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EXHIBIT 10.1
AMENDMENT NO. 9
THIS AMENDMENT NO. 9 (this "Amendment"), dated as of September 30,
1996, among United States Can Company, a Delaware corporation (the "Borrower"),
the various financial institutions that are or may become parties to the Credit
Agreement described hereinbelow (individually, a "Lender" and collectively, the
"Lenders") and Bank of America Illinois, an Illinois banking corporation, as
agent for the Lenders (in such capacity, the "Agent"), is made pursuant to
Section 9.1 of that certain Credit Agreement, dated as of April 29, 1994 (as
amended or modified and in effect on the date hereof, the "Existing Credit
Agreement" and, as amended or otherwise modified in this Amendment, the
"Amended Credit Agreement"; capitalized terms used but not defined herein
having the same respective meanings as in the Amended Credit Agreement), among
the Borrower, the Lenders and the Agent.
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders amend the
Existing Credit Agreement in the manner hereinafter appearing; and, subject to
the terms and conditions set forth herein, the Lenders have agreed to so amend
the Existing Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE 1. - AMENDMENT
1.1. Section 2.2.2 of the Existing Credit Agreement is hereby
amended in its entirety to read as follows:
SECTION 2.2.2. Mandatory Reduction of Revolving Credit
Commitment Amount. The Revolving Credit Commitment Amount shall be
automatically and permanently reduced by $10,000,000 from $125,000,000
to $115,000,000 on the earlier of (i) the date of the issuance of any
Approved Parent Debt and (ii) October 31, 1996 and by $20,000,000 from
$115,000,000 to $95,000,000 on December 31, 1996.
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ARTICLE 2. - CONDITIONS
2.1. This Amendment shall become effective as of the date hereof on
the date (the "Amendment Effective Date") that the Agent shall have received
each of the following, in form and substance satisfactory to it:
(a) counterparts hereof executed by the Borrower and the
Lenders;
(b) a certificate, dated as of the Amendment Effective
Date, of the Secretary or Assistant Secretary of the Borrower as to
resolutions of its Board of Directors then in full force and effect
authorizing the execution and delivery of this Amendment and the
incumbency and signatures of its officers signing this Amendment; and
(c) a certificate, dated as of the Amendment Effective
Date, of an authorized officer of the Borrower as to (i) no Default or
Event of Default as of the Amendment Effective Date after giving
effect to this Amendment, (ii) the correctness of the representations
and warranties contained in the Loan Documents in all material
respects as of the Amendment Effective Date after giving effect to
this Amendment, (iii) no amendments or other modifications to the
Borrower's Certificate of Incorporation and By-Laws having occurred
since the date that the certified copies of such documents were
delivered by the Borrower pursuant to Sections 4.1(b) and 4.1(c) of
the Existing Credit Agreement, respectively, and (iv) the satisfaction
of each of the conditions precedent contained in this Article II.
2.2. The Agent agrees to notify the Borrower and the Lenders of such
Amendment Effective Date promptly after such Amendment Effective Date occurs.
ARTICLE 3. - GENERAL
3.1. To induce the Agent and the Lenders to enter into this
Amendment, the Borrower warrants to the Agent and the Lenders that: (a) the
warranties contained in the Loan Documents, as amended by the Amendment, are
true and correct in all material respects as of the date hereof with the same
effect as though made on the date hereof; (b) after giving effect to this
Amendment, no Event of Default or Default exists; (c) this Amendment has been
duly authorized by all necessary corporate proceedings and duly executed and
delivered by the Borrower, and the Amended Credit Agreement and each of the
other Loan Documents are the legal, valid and binding obligations of the
applicable Loan Party, enforceable against such Loan Party in accordance with
their respective terms, except as enforceability may be limited by bankruptcy,
insolvency or other similar laws of general application affecting the
enforcement of creditors' rights or by general principles of equity; (d) no
consent, approval, authorization, order, registration or qualification with any
Governmental Authority or securities exchange is required for,
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and in the absence of which would adversely affect, the legal and valid
execution and delivery or performance by the Borrower of this Amendment or the
performance by the Borrower of the Amended Credit Agreement or any other Loan
Document to which it is a party; and (e) the Agent has a first priority lien in
the Collateral subject to no other liens, claims or encumbrances whatsoever
other than the "Permitted Liens" (as defined in the Additional Security
Agreement).
3.2. This Amendment may be executed in any number of counterparts
and by the different parties on separate counterparts and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Amendment.
3.3. Except as specifically provided above, the Existing Credit
Agreement and the other Loan Documents shall remain in full force and effect
and are hereby ratified and confirmed in all respects. The execution,
delivery, and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power, or remedy of the
Agent or any Lender under the Existing Credit Agreement or any of the other
Loan Documents, nor constitute a waiver or modification of any provision of any
of the other Loan Documents, and the Obligations shall continue to be secured
in all respects by the Collateral.
3.4. On and after the Amendment Effective Date, each reference in
the Existing Credit Agreement and related documents to "Credit Agreement,"
"this Agreement" or words of like import, shall, unless the context otherwise
requires, be deemed to refer to the Amended Credit Agreement.
3.5. The Borrower agrees to pay on demand all reasonable costs and
expenses incurred at any time by the Agent (including the reasonable attorney
fees and expenses for the Agent, including the allocated cost of internal
counsel) in connection with the preparation, negotiation, execution and
administration of this Amendment and all other instruments or documents
provided for herein or delivered or to be delivered hereunder or in connection
herewith.
3.6. This Amendment shall be binding upon the Borrower, the Agent,
the Lenders and their respective successors and assigns, and shall inure to the
benefit of the Borrower, the Agent, the Lenders and their respective successors
and assigns as provided in the Amended Credit Agreement.
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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 day
and year first above written.
UNITED STATES CAN COMPANY
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President & Treasurer
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BANK OF AMERICA ILLINOIS, as Agent
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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BANK OF AMERICA ILLINOIS, individually
By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
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Title: Senior Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ J. Xxxxxxx Xxxxx
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Name: J. Xxxxxxx Xxxxx
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Title: Managing Director
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XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx X. Dell'Xxxxxx
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Name: Xxxxxx X. Dell'Xxxxxx
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Title: Vice President
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FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Vice President
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BANK OF SCOTLAND
By: /s/ Xxxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxxx
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Title: Vice President
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THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: VP
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SOCIETE GENERALE
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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