MJB - BMC Agreement & Temporary Waiver





 


   XXX


FIRST AMENDED AGREEMENT AND TEMPORARY WAIVER


	
             
  THIS FIRST AMENDED AGREEMENT AND TEMPORARY WAIVER (this "Waiver"),
  dated as of July 15, 2003, is by and among BMC Industries, Inc., a Minnesota
  corporation ("Borrower"), the several banks and other
  financial institutions set forth on the signature pages hereto in their
  capacities as lenders under the Credit Agreement (as defined below), DEUTSCHE
  BANK TRUST COMPANY AMERICAS (formerly named Bankers Trust Company), as Agent
  for the Lenders (in such capacity, the "Agent") and as a
  Lender, and Bank One, NA, as Documentation Agent and a Lender.

   

  
	
  W I T N E S
  S E T H :

  
	
             
  WHEREAS, Borrower, Lenders and Agent are parties to that certain Third
  Amended and Restated Credit Agreement dated as of September 27, 2002 (as
  amended, restated, supplemented or otherwise modified and in effect from time
  to time, the "Credit Agreement"), pursuant to which Lenders
  have provided to Borrower credit facilities and other financial
  accommodations; 

   

  
	
             
  WHEREAS, Borrower, Lenders and Agent executed an Agreement and Temporary
  Waiver dated as of June 30, 2003 (the "Waiver"); and 

   

  
	
             
  WHEREAS, Borrower has requested that Agent and Lenders amend the Waiver and
  temporarily waive for an additional time period certain Unmatured Events of
  Default and Events of Default that exist under the Credit Agreement as set
  forth herein and Lenders and Agent are agreeable to the same, subject to the
  terms and conditions hereof.

   

  
	
             
  NOW, THEREFORE, in consideration of the premises and of the mutual covenants
  contained herein, and other good and valuable consideration the receipt and
  adequacy of which are hereby acknowledged, the parties hereto hereby agree as
  follows:

   

  
	
                1.               Defined Terms.  Terms capitalized herein and not otherwise
  defined herein are used with the meanings ascribed to such terms in the
  Credit Agreement.  
   

	
  
                2.               Temporary Waiver.  (a)  Subject to the conditions set
  forth in Section 7 hereof, Agent and Lenders hereby
  (i) temporarily waive during the Waiver Period (as defined below) any
  Event of Default or Unmatured Event of Default under Section 9.1 of
  the Credit Agreement arising out of the Borrower's failure (A) to make the
  Scheduled Term A Repayment and Scheduled Term B Repayment due June 30, 2003,
  (B) to make the payment required by Section 3.2(d) of the Credit
  Agreement on July 1, 2003, (C) to comply with Sections 8.1(a), (b) and (c)
  of the Credit Agreement for the fiscal quarter of Borrower ended June 30,
  2003, and (D) to comply with Sections 7.4, 7.5, 8.4, 8.6 and 8.7 solely with
  respect to Buckbee-Mears Deutschland Holding GmbH & Co. KG and its
  wholly-owned subsidiaries, Buckbee-Mears Europe GmbH and Vision-Ease
  Deutschland GmbH (each of the matters in clauses (A), (B) (C) and (D) being,
  the "Disclosed Defaults") and (ii) temporarily waive during the
  Waiver Period the application of the Default Rate with respect to the
  Disclosed Defaults.

   

	
             
  For purposes of this Waiver, "Waiver Period" means the period
  commencing on the Effective Date and terminating on the earliest of (a)
  September 15, 2003; and (b) the occurrence of an Additional Default (as
  defined below) under the Loan Documents.

   

	
                         
  (b)       Upon the termination of the Waiver
  Period as provided above, Agent and Lenders shall be fully entitled to
  exercise any rights or remedies they may have under the Credit Agreement, the
  Loan Documents or applicable law.  Nothing herein shall limit or
  restrict in any way the rights and remedies of Agent or any Lender with
  respect to any Unmatured Event of Default or Event of Default (including any
  breach by the Borrower of any covenant contained in Section 4 of this
  Agreement) other than a Disclosed Default (collectively, the "Additional
  Defaults" and, individually, each an "Additional Default").

  
	
   

  
	
                         
  (c)       Notwithstanding the waiver of the
  Disclosed Defaults pursuant to this Agreement and Temporary Waiver or
  anything in the Credit Agreement to the contrary, the Borrower hereby
  acknowledges and agrees that during the Waiver Period no Revolving Lender
  shall be obligated to make Revolving Loans pursuant to the terms and
  conditions of the Credit Agreement.

  
	
   

  
	
                         
  (d)       BORROWER EXPRESSLY ACKNOWLEDGES AND
  AGREES THAT THE WAIVERS SET FORTH IN THIS SECTION 2 ARE EFFECTIVE ONLY
  DURING THE WAIVER PERIOD AND THAT, AFTER THE TERMINATION OF THE WAIVER
  PERIOD, THE CREDIT AGREEMENT WILL BE IN MATERIAL DEFAULT AND AGENT AND
  LENDERS WILL BE FULLY ENTITLED IMMEDIATELY TO EXERCISE THEIR RIGHTS AND
  REMEDIES UNDER THE CREDIT AGREEMENT, THE LOAN DOCUMENTS OR APPLICABLE LAW
  WITHOUT REGARD TO ANY MATTERS TRANSPIRING DURING THE WAIVER PERIOD OR THE
  FINANCIAL CONDITION OR PROSPECTS OF  BORROWER AND ITS
  SUBSIDIARIES.  BORROWER UNDERSTANDS THAT AGENT AND LENDERS ARE EXPRESSLY
  RELYING ON THE TERMS OF THIS SECTION 2(d) AND WOULD NOT HAVE ENTERED
  INTO THIS WAIVER BUT FOR BORROWER'S ACKNOWLEDGMENT AND AGREEMENT IN THIS SECTION
  2(d).

  
	
   

  
	
               3.               Other Agreements of the Parties.  Each of the
  Agent, the Lenders and the Borrower hereby agree that until such time as the
  Required Lenders otherwise consent in writing, the Borrower shall only be
  entitled to elect Interest Periods of up to one month for any Notice of
  Borrowing or Notice of Conversion or Continuation with respect to Eurodollar
  Loans. 

   

	
              4.               Covenants of the Borrower.  The Borrower hereby
  further covenants and agrees that it will (and that its failure to do so will
  be deemed an immediate Event of Default under the Credit Agreement and an
  Additional Default hereunder):

  

	
             
  (a)       provide to the Agent by 12:00 p.m.
  (Chicago time) July 18, 2003, a budget for the Waiver Period and a cash flow
  forecast acceptable to the Agent and the Lenders in the form and detail
  currently provided to Alvarez & Marsal, Inc.; and

  
	
   

  
	
             
  (b)       pay promptly upon invoice thereof the
  fees and expenses of counsel, advisors, consultants and other Persons
  retained by the Agent (or such Persons) in connection with the proposed
  restructuring of the Borrower, including, without limitation, the fees and
  expenses of Winston & Strawn, counsel to the Agent, and Alvarez and
  Marsal, Inc.

  
	
   

  
	
                     5.               Representations and Warranties.  In order to induce
  Agent and Lenders to enter into this Waiver, Borrower hereby represents and
  warrants to Agent and Lenders, in each case after giving effect to this
  Waiver, as follows:

   

	
                (a)             Borrower has the right, power and capacity and has been duly
  authorized and empowered by all requisite corporate and shareholder action to
  enter into, execute, deliver and perform this Waiver and all agreements,
  documents and instruments executed and delivered pursuant to this Waiver.

   

	
                (b)           This Waiver constitutes Borrower's legal, valid and binding
  obligation, enforceable against it, except as enforcement thereof may be
  subject to the effect of any applicable bankruptcy, insolvency,
  reorganization, moratorium or similar laws affecting creditors' rights
  generally and general principles of equity (regardless of whether such
  enforcement is sought in a proceeding in equity or at law or otherwise). 

   

	
                (c)             The representations and warranties contained in the Credit Agreement
  and the other Loan Documents are true and correct in all material respects at
  and as of the Effective Date as though made on and as of the Effective Date
  (except to the extent specifically made with regard to a particular date, in
  which case such representation and warranty is true and correct in all
  material respects as of such earlier date). 

   

	
               (d)            Borrower's execution, delivery and performance of this Waiver do not
  and will not violate its Articles or Certificate of Incorporation or By-laws,
  any law, rule, regulation, order, writ, judgment, decree or award applicable
  to it or any contractual provision (except as otherwise expressly waived
  hereby) to which it is a party or to which it or any of its property is
  subject. 

  

	
                (e)            
  No authorization or approval or other action by, and no notice to or
  filing or registration with, any governmental authority or regulatory body
  (other than those which have been obtained and are in force and effect) is
  required in connection with the execution, delivery and performance by
  Borrower or any other Credit Party of this Waiver and all agreements,
  documents and instruments executed and delivered pursuant to this Waiver.

   

	
                (f)             
  Other than the Disclosed Defaults, no Event of Default or Unmatured Event of
  Default exists under the Credit Agreement.

   

	
                6.               
  Conditions to Effectiveness of Waiver. This
  Waiver shall become effective on the date (the "Effective Date")
  each of the following conditions precedent is satisfied:

   

	

                (a)             
  Execution and Delivery of Waiver. Borrower, Agent and
  each Lender shall have executed and delivered this Waiver to the Agent.

   

	
                (b)            
  Execution and Delivery of Loan Documents. 
  Agent shall have received each of the following documents, all of which shall
  be satisfactory in form and substance to Agent and its counsel:
  
 

	
  
  
  


                                 (1)           
  A certificate of a Responsible Officer of Borrower in the form of Exhibit
  A attached hereto;

   

	
                                 (2)           
  A Reaffirmation of Guaranty executed by a Responsible Officer of each
  Subsidiary Guarantor in the form of Exhibit B attached hereto.

   

	
                (c)             
  Representations and Warranties.  The representations and warranties
  of the Borrower and the other Credit Parties contained in this Waiver, the
  Credit Agreement and the other Loan Documents shall be true and correct in all
  material respects as of the Effective Date, with the same effect as though
  made on such date, except to the extent that any such representation or
  warranty relates to an earlier date, in which case such representation or
  warranty shall be true and correct in all material respects as of such earlier
  date.

   

	
                (d)            
  No Defaults. Other than the Disclosed Defaults, no Unmatured
  Event of Default or Event of Default under the Credit Agreement shall have
  occurred and be continuing.

   

	
                7.               
  Miscellaneous. The parties hereto hereby further agree as
  follows:

   

	
                (a)             
  Costs, Expenses and Taxes.  Borrower hereby agrees
  to pay all reasonable fees, costs and expenses of Agent incurred in
  connection with the negotiation, preparation and execution of this Waiver and
  the transactions contemplated hereby, including, without limitation, the
  reasonable fees and expenses of Winston & Strawn, counsel to Agent.

   

	
                (b)            
  Counterparts.  This Waiver may be executed in one or more
  counterparts any of which may be a facsimile, each of which, when executed
  and delivered, shall be deemed to be an original and all of which counterparts,
  taken together, shall constitute but one and the same document with the same
  force and effect as if the signatures of all of the parties were on a single
  counterpart, and it shall not be necessary in making proof of this Waiver to
  produce more than one (1) such counterpart.

   

	
                (c)             
  Headings.  Headings used in this Waiver are for
  convenience of reference only and shall not affect the construction of this
  Waiver.

   

	
                (d)            
  Integration.  This Waiver and the Credit Agreement (as
  modified hereby) constitute the entire agreement among the parties hereto
  with respect to the subject matter hereof.

   

	
                (e)             
  Governing Law.  THIS WAIVER SHALL BE GOVERNED BY, AND
  CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS AND DECISIONS OF
  THE STATE OF NEW YORK (WITHOUT REFERENCE TO CONFLICT OF LAWS PRINCIPLES).

   

	
                (f)              
  Binding Effect.  This Waiver shall be binding upon and
  inure to the benefit of and be enforceable by Borrower, Agent and Lenders and
  their  respective successors and assigns.  Except as expressly set
  forth to the contrary herein, this Waiver shall not be construed so as to
  confer any right or benefit upon any Person other than Borrower, Agent and
  the Lenders and their respective successors and permitted assigns.

   

	
               (g)             
  Waiver.  The parties hereto agree and acknowledge
  that nothing contained in this Waiver in any manner or respect limits or
  terminates any of the provisions of the Credit Agreement or any of the other
  Loan Documents other than as expressly set forth herein and further agree and
  acknowledge that the Credit Agreement and each of the other Loan Documents
  remain and continue in full force and effect and are hereby ratified and
  confirmed.  Except to the extent expressly set forth herein, the
  execution, delivery and effectiveness of this Waiver shall not operate as a
  waiver of any rights, power or remedy of Lenders or Agent under the Credit
  Agreement or any other Loan Document, nor constitute a waiver of any
  provision of the Credit Agreement or any other Loan Document.  No delay
  on the part of any Lender or Agent in exercising any of their respective
  rights, remedies, powers and privileges under the Credit Agreement or any of
  the Loan Documents or partial or single exercise thereof, shall constitute a
  waiver thereof.  Borrower acknowledges and agrees that this Waiver
  constitutes a "Loan Document" for purposes of the Credit Agreement,
  including, without limitation, Sections 9.1 and 11.1 of the Credit
  Agreement.  None of the terms and conditions of this Waiver may be
  changed, waived, modified or varied in any manner, whatsoever, except in
  accordance with Section 11.1 of the Credit Agreement. 

	
             
  (h)       Release of Claims. 
  Borrower hereby represents and warrants that there are no liabilities,
  claims, suits, debts, losses, causes of action, demands, rights, damages or
  costs, or expenses of any kind, character or nature whatsoever, known or
  unknown, fixed or contingent (collectively, the "Claims"), which
  Borrower may have or claim to have against Agent or any Lender, or any of
  their respective affiliates, agents, employees, officers, directors,
  representatives, attorneys, successors, or assigns (collectively, the
  "Lender Released Parties"), which might arise out of or be
  connected with any act of commission or omission of the Lender Released
  Parties existing or occurring on or prior to the date of this Agreement,
  including without limitation any Claims arising with respect to the Credit
  Agreement or any Loan Documents.  Borrower hereby releases, acquits, and
  forever discharges the Lender Released Parties from any and all Claims that
  Borrower may have or claim to have, relating to or arising out of or in
  connection with the Credit Agreement or any Loan Documents or any other
  agreement or transaction contemplated thereby or any action taken in
  connection therewith from the beginning of time up to and including the date
  of the execution and delivery of this Agreement.  Borrower further agrees
  forever to refrain from commencing, instituting, or prosecuting any lawsuit,
  action, or other proceeding against any Lender Released Parties with respect
  to any and all Claims.

  
	
   

  



[Signature Page Follows]








              IN WITNESS
WHEREOF, the parties hereto have caused this Waiver to be executed by their
respective officers thereunto duly authorized, as of the date first written
above.


BMC INDUSTRIES, INC.


By:  /s/C. E. Petersen


Name:  C. E. Petersen            


Title:  Senior Vice President and Chief Financial
Officer


 


 


 






DEUTSCHE BANK
TRUST COMPANY AMERICAS, in its individual capacity and as Agent


 


 


By:  /s/Clark G. Peterson  


Name:  Clark G. Petersen


Title:  Vice President  


 






BANK ONE, NA (Main Office Chicago)


individually as a Lender and as
documentation agent


 


By:  /s/Hensy W. Howe


Name:  Hensy W. Howe


Title:  Assistant Vice President






WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION (f/k/a
Norwest Bank Minnesota, National Association)


By:  /s/Scott J. Manookin


Name:  Scott J. Manookin


Title:  Vice President






HARRIS TRUST AND SAVINGS BANK


By:  Lawrence A. Mizera


Name:  Lawrence A. Mizera


Title:  Vice President






CREDIT AGRICOLE INDOSUEZ


By:  /s/Leo von Reissig


Name:  Leo von Reissig


Title:  Vice President  


 


By:  /s/Joseph D. Catarina


Name:  Joseph D. Catarina


Title:  Vice President






WACHOVIA BANK, N.A.


By:  /s/Jason Consoli


Name:  Jason Consoli


Title:  Vice President






UNION BANK OF CALIFORNIA, N.A.


By:  /s/Jeffrey Mumm


Name:  Jeffrey Mumm


Title:  Vice President






U.S. BANK NATIONAL ASSOCIATION


By: /s/David Y. Kopolow


Name:  David Y. Kopolow 



Title:  Vice President


 





EXHIBIT A



CERTIFICATE OF OFFICER


 


	
             
  I, the undersigned, Chief Financial Officer and Secretary of BMC Industries,
  Inc., a Minnesota corporation (the "Borrower"), in
  accordance with Section 6(b) of that certain First Amended Agreement
  and Temporary Waiver dated as of July 15, 2003 (the "Agreement")
  among  the Borrower, Deutsche Bank Trust Company Americas, as Agent and
  the financial institutions party to the Credit Agreement (as defined in the
  Agreement), do hereby certify on behalf of Borrower, the following:

   

  
	
             
  1.         The representations and
  warranties set forth in Section 5 of the Agreement are true and
  correct in all material respects as of the date hereof except to the extent
  such representations and warranties are expressly made as of a specified date
  in which event such representations and warranties were true and correct in
  all material respects as of such specified date;

   

  
	
             
  2.         Other than the Disclosed
  Defaults, no Event of Default or Unmatured Event of Default has occurred and
  is continuing; and

   

  
	
             
  3.         The conditions of Section
  6 of the Agreement have been fully satisfied.

  
	
             
  Unless otherwise defined herein, capitalized terms used herein shall have the
  meanings set forth in the Agreement. 

  



[signature page follows]






    IN WITNESS WHEREOF,
the undersigned has duly executed and delivered on behalf of Borrower this
Certificate of Officer on this 15th day of July, 2003.


	
   

  	
  BMC
  INDUSTRIES, INC.

   

   

  By:     /s/C.
  E. Petersen 
  

  Name: 
  C. E. Petersen

  Title: 
  Senior Vice President and Chief Financial Officer

   

   

   

  










EXHIBIT B



REAFFIRMATION OF GUARANTY


        Each of the undersigned acknowledges receipt of
a copy of the First Amended Agreement and Temporary Waiver (the "Agreement"). 
Capitalized terms used herein shall, unless otherwise defined herein, have the
meanings provided in the Credit Agreement, as such term is defined in the
Agreement.  Each of the undersigned hereby consents to such Agreement and
each of the transactions referenced in the Agreement and hereby reaffirms its
obligations under the Subsidiary Guarantee Agreement.


Dated as of July 15, 2003.


VISION-EASE LENS, INC.,


                                                                       
as Guarantor


 


 


 


                                                                       
By: /s/C. E. Petersen


                                                                       
Name:  C. E. Petersen


                                                                       
Title:  Vice President


 


 


VISION-EASE LENS AZUSA, INC.,


                                                                       
as Guarantor


 


 


                                                                       
By:  /s/C. E. Petersen


                                                                       
Name:  C. E. Petersen


                                                                       
Title:


 


VISION-EASE LENS AZUSA, LLC,


                                                                       
as Guarantor


 


 


 


                                                                       
By:   /s/C. E. Petersen


                                                                       
Name:  C. E. Petersen


                                                                       
Title:  Vice President