Exhibit 10.65
FIRST AMENDMENT
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This First Amendment (this "Amendment") is entered into as of this 11th day of September, 1998 among IMPAC GROUP, INC., a Delaware corporation (the "Company") AGI INCORPORATED, an Illinois corporation ("AGI"), KLEARFOLD, INC., a -------
Pennsylvania corporation ("Klearfold", and together with AGI, each a "L/C
--------- --- Borrower" and collectively, the "L/C Borrowers"), Bank of America National Trust - -------- ------------- & Savings Association, as Agent (the "Agent"), and the financial institutions
----- from time to time party thereto (the "Lenders"). Unless otherwise specified
------- herein, capitalized terms used in this Amendment shall have the meanings ascribed to them by the Credit Agreement (as defined below).
RECITALS
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WHEREAS, the Company, the L/C Borrowers, the Agent and the Lenders are party to the Amended and Restated Multicurrency Credit Agreement, dated as of March 12, 1998 and as amended and restated as of July 7, 1998 (as amended, supplemented, restated or otherwise modified from time to time, the "Credit
------ Agreement"); - ---------
WHEREAS, the Company, the L/C Borrowers, the Agent and the Lenders wish to enter into certain amendments to the Credit Agreement to, among other things, reduce the Term Loan B Commitment to $64,000,000 and provide that the Lenders with a Term Loan A Commitment purchase a risk participation in the Bidco Loan Note Credit Support, all as more fully set forth herein;
NOW THEREFORE, in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto agree as follows:
Section 1. Amendments.
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(a) Section 1.01 of the Credit Agreement is hereby amended by deleting the definitions "Agent-Related Persons", "Aggregate Term Loan B Commitment",
--------------------- -------------------------------- "Bidco Loan Notes Credit Support Commitment", "Bidco Loan Notes Credit Support - ------------------------------------------- ------------------------------- Advance", Bidco Loan Notes Credit Support Borrowing", "Borrowing Base", - ------- ----------------------------------------- -------------- "Borrowing Base Deficiency", "Commitment Fee", "Dollar Equivalents", "FX - -------------------------- -------------- ------------------ -- Trading Office", "L/C Obligations", "Lender", "Majority Lenders", "Offshore - -------------- -------------- ------ ---------------- -------- Currency", "Offshore Currency Loan", "Offshore Currency Loan Sublimit", - -------- ---------------------- ------------------------------- "Offshore Rate Loan", "Relevant Undertakings", "Revolving Loan Termination - ------------------- --------------------- -------------------------- Date", "Spot Rate", "Swing Line Lender", "Swing Line Loan", "Swing Line Rate" - ---- --------- ----------------- --------------- -------------- and "Term Loan Commitment Fee" in their entirety and inserting each of the
------------------------ following definitions in appropriate alphabetical order:
"Adjusted Cost of Funds Rate" means for any Interest Period, a rate
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per annum (rounded upwards, if necessary, to the next 1/16th of 1%) equal
to the rate obtained by dividing (a) the Cost of Funds Rate (similarly
rounded) for such Interest Period by (b) a
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percentage equal to 1 minus the aggregate of all applicable reserve
requirements in effect from time to time during such Interest Period as
determined by the Swing Line Lender.
"Agent-Related Persons" means the initial Agent and any successor
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agent arising under Section 10.09 or any successor letter of credit issuing
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bank or Swing Line lender hereunder, together with their respective
Affiliates, and the officers, directors, employees, agents and attorneys-
in-fact of such Persons and Affiliates.
"Aggregate Term Loan B Commitment" means the aggregate Term Loan B
--------------------------------
Commitments of the Lenders equal to Sixty-Four Million Dollars
($64,000,000).
"Bidco Loan Notes Credit Support Commitment" means the commitment of
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the Issuing Bank to Issue, and the Term Loan A Lenders and the Revolving
Lenders to participate in, the Bidco Loan Notes Credit Support Issued or
outstanding under Article III, in an aggregate amount not to exceed on any
date the Dollar Equivalent of (Pounds)8,909,991, as the same may be reduced
as a result of a reduction in the Bidco Loan Notes Credit Support pursuant
to Section 2.07(f).
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"Bidco Loan Notes Credit Support Advance" means each Term Loan A
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Lender's and each Revolving Lender's participation in any Bidco Loan Notes
Credit Support Borrowing in accordance with its Pro Rata Share, with
respect to the Term Loan A Lenders, or Pro Rata Revolving Share, with
respect to the Revolving Lenders.
"Bidco Loan Notes Credit Support Borrowing" means extension of credit
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resulting from a drawing under the Bidco Loan Notes Credit Support which
shall not have been reimbursed on the date when made nor converted into a
Borrowing of a Term Loan A or a Revolving Loan under Section 3.03(e).
