fifth amended agreement bmc





EXECUTION COPY


 


FIFTH AMENDED AGREEMENT  


AND TEMPORARY WAIVER AND DEFERRAL


THIS FIFTH
AMENDED AGREEMENT AND TEMPORARY WAIVER AND DEFERRAL (this "Agreement"),
dated as of January 20, 2004, 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 as amended by that
certain First Amended Agreement and Temporary Waiver dated as of July 15, 2003,
as further amended by that certain Second Amended Agreement and Temporary
Waiver dated as of September 15, 2003, that certain Third Amended Agreement and
Temporary Waiver dated as of November 19, 2003 and that certain Fourth Amended
Agreement effective as of November 19, 2003 (the "Original Waiver Agreement");



WHEREAS, Borrower, Lenders and Agent executed
a Temporary Deferral Agreement dated as of July 30, 2003 (the "July
Deferral Agreement");


WHEREAS, Borrower, Lenders and Agent executed
another Temporary Deferral Agreement dated as of August 28, 2003 (the "August
Deferral Agreement" and together with the July Deferral Agreement, the "Deferral
Agreements");


WHEREAS, Borrower has requested that Agent and
Lenders (i) amend the Original Waiver Agreement 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; (ii)
continue to defer certain payments of interest coming due or already due and
unpaid under the Credit Agreement; and (iii) make certain amendments to the
Credit Agreement, in each case 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.              
Amendment of Credit Agreement. The Credit
Agreement is hereby amended, effective as of the Effective Date, as follows:



            (a)            
Section 1.1 of the Credit Agreement is hereby amended
by adding the following new definitions in appropriate alphabetical order
therein: 


                        "Fifth
Amended Agreement" means that certain Fifth Amended Agreement and
Temporary Waiver dated as of January 20, 2004 among the Borrower, the Agent and
the Lenders.


           

(b)           
Section 1.1 of the Credit Agreement is hereby further
amended by replacing the definition of "BMG Harvesting Payment Schedule"
with the following new definition: 


                        "BMG
Harvesting Payment Schedule" means the payment schedule attached as Annex
B to the Third Amended Agreement as amended by Annex B attached to
the Fifth Amended Agreement.


           

(c)            
Subsection 2.1(c)(i) of the Credit Agreement is hereby
amended by deleting the "$10,000,000" figure therein and replacing it
with "$0" it being agreed that there is no longer any commitment on
the part of the Swing Line Lender to make Swing Line Loans.



            (d)           
Section 7.17(b) of the Credit Agreement shall be
replaced with the following new Section 7.17(b): 


                        "(b)      The Borrower shall, on or before January
15, 2004, deliver to Agent and Lenders, in form and substance satisfactory to
the Agent, monthly projections of the accounts receivable, inventory and fixed
assets for the BMG Business for the period January 15, 2004 through June 30,
2004;"


3.              
Temporary Waiver and Deferral.  (a) 
Subject to the conditions set forth in Section 5 hereof, Agent
and Lenders hereby (i) temporarily waive during the Waiver and Deferral
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 Repayments and Scheduled Term B
Repayments due June 30, 2003,  September
30, 2003 and December 31, 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 quarters of
Borrower ended June 30, 2003, September 30, 2003 and December 31, 2003, (D) to
comply with Sections 7.4, 7.5, 8.4, 8.6 and 8.7 of the Credit Agreement
solely with respect to Vision-Ease France SAS, Buckbee-Mears Hungary Kft.,
Buckbee-Mears Deutschland Holding GmbH & Co. KG and its wholly-owned
subsidiaries, Buckbee-Mears Europe GmbH and Vision-Ease Deutschland GmbH, (E)
to comply with Section 4.3(a); and (F) to comply with the timely
delivery of  financial and other reports
and certificates for the months ended July 31, 2003, August 31, 2003, September
30, 2003, October 31, 2003, November 30, 2003 and December 31, 2003 as required
by Sections 7.1(c), 7.2(b) and 7.2(h) of the Credit Agreement (each of
the matters in clauses (A), (B) (C), (D), (E) and (F) being, the "Disclosed
Defaults") and (ii) temporarily waive during the Waiver and
Deferral Period the application of the Default Rate with respect to the
Disclosed Defaults.                                                                                                    

             (b)      Subject
to the conditions set forth in Section 5 hereof, Agent and Lenders
hereby temporarily defer during the Waiver and Deferral Period (as defined
below) the interest payments due and owing by the Borrower on each of the dates
set forth on Annex A to this Agreement (the "Temporary Interest
Deferral") provided that all such interest payments shall be
immediately due and owing in full upon the last day of the Waiver and Deferral
Period.                                                                       



            For purposes of
this Agreement, "Waiver and Deferral Period" means the period
commencing on the Effective Date and terminating on the earliest of (a) March
15, 2004; and (b) the occurrence of an Additional Default (as defined below)
under the Loan Documents.  


            (c)        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 other than the Events of Default
which would exist absent this Agreement (collectively, the "Additional
Defaults" and, individually, each an "Additional Default").


            Upon the termination of the
Waiver and Deferral 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 other than a Disclosed Default (collectively, the "Additional
Defaults" and, individually, each an "Additional Default").


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


            (e)       BORROWER EXPRESSLY ACKNOWLEDGES AND
AGREES THAT THE WAIVERS AND DEFERRALS SET FORTH IN THIS SECTION 3 ARE
EFFECTIVE ONLY DURING THE WAIVER AND DEFERRAL PERIOD AND THAT, AFTER THE
TERMINATION OF THE WAIVER AND DEFERRAL 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 AND DEFERRAL 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 3(e) AND WOULD NOT
HAVE ENTERED INTO THIS AGREEMENT BUT FOR BORROWER'S ACKNOWLEDGMENT AND
AGREEMENT IN THIS SECTION 3(e).


4.              
Representations and Warranties.  In order to induce Agent and Lenders to
enter into this Agreement, Borrower hereby represents and warrants to Agent and
Lenders, in each case after giving effect to this Agreement, 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 Agreement and all agreements,
documents and instruments executed and delivered pursuant to this Agreement.



            (b)           
This Agreement 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
Agreement 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 Agreement and all agreements, documents and
instruments executed and delivered pursuant to this Agreement.



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



5.              
Conditions to Effectiveness of Agreement. This
Agreement shall become effective on the date (the "Effective Date")
each of the following conditions precedent is satisfied:



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



6.              
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 Agreement and the transactions contemplated hereby,
including, without limitation, the reasonable fees and expenses of Winston
& Strawn, counsel to Agent.



            (b)           
Counterparts. 
This Agreement 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 Agreement to produce more than one (1)
such counterpart.



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



            (d)           
Integration. 
This Agreement 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 AGREEMENT 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 Agreement 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
Agreement 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)            
Agreement.  The
parties hereto agree and acknowledge that nothing contained in this Agreement
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 Agreement 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 Agreement 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 Agreement 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 Agreement 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. Petersen


Name:  Clark G. Petersen


Title:  Vice President







BANK ONE, NA (Main Office Chicago)


 


individually as a
Lender and as documentation agent


 


By:  
/s/Henry W. Howe


Name:  Henry
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:  
/s/Lawrence A. Mizera


Name: Lawrence A.
Mizera


Title:  Vice
President












 


CREDIT
AGRICOLE INDOSUEZ


By: 
/s/Kathleen M. Sweeney


Name: 
Kathleen M. Sweeney


Title:  Vice
President


 


By:  /s/Frederik
W. Anse


Name: 
Frederik W. Anse


Title:  Vice
President


 












WACHOVIA
BANK, N.A.


By: 
/s/Melissa McDonald  


Name:  Melissa
McDonald


Title:  Vice
President


 












UNION
BANK OF CALIFORNIA, N.A.


By: 
/s/Joel Steiner


Name:  Joel
Steiner


Title:  Vice
President


 





 


U.S.
BANK NATIONAL ASSOCIATION


By:  /s/Erik K.
Hayes  


Name:  Erik K.
Hayes


Title: 
Officer


 


 





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 5(b) of that certain Fifth Amended Agreement
and Temporary Waiver and Deferral dated as of January 20, 2004 (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 4 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 5 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 20st day of January, 2004.


	
   

  	
  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 Fifth Amended Agreement and Temporary Waiver and Deferral (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 January 20, 2004.


VISION-EASE
LENS, INC.,


as
Guarantor


 


 


 


By:  /s/C.
E. Petersen


Name:  C. E.
Petersen


Title:  Senior
Vice President and Chief Financial Officer


 


 


VISION-EASE
LENS AZUSA, LLC,


as
Guarantor


 


 


 


By:  /s/C.
E. Petersen


Name:  C. E.
Petersen


Title:  Senior
Vice President and Chief Financial Officer


 







ANNEX A


INTEREST PAYMENTS


BMC Industries


 


Interest Payment Date  *                      Facility*                                  Interest
Due*


 


	

September 30, 2003


    	

Term Loan B 


    	

$138,066.35


    
	

 


    
	

October 8, 2003


    	

Revolver


    	

$45,260.42


    
	

 


    
	

October 16, 2003


    	

Revolver  


    	

$41,145.83


    
	

 


    
	

October 31, 2003


    	

Revolver     


    	

$21,258.68


    
	

 


    
	

October 31, 2003


    	

Term Loan A   


    	

$287,570.17


    
	

 


    
	

October 31, 2003


    	

Term Loan B


    	

$216,882.84


    
	

 


    
	

November 10, 2003


    	

Revolver


    	

$49,786.46


    
	

 


    
	

November 17, 2003


    	

Revolver


    	

$43,888.89


    
	

 


    
	

November 28, 2003


    	

Revolver


    	

$19,201.39


    
	

 


    
	

November 28, 2003


    	

Term Loan A


    	

$259,740.80


    
	

 


    
	

November 28, 2003


    	

Term Loan B


    	

$195,894.18


    
	

 


    
	

December 10, 2003


    	

Revolver


    	

$45,260.42


    
	

 


    
	

December 17, 2003


    	

Revolver  



    	

$41,145.83



    
	

 


    
	

December 31, 2003


    	

Term Loan A  


    	

$306,123.08


    
	

 


    
	

December 31, 2003


    	

Term Loan B 


    	

$230,875.28


    
	

 


    
	

December 31, 2003


    	

Revolver  


    	

$66,086.33


    
	

 


    
	

January 12, 2004


    	

Revolver  


    	

$50,416.67


    
	

 


    
	

January 20, 2004


    	

Revolver  


    	

$46,631.94


    
	

 


    
	

January 30, 2004


    	

Term Loan A


    	

$275,135.28


    
	

 


    
	

January 30, 2004


    	

Term Loan B


    	

$207,504.56


    
	

 


    
	

January 30, 2004


    	

Revolver


    	

$20,572.92


    
	

 


    
	

February 12, 2004 


    	

Revolver  


    	

$46,769.10


    



 


*Interest payments due on
Interest Payment Dates arising during the period from February 12, 2004 through
the end of the Waiver and Deferral Period shall also be deferred and this Annex
A will be deemed updated as information with respect to such payments
becomes available.






ANNEX B


BMG HARVESTING
PAYMENT SCHEDULE


 


For
the time period from the Effective Date of the Fifth Amendment through
1/30/2004, 85% of cash generated from the collection of accounts receivable
shall be retained by the Lenders and applied to the Loans on a weekly basis in
the manner set forth in Section 4.4 of the Credit Agreement.


For
the period 1/31/04 - 3/15/04, the percentage of collected accounts receivable
retained by the Lenders and applied to the Loans on a weekly basis will be
revised at the request of the Agent (with such percentage agreed upon by the
Agent and the Borrower) based on the weekly cash flow forecast delivered by the
Borrower and on the monthly projections of accounts receivable, inventory and
fixed assets as required under Section 7.17(b) of the Credit Agreement; provided,
however, that the percentage of accounts receivable applied to the Loans
shall not be reduced below 65% without the consent of the Required
Lenders.  It is understood that the
percentage of accounts receivable will be revised on each of 1/30/2004 and
2/27/04 and at such other times as the Agent requires.  


100% of the Net Sale Proceeds
from any sale of fixed assets or other personal property of the BMG Business
shall be applied to the Loans in the manner set forth in Section 4.4 of
the Credit Agreement.


In
the event that the sum of cash and cash equivalents held by the Borrower and
its Subsidiaries exceed $5,000,000 for any period of three consecutive Business
Days, the Borrower shall, on the Business Day immediately following such
period, prepay the Loans in an amount equal to any amounts in excess of
$5,000,000 in the manner set forth in Section 4.4 of the Credit
Agreement.