Xxxxx Third Amendment to 3rd A&R CFA.DOC
03/15/02 2:49 PM
THIRD AMENDMENT TO THIRD AMENDED AND RESTATED
FINANCING AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO THIRD AMENDED AND RESTATED FINANCING AND
SECURITY AGREEMENT (this "Amendment") is made effective as of the 11th day
of May, 2001, by and among XXXXX PLASTICS CORPORATION, a corporation
organized and existing under the laws of the State of Delaware (the
"Borrower"), NIM HOLDINGS LIMITED, a company organized and existing under
the laws of England and Wales ("NIM Holdings"), and XXXXX PLASTICS UK
LIMITED, a company organized and existing under the laws of England and
Wales, formerly known as Norwich Injection Moulders Limited ("Xxxxx UK");
BANK OF AMERICA, N.A., a national banking association ("Bank of America"),
FLEET CAPITAL CORPORATION, a corporation organized and existing under the
laws of the State of Rhode Island ("Fleet"), GENERAL ELECTRIC CAPITAL
CORPORATION, a corporation organized and existing under the laws of the
State of New York ("GE Capital"), XXXXXX FINANCIAL, INC., a corporation
organized and existing under the laws of the State of Delaware ("Xxxxxx"),
PNC BANK, NATIONAL ASSOCIATION, a national banking association ("PNC"),
LASALLE BUSINESS CREDIT, INC., a corporation organized and existing under
the laws of the State of Delaware ("LaSalle"), and THE PROVIDENT BANK, a
banking corporation organized and existing under the laws of the State of
Ohio ("Provident") (collectively, the "Lenders" and individually, a
"Lender"); GENERAL ELECTRIC CAPITAL CORPORATION, a corporation organized
and existing under the laws of the State of New York, as documentation
agent, and BANK OF AMERICA, N. A., a national banking association, in its
capacity as both collateral and administrative agent for the Lenders (the
"Agent") and as lead arranger; Witnesseth:
RECITALS
The Lenders, the Borrower, Xxxxx UK, NIM Holdings and the Agent are
parties to that certain Third Amended and Restated Financing and Security
Agreement dated as of May 9, 2000, as amended by (i) that certain First
Amendment to Third Amended and Restated Financing and Security Agreement
dated as of July 14, 2000 (the "First Amendment") and (ii) that certain
Second Amendment to Third Amended and Restated Financing and Security
Agreement dated as of September 6, 2000 (the "Second Amendment") (as
amended, restated, supplemented or otherwise modified, the "Credit
Agreement"). Under and subject to the provisions of the Credit Agreement,
the Lenders agreed to establish in favor of the Borrower, Xxxxx UK and NIM
Holdings certain revolving credit, letter of credit and term loan
facilities. All capitalized terms used herein but not specifically defined
herein shall have the meanings given such terms in the Credit Agreement.
The Borrower has advised the Agent and the Lenders that
contemporaneously with the execution and delivery of this Amendment, (i)
the Parent has formed Pescor, Inc., a corporation organized and existing
under the laws of the State of Delaware ("Pescor") and (ii) the Parent has
acquired or intends to acquire Pescor Plastics, Inc., a corporation
organized and existing under the laws of the State of Texas ("Pescor
Target") in accordance with the provisions of that certain Agreement and
Plan of Reorganization by and among the existing shareholders of Pescor
Target, the Parent, and Pescor (as amended, restated, supplemented or
otherwise modified, the "Pescor Merger Agreement"). Pescor Target will
merge (the "Pescor Merger") into Pescor such that Pescor will be the
surviving corporation. Promptly following the merger, the Parent intends
to contribute all of the issued and outstanding stock of Pescor to the
Borrower (the "Pescor Stock"). Following the Pescor Merger of and the
Parent's contribution of the Pescor Stock to the Borrower, Pescor will be a
wholly-owned subsidiary of the Borrower.
The Borrower previously advised the Agent and the Lenders that (i) the
Borrower had formed Xxxxx Plastics Acquisition Corporation II, a
corporation organized and existing under the laws of the State of Delaware
("Xxxxx Italy"), and Xxxxx Italy is a wholly-owned subsidiary of the
Borrower, (ii) the Borrower has acquired ninety-five percent (95%) of the
issued and outstanding capital stock of CBP Holdings, S.r.l. (formerly
Capsol-Xxxxx Plastics S.r.l.), a company duly incorporated and existing
under the laws of Italy (the "Italian Holding Company") and Xxxxx Italy has
acquired five percent (5%) of the issued and outstanding capital stock of
the Italian Holding Company, and (iii) the Italian Holding Company owns one
hundred percent (100%) of the issued and outstanding capital stock of (1)
Ociesse S.r.l. - Officina Costruzione Stampi Lavorazioni Meccaniche di
Precisione, a company duly incorporated and existing under the laws of
Italy ("Ociesse") and (2) Capsol Xxxxx Plastics S.p.a., a company duly
incorporated and existing under the laws of Italy ("Capsol Italy"). The
Italian Holding Company has applied to Bank of America Italy for a
revolving credit facility in a maximum principal amount not to exceed Euro
13,550,000 or, at the option of the Italian Holding Company, the equivalent
amount in United States Dollars (the "Italian Revolving Credit Facility").
Capsol Italy has opened one or more bank accounts with Bank of America
Italy with respect to which Bank of America Italy has agreed to provide
overdraft facilities for a total amount not exceeding Euro 1,700,000 (the
"Italian Overdraft Facility"). The obligations of the Italian Holding
Company and/or Capsol Italy under and in connection with the Italian
Revolving Credit Facility and the Italian Overdraft Facility (collectively,
the "Italian Credit Facilities") are or will be secured by a first priority
pledge of all issued and outstanding capital stock of the Italian Holding
Company, Ociesse and Capsol Italy.
In connection with the above transactions, the Borrower has requested
that the Agent and the Lenders agree (i) to increase the Total Revolving
Credit Committed Amount from $70,000,000 to $80,000,000, (ii) to make an
additional term loan facility to the Borrower in the principal amount of
$2,000,000, (iii) to amend the terms and conditions of the Credit Agreement
relating to the Italian Credit Facilities set forth in the First Amendment
and the Second Amendment to reflect the actual terms and conditions of the
Italian Credit Facilities, and (iv) otherwise to amend certain terms and
conditions of the Credit Agreement. In addition, the Borrower has
requested that the Agent and the Lenders consent and agree to (1) the
acquisition of the Pescor Target by the Parent in accordance with the terms
and conditions of the Pescor Merger Agreement, (2) the Parent's issuance of
a class of preferred stock to one or more existing shareholders of Pescor
Target in accordance with the provisions of the Pescor Merger Agreement,
and (3) the Parent's contribution of the Pescor Stock to the Borrower.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, Xxxxx UK, NIM Holdings, the Lenders and the
Agent hereby agree as follows:
The Borrower, Xxxxx UK and NIM Holdings hereby acknowledge and agree
that the recitals set forth above are true and accurate in each and every
respect and are incorporated herein by reference. The representations and
warranties of the Borrower, Xxxxx UK and NIM Holdings contained among the
provisions of the Credit Agreement are true and correct as of the date of
this Amendment (except that any such representations and warranties that
are not qualified as to materiality need only be true and correct in all
material respects) with the same effect as though such representations and
warranties had been made as of such date, except that (i) the
representations and warranties which relate to a specific date need only be
true and correct as of such date and (ii) the representations and
warranties which relate to financial statements which are referred to in
Section 4.1.11 of the Credit Agreement, shall also be deemed to cover
financial statements furnished from time to time to the Agent pursuant to
Section 6.1.1 (Financial Statements) of the Credit Agreement.
The Credit Agreement is hereby amended as follows:
Section 1.1 beginning on page 3 of the Credit Agreement is hereby
amended to add the following definitions:
"XXXXX ITALY" MEANS XXXXX PLASTICS ACQUISITION CORPORATION
II, A COMPANY DULY INCORPORATED AND EXISTING UNDER THE LAWS OF
DELAWARE, AND ITS SUCCESSORS AND ASSIGNS.
"NORWICH ACQUISITION" MEANS NORWICH ACQUISITION LIMITED, A
COMPANY ORGANIZED AND EXISTING UNDER THE LAWS OF ENGLAND AND
WALES, AND ITS SUCCESSORS AND ASSIGNS.
"PESCOR" MEANS PESCOR, INC., A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE AND A
CONSTITUENT CORPORATION IN THE MERGER OF PESCOR AND PESCOR
TARGET, AND ITS SUCCESSORS AND ASSIGNS.
"PESCOR CLOSING DATE" MEANS THE DATE ON WHICH THE PESCOR
MERGER TRANSACTION IS CLOSED AND CONSUMMATED.
"PESCOR MERGER" MEANS THE MERGER OF PESCOR TARGET INTO
PESCOR WITH PESCOR AS THE SURVIVING CORPORATION.
"PESCOR MERGER AGREEMENT" MEANS THAT CERTAIN AGREEMENT AND
PLAN OF REORGANIZATION DATED AS OF MAY 11, 2001 BY AND AMONG THE
PARENT, PESCOR AND THE SHAREHOLDERS OF PESCOR TARGET, AS THE SAME
MAY FROM TIME TO TIME BE AMENDED, RESTATED, SUPPLEMENTED OR
MODIFIED, TOGETHER WITH ANY AND ALL EXHIBITS AND SCHEDULES
THERETO, AMENDMENTS, MODIFICATIONS, AND SUPPLEMENTS THERETO,
RESTATEMENTS THEREOF, AND SUBSTITUTES THEREFOR.
"PESCOR MERGER DOCUMENTS" MEANS COLLECTIVELY THE PESCOR
MERGER AGREEMENT AND ANY AND ALL OTHER AGREEMENTS, DOCUMENTS OR
INSTRUMENTS, PREVIOUSLY, NOW OR HEREAFTER EXECUTED AND DELIVERED
BY THE PARENT, THE BORROWER, OR ANY OTHER PERSON IN CONNECTION
WITH THE PESCOR MERGER TRANSACTION, AS THE SAME MAY FROM TIME TO
TIME BE AMENDED, RESTATED, SUPPLEMENTED AND MODIFIED.
"PESCOR MERGER TRANSACTION" MEANS (I) THE PESCOR MERGER AND
(II) THE ISSUANCE OF THE PESCOR PREFERRED STOCK, ALL IN
ACCORDANCE WITH THE PROVISIONS OF THE PESCOR MERGER AGREEMENT,
AND ALSO INCLUDES THE CONTRIBUTION OF THE PESCOR STOCK BY THE
PARENT TO THE BORROWER.
"PESCOR PREFERRED STOCK" MEANS THE ISSUED AND OUTSTANDING
SHARES OF SERIES X-0, X-0, X-0, X-0 XXX X-0 XXXXXXXXX STOCK
ISSUED BY THE PARENT TO THE EXISTING SHAREHOLDERS OF PESCOR
TARGET IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE PESCOR
MERGER AGREEMENT.
"PESCOR PREFERRED STOCK SHAREHOLDER AGREEMENTS" MEANS ANY
AND ALL AGREEMENTS, DOCUMENTS OR INSTRUMENTS NOW OR AT ANY TIME
EXECUTED AND DELIVERED IN CONNECTION WITH THE ISSUANCE, SALE OR
PURCHASE OF THE PESCOR PREFERRED STOCK IN CONNECTION WITH THE
PESCOR MERGER TRANSACTION, AS THE SAME MAY FROM TIME TO TIME BE
AMENDED, RESTATED, SUPPLEMENTED OR MODIFIED.
"PESCOR TARGET" MEANS PESCOR PLASTICS, INC., A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF TEXAS AND A
CONSTITUENT CORPORATION IN THE MERGER OF PESCOR AND PESCOR
TARGET, ITS SUCCESSORS AND ASSIGNS.
"TERM LOAN C" AND "TERM LOANS C" HAVE THE MEANINGS DESCRIBED
IN SECTION 2.12.1 (TERM LOAN C FACILITY).
"TERM LOAN C COMMITMENT" AND "TERM LOAN C COMMITMENTS" HAVE
THE MEANINGS DESCRIBED IN SECTION 2.12.1 (TERM LOAN C
COMMITMENTS).
