bmc fourth amended agreement





EXECUTION COPY


 


FOURTH AMENDED AGREEMENT 


THIS FOURTH
AMENDED AGREEMENT (this "Agreement"), effective as of November
19, 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  as amended by that certain First Amended
Agreement and Temporary Waiver dated as of July 15, 2003 and as further amended
by that certain Second Amended Agreement and Temporary Waiver dated as of
September 15, 2003 and that certain Third Amended Agreement and Temporary
Waiver Dated 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 make certain amendments to the Credit Agreement (as amended by the
Original Waiver 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.              
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 further
amended by adding the following new definitions in appropriate alphabetical
order therein: 




                        "Fourth
Amended Agreement" means that certain Fourth Amended Agreement
effective as of November 19, 2003 among the Borrower, the Agent and the
Lenders.  


         (b)          On the "Effective Date" of the
Fourth Amended Agreement (as defined in Section 4 thereof), the Total Revolving
Commitment shall be increased to $31,800,000 and the Revolving Commitments of
each Lender will be proportionately increased to the amounts specified on the
new Schedule 2.1(b) attached as Annex A to the Fourth Amended
Agreement.


3.              
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.  

  



4.              
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.






5.              
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 Peterson


Name: Clark Peterson


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:  AVP












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/James Jerz


Name: James Jerz


Title: Vice President


  





  


CREDIT
AGRICOLE INDOSUEZ


By: /s/Kathleen M.
Sweeney


Name:  Kathleen M. Sweeney


Title:  Vice President


 


By:  /s/Leo Von Reissig


Name:  Leo Von Reissig


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/Jeffrey Mumm


Name: Jeffrey Mumm


Title:  Vice President


  





  


U.S.
BANK NATIONAL ASSOCIATION


By: /s/David
Kopolow


Name:  David Kopolow


Title: SVP





 


 











 


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 Fourth Amended Agreement
dated as of November 19, 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 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 19th day of November, 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 Fourth Amended Agreement (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 November 19th, 2003.



  

                                                                        VISION-EASE
LENS, INC.,


                                                                        as
Guarantor


 


 


                                                                        By:
/s/C. E. Petersen


                                                                        Name:  C. E. Petersen


                                                                        Title:  SVP and CFO


 


 


                                                                        VISION-EASE
LENS AZUSA, LLC,


                                                                        as
Guarantor


 


 


 


                                                                        By:
/s/C. E. Petersen


                                                                        Name:   C. E. Petersen


                                                                        Title:  SVP and CFO


  




 


 


 





 




ANNEX A


Schedule 2.1(b)


 


REVOLVING
COMMITMENTS


 


 


	
  Name
  of Lender

  	
   

  	
  Revolving
  Commitment

  
	
  Deutsche
  Bank Trust Company of Americas

  	
   

  	
   $  
  6,296,400.00

  
	
  Bank One,
  NA

  	
   

  	
   $  
  6,296,400.00

  
	
  U.S. Bank
  National Association

  	
   

  	
   $  
  5,978,400.00

  
	
  Wells
  Fargo Bank Minnesota,

  National Association

  	
   

  	
   $  
  3,816,000.00

  
	
  Harris
  Trust and Savings Bank

  	
   

  	
   $  
  2,671,200.00

  
	
  Credit
  Agricole Indosuez

  	
   

  	
   $  
  2,544,000.00

  
	
  Wachovia
  Bank, N.A.

  	
   

  	
   $  
  2,289,600.00

  
	
  Union
  Bank of California, N.A.

  	
   

  	
   $  
  1,908,000.00

  
	
    Total

  	
   

  	
   $ 31,800,000.00