EXECUTION COPY
CREDIT AGREEMENT
among
SILGAN HOLDINGS INC.,
SILGAN CONTAINERS CORPORATION,
SILGAN PLASTICS CORPORATION,
SILGAN CONTAINERS MANUFACTURING CORPORATION,
SILGAN CAN COMPANY,
CERTAIN OTHER BORROWERS,
VARIOUS LENDERS,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent,
BANK OF AMERICA, N.A.
and
CITICORP USA, INC.,
as Co-Syndication Agents,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
and
FLEET NATIONAL BANK,
as Co-Documentation Agents,
DEUTSCHE BANK SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers,
and
DEUTSCHE BANK SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
as Joint Book Managers
_________________________
Dated as of June 28, 2002
_________________________
TABLE OF CONTENTS
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Page
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Section 1. Amount and Terms of Credit........................................1
1.01 Commitments.......................................................1
1.02 Minimum Amount of Each Borrowing..................................6
1.03 Notice of Borrowing...............................................6
1.04 Disbursement of Funds.............................................7
1.05 Notes.............................................................8
1.06 Conversions......................................................10
1.07 Pro Rata Borrowings..............................................10
1.08 Interest.........................................................11
1.09 Interest Periods.................................................12
1.10 Increased Costs, Illegality, etc.................................13
1.11 Compensation.....................................................16
1.12 Change of Applicable Lending Office..............................16
1.13 Replacement of Lenders...........................................17
1.14 Incremental Term Loan Commitments................................18
1.15 Special Sharing and Conversion Provisions Applicable
to Lenders Upon the Occurrence of a Sharing Event ...............22
Section 2. Letters of Credit................................................26
2.01 Letters of Credit................................................26
2.02 Minimum Stated Amount............................................28
2.03 Letter of Credit Requests........................................28
2.04 Letter of Credit Participations..................................29
2.05 Agreement to Repay Letter of Credit Drawings.....................31
2.06 Increased Costs..................................................31
Section 3. Fees; Commitments; Reductions of Commitments.....................32
3.01 Fees.............................................................32
3.02 Voluntary Termination of Revolving Commitments...................33
3.03 Mandatory Reduction or Termination of Commitments................34
Section 4. Prepayments; Payments; Commitment Reductions.....................35
4.01 Voluntary Prepayments............................................35
4.02 Mandatory Prepayments and Commitment Reductions..................38
4.03 Method and Place of Payment......................................45
4.04 Net Payments.....................................................45
Section 5. Conditions Precedent.............................................47
5.01 Conditions to Loans on the Initial Borrowing Date................47
5.02 Conditions to All Credit Events..................................52
5.03 No Excess Cash...................................................53
(i)
5.04 Revolving Borrowers etc..........................................53
5.05 Incremental Term Loans...........................................53
Section 6. Representations Warranties and Agreements........................54
6.01 Organizational Status............................................54
6.02 Power and Authority..............................................54
6.03 No Violation.....................................................54
6.04 Governmental Approvals...........................................55
6.05 Security Documents...............................................55
6.06 Insurance........................................................56
6.07 Financial Statements; Financial Condition; etc...................56
6.08 Litigation.......................................................57
6.09 True and Complete Disclosure.....................................57
6.10 Use of Proceeds; Margin Regulations..............................57
6.11 Tax Returns and Payments.........................................58
6.12 Compliance with ERISA............................................58
6.13 Subordination....................................................59
6.14 Subsidiaries.....................................................59
6.15 Compliance with Statutes etc.....................................59
6.16 Investment Company Act...........................................60
6.17 Public Utility Holding Company Act...............................60
6.18 Labor Relations..................................................60
6.19 Patents, Licenses, Franchises and Formulas.......................60
Section 7. Affirmative Covenants............................................61
7.01 Information Covenants............................................61
7.02 Books, Records and Inspections...................................63
7.03 Maintenance of Property; Insurance...............................63
7.04 Franchises.......................................................64
7.05 Compliance with Statutes; etc....................................64
7.06 ERISA............................................................64
7.07 End of Fiscal Years; Fiscal Quarters.............................65
7.08 Taxes............................................................65
7.09 Additional Security; Further Assurances; etc.....................66
7.10 Foreign Subsidiaries Security....................................67
7.11 Real Estate Appraisals...........................................68
7.12 Margin Stock.....................................................68
7.13 CanCo Capital Contributions......................................68
7.14 Use of Proceeds..................................................68
7.15 Maintenance of Corporate Separateness............................68
Section 8. Negative Covenants...............................................69
8.01 Liens............................................................69
8.02 Consolidation, Merger, Sale of Assets, etc.......................72
8.03 Dividends........................................................75
8.04 Indebtedness.....................................................76
(ii)
8.05 Advances; Investments and Loans..................................79
8.06 Transactions with Affiliates and Unrestricted Subsidiaries.......81
8.07 Capital Expenditures.............................................83
8.08 Interest Coverage Ratio..........................................84
8.09 Total Leverage Ratio.............................................84
8.10 Limitation on Voluntary Payments and Modifications of
Certain Indebtedness; Modifications of Documents; Certificate
of Incorporation; By-Laws and Certain Other Agreements; etc......85
8.11 Creation of Subsidiaries and Unrestricted Subsidiaries...........86
8.12 Limitation on Restrictions on Subsidiary Dividends and Other
Distributions....................................................86
8.13 Limitation on Issuances of Capital Stock.........................87
8.14 Business.........................................................87
8.15 Change of Name...................................................88
8.16 Designated Senior Indebtedness...................................88
Section 9. Events of Default................................................88
9.01 Payments.........................................................88
9.02 Representations, etc.............................................88
9.03 Covenants........................................................88
9.04 Default Under Other Agreements...................................89
9.05 Bankruptcy, etc..................................................89
9.06 ERISA............................................................89
9.07 Guaranties.......................................................90
9.08 Security Documents...............................................90
9.09 Judgments........................................................90
9.10 Change of Control................................................90
9.11 Accounts Receivable Facility.....................................90
Section 10. Definitions and Accounting Terms................................91
10.01 Defined Terms...................................................91
10.02 Principles of Construction.....................................125
Section 11. The Administrative Agent and the Other Agents..................126
11.01 Appointment....................................................126
11.02 Nature of Duties...............................................126
11.03 Lack of Reliance on the Administrative Agent and the Other
Agents.........................................................126
11.04 Certain Rights of the Administrative Agent.....................127
11.05 Reliance.......................................................127
11.06 Indemnification................................................127
11.07 The Administrative Agent and the other Agents in Their
Individual Capacity............................................127
11.08 Holders........................................................128
11.09 Resignation by the Administrative Agent and the Other Agents...128
Section 12. Miscellaneous..................................................129
12.01 Payment of Expenses, etc.......................................129
12.02 Right of Setoff................................................130
(iii)
12.03 Notices........................................................130
12.04 Benefit of Agreement...........................................130
12.05 No Waiver; Remedies Cumulative.................................132
12.06 Payments Pro Rata..............................................133
12.07 Calculations: Computations.....................................133
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE...............134
12.09 Counterparts...................................................135
12.10 Effectiveness..................................................136
12.11 Headings Descriptive...........................................136
12.12 Amendment and Waiver...........................................136
12.13 Survival.......................................................138
12.14 Domicile of Loans..............................................138
12.15 Confidentiality................................................139
12.16 Register.......................................................139
12.17 Certain Agreements with Respect to the 9% Senior
Subordinated Debentures........................................140
12.18 Limitation on Additional Amounts, etc..........................140
12.19 Maximum Amount.................................................140
12.20 ▇▇▇▇▇▇▇▇ Standstill Period/▇▇▇▇▇▇▇▇ Repurchase.................141
12.21 Judgment Currency..............................................142
12.22 Euro...........................................................143
12.23 Immunity.......................................................143
SCHEDULES
Schedule I Commitments
Schedule II Existing Letters of Credit
Schedule III Real Property
Schedule IV Insurance
Schedule V Subsidiaries
Schedule VI Existing Liens
Schedule VII Existing Indebtedness
Schedule VIII Existing Investments
Schedule IX Lender Addresses
Schedule X Associated Costs Rate
EXHIBITS
Exhibit A-1 Form of Notice of Borrowing
Exhibit A-2 Form of Notice of Conversion/Continuation
Exhibit B-1 Form of A Term Note
Exhibit B-2 Form of B Term Note
Exhibit B-3 Form of Incremental Term Note
Exhibit B-4 Form of Revolving Note
Exhibit B-5 Form of Swingline Note
(iv)
Exhibit C Form of Letter of Credit Request
Exhibit D Form of Section 4.04(b)(ii) Certificate
Exhibit E-1 Form of Opinion of ▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel
Exhibit E-2 Form of Opinion of Pillsbury Winthrop LLP
Exhibit F Form of Officers' Certificate
Exhibit G Form of US Borrowers/Subsidiaries Guaranty
Exhibit H Form of US Pledge Agreement
Exhibit I Form of US Security Agreement
Exhibit J Form of Election to Become a Revolving Borrower
Exhibit K Form of Assignment and Assumption Agreement
Exhibit L Form of Incremental Term Loan Commitment Agreement
(v)
CREDIT AGREEMENT, dated as of June 28, 2002, among SILGAN HOLDINGS
INC., a Delaware corporation ("Silgan"), SILGAN CONTAINERS CORPORATION, a
Delaware corporation ("Containers"), SILGAN PLASTICS CORPORATION, a Delaware
corporation ("Plastics"), SILGAN CONTAINERS MANUFACTURING CORPORATION, a
Delaware corporation ("Manufacturing"), SILGAN CAN COMPANY, a Delaware
corporation ("CanCo"), each other Revolving Borrower party hereto from time to
time, each other Incremental Term Loan Borrower party hereto from time to time
(together with Silgan, Containers, Plastics, Manufacturing, CanCo and each other
Revolving Borrower, the "Borrowers," and each individually, a "Borrower"), the
lenders from time to time party hereto (each a "Lender" and, collectively, the
"Lenders"), DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent (in
such capacity, the "Administrative Agent"), BANK OF AMERICA, N.A. and CITICORP
USA, INC., as Co-Syndication Agents (in such capacity, the "Co-Syndication
Agents"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC. and FLEET NATIONAL BANK, as
Co-Documentation Agents (in such capacity, the "Co-Documentation Agents"),
DEUTSCHE BANK SECURITIES INC. and BANC OF AMERICA SECURITIES LLC, as Joint Lead
Arrangers (in such capacity, the "Joint Lead Arrangers"), and DEUTSCHE BANK
SECURITIES INC., BANC OF AMERICA SECURITIES LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
as Joint Book Managers (in such capacity, the "Joint Book Managers"). Unless
otherwise defined herein, all capitalized terms used herein and defined in
Section 10 are used herein as so defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, subject to and upon the terms and conditions set forth
herein, the Lenders are willing to make available to the Borrowers the
respective credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
Section 1. Amount and Terms of Credit.
--------------------------
1.01 Commitments. (a) Subject to and upon the terms and conditions
set forth herein, each Lender with an A Term Loan Commitment severally agrees to
make, on the Initial Borrowing Date, a term loan (each an "A Term Loan" and,
collectively, the "A Term Loans") to Silgan, which A Term Loans:
(i) shall be denominated in Dollars;
(ii) shall, at the option of Silgan, be either Base Rate Loans or
Eurodollar Loans, provided that all A Term Loans made as part of the same
Borrowing shall, unless otherwise specifically provided herein, be of the same
Type; and
(iii) shall not exceed for any such Lender, in initial aggregate
principal amount, that amount which equals the A Term Loan Commitment of such
Lender on the Initial Borrowing Date (before giving effect to the termination
thereof on such date pursuant to Section 3.03(b)).
Once repaid, A Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein,
each Lender with a B Term Loan Commitment severally agrees to make, on the
Initial Borrowing Date, a term loan (each a "B Term Loan" and, collectively, the
"B Term Loans") to Silgan, which B Term Loans:
(i) shall be denominated in Dollars;
(ii) shall, at the option of Silgan, be either Base Rate Loans or
Eurodollar Loans, provided that all B Term Loans made as part of the same
Borrowing shall, unless otherwise specifically provided herein, be of the
same Type; and
(iii) shall not exceed for any such Lender, in initial aggregate
principal amount, that amount which equals the B Term Loan Commitment of
such Lender on the Initial Borrowing Date (before giving effect to the
termination thereof on such date pursuant to Section 3.03(b)).
Once repaid, B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth in Section
1.14 and the other provisions set forth herein, each Lender with an Incremental
Term Loan Commitment for a given Tranche of Incremental Term Loans severally
agrees, at any time and from time to time on and after the date that such
Incremental Term Loan Commitment is obtained pursuant to Section 1.14 and prior
to the Incremental Term Loan Commitment Termination Date for such Tranche of
Incremental Term Loans, to make a term loan or term loans (each an "Incremental
Term Loan" and, collectively, the "Incremental Term Loans") to the Incremental
Term Loan Borrower for such Tranche, which Incremental Term Loans:
(i) shall be incurred on an Incremental Term Loan Borrowing Date;
(ii) shall be denominated in the Applicable Currency for such Tranche
of Incremental Term Loans;
(iii) shall, if Dollar Loans, at the option of the applicable
Incremental Term Loan Borrower, be incurred and maintained as, and/or
converted into, Base Rate Loans or Eurodollar Loans, provided that all
Incremental Term Loans that are Dollar Loans comprising the same Borrowing
under such Tranche shall, unless otherwise specifically provided herein, be
of the same Type;
(iv) shall, if an Alternate Currency Incremental Term Loan, at the
option of the applicable Incremental Term Loan Borrower, be incurred and
maintained in one or more Borrowings of Alternate Currency Incremental Term
Loans under such Tranche; and
(v) shall not exceed for any such Incremental Term Loan Lender at the
time of any incurrence thereof, that aggregate principal amount which
equals the Incremental Term Loan Commitment of such Incremental Term Loan
Lender for such Tranche at
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such time (before giving effect to any reduction thereof at such time
pursuant to Section 3.03(c)).
Once repaid, Incremental Term Loans incurred hereunder may not be reborrowed.
(d) Subject to and upon the terms and conditions set forth herein,
each Lender with a Revolving Loan Commitment severally agrees, at any time and
from time to time on and after the Initial Borrowing Date and prior to the
Revolving Loan Maturity Date, to make a revolving loan or revolving loans (each
a "Revolving Loan" and, collectively, the "Revolving Loans") to each Revolving
Borrower, which Revolving Loans:
(i) shall be denominated in Dollars;
(ii) shall, at the option of the respective Revolving Borrower, be
either Base Rate Loans or Eurodollar Loans, provided that all Revolving
Loans made as part of the same Borrowing shall, unless otherwise
specifically provided herein, be of the same Type;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not exceed for any such Lender at any time outstanding in
respect of all Revolving Borrowers that aggregate principal amount which,
when added to the product of (A) such Lender's RL Percentage and (B) the
sum of (I) the aggregate amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time and (II) the aggregate principal amount of
all Swingline Loans (exclusive of Swingline Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) then outstanding, equals the Revolving Loan
Commitment of such Lender at such time;
(v) shall not exceed for all such Lenders at any time outstanding in
respect of all Revolving Borrowers that aggregate principal amount which,
when added to the sum of (I) the aggregate amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time and (II) the aggregate
principal amount of all Swingline Loans (exclusive of Swingline Loans which
are repaid with the proceeds of, and simultaneously with the incurrence of,
the respective incurrence of Revolving Loans) then outstanding, equals the
Total Revolving Loan Commitment at such time; and
(vi) shall not exceed for CanCo at any time outstanding that aggregate
principal amount which, (A) when added to the sum of (I) the aggregate
amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings
which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans by CanCo) in
respect of all Letters of Credit issued for the account of CanCo at such
time and (II) the aggregate principal amount of all Swingline Loans
(exclusive of Swingline Loans which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) incurred by CanCo then
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outstanding, equals the CanCo Revolving Sub-Limit then in effect or (B)
when added to the sum of (I) the aggregate amounts calculated in the
preceding clause (A) and outstanding at such time and (II) the aggregate
amount of all other CanCo Included Debt outstanding at such time, equals
the CanCo Permitted Debt Amount at such time.
