EXHIBIT 10.7
FIRST AMENDMENT AND CONSENT
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FIRST AMENDMENT AND CONSENT (this "Amendment"), dated as of December 3,
1997, 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"), 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, Plastics intends to contribute certain manufacturing, selling and
distributing operations to a new Wholly-Owned Domestic Subsidiary of Plastics
("Plastics Operating") in exchange for 100% of the capital stock of Plastics
Operating (the "Plastics Contribution");
WHEREAS, Containers intends to contribute certain manufacturing, selling
and distributing operations to a new Wholly-Owned Domestic Subsidiary of
Containers ("Containers Operating") in exchange for 100% of the capital stock of
Containers Operating (the "Containers Contribution");
WHEREAS, Silgan desires, and the Administrative Agent has agreed, that
Plastics Operating and Containers Operating become Revolving Borrowers under the
Credit Agreement;
WHEREAS, Silgan has requested and the Banks have agreed, to certain
consents to the Credit Agreement to consummate the transactions described in the
three preceding recitals and to effect a certain amendment to the Credit
Agreement, in each case as provided herein; and
WHEREAS, subject to the terms and conditions set forth below, the parties
hereto agree as follows:
NOW, THEREFORE, it is agreed:
1. Notwithstanding anything to the contrary contained in Sections 8.02 and
8.05 of the Credit Agreement, the Banks hereby consent to (i) the consummation
by Containers of the Containers Contribution and (ii) the consummation by
Plastics of the Plastics Contribution.
2. In accordance with Section 5.03(i) of the Credit Agreement, the
Administrative Agent hereby consents to Plastics Operating and Containers
Operating each becoming a Revolving Borrower; provided, however, prior to the
time that each of Plastics Operating and Containers Operating becomes a
Revolving Borrower, Plastics Operating and Containers Operating shall have
satisfied each of the conditions set forth in Sections 5.03(ii), (iii) and (iv)
of the Credit Agreement.
3. The definition of "Net Insurance Proceeds" set forth in Section 10.01 of
the Credit Agreement is hereby amended by deleting the parenthetical appearing
therein and inserting the parenthetical "(net of (i) reasonable costs and taxes
associated therewith and (ii) and, in the case of Net Insurance Proceeds
received by Holdings or any of its Subsidiaries solely in respect of the assets
or property of Canadian Holdco or any of its Subsidiaries, any amounts required
to be applied under the Canadian Credit Facility)" in lieu thereof.
4. Upon the creation of Plastics Operating and Containers Operating,
Plastics and Container will (i) pledge the capital stock of Plastics Operating
and Containers Operating, respectively, pursuant to the Pledge Agreement and
deliver to the Collateral Agent the certificates representing such stock,
together with stock powers duly executed in blank and (ii) cause Plastics
Operating and Containers Operating, respectively, to satisfy the conditions set
forth in Section 8.11 of the Credit Agreement. In addition, prior to the
consummation of the Plastics Contribution or the Containers Contribution,
Plastics and Containers will ensure that the Liens created pursuant to the
Security Documents on the assets so contributed remain in full force and effect
and fully perfected at least to the same extent as such Liens existed
immediately prior to such contributions.
5. 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 First 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 First Amendment Effective Date,
both before and after giving effect to this Amendment.
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6. 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 Credit Document.
7. This Amendment may be executed in any number of counterparts and by the
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.
8. 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.
9. This Amendment shall become effective on the date (the "First Amendment
Effective Date") when 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 as its Notice Office.
10. From and after the First Amendment Effective Date, all references in
the Credit Agreement and each of the Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement as amended 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:
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 XXXXX 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:
