FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
EXECUTION COPY
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 22, 2011 (this
“Amendment”), to the Existing Credit Agreement (such capitalized terms and other
capitalized terms used in this preamble and the recitals below shall have the meanings set forth
in, or are defined by reference in, Article I below) is among XXXXX, INC., a Delaware
corporation (the “Company”), XXXXX INTERNATIONAL HOLDING SUPRA C.V., a limited partnership
(commanditaire vennootschap) incorporated and existing under the laws of The Netherlands with
statutory seat in Amsterdam, The Netherlands (“Xxxxx XX0”), GREIF INTERNATIONAL HOLDING
B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid)
incorporated and existing under the laws of The Netherlands with statutory seat in Amstelveen, The
Netherlands (together with the Company and Xxxxx XX0, the “Borrowers” and each, a
“Borrower”), each lender from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders, the Administrative Agent and the L/C Issuer are parties
to the Amended and Restated Credit Agreement, dated as of October 29, 2010 (as amended or otherwise
modified prior to the date hereof, the “Existing Credit Agreement”, and as amended by this
Amendment and as the same may be further amended, supplemented, amended and restated or otherwise
modified from time to time, the “Credit Agreement”); and
WHEREAS, the Borrowers have requested that the Lenders amend certain provisions of the
Existing Credit Agreement and the Lenders are willing, on the terms and subject to the conditions
hereinafter set forth, to make the amendments to the Existing Credit Agreement set forth below.
NOW, THEREFORE, the parties hereto hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms when used in this Amendment
shall have the following meanings (such meanings to be equally applicable to the singular and
plural forms thereof):
“Amendment” is defined in the preamble.
“Amendment Effective Date” is defined in Article IV.
“Borrower” is defined in the preamble.
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“Company” is defined in the preamble.
“Credit Agreement” is defined in the first recital.
“Existing Credit Agreement” is defined in the first recital.
“Xxxxx XX0” is defined in the preamble.
SECTION 1.2. Other Definitions. Capitalized terms for which meanings are provided in
the Existing Credit Agreement are, unless otherwise defined herein or the context otherwise
requires, used in this Amendment with such meanings.
ARTICLE II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment Effective Date, the provisions
of the Existing Credit Agreement referred to below are hereby amended in accordance with this
Article II.
SECTION 2.1. Amendments to Article I.
SECTION 2.1.1. Section 1.01 of the Existing Credit Agreement is hereby amended by adding the
following definitions in their proper alphabetical places:
“Excluded Foreign Issuer” means any Specified Foreign Issuer that (a)
is a special purpose, Wholly-Owned Subsidiary of the Company which has been or may
be formed for the sole and exclusive purpose of engaging in activities in connection
with the issuance of Specified Foreign Indebtedness; or (b) has incurred Specified
Foreign Indebtedness in an aggregate principal amount not exceeding the Dollar
Equivalent of €35,000,000; provided that, in either case, the terms of, and
the definitive debt documentation with respect to, any Specified Foreign
Indebtedness incurred by such Specified Foreign Issuer shall otherwise comply with
the requirements of the Loan Documents, including as set forth in Section
7.13.
“First Amendment Effective Date” means June 22, 2011.
“Specified Foreign Indebtedness” means Indebtedness of a Foreign
Subsidiary of the Company (including Indebtedness of the type described in
clause (a) of the definition of “Specified Notes”) having a maturity not
earlier than the date that is six months following the Maturity Date then in effect
for the Revolving Credit Facility or the Term Facility, whichever occurs later.
“Specified Foreign Issuer” means, individually or collectively as the
context may require, (a) any Foreign Subsidiary of the Company that issues
Indebtedness of the type described in clause (a) of the definition of
“Specified
Notes”; and (b) each other Foreign Subsidiary of the Company (other than any
Designated Borrower that is a Foreign Subsidiary) that issues Specified Foreign
Indebtedness.
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“Specified Notes” means, as the context may require, (a) Senior Notes
to be issued by a Foreign Subsidiary of the Company within six months following the
First Amendment Effective Date (or such later date as the Administrative Agent shall
agree in its reasonable discretion, which in any event shall be no later than nine
months following the First Amendment Effective Date), in an aggregate principal
amount not to exceed €300,000,000 and having a maturity not earlier than six months
following the Maturity Date for the Revolving Credit Facility or the Term Facility,
whichever occurs later; or (b) Senior Notes to be issued by the Company, in lieu of
the Senior Notes described in clause (a) above, within six months following
the First Amendment Effective Date (or such later date as the Administrative Agent
shall agree in its reasonable discretion, which in any event shall be no later than
nine months following the First Amendment Effective Date), in an aggregate principal
amount not to exceed the Dollar Equivalent of €300,000,000 and having a maturity not
earlier than six months following the Maturity Date for the Revolving Credit
Facility or the Term Facility, whichever occurs later.
SECTION 2.1.2. Section 1.01 of the Existing Credit Agreement is hereby amended by amending
the following definitions in their entirety to read as follows:
“Senior Note Documents” means, collectively, (a) the Indenture, dated
as of February 9, 2007, between the Company, as Issuer, and U.S. Bank National
Association, as Trustee; (b) the Indenture, dated as of July 28, 2009, among the
Company and U.S. Bank National Association; (c) the Indenture in respect of the
Specified Notes; (d) the Senior Notes; and (e) all other agreements, instruments and
other documents pursuant to which the Senior Notes have been or will be issued or
otherwise setting forth the terms of the Senior Notes.
“Senior Notes” means, collectively, (a) the Company’s 6-3/4% Senior Notes
due 2017, (b) the Company’s 7-3/4% Senior Notes due 2019 and (c) the Specified Notes.
SECTION 2.2. Amendments to Article VI. Sections 6.11(e) and (f) of the Existing
Credit Agreement are hereby amended in their entirety to read as follows:
(e) Upon the date (i) of the formation or acquisition of any new Foreign
Subsidiary that is a direct parent of a Designated Borrower that is a Foreign
Subsidiary, (ii) on which any Foreign Subsidiary (other than Xxxxx XX0 or Greif
International Holding) becomes a Designated Borrower, or (iii) on which any
Specified Foreign Issuer (other than an Excluded Foreign Issuer) incurs Specified
Foreign Indebtedness, the Company shall (if it has not already done so), at the
Company’s expense, within sixty (60) days (or such later date as the Administrative
Agent shall agree in its reasonable discretion) after such date (but
in any event no earlier than the Restructuring Effective Date), cause such Foreign
Subsidiary to duly execute and deliver to the Administrative Agent, as applicable,
(A) a Foreign Subsidiary Guaranty, guaranteeing the Obligations in accordance with
the penultimate paragraph of this Section 6.11, and (B) a Foreign Security
Agreement, securing payment of the Obligations in accordance with the paragraph
immediately following clause (g) of this Section 6.11, including
delivery of all instruments of the type specified in Section 4.01(a)(iii)).
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(f) Within sixty (60) days (or such later date as the Administrative Agent
shall agree in its reasonable discretion) of (i) the formation or acquisition of any
new Subsidiary, (ii) the addition of a Designated Borrower under this Agreement or
(iii) the issuance of Specified Foreign Indebtedness by a Specified Foreign Issuer
(other than an Excluded Foreign Issuer), in each case as described in clauses
(d) and (e) above, the Company shall deliver to the Administrative
Agent, upon the request of the Administrative Agent in its sole discretion, a signed
copy of a favorable opinion, addressed to the Administrative Agent and the other
Secured Parties, of counsel for the Loan Parties reasonably acceptable to the
Administrative Agent as to such matters as the Administrative Agent may reasonably
request.
SECTION 2.3. Amendment to Article VII. Section 7.02(m) of the Existing Credit
Agreement is hereby amended and restated in its entirety to read as follows:
(m) Indebtedness, in addition to that referred to elsewhere in this Section
7.02, (i) constituting Specified Foreign Indebtedness, in a Dollar Equivalent
principal amount not to exceed 10% of the Company’s Consolidated Tangible Assets;
plus (ii) constituting other Indebtedness incurred by Foreign Subsidiaries, in a
Dollar Equivalent principal amount not to exceed 5% of the Company’s Consolidated
Tangible Assets; provided that the aggregate principal amount of the
Indebtedness described in clauses (i) and (ii) above that may be
secured under Section 7.01(i) shall not exceed $15,000,000;
ARTICLE III
CONDITIONS TO EFFECTIVENESS
CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective on the date first written above (the “Amendment
Effective Date”) when the following conditions have been met:
SECTION 3.1. Counterparts. The Administrative Agent shall have received counterparts
hereof executed on behalf of the Borrowers and the requisite Lenders.
SECTION 3.2. Costs and Expenses, etc. The Administrative Agent shall have received
for the account of each Lender, all fees, costs and expenses due and payable pursuant to Section
10.04 of the Credit Agreement, if then invoiced.
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SECTION 3.3. Amendment Fee. The Administrative Agent shall have received, for the
ratable benefit of each Lender (that has delivered its signature page in a manner and before the
time set forth below), a non-refundable fee in an amount equal to the lesser of (a) $10,000
and (b) 0.05% of the sum of (i) Total Outstandings and (ii) aggregate unused Revolving Credit
Commitments, in each case as of the Amendment Effective Date, but payable only to each such Lender
that has delivered (including by way of facsimile or email) its executed signature page to this
Amendment to the attention of Xxxxxxx Xxxxxxx at Xxxxx Xxxxx LLP, 000 X. Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, facsimile number: (000) 000-0000, email address:
xxxxxxxx@xxxxxxxxxx.xxx, at or prior to 5:00 p.m. (Eastern time) on June 20, 2011.
SECTION 3.4. Affirmation and Consent. The Administrative Agent shall have received,
with counterparts for each Lender, a duly executed copy of an Affirmation and Consent, dated as of
the Amendment Effective Date, in form and substance satisfactory to the Administrative Agent, duly
executed and delivered by each of the Loan Parties (other than the Borrowers).
SECTION 3.5. Other Documents. The Administrative Agent shall have received such
other documents, agreements or information as the Administrative Agent, any Lender or counsel to
the Administrative Agent may reasonably request.
ARTICLE IV
MISCELLANEOUS
MISCELLANEOUS
SECTION 4.1. Cross-References. References in this Amendment to any Article or
Section are, unless otherwise specified, to such Article or Section of this Amendment.
SECTION 4.2. Loan Document Pursuant to Existing Credit Agreement. This Amendment is
a Loan Document executed pursuant to the Existing Credit Agreement and shall (unless otherwise
expressly indicated therein) be construed, administered and applied in accordance with all of the
terms and provisions of the Existing Credit Agreement, as amended hereby, including Article X
thereof.
SECTION 4.3. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns.
SECTION 4.4. Counterparts. This Amendment may be executed in counterparts (and by
different parties hereto in different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Amendment by telecopy or other electronic imaging means
shall be effective as delivery of a manually executed counterpart of this Amendment.
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SECTION 4.5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 4.6. Full Force and Effect; Limited Amendment. Except as expressly amended
hereby, all of the representations, warranties, terms, covenants, conditions and other provisions
of the Existing Credit Agreement, the Collateral Documents and the other Loan Documents shall
remain unchanged and shall continue to be, and shall remain, in full force and effect in accordance
with their respective terms. The amendments set forth herein shall be limited precisely as
provided for herein to the provisions expressly amended herein and shall not
be deemed to be an amendment to, waiver of, consent to or modification of any other term or
provision of the Existing Credit Agreement, the Collateral Documents or any other Loan Document or
of any transaction or further or future action on the part of any Loan Party which would require
the consent of the Lenders under the Existing Credit Agreement, the Collateral Documents or any of
the Loan Documents.
SECTION 4.7. Representations and Warranties. To induce the Lenders to execute and
deliver this Amendment, the Borrowers hereby represent and warrant to the Lenders on the Amendment
Effective Date that no Default or Event of Default exists and all statements set forth in Section
4.02(a) of the Credit Agreement are true and correct as of such date, except to the extent that any
such statement expressly relates to an earlier date (in which case such statement was true and
correct on and as of such earlier date).
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the
date first above written.
| XXXXX, INC. |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| GREIF INTERNATIONAL HOLDING SUPRA C.V. | ||||
| By: | Xxxxx XX-Management LLC, its general partner | |||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Treasurer | |||
| GREIF INTERNATIONAL HOLDING B.V. |
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| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Director | |||
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| BANK OF AMERICA, N.A., as Administrative Agent |
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| By: | /s/ Xxxxxxx Xxxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxxx | |||
| Title: | Vice President | |||
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| Bank of America. N.A., as a Lender |
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| By: | /s/ Xxxxx Xxxxxxxx Xxxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx Xxxxxxxxxxx | |||
| Title: | Director | |||
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| JPMorgan Chase Bank, N.A., as a Lender |
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| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Vice President | |||
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| KEYBANK NATIONAL ASSOCIATION, as a Lender |
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| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
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| CITIZENS BANK OF PENNSYLVANIA, as a Lender |
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| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President | |||
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| DEUTSCHE BANK AG CAYMAN ISLANDS, as a Lender |
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| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Director | |||
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| U.S. Bank National Association, as a Lender |
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| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | VICE PRESEDENT | |||
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| Xxxxx Fargo Bank N.A., as a Lender |
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| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Director | |||
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| Fifth Third Bank, as a Lender |
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| By: | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Vice President | |||
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| AgFirst Farm Credit Bank, as a Lender |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Assistant Vice President | |||
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| The Huntington National Bank, as a Lender |
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| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Vice President | |||
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| PNC Bank, National Association, as a Lender |
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| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Executive Vice President | |||
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| SUMITOMO MITSUI BANKING CORPORATION, as a Lender |
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| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | General Manager | |||
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| DnB NOR Bank ASA, as a Lender |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Senior Vice President | |||
| By: | /s/ Xxxxxxx Xx | |||
| Name: | Xxxxxxx Xx | |||
| Title: | Vice President | |||
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| ING BANK N.V., DUBLIN BRANCH, as a Lender | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Director | |||
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| HSBC Bank USA, National Association, as a Lender |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Assistant Vice President | |||
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| The Northern Trust Company, as a Lender |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
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| TD Bank, N.A., as a Lender |
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| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Senior Vice President | |||
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| Union Bank, N.A., as a Lender |
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| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Vice President | |||
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| Farm Credit Services of Mid-America,
PCA, as a Lender |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
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| COOPERATIVE CENTRALE
RAIFFEISEN- BOERENLEENBANK B.A., “RABOBANK NEDERLAND: NEW YORK BRANCH, as a Lender |
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| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Executive Director | |||
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| Farm Credit Bank of Texas, as a Lender |
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| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Vice President | |||
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| American AgCredit, PCA., as a Lender |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Vice President | |||
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| Comerica Bank, as a Lender |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Vice President | |||
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| FIRSTMERIT BANK, N.A., as a Lender |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Senior Vice president | |||
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| 1st Farm Credit Services, PCA, as a Lender |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Vice President, Capital Markets | |||
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| Branch Banking and Trust
Company, as a Lender |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
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| Badgerland Financial, FLCA, as a Lender |
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| By: | /s/ Xxxxxxx X. Xxx | |||
| Xxxxxxx X. Xxx | ||||
| VP Loan Participations & Capital Markets | ||||
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| GREENSTONE FARM CREDIT SERVICES, ACA/FLCA |
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| By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Senior Vice President/Managing Director | |||
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| Farm Credit Services of the Mountain Plains, PCA, as a Lender |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President | |||
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