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EXHIBIT 10.55
SECOND AMENDMENT TO SENIOR SECURED CREDIT AGREEMENT
AND CERTAIN LOAN DOCUMENTS; WAIVER OF EXISTING
DEFAULT
This SECOND AMENDMENT TO SENIOR SECURED CREDIT AGREEMENT AND CERTAIN
LOAN DOCUMENTS; WAIVER OF EXISTING DEFAULT (this "Second Amendment") is entered
into as of May _11_, 1998 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 dated as of June 5, 1997, as amended by that certain
First Amendment to Senior Secured Credit Agreement and Certain Loan Documents
dated February 9, 1998 (the "First Amendment")(as so amended, the "Credit
Agreement"), pursuant to which the Lenders agreed to make available to Borrower
certain credit facilities, and certain related loan documents (the "Loan
Documents").
B. By fax notification dated April 13, 1998, followed by a letter of
notification dated May 7, 1998, Borrower has notified Agent that it is in
default with respect to the debt service coverage ratio covenant contained in
Section 6.5.4 of the Credit Agreement. Borrower has requested, and the Lender
Parties have agreed, that the resulting Default shall be waived, that the
requirements imposed by Section 6.5.4 shall be waived for the four Fiscal
Quarters of 1998, and that Section 6.5.4 shall nevertheless be in full force and
effect from and after the first Fiscal Quarter of 1999.
C. In addition, 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 Second Amendment shall have the meanings assigned to
such terms in the Credit Agreement. All "Section" references herein are to
sections of the Credit Agreement unless otherwise specified.
2. WAIVER OF EXISTING DEFAULT; WAIVER OF EFFECT OF SECTION 6.5.4 OF THE
CREDIT AGREEMENT FOR FISCAL 1998.
Credit Agreement
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(a) On a one-time-only basis, by its signature below each Lender Party
hereby waives the Default that exists as of the end of the fiscal quarter that
ended in March, 1998 as a result of Borrower's failure to comply with Section
6.5.4 of the Credit Agreement for the two consecutive fiscal quarters then
ended.
(b) By its signature below, each Lender Party hereby agrees that
Borrower's failure to comply with the requirement imposed by Section 6.5.4 of
the Credit Agreement shall not create a Default or an Event of Default as of the
end of the fiscal quarter ending in June, 1998, the end of the fiscal quarter
ending in September, 1998, or the end of the fiscal quarter ending in December,
1998; provided, however, that Borrower agrees and acknowledges that Section
6.5.4 shall be in full force and effect, as if it had never been waived, with
respect to the period of two consecutive fiscal quarters ending in March, 1999,
and for each relevant period thereafter.
3. NEW SECTION 6.14 OF THE CREDIT AGREEMENT.
(a) A new Section 6.14 of the Credit Agreement shall be added, and
shall provide in its entirety as follows:
"SECTION 6.14. CAPITAL EXPENDITURES. The Borrower shall not, and shall
not permit any Subsidiary to, directly or indirectly make Capital Expenditures
in excess of $23,000,000, in the aggregate, during the Fiscal Year ending in
December, 1998."
4. WAIVER LIMITED. The waiver 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 waiver, either of additional terms or for any additional
period, shall be implied from the waiver provided herein. Without limiting the
foregoing, the waiver provided herein is subject to the limitations set forth in
Section 9.3.1.5 of the Credit Agreement.
5. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS SECOND AMENDMENT.
Lender Parties' obligations under this Second Amendment are conditioned upon,
and this Second Amendment shall not be effective until, satisfaction in full of
each of the following:
(a) Agent shall have received this Second Amendment, duly executed by
each appropriate Person and in form and substance satisfactory to Agent and its
counsel;
(b) 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
Second 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 Second Amendment);
(c) Borrower's Board of Directors shall have authorized Borrower to
execute and deliver this Second Amendment;
(d) No Default or Event of Default (other than the Default waived
herein) shall have occurred and be continuing or would result from the
consummation of the transactions contemplated in this Second Amendment; and
(e) All other documents, certificates, consents and opinions required
by Agent in connection with the transactions contemplated by this Second
Amendment shall have been executed and delivered in form and substance
satisfactory to Agent in its sole and absolute discretion.
Credit Agreement
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6. REPRESENTATIONS AND WARRANTIES. In order to induce Lender Parties to
enter into this Second 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 Second Amendment (except to the
extent that such representations and warranties expressly relate to an earlier
date or reflect changes brought about by this Second Amendment); and
(b) This Second 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.
7. 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.
8. CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS OTHERWISE NOT AFFECTED.
Except as expressly amended pursuant to this Second 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 Second Amendment and the Credit Agreement shall be read together, as one
document.
9. BINDING EFFECT. This Second 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.
10. TIME OF THE ESSENCE. Time and exactitude of each of the terms,
obligations, covenants and conditions of this Second Amendment are hereby
declared to be of the essence.
11. GOVERNING LAW. THIS SECOND 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).
12. COUNTERPARTS. This Second 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 Second
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.
Credit Agreement
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IN WITNESS WHEREOF, the parties hereto have duly executed this Second
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
LENDERS:
BANK ONE, ARIZONA, N.A.,
A NATIONAL BANKING ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
IMPERIAL BANK,
A CALIFORNIA BANKING CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE UNION BANK OF CALIFORNIA,
A NATIONAL BANKING ASSOCIATION
By:_____________________________
Name:___________________________
Title:__________________________
Credit Agreement
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BORROWER:
ADFLEX SOLUTIONS, INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
Credit Agreement
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