Exhibit 4.3
MASTER ASSIGNMENT
AND CONSENT AGREEMENT AND
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS MASTER ASSIGNMENT AND CONSENT AGREEMENT AND FIRST AMENDMENT TO CREDIT
AGREEMENT, dated as of August 15, 1996 (this "Agreement"), is by and among BWAY
CORPORATION, a Delaware corporation ("BWAY"), BROCKWAY STANDARD, INC., a
Delaware corporation ("Brockway"), MILTON CAN COMPANY, INC., a Delaware
corporation ("Milton"), DAVIES CAN COMPANY, INC., a Delaware corporation
("Davies"), the Lenders parties to the Credit Agreement referred to below on the
date hereof but immediately prior to giving effect to this Agreement (the
"Existing Lenders"), BANKERS TRUST COMPANY, as Administrative Agent and
Syndication Agent, NATIONSBANK, N.A. (SOUTH), as Documentation Agent and Paying
Agent, and each of the financial institutions listed on Annex A attached hereto
(the "New Lenders").
RECITALS:
WHEREAS, BWAY, Brockway, Milton, Davies, the Agents and the Existing
Lenders are parties to that certain Credit Agreement dated as of June 17, 1996
(the "Credit Agreement");
WHEREAS, the Existing Lenders desire to assign a portion of the outstanding
Loans and Commitments to the New Lenders on the terms set forth herein in
connection with the initial syndication of the Loans and Commitments; and
WHEREAS, BWAY, Brockway, Milton, Davies, the Agents and the Existing
Lenders desire to amend the Credit Agreement as herein provided to (i) reflect
the new allocation of the Commitments and Loans among the Existing Lenders and
New Lenders and the addition of the New Lenders as Lenders under the Credit
Agreement, and (ii) reflect the addition of Harris Trust and Savings Bank and
SunTrust Bank, Atlanta as Co-Agents;
NOW THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings given them in the Credit Agreement.
SECTION 2. DEEMED ASSIGNMENT AND CONSENT.
(a) Each of the Existing Lenders (collectively, the "Assignor
Lenders", and each individually, an "Assignor Lender"), severally and not
jointly, hereby sells and assigns to each of the New Lenders without
recourse and without representation or warranty (other than as expressly
provided herein), and each New Lender hereby purchases and assumes from
each Assignor Lender, that interest in and to each of such Assignor
Lender's rights and obligations under the Credit Agreement as of the date
hereof which in the aggregate represents such New Lender's pro rata share
(with respect to each such New Lender, its "Pro Rata Share") as set forth
on, and in respect of the Commitments listed on Annex B attached hereto
(calculated after giving effect to this Agreement), and such Pro Rata Share
represents
all of the outstanding rights and obligations under the Credit Agreement
that are being sold and assigned to each New Lender, including, without
limitation, all rights and obligations with respect to such New Lender's
Pro Rata Share of outstanding Loans and Letters of Credit.
(b) In consideration of the assignment to each New Lender described
in Section 2(a) above, such New Lender hereby agrees to pay to the Paying
Agent, on the Effective Date (as defined below), the principal amount of
any outstanding Loans included within the New Lender's Pro Rata Share of
the Commitments listed on Annex B hereto, such payment to be made by wire
transfer of immediately available funds to the Paying Agent in accordance
with payment instructions separately provided by the Paying Agent to such
New Lender. Upon receipt of any such payment, the Paying Agent shall pay
each Assignor Lender its share of such payment. Any fees (other than
Commitment Fees and Letter of Credit Fees) payable to a New Lender in
respect of the Commitments included within such New Lender's Pro Rata Share
shall be determined and paid to such New Lender as agreed upon separately
by the applicable Assignor Lender or Assignors Lenders and such New Lender.
(c) The parties hereby agree that, upon giving effect to the
assignment and assumption described above, (i) each New Lender shall be a
party to the Credit Agreement and shall have all of the rights and
obligations under the Loan Documents, and shall be deemed to have made all
of the covenants and agreements contained in the Loan Documents (including,
without limitation, the appointment of BT and NationsBank as Agents in
accordance with Article VIII of the Credit Agreement), arising out of or
otherwise related to its Pro Rata Share of the Commitments assigned to such
New Lender hereby, and (ii) each Assignor Lender shall be absolutely
released from any of such obligations, covenants and agreements assumed or
made by any New Lender in respect of the share assigned to such New Lender
hereby.
(d) Each Assignor Lender and each New Lender hereby acknowledge and
confirm their understanding and intent that from and after the Effective
Date, the Paying Agent shall make all payments under the Credit Agreement
in respect of the assignment made hereby to such New Lender (including,
without limitation, all payments of principal and accrued but unpaid
interest, Commitment Fees and Letter of Credit Fees with respect thereto)
(i) in the case of any such interest, Commitment Fees and Letter of Credit
Fees that shall have accrued prior to the Effective Date, to the applicable
Assignor Lender, and (ii) in all other cases, the applicable New Lender.
Each Assignor Lender and each New Lender hereby agrees from time to time,
upon request of a party hereto, to take such additional actions and to
execute and deliver such additional documents and instruments as such party
may reasonably request to effect the transactions contemplated by, and to
carry out the intent of, this Agreement.
(e) No Assignor Lender shall be responsible to any New Lender for the
execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of any of the Loan Documents or for any
representations, warranties, recitals or statements
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made therein or made in any written or oral statements or in any financial
or other statements, instruments, reports or certificates or any other
documents furnished or made by any Assignor Lender to any New Lender or by
or on behalf of BWAY or any of its Subsidiaries to any Assignor Lender or
any New Lender in connection with the Loan Documents and the transactions
contemplated thereby or for the financial condition or business affairs of
BWAY, the Borrowers or any other Person liable for the payment of any
Obligations, nor shall any Assignor Lender be required to ascertain or
inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the
Loan Documents or as to the use of the proceeds of the Loans or as to the
existence or possible existence or any Event of Default or Unmatured Event
of Default.
(f) Each New Lender represents and warrants that it has experience
and expertise in the making of loans such as the Loans; that it has
acquired its Pro Rata Share for its own account in the ordinary course of
business and not with a view to or for sale in connection with any
distribution of the Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood and
agreed that, subject to the provisions of Section 11.10 of the Credit
Agreement, the disposition of its Pro Rata Share or of any interest therein
shall at all times remain within such New Lender's exclusive control); and
that it has received, reviewed and approved a copy of the Credit Agreement
(including all Exhibits and Schedules thereto) and each of the other Loan
Documents.
(g) Each New Lender represents and warrants that it has received from
Assignor Lenders such financial information regarding BWAY and its
Subsidiaries as is available to Assignor Lenders and as such New Lender has
requested, that it has made its own independent investigation of the
financial condition and affairs of BWAY and its Subsidiaries in connection
with the assignment evidenced by this Agreement, and that it has made and
shall continue to make its own appraisal of the creditworthiness of BWAY
and its Subsidiaries. No Assignor Lender shall have any duty or
responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of any New Lender or to
provide any New Lender with any other credit or other information with
respect thereto, whether coming into its possession before the making of
the initial Loans or at any time or times thereafter, and no Assignor
Lender shall have any responsibility with respect to the accuracy of or the
completeness of any information provided to any New Lender.
(h) Each Assignor Lender represents and warrants to each New Lender
that (i) the rights and obligations of such Assignor Lender assigned hereby
are not subject to any Liens created by that Assignor Lender and (ii) it is
the legal and beneficial owner of that portion of the Pro Rata Share of
such New Lender assigned by such Assignor Lender to such New Lender hereby,
free and clear of any adverse claim.
(i) The Administrative Agent hereby acknowledges that no processing
and recordation fee is payable under Section 11.10(d) of the Credit
Agreement as a result of the assignments contemplated hereby.
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(j) Notwithstanding anything herein to the contrary, in the event any
New Lender does not execute and deliver this Agreement to the
Administrative Agent on or prior to 5:00 P.M. (New York City time), August
15, 1996, the Administrative Agent may elect in its sole discretion to
remove such Person as a New Lender for all purposes under this Agreement,
it being understood that (i) any rights and obligations under the Credit
Agreement that would have been assigned to such Person shall be retained by
the Assignor Lenders, (ii) the Administrative Agent shall amend this
Agreement and Annex A and Annex B hereto to give effect to such removal and
retention, and (iii) the removal of any Person as a New Lender as provided
in this paragraph shall not preclude the effectiveness of this Agreement as
provided in Section 4 hereof.
(k) The Administrative Agent, the Facing Agent and the Borrowers
hereby consent to the assignments by the Assignor Lenders to the New
Lenders contemplated hereby.
SECTION 3. ADDITION OF NEW LENDERS AS LENDERS; PRO RATA SHARES AND NOTICE
ADDRESSES; AMENDMENTS TO CREDIT AGREEMENT.
(a) The Credit Agreement is hereby amended to include the New Lenders
listed on Annex A hereto as Lenders for all purposes under the Credit
Agreement and each of the other Loan Documents and the New Lenders shall
hereby become vested with all the rights, powers, privileges and duties of
a Lender under the Credit Agreement and each of the other Loan Documents.
For purposes of the Credit Agreement, the addresses of each of the New
Lenders shall be as set forth under such New Lender's name on the signature
pages hereof. Accordingly, subject to the provisions of Section 2(j)
hereof, Schedule 1.1(a) to the Credit Agreement is hereby amended by
deleting it in its entirety and substituting therefor a new Schedule 1.1(a)
in the form of Annex B attached hereto.
(b) The Credit Agreement is hereby amended by deleting the reference
to "and NATIONSBANK, N.A. (SOUTH), as Documentation Agent and Paying Agent
for the Lenders" appearing in the preamble thereto and replacing such
reference with the following:
"NATIONSBANK, N.A. (SOUTH), as Documentation Agent and Paying Agent
for the Lenders, and HARRIS TRUST AND SAVINGS BANK and SUNTRUST BANK,
ATLANTA, as Co-Agents"
(c) The Credit Agreement is hereby amended by adding a new Section
8.10 at the end of Article VIII thereof as follows:
"Section 8.10 Co-Agents. None of the Lenders referenced in the
preamble or signature pages of this Agreement as a "Co-Agent" shall
have any right, power, obligation, liability, responsibility or duty
under this Agreement or any other Loan Document other than those
applicable to all Lenders as such. Each Lender acknowledges that it
has not relied, and will not rely, on any of the Lenders so identified
as Co-Agents in deciding to enter into this
-4-
Agreement or in taking or refraining from taking any action hereunder
or pursuant hereto."
SECTION 4. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. This
Agreement shall become effective upon the date (the "Effective Date") each of
the following conditions have been satisfied:
(a) The Borrowers, the Agents, the Existing Lenders and the New
Lenders shall have executed and delivered this Agreement.
(b) The Borrowers shall have delivered to the Administrative Agent or
its counsel executed Revolving Notes payable to each Existing Lender and
New Lender giving effect to the assignments contemplated hereby, each dated
the Closing Date.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
(a) Corporate Power and Authority; Authorization and Enforceability.
Each party to this Agreement represents and warrants (i) that it has full
power and authority to enter into this Agreement and perform its
obligations hereunder in accordance with the provisions hereof, (ii) that
this Agreement has been duly authorized, executed and delivered by such
party and (iii) that this Agreement constitutes the legal, valid and
binding obligation of such party, enforceable against such party in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally and by general principles of
equity.
(b) Binding Obligation. The Borrowers represent and warrant that the
new Revolving Notes being delivered by the Borrowers pursuant to this
Agreement (i) have been duly executed and delivered by the Borrowers and
(ii) are the legal, valid and binding obligations of the Borrowers,
enforceable against the Borrowers in accordance with their respective
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally and by general principles of equity.
(c) Incorporation of Representations and Warranties From Loan
Documents; Absence of Default. The Borrowers represent and warrant to each
Existing Lender and New Lender that the following statements are true and
correct:
(i) The representations and warranties contained in the Credit
Agreement and each of the other Loan Documents are and will be true,
correct and complete in all material respects on and as of the
Effective Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true,
correct and complete in all material respects on and as of such
earlier date.
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(ii) No event has occurred and is continuing or will result from
the consummation of the transactions contemplated by this Agreement
that would constitute an Event of Default or an Unmatured Event of
Default.
SECTION 6. REFERENCES TO AND EFFECT ON THE CREDIT AGREEMENT.
(a) On and after the Effective Date each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of
like import, and each reference to the Credit Agreement in the Loan
Documents and all other documents (the "Ancillary Documents") delivered in
connection with the Credit Agreement shall mean and be a reference to the
Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement, the
Loan Documents and all other Ancillary Documents shall remain in full force
and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Lenders or the Agents under the Credit Agreement,
the Loan Documents or the Ancillary Documents.
SECTION 7. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of a signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 8. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE INTERNAL CONFLICTS OF LAWS PROVISIONS THEREOF.
SECTION 9. HEADINGS. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purposes.
SECTION 10. FEES AND EXPENSES. The Borrowers hereby acknowledge that all
costs, fees and expenses as described in Section 11.4 of the Credit Agreement
incurred by the Administrative Agent and its counsel with respect to this
Agreement and the documents and transactions contemplated hereby shall be for
the account of the Borrowers.
SECTION 11. CANCELED NOTES. Reasonably promptly after the Effective Date,
each Existing Lender shall return to BWAY the Revolving Notes issued on the
Closing Date (the "Prior Notes") to such Existing Lender, marked to show their
cancellation, and, upon receipt of all of the
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newly executed and delivered Revolving Notes pursuant to Section 4(b) hereof and
the effectiveness of this Agreement, the Prior Notes shall be deemed null and
void.
[signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
date above first written.
BWAY CORPORATION BROCKWAY STANDARD, INC.
By:_____________________________________ By:________________________________________
Name:___________________________________ Name:______________________________________
Title:__________________________________ Title:_____________________________________
MILTON CAN COMPANY, INC. DAVIES CAN COMPANY, INC.
By:_____________________________________ By:________________________________________
Name:___________________________________ Name:______________________________________
Title:__________________________________ Title:_____________________________________
BANKERS TRUST COMPANY, individually and as
Administrative Agent, Syndication Agent and
Facing Agent
By:________________________________________
Name:______________________________________
Title:_____________________________________
NATIONSBANK, N.A. (SOUTH),
individually and as Documentation Agent and
Paying Agent
By:________________________________________
Name:______________________________________
Title:_____________________________________
S-1
HARRIS TRUST AND SAVINGS BANK,
individually and as Co-Agent
By:____________________________________
Name:__________________________________
Title:_________________________________
Address:
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
Attention: Jeffrey C. Nicholson
Telephone: (312) 461-2736
Fax: (312) 461-2591
S-2
SUNTRUST BANK, ATLANTA,
individually and as Co-Agent
By:____________________________________
Name:__________________________________
Title:_________________________________
Address:
SunTrust Bank, Atlanta
25 Park Place
23rd Floor
Atlanta, GA 30303
Attention: Jenna M. Hale
Telephone: (404) 230-5427
Fax: (404) 588-8833
S-3
CIBC INC.
By:__________________________________________
Name:________________________________________
Title:_______________________________________
Address:
Canadian Imperial Bank of Commerce
2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
Attention: William Humphries
Telephone: (770) 319-4906
Fax: (770) 319-4954
S-4
CORESTATES BANK, N.A.
By:____________________________________
Name:_________________________________
Title:__________________________________
Address:
Corestates Bank, N.A.
1345 Chestnut Street
Philadelphia, PA 19101-7618
Attention: Laura J. Zavacki
Telephone: (215) 973-8548
Fax: (215) 973-6745
S-5
THE BANK OF NEW YORK
By:_____________________________________
Name:___________________________________
Title:__________________________________
Address:
The Bank of New York
One Wall Street
New York, NY 10286
Attention: David Siegel
Telephone: (212) 635-1489
Fax: (212) 635-6434
S-6
THE BANK OF NOVA SCOTIA
By:__________________________________
Name:________________________________
Title:_______________________________
Address:
The Bank of Nova Scotia
600 Peachtree Street NE
Suite 2700
Atlanta, GA 30308
Attention: James Yager
Telephone: (404) 877-1508
Fax: (404) 888-8998
S-7
BANK OF TOKYO - MITSUBISHI LIMITED,
ATLANTA AGENCY
By:____________________________________
Name:_________________________________
Title:__________________________________
Address:
Bank of Tokyo - Mitsubishi Limited, Atlanta
Agency
Georgia Pacific Center
133 Peachtree Street NE
Suite 4970
Atlanta, GA 30303-1808
Attention: Gary England
Telephone: (404) 222-4205
Fax: (404) 577-1155
S-8
BAYERISCHE VEREINSBANK AG,
NEW YORK BRANCH
By:_____________________________________
Name:___________________________________
Title:__________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
Address:
Bayerische Vereinsbank AG,
New York Branch
335 Madison Avenue - 19th Floor
New York, NY 10017
Attention: Ralf Enke
Telephone: (212) 210-0340
Fax: (212) 880-9724
S-9
NATIONAL CITY BANK, KENTUCKY
By:____________________________________
Name:_________________________________
Title:__________________________________
Address:
National City Bank, Kentucky
5304 Chaversham Rd.
Norcross, GA 30092
Attention: Carrie C. Tate
Telephone: (770) 441-7838
Fax: (770) 441-1525
S-10
PNC BANK, NATIONAL ASSOCIATION
By:____________________________________
Name:_________________________________
Title:__________________________________
Address:
PNC Bank, National Association
249 Fifth Avenue - 2nd Floor
Pittsburgh, PA 15222-2707
Attention: Rose Crump
Telephone: (412) 762-2539
Fax: (412) 762-6484
S-11
WACHOVIA BANK OF GEORGIA, N.A.
By:_____________________________________
Name:___________________________________
Title:__________________________________
Address:
Wachovia Bank of Georgia, N.A.
191 Peachtree Street
Mail Code GA 212
Atlanta, GA 30303-1757
Attention: Commercial Group
Telephone: (404) 332-1383
Fax: (404) 332-6920
S-12
ANNEX A
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NEW LENDERS
-----------
CIBC Inc.
Corestates Bank, N.A.
Harris Trust and Savings Bank
SunTrust Bank, Atlanta
The Bank of New York
The Bank of Nova Scotia
Bank of Toyko - Mitsubishi Limited, Atlanta Agency
Bayerische Vereinsbank AG, New York Branch
National City Bank, Kentucky
PNC Bank, National Association
Wachovia Bank of Georgia, N.A.
ANNEX B
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SCHEDULE 1.1(a)
COMMITMENT AMOUNTS
------------------
Amount of Revolving
Name of Lender Loan Commitment
- -------------- -------------------
Bankers Trust Company $ 21,000,000.00
NationsBank, N.A. (South) 21,000,000.00
CIBC Inc. 13,000,000.00
Corestates Bank, N.A. 13,000,000.00
Harris Trust and Savings Bank 13,000,000.00
SunTrust Bank, Atlanta 13,000,000.00
The Bank of New York 8,000,000.00
The Bank of Nova Scotia 8,000,000.00
Bank of Toyko - Mitsubishi Limited,
Atlanta Agency 8,000,000.00
Bayerische Vereinsbank AG, New York Branch 8,000,000.00
National City Bank, Kentucky 8,000,000.00
PNC Bank, National Association 8,000,000.00
Wachovia Bank of Georgia, N.A. 8,000,000.00
---------------
Total: $150,000,000.00
===============
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of October 15, 1997
(this "Agreement"), is by and among BWAY CORPORATION, a Delaware corporation
("BWAY"), BROCKWAY STANDARD, INC., a Delaware corporation ("Brockway"), BROCKWAY
STANDARD (NEW JERSEY), INC., a Delaware corporation (formerly named Milton Can
Company, Inc.) ("Brockway New Jersey"), MILTON CAN COMPANY, INC., a Delaware
corporation ("Milton"), BROCKWAY STANDARD (OHIO), INC., a Delaware corporation
(formerly named Davies Can Company, Inc.) ("Brockway Ohio"), the Lenders parties
to the Credit Agreement referred to below (the "Lenders"), BANKERS TRUST
COMPANY, as Administrative Agent and Syndication Agent, and NATIONSBANK, N.A.
(SOUTH), as Documentation Agent and Paying Agent.
RECITALS:
WHEREAS, BWAY, Brockway, Brockway New Jersey, Milton, Brockway Ohio, the
Agents and the Existing Lenders are parties to that certain Credit Agreement
dated as of June 17, 1996, as amended as of August 15, 1996 (as amended,
restated, supplemented or otherwise modified and in effect from time to time,
the "Credit Agreement"); and
WHEREAS, BWAY and the Borrowers have requested the Agents and the Lenders
to amend the Credit Agreement in certain respects as set forth herein and the
Agents and the Lenders are agreeable to the same, subject to the terms and
conditions set forth herein;
NOW THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings given them in the Credit Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is, as of
the Effective Date (as defined below), hereby amended as follows:
(a) Section 2.8(a) of the Credit Agreement is hereby amended by
deleting the table appearing at the end of the first paragraph of such Section
in its entirety and substituting therefor the following:
================================================================================
Applicable Prime
Leverage Ratio Rate Margin
- --------------------------------------------------------------------------------
3.00:1.00 and lower 0.00%
- --------------------------------------------------------------------------------
(greater than) 3.00:1.00; (less than or equal to) 3.50:1.00 0.125%
- --------------------------------------------------------------------------------
(greater than) 3.50:1.00; (less than or equal to) 4.00:1.00 0.50%
- --------------------------------------------------------------------------------
(greater than) 4.00:1.00; (less than or equal to) 4.25:1.00 1.00%
- --------------------------------------------------------------------------------
(greater than) 4.25:1.00 1.50%
================================================================================
(b) Section 2.8(b) of the Credit Agreement is hereby amended by
deleting the table appearing at the end of the first paragraph of such Section
in its entirety and substituting therefor the following:
=================================================================================
Applicable Eurodollar
Leverage Ratio Rate Margin
- ---------------------------------------------------------------------------------
1.00:1.00 and lower 0.40%
- ---------------------------------------------------------------------------------
(greater than) 1.00:1.00; (less than or equal to) 1.50:1.00 0.50%
- ---------------------------------------------------------------------------------
(greater than) 1.50:1.00; (less than or equal to) 2.00:1.00 0.625%
- ---------------------------------------------------------------------------------
(greater than) 2.00:1.00; (less than or equal to) 2.50:1.00 0.75%
- ---------------------------------------------------------------------------------
(greater than) 2.50:1.00; (less than or equal to) 3.00:1.00 0.875%
- ---------------------------------------------------------------------------------
(greater than) 3.00:1.00; (less than or equal to) 3.50:1.00 1.125%
- ---------------------------------------------------------------------------------
(greater than) 3.50:1.00; (less than or equal to) 4.00:1.00 1.50%
- ---------------------------------------------------------------------------------
(greater than) 4.00:1.00; (less than or equal to) 4.25:1.00 2.00%
- ---------------------------------------------------------------------------------
(greater than) 4.25:1.00 2.50%
=================================================================================
(c) Section 2.12(h) and 2.13(a) of the Credit Agreement are hereby
amended by deleting "Section 3.8" appearing in clause (A) of Section 2.12(h) and
in clause (ii) of Section 2.13(a) and substituting therefor "Section 3.9".
(d) Section 2.12(h) of the Credit Agreement is hereby further amended
by inserting "applicable for Prime Rate Loans" immediately after "Default Rate"
appearing in the penultimate sentence of such Section.
(e) Section 3.3(b) of the Credit Agreement is hereby amended by
deleting the first sentence of such Section in its entirety and substituting
therefor the following:
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"So long as no Event of Default or Unmatured Event of Default exists,
the Borrowers may request at any time after the 90th day after the
Closing Date, by written notice to the Administrative Agent in the
form of Exhibit 3.3(b) hereto, that the Total Revolving Loan
Commitment be increased by $50,000,000 (the "Increase Amount"), with
such requested increase either being made for the entire Increase
Amount or in increments of $25,000,000, provided that not more than
one such request may be given in any twelve-month period."
(f) Section 3.7(a) of the Credit Agreement is hereby amended by
deleting the table appearing at the end of the first paragraph of such Section
in its entirety and substituting therefor the following:
============================================================================
Applicable
Leverage Ratio Commitment Fee
- ----------------------------------------------------------------------------
1.50:1.00 and lower 0.20%
- ----------------------------------------------------------------------------
(greater than) 1.50:1.00; (less than or equal to) 2.00:1.00 0.25%
- ----------------------------------------------------------------------------
(greater than) 2.00:1.00; (less than or equal to) 3.50:1.00 0.30%
- ----------------------------------------------------------------------------
(greater than) 3.50:1.00; (less than or equal to) 4.00:1.00 0.40%
- ----------------------------------------------------------------------------
(greater than) 4.00:1.00 0.50%
============================================================================
(g) Section 3.9(c) of the Credit Agreement is hereby amended by
deleting "Exhibit 3.8(c)" each time appearing in such Section and substituting
therefor "Exhibit 3.9(c)".
(h) Section 5.1.3.(a) of the Credit Agreement is hereby amended by
deleting "Section 5.2.7" appearing in such Section and substituting therefor
"Section 5.2.6".
(i) Section 5.2.2(c) of the Credit Agreement is hereby amended by
deleting "$5 million" appearing in such Section and substituting therefor "$15
million".
(j) Section 5.2.3 of the Credit Agreement is hereby amended by
inserting at the end of such Section the following:
"Notwithstanding the foregoing limitations set forth in this Section
5.2.3, BWAY or any of its Subsidiaries may enter into any management
services or other similar contract with any joint venture in which
BWAY or any of its Subsidiaries has an equity ownership interest,
which contract provides for the rendering of services by BWAY or any
Subsidiary to such joint venture and for payments to be made by such
joint venture to BWAY or any of its Subsidiaries but does not provide
for any payments by BWAY or any
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Subsidiary to such joint venture, and is in form and substance
reasonably satisfactory to the Administrative Agent."
(k) Section 5.2.4(a) of the Credit Agreement is hereby amended by
deleting "Wholly-Owned Subsidiary of such Borrower" appearing in such Section
and substituting therefor "other equity holder on a proportionate basis".
(l) Section 5.2.4(b) of the Credit Agreement is hereby amended by
deleting "$5,000,000" appearing in such Section and substituting therefor
"$10,000,000".
(m) Section 5.2.4(c) of the Credit Agreement is hereby amended by
deleting such Section in its entirety and substituting therefor the following:
"(c) any Borrower may pay cash dividends or make distributions on its
capital stock to BWAY;"
(n) Section 5.2.5(c) of the Credit Agreement is hereby amended by
deleting such Section in its entirety and substituting therefor the following:
"(c) (i) BWAY may make intercompany loans and advances to any
Borrower and any Borrower may make intercompany loans and advances to
BWAY or any other Borrower, and (ii) BWAY or any Borrower may make
intercompany loans and advances to any Guarantor Subsidiary, provided
that at no time shall the aggregate outstanding principal amount of
all intercompany loans and advances made pursuant to this clause (ii)
by BWAY and the Borrowers exceed $2,000,000;"
(o) Section 5.2.5(i) of the Credit Agreement is hereby amended by
deleting "$10,000,000" appearing in such Section and substituting therefor
"$15,000,000".
(p) Section 5.2.6(e) of the Credit Agreement is hereby amended by
deleting such Section in its entirety and substituting therefor the following:
"(e) any non-Wholly-Owned Subsidiary may merge with and into a Wholly-
Owned Subsidiary (with such Wholly-Owned Subsidiary as the survivor and
remaining a Wholly-Owned Subsidiary after such merger) and any Non-Recourse
Subsidiary may merge or consolidate with any Person (other than BWAY or any
Wholly-Owned Subsidiary) regardless of whether such Non-Recourse Subsidiary
is the survivor of such merger or consolidation."
(q) Section 5.2.8 of the Credit Agreement is hereby amended by
deleting clause (i) appearing in such Section in its entirety and substituting
therefor the following:
"(i) sales or other dispositions of inventory in the ordinary course
of business, sales or other dispositions of assets which constitute
Investments permitted
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under Section 5.2.5(i) and sales or other dispositions of assets of
any Non-Recourse Subsidiary,"
(r) Section 5.2.8 of the Credit Agreement is hereby further amended
by deleting clause (iii) appearing in such Section in its entirety and
substituting therefor the following:
"(iii) sales or other dispositions of assets if the aggregate book
value (at the time of disposition thereof) of all assets disposed of by
BWAY and its Subsidiaries (other than Non-Recourse Subsidiaries) subsequent
to the Closing Date plus the aggregate book value of all assets then
proposed to be sold or disposed of does not exceed 15% of Consolidated
Total Assets, provided that (A) each such sale or disposition shall be
approved by the board of directors of the Person selling or disposing of
such assets and shall be in an amount at least equal to the fair market
value thereof, and (B) an amount equal to the net proceeds of such sales
and dispositions shall be used by BWAY or any Subsidiary (other than a Non-
Recourse Subsidiary) within 12 months of such sale or disposition to
reinvest in productive assets of a kind then used or usable in the business
of BWAY or any such Subsidiary,"
(s) Section 5.2.10(b) of the Credit Agreement is hereby amended by
inserting at the end of such Section the following:
"Notwithstanding the foregoing, BWAY or any Borrower may create or
suffer to exist any non-Wholly-Owned Subsidiary which elects not to
execute and deliver a Subsidiary Guaranty (a "Non-Recourse
Subsidiary") under this clause (b) so long as (A) the aggregate amount
of all Investments (at the time of making thereof) in all such Non-
Recourse Subsidiaries does not exceed $15,000,000 (determined as
provided in Section 5.2.5(i)) and (B) all Indebtedness of such Non-
Recourse Subsidiary shall be Non-Recourse Debt and all other
liabilities of such Non-Recourse Subsidiary shall be non-recourse to
BWAY and its Subsidiaries (other than Non-Recourse Subsidiaries) and
their respective assets and properties."
(t) Section 5.3.1 of the Credit Agreement is hereby amended by
deleting "4.25" appearing in such Section and substituting therefor "4.50".
(u) Section 5.3.2 of the Credit Agreement is hereby amended by
deleting "June 30, 1997" each time such date appears under the heading "Fiscal
Quarter" appearing in such Section and substituting therefor "June 30, 1998".
(v) Section 5.3.4 of the Credit Agreement is hereby amended by
deleting "Permit" appearing in such Section and substituting therefor "Not
permit".
(w) Section 11.10(f) of the Credit Agreement is hereby amended by
deleting "Federal Reserve Lender" appearing in such Section and substituting
therefor "Federal Reserve bank".
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(x) The definition of "Business Day" appearing in the Definitional
Appendix to the Credit Agreement is hereby amended by deleting "Lenders"
appearing therein and substituting therefor "banks".
(y) The definition of "Consolidated EBITDA" appearing in the
Definitional Appendix to the Credit Agreement is hereby amended by inserting ")"
immediately after "Section 5.1.1(b)" appearing therein.
(z) The definition of "Consolidated Net Income" and "Consolidated Net
Loss" appearing in the Definitional Appendix to the Credit Agreement is hereby
amended by deleting clause (v) of such Section in its entirety and substituting
therefor the following:
"(v) any non-cash restructuring charges, in an aggregate amount not to
exceed $12,860,000, which reduced Consolidated Net Income in the
fourth fiscal quarter in Fiscal Year 1996."
(aa) The definition of "Consolidated Total Assets" appearing in the
Definitional Appendix to the Credit Agreement is hereby amended by inserting "at
any date of determination," immediately following "means," appearing in such
definition.
(bb) The definition of "Eligible Assignee" appearing in the
Definitional Appendix to the Credit Agreement is hereby amended by deleting
"Lender" each time appearing therein and substituting therefor "bank".
(cc) The definition of "Eurodollar Rate" appearing in the Definitional
Appendix to the Credit Agreement is hereby amended by deleting "Lenders"
appearing therein and substituting therefor "banks".
(dd) The definition of "Federal Funds Rate" appearing in the
Definitional Appendix to the Credit Agreement is hereby amended by deleting
"Lender" and "Lenders" each time appearing therein and substituting therefor
"bank" and "banks", respectively,
(ee) The definition of "Permitted Liens" appearing in the Definitional
Appendix to the Credit Agreement is hereby amended by deleting "Section
5.2.2(b)" appearing in clause (h) of such Section and substituting therefor
"Section 5.2.2(c)".
(ff) The definition of "Sublimit Amount" appearing in the Definitional
Appendix to the Credit Agreement is hereby amended by deleting "EBIDTA"
appearing therein and substituting therefor "EBITDA".
(gg) The definition of "Subsidiary" appearing in the Definitional
Appendix to the Credit Agreement is hereby amended by inserting at the end of
the first sentence thereof but before the "." the following:
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"; provided, however, that any Person in which BWAY or any of its
Subsidiaries makes an Investment pursuant to Section 5.2.5(i) (such
Person being referred to as a "Joint Venture") which would be deemed a
"Subsidiary" under the foregoing provisions of this definition shall
not be deemed to be a "Subsidiary" for any purpose of this Agreement
so long as BWAY is only entitled, directly or indirectly, to elect 50%
or less of the members of the board of directors (or other governing
body) of the Joint Venture and the assets, liabilities and results of
operations of which are not required to be consolidated with BWAY's
assets, liabilities and results of operations under generally accepted
accounting principles"
(hh) The definition of "Subsidiary Guaranties" appearing in the
Definitional Appendix to the Credit Agreement is hereby amended by deleting
"Section 5.2.12" appearing therein and substituting therefor "Section 5.2.10".
(ii) The definition of "Termination Date" appearing in the
Definitional Appendix to the Credit Agreement is hereby amended by deleting
"June 17, 2001" appearing therein and substituting therefor "June 17, 2002".
(jj) The Definitional Appendix to the Credit Agreement is hereby
further amended by inserting new definitions of "Non-Recourse Debt" and "Non-
Recourse Subsidiary" in their appropriate alphabetical order as follows:
""Non-Recourse Debt" means indebtedness or that portion of
indebtedness (i) as to which neither BWAY nor any of its Subsidiaries
(other than Non-Recourse Subsidiaries) (a) provides credit support
(including any undertaking, guaranty, agreement or instrument that
would constitute indebtedness), (b) is directly or indirectly liable,
or (c) constitutes the lender; and (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against a Non-Recourse Subsidiary) would permit
(upon notice, lapse of time or both) any holder of any other
indebtedness (other than the Obligations) of BWAY or any of its
Subsidiaries (other than Non-Recourse Subsidiaries) to declare a
default on such other indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
"Non-Recourse Subsidiary" is defined in Section 5.2.10(b)."
(kk) Exhibit 3.3(b) to the Credit Agreement is hereby amended be
deleting "$25,000,000" appearing in paragraph 3 of such Exhibit and substituting
therefor "[$50,000,000] [$25,000,000]".
(ll) Exhibit 5.1.1(b) to the Credit Agreement is hereby amended by
deleting clause (d) appearing under the heading "Section 5.2.5 Investments" in
Schedule I to such Exhibit.
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SECTION 3. AMENDMENT FEE. In consideration of the execution of this
Agreement by the Agents and the Lenders, the Borrowers hereby agree to pay each
Lender which executes this Agreement on or prior to October 10, 1997 a fee (the
"Amendment Fee") in an amount equal to such Lender's Revolving Loan Commitment
multiplied by 0.05%.
SECTION 4. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT. This
Agreement shall become effective upon the date (the "Effective Date") each of
the following conditions have been satisfied:
(a) Execution and Delivery. BWAY, the Borrowers, the Agents and
each Lender shall have executed and delivered this Agreement.
(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 BWAY and the Borrowers contained in this Agreement, the Credit
Agreement (as amended hereby) 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 expressly refers 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 Borrowers shall have paid in full
to the Administrative Agent, for ratable distribution to those Lenders that have
signed this Agreement on or prior to October 15, 1997, an amount equal to the
Amendment Fee, and any other separately agreed upon fees.
(e) Deliveries. BWAY shall have duly executed and delivered to the
Agent a certificate of a Responsible Officer of BWAY dated as of the Effective
Date certifying as to the conditions precedent set forth in Sections 4(b) and
(c) of this Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
(a) BWAY and each Borrower represents and warrants (i) that it has
full power and authority to enter into this Agreement and perform its
obligations hereunder in accordance with the provisions hereof, (ii) that this
Agreement has been duly authorized, executed and delivered by such party and
(iii) that this Agreement constitutes the legal, valid and binding obligation of
such party, enforceable against such party in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
and by general principles of equity.
(b) BWAY and each Borrower represents and warrants that the
following statements are true and correct:
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(i) The representations and warranties contained in the Credit
Agreement and each of the other Loan Documents are and will be true
and correct in all material respects on and as of the Effective Date
to the same extent as though made on and as of that date, except to
the extent such representations and warranties expressly refer to an
earlier date, in which case they were true and correct in all material
respects on and as of such earlier date.
(ii) No event has occurred and is continuing or will result from
the consummation of the transactions contemplated by this Agreement
that would constitute an Event of Default or an Unmatured Event of
Default.
(iii) The execution, delivery and performance of this Agreement
by each of BWAY and each Borrower do not and will not violate its
respective certificate or articles 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 is required in connection with its execution,
delivery and performance of this Agreement and all agreements,
documents and instruments executed and delivered pursuant to this
Agreement.
SECTION 6. REFERENCES TO AND EFFECT ON THE CREDIT AGREEMENT.
(a) On and after the Effective Date each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of like
import, and each reference to the Credit Agreement in the Loan Documents and all
other documents (the "Ancillary Documents") delivered in connection with the
Credit Agreement shall mean and be a reference to the Credit Agreement as
amended hereby.
(b) Except as specifically amended above, the Credit Agreement, the
Loan Documents and all other Ancillary Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Lenders or the Agents under the Credit Agreement,
the Loan Documents or the Ancillary Documents.
SECTION 7. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of a signature page of
this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Agreement.
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SECTION 8. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE INTERNAL CONFLICTS OF LAWS PROVISIONS THEREOF.
SECTION 9. HEADINGS. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purposes.
SECTION 10. FEES AND EXPENSES. The Borrowers hereby acknowledge that all
costs, fees and expenses as described in Section 11.4 of the Credit Agreement
incurred by the Administrative Agent and its counsel with respect to this
Agreement and the documents and transactions contemplated hereby shall be for
the account of the Borrowers.
[signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
date above first written.
BWAY CORPORATION BROCKWAY STANDARD, INC.
By:___________________________ By:___________________________________________
Name:_________________________ Name:_________________________________________
Title:________________________ Title:________________________________________
MILTON CAN COMPANY, INC. BROCKWAY STANDARD (OHIO), INC.
By:___________________________ By:___________________________________________
Name:_________________________ Name:_________________________________________
Title:________________________ Title:________________________________________
BROCKWAY STANDARD (NEW JERSEY), BANKERS TRUST COMPANY, individually and as
INC. Administrative Agent, Syndication Agent and
Facing Agent
By:___________________________ By:___________________________________________
Name:_________________________ Name:_________________________________________
Title:________________________ Title:________________________________________
NATIONSBANK, N.A. (SOUTH), individually and as
Documentation Agent and Paying Agent
By:___________________________________________
Name:_________________________________________
Title:________________________________________
S-1
HARRIS TRUST AND SAVINGS BANK, SUNTRUST BANK, ATLANTA,
individually and as Co-Agent individually and as Co-Agent
By: By:
------------------------------ -------------------------------
Name: Name:
---------------------------- -----------------------------
Title: Title:
--------------------------- ----------------------------
CIBC INC. CORESTATES BANK, N.A.
By: By:
------------------------------ -------------------------------
Name: Name:
---------------------------- -----------------------------
Title: Title:
--------------------------- ----------------------------
THE BANK OF NEW YORK THE BANK OF NOVA SCOTIA
By: By:
------------------------------ -------------------------------
Name: Name:
---------------------------- -----------------------------
Title: Title:
--------------------------- ----------------------------
BANK OF TOKYO-MITSUBISHI LIMITED, BAYERISCHE VEREINSBANK AG,
ATLANTA AGENCY NEW YORK BRANCH
By: By:
------------------------------ -------------------------------
Name: Name:
---------------------------- -----------------------------
Title: Title:
--------------------------- ----------------------------
NATIONAL CITY BANK, KENTUCKY By:
-------------------------------
By: Name:
------------------------------ -----------------------------
Name: Title:
--------------------------- ----------------------------
Title:
---------------------------
S-2
PNC BANK, NATIONAL ASSOCIATION WACHOVIA BANK, N.A.
By: By:
--------------------------- ---------------------------
Name: Name:
------------------------- -------------------------
Title: Title:
------------------------ ------------------------
S-3