Exhibit 10.1
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as of
March 17, 2004 (this "Amendment"), is by and among AKI, INC., a Delaware
corporation ("Borrower"), XXXXXX FINANCIAL, INC., a Delaware corporation
("Xxxxxx"), in its capacity as Agent for the benefit of all Lenders (Xxxxxx, in
such capacity, "Agent") and individually as a Lender, and each of the other
Lenders signatories hereto, and each of the other Persons who are parties hereto
(individually, a "Loan Party" and collectively the "Loan Parties").
R E C I T A L S:
A. Borrower, Agent and Lenders are parties to that certain Amended and
Restated Credit Agreement dated as of December 18, 2001 (as the same has been
and hereafter may be amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement").
B. Borrower, Agent and Lenders wish to amend the Credit Agreement as
provided herein.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. Capitalized terms used in this Amendment, unless otherwise
defined herein, shall have the meanings ascribed to such terms in the Credit
Agreement.
2. Amendments to the Credit Agreement. The Credit Agreement is hereby
amended as follows:
(a). subsection 4.6 of the Credit Agreement is hereby deleted in its
entirety and the following language is hereby substituted therefor:
" 4.6. Total Indebtedness to EBITDA Ratio. Borrower shall not
permit the ratio of Total Indebtedness calculated as of the last day
of any month during any of the periods set forth below to EBITDA for
the twelve (12) month period ending on such day to be greater than the
ratio set forth below for such period.
Period Ratio
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January 1, 2004 through June 30, 2004 4.25
July 1, 2004 and thereafter 4.00
"Total Indebtedness" and "EBITDA" will be calculated as
illustrated on Exhibit 4.8(C).";
(b). Exhibit 4.8(C) to the Credit Agreement is hereby deleted in its
entirety and Annex A attached hereto is hereby substituted therefor.
3. Representations and Warranties. To induce Agent and the Lenders to enter
into this Amendment, Borrower represents and warrants to Agent and the Lenders
that:
(a). the execution, delivery and performance by Borrower of this
Amendment are within its corporate power, have been duly authorized by all
necessary corporate action and do not and will not contravene or conflict
with any provision of law applicable to Borrower, the Certificate of
Incorporation or Bylaws of Borrower, or any order, judgment or decree of
any court or other agency of government or any contractual obligation
binding upon Borrower;
(b). the Credit Agreement as amended as of the date hereof is the
legal, valid and binding obligation of Borrower enforceable against
Borrower in accordance with its terms;
(c). each of the representations and warranties set forth in Section 5
of the Credit Agreement (other that those which, by their terms,
specifically are made as of a certain date prior to the date hereof) are
true and correct in all material respects as of the date hereof; and
(d). no Default or Event of Default has occurred and is continuing.
4. Conditions. The effectiveness of the amendments stated in this Amendment
is subject to each of the following conditions precedent or concurrent:
(a). no Default or Event of Default under the Credit Agreement, as
amended hereby, shall have occurred and be continuing;
(b). Borrower and each other Loan Party shall have executed and
delivered this Amendment and such other documents and instruments as Agent
may require shall have been executed and/or delivered to Agent;
(c). Xxxxxx shall have received in immediately available funds a
fully-earned, non-refundable amendment fee for its own account in an amount
equal to $25,000; and
(d). all legal matters incident to this Amendment shall be
satisfactory to Agent and its legal counsel.
5. Miscellaneous.
(a). Captions. Section captions used in this Amendment are for
convenience only, and shall not affect the construction of this Amendment.
(b). Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois, without regard to conflict
of laws principles. Whenever possible each provision of this Amendment
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment shall be prohibited
by or invalid under such law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Amendment.
(c). Counterparts. This Amendment may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original,
but all such counterparts shall together constituted but one and the same
Amendment.
(d). Successors and Assigns. This Amendment shall be binding upon
Borrower, each other Loan Party, each Lender, Agent and their respective
successors and assigns, and shall inure to the sole benefit of Borrower,
each other Loan Party, each Lender, Agent and their respective successors
and assigns.
(e). References. Any reference to the Credit Agreement contained in
any notice, request, certificate, or other document executed in connection
with, concurrently with or after the execution and delivery of this
Amendment shall be deemed to include this Amendment unless the context
shall otherwise require.
(f). Continued Effectiveness. The Credit Agreement, as amended hereby,
and each of the other Loan Documents, remain in full force and effect.
(g). Costs, Expenses and Taxes. Borrower affirms and acknowledges that
the terms of subsection 1.3(E) of the Credit Agreement apply to this
Amendment and the transactions, agreements and documents contemplated
hereunder and hereby.
6. Ratification. The terms and provisions set forth in this Amendment shall
modify and supersede all inconsistent terms and provisions of the Credit
Agreement and shall not be deemed to be a consent to the modification or waiver
of any other term or condition of the Credit Agreement. Except as expressly
modified and superseded by this Amendment, the terms and provisions of the
Credit Agreement are ratified and confirmed and shall continue in full force and
effect.
7. Reaffirmation. Each of the Loan Parties as debtor, grantor, pledgor,
guarantor, assignor, or in other any other similar capacity in which such Loan
Party grants liens or security interests in its property or otherwise acts as
accommodation party or guarantor, as the case may be, hereby: (i) ratifies and
reaffirms all of its payment and performance obligations, contingent or
otherwise, under each of the Loan Documents to which it is a party (after giving
effect hereto) and (ii) to the extent such Loan Party granted liens on or
security interests in any of its property pursuant to any such Loan Document as
security for or otherwise guaranteed the Borrower's Obligations under or with
respect to the Loan Documents, ratifies and reaffirms such guarantee and grant
of security interests and liens and confirms and agrees that such security
interests and liens hereafter secure all of the Obligations as amended hereby.
Each of the Loan Parties hereby consents to this Amendment and acknowledges that
each of the Loan Documents remains in full force and effect and is hereby
ratified and reaffirmed. The execution of this Amendment shall not operate as a
waiver of any right, power or remedy of the Agent or Lenders, constitute a
waiver of any provision of any of the Loan Documents or serve to effect a
novation of the Obligations.
8. Ratification of Liability; Acknowledgment of Rights. Each Loan Party
hereby ratifies and confirms its respective liabilities, obligations and
agreements under the Credit Agreement and the other Loan Documents and the liens
and security interests created thereby, and acknowledges that: (i) it has no
defenses, claims or set-offs to the enforcement by the Lenders or the Agent of
such liabilities, obligations and agreements; (ii) the Lenders and the Agent
have fully performed all undertakings owed to it as of the date hereof; and
(iii) the
Lenders and the Agent do not waive, diminish or limit any term or condition
contained in the Credit Agreement (as amended hereby) or, in any of the other
Loan Documents.
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[Signature Page Follows]
IN WITNESS WHEREOF, this Amendment has been duly executed as of the date
first written above.
BORROWER: AKI, INC., a Delaware corporation
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By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
AGENT AND LENDER: XXXXXX FINANCIAL, INC., a Delaware
---------------- corporation, as Agent and as a Lender
By: /s/ Xxxx XxXxxxxxx
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Name: Xxxx XxXxxxxxx
Its: Duly Authorized Signatory
OTHER LOAN PARTIES:
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AKI HOLDING CORP., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
IST, CORP., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
ENCAPSULATION SERVICES, INC., a New Jersey corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
