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EXHIBIT 10.52
FIRST AMENDMENT TO SENIOR SECURED CREDIT AGREEMENT
AND CERTAIN LOAN DOCUMENTS
This FIRST AMENDMENT TO SENIOR SECURED CREDIT AGREEMENT AND
CERTAIN LOAN DOCUMENTS (this "First Amendment") is entered into as of February
9, 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 (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. Borrower and the Lender Parties have agreed to make certain
amendments to the Credit Agreement and to certain of the Loan Documents, 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 First 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. AMENDMENTS TO SECTION 1.1 OF THE CREDIT AGREEMENT.
(a) A new definition of "Term Commitment" shall be added to
Section 1.1 of the Credit Agreement, and shall provide in its entirety as
follows:
""TERM COMMITMENT" means, with respect to each Lender, the
amount set forth for such Lender as its "Term Commitment" on Schedule 1.1A, as
reduced or terminated from time to time pursuant to the terms hereof."
(b) The definition of "Term Loan Maturity Date" shall be
amended to provide in its entirety as follows:
""TERM LOAN MATURITY DATE" means December 31, 2002."
Credit Agreement
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3. AMENDMENTS TO SECTION 2.1.1. OF THE CREDIT AGREEMENT.
Section 2.1.1. of the Credit Agreement shall be amended to
provide in its entirety as follows:
"2.1.1. TERM LOANS. Each Lender severally agrees, upon the
terms and subject to the conditions set forth in this Agreement, to make Term
Loans to the Borrower as follows: (a) a single borrowing of Term Loans
aggregating $25,000,000 will be made on the Closing Date; (b) a single borrowing
of Term Loans aggregating $5,000,000 will be made on the date of this First
Amendment; and (c) a single borrowing of Term Loans aggregating $5,000,000 will
be made on a date to be specified by Borrower during the period beginning on the
date of this First Amendment and ending on August 31, 1998; provided, however,
that no Lender shall be required to extend Term Loans in a principal amount
exceeding such Lender's Term Commitment as of the date of the requested
borrowing of Term Loans."
4. AMENDMENTS TO SECTION 2.7.1. OF THE CREDIT AGREEMENT.
Section 2.7.1. of the Credit Agreement shall be amended to
provide in its entirety as follows:
"2.7.1. Each Lender's Revolving Commitment shall terminate
without further action on the part of such Lender on the earlier to occur of (a)
December 31, 2000 (or if that date is not a Business Day, the next preceding
LIBOR Business Day) (the "Stated Termination Date"), and (b) the date of
termination of the Revolving Commitment pursuant to Section 2.7.2. or 7.2. (such
earlier date being referred to herein as the "Termination Date")."
5. AMENDMENTS TO SECTION 2.8.1.1. OF THE CREDIT AGREEMENT.
Section 2.8.1.1. shall be amended such that it will provide,
in its entirety, as follows:
"2.8.1.1. The Borrower shall make principal payments as
follows: (i) a principal payment in the amount of $1,785,714.28 will be paid on
the last Business Day of each of the five quarters beginning with the quarter
that ends on December 31, 1998, and (ii) a principal payment in the amount of
one-twelfth of the outstanding balance as of January 1, 2000 will be paid on the
last Business Day of each of the twelve quarters beginning with the quarter that
ends on March 31, 2000 (each such payment date being referred to hereinafter as
a "Term Loan Payment Date"). The Term Loans in any event shall be paid in full
on the Term Loan Maturity Date. The principal amount of the Term Loans prepaid
or repaid by the Borrower may not be reborrowed."
6. AMENDMENTS TO SECTION 2.8.3. OF THE CREDIT AGREEMENT.
Section 2.8.3. of the Credit Agreement shall be amended by
deleting Section 2.8.3.3. in its entirety.
7. AMENDMENTS TO SECTION 6.2.6. OF THE CREDIT AGREEMENT.
Section 6.2.6. of the Credit Agreement shall be amended to provide in its
entirety as follows:
"6.2.6. Other Debt of the Borrower that is (i) unsecured or
(ii) secured only by a valid and perfected purchase money security interest, in
an aggregate amount incurred during the term of this Agreement not exceeding
$15,000,000;".
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8. AMENDMENTS TO SECTION 6.5.3. OF THE CREDIT AGREEMENT.
Section 6.5.3. of the Credit Agreement shall be amended to provide in its
entirety as follows:
"6.5.3. INTEREST COVERAGE RATIO. As of the last day of each
Fiscal Quarter, Borrower's Interest Coverage Ratio for the two consecutive
Fiscal Quarters then ended shall not be less than 3:00 to 1:00."
9. AMENDMENTS TO SCHEDULES TO THE CREDIT AGREEMENT.
(a) Schedule 1.1A to the Credit Agreement shall be amended to
provide in its entirety as set forth on the Amended Schedule 1.1A attached
hereto.
(b) Schedule 1.1E to the Credit Agreement shall be amended to
provide in its entirety as set forth on the Amended Schedule 1.1.E attached
hereto.
10. AMENDMENT TO SECURITY AGREEMENT. Section 4.8 of the
Security Agreement entered into in connection with the Credit Agreement shall be
amended to provide in its entirety as follows:
"SECTION 4.8. DELIVERY OF PLEDGED COLLATERAL. The Grantor
shall deliver to the Agent, together with appropriate endorsements or
documentation of assignment thereof acceptable to the Agent, any and all Notes
Receivable or Chattel Paper having a face amount, negotiable Documents
evidencing title to any Collateral having a fair market value, and all
certificated Securities having a fair market value, individually or in the
aggregate, that is Material (collectively the "Pledged Collateral"). All
Collateral of such types that is not required to be so delivered to the Agent
shall bear a legend showing the interest of the Agent therein."
11. AGREEMENT RE INCURRENCE OF SECURED DEBT. Borrower has
informed the Agent that following the Closing Date, Borrower's subsidiary ADFlex
Cayman Limited ("ADFlex Cayman") incurred secured Debt in connection with its
purchase of twenty percent (20%) of the stock of ADFlex Thailand Ltd. ("ADFlex
Thailand") (ADFlex Cayman already owned the other eighty percent (80%) of the
stock of ADFlex Thailand). Although Borrower does not concede that such
transaction resulted in a Default or an Event of Default, Agent and the Lenders
hereby waive the existence of any Default or Event of Default that may have
existed as a result of the incurrence of such Debt and the granting of a Lien in
connection therewith, provided that such waiver shall be effective only to the
extent that ADFlex Cayman repays such Debt in full, in accordance with its terms
and not later than the stated maturity date therefor, and does not enter into
any agreement varying the terms or extending the maturity date of, or replacing
or refinancing, such secured Debt.
12. AMENDMENT FEE. On the date hereof, Borrower shall pay to
Agent, for the ratable benefit of the Lenders, an amendment fee (the "Amendment
Fee") of one tenth of one percent (.10%) of the sum of the Lenders' Term
Commitments and Revolving Commitments on such date.
13. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS FIRST
AMENDMENT. Lender Parties' obligations under this First Amendment are
conditioned upon, and this First Amendment shall not be effective until,
satisfaction in full of each of the following:
(a) Agent shall have received this First Amendment, duly
executed by each appropriate Person and in form and substance satisfactory to
Agent and its counsel;
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(b) Borrower shall have paid to Agent (i) the Amendment Fee;
and (ii) 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 First 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 First Amendment);
(d) Borrower shall have delivered to Agent certified copies of
resolutions of its Board of Directors authorizing Borrower to execute and
deliver this First Amendment, in form and substance satisfactory to Agent in its
sole and absolute discretion;
(e) No Default or Event of Default shall have occurred and be
continuing or would result from the consummation of the transactions
contemplated in this First Amendment; and
(f) All other documents, certificates, consents and opinions
required by Agent in connection with the transactions contemplated by this First
Amendment shall have been executed and delivered in form and substance
satisfactory to Agent in its sole and absolute discretion.
14. REPRESENTATIONS AND WARRANTIES. In order to induce Lender
Parties to enter into this First 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 First Amendment (except to the
extent that such representations and warranties expressly relate to an earlier
date or reflect changes brought about by this First Amendment); and
(b) This First 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.
15. 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.
16. CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS OTHERWISE NOT
AFFECTED. Except as expressly amended pursuant to this First 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 First Amendment and the Credit Agreement shall be read together, as one
document.
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17. BINDING EFFECT. This First 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.
18. TIME OF THE ESSENCE. Time and exactitude of each of the
terms, obligations, covenants and conditions of this First Amendment are hereby
declared to be of the essence.
19. GOVERNING LAW. THIS FIRST 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).
20. COUNTERPARTS. This First 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
First 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
First 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\ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Division Executive
LENDERS:
BANK ONE, ARIZONA, N.A.,
A NATIONAL BANKING ASSOCIATION
By: \s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
IMPERIAL BANK,
A CALIFORNIA BANKING CORPORATION
By: \s\ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE UNION BANK OF CALIFORNIA,
A NATIONAL BANKING ASSOCIATION
By: \s\ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
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BORROWER:
ADFLEX SOLUTIONS, INC.,
A DELAWARE CORPORATION
By: \s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President, Chief Financial
Officer
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SCHEDULE 1.1A
COMMITMENTS
Lender Committment Revolving Commitment Term Commitment
------ ----------- -------------------- ---------------
BankBoston, N.A. $17,500,000 $ 7,291,666.667 $10,208,333.333
Bank One, Arizona, N.A. 15,000,000 6,250,000.000 8,750,000.000
The Union Bank of California 15,000,000 6,250,000.000 8,750,000.000
Imperial Bank 12,500,000 5,208,333.333 7,291,666.667
Total $60,000,000 $25,000,000.000 $35,000,000.000
Credit Agreement
Schedule 1.1A
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SCHEDULE 1.1E
APPLICABLE MARGIN & FEE RATE
The "APPLICABLE MARGIN" in respect of LIBOR Rate Loans and the "FEE
RATE" for any day are the respective rates per annum set forth below in the
applicable row under the column corresponding to the Pricing Level that applies
on such day:
L L L L L
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
PRICING LEVEL PRICING PRICING PRICING PRICING PRICING
------------- ------- ------- ------- ------- -------
Applicable Margin 1 1 1 1
(LIBOR Rate Loans) 1.25 1.50 1.75 2.00 2.25 2
0 0 0 .
Fee Rate .20 .20 .20 .25 .30 0
For purposes of this Schedule, the following terms have the following
meanings:
"LEVEL I PRICING" applies during any Pricing Period if, at the end of
the Fiscal Quarter most recently ended prior to the first day of such Pricing
Period, the Interest Coverage Ratio for the two consecutive Fiscal Quarters then
ended was greater than 7.50 to 1.00.
"LEVEL II PRICING" applies during any Pricing Period if no higher
Pricing Level applies and, at the end of the Fiscal Quarter most recently ended
prior to the first day of such Pricing Period, the Interest Coverage Ratio for
the two consecutive Fiscal Quarters then ended was less than or equal to 7.50 to
1.00, but greater than 5.00 to 1.00.
"LEVEL III PRICING" applies during any Pricing Period if no higher
Pricing Level applies and, at the end of the Fiscal Quarter most recently ended
prior to the first day of such Pricing Period, the Interest Coverage Ratio for
the two consecutive Fiscal Quarters then ended was less than or equal to 5.00 to
1.00, but greater than 4.00 to 1.00.
"LEVEL IV PRICING" applies during any Pricing Period if no higher
Pricing Level applies and, at the end of the Fiscal Quarter most recently ended
prior to the first day of such Pricing Period, the Interest Coverage Ratio for
the two consecutive Fiscal Quarters then ended was less than or equal to 4.00 to
1.00, but greater than 3.00 to 1.00.
"LEVEL V PRICING" applies during (i) the period beginning on the
Closing Date and ending on the day on which the Compliance Certificate required
in respect of the Fiscal Quarter ending September 30, 1997, is delivered, and
(ii) any Pricing Period if (i) at the end of the Fiscal Quarter most recently
ended prior to the first day of such Pricing Period, the Interest Coverage Ratio
for the two consecutive Fiscal Quarters then ended was less than or equal to
3.00 to 1.00, or (ii) on the first day of such Pricing Period the financial
statements required by Section 5.1.2 of the Credit Agreement shall not have been
delivered with respect to such Fiscal Quarter.
"PRICING PERIOD" means a period beginning on (and including) the day on
which a Compliance Certificate required pursuant to Section 5.1.2 of the Credit
Agreement is delivered,
Credit Agreement
Schedule 1.1E
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and ending on (and excluding) the day on which the next such Compliance
Certificate is delivered. The first Pricing Period shall begin on the day on
which the Compliance Certificate required in respect of the Fiscal Quarter
ending September 30, 1997 is delivered.
"PRICING LEVEL" refers to such of Level I Pricing, Level II Pricing,
Level III Pricing, Level IV Pricing or Level V Pricing as applies during any
particular day. The numbering of Pricing Levels is in ascending order (e.g.,
Level II Pricing is referred to as a "higher" Pricing Level than Level I
Pricing).
Credit Agreement
Schedule 1.1E
