8-K 1 form

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): July 15, 2003

BMC Industries, Inc.

(Exact name of registrant as specified in its charter)

Minnesota	1-8467	41-0169210
(State of Incorporation)	(Commission file number)	(I.R.S. Employer Identification No.)


One Meridian Crossings, Suite 850
Minneapolis, Minnesota		55423
(Address of principal executive offices)		(Zip Code)

(952) 851-6000

(Registrant's telephone number)

Items 1-4.	Not Applicable.

Item 5.	Other Events.

The Company has entered into an Agreement and Temporary Waiver (the "Waiver"), dated as of July 15, 2003, with Deutsche Bank Trust Company Americas, as administrative agent for the lenders and a lender, Bank One, NA, as documentation agent and a Lender; and several banks and other financial institutions, providing an additional 60-day waiver on certain covenants that exist under the Third Amended and Restated Credit Agreement, dated September 27, 2002, as has been amended from time to time (the "Third Amended and Restated Credit Agreement").

The Waiver also provides an extension of time for the Registrant to make certain scheduled principal and fee payments.

A press release announcing the waiver extension was issued on July 16, 2003, a copy of which is being filed as Exhibit 99.1 to this Form 8-K and which is incorporated herein by reference in its entirety.

Item 6.	Not Applicable.

Item 7.	Financial Statements and Exhibits.

	(a) - (b)	Not Applicable.

	(c)	Exhibits Required by Item 601 of Regulation S-K.

	Exhibit	Description

	10.50	First Amended Agreement and Temporary Waiver, dated as of July 15, 2003, among BMC Industries, Inc., Deutsche Bank Trust Company Americas, as Administrative Agent and Bank One, NA, as Documentation Agent and Various Lending Institutions.

	99.1	Press Release issued by BMC Industries, Inc., dated July 16, 2003.

Items 8-9.		Not Applicable.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

		BMC INDUSTRIES, INC.

Dated: July 17, 2003	By:	/s/Jon A. Dobson
		Jon A. Dobson
	Its:	Vice President, General Counsel and Secretary

EXHIBIT INDEX

Exhibit	Description	Method of Filing

10.50	First Amended Agreement and Temporary Waiver, dated as of July 15, 2003, among BMC Industries, Inc., Deutsche Bank Trust Company Americas, as Administrative Agent and Bank One, NA, as Documentation Agent and Various Lending Institutions.	Electronic Transmission

99.1	Press Release, dated July 16, 2003, issued by BMC Industries, Inc.	Electronic Transmission

EX-99.1 3 exhibit_99-1.htm BMC Vision-Ease Lens

BMC
	BMC Industries, Inc.
	One Meridian Crossings, Suite 850
	Minneapolis, MN 55423
	Website: www.bmcind.com

NEWS RELEASE

CONTACT:	CURTIS E. PETERSEN	(NYSE: BMM)
	(952) 851-6030	FOR IMMEDIATE RELEASE

BMC Industries Receives Bank Waiver Extension

MINNEAPOLIS, July 16, 2003 - BMC Industries, Inc. (NYSE: BMM) today announced that its banks have granted the company an additional 60-day waiver of certain covenants under its credit facility. BMC received an initial two-week waiver on June 30, 2003, following notice by BMC to its bank group that the company expected to fall outside of compliance with certain covenants and obligations under its credit facility as of June 30, 2003. The waiver announced today, extends the time period for BMC to make certain scheduled principal and fee payments. In addition, the banks and the Company have agreed that no additional borrowings will be extended during the waiver period. Discussions continue between BMC, its banks and the company's advisors, regarding a longer-term resolution of the situation.

About BMC Industries

BMC Industries, founded in 1907, comprises two business segments: Buckbee-Mears and Optical Products. The Buckbee-Mears group offers a range of services and manufacturing capabilities to meet the most demanding precision metal manufacturing needs. The group is also the only North American manufacturer of aperture masks, a key component in color television picture tubes.

The Optical Products group, operating under the Vision-Ease Lens trade name, is a leading designer, manufacturer and distributor of polycarbonate, glass and plastic eyewear lenses. Vision-Ease Lens is a technology and a market share leader in the polycarbonate lens segment of the market. Polycarbonate lenses are thinner and lighter than lenses made of other materials, while providing inherent ultraviolet (UV) filtering and impact resistant characteristics.

BMC Industries, Inc. is listed on the New York Stock Exchange under the ticker symbol "BMM." For more information about BMC Industries, Inc., visit the company's Web site at www.bmcind.com.

Safe Harbor for Forward-Looking Statements

This news release contains various "Forward-Looking Statements" within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 that are intended to be covered by the safe harbors created thereby. Statements made in this news release that are not statements of historical facts, including statements regarding future performance, are Forward-Looking Statements. Such statements are subject to a number of risks and uncertainties that could cause, and in certain instances have caused, actual results or outcomes to differ materially from those projected, including, among others, our ability to obtain additional waivers or other relief from our lenders beyond the additional sixty days granted to the Company; ability to negotiate financing arrangements or other solutions in replacement of our existing credit facility; our ability to generate sufficient cash flow to meet obligations during the waiver period and beyond and availability of borrowing capacity to the Company going forward; the ability to meet future financial covenants under our credit agreement; ability to maintain credit terms with vendors; ability to manage working capital and align costs with market conditions; ability to achieve higher yields at Vision-Ease; ability to reduce inventories while maintaining consistently high customer service levels and product fill rates; ability to increase sales of products at both Vision-Ease and Buckbee-Mears, in particular our ability to replace lost NAFTA and European aperture mask sales with sales in Asia and other areas of the world; further aperture mask price declines; slowdown in growth of, or price reductions in, high-end optical lens products; fluctuations in currency exchange rates; rising raw material costs; ability to execute the restructuring of our European operations; ability to develop new products need to grow within our markets; and the effect of ongoing economic uncertainty on the Company's operations. These and other risks and uncertainties are discussed in further detail in BMC's Annual Report and Form 10-K for the year ended December 31, 2002 and other documents filed with the Securities and Exchange Commission.

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EX-10.50 4 exhibit_10-50.htm 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

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