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"Blocked Amount" means, (a) at any time on or prior to the Squeeze-Out
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Date, an amount equal to (i) the Dollar Equivalent of (Pounds)3,871,393,
as such amount is automatically reduced during the Squeeze-Out Period by
the Dollar Equivalent of the Bidco Loan Notes Credit Support issued during
the Squeeze-Out Period, plus (ii) an amount equal to the Dollar equivalent
----
of 5% of the stated amount of the Bidco Loan Notes Credit Support, and (b)
after the Squeeze-Out Date, (i) at any time prior to the termination of the
Bidco Loan Notes Credit Support, an amount equal to the Dollar Equivalent
of 5% of the Stated Amount of the Bidco Loan Notes Credit Support and (ii)
thereafter, zero.
"Borrowing Base" means, as at any date on which the amount thereof is
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being determined, an amount equal to the sum of(a)(i) 85% of Eligible
Receivables plus (ii) 65% of Eligible Inventory plus (b) S10,000,000 minus
---- ---- -----
(c) the Blocked Amount. The Borrowing Base in effect at any given time
shall be the Borrowing Base derived from the Borrowing Base Certificate
most recently delivered in compliance with Section 7.02(g); provided, that
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so long as the most recent Borrowing Base Certificate required to be
delivered has not been so delivered the Borrowing Base in effect will be
zero.
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"Borrowing Base Deficiency" means at any time, the amount, if any, by
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which the sum of the Effective Amount of Revolving Loans, Swing Line Loans,
L/C Obligations at such time exceeds the Borrowing Base then in effect.
"Commitment Fee" means, collectively, the Revolving Commitment Fee and
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the Term Loan A Commitment Fee and the Term Loan B Commitment Fee.
"Cost of Funds Rate" means for any Interest Period in respect of any
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Swing Line Loan denominated in a currency other than Sterling, the rate per
annum determined by the Swing Line Lender or the Designated Local Lender
advancing such Swing Line Loan in accordance with its customary procedures
in the applicable local bank market as its cost of funds for such Swing
Line Loan during such Interest Period.
"Designated Local Lender" means an agency, branch office or other
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Affiliate of the Swing Line Lender, or another bank or financial
institution, designated from time to time by the Swing Line Lender as its
lending office for purposes of making Swing Line Loans in a particular
country and/or currency; provided, however, that any such Designated Local
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Lender shall not at any time assume the duties of the Swing Line Lender
under this Agreement, and shall act only in its capacity of providing a
particular currency in a particular country where the Swing Line Lender
does not have an independent banking presence.
"Dollar Equivalent" means, at any time, (a) as to any amount
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denominated in Dollars, the amount thereof at such time, (b) as to any
amount denominated in an Offshore Currency (other than a Swing Line
Offshore Currency), the equivalent amount in Dollars as determined by the
Agent at such time on the basis of the Spot Rate for the purchase of
Dollars with such Offshore Currency on the most recent Computation Date and
(c) as to any amount denominated in a Swing Line Offshore Currency, the
equivalent amount in Dollars as determined by the Swing Line Lender or the
Designated Local Lender, as the case may be, at such time on the basis of
the Spot Rate for the purchase of Dollars with such Swing Line Offshore
Currency at such time.
"Excess Bidco Credit Support Amount" has the meaning specified in
----------------------------------
Section 3.01(d).
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"L/C Obligations" means, collectively, (a) Specified L/C Obligations
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plus (b) the amount of the Bidco Loan Notes Credit Support Obligations not
----
supported by the Term Loan A Commitment, plus (c) the sum of (i) the
aggregate undrawn amount of all Letters of Credit (other than the AGI
Letter of Credit, the Klearfold Letter of Credit and the Bidco Loan Notes
Credit Support) then outstanding, plus (ii) the amount of all unreimbursed
drawings under all Letters of Credit (other than the AGI Letter of Credit,
the Klearfold Letter of Credit and the Bidco Loan Notes Credit Support,
including all outstanding L/C Borrowings.
"Lender" has the meaning specified in the introductory clause hereto.
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References to the "Lenders" shall include BofA, including in its capacity
as Issuing Bank and Swing Line
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Lender, any Designated Local Lender and any other Lender assuming such
capacity in the future, and for purposes of clarification only, to the
extent that BofA may have any rights or obligations in addition to those of
the Lenders due to its status as Issuing Bank or Swing Line Lender, its
status as such will be specifically referenced.
"Majority Lenders" means (a) prior to the termination of the
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Commitment, Lenders holding at least 51% of the then aggregate unpaid
principal amount of Term Loans (including the obligations of the Term Loan
A Lenders under the Bidco Loan Note Credit Support) plus the Revolving Loan
----
Commitments or, (b) if the Commitments have been terminated, Lenders
holding at least 51% of the then unpaid principal amount of Loans. L/C
Obligations and the obligations of the Term Loan A Lenders under the Bidco
Loan Note Credit Support.
"Offshore Currency" means, at any time, (a) with respect to Swing Line
-----------------
Loans, any Swing Line Offshore Currency and (b) with respect to any
Offshore Currency Loan, Sterling, German Deutsche Marks, Dutch Guilders,
euros and/or euro units; provided, that on the Commencement Date, each
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obligation under this Agreement denominated in a national currency unit
will, forthwith (but otherwise in accordance with EMU Legislation), be
redenominated into the euro. Following redenomination described in the
proviso contained in the preceding sentence, (i) all Loans requested in the
currency of a Participating Member State shall, subject to the terms of
this Agreement, be made in euro units; and (ii) payments by the Agent to
the Lenders in the currency of a Participating Member State shall be made
in euro units.
"Offshore Currency Loan" means any Revolving Loan (other than a
----------------------
Specified L/C Loan) that is an Offshore Rate Loan denominated in an
Offshore Currency.
"Offshore Currency Loan Sublimit" means, as to all Loans denominated
-------------------------------
using Offshore Currencies in the aggregate, the Dollar Equivalent of
$40,000,000.
"Offshore Rate Loan" means a Loan (other than (i) Specified L/C Loans
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and (ii) for all purposes other than the application of Article IV hereof
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to the Swing Line Loans, the Swing Line Loans) that bears interest based on
the Offshore Rate.
"Relevant Undertakings" means each of the undertakings and covenants
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of the Company contained in Sections 7.04(a), 7.12(d), 7.13 (excluding
---------------- ------- ----
consideration of Target and its Subsidiaries), and 7.16(a), (c), (f) and
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(m).
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"Revolving Loan Termination Date" means the earlier to occur of:
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(a) March 31, 2004; and
(b) the date on which the Revolving Loan Commitments terminate in
accordance with the provisions of the Agreement.
4
"Spot Rate" for a currency means the rate generally quoted by BofA or
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a Designated Local Lender, as the case may be, as the spot rate for the
purchase by BofA or such Designated Local Lender, as the case may be, of
such currency with another currency through its foreign exchange trading
office on the date two Business Days prior to the date as of which the
foreign exchange computation is made.
"Swing Line Lender" means BofA, in its capacity as provider of the
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Swing Line Loans. With respect to Swing Line Loans, BofA may designate a
Designated Local Lender to make such Swing Line Loans and such Designated
Local Lender shall be deemed to be the Swing Line Lender for the purposes
of this Agreement to the extent provided in the definition of Designated
Local Lender.
"Swing Line Loan" means a Loan made by the Swing Line Lender,
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denominated in an Offshore Currency, pursuant to Section 2.01(e).
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"Swing Line Offshore Currency" means, at any time, Sterling, Dutch
----------------------------
Guilders, Irish Punts (so long as the aggregate principal amount of Swing
Line Loans outstanding at any time with respect to Irish Punts shall not
exceed the Dollar Equivalent of $1,500,000), Austrian Schillings (so long
as the aggregate principal amount of Swing Line Loans outstanding at any
time with respect to Austrian Schillings shall not exceed the Dollar
Equivalent of $3,000,000), euros and/or euro units; provided, that on the
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Commencement Date, each obligation under this Agreement denominated in a
national currency unit will, forthwith (but otherwise in accordance with
EMU Legislation), be redenominated into the euro. Following redenomination
described in the proviso contained in the preceding sentence, (i) all Loans
requested in the currency of a Participating Member State shall, subject to
the terms of this Agreement, be made in euro units; and (ii) payments by
the Agent to the Lenders in the currency of a Participating Member State
shall be made in euro units.
"Swing Line Rate" means, for any day, (i) for Swing Line Loans
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denominated in Sterling, the rate of interest in effect for such day as
publicly announced from time to time by BofA in London as its "reference
rate" and (ii) for Swing Line Loans denominated in other currencies, the
Adjusted Cost of Funds Rate. The "reference rate" is a rate set by BofA
based upon various factors including BofA's costs and desired return,
general economic conditions and other factors, and is used as a reference
point of pricing some loans, which may be priced at, above, or below such
announced rate. Any change in the reference rate announced by BofA shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"Term Loan A Commitment Fee" has the meaning specified in Section
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2.l0(c)(i).
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"Term Loan A Lenders" means each Lender with a Term Loan A Commitment.
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"Term Loan B Commitment Fee" has the meaning specified in Section
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2.l0(c)( ii).
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(b) the definition of Pro Rata Share shall be amended to add the following phrase after each place when the words "L/C Obligations" appear:
"and the obligations under the Bidco Loan Notes Credit Support
related to Term Loan A"
(c) Clauses (a), (b), (c), and (e)(i) and (ii) of Section 2.01 of the Credit Agreement are hereby amended by deleting said clauses in their entirety and inserting in lieu thereof the following new clauses (a), (b), (c), and (e)(i) and (ii):
"(a) Term Loan A
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Each Lender with a Term Loan A Commitment severally agrees, on
the terms and conditions set forth herein, to make loans to the Company
(each such loan, a "Term Loan A") from time to time on any Business Day
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during the period from the Initial Funding Date to the Revolving Loan
Termination Date, in an aggregate amount not to exceed such Lender's Term
Loan A Commitment as set forth on Schedule 2.01 (as such amount is reduced
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as a result of the making of any Term Loan A during such period or pursuant
to Section 2.07); provided, however, that after giving effect to any
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Borrowing of a Term Loan A, the Effective Amount of Term Loan A shall not
at any time exceed the Aggregate Term Loan A Commitment; and provided
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further, that the Effective Amount of a Term Loan A of any Term Loan A
-------
Lender plus the participation of such Term Loan A Lender in the Dollar
Equivalent of the Bidco Loan Notes Credit Support Obligations shall not at
any time exceed such Term Loan A Lender's Term Loan A Commitment. Amounts
borrowed as a Term Loan A which are repaid or prepaid by the Company may
not be reborrowed.
(b) Term Loan B
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Each Lender with a Term Loan B Commitment severally agrees, on
the terms and conditions set forth herein, to make a loan to the Company
(each such loan, a "Term Loan B") on the Initial Funding Date in an amount
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not to exceed such Lender's Term Loan B Commitment as set forth on Schedule
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2.01 (as such amount may be reduced under Section 2.05). Amounts borrowed
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as a Term Loan B which are repaid or prepaid by the Company may not be
reborrowed.
(c) The Revolving Credit
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Subject to Section 2.01(e), each Revolving Lender severally
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agrees, on the terms and conditions set forth herein, to make loans to the
Company (each such loan, a "Revolving Loan") from time to time on any
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Business Day during the period from the Initial Funding Date to the
Revolving Loan Termination Date, in an aggregate amount not to exceed at
any one time outstanding the amount set forth on Schedule 2.01 (such
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amount, as the same may be reduced under Section 2.07 or reduced or
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increased as a result of one or more assignments under Section 11.08, the
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Revolving Lender's "Revolving Loan
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Commitment"); provided, however, that, after giving effect to any Borrowing
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of Revolving Loans, the Effective Amount of Revolving Loans, Swing Line
Loans and L/C Obligations at such time shall not at any time exceed an
amount equal to the Aggregate Revolving Loan Commitment at such time minus
the Blocked Amount: and provided further, that the Effective Amount of
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Revolving Loans of any Revolving Lender plus the participation of such
Revolving Lender in the Effective Amount of all L/C Obligations and such
Revolving Lender's Pro Rata Revolving Share of the Effective Amount of Swing
Line Loans shall not at any time exceed such Revolving Lender's Revolving
Loan Commitment minus such Revolving Lender's Pro Rata Revolving Share of
the Blocked Amount (to the extent not utilized in connection with the Excess
Bidco Credit Support Amount); and provided further, that the Effective
--- -------- -------
Amount of the Revolving Loans, the Effective Amount of Swing Line Loans and
L/C Obligations shall not at any time exceed the Borrowing Base. Within the
limits of each Revolving Lender's Commitment, and subject to the other terms
and conditions hereof, the Company may borrow under this Section 2.01,
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prepay under Section 2.06 and reborrow under this Section 2.01(c).
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* * *
(e) Swing Line Loans
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(i) Subject to the terms and conditions hereof, the Swing Line
Lender agrees to make Swing Line Loans to the Company from time to time
prior to the Swing Line Termination Date in an aggregate principal amount
at any one time outstanding not to exceed $15,000,000 (or the Dollar
Equivalent thereof) (the "Swing Line Loan Commitment"); provided, that
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after giving effect to any such Swing Line Loan, the Effective Amount of
Revolving Loans, Swing Line Loans and L/C Obligations at such time would
not exceed an amount equal to the Aggregate Revolving Loan Commitment at
such time minus the Blocked Amount (to the extent not utilized in
connection with the Excess Bidco Credit Support Amount); and provided
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further that the Effective Amount of all Revolving Loans, Swing Line Loans,
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L/C Obligations at such time would not exceed the Borrowing Base at such
time. Prior to the Swing Line Te ...