EXHIBIT 10
FIRST AMENDMENT TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AND TERM LOAN
AGREEMENT (this "Amendment") is entered into as of March 28,
2000, among ACX TECHNOLOGIES, INC., a Colorado corporation
("Borrower"), Required Lenders under the Credit Agreement
described below, and BANK OF AMERICA, N.A., in its capacity as
Administrative Agent for the Lenders under the Credit Agreement
("Administrative Agent"), and Guarantors under the Credit
Agreement (hereinafter defined). Reference is made to the
Revolving Credit and Term Loan Agreement, dated as of August 2,
1999 (as amended to date, the "Credit Agreement"), among
Borrower, Administrative Agent, the Managing Agents, and the Co-
Agents thereunder.
Unless otherwise defined in this Amendment, capitalized
terms used herein shall have the meaning set forth in the Credit
Agreement; all Section and Schedule references herein are to
Sections and Schedules in the Credit Agreement; and all Paragraph
references herein are to Paragraphs in this Amendment.
RECITALS
A. Borrower has requested that Required Lenders agree to
amend certain provisions of the Credit Agreement with respect to
certain financial covenants and hedging requirements.
B. Required Lenders are willing to agree to such
amendments, but only upon the conditions, among other things,
that Borrower, Guarantors, and Required Lenders shall have
executed and delivered this Amendment and shall have agreed to
the terms and conditions thereof, including, without limitation,
certain additional amendments relative to pricing, mandatory
prepayments in conjunction with Significant Asset sales, and
certain permitted investments.
Accordingly, for adequate and sufficient consideration, the
parties hereto agree, as follows:
Paragraph 1. Amendment.
1.1 Definitions. Section 1.1 is amended as follows:
(a) The definition of "Applicable Margin" is deleted in its
entirety and replaced with the following definition:
"Applicable Margin means:
(a) On any date of determination occurring
on or prior to the First Amendment Date, the
percentage per annum set forth in the table below
for the appropriate Type of Borrowing or
commitment fees (as the case may be):
Applicable Margin
-----------------------------------------------
Base Rate Eurodollar Rate Commitment
Borrowings Borrowings Fees
----------- --------------- -----------
1.00% 2.500% .500%
(b) On any date of determination
(i) occurring after the First Amendment Date with
respect to the One-Year Term Facility, and
(ii) occurring after the First Amendment Date to
(but not including) the second Business Day after
the delivery of the Financial Statements (and the
related Compliance Certificate) for the fiscal
quarter ending March 31, 2000, with respect to the
Revolver Facility and the Term Loan Facility, the
percentage per annum set forth in the table below
for the appropriate Type of Borrowing or
commitment fees (as the case may be):
Applicable Margin
-----------------------------------------------
Base Rate Eurodollar Rate Commitment
Borrowings Borrowings Fees
----------- --------------- -----------
1.50% 3.00% .50%
(c) Solely with respect to the Revolver
Facility and the Term Facility, on and after the
second Business Day after the delivery of the
Financial Statements (and the related Compliance
Certificate) for the fiscal quarter ending
March 31, 2000, the percentage per annum set forth
in the table below for the Type of Borrowing or
commitment fees (as the case may be) that
corresponds to the Leverage Ratio at such date of
determination, as calculated based on the
quarterly Compliance Certificate of Borrower most
recently delivered pursuant to Section 9.3 hereof:
Leverage Ratio Applicable Margin
----------------- -----------------------------------
Eurodollar
Base Rate Rate Commitment
Borrowings Borrowings Fees
---------- ---------- ----------
Less than
4.00:1.0 0.50% 2.00% .375%
Greater than
or equal to
4.00:1.0,
but less than
4.50:1.0 0.75% 2.25% .500%
Greater than
or equal to
4.50:1.0,
but less than
5.00:1.0 1.00% 2.50% .500%
Greater than
or equal to
5.00:1.0 1.50% 3.00% .50%
The provisions in Item (c) preceding are further
subject to, the following:
(i) With respect to any adjustments in
the Applicable Margin as a result of changes
in the Leverage Ratio, such adjustment shall
be effective commencing on the second
Business Day after the delivery of the
Financial Statements (and the related
Compliance Certificate) pursuant to Sections
9.3(a) and 9.3(b) or the most recent
Permitted Acquisition Compliance Certificate
for a Permitted Acquisition, as the case may
be; and
(ii) If Borrower fails to timely furnish
to Lenders the Financial Statements and
related Compliance Certificates required to
be delivered pursuant to Sections 9.3(a) and
9.3(b), and such failure shall not be
remedied within five days after written
notice thereof from Administrative Agent or
any Lender, then (unless the Default Rate has
been effected by Required Lenders pursuant to
Section 3.6) the Applicable Margin shall be
the maximum Applicable Margin specified in
the Table above for the period from the date
such Financial Statements and related
Compliance Certificates were due to the date
such Financial Statements and related
Compliance Certificates are received by
Administrative Agent."
(b) The definition of "Interest Expense" is amended by
changing the period (.) at the end thereof to a semi-colon (;)
and adding the following proviso to the end of such definition:
"; provided that, notwithstanding the foregoing,
the amortization of any upfront fees paid to any
Lender or Agent on or prior to the Closing Date in
connection with the Loan Documents and the
amortization of any amendment fees paid to any
Lender or Administrative Agent in connection with
the any amendment to the Loan Documents shall not
be included in calculations of Interest Expense."
(c) Paragraph (b)(i) of the definition of "Permitted
Acquisition" is deleted in its entirety and replaced with the
following:
"(i) either (A) the Purchase Price for such
Acquisition must be less than or equal to
$10,000,000, and when aggregated with the Purchase
Price of each other Permitted Acquisition
consummated in such calendar year, may not exceed
$20,000,000 in the aggregate, if on the date of
consummation of such Acquisition, the Leverage
Ratio immediately prior to and after giving effect
to such Acquisition is greater than or equal to
4.00:1.00, but less than 5.00:1.00; or (B) the
Purchase Price for such Acquisition must be less
than $50,000,000, and, when aggregated with the
Purchase Price of each other Permitted Acquisition
consummated in such calendar year, may not exceed
$100,000,000 in the aggregate, if on the date of
consummation of such Acquisition, the Leverage
Ratio immediately prior to and after giving effect
to such Acquisition is less than 4.00:1.00;".
(d) The definition of "Significant Sale" is deleted in its
entirety and replaced with the following:
"Significant Sale means any sale, lease, transfer,
or other disposition of any property or assets
(tangible or intangible) by any Company to any
other Person (other than any sale, lease,
transfer, or other disposition (i) of any
Designated Asset, (ii) in connection with the
Ceramics Spinoff, (iii) in connection with the
Golden Aluminum Company Sale, or (iv) contemplated
by Sections 9.23(a) through (e)) with respect to
which the Net Cash Proceeds received by the
Companies for such asset disposition (or when
aggregated with the Net Cash Proceeds from all
such other asset dispositions occurring in the
same calendar year for which mandatory prepayments
pursuant to Section 3.3(b)(iii) have not been
paid) equals or exceeds (A) $6,000,000 on any date
of determination when the Leverage Ratio is
greater than or equal to 4.00 to 1.00 or (B)
$10,000,000 on any date of determination when the
Leverage Ratio is less than 4.00 to 1.00."
(e) The following definitions of "First Amendment" and
"First Amendment Date" shall be alphabetically inserted in
Section 1.1 to read, as follows:
"First Amendment means that certain First
Amendment to Revolving Credit and Term Loan
Agreement dated as of March 28, 2000, among
Borrower, Guarantors, and Required Lenders.
First Amendment Date means the date upon which the
First Amendment becomes effective in accordance
with the terms of such First Amendment."
1.2 Mandatory Prepayments. Section 3.3(b)(iii) is deleted
in its entirety and replaced with the following provision:
"(iii) With respect to the consummation of
any Significant Sale by any Company (which
Significant Sale must be otherwise permitted under
the Loan Documents or shall have been consented to
by Required Lenders), either (A) if the Leverage
Ratio is equal to or greater than 4.00 to 1.00 on
the date such Significant Sale is consummated, the
Principal Debt shall be permanently prepaid in the
order and manner specified herein, by an amount
equal to 100% of the Net Cash Proceeds realized by
any Company from such Significant Sale or as and
when any deferred Purchase Price is received (or
if such disposition is a Significant Sale as a
result of aggregation with other asset
dispositions in the same fiscal year for which
mandatory prepayments hereunder have not been
paid, 100% of the aggregate Net Cash Proceeds
received from all such asset dispositions in the
calendar year in excess of $6,000,000), which
mandatory prepayment shall be payable within 3
days from the date of consummation of such
Significant Sale or other asset disposition, as
the case may be, or (B) if the Leverage Ratio is
less than 4.00 to 1.00 on the date such
Significant Sale is consummated, the Principal
Debt shall be permanently prepaid in the order and
manner specified herein, by an amount equal to
100% of the Net Cash Proceeds realized by any
Company from such Significant Sale or as and when
any deferred Purchase Price is received (or if
such disposition is a Significant Sale as a result
of aggregation with other asset dispositions in
the same fiscal year for which mandatory
prepayments hereunder have not been paid, 100% of
the aggregate Net Cash Proceeds received from all
such asset dispositions in the calendar year in
excess of $10,000,000) if such Net Cash Proceeds
or any portion thereof have not been reinvested in
similar assets of the Companies within 12 months
from the date of consummation of such Significant
Sale or other asset disposition, as the case may
be; provided that, notwithstanding the foregoing,
so long as no Default or Potential Default then
exists or arises, (i) mandatory prepayments with
respect to any Significant Sale of less than
$500,000 shall not be required to be paid pursuant
to this Section 3.3(b)(iii)(A); and (ii) if any
mandatory prepayment required to be made pursuant
to this Section 3.3(b)(iii) is less than
$5,000,000 and the making of such payment would
require a payment to be made with respect to a
LIBOR Borrowing on a date other than the last day
of an Interest Period, then Borrower may delay
making such mandatory prepayment until the last
day of the next Interest Period ending immediately
after consummation of such Significant Sale, if
during the interim period subsequent to such
Significant Sale and prior to the last day of the
next-expiring Interest Period, Borrower uses such
Net Cash Proceeds to reduce the Revolver Principal
Debt without permanently reducing the Revolver
Commitment;".
1.3 Loans, Advances, and Investments.
(a) Section 9.20(d) is amended by adding a clause at the
beginning of such provision which reads as follows:
"If the Leverage Ratio is less than 5.00:1.00
immediately prior to and after giving effect to
any such Acquisition,".
(b) Clause (iii) of Section 9.20(i) is deleted in its
entirety and the following provision is substituted therefor:
"(iii) investments in other Persons (other than
the Loan Parties), which investments, individually
and when aggregated with all other investments
made pursuant to this clause (i), do not exceed
(A) on any date of determination occurring on and
after the First Amendment Date when the Leverage
Ratio is greater than or equal to 5.00:1.00, the
sum of $5,000,000 plus the amount of other such
investments made after the Closing Date but prior
to the First Amendment Effective Date; (B) if, on
any date of determination, the Leverage Ratio is
greater than or equal to 4.00:1.00, but less than
5.00:1.00, $10,000,000 (determined on a cumulative
basis from and after the Closing Date); (C) on any
date of determination when the Leverage Ratio is
less than 4.00:1.00, $25,000,000 (determined on a
cumulative basis from and after the Closing Date);
or (D) on any date of determination on and after
the Qualifying Date, $75,000,000 (determined on a
cumulative basis from and after the Closing
Date)."
1.4 Financial Covenants.
(a) The Leverage Ratio covenant set forth in Section
9.30(a) is amended by substituting the following table for the
table set forth at the end of such Section:
"
------------------------------------------------
Maximum Leverage
Period Ratio
---------------------- ----------------
September 30, 1999,
to and including
December 30, 1999 5.00 to 1
December 31, 1999, to
(but not including)
the consummation date
of the Ceramics
Spinoff 4.75 to 1
On the consummation
date of the Ceramics
Spinoff, to and
including June 29,
2000 6.00 to 1
June 30, 2000, to and
including September 29,
2000 6.25 to 1
September 30, 2000, to
and including
December 30, 2000 5.50 to 1
December 31, 2000, to
and including
March 30, 2001 4.75 to 1
March 31, 2001, to
and including
June 29, 2001 4.00 to 1
June 30, 2001, to
and including
December 30, 2001 3.50 to 1
December 31, 2001,
to and including
December 30, 2002 3.00 to 1
December 31, 2002,
and thereafter 2.75 to 1
; provided that, notwithstanding the foregoing, if
Borrower sells the paper mill located in
Kalamazoo, Michigan, or an interest therein, on or
prior to June 30, 2000, then the maximum Leverage
Ratio for the period from June 30, 2000, to and
including September 29, 2000, will be 5.80 to
1.0."
(b) The Interest Coverage covenant set forth in Section
9.30(c) is amended by substituting the following table for the
table set forth at the end of such Section:
Minimum Interest
Fiscal Quarter(s) Ending Coverage Ratio
------------------------ ----------------
December 31, 1999 2.00 to 1
March 31, 2000 1.60 to 1
June 30, 2000 1.70 to 1
September 30, 2000 1.90 to 1
December 31, 2000 2.00 to 1
March 31, 2001 2.50 to 1
June 30, 2001, and
September 30, 2001 3.00 to 1
December 31, 2001, and
thereafter 4.00 to 1
(c) The Total Debt to Consolidated Total Capitalization
financial covenant set forth in Section 9.30(d) is amended by
adding the following proviso at the end thereof:
"; provided that, notwithstanding the foregoing,
if Borrower fails to sell the paper mill located
in Kalamazoo, Michigan, or an interest therein, on
or prior to June 30, 2000, then the maximum ratio
(expressed as a percentage) of Total Debt to
Consolidated Total Capitalization will be 70% for
the period from June 30, 2000, to the earlier of
(i) the consummation date of the sale of the paper
mill located in Kalamazoo, Michigan or (ii) the
Termination Date of the One-Year Term Facility."
(d) The Capital Expenditures financial covenant set forth
in Section 9.30(e) is amended in its entirety to read as follows:
"Capital Expenditures. The Capital Expenditures
of the Companies shall not exceed (i) $65,000,000
during calendar year 2000 and (ii) $60,000,000 per
calendar year for calendar year 2001 and
thereafter."
1.5 Financial Xxxxxx. Section 9.31 is amended by (i)
relettering subsection "(c)" thereof to subsection "(d)"; (ii)
deleting the existing subsection "(b)" thereof, and substituting
therefor the following subsections "(b)" and "(c)" to read, as
follows:
"(b) On or before April 30, 2000, Borrower
shall enter into, purchase, acquire, and maintain
Financial Xxxxxx providing interest rate
protection, in a form and upon terms reasonably
acceptable to Administrative Agent and issued by
one or more Lenders, any Affiliates of Lenders, or
an institution acceptable to Administrative Agent
(which consent will not be unreasonably withheld)
with a duration of at least two years, which
Financial Xxxxxx shall assure that not less than
$300,000,000 of the Principal Debt is fixed,
capped, or hedged; provided, however, that the
protected fixed, capped, or hedged rate shall be
no greater than 2.0% above the Eurodollar Rate on
the date or dates such Financial Xxxxxx are
purchased by Borrower.
(c) On or before July 31, 2000, Borrower
shall enter into, purchase, acquire, and maintain
Financial Xxxxxx providing interest rate
protection, in a form and upon terms reasonably
acceptable to Administrative Agent and issued by
one or more Lenders, any Affiliates of Lenders, or
an institution acceptable to Administrative Agent
(which consent will not be unreasonably withheld)
with a duration of at least two years, which
Financial Xxxxxx shall assure that the net
interest cost to Borrower is fixed, capped, or
hedged on at least fifty percent (50%) of the
Principal Debt outstanding on the date such
Financial Xxxxxx are purchased ("Hedge Date");
provided, however, that the protected fixed,
capped, or hedged rate shall be no greater than
2.0% above the Eurodollar Rate on the Hedge Date.
Notwithstanding anything to the contrary in
Section 9.31(b) or (c) hereof, any Financial Hedge
purchased under Section 9.31(b) or (c) may be
reduced from time to time after the Hedge Date, so
long as on any date of reduction, the Financial
Xxxxxx maintained in accordance with this Section
9.31(b) and (c) shall assure that the net interest
cost to Borrower is fixed, capped, or hedged on at
least fifty percent (50%) of the Principal Debt
existing on the Hedge Date, as such Principal Debt
may have been reduced after the Hedge Date; for
purposes hereof, any repayments of Principal Debt
shall be deemed to be applied first to that
portion of the Principal Debt that is not hedged
under Section 9.31(b) and (c), then to the hedged
Debt."
1.6 Employee Benefit Plans. Section 10.9 is amended by
substituting "$15,000,000" for the reference to "$30,000,000" in
the last line thereof.
Paragraph 2. Amendment Fees. On the Effective Date, Borrower
shall pay (a) to Administrative Agent (for the ratable benefit of
the Revolver Lenders consenting to this Amendment on or prior to
the Effective Date, the "Consenting Revolver Lenders"), an
amendment fee in an amount equal to 0.25% of the aggregate
Committed Sums under the Revolving Facility of each Consenting
Revolver Lender as of the Effective Date; (b) to Administrative
Agent (for the ratable benefit of the Term Loan Lenders
consenting to this Amendment on or prior to the Effective Date,
the "Consenting Term Loan Lenders"), an amendment fee in an
amount equal to 0.25% of the aggregate Term Loan Principal Debt
owed to the Consenting Term Loan Lenders as of the Effective
Date; (c) to Administrative Agent (for the ratable benefit of the
One-Year Term Lenders consenting to this Amendment, the
"Consenting One-Year Term Lenders"), an amendment fee in an
amount equal to 0.125% of the One-Year Term Principal Debt owed
to the Consenting One-Year Term Loan Lenders; and (d) to
Administrative Agent (for its individual account) the amendment
fees set forth in a separate letter agreement dated as of
March 14, 2000, executed by Borrower and Administrative Agent.
Additionally, in the event the One-Year Term Loan is not prepaid
in full on or prior to July 3, 2000, Borrower shall pay an
additional amendment fee to Administrative Agent (for the ratable
benefit of the Consenting One-Year Term Loan Lenders) in an
amount equal to 0.125% of the One-Year Term Loan Principal owed
to the Consenting One-Year Term Loan Lenders as of July 3, 2000.
The failure of Borrower to comply with the provisions of this
Paragraph 2 shall constitute a payment Default entitling Lenders
to exercise their respective Rights under the Loan Documents.
Paragraph 3. Effective Date. Notwithstanding any contrary
provision, this Amendment is not effective until the date (the
"Effective Date") upon which Administrative Agent receives
(a) counterparts of this Amendment executed by Borrower,
Guarantors, and Required Lenders and (b) payment of the amendment
fees required to be paid to consenting Lenders and Administrative
Agent on the Effective Date pursuant to Paragraph 2 hereof.
Paragraph 4. Acknowledgment and Ratification. As a material
inducement to Administrative Agent and the Lenders to execute and
deliver this Amendment, Borrower and each Guarantor (a) consent
to the agreements in this Amendment and (b) agree and acknowledge
that the execution, delivery, and performance of this Amendment
shall in no way release, diminish, impair, reduce, or otherwise
affect the respective obligations of Borrower or Guarantors under
their respective Collateral Documents, which Collateral Documents
shall remain in full force and effect, and all Liens, guaranties,
and Rights thereunder are hereby ratified and confirmed.
Paragraph 5. Representations. As a material inducement to
Lenders to execute and deliver this Amendment, Borrower
represents and warrants to Lenders (with the knowledge and intent
that Lenders are relying upon the same in entering into this
Amendment) that as of the Effective Date of this Amendment and as
of the date of execution of this Amendment, (a) all
representations and warranties in the Loan Documents are true and
correct in all material respects as though made on the date
hereof, except to the extent that (i) any of them speak to a
different specific date or (ii) the facts on which any of them
were based have been changed by transactions contemplated or
permitted by the Credit Agreement, and (b) except as waived by
this Amendment, no Potential Default or Default exists.
Paragraph 6. Expenses. Borrower shall pay all costs, fees, and
expenses paid or incurred by Administrative Agent incident to
this Amendment, including, without limitation, the reasonable
fees and expenses of Administrative Agent's counsel in connection
with the negotiation, preparation, delivery, and execution of
this Amendment and any related documents.
Paragraph 7. Miscellaneous. This Amendment is a "Loan
Document" referred to in the Credit Agreement, and the provisions
relating to Loan Documents in Section 13 of the Credit Agreement
are incorporated in this Amendment by reference. Unless stated
otherwise (a) the singular number includes the plural and vice
versa and words of any gender include each other gender, in each
case, as appropriate, (b) headings and captions may not be
construed in interpreting provisions, (c) this Amendment must be
construed, and its performance enforced, under New York law, (d)
if any part of this Amendment is for any reason found to be
unenforceable, all other portions of it nevertheless remain
enforceable, and (e) this Amendment may be executed in any number
of counterparts with the same effect as if all signatories had
signed the same document, and all of those counterparts must be
construed together to constitute the same document.
Paragraph 8. Entire Agreement. This Amendment represents the
final agreement between the parties about the subject matter of
this Amendment and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties.
There are no unwritten oral agreements between the parties.
Paragraph 9. Parties. This Amendment binds and inures to
Borrower, Administrative Agent, Lenders, and their respective
successors and assigns.
The parties hereto have executed this Amendment in multiple
counterparts on the date stated on the signature pages hereto,
but effective as of the Effective Date.
Remainder of Page Intentionally Blank.
Signature Pages to Follow.
ACX TECHNOLOGIES, INC.,
as Borrower
By:
Name:
Title:
CHRONOPOL, INC., as a Guarantor
GAC ALUMINUM CORPORATION, as a
Guarantor
GOLDEN TECHNOLOGIES COMPANY, INC.,
as a Guarantor
GP HOLDINGS, INC., as a Guarantor
GRAPHIC PACKAGING CORPORATION, as a
Guarantor
GRAPHIC PACKAGING CORPORATION OF
VIRGINIA, as a Guarantor
GRAPHIC PACKAGING HOLDINGS INC., as
a Guarantor
GTC NUTRITION COMPANY , as a
Guarantor
LAUENER ENGINEERING LIMITED , as a
Guarantor
UNIVERSAL PACKAGING CORPORATION ,
as a Guarantor
By:
Name:
Title:
GEI BROKERS, INC., as a Guarantor
GOLDEN EQUITIES, INC., as a
Guarantor
By:
Name:
Title:
BANK OF AMERICA, N.A., as
Administrative Agent and as a
Lender
By:
Name:
Title:
as a Lender
By:
Name:
Title:
as a Lender
By:
Name:
Title:
as a Lender
By:
Name:
Title:
as a Lender
By:
Name:
Title:
as a Lender