(e) Subject to and upon the terms and conditions set forth herein, the
Swingline Lender in its individual capacity agrees to make, at any time and from
time to time on and after the Initial Borrowing Date and prior to the Swingline
Expiry Date, a revolving loan or revolving loans (each a "Swingline Loan" and,
collectively, the "Swingline Loans") to each Revolving Borrower, which Swingline
Loans:
(i) shall be denominated in Dollars and shall be made and maintained
as Base Rate Loans;
(ii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iii) shall not exceed in aggregate principal amount at any time
outstanding in respect of all Revolving Borrowers, when added to the sum of
(I) the aggregate principal amount of all Revolving Loans then outstanding
and (II) the amount of all Letter of Credit Outstandings (exclusive of
Unpaid Drawings which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Revolving Loans) at
such time, an amount equal to the Total Revolving Loan Commitment at such
time;
(iv) shall not exceed for CanCo at any time outstanding that aggregate
principal amount which, (A) when added to the sum of (I) the aggregate
amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings
which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans by CanCo) in
respect of all Letters of Credit issued for the account of CanCo at such
time and (II) the aggregate principal amount of all Revolving Loans
incurred by CanCo then outstanding, equals the CanCo Revolving Sub-Limit
then in effect or (B) when added to the sum of (I) the aggregate amounts
calculated in the preceding clause (A) and outstanding at such time and
(II) the aggregate amount of all other CanCo Included Debt outstanding at
such time, equals the CanCo Permitted Debt Amount at such time; and
(v) shall not exceed in aggregate principal amount at any time
outstanding in respect of all Revolving Borrowers, the Maximum Swingline
Amount.
Notwithstanding anything to the contrary in this Section 1.01(e), (i)
the Swingline Lender shall not be obligated to make any Swingline Loans at a
time when a Lender Default exists with respect to a Lender with a Revolving Loan
Commitment unless the Swingline Lender has entered into arrangements
satisfactory to it and Silgan to eliminate the Swingline Lender's risk with
respect to the Defaulting Lender's or Lenders' participation in such Swingline
Loans, including by cash collateralizing such Defaulting Lender's or Lenders' RL
Percentage of the outstanding Swingline Loans, and (ii) the Swingline Lender
will not make a Swingline Loan after it has received written notice from any
Borrower or the Required Lenders stating that a
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Default or an Event of Default exists until such time as the Swingline Lender
shall have received written notice of (x) rescission of all such notices from
the party or parties originally delivering such notice or notices or (y) the
cure or waiver of such Default or Event of Default in accordance with the
requirements of this Agreement.
(f) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the Lenders with Revolving Loan Commitments or with
outstanding Revolving Loans that the Swingline Lender's outstanding Swingline
Loans shall be funded with a Borrowing of Revolving Loans denominated in Dollars
(provided that such notice shall be deemed to have been automatically given upon
the occurrence of a Default or an Event of Default under Section 9.05 or upon
the exercise of any of the remedies provided in the last paragraph of Section
9), in which case one or more Borrowings of Revolving Loans constituting Base
Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the
immediately succeeding Business Day from all such Lenders (without giving effect
to any termination of the Total Revolving Loan Commitment pursuant to the last
paragraph of Section 9) pro rata based on each such Lender's RL Percentage
(determined before giving effect to any termination of the Total Revolving Loan
Commitment pursuant to the last paragraph of Section 9), and the proceeds
thereof shall be applied directly to the Swingline Lender to repay the Swingline
Lender for such outstanding Swingline Loans. Each such Lender hereby irrevocably
agrees to make Revolving Loans upon one Business Day's notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified in writing by the Swingline Lender
notwithstanding (i) the amount of the Mandatory Borrowing may not comply with
the minimum amount for Borrowings otherwise required hereunder, (ii) whether any
conditions specified in Section 5 are then satisfied, (iii) whether a Default or
an Event of Default then exists, (iv) the date of such Mandatory Borrowing and
(v) the amount of the Total Revolving Loan Commitment at such time. In the event
that any Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement
of a proceeding of the type referred to in Section 9.05 with respect to any of
the Revolving Borrowers), then each such Lender hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the Revolving Borrowers on
or after such date and prior to such purchase) from the Swingline Lender such
participations in the outstanding Swingline Loans as shall be necessary to cause
such Lenders to share in such Swingline Loans ratably based upon their
respective RL Percentages (determined before giving effect to any termination of
the Total Revolving Loan Commitment pursuant to the last paragraph of Section
9); provided that (x) all interest payable on the Swingline Loans shall be for
the account of the Swingline Lender until the date as of which the respective
participation is required to be purchased and, to the extent attributable to the
purchased participation, shall be payable to the participant from and after such
date and (y) at the time any purchase of participations pursuant to this
sentence is actually made, the purchasing Lender shall be required to pay the
Swingline Lender interest on the principal amount of participation purchased for
each day from and including the day upon which the Mandatory Borrowing would
otherwise have occurred to but excluding the date of payment for such
participation, at the overnight Federal Funds Rate for the first three days and
at the rate otherwise applicable to Revolving Loans maintained as Base Rate
Loans hereunder for each day thereafter.
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1.02 Minimum Amount of Each Borrowing. The aggregate principal amount
of each Borrowing of Loans under a respective Tranche shall not be less than the
Minimum Borrowing Amount for such Tranche of Loans. More than one Borrowing may
occur on the same date, but at no time shall there be outstanding more than
thirty Borrowings of Euro Rate Loans in the aggregate.
1.03 Notice of Borrowing. (a) Whenever (x) a Borrower desires to incur
Dollar Loans hereunder (excluding Swingline Loans and Revolving Loans incurred
pursuant to a Mandatory Borrowing), such Borrower shall give the Administrative
Agent at the applicable Notice Office at least one Business Day's prior notice
of each Base Rate Loan, and at least three Business Days' prior notice of each
Eurodollar Loan, to be incurred hereunder, and (y) an Incremental Term Loan
Borrower desires to incur Alternate Currency Incremental Term Loans hereunder,
such Incremental Term Loan Borrower shall give the Administrative Agent at the
applicable Notice Office at least three Business Days' prior notice of each such
Alternate Currency Incremental Term Loan to be incurred hereunder, provided that
(in each case) any such notice shall be deemed to have been given on a certain
day only if given before 1:00 P.M. (Local Time) on such day. Each such notice
(each a "Notice of Borrowing"), except as otherwise expressly provided in
Section 1.10, shall be irrevocable and shall be given by the respective Borrower
in writing, or by telephone promptly confirmed in writing, in the form of
Exhibit A-1, appropriately completed to specify (i) the name of such Borrower,
(ii) the aggregate principal amount of the Loans to be made pursuant to such
Borrowing (stated in Dollars or, in the case of Alternate Currency Incremental
Term Loans, in the relevant Alternate Currency), (iii) the date of such
Borrowing (which shall be a Business Day), (iv) in the case of Incremental Term
Loans, the Applicable Currency, (v) whether the Loans being made pursuant to
such Borrowing shall constitute A Term Loans, B Term Loans, Incremental Term
Loans or Revolving Loans, (vi) in the case of Dollar Loans, whether such Dollar
Loans being made pursuant to such Borrowing are to be initially maintained as
Base Rate Loans or, to the extent permitted hereunder, Eurodollar Loans, and
(vii) in the case of all Euro Rate Loans, the initial Interest Period to be
applicable thereto. The Administrative Agent shall promptly give each Lender
which is required to make Loans of the Tranche specified in the respective
Notice of Borrowing, notice of such proposed Borrowing, of such Lender's
proportionate share thereof and of the other matters required by the immediately
preceding sentence to be specified in the Notice of Borrowing.
(b) (i) Whenever a Revolving Borrower desires to incur Swingline Loans
hereunder, such Revolving Borrower shall give the Swingline Lender not later
than 1:00 P.M. (Local Time) on the date that a Swingline Loan is to be incurred
hereunder, written notice or telephonic notice promptly confirmed in writing of
each Swingline Loan to be incurred hereunder. Each such notice shall be
irrevocable and specify in each case (A) the date of Borrowing (which shall be a
Business Day) and (B) the aggregate principal amount of the Swingline Loans to
be made pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(f), with each Revolving Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of Mandatory Borrowings as
set forth in Section 1.01(f).
(c) Without in any way limiting the obligation of any Borrower to
confirm in writing any telephonic notice of any Borrowing of Loans, the
Administrative Agent or the
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Swingline Lender, as the case may be, may act without liability upon the basis
of telephonic notice of such Borrowing, reasonably believed by the
Administrative Agent or the Swingline Lender, as the case may be, in good faith
to be from the president, a vice president, the chief financial officer, the
treasurer or an assistant treasurer of such Borrower (or any other officer or
employee of such Borrower designated in writing to the Administrative Agent and
the Swingline Lender by the president, a vice president, the chief financial
officer, the treasurer or an assistant treasurer of such Borrower as being
authorized to give such notices under this Agreement) prior to receipt of
written confirmation. In each such case, each Borrower hereby waives the right
to dispute the Administrative Agent's or the Swingline Lender's record of the
terms of such telephonic notice of such Borrowing of Loans.
1.04 Disbursement of Funds. No later than 12:00 Noon (Local Time) on
the date specified in each Notice of Borrowing (or (x) in the case of Swingline
Loans, no later than 3:00 P.M. (Local Time) on the date specified pursuant to
Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, no later than
12:00 Noon (Local Time) on the date specified in Section 1.01(f)), each Lender
with a Commitment of the respective Tranche will make available its pro rata
portion of each such Borrowing requested to be made on such date (or, in the
case of Swingline Loans, the Swingline Lender shall make available the full
amount thereof). All such amounts shall be made available in Dollars (or, in the
case of Alternate Currency Incremental Term Loans, in the Alternate Currency for
the relevant Tranche) and in immediately available funds at the applicable
Payment Office, and the Administrative Agent will make available to the relevant
Borrower at such Payment Office in Dollars (or, in the case of Alternate
Currency Incremental Term Loans, in the Alternate Currency for such Tranche) the
aggregate of the amounts so made available by the Lenders. Unless the
Administrative Agent shall have been notified by any Lender prior to the date of
Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may, in reliance upon such assumption, make available to
the relevant Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the relevant Borrower and such Borrower shall
immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover on demand from such
Lender or such Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to such Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Lender, at the overnight Federal Funds
Rate (or, in the case of Alternate Currency Incremental Term Loans, the
Administrative Agent's customary rate for interbank advances in the relevant
Alternate Currency) for the first three days and at the rate of interest
otherwise applicable to such Loans for each day thereafter and (ii) if recovered
from such Borrower, the rate of interest applicable to the respective Borrowing,
as determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Lender from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Lender as a result
of any failure by such Lender to make Loans hereunder.
-7-
1.05 Notes. (a) Each Borrower's obligation to pay the principal of,
and interest on, all the Loans made by each Lender to such Borrower shall be
evidenced in the Register maintained by the Administrative Agent pursuant to
Section 12.16 and, subject to the provisions of Section 1.05(h), also be
evidenced (i) if A Term Loans, by a promissory note duly executed and delivered
by Silgan substantially in the form of Exhibit B-1 (each an "A Term Note" and,
collectively, the "A Term Notes"), (ii) if B Term Loans, by a promissory note
duly executed and delivered by Silgan substantially in the form of Exhibit B-2
(each a "B Term Note" and, collectively, the "B Term Notes"), (iii) if
Incremental Term Loans, by a promissory note duly executed and delivered by the
respective Incremental Term Loan Borrower substantially in the form of Exhibit
B-3 (each an "Incremental Term Note" and, collectively, the "Incremental Term
Notes"), (iv) if Revolving Loans, by promissory notes duly executed and
delivered by each Revolving Borrower substantially in the form of Exhibit B-4
(each a "Revolving Note" and, collectively, the "Revolving Notes") and (v) if
Swingline Loans, by promissory notes duly executed and delivered by each
Revolving Borrower substantially in the form of Exhibit B-5 (each a "Swingline
Note" and, collectively, the "Swingline Notes"), in each case with blanks
appropriately completed in conformity herewith.
(b) The A Term Note issued by Silgan to each Lender with an A Term
Loan Commitment or outstanding A Term Loans shall (i) be payable to such Lender
or its registered assigns and be dated the Initial Borrowing Date (or, if issued
after the Initial Borrowing Date, be dated the date of issuance thereof), (ii)
be in a stated principal amount (expressed in Dollars) equal to the principal
amount of the A Term Loans made by such Lender on the Initial Borrowing Date
(or, if issued after the Initial Borrowing Date, be in a stated principal amount
(expressed in Dollars) equal to the outstanding principal amount of A Term Loans
of such Lender at such time) and be payable in the outstanding principal amount
of A Term Loans evidenced thereby, (iii) mature on the A Term Loan Maturity
Date, (iv) bear interest as provided in the appropriate clause of Section 1.08
in respect of Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (v) be subject to voluntary prepayment as provided in Section
4.01, and mandatory repayment as provided in Section 4.02, and (vi) be entitled
to the benefits of this Agreement and the other Credit Documents.
(c) The B Term Note issued by Silgan to each Lender with a B Term Loan
Commitment or outstanding B Term Loans shall (i) be payable to such Lender or
its registered assigns and be dated the Initial Borrowing Date (or, if issued
after the Initial Borrowing Date, be dated the date of issuance thereof), (ii)
be in a stated principal amount (expressed in Dollars) equal to the principal
amount of the B Term Loans made by such Lender on the Initial Borrowing Date
(or, if issued after the Initial Borrowing Date, be in a stated principal amount
(expressed in Dollars) equal to the outstanding principal amount of B Term Loans
of such Lender at such time) and be payable in the principal amount of the B
Term Loans evidenced thereby, (iii) mature on the B Term Loan Maturity Date,
(iv) bear interest as provided in the appropriate clause of Section 1.08 in
respect of Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (v) be subject to voluntary prepayment as provided in Section 4.01, and
mandatory repayment as provided in Section 4.02, and (vi) be entitled to the
benefits of this Agreement and the other Credit Documents.
(d) The Incremental Term Note issued by each Incremental Term Loan
Borrower to each Lender with an Incremental Term Loan Commitment or outstanding
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Incremental Term Loans under a given Tranche shall (i) be payable to such Lender
or its registered assigns and be dated the date of issuance thereof, (ii) be in
a stated principal amount (expressed in the relevant Applicable Currency) equal
to the Incremental Term Loan Commitment of such Lender on the effective date of
the respective Incremental Term Loan Commitment Agreement (prior to the
incurrence of any Incremental Term Loans pursuant thereto on such date) (or, if
issued thereafter, be in a stated principal amount (expressed in the relevant
Applicable Currency) equal to the sum of the then remaining amount of the
Incremental Term Loan Commitment of such Lender plus the outstanding principal
amount of the Incremental Term Loans of such Lender on the date of issuance
thereof) and be payable in the relevant Applicable Currency in the outstanding
principal amount of the Incremental Term Loans evidenced thereby, (iii) mature
on the respective Incremental Term Loan Maturity Date, (iv) bear interest as
provided in the appropriate clause of Section 1.08 in respect of Base Rate Loans
and Euro Rate Loans, as the case may be, evidenced thereby, (v) be subject to
voluntary prepayment as provided in Section 4.01, and mandatory repayment as
provided in Section 4.02, and (vi) be entitled to the benefits of this Agreement
and the other Credit Documents.
(e) The Revolving Note issued by each Revolving Borrower to each
Lender with a Revolving Loan Commitment or outstanding Revolving Loans shall (i)
be payable to such Lender or its registered assigns and be dated the Initial
Borrowing Date (or, if issued after the Initial Borrowing Date, be dated the
date of issuance thereof), (ii) be in a stated principal amount (expressed in
Dollars) equal to the Revolving Loan Commitment of such Lender (or, if issued
after the termination thereof, be in a stated principal amount (expressed in
Dollars) equal to the outstanding Revolving Loans of such Lender at such time)
and be payable in the outstanding principal amount of the Revolving Loans to
such Revolving Borrower evidenced thereby, (iii) mature on the Revolving Loan
Maturity Date, (iv) bear interest as provided in the appropriate clause of
Section 1.08 in respect of Base Rate Loans and Eurodollar Loans, as the case may
be, evidenced thereby, (v) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02, and (vi) be
entitled to the benefits of this Agreement and the other Credit Documents.
(f) The Swingline Note issued by each Revolving Borrower to the
Swingline Lender shall (i) be payable to the Swingline Lender or its registered
assigns and be dated the Initial Borrowing Date, (ii) be in a stated principal
amount (expressed in Dollars) equal to the Maximum Swingline Amount and be
payable in the outstanding principal amount of Swingline Loans to such Revolving
Borrower evidenced thereby, (iii) mature on the Swingline Expiry Date, (iv) bear
interest as provided in the appropriate clause of Section 1.08 in the case of
the Base Rate Loans evidenced thereby, (v) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in Section 4.02,
and (vi) be entitled to the benefits of this Agreement and the other Credit
Documents.
(g) Except as otherwise provided in Section 1.05(h), each Lender will
note on its internal records the amount of each Loan made by it and each payment
and conversion in respect thereof and will prior to any transfer of any of its
Notes endorse on the reverse side thereof the outstanding principal amount of
Loans evidenced thereby. Failure to make any such notation or any error in such
notation shall not affect the respective Borrower's obligations in respect of
such Loans.
-9-
(h) Notwithstanding anything to the contrary contained above in this
Section 1.05 or elsewhere in this Agreement, Notes shall only be delivered to
Lenders which at any time specifically request the delivery of such Notes. No
failure of any Lender to request or obtain a Note evidencing its Loans to any
Borrower shall affect or in any manner impair the obligations of any Borrower to
pay the Loans (and all related Obligations) incurred by it which would otherwise
be evidenced thereby in accordance with the requirements of this Agreement, and
shall not in any way affect the security or guaranties therefor provided
pursuant to the various Credit Documents. Any Lender which does not have a Note
evidencing its outstanding Loans shall in no event be required to make the
notations otherwise described in preceding clause (g). At any time when any
Lender requests the delivery of a Note to evidence any of its Loans, the
respective Borrower shall promptly execute and deliver to the respective Lender
the requested Note in the appropriate amount or amounts to evidence such Loans.
1.06 Conversions. Each Borrower shall have the option to convert, on
any Business Day occurring on or after the Initial Borrowing Date, all or a
portion equal to at least the Minimum Borrowing Amount of the outstanding
principal amount of Dollar Loans made to such Borrower pursuant to one or more
Borrowings (so long as of the same Tranche) of one or more Types of Dollar Loans
into a Borrowing (of the same Tranche) of another Type of Dollar Loan, provided
that (i) except as otherwise provided in Section 1.10(b), Eurodollar Loans may
be converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Loans being converted and no such partial conversion of
Eurodollar Loans shall reduce the outstanding principal amount of such
Eurodollar Loans made pursuant to a single Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) unless the Required Lenders otherwise
agree, Base Rate Loans may only be converted into Eurodollar Loans if no Default
or Event of Default is in existence on the date of the conversion, (iii) no
conversion pursuant to this Section 1.06 shall result in a greater number of
Borrowings of Eurodollar Loans than is permitted under Section 1.02 and (iv)
Swingline Loans may not be converted pursuant to this Section 1.06. Each
conversion pursuant to this Section 1.06 shall be effected by the respective
Borrower by giving the Administrative Agent at the applicable Notice Office
prior to 1:00 P.M. (Local Time) at least three Business Days' prior notice (each
a "Notice of Conversion/Continuation") in the form of Exhibit A-2, appropriately
completed to specify the Dollar Loans to be so converted, the Borrowing(s)
pursuant to which such Dollar Loans were made and, if to be converted into
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Lender prompt notice of any such proposed
conversion affecting any of its Dollar Loans. Upon any such conversion the
proceeds thereof will be applied directly on the day of such conversion to
prepay the outstanding principal amount of the Dollar Loans being converted.
1.07 Pro Rata Borrowings. All Borrowings of A Term Loans, B Term
Loans, Incremental Term Loans under a given Tranche and Revolving Loans shall be
incurred from the Lenders pro rata on the basis of their A Term Loan
Commitments, B Term Loan Commitments, Incremental Term Loan Commitments for such
Tranche or Revolving Loan Commitments, as the case may be; provided that all
Borrowings of Revolving Loans made pursuant to a Mandatory Borrowing shall be
incurred from the Lenders pro rata on the basis of their respective RL
Percentages. It is understood that no Lender shall be responsible for any
default by any other Lender of its obligation to make Loans hereunder and that
each Lender shall be obligated to
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make the Loans provided to be made by it hereunder, regardless of the failure of
any other Lender or Lenders to make its or their Loans hereunder.
1.08 Interest. (a) Each Borrower agrees to pay interest in respect of
the unpaid principal amount of each Base Rate Loan (including with respect to
any Euro Rate Loan converted into a Base Rate Loan pursuant to Section 1.15)
made to such Borrower hereunder from the date of Borrowing thereof (or, in the
circumstances described in the immediately preceding parenthetical, from the
date of conversion of the respective Euro Rate Loan into a Base Rate Loan) until
the earlier of (i) the maturity thereof (whether by acceleration or otherwise)
and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan pursuant to
Section 1.06, at a rate per annum which shall be equal to the sum of the
Applicable Margin plus the Base Rate each as in effect from time to time.
(b) Each Borrower agrees to pay interest in respect of the unpaid
principal amount of each Euro Rate Loan made to such Borrower from the date of
Borrowing thereof until the earlier of (i) the maturity thereof (whether by
acceleration or otherwise) and (ii) (A) in the case of Dollar Loans, the
conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06,
1.09 or 1.10, as applicable, or (B) in the case of an Alternate Currency
Incremental Term Loan, the conversion of such Alternate Currency Incremental
Term Loan to a Base Rate Loan pursuant to Section 1.15, at a rate per annum
which shall, during each Interest Period applicable thereto, be equal to the sum
of the Applicable Margin as in effect from time to time during such Interest
Period plus the applicable Euro Rate for such Interest Period plus, except in
the case of Eurodollar Loans, the Associated Costs Rate, if any.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
or under any other Credit Document shall, in each case, bear interest at a rate
per annum (i) in the case of overdue principal of, and interest or other overdue
amounts owing with respect to, Alternate Currency Incremental Term Loans under a
given Tranche, equal to 2% in excess of the rate otherwise applicable to such
Tranche of Alternate Currency Incremental Term Loans from time to time, (ii) in
the case of overdue principal of, and interest on, Dollar Loans, equal to the
greater of (x) the rate which is 2% in excess of the rate otherwise applicable
to Base Rate Loans maintained pursuant to the respective Tranche from time to
time and (y) the rate which is 2% in excess of the rate then borne by such
Dollar Loans, and (iii) in the case of all other overdue amounts payable under
this Agreement or under any other Credit Document, equal to the rate which is 2%
in excess of the rate applicable to Revolving Loans maintained as Base Rate
Loans from time to time. Interest that accrues under this Section 1.08(c) shall
be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, (x) quarterly in arrears on each Quarterly
Payment Date, (y) on the date of any repayment or prepayment in full of all
outstanding Base Rate Loans of any Tranche, and (z) at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand, and (ii) in
respect of each Euro Rate Loan, (x) on the last day of each Interest Period
applicable thereto and, in the case of an Interest Period in excess of three
months, on each date occurring at three month intervals after the first day of
such Interest Period, and (y) on the date of any repayment or prepayment (on the
amount repaid or prepaid), at maturity (whether by acceleration or otherwise)
and, after such maturity, on demand.
-11-
(e) Upon each Interest Determination Date, the Administrative Agent
shall determine the interest rate for the Euro Rate Loans for which such
determination is being made and shall promptly notify the respective Borrower
and the respective Lenders thereof. Each such determination shall, absent
manifest error, be final and conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time the respective Borrower gives any
Notice of Borrowing or Notice of Conversion/Continuation in respect of the
making of, or conversion into, a Borrowing of Euro Rate Loans (in the case of
the initial Interest Period applicable thereto) or prior to 1:00 P.M. (Local
Time) on the third Business Day prior to the expiration of an Interest Period
applicable to such a Borrowing of Euro Rate Loans (in the case of subsequent
Interest Periods), such Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the interest period (each an "Interest
Period") applicable to such Borrowing, which Interest Period shall, at the
option of such Borrower, (x) be either a one, two, three, six or, to the extent
available to all Lenders with obligations in respect of the respective Tranche
of Loans, twelve-month period, and (y) in the case of Alternate Currency
Incremental Term Loans under a given Tranche, such other period of less than one
month to the extent approved by the Administrative Agent and otherwise available
to all Lenders with obligations in respect of such Tranche, provided that (in
each case):
(i) all Euro Rate Loans comprising a Borrowing shall at all times have
the same Interest Period;
(ii) the initial Interest Period for any Euro Rate Loan shall commence
on the date of Borrowing of such Euro Rate Loan (including, in the case of
Eurodollar Loans, the date of any conversion thereto from a Borrowing of
Base Rate Loans) and each Interest Period occurring thereafter in respect
of such Eurodollar Loan shall commence on the day on which the next
preceding Interest Period applicable thereto expires;
(iii) if any Interest Period relating to a Euro Rate Loan begins on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall end on
the last Business Day of such calendar month;
(iv) if any Interest Period for a Euro Rate Loan would otherwise
expire on a day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; provided, however, that if any
Interest Period for a Euro Rate Loan would otherwise expire on a day which
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the
next preceding Business Day;
(v) unless the Required Lenders otherwise agree, no Interest Period
for a Eurodollar Loan may be selected at any time when a Default or an
Event of Default is then in existence;
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(vi) unless the Required Lenders otherwise agree, no Interest Period,
other than a one month or less period, for an Alternate Currency
Incremental Term Loan may be selected at any time when a Default or an
Event of Default is then in existence;
(vii) except for Alternate Currency Incremental Term Loans, no
Interest Period in respect of any Borrowing of any Tranche of Term Loans
shall be selected which extends beyond any date upon which a mandatory
repayment of such Tranche of Term Loans will be required to be made under
Section 4.02(b), 4.02(c) or 4.02(d), as the case may be, if the aggregate
principal amount of such Tranche of Term Loans which have Interest Periods
which will expire after such date will be in excess of the aggregate
principal amount of such Tranche of Term Loans then outstanding less the
aggregate amount of such required repayment; and
(viii) no Interest Period in respect of any Borrowing of any Tranche
of Loans shall be selected which extends beyond the respective Maturity
Date for such Tranche of Loans.
If, by 1:00 P.M. (Local Time) on the third Business Day prior to the
expiration of any Interest Period applicable to a Borrowing of Euro Rate Loans,
the relevant Borrower has failed to elect, or is not permitted to elect, a new
Interest Period to be applicable to such Euro Rate Loans as provided above, such
Borrower shall be deemed to have elected (x) in the case of Eurodollar Loans, to
convert such Eurodollar Loans into Base Rate Loans, and (y) in the case of
Alternate Currency Incremental Term Loans, to select a one month Interest Period
for such Alternate Currency Incremental Term Loans, in each case, with such new
Interest Period to be effective as of the expiration date of such current
Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any
Lender shall have determined (which determination shall, absent manifest error,
be final and conclusive and binding upon all parties hereto but, with respect to
clauses (i) and (iv) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes
arising after the Effective Date affecting the applicable interbank market,
adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of Euro Rate;
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Euro Rate Loans (other than in respect of Taxes to the extent covered
under Section 4.04(a)) because of any change since the Effective Date in
any applicable law or governmental rule, regulation, order, guideline or
request (whether or not having the force of law) or in the interpretation
or administration thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request, such as, for
example, but not limited to: (A) a change in the basis of taxation of
payment to any Lender of the principal of or interest on the Loans or any
other amounts payable hereunder (except for changes in the rate of tax on,
or determined by reference to, the net income or net profits of such Lender
pursuant to the laws of the jurisdiction in which it is organized or in
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which its principal office or applicable lending office is located or any
subdivision thereof or therein), or (B) a change in official reserve
requirements, but, in all events, excluding (I) reserves required under
Regulation D to the extent included in the computation of the respective
Euro Rate and (II) amounts included in the computation of the Associated
Costs Rate;
(iii) at any time, that the making or continuance of any Euro Rate
Loan has been made (x) unlawful by any law or governmental rule, regulation
or order, (y) impossible by compliance by any Lender in good faith with any
governmental request (whether or not having the force of law) or (z)
impracticable as a result of a contingency occurring after the Effective
Date which materially and adversely affects the applicable interbank
market; or
(iv) at any time that any Alternate Currency is not available in
sufficient amounts, as determined in good faith by the Administrative
Agent;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) or (iv) above) shall on such date give notice (by telephone
confirmed in writing) to the respective Borrowers and, except in the case of
clauses (i) and (iv) above, to the Administrative Agent of such determination
(which notice the Administrative Agent shall promptly transmit to each of the
other Lenders). Thereafter (w) in the case of clause (i) above, (A) in the event
that Eurodollar Loans are so affected, Eurodollar Loans shall no longer be
available until such time as the Administrative Agent notifies the respective
Borrowers and the respective Lenders that the circumstances giving rise to such
notice by the Administrative Agent no longer exist, and any Notice of Borrowing
or Notice of Conversion/Continuation given by any Borrower with respect to
Eurodollar Loans which have not yet been incurred (including by way of
conversion) shall be deemed rescinded by such Borrower, and (B) in the event
that Alternate Currency Incremental Term Loans are so affected, the applicable
Euro Rate shall be determined (I) in the case of Alternate Currency Incremental
Term Loans denominated in a Primary Alternate Currency, on the basis provided in
the proviso of the definition of Primary Alternate Currency LIBOR, and (II) in
the case of Alternate Currency Incremental Term Loans denominated in an Other
Alternate Currency, by the Administrative Agent as the all-in-cost of funds for
the Administrative Agent to fund the respective Alternate Currency Incremental
Term Loan, (x) in the case of clause (ii) above, the respective Borrower agrees,
subject to the provisions of Section 12.18 (to the extent applicable), to pay to
such Lender, upon written demand therefor, such additional amounts (in the form
of an increased rate of, or a different method of calculating, interest or
otherwise as such Lender in its sole discretion shall determine) as shall be
required to compensate such Lender for such increased costs or reductions in
amounts received or receivable hereunder a written notice in reasonable detail
as to the additional amounts owed to such Lender, showing the basis for the
calculation thereof, submitted to the respective Borrower by such Lender in good
faith shall, absent manifest error, be final and conclusive and binding upon all
the parties hereto), (y) in the case of clause (iii) above, take one of the
actions specified in Section 1.10(b) as promptly as possible and, in any event,
within the time period required by law, and (z) in the case of clause (iv)
above, Alternate Currency Incremental Term Loans denominated in the affected
Currency (other than any such Alternate Currency Incremental Term Loans which
have theretofore been funded) shall no longer be available until such time as
the Administrative Agent notifies the respective Incremental Term Loan Borrower
and the Lenders of the relevant Tranche
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that the circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing given by the respective Incremental
Term Loan Borrower with respect to such Alternate Currency Incremental Term
Loans which have not yet been incurred shall be deemed rescinded by the
respective Incremental Term Loan Borrower.
