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EXHIBIT 1
AMENDMENT No. 5 dated as of September 12, 2000 (this
"Amendment"), to the Credit Agreement, dated as of March 20, 1996, as amended
(the "Credit Agreement"), among Riverwood International Corporation (as
successor to RIC Holding, Inc.) (the "Parent Borrower"), the Foreign Subsidiary
Borrowers (as therein defined), the several banks and other financial
institutions parties to the Credit Agreement (the "Lenders") and The Chase
Manhattan Bank, as administrative agent for the Lenders thereunder (in such
capacity, the "Administrative Agent"). Unless otherwise defined herein,
capitalized terms used herein shall have the meanings attributed to them in the
Credit Agreement.
WITNESSETH:
WHEREAS, the Parent Borrower has requested that the
Administrative Agent and the Lenders agree to (a) amend or waive certain
provisions in subsections 1.1 and 4.4(f) of the Credit Agreement in connection
with the Igaras Sale (as hereinafter defined) and the application of the
proceeds of the Igaras Sale, (b) delete the excess cash flow repayment
requirement under subsection 4.4(c) of the Credit Agreement, (c) amend certain
financial covenants contained in subsection 8.1(c) of the Credit Agreement and
(d) amend each of the Guarantees and certain of the Security Documents to
include the obligations of the Parent Borrower and its Subsidiaries to any
Lender or any affiliate of any Lender with respect to its provision of cash
management services to the Parent Borrower and/or any of its Subsidiaries as a
Secured Obligation and any such affiliate of a Lender as a Secured Party as such
terms are defined in the respective Security Documents; and
WHEREAS, the Administrative Agent and the Lenders parties
hereto are willing to agree to the requested amendments and waiver on the terms
and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties agree as follows:
A. Amendments of Subsection 1.1 (Defined Terms). (i)
Subsection 1.1 of the Credit Agreement is hereby amended by adding the following
new definitions, to appear in alphabetical order:
"Igaras Sale Agreement": that certain Stock Purchase
Agreement, dated as of July 22, 2000, among the Parent Borrower,
Saragy, S.A., a Luxembourg corporation and Industrias Klabin de Papel e
Celulose S.A., as amended from time to time.
"Igaras Sale": the sale by the Parent Borrower of its interest
in Igaras Papeis e Embalagens S.A., a company organized and existing
under the laws of Brazil, or of its
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interest in any special purpose entity holding such interest, pursuant
to the Igaras Sale Agreement.
(ii) Subsection 1.1 of the Credit Agreement is hereby amended
by deleting the definition "Reinvested Amount" in its entirety and substituting
thereof the following:
"Reinvested Amount": with respect to any Asset Sale permitted
by subsection 8.6(j), that portion of the Net Cash Proceeds thereof
(which portion shall not exceed, (A) with respect to any Asset Sale
other than the Igaras Sale, $50,000,000 minus the aggregate Reinvested
Amounts with respect to all such Asset Sales on or after the Effective
Date and (B) with respect to the Igaras Sale, up to $50,000,000) as
shall, according to a certificate of a Responsible Officer of RIC
Holding delivered to the Administrative Agent within 30 days of such
Asset Sale, be reinvested in the business of RIC Holding and its
Subsidiaries in a manner consistent with the requirements of subsection
8.17(a) and the other provisions hereof (including, without limitation,
through the payment of amounts under the Machinery Credit Agreement)
within 180 days of the receipt of such Net Cash Proceeds with respect
to any such Asset Sale other than the Igaras Sale and 365 days of the
receipt of such Net Cash Proceeds with respect to the Igaras Sale or,
if such reinvestment is in a project authorized by the board of
directors of RIC Holding that will take longer than such 180 days (in
the case of such Asset Sales other than the Igaras Sale) to complete,
the period of time necessary to complete such project; provided that
(i) if any such certificate of a Responsible Officer is not delivered
to the Administrative Agent on the date of such Asset Sale, any Net
Cash Proceeds of such Asset Sale shall be immediately (x) deposited in
a cash collateral account established at Chemical to be held as
collateral in favor of the Administrative Agent for the benefit of the
Lenders on terms reasonably satisfactory to the Administrative Agent
and shall remain on deposit in such cash collateral account until such
certificate of a Responsible Officer is delivered to the Administrative
Agent or (y) used to make a prepayment of the Revolving Credit Loans in
accordance with subsection 4.4(a); provided that, notwithstanding
anything in this Agreement to the contrary, none of the Borrowers may
request any Extension of Credit under the Revolving Credit Commitments
that would reduce the aggregate amount of the Available Revolving
Credit Commitments to an amount that is less than the amount of any
such prepayment until such certificate of a Responsible Officer is
delivered to the Administrative Agent and (ii) any Net Cash Proceeds
not so reinvested by the date required pursuant to the terms of this
definition shall be utilized on such day to prepay the Loans pursuant
to subsection 4.4(b).
B. Waiver of Section 4.4(f) (Optional and Mandatory
Prepayments). The parties hereto agree that with respect to the Net Cash
Proceeds from the Igaras Sale that are not Reinvested Amounts (which shall not
be less than $145,000,000) (the "Igaras Proceeds"), subsection 4.4(f) of the
Credit Agreement is waived to the extent necessary to permit the application of
the Igaras Proceeds, (x) first, to prepay all installments of principal under
the Term Loans scheduled to be made up to and including August 31, 2001 and, (y)
second, upon prepayment of such installments in full, to prepay a portion of the
installment of principal under
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the Tranche A Term Loans scheduled to be made on February 28, 2002 in an amount
equal to the Igaras Proceeds minus the amount prepaid under clause (x) of this
Section B.
C. Amendment of Section 4.4(c) (Optional and Mandatory
Prepayments). Subsection 4.4(c) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting in place thereof the following:
"(c) Deleted."
D. Amendment of Subsection 8.1(c) (Maintenance of Minimum
EBITDA). Subsection 8.1(c) of the Credit Agreement is hereby amended by deleting
it in its entirety and substituting in place thereof the following:
"(c) Maintenance of Minimum EBITDA. Permit EBITDA, for any
period of four consecutive fiscal quarters of Holding ending during any
test period set forth below (except that EBITDA for the test period
ending December 31, 1996 shall be computed based on the results of the
last three consecutive fiscal quarters ending on such date multiplied
by 4/3), to be less than the amount set forth opposite such test period
below:
Test Period Amount
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December 31, 1996 - December 30, 1997 $130,000,000
December 31, 1997 - December 30, 1998 $140,000,000
December 31, 1998 - December 30, 1999 $200,000,000
December 31, 1999 - December 30, 2000 $265,000,000
December 31, 2000 - December 30, 2001 $290,000,000
December 31, 2001 - December 30, 2002 $300,000,000
December 31, 2002 - December 30, 2003 $315,000,000
Thereafter $340,000,000"
E. Amendment of Schedule 8.6(j) (Permitted Asset Sales).
Schedule 8.6(j) of the Credit Agreement is hereby amended by inserting at the
end of such Schedule the following:
"7. The Igaras Sale."
F. Amendment of Subsection 1(a) of the Holding Guarantee
(Defined Terms). Subsection 1(a) of the Holding Guarantee is hereby amended by
deleting the definition of "Obligations" in its entirety and substituting in
place thereof the following:
"Obligations": the collective reference to all obligations and
liabilities of each of the Borrowers in respect of the unpaid principal
of and interest on (including, without limitation, interest accruing
after the maturity of the Loans and Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to any of the Borrowers, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations and all other obligations
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and liabilities of each of the Borrowers to the Secured Parties,
whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, the Credit Agreements, the Loans, the
Letters of Credit, the other Loan Documents, any Interest Rate
Protection Agreement or Permitted Hedging Arrangement entered into with
any Lender or any banking affiliate of any Lender, any Guarantee
Obligations of RIC Holding or any of its Subsidiaries referred to in
subsection 8.4(b) of the Senior Secured Credit Agreement as to which
any Lender is a beneficiary, the provision of cash management services
by any Lender or an affiliate thereof to the Parent Borrower and/or any
of its Subsidiaries, or any other document made, delivered or given in
connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, amounts payable in connection with
a termination of any transaction entered into pursuant to an Interest
Rate Protection Agreement or Permitted Hedging Arrangement entered into
with any Lender or any banking affiliate of any Lender, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all reasonable fees and disbursements of counsel to the
Administrative Agent or any other Secured Party that are required to be
paid by any of the Borrowers pursuant to the terms of any of the Credit
Agreements or any other Loan Document).
G. Amendment of Subsection 1(a) of the RIC Holding Guarantee
(Defined Terms). Subsection 1(a) of the RIC Holding Guarantee is hereby amended
by deleting the definition of "Obligations" in its entirety and substituting in
place thereof the following:
"Obligations": the collective reference to all obligations and
liabilities of each of the Borrowers in respect of the unpaid principal
of and interest on (including, without limitation, interest accruing
after the maturity of the Loans and Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to any of the Borrowers, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations and all other obligations and
liabilities of each of the Borrowers to the Secured Parties, whether
direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or
in connection with, the Credit Agreements, the Loans, the Letters of
Credit, the other Loan Documents, any Interest Rate Protection
Agreement or Permitted Hedging Arrangement entered into with any Lender
or any banking affiliate of any Lender, any Guarantee Obligations of
the Guarantor or any of its Subsidiaries referred to in subsection
8.4(b) of the Senior Secured Credit Agreement as to which any Lender is
a beneficiary, the provision of cash management services by any Lender
or an affiliate thereof to the Parent Borrower and/or any of its
Subsidiaries, or any other document made, delivered or given in
connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, amounts payable in connection with
a termination of any transaction entered into pursuant to an Interest
Rate Protection Agreement or Permitted Hedging Arrangement entered into
with any Lender or any banking affiliate of any Lender, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all reasonable fees and disbursements of counsel to the
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Administrative Agent or any other Secured Party that are required to be
paid by any of the Borrowers pursuant to the terms of any of the Credit
Agreements or any other Loan Document).
H. Amendment of Subsection 1(a) of the Subsidiaries' Guarantee
(Defined Terms). Subsection 1(a) of the Subsidiaries' Guarantee is hereby
amended by deleting the definition of "Obligations" in its entirety and
substituting in place thereof the following:
"Obligations": the collective reference to all obligations and
liabilities of each of the Borrowers in respect of the unpaid principal
of and interest on (including, without limitation, interest accruing
after the maturity of the Loans and Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to any of the Borrowers, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations and all other obligations and
liabilities of each of the Borrowers to the Secured Parties, whether
direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or
in connection with, the Credit Agreements, the Loans, the Letters of
Credit, the other Loan Documents, any Interest Rate Protection
Agreement or Permitted Hedging Arrangement entered into with any Lender
or any banking affiliate of any Lender, any Guarantee Obligations of
RIC Holding or any of its Subsidiaries referred to in subsection 8.4(b)
of the Senior Secured Credit Agreement as to which any Lender is a
beneficiary, the provision of cash management services by any Lender or
an affiliate thereof to the Parent Borrower and/or any of its
Subsidiaries, or any other document made, delivered or given in
connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, amounts payable in connection with
a termination of any transaction entered into pursuant to an Interest
Rate Protection Agreement or Permitted Hedging Arrangement entered into
with any Lender or any banking affiliate of any Lender, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all reasonable fees and disbursements of counsel to the
Administrative Agent or any other Secured Party that are required to be
paid by any of the Borrowers pursuant to the terms of any of the Credit
Agreements or any other Loan Document).
I. Amendment to Definition of "Secured Parties" in certain
Security Documents. The definitions of "Secured Parties" in the Security
Agreements, the Riverwood Patent and Trademark Security Agreement, the Stock
Pledge Agreements, the Limited Liability Pledge Agreement, the Note Pledge
Agreement and incorporated by reference in the Assignment are hereby amended by
deleting the definition of "Secured Parties" in its entirety and substituting in
place thereof the following:
"Secured Parties": the collective reference to the
Administrative Agent (including, without limitation, in its capacities
as Senior Secured Credit Agreement Administrative Agent and Machinery
Credit Agreement Administrative Agent), the Lenders (including, without
limitation, the Issuing Lender and the Swing Line Lender),
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any banking affiliate of any Lender which enters into an Interest Rate
Protection Agreement or Permitted Hedging Arrangement with RIC Holding
or any of its Subsidiaries, any affiliate of any Lender which provides
cash management services to the Parent Borrower and/or any of its
Subsidiaries, and their respective successors and assigns.
J. Conditions to Effectiveness. (i) The effectiveness of this
Amendment (other than Section B hereof) shall be subject to the satisfaction of
the following conditions precedent:
1 Amendment. The Administrative Agent shall have received
counterparts of this Amendment executed by the Parent Borrower (and,
with respect to Sections F, G, H and I only, the relevant Loan Party
party to the respective Security Document referred to therein) and
consented to by the Required Lenders.
2 Igaras Sale. The Igaras Sale shall have been consummated in
accordance with the Igaras Sale Agreement.
3 Machinery Credit Agreement. All outstanding Machinery Credit
Agreement Revolving Credit Loans shall have been repaid pursuant to
subsection 3.4(a) of the Machinery Credit Agreement and the Machinery
Credit Agreement Revolving Credit Commitments shall have been
terminated pursuant to subsection 2.4 thereof.
4 No Default. No Default or Event of Default shall have
occurred and be continuing on the Amendment Effective Date (as
hereinafter defined) or after giving effect to this Amendment.
5 Reaffirmation of Guarantees. By executing a copy of this
Amendment, each of Holding and the Domestic Subsidiaries reaffirm the
Holding Guarantee and the Subsidiaries Guarantee, each as amended
according to the terms hereunder.
(ii) The effectiveness of Section B hereof shall be subject to
the satisfaction of (A) the conditions precedent specified in clause (1) of this
Section J and (B) the condition precedent that the Administrative Agent shall
have received the consent to Section B of (x) Tranche B Term Loan Lenders the
Tranche B Loan Percentages of which aggregate at least 51% and (y) Tranche C
Term Loan Lenders the Tranche C Term Loan Percentages of which aggregate at
least 51%.
K. Representations and Warranties. In order to induce the
Administrative Agent and the Lenders to enter into this Amendment, the Parent
Borrower hereby represents and warrants to the Administrative Agent and the
Lenders that the representations and warranties of the Borrowers contained in
the Loan Documents are true and correct in all material respects on and as of
the Amendment Effective Date (after giving effect hereto) as if made on and as
of the Amendment Effective Date (except where such representations and
warranties expressly relate to an earlier date in which case such
representations and warranties were true and correct in all material respects as
of such earlier date); provided that all references to the "Credit Agreement"
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in any Loan Document shall be and are deemed to mean the Credit Agreement as
amended hereby.
L. Miscellaneous.
1 Effective Date. As used in this Amendment the term
"Amendment Effective Date" shall mean the date on which all conditions precedent
set forth in Section J hereof shall have been satisfied.
2 Applicable Law and Jurisdiction. This Amendment has been
executed and delivered in New York, New York, and the rights and obligations of
the parties hereto shall be governed by, and shall be construed and enforced in
accordance with, the laws of the State of New York.
3 Counterparts. This Amendment may be executed by the parties
hereto in any number of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
4 Fees and Expenses. The Parent Borrower agrees to pay and
reimburse the Administrative Agent for all of its reasonable out-of-pocket costs
and expenses in connection with the negotiation, preparation, execution and
delivery of this Amendment, including without limitation the reasonable fees and
expenses of Xxxxxxx Xxxxxxx & Xxxxxxxx.
5 Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the Parent Borrower and its successors and assigns,
and upon the Administrative Agent and the Lenders and their successors and
assigns. The execution and delivery of this Amendment by any Lender prior to the
Amendment Effective Date shall be binding upon its successors and assigns and
shall be effective as to any loans or commitments assigned to it after such
execution and delivery.
6 Continuing Effect. Except as expressly amended hereby, the
Credit Agreement as amended by this Amendment shall continue to be and shall
remain in full force and effect in accordance with its terms. This Amendment
shall not constitute an amendment or waiver of any provision of the Credit
Agreement not expressly referred to herein and shall not be construed as an
amendment, waiver or consent to any action on the part of the Borrowers that
would require an amendment, waiver or consent of the Administrative Agent or the
Lenders except as expressly stated herein. Any reference to the "Credit
Agreement" in the Loan Documents or any related documents shall be deemed to be
a reference to the Credit Agreement as amended by this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to
be executed and delivered by their respective duly authorized officers as of the
day and year first above written.
RIVERWOOD INTERNATIONAL CORPORATION
By:
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Title:
RIVERWOOD HOLDING, INC.
(solely for the purposes of Sections F, I and J.5)
By:
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Title:
RIC HOLDING, INC.
(solely for the purposes of Sections G, I and J.5)
By:
--------------------------------------------------
Title:
XXXXXX SOUTH COMPANY
(solely for the purposes of Sections H, I and J.5)
By:
--------------------------------------------------
Title:
RIVERWOOD INTERNATIONAL
ENTERPRISES, INC.
(solely for the purposes of Sections H, I and J.5)
By:
--------------------------------------------------
Title:
RIVERWOOD INTERNATIONAL MACHINERY, INC.
(solely for the purposes of Sections H, I and J.5)
By:
--------------------------------------------------
Title:
RIVERWOOD SWEDISH INVESTMENTS, INC.
(solely for the purposes of Sections H, I and J.5)
By:
--------------------------------------------------
Title:
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THE CHASE MANHATTAN BANK
By:
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Title: Managing Director
AG Capital Funding Partners, L.P.
By:
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Title:
AMMC CDO I, Limited
By:
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Title:
Archimedes Funding III, Ltd.
By:
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Title:
Archimedes Funding II, Ltd.
By:
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Title:
Avalon Capital Ltd. II
By:
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Title:
Avalon Capital Ltd.
By:
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Title:
10
Banco Espirito
By:
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Title:
Bank Bumiputra Malaysia Berhad
By:
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Title:
Bank of Nova Scotia
By:
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Title:
Bank of Tokyo Mitsubishi, Ltd.
By:
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Title:
Bank of America
By:
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Title:
Bank Austria Creditanstalt Corp Fin
By:
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Title:
Banque Worms Capital Corporation
By:
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Title:
Bear Xxxxxxx Investment Products, Inc.
By:
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Title:
11
Black Diamond CLO 2000-1 LTD
By:
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Title:
Captiva II Finance Ltd.
By:
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Title:
Ceres Finance, Ltd.
By:
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Title:
Chase Manhattan Bank
By:
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Title:
Christiania Bank Ogkreditkasse
By:
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Title:
Commercial Loan Funding Trust I
By:
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Title:
Credit Industriel et Commercial
By:
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Title:
CypressTree Investment Fund, LLC
By:
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Title:
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CypressTree Investment Management Co
By:
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Title:
CypressTree Investment Partners I
By:
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Title:
CypressTree Investment Partners II
By:
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Title:
CypressTree Sr. Floating Rate Fund
By:
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Title:
ELF Funding Trust I
By:
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Title:
Equitable Life Assurance
By:
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Title:
First Allmerica Financial Life Ins.
By:
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Title:
First Dominion Funding II
By:
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Title:
00
Xxxxx Xxxxx Xxxxxxxx Xxxx X.X.
By:
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Title:
Fleet Business Credit Corporation
By:
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Title:
Foothill Income Trust, LP
By:
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Title:
General Electric Capital Corp
By:
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Title:
Hibernia National Bank
By:
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Title:
HSBC Americas, Inc.
By:
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Title:
Indosuez Capital Funding IIA, Ltd.
By:
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Title:
ING Baring (US) Capital Corp. LLC
By:
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Title:
14
Xxxxxx Floating Rate Fund
By:
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Title:
KZH CypressTree-1 LLC
By:
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Title:
KZH Pamco LLC
By:
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Title:
KZH Langdale LLC
By:
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Title:
KZH CypressTree-1 LLC
By:
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Title:
KZH ING-3 LLC
By:
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Title:
KZH Pondview LLC
By:
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Title:
KZH Shoshone LLC
By:
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Title:
15
KZH CNC LLC
By:
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Title:
KZH Riverside LLC
By:
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Title:
KZH Waterside LLC
By:
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Title:
KZH ING-2 LLC
By:
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Title:
Xxxxxx Commercial Paper Inc.
By:
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Title:
Longhorn CDO (Cayman) Ltd.
By:
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Title:
Maplewood (Cayman) Limited
By:
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Title:
16
Massachusetts Mutual Life Insurance
By:
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Title:
Medical Liability Mutual Insurance
By:
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Title:
Xxxxxxx Xxxxx Xx. Floating Rate Fund
By:
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Title:
Xxxxxxx Xxxxx Prime Rate Portfolio
By:
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Title:
Xxxxxxx Xxxxx Debt Strategies Port.
By:
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Title:
ML CBO IV (Cayman) Ltd.
By:
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Title:
ML CLO XII Pilgrim America (Cayman)
By:
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Title:
ML Senior Floating Rate Fund II, Inc
By:
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Title:
17
ML CLO XIX Sterling (Cayman) Ltd.
By:
---------------------------------
Title:
ML Income Strategies Portfolio
By:
---------------------------------
Title:
Muirfield Trading LLC
By:
---------------------------------
Title:
National City Bank
By:
---------------------------------
Title:
National Westminster Bank, PLC
By:
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Title:
Nemean CLO, Ltd.
By:
---------------------------------
Title:
North American Sr. Floating Rate Fund
By:
---------------------------------
Title:
Northwoods Capital, Limited
By:
---------------------------------
Title:
00
Xxx Xxxx Securities Fund, L.P.
By:
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Title:
Oak Hill Securities Funds II L.P.
By:
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Title:
Olympic Funding Trust Series 1999-1
By:
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Title:
XXX Capital Funding LP
By:
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Title:
PamCo Cayman Ltd.
By:
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Title:
Pilgrim Prime Rate Trust
By:
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Title:
Pilgrim CLO 1999-1 Ltd.
By:
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Title:
PNC Bank, N.A.
By:
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Title:
19
Xxxxxx High Yield Trust
By:
---------------------------------
Title:
Senior Debt Portfolio
By:
---------------------------------
Title:
Senior High Income Portfolio, Inc
By:
---------------------------------
Title:
Senior Income Trust
By:
---------------------------------
Title:
SEQUILS - Pilgrim I, Ltd.
By:
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Title:
SEQUILS ING I (HBDGM), Ltd.
By:
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Title:
Societe Generale
By:
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Title:
SPS High Yield Loan Trading
By:
---------------------------------
Title:
20
Xxxxxxxxx CLO, Ltd.
By:
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Title:
Xxxxxxxxx\RMF Transatlantic CDO, Ltd
By:
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Title:
Strata Funding Limited
By:
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Title:
Swaps CSLT
By:
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Title:
Toronto Dominion (Texas), Inc.
By:
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Title:
Xxx Xxxxxx Senior Income Trust
By:
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Title:
Xxx Xxxxxx CLO I, Limited
By:
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Title:
Xxx Xxxxxx CLO II. Limited
By:
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Title:
21
Winged Foot Funding Trust
By:
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Title:
Zermatt CBO Limited
By:
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Title:
