Exhibit 4(g)
FIRST AMENDMENT
OF CREDIT AGREEMENT
THIS FIRST AMENDMENT OF CREDIT AGREEMENT, dated as of December 23, 1997
(this "AMENDMENT"), is by and among Stone Container Corporation, a Delaware
corporation (the "BORROWER"), the undersigned financial institutions, including
Bankers Trust Company, in their capacities as lenders (collectively, the
"LENDERS," and each individually, a "LENDER"), Bankers Trust Company, as agent
(the "AGENT") for the Lenders, and the undersigned financial institutions in
their capacities as Co-Agents.
RECITALS:
A. The Borrower, Bank of America National Trust & Savings Association,
The Bank of New York, The Bank of Nova Scotia, Caisse Nationale de Credit
Agricole, The Chase Manhattan Bank, N.A., Dresdner Bank AG-Chicago and Grand
Cayman Branches, The First National Bank of Chicago, The Long-Term Credit
Bank of Japan, Ltd., NationsBank, N.A. (Carolinas), The Sumitomo Bank, Ltd.,
Chicago Branch and Toronto Dominion (Texas), Inc., as co-agents
(collectively, the "CO-AGENTS," and each individually, a "CO-AGENT"), the
Agent and the Lenders are parties to that certain Amended and Restated Credit
Agreement dated as of June 19, 1997 (the "CREDIT AGREEMENT").
B. The Borrower has requested the Agent and the Lenders to amend the
Credit Agreement to, among other things, adjust the Indebtedness Ratio levels
that are required to be maintained by the Borrower under SECTION 5.3 of the
Credit Agreement, and to modify certain other provisions of the Credit
Agreement.
C. The Borrower, the Agent and the Lenders desire to amend the Credit
Agreement on 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 THE CREDIT AGREEMENT. The Credit Agreement
is, as of the Effective Date (as defined below), hereby amended as follows:
(a) SECTION 3.4(c) of the Credit Agreement is amended by deleting
"(but excluding (1) indebtedness required to be repaid upon any subsequent
conversion, exchange or other receipt of Monetized Assets and (2) any
indebtedness related to the German Financing that is repaid as contemplated
in clause (H) below)" appearing in clause (iii) of the second sentence of
such Section and substituting therefor the following:
"(but excluding indebtedness required to be repaid upon any
subsequent conversion, exchange or other receipt of Monetized
Assets)"
(b) SECTION 3.4(c) of the Credit Agreement is further amended by
deleting clauses (G) through (L) appearing in the second sentence of such
Section and substituting therefor the following:
"(G) up to an aggregate amount of $300 million (such amount being
referred to herein as the "EXCLUDED SALE PROCEEDS BASKET") of net
proceeds from the sale or other disposition of Assets not
constituting (1) Abitibi Shares, (2) the capital stock of Stone
Snowflake as permitted by SECTION 5.2.12(vi) and (3) Collateral
or Mortgaged Property or Assets constituting Collateral or
Mortgaged Property for which Substitute Collateral has been
provided pursuant to SECTION 9.13(c), designated by the Borrower
in writing to the Agent as being excluded from the prepayment
requirements of this Section (any amount so designated being
"EXCLUDED SALE PROCEEDS"), with the Excluded Sale Proceeds Basket
being subject to reduction by the amount of the Abitibi 75%
Portion; (H) proceeds from the cancellation of the German
Financing Intercompany Note upon the consummation of the German
Financing Subsidiary Transfer; (I) proceeds from any Abitibi
Sale/Monetization; (J) proceeds from the sale or other
disposition of any Assets constituting collateral which secures
the Indebtedness under the First Mortgage Note Documents; or (K)
proceeds from the sale or other disposition of any Assets
constituting collateral which secures the Indebtedness incurred
pursuant to SECTION 5.2.2.(x) but only to the extent such
proceeds are promptly used to repay such Indebtedness."
(c) A new SECTION 3.4(f) is added to the Credit Agreement as follows:
"(f) PREPAYMENT FROM GERMAN FINANCING. If the German Financing
is consummated, the Borrower shall as soon as possible (but in
any event within five Business Days after the consummation of the
German Financing and the incurrence of the Indebtedness
thereunder) prepay a portion of the E Tranche Term Loan with all
of the net proceeds of the Indebtedness incurred in the German
Financing, net of direct costs and expenses incurred in
connection with the German Financing."
(d) SECTION 3.6(b) of the Credit Agreement is amended by deleting
"(other than prepayments made (A) under SECTION 3.4(c) with any Material
Sale Proceeds derived from the sale of any Collateral or Mortgaged Property
and (B) under SECTION 3.4(d) with any proceeds derived from any Abitibi
Sale/Monetization)" appearing in such Section and substituting therefor the
following:
"(other than prepayments made (A) under SECTION 3.4(c) with any
Material Sale Proceeds derived from the sale of any Collateral or
Mortgaged Property,
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(B) under SECTION 3.4(d) with any proceeds derived from any Abitibi
Sale/Monetization and (C) under SECTION 3.4(f) with the net proceeds
derived from the German Financing)"
(e) A new SECTION 3.6(h) is added to the Credit Agreement immediately
following SECTION 3.6(g) as follows:
"(h) All prepayments of principal of the E Tranche Term Loan made
by the Borrower pursuant to SECTION 3.4(f) shall be applied (i)
to the unpaid principal amount of the E Tranche Term Loan in the
inverse order of the remaining regularly scheduled principal
installments set forth in SECTION 2.2(g); together with accrued
interest on such prepaid principal amount; and (ii) first to the
payment of Prime Rate Loans and second to the payment of
Eurodollar Rate Loans, and within such Eurodollar Rate Loans, pro
rata in order of the maturity of the Interest Periods of such
Loans."
(f) SECTION 5.2.2(c) of the Credit Agreement is amended by deleting
"(it being understood and agreed that the Stone-Canada Intercompany Note
shall not be deemed to make the Indebtedness incurred in the German
Financing recourse to Stone-Canada for purposes of this SECTION 5.2.2(c))"
appearing at the end of such Section and substituting therefor the
following:
"(it being understood and agreed that the German Financing
Intercompany Note shall not be deemed to make the Indebtedness
incurred in the German Financing recourse to the obligor thereof
for purposes of this SECTION 5.2.2(C))"
(g) SECTION 5.2.2(d) of the Credit Agreement is amended by deleting
such Section in its entirety and substituting therefor the following:
"(d) intercompany loans and advances (i) made in the ordinary
course of business to the Borrower or Wholly-Owned Subsidiaries
of the Borrower and, in the case of non-Wholly-Owned
Subsidiaries, Indebtedness arising out of Investments permitted
by SECTION 5.2.7; (ii) evidenced by the German Financing
Intercompany Note; or (iii) made to StoneSub in an aggregate
principal amount at any time outstanding not in excess (together
with any unreimbursed capital contributions made pursuant to
SECTION 5.2.7(h)) of (A) the amounts contemplated from time to
time by the terms of the respective Receivables Financings and
(B) those amounts, up to an aggregate at any one time outstanding
of $5 million for each $100 million (on a pro-rated basis) of
Receivables Financings which have been established and are in
existence at such time, which may be advanced to StoneSub in
order to cure or remedy, or otherwise avoid the commencement of,
liquidation, termination or similar events in connection with the
Receivables Financings; PROVIDED, HOWEVER, that (1) all such
intercompany loans and advances owing to or in favor of the
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Borrower from Stone-Canada are evidenced by an intercompany
promissory note in the form of EXHIBIT 5.2.2(d) hereto (or such
other form, in form and substance satisfactory to the Agent),
which notes are delivered to the Agent and pledged by the
Borrower to the Agent as Collateral pursuant to a Pledge
Agreement, (2) except as otherwise expressly permitted under this
Agreement, this clause (d) shall not be deemed to permit
intercompany Indebtedness for Money Borrowed made to SVCPI (other
than pursuant to contractual agreements permitted by this
Agreement and as in effect on the date hereof) or to S-CC or any
of S-CC's Subsidiaries other than Indebtedness for Money Borrowed
made between S-CC and its Subsidiaries or between Subsidiaries of
S-CC, and (3) this clause (d) shall not be deemed to permit
intercompany Indebtedness for Money Borrowed made to Stone
Container GmbH or any of its Subsidiaries except for (x)
Indebtedness for Money Borrowed made between Stone Container GmbH
and its Subsidiaries or between Subsidiaries of Stone Container
GmbH and (y) Indebtedness for Money Borrowed evidenced by the
German Financing Intercompany Note;"
(h) SECTION 5.2.2(T) of the Credit Agreement is amended by adding the
following at the end of such Section:
"and PROVIDED FURTHER, that until such time as the Borrower has
fully complied with provisions set forth in the first proviso to
SECTION 5.2.10(e), neither the Borrower nor any of its
Subsidiaries will incur any further Indebtedness under this
SECTION 5.2.2(t) from and after December 23, 1997 except for the
sole purpose of repaying the Excess Revolver Amount, if any, as
provided in SECTION 5.2.10(e); and PROVIDED FURTHER, that if the
aggregate principal amount of Indebtedness which the Borrower
proposes to incur under this SECTION 5.2.2(t) in order to repay
the Excess Revolver Amount exceeds the aggregate principal amount
which the Borrower and its Subsidiaries are permitted to incur
under this SECTION 5.2.2(t) (after giving effect to all prior
incurrences of Indebtedness hereunder), then the aggregate
principal amount of Indebtedness permitted to be incurred under
this SECTION 5.2.2(t) shall be increased in an amount necessary
such that the principal amount of such Indebtedness proposed to
be incurred under this SECTION 5.2.2(t) will be equal to the
Excess Revolver Amount;"
(i) SECTION 5.2.3(i) of the Credit Agreement is amended by deleting
such Section in its entirety and substituting therefor the following:
"(i) guarantees by the Borrower or any Subsidiary of the Borrower
of Indebtedness of any Person not exceeding $10 million in
aggregate principal amount at any time."
(j) SECTION 5.2.4 of the Credit Agreement is amended by deleting
clause (iii) appearing in such Section and substituting therefor the
following:
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"(iii) the German Financing Intercompany Note and the German
Financing Subsidiary Transfer and"
(k) SECTION 5.2.7(f) of the Credit Agreement is amended by deleting
such Section in its entirety and substituting therefor the following:
"(f) loans or advances of a type included in the definition of
Investments and made by the Borrower or any Subsidiary of the
Borrower in the ordinary course of the Borrower's or such
Subsidiary's business; PROVIDED, HOWEVER, that no such loans or
advances shall be made to Stone Container GmbH or any of its
Subsidiaries other than (A) such loans and advances made between
Stone Container GmbH and its Subsidiaries or between Subsidiaries
of Stone Container GmbH and (B) cancellation of the German
Financing Intercompany Note as contemplated in clause (vii) of
SECTION 5.2.12;"
(l) SECTION 5.2.10(a) of the Credit Agreement is amended by (i)
deleting the words "Stone-Canada" appearing in clause (iv) of such Section
and substituting therefor the words "German Financing", (ii) inserting the
word "and" immediately prior to subclause (C) appearing in clause (xv) of
such Section and (iii) deleting the subclause "and (D) utilizing the
proceeds of the German Financing as permitted by clause (iii) of the
definition of "German Financing"" appearing in clause (xv) of such Section.
(m) SECTION 5.2.10(a) of the Credit Agreement is further amended by
(i) deleting the word "and" appearing immediately prior to clause (xvii) of
such Section and (ii) inserting a new clause (xviii) at the end of such
Section as follows:
"and (xviii) the obligor under the German Financing Intercompany
Note may affect the cancellation of such note in full on or prior
to March 31, 1998 solely in consideration of the German Financing
Subsidiary Transfer;"
(n) SECTION 5.2.10(d) of the Credit Agreement is amended by deleting
clause (iii) appearing at the end of such Section and substituting therefor
the following:
"(iii) amend, modify, grant any waiver or otherwise change any
provision of the German Financing Intercompany Note."
(o) SECTION 5.2.10(e) of the Credit Agreement is amended by deleting
such Section in its entirety and replacing it with the following:
"(e) Make any mandatory offer to purchase, or redeem or purchase,
any Indebtedness created pursuant to or evidenced by any of the
Specified Senior Indentures pursuant to a "Deficiency Offer" made
in accordance with Article Eleven (or any other similar Article
or provision) of any thereof (it being understood and agreed that
no such Deficiency Offer may be directly or indirectly made out
of the proceeds of Indebtedness incurred as permitted by
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SECTION 5.2.2(q) or out of Discretionary Funds); PROVIDED, HOWEVER,
that the Borrower may make a Deficiency Offer solely with respect to
the Borrower's failure to maintain the Minimum Subordinated
Capital Base (as such term is defined in each of the Senior
Indentures) as of Borrower's two consecutive Fiscal Quarters
ended September 30, 1997 and December 31, 1997, no later than
February 28, 1998 (regardless of the actual payment date for
securities accepted pursuant to such Deficiency Offer) in
accordance with the terms and conditions set forth in Article
Eleven of each of the Senior Indentures, provided that the
Borrower satisfies each of the following conditions: (i) the
aggregate amount of principal paid by the Borrower in such
Deficiency Offer shall not exceed $200,000,000; and (ii) in the
event the Borrower uses proceeds, whether directly or indirectly,
of Revolving Loans and/or Supplemental Revolving Loans in an
aggregate amount in excess of $100,000,000 (such amount in excess
of $100,000,000 being referred to herein as the "EXCESS REVOLVER
AMOUNT"), then the Borrower shall repay such Excess Revolver
Amount on or before the 180th day following the incurrence of
such Revolving Loans and/or Supplemental Loans, the proceeds of
which are used, directly or indirectly, to fund such Deficiency
Offer, with proceeds from the incurrence of Indebtedness which
the Borrower or any of its Subsidiaries incurs in compliance with
the terms and conditions of this Agreement (including, without
limitation, SECTION 5.2.2); PROVIDED FURTHER, that if the
aggregate principal amount of Revolving Loans and Supplemental
Revolving Loans borrowed in connection with such permitted
Deficiency Offer is equal to or greater than $60,000,000, then
the Borrower shall pay to the Agent on the 120th day (the "FEE
PAYMENT DATE") following the date on which such Revolving Loans
and/or Supplemental Revolving Loans are incurred, for ratable
distribution to those Lenders (including an assignee of any such
Lender pursuant to SECTION 9.12(d), the "FIRST AMENDMENT
LENDERS") that have executed and delivered on or prior to
December 23, 1997 that certain First Amendment of Credit
Agreement dated as of December 23, 1997 among the Borrower, the
Agent and the Lenders signatory thereto, a fee equal to .10% of
the aggregate outstanding Loans (in the case of Term Loans,
Additional Term Loans, D Tranche Term Loans and E Tranche Term
Loans) and Commitments (in the case of Revolving Loan Commitments
and Supplemental Revolving Loan Commitments) of such First
Amendment Lenders as of the Fee Payment Date, provided that no
such fee shall be payable if the Borrower has repaid Revolving
Loans and Supplemental Revolving Loans (other than any payments
made, directly or indirectly, with proceeds of Revolving Loans
and/or Supplemental Revolving Loans) in an aggregate principal
amount of at least $60,000,000 between the period commencing on
the date on which Revolving Loans and/or Supplemental Loans were
borrowed in connection with such permitted Deficiency Offer and
ending on the day immediately prior to the Fee Payment Date; and
PROVIDED FURTHER, that the terms and conditions of the foregoing
provisos shall not be construed to permit the Borrower to make
any
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subsequent Deficiency Offer following the one-time Deficiency
Offer that is expressly permitted in the foregoing proviso, any
such subsequent Deficiency Offer remaining expressly prohibited
by this SECTION 5.2.10(e)."
(p) SECTION 5.2.12 of the Credit Agreement is amended by deleting
clause (v) appearing in the first sentence of such Section and substituting
therefor the following:
"(v) is an Abitibi Sale/Monetization and within (A) five Business
Days after the issuance or sale of any securities, instruments or
other rights, or after the sale or other disposition, in
connection with such Abitibi Sale/Monetization, the Borrower
shall use the Abitibi 25% Portion to effect the prepayments in
accordance with SECTION 3.4(D), and (B) five Business Days after
the issuance or sale of any securities, instruments or other
rights, or after the sale or other disposition, in connection
with such Abitibi Sale/Monetization (or such longer period of
time so long as proceeds are held pursuant to escrow arrangements
satisfactory to the Agent), the Borrower shall (1) use the first
$200,000,000 in the aggregate of the Abitibi 75% Portion to
prepay, repurchase, redeem or otherwise extinguish any scheduled
installment or stated maturity of any Indebtedness for Money
Borrowed of the Borrower which, pursuant to the contractual terms
thereof, is scheduled for repayment or maturity prior to May 15,
1999, and (2) use the remainder of the Abitibi 75% Portion to
prepay, repurchase, redeem or otherwise extinguish (x) any
Indebtedness for Money Borrowed of the Borrower constituting
Senior Indebtedness and/or (y) any Indebtedness for Money
Borrowed of the Borrower constituting Subordinated Debt, PROVIDED
that no more than 50% of the aggregate amount of the remainder of
the Abitibi 75% Portion may be used to prepay, repurchase, redeem
or otherwise extinguish Subordinated Debt;"
(q) SECTION 5.2.12 of the Credit Agreement is further amended by (i)
deleting the word "or" appearing immediately prior to clause (vi) appearing
in the first sentence of such Section and (ii) inserting a new clause (vii)
at the end of the first sentence of such Section as follows:
"or (vii) is a sale or transfer of all of the capital stock of
one or more direct or indirect Subsidiaries of the Borrower
(other than Stone-Canada) which are organized in a foreign
country, to Stone Container GmbH or one of its Subsidiaries (such
sale or transfer being referred to herein as the "GERMAN
FINANCING SUBSIDIARY TRANSFER") provided that (A) the aggregate
fair market value of all such capital stock to be sold or
transferred, as such value is determined by the Agent in its sole
discretion, shall not exceed the lesser of (1) the Dollar
equivalent of DM 90,000,000 and (2) the Dollar equivalent of the
outstanding principal amount owing under the German Financing
Intercompany Note, (B) the sole consideration for such sale or
transfer is the cancellation of the German Financing Intercompany
Note and (C) on the
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effective date of such transfer or exchange the Agent shall have
received a certificate from the Borrower's chief executive or chief
financial officer certifying that no Event of Default or Unmatured
Event of Default has occurred and is continuing as of such date, both
before and after giving effect to such sale or transfer."
(r) SECTION 5.2.17 of the Credit Agreement is amended by (i) deleting
"the Stone-Canada Intercompany Note, the Stone-Canada Guarantee or the
German Financing" appearing at the end of the first sentence of such
Section and substituting therefor "the German Financing Intercompany Note
(other than a cancellation thereof as contemplated in clause (vii) of
SECTION 5.2.12) or the German Financing", and (ii) deleting the second
sentence of such Section in its entirety.
(s) SECTION 5.3.2 of the Credit Agreement is amended by deleting such
Section in its entirety and replacing it with the following:
"Section 5.3.2 INDEBTEDNESS RATIO. Have an Indebtedness Ratio
of not more than the following amounts as of the end of each
Fiscal Quarter ending on a date set forth below:
DATE RATIO
December 31, 1994 through
March 31, 1997 .85 to 1
June 30, 1997 .86 to 1
September 30, 1997 .88 to 1
December 31, 1997 .90 to 1
March 31, 1998 .90 to 1
June 30, 1998 .90 to 1
September 30, 1998 .87 to 1
December 31, 1998 .85 to 1
March 31, 1999 .83 to 1
June 30, 1999 .81 to 1
September 30, 1999 .78 to 1
December 31, 1999 and
thereafter .75 to 1"
(t) The Definitional Appendix of the Credit Agreement is amended by
deleting the definition of "German Financing" appearing therein in its
entirety and substituting therefor the following:
""GERMAN FINANCING" means one or more credit facilities
consummated on or prior to March 31, 1998 pursuant to which Stone
Container GmbH and/or any of its Subsidiaries (including Europa
Carton A.G.) incurs Indebtedness in an aggregate principal amount
denominated in Deutsch Marks not to
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exceed DM 90,000,000 and secured only by the stock and/or assets
of Subsidiaries of Stone Container GmbH, PROVIDED that (a) such
Indebtedness is incurred on terms and conditions substantially
similar to the terms and conditions set forth on SCHEDULE 1.1(h)
hereto and on other terms and conditions, and pursuant to
documentation, in form and substance satisfactory to the Agent,
(b) the Agent shall have received an opinion of Sidley & Austin,
counsel to the Borrower, and/or other counsel to the Borrower
reasonably acceptable to Agent, in form and substance reasonably
satisfactory to the Agent and stating that the execution, delivery
and performance of the documentation for the German Financing does
not conflict with or result in a breach of, or constitute a default
under, any of the Loan Documents or any other agreements or
instruments known to such counsel to which the Borrower or any of
its Subsidiaries are bound, and (c) all of the proceeds of such
Indebtedness are used (i) to pay the direct costs and expenses
incurred in connection with the German Financing and (ii) to prepay
a portion of the E Tranche Term Loan in accordance with
SECTION 3.4(f), and (d) the Agent shall have received a certificate
of the Chief Financial Officer or the Treasurer of the Borrower
certifying that no Event of Default or Unmatured Event of Default
has occurred and is continuing either before or after giving effect
to the consummation of the German Financing."
(u) The Definitional Appendix of the Credit Agreement is amended by
(i) deleting the definitions of "German Financing Abitibi Portion", "German
Financing Portion", "Stone-Canada Guarantee" and "Stone-Canada Intercompany
Note" appearing therein in their entirety, and (ii) adding the following
new definitions in their appropriate alphabetical order:
""GERMAN FINANCING INTERCOMPANY NOTE" means the intercompany
promissory note issued by Stone-Canada or the Borrower in favor
of Stone Container GmbH and/or Europa Carton A.G. upon
consummation of the German Financing in the principal amount of
up to DM 90,000,000 on terms and conditions, and pursuant to
documentation, in form and substance satisfactory to the Agent.
"GERMAN FINANCING SUBSIDIARY TRANSFER" is defined in SECTION
5.2.12."
(v) The Credit Agreement is further amended by deleting SCHEDULE
1.1(h) to the Credit Agreement in its entirety and substituting therefor
SCHEDULE 1.1(h) attached to this Amendment.
SECTION 3. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. This
Amendment shall become effective upon the date (the "EFFECTIVE DATE") when each
of the following conditions precedent are satisfied:
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(a) each of the Borrower, the Agent, the Majority Term Lenders, the
Majority Additional Term Lenders, the Majority D Tranche Term Lenders, the
Majority E Tranche Term Lenders and the Required Lenders shall have
executed and delivered this Amendment; and
(b) the Agent shall have received from the Borrower such certificates
and opinions with respect hereto as the Agent may reasonably require.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants to the Lenders, the Co-Agents and the Agent as
follows:
(a) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct in all material
respects at and as of the date hereof as though made on and as of the date
hereof (except to the extent specifically made with regard to a particular
date).
(b) No Event of Default or Unmatured Event of Default has occurred
and is continuing.
(c) The execution, delivery and performance of this Amendment has
been duly authorized by all necessary action on the part of, and duly
executed and delivered by, the Borrower and this Amendment is a legal,
valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms, except as the enforcement thereof
may be subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law).
(d) The execution, delivery and performance of this Amendment do not
conflict with or result in a breach by the Borrower of any term of any
material contract, loan agreement, indenture or other agreement or
instrument to which the Borrower is a party or is subject.
SECTION 5. 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.
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(c) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of the Lenders, the
Co-Agents or the Agent under the Credit Agreement, the Loan Documents or
the Ancillary Documents.
(d) The Borrower acknowledges and agrees that this Amendment
constitutes a "Loan Document" for purposes of the Credit Agreement,
including, without limitation, SECTION 7.1(d) of the Credit Agreement.
SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment 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. This Amendment shall be binding upon the respective parties
hereto upon the execution and delivery of this Amendment by the Borrower, the
Agent, Majority Term Lenders, the Majority Additional Term Lenders, the Majority
D Tranche Term Lenders, the Majority E Tranche Term Lenders and the Required
Lenders regardless of whether it has been executed and delivered by all of the
Lenders. Delivery of an executed counterpart of a signature page of this
Amendment by facsimile transmission shall be effective as delivery of a manually
executed counterpart of this Amendment.
SECTION 7. GOVERNING LAW. THIS AMENDMENT 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 8. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
SECTION 9. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
[Signature Pages Follow]
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SCHEDULE 1.1(h)
GERMAN FINANCING TERM SHEET
See attached.