EXHIBIT 4.1
TENTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
TENTH AMENDMENT (the "Amendment"), dated as of September 25, 1996
among THE INTERLAKE CORPORATION, a Delaware corporation (the "Company"), each
Subsidiary Borrower party to the Credit Agreement referred to below, The
Interlake Corporation 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"), THE CHASE MANHATTAN
BANK (as successor to 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
Amendment and Waiver dated as of August 20, 1993, the Fourth Amendment dated as
of December 22, 1993, the Fifth Amendment dated as of February 23, 1994,
the Sixth Amendment dated as of August 16, 1994, the Seventh Amendment dated as
of January 24, 1995, the Eighth Amendment dated as of February 1, 1995 and the
Ninth Amendment dated as of June 1, 1995 (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 pro vided;
NOW THEREFORE, it is agreed:
1. On the Tenth Amendment Effective Date, Section 3.01 is hereby
amended by inserting the following new clause (i) to the end thereof:
"(i) On the date which is 150 days after the Interlake Packaging
Disposition is consummated, the Company shall pay to each Bank a fee based
on the amount of Net Cash Proceeds arising from the Interlake Packaging
Disposition used (x) to effectuate one or more Note Repurchases and/or (y)
to acquire the business and assets of (A) Real Time Solutions, Inc. and/or
(B) ARC Metals, Inc. (and not required to be applied to repay Loans
pursuant to Section 4.02(d)) as follows:
(a) to each Bank whose Exclusion Percentage is equal to or
greater than 50% but less than 75%, an amount equal to 1/8 of 1% of
its Fee Calculation Percentage multiplied by such Net Cash Proceeds
used;
(b) to each Bank whose Exclusion Percentage is equal to or
greater than 75% but less than 100%, an amount equal to 1/4 of 1% of
its Fee Calculation Percentage multiplied by such Net Cash Proceeds
used; and
(c) to each Bank whose Exclusion Percentage is 100%, an amount
equal to 3/8 of 1% of its Fee Calculation Percentage multiplied by
such Net Cash Proceeds used."
2. On the Tenth Amendment Effective Date Section 4.02(d) of the
Credit Agreement is hereby amended by inserting the following sentence at the
end thereof:
"Notwithstanding the foregoing, with respect to the Interlake
Packaging Disposition, (a) 50% of the Net Cash Proceeds therefrom (the
"Total Mandatory Exclusion Amount") plus (b) the Total Voluntary Exclusion
Amount may, at the option of the Company, be excluded from the required
repayment set forth above, and be delivered to a blocked account with, and
on terms and conditions satisfactory to, the Administrative Agent, and may
be released therefrom, so long as no Default or Event of Default then
exists or would arise therefrom, (i) to effect Note Repurchases in
accordance with this Agreement and/or (ii) to acquire the business and
assets of (x) Real Time Solutions, Inc. and/or (y) ARC Metals, Inc.,
provided that on the earlier of (i) the date which is 150 days after the
date of the consummation of the Interlake Packaging Disposition and (ii)
the date of any exercise of remedies pursuant to the last paragraph of
Section 9, all amounts then held in such blocked account shall be applied
as otherwise required by the previous sentence of this Section 4.02(d).
3. On the Tenth Amendment Effective Date, Section 4.02(h) of the
Credit Agreement is hereby amended by inserting the following sentence at the
end thereof:
"Notwithstanding the foregoing, in connection with the application of
the Net Cash Proceeds of the Interlake Packaging Disposition on or after
the closing date thereof, all amounts to be applied in accordance with this
Section 4.02(h) shall be applied to reduce the
Total Exposure (after giving effect to any forbearance of such reduction by
any Bank electing a Voluntary Exclusion Amount which is greater than zero),
and shall be applied: (a) first, to the repayments of Subsidiary Term Loans
outstanding to Acme Strapping, Inc. in the aggregate amount of $6,496,785,
(b) second, to the repayments of Subsidiary Revolving B Loans outstanding
to Acme Strapping, Inc. in the aggregate amount of $3,136,875, (c) third,
to repay Loans to Borrowers which are incorporated in the United States or
any State thereof in the following order: (i) first, to repay all Term
Loans and (ii) then to repay all Revolving B Loans; (d) fourth, to reduce
permanently the Total Revolving A Commitment, (e) fifth, to repay Loans to
Borrowers which are incorporated outside of the United States in the
following order: (i) first, to all Term Loans denominated in U.S. Dollars,
(ii) second, to all Revolving B Loans, (iii) third, to all Sterling Term
Loans and (iv) fourth, to all Sterling Revolving B Loans."
4. On the Tenth Amendment Effective Date, Section 8.02 of the Credit
Agreement is hereby amended by (a) deleting the word "and" at the end of clause
(xiii) and adding a comma in lieu thereof, (b) deleting the period at the end of
clause (xiv) and inserting " and" in lieu thereof and (c) inserting the
following new clause in lieu thereof:
"(xv) the Company or any of its Subsidiaries shall be permitted to
consummate the Interlake Packaging Disposition so long as the proceeds
thereof are applied as required by Sections 4.02(d) and (g).
5. On the Tenth Amendment Effective Date, Section 8.06 of the Credit
Agreement is hereby amended by (a) deleting the word "and" at the end of clause
(xvii) and adding a comma in lieu thereof, (b) deleting the period at the end of
clause (xviii) and inserting " and" in lieu
thereof and (c) inserting the following new clauses in lieu thereof:
(xix) the Company or any of its Subsidiaries may purchase or otherwise
acquire all of the business and assets of Real Time Solutions, Inc.,
provided that such acquisition is based upon terms which are in form and
substance satisfactory to the Administrative Agent, and provided further
that such acquisition shall have been completed no later than the 150th day
following the consummation of the Interlake Packaging Disposition; and
(xx) the Company or any of its Subsidiaries may purchase or otherwise
acquire all of the business and assets of ARC Metals, Inc., provided that
such acquisition is based upon terms which are in form and substance
satisfactory to the Administrative Agent, and provided further that such
acquisition shall have been completed no later than the 150th day following
the consummation of the Interlake Packaging Disposition.
6. On the Tenth Amendment Effective Date, Section 8.12 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"8.12 Minimum Consolidated EBITDA. Consolidated EBITDA for any
four fiscal quarter period ending on the last day of any fiscal quarter set
forth below shall be greater than the amount set forth opposite such fiscal
quarter:"
Fiscal Period Amount
------------- ------
For the fourth quarter of 1995 $85,000,000
For the first quarter of 1996 $85,000,000
For the second quarter of 1996 $85,000,000
For the third quarter of 1996 $68,000,000
For the fourth quarter of 1996 $70,000,000
For the first quarter of 1997 $70,000,000
For the second quarter of 1997 $70,000,000
For the third quarter of 1997 $70,000,000
For the fourth quarter of 1997 $72,000,000
For the first quarter of 1998 $72,000,000
For the second quarter of 1998 $72,000,000
For the third quarter of 1998 $72,000,000
For the fourth quarter of 1998 $74,000,000
For the first quarter of 1999 $74,000,000
For the second quarter of 1999 $74,000,000
Additionally, if the Company exceeds the required minimum Consolidated
EBITDA levels set forth above for the fiscal years ending December 31, 1995 or
December 31, 1996, then 50% of the excess in each of those two years, up to a
maximum of $5,000,000 in the aggregate, will be available to the Company as a
credit to add to the actual Consolidated EBITDA of the Company in any fiscal
quarter thereafter, to be included in the calculation for any period in which
such quarter is included. The credit created by such excess may be used in whole
or in part.
7. On the Tenth Amendment Effective Date, Section 8.13(i) of the
Credit Agreement is hereby amended by (i) inserting directly after the phrase
""any Indebtedness incurred pursuant to the Subordinated Debt Documents and the
Permanent Subordinated Debentures,":
"or any of the Senior Notes"
and (ii) inserting the following proviso at the end thereof:
, provided that the Company may acquire, repurchase, redeem or
otherwise prepay Senior Notes or Permanent Subordinated Debentures pursuant
to one or more Note Repurchases (i) in an amount not to exceed the amount
held in the blocked account described in and
otherwise in compliance with the second sentence of Section 4.02(d) and
(ii) an additional amount equal to $10,000,000, and, in any event, each
such Note Repurchase shall be deemed to be a representation and warranty by
the Company that such Note Repurchase shall not violate or breach any
provision of the Credit Documents, the Subordinated Note Documents, the
Senior Notes or any other contractual obligation binding on the Company or
any of its Subsidiaries, and the Administrative Agent shall have received
an opinion of counsel satisfactory to it with respect to same.
8. On the Tenth Amendment Effective Date, Section 10 is hereby
amended by (x) inserting the following definitions in alphabetical order:
"Exclusion Percentage" shall mean, for each Bank, the sum of such
Bank's Mandatory Exclusion Percentage plus its Voluntary Exclusion
Percentage.
"Exposure" shall mean for each Bank at any time, (i) the aggregate
principal amount of Loans (other than ESOP Loans) of such Bank outstanding
at such time, plus (ii) the Revolving Percentage (if any) of such Bank
multiplied by the Letter of Credit Outstandings at such time, plus (iii)
such Bank's Unutilized Revolving A Commitment (if any) at such time, plus
(iv) the Delayed Draw Commitment (if any) of such Bank at such time.
"Fee Calculation Percentage" for each Bank shall mean a fraction
(expressed as a percentage) the numerator of which is the sum of such
Bank's Mandatory Exclusion Amount plus its Voluntary Exclusion Amount, and
the denominator of which is the Total Mandatory Exclusion Amount plus the
Total Voluntary Exclusion Amount.
"Interlake Packaging Business" shall mean the business which is (prior
to the disposition thereof)
operated by the Interlake Packaging Corporation and certain other direct
and indirect Subsidiaries of the Company.
"Interlake Packaging Disposition" shall mean the sale or other
disposition of the capital stock and/or assets comprising the Interlake
Packaging Business; provided that consideration from such disposition will
be in the form of immediately available funds which, net of expected taxes
and related expenses, equals or exceeds $80,000,000, and that such
disposition is consummated upon terms and conditions satisfactory to the
Administrative Agent and the Required Banks.
"Mandatory Exclusion Amount" shall mean for each Bank, such Bank's Pro
Rata Share (calculated immediately prior to the consummation of the
Interlake Packaging Disposition) of the Total Mandatory Exclusion Amount.
"Mandatory Exclusion Percentage" for each Bank shall mean 50%
(representing the percentage of Net Cash Proceeds of the Interlake
Packaging Disposition such Bank would have received but for the operation
of clause (a) of the last sentence of Section 4.02(d)).
"Note Repurchase" shall mean any acquisition, repurchase, redemption
or other purchase of Permanent Subordinated Debentures or Senior Notes.
"Pro Rata Share" shall mean for each Bank, a fraction (expressed as a
percentage), the numerator of which is the Exposure of such Bank at such
time and the denominator of which is the Total Exposure at such time.
"Total Mandatory Exclusion Amount" shall have the meaning provided in
Section 4.02(d).
"Total Voluntary Exclusion Amount" shall mean aggregate Net Cash
Proceeds from the Interlake Packaging
Disposition which are initially excluded from the repayment provisions of
Section 4.02(d) as a result of clause (b) of the second sentence thereof in
an amount equal to the aggregate of the Voluntary Exclusion Amount of each
of the Banks.
"Voluntary Exclusion Amount" shall mean, for each Bank, the amount of
Net Cash Proceeds of the Interlake Packaging Disposition initially
voluntarily excluded from the repayment provisions of Section 4.02(d) as a
result of clause (b) of the last sentence thereof, calculated on the basis
of such Bank's Voluntary Exclusion Percentage.
"Voluntary Exclusion Percentage" shall mean, (i) for each Bank which
executed the Tenth Amendment to this Agreement, the percentage (which
percentage may not exceed the Maximum Voluntary Exclusion Percentage listed
next to each Bank's name on Schedule A to this Tenth Amendment) filled in
by such Bank next to its signature thereto (representing the additional
percentage of Net Cash Proceeds of the Interlake Packaging Disposition it
would have received but for the election by such Bank not to have received
such percentage of Net Cash Proceeds as a result of the operation of clause
(b) of Section 4.02(d)) and (ii) for each Bank which fails to include any
percentage next to its signature and for each other Bank, a percentage
equal to zero.
; (y) by amending (A) the definition of Consolidated EBITDA by adding the
following sentence at the end thereof:
"For any calculation of Consolidated EBITDA on the date of the
Interlake Packaging Disposition or thereafter for any period of four fiscal
quarters inclusive of the date of the Interlake Packaging Disposition, all
calculations of Consolidated EBITDA shall give pro forma effect to the
Interlake Packaging
Disposition as if it had taken place on the first day of the respective
four fiscal quarter period."
; (B) the definition of Excess Cash Flow by adding the following clause to the
text at the end of the parenthetical appearing in clause (i)(y) thereof:
"or to the extent used or available (A) to effect Note Repurchases
and/or (B) to acquire the business and assets of (I) Real Time
Solutions, Inc. and/or (II) ARC Metals, Inc."
; (C) the definition of Net Cash Proceeds by adding the following clause at the
end thereof:
"; provided that, Net Cash Proceeds shall not include any payments
made in respect of cash held by any entities being disposed of
pursuant to the Interlake Packaging Disposition."
; and (D) the definition of Total Exposure by deleting clause (iv) and inserting
the following in lieu thereof;
"(iv) the Total Delayed Draw Commitment then in effect."
and (z) by deleting the definition of "Permanent Subordinated Debentures" and
inserting the following definition in lieu thereof:
"Permanent Subordinated Debentures" shall mean those 12 1/8% Senior
Subordinated Debentures due 2002 issued by the Company pursuant to the
Indenture dated as of June 18, 1992, between the Company and Harris Trust
and Savings Bank as trustee, in the aggregate amount of $220,000,000.
9. Section 13 of the Credit Agreement is hereby amended by adding the
following new Section 13.22 at the end thereof:
"Section 13.22 Interlake Packaging Disposition. Notwithstanding
anything to the contrary contained in this Agreement or any other Credit
Document, prior to the Interlake Packaging Disposition, the Company and its
Subsidiaries shall be permitted to effectuate all of the actions outlined
on Schedule XXI, which actions shall be effectuated on a basis satisfactory
to the Administrative Agent."
10. On the Tenth Amendment Effective Date, the Credit Agreement is
hereby amended by adding Schedule XXI thereto in the form of Exhibit A hereto.
11. 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
Tenth 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.
12. 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.
13. This Amendment may be executed in any number of counterparts and
by the different parties hereto on sepa rate 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.
14. 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.
15. This Amendment shall become effective on the date (the "Tenth
Amendment Effective Date") when each of the following conditions shall have been
satisfied:
(a) On or prior to the Tenth Amendment Effective Date, 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;
(b) The Company shall simultaneously with the effectiveness hereof
consummate the Interlake Packaging Disposition;
(c) The Company shall have paid all fees and expenses (including
legal fees and expenses) then due and owing to the Administrative Agent;
(d) The Administrative Agent shall have received opinions of counsel
to the Company and its Subsidiaries (which counsel shall be satisfactory to
the Administrative Agent) covering the matters herein and such other
matters as the Administrative Agent shall have reasonably requested; and
(e) The Company shall have paid to the Administrative Agent for
distribution to the Banks a fee equal to 1/8 of 1% multiplied by its Fee
Calculation Percentage
of the projected Net Cash Proceeds of the Interlake Packaging Disposition.
Notwithstanding the foregoing, paragraph 9 hereof shall become effective when
the condition in clause (a) of this paragraph 15 shall have been satisfied.
16. From and after the Tenth 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 Agree
ment 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 /s/Stephen Gregory
--------------------------
Title: Vice President-
Finance and Chief
Financial Officer
SUBSIDIARY BORROWERS
--------------------
ACME STRAPPING INC.
By /s/Stephen Gregory
--------------------------
Title: Authorized Agent
DEXION (AUSTRALIA) PTY. LTD.
A.C.N. 000 083 956
By /s/Stephen R. Smith
--------------------------
Title: Authorized Agent
S.A. DEXION-REDIRACK N.V.
By /s/Stephen R. Smith
--------------------------
Title: Authorized Agent
DEXION INTERNATIONAL LIMITED
By /s/Stephen R. Smith
--------------------------
Title: Authorized Agent
PRECIS (935) LTD.
By /s/Stephen R. Smith
--------------------------
Title: Authorized Agent
DEXION GmbH
By /s/Stephen Gregory
--------------------------
Title: Authorized Agent
TWICEBONUS LIMITED
By /s/Stephen Gregory
--------------------------
Title: Authorized Agent
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 in dividual 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 /s/Jeffrey Schiedemeyer
------------------------
Title: Assistant Vice
President
Voluntary
Exclusion
Percentage BANKS
- ---------- -----
___0____% THE CHASE MANHATTAN BANK
-
Individually, and as
Administrative Agent
By /s/
-------------------------------
Title: Managing Director
_____0____% THE FIRST NATIONAL BANK
OF CHICAGO
Individually, and as Co-Agent
By /s/
-------------------------------
Title:
__________% THE MITSUI TRUST AND BANKING
COMPANY LIMITED
By /s/Margaret Holloway
-------------------------------
Title:Vice President & Manager
40.4703% NATIONAL BANK OF CANADA
__________
By /s/
-------------------------------
Title:Assistant Vice President
By /s/
-------------------------------
Title:
_____0____% NATIONAL WESTMINSTER BANK PLC
-
By /s/
-------------------------------
Title:Senior Vice President
_____0____% BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/
-------------------------------
Title:Vice President
_____0____% BANK OF AMERICA, ILLINOIS
By /s/
-------------------------------
Title: Vice President
_____0____% THE FUJI BANK LIMITED
By /s/ Hidehlko Jdr
-------------------------------
Title:General Manager
_____0____% THE NIPPON CREDIT BANK, LTD.
By /s/
--------------------------
Title: Senior Manager
_____0____% THE BANK OF NOVA SCOTIA
By /s/F.C.H. Ashby
--------------------------
Title:Senior Manager Loan
Operations
_________% BANK OF YOKOHAMA
By__________________________
Title:
37.1068 % GIROCREDIT BANK AG
------- DER SPARKASSEN,
GRAND CAYMAN ISLAND BRANCH
By /s/
--------------------------
Title:
By /s/
--------------------------
Title:
12.8007%
-------
SENIOR DEBT PORTFOLIO
By: Boston Management and
Research as Investment
Advisor
By /s/
----------------------------
Title:Assistant Treasurer
36.3307____% LEHMAN COMMERCIAL PAPER INC.
By /s/
----------------------------
Title: Authorized Signatory
30.1751___% RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS, B.V.
By Chancellor Senior Secured
Management Inc. as Profile
Advisor
By /s/Christopher A. Bondy
----------------------------
Title: Vice President
50.000___% STICHTING RESTRUCTURED
OBLIGATIONS BACKED BY SENIOR
ASSETS 2, (ROSA 2)
By Chancellor Senior Secured
Management Inc. as Portfolio
Advisor
By /s/ Christopher A. Bondy
----------------------------
Title: Vice President
39.0578 % CERES FINANCE LTD.
------------
By /s/
----------------------------
Title: Director
_________% MFS HIGH INCOME FUND
By /s/
----------------------------
Title:
ACCEPTED AND CONSENTED TO:
INTERLAKE DRC LIMITED
By /s/Stephen Gregory
------------------------
Title: Authorized Agent
DEXION GROUP PLC
By /s/Stephen R. Smith
------------------------
Title: Authorized Agent