CONFORMED COPY
THIRD AMENDMENT
TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
October 2, 2001, is by and among Xxxxxxx Container Corporation, a Delaware
corporation (the "Borrower"), the financial institutions party to the Credit
Agreement (as defined below), in their capacities as lenders (collectively, the
"Lenders"), and Bankers Trust Company, as agent (the "Agent") for the Lenders.
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Agent are parties to that
certain Credit Agreement dated as of June 19, 1998 (as heretofore and hereafter
amended, restated, supplemented or otherwise modified and in effect from time to
time, the "Credit Agreement"), pursuant to which the Lenders have provided to
the Borrower credit facilities and other financial accommodations; and
WHEREAS, the Borrower has requested that the Agent and the Lenders amend
the Credit Agreement in certain respects as set forth herein and the Lenders and
the Agent are agreeable to the same, subject to the terms and conditions hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, and other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Defined Terms. Terms capitalized herein and not otherwise defined herein
are used with the meanings ascribed to such terms in the Credit Agreement.
2. Amendments to Credit Agreement. The Credit Agreement is, as of the
Effective Date (as defined below), hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is amended by inserting the
following new sentence at the end of the definition of "Consolidated EBITDA"
appearing in such Section:
"For purposes of computing Consolidated Net Income or Consolidated Net
Loss in determining Consolidated EBITDA of Borrower and its Subsidiaries,
there shall be excluded from the computation thereof, without duplication
and to the extent not otherwise excluded from the computation thereof,
non-cash charges from the write-down of assets in Borrower's retail bag
operations and three small paper machines at Borrower's Bogalusa, Louisiana
mill not to exceed $21,000,000 in the aggregate in the fourth Fiscal
Quarter of Fiscal Year 2001."
3. Borrower's Representations and Warranties. In order to induce the Agent
and the Lenders to enter into this Amendment, the Borrower hereby represents and
warrants to the Agent and the Lenders, in each case after giving effect to this
Amendment, as follows:
(a) The Borrower has the right, power and capacity and has been duly
authorized and empowered by all requisite corporate and shareholder action to
enter into, execute, deliver and perform this Amendment and all agreements,
documents and instruments executed and delivered pursuant to this Amendment.
(b) This Amendment constitutes the Borrower's legal, valid and binding
obligation, enforceable against it, except as enforcement thereof may be subject
to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and general
principles of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law or otherwise).
(c) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct in all material
respects at and as of the Effective Date as though made on and as of the
Effective Date (except to the extent specifically made with regard to a
particular date, in which case such representation and warranty is true and
correct in all material respects as of such earlier date).
(d) The Borrower's execution, delivery and performance of this
Amendment do not and will not violate its Certificate of Incorporation or
By-laws, any law, rule, regulation, order, writ, judgment, decree or award
applicable to it or any contractual provision to which it is a party or to which
it or any of its property is subject.
(e) No authorization or approval or other action by, and no notice to
or filing or registration with, any governmental authority or regulatory body
(other than those which have been obtained and are in force and effect) is
required in connection with its execution, delivery and performance of this
Amendment and all agreements, documents and instruments executed and delivered
pursuant to this Amendment.
(f) No Event of Default or Unmatured Event of Default exists under the
Credit Agreement or would exist after giving effect to the transactions
contemplated by this Amendment.
4. Conditions to Effectiveness of Amendment. This Amendment shall become
effective on the date (the "Effective Date") each of the following conditions
precedent is satisfied:
(a) Execution and Delivery. The Borrower, the Agent, and the Required
Lenders shall have executed and delivered this Amendment.
(b) No Defaults. No Unmatured Event of Default or Event of Default
under the Credit Agreement (as amended hereby) shall have occurred and be
continuing.
(c) Representations and Warranties. After giving effect to the
amendments and consents contemplated by this Amendment, the representations and
warranties of the Borrower contained in this Amendment, the Credit Agreement and
the other Loan Documents shall be true and correct in all material respects as
of the Effective Date, with the same effect as though made on such date, except
to the extent that any such representation or warranty relates to an earlier
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date, in which case such representation or warranty shall be true and correct in
all material respects as of such earlier date.
(d) Officer's Certificate. The Borrower shall have duly executed and
delivered to the Agent a certificate of a Responsible Officer of the Borrower
dated as of the Effective Date in the form of Exhibit A attached hereto.
(e) Other Matters. The Agent shall have received such other
instruments and documents as the Agent or the Required Lenders may reasonably
request in connection with the execution of this Amendment, and all such
instruments and documents shall be reasonably satisfactory in form and substance
to the Agent.
5. Miscellaneous. The parties hereto hereby further agree as follows:
(a) Costs, Expenses and Taxes. The Borrower hereby agrees to pay all
reasonable fees, costs and expenses of the Agent incurred in connection with the
negotiation, preparation and execution of this Amendment and the transactions
contemplated hereby, including, without limitation, the reasonable fees and
expenses of Winston & Xxxxxx, counsel to the Agent.
(b) Counterparts. This Amendment may be executed in one or more
counterparts, each of which, when executed and delivered, shall be deemed to be
an original and all of which counterparts, taken together, shall constitute but
one and the same document with the same force and effect as if the signatures of
all of the parties were on a single counterpart, and it shall not be necessary
in making proof of this Amendment to produce more than one (1) such counterpart.
(c) Headings. Headings used in this Amendment are for convenience of
reference only and shall not affect the construction of this Amendment.
(d) Integration. This Amendment and the Credit Agreement (as amended
hereby) constitute the entire agreement among the parties hereto with respect to
the subject matter hereof.
(e) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS AND DECISIONS OF THE STATE OF
NEW YORK (WITHOUT REFERENCE TO CONFLICT OF LAWS PRINCIPLES).
(f) Binding Effect. This Amendment shall be binding upon and inure to
the benefit of and be enforceable by the Borrower, the Agent and the Lenders and
their respective successors and assigns. Except as expressly set forth to the
contrary herein, this Amendment shall not be construed so as to confer any right
or benefit upon any Person other than the Borrower, the Agent and the Lenders
and their respective successors and permitted assigns.
(g) Amendment; Waiver. The parties hereto agree and acknowledge that
nothing contained in this Amendment in any manner or respect limits or
terminates any of the provisions of the Credit Agreement or any of the other
Loan Documents other than as expressly set forth herein and further agree and
acknowledge that the Credit Agreement (as amended hereby) and each of the other
Loan Documents remain and continue in full force and effect and are hereby
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ratified and confirmed. Except to the extent expressly set forth herein, the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any rights, power or remedy of the Lenders or the Agent under the
Credit Agreement or any other Loan Document, nor constitute a waiver of any
provision of the Credit Agreement or any other Loan Document. No delay on the
part of any Lender or the Agent in exercising any of their respective rights,
remedies, powers and privileges under the Credit Agreement or any of the Loan
Documents or partial or single exercise thereof, shall constitute a waiver
thereof. None of the terms and conditions of this Amendment may be changed,
waived, modified or varied in any manner, whatsoever, except in accordance with
Section 12.1 of the Credit Agreement.
[signature pages follow]
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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 written above.
XXXXXXX CONTAINER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Assistant Treasurer
BANKERS TRUST COMPANY, in its individual
capacity and as Agent
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President
XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
BEAR XXXXXXX CORPORATE LENDING INC.
By:
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Name:
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Title:
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XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
BANK OF AMERICA, N.A.
By:
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Name:
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Title:
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XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
FLEET NATIONAL BANK, N.A.
By:
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Name:
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Title:
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XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
BLACK DIAMOND CLO 1998-1 LTD.
By: Black Diamond Capital Management, L.L.C.,
as Collateral Manager
By:
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Name:
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Title:
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XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
BLACK DIAMOND CLO 2000-1 LTD.
