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EXHIBIT 10.35
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "Amendment No. 2"), dated
as of November 21, 1996, is entered into by and among IPC, INC. (the
"Borrower"), CERTAIN GUARANTORS IDENTIFIED ON THE SIGNATURES PAGES HERETO, THE
LENDERS IDENTIFIED ON THE SIGNATURE PAGES HERETO and NATIONSBANK, N.A., as
Agent (the "Agent").
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and the Agent entered
into that certain Credit Agreement, dated as of December 7, 1995, as amended by
that certain Amendment No. 1 to Credit Agreement, dated as of August 16, 1996
(as amended, the "Existing Credit Agreement");
WHEREAS, to allow the financing of the Xxxxxx Property, the parties hereto
have agreed to amend the Existing Credit Agreement;
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein or the
context otherwise requires, the following terms used in this Amendment No. 2,
including its preamble and recitals, have the following meanings:
"Amended Credit Agreement" means the Existing Credit
Agreement as amended hereby.
"Amendment No. 2 Effective Date" is defined in Subpart 4.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment No. 2, including its
preamble and recitals, have the meanings provided in the Amended Credit
Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 2
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II. Except as so
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amended, the Existing Credit Agreement and all other Credit Documents shall
continue in full force and effect.
SUBPART 2.1. Amendments to Section 1.1. The following definitions in
Section 1.1 of the Existing Credit Agreement are amended in their entirety to
read as follows:
"Funded Debt" means, without duplication, the sum of (i) all
Indebtedness of the Borrower and its Subsidiaries for borrowed
money, excluding intercompany items, (ii) all purchase money
Indebtedness of the Borrower and its Subsidiaries, (iii) the
principal portion of all obligations of the Borrower and its
Subsidiaries under capitalized leases, (iv) unreimbursed portions
of letters of credit drawn for the account of the Borrower and its
Subsidiaries, (v) all Guaranty Obligations of the Borrower and its
Subsidiaries with respect to Funded Debt of another entity, (vi)
all Funded Debt of another entity secured by a Lien on any
property of the Borrower and its Subsidiaries but only to the
extent of the value of such property, whether or not such Funded
Debt has been assumed by the Borrower or any of its Subsidiaries,
(vii) all Funded Debt of any partnership or unincorporated joint
venture where the Borrower or one of its Subsidiaries is a general
partner therein but only to the extent such Person is legally
obligated or has a reasonable expectation of being liable with
respect thereto, net of any assets of such partnership or joint
venture and (viii) the principal balance outstanding under any
synthetic lease, tax retention operating lease, off-balance sheet
loan or similar off-balance sheet financing product to which the
Borrower or any of its Subsidiaries is a party, where such
transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance
with GAAP; provided that any Indebtedness incurred in connection
with the Xxxxxx Property shall be excluded from this clause
(viii).
"Indebtedness" of any Person means, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, or upon which interest payments are
customarily made, (iii) all obligations of such Person under
conditional sale or other title retention agreements relating to
property purchased by such Person to the extent of the value of
such property (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary
course of business), (iv) all obligations, including without
limitation intercompany items, of such Person issued or assumed as
the deferred purchase price of Property or services purchased by
such Person which would appear as liabilities on a balance sheet
of such Person, (v) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable
out of the proceeds of Property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed,
(vi) all Guaranty Obligations of such Person, (vii) the principal
portion of all obligations of such Person under capital leases,
(viii) all obligations of such Person in respect of interest rate
protection
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agreements, foreign currency exchange agreements, or other
interest or exchange rate or commodity price hedging agreements,
(ix) the maximum amount of all standby letters of credit issued or
bankers' acceptances facilities created for the account of such
Person and, without duplication, all drafts drawn thereunder (to
the extent unreimbursed), (x) all preferred stock issued by such
Person and required by the terms thereof to be redeemed, or for
which mandatory sinking fund payments are due, by a fixed date,
(xi) all other obligations which would be shown as a liability on
the balance sheet of such Person, (xii) the aggregate purchase
price paid by third parties for the purchase of the accounts
receivable of such Person subject at such time to a sale of
receivables (or similar transaction) regardless of whether such
transaction is effected without recourse to such Person or in a
manner that would not be reflected on the balance sheet of such
Person in accordance with GAAP and (xiii) the principal balance
outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet
financing product to which such Person is a party, where such
transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance
with GAAP. The Indebtedness of any Person shall include the
Indebtedness of any partnership or unincorporated joint venture
but only to the extent such Person is legally obligated or has a
reasonable expectation of being liable with respect thereto.
SUBPART 2.2. Deletion of Section 8.15(h). Section 8.15(h) of the
Existing Credit Agreement is deleted in its entirety.
SUBPART 2.3. Amendments to Section 9.1(k). Section 9.1(k) of the
Existing Credit Agreement is amended in its entirety to read as follows:
9.1 Indebtedness. Neither Holdings, the Borrower nor any of
their Subsidiaries will contract, create, incur, assume or permit
to exist any Indebtedness, except:
* * * * *
(k) Indebtedness with respect to the financing of the Xxxxxx
Property by the Borrower, provided that such Indebtedness shall
not exceed $9,000,000.00.
PART III
WAIVER
SUBPART 3.1. Waiver of Section 8.9. So long as no Credit Party shall
have a fee interest in the Xxxxxx Property, the Lenders agree not to take a
Lien in the Xxxxxx Property as required pursuant to the terms of Section 8.9 of
the Existing Credit Agreement or as contemplated by the terms of Section 2 of
the Security Agreement.
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PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1. Amendment No. 2 Effective Date. This Amendment No. 2 shall
be and become effective as of the date hereof (the "Amendment No. 2 Effective
Date") when all of the conditions set forth in this Subpart 4.1 shall have been
satisfied, and thereafter this Amendment No. 2 shall be known, and may be
referred to, as "Amendment No. 2."
SUBPART 4.1.1. Execution of Counterparts of Amendment. The Agent shall
have received executed counterparts (or other evidence of execution, including
facsimile signatures, satisfactory to the Agent) of this Amendment No. 2, which
collectively shall have been duly executed on behalf of each of the Borrower,
the Guarantors, the Required Lenders and the Agent.
SUBPART 4.1.2. Other Documents. The Agent shall have received such other
documents relating to the financing of the Xxxxxx Property as the Agent or any
Lender or counsel to the Agent may reasonably request.
PART V
MISCELLANEOUS
SUBPART 5.1. Cross-References. References in this Amendment No. 2 to any
Part or Subpart are, unless otherwise specified, to such Part or Subpart of
this Amendment No. 2.
SUBPART 5.2. Instrument Pursuant to Existing Credit Agreement. This
Amendment No. 2 is a Credit Document executed pursuant to the Existing Credit
Agreement and shall (unless otherwise expressly indicated therein) be
construed, administered and applied in accordance with the terms and provisions
of the Existing Credit Agreement.
SUBPART 5.3. References in Other Credit Documents. At such time as this
Amendment No. 2 shall become effective pursuant to the terms of Subpart 4.1,
all references in the Credit Documents to the "Credit Agreement" shall be
deemed to refer to the Amended Credit Agreement.
SUBPART 5.4. Representations and Warranties. Each Credit Party hereby
represents and warrants that (i) each Credit Party that is party to this
Amendment No. 2: (a) has the requisite corporate power and authority to
execute, deliver and perform this Amendment No. 2, as applicable and (b) is
duly authorized to, and has been authorized by all necessary corporate action,
to execute, deliver and perform this Amendment No. 2, (ii) the Borrower has no
claims, counterclaims, offsets, or defenses to the Credit Documents and the
performance of its obligations thereunder, or if the Borrower has any such
claims, counterclaims, offsets, or defenses to the Credit Documents or any
transaction related to the Credit Documents, the same are hereby waived,
relinquished and released in consideration of the Lenders' execution and
delivery of this Amendment No. 2, (iii) since the date of the last financial
statements of the Borrower delivered to the Lenders, no event or condition has
occurred which has had or could have a Material Adverse Effect, (iv) the
representations and warranties contained in Section 7 of the Existing Credit
Agreement are correct on and as of the date
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hereof as though made on and as of such date and after giving effect to the
amendments contained herein and (v) after giving effect to the amendments
contained herein, no Default or Event of Default exists under the Existing
Credit Agreement on and as of the date hereof or will occur as a result of the
transactions contemplated hereby.
SUBPART 5.5. Liens. The Borrower and the Guarantors, as applicable,
affirm the liens and security interests created and granted in the Credit
Documents and agree that this Amendment No. 2 shall in no manner adversely
effect or impair such liens and security interest.
SUBPART 5.6. Acknowledgement of Guarantors. The Guarantors acknowledge
and consent to all of the terms and conditions of this Amendment No. 2 and
agree that this Amendment No. 2 and all documents executed in connection
herewith do not operate to reduce or discharge the Guarantors' obligations
under the Amended Credit Agreement or the other Credit Documents. The
Guarantors further acknowledge and agree that the Guarantors have no claims,
counterclaims, offsets, or defenses to the Credit Documents and the performance
of the Guarantors' obligations thereunder or if the Guarantors did have any
such claims, counterclaims, offsets or defenses to the Credit Documents or any
transaction related to the Credit Documents, the same are hereby waived,
relinquished and released in consideration of the Lenders' execution and
delivery of this Amendment No. 2.
SUBPART 5.7. No Other Changes. Except as expressly modified and amended
in this Amendment No. 2, all the terms, provisions and conditions of the
Credit Documents shall remain unchanged.
SUBPART 5.8. Counterparts. This Amendment No. 2 may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SUBPART 5.9. Entirety. This Amendment No. 2, the Amended Credit
Agreement and the other Credit Documents embody the entire agreement between
the parties and supersede all prior agreements and understandings, if any,
relating to the subject matter hereof. These Credit Documents represent the
final agreement between the parties and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements of the parties.
SUBPART 5.10. Governing Law. THIS AMENDMENT NO. 2 SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SUBPART 5.11. Successors and Assigns. This Amendment No. 2 shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
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This Amendment No. 2 is executed as of the day and year first written
above.
BORROWER: IPC, INC.
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a Delaware corporation
By:____________________________
Name: Xxxxxxx X. Xxxx
Title: Vice President and Treasurer
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GUARANTORS: IVEX PACKAGING CORPORATION
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a Delaware corporation
By:____________________________
Name: Xxxxxxx X. Xxxx
Title: Vice President and Treasurer
IVEX PAPER MILL CORPORATION
a Delaware corporation
IPMC HOLDING CORPORATION
a Delaware corporation
IPMC, INC.
a Delaware corporation
VALLEY EXPRESS LINES, INC.
a Delaware corporation
KAMA OF ILLINOIS CORPORATION
a Delaware corporation
PACKAGING PRODUCTS, INC.
a Delaware corporation
IVEX CORPORATION
an Ontario corporation
CFI INDUSTRIES, INC.
a Delaware corporation
PLASTOFILM INDUSTRIES, INC.
a Delaware corporation
CFI RECYCLING, INC.
a Delaware corporation
TRIO PRODUCTS, INC.
a Delaware corporation
By:____________________________
Name: Xxxxxxx X. Xxxx
Title: Vice President and Treasurer
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LENDERS: NATIONSBANK, N.A.
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individually in its capacity as a
Lender and in its capacity as
Agent
By:_____________________________
Name:___________________________
Title___________________________
BANKERS TRUST COMPANY
By:_____________________________
Name:___________________________
Title___________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By:_____________________________
Name:___________________________
Title___________________________
SOCIETE GENERALE, SOUTHWEST AGENCY
By:_____________________________
Name:___________________________
Title___________________________
BANQUE PARIBAS
By:_____________________________
Name:___________________________
Title___________________________
By:_____________________________
Name:___________________________
Title___________________________
ABN AMRO BANK, N.V., HOUSTON AGENCY
BY: ABN AMRO NORTH AMERICA, INC.,
AS AGENT
By:_____________________________
Name:___________________________
Title___________________________
By:_____________________________
Name:___________________________
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Title___________________________
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BANK OF BOSTON (F/K/A FIRST NATIONAL BANK
OF BOSTON)
By:_____________________________
Name:___________________________
Title___________________________
FIRST BANK NATIONAL ASSOCIATION
By:_____________________________
Name:___________________________
Title___________________________
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By:_____________________________
Name:___________________________
Title___________________________
XXX XXXXXX AMERICAN CAPITAL PRIME RATE INCOME
TRUST
By:_____________________________
Name:___________________________
Title___________________________
SENIOR DEBT PORTFOLIO
By:_____________________________
Name:___________________________
Title___________________________
IMPERIAL BANK
By:_____________________________
Name:___________________________
Title___________________________
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