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EXHIBIT 4.5
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Third Amendment to Amended and Restated Credit Agreement (this
"Amendment"), dated as of May 20, 1997, is by and among Xxxxxxx Container
Corporation, a Delaware corporation (the "Borrower"), the undersigned financial
institutions in their capacities as lenders (collectively, the "Banks"), and
Bankers Trust Company, as agent (the "Agent") for the Banks.
W I T N E S S E T H :
WHEREAS, the Borrower, the Banks and the Agent are parties to that certain
Amended and Restated Credit Agreement dated as of November 17, 1986 and amended
and restated as of June 30, 1995, and as further amended as of May 30, 1996 and
as of July 19, 1996 (as amended, restated, supplemented or otherwise modified
and in effect from time to time, the "Credit Agreement"), pursuant to which the
Banks have provided to the Borrower credit facilities and other financial
accommodations; and
WHEREAS, the Borrower has requested that the Agent and the Banks amend the
Credit Agreement in certain respects as set forth herein and the Banks and the
Agent are agreeable to the same, subject to the terms and conditions hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, and other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Defined Terms. Terms capitalized herein and not otherwise defined herein
are used with the meanings ascribed to such terms in the Credit Agreement.
2. Amendments to Credit Agreement. The Credit Agreement is, as of the
Effective Date (as defined below), hereby amended as follows:
(a) Section 5.1(j) of the Credit Agreement is hereby amended by deleting
such Section in its entirety and replacing it with the following:
"(j)Adjusted Consolidated Net Worth. The Borrower's Adjusted
Consolidated Net Worth as of the end of each Fiscal Quarter ending
on or after the Fiscal Quarter ended in June, 1996 as specified
below shall not be less than the applicable amount set forth in
the table below:
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Minimum Adjusted
Fiscal Quarter Ended Consolidated Net Worth
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Fiscal Quarter ended in June, 1996 $ 100,000,000
Fiscal Quarter ended in September, $ 94,000,000
1996
Fiscal Quarter ended in December, $ 80,000,000
1996
Fiscal Quarter ended in March, 1997 $ 68,000,000
Fiscal Quarter ended in June, 1997 $ 58,000,000
Fiscal Quarter ended in September, $ 48,000,000
1997
Fiscal Quarter ended in December, $ 37,000,000
1997
Fiscal Quarter ended in March, 1998 $ 30,000,000
Fiscal Quarter ended in June, 1998 $ 26,000,000
Fiscal Quarter ended in September, $ 24,000,000
1998
Fiscal Quarter ended in December, $ 25,000,000
1998
Fiscal Quarter ended in March, 1999 $ 27,000,000
Fiscal Quarter ended in June, 1999 $ 38,000,000
Fiscal Quarter ended in September, $ 50,000,000"
1999 and each Fiscal Quarter ended
thereafter
(b) Section 5.1(l) of the Credit Agreement is hereby amended by deleting
subsection (i) thereof in its entirety and replacing it with the following:
"(i) Maintain for each Fiscal Quarter, a ratio (the "Interest
Coverage Ratio") of (A) EBITDA for the four preceding Fiscal
Quarters ending on the last day of the Fiscal Quarter set forth
below to (B) Interest Expense of the Borrower for the same four
Fiscal Quarters, which is equal to or greater than those set forth
below:
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Fiscal Quarter Interest Coverage Ratio
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ending June 30, 1996 2.27 to 1.00
ending September 30, 1996 1.80 to 1.00
ending December 31, 1996 1.07 to 1.00
ending March 31, 1997 0.81 to 1.00
ending June 30, 1997 0.50 to 1.00
ending September 30, 1997 0.35 to 1.00
ending December 31, 1997 0.30 to 1.00
ending March 31, 1998 0.40 to 1.00
ending June 30, 1998 0.70 to 1.00
ending September 30, 1998 1.00 to 1.00
ending December 31, 1998 1.20 to 1.00
ending March 31, 1999 1.40 to 1.00
ending June 30, 1999 1.65 to 1.00
ending September 30, 1999 1.95 to 1.00"
and each Fiscal Quarter ending
thereafter
3. Amendment Fee. In consideration of the execution of this Amendment by
the Agent and the Banks, the Borrower hereby agrees to pay each Bank which
executes this Amendment on or prior to May 20, 1997 a fee (the "Amendment Fee")
in an amount equal to such Bank's Maximum Commitment multiplied by one-eighth
of one percent (1/8 of 1%).
4. Borrower's Representations and Warranties. In order to induce the Agent
and the Banks to enter into this Amendment, the Borrower hereby represents and
nwarrants to the Agent and the Banks that:
(i) the Borrower has the right, power and capacity and has
been duly authorized and empowered by all requisite corporate and
shareholder action to enter into, execute, deliver and perform this
Amendment and all agreements, documents and instruments executed
and delivered pursuant to this Amendment;
(ii) this Amendment constitutes the Borrower's legal, valid
and binding obligation, enforceable against it, except as
enforcement thereof may be subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or
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similar laws affecting creditors' rights generally and general
principles of equity (regardless of whether such enforcement is
sought in a proceeding in equity or at law or otherwise);
(iii) the Borrower's execution, delivery and performance of
this Amendment do not and will not violate its Certificate of
Incorporation or By-laws, any law, rule, regulation, order, writ,
judgment, decree or award applicable to it or any contractual
provision to which it is a party or to which it or any of its
property is subject;
(iv) no authorization or approval or other action by, and no
notice to or filing or registration with, any governmental
authority or regulatory body (other than those which have been
obtained and are in force and effect) is required in connection
with its execution, delivery and performance of this Amendment and
all agreements, documents and instruments executed and delivered
pursuant to this Amendment; and
(v) no Event of Default or Unmatured Event of Default exists
under the Credit Agreement or would exist after giving effect to
the transactions contemplated by this Amendment.
5. 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, and the Required
Banks shall have executed and delivered this Amendment.
(b) No Defaults. No Unmatured Event of Default or Event of Default under
the Credit Agreement (as amended hereby) shall have occurred and be continuing.
(c) Representations and Warranties. The representations and warranties of
the Borrower contained in this Amendment and in the Credit Agreement (as
amended hereby) shall be true and correct in all material respects as of the
Effective Date, with the same effect as though made on such date, except to the
extent that any such representation or warranty relates to an earlier date, in
which case such representation or warranty shall be true and correct in all
material respects as of such earlier date.
(d) Payment of Amendment Fee. The Borrower shall have paid in full to the
Agent, for ratable distribution to those Banks that have signed this Amendment
on or prior to May 20, 1997, an amount equal to the Amendment Fee; provided,
however, that the Amendment Fee shall be payable only in the event that this
Amendment has been executed by the Agent and the Required Banks.
(e) Deliveries. The Borrower shall have duly executed and delivered to the
Agent a certificate of a Responsible Officer of the Borrower dated as of the
Effective Date certifying as to the conditions precedent set forth in Sections
5(b) and (c) of this Amendment.
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6. 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 Banks and
their respective successors and assigns. Except as expressly set forth to the
contrary herein, this Amendment shall not be construed so as to confer any
right or benefit upon any Person other than the Borrower, the Agent and the
Banks and their respective successors and permitted assigns.
(g) Amendment; Waiver. The parties hereto agree and acknowledge that
nothing contained in this Amendment in any manner or respect limits or
terminates any of the provisions of the Credit Agreement or any of the other
Basic Agreements other than as expressly set forth herein and further agree and
acknowledge that the Credit Agreement (as amended hereby) and each of the other
Basic Agreements remain and continue in full force and effect and are hereby
ratified and confirmed. Except to the extent expressly set forth herein, the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any rights, power or remedy of the Banks or the Agent under the
Credit Agreement or any other Basic Agreement, nor constitute a waiver of any
provision of the Credit Agreement or any other Basic Agreement. No delay on
the part of any Bank or the Agent in exercising any of their respective rights,
remedies, powers and privileges under the Credit Agreement or any of the Basic
Agreements or partial or single exercise thereof, shall constitute a waiver
thereof. None of the terms and conditions of this Amendment may be changed,
waived, modified or varied in any manner, whatsoever, except in accordance with
Section 9.1 of the Credit Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
XXXXXXX CONTAINER CORPORATION
By: Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Assistant Treasurer
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BANKERS TRUST COMPANY, in its individual
capacity and as Agent
By: Xxxx Xx Xxxxx
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Name: Xxxx Xx Xxxxx
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Title: Assistant Vice President
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THE BANK OF NEW YORK
By: Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Vice President
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BANKERS TRUST (DELAWARE)
By: Xxxxx X. Scallcamp
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Name: Xxxxx X. Scallcamp
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Title: President
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CAISSE NATIONAL DE CREDIT AGRICOLE
By: Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Senior Vice President
Branch Manager
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XXXXXX TRUST AND SAVINGS BANK
By: X.X. Xxxxxx
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Name: X.X. Xxxxxx
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Title: SVP
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NATIONSBANK, N.A.
By: Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Senior Vice President
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CHRISTIANIA BANK
By: Xxxx Xxxxxx Xxxxxxxx
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Name: Xxxx Xxxxxx Xxxxxxxx
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Title: First Vice President
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XXXXXX FINANCIAL, INC.
By: Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
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Title: AVP
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TRANSAMERICA BUSINESS CREDIT CORP.
By: Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: Senior Vice President
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NATIONAL BANK OF CANADA
By: Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Assistant Vice President
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By: Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Vice President
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