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EXHIBIT 4.10
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
AND FIRST AMENDMENT TO
AMENDED AND RESTATED SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
FIRST AMENDMENT TO AMENDED AND RESTATED SECURITY AGREEMENT (this "Amendment") is
entered into as of October 26, 1999 among IPC, INC., a Delaware corporation (the
"Borrower"), IVEX PACKAGING CORPORATION, a Delaware corporation ("Holdings"),
each of the Borrower's Domestic Subsidiaries (the Borrower's Domestic
Subsidiaries, together with Holdings, individually a "Guarantor" and
collectively the "Guarantors"), the Lenders party to the Credit Agreement
defined below (the "Lenders"), BANK OF AMERICA, N.A. (formerly NationsBank,
N.A.), as Administrative Agent (the "Administrative Agent") for the Lenders and
BANKERS TRUST COMPANY, as Documentation Agent (the "Documentation Agent") for
the Lenders (the Documentation Agent, together with the Administrative Agent,
collectively the "Agents"). Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings given to them in the Credit
Agreement.
RECITALS
WHEREAS, the Borrower, the Guarantors, the Agents and the Lenders
are parties to that certain Amended and Restated Credit Agreement dated as
of October 2, 1997 (as amended by that certain First Amendment to Amended and
Restated Credit Agreement dated as of October 10, 1997, by that certain Second
Amendment to Amended and Restated Credit Agreement dated as of April 3, 1998, by
that certain Third Amendment to Amended and Restated Credit Agreement, Consent
and Waiver dated as of August 19, 1998 and as may be further amended, modified,
supplemented, extended or restated from time to time, the "Credit Agreement");
WHEREAS, the Borrower, the Guarantors, the Documentation Agent and Bank
of America, N.A. (formerly NationsBank, N.A.), as Collateral Agent (in such
capacity, the "Collateral Agent") are parties to that certain Amended and
Restated Security Agreement, dated as of October 2, 1997 (as may be amended,
modified, supplemented or restated from time to time, the "Security Agreement");
WHEREAS, the Borrower wishes to amend and modify certain terms of the
Credit Agreement and the Security Agreement as more fully set forth below and is
requesting that the Required Lenders consent to such amendments and
modifications; and
WHEREAS, the Agents and the Required Lenders have agreed to amend
certain terms of the Credit Agreement and the Security Agreement on the terms,
and subject to the conditions, more fully set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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Part I
Amendments to Credit Agreement.
1.1. Definitions.
(a) Applicable Percentage.
(i) The pricing table set forth in the definition of
"Applicable Percentage" set forth in Section 1.1 of the Credit
Agreement is amended and restated in its entirety to read as
follows:
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Applicable Applicable
Percentage For Percentage For Applicable Applicable
Pricing Eurodollar Base Rate Loans Applicable Applicable Percentage for Percentage for
Level Leverage Loans that are that are Percentage for Percentage For Eurodollar Base Rate Loans
Ratio Revolving Loans Revolving Loans Letter of Commitment Fees Loans that are that are
or Tranche A or Tranche A Credit Fees Tranche B Term Tranche B Term
Term Loans Term Loans Loans Loans
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I <=3.0 to 1.0 1.250% 0.250% 1.250% 0.1875% 1.75% 0.750%
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II <=3.50 to 1.0 1.375% 0.375% 1.375% 0.2500% 1.75% 0.750%
but > 3.0
to 1.0
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III <=4.0 to 1.0 1.500% 0.500% 1.500% 0.3125% 2.00% 1.00%
but > 3.50
to 1.0
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IV > 4.0 to 1.0 1.625% 0.625% 1.625% 0.3750% 2.00% 1.00%
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(ii) The first sentence following the pricing table
set forth in the definition of "Applicable Percentage" set
forth in Section 1.1 of the Credit Agreement is amended and
restated in its entirety to read as follows:
The Applicable Percentage for Base Rate
Loans, Eurodollar Loans, the Letter of Credit Fees
and the Commitment Fees shall, in each case, be
determined and adjusted quarterly on the date (each a
"Calculation Date") five Business Days after the date
by which the Borrower is required to provide the
officer's certificate in accordance with the
provisions of Section 7.1(d); provided that the
Applicable Percentage for Base Rate Loans, Eurodollar
Loans, the Letter of Credit Fees and the Commitment
Fees from October 26, 1999 until the Calculation Date
occurring immediately after September 30, 1999 shall
be based on Pricing Level IV and, thereafter, the
Pricing Level shall be determined by the then current
Leverage Ratio; and provided further that if the
Borrower fails to
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provide the officer's certificate required by
Section 7.1(d) on or before the most recent
Calculation Date, the Applicable Percentage for Base
Rate Loans, Eurodollar Loans, the Letter of Credit
Fees and the Commitment Fees from such Calculation
Date shall be based on Pricing Level IV until such
time that an appropriate officer's certificate is
provided whereupon the Pricing Level shall be
determined by the then current Leverage Ratio.
(b) EBITDA. The definition of "EBITDA" is amended and restated
in its entirety to read as follows:
"EBITDA" means, for any period, with respect to
Holdings and its Subsidiaries on a consolidated basis, the sum
of (a) Net Income for such period plus (b) an amount which, in
the determination of Net Income for such period has been
deducted for (i) Interest Expense for such period, (ii) total
Federal, state, foreign or other income taxes for such period,
(iii) all depreciation, amortization and other non-cash
charges for such period, all as determined in accordance with
GAAP, (iv) the net loss on the sale or disposition of any real
property, and (v) all extraordinary losses, all as determined
in accordance with GAAP, less (c) an amount which, in the
determination of Net Income for such period has been added for
(i) the net gain on the sale or disposition of any real
property and (ii) all extraordinary gains, all as determined
in accordance with GAAP, plus (d) the charges equal to the
amount of all transaction costs incurred by Holdings and its
Subsidiaries in connection with (A) the initial public
offering of the common stock of Holdings, (B) this Credit
Agreement, (C) the redemption by Holdings of the Holdings
Debentures and (D) the payment by the Borrower of the
Subordinated Notes, plus (e) up to $5,000,0000 of
restructuring charges incurred between October 26, 1999 and
December 31, 2000 and associated with plant closures,
severance expenses incurred in connection with such plant
closures and other corporate restructuring expenses.
1.2. Leverage Ratio. Clauses (iv) and (v) of Section 7.2(a) of the
Credit Agreement are amended and restated in their entirety and new clauses (vi)
and (vii) are added to such Section 7.2(a), each to read as follows:
(iv) From October 1, 1999 to and including
September 30, 2000, 4.25 to 1.0;
(v) From October 1, 2000 to and including
September 30, 2001, 4.00 to 1.0;
(vi) From October 1, 2001 to and including
September 30, 2002, 3.75 to 1.0; and
(vii) From October 1, 2002 and thereafter,
3.25 to 1.0.
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1.3. Indebtedness. Section 8.1 of the Credit Agreement is amended to
delete the word "and" at the end of clause (j) thereof, to add the word "; and"
to the end of clause (k) thereof and to add a new clause (l) thereto to read as
follows:
(l) Indebtedness incurred by one or more Credit Parties, in the
form of a Guaranty Obligation, with respect to Indebtedness permitted
by Section 8.1(j).
Part II
Amendments to Security Agreement
2.1. Grant of Security Interest in Collateral. Section 2 of the
Security Agreement is amended as follows:
(a) Clause (f) thereof is amended to delete the word
"securities," set forth therein; and
(b) clause (i) of the final paragraph of such Section 2
is amended and restated in its entirety to read as follows:
(i) the Collateral shall exclude (A) the Xxxxxx
Property until such time as any Obligor shall obtain a fee
interest in the Xxxxxx Property, (B) any shares of capital
stock or equity interests which constitute Margin Stock owned
by any Obligor and (C) any of the Pledged Collateral (as
defined in the Pledge Agreement) and
Part III
Consent
3.1 Consent to Delivery of Stock Certificates. The Lenders party hereto
agree to accept the delivery of the certificates representing the shares of
stock identified on the updated Schedule 6.15 to the Credit Agreement and
Schedule 2(a) to the Pledge Agreement within sixty (60) days after the date
hereof and hereby waive the Credit Parties' obligation to have delivered such
certificates on or prior to the date hereof.
Part IV
Conditions Precedent
4.1. Conditions Precedent. The effectiveness of this Amendment is
subject to the satisfaction of each of the following conditions:
(a) The Administrative Agent shall have received copies of
this Amendment duly executed by the Credit Parties and the Required
Lenders.
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(b) The Administrative Agent shall have received copies of
resolutions of the Board of Directors of each Credit Party approving
and adopting this Amendment, the transactions contemplated herein and
authorizing execution and delivery hereof, certified by a secretary or
assistant secretary of such Credit Party to be true and correct and in
full force and effect as of the date hereof.
(c) The Administrative Agent shall have received a certificate
of good standing, existence or their equivalent with respect to each
Credit Party certified as of a recent date by the appropriate
Governmental Authority of the state or other jurisdiction of such
Credit Party's formation.
(d) The Administrative Agent shall have received an opinion
from counsel to the Credit Parties, in form and substance satisfactory
to the Administrative Agent, addressed to the Administrative Agent on
behalf of the Lenders and dated as of the date hereof.
(e) Each Lender who executes and delivers this Amendment on or
before 12:00 p.m. Central Standard Time on October 26, 1999 (provided
that this Amendment is approved by the Required Lenders and by the
Credit Parties) shall have received an amendment fee in an amount equal
to .15% of its total Commitment under the Credit Agreement.
(f) Pursuant to Section 7.17 of the Credit Agreement, the
Administrative Agent shall have received an updated Schedule 6.15 and
Schedule 6.22 to the Credit Agreement and an updated Schedule 2(a) to
the Pledge Agreement current to the date hereof.
(g) The Administrative Agent shall have received such other
documents and information as it deems reasonably necessary.
Part V
Miscellaneous
5.1. Miscellaneous.
(a) The term "Credit Agreement" as used in each of the Credit
Documents shall hereafter mean the Credit Agreement as amended by this
Amendment and the term "Security Agreement" as used in each of the
Credit Documents shall hereafter mean the Security Agreement as amended
by this Amendment. Except as herein specifically agreed, the Credit
Agreement and the Security Agreement, and the obligations of the Credit
Parties thereunder and under the other Credit Documents, are hereby
ratified and confirmed and shall remain in full force and effect
according to their terms.
(b) Each of the Borrower, the Guarantors, the Agents and the
Lenders party
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hereto represents and warrants as follows:
(i) It has taken all necessary action to authorize
the execution, delivery and performance of this Amendment.
(ii) This Amendment has been duly executed and
delivered by such party and constitutes such party's legal,
valid and binding obligations, enforceable in accordance with
its terms, except as such enforceability may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or similar laws affecting creditors'
rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(iii) No consent, approval, authorization or order
of, or filing, registration or qualification with, any court
or governmental authority or third party is required in
connection with the execution, delivery or performance by such
party of this Amendment.
(c) Each Credit Party represents and warrants to the Lenders
that (i) the representations and warranties of the Credit Parties set
forth in each of Section 6 of the Credit Agreement and Section 5 of the
Security Agreement are true and correct as of the date hereof, except
those representations and warranties that expressly relate to a
specific prior date (ii) no Default or an Event of Default has occurred
or is continuing and (iii) it has no claims, counterclaims, offsets,
credits or defenses to its obligations under the Credit Documents or to
the extent it has any they are hereby released in consideration of the
Required Lenders entering into this Amendment.
(d) This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same
instrument. Delivery of an executed counterpart of this Amendment by
telecopy shall be effective as an original and shall constitute a
representation that an executed original shall be delivered.
(e) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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Each of the parties hereto has caused a counterpart of this Amendment
to be duly executed and delivered as of the date first above written.
BORROWER: IPC, INC.
a Delaware corporation
By:
Name: Xxxxxxx X. Xxxx
Title: Vice President and Treasurer
GUARANTORS: IVEX PACKAGING CORPORATION
a Delaware corporation
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
CFI INDUSTRIES, INC.
a Delaware corporation
CFI RECYCLING, INC.
a Delaware corporation
PLASTOFILM INDUSTRIES, INC.
a Delaware corporation
TRIO PRODUCTS, INC.
a Delaware corporation
CRYSTAL THERMOPLASTICS, INC.
a Rhode Island corporation
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ULTRA PAC, INC.
a Minnesota corporation
XXXXXX ACQUISITION, INC.
a Delaware corporation
PACTUCO ACQUISITION, INC.,
a Delaware corporation
By:
Name: Xxxxxxx X. Xxxx
Title: Vice President and Treasurer
of each of the above named Guarantors
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
LENDERS:
BANK OF AMERICA, N.A.
(FORMERLY NATIONSBANK, N.A.),
individually in its capacity as a
Lender and in its capacity as Administrative Agent and
Collateral Agent
By:
Name:
Title:
BANKERS TRUST COMPANY,
individually in its capacity as a Lender and in its
capacity as Documentation Agent
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
ABN AMRO BANK N.V.
By:
Name:
Title:
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
U.S. BANK NATIONAL ASSOCIATION
D/B/A AND F/K/A FIRST BANK NATIONAL
ASSOCIATION
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
GENERAL ELECTRIC
CAPITAL CORPORATION
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
BANK OF MONTREAL
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
BHF (USA) CAPITAL CORPORATION
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
FIRST UNION NATIONAL BANK
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
CIBC, INC.
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
CREDIT LYONNAIS CHICAGO BRANCH
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
BANQUE PARIBAS
By:
Name:
Title:
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
IMPERIAL BANK, A CALIFORNIA BANKING
CORPORATION
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
THE BANK OF NEW YORK
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
DLJ CAPITAL FUNDING, INC.
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By:
Name:
Title:
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
BANK ONE, NA (MAIN OFFICE CHICAGO)
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
THE FUJI BANK, LIMITED
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
XXXXXX BANK LTD
By:
Name:
Title:
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
THE MITSUBISHI TRUST & BANKING
CORPORATION CHICAGO BRANCH
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx American Capital Management Inc.,
as Collateral Manager
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
THE SUMITOMO BANK, LTD.
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
BALANCED HIGH-YIELD FUND I, LTD.
By: BHF-Bank Aktiensgesellschaft acting through
its New York Branch, as attorney in fact
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
ALLSTATE INSURANCE COMPANY
By:
Name:
By: _________________________________
Name: _______________________________
Its Authorized Signatories
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
KZH-SOLEIL CORPORATION
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By:
Name:
Title:
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
PARIBAS CAPITAL FUNDING, LLC
By:
Name:
Title:
