SIXTH AMENDMENT TO EXHIBIT 4.20
AMENDED AND RESTATED CREDIT AGREEMENT
SIXTH AMENDMENT (the "Amendment"), dated as of August 16, 1994, among THE
INTERLAKE CORPORATION, a Delaware corporation (the "Company"), each Subsidiary
Borrower party to the Credit Agreement referred to below, The Interlake Corpor-
ation Employee Stock Ownership Trust (the "ESOP Borrower"), acting by and
through the LaSalle National Trust, N.A. (successor to LaSalle National Bank),
not in its individual or corporate capacity, but solely in its capacity as
trustee of the ESOP Trust (the "ESOP Trustee" and together with the Company and
the Subsidiary Borrowers, the "Credit Parties"), CHEMICAL BANK, individually
and as Administrative Agent (the "Administrative Agent"), THE FIRST NATIONAL
BANK OF CHICAGO, individually and as Co-Agent (the "Co-Agent"), and the
financial institutions party to the Credit Agreement referred to below and
listed on the signature pages hereto (the "Banks"). All capitalized terms used
herein and not otherwise defined herein shall have the respective meanings
provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, each of the Credit Parties, the Banks, the Administrative
Agent and the Co-Agent are parties to that certain Amended and Restated Credit
Agreement dated as of September 27, 1989 and amended and restated as of May 28,
1992 and as further amended by the First Amendment dated as of August 14, 1992,
the Second Amendment and Waiver dated as of October 30, 1992, the Third Amend-
ment and Waiver dated as of August 20, 1993, the Fourth Amendment dated as of
December 22, 1993 and the Fifth Amendment dated as of February 23, 1994 (as so
amended and restated and further amended and as the same may hereafter be
amended, modified or supplemented from time to time, the "Credit Agreement");
and
WHEREAS, the Company, the Subsidiary Borrowers and the Banks wish to
amend the Credit Agreement as herein provided;
NOW THEREFORE, it is agreed:
1. On the Sixth Amendment Effective Date (as defined below), Section
4.04(b) of the Credit Agreement is hereby amended by deleting such Section in
its entirety and inserting in lieu thereof the following new Section:
"(b) Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the
Company and the Administrative Agent promptly after the Sixth Amendment
Effective Date, or in the case of a Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 13.04
(unless the respective Bank was already a Bank hereunder immediately
prior to such assignment or transfer), on the date of such assignment or
transfer to such Bank, (i) two accurate and complete original signed
copies of Internal Revenue Service Form 4224 or 1001 (or successor
forms) certifying to such Bank's entitlement to a complete exemption
from United States withholding tax with respect to payments to be made
under this Agreement and under any Note, or (ii) if the Bank is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 pursuant to
clause (i) above, (x) a certificate substantially in the form of Exhibit
A hereto (any such certificate, a "Section 4.04(b)(ii) Certificate") and
(y) two accurate and complete original signed copies of Internal Revenue
Service Form W-8 (or successor form) certifying to such Bank's
entitlement to a complete exemption from United States withholding tax
with respect to payments of interest to be made under this Agreement and
under any Note; provided, however, that any Bank which has previously
delivered such forms which would otherwise satisfy the requirements of
this sentence shall hereafter be deemed to have complied with the
requirements of this sentence. In addition, each Bank agrees that from
time to time after the Sixth Amendment Effective Date, when a lapse in
time or change in circumstances renders the previous certification
obsolete or inaccurate in any material respect, it will deliver to the
Company and the Administrative Agent two new accurate and complete
original signed copies of Internal Revenue Service Form 4224 or 1001, or
Form W-8 and a Section 4.04(b)(ii) Certificate, as the case may be, and
such other forms as may be required in order to confirm or establish the
entitlement of such Bank to a continued exemption from or reduction in
United States withholding tax with respect to payments under this
Agreement and any Note, or it shall immediately notify the Company and
the Administrative Agent of its inability to deliver any such Form or
Certificate. Notwithstanding anything to the contrary contained in
Section 4.04(a) (x) any Borrower shall be entitled, to the extent it is
required to do so by law, to deduct or withhold income or similar taxes
imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts
payable hereunder for the account of any Bank which is not a United
States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Bank
has not provided to the Company and Administrative Agent U.S. Internal
Revenue Service Forms that establish a complete exemption from such
deduction or withholding and (y) no Borrower shall be obligated pursuant
to Section 4.04(a) hereof to gross-up payments to be made to a Bank in
respect of income or similar taxes imposed by the United States if such
Bank has not provided to the Company and the Administrative Agent the
Internal Revenue Service Forms required to be provided to the Company
and the Administrative Agent pursuant to this Section 4.04(b) or to the
extent that such Forms do not establish a complete exemption from
withholding of such taxes."
2. On the Sixth Amendment Effective Date, Section 13.04(b) of the
Credit Agreement is hereby amended by inserting at the end of the first
sentence thereof the following new proviso:
"and, provided further, that no such transfer or assignment by a
Specified Bank will be effective until recorded by the Administrative
Agent on the Register pursuant to Section 13.04(d) hereof."
3. On the Sixth Amendment Effective Date, Section 13.04(d) of the
Credit Agreement is hereby amended by inserting the following at the end
thereof:
"With respect to any Specified Bank, the Administrative Agent shall
maintain the Register, solely for purposes of this Section 13.04(d), as
an agent of each Borrower. The transfer of the Commitments and Loans of
any Specified Bank and the rights to the principal of, and interest on,
any Loans or any Loans made pursuant to such Commitments shall not be
effective until such transfer is recorded in the Register maintained by
the Administrative Agent with respect to ownership of such Commitments
and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitments and Loans shall remain owing
to the transferor. The registration of an assignment or transfer by a
Specified Bank of all or part of its Commitments and Loans shall be
recorded by the Administrative Agent on the Register only upon the
acceptance by the Administrative Agent of a properly executed and
delivered Assignment and Acceptance pursuant to Section 13.04(b).
Coincident with the delivery by a Specified Bank of such Assignment and
Acceptance to the Administrative Agent for acceptance and registration
of an assignment or transfer of all or part of a Loan, or as soon
thereafter as practicable, the assigning or transferor Specified Bank
shall surrender the Registered Note evidencing such Loan, and thereupon
one or more new Registered Notes in the same aggregate principal amount
shall be issued to the assigning or transferor Specified Bank and/or the
new Bank. The Administrative Agent shall indemnify and defend the
Borrowers for and against any and all actions, claims, costs and damages
which arise from or out of the agency relationship established by this
Section 13.04(d) other than any actions, claims, costs and damages which
result primarily from the gross negligence or willful misconduct of the
Borrowers. Subject to Section 11.02, neither the Administrative Agent
nor the Borrower shall be liable in any respect to the Banks in
connection with the maintenance of the transfer and registration system
pursuant to this Section 13.04(d)."
4. On the Sixth Amendment Effective Date Section 13.04(e) of the
Credit Agreement is hereby amended by inserting at the end thereof the
following:
"Each Bank that has executed and delivered the Sixth Amendment and
that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) and that could become completely exempt from
withholding of any tax, assessment or other charge or levy imposed by or
on behalf of the United States of America or any taxing authority thereof
in respect of payment of Obligations due to such Bank if the Obligations
were in registered form for U.S. Federal income tax purposes may request
the Company (through the Administrative Agent), and the Company thereby
agrees, upon such Bank's satisfaction of the requirements of Sections
4.04(b), to record such Obligations in the Register and exchange any Notes
evidencing such Obligations for Notes in registered form ("Registered
Notes") for U.S. Federal income tax purposes (which form shall be in
substantially the form of Exhibit B-1, B-2, B-3, B-4, B-5, B-6, B-7, B-8,
B-9, B-10, or B-11, as the case may be, except that such Registered Notes
shall be made payable to such Bank or its registered assigns). Registered
Notes shall be deemed to be and shall be Notes for all purposes of the
Credit Agreement and the other Credit Documents. Any Bank that makes a
request pursuant to the second immediately preceding sentence and
receives Registered Notes in exchange for its Notes, together with any
subsequent transferee or assignee of such Bank, is hereinafter called a
"Specified Bank." Registered Notes may not be exchanged for Notes that
are not in registered form."
5. On the Sixth Amendment Effective Date, Section 10 of the Credit
Agreement is hereby amended by inserting therein the following new defined
terms in the appropriate alphabetical order:
"Registered Notes" shall have the meaning provided in Section
13.04(e).
"Sixth Amendment Effective Date" shall have the meaning provided in
the Sixth Amendment to the Credit Agreement dated as of August 16,
1994."
"Specified Bank" shall have the meaning provided in Section
13.04(e).
6. On the Sixth Amendment Effective Date, Exhibit G to the Credit
Agreement is hereby amended by adding immediately following Section 7 thereof
the following new Section 8:
"8. Notwithstanding anything to the contrary contained herein, this
Assignment and Acceptance Agreement shall not be effective until the assignment
effected hereby is recorded by the Administrative Agent on the Register
pursuant to Section 13.04(d) of the Credit Agreement. By its execution and
delivery hereof, the Assignee hereby expressly agrees to the terms of the Sixth
Amendment to the Credit Agreement."
7. In order to induce the Banks to enter into this Amendment, each
of the Credit Parties (other than the ESOP Trustee) hereby (a) certifies that
no Default or Event of Default exists and that each of the representations,
warranties and agreements contained in Section 6 of the Credit Agreement on the
Sixth Amendment Effective Date, both before and after giving effect to this
Amendment, is true and correct in all material respects and (b) confirms that
it has and will continue to comply with all of its obligations contained in the
Credit Agreement and the other Credit Documents including with respect to each
of the Borrowers, but not limited to, all of its obligations contained in
Section 7.10(b) of the Credit Agreement.
8. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
9. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Company and the Administrative Agent.
10. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
11. This Amendment shall become effective on the date (the "Sixth
Amendment Effective Date") when the Company, the Subsidiary Borrowers, the ESOP
Trustee, the Administrative Agent, the Co-Agents and the Required Banks shall
have signed a copy hereof (whether the same or different copies) and shall have
delivered (including by way of telecopier) such copies to the Administrative
Agent.
12. From and after the Sixth Amendment Effective Date, all references in
the Credit Agreement and each of the Credit Documents or any other agreement to
the Credit Agreement shall be deemed to be references to such Credit Agreement
as amended hereby.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
THE INTERLAKE CORPORATION
By________________________
Title:
SUBSIDIARY BORROWERS
ACME STRAPPING INC.
By________________________
Title:
DEXION (AUSTRALIA) PTY. LTD.
A.C.N. 000 083 956
By________________________
Title:
S.A. DEXION-REDIRACK N.V.
By________________________
Title:
DEXION INTERNATIONAL LIMITED
By________________________
Title:
PRECIS (935) LTD.
By________________________
Title:
DEXION GmbH
By________________________
Title:
TWICEBONUS LIMITED
By________________________
Title:
THE INTERLAKE CORPORATION
EMPLOYEE STOCK OWNERSHIP
TRUST, acting by and through
the LASALLE NATIONAL TRUST,
N.A. (successor to LaSalle
National Bank), not in its
individual or corporate
capacity (except for the
representations and warranties
contained in Section
6.01(b)(y) of the Credit
Agreement) but solely in its
capacity as ESOP Trustee
By_________________________
Title:
BANKS
CHEMICAL BANK
Individually, and as
Administrative Agent
By________________________
Title:
THE FIRST NATIONAL BANK
OF CHICAGO
Individually, and as Co-Agent
By_________________________
Title:
MITSUI TRUST & BANKING CO.,
LTD.
By_________________________
Title:
NATIONAL BANK OF CANADA
By_________________________
Title:
By_________________________
Title:
NATIONAL WESTMINSTER BANK PLC
By_________________________
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, suc-
cessor by merger to Security
Pacific National Bank
By________________________
Title:
CONTINENTAL BANK N.A.
By________________________
Title:
THE FUJI BANK LIMITED
By_______________________
Title:
MELLON BANK N.A.
By_______________________
Title:
THE NIPPON CREDIT BANK, LTD.
By_______________________
Title:
THE BANK OF NOVA SCOTIA
By_______________________
Title:
AMERICAN SAVINGS OF FLORIDA,
F.S.B.
By_______________________
Title:
UNION BANK OF FINLAND/
CAYMAN ISLAND BRANCH
By_______________________
Title:
BANK OF YOKOHAMA
By_______________________
Title:
GIROCREDIT BANK
By_______________________
Title:
By_______________________
Title:
EATON VANCE PRIME RATE
RESERVES
By______________________
Title:
LEHMAN COMMERCIAL PAPER INC.
By_______________________
Title:
RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS, B.V.
By_______________________
Title:
Chancellor Senior Secured
Management, Inc. as Portfolio
Advisor
PEARL STREET L.P.
By_______________________
Title:
ACCEPTED AND CONSENTED TO:
INTERLAKE DRC LIMITED
By________________________
Title:
DEXION GROUP PLC
By________________________
Title:
EXHIBIT A
Section 4.04(b)(ii) Certificate
Reference is hereby made to the Amended and
Restated Credit Agreement dated as of September 27, 1989 and
amended and restated as of May 28, 1992 (the "Credit
Agreement"), among THE INTERLAKE CORPORATION, a Delaware
corporation, each Subsidiary Borrower (as defined in the
Credit Agreement), The Interlake Corporation Employee Stock
Ownership Trust, acting by and through the LaSalle National
Trust, N.A. (successor to LaSalle National Bank), not in its
individual or corporate capacity, but solely in its capacity
as trustee of the ESOP Trust, CHEMICAL BANK, individually and
as Administrative Agent, THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Co-Agent, and the financial institutions
party to the Credit Agreement and listed on the signature
pages thereto (as so amended and restated and further amended
and as the same may hereafter be amended, modified or
supplemented from time to time). Pursuant to the provisions
of Section 4.04(b)(ii) of the Credit Agreement, the under-
signed hereby certifies that it is not a "bank" as such term
is used in Section 881(c)(3)(A) of the Internal Revenue Code
of 1986, as amended.
[NAME OF BANK]
By:________________________
Name:
Title: