FOURTH AMENDMENT TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS FOURTH AMENDMENT TO REVOLVING CREDIT AND TERM LOAN
AGREEMENT (this "Amendment") is entered into as of July 31, 2001,
among GRAPHIC PACKAGING INTERNATIONAL CORPORATION (formerly ACX
Technologies, Inc.), a Colorado corporation ("GPK"), GRAPHIC
PACKAGING CORPORATION, a Delaware corporation ("GPC"), Required
Lenders under the Credit Agreement described below, BANK OF
AMERICA, N.A., in its capacity as Administrative Agent for the
Lenders under the Credit Agreement ("Administrative Agent"), and
Guarantors under the Credit Agreement (hereinafter defined).
Reference is made to the Revolving Credit and Term Loan
Agreement, dated as of August 2, 1999 (as amended to date, the
"Credit Agreement"), among GPK, as Borrower, Administrative
Agent, the Managing Agents, and the Co-Agents thereunder, and the
Lenders party thereto. Unless otherwise defined in this
Amendment, capitalized terms used herein shall have the meaning
set forth in the Credit Agreement; all Section references herein
are to Sections in the Credit Agreement; and all Paragraph
references herein are to Paragraphs in this Amendment.
RECITALS
A. GPK has requested that Lenders agree to add GPC as a co-
borrower under the Credit Agreement,
B. GPK has requested an amendment to Section 9.27 to
permit GPK to issue Subordinated Debt to an entity of the Coors
Family Trusts without requiring the execution of an Affiliate
Subordination Agreement; and
C. Subject to the terms and conditions of this Amendment,
Required Lenders are willing to agree to such amendments.
Accordingly, for adequate and sufficient consideration, the
parties hereto agree, as follows:
Paragraph 1. Amendments.
1.1 Definitions.
(a) The definition of "Acquisition" is amended by deleting
the proviso immediately following clause (c) thereof in its
entirety and substituting therefor the following:
"provided that, in any merger involving any
Borrower, a Borrower must be the surviving entity,
unless the merger involves GPK, in which case GPK
must be the surviving entity."
(b) The definition of "Borrower" is deleted in its entirety
and the following is substituted therefor:
"Borrower means (a) GPK from the Closing Date to
the Fourth Amendment Date and (b) on and after the
Fourth Amendment Date, both GPK and GPC,
individually and collectively, unless otherwise
indicated, and jointly and severally."
(c) The definitions of "Domestic Subsidiary" and "Foreign
Subsidiary" are amended by adding the phrase "direct or indirect"
immediately prior to the phrase "Subsidiary of Borrower" therein.
(d) The definition of "Subordinated Debt" is amended by (i)
adding "a" immediately prior to the words "any Debt of the
Companies" and (ii) adding the following as clauses (b) and (c)
thereof immediately prior to the period (.):
", (b) refinancings of Subordinated Debt permitted
under Section 9.6, and (c) conversions of
Subordinated Debt into forms of equity permitted
under Section 9.6."
(e) The following definitions of "Fourth Amendment,"
"Fourth Amendment Date," "GPC," and "GPK" shall be alphabetically
inserted in Section 1.1 to read, as follows:
"Fourth Amendment means that certain Fourth
Amendment to Revolving Credit and Term Loan
Agreement dated as of July 31, 2001, among GPK,
GPC, Guarantors, Administrative Agent, and
Required Lenders."
"Fourth Amendment Date means the date upon which
the Fourth Amendment becomes effective in
accordance with the terms of such Fourth
Amendment."
"GPC means Graphic Packaging Corporation, a
Delaware corporation and an indirect Wholly-owned
Subsidiary of GPK, and its permitted successors
and assigns."
"GPK means Graphic Packaging International
Corporation (formerly ACX Technologies, Inc.), a
Colorado corporation, and its permitted successors
and assigns."
1.2 Additional Amendments.
(a) The following Sections shall be amended by inserting
the word "any" or "Any" (as applicable) immediately prior to each
usage of the word "Borrower" therein:
Definitions of "Borrowing," and "ERISA Affiliate";
Section 8.7; Section 9.3(d); Section 9.12(h); Section
9.22; Section 10.2; Section 10.3; Section 10.12;
Section 12.1(d); and Section 12.4
(b) The following Sections shall be amended by deleting the
word "Borrower" and substituting therefor "GPK:"
Definitions of "Ceramics Spinoff," "Closing Date,"
"Companies," "Interest Expense," "Qualifying Date," and
"Solar Division" in Section 1.1; clause (d) of the
definition of "Net Cash Proceeds" in Section 1.1;
Sections 9.3(b), (c), and (l); Sections 9.21(a) and
(e); and Section 9.32.
(c) The definition of "Flexible Packaging Division" in
Section 1.1 shall be amended by deleting the reference to
"Graphic Packing Corporation" therein and substituting therefor
"GPC".
(d) The definition of "Guarantor" in Section 1.1 shall be
amended by deleting the phrase "of Borrower" immediately after
the phrase "Domestic Subsidiary" therein.
(e) Clause (b) of the definition of "Permitted Acquisition"
in Section 1.1 shall be amended to delete the reference to
"Borrower and its Subsidiaries" therein and substituting therefor
the phrase "the Companies".
(f) Clause (b)(vii)(A) of the definition of "Permitted
Acquisition" in Section 1.1 shall be amended by adding the
following proviso at the end of such clause:
"; provided that if any merger involves GPK, GPK must
be the surviving entity after giving effect to such
merger;"
(g) Section 2.8(a) is deleted in its entirety and the
following provision is substituted therefor:
" (a) Borrowing Request. Any Borrower
may request a Borrowing by making or
delivering a Borrowing Notice (that may be
telephonic if confirmed in writing within two
Business Days) to Administrative Agent
requesting that Lenders fund a Borrowing on a
certain date (the "Borrowing Date"), which
Borrowing Notice (i) shall be irrevocable and
binding on Borrower, (ii) shall specify the
Facility or Facilities under which such
Borrowing is being made, (iii) shall specify
the Borrowing Date, amount, Type, and (for a
Borrowing comprised of Eurodollar Rate
Borrowings) Interest Period, (iv) must be
signed by the requesting Borrower and
concurred to by the other Borrower, and
(v) must be received by Administrative Agent
no later than 11:00 a.m. Dallas, Texas time
on either the third Business Day preceding
the Borrowing Date for any Eurodollar Rate
Borrowing or the same Business Day for any
Base Rate Borrowing. Administrative Agent
shall timely notify each Lender with respect
to each Borrowing Notice."
(h) Section 3 is amended as follows:
(1) The last sentence of Section 3.2(a) is
deleted in its entirety and the following is
substituted therefor:
"Accrued interest on each Base Rate
Borrowing shall be due and payable on
each March 1, June 1, September 1, and
December 1, and on the Termination Date
for the applicable Facility."
(2) The amortization schedule in Section 3.2(c)
is amended by replacing each reference to
March 31 with March 1, each reference to June
30 with June 1, each reference to September
30 with September 1, and each reference to
December 31 with December 1.
(i) Section 3.3(e) is amended by deleting the phrase
"Borrower's balance sheet" in clause (i)(y) thereof and
substituting therefor the phrase "the balance sheet of GPK and
its consolidated Subsidiaries".
(j) Section 5.5 is amended by deleting the phrase "Borrower
has" in the first sentence thereof and substituting "GPK and/or
GPC have" therefor.
(k) Section 6.1 is amended by deleting each instance of the
word "Borrower" in the proviso to the first sentence thereof and
substituting therefor "GPK".
(l) Section 8.1 is amended by adding the phrase "or cause
to be used" immediately after the first instance of the word
"use" in the first sentence thereof.
(m) Section 8.3 is amended by deleting the word "Borrower"
and substituting therefor "GPK" in the last sentence thereof.
(n) Sections 8.25, 9.3(g), and 9.29 are deleted in their
entirety, and the phrase "[Intentionally Deleted]" shall be
substituted therefor.
(o) Section 9.1 is amended by adding the phrase "or cause
to be used" immediately after the word "use" therein.
(p) Section 9.3(a) is amended by (i) deleting the word
"Borrower" and substituting therefor "GPK" in the first sentence
thereof and (ii) deleting the phrase "Borrower and its
Subsidiaries" in clause (i) thereof and substituting therefor the
phrase "the Companies".
(q) Section 9.6 is deleted in its entirety and the
following provision is substituted therefor:
"9.6 Payment of Obligations.
(a) Borrower shall pay the Obligation in
accordance with the terms and provisions of the
Loan Documents. Each Borrower shall be jointly
and severally liable for the Obligation.
Notwithstanding any contrary provision, it is the
intention of each Borrower, Lenders, and
Administrative Agent that the amount of the
Obligation for which any Borrower is liable shall
be, but not in excess of, the maximum amount
permitted by fraudulent conveyance, fraudulent
transfer, or similar Laws applicable to such
Borrower. Accordingly, notwithstanding anything
to the contrary contained in this Agreement or any
other agreement or instrument executed in
connection with the payment of any of the
Obligation, the amount of the Obligation for which
any Borrower is liable shall be limited to an
aggregate amount equal to the largest amount that
would not render such Borrower's obligations
hereunder subject to avoidance under Section 548
of the United States Bankruptcy Code or any
comparable provision of any applicable state Law.
(b) Each Company (a) shall promptly pay (or renew
and extend) all of its material obligations as the
same become due (unless such obligations -- other
than the Obligation -- are being contested in good
faith by appropriate proceedings), (b) shall not
(i) make any voluntary prepayment of principal of,
or interest on, any other Debt (other than the
Obligation), whether subordinate to the Obligation
or not, other than the Xxxxxxx Debt, (ii) use
proceeds from the Facilities to make any payment
or prepayment of principal of, or interest on, or
sinking fund payment in respect of any other Debt
of any Company, including, without limitation, any
Subordinated Debt, other than the Refinanced Debt,
the Xxxxxxx Debt, payments of interest on the
Subordinated Debt to the extent permitted by
Section 9.6(c), and Distributions on the Preferred
Stock to the extent permitted by Section 9.21; or
(iii) make any prepayment of the One-Year Term
Principal Debt, other than mandatory prepayments
made pursuant to Section 3.3(b) or as required on
the Third Amendment Date, and (c) shall not,
directly or indirectly, pay, prepay, redeem or
purchase, or deposit funds or property for the
payment (including, without limitation, a payment
in respect of any sinking fund, defeasance of any
Subordinated Debt, other than the Xxxxxxx Debt),
prepayment, redemption, or purchase of,
Subordinated Debt, except that any Company may
from time to time make payments of interest
(excluding payments arising from any acceleration
of maturity thereof) on the Subordinated Debt to
the extent such payment is not in contravention of
the subordination provisions of such Subordinated
Debt. Borrower may not use Borrowings under the
Revolver Facility to pay all or any portion of the
One-Year Term Principal Debt other than on August
15, 2001, except Borrowings may be made under the
Revolver Facility to facilitate all or any portion
of the payment required on the Third Amendment
Date pursuant to Paragraph 4(c)(ii) of the Third
Amendment and to facilitate any prepayments (if
any) pursuant to Section 3.3(e); provided that,
notwithstanding the foregoing, on August 15, 2001,
proceeds of Borrowings under the Revolver Facility
may be used to repay the One-Year Term Principal
Debt in whole or in part, so long as after giving
effect to such payment, (x) the Revolver
Commitment then in effect (less the Revolver
Commitment Usage on such date of determination)
available to be borrowed without the occurrence of
a Default or Potential Default is at least
$10,000,000 and (y) the One-Year Principal Debt
has been paid in full.
Notwithstanding the foregoing, so long as no
Default or Potential Default then exists or arises
as a result therefrom, any Subordinated Debt may
be refinanced with the proceeds of, or otherwise
converted into (x) Debt securities that are
subordinated to the Obligation to substantially
the same or greater extent than the Subordinated
Debt being refinanced, which do not increase the
principal amount of the Subordinated Debt from the
amount of Subordinated Debt outstanding
immediately prior to such refinancing, and which
otherwise satisfy the criteria for Subordinated
Debt; (y) common equity of Borrower; and (z) other
equity interests of Borrower or its Subsidiaries
(other than Redeemable Preferred Stock) that are
subordinated in right of payment to the Obligation
to substantially the same or greater extent than
the Subordinated Debt being converted, are
unsecured and unguaranteed, and are otherwise in
form and terms satisfactory to Administrative
Agent (in its reasonable discretion). In
addition, no Company shall make any payment on any
Subordinated Debt, when such payment violates the
subordination provisions thereof or results in a
Default or Potential Default hereunder."
(r) Section 9.16 shall be amended by deleting the phrase
"of a Company" immediately after each instance of the phrase
"Domestic Subsidiary" therein.
(s) Section 9.23 is amended by deleting the word
"Borrower" and substituting therefor "GPK" in the parenthetical
in clause (f) thereof.
(t) Section 9.25 is deleted in its entirety and the
following provision is substituted therefor:
"9.25 Mergers and Dissolutions; Sale of
Capital Stock. No Company will, directly or
indirectly, merge or consolidate with any other
Person, other than if no Default or Potential
Default then exists or arises, (a) in connection
with a Permitted Acquisition if the survivor is,
or concurrently with the Permitted Acquisition
becomes, a Company organized under the Laws of a
jurisdiction of the United States; (b) mergers or
consolidations involving any Borrower (including a
Permitted Acquisition effected as a merger) if a
Borrower is the surviving entity; provided that in
any merger or consolidation involving GPK, GPK
must be the surviving entity; (c) mergers among
Companies; provided that, in any merger involving
any Borrower (including a Permitted Acquisition
effected as a merger), a Borrower must be the
surviving entity, in any merger involving any
other Loan Party (including a Permitted
Acquisition effected as a merger), a Loan Party
which is a Wholly-owned Subsidiary must be the
surviving entity, and in any merger involving GPK,
GPK must be the surviving entity. Notwithstanding
the foregoing, any Borrower may merge with and
into any other Loan Party, so long as (i) no
Default or Potential Default then exists or arises
as a result thereof, (ii) the successor
corporation, after giving effect to such merger,
is a Loan Party that owns, directly or indirectly,
all Subsidiaries previously owned by such
Borrower, and (iii) the successor corporation
shall expressly assume all obligations of such
Borrower for payment of the Obligation and
performance under the Loan Documents and shall
deliver (or cause to be delivered) such written
amendments and legal opinions with respect
thereto, as Administrative Agent may reasonably
request. No Company shall liquidate, wind up, or
dissolve (or suffer any liquidation or
dissolution), other than (i) liquidations, wind
ups, or dissolutions incident to mergers permitted
under this Section 9.25, (ii) dissolution of any
Loan Party if substantially all of its assets have
been conveyed to another Loan Party or disposed of
as permitted by and in accordance with the
requirements of Section 9.23, or (iii) dissolution
of any Subsidiary other than a Loan Party if
substantially all of its assets have been conveyed
to another Subsidiary or disposed of as permitted
by and in accordance with the requirements of
Section 9.23. No Company may sell, assign, lease,
transfer, or otherwise dispose of the capital
stock (or other ownership interests) of any other
Company, except for (i) sales, leases, transfers,
or other such dispositions between Companies
permitted by and in accordance with the
requirements of Section 9.23 and (ii) the Ceramics
Spinoff, so long as concurrently with the Ceramics
Spinoff, GPK shall make the mandatory prepayments
required by Section 3.3(b)(v)."
(u) Affiliate Subordination Agreements. Section 9.27 shall
be amended by adding a sentence at the end of such Section which
reads as follows:
"Notwithstanding the foregoing, Borrower shall not
be required to deliver to Administrative Agent
such agreement with respect to up to $50,000,000
of Subordinated Debt issued by GPK and GPC, as co-
makers, in August, 2001 (or permitted refinancings
or conversions thereof), so long as such
Subordinated Debt otherwise satisfies the
requirements for permitted Subordinated Debt set
forth in Section 9.12(k)."
(v) Section 9.30(b) is amended by deleting the word "its"
immediately preceding the phrase "Consolidated Net Worth" in the
first and second sentences thereof, and substituting therefor the
word "the".
(w) Section 9.31 is amended by adding a new clause (e) as
follows:
" (e) Within 180 days after the Fourth
Amendment Date, GPK shall cause all Financial
Xxxxxx existing as of such date with respect to
the Principal Debt to be amended to reflect that
GPC is a Borrower under this Agreement and that
GPK and GPC have joint and several liability under
such Financial Xxxxxx."
(x) Section 10.7 is deleted in its entirety and the
following provision is substituted therefor:
"10.7 Change of Control. (i) Any Person or
group of Persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934 (as
amended from time to time the "Exchange Act")),
other than any Special Shareholders, shall have
acquired beneficial ownership (within the meaning
of Rule 13d-3 promulgated by the Securities
Exchange Commission pursuant to the Exchange Act)
of 50% or more of the outstanding shares of common
stock of GPK; (ii) commencing on the earlier of 60
days after the date upon which the Ceramics
Spinoff is consummated or June 1, 2000, during any
12 consecutive calendar months thereafter,
individuals who were directors of GPK on the first
day of such period shall cease to constitute a
majority of GPK's board of directors; (iii) the
Special Shareholders cease to own at least 20% of
the outstanding shares of common stock of GPK; or
(iv) except as otherwise permitted pursuant to
this Agreement, GPK, directly or indirectly,
ceases to own the percentage of the issued and
outstanding equity interests issued by their
respective Subsidiaries as determined on the
Closing Date or, if thereafter acquired, on the
date of the related Acquisition. As used herein,
"Special Shareholders" shall mean any trust, the
primary beneficiaries of which are descendants of
Xxxxxx Xxxxx, Xx. or spouses of such descendants,
or the trustees of any such trusts."
(y) Section 11.5 is amended by adding the word "any"
immediately prior to the first instance of the word "Borrower" in
the third sentence thereof.
(z) Section 11.11 is deleted in its entirety and the
following provision is substituted therefor:
"11.11 Indemnification. Each Borrower and each
Guarantor (by execution of a Guaranty) agree to
indemnify and hold harmless each Agent, Arranger,
and each Lender and each of their respective
affiliates and their respective officers,
directors, employees, agents, attorneys, and
advisors (each, an "Indemnified Party") from and
against any and all claims, damages, losses,
liabilities (including, without limitation, any
Environmental Liabilities), costs, and expenses
(including, without limitation, reasonable
attorneys' fees) that may be incurred by or
asserted or awarded against any Indemnified Party,
in each case arising out of or in connection with
or by reason of (including, without limitation, in
connection with any investigation, litigation, or
proceeding or preparation of defense in connection
therewith) the Loan Documents, any of the
transactions contemplated herein or the actual or
proposed use of the proceeds of the Borrowings
(including any of the foregoing arising from the
negligence of the Indemnified Party), except to
the extent such claim, damage, loss, liability,
cost, or expense is found in a final, non-
appealable judgment by a court of competent
jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation,
litigation or other proceeding to which the
indemnity in this Section 11.11 applies, such
indemnity shall be effective whether or not such
investigation, litigation, or proceeding is
brought by any Borrower, their directors,
shareholders, or creditors or an Indemnified Party
or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated.
Each Borrower and each Company agree not to assert
any claim against any indemnified party on any
theory of liability (including, without
limitation, any Environmental Liability), for
special, indirect, consequential, or punitive
damages arising out of or otherwise relating to
the Loan Documents, any of the transactions
contemplated herein or the actual or proposed use
of the proceeds of the Borrowings. Without
prejudice to the survival of any other agreement
of each Borrower and each Guarantor hereunder, the
agreements and obligations of each Borrower and
each Guarantor contained in this Section 11.11
shall survive the payment in full of the
Borrowings and all other amounts payable under
this Agreement."
(aa) Section12.6 is amended by deleting the references to
"Borrower" therein and substituting therefor the words "the
Companies".
(bb) Section13.13(e) shall be amended by deleting the
proviso to the first sentence thereof in its entirety and
substituting the following therefor:
"provided, however, that no Borrower nor any
Affiliate of any Borrower shall be a Participant."
(cc) Schedule 8.3 to the Credit Agreement is deleted in its
entirety, and the document labeled Revised Schedule 8.3 attached
hereto shall be substituted therefor.
(dd) Exhibit B-1. The Form of Borrowing Notice set forth on
Exhibit B-1 to the Credit Agreement, is deleted in its entirety
and the document labeled Exhibit B-1, Revised Form of Borrowing
Notice attached hereto shall be substituted therefor.
(ee) Exhibit F. The Form of Assignment and Acceptance
Agreement set forth on Exhibit F to the Credit Agreement, is
deleted in its entirety and the document labeled Exhibit F,
Revised Form of Assignment and Acceptance Agreement attached
hereto shall be substituted therefor.
Paragraph 2. Assumption by GPC.
(a) In addition to any debts, obligations, and liabilities
directly incurred by GPK, GPC hereby assumes and becomes jointly
and severally liable for all debts, obligations, and liabilities
of GPK now existing or hereafter arising under any Loan Document,
and unconditionally promises to pay and perform the Obligation
pursuant to the terms of the Loan Documents.
(b) GPC hereby confirms the debts, duties, obligations,
liabilities, rights, titles, security interests, liens, powers,
and privileges existing by virtue of the Loan Documents, until
termination of the Total Commitment, payment in full of the
Principal Debt and of all interest, fees, and other amounts of
the Obligation then due and owing, and expiration of all LCS and
hereby agrees that this Amendment shall in no way or manner
release, discharge, affect, change, modify, or impair the debts,
duties, obligations, liabilities, rights, titles, security
interests, liens, powers, and privileges existing by virtue of,
arising under or out of, or in connection with or relating to the
indebtedness evidenced by or secured by the Loan Documents.
(c) GPK hereby acknowledges and agrees that GPC's
assumption of the indebtedness, obligations, and liabilities of
Borrower arising under any Loan Document does not in any way
release, impair, or affect GPK's liability to Lenders under the
Loan Documents. GPK and GPC shall be jointly and severally
liable for all of the Obligations.
(d) By execution hereof GPC (i) consents and agrees to this
Amendment's execution and delivery and assumes and accepts all of
the terms and Obligations under the Loan Documents, (ii) confirms
that its signature below constitutes its signature to the
Amendment and the Credit Agreement and that the undersigned is
now and hereafter a party to the Credit Agreement, (iii) ratifies
and confirms that all guaranties, assurances, and Liens granted,
conveyed, or assigned to Lenders under the Loan Documents, as
they may have been renewed, extended, and amended, are not
released, diminished, impaired, reduced, or otherwise adversely
affected by this Amendment and continue to guarantee, assure, and
secure the payment and performance of all present and future
Obligation, (iv) agrees to perform such acts and duly authorize,
execute, acknowledge, deliver, file, and record such additional
guaranties, assignments, security agreements, deeds of trust,
mortgages, and other agreements, documents, instruments, and
certificates as Administrative Agent may reasonably deem
necessary or appropriate in order to create, perfect, preserve,
and protect those guaranties, assurances, and Liens, and (v)
waives notice of acceptance of this consent and agreement, which
consent and agreement binds the undersigned and their successors
and permitted assigns and inures to Administrative Agent and
Lenders and their successors and assigns.
Paragraph 3. Effective Date. Notwithstanding any contrary
provision, this Amendment is not effective until the date (the
"Effective Date") upon which Administrative Agent receives
(a) counterparts of this Amendment executed by GPK, GPC,
Guarantors, and Required Lenders; (b) GPK and GPC have delivered
all Collateral Documents and amendments thereto with respect to
this Amendment necessary to reflect the addition of GPC as a
Borrower; (c) with respect to any Lender requesting Notes
pursuant to Section 3.1(b), each of the Notes, payable to the
order of each applicable Lender, executed by GPC and GPK;
(d) Administrative Agent receives certificates of the appropriate
Governmental Authorities of such jurisdictions as Administrative
Agent may designate, to the effect that GPC is in good standing
with respect to the payment of franchise and similar Taxes (to
the extent such information is available) and is duly qualified
to transact business in such jurisdiction; (e) Administrative
Agent receives an opinion of counsel acceptable to Administrative
Agent addressed to Administrative Agent and Lenders that the
execution of this Amendment and the assumption of the Obligation
by GPC has been approved by all necessary corporate action of
GPC, does not violate the charter or bylaws of GPC, and is duly
enforceable; (f) Administrative Agent receives copies of
resolutions duly adopted by the Board of Directors of GPC,
approving this Amendment and the assumption of the Obligation
provided for herein, accompanied by a certificate of the
Secretary or an Assistant Secretary of GPC, dated as of the
Effective Date, certifying that such copy is a true and correct
copy of resolutions duly adopted at a meeting of, or by the
unanimous written consent of, the Board of Directors of GPC, and
that such resolutions constitute all the resolutions adopted with
respect to such transactions, have not been amended, modified, or
revoked in any respect, and are in full force and effect as of
the Closing Date; (g) Administrative Agent receives an Officer's
Certificate from GPC certifying (i) the Articles of Incorporation
of such Company, (ii) the Bylaws of such Company, and (iii) the
incumbency of officers of such Company; and (h) Borrower pays all
reasonable costs, fees, and expenses of Administrative Agent's
counsel incurred in connection with the Loan Documents, including
without limitation, all reasonable legal fees and expenses
outstanding on the Effective Date, together with all reasonable
attorneys' fees, costs, and expenses in connection with the
negotiation, preparation, delivery, and execution of this
Amendment and any related documents.
Paragraph 4. Acknowledgment and Ratification. As a material
inducement to Administrative Agent and the Lenders to execute and
deliver this Amendment, GPK, GPC, and each Guarantor (a) consent
to the agreements in this Amendment and (b) agree and acknowledge
that the execution, delivery, and performance of this Amendment
shall in no way release, diminish, impair, reduce, or otherwise
affect the respective obligations of Borrower or Guarantors under
their respective Collateral Documents, which Collateral Documents
shall remain in full force and effect, and all Liens, guaranties,
and Rights thereunder are hereby ratified and confirmed.
Paragraph 5. Representations. As a material inducement to
Lenders to execute and deliver this Amendment, GPK and GPC
represents and warrants to Lenders (with the knowledge and intent
that Lenders are relying upon the same in entering into this
Amendment) that as of the Effective Date of this Amendment and as
of the date of execution of this Amendment, (a) all
representations and warranties in the Loan Documents are true and
correct in all material respects as though made on the date
hereof, except to the extent that (i) any of them speak to a
different specific date or (ii) the facts on which any of them
were based have been changed by transactions contemplated or
permitted by the Credit Agreement, and (b) except as waived by
this Amendment, no Potential Default or Default exists.
Paragraph 6. Expenses. Borrower shall pay all reasonable
costs, fees, and expenses paid or incurred by Administrative
Agent incident to this Amendment, including, without limitation,
the reasonable fees and expenses of Administrative Agent's
counsel in connection with the negotiation, preparation,
delivery, and execution of this Amendment and any related
documents.
Paragraph 7. Miscellaneous. This Amendment is a "Loan
Document" referred to in the Credit Agreement, and the provisions
relating to Loan Documents in Section 13 of the Credit Agreement
are incorporated in this Amendment by reference. Unless stated
otherwise (a) the singular number includes the plural and vice
versa and words of any gender include each other gender, in each
case, as appropriate, (b) headings and captions may not be
construed in interpreting provisions, (c) this Amendment must be
construed, and its performance enforced, under New York law, (d)
if any part of this Amendment is for any reason found to be
unenforceable, all other portions of it nevertheless remain
enforceable, and (e) this Amendment may be executed in any number
of counterparts with the same effect as if all signatories had
signed the same document, and all of those counterparts must be
construed together to constitute the same document.
Paragraph 8. Entire Agreement. This Amendment represents the
final agreement between the parties about the subject matter of
this Amendment and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties.
There are no unwritten oral agreements between the parties.
Paragraph 9. Parties. This Amendment binds and inures to GPK,
GPC, Guarantors, Administrative Agent, Lenders, and their
respective successors and assigns.
The parties hereto have executed this Amendment in multiple
counterparts to be effective as of the Effective Date.
Remainder of Page Intentionally Blank.
Signature Pages to Follow.
Signature Page to that certain Fourth Amendment to Revolving
Credit and Term Loan Agreement dated as of the date set forth
above, among Graphic Packaging International Corporation
(formerly ACX Technologies, Inc.) and Graphic Packaging
Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and Required Lenders.
GRAPHIC PACKAGING INTERNATIONAL,
CORPORATION(formerly ACX Technologies,
Inc.), as Borrower
By: _________________________________
Name: __________________________
Title: _________________________
GRAPHIC PACKAGING CORPORATION, as
Borrower and Guarantor
By: ________________________________
Name: _________________________
Title: ________________________
Signature Page to that certain Fourth Amendment to Revolving
Credit and Term Loan Agreement dated as of the date set forth
above, among Graphic Packaging International Corporation
(formerly ACX Technologies, Inc.) and Graphic Packaging
Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and Required Lenders.
GAC ALUMINUM CORPORATION, as a
Guarantor
GOLDEN TECHNOLOGIES COMPANY, INC.,
as a Guarantor
GRAPHIC PACKAGING HOLDINGS INC., as
a Guarantor
LAUENER ENGINEERING LIMITED, as a
Guarantor
By: ________________________________
Name: _________________________
Title: ________________________
Signature Page to that certain Fourth Amendment to Revolving
Credit and Term Loan Agreement dated as of the date set forth
above, among Graphic Packaging International Corporation
(formerly ACX Technologies, Inc.) and Graphic Packaging
Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and Required Lenders.
GOLDEN EQUITIES, INC., as a
Guarantor
By: ________________________________
Name: _________________________
Title: ________________________
Signature Page to that certain Fourth Amendment to Revolving
Credit and Term Loan Agreement dated as of the date set forth
above, among Graphic Packaging International Corporation
(formerly ACX Technologies, Inc.) and Graphic Packaging
Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and Required Lenders.
BANK OF AMERICA, N.A., as
Administrative Agent and as a Lender
By: ________________________________
Name: _________________________
Title: ________________________
Signature Page to that certain Fourth Amendment to Revolving
Credit and Term Loan Agreement dated as of the date set forth
above, among Graphic Packaging International Corporation
(formerly ACX Technologies, Inc.) and Graphic Packaging
Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and Required Lenders.
____________________________________,
as a Lender
By: ________________________________
Name: _________________________
Title: ________________________
Signature Page to that certain Fourth Amendment to Revolving
Credit and Term Loan Agreement dated as of the date set forth
above, among Graphic Packaging International Corporation
(formerly ACX Technologies, Inc.) and Graphic Packaging
Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and Required Lenders.
____________________________________,
as a Lender
By: ________________________________
Name: _________________________
Title: ________________________
By: ________________________________
Name: _________________________
Title: ________________________
Signature Page to that certain Fourth Amendment to Revolving
Credit and Term Loan Agreement dated as of the date set forth
above, among Graphic Packaging International Corporation
(formerly ACX Technologies, Inc.) and Graphic Packaging
Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and Required Lenders.
____________________________________,
as a Lender
By: ________________________________
By: ___________________________
Name: __________________
Title: _________________
REVISED SCHEDULE 8.3
SUBSIDIARIES
(Graphic Packaging International Corporation)
A. DOMESTIC SUBSIDIARIES
Jurisdic-
Name of Entity Type Jurisdic- tion Owned By
of tion of Where (% of
Entity Formation Qualified Ownership)
Graphic Corp CO PA Public n/a
Packaging
International
Corporation
GAC Aluminum Corp CO n/a Golden
Corporation Technologies
Company,
Inc. 100%
Golden Corp CO n/a Graphic
Technologies Packaging
Company, Inc. Corporation
100%
Golden Corp CO n/a Golden
Equities, Inc. Technologies
Company,
Inc.
100%
Golden Limited CO n/a Golden
Properties Partner- Equities,
Limited ship Inc. 50%;
Coors
Brewing
Company 50%
Graphic Corp CO n/a Graphic
Packaging Packaging
Holdings, Inc. International
Corporation
100%[1]
Graphic Corp Delaware AK,CA,CO, Graphic
Packaging GA,IL,IN, Packaging
Corporation KY,MI,MN, Holdings,
MO,NH,NY,
NC,OH,OR,
PA,SD,TN,
VA,WA,WI
Lauener Corp DE n/a Golden
Engineering Technologies
Limited Company,
Inc. 100%
Kalamazoo Partner- MI n/a Graphic
Valley ship Packaging
Partnership Corporation
48%[2]
_________________________
[1] 100% of common stock. 1,425 shares of preferred stock are
held by NMC Group LImited.
[2] Percent ownership no longer subject to adjustment.
B. FOREIGN SUBSIDIARIES
Jurisdic-
Name of Entity Type Jurisdic- tion Owned By
of tion of Where (% of
Entity Formation Qualified Ownership)
ACX (UK) Corp England n/a Graphic
Limited Packaging
Holdings,
Inc. 100%
Xxxxxxx Group Corp Wales n/a ACX (UK)
Limited converted (England) Limited 100%
to LLC
Graphic Corp Nova n/a Graphic
Packaging Scotia Packaging
Corporation Corporation
(Nova Scotia) 100%
Lauener Corp Switzerland n/a Lauener
Engineering AG Engineering
(not material) Limited 100%
NMC Group Corp England n/a Xxxxxxx
Limited Group
Limited 100%
EXHIBIT B-1
FORM OF REVISED BORROWING NOTICE
(Graphic Packaging)
(Dated: ______________ __, ____)
Bank of America, N.A.
as Administrative Agent for the
Lenders as defined in the Credit
Agreement referred to below
Bank of America Plaza, 14th Floor
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: _____________
Fax: ____________
Reference is made to the Revolving Credit and Term Loan
Agreement, dated as of August 2, 1999 (as amended, modified,
supplemented, or restated from time to time, the "Credit
Agreement"), among Graphic Packaging International Corporation
and Graphic Packaging Corporation (collectively, "Borrower"),
Bank of America, N.A., as Administrative Agent, and Lenders party
thereto. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the
Credit Agreement. The undersigned hereby gives you notice
pursuant to the Credit Agreement that it requests a Borrowing
(other than a Swing Line Borrowing) under the Credit Agreement,
and in that connection sets forth below the terms on which such
Borrowing is requested to be made:
Term 180-Day One-Year
Revolver Loan Term Term
Facility Facility* Facility* Facility*
(A)Specify if
Borrowing is
under Revolver
Facility, Term
Loan Facility,
180-Day Term
Facility, or
One-Year Term
Facility. (A) _____ _____ _____ _____
(B)Borrowing Date of (B) _____ _____ _____ _____
of Borrowing[1]
(C)Amount of
Borrowing[2] (C) _____ _____ _____ _____
(D)Type of Borrowing[3] (D) _____ _____ _____ _____
(E)For a Eurodollar
Rate Borrowing,
the Interest
Period and the
last day thereof[4] (E) _____ _____ _____ _____
* Borrowing under noted Facilities are available only on the
initial Borrowing Date.
Each Borrower hereby certifies that the following statements
are true and correct on the date hereof, and will be true and
correct on the Borrowing Date specified herein after giving
effect to such Borrowing:
(a) The requested Borrowing will not cause the
Principal Debt to exceed the Total Commitment; if the
Borrowing is a Borrowing under the Revolver Facility, the
Borrowing will not cause the Revolver Commitment Usage to
exceed the Revolver Commitment.
(b) All of the representations and warranties of any
Company set forth in the Loan Documents are true and correct
in all material respects (except to the extent that (i) the
representations and warranties speak to a specific date or
(ii) the facts on which such representations and warranties
are based have been changed by transactions permitted by the
Loan Documents and, if applicable, supplemental Schedules
have been delivered with respect thereto and, when
necessary, approved by Required Lenders);
(c) No change which could be a Material Adverse Event
has occurred in the financial conditions, operations, or
businesses of any Company since the date of the Current
Financials most recently delivered by Borrower to Lenders
pursuant to Sections 7.1 and 9.3 of the Credit Agreement;
(d) No Default or Potential Default has occurred and
is continuing or will arise after giving effect to the
requested Borrowing; and
(e) If the requested Borrowing will be used to finance
a Permitted Acquisition (other than the Ft. Xxxxx
Acquisition), Borrower has complied with and delivered (or
shall comply with and deliver on or prior to the date of the
requested Borrowing) the items required by Section 7.2 and
Schedule 7.2.
Very truly yours,
__________________________________
By:
Name:
Title:
Concurred by:
__________________________________
By:
Name:
Title:
Rate: _____________
Confirmed by: _____________
1 Must be a Business Day occurring prior to the Termination
Date and be at least (a) three Business Days following
receipt by Administrative Agent of this Borrowing Notice for
any Eurodollar Rate Borrowing, and (b) the same Business Day
of receipt by Administrative Agent of this Borrowing Notice
for any Base Rate Borrowing.
2 For any Borrowing under the Revolver Facility, not less than
$5,000,000 or an integral multiple of $1,000,000 if a
Eurodollar Rate Borrowing, or $1,000,000 or a greater
integral multiple of $100,000 if a Base Rate Borrowing.
3 Eurodollar Rate Borrowing or Base Rate Borrowing.
4 1, 2, 3, or 6 months, or other periods requested by Borrower
to the extent available from Lenders -- in no event may the
Interest Period for any Facility end after the Termination
Date for such Facility.
EXHIBIT F
REVISED FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This Assignment and Acceptance Agreement (the "Assignment")
is dated as of the Effective Date set forth below and is entered
into by and between [Insert name of Assignor] (the "Assignor")
and [Insert name of Assignee] (the "Assignee"). Capitalized
terms used but not defined herein shall have the meanings given
to them in the Credit Agreement identified below (as amended, the
"Credit Agreement"), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions
set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this
Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably
sells and assigns to the Assignee, and the Assignee hereby
irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the
Credit Agreement, as of the Effective Date inserted by
Administrative Agent as contemplated below, the interest in and
to all of the Assignor's Rights and obligations under the Credit
Agreement and any other documents or instruments delivered
pursuant thereto that represents the amount and percentage
interest identified below of all of the Assignor's outstanding
Rights and obligations under the respective Facilities identified
below (including, without limitation, any participations of the
Assignee in any LCs and Swing Line Borrowings under such
Facilities and, to the extent permitted to be assigned under
applicable Law, all claims (including without limitation contract
claims, tort claims, malpractice claims and all other claims at
Law or in equity, including claims under any Law governing the
purchase and sale of securities or governing indentures pursuant
to which securities are issued), suits, causes of action and any
other Right of the Assignor against any other Person) (the
"Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in
this Assignment, without representation or warranty by the
Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is
an Affiliate/Approved Fund of [identify
Lender]3]
3. Borrowers: Graphic Packaging International
Corporation and Graphic Packaging Corporation
4. Administrative Agent: Bank of America, N.A., as Administrative
Agent under the Credit Agreement
5. Credit Agreement: The Revolving Credit and Term Loan
Agreement dated as of August 2, 1999,
among Graphic Packaging International
Corporation and Graphic Packaging
Corporation, the Lenders parties
thereto, Bank of America, N.A., as
Administrative Agent, and the other agents
parties thereto
______________________________
3 Select as applicable.
6. Assigned Interest:
Facility Aggregate Amount of Commitment
Assigned Amount of Committed Sums Percentage (i.e.
Committed or Principal the proportion
Sums or Debt that the
Principal Assigned(as Assignee's
Debt for all applicable) ** Committed Sum to
Lenders be acquired
(as bears to the
applicable)* aggregate
Committed Sum of
all Lenders) or
Percentage of
Principal Debt
assigned (i.e.
the proportion
that the
Principal Debt
to be acquired
by the Assignee
bears to the
aggregate
Principal Debt
under the
respective
Facility)(set
forth to at
least 9 decimal
points)
Revolver
Facility $____________ $_____________ __________%
Term Loan
Facility $____________ $_____________ __________%
One-Year
Term
Facility $____________ $_____________ __________%
7. Trade Date: ______________[2]
Effective Date: _____________ ___, 20___
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
______________________________
* Amount to be adjusted by the counterparties to take into
account any payments or prepayments made between the Trade Date
and the Effective Date.
[2] To be completed if the Assignor and the Assignee intend that
the minimum assignment amount is to be determined as of the
Trade Date.
The terms set forth in this Assignment are hereby
agreed to:
ASSIGNOR
[NAME OF
ASSIGNOR]
By:______________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:______________________________
Title:
[Consented to and]3 Accepted:
Bank of America, N.A., as Administrative Agent
By_________________________________
Title:
[Consented to:]4
Graphic Packaging International Corporation
By________________________________
Title:
Graphic Packaging Corporation
By________________________________
Title:
_____________________________
3 To be added only if the consent of Administrative Agent is
required by the terms of the Credit Agreement.
4 To be added only if the consent of the Borrower and/or other
parties (e.g. Swingline Lender, L/C Issuer) is required by
the terms of the Credit Agreement.
ANNEX 1
Graphic Packing International Corporation/Graphic Packaging
Corporation Credit Agreement
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of the Assigned
Interest, (ii) the Assigned Interest is free and clear of any
Lien, encumbrance, or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the
transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit
Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Documents or any Collateral thereunder, (iii)
the financial condition of the Borrower, any of its Subsidiaries
or Affiliates, or any other Person obligated in respect of any
Loan Document or (iv) the performance or observance by the
Borrower, any of its Subsidiaries or Affiliates, or any other
Person of any of their respective obligations under any Loan
Document.
1.2. Assignee. The Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and to
consummate the transactions contemplated hereby and to become a
Lender under the Credit Agreement, (ii) it meets all requirements
of an Eligible Assignee under the Credit Agreement (subject to
receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall
have the obligations of a Lender thereunder, (iv) it has received
a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 9.3
thereof, as applicable, and such other documents and information
as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and to purchase the
Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on Administrative
Agent or any other Lender, and (v) if it is a Lender organized
under the Laws of a jurisdiction other than the United States,
attached to the Assignment is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement,
duly completed and executed by the Assignee; and (b) agrees that
(i) it will, independently and without reliance on Administrative
Agent, the Assignor, or any other Lender, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under the Loan Documents, and (ii) it will perform
in accordance with their terms all of the obligations which by
the terms of the Loan Documents are required to be performed by
it as a Lender.
2. Payments. From and after the Effective Date,
Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest,
fees, and other amounts) to the Assignee. The Assignor and the
Assignee shall make all appropriate adjustments in payments under
the Credit Agreement and the other Loan Documents for periods
prior to the Effective Date directly between themselves.
3. General Provisions. This Assignment shall be binding
upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment may be
executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart
of a signature page of this Assignment by telecopy shall be
effective as delivery of a manually executed counterpart of this
Assignment. This Assignment shall be governed by, and construed
in accordance with, the law of the State of New York.
