FIFTH AMENDMENT TO CREDIT AGREEMENT
This FIFTH AMENDMENT TO CREDIT AGREEMENT dated as of May 17, 2000 (this
"Amendment"), is by and between AKI, INC., a Delaware corporation, formerly
known as Arcade, Inc. ("Borrower") and HELLER FINANCIAL, INC., a Delaware
corporation ("Lender").
R E C I T A L S:
A. Borrower and Lender are parties to that certain Credit Agreement dated
as of April 30, 1996 (as the same has been and hereafter may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement").
B. Borrower and Lender 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.
(a) Subsection 3.1 of the Credit Agreement is amended by adding the
following as clause (H) thereto:
"(H) the AHC Subordinated Indebtedness."
(b) Subsection 3.5 of the Credit Agreement is amended by adding the
following as clause (J) thereto:
"(J) Borrower may make scheduled interest and principal payments
on account of the AHC Subordinated Indebtedness provided all of
the following conditions are satisfied:
(i) no Default or Event of Default has occurred and is
continuing or would arise as a result of any such payment;
(ii) after giving effect to any such payment, Borrower
is in compliance on a pro forma basis with the covenants set
forth in subsections 4.3, 4.4 and 4.5, recomputed for the
most recent month for which financial statements have been
delivered; and
(iii) after giving effect to any such payment, the
Maximum Revolving Loan Balance exceeds the aggregate
outstanding principal balance of Revolving Loans by not less
than $3,000,000."
(c) Subsection 10.1 of the Credit Agreement is amended by adding the
following definition thereto:
"AHC Subordinated Indebtedness" means Subordinated Indebtedness
of Borrower owing to AHC I Acquisition Corp. a Delaware
corporation ("AHC"), evidenced by that certain Subordinated
Promissory Note dated as of May 17, 2000, made by Borrower to the
order of AHC, up to an aggregate principal amount not to exceed
$10,000,000.
3. Representations and Warranties. To induce Lender to enter into this
Amendment, Borrower represents and warrants to Lender 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 By-laws 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 shall have executed and delivered this Amendment, the
Subordination and Intercreditor Agreement by and among, Borrower, AHC and
Heller (which AHC also shall have executed and delivered), and such other
documents and instruments as Lender may require shall have been executed
and/or delivered to Lender; and
(c) All legal matters incident to this Amendment shall be satisfactory
to Lender 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 New York, without regard to conflict
of laws principals. 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
Agreement.
(d) Successors and Assigns. This Amendment shall be binding upon
Borrower and Lender and their respective successors and assigns, and shall
inure to the sole benefit of Borrower and Lender and their respective
successors and assigns.
(e) References. Any reference to the Credit Agreement contained in any
notice, request, certificate, or other document executed 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
subsection 1.3(B) of the Credit Agreement applies to this Amendment and the
transactions and Agreements and document contemplated hereunder.
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Delivered at Chicago, Illinois, as of the day and year first above written.
AKI, INC., a Delaware corporation,
formerly know as Arcade, Inc.
By: /s/ Kenneth A. Budde
-----------------------------
Print Name: Kenneth A. Budde
Title: Chief Financial Officer
HELLER FINANCIAL, INC., a
Delaware corporation
By: /s/ Susan Koehnlein
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Print Name: Susan Koehnlein
Title: Assistant Vice President