Borrower in accordance with
its terms. The execution delivery, and performance of this Amendment, the Credit
Agreement (as amended hereby), and the other Loan Documents to which Borrower is
a party are within the Borrower's corporate powers, have been duly authorized,
and are not in contravention of Law or the terms of the Borrower's Certificate
of Incorporation or By-Laws or any indenture (including the Senior Note
Indenture) or other document or instrument evidencing borrowed money or any
other agreement or undertaking to which the Borrower is a party or by which it
or its property is bound.
4.2 CLAIMS AND DEFENSES. As of the date of this Amendment, neither the
Borrower nor any of the Subsidiary Guarantors has any defenses, claims,
counterclaims or setoffs with respect to the Credit Agreement, the Loan
Documents or any Obligations thereunder or with respect to any actions of the
Agent, the Banks, the Letter of Credit Bank or any of their respective officers,
directors, shareholders, employees, agents or attorneys, and the Borrower
irrevocably and absolutely waives any such defenses, claims, counterclaims and
setoffs and releases the Agent, the Banks and the Letter of Credit Bank, and
each of their respective officers, directors, shareholders, employees, agents
and attorneys, from the same.
4.3 CREDIT AGREEMENT. The Credit Agreement, as previously amended and
as further amended by this Amendment, remains in full force and effect and
remains the valid and binding obligation of Borrower enforceable against
Borrower in accordance with its terms.
4.4 NONWAIVER. Except as set forth in Section 3 of this Amendment, the
execution, delivery, performance and effectiveness of this Amendment shall not
operate nor be deemed to be nor construed as a waiver (i) of any right, power or
remedy of the Agent, any Bank or the
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Letter of Credit Bank under the Credit Agreement, nor (ii) of any term,
provision, representation, warranty or covenant contained in the Credit
Agreement or any other documentation executed in connection therewith. Further,
except as set forth in Section 3 of this Agreement, none of the provisions of
this Amendment shall constitute, be deemed to be or construed as, a waiver of
any Event of Default under the Credit Agreement as previously amended and as
further amended by this Amendment.
4.5 REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof", "herein", or words of like import shall mean
and be a reference to the Credit Agreement, as previously amended and as further
amended hereby, and each reference to the Credit Agreement in any other
document, instrument or agreement executed and/or delivered in connection with
the Credit Agreement shall mean and be a reference to the Credit Agreement, as
previously amended and as further amended hereby.
5. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT NO.2.
In addition to all of the other conditions and agreements set forth herein, the
effectiveness of this Amendment is subject to the fulfillment of each of the
following conditions precedent:
5.1 AMENDMENT NO. 2 TO CREDIT AND SECURITY AGREEMENT. The Agent and
each Bank shall have received an original counterpart of this Amendment No. 2 to
Credit and Security Agreement, executed and delivered by a duly authorized
officer of Borrower, the Agent, and each of the Banks.
5.2 EXECUTION OF AMENDED AND RESTATED REVOLVING CREDIT NOTE. The Agent
and each Bank shall have received an original Amended and Restated Revolving
Credit Note reflecting the changes in the revolving credit facility commitment,
executed and delivered by a duly authorized officer of Borrower, the Agent, and
each of the Banks.
5.3 ACKNOWLEDGMENT OF GUARANTOR. The Agent shall have received the
Acknowledgment of Guarantor, attached hereto, executed and delivered by a duly
authorized officer of each of A.B. Dick and Curtis respectively.
6. MISCELLANEOUS.
6.1 GOVERNING LAW. This Amendment has been delivered and accepted at
and shall be deemed to have been made at Cleveland, Ohio. This Amendment shall
be interpreted and the rights and liabilities of the parties hereto determined
in accordance with the laws of the State of Ohio, without regard to principles
of conflict of law, and all other laws of mandatory application.
6.2 SEVERABILITY. Each provision of this Amendment shall be interpreted
in such manner as to be valid under applicable law, but if any provision hereof
shall be invalid under applicable law, such provision shall be ineffective to
the extent of such invalidity, without invalidating the remainder of such
provision or the remaining provisions hereof.
6.3 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which, when taken together, shall constitute but one and
the same agreement.
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IN WITNESS WHEREOF, Borrower has caused this Amendment No. 2 to Credit
and Security Agreement to be duly executed and delivered by its duly authorized
officer as of the date first above written.
KEY CORPORATE CAPITAL INC., as PARAGON CORPORATE HOLDINGS
Agent INC.
/s/ Christine A. Schoaf
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By: Christine A. Schoaf By: Frank D. Zaffino
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Its: AVP Its: President & CEO
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KEY CORPORATE CAPITAL INC., as a KEY CORPORATE CAPITAL INC. as a
Bank Letter of Credit Bank
/s/ Christine A. Schoaf /s/ Christine A. Schoaf
--------------------------------- ---------------------------------
By: Christine A. Schoaf By: Christine A. Schoaf
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Its: AVP Its: AVP
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