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Exhibit 10.58
FIFTH AMENDMENT TO SENIOR SECURED CREDIT AGREEMENT AND FORBEARANCE
This FIFTH AMENDMENT TO SENIOR SECURED CREDIT AGREEMENT AND FORBEARANCE
(this "Fifth Amendment") is entered into as of February 19, 1999 by and among
ADFlex Solutions, Inc., a Delaware corporation (the "Borrower"), and the banks
and other financial institutions that either now or in the future are parties
thereto as lenders (collectively the "Lenders" and each individually a
"Lender"), BankBoston, N.A. in its capacity as the L/C Issuer (in such capacity,
together with any successors thereto in such capacity, the "L/C Issuer"), and
BankBoston N.A., as agent and representative for the Lenders (in such capacity
BankBoston N.A. or any successor in such capacity is referred to herein as the
"Agent"). The Lenders, the L/C Issuer, and the Agent are collectively referred
to herein as the "Lender Parties" and each individually as a "Lender Party".
RECITALS
A. Borrower and Lender Parties are parties to that certain Senior Secured
Credit Agreement (the "Credit Agreement") dated as of June 5, 1997, as amended,
pursuant to which the Lenders agreed to make available to Borrower certain
credit facilities, and certain related loan documents (the "Loan Documents").
B. On February 16, 1999 Borrower delivered Agent a Borrowing Base
Certificate (the "February Borrowing Base Certificate") which indicated a
Borrowing Base of $13,600,000 and notified Agent that the aggregate Revolving
Commitment Usage of all Lenders exceeded such Borrowing Base. Borrower informed
Agent that it would not comply with its obligation to make a mandatory
prepayment of such excess amount pursuant to Section 2.8.2.1. of the Credit
Agreement. Pursuant to Section 7.1.1. of the Credit Agreement an Event of
Default has occurred as a result of Borrower's failure to repay such amount.
Borrower has requested, and the Lender Parties have agreed, to forebear from
terminating their Commitments or exercising their other available remedies
before March 5, 1999.
C. Borrower and the Lender Parties have agreed to make certain amendments
to the Credit Agreement, subject to the conditions and in reliance on the
representations and warranties set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, each Lender Party and Borrower hereby
agree as follows:
AGREEMENT
1. DEFINED TERMS; SECTION REFERENCES. Initially capitalized terms used but
not defined in this Fifth Amendment shall have the meanings assigned to such
terms in the Credit
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Agreement. All "Section" references herein are to sections of the Credit
Agreement unless otherwise specified.
2. AMENDMENTS TO SECTION 1.1 OF THE CREDIT AGREEMENT.
The new definition of "February 1999 Default" is hereby added to provide
in its entirety as follows:
""FEBRUARY 1999 DEFAULT" means the Default under Section 7.1.1. which has
occurred by Borrower's failure to make a mandatory prepayment on February 16,
1999 as required by Section 2.8.2.1."
3. AMENDMENTS TO SECTION 2.1.2.1. OF THE CREDIT AGREEMENT.
Section 2.1.2.1. of the Credit Agreement is hereby amended to provide in
its entirety as follows:
"2.1.2.1. Each Lender severally agrees, upon the terms and subject
to the conditions set forth in this Agreement, at any time from and after
the Closing Date until the Business Day next preceding the Termination
Date, to make revolving loans (each a "Revolving Loan") to the Borrower,
provided that (a) the Revolving Commitment Usage of any Lender shall not
exceed, at any time, the Revolving Commitment of such Lender, and (b) the
Revolving Commitment Usage of all Lenders at any time, in the aggregate,
shall not exceed the lesser of (i) the aggregate Revolving Commitments of
all Lenders, and (ii) the Borrowing Base then in effect, provided that for
the period beginning on February 17, 1999 and ending on March 5, 1999, the
Revolving Commitment Usage of all Lenders, in the aggregate, shall not
exceed $17,100,000."
4. AMENDMENTS TO SECTION 2.4.1.2. OF THE CREDIT AGREEMENT.
Section 2.4.1.2. of the Credit Agreement is hereby amended to provide in
its entirety as follows:
"2.4.1.2. Notwithstanding the foregoing provisions of this Section 2.4.1.,
(i) any principal, interest or other amount payable under this Agreement and the
other Loan Documents that is not paid when due shall bear interest at a rate per
annum equal to the Post-Default Rate, without notice or demand of any kind, and
(ii) beginning on February 17, 1999 and each day thereafter, all principal,
interest or other amounts payable under this Agreement and the other Loan
Documents shall bear interest at a rate per annum equal to the Post-Default
Rate."
5. AMENDMENTS TO SECTION 3.2.4. OF THE CREDIT AGREEMENT.
Section 3.2.4. of the Credit Agreement is hereby amended to provide in its
entirety as follows:
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"3.2.4. NO DEFAULT. No Default or Event of Default (other than prior to
March 6, 1999, the February 1999 Default) shall exist or result from the making
of the Loan or the issuance of the Letter of Credit.
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6. AMENDMENTS TO SCHEDULES AND EXHIBITS TO THE CREDIT AGREEMENT.
Schedule 1.1A to the Credit Agreement is hereby amended to provide in its
entirety as set forth on the Amended Schedule 1.1A attached hereto.
7. FORBEARANCE FROM TAKING ACTION IN CONNECTION WITH EXISTING DEFAULT.
Beginning February 17, 1999 through March 5, 1999, by its signature below each
Lender Party hereby agrees to forebear from terminating its Commitments or
exercising, or directing Agent to exercise, any other remedies as a result of
Borrower's failure to make a mandatory prepayment pursuant to Section 2.8.2.1.
of the Credit Agreement and the related Default which has occurred under Section
7.1.1. of the Credit Agreement; provided, however, that Borrower agrees and
acknowledges that after March 5, 1999 Lender Parties may terminate their
Commitments and exercise all of their rights and remedies provided in Section
7.2 of the Credit Agreement or otherwise, including declaring all Loans to be
immediately due and payable unless Borrower and Lender Parties shall execute an
amendment to the Credit Agreement which is approved by each Lender Party in its
sole and absolute discretion.
8. FORBEARANCE LIMITED. The forbearance given herein is strictly limited
to its terms and shall not have any force and effect other than as expressly set
forth herein. No further forbearance, either of additional Defaults or Events of
Default or for any additional period, shall be implied from the forbearance
provided herein.
9. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS FIFTH AMENDMENT.
Lender Parties' obligations under this Fifth Amendment are conditioned upon, and
this Fifth Amendment shall not be effective until, satisfaction in full of each
of the following:
(a) Agent shall have received this Fifth Amendment, duly executed by each
appropriate Person and in form and substance satisfactory to Agent and its
counsel;
(b) Borrower shall have paid to Agent all amounts then due and payable
pursuant to Section 9.1 of the Credit Agreement which shall have been presented
for payment;
(c) All of the representations and warranties of Borrower contained
herein, in the Credit Agreement and in each other Loan Document shall be true
and correct in all material respects on and as of the effective date of this
Fifth Amendment, as though made on and as of that date (except to the extent
that such representations and warranties expressly relate to an earlier date or
reflect changes brought about by this Fifth Amendment);
(d) Borrower shall have delivered to Agent certified copies of resolutions
of its Board of Directors authorizing Borrower to execute and deliver this Fifth
Amendment and the Warrants, in form and substance satisfactory to Agent in its
sole and absolute discretion;
(e) Other than the February 1999 Default, no Default or Event of Default
shall have occurred and be continuing or would result from the consummation of
the transactions contemplated in this Fifth Amendment; and
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(f) All other documents, certificates, consents and opinions required by
Agent in connection with the transactions contemplated by this Fifth Amendment
shall have been executed and delivered in form and substance satisfactory to
Agent in its sole and absolute discretion.
10. REPRESENTATIONS AND WARRANTIES. In order to induce Lender Parties to
enter into this Fifth Amendment, Borrower makes the following representations
and warranties:
(a) The representations and warranties contained in the Credit Agreement
(and in the Schedules thereto) and each of the other Loan Documents (and in the
Schedules thereto) are true, correct and complete in all material respects at
and as of the effective date of this Fifth Amendment (except to the extent that
such representations and warranties expressly relate to an earlier date or
reflect changes brought about by this Fifth Amendment); and
(b) This Fifth Amendment and all other agreements and documents executed
by Borrower in connection herewith have been duly executed and delivered by
Borrower and constitute the legal, valid and binding obligations of Borrower,
enforceable against Borrower in accordance with their terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to the enforcement of the rights of creditors
generally, or the exercise of judicial discretion with respect to equitable
remedies.
11. REFERENCES. All references in the Credit Agreement to "this
Agreement", "hereof", "herein", "hereto", or words of similar import, and all
references in all other Loan Documents to "the Credit Agreement" shall be, and
shall be deemed to be for all purposes, references to the Credit Agreement as
amended.
12. CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS OTHERWISE NOT AFFECTED.
Except as expressly amended pursuant to this Fifth Amendment, the Credit
Agreement and each of the other Loan Documents shall remain unchanged and in
full force and effect and are hereby ratified and confirmed in all respects.
Each Lender Party continues to reserve any and all rights and remedies under the
Credit Agreement and each of the other Loan Documents, and no failure, delay or
discontinuance on the part of any Lender Party in exercising any right, power or
remedy thereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
This Fifth Amendment and the Credit Agreement shall be read together, as one
document.
13. BINDING EFFECT. This Fifth Amendment shall be binding upon, inure to
the benefit of and be enforceable by Borrower and each Lender Party and their
respective successors and assigns, as permitted pursuant to the Credit
Agreement.
14. TIME OF THE ESSENCE. Time and exactitude of each of the terms,
obligations, covenants and conditions of this Fifth Amendment are hereby
declared to be of the essence.
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15. GOVERNING LAW. THIS FIFTH AMENDMENT IS A CONTRACT UNDER THE LAWS OF
THE STATE OF CALIFORNIA AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY SUCH LAWS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW).
16. COUNTERPARTS. This Fifth Amendment may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving any matter with respect to this Fifth
Amendment it shall not be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Fifth
Amendment, as of the date first above written.
AGENT:
BANKBOSTON, N.A.,
A NATIONAL BANKING ASSOCIATION,
as Agent, L/C Issuer and a Lender
By: \s\ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: Vice President
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LENDERS:
BANK ONE, ARIZONA, N.A.,
A NATIONAL BANKING ASSOCIATION
By: \s\ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: Vice President
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IMPERIAL BANK,
A CALIFORNIA BANKING CORPORATION
By: \s\ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Senior Vice President
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THE UNION BANK OF CALIFORNIA,
A NATIONAL BANKING ASSOCIATION
By: \s\ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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BORROWER:
ADFLEX SOLUTIONS, INC.,
A DELAWARE CORPORATION
By: \s\ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title: Chief Financial Officer
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SCHEDULE 1.1A
COMMITMENTS
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Lender Commitment Revolving Commitment Term Commitment Warrants
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BankBoston, N.A $ 12,833,333.333 $ 5,541,666.667 $ 7,291,666.667 14,583
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Bank One, Arizona, N.A 11,000,000 4,750,000.000 6,250,000.000 12,500
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The Union Bank of California 11,000,000 4,750,000.000 6,250,000.000 12,500
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Imperial Bank 9,166,666.667 3,958,333.333 5,208,333.333 10,417
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Total $ 44,000,000 $ 19,000,000.000 $ 25,000,000.000 50,000
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Schedule 1.1A