By: Black Diamond Capital Management, L.L.C.,
as Collateral Manager
By:
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Name:
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Title:
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XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
XXXXXX BANK PLC
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management as Investment
Advisor
By: /s/ Xxxxx X. Page
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Name: Xxxxx X. Page
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investment Advisor
By: /s/ Xxxxx X. Page
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Name: Xxxxx X. Page
Title: Vice President
XXXXXXX & CO
By: Boston Management and Research as
Investment Advisor
By: /s/ Xxxxx X. Page
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Name: Xxxxx X. Page
Title: Vice President
XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
FIDELITY ADVISOR SERIES II: FIDELITY ADVISOR
FLOATING RATE HIGH INCOME
By:
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Name:
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Title:
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XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
FLEET BUSINESS CREDIT CORPORATION
By:
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Name:
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Title:
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XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
FOOTHILL CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President
FOOTHILL INCOME TRUST II LP
By: FIT II GP LLC, its General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Managing Member
XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
FLEET NATIONAL BANK,
as Trust Administrator for
LONG LANE MASTER TRUST IV
By:
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Name:
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Title:
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XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar II, L.P.,
its General Partner
By: Oak Hill Securities MGP, Inc., its
General Partner
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II, L.P.,
its General Partner
By: Oak Hill Securities MGP, Inc., its
General Partner
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
PPM AMERICA SPECIAL INVESTMENTS FUND, LP
By:
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Name:
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Title:
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XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
SALOMON BROTHERS HOLDING COMPANY
INCORPORATED
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Vice President
XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
XXXXX XXX & FARNHAM INCORPORATED,
as agent for Keyport Life Insurance
Company
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President &
Portfolio Manager
XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Xxxxx Xxx & Xxxxxxx Incorporated,
as Advisor to the Xxxxx Xxx Floating
Rate Limited Liability Company
SRF TRADING, INC.
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Title: Assistant Vice President
LIBERTY-XXXXX XXX ADVISOR FLOATING RATE
ADVANTAGE FUND, by Xxxxx Xxx & Farnham
Incorporated As Advisor
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President &
Portfolio Manager
XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
TRANSAMERICA BUSINESS CREDIT CORPORATION
(as successor to Transamerica Business
Credit Corporation)
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: Senior Vice President
XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
WINDSOR LOAN FUNDING, LIMITED
By: Xxxxxxxxx Capital Partners LLC
As its Investment Manager
By: /s/ Xxxxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
XXXXXXX CONTAINER CORPORATION
THIRD AMENDMENT TO CREDIT AGREEMENT
EXHIBIT A
OFFICER'S CERTIFICATE
The undersigned, Xxxxxx X. Xxxxxxx, hereby certifies that he is the
duly elected Assistant Treasurer of Xxxxxxx Container Corporation, a Delaware
corporation (the "Borrower"), and pursuant to that certain Third Amendment to
Credit Agreement dated as of October __, 2001 (the Amendment") by and among the
Borrower, Bankers Trust Company, as Agent, and the financial institutions party
thereto as lenders (capitalized terms used herein shall, unless otherwise
defined herein, have the meaning provided in the Amendment), hereby further
certifies as follows:
1. No Unmatured Event of Default or Event of Default under the Credit
Agreement (as amended by the Amendment) has occurred and is continuing as of the
date hereof.
2. After giving effect to the Amendment, the representations and
warranties of the Borrower contained in the Amendment, the Credit Agreement and
the other Loan Documents are true and correct in all material respects as of the
date hereof, with the same effect as though made on such date, except to the
extent that any such representation or warranty relates to an earlier date, in
which case such representation or warranty is true and correct in all material
respects as of such earlier date.
3. The conditions of Section 4 of the Amendment have been fully
satisfied.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
duly executed and delivered as of October __, 2001.
XXXXXXX CONTAINER CORPORATION
By:
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Xxxxxx X. Xxxxxxx
Assistant Treasurer