(b) At any time that any Euro Rate Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower
may (and in the case of a Euro Rate Loan affected pursuant to Section
1.10(a)(iii) the respective Borrower shall) either (i) if the affected Euro Rate
Loan is then being made initially or pursuant to a conversion, cancel such
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) thereof on the same date that such Borrower was notified by the
affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or
(iii), or (ii) if the affected Euro Rate Loan is then outstanding, upon at least
three Business Days' written notice to the Administrative Agent, (A) in the case
of any Eurodollar Loan, require the affected Lender to convert each such
Eurodollar Loan into a Base Rate Loan, and (B) in the case of any Alternate
Currency Incremental Term Loan, require the applicable Euro Rate to be
determined on the basis provided in clause (w)(B) of the second sentence of
Section 1.10(a); provided that if more than one Lender is affected at any time,
then all affected Lenders must be treated the same pursuant to this Section
1.10(b).
(c) If at any time after the Effective Date any Lender determines that
the introduction of or any change in any applicable law or governmental rule,
regulation, order, guideline, directive or request (whether or not having the
force of law and including, without limitation, those announced or published
prior to the Effective Date) concerning capital adequacy, or any change in
interpretation or administration thereof by the NAIC or any governmental
authority, central bank or comparable agency, will have the effect of increasing
the amount of capital required or expected to be maintained by such Lender or
any corporation controlling such Lender based on the existence of such Lender's
Commitments hereunder or its obligations hereunder, then the respective Borrower
or Borrowers agree, subject to the provisions of Section 12.18 (to the extent
applicable), to pay to any such Lender, upon such Lender's written demand
therefor, such additional amounts as shall be required to compensate such Lender
or such other corporation for the increased cost to such Lender or such other
corporation or the reduction in the rate of return to such Lender or such other
corporation as a result of such increase of capital. In determining such
additional amounts, each Lender will act reasonably and in good faith and will
use averaging and attribution methods which are reasonable; provided that such
Lender's determination of compensation owing under this Section 1.10(c) shall,
absent manifest error, be final and conclusive and binding on all parties
hereto. Each Lender, upon determining that any additional amounts will be
payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the respective Borrowers, which notice shall show in reasonable
detail the basis for calculation of such additional amounts, although the
failure to give any such notice shall not release or diminish any of the
respective Borrowers' obligations to pay additional amounts pursuant to this
Section 1.10(c).
(d) In the event that any Lender shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto) at any time after providing an Incremental Term Loan
Commitment hereunder that such Lender is required to maintain reserves
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves required by applicable law) which have been established by any
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Federal, state, local or foreign court or governmental agency, authority,
instrumentality or regulatory body with jurisdiction over such Lender (including
any branch, Affiliate or funding office thereof) in respect of any Alternate
Currency Incremental Term Loans or any category of liabilities which includes
deposits by reference to which the interest rate on any Alternate Currency
Incremental Term Loan is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Lender to
non-United States residents in each case by reason of any change since that time
in any applicable law or governmental rule, regulation order, guideline or
request (whether or not having the force of law) or any change in the
interpretation or administration thereof by the NAIC or any governmental
authority, central bank or comparable agency, then, unless such reserves already
are included in the calculation of the interest rate applicable to such
Alternate Currency Incremental Term Loans or in Section 1.10(a)(ii), such Lender
shall promptly notify the applicable Borrower in writing specifying the
additional amounts required to indemnify such Lender against the cost of
maintaining such reserves (such written notice to provide in reasonable detail a
computation of such additional amounts) and such Borrower agrees, subject to the
provisions of Section 12.18 (to the extent applicable), to pay to such Lender
such specified amounts on written demand therefor by such Lender.
1.11 Compensation. Each Borrower agrees, subject to the provisions of
Section 12.18 (to the extent applicable), to compensate each Lender, upon such
Lender's written request (which request shall be made in good faith and shall
set forth in reasonable detail the basis for requesting such compensation), for
all losses, expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by reason of the liquidation or reemployment of
deposits or other funds required by such Lender to fund its Euro Rate Loans)
which such Lender may sustain: (i) if for any reason (other than a default by
such Lender or the Administrative Agent) a Borrowing of, or conversion from or
into, Euro Rate Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion/Continuation given by such Borrower (whether
or not withdrawn by the respective Borrower or deemed withdrawn pursuant to
Section 1.10(a)); (ii) if any prepayment or repayment (including any prepayment
or repayment made pursuant to Section 4.01 or 4.02 or as a result of an
acceleration of Loans pursuant to Section 9) or conversion of any of such
Borrower's Euro Rate Loans occurs on a date which is not the last day of an
Interest Period with respect thereto; (iii) if any prepayment of any of such
Borrower's Euro Rate Loans is not made on any date specified in a notice of
prepayment given by such Borrower; or (iv) as a consequence of (x) any other
default by such Borrower to repay its Loans when required by the terms of this
Agreement or the respective Notes or (y) an election made, or action required to
be taken, by such Borrower pursuant to Section 1.10(b).
1.12 Change of Applicable Lending Office. Each Lender agrees that,
upon the occurrence of any event giving rise to the operation of Section
1.l0(a)(ii) or (iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect
to such Lender, it will, if requested by the applicable Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Loans or Letters of Credit affected by such
event; provided that such designation is made on such terms that such Lender and
its lending office suffer no economic, legal or regulatory disadvantage, with
the object of avoiding the consequence of the event giving rise to the operation
of any such Section. Nothing in this Section 1.12 shall affect or postpone any
of the obligations of any Borrower or the right of any Lender provided in
Sections 1.10, 2.06 and 4.04.
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1.13 Replacement of Lenders. (x) Upon the occurrence of any event
giving rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c),
Section 2.06 or Section 4.04 with respect to any Lender which results in such
Lender charging to any Borrower increased costs in excess of those being
generally charged by the other Lenders or (y) if any Lender (A) becomes a
Defaulting Lender or otherwise defaults in its obligations to make Loans or fund
Unpaid Drawings or (B) refuses to consent to a proposed change, waiver,
discharge or termination with respect to any of the matters set forth in clauses
(i) through (vii), inclusive, of the first proviso in Section 12.12(a) which has
been approved by the Required Lenders, the Borrowers shall have the right
(subject to the requirements of Section 12.12(b)), if no Default or Event of
Default will exist immediately after giving effect to the respective
replacement, to replace such Lender (the "Replaced Lender") with one or more
other Eligible Transferee or Transferees (collectively, the "Replacement
Lender") none of whom shall constitute a Defaulting Lender at the time of such
replacement and each of whom shall be reasonably acceptable to the
Administrative Agent, provided that:
(i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Lender shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 12.04(b) (and with all fees payable pursuant
to said Section 12.04(b) to be paid by the Replacement Lender) pursuant to
which the Replacement Lender shall acquire all of the Commitments and
outstanding Loans (or, in the case of the replacement of only (a) the
Revolving Loan Commitment, the Revolving Loan Commitment and outstanding
Revolving Loans and participations in Letters of Credit, (b) A Term Loans,
the outstanding A Term Loans, (c) B Term Loans, the outstanding B Term
Loans and (d) Incremental Term Loans under a given Tranche, the then
remaining Incremental Term Loan Commitment and the outstanding Incremental
Term Loans under such Tranche) of, and in each case (except for the
replacement of only outstanding Term Loans of the respective Lender)
participations in Letters of Credit by, the Replaced Lender and, in
connection therewith, shall pay to (x) the Replaced Lender in respect
thereof an amount equal to the sum of (A) an amount equal to the principal
of, and all accrued interest on, all outstanding Loans (or, in the case of
the replacement of only (I) the Revolving Loan Commitment, the outstanding
Revolving Loans, (II) the A Term Loans, the outstanding A Term Loans, (III)
the B Term Loans, the outstanding B Term Loans, or (IV) the Incremental
Term Loan Commitments and Incremental Term Loans under a given Tranche, the
outstanding Incremental Term Loans of such Tranche) of the Replaced Lender,
(B) except in the case of the replacement of only outstanding Term Loans of
a Replaced Lender, an amount equal to all Unpaid Drawings that have been
funded by (and not reimbursed to) such Replaced Lender, together with all
then unpaid interest with respect thereto at such time and (C) an amount
equal to all accrued, but theretofore unpaid, Fees owing to the Replaced
Lender (but only with respect to the relevant Tranche, in the case of the
replacement of less than all Tranches of Loans then held by the respective
Replaced Lender) pursuant to Section 3.01, (y) except in the case of the
replacement of only outstanding Term Loans of a Replaced Lender, each
Issuing Lender an amount equal to such Replaced Lender's RL Percentage of
any Unpaid Drawing with respect to a Letter of Credit issued by such
Issuing Lender (which at such time remains an Unpaid Drawing) and (z) in
the case of any replacement of Revolving Loan Commitments, the Swingline
Lender an amount equal to such Replaced Lender's
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RL Percentage of any Mandatory Borrowing to the extent such amount was not
theretofore funded by such Replaced Lender; and
(ii) all obligations (including, without limitation, all obligations
under Section 1.11) of the respective Borrowers then owing to the Replaced
Lender (other than those specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full to such Replaced Lender concurrently
with such replacement.
Upon the execution of the respective Assignment and Assumption Agreements, the
payment of all amounts referred to in clauses (i) and (ii) above and, if so
requested by the Replacement Lender, delivery to the Replacement Lender of the
appropriate Note or Notes executed by the appropriate Borrower or Borrowers, the
Replacement Lender shall become a Lender hereunder and the Replaced Lender shall
cease to constitute a Lender hereunder, except with respect to indemnification
provisions under this Agreement (including, without limitation, Sections 1.10,
1.11, 2.06, 4.04, 12.01 and 12.06), which shall survive as to such Replaced
Lender.
1.14 Incremental Term Loan Commitments. (a) Silgan shall have the
right, in consultation and coordination with the Administrative Agent as to all
of the matters set forth below in this Section 1.14, but without requiring the
consent of any of the Lenders, to request at any time and from time to time
after the Initial Borrowing Date and prior to the Incremental Term Loan
Commitment Termination Date for the respective Tranche of Incremental Term Loans
that one or more Lenders (and/or one or more other Persons which are Eligible
Transferees and which will become Lenders) provide to the Incremental Term Loan
Borrower for the respective Tranche of Incremental Term Loan Commitments under
such Tranche of Incremental Term Loans as designated in the respective
Incremental Term Loan Commitment Agreement and, subject to the terms and
conditions contained in this Agreement and in the respective Incremental Term
Loan Commitment Agreement, make Incremental Term Loans pursuant thereto, so long
as (i) no Default or Event of Default then exists or would result therefrom and
all of the representations and warranties contained herein and in the other
Credit Documents are true and correct in all material respects at such time
(unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date), (ii) Silgan and its Subsidiaries will be in
compliance with Sections 8.08 and 8.09 on a Pro Forma Basis after giving effect
to each incurrence of Incremental Term Loans and the application of the proceeds
therefrom, and (iii) at the time of each incurrence of Incremental Term Loans,
Silgan shall have delivered to the Administrative Agent a certificate of its
chief financial officer or treasurer certifying which provisions of the 9%
Senior Subordinated Debenture Indenture and any other Permitted Subordinated
Indebtedness Document that the respective incurrence of Incremental Term Loans
will be justified under and demonstrating in reasonable detail that the full
amount of such Incremental Term Loans may be incurred in accordance with, and
will not violate the provisions of, Section 4.03 of the 9% Senior Subordinated
Debenture Indenture and any comparable provision in any other Permitted
Subordinated Indebtedness Document.
Furthermore, it is understood and agreed that (i) no Lender shall be
obligated to provide an Incremental Term Loan Commitment, and until such time,
if any, as such Lender has agreed in its sole discretion to provide an
Incremental Term Loan Commitment and executed and
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delivered to Silgan, the respective Foreign Incremental Term Loan Borrower (if
applicable) and the Administrative Agent an Incremental Term Loan Commitment
Agreement as provided in clause (b) of this Section 1.14, such Lender shall not
be obligated to fund any Incremental Term Loans, (ii) any Lender (including any
Eligible Transferee who will become a Lender) may so provide an Incremental Term
Loan Commitment without the consent of the Administrative Agent or any other
Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be made
available to a single Incremental Term Loan Borrower and shall be denominated in
a single Currency which, in the case of an Other Alternate Currency, shall be
approved by the Administrative Agent, (iv) the amount of each Tranche of
Incremental Term Loan Commitments shall be in a minimum aggregate amount for all
Lenders which provide an Incremental Term Loan Commitment under such Tranche of
Incremental Term Loans (including Eligible Transferees who will become Lenders)
of at least $30,000,000 (or the Dollar Equivalent thereof as determined at the
time that Incremental Term Loan Commitments are obtained), (v) the aggregate
amount of all Incremental Term Loan Commitments permitted to be provided
pursuant to this Section 1.14 shall not exceed $275,000,000 (or the Dollar
Equivalent thereof as determined at the time that such Incremental Term Loan
Commitments are obtained) (it being understood and agreed, however, to the
extent that any such Incremental Term Loan Commitments are obtained but later
expire, terminate or are voluntarily reduced in each case without being
utilized, the amount of such Incremental Term Loan Commitments so expired,
terminated or voluntarily reduced may again be available to be obtained under
this Section 1.14 within the limits set forth herein), (vi) the up-front fees
and, if applicable, any unutilized commitment fees and/or other fees, payable in
respect of each Incremental Term Loan Commitment shall be separately agreed to
by Silgan, the respective Foreign Incremental Term Loan Borrower (if applicable)
and each Incremental Term Loan Lender (and with all such fees to be disclosed by
Silgan to the Administrative Agent), (vii) each Tranche of Incremental Term
Loans shall have (I) an Incremental Term Loan Maturity Date of no earlier than
the B Term Loan Maturity Date and (II) a Weighted Average Life to Maturity of no
less than the Weighted Average Life to Maturity as then in effect for the B Term
Loans, (viii) the proceeds of all Incremental Term Loans shall be used only for
the purposes permitted by Section 6.10, (ix) any Incremental Term Loans being
incurred under any single Incremental Term Loan Commitment Agreement only shall
be incurred on the date of the consummation of a Permitted Acquisition (as well
as on the date on which any Indebtedness assumed as part of such Permitted
Acquisition is to be refinanced), the date of a Permitted Subordinated Debt
Repurchase or the date on which Revolving Loans are being prepaid with the
proceeds of such Incremental Term Loans, as the case may be, (x) each
Incremental Term Loan Commitment Agreement shall specifically designate, with
the approval of the Administrative Agent, the Tranche of the Incremental Term
Loan Commitments being provided thereunder (which Tranche shall be a new Tranche
(i.e., not the same as any existing Tranche of Incremental Term Loans,
Incremental Term Loan Commitments or other Term Loans) unless the requirements
of Section 1.14(c) are satisfied), (xi) all Incremental Term Loans (and all
interest, fees and other amounts payable thereon) (including, without
limitation, Incremental Term Loans incurred by a Foreign Incremental Term Loan
Borrower) shall be Obligations under this Agreement and the other applicable
Credit Documents and shall be secured by the US Collateral, and guaranteed under
the US Borrowers/Subsidiaries Guaranty, on a pari passu basis with all other
Term Loans, (xii) all Incremental Term Loans (and all interest, fees and other
amounts payable thereon) incurred by a Foreign Incremental Term Loan Borrower
also shall be secured and guaranteed to the extent required by Section 1.14(d)
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and (xiii) each Lender (including any Eligible Transferee who will become a
Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an
Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of
the relevant conditions set forth in this Agreement, make Incremental Term Loans
under the Tranche specified in such Incremental Term Loan Commitment Agreement
as provided in Section 1.01(c) and such Loans shall thereafter be deemed to be
Incremental Term Loans under such Tranche for all purposes of this Agreement and
the other applicable Credit Documents.
(b) At the time of the provision of Incremental Term Loan Commitments
pursuant to this Section 1.14, Silgan, the respective Foreign Incremental Term
Loan Borrower (if applicable), each other Credit Party, the Administrative Agent
and each such Lender or other Eligible Transferee which agrees to provide an
Incremental Term Loan Commitment (each, an "Incremental Term Loan Lender") shall
execute and deliver to Silgan, the respective Foreign Incremental Term Loan
Borrower (if applicable) and the Administrative Agent an Incremental Term Loan
Commitment Agreement, appropriately completed (with the effectiveness of the
Incremental Term Loan Commitment provided therein to occur on the date set forth
in such Incremental Term Loan Commitment Agreement, which date in any event
shall be no earlier than the date on which all fees required to be paid in
connection therewith at the time of such effectiveness shall have been paid, all
conditions set forth in this Section 1.14 shall have been satisfied and all
other conditions precedent that may be set forth in such Incremental Term Loan
Commitment Agreement shall have been satisfied). In addition, (x) on or prior to
the effective date of the respective Incremental Term Loan Commitment Agreement,
(I) Silgan and its Subsidiaries shall have delivered such technical amendments,
modifications and/or supplements to the respective Security Documents as are
reasonably requested by the Administrative Agent to ensure that the additional
Obligations to be incurred pursuant to the Incremental Term Loan Commitments are
secured by, and entitled to the benefits of, the Security Documents (to the
extent required by the terms of this Agreement), and each of the Lenders hereby
agrees to, and authorizes the Collateral Agent to enter into, any such technical
amendments, modifications and/or supplements, (II) the Administrative Agent
shall have received from the president, any vice president, the chief financial
officer or the treasurer of Silgan a certificate certifying that the conditions
set forth in clause (i) of the first sentence of Section 1.14(a) have been
satisfied, (III) Silgan shall have delivered to the Administrative Agent an
opinion or opinions, in form and substance reasonably satisfactory to the
Administrative Agent, from counsel to the Credit Parties reasonably satisfactory
to the Administrative Agent and dated such date, covering such of the matters
set forth in the opinions of counsel delivered to the Administrative Agent on
the Initial Borrowing Date pursuant to Section 5.01(c) as may be reasonably
requested by the Administrative Agent, and such other matters incident to the
transactions contemplated thereby as the Administrative Agent may reasonably
request, (IV) Silgan and the other Credit Parties shall have delivered to the
Administrative Agent such other officers' certificates, resolutions and evidence
of good standing as the Administrative Agent shall reasonably request, (V) to
the extent requested by such Incremental Term Loan Lenders, Incremental Term
Notes will be issued, at Silgan's expense, to such Incremental Term Loan
Lenders, to be in conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect the Incremental Term
Loan Commitments and outstanding Incremental Term Loans made by such Incremental
Term Loan Lenders, and (VI) if the respective Incremental Term Loan Borrower is
a Wholly-Owned Foreign Subsidiary of Silgan, the provisions of Section 1.14(d)
shall have been satisfied to the extent provided therein, and (y) on or prior to
each Incremental Term Loan
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Borrowing Date, in addition to the applicable conditions precedent set forth in
Section 5.02, the Administrative Agent shall have received from the chief
financial officer or treasurer of Silgan a certificate certifying that the
conditions set forth in clauses (ii) and (iii) of the first sentence of Section
1.14(a) have been satisfied (together with calculations demonstrating same
(where applicable) in reasonable detail and copies of the certificate set forth
in such clause (ii)). The Administrative Agent shall promptly notify each Lender
as to the effectiveness of each Incremental Term Loan Commitment Agreement and,
at such time, Schedule I shall be deemed modified to reflect the Incremental
Term Loan Commitments of such Incremental Term Loan Lenders.
(c) Notwithstanding anything to the contrary contained above in this
Section 1.14, the Incremental Term Loan Commitments provided by an Incremental
Term Loan Lender or Incremental Term Loan Lenders, as the case may be, pursuant
to each Incremental Term Loan Commitment Agreement shall constitute a new
Tranche, which shall be separate and distinct from the existing Tranches
pursuant to this Agreement (with a designation which may be made in letters
(i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e.,
▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, etc.), provided that, with the consent of the
Administrative Agent, the parties to a given Incremental Term Loan Commitment
Agreement may specify therein that the respective Incremental Term Loans made
pursuant thereto shall constitute part of, and be added to, an existing Tranche
of Incremental Term Loans or to the outstanding Tranche of B Term Loans, in
either case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental
Term Loan Commitment Agreement shall have the same Borrower, shall be
denominated in the same Currency, shall have the same Maturity Date and
shall have the same Applicable Margins as the Tranche of Term Loans to
which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Term Loan
Scheduled Repayment dates as then remain with respect to the Tranche to
which such new Incremental Term Loans are being added (with the amount of
each Term Loan Scheduled Repayment applicable to such new Incremental Term
Loans to be the same (on a proportionate basis) as is theretofore
applicable to the Tranche to which such new Incremental Term Loans are
being added, thereby increasing the amount of each then remaining Term Loan
Scheduled Repayment of the respective Tranche proportionately; and
(iii) on the date of the making of such new Incremental Term Loans,
and notwithstanding anything to the contrary set forth in Section 1.09,
such new Incremental Term Loans shall be added to (and form part of) each
Borrowing of outstanding Term Loans of the respective Tranche on a pro rata
basis (based on the relative sizes of the various outstanding Borrowings),
so that each Lender will participate proportionately in each then
outstanding Borrowing of Term Loans of the respective Tranche, and so that
the existing Lenders with respect to such Tranche continue to have the same
participation (by amount) in each Borrowing as they had before the making
of the new Term Loans of such Tranche.
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To the extent the provisions of preceding clause (iii) require that
Lenders making new Incremental Term Loans add such Incremental Term Loans to the
then outstanding Borrowings of Euro Rate Loans of such Tranche, it is
acknowledged that the effect thereof may result in such new Incremental Term
Loans having short Interest Periods (i.e., an Interest Period that began during
an Interest Period then applicable to outstanding Euro Rate Loans of such
Tranche and which will end on the last day of such Interest Period). In
connection therewith, the respective Incremental Term Loan Borrower may agree,
in the respective Incremental Term Loan Commitment Agreement, to compensate the
Lenders making the new Incremental Term Loans of the respective Tranche for
funding Euro Rate Loans during an existing Interest Period on such basis as may
be agreed by such Incremental Term Loan Borrower and the respective Lender or
Lenders.
(d) Silgan may, if consented to by the Administrative Agent and the
Lenders under the relevant Tranche of Incremental Term Loans, designate that the
Incremental Term Loan Borrower under such Tranche be a Wholly-Owned Foreign
Subsidiary of Silgan, provided that (i) the proceeds of such Incremental Term
Loans only shall be used to finance a Permitted Acquisition to be made by such
Foreign Incremental Term Loan Borrower or any other member of such Foreign
Incremental Term Loan Borrower's Related Foreign Company Group (and to pay the
fees and expenses related thereto) and to refinance any Indebtedness assumed as
part of any such Permitted Acquisition (including all accrued and unpaid
interest thereon, any premium associated therewith and the fees and expenses
related thereto), (ii) if and to the extent permitted by applicable law (after
complying with any "whitewash" and other applicable proceedings), all
Obligations of such Foreign Incremental Term Loan Borrower under the Credit
Documents shall be guaranteed, pursuant to a guaranty reasonably satisfactory in
form and substance to the Administrative Agent (each a "Related Foreign Company
Guaranty"), by each member of the Related Foreign Company Group of such Foreign
Incremental Term Loan Borrower (each such member providing such guaranty, a
"Related Foreign Company Guarantor") as well as by any other existing Foreign
Credit Party and (iii) if and to the extent permitted by applicable law (after
complying with any "whitewash" and other applicable proceedings), all
Obligations of such Foreign Incremental Term Loan Borrower under the Credit
Documents and all Obligations of the Related Foreign Company Guarantors, as well
as all other Foreign Credit Parties, under the Related Foreign Company
Guarantees shall be secured, pursuant to documentation reasonably satisfactory
in form and substance to the Administrative Agent (the "Foreign Security
Documents"), by a first priority perfected security interest in the assets of
such Person (including, without limitation, real property, personal property
(whether tangible or intangible) and capital stock and other equity interests),
in each case (in the case of preceding clauses (ii) and (iii)) subject to such
exceptions as may be reasonably acceptable to the Administrative Agent.
1.15 Special Sharing and Conversion Provisions Applicable to Lenders
Upon the Occurrence of a Sharing Event. (a) On the date of the occurrence of a
Sharing Event, automatically (and without the taking of any action) (x) all then
outstanding Alternate Currency Incremental Term Loans of a given Tranche shall
be converted into Alternate Currency Incremental Term Loans of such Tranche
which are maintained in Dollars (in an amount equal to the Dollar Equivalent of
the aggregate principal amount of the respective Alternate Currency Incremental
Term Loans on the date such Sharing Event first occurred), which Alternate
Currency Incremental Term Loans (i) shall continue to be owed by the respective
Incremental
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Term Loan Borrowers, (ii) shall at all times thereafter be deemed to be Base
Rate Loans and (iii) shall be immediately due and payable on the date such
Sharing Event has occurred, and (y) all principal, accrued and unpaid interest
and other amounts owing with respect to such Alternate Currency Incremental Term
Loans shall be immediately due and payable in Dollars (in an amount equal to the
Dollar Equivalent of such principal, accrued and unpaid interest and other
amounts). The occurrence of any conversion of Alternate Currency Incremental
Term Loans as provided above in this Section 1.15(a) shall be deemed to
constitute, for purposes of Section 1.11, a prepayment of the respective
Alternate Currency Incremental Term Loans before the last day of any Interest
Period relating thereto.
(b) Upon the occurrence of a Sharing Event, and immediately after
giving effect to any automatic conversion pursuant to Section 1.15(a), the
Lenders shall automatically and without further action be deemed to have
exchanged interests in the respective Tranches of Loans (including, in the case
of the Total Revolving Loan Commitment, interests in each outstanding Letter of
Credit and Unpaid Drawing) such that, in lieu of the interests of each Lender in
each Tranche in which it participated as of such date, such Lender shall hold an
interest in all Tranches (including, in the case of the Total Revolving Loan
Commitment, an interest in each outstanding Letter of Credit, each Unpaid
Drawing and each LC Reserve Account established pursuant to Section 1.15(g)),
whether or not such Lender shall previously have participated therein, equal to
such Lender's Exchange Percentage thereof. The foregoing exchanges shall be
accomplished through the purchases and sales of participations in the relevant
Tranches and each Lender hereby agrees to enter into customary participation
agreements approved by the Administrative Agent to accomplish same. All
purchases and sales of participating interests pursuant to this Section 1.15
shall be made in Dollars. Upon any such occurrence, the Administrative Agent
shall notify each Lender and shall specify the net amount of Dollars (if any)
required from each such Lender to effect the purchases and sales by the various
Lenders of participating interests in the amounts required above (together with
accrued interest with respect to the period for the most recent interest payment
date through the date of the Sharing Event plus any additional amounts payable
by the Borrowers pursuant to Section 4.04 in respect of such accrued but unpaid
interest); it being understood and agreed, however, in the event that a Sharing
Event shall have occurred, each Lender shall be deemed to have purchased,
automatically and without request, such participating interests (and, as a
result thereof, shall be entitled to receive from, or shall owe to, the other
Lenders the respective amounts owing as a result of the purchases and sales of
participations contemplated herein). Promptly upon receipt of such request, each
Lender shall deliver to the Administrative Agent (in immediately available funds
in Dollars) the net amounts (if any) as specified by the Administrative Agent.
The Administrative Agent shall promptly deliver the amounts so received to the
various Lenders in such amounts as are needed to effect the purchases and sales
of participations as provided above. Promptly following receipt thereof, each
Lender which has sold participations in any of its Tranches as provided above
(through the Administrative Agent) will deliver to each Lender (through the
Administrative Agent) which has so purchased a participating interest in such
Tranches a participation certificate dated the date of receipt of such funds and
in such amount. It is understood that the amount of funds delivered by each
Lender shall be calculated on a net basis, giving effect to both the sales and
purchases of participations by the various Lenders as required above.
