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EXHIBIT 4.26
SIXTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Sixth Amendment to Amended and Restated Credit Agreement (this
"Amendment"), dated as of February 13, 1998, is by and among Xxxxxxx Container
Corporation, a Delaware corporation (the "Borrower"), the undersigned financial
institutions in their capacities as lenders (collectively, the "Banks"), and
Bankers Trust Company, as agent (the "Agent") for the Banks.
W I T N E S S E T H :
WHEREAS, the Borrower, the Banks and the Agent are parties to that
certain Amended and Restated Credit Agreement dated as of November 17, 1986 and
amended and restated as of June 30, 1995, and as further amended as of May 30,
1996, July 19, 1996, May 20, 1997, June 6, 1997 and September 30, 1997 (as
amended, restated, supplemented or otherwise modified and in effect from time to
time, the "Credit Agreement"), pursuant to which the Banks have provided to the
Borrower credit facilities and other financial accommodations; and
WHEREAS, the Borrower has requested that the Agent and the Banks amend
the Credit Agreement in certain respects as set forth herein and the Banks and
the Agent are agreeable to the same, subject to the terms and conditions hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, and other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Defined Terms. Terms capitalized herein and not otherwise defined
herein are used with the meanings ascribed to such terms in the Credit
Agreement.
2. Amendments to Credit Agreement. The Credit Agreement is, as of the
Effective Date (as defined below), hereby amended as follows:
(a) The definition of "Adjusted Consolidated Net Worth" appearing in
Section 1.1 of the Credit Agreement is hereby amended by deleting the proviso
appearing at the end thereof and substituting therefor the following:
"; and provided further that Consolidated Net Worth shall be
calculated without giving effect to any extraordinary charges from
the early extinguishment of indebtedness resulting from the
redemption of the 11-1/2% Senior Notes pursuant to Section 5.1(t)
and the redemption or defeasance of the 12-3/4% Senior Subordinated
Discount Debentures pursuant to Section 5.1(u)."
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(b) The definition of "Public Debt Indentures" appearing in Section
1.1 of the Credit Agreement is hereby amended by deleting such definition in its
entirety and replacing it with the following:
""Public Debt Indentures" means, collectively, the 12-3/4%
Indenture, the 11-1/2% Indenture, the New Senior Notes Indenture,
the New Additional Senior Notes Indenture and the New Senior
Subordinated Notes Indenture."
(c) The definition of "Public Notes" appearing in Section 1.1 of the
Credit Agreement is hereby amended by deleting such definition in its entirety
and replacing it with the following:
""Public Notes" means, collectively, the 12-3/4% Senior Subordinated
Discount Debentures, the 11-1/2% Senior Notes, the New Senior Notes,
the New Additional Senior Notes and the New Senior Subordinated
Notes."
(d) Section 1.1 of the Credit Agreement is hereby further amended by
adding the following new definitions in their appropriate alphabetical order:
""New Additional Senior Notes" means the senior unsecured notes due
no earlier than 2006 of the Borrower bearing a market rate of
interest for comparable instruments at the time of issuance in an
aggregate principal amount not to exceed $200 million and issued
pursuant to the New Additional Senior Notes Indenture (and including
the issuance of senior unsecured notes (which will have terms
substantially identical in all material respects to the initially
issued New Additional Senior Notes) in exchange for the initially
issued New Additional Senior Notes pursuant to a registration rights
agreement entered into by the Borrower in connection with the
initial issuance of such New Additional Senior Notes), as the same
may be amended, modified or supplemented from time to time in
accordance with the terms of this Agreement; provided, however, in
no event shall the aggregate outstanding principal amount of the New
Additional Senior Notes and the New Senior Subordinated Notes exceed
$475 million.
"New Additional Senior Notes Indenture" means the Indenture entered
into by the Borrower pursuant to which the New Additional Senior
Notes are issued, on substantially the same terms and conditions as
set forth in the New Senior Notes Indenture and in form and
substance reasonably satisfactory to the Agent, as the same may be
amended, modified or supplemented from time to time in accordance
with the terms of this Agreement."
"New Senior Subordinated Notes" means the senior subordinated
unsecured notes due no earlier than 2008 of the Borrower bearing a
market rate of interest for comparable instruments at the time of
issuance in an initial aggregate principal
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amount not less than $250 million at the time of issuance and issued
pursuant to the New Senior Subordinated Notes Indenture (and
including the issuance of senior subordinated unsecured notes (which
will have terms substantially identical in all material respects to
the initially issued New Senior Subordinated Notes) in exchange for
the initially issued New Senior Subordinated Notes pursuant to a
registration rights agreement entered into by the Borrower in
connection with the initial issuance of such New Senior Subordinated
Notes), as the same may be amended, modified or supplemented from
time to time in accordance with the terms of this Agreement;
provided, however, in no event shall the aggregate outstanding
principal amount of the New Additional Senior Notes and the New
Senior Subordinated Notes exceed $475 million.
"New Senior Subordinated Notes Indenture" means the Indenture
entered into by the Borrower pursuant to which the New Senior
Subordinated Notes are issued, on substantially the same terms and
conditions as, or on terms not more burdensome or restrictive with
respect to the Borrower and its Subsidiaries or the Agent and the
Banks than, the terms and conditions set forth in the 12-3/4%
Indenture and in form and substance reasonably satisfactory to the
Agent, as the same may be amended, modified or supplemented from
time to time in accordance with the terms of this Agreement."
(e) Section 5.1 of the Credit Agreement is hereby amended by adding
a new clause (u) at the end thereof as follows:
"(u) Redemption or Defeasance of 12-3/4% Senior Subordinated
Discount Debentures and Repayment of Revolving Loans. Upon receipt
of the net cash proceeds from the sale and issuance of the New
Additional Senior Notes and the New Senior Subordinated Notes, cause
such net cash proceeds to be used to redeem or defease in full all
of the 12-3/4% Senior Subordinated Discount Debentures at par (plus
stated premium, if any), together with accrued and unpaid interest
thereon, by giving irrevocable notice of redemption or defeasance to
the trustee under the 12-3/4% Indenture and depositing with such
trustee funds sufficient to redeem or defease in full all of the
12-3/4% Senior Subordinated Discount Debentures at par (plus stated
premium, if any), together with accrued interest through the date of
redemption or defeasance, which redemption or defeasance shall occur
on or prior to April 30, 1998, and cause any remaining net proceeds
to be used to repay Revolving Loans hereunder."
(f) Section 5.2(i) of the Credit Agreement is hereby amended by
deleting clause (i)(G) of such Section in its entirety and substituting therefor
the following:
"(G) the redemption of the 11-1/2% Senior Notes at par (plus stated
premium) with the proceeds of the New Senior Notes and the
redemption or defeasance of the 12-3/4% Senior Subordinated Discount
Debentures at par (plus stated premium) with the
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proceeds of the New Additional Senior Notes and the New Senior
Subordinated Notes;"
(g) Section 5.2(v) of the Credit Agreement is hereby amended by
deleting such Section in its entirety and replacing it with the following:
"(v) Certain Matters Relating to the Public Debt Indentures and
Public Notes.
(i) Change in Control. Take any action (or permit any Person
within the Borrower's control to take any action) which would result
in a "Change in Control" under (i) Section 4.15 of either the
12-3/4% Indenture or the 11-1/2% Indenture, (ii) Section 4.15 of the
New Senior Notes Indenture, or (iii) any similar section or
provision of the New Additional Senior Notes Indenture or the New
Senior Subordinated Notes Indenture.
(ii) Asset Sales. Take any action which would require the
Borrower to repurchase any Public Notes pursuant to the provisions
of (i) Section 4.16 of either the 12-3/4% Indenture or the 11-1/2%
Indenture, (ii) Section 4.16 of the New Senior Notes Indenture or
(iii) any similar section or provision of the New Additional Senior
Notes Indenture or the New Senior Subordinated Notes Indenture."
(h) Section 7.1(n) of the Credit Agreement is hereby amended by
deleting such Section in its entirety and replacing it with the following:
"(n) (i) The Borrower makes a payment or acquisition in
violation of (A) Section 10.02(a) of the 12-3/4% Indenture; or (ii)
the Borrower becomes obligated to purchase or redeem any Public
Notes pursuant to the provisions of (A) Section 4.15 or 4.16 of
either the 12-3/4% Indenture or the 11-1/2% Indenture, (B) Section
4.15 or 4.16 of the New Senior Notes Indenture, or (C) and similar
section or provision of the New Additional Senior Notes Indenture or
the New Senior Subordinated Notes Indenture; or"
3. Borrower's Representations and Warranties. In order to induce the Agent
and the Banks to enter into this Amendment, the Borrower hereby represents and
warrants to the Agent and the Banks that:
(i) the Borrower has the right, power and capacity and has been
duly authorized and empowered by all requisite corporate and
shareholder action to enter into, execute, deliver and perform this
Amendment and all agreements, documents and instruments executed and
delivered pursuant to this Amendment;
(ii) this Amendment constitutes the Borrower's legal, valid and
binding obligation, enforceable against it, except as enforcement
thereof may be subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or
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similar laws affecting creditors' rights generally and general
principles of equity (regardless of whether such enforcement is
sought in a proceeding in equity or at law or otherwise);
(iii) the Borrower's execution, delivery and performance of this
Amendment do not and will not violate its Certificate of
Incorporation or By-laws, any law, rule, regulation, order, writ,
judgment, decree or award applicable to it or any contractual
provision to which it is a party or to which it or any of its
property is subject;
(iv) no authorization or approval or other action by, and no
notice to or filing or registration with, any governmental authority
or regulatory body (other than those which have been obtained and
are in force and effect) is required in connection with its
execution, delivery and performance of this Amendment and all
agreements, documents and instruments executed and delivered
pursuant to this Amendment; and
(v) no Event of Default or Unmatured Event of Default exists
under the Credit Agreement or would exist after giving effect to the
transactions contemplated by this Amendment.
4. Conditions to Effectiveness of Amendment. This Amendment shall become
effective on the date (the "Effective Date") each of the following conditions
precedent are satisfied:
(a) Execution and Delivery. The Borrower, the Agent, and the
Required Banks shall have executed and delivered this Amendment.
(b) No Defaults. No Unmatured Event of Default or Event of Default
under the Credit Agreement (as amended hereby) shall have occurred and be
continuing.
(c) Representations and Warranties. The representations and
warranties of the Borrower contained in this Amendment and in the Credit
Agreement (as amended hereby) shall be true and correct in all material respects
as of the Effective Date, with the same effect as though made on such date,
except to the extent that any such representation or warranty relates to an
earlier date, in which case such representation or warranty shall be true and
correct in all material respects as of such earlier date.
(d) Deliveries. The Borrower shall have duly executed and delivered
to the Agent a certificate of a Responsible Officer of the Borrower dated as of
the Effective Date certifying as to the conditions precedent set forth in
Sections 4(b) and (c) of this Amendment.
5. Miscellaneous. The parties hereto hereby further agree as follows:
(a) Costs, Expenses and Taxes.The Borrower hereby agrees to pay all
reasonable fees, costs and expenses of the Agent incurred in connection with the
negotiation,
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preparation and execution of this Amendment and the transactions
contemplated hereby, including, without limitation, the reasonable fees and
expenses of Winston & Xxxxxx, counsel to the Agent.
(b) Counterparts. This Amendment may be executed in one or more
counterparts, each of which, when executed and delivered, shall be deemed to be
an original and all of which counterparts, taken together, shall constitute but
one and the same document with the same force and effect as if the signatures of
all of the parties were on a single counterpart, and it shall not be necessary
in making proof of this Amendment to produce more than one (1) such counterpart.
(c) Headings. Headings used in this Amendment are for convenience of
reference only and shall not affect the construction of this Amendment.
(d) Integration. This Amendment and the Credit Agreement (as amended
hereby) constitute the entire agreement among the parties hereto with respect to
the subject matter hereof.
(e) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS AND DECISIONS OF
THE STATE OF NEW YORK (WITHOUT REFERENCE TO CONFLICT OF LAWS PRINCIPLES).
(f) Binding Effect. This Amendment shall be binding upon and inure
to the benefit of and be enforceable by the Borrower, the Agent and the Banks
and their respective successors and assigns. Except as expressly set forth to
the contrary herein, this Amendment shall not be construed so as to confer any
right or benefit upon any Person other than the Borrower, the Agent and the
Banks and their respective successors and permitted assigns.
(g) Amendment; Waiver. The parties hereto agree and acknowledge that
nothing contained in this Amendment in any manner or respect limits or
terminates any of the provisions of the Credit Agreement or any of the other
Basic Agreements other than as expressly set forth herein and further agree and
acknowledge that the Credit Agreement (as amended hereby) and each of the other
Basic Agreements remain and continue in full force and effect and are hereby
ratified and confirmed. Except to the extent expressly set forth herein, the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any rights, power or remedy of the Banks or the Agent under the Credit
Agreement or any other Basic Agreement, nor constitute a waiver of any provision
of the Credit Agreement or any other Basic Agreement. No delay on the part of
any Bank or the Agent in exercising any of their respective rights, remedies,
powers and privileges under the Credit Agreement or any of the Basic Agreements
or partial or single exercise thereof, shall constitute a waiver thereof. None
of the terms and conditions of this Amendment may be changed, waived, modified
or varied in any manner, whatsoever, except in accordance with Section 9.1 of
the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
XXXXXXX CONTAINER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Assistant Treasurer
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BANKERS TRUST COMPANY, in its individual
capacity and as Agent
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Assistant Vice President
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THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Vice President
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BANKERS TRUST (DELAWARE)
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Vice President
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CREDIT AGRICOLE INDOSUEZ
By: /s/ W. Xxxxx Xxxxxx
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Name: W. Xxxxx Xxxxxx
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Title: First Vice President
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By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Senior Vice President & Branch Manager
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XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Vice President
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NATIONSBANK, N.A.
By: /s/ Xxxxxxx X. Short
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Name: Xxxxxxx X. Short
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Title: Senior Vice President
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CHRISTIANIA BANK
By: /s/ Xxxx-Xxxxxx Xxxxxxxx
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Name: Xxxx-Xxxxxx Xxxxxxxx
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Title: First Vice President
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XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Assistant Vice President
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TRANSAMERICA BUSINESS CREDIT CORP.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: Senior Vice President
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NATIONAL BANK OF CANADA
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Assistant Vice President
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By: /s/ X.X. Xxxxxx, Xx.
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Name: X.X. Xxxxxx, Xx.
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Title: Vice President & Branch Manager
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