Exhibit 10.8
SECOND AMENDMENT AND CONSENT
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SECOND AMENDMENT AND CONSENT (this "Amendment"), dated as of June 1, 1998,
among SILGAN HOLDINGS INC., a Delaware corporation ("Silgan") SILGAN CONTAINERS
CORPORATION, a Delaware corporation ("Containers"), SILGAN PLASTICS CORPORATION,
a Delaware corporation ("Plastics", and together with Silgan and Containers, the
"Borrowers," and each individually, a "Borrower"), SILGAN CONTAINERS
MANUFACTURING CORPORATION, a Delaware corporation ("Containers Operating"), the
lenders from time to time party to the Credit Agreement referred to below (each
a "Bank" and, collectively, the "Banks"), BANKERS TRUST COMPANY, as
Administrative Agent (in such capacity, the "Administrative Agent"), BANK OF
AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, as Syndication Agent (in such
capacity, the "Syndication Agent"), XXXXXXX XXXXX CREDIT PARTNERS L.P. and
XXXXXX XXXXXXX SENIOR FUNDING, INC., as Co-Documentation Agents (in such
capacity, the "Co-Documentation Agents"), and BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION, BANKERS TRUST COMPANY, XXXXXXX SACHS CREDIT PARTNERS L.P.
and XXXXXX XXXXXXX SENIOR FUNDING, INC., as Co-Arrangers (in such capacity, the
"Co-Arrangers"). All capitalized terms used herein and not otherwise defined
herein shall have the respective meanings provided such terms in the Credit
Agreement referred to below.
W I T N E S S E T H:
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WHEREAS, the Borrowers, the Banks, the Administrative Agent, the
Syndication Agent, the Co-Documentation Agents and the Co-Arrangers are parties
to a Credit Agreement, dated as of July 29, 1997 (as amended, modified or
supplemented to the date hereof, the "Credit Agreement");
WHEREAS, (i) Containers and Containers Operating intend to organize a
Delaware limited liability company named Silgan LLC ("LLC") which will be an
indirect Wholly-Owned Domestic Subsidiary of Silgan, (ii) LLC intends to
organize a Delaware corporation named Silgan Corporation ("Can Co. Holding")
which will be an indirect Wholly-Owned Domestic Subsidiary of Silgan and (iii)
Can Co. Holding intends to organize a Delaware corporation named Silgan Can
Company ("Silgan Can Co.") which will be an indirect Wholly-Owned Domestic
Subsidiary of Silgan;
WHEREAS, Silgan Can Co. intends to purchase substantially all of the steel
food containers manufacturing assets of Xxxxxxxx Soup Company, a New Jersey
corporation ("Xxxxxxxx Soup"), for a purchase price estimated to be
approximately $125,000,000 (with the actual purchase price to be based on the
approximate net book value of the assets so acquired) through the purchase by
Silgan Can Co. of all of the capital stock of a newly created Delaware
Subsidiary of Xxxxxxxx Soup ("Newco") which will own substantially all such
steel food containers manufacturing assets (the "Xxxxxxxx Can Acquisition");
WHEREAS, immediately following the closing of the Xxxxxxxx Can Acquisition,
Silgan Can Co. will merge with and into Newco, with Newco being the surviving
corporation of such merger and changing its name to "Silgan Can Company" (such
surviving corporation also hereinafter referred to as "Silgan Can Co.") (the
"Xxxxxxxx Can Merger");
WHEREAS, Silgan Can Co. intends to finance the Xxxxxxxx Can Acquisition
through (i) the incurrence by Silgan Can Co. of Revolving Loans in an aggregate
principal amount not to exceed 80% of the cash purchase price for the Xxxxxxxx
Can Acquisition, (ii) the incurrence by Containers of Revolving Loans in an
aggregate principal amount not to exceed 20% of the cash purchase price for the
Xxxxxxxx Can Acquisition and the contribution of such amount to Silgan Can Co.
and (iii) the issuance by Silgan Can Co. of a 10 year promissory note to
Xxxxxxxx Soup in an aggregate principal amount of $3,000,000 which will bear
interest at a rate not to exceed 16 2/3% per annum and will be payable quarterly
in arrears (the "Xxxxxxxx Seller Note");
WHEREAS, Silgan Can Co. will require up to an additional $25,000,000 of
Revolving Loans in the aggregate from time to time to fund its working capital,
capital expenditure and general corporate requirements;
WHEREAS, Silgan desires that Silgan Can Co. become a Revolving Borrower
under the Credit Agreement;
WHEREAS, as part of the Xxxxxxxx Can Acquisition and the financing
therefor, (i) Silgan Can Co. will secure its Obligations to the Banks through a
pledge of substantially all of its assets, although Silgan Can Co. will not be
required or permitted to guaranty the Obligations of any other Borrower, (ii)
LLC and Can Co. Holding will guaranty the Obligations of all Borrowers to the
Banks and will secure such guaranty through a pledge of substantially all of
their assets (other than the capital stock of Silgan Can Co.), (iii) all other
Credit Parties will guaranty the Obligations of Silgan Can Co. to the Banks on
the basis currently set forth in the Credit Documents and (iv) the obligations
of Silgan Can Co. to Xxxxxxxx Soup under the Xxxxxxxx Can Acquisition Documents
and the obligations of Silgan Can Co. under its certificate of incorporation and
bylaws will be (x) guaranteed, on an unsecured basis (except as provided below),
by Silgan, Containers, Containers Operating and Can Co. Holding and (y) secured
by a pledge of the capital stock of Silgan Can Co.;
WHEREAS, Silgan has requested, and the Banks have agreed, to certain
amendments and/or modifications to the Credit Documents to consummate the
transactions described above, in each case as provided herein, and
WHEREAS, subject to the terms and conditions set forth below, the parties
hereto agree as follows;
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NOW, THEREFORE, it is agreed:
1. Section 1.01(c) of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (iii) thereof, (ii)
deleting the period appearing at the end of clause (iv) thereof and inserting ";
and" in lieu thereof and (iii) inserting the following new clause (v) at the end
thereof and the following new sentence at the end thereof:
"(v) shall not exceed for Silgan Can Co. at any time outstanding that
aggregate principal amount which, (A) when added to the sum of (I) the
aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid
Drawings which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans by Silgan Can
Co.) in respect of Letters of Credit issued for the account of Silgan Can
Co. at such time and (II) the aggregate principal amount of all Swingline
Loans (exclusive of Swingline Loans which are repaid with the proceeds of,
and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) incurred by Silgan Can Co. then outstanding, equals the
Silgan Can Co. Revolving Sub-Limit then in effect or (B) when added to the
sum of (I) the aggregate amounts calculated in clause (A) above and
outstanding at such time and (II) the aggregate amount of all other Silgan
Can Co. Included Debt outstanding at such time, equals the Silgan Can Co.
Permitted Debt Amount at such time.
Notwithstanding anything to the contrary contained in this Agreement,
in no event shall the sum of (I) the aggregate principal amount of all
Revolving Loans and Swingline Loans outstanding at any time and incurred by
the Revolving Borrowers (other than Silgan Can Co.) and (II) the aggregate
amount of all Letter of Credit Outstandings at such time in respect of all
Letters of Credit issued for the account of the Revolving Borrowers (other
than Silgan Can Co.), exceed an amount equal to the remainder of (x) the
Total Revolving Loan Commitment at such time minus (y) the Silgan Can Co.
Revolving Sub-Limit at such time."
2. Section 1.01(d) of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (iii) thereof, (ii)
deleting the period appearing at the end of clause (iv) thereof and inserting ",
and" in lieu thereof and (iii) inserting the following new clause (v) at the end
thereof:
"(v) shall not exceed for Silgan Can Co. at any time outstanding that
aggregate principal amount which, (A) when added to the sum of (I) the
aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid
Drawings which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans by Silgan Can
Co.) in respect of Letters of Credit issued for the account of Silgan Can
Co. at such time and (II) the aggregate principal amount of all Swingline
Loans (exclusive of Swingline Loans which are repaid with the proceeds of,
and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) incurred by Silgan Can Co. then outstanding, equals the
Silgan Can Co. Revolving Sub-Limit then in effect or (B) when added to the
sum of (I) the aggregate amounts calculated in clause (A) above and
outstanding at such time and (II) the aggregate amount of all other Silgan
Can Co. Included Debt outstanding at such time, equals the Silgan Can Co.
Permitted Debt Amount at such time."
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3. Section 2.01 of the Credit Agreement is hereby amended by inserting the
following new clause (d) at the end thereof:
"(d) Notwithstanding anything to the contrary contained above in this
Section 2.01, no Letter of Credit shall be issued for the account of Silgan
Can Co. the Stated Amount of which, (A) when added to the sum of (I) the
aggregate amount of all other Letter of Credit Outstandings (exclusive of
Unpaid Drawings which are repaid on the date of, and prior to the issuance
of, the respective Letter of Credit) in respect of all other Letters of
Credit issued for the account of Silgan Can Co. at such time and (II) the
aggregate principal amount of all Revolving Loans and Swingline Loans
incurred by Silgan Can Co. then outstanding, would exceed an amount equal
to the Silgan Can Co. Revolving Sub-Limit then in effect or (B) when added
to the sum of (I) the aggregate amounts calculated in clause (A) above and
outstanding at such time and (II) the aggregate amount of all other Silgan
Can Co. Included Debt outstanding at such time, would exceed the Silgan Can
Co. Permitted Debt Amount at such time."
4. Section 3.01 of the Credit Agreement is hereby amended by inserting the
following new clause (f) at the end thereof:
"(f) Notwithstanding anything to the contrary contained in this
Section 3.01, Silgan Can Co. shall not be jointly or severally liable with
the other Borrowers for any Fees obligated to be paid by the other
Borrowers; although Silgan Can Co. will remain obligated for its portion of
the accrued Commitment Commission, Letter of Credit Fees, Facing Fees and
other Fees except upon a sale or other disposition pursuant to Section
12.21(b), in which case Containers and the other Borrowers (in no event to
include Silgan Can Co.) shall be solely jointly and severally liable for
the amount of all Fees owing by Silgan Can Co. as otherwise provided above
in this Section 3.01."
5. Section 4.02(a) of the Credit Agreement is hereby amended by inserting
the following new clause (iii) at the end thereof:
"(iii) On any day on which (A) the sum of (I) the aggregate
outstanding principal amount of Revolving Loans made to Silgan Can Co.,
(II) the aggregate outstanding principal amont of Swingline Loans made to
Silgan Can Co. and (III) the aggregate amount of all Letter of Credit
Outstandings in respect of Letters of Credit issued for the account of
Silgan Can Co. at such time exceeds the Silgan Can Co. Revolving Sub-Limit
then in effect or (B) the sum of (I) the aggregate amounts calculated in
clause (A) above outstanding at such time and (II) the aggregate amount of
all other Silgan Can Co. Included Debt outstanding at such time exceeds the
Silgan Can Co. Permitted Debt Amount at such time, Silgan Can Co. shall (in
either case) repay on such day principal of Swingline Loans made to Silgan
Can Co. and, after all such Swingline Loans have been repaid in full,
Revolving Loans made to Silgan Can Co. in an amount equal to such excess.
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If after giving effect to the prepayment of all outstanding Swingline Loans
and Revolving Loans made to Silgan Can Co., either (A) the aggregate amount
of all Letter of Credit Outstandings in respect of Letters of Credit issued
for the account of Silgan Can Co. at such time exceeds the Silgan Can Co.
Revolving Sub-Limit then in effect or (B) the sum of (I) the aggregate
amount of all Letter of Credit Outstandings in respect of Letters of Credit
issued for the account of Silgan Can Co. at such time and (II) the
aggregate amount of all other Silgan Can Co. Included Debt outstanding at
such time exceeds the Silgan Can Co. Permitted Debt Amount at such time,
Silgan Can Co. shall (in either case) pay to the Administrative Agent at
the Payment Office on such day an amount of cash and/or Cash Equivalents
equal to the amount of such excess (up to a maximum amount equal to such
Letter of Credit Outstandings at such time), such cash or Cash Equivalents
to be held as security for all obligations of Silgan Can Co. to the Banks
hereunder in the Cash Collateral Account, provided, that such amounts
shall, so long as no Default or Event of Default then exists, be released
to Silgan Can Co. from time to time in the amount by which the lesser of
(x) the Silgan Can Co. Revolving Sub-Limit then in effect exceeds the sum
of (I) the aggregate outstanding principal amount of the Revolving Loans
made to Silgan Can Co., (II) the aggregate outstanding principal amount of
Swingline Loans made to Silgan Can Co. and (III) the aggregate amount of
all Letter of Credit Outstandings at such time in respect of all Letters of
Credit issued for the account of Silgan Can Co. or (y) the Silgan Can Co.
Permitted Debt Amount at such time exceeds the sum of (I) the aggregate
amounts referred to in preceding clause (x) outstanding at such time and
(II) the aggregate outstanding amount of all other Silgan Can Co. Included
Debt at such time."
6. Section 4.02(f) of the Credit Agreement is hereby amended by inserting
the following new sentence at the end thereof:
"Notwithstanding anything to the contrary contained above in this
Section 4.02(f), so long as no Default or Event of Default then exists
which results in the termination of the Total Commitment under this
Agreement, any cash proceeds (even if such cash proceeds exceeds
$25,000,000) received by Silgan Can Co. from any Recovery Event in respect
of its assets may be reinvested as provided above in this Section 4.02(f)."
7. Section 4.02(l) of the Credit Agreement is hereby amended by deleting
the amount "$125,000,000" appearing therein and inserting the words "the
Available Amount at such time" in lieu thereof.
8. Section 4.02 of the Credit Agreement is hereby further amended by
inserting the following new clauses (o), (p) and (q) at the end thereof:
(o) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, upon any receipt by Silgan Can
Co. of any cash capital contribution only pursuant to (and only to the
extent required by) Section 7.14, an amount equal to 100% of such cash
capital contribution shall be applied as a mandatory repayment of principal
of outstanding Revolving Loans and Swingline Loans made to Silgan Can Co.
(p) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, Silgan Can Co. shall be required
to repay outstanding Revolving Loans and Swingline Loans made to it with
the Net Sale Proceeds from any Asset Sale made by Silgan Can Co. or any of
its Subsidiaries to the extent that such Net Sale Proceeds are not
reinvested by Silgan Can Co. or any of its Subsidiaries as permitted by
Section 4.02(e).
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(q) Notwithstanding anything to the contrary contained in this
Agreement, in the event that Xxxxxxxx Soup or a Subsidiary thereof
purchases all of the capital stock or all or substantially all of the
assets of Silgan Can Co., whether pursuant to the terms of the Xxxxxxxx Can
Acquisition Documents or otherwise, all then outstanding Revolving Loans
and Swingline Loans made to Silgan Can Co. shall have been (or shall
concurrently be) repaid in full at such time and all Letters of Credit
issued for the account of Silgan Can Co. shall have been (or shall
concurrently be) cash collateralized in a manner satisfactory to the
Administrative Agent."
9. Section 6.01 of the Credit Agreement is hereby amended by (i) deleting
the word "incorporation" appearing in clause (i) thereof and inserting the word
"organization" in lieu thereof and (ii) inserting the text ", partnership or
limited liability company, as the case may be," immediately after both
appearances of the word "corporation" and immediately after the word
"corporate", in each case appearing therein.
10. Section 6.02 of the Credit Agreement is hereby amended by inserting the
text ", partnership or limited liability company, as the case may be,"
immediately after both appearances of the word "corporate" appearing therein.
11. Section 7.01 of the Credit Agreement is hereby amended by inserting the
following new clause (i) at the end thereof:
"(i) Silgan Can Co. Monthly Reports. Within 30 days after the end of
each fiscal month of Silgan Can Co., (i) the unaudited balance sheet of
Silgan Can Co. as at the end of such fiscal month which shall be certified
by the chief financial officer, treasurer or controller of Silgan or Silgan
Can Co. and (ii) a certificate of the chief financial officer, treasurer or
controller of Silgan or Silgan Can Co. setting forth (in reasonable detail)
(A) the calculations required to establish the Silgan Can Co. Permitted
Debt Amount and the aggregate outstanding amount of all Silgan Can Co.
Included Debt as at the end of such fiscal month and (B) the aggregate
outstanding principal amount of all Revolving Loans and Swingline Loans
made to Silgan Can Co. and the aggregate outstanding principal amount of
all Letter of Credit Outstandings in respect of Letters of Credit issued
for the account of Silgan Can Co. as at the end of the Business Day
immediately preceding the date of such certificate."
12. Section 7.09(a) of the Credit Agreement is hereby amended by (i)
inserting "(x)" immediately before the text "this Section 7.09(a)" appearing in
the final sentence thereof and (ii) inserting the following text at the end of
such final sentence:
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"and (y) any Additional Security Documents entered into by Silgan Can
Co. shall only secure Silgan Can Co.'s direct obligations under the Credit
Documents to which it is a party."
13. Section 7 of the Credit Agreement is hereby amended by inserting the
following new Sections 7.13 and 7.14 at the end thereof:
"7.13 Xxxxxxxx Can Merger. On the date on which the Xxxxxxxx Can
Acquisition is consummated and immediately following the consummation
thereof, Silgan shall cause Silgan Can Co. to consummate the Xxxxxxxx Can
Merger.
7.14 Silgan Can Co. Capital Contributions. If, at any time that Silgan
Can Co. has any Revolving Loans or Swingline Loans outstanding, Silgan Can
Co. makes or pays any Dividend to Silgan or any of its Subsidiaries, then
immediately after Silgan or any of its Subsidiaries receives any such
Dividend from Silgan Can Co., Silgan will, and will cause its respective
Subsidiaries to, immediately contribute the full amount of such Dividend to
Silgan Can Co. as an equity contribution, and Silgan Can Co. shall use the
full amount of any such cash capital contribution to make a payment
pursuant to (and to the extent required by) Section 4.02(o)."
14. Section 8.01 of the Credit Agreement is hereby amended by (i) deleting
the word "and" appearing at the end of clause (xvi) thereof, (ii) inserting the
following text immediately after the words "Receivables Subsidiary" appearing in
the parenthetical contained in clause (xvii) thereof: "and Silgan Can Co.",
(iii) deleting the period appearing at the end of clause (xvii) thereof and
inserting a semi-colon in lieu thereof, and (iv) inserting the following new
clauses (xviii) and (xix) at the end thereof:
"(xviii) Liens on the capital stock of Silgan Can Co. in favor of
Xxxxxxxx Soup solely to secure the respective Credit Parties' obligations
to Xxxxxxxx Soup under the Xxxxxxxx Can Acquisition Documents; and
(xix) Liens on the capital stock and assets of Silgan Can Co. created
by virtue of Xxxxxxxx Soup's option to purchase all of Silgan Can Co.'s
capital stock or assets as set forth in the Xxxxxxxx Can Acquisition
Documents."
15. Section 8.02(x) of the Credit Agreement is hereby amended by deleting
the text "and (xvii)" appearing in clause (v) therein and inserting the text ",
(xvii) and (xviii)" in lieu thereof.
16. Section 8.02 of the Credit Agreement is hereby further amended by (i)
deleting the period appearing at the end of clause (x) thereof and inserting ";
and" in lieu thereof, (ii) inserting the following new clauses (xi) and (xii) at
the end thereof:
"(xi) immediately following the consummation of the Xxxxxxxx Can
Acquisition, the Xxxxxxxx Can Merger shall be permitted; and
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(xii) such Borrower and its Subsidiaries (other than Silgan Can Co.
and its Subsidiaries) may sell inventory, materials, supplies, equipment
and spare parts to Silgan Can Co. and its Subsidiaries, and Silgan Can Co.
may sell such items to other Credit Parties, in each case, so long as all
such sales are on an arm's-length basis and are for cash (although in the
case of the sale of materials, supplies, equipment or spare parts, the
consideration may be in the form of the substantially simultaneous exchange
for materials, supplies, equipment or spare parts, as applicable, of
equivalent value)."
and (iii) inserting the following new sentence at the end thereof:
"Notwithstanding anything to the contrary contained above in this
Section 8.02 or elsewhere in this Agreement, (x) in no event
shall Silgan Can Co. or any of its Subsidiaries be permitted to
engage in any transaction otherwise permitted by clauses (iv),
(v), (viii), (ix) (other than in respect of the Xxxxxxxx Can
Merger) and (x) of this Section 8.02, and (y) in no event shall
the capital stock of Silgan Can Co. or any of its Subsidiaries be
sold directly, or through the sale of any parent company of
Silgan Can Co., other than as expressly permitted by Section
12.21 (b)."
17. Section 8.04 of the Credit Agreement is hereby amended by (i) deleting
the word "and" appearing at the end of clause (xvi) thereof, (ii) deleting the
period appearing at the end of clause (xvii) thereof and inserting a semicolon
in lieu thereof, (iii) inserting the following new clauses (xviii) and (xix) at
the end thereof:
"(xviii) Indebtedness of Silgan Can Co. under the Xxxxxxxx Seller Note
in an aggregate principal amount not to exceed $3,000,000; and
(xix) an unsecured guaranty by Silgan, Containers, Containers
Operating, Can Co. Holding and Silgan Can Co. of each other's obligations
to Xxxxxxxx Soup under the Xxxxxxxx Can Acquisition Documents, although
such guaranty may be secured by the capital stock of Silgan Can Co.";
and (iv) inserting the following new sentence at the end thereof:
"Notwithstanding anything to the contrary contained above in
this Section 8.04, (x) in no event shall Silgan Can Co. or any
of its Subsidiaries incur any Indebtedness under clauses (xi),
(xiii) and (xvii) of this Section 8.04 and (y) in no event
shall Silgan or any of its Subsidiaries guaranty any
obligations of Silgan Can Co. or any of its Subsidiaries to
Xxxxxxxx Soup or any Subsidiary thereof other than as
expressly permitted by clause (xix) of this Section 8.04."
18. Section 8.05 of the Credit Agreement is hereby amended by (i) inserting
the following proviso at the end of clause (iii) thereof: "; provided, however,
that the Borrowers and their Subsidiaries may make up to an additional
$10,000,000 of loans in the aggregate to their employees solely to finance the
payment by such employees of the exercise price for, and the taxes relating to
the exercise of, stock options in Silgan so long as such loans are made only in
1998, 1999 and 2000" and (ii) inserting the following new sentence at the end
thereof:
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"Notwithstanding anything to the contrary contained above in
this Section 8.05, (x) in no event shall Silgan Can Co. or any
of its Subsidiaries be permitted to make any Investments
otherwise permitted by clauses (xii) and (xiii) of this
Section 8.05 and (y) in no event shall Silgan or any of its
other Subsidiaries be permitted to make any Investments in
Silgan Can Co. or any of its Subsidiaries otherwise permitted
to be made under this Section 8.05, although Containers and
its other Wholly-Owned Subsidiaries may (A) make cash equity
Investments in, and Intercompany Loans to, Silgan Can Co. in
an aggregate amount outstanding for all such Investments not
to exceed $75,000,000 at any time (determined without regard
to any write-downs or write-offs thereof), (B) make a cash
equity Investment in Silgan Can Co. in an amount up to 20% of
the cash purchase price for the Xxxxxxxx Can Acquisition so
long as such Investment is made at the time of the
consummation of the Xxxxxxxx Can Acquisition and the proceeds
thereof are used to finance the same and (C) make equity
Investments in Silgan Can Co. as, and to the extent, required
by Section 7.14 (it being understood and agreed that (i) all
Investments made to Silgan Can Co. as an Intercompany Loan
shall be evidenced by an Intercompany Note which shall be
pledged to the Collateral Agent under the Pledge Agreement and
(ii) all Investments made in or to Silgan Can Co. as permitted
in this sentence shall be in addition to the Investment
amounts permitted by clauses (vii), (viii) and (xiii) of this
Section 8.05, provided that no portion of the Investment
amounts set forth in such clauses (vii), (viii) and (xiii) may
be used to make Investments in Silgan Can Co. or any of its
Subsidiaries)."
19. Section 8.10 of the Credit Agreement is hereby amended by inserting the
following new sentence at the end thereof:
"In addition to the foregoing, none of the Borrowers will, nor will it
permit any of its Subsidiaries to, (i) make any voluntary or optional
payment or prepayment on or redemption or acquisition for value of or
exchange the Xxxxxxxx Seller Note or (ii) amend or modify, or permit the
amendment or modification of, any provision of the Xxxxxxxx Seller Note,
the Xxxxxxxx Can Guaranty, Section 6(b) of the Xxxxxxxx Can Pledge
Agreement or any Xxxxxxxx Can Acquisition Document to the extent that such
amendment or modification would decrease the purchase price required to be
paid by Xxxxxxxx Soup or a Subsidiary thereof for the capital stock or
assets of Silgan Can Co. and its Subsidiaries upon the exercise of its
remedies under the Xxxxxxxx Can Acquisition Documents, change the assets on
which Xxxxxxxx Soup has a Lien or an option to purchase or alter in any way
the obligation of Xxxxxxxx Soup or a Subsidiary thereof to repay in full
all Obligations (other than accrued Fees) of Silgan Can Co. up to the
Silgan Can Co. Permitted Debt Amount or, with respect to accrued Fees of
Silgan Can Co., the obligation of Containers or any other Borrower other
than Silgan Can Co. to repay in full all such accrued Fees, upon the
exercise by Xxxxxxxx Soup of its remedies under the Xxxxxxxx Can Pledge
Agreement."
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20. Section 8.11 of the Credit Agreement is hereby amended by inserting the
following new sentence at the end thereof:
"Notwithstanding anything to the contrary contained in this Section
8.11, (x) in no event shall Silgan Can Co. or any of its Subsidiaries
establish, create or acquire any Subsidiary, (y) Silgan Can Co. shall not
be required to enter into the Borrowers/Subsidiaries Guaranty and (z) the
capital stock of Silgan Can Co. shall not be required to be pledged under
the Pledge Agreement so long as such capital stock is pledged in favor of
Xxxxxxxx Soup or a Subsidiary thereof pursuant to the Xxxxxxxx Can Pledge
Agreement."
21. Section 8.14 of the Credit Agreement is hereby amended by inserting the
following new paragraph at the end thereof:
"(c) Notwithstanding anything to the contrary contained in this
Agreement, Can Co. Holding (1) will hold no assets other than the capital
stock of Silgan Can Co. and Intercompany Loans to Silgan and its other
Subsidiaries otherwise permitted to be made under this Agreement and engage
in no business other than (i) those activities that are incidental to (x)
the maintenance of its corporate existence in compliance with applicable
law, (y) legal, tax and accounting matters in connection with any of the
permitted activities under this clause (c) and (z) the entering into, and
performing its obligations under, this Agreement, the other Credit
Documents to which it is a party and the Xxxxxxxx Can Acquisition Documents
to which it is a party and (2) may in no event transfer the capital stock
of Silgan Can Co. to Silgan or any other Subsidiary or Affiliate."
22. Section 9.03(ii) of the Credit Agreement is hereby amended by (i)
inserting ", 7.14" immediately following the reference to "7.07" appearing
therein and (ii) inserting "and, in the case of a default pursuant to Section
7.14, such default shall continue unremedied for a period of 14 days"
immediately prior to the semicolon appearing therein.
19. The definition of "Designated Credit Parties" appearing in Section
10.01 of the Credit Agreement is hereby amended by inserting the following at
the end thereof:
", although neither Silgan Can Co. nor any of its Subsidiaries shall
be permitted to be a party to any of the Accounts Receivable Facility
Documents".
22. The definition of "Guarantor" appearing in Section 10.01 of the Credit
Agreement is hereby amended by inserting the following at the end thereof:
", although neither Silgan Can Co. nor any of its Subsidiaries shall
be a Guarantor for so long as the terms of the Xxxxxxxx Can
Acquisition Documents prohibit Silgan Can Co. from guarantying the
Obligations of the other Borrowers".
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23. The definition of "Leverage Ratio" appearing in Section 10.01 of the
Credit Agreement is hereby amended by inserting the following at the end
thereof:
", it being understood and agreed, however, for purposes of
determining Total Indebtedness or Revolving Loans at any time, there
shall be excluded from such calculation that aggregate principal
amount of all Revolving Loans and Swingline Loans made to Silgan Can
Co. which equals the aggregate amount of unrestricted cash and Cash
Equivalents held by Silgan and its other Subsidiaries as reflected on
the consolidated balance sheet of Silgan as of the last day of such
period".
24. The definition of "Minimum Borrowing Amount" appearing in Section 10.01
of the Credit Agreement is hereby amended by inserting the parenthetical
"(except that in the case of Revolving Loans made to Silgan Can Co. incurred as
Base Rate Loans, the Minimum Borrowing Amount in respect thereof shall be
$1,000,000)" immediately after the amount "$2,500,000" appearing in clause (ii)
thereof.
25. The definition of "Subsidiary Guarantor" appearing in Section 10.01 of
the Credit Agreement is hereby amended by inserting the following at the end
thereof:
", although neither Silgan Can Co. nor its Subsidiaries shall be a
Subsidiary Guarantor for so long as the terms of the Xxxxxxxx Can
Acquisition Documents prohibit Silgan Can Co. from guarantying the
Obligations of the other Borrowers".
26. Section 10.01 of the Credit Agreement is hereby further amended by
inserting the following new definitions in the appropriate alphabetical order:
"Available Amount" shall mean, at any time, an amount equal to the
remainder of (x) $125,000,000 minus (y) the aggregate outstanding principal
amount of Revolving Loans incurred by Silgan Can Co. to finance the
Xxxxxxxx Can Acquisition less any repayments of principal thereof.
"Xxxxxxxx Can Acquisition" shall have the meaning provided in the
recitals to the Second Amendment.
"Xxxxxxxx Can Acquisition Documents" shall mean (i) the Purchase
Agreement by and among Xxxxxxxx Soup, Silgan Can Co. and Containers, (ii)
the Xxxxxxxx Can Pledge Agreement, (iii) the Xxxxxxxx Can Guaranty, (iv)
the Xxxxxxxx Can Supply Agreement, (v) the Xxxxxxxx Seller Note, (vi) the
Shared Services Agreement by and among Xxxxxxxx Soup, Silgan Can Co. and
Containers, (vii) the Labor Supply Agreement by and among Xxxxxxxx Soup,
Silgan Can Co. and Containers, (viii) the Intercompany Agreement by and
among Containers, Containers Operating, Silgan Can Co. and Xxxxxxxx Soup,
(ix) all leases by and among Silgan Can Co., Containers and Xxxxxxxx Soup,
(x) Silgan Can Co.'s certificate of incorporation and (xi) Silgan Can Co.'s
bylaws.
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"Xxxxxxxx Can Guaranty" shall mean the Guaranty to be entered into in
connection with the Xxxxxxxx Can Acquisition, made by Silgan, Containers,
Container Operating, Silgan Can Co. and Can Co. Holding in favor of
Xxxxxxxx Soup.
"Xxxxxxxx Can Merger" shall have the meaning provided in the recitals
to the Second Amendment.
"Xxxxxxxx Can Pledge Agreement" shall mean the Pledge and Rights
Agreement to be entered into in connection with the Xxxxxxxx Can
Acquisition, between Can Co. Holding, Containers, Silgan Can Co. and
Xxxxxxxx Soup.
"Xxxxxxxx Can Supply Agreement" shall mean the Supply Agreement to be
entered into in connection with the Xxxxxxxx Can Acquisition by and among
Containers, Silgan Can Co. and Xxxxxxxx Soup.
"Xxxxxxxx Seller Note" shall have the meaning provided in the
recitals to the Second Amendment.
"Xxxxxxxx Soup" shall have the meaning provided in the recitals to the
Second Amendment.
"Can Co. Holding" shall have the meaning provided in the recitals to
the Second Amendment.
"Containers Operating" shall have the meaning provided in the recitals
to the Second Amendment.
"LLC" shall have the meaning provided in the recitals to the Second
Amendment.
"Second Amendment" shall mean the Second Amendment and Consent, dated
as of May 28, 1998, to this Agreement.
"Silgan Can Co." shall have the meaning provided in the recitals to
the Second Amendment.
"Silgan Can Co. Included Debt" shall mean all Indebtedness of Silgan
Can Co. that is required to be included in the calculation of the Silgan
Can Co. Permitted Debt Amount.
"Silgan Can Co. Permitted Debt Amount" shall mean, at any time, the
"Permitted Debt Amount" calculated at such time under, and as defined in,
Silgan Can Co.'s certificate of incorporation (as such certificate of
incorporation is in effect on June 3, 1998).
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"Silgan Can Co. Revolving Sub-Limit" shall mean, initially, the sum of
80% of the cash purchase price for the Xxxxxxxx Can Acquisition paid to
Xxxxxxxx Soup on the closing date of such acquisition plus $25,000,000, and
with the amount of the Silgan Can Co. Revolving Sub-Limit to be reduced
from time to time thereafter by the principal amount of (x) any repayment
required to be made under Section 4.02(o), 4.02(p) or 4.02(q) (whether or
not any Revolving Loans or Swingline Loans are actually outstanding at such
time) and (y) any voluntary prepayment made by Silgan Can Co. of any
Revolving Loans or Swingline Loans incurred by it to the extent that Silgan
Can Co. notifies the Administrative Agent that the Silgan Can Co. Revolving
Sub-Limit is to be reduced by the amount of any such prepayment (or any
portion thereof), provided that, notwithstanding anything to the contrary
contained above but except as provided below or to the extent requested by
Silgan Can Co., the Silgan Can Co. Revolving Sub-Limit shall not be reduced
to below $25,000,000. Notwithstanding the foregoing, the Silgan Can Co.
Revolving Sub-Limit shall be reduced to zero upon any requirement to repay
all outstanding Revolving Loans or Swingline Loans incurred by Silgan Can
Co. pursuant to Section 4.02(q) (whether or not any Revolving Loans or
Swingline Loans are actually outstanding at such time).
"Triggering Event" shall mean (i) any of the events described in
Section 6(a) of the Xxxxxxxx Can Pledge Agreement, (ii) the non-renewal of
the term under the Xxxxxxxx Can Supply Agreement and purchase by Xxxxxxxx
Soup of all of Silgan Can Co.'s assets, all as described in Article 8 of
the Xxxxxxxx Can Supply Agreement and (iii) any other event that allows
Xxxxxxxx Soup to purchase all or substantially all of the assets or capital
stock of Silgan Can Co.
27. The Credit Agreement is hereby further amended by inserting the
following new Section 12.21 at the end thereof:
"12.21 Xxxxxxxx Standstill Period/Xxxxxxxx Repurchase (a) Each of the
Banks hereby expressly acknowledges and agrees for the sole benefit of
Xxxxxxxx Soup that (i) the Administrative Agent shall be required to give
Xxxxxxxx Soup 30 days' prior written notice of the Banks' decision to
exercise any remedies against Silgan Can Co. or Can Co. Holding that may be
available to the Banks under the Credit Documents upon the occurrence of an
Event of Default and (ii) neither the Administrative Agent nor the Banks
shall exercise any such remedies against Silgan Can Co. or Can Co. Holding
until the expiration of such 30 day period; it being expressly understood
and agreed, however, that (x) nothing in this Section 12.21 shall prevent
either (A) the Total Commitment being automatically terminated and all
Obligations becoming automatically due and payable upon the occurrence of
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an Event of Default under Section 9.05 or (B) the termination of the Total
Commitment upon the occurrence of an Event of Default, (y) the 30 day
standstill period referred to above in the case of an Event of Default
under Section 9.05 shall commence upon the occurrence of such Event of
Default and no notice to Xxxxxxxx Soup shall be required and (z) the
provisions of this Section 12.21(a) shall not apply to any Credit Party
other than Silgan Can Co. and Can Co. Holding. Each of the Banks and each
of the Borrowers hereby acknowledges and agrees that the provisions of this
Section 12.21(a) are for the sole benefit of Xxxxxxxx Soup (and may not be
amended, modified or waived without the prior written consent of Xxxxxxxx
Soup) and that Xxxxxxxx Soup shall be (and is hereby) a third party
beneficiary of such provisions; it being understood and agreed, however,
that the provisions of this Section 12.21(a) shall not affect any of the
obligations that the Borrowers or any other Credit Party may have under
this Agreement or any other Credit Document to which they are a party.
(b) Notwithstanding anything to the contrary contained in this
Agreement, upon the occurrence of a Triggering Event, (i) the sale or other
disposition (including by way of foreclosure or other purchase under the
Xxxxxxxx Can Pledge Agreement) of all, but not less than all, of the
capital stock or assets of Silgan Can Co. shall be permitted in accordance
with the terms of the respective Xxxxxxxx Can Acquisition Documents so long
as at the time of such sale or other disposition. Xxxxxxxx Soup has repaid
directly to the Administrative Agent all outstanding Obligations of Silgan
Can Co. (other than accrued Fees which shall be repaid by Containers or any
other Borrower other than Silgan Can Co.) up to the Silgan Can Co.
Permitted Debt Amount at such time and in connection therewith, the assets
so sold to Xxxxxxxx Soup shall be sold free and clear of the Liens created
by the respective Security Documents, it being understood that if the
respective sale is of all of the capital stock of Silgan Can Co., Silgan
Can Co. shall be released of any further liabilities in respect of any
Obligations incurred by it (although such other Obligations shall not be
extinguished and shall remain outstanding and the other Credit Parties
shall remain fully obligated in respect of all such Obligations under the
Borrowers/Subsidiaries Guaranty) and (ii) the Borrower shall promptly give
the Administrative Agent written notice of such Triggering Event. Each of
the Banks and each of the Borrowers hereby acknowledges and agrees that the
provisions of this Section 12.21(b) are for the sole benefit of Xxxxxxxx
Soup (and may not be amended, modified or waived without the prior written
consent of Xxxxxxxx Soup; although the provisions of this Section 12.21(b)
are also for the benefit of (and binding against) the Borrowers and all the
other Credit Parties to the extent necessary to enable them to effect such
sale or other disposition and cause the release of the Liens on the
respective assets) and that Xxxxxxxx Soup shall be (and is hereby) a third
party beneficiary of this Section 12.21(b).
(c) Notwithstanding anything to the contrary contained in this
Agreement, in no event shall Section 7.14 or 8.14(c)(2) or any of the terms
thereof be changed, waived, discharged or terminated without the prior
written consent of Xxxxxxxx Soup."
28. Section 2 of the Pledge Agreement is hereby amended by inserting the
following new sentence at the end thereof:
"Notwithstanding anything to the contrary contained in this Agreement,
in no event shall the term "Stock" include, and no Pledgor shall be
required to pledge, the capital stock of Silgan Can Co., in each case so
long as such capital stock is subject to the terms of the Xxxxxxxx Can
Pledge Agreement."
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29. Section 11 of the Pledge Agreement is hereby amended by inserting the
following new sentence at the end thereof:
"Notwithstanding anything to the contrary contained in this Agreement,
Silgan Can Co. shall not be jointly and severally liable with the other
Pledgors for any indemnity obligations under this Section 11; although
Silgan Can Co. will remain obligated for indemnity obligations with respect
to its own actions."
30. Section 8.1 of the Security Agreement is hereby amended by inserting
the following new sentence at the end thereof:
"Notwithstanding anything to the contrary contained in this Agreement,
Silgan Can Co. shall not be jointly and severally liable with the other
Assignors for any indemnity obligations under this Section 8.1; although
Silgan Can Co. will remain obligated for indemnity obligations with respect
to its own actions."
31. At the time of creation of LLC, Can Co. Holding and Silgan Can Co., all
such Credit Parties shall take the respective actions required to be taken by
them pursuant to Section 8.11 of the Credit Agreement, as modified by the terms
of this Amendment, including such estoppel letters, landlord waiver letters,
non-disturbance letters and similar assurances as may have been requested by the
Administrative Agent, which letters shall be in form and substance reasonably
satisfactory to the Administrative Agent.
32. The Banks hereby consent to the Xxxxxxxx Can Acquisition on the terms
and conditions consistent with this Amendment so long as (i) the terms and
conditions of the Xxxxxxxx Can Acquisition Documents are not inconsistent with
the terms of this Amendment and are otherwise reasonably satisfactory to the
Administrative Agent and (ii) Silgan otherwise complies with the terms and
conditions of Section 8.02(x) of the Credit Agreement in respect of such
Permitted Acquisition (as such terms and conditions are otherwise expressly
modified by this Agreement), provided that (i) with respect to the delivery of
the officer's certificate showing the recalculation of the Leverage Ratio on a
Pro Forma Basis described in Section 8.02(x) of the Credit Agreement, the
certificate delivered 5 Business Days prior to the closing of the Xxxxxxxx Can
Acquisition may be prepared on an estimated basis, and with such certificate to
be finalized and delivered to the Administrative Agent within 60 days following
the consummation of the Xxxxxxxx Can Acquisition to reflect the actual purchase
price for cans under the Xxxxxxxx Can Supply Agreement and (ii) the statements
from the accounting firm required to be delivered pursuant to the definition of
"Pro Forma Basis" does not have to be delivered until 60 days following the
consummation of the Xxxxxxxx Can Acquisition.
33. The Banks also hereby consent to Silgan Can Co. becoming a Revolving
Borrower on the terms and conditions set forth in this Amendment and pursuant to
the terms of Section 5.03 (as such Section may otherwise be modified by the
terms of this Amendment).
34. In order to induce the Banks to enter into this Amendment, each Credit
Party hereby represents and warrants that (i) all representations and warranties
contained in the Credit Documents are true and correct in all material respects
on and as of the Second Amendment Effective Date (as defined below), both before
and after giving effect to this Amendment (unless such representations and
warranties relate to a specific earlier date, in which case such representations
and warranties shall be true and correct as of such earlier date), and (ii)
there exists no Default or Event of Default on the Second Amendment Effective
Date, both before and after giving effect to this Amendment.
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35. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other provision of any other Credit Document.
36. This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
shall be lodged with each Borrower and the Administrative Agent.
37. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
38. This Amendment shall become effective on the date (the "Second
Amendment Effective Date") when (i) each Credit Party and the Required Banks
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at the Notice Office and (ii)
the Xxxxxxxx Can Acquisition shall have been consummated in accordance with the
terms of the respective Xxxxxxxx Can Acquisition Documents and this Amendment.
39. From and after the Second Amendment Effective Date, all references in
the Credit Agreement and each of the Credit Documents to the Credit Agreement
and each other Credit Document modified hereby shall be deemed to be references
to the Credit Agreement and each such other Credit Document as amended or
modified hereby.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
SILGAN HOLDINGS, INC.
By:___________________________________
Name:
Title:
SILGAN CONTAINERS CORPORATION
By:___________________________________
Name:
Title:
SILGAN PLASTICS CORPORATION
By:___________________________________
Name:
Title:
SILGAN CONTAINERS MANUFACTURING
CORPORATION
By:___________________________________
Name:
Title:
BANKERS TRUST COMPANY,
Individually, and as Administrative Agent
and as a Co-Arranger
By:___________________________________
Title:
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION,
Individually, and as Syndication Agent
and as a Co-Arranger
By:___________________________________
Title:
XXXXXXX SACHS CREDIT PARTNERS
L.P.,
Individually, and as a Co-Documentation
Agent and as a Co-Arranger
By:____________________________________
Title:
XXXXXX XXXXXXX SENIOR FUNDING,
INC.,
Individually, and as a Co-Documentation
Agent and as a Co-Arranger
By:____________________________________
Title:
