Exhibit 10.97
GLOBAL AMENDMENT NO. 1 TO SECURITY DOCUMENTS
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This Global Amendment (this "Amendment") is entered into as of
September 11, 1998 among IMPAC GROUP, INC., a Delaware corporation (the
"Company"), AGI INCORPORATED, an Illinois corporation ("AGI"), KLEARFOLD, INC.,
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a Pennsylvania corporation ("Klearfold", and together with AGI each a "L/C
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Borrower" and collectively, the "L/C Borrowers"), KF-Delaware, Inc., a Delaware
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Corporation ("KFD"), KF-International, Inc., a United States Virgin Island
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corporation ("KFI" and together with KFD each a "Subsidiary Guarantor" and
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collectively, the "Subsidiary Guarantors"), and Bank of America National Trust &
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Savings Association, as agent for the Lenders (the "Agent"). Unless otherwise
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specified herein, capitalized terms used in this Amendment shall have the
meanings ascribed to them by the Existing Credit Agreement (as defined below).
RECITALS
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WHEREAS, the Company, the L/C Borrowers (the Company and the L/C
Borrowers each a "Credit Party" and collectively the "Credit Parties"), the
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financial institutions from time to time party thereto and the Agent are party
to that certain Credit Agreement dated as of March 12, 1998 (as amended through
the date hereof, the "Existing Credit Agreement");
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WHEREAS, in connection with the execution and delivery of the Existing
Credit Agreement, AGI, Klearfold and the Agent entered into a Pledge Agreement -
L/C Borrowers dated as of March 12, 1998 (the "Pledge Agreement-L/C Borrowers");
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WHEREAS, in connection with the execution and delivery of the Existing
Credit Agreement, AGI, Klearfold and the Agent entered into a Security Agreement
- L/C Borrowers dated as of March 12, 1998 (the "Security Agreement-L/C
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Borrowers");
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WHEREAS, in connection with the execution and delivery of the Existing
Credit Agreement, KFD, KFI and the Agent entered into a Pledge Agreement -
Subsidiary Guarantors dated as of March 12, 1998 (the "Pledge Agreement-
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Subsidiary Guarantors"),
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WHEREAS, in connection with the execution and delivery of the Existing
Credit Agreement, KFD, KFI and the Agent entered into a Security' Agreement -
Subsidiary Guarantors dated as of March 12, 1998 (the "Security Agreement -
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Subsidiary Guarantors");
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WHEREAS, in connection with the execution and delivery of the Existing
Credit Agreement, IMPAC Group, Inc. and the Agent have entered into a Security
Agreement - Company, dated as of March 12. 1998 (the "Security Agreement -
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Company");
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WHEREAS, in connection with the execution and delivery of the
Existing Credit Agreement, IMPAC Group, Inc. and the Agent entered
into a Pledge Agreement - Company, dated as of March 12, 1998
("the Pledge Agreement - Company"); and together with the Pledge Agreement - L/C
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Borrowers, Pledge Agreement - Subsidiary Guarantors each a "Pledge Agreement"
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and collectively, the "Pledge Agreements" and each Pledge Agreement together
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with the Security Agreement - L/C Borrowers, Security Agreement -
Subsidiary Guarantors and Security Agreement - Company, each a "Security
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Document" and collectively, the "Security Documents";
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WHEREAS, on July 7, 1998, the Credit Parties, the Agent and the
Lenders entered into an Amended and Restated MultiCurrency Credit Agreement
dated as of July 7, 1998 (the "Amended Credit Agreement"), amending and
restating the Existing Credit Agreement upon the occurrence of the Initial
Funding Date (as defined in the Amended Credit Agreement); and
WHEREAS, in connection with the execution and delivery of the Amended
Credit Agreement, the Credit Parties and the Agent entered into that certain
Global Amendment No. 1 to Collateral Documents (the "Global Amendment") dated as
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of July 6, 1998;
WHEREAS, as a condition to the Initial Funding Date under, and as
defined in, the Amended Credit Agreement, the Credit Parties and the Subsidiary
Guaranties are required to enter into this Amendment, which supersedes and
replaces the Global Amendment as such applies to the Security Documents;
NOW THEREFORE, in consideration of the benefits accruing to each
Credit Party and each Subsidiary Guarantor, the receipt and sufficiency of which
are hereby acknowledged, each Credit Party, each Subsidiary Guarantor and the
Agent, for the benefit of itself and the Lenders, hereby agree as follows:
1. Amendment to Security Documents. Upon the "Effective Date" (as defined
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below) Recital A of each of the Security Documents will be replaced in its
entirety to read as follows:
"Pursuant to the Credit Agreement, dated as of March 12, 1998, among
the Company, AGI, Klearfold, the Lenders and the Agent, as amended and
restated by that certain Amended and Restated MultiCurrency Credit
Agreement dated as of July 7, 1998 (as amended by that certain First
Amendment dated September 11, 1998 and as hereafter amended, modified
or restated, the "Credit Agreement"), among the Company, AGI
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Klearfold, the Agent and the Lenders party thereto, the Lenders have
agreed to extend certain credit to the Company, AGI and Klearfold;"
2. Amendment to Pledge Agreements. Upon the "Effective Date" (as defined
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below) each of the Pledge Agreements will be further amended as follows:
(i) The definition of "Pledged Shares" in each Pledge Agreement shall be
amended in its entirety to read as follows:
"Pledged Shares" means, collectively, (i) with respect to a Domestic
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Subsidiary, all of the issued and outstanding shares of capital stock
at any time owned by the Pledge of such Domestic Subsidiary, (ii) with
respect to a Foreign Subsidiary (other than an Included Foreign
Subsidiary), all of the issued and outstanding shares of capital stock
at any time owned by the Pledge of such Foreign Subsidiary; provided
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that the Pledge shall not be required to pledge hereunder (and the
term "Pledged Shares" shall not include) more than 65% of the total
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combined voting power of all classes of capital stock of such Foreign
Subsidiary entitled to vote (the "Excluded Shares") until such time as
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the Pledge is required to deliver such Excluded Shares to the Agent
pursuant to Section 7.15 of the Credit Agreement, (iii) all of the
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issued and outstanding shares of capital stock at any time owned
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by the pledge of any Included Foreign Subsidiary, which such shares
shall be delivered pursuant to that certain Mortgage of Shares dated
as of July 7, 1998, among IMPAC Group, Inc. and Bank of America
National Trust and Savings Association, and (iv) each additional share
of capital stock delivered, or to be delivered, to the Agent pursuant
to Section 2(ii) hereof; provided however, notwithstanding anything in
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this definition to the contrary, the capital stock of Included Foreign
Subsidiaries shall not be deemed Excluded Shares.
(ii) The definition "Included Foreign Subsidiary" shall be added to each
Pledge Agreement to read as follows:
"Included Foreign Subsidiary" means each of IMPAC Europe Public
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Limited Company, Levelprompt Limited, Xxxxxxx Robor PLC, Van xx Xxxxx
Packaging B.V., Xxxxx Xxxxx Holding B.V., Xxxxx Xxxxx B.V., Xxxxx
Xxxxx-Swindon, Limited, Xxxxx Xxxxx Limited, Printing Resources
Limited and Sonicon Limited., Xxxxxxx Robor Audio and Computer
Servicer Limited, Pinepoint Limited and Xxxxx Xxxxx GmbH.
3. Representations and Warranties. Each Credit Party and each Subsidiary
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Guarantor hereby represents and warrants as to itself that:
(a) The execution, delivery and performance by each such Person of
this Amendment have been duly authorized by all necessary corporate action
and that this Amendment constitutes the legal, valid and binding obligation
of such Person, enforceable against such Person in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability;
(b) Each of the representations and warranties contained in the
Security Documents is true and correct in all material respects on and as
of the date hereof as if made on the date hereof (except to the extent such
representations and warranties expressly refer to an earlier date, in which
case they are true and correct as of such earlier date); and
(c) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
4. Effective Date. This Amendment shall become effective as of the date
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first written above upon the date of the execution and delivery hereof by the
Credit Parties, the Subsidiary Guarantors and the Agent; provided however;
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notwithstanding anything herein to the contrary, in the event that the Offer is
not consummated pursuant to the terms of the Amended Credit Agreement then this
Amendment shall be terminated and be of no further force and effect.
5. Reference to and Effect Upon the Security Documents.
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(a) Except as specifically amended above, each of the Security
Documents and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of the Agent or any
Lender under any Security Document or
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any other Loan Document, nor constitute a waiver of any provision of any
Security Document or any other Loan Document, except as specifically set
forth herein. Upon the effectiveness of this Amendment, each reference in
any Security Document to "this Agreement", "hereunder", "hereof", "herein"
or words of similar import shall mean and be a reference to such Security
Document as amended hereby.
6. Costs and Expenses. Each Credit Party hereby affirms its obligation
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under Section 11.04 of the Existing Credit Agreement to reimburse the Agent for
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all reasonable out-of-pocket costs and expenses incurred by the Agent in
connection with the preparation and execution of this Amendment, including but
not limited to the attorneys' fees and time charges of attorneys for the Agent
with respect thereto.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS; PROVIDED
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THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
8. Headings. Section headings in this Amendment are included herein for
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convenience of reference only and shall not constitute a part of this Amendment
for any other purposes.
9. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
IMPAC GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
AGI INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
KLEARFOLD, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
KF-INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
KF-DELAWARE, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
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BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION, as Agent
KLEARFOLD, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
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