Exhibit 4.14
XXXXX-ILLINOIS GROUP, INC.
XXXXX-XXXXXXXX GLASS CONTAINER INC.
OI GENERAL FTS INC.
OI PLASTIC PRODUCTS FTS INC.
OI CLOSURE FTS INC.
UNITED GLASS LIMITED
UNITED GLASS GROUP LIMITED
XXXXX-ILLINOIS (AUSTRALIA) PTY LIMITED
ACI OPERATIONS PTY LIMITED
OI ITALIA S.R.L.
AZIENDE VETRARIE INDUSTRIALI XXXXXXXXX S.P.A.
FIRST AMENDMENT
TO SECURED CREDIT AGREEMENT AND CONSENT
DATED AS OF DECEMBER 31, 2001
This FIRST AMENDMENT TO SECURED CREDIT AGREEMENT AND CONSENT (this
"AMENDMENT") is dated as of December 31, 2001 and entered into by and among
XXXXX-ILLINOIS GROUP, INC., a Delaware corporation ("COMPANY"), XXXXX-XXXXXXXX
GLASS CONTAINER INC., a Delaware corporation ("XXXXX XXXXXXXX"), OI GENERAL FTS
INC., a Delaware corporation ("O-I GENERAL FTS"), OI PLASTIC PRODUCTS FTS INC.,
a Delaware corporation ("O-I PLASTIC"), O-I CLOSURE FTS INC., a Delaware
corporation ("O-I CLOSURE"), UNITED GLASS LIMITED, a corporation organized under
the laws of England and Wales, UNITED GLASS GROUP LIMITED, a corporation
organized under the laws of England and Wales, XXXXX-ILLINOIS (AUSTRALIA) PTY
LIMITED, a limited liability company organized under the laws of Australia, ACI
OPERATIONS PTY LIMITED, a limited liability company organized under the laws of
Australia, OI ITALIA S.R.L., a limited liability company organized under the
laws of Italy, AZIENDE VETRARIE INDUSTRIALI XXXXXXXXX S.P.A., a joint stock
company organized under the laws of Italy, XXXXX-ILLINOIS GENERAL, INC., a
Delaware corporation, as Borrowers' Agent (in such capacity "BORROWERS' AGENT"),
THE LENDERS LISTED ON THE SIGNATURE PAGES HEREOF (each individually a "LENDER"
and collectively, "LENDERS") and BANKERS TRUST COMPANY, as Administrative Agent
(in such capacity, "ADMINISTRATIVE AGENT") and Collateral Agent (in such
capacity, "COLLATERAL AGENT") for the Lenders and is made with reference to that
certain Secured Credit Agreement dated as of April 23, 2001 (the "CREDIT
Agreement"), by and among the foregoing parties. Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Credit Agreement, and, if not defined herein or in the Credit Agreement, as
defined in the Intercreditor Agreement (as defined in the Credit Agreement).
RECITALS
WHEREAS, the Credit Agreement permits the Company and it Subsidiaries
to incur certain Indebtedness, including the issuance from time to time of
Indebtedness constituting New Senior Debt, the proceeds of which are required to
be used initially to repay the Term Loans owing to the Lenders until paid in
full;
WHEREAS, the Credit Agreement permits Indebtedness from time to time
issued constituting New Senior Debt to be secured by the Domestic Collateral (as
defined in the Intercreditor Agreement) under the Domestic Collateral Documents
and permits such Indebtedness to constitute "Senior Secured Obligations" under
the Intercreditor Agreement;
WHEREAS, Xxxxx Xxxxxxxx desires to issue proposed Senior Secured Notes
(together with any notes issued in exchange therefor or replacement thereof
containing substantially identical terms, the "NEW 2002 SENIOR NOTES") which
constitute New Senior Debt and desires to secure the obligations in respect of
such New 2002 Senior Notes by certain of the Domestic Collateral;
WHEREAS, in order to facilitate the issuance of the New 2002 Senior
Notes, Xxxxx Xxxxxxxx desires to obtain the consent of the Requisite Lenders and
Requisite Obligees, as applicable, to the Collateral Agent's and Administrative
Agent's amendment of the Collateral Documents and the Intercreditor Agreement to
eliminate or defer the provision of certain of the Domestic Collateral as
security for the New 2002 Senior Notes, which Domestic Collateral would
otherwise secure the obligations in respect of such New 2002 Senior Notes upon
their issuance and the execution of a counterpart to the Intercreditor Agreement
by the New Senior Debt Representative and Borrower's Agent, subject to the
qualification of the Indebtedness evidenced by such Notes (and guarantees
thereof) as New Senior Debt, including, without limitation, confirmation by the
Administrative Agent that, in Administrative Agent's reasonable judgment, the
proposed terms of the New 2002 Senior Notes are substantially comparable to
those prevailing in the market place for comparable debt issuances and the
application of the Net Debt Securities Proceeds arising from the issuance of the
New 2002 Senior Notes to repay the Term Loans pursuant to Section 2.4A(ii)(e) of
the Credit Agreement;
WHEREAS, Company and Borrowers desire to obtain the consent of the
Requisite Lenders to the merger of O-I Closure into O-I Plastic; and
WHEREAS, Company and Borrowers desire to obtain the consent of the
Requisite Lenders to certain other amendments described herein;
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NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. CONSENT TO AMENDMENT OF COLLATERAL DOCUMENTS AND INTERCREDITOR
AGREEMENT BY COLLATERAL AGENT AND ADMINISTRATIVE AGENT.
By their execution and delivery of this Amendment, Lenders
approve, consent and agree that upon the issuance of the New 2002 Senior Notes,
the qualification of such New 2002 Senior Notes as New Senior Debt and the
effectiveness of this Amendment, Collateral Agent and Administrative Agent may
appropriately modify the Collateral Documents and the Intercreditor Agreement
pursuant to, and execute and deliver, documentation acceptable to the Collateral
Agent and Administrative Agent to (A) provide that: (i) the pledge of the
Pledged Collateral (as defined in the Pledge Agreement) under the Pledge
Agreement shall not benefit the holders of the New 2002 Senior Notes until April
1, 2002; (ii) irrespective of clause A(i), above, the senior pledge by Company
of its shares in, and intercompany debt owing from, O-I General FTS (the
"EXCLUDED PLEDGED COLLATERAL") pursuant to the Pledge Agreement shall not
benefit the holders of the New 2002 Senior Notes, the holders of such New 2002
Senior Notes shall not be entitled to any portion of the cash proceeds received
by Collateral Agent in respect of any sale of, collection from or other
realization upon the Excluded Pledged Collateral and neither the holders of the
New 2002 Senior Notes nor any New Senior Debt Representative with respect
thereto shall have any right to direct Collateral Agent with respect to the
exercise of remedies with respect to the Excluded Pledged Collateral; and (iii)
the grant of a security interest under the Security Agreement in certain
Securities Collateral (as defined in the Security Agreement) by Grantors (as
defined in the Security Agreement) shall not benefit the holders of the New 2002
Senior Notes, the holders of such New 2002 Senior Notes shall not be entitled to
any portion of the cash proceeds received by Collateral Agent in respect of any
sale of, collection from or other realization upon such Securities Collateral
and neither the holders of the New 2002 Senior Notes nor any New Senior Debt
Representative with respect thereto shall have any right to direct Collateral
Agent with respect to the exercise of remedies with respect to such Securities
Collateral; (B) confirm the right of Collateral Agent to release liens on
Domestic Collateral pledged by a Domestic Borrower or Subsidiary Guarantor under
the Security Agreement or the Mortgages upon the sale, transfer or disposition
of the Capital Stock of and intercompany indebtedness owing by or to such
Borrower or Subsidiary Guarantor or the direct or indirect parent thereof as
permitted by the Credit Agreement or in connection with the Collateral Agent's
exercise of remedies under the Domestic Collateral Documents and (C) make other
appropriate clarifying or conforming changes or such changes as may be necessary
to cure any ambiguity, defect or inconsistency, including, without limitation,
amendment of the Offshore Collateral Documents executed by the Australian
Offshore Borrowers or Offshore Guarantors to provide for the release of the
liens created thereby upon the achievement of the Threshold Debt Rating. The
foregoing modifications of the Collateral Documents and the Intercreditor
Agreement may be made without any further authorization by Lenders or the
approval of the form of the documentation effecting any such modifications.
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SECTION 2. CONSENT TO MERGER OF O-I CLOSURE INTO O-I PLASTIC
Notwithstanding SECTION 6.7 of the Credit Agreement, by their
execution and delivery of this Amendment, Lenders approve, consent and agree to
the merger of O-I Closure into O-I Plastic, so long as (i) the merger is
performed in connection with the issuance of the New 2002 Senior Notes and the
application of the Net Debt Securities Proceeds arising therefrom pursuant to
Subsection 2.4A(ii)(e) of the Credit Agreement; (ii) O-I Plastic is the
surviving entity following such merger; and (iii) O-I Plastic assumes, for the
benefit of Lenders, all of O-I Closure's obligations under the Credit Agreement
and the other Loan Documents. Irrespective of such express assumption, Company
and Borrowers agree that upon consummation of such merger, O-I Plastic shall
succeed to all obligations of O-I Closure under the Credit Agreement and the
other Loan Documents by operation of law. Upon the consummation of such merger
and the delivery to Administrative Agent of satisfactory documentation
evidencing such merger and the assumption described above, (A) the definition of
"Domestic Borrower" shall be deemed amended to eliminate O-I Closure as a
Domestic Borrower, the Revolving Loan Commitments of the Revolving Lenders to
O-I Closure shall be deemed to be Revolving Loan Commitments by Revolving
Lenders to O-I Plastic, (B) SCHEDULE A to the Credit Agreement shall be amended
to delete references to O-I Closure, reflect the former Revolving Loan
Commitments of Revolving Lenders to O-I Closure as additional Revolving Loan
Commitments by Revolving Lenders to O-I Plastic, and to increase O-I Plastic's
Proportionate Percentage of Revolving Loan Commitments to 33.333333333%, and (C)
the Revolving Notes issued by O-I Closure shall be the obligations of O-I
Plastic. Notwithstanding the merger of O-I Closure and O-I Plastic, Closure &
Specialty shall remain a separate and distinct Reporting Unit for purposes of
SECTION 5.1 of the Credit Agreement.
SECTION 3. AGENTS' CONSENT TO AMENDMENT OF COMPANY'S SUBORDINATED
INTERCOMPANY NOTE TO HOLDINGS
Each Agent hereby consents to the amendment of Company's
intercompany note dated as of April 23, 2001 to Holdings solely for the purpose
of subordinating the Indebtedness evidenced thereby in right of payment to the
Indebtedness evidenced by New Senior Debt, pursuant to an amendment in a form
reasonably satisfactory to Administrative Agent.
SECTION 4. CONSENT TO AMENDMENT OF DOMESTIC BORROWERS' GUARANTY
By their execution and delivery of this Amendment, Lenders
approve, consent and agree to the addition of the following paragraph to the
Domestic Borrowers' Guaranty:
If all of the stock of any Guarantor or any of its successors in
interest under this Guaranty shall be sold or otherwise disposed of (including
by merger or consolidation) in an Asset Sale consented to by Requisite Lenders
under the Credit Agreement, the Guaranty of such Guarantor or such successor in
interest, as the case may be, hereunder shall automatically be discharged and
released without any further action by Collateral Agent or
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any other Person or any Guarantied Party, effective as of the time of such Asset
Sale or consent.
SECTION 5. OTHER AMENDMENTS TO THE CREDIT AGREEMENT
5.1 CHANGE OF CONTROL. The definition of "Change of Control" is
hereby amended by adding the following after the first use of the words "Voting
Stock" therein: "or any event constituting a "change of control" under any
indenture governing any New Senior Debt, Refinancing Senior Debt or New Junior
Debt."
5.2 CONSOLIDATED ADJUSTED EBITDA. The definition of
"Consolidated Adjusted EBITDA" is hereby amended by striking the word "and"
immediately after the word "items" and adding the following after the word
"losses" therein: "and (vii) minority share owners' interests in earnings of
subsidiaries."
5.3 NEW SENIOR DEBT. The definition of "New Senior Debt" is
hereby amended (i) by adding the following parenthetical after the first use of
the word "Indebtedness" therein: "(including guarantees thereof and Indebtedness
and guarantees issued in exchange or in replacement thereof containing
substantially identical terms)" and (ii) by adding the following to the end of
clause (w) thereof: "except for provisions requiring any permitted obligor under
clause (u) above to repurchase all or a portion of New Senior Debt from the
holders thereof upon the occurrence of a "change of control" or following an
"asset sale" (such terms to be defined in the indenture(s) governing such New
Senior Debt).
5.4 DOMESTIC OVERDRAFT ACCOUNT. Subsection 2.1B of the Credit
Agreement is hereby amended by adding the phrase "having Revolving Loan
Exposure" after the phrase "other Lender" in the first two instances in which
such phrase is used in such Section and after the phrase "each Lender" in the
first proviso of such Section.
5.5 NO RESTRICTION ON SUBSIDIARY DISTRIBUTIONS. Section 6.2B of
the Credit Agreement is hereby amended by (i) striking the words "and (g)" and
replacing them with the following "(g) any restrictions under indentures
governing New Senior Debt, which restrictions are approved by Administrative
Agent, and (h)" and (ii) striking the clause "(a) through (f)" and replacing it
with the clause "(a) through (g)".
5.6 RESTRICTED JUNIOR PAYMENTS. Section 6.5 is hereby amended by
striking the word "and" after the word "subsection 2.5A" and adding the
following after the words "past practices": "and (v) make, and Subsidiaries of
Company may make, payments of intercompany indebtedness other than payments of
Company's intercompany Indebtedness to Holdings."
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5.7 RESTRICTION ON FUNDAMENTAL CHANGES. Section 6.7 of the
Credit Agreement is hereby amended by inserting the word "Domestic" before the
word "Borrower" each time such word appears in the final proviso of such
Section.
SECTION 6. CONDITIONS TO EFFECTIVENESS
Sections 1, 2, 3, 4 and 5 of this Amendment shall become effective
only upon the satisfaction of all of the following conditions precedent (the
date of satisfaction of such conditions being referred to herein as the "FIRST
AMENDMENT EFFECTIVE DATE"):
A. On or before the First Amendment Effective Date, Company and
each of the Borrowers shall deliver to Administrative Agent sufficient
originally executed copies, where appropriate, for each Lender and its counsel
the following, each, unless otherwise noted, dated the First Amendment Effective
Date:
(i) Resolutions of its Board of Directors approving and
authorizing the execution, delivery, and performance of this Amendment,
certified as of the First Amendment Effective Date by its corporate
secretary or an assistant secretary as being in full force and effect
without modification or amendment;
(ii) Signature and incumbency certificates of its officers
executing this Amendment; and
(iii) Executed copies of this Amendment.
B. On or before the First Amendment Effective Date, all corporate
and other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.
C. Administrative Agent and Collateral Agent shall have received
a written acknowledgement from each of the Subsidiary Guarantors providing that
it has reviewed the terms and provisions of the Credit Agreement and this
Amendment and consents to the amendment of the Credit Agreement effected
pursuant to this Amendment, that the Subsidiary Guaranty and each Collateral
Document executed by such Subsidiary Guarantor shall continue in full force and
effect and that all of its obligations thereunder shall be valid and enforceable
and shall not be impaired or limited by the execution or effectiveness of this
Amendment and such other matters as Administrative Agent may reasonably request,
all in a form satisfactory to Administrative Agent.
SECTION 7. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Company and each of
the Borrowers
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represents and warrants to each Lender that the following
statements are true, correct and complete:
7.1 CORPORATE POWER AND AUTHORITY. Company and each Borrower has
all requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
7.2 AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of Company and each
Borrower.
7.3 NO CONFLICT. The execution and delivery by Company and each
Borrower of this Amendment and the performance by each Loan Party of the Amended
Agreement do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of Company
or any of its Subsidiaries or any order, judgment or decree of any court or
other agency of government binding on Company or any of its Subsidiaries, (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of Company or any of
its Subsidiaries, (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Company or any of its Subsidiaries
(other than Liens in favor of the Collateral Agent), or (iv) require any
approval of stockholders or any approval or consent of any Person under any
Contractual Obligation of Company or any of its Subsidiaries, other than those
approvals and consents which have been obtained.
7.4 GOVERNMENTAL CONSENTS. The execution and delivery by Company
and each Borrower of this Amendment and the performance by Company and each
Borrower of the Amended Agreement do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body, except for
filings, consents or notices that have been or will be made or obtained during
the period in which they are required to be obtained or made.
7.5 BINDING OBLIGATION. This Amendment and the Amended Agreement
have been duly executed and delivered by Company and each Borrower and are the
legally valid and binding obligations of Company and each Borrower, enforceable
against Company and each Borrower in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
7.6 INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 4 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date,
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in which case they were true, correct and complete in all material respects on
and as of such earlier date.
7.7 ABSENCE OF DEFAULT. No event has occurred and is continuing
or will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
SECTION 8. MISCELLANEOUS
8.1 REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
(i) On and after the First Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to the "Credit
Agreement", "thereunder", "thereof" or words of like import referring to
the Credit Agreement shall mean and be a reference to the Amended
Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force
and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power or
remedy of Administrative Agent, Collateral Agent or any other Agent or any
Lender under, the Credit Agreement or any of the other Loan Documents.
8.2 FEES AND EXPENSES. Company acknowledges that all costs, fees
and expenses as described in subsection 10.3 of the Credit Agreement incurred by
Administrative Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of the
Domestic Borrowers.
8.3 HEADINGS. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
8.4 APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
8.5 COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of
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which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment (other than the provisions of Section 1, 2, 3,
4 and 5 hereof, the effectiveness of which is governed by Section 6 hereof)
shall become effective upon the execution of a counterpart hereof by Company,
each Borrower and Requisite Lenders and receipt by Company and Administrative
Agent of written or telephonic notification of such execution and authorization
of delivery thereof. Delivery of an executed counterpart of a signature page of
this amendment by telecopy shall be effective as delivery of a manually executed
counterpart of this Amendment.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
COMPANY: XXXXX-ILLINOIS GROUP, INC.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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BORROWERS: XXXXX-XXXXXXXX GLASS CONTAINER INC.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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OI GENERAL FTS INC.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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OI PLASTIC PRODUCTS FTS INC.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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OI CLOSURE FTS INC.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
S-1
UNITED GLASS LIMITED
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: By Power of Attorney
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UNITED GLASS GROUP LIMITED
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: By Power of Attorney
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XXXXX-ILLINOIS (AUSTRALIA) PTY LIMITED
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: By Power of Attorney
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OI ITALIA S.R.L.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: By Power of Attorney
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ACI OPERATIONS PTY LIMITED
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: By Power of Attorney
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AZIENDE VETRARIE INDUSTRIALI XXXXXXXXX S.P.A.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: By Power of Attorney
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S-2
ADMINISTRATIVE AGENT, COLLATERAL AGENT AND LENDERS:
BANKERS TRUST COMPANY,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT AND
COLLATERAL AGENT
By: /s/ XXXX XX XXXXX
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Name: Xxxx Xx Xxxxx
Title: Assistant Vice President
S-3
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By:
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Name:
Title:
