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Exhibit 4.4
CONFORMED COPY
AMENDMENT NO. 2
AND
WAIVER NO. 2
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 2 AND WAIVER NO. 2 TO AMENDED AND RESTATED
CREDIT AGREEMENT ("Agreement") is being executed and delivered as of February
19, 1998, by and among United States Can Company, a Delaware corporation (the
"Borrower"), the financial institutions from time to time party to the Amended
and Restated Credit Agreement referred to below (collectively, the "Lenders",
and each individually, a "Lender"), and Bank of America National Trust and
Savings Association (as successor to Bank of America Illinois), as the "Agent"
for the Lenders (the "Agent"). Undefined capitalized terms which are used herein
shall have the meanings ascribed to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent are parties
to that certain Amended and Restated Credit Agreement dated as of April 25, 1997
(as heretofore amended and modified by that certain Amendment No. 1 and Waiver
No. 1 thereto, dated as of November 12, 1997, among such parties, the "Credit
Agreement"), pursuant to which the Lenders have agreed to provide, subject to
the terms and conditions contained therein, certain loans and other financial
accommodations to the Borrower;
WHEREAS, the Borrower has failed to comply with its Total
Leverage Ratio, as set forth in clause (b) of Section 6.3 of the Credit
Agreement, its Maximum Domestic Leverage Ratio, as set forth in clause (c) of
Section 6.3 of the Credit Agreement, and its Interest Coverage Ratio, as set
forth clause (e) of Section 6.3 of the Credit Agreement, in each case with
respect to its four fiscal quarter period ending on December 31, 1997
(hereinafter, collectively, the "Covenant Defaults"); and
WHEREAS, the Borrower requested the Lenders and the Agent, and
subject to the terms and conditions of this Agreement the Lenders and the Agent
have agreed, to waive the Covenant Defaults, and to enter into certain
amendments to the definition of EBITDA and certain other provisions of the
Credit Agreement as provided below; and
WHEREAS, as a condition, among others, to the Lenders' and the
Agent's willingness to agree to such waivers and amendments, the Lenders and the
Agent have required that the Commitment Amount be reduced to $80,000,000, as
reflected in the amendments to Section 2.2.2 of the Credit Agreement as provided
below.
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NOW, THEREFORE, in consideration of the foregoing premises,
the terms and conditions stated herein and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the Borrower, the
Lenders and the Agent, such parties hereby agree as follows:
1. Amendment No. 1 to Credit Agreement. Subject to Paragraph 3
of this Agreement, and effective as of the date of this Agreement, the Credit
Agreement is hereby amended as follows (section and schedule references herein
refer to those of the Credit Agreement):
(a) Section 2.2.2 is deleted in its entirety and replaced with
the following provision:
"SECTION 2.2.2. Mandatory. (a) The Commitment Amount
shall be automatically and permanently reduced pursuant to this
subsection by $30,000,000 on February 19, 1998, by $12,500,000 on April
25, 2000 and by $12,500,000 on April 25, 2001; provided, however, if
the Incremental Syndication shall have not occurred, no reduction to
the Commitment Amount shall occur pursuant to this subsection on April
25, 2000 and, on April 25, 2001 the Commitment Amount shall be
automatically and permanently reduced pursuant to this subsection by
$10,000,000.
(b) If the Metal Services Sale Date occurs prior to
calendar year 2001, the Commitment Amount shall be automatically and
permanently reduced on each Metal Services Reduction Date by amounts
equal to the applicable Metal Services Reduction Increment with respect
to each such Metal Services Reduction Date. If the Metal Services Sale
Date occurs after calendar year 2000, the Commitment Amount shall be
automatically and permanently reduced on the Metal Services Sale Date
by the amount, if any, by which the Metal Services Gross Proceeds
received as of the Metal Services Sale Date exceeds $25,000,000.
Nothing in this subsection shall be construed to permit any such sale
which is otherwise prohibited by Section 6.2(g)."
