First Amendment to Credit Agreement and Limited Consent among Goss Graphic Systems, Inc. and Lenders (December 3, 1999)

Summary

This amendment updates the existing credit agreement between Goss Graphic Systems, Inc. and its affiliates, several financial institutions as lenders, Bankers Trust Company as administrative agent, and Lehman Brothers as documentation agent. The amendment revises provisions related to asset sales and eligible inventory, and sets conditions for its effectiveness, including delivery of signed documents and lender approvals. The borrowers confirm their authority to enter into this amendment and that it does not conflict with other obligations or require additional government approvals.

EX-4.1 2 a2030806zex-4_1.txt 1ST AMEND 12/3/99 TO CREDIT AGR 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 ###-###-####), 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: 1 (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 2 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. 3 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. 4 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. [Remainder of page intentionally left blank] 5 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 LENDERS: BANKERS TRUST COMPANY, as Administrative Agent and as a Lender By: ______________________ Title: ___________________ S-2 THE BANK OF NOVA SCOTIA, as a Lender By: ______________________ Title: ___________________ S-3 BANK ONE, as a Lender By: _______________________ Title: ____________________ S-4 BARCLAYS BANK, PLC, as a Lender By: ______________________ Title: ___________________ S-5 BEAR, STEARNS & CO. INC., as a Lender By: ______________________ Title: ___________________ S-6 CHASE SECURITIES INC., as agent for The Chase Manhattan Bank, as a Lender By: ______________________ Title: ___________________ S-7 CREDIT AGRICOLE INDOSUEZ, as a Lender By: ______________________ Title: ___________________ By: ______________________ Title: ___________________ S-8 DEUTSCHE FINANCIAL SERVICES CORPORATION, as a Lender By: ______________________ Title: ___________________ S-9 DLJ CAPITAL FUNDING, INC., as a Lender By: ______________________ Title: ___________________ S-10 THE FUJI BANK, LIMITED, as a Lender By: ______________________ Title: ___________________ S-11 GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender By: ______________________ Title: ___________________ S-12 GOLDMAN SACHS CREDIT PARTNERS L.P., as a Lender By: ______________________ Title: ___________________ S-13 LEHMAN COMMERCIAL PAPER INC., as a Lender By: ______________________ Title: ___________________ S-14 NATIONAL WESTMINSTER BANK PLC, as a Lender By: ______________________ Title: ___________________ S-15 TRI-LINKS INVESTMENT TRUST (NOMURA), by Wilmington Trust Company Owner Trustee, as a Lender By: _______________________ Title: ____________________ S-16 STONEHILL INSTITUTIONAL PARTNERS, L.P., as a Lender By: _______________________ Title: ____________________ S-17