"TERM LOAN C COMMITTED AMOUNT" HAS THE MEANING DESCRIBED IN
SECTION 2.12.1 (TERM LOAN C COMMITMENTS).
"TERM LOAN C FACILITY" MEANS THE FACILITY ESTABLISHED BY THE
LENDERS PURSUANT TO SECTION 2.12 (TERM LOAN C FACILITY).
"TERM LOAN C MANDATORY PREPAYMENT" AND "TERM LOAN A
MANDATORY PREPAYMENTS" HAVE THE MEANINGS DESCRIBED IN SECTION
2.12.3 (MANDATORY PREPAYMENTS OF TERM LOAN C).
"TERM LOAN C OPTIONAL PREPAYMENT" AND "TERM LOAN C OPTIONAL
PREPAYMENTS" HAVE THE MEANINGS DESCRIBED IN SECTION 2.12.4
(OPTIONAL PREPAYMENTS OF TERM LOANS C).
"TERM LOAN C PRO RATA SHARE" HAS THE MEANING DESCRIBED IN
SECTION 2.12.1 (TERM LOAN C FACILITY).
"TERM LOAN C NOTE" AND "TERM LOAN C NOTES" HAVE THE MEANING
DESCRIBED IN SECTION 2.12.2 (AMORTIZATION OF TERM LOANS C).
"THIRD AMENDMENT" MEANS THAT CERTAIN THIRD AMENDMENT TO
THIRD AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT BY
AND AMONG THE AGENT, THE LENDERS, THE BORROWER, XXXXX UK AND NIM
HOLDINGS.
"TOTAL TERM LOAN C COMMITTED AMOUNT" HAS THE MEANING
DESCRIBED IN SECTION 2.12.1 (TERM LOAN C COMMITMENTS).
The definition of "Affiliate" on page 4 of the Credit Agreement is
hereby deleted in its entirety and the following is substituted in its
place:
"AFFILIATE" MEANS, WITH RESPECT TO ANY DESIGNATED PERSON,
ANY OTHER PERSON, (A) DIRECTLY OR INDIRECTLY CONTROLLING,
DIRECTLY OR INDIRECTLY CONTROLLED BY, OR UNDER DIRECT OR INDIRECT
COMMON CONTROL WITH THE PERSON DESIGNATED, (B) DIRECTLY OR
INDIRECTLY OWNING OR HOLDING TEN PERCENT (10%) OR MORE OF ANY
EQUITY INTEREST IN SUCH DESIGNATED PERSON, OR (C) TEN PERCENT
(10%) OR MORE OF WHOSE STOCK OR OTHER EQUITY INTEREST IS DIRECTLY
OR INDIRECTLY OWNED OR HELD BY SUCH DESIGNATED PERSON. FOR
PURPOSES OF THIS DEFINITION, THE TERM "CONTROL" (INCLUDING WITH
CORRELATIVE MEANINGS, THE TERMS "CONTROLLING", "CONTROLLED BY"
AND "UNDER COMMON CONTROL WITH") MEANS THE POSSESSION, DIRECTLY
OR INDIRECTLY, OF THE POWER TO DIRECT OR CAUSE THE DIRECTION OF
THE MANAGEMENT AND POLICIES OF A PERSON, WHETHER THROUGH
OWNERSHIP OF VOTING SECURITIES OR OTHER EQUITY INTERESTS OR BY
CONTRACT OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, NONE OF
THE HOLDERS OF THE PESCOR PREFERRED STOCK SHALL BE DEEMED TO BE
AFFILIATES OF THE BORROWER OR ANY OF ITS AFFILIATES SOLELY
BECAUSE OF HIS, HER OR ITS HOLDING OF SHARES OF THE PESCOR
PREFERRED STOCK.
The definition of "Assignment of Trademarks" on page 5 of the Credit
Agreement is hereby deleted in its entirety and the following is
substituted in its place:
"ASSIGNMENT OF TRADEMARKS" MEANS (A) THAT CERTAIN AMENDED
AND RESTATED COLLATERAL ASSIGNMENT OF TRADEMARKS AS SECURITY
DATED MAY 9, 2000 FROM THE BORROWER TO THE AGENT FOR THE BENEFIT
OF THE LENDERS RATABLY AND THE AGENT, (B) THAT CERTAIN AMENDED,
RESTATED AND CONSOLIDATED COLLATERAL ASSIGNMENT OF TRADEMARKS AS
SECURITY DATED AS OF MAY 9, 2000 FROM PACKERWARE, VENTURE
SOUTHEAST, VENTURE MIDWEST, KNIGHT, POLY-SEAL AND CARDINAL, AND
(C) THAT CERTAIN COLLATERAL ASSIGNMENT OF TRADEMARKS DATED AS OF
THE PESCOR CLOSING DATE FROM PESCOR, EACH AS AMENDED, RESTATED,
SUPPLEMENTED OR OTHERWISE MODIFIED IN WRITING AT ANY TIME AND
FROM TIME TO TIME.
The definition of "BofA Permitted Ceiling" on page 2 of the First
Amendment is hereby deleted in its entirety and the following is
substituted in its place:
"BOFA PERMITTED CEILING" HAS THE MEANING GIVEN SUCH TERM IN
THE INTERCREDITOR AGREEMENT.
The definition of "Capital Expenditures" on page 7 of the Credit
Agreement is hereby deleted in its entirety and the following is
substituted in its place:
"CAPITAL EXPENDITURE" MEANS AN EXPENDITURE WHICH WOULD BE
CLASSIFIED AS SUCH IN ACCORDANCE WITH GAAP (WHETHER PAYABLE IN
CASH OR OTHER PROPERTY OR ACCRUED AS A LIABILITY) FOR FIXED OR
CAPITAL ASSETS, INCLUDING THE ENTERING INTO OF CAPITAL LEASES.
The definition of "Capsol Italy" on page 3 of the First Amendment is
hereby deleted in its entirety and the following is substituted in its
place:
"CAPSOL ITALY" MEANS CAPSOL XXXXX PLASTICS S.P.A., A COMPANY
DULY INCORPORATED AND EXISTING UNDER THE LAWS OF ITALY, AND ITS
SUCCESSORS AND ASSIGNS.
The definitions of "Commitment" and "Commitments" on page 8 of the
Credit Agreement are hereby deleted in their entirety and the following is
substituted in their places:
"COMMITMENT" MEANS WITH RESPECT TO EACH LENDER, SUCH
LENDER'S REVOLVING CREDIT COMMITMENT, LETTER OF CREDIT
COMMITMENT, TERM LOAN A COMMITMENT, TERM LOAN B COMMITMENT, TERM
LOAN C COMMITMENT, BOND LETTER OF CREDIT COMMITMENT, UK REVOLVING
CREDIT COMMITMENT, OR UK TERM LOAN COMMITMENT AS THE CASE MAY BE,
AND "COMMITMENTS" MEANS THE COLLECTIVE REFERENCE TO THE REVOLVING
CREDIT COMMITMENTS, THE LETTER OF CREDIT COMMITMENTS, THE TERM
LOAN A COMMITMENTS, THE TERM LOAN B COMMITMENTS, THE TERM LOAN C
COMMITMENTS, THE BOND LETTER OF CREDIT COMMITMENTS, THE UK
REVOLVING CREDIT COMMITMENTS AND THE UK TERM LOAN COMMITMENTS OF
ALL OF THE LENDERS.
The definitions of "Committed Amount" and "Committed Amounts" on page
8 of the Credit Agreement are hereby deleted in their entirety and the
following are substituted in their places:
"COMMITTED AMOUNT" MEANS WITH RESPECT TO EACH LENDER, SUCH
LENDER'S REVOLVING CREDIT COMMITTED AMOUNT, LETTER OF CREDIT
COMMITTED AMOUNT, TERM LOAN A COMMITTED AMOUNT, TERM LOAN B
COMMITTED AMOUNT, TERM LOAN C COMMITTED AMOUNT, THE BOND LETTER
OF CREDIT COMMITTED AMOUNT, UK REVOLVING CREDIT COMMITTED AMOUNT,
UK TERM LOAN COMMITTED AMOUNT, AS THE CASE MAY BE, AND "COMMITTED
AMOUNTS" MEANS COLLECTIVELY THE REVOLVING LOAN COMMITTED AMOUNT,
THE LETTER OF CREDIT COMMITTED AMOUNT, TERM LOAN A COMMITTED
AMOUNT, TERM LOAN B COMMITTED AMOUNT, TERM LOAN C COMMITTED
AMOUNT, THE BOND LETTER OF CREDIT COMMITTED AMOUNT OF EACH OF THE
LENDERS, THE UK REVOLVING CREDIT COMMITTED AMOUNTS, AND THE UK
TERM LOAN COMMITTED AMOUNTS.
Paragraph (c) of the definition of "Dollar Interest Period" on pages
11 and 12 of the Credit Agreement is hereby deleted in its entirety and the
following is substituted in its place:
(C) NO DOLLAR INTEREST PERIOD SHALL EXTEND BEYOND THE
REVOLVING CREDIT TERMINATION DATE OR THE SCHEDULED MATURITY DATE
OF THE TERM LOANS A, THE TERM LOANS B, OR THE TERM LOANS C, AS
APPROPRIATE.
The definitions of "Domestic Credit Facility" and "Domestic Credit
Facilities" on page 12 of the Credit Agreement are hereby deleted in their
entirety and the following are substituted in their places:
"DOMESTIC CREDIT FACILITY" MEANS WITH RESPECT TO EACH
LENDER, SUCH LENDER'S PRO RATA SHARE OF THE REVOLVING CREDIT
FACILITY, THE LETTER OF CREDIT FACILITY, THE TERM LOAN A
FACILITY, THE TERM LOAN B FACILITY, THE TERM LOAN C FACILITY, OR
THE BOND LETTER OF CREDIT FACILITY, AS THE CASE MAY BE, AND
"DOMESTIC CREDIT FACILITIES" MEANS COLLECTIVELY THE REVOLVING
CREDIT FACILITY, THE LETTER OF CREDIT FACILITY, THE TERM LOAN A
FACILITY, THE TERM LOAN B FACILITY, THE TERM LOAN C FACILITY, AND
THE BOND LETTER OF CREDIT FACILITY, AND ANY AND ALL OTHER CREDIT
FACILITIES NOW OR HEREAFTER EXTENDED TO THE BORROWER UNDER OR
SECURED BY THIS AGREEMENT.
The definition of "Euribor Base Rate" on page 2 of the Second
Amendment is hereby deleted in its entirety.
The definition of "Italian Holding Company" on page 4 of the First
Amendment is hereby deleted in its entirety and the following is
substituted in its place:
"ITALIAN HOLDING COMPANY" MEANS CBP HOLDINGS, S.R.L.
(FORMERLY CAPSOL-XXXXX PLASTICS S.R.L.), A COMPANY DULY
INCORPORATED AND EXISTING UNDER THE LAWS OF ITALY, AND ITS
SUCCESSORS AND ASSIGNS.
The definition of "Italian Revolving Credit Facility" on page 3 of the
Second Amendment is hereby deleted in its entirety and the following is
substituted in its place:
"ITALIAN REVOLVING CREDIT FACILITY" MEANS THE REVOLVING
CREDIT FACILITIES AND/OR OVERDRAFT FACILITIES ESTABLISHED BY BANK
OF AMERICA ITALY IN ACCORDANCE WITH THE TERMS OF THE ITALIAN
CREDIT AGREEMENTS.
The definition of "Italian Obligations" on page 3 of the Second
Amendment is hereby deleted in its entirety and the following is
substituted in its place:
"ITALIAN OBLIGATIONS" MEANS AND INCLUDES ALL PRESENT AND
FUTURE INDEBTEDNESS, OBLIGATIONS, AND LIABILITIES, WHETHER NOW
EXISTING OR CONTEMPLATED OR HEREAFTER ARISING, OF THE ITALIAN
HOLDING COMPANY, CAPSOL ITALY AND/OR OCIESSE TO BANK OF AMERICA
ITALY, UNDER, ARISING PURSUANT TO, IN CONNECTION WITH AND/OR ON
ACCOUNT OF THE PROVISIONS OF THE ITALIAN CREDIT AGREEMENTS,
INCLUDING UNDER OR PURSUANT TO REVOLVING CREDIT AND/OR OVERDRAFT
FACILITIES.
The definition of "Italian Revolving Credit Committed Amount" on page
3 of the Second Amendment is hereby deleted in its entirety and the
following is substituted in its place:
"ITALIAN REVOLVING CREDIT COMMITTED AMOUNT" MEANS UP TO
FIFTEEN MILLION TWO HUNDRED FIFTY THOUSAND (15,250,000) EUROS OR
SUCH HIGHER AMOUNT AS MAY BE AGREED BY THE LENDERS, SUBJECT TO
THE BOFA PERMITTED CEILING, AND SHALL INCLUDE THE PRINCIPAL
AMOUNT OF ANY AND ALL REVOLVING CREDIT AND/OR OVERDRAFT
FACILITIES ESTABLISHED BY BANK OF AMERICA ITALY IN FAVOR OF THE
ITALIAN HOLDING COMPANY, CAPSOL ITALY AND/OR OCIESSE.
The definition of "Italian Stock Pledge Agreement" on page 4 of the
Second Amendment is hereby deleted in its entirety and the following is
substituted in its place:
"ITALIAN STOCK PLEDGE AGREEMENT" MEANS THAT CERTAIN DEED OF
PLEDGE FROM THE BORROWER, XXXXX ITALY AND THE ITALIAN HOLDING
COMPANY TO BANK OF AMERICA ITALY, WHICH GRANTS, PLEDGES AND
ASSIGNS TO BANK OF AMERICA ITALY, AS SECURITY FOR THE ITALIAN
OBLIGATIONS, ONE HUNDRED PERCENT (100%) OF THE ISSUED AND
OUTSTANDING SHARES OF THE ITALIAN HOLDING COMPANY, CAPSOL ITALY
AND OCIESSE, AS THE SAME MAY FROM TIME TO TIME BE AMENDED,
RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED.
The definitions of "Loan" and "Loans" on page 30 of the Credit
Agreement is hereby deleted in its entirety and the following is
substituted in its place:
"LOAN" MEANS EACH OF THE REVOLVING LOAN, A TERM LOAN A, A
TERM LOAN B, A TERM LOAN C, THE UK REVOLVING LOAN, OR A UK TERM
LOAN, AS THE CASE MAY BE, AND "LOANS" MEANS THE COLLECTIVE
REFERENCE TO THE REVOLVING LOAN, THE TERM LOANS A, THE TERM LOANS
B, THE TERM LOANS C, THE UK REVOLVING LOAN AND THE UK TERM LOANS.
The definitions of "Note" and "Notes" on page 31 of the Credit
Agreement are hereby deleted in their entirety and the following are
substituted in their places:
"NOTE" MEANS ANY REVOLVING CREDIT NOTE, ANY TERM LOAN A
NOTE, ANY TERM LOAN B NOTE, ANY TERM LOAN C NOTE, THE UK
REVOLVING CREDIT NOTE, OR THE UK TERM NOTE, AS THE CASE MAY BE,
AND "NOTES" MEANS COLLECTIVELY EACH REVOLVING CREDIT NOTE, EACH
TERM LOAN A NOTE, EACH TERM LOAN B NOTE, EACH TERM LOAN C NOTE,
THE UK REVOLVING CREDIT NOTE, THE UK TERM NOTE, AND ANY OTHER
PROMISSORY NOTE WHICH MAY FROM TIME TO TIME EVIDENCE ALL OR ANY
PORTION OF THE OBLIGATIONS.
The definition of "Ociesse" on page 5 of the First Amendment is hereby
deleted in its entirety and the following is substituted in its place:
"OCIESSE" MEANS OCIESSE S.R.L. - OFFICINA COSTRUZIONE STAMPI
LAVORAZIONI MECCANICHE DI PRECISIONE, A COMPANY DULY INCORPORATED
AND EXISTING UNDER THE LAWS OF ITALY, AND ITS SUCCESSORS AND
ASSIGNS.
The definition of "Permitted Acquisition" on pages 32 through 35 of
the Credit Agreement is hereby deleted in its entirety and the following is
substituted in its place:
"PERMITTED ACQUISITION" MEANS THE ACQUISITION OR PURCHASE
OF, OR INVESTMENT IN, ANY PERSON, ANY OPERATING DIVISION OR UNIT
OF ANY PERSON, OR THE CAPITAL STOCK OR ASSETS OF ANY PERSON OR
THE COMBINATION WITH ANY PERSON BY THE BORROWER OR ANY SUBSIDIARY
GUARANTOR (EACH INDIVIDUALLY, A "SUBJECT TRANSACTION") APPROVED
BY THE AGENT AND EACH OF THE LENDERS IN WRITING. THE AGENT AND
THE LENDERS HEREBY ADVISE THE BORROWER THAT THE PESCOR MERGER
TRANSACTION SHALL NOT CONSTITUTE A PERMITTED ACQUISITION UNLESS
AFTER GIVING EFFECT TO ANY BORROWINGS UNDER THE REVOLVING LOAN
NEEDED TO FINANCE THE PESCOR MERGER TRANSACTION, THE BORROWER AND
THE SUBSIDIARY GUARANTORS (I) HAVE AVAILABILITY UNDER THE
REVOLVING LOAN OR UNUSED AVAILABILITY UNDER THE BORROWING BASE IN
AN AMOUNT AT LEAST EQUAL TO EIGHTEEN MILLION DOLLARS
($18,000,000) AND (II) ARE REASONABLY EXPECTED TO HAVE SUCH
MINIMUM AVAILABILITY FOR A PERIOD OF TEN (10) BUSINESS DAYS AFTER
CLOSING AND CONSUMMATION OF THE PESCOR MERGER TRANSACTION.
THE BORROWER UNDERSTANDS AND AGREES THAT THE AGENT SHALL
HAVE NO OBLIGATION OR COMMITMENT TO INCLUDE ANY OF THE ASSETS OR
PROPERTIES OF ANY PERSON ACQUIRED IN THE BORROWING BASE PURSUANT
TO A SUBJECT TRANSACTION. THE AGENT AND THE LENDERS AGREE,
HOWEVER, THAT IF AFTER COMPLETION AND REVIEW OF A SATISFACTORY
FIELD EXAMINATION OF THE ASSETS AND PROPERTIES WHICH CONSTITUTE
OR ARE PART OF A PERMITTED ACQUISITION, SUCH ASSETS AND
PROPERTIES SHALL BE INCLUDED IN THE BORROWING BASE IF THE RESULTS
OF SUCH FIELD EXAMINATION AND AUDIT ARE REASONABLY ACCEPTABLE IN
ALL RESPECTS TO THE AGENT IN ITS DISCRETION AND SUCH ASSETS AND
PROPERTIES OTHERWISE SATISFY THE ELIGIBILITY CRITERIA FOR
INCLUSION IN THE BORROWING BASE.
NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS DEFINITION,
THE LENDERS AND THE AGENT HAVE PREVIOUSLY CONSENTED, OR HEREBY
CONSENT, TO THE POLY-SEAL STOCK PURCHASE TRANSACTION, THE ITALIAN
TARGET STOCK PURCHASE TRANSACTION, THE PURCHASE OF CERTAIN ASSETS
OF CAPSOL-CERTWOOD UK LTD. BY XXXXX UK AND THE PESCOR MERGER
TRANSACTION; AND, ACCORDINGLY, ALL SUCH TRANSACTIONS ARE DEEMED
TO BE PERMITTED ACQUISITIONS.
The definition of "Permitted Uses" on pages 37 and 38 of the Credit
Agreement is hereby deleted in its entirety and the following is
substituted in its place:
"PERMITTED USES" MEANS (A) THE PAYMENT OF THE CASH
CONSIDERATION IN THE PESCOR MERGER FOLLOWING THE CONSUMMATION OF
THE PESCOR MERGER TRANSACTION; PROVIDED THAT THE PARENT
CONTRIBUTES ALL OF THE PESCOR STOCK TO THE BORROWER IMMEDIATELY
FOLLOWING THE PESCOR MERGER, (B) THE REFINANCING AND PAYMENT OF
ALL OBLIGATIONS OF PESCOR TO ANY LENDERS WITH RESPECT TO ANY
INDEBTEDNESS FOR BORROWED MONEY EXISTING AS OF THE PESCOR CLOSING
DATE, (C) THE PAYMENT OF ALL COSTS AND EXPENSES REASONABLY
INCURRED IN CONNECTION WITH THE CLOSING AND CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING THE PESCOR
MERGER TRANSACTION, (D) THE PAYMENT OF EXPENSES INCURRED IN THE
ORDINARY COURSE OF BUSINESS OF THE BORROWER OR ANY SUBSIDIARY
GUARANTOR, (E) THE ACQUISITION OF ANY PERMITTED ACQUISITION AS
AND TO THE EXTENT PERMITTED BY THE PROVISIONS OF THIS AGREEMENT,
(F) THE PAYMENT OF ALL COSTS AND EXPENSES REASONABLY INCURRED IN
CONNECTION WITH THE CLOSING AND CONSUMMATION OF A PERMITTED
ACQUISITION, (G) WITH RESPECT TO THE REVOLVING LOAN FOR GENERAL
CORPORATE PURPOSES OF THE BORROWER OR ANY SUBSIDIARY GUARANTOR
AND WITH RESPECT TO THE UK REVOLVING LOAN FOR GENERAL CORPORATE
PURPOSES OF XXXXX UK OR NIM HOLDINGS.
The definitions of "Prepayment" and "Prepayments" on page 39 of the
Credit Agreement are hereby deleted in their entirety and the following are
substituted in their places:
"PREPAYMENT" MEANS A REVOLVING LOAN MANDATORY PREPAYMENT, A
REVOLVING LOAN OPTIONAL PREPAYMENT, A TERM LOAN A MANDATORY
PREPAYMENT, A TERM LOAN A OPTIONAL PREPAYMENT, A TERM LOAN B
MANDATORY PREPAYMENT, A TERM LOAN B OPTIONAL PREPAYMENT, A TERM
LOAN C OPTIONAL PREPAYMENT, A UK REVOLVING LOAN MANDATORY
PREPAYMENT, A UK REVOLVING LOAN OPTIONAL PREPAYMENT, A UK TERM
LOAN OPTIONAL PREPAYMENT OR A UK TERM LOAN MANDATORY PREPAYMENT,
AS THE CASE MAY BE, AND "PREPAYMENTS" MEAN COLLECTIVELY ALL
REVOLVING LOAN MANDATORY PREPAYMENTS, ALL REVOLVING LOAN OPTIONAL
PREPAYMENTS, ALL TERM LOAN A MANDATORY PREPAYMENTS, ALL TERM LOAN
A OPTIONAL PREPAYMENTS, ALL TERM LOAN B MANDATORY PREPAYMENTS,
ALL TERM LOAN B OPTIONAL PREPAYMENTS, ALL TERM LOAN C OPTIONAL
PREPAYMENTS, ALL UK REVOLVING LOAN MANDATORY PREPAYMENTS, ALL UK
REVOLVING LOAN OPTIONAL PREPAYMENTS, ALL UK TERM LOAN MANDATORY
PREPAYMENTS AND ALL UK TERM LOAN OPTIONAL PREPAYMENTS.
The definition of "Revolving Credit Termination Date" on page 40 of
the Credit Agreement is hereby deleted in its entirety and the following is
substituted in its place:
"REVOLVING CREDIT TERMINATION DATE" MEANS THE EARLIER OF (A)
JANUARY 21, 2004, (B) THE REPAYMENT OR PREPAYMENT OF THE TERM
LOANS IN FULL, (C) THE DATE ON WHICH THE REVOLVING CREDIT
COMMITMENTS ARE TERMINATED PURSUANT TO SECTION 7.2 (REMEDIES) OR
OTHERWISE.
The definition of "Security Agreement" on page 41 of the Credit
Agreement is hereby deleted in its entirety and the following is
substituted in its place:
"SECURITY AGREEMENT" MEANS THAT CERTAIN AMENDED AND RESTATED
SECURITY AGREEMENT DATED AS OF THE PESCOR CLOSING DATE FROM EACH
SUBSIDIARY GUARANTOR TO THE AGENT FOR THE BENEFIT OF THE LENDERS,
RATABLY, AND THE AGENT, AS AMENDED, RESTATED, SUPPLEMENTED OR
OTHERWISE MODIFIED IN WRITING AT ANY TIME AND FROM TIME TO TIME.
The definition of "Seller" on page 41 of the Credit Agreement is
hereby deleted in its entirety and the following is substituted in its
place:
"SELLER" MEANS WITH RESPECT TO (I) ANY SUBJECT TRANSACTION
WHICH CONSTITUTES AN ACQUISITION OF ALL OR SUBSTANTIALLY ALL OF
THE SHARES OF SUCH SUBJECT TRANSACTION, THE PERSONS SELLING SUCH
SHARES, AND (II) ANY SUBJECT TRANSACTION WHICH CONSTITUTES AN
ACQUISITION OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF SUCH
SUBJECT TRANSACTION, THE PERSONS SELLING SUCH ASSETS.
The definition of "Stock Pledge Agreement" on pages 43 and 44 of the
Credit Agreement, as amended by the First Amendment and the Second
Amendment, is hereby deleted in its entirety and the following is
substituted in its place:
"STOCK PLEDGE AGREEMENT" MEANS (A) THAT CERTAIN AMENDED AND
RESTATED STOCK PLEDGE, ASSIGNMENT AND SECURITY AGREEMENT DATED AS
OF THE PESCOR CLOSING DATE FROM THE BORROWER TO THE AGENT FOR THE
BENEFIT OF THE LENDERS RATABLY AND THE AGENT, (B) THE UK STOCK
PLEDGE AGREEMENT, (C) THAT CERTAIN AMENDED AND RESTATED STOCK
PLEDGE AGREEMENT, ASSIGNMENT AND SECURITY AGREEMENT DATED AS OF
MAY 9, 2000 FROM CPI TO THE AGENT FOR THE BENEFIT OF THE LENDERS
RATABLY AND THE AGENT, AND (D) THE ITALIAN STOCK PLEDGE
AGREEMENT, ALL AS THE SAME MAY FROM TIME TO TIME BE AMENDED,
RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED.
1. The definitions of "Subsidiary Guarantor" and "Subsidiary Guarantors"
on pages 44 and 45 of the Credit Agreement are hereby deleted in their
entirety and the following is substituted in their places:
"SUBSIDIARY GUARANTOR" MEANS BIC, BTP, AEROCON, XXXXX
XXXXXXXX, PACKERWARE, XXXXX DESIGN, XXXXX VENTURE, VENTURE
SOUTHEAST, VENTURE MIDWEST, KNIGHT, CPI, CARDINAL, POLY-SEAL,
XXXXX ITALY, PESCOR OR ANY OTHER DOMESTIC SUBSIDIARY (ORGANIZED
AND EXISTING UNDER THE LAWS OF ANY STATE IN THE UNITED STATES) OF
THE BORROWER OR THE PARENT WHICH IS DESIGNATED AND QUALIFIES AS A
SUBSIDIARY GUARANTOR IN ACCORDANCE WITH THE PROVISIONS OF SECTION
6.2.2 (SUBSIDIARIES), OR ANY OF THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS, AS THE CASE MAY BE; AND, "SUBSIDIARY GUARANTORS" MEANS
BIC, BTP, AEROCON, XXXXX XXXXXXXX, XXXXX DESIGN, PACKERWARE,
XXXXX VENTURE, VENTURE SOUTHEAST, VENTURE MIDWEST, KNIGHT, CPI,
CARDINAL, POLY-SEAL, XXXXX ITALY, PESCOR AND EACH OTHER DOMESTIC
SUBSIDIARY OF THE BORROWER DESIGNATED AND QUALIFIED AS A
"SUBSIDIARY GUARANTOR" IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.2.2 (SUBSIDIARIES), AND ALL OF THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS.
2. The definitions of "Term Loan" and "Term Loans" on page 46 of the
Credit Agreement are hereby deleted in their entirety and the following are
substituted in their places:
"TERM LOAN" MEANS EITHER A TERM LOAN A, A TERM LOAN B, A
TERM LOAN C OR A UK TERM LOAN; AND "TERM LOANS" MEANS EACH TERM
LOAN A, TERM LOAN B, TERM LOAN C AND UK TERM LOAN.
3. The definitions of "Term Note" and "Term Notes" on page 46 of the
Credit Agreement are hereby deleted in their entirety and the following are
substituted in their places:
"TERM NOTE" MEANS A TERM LOAN A NOTE, A TERM LOAN B NOTE, A
TERM LOAN C NOTE, OR A UK TERM LOAN NOTE; "TERM NOTES" MEANS EACH
TERM LOAN A NOTE, EACH TERM LOAN B NOTE, EACH TERM LOAN C NOTE
AND EACH UK TERM LOAN NOTE.
4. Section 2.1.1 on pages 51 and 52 of the Credit Agreement is hereby
deleted in its entirety and the following is substituted in its place:
2.1.1 REVOLVING CREDIT FACILITY.
Subject to and upon the terms of this Agreement, the Lenders
collectively, but severally, establish a revolving credit
facility in favor of the Borrower. The aggregate of all advances
under the Revolving Credit Facility is sometimes referred to in
this Agreement collectively as the "Revolving Loan".
The amount set forth below opposite each Lender's name is
herein called such Lender's "Revolving Credit Committed Amount"
and the total of each Lender's Revolving Credit Committed Amount
is herein called the "Total Revolving Credit Committed Amount".
The proportionate share set forth below opposite each Lender's
name is herein called such Lender's "Revolving Credit Pro Rata
Share":
LENDER REVOLVING REVOLVING
CREDIT CREDIT PRO
COMMITTED RATA SHARE
AMOUNT
FLEET $14,545,600 18.182%
GE CAPITAL $ 7,096,829 8.871036249%
BANK OF AMERICA $15,757,600 19.697%
XXXXXX $12,121,600 15.152%
PNC $12,121,600 15.152%
PROVIDENT $ 5,556,771 6.945963751%
LASALLE $12,800,000 16.000%
TOTAL REVOLVING CREDIT COMMITTED AMOUNT $80,000,000.00 100.000%
Neither the Agent nor any of the Lenders shall be
responsible for the Revolving Credit Commitment of any other
Lender, nor will the failure of any Lender to perform its
obligations under its Revolving Credit Commitment in any way
relieve any other Lender from performing its obligations under
its Revolving Credit Commitment.
DURING THE REVOLVING CREDIT COMMITMENT PERIOD, THE BORROWER
MAY REQUEST ADVANCES UNDER THE REVOLVING CREDIT FACILITY IN
ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT; PROVIDED THAT
AFTER GIVING EFFECT TO THE BORROWER'S REQUEST:
(a) the outstanding principal balance of each Lender's
Pro Rata Share of the Revolving Loan and the Letter of
Credit Obligations would not exceed the lesser of (i) such
Lender's Pro Rata Share of the Total Revolving Credit
Committed Amount or (ii) such Lender's Pro Rata Share of the
Borrowing Base; and,
(B) THE AGGREGATE OUTSTANDING PRINCIPAL BALANCE OF THE
REVOLVING LOAN AND ALL LETTER OF CREDIT OBLIGATIONS WOULD
NOT EXCEED THE LESSER OF (I) THE TOTAL REVOLVING CREDIT
COMMITTED AMOUNT OR (II) THE BORROWING BASE. IN ADDITION,
THE AGGREGATE OUTSTANDING PRINCIPAL BALANCE OF THE REVOLVING
LOAN, ALL LETTER OF CREDIT OBLIGATIONS AND THE UK REVOLVING
LOAN CANNOT EXCEED THE TOTAL REVOLVING CREDIT COMMITTED
AMOUNT.
5. The additional provisions added to the third paragraph of Section
2.1.2 on page7 and 8 of the Second Amendment are hereby deleted in their
entirety and the following are substituted in their places:
THE BORROWER AND THE LENDERS HEREBY IRREVOCABLY AUTHORIZE
THE AGENT, ON BEHALF OF THE LENDERS, AT ANY TIME AND FROM TIME TO
TIME, WITHOUT REQUEST FROM, PRIOR NOTICE TO, OR CONSENT OF, THE
BORROWER OR ANY OF THE LENDERS TO MAKE ADVANCES UNDER THE
REVOLVING LOAN TO REPAY ALL OR ANY PORTION OF THE ITALIAN
OBLIGATIONS (EACH, AN "ITALIAN OBLIGATION ADVANCE" AND
COLLECTIVELY, THE "ITALIAN OBLIGATION ADVANCES"). THE AGENT
AGREES THAT AN ITALIAN OBLIGATION ADVANCE MAY BE MADE ONLY (I)
UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF
DEFAULT UNDER EITHER OR BOTH OF THE ITALIAN CREDIT AGREEMENTS OR
(II) IF ALL OR ANY PORTION OF THE ITALIAN OBLIGATIONS ARE NOT
PAID AS AND WHEN DUE AND PAYABLE (SUBJECT TO ANY APPLICABLE
NOTICE, GRACE AND CURE PERIODS) IN ACCORDANCE WITH THE TERMS OF
THE ITALIAN CREDIT AGREEMENTS. THE BORROWER ACKNOWLEDGES AND
AGREES THAT NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO
THE CONTRARY, THE AGENT SHALL BE ENTITLED TO REQUIRE ITALIAN
OBLIGATION ADVANCES REGARDLESS OF WHETHER THE OUTSTANDING
PRINCIPAL AMOUNT OF THE REVOLVING LOAN AFTER TAKING INTO ACCOUNT
ANY SUCH ITALIAN OBLIGATION ADVANCES EXCEEDS OR WOULD EXCEED THE
TOTAL REVOLVING CREDIT COMMITTED AMOUNT; PROVIDED THAT UNDER NO
CIRCUMSTANCES SHALL THE AGGREGATE PRINCIPAL AMOUNT OF ITALIAN
OBLIGATION ADVANCES EXCEED THE DOLLAR CURRENCY EQUIVALENT OF THE
THEN OUTSTANDING ITALIAN OBLIGATIONS; NO LENDER, HOWEVER, SHALL
HAVE ANY OBLIGATION OR COMMITMENT TO MAKE ANY ADVANCE TO OR FOR
THE ACCOUNT OF THE BORROWER UNDER THE REVOLVING LOAN (INCLUDING
ANY OBLIGATION OR COMMITMENT TO PURCHASE ANY PARTICIPATION
INTEREST IN THE ITALIAN OBLIGATIONS) UNLESS OTHERWISE AGREED IN
WRITING BY SUCH LENDER, IF AND TO THE EXTENT SUCH LENDER'S PRO
RATA SHARE OF THE REVOLVING LOAN WOULD EXCEED, WITH THE MAKING OF
SUCH ADVANCE OR REIMBURSEMENT, SUCH LENDER'S REVOLVING CREDIT
COMMITTED AMOUNT.
6. The first paragraph of Section 2.1.3 on page 53 of the Credit
Agreement is hereby deleted in its entirety and the following is
substituted in its place:
AS USED IN THIS AGREEMENT, THE TERM "BORROWING BASE" MEANS
AT ANY TIME, AN AMOUNT EQUAL TO THE AGGREGATE OF (A) EIGHTY-FIVE
PERCENT (85%) OF THE AMOUNT OF ELIGIBLE DOMESTIC RECEIVABLES,
PLUS (B) THE LESSER OF (I) SIXTY-FIVE PERCENT (65%) OF THE AMOUNT
OF ELIGIBLE DOMESTIC INVENTORY OR (II) THIRTY-EIGHT MILLION
DOLLARS ($38,000,000).
7. Section 2.1.12 on pages 58 and 59 of the Credit Agreement, as amended
by the First Amendment and the Second Amendment, is hereby deleted in its
entirety and the following is substituted in its place:
2.1.12 REQUIRED AVAILABILITY UNDER THE REVOLVING CREDIT
FACILITY.
ON AN AVERAGE MONTHLY BASIS, TESTED AS OF THE LAST DAY OF
EACH CALENDAR MONTH, COMMENCING WITH THE FIRST SUCH DATE
FOLLOWING THE CLOSING DATE, THE OUTSTANDING PRINCIPAL AMOUNT OF
THE REVOLVING LOAN SHALL NOT EXCEED AN AMOUNT EQUAL TO (X) THE
GREATER OF (I) THE BORROWING BASE, OR (II) THE TOTAL REVOLVING
CREDIT COMMITTED AMOUNT, MINUS (y) $9,470,000 (the "Required
Availability"). The Borrower shall make a Revolving Loan
Mandatory Prepayment pursuant to the provisions of Section 2.1.6
to the extent necessary to achieve and maintain compliance with
this Section. The failure of the Borrower to make any such
Revolving Loan Mandatory Prepayment shall constitute a Default,
but shall not constitute an Event of Default unless such failure
to make the required Revolving Loan Mandatory Prepayment
continues uncured for a period of fourteen (14) days or the
Borrower otherwise fails to attain and maintain the Required
Availability within such fourteen (14) day period.
NOTWITHSTANDING THE FOREGOING, THE REQUIRED AVAILABILITY
SHALL BE REDUCED MONTHLY AS OF THE LAST DAY OF EACH CALENDAR
MONTH TO THE AMOUNTS SET FORTH BELOW; PROVIDED THAT THE SCHEDULED
PRINCIPAL PAYMENTS ON ACCOUNT OF TERM LOANS B DUE AS OF THE FIRST
DAY OF EACH SUCH MONTH ARE MADE AS AND WHEN DUE AND PAYABLE:
REQUIRED AVAILABILITY DATE
$ 8,740,000 JUNE 1, 2001
$ 8,010,000 July 1, 2001
$ 7,280,000 AUGUST 1, 2001
$ 7,000,000 September 1, 2001 and ALL TIMES THEREAFTER
IN ADDITION TO THE REQUIRED AVAILABILITY, THE BORROWER
UNDERSTANDS AND AGREES THAT THE AGENT SHALL ESTABLISH AND
MAINTAIN AN ADDITIONAL RESERVE AGAINST AVAILABILITY UNDER THE
REVOLVING LOAN IN AN AMOUNT EQUAL AT ALL TIMES TO THE DOLLAR
CURRENCY EQUIVALENT OF THE MAXIMUM AMOUNT (INCLUDING PRINCIPAL,
INTEREST AND FEES) WHICH IS AND/OR MAY BE OUTSTANDING AT ANY TIME
AND FROM TIME TO TIME UNDER THE ITALIAN CREDIT FACILITY (THE
"ITALIAN CREDIT FACILITY REQUIRED AVAILABILITY"). THE AGENT AND
THE LENDERS AGREE THAT THE ITALIAN CREDIT FACILITY REQUIRED
AVAILABILITY IS IN SUBSTITUTION FOR, AND IN REPLACEMENT OF, THE
PERMITTED ACQUISITION REQUIRED AVAILABILITY AND ACCORDINGLY
CONSTITUTES A REPLACEMENT OF A PORTION OF THE REVOLVING CREDIT
FACILITY AND NOT A PERMANENT REDUCTION OF THE REVOLVING CREDIT
COMMITMENTS. THE BORROWER FURTHER UNDERSTANDS AND AGREES THAT
THE AMOUNT OF THE ITALIAN CREDIT FACILITY REQUIRED AVAILABILITY
MAY CHANGE FROM TIME TO TIME AS DETERMINED BY THE AGENT IN ITS
SOLE DISCRETION TO TAKE INTO ACCOUNT ANY APPLICABLE FOREIGN
EXCHANGE FLUCTUATIONS BETWEEN DOLLARS AND EUROS. THE BORROWER
FURTHER UNDERSTANDS AND AGREES THAT THE ITALIAN CREDIT FACILITY
REQUIRED AVAILABILITY MAY AT ANY TIME AND FROM TIME TO TIME
EXCEED THE ITALIAN REVOLVING CREDIT COMMITTED AMOUNT IF AND TO
THE EXTENT THE UNPAID BALANCE OF THE DOLLAR CURRENCY EQUIVALENT
OF THE ITALIAN OBLIGATIONS EXCEEDS OR IS EXPECTED TO EXCEED THE
DOLLAR CURRENCY EQUIVALENT OF THE ITALIAN REVOLVING CREDIT
COMMITTED AMOUNT.
8. The reference to each Lender's Term Loan A Pro Rata Share on pages 59
and 60 of the Credit Agreement is hereby deleted in its entirety and the
following is substituted in its place:
LENDER TERM LOAN A PRO RATA SHARE
FLEET 18.182%
GE CAPITAL 8.871036249%
BANK OF AMERICA 19.697%
XXXXXX 15.152%
PNC 15.152%
PROVIDENT 6.945963751%
LASALLE 16.000%
TOTAL TERM LOAN B COMMITTED AMOUNT 100%
9. Section 2.2.2 on page 60 of the Credit Agreement is hereby deleted in
its entirety and the following is substituted in its place:
2.2.2 AMORTIZATION OF TERM LOANS A; THE TERM LOAN A NOTES.
The unpaid principal balance of the Term Loans A shall be
due and payable in monthly installments of principal on each
Installment Payment Date, each in the following amounts during
the following periods:
PERIOD AMOUNT
May 1, 2001 through and
and including January 1, 2004 $1,042,000
January 21, 2004 The then unpaid principal balance
Unless sooner paid, the unpaid principal balance of the Term
Loans A, together with interest accrued and unpaid thereon, shall
be due and payable in full on the first to occur of (i) January
21, 2004 or (ii) the Revolving Credit Termination Date.
THE OBLIGATION OF THE BORROWER TO PAY THE TERM LOANS A, WITH
INTEREST, SHALL BE EVIDENCED BY A SERIES OF AMENDED AND RESTATED
PROMISSORY NOTES (EACH AS FROM TIME TO TIME EXTENDED, AMENDED,
RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED, A "TERM LOAN A
NOTE" AND COLLECTIVELY, THE "TERM LOAN A NOTES"). EACH TERM LOAN
A NOTE SHALL BE DATED AS THE PESCOR CLOSING DATE AND SHALL BE
PAYABLE TO THE ORDER OF A LENDER AT THE TIMES PROVIDED IN THE
TERM LOAN A NOTE, AND SHALL BE IN THE PRINCIPAL AMOUNT OF SUCH
LENDER'S TERM LOAN A COMMITTED AMOUNT, INCLUDING ITS PRO RATA
SHARE OF THE TERM LOAN A INCREASE.
10. Section 2.2.3 on pages 60 and 61 of the Credit Agreement is hereby
amended to provide that if Term Loans A and Term Loans B have been paid in
full by a Term Loan A Mandatory Prepayment made under subpart (a) of
Section 2.2.3 or otherwise, the excess proceeds of each such Term Loan A
Mandatory Prepayment due and payable under subpart (a) shall be applied to
the then unpaid balance of the Term Loans C as a Term Loan C Optional
Prepayment prior to being paid as a Revolving Loan Mandatory Prepayment.
11. The reference to each Lender's Term Loan B Pro Rata Share on page 62
of the Credit Agreement is hereby deleted in its entirety and the following
is substituted in its place:
LENDER TERM LOAN B PRO RATA SHARE
FLEET 18.182%
GE CAPITAL 8.871036249%
BANK OF AMERICA 19.697%
XXXXXX 15.152%
PNC 15.152%
PROVIDENT 6.945963751%
LASALLE 16.000%
TOTAL TERM LOAN B COMMITTED AMOUNT 100%
12. Section 2.3.2 on page 63 of the Credit Agreement is hereby deleted in
its entirety and the following is substituted in its place:
SECTION 2.3.2 AMORTIZATION OF TERM LOANS B; THE TERM LOAN B
NOTES.
THE UNPAID PRINCIPAL BALANCE OF THE TERM LOANS B SHALL BE
DUE AND PAYABLE IN MONTHLY INSTALLMENTS OF PRINCIPAL ON EACH
INSTALLMENT PAYMENT DATE, EACH IN THE AMOUNT OF $730,000. UNLESS
SOONER PAID, THE UNPAID PRINCIPAL BALANCE OF THE TERM LOANS B,
TOGETHER WITH INTEREST ACCRUED AND UNPAID THEREON, SHALL BE DUE
AND PAYABLE IN FULL ON THE FIRST TO OCCUR OF (I) JANUARY 21, 2004
OR (II) THE REVOLVING CREDIT TERMINATION DATE. THE OBLIGATION OF
THE BORROWER TO PAY THE TERM LOANS B, WITH INTEREST, SHALL BE
EVIDENCED BY A SERIES OF PROMISSORY NOTES (EACH AS FROM TIME TO
TIME EXTENDED, AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE
MODIFIED, THE "TERM LOAN B NOTE" AND COLLECTIVELY, THE "TERM LOAN
B NOTES"). EACH TERM LOAN B NOTE SHALL BE DATED AS THE DATE
CLOSING DATE AND SHALL BE PAYABLE TO THE ORDER OF A LENDER AT THE
TIMES PROVIDED IN THE TERM LOAN B NOTE, AND SHALL BE IN THE
PRINCIPAL AMOUNT OF SUCH LENDER'S TERM LOAN B COMMITTED AMOUNT,
INCLUDING ITS PRO RATA SHARE OF THE TERM LOAN B INCREASE.
13. The reference to each Lender's UK Revolving Credit Pro Rata Share on
page 71 of the Credit Agreement is hereby deleted in its entirety and the
following is substituted in its place:
LENDER UK REVOLVING CREDIT PRO RATA SHARE
FLEET 18.182%
GE CAPITAL 8.871036249%
BANK OF AMERICA 19.697%
XXXXXX 15.152%
PNC 15.152%
PROVIDENT 6.945963751%
LASALLE 16.000%
UK REVOLVING CREDIT COMMITTED AMOUNT 100%
14. The reference to each Lender's UK Term Loan Pro Rata Share on page 77
of the Credit Agreement is hereby deleted in its entirety and the following
is substituted in its place:
LENDER UK TERM LOAN PRO RATA SHARE
FLEET 18.182%
GE CAPITAL 8.871036249%
BANK OF AMERICA 19.697%
XXXXXX 15.152%
PNC 15.152%
PROVIDENT 6.945963751%
LASALLE 16.000%
UK TERM LOAN COMMITTED AMOUNT 100%
15. Section 2.8.6 on pages 8, 9 and 10 of the Second Amendment is hereby
deleted in its entirety and the following is substituted in its place:
2.8.6 PARTICIPATIONS IN THE ITALIAN OBLIGATIONS.
Each Lender (including Bank of America) hereby irrevocably
authorizes Bank of America Italy to make advances under the
Italian Revolving Credit Facility (including advances under any
and all overdraft facilities) in accordance with the provisions
of either or both of the Italian Credit Agreements. As of the
date each such Italian Revolving Credit Loan is made, each Lender
shall have an undivided participating interest in (a) the rights
and obligations of Bank of America Italy under each such Italian
Revolving Credit Loan, and (b) the Italian Obligations with
respect to such Italian Revolving Credit Loan, in an amount equal
to each Lender's Pro Rata Share thereof, subject to the rights of
Bank of America Italy to receive and retain payment of all or a
portion of the interest on the Italian Obligations as set forth
in this Section and any fronting fees or other fees as set forth
in the Italian Credit Agreements. If the Italian Holding
Company, Capsol Italy and/or Ociesse fail to pay to Bank of
America Italy, any Italian Obligations as and when due and
payable (subject to any applicable notice, grace or cure period),
the Agent shall promptly notify each of the Lenders and may
demand payment from each of the Lenders of such Lender's Pro Rata
Share of such unpaid Italian Obligations. In addition, if any
amount paid to Bank of America Italy on account of the Italian
Obligations is rescinded or required to be restored or turned
over by Bank of America Italy, upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Italian Holding
Company, Capsol Italy and/or Ociesse or upon or as a result of
the appointment of a receiver, intervenor, trustee, conservator
or similar officer for the Italian Holding Company, Capsol Italy
and/or Ociesse, the Agent shall promptly notify each of the
Lenders and may demand payment from each of the Lenders of its
Pro Rata Share of its portion of the Italian Obligations to be
remitted to the Italian Holding Company, Capsol Italy and/or
Ociesse. Subject to Section 2.1.2, each of the Lenders
irrevocably and unconditionally agrees to honor any such demands
for payment under this Section and promises to pay to the account
of the Agent for the benefit of Bank of America Italy on the same
Business Day as demanded the amount of its Pro Rata Share of the
Italian Obligations in Euros and/or Dollars, as requested by the
Agent, in immediately available funds, without any setoff,
counterclaim or deduction of any kind. Any payment by a Lender
hereunder shall in no way release, discharge or lessen the
obligation of the Italian Holding Company, Capsol Italy, Ociesse,
the Borrower or any Subsidiary Guarantor to pay the Italian
Obligations to Bank of America Italy, in accordance with the
provisions of the Italian Credit Agreements. The date on which a
payment is made by a Lender to the Agent for the account of Bank
of America Italy shall be referred to as a "Italian Payment
Date".
THE OBLIGATION OF EACH OF THE LENDERS TO REMIT THE AMOUNTS
OF ITS PRO RATA SHARE OF THE ITALIAN OBLIGATIONS FOR THE ACCOUNT
OF BANK OF AMERICA ITALY, PURSUANT TO THIS SECTION SHALL BE
UNCONDITIONAL AND IRREVOCABLE UNDER ANY AND ALL CIRCUMSTANCES
(BUT SUBJECT TO SECTION 2.1.2) AND MAY NOT BE TERMINATED,
SUSPENDED OR DELAYED FOR ANY REASON WHATSOEVER, PROVIDED THAT ALL
PAYMENTS OF SUCH AMOUNTS BY EACH OF THE LENDERS SHALL BE WITHOUT
PREJUDICE TO THE RIGHTS OF EACH OF THE LENDERS WITH RESPECT TO
ANY ALLEGED WILLFUL MISCONDUCT OF BANK OF AMERICA ITALY. ANY
CLAIM ANY LENDER MAY HAVE AGAINST BANK OF AMERICA ITALY AS A
RESULT OF ANY ALLEGED WILLFUL MISCONDUCT OF BANK OF AMERICA ITALY
MAY BE BROUGHT BY SUCH LENDER IN A SEPARATE ACTION AGAINST BANK
OF AMERICA ITALY, BUT MAY NOT BE USED AS A DEFENSE TO PAYMENT
UNDER THE PROVISIONS OF THIS SECTION.
All interest on the unpaid principal balance of the Italian
Obligations shall be payable to, and retained by, Bank of America
Italy, except with respect to those Italian Obligations for which
the Agent on account of Bank of America Italy, has demanded and
received payment from a Lender pursuant to the provisions of this
Section (each an "Italian Lender Payment"), in which case, the
Lender making such payment shall be entitled to receive all
interest payable on the Italian Obligations represented by such
Italian Lender Payment at all times from and after the Italian
Payment Date for such Italian Lender Payment (the "Lender's Share
of Italian Interest"). Any payments received by Bank of America
Italy, which are payable to a Lender shall be paid to such Lender
in Euros and/or Dollars, as the case may be, in accordance with
all payments to be made by the Agent to a Lender under the
provisions of Section 2.12.
EXCEPT TO THE EXTENT THAT THE AGENT ON BEHALF OF BANK OF
AMERICA ITALY SHALL HAVE MADE DEMAND ON THE LENDERS FOR PAYMENT
OF THEIR PRO RATA SHARE OF THE ITALIAN OBLIGATIONS (THE "ITALIAN
OBLIGATIONS DEMAND DATE"), THE AGENT SHALL REMIT TO EACH LENDER
FROM TIME TO TIME (BUT AT LEAST ONCE MONTHLY) SUCH LENDER'S PRO
RATA SHARE OF THAT PORTION OF THE INTEREST PAID TO, AND RECEIVED
BY, BANK OF AMERICA ITALY, IN COLLECTED FUNDS ON ACCOUNT OF SUCH
LENDER'S UNFUNDED ITALIAN OBLIGATIONS CALCULATED AT THE
APPLICABLE ITALIAN MARGIN FOR SUCH ITALIAN OBLIGATIONS ONLY; BANK
OF AMERICA ITALY SHALL RETAIN ALL INTEREST CALCULATED AT BASE
RATE OR BASE RATES PROVIDED IN THE ITALIAN CREDIT AGREEMENTS.
SUCH PAYMENTS SHALL BE PAYABLE TO THE LENDERS IN CONSIDERATION OF
THEIR AGREEMENT TO PURCHASE A PARTICIPATION INTEREST IN THE
ITALIAN OBLIGATIONS IN ACCORDANCE WITH THE PROVISIONS OF THIS
AGREEMENT, BUT SHALL BE PAYABLE ONLY IF AND TO THE EXTENT BANK OF
AMERICA ITALY HAS RECEIVED THE INTEREST PAYMENT WHICH IS THE
BASIS FOR SUCH PAYMENT TO THE LENDERS.
Section 2.9.1(c) on page 84 of the Credit Agreement is hereby deleted
in its entirety and the following is substituted in its place:
(C) THE APPLICABLE MARGIN FOR (I) LIBOR LOANS, OTHER THAN
THE UK TERM LOANS, TERM LOANS A, TERM LOANS B AND TERM LOANS C
SHALL BE TWO HUNDRED TWENTY-FIVE (225) BASIS POINTS PER ANNUM,
(II) LIBOR LOANS CONSISTING OF TERM LOANS A AND TERM LOANS C,
SHALL BE TWO HUNDRED FIFTY (250) BASIS POINTS PER ANNUM, (III)
LIBOR LOANS CONSISTING OF THE UK TERM LOANS, SHALL BE TWO HUNDRED
SEVENTY-FIVE (275) BASIS POINTS PER ANNUM, (IV) LIBOR LOANS
CONSISTING OF TERM LOANS B, SHALL BE THREE HUNDRED (300) BASIS
POINTS PER ANNUM, (V) BASE RATE LOANS CONSISTING OF THE REVOLVING
LOAN, SHALL BE TWENTY-FIVE (25) BASIS POINTS, (VI) BASE RATE
LOANS CONSISTING OF TERM LOANS A AND TERM LOANS C, SHALL BE FIFTY
(50) BASIS POINTS PER ANNUM, AND (VII) BASE RATE LOANS CONSISTING
OF TERM LOANS B, SHALL BE ONE HUNDRED (100) BASIS POINTS, UNLESS
AND UNTIL A CHANGE IS REQUIRED BY THE OPERATION OF SECTION
2.9.1(D). IN ADDITION, THE MANDATORY LIQUID ASSET COST RATE
SHALL BE ADDED TO THE APPLICABLE MARGIN FOR EACH LIBOR LOAN MADE
OR TO BE MADE UNDER THE UK CREDIT FACILITIES.
Section 2.10.4 on page 90 is hereby deleted in its entirety and the
following is substituted in its place:
2.10.4 COMMITMENT FEE
The Borrower shall pay to the Agent for the ratable benefit
of the Lenders, based on each Lender's Pro Rata Share of the
Commitments, a commitment fee (the "Commitment Fee") in the
aggregate amount of Sixty Thousand Dollars ($60,000) in
consideration of each Lender's agreement to increase such
Lender's Pro Rata Share of the Revolving Credit Commitment and
the Term Loan A Increase. The Commitment Fee shall be payable on
or before the Pescor Closing Date and shall be deemed fully
earned on the date paid and is non-refundable.
Section 2.10.5 on page 91 is hereby deleted in its entirety and the
following is substituted in its place:
2.10.5 CONSENT FEE.
The Borrower shall pay to the Agent for the ratable benefit
of the Lenders, based on each Lender's Pro Rata Share of the
Commitments, a consent fee (the "Consent Fee") in the aggregate
amount of Four Hundred Twenty-three Thousand Three Hundred
Eighteen Dollars ($423,318.00) in consideration of the Lenders'
consent to the extension of the Credit Facilities and the Pescor
Merger Transaction. The Consent Fee shall be payable on or before
the Pescor Closing Date and shall be deemed fully earned on the
date paid and is non-refundable.
Article 2 of the Credit Agreement is hereby amended to add the
following Sections:
SECTION 2.12 THE TERM LOAN C FACILITY
2.12.1 TERM LOAN C COMMITMENTS.
SUBJECT TO AND UPON THE TERMS OF THIS AGREEMENT, EACH
LENDER SEVERALLY AGREES TO MAKE A LOAN (EACH A "TERM LOAN
C"; AND COLLECTIVELY, THE "TERM LOANS C") TO THE BORROWER IN
THE PRINCIPAL AMOUNT SET FORTH BELOW OPPOSITE SUCH LENDER'S
NAME (HEREIN CALLED SUCH LENDER'S "TERM LOAN C COMMITTED
AMOUNT"). THE TOTAL OF EACH LENDER'S TERM LOAN C COMMITTED
AMOUNT IS HEREIN CALLED THE "TOTAL TERM LOAN C COMMITTED
AMOUNT". THE PROPORTIONATE SHARE SET FORTH BELOW OPPOSITE
EACH LENDER'S NAME IS HEREIN CALLED SUCH LENDER'S "TERM LOAN
C PRO RATA SHARE":
TERM LOAN C TERM LOAN C
LENDER COMMITTED AMOUNT PRO RATA SHARE
Fleet $363,640.00 18.182%
GE Capital $177,420.72 8.871036249%
Bank of America $393,940.00 19.697%
Xxxxxx $303,040.00 15.152%
PNC $303,040.00 15.152%
Provident $138,919.28 6.945963751%
LaSalle $320,000.00 16%
TOTAL TERM LOAN C
COMMITTED AMOUNT: $2,000,000 100%
THE OBLIGATION OF EACH LENDER TO MAKE A TERM LOAN C IS
SEVERAL AND IS LIMITED TO ITS TERM LOAN C COMMITTED AMOUNT, AND
SUCH OBLIGATION OF EACH LENDER IS HEREIN CALLED ITS "TERM LOAN C
COMMITMENT". THE TERM LOAN C COMMITMENT OF EACH OF THE LENDERS
ARE HEREIN COLLECTIVELY REFERRED TO AS THE "TERM LOAN C
COMMITMENTS". THE AGENT SHALL NOT BE RESPONSIBLE FOR THE TERM
LOAN C COMMITMENT OF ANY LENDER; AND SIMILARLY, NONE OF THE
LENDERS SHALL BE RESPONSIBLE FOR THE TERM LOAN C COMMITMENT OF
ANY OF THE OTHER LENDERS; THE FAILURE, HOWEVER, OF ANY LENDER TO
PERFORM ITS TERM LOAN C COMMITMENT SHALL NOT RELIEVE ANY OF THE
OTHER LENDERS FROM THE PERFORMANCE OF THEIR RESPECTIVE TERM LOAN
C COMMITMENTS.
2.12.2 AMORTIZATION OF TERM LOANS C; THE TERM LOAN C NOTES.
THE UNPAID PRINCIPAL BALANCE OF THE TERM LOANS C SHALL BE
DUE AND PAYABLE IN EQUAL MONTHLY INSTALLMENTS OF PRINCIPAL ON
EACH INSTALLMENT PAYMENT DATE, EACH IN THE AMOUNT WHEN APPLIED TO
THE PRINCIPAL AMOUNT OF TERM LOANS C WILL FULLY AMORTIZE ALL TERM
LOANS C OVER A PERIOD OF FIVE (5) YEARS.
Unless sooner paid, the unpaid principal balance of the Term
Loans C, together with interest accrued and unpaid thereon, shall
be due and payable in full on the first to occur of (i) January
21, 2004 or (ii) the Revolving Credit Termination Date.
THE OBLIGATION OF THE BORROWER TO PAY THE TERM LOANS C, WITH
INTEREST, SHALL BE EVIDENCED BY A SERIES OF AMENDED AND RESTATED
PROMISSORY NOTES (EACH AS FROM TIME TO TIME EXTENDED, AMENDED,
RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED, A "TERM LOAN C
NOTE" AND COLLECTIVELY, THE "TERM LOAN C NOTES"). EACH TERM LOAN
C NOTE SHALL BE DATED AS THE PESCOR CLOSING DATE AND SHALL BE
PAYABLE TO THE ORDER OF A LENDER AT THE TIMES PROVIDED IN THE
TERM LOAN C NOTE, AND SHALL BE IN THE PRINCIPAL AMOUNT OF SUCH
LENDER'S TERM LOAN C COMMITTED AMOUNT.
2.12.3 OPTIONAL PREPAYMENTS OF TERM LOANS C.
SUBJECT TO THE PROVISIONS OF SECTION 2.9.4 (INDEMNITY), THE
BORROWER MAY, AT ITS OPTION, AT ANY TIME AND FROM TIME TO TIME,
PREPAY (EACH A "TERM LOAN C OPTIONAL PREPAYMENT" AND COLLECTIVELY
THE "TERM LOAN C OPTIONAL PREPAYMENTS") THE TERM LOANS C, IN
WHOLE OR IN PART, UPON FIVE (5) BUSINESS DAYS PRIOR WRITTEN
NOTICE, SPECIFYING THE DATE AND AMOUNT OF PREPAYMENT. THE AMOUNT
TO BE SO PREPAID, TOGETHER WITH INTEREST ACCRUED THEREON TO DATE
OF PREPAYMENT IF THE AMOUNT IS INTENDED AS A PREPAYMENT OF THE
TERM LOANS C IN WHOLE, SHALL BE PAID BY THE BORROWER TO THE AGENT
FOR THE RATABLE BENEFIT OF THE LENDERS ON THE DATE SPECIFIED FOR
SUCH PREPAYMENT. PARTIAL TERM LOAN C OPTIONAL PREPAYMENTS SHALL
BE APPLIED TO ALL OF THE REMAINING PRINCIPAL INSTALLMENTS DUE ON
ACCOUNT OF THE TERM LOANS C ON A PRO RATA BASIS.
Section 4.1.3 on pages 107 the Credit Agreement is hereby amended to
add the following provisions:
EACH OF THE PARENT, THE BORROWER AND THEIR RESPECTIVE
SUBSIDIARIES, AS THE CASE MAY BE, HAS FULL CORPORATE POWER AND
AUTHORITY TO EXECUTE AND DELIVER THE THIRD AMENDMENT, ALL OTHER
FINANCING DOCUMENTS (RELATING TO THE THIRD AMENDMENT OR
OTHERWISE), AND THE PESCOR MERGER DOCUMENTS TO WHICH IT IS A
PARTY, TO MAKE THE BORROWINGS AND REQUEST LETTERS OF CREDIT AND
BOND LETTERS OF CREDIT UNDER THIS AGREEMENT (AS AMENDED BY THE
THIRD AMENDMENT AND OTHERWISE), TO CLOSE AND CONSUMMATE EACH
ASPECT OF THE PESCOR MERGER TRANSACTION, AS APPROPRIATE AND TO
INCUR AND PERFORM THE OBLIGATIONS WHETHER UNDER THIS AGREEMENT
(AS AMENDED BY THE THIRD AMENDMENT OR OTHERWISE), THE OTHER
FINANCING DOCUMENTS, THE PESCOR MERGER DOCUMENTS, ALL OF WHICH
HAVE BEEN DULY AUTHORIZED BY ALL PROPER AND NECESSARY CORPORATE
ACTION. NO CONSENT OR APPROVAL OF SHAREHOLDERS OR ANY CREDITORS
OF THE PARENT, THE BORROWER OR ANY SUBSIDIARY, AND NO CONSENT,
APPROVAL, FILING OR REGISTRATION WITH OR NOTICE TO ANY
GOVERNMENTAL AUTHORITY ON THE PART OF THE PARENT, THE BORROWER OR
ANY SUBSIDIARY, IS REQUIRED AS A CONDITION TO THE EXECUTION,
DELIVERY, VALIDITY OR ENFORCEABILITY OF THE THIRD AMENDMENT, THE
OTHER FINANCING DOCUMENTS (RELATED TO THE THIRD AMENDMENT OR
OTHERWISE), ANY OF THE PESCOR MERGER DOCUMENTS, THE PERFORMANCE
BY THE BORROWER OF THE OBLIGATIONS OR THE CLOSING AND
CONSUMMATION OF THE PESCOR MERGER TRANSACTION, IN EACH CASE, IF
REQUIRED, THE SAME HAS BEEN DULY OBTAINED.
Section 4.1.12 on page 109 of the Credit Agreement is hereby deleted
in its entirety and the following is substituted in its place:
4.1.12 PRO FORMA FINANCIAL STATEMENTS.
The Borrower has furnished to the Agent a pro-forma
consolidated balance sheet of the Borrower and the Subsidiaries
as of a date on or about March 31, 2001 (the "Pro-forma Date"),
but giving effect to the Pescor Merger Transaction and the
transactions incident thereto (the "Pro-forma Balance Sheet")
together with pro-forma financial projections of the Parent for
the five-year period subsequent to the Pescor Merger Transaction
(the "Pro-forma Financial Projections"). A copy of the Pro-forma
Balance Sheet and the Pro-forma Financial Projections are
attached hereto as Exhibits C-1 and C-2, respectively. The Pro-
forma Balance Sheet is correct and complete, has been prepared in
accordance with GAAP, and fairly presents in all material
respects the consolidated financial condition of the Borrower and
the Subsidiaries as of the Pro-forma Date, but giving effect to
the Pescor Merger Transaction and the transactions incident
thereto. The Pro-forma Financial Projections represent the best
estimate of the future operations of the Parent and are based on
reasonable and conservative assumptions, but do not constitute a
guaranty of actual performance.
Section 4.1.29 on page 113 of the Credit Agreement is hereby deleted
in its entirety and the following is substituted in its place:
XXXX-XXXXX-XXXXXX.
The Borrower, the Seller and all other necessary Persons, as
appropriate, have made such filings, if any, as may be required
by the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and have provided such supplemental information that may
be required by such Act, with respect to the sales contemplated
by the Pescor Merger Transaction. The waiting periods under such
Act have terminated or expired.
Section 4.1.31 on page 13 of the First Amendment is hereby amended to
reflect that (1) Xxxxx Italy is a Wholly-Owned Subsidiary of the Borrower,
(2) the Borrower is the owner of a ninety-five percent (95%) interest in
the Italian Holding Company, (3) Xxxxx Italy is the owner of a five percent
(5%) interest in the Italian Holding Company, and (4) that Capsol Italy and
Ociesse are each Wholly-Owned Subsidiaries of the Italian Holding Company.
Article 4 of the Credit Agreement is hereby amended to add the
following additional section:
4.1.32 PESCOR MERGER TRANSACTION.
The Agent has received true and correct photocopies of the
Pescor Merger Agreement and each of the other Pescor Merger
Documents executed, delivered and/or furnished on or before the
date of the Third Amendment in connection with the Pescor Merger
Transaction. Neither the Pescor Merger Agreement nor any of the
other Pescor Merger Documents have been modified, changed,
supplemented, canceled, amended or otherwise altered, except as
otherwise disclosed to the Agent in writing on or before the date
of the Third Amendment. The Pescor Merger Transaction has been
effected, closed and consummated pursuant to, and in accordance
with, the terms and conditions of the Pescor Merger Agreement and
with all applicable Laws.
Section 6.1.13(a) (Tangible Capital Funds), Section 6.1.13(c)
(Interest Coverage Ratio), Section 6.1.13(e) (Debt Service Coverage Ratio)
on pages 128 and 129 of the Credit Agreement, as amended by the First
Amendment, are hereby deleted in their entirety.
Section 6.1.13(b) on page 128 of the Credit Agreement, as amended by
the First Amendment, is hereby deleted in its entirety and the following is
substituted in its place:
(B) FUNDED DEBT TO EBITDA. The Borrower, Xxxxx UK, NIM
Holdings and the Subsidiary Guarantors, on a consolidated basis,
will not permit the ratio of (x) Funded Debt to (y) EBITDA, for
the prior twelve (12) month trailing period (reflecting actual
and historical performance of each Subject Transaction which
constitutes a Permitted Acquisition during such twelve (12) month
period), tested as of the last day of each fiscal quarter, to be
greater than the following amounts as of the following dates:
DATE RATIO
June 30, 2001 4.25 to 1.00
September 30, 2001 4.00 to 1.00
December 31, 2001 3.75 to 1.00
March 31, 2002 3.50 to 1.00
June 30, 2002 3.50 to 1.00
September 30, 2002 3.25 to 1.00
and the last day of each
fiscal quarter thereafter
Section 6.1.13(d) on page 129 of the Credit Agreement is hereby
deleted in its entirety and the following is substituted in its place:
(D) FIXED CHARGE COVERAGE RATIO. The Borrower, Xxxxx UK,
NIM Holdings and the Subsidiary Guarantors will maintain, on a
consolidated basis, will not permit the Fixed Charge Coverage
Ratio for the prior twelve (12) month trailing period, tested as
of the last day of each fiscal quarter, to be less than 1.00 to
1.00 as of the end of each fiscal quarter
Section 6.1.25 on page 11 of the Second Amendment is hereby deleted in
its entirety and the following is substituted in its place:
6.1.25 ITALIAN CREDIT AGREEMENTS. The Borrower covenants
and agrees to execute and deliver and to cause Xxxxx Italy, the
Italian Holding Company, Capsol Italy and Ociesse to execute and
deliver the Italian Credit Agreements and the Italian Stock
Pledge Agreement in form and content acceptable to the Agent as
soon as commercially practicable but in any event on or before
June 15, 2001.
Section 6.2.3 on page 135 of the Credit Agreement is hereby amended to
add the following provisions:
NOTWITHSTANDING THE FOREGOING, THE BORROWER SHALL NOT BE
PERMITTED TO DECLARE OR PAY ANY DISTRIBUTIONS TO THE PARENT IF
(I) THERE EXISTS A DEFAULT OR AN EVENT OF DEFAULT AS OF THE DATE
OF SUCH PROPOSED DISTRIBUTION OR (II) THE MAKING OF ANY SUCH
DISTRIBUTION WOULD GIVE RISE, DIRECTLY OR INDIRECTLY, TO A
DEFAULT OR AN EVENT OF DEFAULT.
Section 6.2.4(h) on page 136 of the Credit Agreement is hereby deleted
in its entirety and the following is substituted in its place:
(H) CAPITAL LEASES AS AND TO THE EXTENT PERMITTED BY SECTION
6.2.6;
16. Section 6.2.4(i) on page 136 of the Credit Agreement, as amended by
the First Amendment, is hereby deleted in its entirety and the following is
substituted in its place:
(I) INDEBTEDNESS FOR BORROWED MONEY OF THE BORROWER TO ANY
SUBSIDIARY GUARANTOR OR OF ANY SUBSIDIARY GUARANTOR TO THE
BORROWER OR ANY OTHER SUBSIDIARY GUARANTOR AND INDEBTEDNESS FOR
BORROWED MONEY OF XXXXX UK, NIM HOLDINGS, NORWICH, THE ITALIAN
HOLDING COMPANY, CAPSOL ITALY AND/OR OCIESSE TO THE BORROWER OR
ANY OTHER DOMESTIC SUBSIDIARY GUARANTOR (THE "FOREIGN
INTERCOMPANY INDEBTEDNESS"), PROVIDED THAT THE AGGREGATE AMOUNT
OF SUCH FOREIGN INTERCOMPANY INDEBTEDNESS AND FOREIGN
INTERCOMPANY INVESTMENTS (EXCLUDING INTERCOMPANY ALLOCATIONS OF
EXPENSES AND CHARGES AND EXCLUDING THE AMOUNT USED TO FUND THE
PURCHASE OF THE ASSETS OF CAPSOL-CERTWOOD UK LTD.), SHALL NOT
EXCEED, IN THE AGGREGATE, TEN MILLION FOUR HUNDRED THOUSAND
DOLLARS ($10,400,000);
Section 6.2.5(vii) on page 138 of the Credit Agreement, as amended by
the First Amendment, is deleted in its entirety and the following is
substituted in its place:
(VII) (1) THE BORROWER'S ACQUISITION, CREATION, OWNERSHIP
AND INITIAL CAPITALIZATION OF NIM HOLDING AND THE ITALIAN HOLDING
COMPANY, (2) THE INITIAL CAPITALIZATION OF XXXXX UK AND NORWICH
ACQUISITION AS PART OF AND AT THE TIME OF THE BORROWER'S
ACQUISITION OF NIM HOLDINGS, (3) THE INITIAL CAPITALIZATION OF
CAPSOL ITALY AND/OR OCIESSE AS PART OF AND AT THE TIME OF THE
BORROWER'S ACQUISITION OF THE ITALIAN HOLDING COMPANY, (4) THE
PURCHASE OF CERTAIN ASSETS OF CAPSOL-CERTWOOD UK LTD., AND (5)
ANY ADDITIONAL CAPITAL OR OTHER EQUITY CONTRIBUTIONS OR
INVESTMENTS IN XXXXX UK, NIM HOLDINGS, THE ITALIAN HOLDING
COMPANY, CAPSOL AND OCIESSE; PROVIDED THAT THE AGGREGATE AMOUNT
OF ANY SUCH ADDITIONAL CAPITAL OR OTHER EQUITY CONTRIBUTIONS
(COLLECTIVELY, THE "FOREIGN INTERCOMPANY INVESTMENTS"), TOGETHER
WITH ANY FOREIGN INTERCOMPANY INDEBTEDNESS (EXCLUDING
INTERCOMPANY ALLOCATIONS OF EXPENSES AND CHARGES AND EXCLUDING
THE AMOUNT USED TO FUND THE PURCHASE OF THE ASSETS OF CAPSOL-
CERTWOOD UK LTD.) PERMITTED BY THE TERMS OF THIS AGREEMENT, MAY
NOT EXCEED AT ANY TIME IN THE AGGREGATE TEN MILLION FOUR HUNDRED
THOUSAND DOLLARS ($10,400,000);
Section 6.2.6 on page 139 of the Credit Agreement is hereby deleted in
its entirety and the following is substituted in its place:
6.2.6 CAPITAL EXPENDITURES.
Except for Permitted Acquisitions, permitted reinvestments
of Permitted Asset Dispositions and Capital Expenditures made for
the acquisition or construction of Fixed or Capital Assets that
are contemplated to be sold in connection with a sale-leaseback
transaction referred to in clause (A) of the last sentence of
Section 6.2.16, neither the Borrower, Xxxxx UK nor NIM Holdings
will or will permit any Subsidiary to, directly or indirectly,
make any Capital Expenditures in the aggregate for the Borrower,
Xxxxx UK, NIM Holdings and their respective Subsidiaries (taken
as a whole) in an amount which exceeds the "Capital Expenditure
Ceiling" during any fiscal year as set forth below. If in any
given fiscal year, the total Capital Expenditures of the
Borrower, Xxxxx UK, NIM Holdings and its or their Subsidiaries,
taken as a whole, are less than the applicable Capital
Expenditure Ceiling for that fiscal year, the unused portion of
the amount permitted for Capital Expenditures (the "Carry Forward
Amount') may be used to increase the applicable Capital
Expenditure Ceiling for the then next succeeding fiscal year.
The Carry Forward Amount for any given fiscal year cannot be
carried forward for more than one (1) fiscal year.
FISCAL YEAR ENDING CAPITAL EXPENDITURE CEILING
December 31, 2001 $45,000,000
December 31, 2002 $50,000,000
December 31, 2003 and $51,000,000
each fiscal year thereafter
Section 7.1.13 on page 145 of the Credit Agreement is hereby amended
to provide that, except to the extent permitted by Section 6.2.1 of the
Credit Agreement, (1) the Borrower's failure to own and control,
beneficially and of record, one hundred percent (100%) of the issued and
outstanding shares of Xxxxx Italy, (2) the failure of the Borrower and/or
Xxxxx Italy to own and control, beneficially and of record, one hundred
percent (100%) of the issued and outstanding shares of the Italian Holding
Company, and/or (3) the Italian Holding Company's failure to own and
control, beneficially and of record, one hundred percent (100%) of the
issued and outstanding shares of Capsol Italy and Ociesse, shall constitute
an Event of Default under Section 7.1.13 of the Credit Agreement.
Section 9.1 beginning on page 159 of the Credit Agreement is hereby
amended to delete the notice address for the Agent and for Bank of America
and the following is substituted in their place:
AGENT: BANK OF AMERICA, N.A.
BANK OF AMERICA BUSINESS CREDIT
000 X. XXXXXXX XXXXXX
XXXXXXX, XXXXXXXX 00000
ATTENTION: XXXXX X. XXXXXX
BANK OF AMERICA: BANK OF AMERICA, N.A.
BANK OF AMERICA BUSINESS CREDIT
000 X. XXXXXXX XXXXXX
XXXXXXX, XXXXXXXX 00000
ATTENTION: XXXXX X. XXXXXX
The term "this Agreement" as used in the Credit Agreement and the term
"Credit Agreement" as used in any of the Financing Documents shall mean the
Credit Agreement as modified herein unless the context clearly indicates or
dictates a contrary meaning. Any and all such Financing Documents are
deemed hereby amended to reflect the terms and conditions of this
Amendment, including, without limitation, the Deeds of Trust.
The Borrower, the Agent and the Lenders will execute such confirmatory
instruments with respect to the Credit Agreement and/or any of the
Financing Documents as the Agent may reasonably require.
This Amendment may not be amended, changed, modified, altered or
terminated without in each instance the prior written consent of the Agent,
the Lenders and the Borrower. This Amendment shall be construed in
accordance with, and governed by, the laws of the State of Maryland.
The Borrower agrees that neither the execution and delivery of this
Amendment nor any of the terms, provisions, covenants, or agreements
contained in this Amendment shall in any manner release, impair, lessen,
waive, or otherwise adversely affect the joint and several liability and
obligations of the Borrower under the terms of the Credit Agreement.
The Agent and the Lenders acknowledge and agree that to the extent the
provisions of the Credit Agreement are contrary to or inconsistent with the
Italian Credit Agreement, the provisions of the Credit Agreement shall
control and the provisions of the Italian Credit Agreement shall be
interpreted in a manner to be consistent with the Credit Agreement.
This Amendment may be executed in any number of duplicate originals or
counterparts, each of such duplicate originals or counterparts shall be
deemed to be an original and all taken together shall constitute but one
and the same instrument. The parties agree that their respective
signatures may be delivered by facsimile. Any party who chooses to deliver
its signature by facsimile agrees to provide a counterpart of this
Amendment with its inked signature promptly to each other party.
The Lenders and the Agent hereby waive the Defaults and Events of
Default arising solely from the failure of the Borrower, Xxxxx UK and/or
NIM Holdings to comply with the terms of Section 6.2.4(i) and Section
6.2.5(vii). This paragraph shall not be deemed to waive any other
existing or future Events of Default or Defaults.
-
IN WITNESS WHEREOF, the Borrower, NIM Holdings, Xxxxx UK, the Agent and the
Lenders have caused this Amendment to be executed under seal as of the date
first above written.
WITNESS: XXXXX PLASTICS CORPORATION
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: NIM HOLDINGS LIMITED
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: XXXXX PLASTICS UK LIMITED
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS: BANK OF AMERICA, N.A.,
in its capacity as Agent
_________________________ By:/s/ Xxxxx X. Xxxxxx (Seal)
Xxxxx X. Xxxxxx
Vice President
WITNESS: BANK OF AMERICA, N.A.,
in its capacity as a Lender
_________________________ By:/s/ Xxxxx X. Xxxxxx (Seal)
Xxxxx X. Xxxxxx
Vice President
-
WITNESS: FLEET CAPITAL CORPORATION,
in its capacity as a Lender
_________________________ By:/s/ Fleet Capital Corporation (Seal)
Name:
Title:
WITNESS: GENERAL ELECTRIC CAPITAL CORPORATION,
in its capacity as a Lender
_________________________ By:/s/ General Electric Capital Corporation
(Seal)
Name: Title:
WITNESS: XXXXXX FINANCIAL, INC.
in its capacity as a Lender
_________________________ By:/s/ Xxxxxx Financial, Inc. (Seal)
Name: Title:
WITNESS: PNC BANK, NATIONAL ASSOCIATION
in its capacity as a Lender
_________________________ By:/s/ PNC Bank, National Association (Seal)
Name: Title:
WITNESS: LASALLE BUSINESS CREDIT, INC.,
in its capacity as a Lender
_________________________ By:/s/ LaSalle Business Credit, Inc. (Seal)
Name: Title:
-
WITNESS: THE PROVIDENT BANK
in its capacity as a Lender
_________________________ By:/s/ The Provident Bank (Seal)
Name: Title:
ACKNOWLEDGMENT AND CONSENT
BPC HOLDING CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (the "Parent"), XXXXX IOWA CORPORATION, a
corporation organized and existing under the laws of the State of Delaware
("Xxxxx Iowa"), XXXXX TRI-PLAS CORPORATION, a corporation organized and
existing under the laws of the State of Delaware ("Xxxxx Tri-Plas"),
AEROCON, INC., a corporation organized and existing under the laws of the
State of Delaware ("AeroCon"), XXXXX XXXXXXXX CORPORATION, a corporation
organized and existing under the laws of the State of Delaware ("Xxxxx
Xxxxxxxx"), XXXXX PLASTICS DESIGN CORPORATION, a corporation organized and
existing under the laws of the State of Delaware ("Xxxxx Design"),
PACKERWARE CORPORATION, a corporation organized and existing under the laws
of the State of Delaware ("PackerWare"), VENTURE PACKAGING, INC., a
corporation organized and existing under the laws of the State of Delaware
("Venture Holding"), XXXXX PLASTICS TECHNICAL SERVICES, INC., a corporation
organized and existing under the laws of the State of Delaware, formerly
known as Venture Packaging Southeast, Inc. ("Venture Southeast"), VENTURE
PACKAGING MIDWEST, INC., a corporation organized and existing under the
laws of the State of Delaware ("Venture Midwest"), KNIGHT PLASTICS, INC., a
corporation organized and existing under the laws of the State of Delaware
("Knight"), CPI HOLDING CORPORATION, a corporation organized and existing
under the laws of the State of Delaware ("CPI"), CARDINAL PACKAGING, INC.,
a corporation organized and existing under the laws of the State of Ohio
("Cardinal"), POLY-SEAL CORPORATION, a corporation organized and existing
under the laws of the State of Delaware ("Poly-Seal"), and PESCOR, INC., a
corporation organized and existing under the laws of the State of Delaware
("Pescor") (the Parent, Xxxxx Iowa, Xxxxx Tri-Plas, AeroCon, Xxxxx
Xxxxxxxx, Xxxxx Design, PackerWare, Venture Holding, Venture Southeast,
Venture Midwest, Knight, CPI, Cardinal, Poly-Seal, and Pescor are herein
collectively and individually referred to as the "Guarantor") hereby
consent and agree to the foregoing Amendment and hereby acknowledge and
agree that (i) the joint and several obligations and liabilities of the
Guarantors under and in connection with those certain Guaranty of Payment
Agreements and all other Financing Documents executed and delivered in
connection with the Obligations (as amended, restated, supplemented or
otherwise modified, the "Guaranty Documents") shall include and to the
extent necessary are hereby amended to include the increase in any and all
Obligations contemplated by the foregoing Amendment and to include the
Italian Obligations and (ii) neither the execution and delivery of the
foregoing Amendment nor any of the terms, provisions and agreements
contained in the foregoing Amendment shall in any manner impair, lessen,
waive, discharge or otherwise adversely affect the indebtedness,
liabilities, and obligations of the Guarantors under and in connection with
any and all Financing Documents previously, now or hereafter executed and
delivered by either of them, including, without limitation, the Guaranty
Documents.
IN WITNESS WHEREOF, each of the parties hereby have executed and
delivered this Acknowledgment under their respective seals as of the day
and year first written above.
WITNESS OR ATTEST: XXXXX IOWA CORPORATION
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: XXXXX TRI-PLAS CORPORATION
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: XXXXX XXXXXXXX CORPORATION
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: AERO CON, INC.
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: PACKERWARE CORPORATION
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: XXXXX PLASTICS DESIGN CORPORATION
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: BPC HOLDING CORPORATION
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: VENTURE PACKAGING, INC.
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: XXXXX PLASTICS TECHNICAL SERVICES,
INC., f/k/a Venture Packaging Southeast, Inc.
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: VENTURE PACKAGING MIDWEST, INC.
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: KNIGHT PLASTICS, INC.
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: CPI HOLDING CORPORATION
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: CARDINAL PACKAGING, INC.
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: POLY-SEAL CORPORATION
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
WITNESS OR ATTEST: PESCOR, INC.
_________________________ By:/s/ Xxxxx X. Xxxxxxxxxx (SEAL)
Xxxxx X. Xxxxxxxxxx
Executive Vice President
