EXHIBIT 10.4
XXXXX PLASTICS CORPORATION
BPC HOLDING CORPORATION
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED EXISTING CREDIT AGREEMENT
This AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "AMENDMENT") is dated as of October [__], 2004 and entered into by and
among XXXXX PLASTICS CORPORATION, a Delaware corporation ("COMPANY"), BPC
HOLDING CORPORATION, a Delaware corporation ("HOLDINGS"), XXXXXXX XXXXX CREDIT
PARTNERS L.P. ("GSCP"), as administrative agent (in such capacity,
"ADMINISTRATIVE AGENT"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE
PAGES HEREOF, JPMORGAN CHASE BANK ("JPMCB"), as syndication agent (in such
capacity, "SYNDICATION AGENT"), FLEET NATIONAL BANK ("FLEET"), as Collateral
Agent, Issuing Bank and Swing Line Lender and THE ROYAL BANK OF SCOTLAND AND
GENERAL ELECTRIC CAPITAL CORPORATION, as co-documentation agents the "CO-
DOCUMENTATION AGENTS", and is made with reference to the Second Amended and
Restated Credit Agreement dated as of August 9, 2004 (the "EXISTING CREDIT
AGREEMENT", and as so amended by this Amendment, the "FIRST AMENDED AGREEMENT")
by and among Company, Holdings, the Lenders party thereto, Syndication Agent,
Administrative Agent and the Co-Documentation Agents and the Pledge and
Security Agreement dated as of July 22, 2002 (the "PLEDGE AND SECURITY
AGREEMENT") by and among Company, and the other Grantors party thereto and
Collateral Agent. Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Existing Credit Agreement or if
not defined therein, as in the Pledge and Security Agreement.
RECITALS
WHEREAS, Company, Holdings and Requisite Lenders executing this
Amendment desire to amend certain of the terms and provisions of the Existing
Credit Agreement and the Pledge and Security Agreement as set forth below to
permit Fifth Third Bank, an Ohio banking corporation ("FIFTH THIRD") to assume
the role of Administrative Agent and GSCP to resign as Administrative Agent, in
each case, effective as of the Effective Time (as defined below);
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. GLOBAL AMENDMENT
Company hereby appoints Fifth Third as Administrative Agent in
respect of the First Amended Agreement, and accordingly, each reference in the
Existing Credit Agreement and the Pledge and Security Agreement to "Xxxxxxx
Xxxxx Credit Partners L.P." or "GSCP", in its capacity as Administrative Agent,
is hereby amended by substituting therefor "Fifth Third".
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SECTION 2. AMENDMENTS TO THE EXISTING CREDIT AGREEMENT
2.1 AMENDMENTS TO SECTION 1: DEFINITIONS.
The definition of "Adjusted Eurodollar Rate" is hereby amended by
(i) deleting "JPMCB" and substituting therefor "Fifth Third" and (ii) deleting
"the applicable Loan of the Administrative Agent, in its capacity as Lender",
from the fifth line from the bottom of the existing definition and substituting
therefor "$5,000,000".
The definition of "Business Day" is hereby amended by deleting
"New York" and substituting therefor "Ohio".
The definition of "Federal Funds Effective Rate" is hereby amended
by deleting ", in its capacity as Lender," from the second line from the bottom
of the existing definition.
The following definition is added to Section 1 in appropriate
alphabetical order:
"FIFTH THIRD" means Fifth Third Bank, an Ohio banking corporation.
2.2 AMENDMENT TO SECTION 2: LOANS AND LETTERS OF CREDIT.
Section 2.8(b) is hereby amended by deleting each reference
therein to "GSCP" and substituting therefor "Fifth Third".
2.3 AMENDMENTS TO SECTION 9: AGENTS.
Section 9.8(a) is hereby amended by deleting the first two
sentences thereof and substituting therefor the following:
"Subject to the appointment and acceptance of a successor
Administrative Agent or successor Collateral Agent, as applicable, as provided
in this paragraph, each of Administrative Agent and Collateral Agent may resign
at any time by giving prior written notice thereof to Lenders and Company, and
each of Administrative Agent and Collateral Agent may be removed at any time
with or without cause by an instrument or concurrent instruments in writing
delivered to Company and Administrative Agent or Collateral Agent, as
applicable, and signed by Requisite Lenders. Upon any such notice of
resignation or any such removal, Requisite Lenders shall have the right, upon
five Business Days' notice to Company, to appoint a successor Administrative
Agent or Collateral Agent with Company's consent (not to be unreasonably
withheld) unless an Event of Default has occurred and is continuing or such
successor is a Lender, in each of which cases Company's consent need not be
obtained. In each case, if no successor shall have been so appointed by
Requisite Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent or retiring Collateral Agent, as applicable,
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gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of Lenders, appoint a successor Administrative Agent or successor
Collateral Agent, as applicable."
SECTION 3. AMENDMENT TO THE PLEDGE AND SECURITY AGREEMENT
3.1 AMENDMENTS TO SECTION 1: DEFINITIONS; GRANT OF SECURITY.
The definition of "Secured Parties" in the Pledge and Security
Agreement is hereby deleted in its entirety and replaced with the following:
"SECURED PARTIES" means the Agents, Lenders and the Lender
Counterparties and shall include all former Agents, Lenders and Lender
Counterparties to the extent that any Obligations owing to such Persons were
incurred while such Persons were Agents, Lenders or Lender Counterparties and
such Obligations have not been paid or satisfied in full.
SECTION 4. CONDITIONS TO EFFECTIVENESS
Anything herein to the contrary notwithstanding, Sections 1, 2 and
3 of this Amendment shall become effective only upon the prior or concurrent
satisfaction or waiver of all of the following conditions precedent (the date
of satisfaction of such conditions being referred to herein as the "EFFECTIVE
TIME"):
(a) The Administrative Agent on behalf of the Lenders shall
have received counterparts of this Amendment executed by Holdings, Company, its
Guarantor Subsidiaries and the Requisite Lenders in accordance with Section
10.5(a) of the Existing Credit Agreement, and the Administrative Agent shall
have received Fifth Third's acceptance of and agreement to this Amendment.
(b) Fifth Third shall have received from Administrative Agent
all forms in its possession delivered to it pursuant to Section 2.21(c) of the
Existing Credit Agreement.
(c) Fifth Third shall have received from Company any fees
separately agreed and due and payable on or prior to the Effective Time.
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Existing Credit Agreement in the manner provided herein, Company
represents and warrants to each Lender under the Existing Credit Agreement that
the following statements are true, correct and complete:
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5.1 INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENTS.
On and as of the date hereof and the Effective Time, the
representations and warranties contained in Section 4 of the Existing Credit
Agreement are and will be true, correct and complete with respect to this
Amendment and the First Amended Agreement as if this Amendment and the First
Amended Agreement were "Credit Documents" referred to in such representations
and warranties, and with the foregoing modifications such representations and
warranties are incorporated herein by this reference; and the representations
and warranties contained in Section 4 of the Existing Credit Agreement are and
will be true, correct and complete in all material respects on and as of the
Effective Time to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and complete in all
material respects on and as of such earlier date.
5.2 ABSENCE OF DEFAULT.
No event has occurred and is continuing that would constitute an
Event of Default or a Potential Event of Default under the Existing Credit
Agreement.
SECTION 6. COMPANY ACKNOWLEDGMENT
Each of Company, Holdings and the Guarantor Subsidiaries on the
signature pages hereof hereby acknowledges and agrees that each Credit Document
to which it is a party is in full force and effect and shall not be limited or
impaired in any manner by the effectiveness of this Amendment.
SECTION 7. LENDER ACKNOWLEDGEMENT
Subject to the occurrence of the Effective Time, the Lenders
hereby acknowledge and agree, effective as of the Effective Time that Fifth
Third shall receive all the benefits of Section 9 of the Existing Credit
Agreement, that Fifth Third has not reviewed any Credit Document with any
purpose other than with the purpose of assuming the role of Administrative
Agent and that the knowledge of GSCP, in its capacity as Administrative Agent
prior to the Effective Time, shall not be imputed to Fifth Third.
SECTION 8. MISCELLANEOUS
8.1 REFERENCE TO AND EFFECT ON THE EXISTING CREDIT AGREEMENT AND THE
OTHER CREDIT DOCUMENTS.
(i) On and after the Effective Time, each reference in
the Existing Credit Agreement to "this Agreement", "hereunder", "hereof'",
"herein" or words of like import referring to the Existing Credit Agreement,
and each reference in the other applicable Credit Documents to the "Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Existing Credit Agreement shall mean and be a reference to the Existing Credit
Agreement as amended by this Amendment.
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(ii) Except as specifically amended by this Amendment, the
Existing Credit Agreement and the other Credit Documents relating thereto shall
remain in full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein or therein, constitute
a waiver of any provision of, or operate as a waiver of any right, power or
remedy of any Agent or any Lender under, the Existing Credit Agreement or any
of the other Credit Documents relating thereto.
8.2 HEADINGS.
Section and subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of
this Amendment for any other purpose or be given any substantive effect.
8.3 APPLICABLE LAW.
THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8.4 COUNTERPARTS.
This Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
8.5 EFFECTIVENESS.
This Amendment shall become effective with respect to the Existing
Credit Agreement upon (A) the execution of counterparts hereof by (1) Requisite
Lenders (as defined in the Existing Credit Agreement), (2) Company and (3)
Holdings and the other Gurantor Subsidiaries, (4) Collateral Agent and (5)
Fifth Third, and (B) receipt by Company and Administrative Agent of written or
telephonic notification of such execution and authorization of delivery
thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
XXXXX PLASTICS CORPORATION
By: _____________________________
Name:
Title:
BPC HOLDING CORPORATION
By: ____________________________
Name:
Title:
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GUARANTOR SUBSIDIARIES:
Xxxxx Iowa Corporation
Packerware Corporation
Knight Plastics, Inc.
Xxxxx Xxxxxxxx Corporation
Xxxxx Plastics Design Corporation
Poly-Seal Corporation
Venture Packaging, Inc.
Venture Packaging Midwest, Inc.
Xxxxx Plastics Technical Services, Inc.
CPI Holding Corporation
AeroCon, Inc.
Pescor, Inc.
Xxxxx Tri-Plas Corporation
Cardinal Packaging, Inc.
Xxxxxx Plastics, Inc.
Xxxxx Plastics Acquisition Corporation II
Xxxxx Plastics Acquisition Corporation III
Xxxxx Plastics Acquisition Corporation V
Xxxxx Plastics Acquisition Corporation VI
Xxxxx Plastics Acquisition Corporation VII
Xxxxx Plastics Acquisition Corporation VIII
Xxxxx Plastics Acquisition Corporation IX
Xxxxx Plastics Acquisition Corporation X
Xxxxx Plastics Acquisition Corporation XI
Xxxxx Plastics Acquisition Corporation XII
Xxxxx Plastics Acquisition Corporation XIII
By: _____________________________
Name:
Title:
Xxxxx Plastics Acquisition Corporation XIV, LLC
Xxxxx Plastics Acquisition Corporation XV, LLC
By: _____________________________
Name:
Title:
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AGENTS AND LENDERS:
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as Administrative Agent and Lender
By: _____________________________________
Authorized Signatory
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JPMORGAN CHASE BANK,
as Syndication Agent and Lender
By: _____________________________________
Name:
Title:
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FLEET NATIONAL BANK,
as Collateral Agent, Issuing Bank, Lender and Swing Line Lender
By: _____________________________________
Name:
Title:
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THE ROYAL BANK OF SCOTLAND,
as Co-Documentation Agent and Lender
By: _____________________________________
Name:
Title:
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GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agent and Lender
By: _____________________________________
Name:
Title:
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Accepted and Agreed to:
FIFTH THIRD BANK,
An Ohio banking corporation
By: _____________________________________
Name:
Title:
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NY12527:143254.6
