BERRY PLASTICS CORPORATION BPC HOLDING CORPORATION THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
Exhibit
10.6
XXXXX
PLASTICS CORPORATION
BPC
HOLDING CORPORATION
THIRD
AMENDMENT TO SECOND AMENDED AND RESTATED
THIRD
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND GUARANTY
AGREEMENT
(this
“Amendment”)
is
dated as of October 26, 2005 (the “Amendment
Effective Date”),
among
Xxxxx Plastics Corporation, a Delaware corporation (“Company”),
BPC
Holding Corporation, a Delaware corporation (“Holdings”),
certain subsidiaries of Company as Guarantors, the Lenders party hereto, Xxxxxxx
Xxxxx Credit Partners L.P. (“GSCP”)
as
co-syndication agent, joint lead arranger and joint bookrunner, JPMorgan Chase
Bank, N.A. (“JPMCB”),
as
co-syndication agent, X.X. Xxxxxx Securities Inc. (“JPMorgan”)
as
joint lead arranger and joint bookrunner, Deutsche Bank Trust Company Americas
(together with any of its designated affiliates, “DBTCA”),
as
Administrative Agent, Collateral Agent, an Issuing Bank and Swing Line Lender,
Fleet National Bank (“Fleet
National Bank”),
as an
Issuing Bank and predecessor Swing Line Lender, and The Royal Bank of Scotland
and General Electric Capital Corporation, as Co-Documentation Agents.
RECITALS
WHEREAS,
Company
entered into the Second Amended and Restated Credit and Guaranty Agreement
dated
as of August 9, 2004, as amended by the First Amendment to Second Amended and
Restated Credit and Guaranty Agreement dated as of January 1, 2005 and the
Second Amendment to Second Amended and Restated Credit and Guaranty Agreement
dated as of June 3, 2005 (the Second Amended and Restated Credit and Guaranty
Agreement, together with the First Amendment thereto and the Second Amendment
thereto, the “Existing
Agreement”),
among
Company, Holdings, certain subsidiaries of Company as Guarantors, the Lenders
party thereto, GSCP, JPMCB, and certain agents;
WHEREAS,
Company
has requested that the Lenders amend the Existing Agreement to reduce the
Applicable Margin for the Term Loans (the Existing Agreement, following the
effectiveness of this Amendment, the “Amended
Credit Agreement”);
NOW,
THEREFORE,
in
consideration of the premises made hereunder, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto, intending to be legally bound, hereby agree as
follows:
Section
1. Definitions.
Unless
otherwise expressly defined herein, all capitalized terms used herein and
defined in the Existing Agreement shall be used herein as so
defined.
Section
2. Amendment
to the Existing Agreement: “Applicable Margin” definition.
Subject
to the satisfaction of the conditions set forth in Section 5 hereto, clause
(iii) of the definition of “Applicable Margin” contained in Section 1.1 of the
Existing Agreement is hereby amended and restated in its entirety as
follows:
(iii)
with respect to Term Loans that are (a) Base Rate Loans, an amount equal to
(I)
0.75% per annum, if the Leverage Ratio is equal to or less than 4.50:1.00 or
(II) 1.00% per annum, if the Leverage Ratio is greater than 4.50:1.00 or (b)
Eurodollar Rate Loans, an amount equal to (I) 1.75% per annum, if the Leverage
Ratio is equal to or less than 4.50:1.00 or (II) 2.00% per annum, if the
Leverage Ratio is greater than 4.50:1.00, in each case, with the applicable
Leverage Ratio calculated in accordance with Section 6.8(d)(ii);
and
Section
3. Amendment
to the Existing Agreement: Prepayment and Repricing Fee.
Subject
to the satisfaction of the conditions set forth in Section 5 hereto, the
Existing Agreement is hereby amended and restated by the addition of the
following provision to the Existing Agreement as Section 2.13(g):
Prior
to October 31, 2006, (a) all prepayments of Term Loans with the proceeds of
a
substantially concurrent issuance or incurrence of new loans if (i) the sole
purpose of such issuance or incurrence is to reduce the Applicable Margin
applicable to the Term Loans and (ii) such new loans have an Applicable Margin
(or similar interest rate spread) that is, or upon the satisfaction of certain
conditions could be, lower than the Applicable Margin applicable to the Term
Loans (excluding a refinancing of all the Loans in connection with another
transaction not permitted by this Agreement (as determined prior to giving
effect to any amendment or waiver of this Agreement being adopted in connection
with such transaction)), and (b) any amendments, amendments and restatements,
supplements, waivers or modifications to this Agreement that have the effect
of
lowering, or upon the satisfaction of certain conditions could lower, the
Applicable Margin applicable to the Term Loans from the Applicable Margin,
shall
be accompanied by a fee equal to 1.00% of the aggregate amount of such
prepayments in the case of clause (a) above and a fee equal to 1.00% of all
Term
Loans in the case of clause (b), in each case payable by the Company to the
Lenders.
Section
4. Representations
and Warranties.
To
induce the other parties hereto to enter into this Amendment, each Credit Party
represents and warrants to each of the Lenders, the Issuing Bank and the
Administrative Agent that, as of the Amendment Effective Date:
(a) This
Amendment has been duly authorized, executed and delivered by the Company,
Holdings and the Guarantors and each of this Amendment and the Amended Credit
Agreement constitutes each of the Company’s, Holdings’ and each Guarantor’s
legal, valid and binding obligation, enforceable against it in accordance with
its terms except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors’ rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity).
(b) The
representations and warranties set forth in Section 4 of the Existing Agreement
are, after giving effect to this Amendment, true and correct in all material
respects on and as of the Amendment Effective Date, except where such
representations and warranties expressly relate to an earlier date (in which
case they were true and correct in all material respects as of such earlier
date).
(c) Both
before and after giving effect to this Amendment, no Default or Event of Default
has occurred and is continuing.
(d) The
execution, delivery and performance by the Credit Parties of this Amendment
do
not and will not (a) violate any provision of any law or any governmental rule
or regulation applicable to Holdings or any of its Subsidiaries, any of the
Organizational Documents of Holdings or any of its Subsidiaries, or any order,
judgment or decree of any court or other agency of government binding on
Holdings or any of its Subsidiaries except to the extent such violation,
individually or in the aggregate, could not reasonably be expected to have
a
Material Adverse Effect; (b) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Holdings or any of its Subsidiaries except to the
extent such conflict, breach or default, individually or in the aggregate,
could
not reasonably be expected to have a Material Adverse Effect; (c) result in
or require the creation or imposition of any Lien upon any of the properties
or
assets of Holdings or any of its Subsidiaries except to the extent that the
creation or imposition of any such Liens, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect; or
(d) require any approval of stockholders, members or partners or any
approval or consent of any Person under any Contractual Obligation of Holdings
or any of its Subsidiaries, except for such approvals or consents which will
be
obtained on or before the Amendment Effective Date and disclosed in writing
to
Lenders and except for any such approvals or consents the failure of which
to
obtain, individually or in the aggregate, could not reasonably be expected
to
have a Material Adverse Effect.
Section
5. Conditions
Precedent.
This
Amendment shall become effective upon satisfaction of the following conditions
precedent:
(a)
Each
Lender (other than a Defaulting Lender) with outstanding Term Loans shall have
executed this Amendment, or in the absence of such unanimous consent, the
provisions of Section 2.25 of the Existing Credit Agreement shall have been
complied with in connection with Non-Consenting Lenders;
(b)
Each
of
the representations and warranties in Section 4 above shall be true and correct
in all material respects on and as of the Amendment Effective Date;
(c)
JPMCB
and
JPMorgan shall have received payment in immediately available funds of its
fees
and expenses as set forth in the Fee Letter of even date herewith;
and
(d)
The
Administrative Agent shall have received such other documents, instruments,
certificates, opinions and approvals as it may reasonably request.
Section
6. Survival
of Representations and Warranties.
All
representations and warranties made in this Amendment and the Amended Credit
Agreement shall survive the execution and delivery of this Amendment, and no
investigation by Agents or Lenders shall affect the representations and
warranties or the right of Agents and Lenders to rely upon them. If any
representation or warranty made in this Amendment or the Amended Credit
Agreement is false in any material respect as of the date made or deemed made,
then such shall constitute an Event of Default under the Amended Credit
Agreement.
Section
7. Reference
to Agreement.
Each of
the Credit Documents, including the Amended Credit Agreement, and any and all
other agreements, documents or instruments now or hereafter executed and/or
delivered pursuant to the terms hereof or pursuant to the terms of the Amended
Credit Agreement, are hereby amended so that any reference in such Credit
Documents to the Credit Agreement, whether direct or indirect, shall mean a
reference to the Amended Credit Agreement. This Amendment shall constitute
a
Credit Document under the Amended Credit Agreement.
Section
8. Costs
and Expenses.
Company
shall pay on demand all reasonable costs and expenses of Agents (including
the
reasonable fees, costs and expenses of each counsel to any of the Agents)
incurred in connection with the preparation, execution and delivery of this
Amendment.
Section
9. Governing
Law.
THIS
AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE
STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section
10. Execution.
This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the
same agreement. Delivery of an executed counterpart of a signature page to
this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
Section
11. Limited
Effect.
This
Amendment relates only to the specific matters expressly covered herein, shall
not be considered to be a waiver of any rights or remedies any Lender may have
under the Amended Credit Agreement or under any other Credit Document, and
shall
not be considered to create a course of dealing or to otherwise obligate in
any
respect any Lender to execute similar or other amendments or grant any waivers
under the same or similar or other circumstances in the future.
Section
12. Certain
Waivers.
Each of
Company and Guarantors hereby agrees that neither the Agents nor any Lender
shall be liable under a claim of, and hereby waives any claim against the Agents
and the Lenders based on, lender liability (including, but not limited to,
liability for breach of the implied covenant of good faith and fair dealing,
fraud, negligence, conversion, misrepresentation, duress, control and
interference, infliction of emotional distress and defamation and breach of
fiduciary duties) as a result of this Amendment and any discussions or actions
taken or not taken by the Agents or the Lenders on or before the date hereof
or
the discussions conducted in connection therewith, or any course of action
taken
by the Agents or any Lender in response thereto or arising therefrom;
provided,
that
the foregoing waiver shall not include the waiver of any claims which are based
on the gross negligence or willful misconduct of any Agent or any Lender or
any
of their respective agents. This Section 12 shall survive the execution and
delivery of this Amendment and the termination of the Amended Credit
Agreement.
[signature
pages follow]
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LA\1491765.6||
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by
their respective officers thereunto duly authorized, as of the date first above
written.
XXXXX
PLASTICS CORPORATION
By: /s/
Xxxxx X. Xxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxx
Title:
Executive Vice President and Chief Financial Officer
BPC
HOLDING CORPORATION
By: _/s/
Xxxxx X. Xxxxxxxxxx
Name:
Xxxxx
X. Xxxxxxxxxx
Title:
Executive Vice President and Chief Financial Officer
GUARANTOR
SUBSIDIARIES
AeroCon,
Inc.
Xxxxx
Iowa Corporation
Xxxxx
Plastic Design Corporation
Xxxxx
Plastics Technical Services, Inc.
Xxxxx
Xxxxxxxx Corporation
Cardinal
Packaging, Inc.
CPI
Holding Corporation
Knight
Plastics, Inc.
Xxxxxx
Plastics, Inc.
Packerware
Corporation
Pescor,
Inc.
Poly-Seal
Corporation
Venture
Packaging, Inc.
Venture
Packaging Midwest, Inc.
Xxxxx
Plastics Acquisition Corporation II
Xxxxx
Plastics Acquisition Corporation III
Xxxxx
Plastics Acquisition Corporation V
Xxxxx
Plastics Acquisition Corporation VII
Xxxxx
Plastics Acquisition Corporation VIII
Xxxxx
Plastics Acquisition Corporation IX
Xxxxx
Plastics Acquisition Corporation X
Xxxxx
Plastics Acquisition Corporation XI
Xxxxx
Plastics Acquisition Corporation XII
Xxxxx
Plastics Acquisition Corporation XIII
Xxxx
Group, Inc.
Saffron
Acquisition Corp.
Sun
Coast
Industries, Inc.
By: _/s/
Xxxxx X. Xxxxxxxxxx
Name:
Xxxxx X.
Xxxxxxxxxx
Title:
Executive
Vice President and Chief Financial Officer
Xxxxx
Plastics Acquisition Corporation XIV, LLC
Xxxxx
Plastics Acquisition Corporation XV, LLC
Setco,
LLC
Tubed
Products, LLC
By: _/s/
Xxxxx X. Xxxxxxxxxx
Name:
Xxxxx X.
Xxxxxxxxxx
Title:
Executive
Vice President and Chief Financial Officer
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
Administrative Agent and a Lender
By:
/s/ Xxxxxx Xxxxxxxx
Name:
Xxxxxx Xxxxxxxx
Title:
Vice President
By:
/s/ Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Vice President
XXXXXXX
SACHS CREDIT PARTNERS L.P.,
As
Co-Syndication Agent, Joint Lead Arranger, Joint
Bookrunner
and a Lender
By: /s/
Xxxxxx Xxxxxxxxx
Authorized
Signatory
JPMORGAN
CHASE BANK, N.A.,
As
Co-Syndication Agent and a Lender
By:
/s/ Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Vice President
Third
Amendment to Second Amended and Restated Credit and Guaranty
Agreement
|
XX
XXXXXX
SECURITIES INC.,
As
Joint
Lead Arranger and Joint Bookrunner
By:
/s/ Xxxxx X. Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Vice President
Third
Amendment to Second Amended and Restated Credit and Guaranty
Agreement
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