CONFORMED COPY
FOURTH AMENDMENT
TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
December 10, 2001, is by and among Xxxxxxx Container Corporation, a Delaware
corporation (the "Borrower"), the financial institutions party to the Credit
Agreement (as defined below) in their capacities as lenders (collectively, the
"Lenders", and each individually, a "Lender"), and Bankers Trust Company, as
administrative agent (the "Agent") for the Lenders.
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Agent are parties to that
certain Credit Agreement dated as of June 19, 1998 (as amended, restated,
supplemented or otherwise modified and in effect from time to time, the "Credit
Agreement"), pursuant to which the Lenders have provided to the Borrower credit
facilities and other financial accommodations; and
WHEREAS, the Borrower has requested that the Agent and the Lenders amend
the Credit Agreement in certain respects as set forth herein and the Lenders 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) Section 1.1 of the Credit Agreement is amended by deleting the
definition of "Applicable Base Rate Margin", "Applicable Commitment Fee
Percentage" and "Applicable Eurodollar Rate Margin" and substituting therefor
the following:
"Applicable Base Rate Margin" means, on any date, (i) with respect to
Revolving Loans, the applicable percentage set forth in the following table
under the column Applicable Base Rate Revolving Loan Margin opposite the
corresponding date range and (ii) with respect to Term Loans, the
applicable percentage set forth in the following table under the column
Applicable Base Rate Term Loan Margin opposite the corresponding date
range:
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Applicable Base Rate Applicable Base Rate Term
Date Revolving Loan Margin Loan Margin
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Fourth Amendment Effective Date to and 4.00% 4.00%
including March 31, 2002
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April 1, 2002 to and including September 4.25% 4.25%
30, 2002
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October 1, 2002 and thereafter 4.50% 4.50%
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"Applicable Commitment Fee Percentage" means, at any date, 0.50%.
"Applicable Eurodollar Rate Margin" means, at any date, (i) with
respect to Revolving Loans, the applicable percentage set forth in the
following table under the column Applicable Eurodollar Rate Revolving Loan
Margin opposite the corresponding date range and (ii) with respect to Term
Loans, the applicable percentage set forth in the following table under the
column Applicable Eurodollar Rate Term Loan Margin opposite the
corresponding date range:
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Applicable Eurodolloar Applicable
Date Rate Revolving Loan Eurodollar Rate
Margin Term Loan Margin
-----------------------------------------------------------------------------------------------
Fourth Amendment Effective Date to and 5.00% 5.00%
including March 31, 2002
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April 1, 2002 to and including September 5.25% 5.25%
30, 2002
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October 1, 2002 and thereafter 5.50% 5.50%
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(b) Section 1.1 of the Credit Agreement is further amended by inserting the
following new sentence at the end of the definition of "Consolidated EBITDA"
appearing in such Section:
"For the purposes of computing Consolidated Net Income or Consolidated Net
Loss in determining Consolidated EBITDA of Borrower and its Subsidiaries,
there shall be excluded from the computation thereof, without duplication
and to the extent not otherwise excluded from the computation thereof,
non-cash charges (i) from the cessation of operations of all or a portion
of, or sale or other disposition of all or a portion of, the Borrower's S&G
Packaging Division not to exceed $25,000,000 in the aggregate and (ii) from
the write-down of receivables owing from PG&E as a result of the
monetization of such receivables not to exceed $2,000,000 in the aggregate
in Fiscal Year 2002."
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(c) Section 1.1 of the Credit Agreement is further amended by deleting the
definition of "Credit Party" and substituting therefor the following:
"Credit Party" means Borrower, each Subsidiary Guarantor and any other
guarantor which may hereafter enter into a guarantee agreement with respect
to the Obligations.
(d) Section 1.1 of the Credit Agreement is further amended by deleting the
definition of "Eurodollar Rate" and substituting therefor the following:
"Eurodollar Rate" means the arithmetic average (rounded upwards, if
necessary, to the nearest 1/16 of 1%) of the rate per annum obtained by
dividing (i) the greater of (A) the offered quotation, if any, to
first-class banks in the interbank eurodollar market by BT for Dollar
deposits of amounts in immediately available funds comparable to the
principal amount of the Eurodollar Rate Loan to be made by BT with
maturities comparable to such Interest Period, determined as of
approximately 10:00 A.M. (New York City time) on the Interest Rate
Determination Date and (B) 2.50%, by (ii) a percentage equal to 100% minus
the stated maximum rate (expressed as a percentage) as prescribed by the
Board of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves and all
reserves required to be maintained against "Eurocurrency liabilities" as
specified in Regulation D (or any successor regulation)) applicable on the
first day of such Interest Period to any member bank of the Federal Reserve
System in respect of Eurodollar funding or liabilities. The determination
of the Eurodollar Rate by Agent shall be conclusive and binding on Borrower
absent manifest error.
(e) Section 1.1 of the Credit Agreement is further amended by deleting the
definition of "Interest Payment Date" and substituting therefor the following:
"Interest Payment Date" means (a) as to any Base Rate Loan, each
Monthly Payment Date to occur while such Loan is outstanding, (b) as to any
Eurodollar Loan the last day of the Interest Period applicable thereto and
(c) as to any Eurodollar Loan having an Interest Period longer than one
month, each Monthly Payment Date to occur while such Loan is outstanding;
provided, however, that, in addition to the foregoing, each of (x) the date
upon which both the Revolving Commitments have been terminated and the
Loans have been paid in full and (y) the Termination Date shall be deemed
to be an "Interest Payment Date" with respect to any interest which is then
accrued hereunder.
(f) Section 1.1 of the Credit Agreement is further amended by deleting the
definitions of "Mortgage", "Mortgage Policies" and "Mortgaged Property", and
substituting therefor the following:
"Mortgage" is defined in Section 5.1(d) and shall also include any
mortgages or similar documents executed pursuant to Section 7.12 or the
Fourth
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Amendment, all as amended, restated, supplemented or otherwise modified
from time to time.
"Mortgage Policies" is defined in Section 5.1(d) and shall also
include any mortgage policies or similar documents executed pursuant to
Section 7.12 or the Fourth Amendment.
"Mortgaged Property" is defined in Section 5.1(d) and shall also
include any real property subject to a mortgage pursuant to Section 7.12 or
the Fourth Amendment.
(g) Section 1.1 of the Credit Agreement is further amended by deleting the
first occurrence of the word "Borrower" in the definition of "Obligations" and
substituting therefor the words "Credit Parties".
(h) Section 1.1 of the Credit Agreement is further amended by deleting the
clause "$175,000,000 as of the Closing Date" from the definition of "Revolving
Commitments" and substituting the clause "$157,500,000 as of the Fourth
Amendment Effective Date".
(i) Section 1.1 of the Credit Agreement is further amended by deleting the
table now appearing at the end of the definition of "Scheduled Term Repayments"
and substituting therefor the following:
SCHEDULED TERM
DATE LOAN PRINCIPAL PAYMENT
---- ----------------------
December 15, 2001 $625,000
June 15, 2002 $625,000
December 15, 2002 $625,000
June 15, 2003 $625,000
Term Loan Maturity Date $37,275,000 or, if less, the aggregate
principal of Term Loans outstanding
(j) Section 1.1 of the Credit Agreement is further amended by inserting the
phrase ", the Subsidiary Guaranty" immediately following the word "Mortgages" in
the definition of "Security Documents".
(k) Section 1.1 of the Credit Agreement is further amended by deleting the
definition of "Subsidiary Guarantor" and substituting therefor the following:
"Subsidiary Guarantor" means each of the Subsidiaries of Borrower
party to the Subsidiary Guaranty as of the Fourth Amendment Effective Date
and each of the Subsidiaries of Borrower that becomes a party to a
Subsidiary Guaranty as contemplated in Section 7.12.
(l) Section 1.1 of the Credit Agreement is further amended by deleting the
definition of "Term Loan Maturity Date" and substituting therefor the following:
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"Term Loan Maturity Date" means June 19, 2003, or such earlier date as
the outstanding Term Loan shall have been reduced to $0 pursuant to this
Agreement.
(m) Section 1.1 of the Credit Agreement is further amended by deleting the
definition of "Total Available Revolving Commitment" and substituting therefor
the following:
"Total Available Revolving Commitment" means, at the time any
determination thereof is made, the sum of the respective Available
Revolving Commitments of the Lenders at such time minus the Liquidity
Reserve at such time.
(n) Section 1.1 of the Credit Agreement is further amended by inserting the
following new definitions in the appropriate alphabetical order:
"Deposit Account Agreement" means a Deposit Account Agreement in
substantially the form of Exhibit 1.1(a) attached hereto (with such
modifications as are acceptable to Agent).
"Fourth Amendment" means that certain Fourth Amendment to Credit
Agreement dated as of December 10, 2001 by and among Borrower, Agent and
the Lenders.
"Fourth Amendment Effective Date" means the "Effective Date" as
defined in the Fourth Amendment
"Liquidity Reserve" means $17,500,000.
"Monthly Payment Date" means, subject to Section 4.6, the fifteenth
(15th) day of each month, commencing December 15, 2001.
"Scheduled Revolving Commitment Reduction Percentage" means, at any
time, a fraction (expressed as a percentage) the numerator of which is
equal to the aggregate amount of Scheduled Revolving Commitment Reductions
not yet made and the denominator of which is equal to the aggregate amount
of Scheduled Revolving Commitment Reductions and Supplemental Scheduled
Term Repayments not yet made.
"Scheduled Revolving Commitment Reductions" means, with respect to the
mandatory reductions of the Revolving Commitments for each date set forth
below, the Dollar amount set forth opposite thereto:
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SCHEDULED REVOLVING
DATE COMMITMENT REDUCTION
---- --------------------
March 31, 2002 $12,500,000
December 31, 2002 $63,000,000
"Subsidiary Guaranty" means the Subsidiary Guaranty executed by the
Subsidiary Guarantors substantially in the form of Exhibit D to the Fourth
Amendment, as amended, restated, supplemented or otherwise modified from
time to time.
"Supplemental Scheduled Term Repayment Percentage" means, at any time,
a fraction (expressed as a percentage) the numerator of which is equal to
the aggregate amount of Supplemental Scheduled Term Repayments not yet made
and the denominator of which is equal to the aggregate amount of Scheduled
Revolving Commitment Reductions and Supplemental Scheduled Term Repayments
not yet made.
"Supplemental Scheduled Term Repayments" means, with respect to the
principal payments on the Term Loans for each date set forth below, the
Dollar amount set forth opposite thereto:
SUPPLEMENTAL SCHEDULED
DATE TERM REPAYMENT
---- --------------
March 31, 2002 $7,500,000
December 31, 2002 $37,000,000
(o) Section 1.1 of the Credit Agreement is further amended by deleting the
definition of "Borrower's Portion of Excess Cash Flow", "Most Recent Ratio of
Total Debt to EBITDA" and "Quarterly Payment Date".
(p) The Credit Agreement is further amended by replacing each reference
therein to "Quarterly Payment Date" with a reference to "Monthly Payment Date".
(q) Section 2.1(c)(i) of the Credit Agreement is amended by replacing the
reference therein to "$25.0 million" with a reference to "$15.0 million".
(r) Section 3.3 of the Credit Agreement is further amended by deleting the
final sentence thereof.
(s) Section 4.2(a) of the Credit Agreement is amended by deleting such
Section and substituting therefor the following:
(a) Reduction of Revolving Commitment. The Revolving Commitments shall
be reduced (i) at the time and in the amounts required to be reduced
pursuant to Section 4.4(c), (d), (e), (f), and (g) and (ii) to the extent
not reduced pursuant to clause (i) hereof,
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on the dates and in the amounts set forth in the definition of Scheduled
Revolving Commitment Reduction.
(t) Sections 4.4(b)-(g) of the Credit Agreement are amended by deleting
such Sections and substituting therefor the following:
(b) Scheduled Term Repayments and Supplemental Scheduled Term
Repayments Borrower shall cause to be paid Scheduled Term Repayments and
Supplemental Scheduled Term Repayments on the Term Loans until the Term
Loans are paid in full in the amounts and at the times specified in the
definitions of Scheduled Term Repayments and Supplemental Scheduled Term
Repayments to the extent that prepayments on or after the Fourth Amendment
Effective Date have not previously been applied to such Scheduled Term
Repayments (and such Scheduled Term Repayments or Supplemental Scheduled
Term Repayments have not otherwise been reduced on or after the Fourth
Amendment Effective Date) pursuant to the terms hereof.
(c) Mandatory Prepayment Upon Asset Disposition. On the first Business
Day after the date of receipt thereof by Borrower and/or any of their
Subsidiaries of Net Sale Proceeds from any Asset Disposition, an amount
equal to 100% of the Net Sale Proceeds from such Asset Disposition shall be
applied as a mandatory repayment of the Obligations as provided in Section
4.5, provided, that with respect to no more than $5,000,000 in the
aggregate of such Net Sale Proceeds received from and after the Closing
Date, the Net Sale Proceeds therefrom shall not be required to be so
applied to the extent that no Event of Default or Unmatured Event of
Default then exists.
(d) Mandatory Prepayment With Excess Cash Flow. On each Excess Cash
Payment Date, an amount equal to 50% of Excess Cash Flow of Borrower and
its Subsidiaries for the most recent Excess Cash Flow Period ending prior
to such Excess Cash Payment Date shall be applied as a mandatory repayment
of the Obligations as provided in Section 4.5.
(e) Mandatory Payment With Proceeds of Capital Stock. On the first
Business Day after receipt thereof by Borrower and/or any of their
Subsidiaries, an amount equal to 100% of the Net Offering Proceeds of the
sale or issuance of Capital Stock of (or cash capital contributions to)
Borrower or any of their Subsidiaries (other than (i) equity contributions
permitted under Section 8.8 to any of Borrower's Subsidiaries made by
Borrower or any of its Subsidiaries and (ii) proceeds received as a result
of the exercise of any stock options exercised by any director, officer or
employee of Borrower to the extent the proceeds excluded pursuant to this
clause (ii) do not exceed $500,000 for any single exercise (or series of
related exercises), provided that the excess of such proceeds over such
$500,000 minimum amount shall be excluded to the extent the aggregate
amount
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of all such excess proceeds does not exceed $500,000), shall be applied as
a mandatory repayment of the Obligations as provided in Section 4.5.
(f) Mandatory Prepayment Upon Incurrence of Indebtedness. On the first
Business Day after receipt thereof by Borrower and/or any of their
Subsidiaries, an amount equal to 100% of the Net Offering Proceeds of the
incurrence of Indebtedness by Borrower and/or any of its Subsidiaries
(other than Indebtedness permitted to be incurred by Section 8.2) shall be
applied as a mandatory repayment of the Obligations as provided in Section
4.5.
(g) Mandatory Prepayment Upon Recovery Event. Within ten (10) days
following each date on which Borrower or any of its Subsidiaries receives
any proceeds from any Recovery Event, an amount equal to 100% of the
proceeds of such Recovery Event (net of reasonable costs and taxes incurred
in connection with such Recovery Event) shall be applied as a mandatory
repayment of the Obligations as provided in Section 4.5, provided that (1)
so long as no Event of Default or Unmatured Event of Default then exists,
if the net proceeds from any Recovery Event are less than $5,000,000, then
no prepayment shall be required pursuant to this Section 4.4(g), and (2) so
long as no Event of Default or Unmatured Event of Default then exists, with
respect to any single or series of related Recovery Events the net proceeds
therefrom which are equal to or greater than $5,000,000 but less than
$25,000,000, such proceeds shall not be required to be so applied on such
date to the extent that (x) Borrower has delivered a certificate to the
Agent on or prior to such date stating that such proceeds shall be used to
replace or restore any properties or assets in respect of which such
proceeds were paid within 365 days following the date of the receipt of
such proceeds (which certificate shall set forth the estimates of the
proceeds to be so expended) and (y) such proceeds are deposited in an
escrow account with the Agent for the benefit of the Secured Parties (the
"Recovery Event Escrow Account"), from which escrow account amounts may be
withdrawn only to repay the Obligations or to be used for the purposes
described in clause (x) above, provided, further, that (i) if the amount of
such proceeds from any single or series of related Recovery Events exceeds
$25,000,000, then the entire amount and not just the portion in excess of
$25,000,000 shall be applied as a mandatory repayment of the Obligations as
provided above in this Section 4.4(g), (ii) if all or any portion of such
proceeds not required to be applied to the repayment of the Obligations
pursuant to the first proviso of this Section 4.4(g) are not so used (or
contractually committed to be used) within 365 days after the day of the
receipt of such proceeds, such remaining portion shall be applied on the
last day of such period as a mandatory repayment of the Obligations as
provided in this Section 4.4(g) and (iii) if all or any portion of such
proceeds are not required to be applied on the 365th day referred to in
clause (ii) above because such amount is contractually committed to be used
and subsequent to such date such contract is terminated or expires without
such portion being so used, then such remaining
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portion shall be applied on the date of such termination or expiration as a
mandatory repayment of the Obligations as provided in this Section 4.4(g).
(u) Section 4.5(a) of the Credit Agreement is amended by deleting such
Section and substituting therefor the following:
(a) Prepayments. Except as expressly provided in this Agreement, all
prepayments of principal made by Borrower pursuant to Section 4.4 shall be
applied (i) first to the payment of the unpaid principal amount of the
Loans (with the Supplemental Scheduled Term Repayment Percentage of such
repayment to be applied to the Term Loans and the Scheduled Revolving
Commitment Reduction Percentage of such repayment to be applied to the
Revolving Loans), with the Revolving Commitments and the Scheduled
Revolving Commitment Reductions permanently reduced by the amount of the
prepayment of the Revolving Loans and the Scheduled Revolving Commitment
Reductions reduced in direct order until the Scheduled Revolving Commitment
Reductions and the Supplemental Scheduled Term Repayments have been made,
second to the payment of the unpaid principal amount of the Term Loans and
third to the payment of the then outstanding balance of the Revolving Loans
and the cash collateralization of LC Obligations (in the manner set forth
in Section 4.4(a)), in each case in proportional amounts equal to such
Lender's applicable Term Pro Rata Share or Revolver Pro Rata Share, as the
case may be, of such prepayment; (ii) within each of the foregoing Loans,
first to the payment of Base Rate Loans and second to the payment of
Eurodollar Loans; and (iii) with respect to Eurodollar Loans, in such order
as Borrower shall request (and in the absence of such request, as Agent
shall determine). Each prepayment of the Term Loans pursuant to Section
4.4(c), (d), (e), (f) and (g) shall be applied first to the Supplemental
Scheduled Term Repayments and second to the Scheduled Term Repayments, in
each case in the order of the maturity of such principal installments then
remaining to be paid. If any prepayment of Eurodollar Loans made pursuant
to a single Borrowing shall reduce the outstanding Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount, such
Borrowing shall immediately be converted into Base Rate Loans. All
prepayments shall include payment of accrued interest on the principal
amount so prepaid, shall be applied to the payment of interest before
application to principal and shall include amounts payable, if any, under
Section 3.5.
(v) Section 6.11(c) of the Credit Agreement is amended by deleting the
words "by Borrower on the Closing Date" from the second sentence thereof and
substituting therefor the words "by each Credit Party on the Fourth Amendment
Effective Date".
(w) Section 6.15(a) of the Credit Agreement is amended by deleting the
words "of Borrower on the Closing Date" from the first sentence thereof and
substituting therefor the words "of each Credit Party on the Fourth Amendment
Effective Date".
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(x) Section 7.12 of the Credit Agreement is amended by deleting such
Section and substituting therefor the following:
7.12 Additional Security; Further Assurances.
(a) Agreement to Grant Additional Security. Promptly, and in any event within
30 days after the acquisition by Borrower or any Subsidiary of assets or
real or personal property or leasehold interests of the type that would
have constituted Collateral on the Fourth Amendment Effective Date and
investments of the type that would have constituted Collateral on the
Fourth Amendment Effective Date (the "Additional Collateral"), Borrower
will take, or will cause its Subsidiaries to take, all necessary action,
including (i) the filing of appropriate financing statements under the
provisions of the UCC, applicable foreign, domestic or local laws, rules or
regulations in each of the offices where such filing is necessary or
appropriate and (ii) with respect to real estate with a fair market value
in excess of $250,000 (or, with respect to leased real estate, at which
Collateral with a fair market value in excess of $250,000 will be located),
the execution of a mortgage, the obtaining of Mortgage Policies, title
surveys, Landlord Consents and real estate appraisals satisfying all
Requirements of Law, to grant Agent a perfected Lien in such Collateral
pursuant to and to the full extent required by the Security Documents and
this Agreement.
(b) Additional Subsidiary Guarantors. Borrower agrees to cause each new
Domestic Subsidiary established or created in accordance with Section 8.16
(a "New Domestic Subsidiary") to execute and deliver the Subsidiary
Guaranty or such other guaranty of all Obligations and all obligations
under Interest Rate Agreement and Other Hedging Agreements in form and
substance satisfactory to Agent;
(c) Pledge of New Subsidiary Stock. Borrower agrees to pledge, or to cause its
Subsidiaries to Pledge (i) all of the capital stock of each new Domestic
Subsidiary and (ii) 65% of all capital stock of each new Foreign Subsidiary
established or created to Agent for the benefit of the Secured Creditors
pursuant to the Pledge Agreement.
(d) Grant of Security by New Subsidiaries. Borrower will cause each new
Domestic Subsidiary established or created in accordance with Section 8.16
and which is required to execute and deliver the Subsidiary Guaranty
pursuant to Section 7.12(b) to grant to Agent a first priority Lien on all
property (tangible and intangible) of such Subsidiary upon terms similar to
those set forth in the Security Documents as appropriate, and satisfactory
in form and substance to Agent and Required Lenders. Borrower shall cause
each Subsidiary, at its own expense, to execute, acknowledge and deliver,
or cause the execution, acknowledgment and delivery of, and thereafter
register, file or record in any appropriate governmental office, any
document or instrument reasonably deemed by Agent to be necessary
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or desirable for the creation and perfection of the foregoing Liens.
Borrower will cause each of its newly established Subsidiaries to take all
actions requested by Agent (including, without limitation, the filing of
UCC-1's) in connection with the granting of such security interests.
(e) Documentation for Additional Security. The security interests required to
be granted pursuant to this Section 7.12 shall be granted pursuant to such
security documentation (which shall be substantially similar to the
Security Documents already executed and delivered by Credit Parties)
satisfactory in form and substance to Agent and shall constitute valid and
enforceable perfected security interests prior to the rights of all third
Persons and subject to no other Liens except Permitted Liens. The
Additional Security Documents and other instruments related thereto shall
be duly recorded or filed in such manner and in such places and at such
times as are required by law to establish, perfect, preserve and protect
the Liens, in favor of Agent for the benefit of the Secured Creditors,
required to be granted pursuant to the Additional Security Document and,
all taxes, fees and other charges payable in connection therewith shall be
paid in full by Borrower. At the time of the execution and delivery of the
Additional Security Documents, Borrower shall cause to be delivered to
Agent such agreements, opinions of counsel, title surveys, real estate
appraisals and other related documents as may be reasonably requested by
Agent to assure themselves that this Section 7.12 has been complied with.
(f) Foreign Subsidiaries Security. If following a change in the relevant
sections of the Code or the regulations, rules, rulings, notices or other
official pronouncements issued or promulgated thereunder, counsel for
Borrower reasonably acceptable to Agent does not within 30 days after a
request from Agent or the Required Lenders deliver evidence, in form and
substance reasonably satisfactory to Agent, with respect to any Foreign
Subsidiary which has not already had all of its stock pledged pursuant to
the Pledge Agreement that a pledge of 66-2/3% or more (in the case of any
direct Foreign Subsidiary) or all (in the case of any indirect Foreign
Subsidiary) of the total combined voting power of all classes of capital
stock of such Foreign Subsidiary entitled to vote, would cause the
undistributed earnings of such Foreign Subsidiary as determined for Federal
income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's United States parent for Federal income tax purposes, then
that portion of such Foreign Subsidiary's outstanding capital stock not
theretofore pledged pursuant to the Pledge Agreement shall be pledged to
the Collateral Agent for the benefit of the Secured Creditors pursuant to
the Pledge Agreement (or another pledge agreement in substantially similar
form, if needed), to the extent that entering into such Pledge Agreement is
permitted by the laws of the respective foreign jurisdiction and with all
documents delivered pursuant to this Section 7.12 to be in form and
substance reasonably satisfactory to Agent.
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(y) Article VII of the Credit Agreement is amended by inserting a new
Section 7.15 at the conclusion thereof to read as follows:
Section 7.15. Deposit Accounts. Promptly and in any event within
fifteen (15) days following the Fourth Amendment Effective Date, Borrower
will, and will cause each other Credit Party to, enter into Deposit Account
Agreements with respect to each Deposit Account (as defined in the Security
Agreement) maintained by any Credit Party, and use reasonable best efforts
to cause each financial institution where each such Deposit Account is
maintained to enter into a Deposit Account Agreement.
(z) Section 8.2(d) of the Credit Agreement is amended by deleting the
reference to "$75,000,000" contained therein and substituting therefor a
reference to "$60,000,000" and by deleting the second proviso contained therein
in its entirety.
(aa) Section 8.8 of the Credit Agreement is amended by deleting clauses (h)
and (i) thereof and substituting therefor the following:
(h) intentionally omitted; and
(i) intentionally omitted.
(bb) Article VIII of the Credit Agreement is amended further by inserting a
new Section 8.20 at the conclusion thereof to read as follows:
Section 8.20. Deposit Accounts. Borrower will not, and will not permit
any other Credit Party to, open or establish any Deposit Account (as
defined in the Security Agreement) after the Fourth Amendment Effective
Date unless simultaneously therewith a Deposit Account Agreement with
respect to such Deposit Account is executed by such Credit Party, Agent and
the financial institution that maintains such Deposit Account.
(cc) Section 9.1 of the Credit Agreement is amended by deleting such
Section and substituting therefor the following:
9.1 Capital Expenditures. (a) Borrower will not, and will not permit
any of its Subsidiaries to, make or otherwise incur any Capital
Expenditures in excess of $10,000,000 in any fiscal quarter.
Notwithstanding the foregoing, commencing with the first fiscal quarter of
2002, in the event that the amount of Capital Expenditures permitted to be
made by Borrower and its Subsidiaries pursuant to the preceding sentence in
any fiscal quarter (before giving effect to any increase in such permitted
amount pursuant to this sentence) is greater than the amount of such
Capital Expenditures made by Borrower and its Subsidiaries in such fiscal
quarter, such excess may be carried forward and utilized to make Capital
Expenditures in the next three succeeding fiscal quarters; provided, that
in no event shall the aggregate amount of Capital Expenditures made or
otherwise
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incurred by Borrower and its Subsidiaries during any four fiscal quarter
period exceed $40,000,000.
(b) Notwithstanding the foregoing, Borrower and its Subsidiaries may
make Capital Expenditures (which Capital Expenditures will not be included
in any determination under the foregoing clause (a)) with the insurance or
condemnation proceeds received by Borrower or any of its Subsidiaries from
any Recovery Event so long as such Capital Expenditures are to replace or
restore any properties or assets in respect to which such proceeds were
paid within 365 days (or committed to be paid within such 365 days so long
as such replacement or restoration is made within 180 days after the end of
such 365 day period) following the date of the receipt of such insurance
proceeds to the extent such insurance proceeds are not required to be
applied to repay the Obligations pursuant to Section 4.4(g).
(dd) Section 9.2 of the Credit Agreement is amended by deleting such
Section in its entirety and substituting therefor the following:
9.2 Minimum Consolidated EBITDA. Permit the Consolidated EBITDA of
Borrower and its Subsidiaries (a) to be less than (i) $14,000,000 for the
one fiscal quarter ending September 30, 1998, (ii) $26,000,000 for the two
fiscal quarter period ending December 31, 1998 and (iii) $28,000,000 for
the three fiscal quarter period ending March 31, 1999, and (b) for the
applicable Test Period ending on a date set forth below to be less than the
amount set for the opposite such date:
Date Minimum Consolidated EBITDA
---- ---------------------------
June 30, 1999 $37,000,000
September 30, 1999 $47,000,000
December 31, 1999 $58,000,000
March 31, 2000 $88,000,000
June 30, 2000 $110,000,000
September 30, 2000 $115,000,000
December 31, 2000 $115,000,000
March 31, 2001 $105,000,000
June 30, 2001 $100,000,000
September 30, 2001 $100,000,000
December 31, 2001 $85,000,000
March 31, 2002 $82,000,000
June 30, 2002 $87,500,000
September 30, 2002 $90,000,000
December 31, 2002 $95,000,000
March 31, 2003 and each fiscal
-13-
quarter thereafter $115,000,000
(ee) Section 9.3 of the Credit Agreement is hereby amended by deleting such
Section in its entirety and substituting therefor the following:
9.3 Interest Coverage Ratio. Permit the Interest Coverage Ratio (a) to
be less than (i) 0.60 to 1.00 for the one fiscal quarter ending September
30, 1998, (ii) 0.65 to 1.00 for the two fiscal quarter period ending
December 31, 1998 and (iii) .45 to 1.00 for the three fiscal quarter period
ending March 31, 1999, and (b) for the applicable Test Period ending on a
date set forth below to be less than the ratio set forth opposite such
date:
Date Ratio
---- -----
June 30, 1999 0.45 to 1.00
September 30, 1999 0.55 to 1.00
December 31, 1999 0.65 to 1.00
March 31, 2000 1.00 to 1.00
June 30, 2000 1.25 to 1.00
September 30, 2000 1.25 to 1.00
December 31, 2000 1.25 to 1.00
March 31, 2001 1.15 to 1.00
June 30, 2001 1.00 to 1.00
September 30, 2001 1.00 to 1.00
December 31, 2001 0.95 to 1.00
March 31, 2002 0.90 to 1.00
June 30, 2002 0.95 to 1.00
September 30, 2002 1.00 to 1.00
December 31, 2002 1.10 to 1.00
March 31, 2003 and each fiscal 1.30 to 1.00
quarter thereafter
(ff) Section 10.1(c) of the Credit Agreement is amended by deleting such
Section in its entirety and substituting the following therefor:
(c) Covenants. Borrower shall (i) default in the performance or
observance of any term, covenant, condition or agreement on its part to be
performed or observed under Article VIII or Article IX hereof or under
Sections 7.3, 7.6, 7.8, 7.9, 7.12 or 7.15 and such default shall remain
unremedied for a period of five (5) Business Days or (ii) default in the
due performance or observance by it of any other term, covenant or
agreement contained in this Agreement and such default shall continue
unremedied for a period of fifteen (15) Business Days after written notice
to Borrower by Agent or any Lender; or
(gg) The Credit Agreement is amended by deleting Schedules 1.1(a), 6.11(c),
6.14 and 6.15 and substituting therefor Schedules 1.1(a), 6.11(c) and 6.15
attached hereto.
-14-
(hh) The Credit Agreement is further amended by inserting a new Exhibit
1.1(a) to read as set forth on Exhibit 1.1(a) attached hereto.
3. Changes in Interest Rates and Fees. The Borrower, the Lenders and the
Agent acknowledge and agree that any increases in any interest rates or fees
resulting from the effectiveness of this Amendment shall be effective as of the
Effective Date.
4. Amendment Fee. In consideration of the execution of this Amendment by
the Agent and the Lenders, the Borrower hereby agrees to pay each Lender which
executes this Amendment on or prior to December 10, 2001 a fee (i) on the
Effective Date, in an amount equal to (A) the sum of such Lender's Revolving
Commitment (after giving effect to this Amendment) plus the outstanding
principal amount of Term Loans owing to such Lender multiplied by (B) 0.50% (the
"Effective Date amendment Fee") and (ii) on May 15, 2002 (unless no Commitment
remains in effect, no Loan or LC Obligation remains outstanding and unpaid and
no other amount is owing to any Lender or Agent under the Credit Agreement as of
such date), in an amount equal to (A) the sum of such Lender's Revolving
Commitment (after giving effect to any reduction on such date) plus the
outstanding principal amount of Term Loans owing to such Lender (after giving
effect to any principal payment on such date) multiplied by (B) 0.25% (the "May
Amendment Fee" and together with the Effective Date Amendment Fee, the
"Amendment Fee").
5. Borrower's Representations and Warranties. In order to induce the Agent
and the Lenders to enter into this Amendment, the Borrower hereby represents and
warrants to the Agent and the Lenders, in each case after giving effect to this
Amendment, as follows:
(a) 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.
(b) 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 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).
(c) The representations and warranties contained in the Credit Agreement
and the other Loan Documents are true and correct in all material respects at
and as of the Effective Date as though made on and as of the Effective Date
(except to the extent specifically made with regard to a particular date, in
which case such representation and warranty is true and correct in all material
respects as of such earlier date).
(d) 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.
-15-
(e) 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.
(f) 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.
(g) Schedule I attached hereto contains a true and complete list of all
Deposit Accounts (as defined in the Amended and Restated Security Agreement
attached hereto as Exhibit A) maintained by any Credit Party as of the date of
this Agreement, which Schedule shall list for each account the account party,
the account number, the financial institution and the address and contact party
for such financial institution.
6. Conditions to Effectiveness of Amendment. This Amendment shall become
effective on the date (the "Effective Date") each of the following conditions
precedent is satisfied:
(a) Execution and Delivery. The Borrower, the Agent, the Required Lenders
and the Majority Lenders of each Facility shall have executed and delivered this
Amendment.
(b) Execution and Delivery of Loan Documents. The Agent shall have received
each of the following documents, all of which shall be satisfactory in form and
substance to the Agent and its counsel:
(1) revised Schedules 6.11(c), 6.14 and 6.15 to the Credit Agreement;
(2) an Amended and Restated Security Agreement in the form of Exhibit
A attached hereto, duly executed and delivered by each Credit Party;
(3) a Perfection Certificate in the form of Exhibit B attached hereto,
duly executed and delivered by each Credit Party;
(4) an Amended and Restated Pledge Agreement in the form of Exhibit C
attached hereto, duly executed and delivered by each Credit Party;
(5) a Subsidiary Guaranty in the form of Exhibit D attached hereto,
duly executed and delivered by the Subsidiary Guarantors; and
(6) Mortgages; Title Insurance; Survey.
(i) fully executed counterparts of deeds of trusts, mortgages and
similar documents in each case in form and substance reasonably
satisfactory to Agent (each a "Mortgage" and collectively, the
"Mortgages"), which Mortgages shall cover such of the real property
-16-
owned by the Subsidiary Guarantors as shall be listed in Schedule
6.11(c) and each real property identified by Agent (each a "Mortgaged
Property" and collectively, the "Mortgaged Properties"), together with
evidence that counterparts of the Mortgages have been delivered to the
title insurance company insuring the Lien of the Mortgages for
recording in all places to the extent necessary or desirable, in the
judgment of Agent, to create a valid and enforceable first priority
lien on each Mortgaged Property subject only to Permitted Liens in
favor of Agent (or such other trustee as may be required or desired
under local law) for the benefit of the Lenders on the Initial
Borrowing Date;
(ii) mortgagee title insurance policies (or binding commitments
to issue such title insurance policies) issued by title insurance
companies satisfactory to Agent (the "Mortgage Policies") in amounts
satisfactory to Agent insuring Agent that the Mortgages are valid and
enforceable first priority mortgage liens on the respective Mortgaged
Properties, free and clear of all defects, encumbrances and other
Liens except Permitted Liens, and the Mortgage Policies shall be in
form and substance satisfactory to Agent and shall include, as
appropriate, an endorsement for future advances under this Agreement,
the Notes and the Mortgages and for any other matter that Agent or the
Required Lenders in their discretion may request, shall not include an
exception for mechanics' liens, and shall provide for affirmative
insurance and such reinsurance (including direct access agreements) as
Agent in its reasonable discretion may request; (provided that to the
extent any such Mortgage Policy has not been delivered on the Fourth
Amendment Effective Date, Borrower shall cause all such Mortgage
Policies to be delivered to Agent promptly following the Fourth
Amendment Effective Date but in no event later than 45 days following
the Fourth Amendment Effective Date); and
(iii) a survey, in form and substance reasonably satisfactory to
Agent, of each Mortgaged Property of a Subsidiary Guarantors listed on
Schedule 6.11(c), dated a recent date acceptable to Agent, certified
by a licensed professional surveyor in a manner reasonably
satisfactory to Agent (provided that to the extent any such survey has
not been delivered on the Fourth Amendment Effective Date, Borrower
shall cause all such surveys to be delivered to Agent promptly
following the Fourth Amendment Effective Date but in no event later
than 90 days following the Fourth Amendment Effective Date, and shall
cause the title insurance companies that have issued the Mortgage
Policies to issue appropriate endorsements to Agent which effectively
remove all survey exceptions from the Mortgage Policies);
(7) A certificate of a Responsible Officer of Borrower in the form of
Exhibit E attached hereto;
-17-
(8) (i) An opinion of Xxxxxxxx & Xxxxx, special counsel to Borrower,
addressed to Agent and each of the Lenders and dated the Fourth Amendment
Effective Date, which shall be in form and substance reasonably
satisfactory to Agent and (ii) opinions of local counsel to the Subsidiary
Guarantors dated the Fourth Amendment Effective Date, each of which shall
be in form and substance reasonably satisfactory to Agent, which opinions
shall cover such matters incident to the transactions contemplated herein
and in the other Loan Documents as Agent or the Required Lenders may
reasonably request;
(9) A certificate, dated the Fourth Amendment Effective Date, signed
by the secretary or any assistant secretary of each Credit Party, in the
form of Exhibit 5.1(g) to the Credit Agreement with appropriate insertions,
as to the incumbency and signature of the officers of each such Credit
Party executing any Document (in form and substance satisfactory to Agent)
and any certificate or other document or instrument to be delivered
pursuant hereto or thereto by or on behalf of such Credit Party, together
with evidence of the incumbency of such Secretary or Assistant Secretary,
and certifying as true and correct, attach copies of the Certificate of
Incorporation and By-Laws of such Credit Party and the resolutions of such
Credit Party referred to in such certificate and all of the foregoing
(including each such Certificate of Incorporation and By-Laws) shall be
satisfactory to Agent or the Required Lenders;
(10) Good standing certificates for each Credit Party from their
respective jurisdictions of incorporation or organization.
(c) No Defaults. No Unmatured Event of Default or Event of Default
under the Credit Agreement (as amended hereby) shall have occurred and be
continuing.
(d) Representations and Warranties. After giving effect to the
amendments and consents contemplated by this Amendment, the representations and
warranties of the Borrower contained in this Amendment, the Credit Agreement and
the other Loan Documents 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.
(e) Payment of Effective Date Amendment Fee. The Borrower shall have
paid in full to the Agent, for ratable distribution to those Lenders that have
signed this Amendment on or prior to December 10, 2001, an amount equal to the
Effective Date Amendment Fee; provided, however, that the Amendment Fee shall be
payable only in the event that this Amendment has been executed by the Agent,
the Required Lenders and the Majority Lenders of each Facility.
-18-
7. Consents.
(a) Modification of Security Documents. The Required Lenders hereby consent
to the amendment of the Security Agreement as set forth attached hereto as
Exhibit A and to the amendment of the Pledge Agreement as set forth attached
hereto as Exhibit C.
(b) Annual Financial Statements. Notwithstanding the provisions of Section
7.1(b) of the Credit Agreement, the Required Lenders hereby consent to the
delivery of the statements for the Borrower's 2001 Fiscal Year set forth in such
Section on or before the earlier of the second day following the filing of the
Borrower's Form 10-K with the Securities and Exchange Commission and January 21,
2002.
8. 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, 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 Lenders 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 Lenders
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
Loan Documents other than as expressly set forth herein and further agree and
acknowledge that the Credit Agreement (as amended hereby) and each of the other
Loan Documents remain and continue in full force and effect and are hereby
-19-
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 Lenders or the Agent under the
Credit Agreement or any other Loan Document, nor constitute a waiver of any
provision of the Credit Agreement or any other Loan Document. No delay on the
part of any Lender or the Agent in exercising any of their respective rights,
remedies, powers and privileges under the Credit Agreement or any of the Loan
Documents 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 12.1 of the Credit Agreement.
[signature pages follow]
-20-
CONFORMED COPY
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/ Xxxxxxx X. Park
------------------------------------
Name: Xxxxxxx X. Park
Title: Vice President of Finance
BANKERS TRUST COMPANY, in its individual
capacity and as Agent
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
BEAR XXXXXXX INVESTMENT PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxxx
Title: Managing Director
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
ENDEAVOR LLC
By: PPM America, Inc.
As Attorney-in-Fact
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Managing Director
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
FLEET NATIONAL BANK N.A.
By: /s/ Xxxxxxx XxXxxxxxx
------------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
BLACK DIAMOND CLO 1998-1 LTD.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Director
BLACK DIAMOND CLO 1998-1 LTD.
By: Black Diamond Capital Management,
L.L.C., as Collateral Manager
By: /s/ Xxxxx X. Xxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: President/Principal
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
BLACK DIAMOND CLO 2000-1 LTD.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Director
BLACK DIAMOND CLO 2000-1 LTD.
By: Black Diamond Capital Management,
L.L.C., as Collateral Manager
By: /s/ Xxxxx X. Xxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: President/Principal
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
NORDEA BANK FINLAND PLC,
NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management as Investment
Advisor
By: /s/ Payson X. Xxxxxxxxx
------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
XXXXXXX & CO.
By: Boston Management and Research as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
-
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
FIDELITY ADVISOR SERIES II: FIDELITY
ADVISOR FLOATING RATE HIGH INCOME
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
FIDELITY ADVISOR SERIES II: FIDELITY
ADVISOR HIGH INCOME FUND
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
FIDELITY XXXXXXX STREET TRUST: FIDELITY
ASSET MANAGER
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
FIDELITY XXXXXXX STREET TRUST: FIDELITY
ASSET MANAGER GROWTH
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
FIDELITY MANAGEMENT TRUST COMPANY, AS
TRUSTEE FOR THE FIDELITY GROUP FOR
EMPLOYEE BENEFITS PLANS, FIDELITY
COLLECTIVE TRUST
By: /s/ Xxxx X. X'Xxxxxx, Xx.
------------------------------------
Name: Xxxx X. X'Xxxxxx, Xx.
Title: Executive Vice President
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
FLEET BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxxx XxXxxxxxx
------------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
FOOTHILL CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
FOOTHILL INCOME TRUST II LP
By: FIT II GP LLC, its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Member
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
LONG LANE MASTER TRUST IV
By: Fleet National Bank as Trust
Administrator
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title:
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
NORTHWOODS CAPITAL, LIMITED
BY: XXXXXX, XXXXXX & CO., L.P.,
AS COLLATERAL MANAGER
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
NORTHWOODS CAPITAL II, LIMITED
BY: XXXXXX, XXXXXX & CO., L.P.,
AS COLLATERAL MANAGER
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar II, L.P.,
its General Partner
By: Oak Hill Securities MGP, Inc., its
General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II, L.P.,
its General Partner
By: Oak Hill Securities MGP, Inc., its
General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
PPM AMERICA SPECIAL INVESTMENTS FUND, LP
By: PPM America, Inc.
As Attorney-in-Fact
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Managing Director
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
SALOMON BROS. HOLDING COMPANY
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
XXXXX XXX & FARNHAM INCORPORATED,
as agent for Keyport Life Insurance
Company
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President & Portfolio
Manager
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY
By: Xxxxx Xxx & Farham Incorporated, as
Advisor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Xxxxx Xxx & Xxxxxxx Incorporated,
as Advisor to the Xxxxx Xxx
Floating Rate Limited Liability
Company
LIBERTY-XXXXX XXX ADVISOR FLOATING RATE
ADVANTAGE FUND
By: Xxxxx Xxx & Farham Incorporated, as
Advisor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President & Portfolio
Manager
SRF TRADING, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
TRANSAMERICA BUSINESS CAPITAL CORPORATION
(as successor to Transamerica Business
Credit Corporation)
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Senior Vice President
Xxxxxxx Container Corporation
Fourth Amendment to Credit Agreement
EXHIBIT A
FORM OF AMENDED AND RESTATED SECURITY AGREEMENT
EXHIBIT B
FORM OF PERFECTION CERTIFICATE
EXHIBIT C
FORM OF AMENDED AND RESTATED PLEDGE AGREEMENT
EXHIBIT D
FORM OF SUBSIDIARY GUARANTY
EXHIBIT E
OFFICER'S CERTIFICATE
The undersigned, Xxxxxx X. Xxxxxxx, hereby certifies that he is the duly
elected Assistant Treasurer of Xxxxxxx Container Corporation, a Delaware
corporation (the "Borrower"), and pursuant to that certain Fourth Amendment
to Credit Agreement dated as of December ___, 2001 (the Amendment") by and
among the Borrower, Bankers Trust Company, as Agent, and the financial
institutions party thereto as lenders (capitalized terms used herein shall,
unless otherwise defined herein, have the meaning provided in the
Amendment), hereby further certifies as follows:
1. No Unmatured Event of Default or Event of Default under the Credit Agreement
(as amended by the Amendment) has occurred and is continuing as of the date
hereof.
2. After giving effect to the Amendment, the representations and warranties of
the Credit Parties contained in the Amendment, the Credit Agreement and the
other Loan Documents are true and correct in all material respects as of
the date hereof, 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 is true and
correct in all material respects as of such earlier date.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly
executed and delivered as of ______________, 2001.
XXXXXXX CONTAINER CORPORATION
By:
------------------------------------
Xxxxxx X. Xxxxxxx
Assistant Treasurer
EXHIBIT 1.1(a)
FORM OF
DEPOSIT ACCOUNT AGREEMENT
SCHEDULE I
DEPOSIT ACCOUNTS
(To Be Provided by Borrower)
SCHEDULE 1.1(a)
COMMITMENTS
SCHEDULE 6.11(c)
REAL PROPERTY
(To Be Provided by Borrower)
SCHEDULE 6.15
CAPITALIZATION OF SUBSIDIARIES
(To Be Provided by Borrower)