(b) Section 6.2(c) is amended to delete clause (D)(3) of such
section in its entirety and to replace such clause with the following clause:
"(3) all reductions to the Commitment Amount required by Section
2.2.2(b) shall have been made,"
(c) Schedule I is amended to delete the word "and" appearing
at the end of clause (iii) of the definition of "EBITDA" set forth in such
schedule, to delete clause (iv) of such definition in its entirety, to delete
the second proviso of such definition in its entirety, and to replace such
provisions with the following provisions:
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"(iv) for purposes of computing the Borrower's and its consolidated
Subsidiaries' EBITDA for any four (4) fiscal quarter period, the amount
of EBITDA otherwise calculated pursuant to this definition shall be
increased by the aggregate amount of that portion of any unusual
charges incurred by the Borrower and its Subsidiaries during such
period which will not result in the outlay of cash during such
computation period and is deducted in otherwise computing EBITDA for
such period, but only to the extent such amount does not exceed
$15,000,000 during such period and was not incurred with respect to any
write-down or other revaluation of any of the Collateral which is
either (x) outside of the ordinary course of business or (y) otherwise
in an amount which exceeds five percent (5%) of the aggregate book
value of the Collateral, and (v) for purposes of computing the
Borrower's and its consolidated Subsidiaries EBITDA for any four (4)
fiscal quarter period, such computation shall include EBITDA (whether
positive or negative) attributable to the Borrower's Metal Services
business to the extent otherwise excluded as a result of such business
being classified as a discontinuing operation; provided, further,
however, that, for purposes of computing the Borrower's and its
consolidated Subsidiaries' EBITDA for any four (4) fiscal quarter
period which includes the Borrower's fiscal quarter ended October 5,
1997, in addition to any adjustment made pursuant to clause (iv) of
this definition, but without duplication, the amount of EBITDA
otherwise calculated pursuant to this definition for such four (4)
fiscal quarter period shall be increased by the aggregate amount of
restructuring charges incurred by the Borrower and its Subsidiaries
during the Borrower's fiscal quarter ended October 5, 1997 to the
extent such restructuring charges do not exceed $35,000,000 in the
aggregate."
(d) Schedule I is further amended to delete clause (f) of the
definition of "Permitted Disposition" in its entirety and to replace such clause
with the following provision:
and (f) the sale for fair value by the Borrower of all, or a material
portion, of the Metal Services Assets outside the ordinary course of
its business, provided that (i) the Metal Services Gross Proceeds with
respect thereto is greater than or equal to $25,000,000, (ii) at least
90% of such Metal Services Gross Proceeds are payable by the purchaser
of such Metal Services Assets to the Borrower in cash, or by wire
transfer of immediately available funds, on the Metal Services Sale
Date or, with respect to inventory, within six (6) months thereafter
(plus any applicable grace periods), (iii) the Borrower shall make a
mandatory prepayment with respect thereto in accordance with Section
2.8.1(e), (iv) any reduction to the Commitment Amount which is required
to be made pursuant to Section 2.2.2(b) in connection therewith shall
have been made and (v) no Default or Event of Default shall have
occurred and be continuing as of the Metal Services Sale Date."
(e) Schedule I is further amended to delete in its entirety
the definition of "Pricing Ratio" set forth in such schedule and to replace such
definition with the following definition:
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"Pricing Ratio" means, as of last day of any fiscal quarter, a
fraction equal to the Borrower's and its consolidated Subsidiaries' Senior Debt
as of the last day of the then most recently ended fiscal quarter divided by the
Borrower's and its consolidated Subsidiaries' Pricing EBITDA for the most recent
four (4) fiscal quarters then ended.
(f) Schedule I is further amended to add the following
definition to such schedule in the appropriate alphabetical location:
"Pricing EBITDA" means, with respect to any period, as
determined in accordance with GAAP, the sum for such period of (a) Operating
Income plus (b) Depreciation; provided, however, that, (i) for purposes of
computing the Borrower's and its consolidated Subsidiaries' Pricing EBITDA for
the four (4) fiscal quarter period ending on June 30, 1997, all operations
acquired by the Borrower or any such Subsidiaries by merger or other acquisition
during either of the last two fiscal quarters of 1996 or the first fiscal
quarter of 1997 shall be treated as having been acquired on a pro forma basis as
of July 1, 1996, (ii) for purposes of computing the Borrower's and its
consolidated Subsidiaries' Pricing EBITDA for the four (4) fiscal quarter period
ending on September 30, 1997, all operations acquired by the Borrower or any
such Subsidiary by merger or other acquisition during the last fiscal quarter of
1996 or the first fiscal quarter of 1997 shall be treated as having been
acquired on a pro forma basis as of October 1, 1996, (iii) for purposes of
computing the Borrower's and its consolidated Subsidiaries' Pricing EBITDA for
the four (4) fiscal quarter period ending December 31, 1997, and each four (4)
fiscal quarter period ending thereafter, all operations acquired by the Borrower
and its Subsidiaries by merger or otherwise during such period shall be treated
as having been acquired on a pro forma basis as of the first day of such period
if, and only if, for purposes this clause (iii), such merger or acquisition
either occurred prior to the Closing Date or was permitted under Section 6.2(a),
and, with respect to each such merger and acquisition which has occurred after
the Closing Date, the Borrower shall have delivered to the Agent copies of the
audited annual financial statements of the Person who was, or whose operations
were, acquired by the Borrower and its Subsidiaries pursuant to such merger or
acquisition for the fiscal year of such Person which had most recently ended as
of the date of such merger or acquisition, (iv) for purposes of computing the
Borrower's and its consolidated Subsidiaries' Pricing EBITDA for any four (4)
fiscal quarter period, the amount of Pricing EBITDA otherwise calculated
pursuant to this definition shall be increased by the aggregate amount of that
portion of any unusual charges incurred by the Borrower and its Subsidiaries
during such period which will not result in the outlay of cash (whether during
the period of computation or any subsequent period) and is deducted in otherwise
computing Pricing EBITDA for such period, but only to the extent such amount
does not exceed $15,000,000 during such period and was not incurred with respect
to any write-down or other revaluation of any of the Collateral which is either
(x) outside of the ordinary course of business or (y) otherwise in an amount
which exceeds five percent (5%) of the aggregate book value of the Collateral
and (v) for purposes of computing the Borrower's and its consolidated
Subsidiaries Pricing EBITDA for any four (4) fiscal quarter period, such
computation shall include Pricing EBITDA (whether positive or negative)
attributable to the Borrower's Metal Services business to the extent otherwise
excluded as a result of such business being classified as a discontinuing
operation; provided, further, however, that, for purposes of computing the
Borrower's and its consolidated
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Subsidiaries' EBITDA for any four (4) fiscal quarter period which includes any
fiscal quarter of the Borrower ending on or before December 31, 1998, no
adjustment shall be made pursuant to clause (iv) of this definition and,
instead, the amount of Pricing EBITDA otherwise calculated pursuant to this
definition for any such period shall be increased by the aggregate amount of
restructuring charges incurred by the Borrower and its Subsidiaries during such
period which will not result in the outlay of cash (whether during the period of
computation or any subsequent period), but only to the extent such restructuring
charges do not exceed $28,000,000 in the aggregate after the date hereof.
2. Waiver No. 2 to the Credit Agreement. Subject to Paragraph
3 of this Agreement, and effective as of the date of this Agreement, each of the
Lenders and the Agent hereby waive each of the Covenant Defaults.
3. Effectiveness of this Agreement; Conditions Precedent. The
provisions of Paragraphs 1 and 2 shall be deemed to have become effective as of
the date of this Agreement, but such effectiveness shall be expressly
conditioned upon the Agent's receipt on or before February 27, 1997 of each of
the following:
(a) an originally-executed counterpart of this Agreement
executed by a duly authorized officer of the Borrower and each of the Lenders;
and
(b) payment of each "Amendment Fee" due and payable pursuant
to, and as defined in, Paragraph 4(e) hereof.
4. Representations, Warranties and Covenants. (a) The Borrower
hereby represents and warrants that this Agreement constitutes the legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms.
(b) The Borrower hereby represents and warrants that the
statements contained in the second "WHEREAS" clause in the introductory
paragraphs of this Agreement are true and correct.
(c) The Borrower hereby represents and warrants that its
execution and delivery of this Agreement, and its performance hereafter of the
Credit Agreement as modified by this Agreement, have been duly authorized by all
necessary corporate action, do not violate any provision of its articles of
incorporation, bylaws or other charter documents, will not violate any law,
regulation, court order or writ applicable to it, will not require the approval
or consent of any governmental agency, and do not require the approval or
consent of any third party under the terms of any contract or agreement to which
the Borrower, Parent or any Subsidiary of the Borrower or Parent is bound
(including, without limitation, the Parent Indenture).
(d) The Borrower hereby represents and warrants that, after
giving effect to all of the provisions of this Agreement, (i) no Default or
Event of Default has occurred and is continuing or will have occurred and be
continuing and (ii) all of the representations and
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warranties of the Borrower contained in the Credit Agreement (other than
representations and warranties which, in accordance with their express terms,
are made only as of a specified date) are, and will be, true and correct as of
the date of the Borrower's execution hereof in all material respects as though
made on and as of such date. The Borrower hereby further represents and warrants
that none of the Covenant Defaults would have occurred if the amendment
contemplated by Paragraph 1(c) hereof were effective as of December 31, 1997.
(e) The Borrower hereby agrees to pay to the Agent, for the
benefit of each Lender which executes and delivers a counterpart to this
Agreement prior to February 27, 1997, an amendment fee in an amount equal to
one-tenth of one percent (0.10%) of such Lender's Commitment as in existence on
February 19, 1998 after giving effect to the amendments proposed by this
Agreement (the "Amendment Fee"), provided no such Amendment Fee shall be due or
payable unless the conditions set forth in Paragraph 3(a) shall have been
satisfied. Such payments shall be made in cash or in immediately available funds
to the Agent, for the benefit of each such Lender, promptly following the later
to occur of such Lender's execution and delivery of a counterpart to this
Agreement and the satisfaction of the conditions set forth in Paragraph 3(a).
5. Reference to and Effect on Credit Agreement. The Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed. Except as expressly set forth in Paragraph 2 hereof, neither the
execution, delivery or effectiveness of this Agreement shall operate as a waiver
of any right, power or remedy of the Agent or any Lender of any Default or Event
of Default under the Credit Agreement, all of which the Agent and the Lenders
hereby expressly reserve. Nothing contained herein shall require the Agent or
the Lender to hereafter waive any Default or Event of Default, whether arising
from the Borrower's subsequent noncompliance with the same provisions subject to
the express waivers provided in this Agreement or otherwise. The Borrower, the
Lenders and the Agent agree and acknowledge that this Agreement constitutes a
"Loan Document" under and as defined in the Credit Agreement.
6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws and decisions of the State of Illinois.
7. Agent's Expenses. The Borrower hereby agrees to promptly
reimburse the Agent for all of the reasonable out-of-pocket expenses, including,
without limitation, attorneys' and paralegals' fees, it has heretofore or
hereafter incurred or incurs in connection with the preparation, negotiation and
execution of this Agreement.
8. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original and all of which together shall
constitute one and the same agreement among the parties.
* * * *
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IN WITNESS WHEREOF, this Agreement has been duly executed as
of the day and year first above written.
UNITED STATES CAN COMPANY
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President - Treasurer
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION (as successor
to Bank of America
Illinois), as Agent
By: /s/ Xxx XxXxxxx
-------------------------------------
Name: Xxx XxXxxxx
Title: Assistant Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION (as successor
to Bank of America
Illinois), as the Primary
Issuing Lender, a Lender
and individually
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK,
as an Issuing Lender and a Lender
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
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THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ Xxxxxx X. Toll
-------------------------------------
Name: Xxxxxx X. Toll
Title: Second Vice President
SOCIETE GENERALE, CHICAGO,
BRANCH, as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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