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(c) Upon, and after, the occurrence of a Sharing Event (i) no further
Credit Events shall be made or occur, (ii) all amounts from time to time
accruing with respect to, and all amounts from time to time payable on account
of, Alternate Currency Incremental Term Loans (including, without limitation,
any interest and other amounts which were accrued but unpaid on the date of such
Sharing Event) shall be payable in Dollars as if each such Alternate Currency
Incremental Term Loans had originally been made in Dollars and shall be
distributed by the relevant Lenders to the Administrative Agent for the account
of the Lenders which made such Loans or are participating therein, (iii) all of
the Incremental Term Loan Commitments of all of the Incremental Term Loan
Lenders that have provided such Incremental Term Loan Commitments shall be
automatically terminated, and (iv) all Revolving Loan Commitments of all Lenders
that have provided the Revolving Loan Commitments shall be automatically
terminated. Notwithstanding anything to the contrary contained above, the
failure of any Lender to purchase its participating interest as required above
in any extensions of credit upon the occurrence of a Sharing Event shall not
relieve any other Lender of its obligation hereunder to purchase its
participating interests in a timely manner, but no Lender shall be responsible
for the failure of any other Lender to purchase the participating interest to be
purchased by such other Lender on any date.
(d) If any amount required to be paid by any Lender pursuant to
Section 1.15(b) is not paid to the Administrative Agent on the date upon which
such Lender receives notice from the Administrative Agent of the amount of its
participations required to be purchased pursuant to said Section 1.15(b), such
Lender shall, in addition to such aforementioned amount, also pay to the
Administrative Agent on demand an amount equal to the product of (i) the amount
so required to be paid by such Lender for the purchase of its participations,
(ii) the daily average Federal Funds Rate, during the period from and including
the date of request for payment to the date on which such payment is immediately
available to the Administrative Agent and (iii) a fraction the numerator of
which is the number of days that elapsed during such period and the denominator
of which is 360. A certificate of the Administrative Agent submitted to any
Lender with respect to any amounts payable under this Section 1.15 shall be
conclusive in the absence of manifest error. Amounts payable by any Lender
pursuant to this Section 1.15 shall be paid to the Administrative Agent for the
account of the relevant Lenders, provided that, if the Administrative Agent (in
its sole discretion) has elected to fund on behalf of such other Lender the
amounts owing to such other Lenders, then the amounts shall be paid to the
Administrative Agent for its own account.
(e) Whenever, at any time after the relevant Lenders have received
from any other Lenders purchases of participations pursuant to this Section
1.15, the various Lenders receive any payment on account thereof, such Lenders
will distribute to the Administrative Agent, for the account of the various
Lenders participating therein, such Lenders' participating interests in such
amounts (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such participations were outstanding) in like
funds as received; provided, however, in the event that any such payment
received by any Lenders is required to be returned, the Lenders who received
previous distributions in respect of their participating interests therein will
return to the respective Lenders any portion thereof previously so distributed
to them in like funds as such payment is required to be returned by the
respective Lenders.
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(f) Each Lender's obligation to purchase participating interests
pursuant to this Section 1.15 shall be absolute and unconditional and shall not
be affected by any circumstance including, without limitation, (a) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against any other Lender, any Borrower, any other Credit Party or any other
Person for any reason whatsoever, (b) the occurrence or continuance of a Default
or an Event of Default, (c) any adverse change in the condition (financial or
otherwise) of any Borrower, any other Credit Party or any other Person, (d) any
breach of this Agreement by any Borrower, any other Credit Party, any Lender or
any other Person, or (e) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(g) In the event that upon the occurrence of a Sharing Event any
Letter of Credit shall be outstanding and undrawn in whole or in part, or there
shall exist any Unpaid Drawing with respect to any Letter of Credit theretofore
issued, each Lender with a Revolving Loan Commitment (immediately prior to the
occurrence of such Sharing Event) or outstanding Revolving Loans shall on the
date of such occurrence, before giving effect to the purchases and sales of
participations on such date pursuant to Section 1.15(b), promptly pay over to
the Administrative Agent, in immediately available funds in Dollars, an amount
equal to such Lender's RL Percentage of such undrawn face amount or such Unpaid
Drawing, as applicable, together with interest thereon from the date of the
Sharing Event to the date on which such amount shall be paid to the
Administrative Agent at a rate per annum equal to the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation. The Administrative Agent shall
establish a separate account or accounts for each Lender (each, an "LC Reserve
Account") in an amount equal to such Lender's Exchange Percentage of the amounts
received with respect to each such Letter of Credit pursuant to the preceding
sentence. The Administrative Agent shall have sole dominion and control over
each such LC Reserve Account, and the amounts deposited in each LC Reserve
Account shall be held in such LC Reserve Account until withdrawn as provided in
clause (h), (i) or (j) below in this Section 1.15. The Administrative Agent
shall maintain records enabling it to determine the amounts paid over to it and
deposited in the LC Reserve Accounts in respect of each Letter of Credit and the
amounts on deposit in respect of each Letter of Credit attributable to each
Lender's Exchange Percentage. The amounts paid to the Administrative Agent
pursuant to this clause (g) shall be held as a reserve against the Letter of
Credit Outstandings, shall not constitute Loans to any Borrower and shall not
give rise to any obligation on the part of any Borrower to pay interest to such
Lender, it being agreed that the Borrowers' reimbursement obligations in respect
of Letters of Credit shall arise only at such times as drawings or payments are
made thereunder, as provided in Section 2.05.
(h) In the event that after the occurrence of a Sharing Event any
drawing or payment shall be made in respect of a Letter of Credit, the
Administrative Agent shall, at the request of the respective Issuing Lender,
withdraw from the LC Reserve Account of each of the Lenders (in accordance with
each Lender's Exchange Percentage) any amounts, up to the aggregate amount of
such drawing or payment, deposited in respect of such Letter of Credit and
remaining on deposit and deliver such amounts to such Issuing Lender in
satisfaction of the reimbursement obligations of the Lenders under Section
2.04(c) (but not of the applicable Borrower under Section 2.05(a)). In the event
that any Lender shall default on its obligation to pay over any amount to the
Administrative Agent in respect of any Letter of Credit as provided in Section
1.15(g), the respective Issuing Lender shall, in the event of a drawing or
payment
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thereunder, have a claim against such Lender to the same extent as if such
Lender had defaulted on its obligations under Section 2.04(c), but shall have no
claim against any other Lender, notwithstanding the exchange of interests in the
applicable Borrower's reimbursement obligations pursuant to Section 1.15(b).
Each other Lender shall have a claim against such defaulting Lender for any
damages sustained by it as a result of such default, including, in the event
such Letter of Credit shall expire undrawn, its Exchange Percentage of the
defaulted amount.
(i) In the event that after the occurrence of a Sharing Event any
Letter of Credit shall expire undrawn, the Administrative Agent shall withdraw
from the LC Reserve Account of each Lender the amount remaining on deposit
therein in respect of such Letter of Credit and distribute such amount to such
Lender.
(j) Pending the withdrawal of any amounts from its LC Reserve Account
as contemplated above in this Section 1.15, the Administrative Agent will, at
the direction of such Lender and subject to such rules as the Administrative
Agent may prescribe for the avoidance of inconvenience, invest such amounts in
Cash Equivalents.
(k) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, upon any purchase of participations as required above, (i) each
Lender which has purchased such participations shall be entitled to receive from
the respective Borrowers any increased costs and indemnities (including, without
limitation, pursuant to Sections 1.10, 1.11, 1.12, 2.06 and 4.04) directly from
the respective Borrowers, to the same extent as if it were the direct Lender as
opposed to a participant therein, which increased costs shall be calculated
without regard to Section 1.13, Section 12.04(a) or the last sentence of Section
12.04(b), and (ii) each Lender which has sold such participations shall be
entitled to receive from the respective Borrowers indemnification from and
against any and all taxes imposed as a result of the sale of the participations
pursuant to this Section 1.15. Each Borrower acknowledges and agrees that, upon
the occurrence of a Sharing Event and after giving effect to the requirements of
this Section 1.15, increased Taxes may be owing by it pursuant to Section 4.04,
which Taxes shall be paid (to the extent provided in Section 4.04) by the
respective Borrowers, as the case may be, without any claim that the increased
Taxes are not payable because same resulted from the participations effected as
otherwise required by this Section 1.15.
(l) Notwithstanding anything to the contrary contained above in this
Section 1.15, the provisions of this Section 1.15 only shall apply in the event
that either (x) any Incremental Term Loans are outstanding to a Foreign
Incremental Term Loan Borrower at the time that a Sharing Event occurs or (y)
any Loans or Unpaid Drawings are owed by CanCo, or any Letters of Credit issued
for the account of CanCo are outstanding, in either case at a time when a
Sharing Event occurs and the CanCo Restrictions are still in effect.
Section 2. Letters of Credit.
-----------------
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, any Revolving Borrower may request that an Issuing
Lender in its individual capacity issue, at any time and from time to time on
and after the Initial Borrowing Date and prior to the 5th day (or, in the case
of trade Letters of Credit, the 30th day) prior to the Revolving Loan Maturity
Date, for the account of such Revolving Borrower, (x) an irrevocable sight
standby
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letter of credit in a form customarily used by such Issuing Lender, or in such
other form as has been approved by such Issuing Lender, in support of such
obligations of Silgan or any of its Subsidiaries as may be requested by the
respective Revolving Borrower (other than obligations in respect of any
Permitted Subordinated Indebtedness), and (y) an irrevocable sight trade letter
of credit in a form customarily used by such Issuing Lender, or in such other
form as has been approved by such Issuing Lender, in support of commercial
transactions of any Revolving Borrower or any of its Subsidiaries (each letter
of credit issued pursuant to this Section 2.01(a), together with each letter of
credit described in the immediately succeeding sentence, a "Letter of Credit").
It is hereby acknowledged and agreed that each of the letters of credit
described in Schedule II (the "Existing Letters of Credit"), which were issued
by Deutsche Bank under the Existing Credit Agreement and remain outstanding on
the Initial Borrowing Date, shall constitute a "Letter of Credit" for all
purposes of this Agreement and shall be deemed issued under this Agreement on
the Initial Borrowing Date.
(b) Subject to and upon the terms and conditions set forth herein,
each Issuing Lender hereby agrees that it will, at any time and from time to
time on and after the Initial Borrowing Date and prior to the 5th day (or, in
the case of trade Letters of Credit, the 30th day) prior to the Revolving Loan
Maturity Date, following its receipt of the respective Letter of Credit Request,
issue for the account of the respective Revolving Borrower, one or more Letters
of Credit, provided that no Issuing Lender shall be under any obligation to
issue any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Lender from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Lender or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such
Issuing Lender refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Issuing
Lender with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which such Issuing Lender is not otherwise
compensated hereunder) not in effect on the Effective Date, or any
unreimbursed loss, cost or expense which was not applicable, in effect or
known to such Issuing Lender as of the Effective Date and which such
Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; or
(ii) such Issuing Lender shall have received notice from the Required
Lenders prior to the issuance of such Letter of Credit of the type
described in the second sentence of Section 2.03(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed the lesser of (x) $50,000,000 and (y) when added to the aggregate
principal amount of all Revolving Loans and Swingline Loans then outstanding, an
amount equal to the Total Revolving Loan Commitment at such time, (ii) each
Letter of Credit shall by its terms terminate on or before the earlier of (x)
(A) in the case of standby Letters of Credit, one year after the date of
issuance thereof (although any such standby Letter of Credit
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may be extended for successive periods up to one year, but not beyond the
Business Day immediately preceding the Revolving Loan Maturity Date, on terms
acceptable to the respective Issuing Lender) and (B) in the case of trade
Letters of Credit, 180 days after the date of issuance thereof and (y) the
Business Day immediately preceding the Revolving Loan Maturity Date (or the 30th
day preceding the Revolving Loan Maturity Date in the case of trade Letters of
Credit) and (iii) each Letter of Credit shall be denominated in Dollars.
(d) Notwithstanding anything to the contrary contained above in this
Section 2.01, no Letter of Credit shall be issued for the account of CanCo the
Stated Amount of which, (A) when added to the sum of (I) the aggregate amount of
all other Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid on the date of, and prior to the issuance of, the respective Letter of
Credit) in respect of all other Letters of Credit issued for the account of
CanCo at such time and (II) the aggregate principal amount of all Revolving
Loans and Swingline Loans incurred by CanCo and then outstanding, would exceed
an amount equal to the CanCo Revolving Sub-Limit then in effect or (B) when
added to the sum of (I) the aggregate amounts calculated in the preceding clause
(A) and outstanding at such time and (II) the aggregate amount of all other
CanCo Included Debt outstanding at such time, would exceed the CanCo Permitted
Debt Amount at such time.
2.02 Minimum Stated Amount. The initial Stated Amount of each Letter
of Credit shall be not less than $100,000 or such lesser amount as is acceptable
to the respective Issuing Lender.
2.03 Letter of Credit Requests. (a) Whenever a Revolving Borrower
desires that a Letter of Credit be issued for its account, such Revolving
Borrower shall give the Administrative Agent and the respective Issuing Lender
at least two Business Days' prior written notice thereof. Each notice shall be
in the form of Exhibit C (each a "Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the respective Revolving Borrower that such
Letter of Credit may be issued in accordance with, and will not violate the
requirements of, Sections 2.01(c) and, if applicable, 2.01(d). Unless the
respective Issuing Lender has received notice from the Required Lenders before
it issues a Letter of Credit that one or more of the conditions specified in
Section 5.01 or 5.02, as the case may be, are not then satisfied, or that the
issuance of such Letter of Credit would violate Sections 2.01(c) and/or, if
applicable, 2.01(d), then such Issuing Lender may issue the requested Letter of
Credit for the account of the respective Revolving Borrower in accordance with
such Issuing Lender's usual and customary practices. Upon its issuance of, or
its entering into any amendment with respect to, any standby Letter of Credit,
the respective Issuing Lender shall promptly notify the Administrative Agent and
each Lender of such issuance or amendment and deliver to the Administrative
Agent and each Lender a copy of the Letter of Credit actually issued or amended,
as the case may be. In addition, at the time of each issuance of a trade Letter
of Credit and on the first Business Day of each week thereafter, each Issuing
Lender shall furnish the Administrative Agent with a written (including via
facsimile) report of (x) with respect to the issuance of such trade Letter of
Credit, the Stated Amount thereof, and (y) thereafter, the daily aggregate
Letter of Credit Outstandings of all trade Letters of Credit issued by such
Issuing Lender for the immediately preceding week. Notwithstanding anything to
the contrary contained in this Agreement, in the event that a Lender Defaults
exists with respect to a
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Lender with a Revolving Loan Commitment, no Issuing Lender shall be required to
issue any Letter of Credit unless such Issuing Lender has entered into
arrangements satisfactory to it and the Borrowers to eliminate such Issuing
Lender's risk with respect to the participation in Letters of Credit by the
Defaulting Lender or Lenders, including by cash collateralizing such Defaulting
Lender's or Lender's RL Percentage of the Letter of Credit Outstandings.
2.04 Letter of Credit Participations. (a) Immediately upon the
issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender shall
be deemed to have sold to each Lender with a Revolving Loan Commitment, other
than such Issuing Lender (each such Lender, in its capacity under this Section
2.04, a "Participant"), and each such Participant shall be deemed irrevocably
and unconditionally to have purchased from such Issuing Lender, without recourse
or warranty, an undivided interest and participation, to the extent of such
Participant's RL Percentage in such Letter of Credit, each substitute letter of
credit, each drawing made thereunder and the obligations of the respective
Revolving Borrower under this Agreement with respect thereto, in the respective
Letter of Credit Fees (but not Facing Fees) payable with respect thereto, and
any security therefor or guaranty pertaining thereto. Upon any change in the
Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section
1.13 or 12.04(b), it is hereby agreed that, with respect to all outstanding
Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to
the participations pursuant to this Section 2.04 to reflect the new RL
Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no
Issuing Lender shall have any obligation relative to the Participants therein
other than to confirm that any documents required to be delivered under such
Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by an Issuing Lender under or in
connection with any Letter of Credit issued by it shall not create for an
Issuing Lender any resulting liability to any Revolving Borrower, any other
Credit Party, any Participant or any other Lender unless such action is taken or
omitted to be taken with gross negligence or willful misconduct on the part of
such Issuing Lender (as determined by a court of competent jurisdiction in a
final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any
Letter of Credit issued by it and the respective Revolving Borrower shall not
have reimbursed such amount in full to such Issuing Lender pursuant to Section
2.05(a), such Issuing Lender shall promptly notify the Administrative Agent,
which shall promptly notify each Participant of such failure, and each
Participant shall promptly and unconditionally pay to the Administrative Agent
for the account of the respective Issuing Lender, the amount of such
Participant's RL Percentage of such unreimbursed payment in Dollars and in same
day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (Local
Time) on any Business Day, any Participant required to fund a payment under a
Letter of Credit, such Participant shall make available to the Administrative
Agent for the account of the respective Issuing Lender such Participant's RL
Percentage of the amount of such payment on such Business Day in same day funds.
If and to the extent such Participant shall not have so made its RL Percentage
of the amount of such payment available to the Administrative Agent for the
account of the respective Issuing Lender, such Participant agrees to pay to the
Administrative Agent for the account of such Issuing Lender, forthwith on demand
such amount, together with interest thereon, for each day from such date until
the date
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such amount is paid to the Administrative Agent for the account of such Issuing
Lender at the overnight Federal Funds Rate for the first three days and at the
interest rate applicable to Revolving Loans maintained as Base Rate Loans for
each day thereafter. The failure of any Participant to make available to the
Administrative Agent for the account of an Issuing Lender such Participant's RL
Percentage of any payment under any Letter of Credit issued by such Issuing
Lender shall not relieve any other Participant of its obligation hereunder to
make available to the Administrative Agent for the account of such Issuing
Lender such Participant's RL Percentage of any Letter of Credit issued by such
Issuing Lender on the date required, as specified above, but no Participant
shall be responsible for the failure of any other Participant to make available
to the Administrative Agent for the account of such Issuing Lender such other
Participant's RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement
obligation as to which the Administrative Agent has received for the account of
such Issuing Lender any payments from the respective Participants pursuant to
clause (c) above, such Issuing Lender shall pay to the Administrative Agent and
the Administrative Agent shall promptly pay to each such Participant which has
paid its RL Percentage thereof, in Dollars and in same day funds, an amount
equal to such Participant's share (based upon the proportionate aggregate amount
originally funded by such Participant to the aggregate amount funded by all
Participants) of the principal amount of such reimbursement obligation and
interest thereon accruing after the purchase of the respective participations.
(e) Upon the request of any Participant, each Issuing Lender shall
furnish to such Participant copies of any standby Letter of Credit issued by it
and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the respective Participants to make payments to
the Administrative Agent for the account of each Issuing Lender with respect to
Letters of Credit issued by it shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right which
any Revolving Borrower, any other Credit Party or any Subsidiary thereof
may have at any time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, such Issuing Lender,
any Lender or any other Person, whether in connection with this Agreement,
any Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between any Revolving
Borrower, any other Credit Party or any Subsidiary thereof and the
beneficiary named in any such Letter of Credit);
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(iii) any draft, certificate or any other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) Each Revolving
Borrower hereby agrees to reimburse each Issuing Lender, by making payment to
the Administrative Agent in Dollars and in immediately available funds at the
Payment Office, for any payment or disbursement made by such Issuing Lender
under any Letter of Credit issued by it for such Revolving Borrower's account
(each such amount so paid or disbursed until reimbursed, an "Unpaid Drawing")
immediately after, and in any event on the date of, such payment or disbursement
with interest on the amount so paid or disbursed by such Issuing Lender, to the
extent not reimbursed prior to 12:00 Noon (Local Time) on the date of such
payment or disbursement, from and including the date paid or disbursed to but
not including the date such Issuing Lender was reimbursed therefore at a rate
per annum which shall be the Base Rate in effect from time to time plus the
Applicable Margin in effect from time to time in respect of Revolving Loans that
are maintained as Base Rate Loans; provided, however, to the extent such amounts
are not reimbursed prior to 12:00 Noon (Local Time) on the fourth Business Day
following notice of such payment or disbursement (although no such notice shall
be required to be given if a Default or an Event of Default under Section 9.05
shall exist, in which case interest shall accrue on such amounts as hereinafter
provided in this proviso), interest shall thereafter accrue on the amounts so
paid or disbursed by such Issuing Lender (and until reimbursed by such Revolving
Borrower) at a rate per annum which shall be the Base Rate in effect from time
to time plus the Applicable Margin in effect from time to time in respect of
Revolving Loans that are maintained as Base Rate Loans plus 2%, in each such
case, with such interest to be payable on demand.
(b) The obligations of each Revolving Borrower under this Section 2.05
to reimburse each Issuing Lender with respect to Unpaid Drawings (including, in
each case, interest thereon) shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense to
payment which such Revolving Borrower may have or have had against any Lender
(including in such Lender's capacity as issuer of the Letter of Credit or as a
Participant with respect thereto), including, without limitation, any defense
based upon the failure of any drawing under a Letter of Credit (each a
"Drawing") to conform to the terms of the Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of such
Drawing; provided, however, that no Revolving Borrower shall be obligated to
reimburse an Issuing Lender for any wrongful payment made by such Issuing Lender
under a Letter of Credit issued by it as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Issuing
Lender (as determined by a court of competent jurisdiction in a final and
non-appealable decision).
2.06 Increased Costs. If at any time after the Effective Date, the
introduction of or any change in applicable law, rule or regulation, guideline
or in the interpretation or
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administration thereof by the NAIC or any governmental authority charged with
the interpretation or administration thereof, or compliance by an Issuing Lender
or any Participant with any request or directive by any such authority (whether
or not having the force of law), or any change in generally accepted accounting
principles, shall either (i) impose, modify or deem applicable any reserve,
deposit, capital adequacy or similar requirement against letters of credit
issued by such Issuing Lender or participated in by any Participant, or (ii)
impose on such Issuing Lender or any Participant any other conditions relating,
directly or indirectly, to this Agreement or any respective Letter of Credit,
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or any Participant of issuing, maintaining or participating in any such
Letter of Credit, or reduce the amount of any sum received or receivable by such
Issuing Lender or any Participant hereunder, then, upon demand to the respective
Revolving Borrower by such Issuing Lender or such Participant (a copy of which
notice shall be sent by such Issuing Lender or such Participant to the
Administrative Agent), such Revolving Borrower shall, subject to the provisions
of Section 12.18 (to the extent applicable), pay to such Issuing Lender or such
Participant the additional amount or amounts as will compensate such Issuing
Lender or such Participant for such increased cost or reduction. A certificate
submitted to the respective Revolving Borrower by an Issuing Lender or a
Participant, as the case may be (a copy of which certificate shall be sent by
such Issuing Lender or such Participant to the Administrative Agent), setting
forth the basis for the determination of such additional amount or amounts
necessary to compensate such Issuing Lender or such Participant as aforesaid,
shall be conclusive and binding on such Revolving Borrower, absent manifest
error, as to the amount thereof.
Section 3. Fees; Commitments; Reductions of Commitments.
--------------------------------------------
3.01 Fees. (a) Each Revolving Borrower jointly and severally agrees to
pay to the Administrative Agent for distribution to each Non-Defaulting Lender
with a Revolving Loan Commitment a commitment commission (the "Commitment
Commission") for the period from the Effective Date to but excluding the
Revolving Loan Maturity Date (or such earlier date as the Total Revolving Loan
Commitment shall have been terminated), computed at a rate per annum equal to
the Applicable Commitment Commission Percentage on the daily average Unutilized
Revolving Loan Commitment of such Non-Defaulting Lender. Accrued Commitment
Commission shall be due and payable quarterly in arrears on each Quarterly
Payment Date and on the Revolving Loan Maturity Date or upon such earlier date
as the Total Revolving Loan Commitment shall have been terminated.
(b) Each Revolving Borrower jointly and severally agrees to pay to the
Administrative Agent for proportionate distribution to each Lender with a
Revolving Loan Commitment or with outstanding Revolving Loans (based upon each
such Lender's RL Percentage) a fee in respect of such Lender's participation in
each Letter of Credit issued hereunder (the "Letter of Credit Fee") for the
period from and including the date of issuance of such Letter of Credit to and
including the termination or expiration of such Letter of Credit, computed at a
rate per annum equal to the Applicable Margin for Revolving Loans that are
maintained as Eurodollar Loans, as in effect from time to time, on the daily
Stated Amount of such Letter of Credit. Accrued Letter of Credit Fees shall be
due and payable quarterly in arrears on each Quarterly Payment Date and upon the
first day after the termination of the Total Revolving Loan Commitment upon
which no Letters of Credit remain outstanding.
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(c) Each Revolving Borrower jointly and severally agrees to pay to
each Issuing Lender, for its own account, a facing fee in respect of each Letter
of Credit issued by such Issuing Lender hereunder (the "Facing Fee"), computed
at a rate of 1/4 of 1% per annum on the daily Stated Amount of such Letter of
Credit. Accrued Facing Fees shall be due and payable quarterly in arrears on
each Quarterly Payment Date and upon the first day on or after the termination
of the Total Revolving Loan Commitment upon which no Letters of Credit remain
outstanding.
(d) Each Revolving Borrower jointly and severally agrees to pay to
each Issuing Lender, for its own account, in respect of each Letter of Credit
issued by it hereunder, such amount or amounts as such Issuing Lender
customarily charges as processing fees for issuing, amending and paying on
letters of credit.
(e) The Borrowers jointly and severally agree to pay to the
Administrative Agent and the other Agents, for their own accounts, such fees as
may be agreed to from time to time between the Borrowers and the Administrative
Agent and/or the other Agents.
(f) Silgan and each other Incremental Term Loan Borrower agrees to pay
to the Incremental Term Loan Lenders, for their own accounts, such fees as may
be separately agreed to with such Incremental Term Loan Lenders pursuant to
Section 1.14.
(g) Notwithstanding anything to the contrary contained in this Section
3.01, CanCo shall not be jointly or severally liable with the other Borrowers
for any Fees obligated to be paid by the other Borrowers to the extent
prohibited by the applicable CanCo Restrictions then in effect; although CanCo
will remain obligated for its portion of the accrued Commitment Commission,
Letter of Credit Fees, Facing Fees and other Fees except upon a sale or other
disposition pursuant to Section 12.20(b), in which case Containers and the other
Borrowers (in no event to include CanCo) shall be solely jointly and severally
liable for the amount of all Fees owing by CanCo as otherwise provided above in
this Section 3.01.
3.02 Voluntary Termination of Revolving Commitments. (a) (I) Upon at
least two Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) by any Borrower to the Administrative Agent at the
applicable Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), any Borrower shall have the right, without
premium or penalty, to terminate the Total Unutilized Revolving Loan Commitment,
in whole or, if in part, in integral multiples of $1,000,000, provided that each
such reduction shall apply proportionately to permanently reduce the Revolving
Loan Commitment of each Lender.
(II) Upon at least two Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) by an Incremental Term Loan
Borrower to the Administrative Agent at the applicable Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders),
such Incremental Term Loan Borrower shall have the right, without premium or
penalty, to terminate or partially reduce the Total Incremental Term Loan
Commitment under the Tranche with respect to such Incremental Term Loan
Borrower, provided that (x) any such termination or partial reduction shall
apply proportionately to permanently reduce the Incremental Term Loan Commitment
of each of the Lenders with such a Commitment
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under such Tranche and (y) any partial reduction pursuant to this Section
3.02(a)(II) shall be in integral multiples of $1,000,000 (or the Dollar
Equivalent thereof).
(b) In the event of the refusal by a Lender to consent to a proposed
change, waiver, discharge or termination with respect to any of the matters set
forth in clauses (i) through (vii), inclusive, of the first proviso in Section
12.12(a) which has been approved by the Required Lenders, the Borrowers shall
have the right (subject to the requirements of Section 12.12(b)), upon five
Business Days' prior written notice to the Administrative Agent at the
applicable Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), to terminate the entire Revolving Loan
Commitment and Incremental Term Loan Commitments of such Lender, so long as all
Loans, together with accrued and unpaid interest, Fees and all other amounts
owing to such Lender are repaid concurrently with the effectiveness of such
termination pursuant to Section 4.01(b) (at which time Schedule I shall be
deemed modified to reflect such changed amounts), and at such time, such Lender
shall no longer constitute a "Lender" for purposes of this Agreement, except
with respect to indemnifications under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.01 and 12.06), which shall
survive as to such repaid Lender.
3.03 Mandatory Reduction or Termination of Commitments. (a) The Total
Commitment (and the A Term Loan Commitment, the B Term Loan Commitment and the
Revolving Loan Commitment of each Lender) shall terminate in their entirety on
June 30, 2002 unless the Initial Borrowing Date has occurred on or prior to such
date.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total A Term Loan Commitment and the Total B Term Loan
Commitment (and the A Term Loan Commitment and the B Term Loan Commitment of
each Lender) shall terminate in their entirety on the Initial Borrowing Date
(after the incurrence of the respective Tranches of Term Loans on such date).
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Incremental Term Loan Commitment under a given
Tranche shall (i) be permanently reduced (x) on each Incremental Term Loan
Borrowing Date in respect of such Tranche in an amount equal to the aggregate
principal amount of Incremental Term Loans of such Tranche incurred on each such
date, (ii) terminate in its entirety (to the extent not theretofore terminated)
on the Incremental Term Loan Commitment Termination Date for such Tranche of
Incremental Term Loans (after giving effect to any Incremental Term Loans of
such Tranche to be made on such date) and (iii) prior to the termination of the
Total Incremental Term Loan Commitment in respect of such Tranche, be
permanently reduced from time to time to the extent required by Section 4.02(k).
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment (and the Revolving
Loan Commitment of each Lender) shall terminate in its entirety on the Revolving
Loan Maturity Date.
(e) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment shall be permanently
reduced from time to time to the extent required by Section 4.02(k).
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(f) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, (i) on the date on which Silgan or any of its Subsidiaries
enters into the Accounts Receivable Facility, the Total Revolving Loan
Commitment shall be permanently reduced by an amount equal to 75% of the
commitment amount in respect of the revolving facility component of the Accounts
Receivable Facility and (ii) on each date thereafter on which the commitment
amount of such revolving facility component is increased, the Total Revolving
Loan Commitment shall be permanently reduced on each such date by an amount
equal to 75% of the amount of such increase.
(g) Each reduction to, and/or termination of, the Total Revolving Loan
Commitment pursuant to this Section 3.03 shall be applied proportionately to
permanently reduce, and/or terminate, the Revolving Loan Commitment of each
Lender with such a Commitment. Each reduction to, and/or termination of, the
Total Incremental Term Loan Commitment under a given Tranche pursuant to this
Section 3.03 shall be applied proportionately to permanently reduce, and/or
terminate, the Incremental Term Loan Commitment of each Lender with such a
Commitment under such Tranche; provided, however, any mandatory reduction to the
Incremental Term Loan Commitments pursuant to Section 4.02(k) shall be applied
to proportionately and permanently reduce the Incremental Term Loan Commitments
of all Lenders for all Tranches on a pro rata basis (based on the then remaining
amounts of such Incremental Term Loan Commitments).
Section 4. Prepayments; Payments; Commitment Reductions.
--------------------------------------------
4.01 Voluntary Prepayments. (a) Each Borrower shall have the right to
prepay the Loans made to such Borrower, without premium or penalty, in whole or
in part at any time and from time to time on the following terms and conditions:
(i) such Borrower shall give the Administrative Agent at the applicable Notice
Office (x) at least one Business Day's prior written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay Base Rate Loans
(or same day notice in the case of Swingline Loans provided such notice is given
prior to 3:00 P.M. (Local Time) on such Business Day) and (y) at least three
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay Euro Rate Loans, (ii) which notice (x) shall
specify whether A Term Loans, B Term Loans, Incremental Term Loans under a given
Tranche, Revolving Loans or Swingline Loans shall be prepaid, the amount of such
prepayment, the Types of Loans to be prepaid and, in the case of Euro Rate
Loans, the specific Borrowing or Borrowings pursuant to which made, and, in the
case of any voluntary prepayment of Term Loans, whether or not such prepayment
is to be made with Net Equity Proceeds received by Silgan from the sale or
issuance of its capital stock or with the Retained Excess Cash Flow Amount, and
(y) the Administrative Agent shall promptly transmit to each of the Lenders;
(iii) each partial prepayment shall be in an aggregate principal amount of at
least $1,000,000 (or $250,000 in the case of Swingline Loans) or, in the case of
Incremental Term Loans of a given Tranche, the minimum principal amount set
forth in the Incremental Term Loan Commitment Agreement for such Tranche) ,
provided that if any partial prepayment of Euro Rate Loans made pursuant to any
Borrowing shall reduce the outstanding Euro Rate Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, then (A) if such Borrowing is a Borrowing of Eurodollar Loans, such
Borrowing shall be converted at the end of the then current Interest Period into
a Borrowing of Base Rate Loans and any election of an Interest Period thereafter
with respect thereto given by
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such Borrower shall have no force or effect, and (B) if such Borrowing is a
Borrowing of Alternate Currency Incremental Term Loans under a given Tranche,
the respective Incremental Term Loan Borrower shall cooperate with the
Administrative Agent in selecting Interest Periods at the end of the then
current Interest Period or Interest Periods so as to align such Borrowing with
the Interest Period or Interest Periods applicable to one or more other
Borrowings of such Tranche of Incremental Term Loans; (iv) except as otherwise
provided in the proviso to clause (v) of this Section 4.01(a), each prepayment
in respect of any Term Loans made pursuant to this Section 4.01(a) shall be
allocated among each of the Tranches of Term Loans on a pro rata basis, with
each Tranche of Term Loans to be allocated its Term Loan Percentage of the
amount of such prepayment; (v) each prepayment of any Tranche of Term Loans
pursuant to this Section 4.01(a) shall be applied (1) first, to reduce the Term
Loan Scheduled Repayment of each such Tranche of Term Loans which is due on
December 31 of the year in which such prepayment is made (it being understood
that any voluntary prepayments of A Term Loans, B Term Loans or Incremental Term
Loans pursuant to this Section 4.01(a) which are made in 2002 shall be applied
first (A) in the case of A Term Loans, to the A Term Loan Scheduled Repayment
which is due on December 31, 2003, (B) in the case of B Term Loans, to the B
Term Loan Scheduled Repayment which is due on December 31, 2002 and then to the
B Term Loan Scheduled Repayment which is due on December 31, 2003, and (C) in
the case of Incremental Term Loans under a given Tranche, to the Incremental
Term Loan Scheduled Repayment (if any) for such Tranche which is due on December
31, 2002 and then to the Incremental Term Loan Scheduled Repayment (if any) for
such Tranche which is due on December 31, 2003) and (2) second, to the extent in
excess thereof, to reduce the then remaining Term Loan Scheduled Repayments of
each such Tranche of Term Loans on a pro rata basis (based upon the then
remaining principal amounts of Term Loan Scheduled Repayments of each such
Tranche of Term Loans after giving effect to all prior reductions thereto),
provided that any voluntary prepayments of Term Loans which are made with Net
Equity Proceeds received by Silgan from the sale or issuance of its capital
stock or with the Retained Excess Cash Flow Amount, may be allocated among the
Term Loans, or applied solely to the A Term Loans, the B Term Loans or any
Tranche of Incremental Term Loans, as Silgan shall determine in its sole
discretion and, to the extent allocated to any such Tranche of Term Loans, shall
be applied (1) first, to reduce the A Term Loan Scheduled Repayment, the B Term
Loan Scheduled Repayment and/or the Incremental Term Loan Scheduled Repayment of
such Tranche, as the case may be, which is due on December 31 of the year in
which such prepayment is made (it being understood that any such voluntary
prepayments of A Term Loans, B Term Loans or Incremental Term Loans which are
made in 2002 shall be applied first (A) in the case of A Term Loans, to the A
Term Loan Scheduled Repayment which is due on December 31, 2003, (B) in the case
of B Term Loans, to the B Term Loan Scheduled Repayment which is due on December
31, 2002, and then to the B Term Loan Scheduled Repayment which is due on
December 31, 2003, and (C) in the case of Incremental Term Loans under a given
Tranche, to the Incremental Term Loan Scheduled Repayment (if any) for such
Tranche which is due on December 31, 2002 and then to the Incremental Term Loan
Scheduled Repayment (if any) for such Tranche which is due on December 31, 2003)
and (2) second, to the extent in excess thereof, to reduce the then remaining
Term Loan Scheduled Repayment of such Tranche of Term Loans on a pro rata basis
(based upon the then remaining principal amount of such Term Loan Scheduled
Repayments after giving effect to all prior reductions thereto); and (vi) each
prepayment in respect of any Tranche of Loans shall be applied pro rata among
the Lenders with outstanding Loans of such Tranche, provided that at the
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respective Revolving Borrower's election in connection with any prepayment of
Revolving Loans pursuant to this Section 4.01(a), such prepayment shall not, so
long as no Default or Event of Default then exists, be applied to any Revolving
Loan of a Defaulting Lender.
(b) In the event of the refusal by a Lender to consent to a proposed
change, waiver, discharge or termination with respect to any of the matters
described in clauses (i) through (vii), inclusive, of the first proviso in
Section 12.12(a) which have been approved by the Required Lenders, the Borrowers
shall have the right (subject to the requirements of Section 12.12(b)), upon
five Business Days' prior written notice to the Administrative Agent at the
applicable Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders) to repay all Loans, together with accrued and
unpaid interest, Fees and other amounts (including, without limitation, all
obligations under Section 1.11), then owing to such Lender (or, at the
Borrowers' discretion, owing to such Lender solely with respect to the Tranche
which gave rise to the need to obtain such Lender's individual consent) in
accordance with said Section 12.12(b) so long as (A) in the case of the
repayment of Revolving Loans of any Lender pursuant to this Section 4.01(b), the
Revolving Loan Commitment of such Lender is terminated concurrently with such
repayment pursuant to Section 3.02(b) (at which time Schedule I shall be deemed
modified to reflect the changed Revolving Loan Commitments), (B) in the case of
the repayment of Incremental Term Loans of any Lender under a given Tranche, the
Incremental Term Loan Commitment of such Lender under such Tranche is terminated
concurrently with such repayment pursuant to Section 3.02(b) (at which time
Schedule I shall be deemed modified to reflect the changed Incremental Term Loan
Commitments of such Tranche) and (C) the consents required by Section 12.12(b)
in connection with the repayment pursuant to this Section 4.01(b) have been
obtained. Each prepayment of any Term Loans pursuant to this Section 4.01(b)
shall be applied to reduce the then remaining Term Loan Scheduled Repayments of
such Tranche of Term Loans on a pro rata basis (based upon the then remaining
principal amount of such Term Loan Scheduled Repayments after giving effect to
all prior reductions thereto).
(c) Notwithstanding anything to the contrary contained in this Section
4.01 or elsewhere in this Agreement (including, without limitation, in Section
12.12), at any time that A Term Loans are outstanding, Silgan shall have the
option, in its sole discretion, to give the Lenders with outstanding B Terms
Loans (the "B Lenders") and the Incremental Term Loan Lenders with outstanding
Incremental Term Loans the option to waive their pro rata share of a voluntary
prepayment of B Term Loans and Incremental Term Loans which is to be made
pursuant to Section 4.01(a) (such prepayment, a "Waivable Voluntary Prepayment")
upon the terms and provisions set forth in this Section 4.01(c). If Silgan
elects to exercise the option referred to in the immediately preceding sentence,
Silgan shall give to the Administrative Agent written notice at the applicable
Notice Office of Silgan's intention to give the B Lenders and the Incremental
Term Loan Lenders the right to waive a Waivable Voluntary Prepayment (including
in such notice, the aggregate amount of such proposed prepayment) at least five
Business Days prior to the date of the proposed prepayment, which notice the
Administrative Agent shall promptly forward to all B Lenders and Incremental
Term Loan Lenders (indicating in such notice the amount of such prepayment to be
applied to each such B Lender's outstanding B Term Loans and Incremental Term
Loans). Silgan's offer to permit the B Lenders and the Incremental Term Loan
Lenders to waive any such Waivable Voluntary Prepayment may apply to all or part
of such prepayment, provided that any offer to waive part of such prepayment
must be made ratably to the B Lenders and the Incremental Term Loan Lenders on
the basis of their
-37-
outstanding B Term Loans and Incremental Term Loans. In the event that any such
B Lender or Incremental Term Loan Lender desires to waive such Lender's right to
receive its pro rata share of any such Waivable Voluntary Prepayment in whole or
in part, such Lender shall so advise the Administrative Agent no later than 4:00
p.m. (Local Time) on the date which is two Business Days after the date of such
notice from the Administrative Agent, which notice shall also include the amount
such Lender desires to receive in respect of such prepayment. If any B Lender or
Incremental Term Loan Lender does not reply to the Administrative Agent within
the two Business Days, such Lender will be deemed not to have waived any part of
such prepayment. If any B Lender or Incremental Term Loan Lender does not
specify an amount it wishes to receive, such Lender will be deemed to have
accepted 100% of its share of such prepayment. In the event that any such B
Lender or Incremental Term Loan Lender waives all or part of its share of any
such Waivable Voluntary Prepayment, the Administrative Agent shall apply 100% of
the amount so waived by such Lender solely to the outstanding A Term Loans in
accordance with Section 4.01(a).
4.02 Mandatory Prepayments and Commitment Reductions. (a) (i) On any
day on which the sum of (I) the aggregate outstanding principal amount of all
Revolving Loans, (II) the aggregate outstanding principal amount of all
Swingline Loans and (III) the aggregate amount of all Letter of Credit
Outstandings exceeds the Total Revolving Loan Commitment as then in effect, the
Revolving Borrowers shall prepay on such day principal of outstanding Swingline
Loans and, after all Swingline Loans have been repaid in full or if no Swingline
Loans are then outstanding, Revolving Loans in an amount equal to such excess.
If, after giving effect to the prepayment of all outstanding Swingline Loans and
Revolving Loans, the aggregate amount of all Letter of Credit Outstandings
exceeds the Total Revolving Loan Commitment as then in effect, the Revolving
Borrowers shall pay to the Administrative Agent at the Payment Office on such
day an amount of cash and/or Cash Equivalents equal to the amount of such excess
(up to a maximum amount equal to the Letter of Credit Outstandings at such
time), such cash or Cash Equivalents to be held as security for all Obligations
of the Revolving Borrowers hereunder in a cash collateral account maintained by
the Administrative Agent (the "Cash Collateral Account"); provided, however,
that such amounts shall, so long as no Default or Event of Default then exists,
be released to the Revolving Borrowers from time to time so long as the Total
Revolving Loan Commitment as then in effect exceeds the sum of (I) the aggregate
outstanding principal amount of all Revolving Loans, (II) the aggregate
outstanding principal amount of all Swingline Loans and (III) the aggregate
amount of all Letter of Credit Outstandings at such time.
(ii) On any day on which (A) the sum of (I) the aggregate outstanding
principal amount of all Revolving Loans made to CanCo, (II) the aggregate
outstanding principal amount of all Swingline Loans made to CanCo and (III) the
aggregate amount of all Letter of Credit Outstandings in respect of all Letters
of Credit issued for the account of CanCo at such time exceeds the CanCo
Revolving Sub-Limit then in effect or (B) the sum of (I) the aggregate amounts
calculated in the preceding clause (A) and outstanding at such time and (II) the
aggregate amount of all other CanCo Included Debt outstanding at such time
exceeds the CanCo Permitted Debt Amount at such time, CanCo shall (in either
case) repay on such day principal of Swingline Loans made to CanCo and, after
all such Swingline Loans have been repaid in full or if no such Swingline Loans
are then outstanding, Revolving Loans made to CanCo in an amount equal to such
excess. If, after giving effect to the prepayment of all outstanding Swingline
Loans
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and Revolving Loans made to CanCo, either (A) the aggregate amount of all Letter
of Credit Outstandings in respect of all Letters of Credit issued for the
account of CanCo at such time exceeds the CanCo Revolving Sub-Limit then in
effect or (B) the sum of (I) the aggregate amount of all Letter of Credit
Outstandings in respect of all Letters of Credit issued for the account of CanCo
at such time and (II) the aggregate amount of all other CanCo Included Debt
outstanding at such time exceeds the CanCo Permitted Debt Amount at such time,
CanCo shall (in either case) pay to the Administrative Agent at the Payment
Office on such day an amount of cash and/or Cash Equivalents equal to the amount
of such excess (up to a maximum amount equal to such Letter of Credit
Outstandings at such time), such cash or Cash Equivalents to be held as security
for all Obligations of CanCo hereunder in the Cash Collateral Account; provided,
however, that such amounts shall, so long as no Default or Event of Default then
exists, be released to CanCo from time to time so long as both (x) the CanCo
Revolving Sub-Limit then in effect exceeds the sum of (I) the aggregate
outstanding principal amount of all Revolving Loans made to CanCo, (II) the
aggregate outstanding principal amount of all Swingline Loans made to CanCo and
(III) the aggregate amount of all Letter of Credit Outstandings at such time in
respect of all Letters of Credit issued for the account of CanCo and (y) the
CanCo Permitted Debt Amount at such time exceeds the sum of (I) the aggregate
amounts referred to in preceding clause (x) and outstanding at such time and
(II) the aggregate outstanding amount of all other CanCo Included Debt at such
time.
(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, Silgan
shall be required to repay that principal amount of A Term Loans, to the extent
then outstanding, as is set forth opposite such date (each such repayment, as
the same may be reduced in amount as provided in Sections 4.01(a), 4.01(b) and
4.02(k), an "A Term Loan Scheduled Repayment"):
A Term Loan
Scheduled Repayment Date Amount
------------------------ ------
December 31, 2003 $16,670,000
December 31, 2004 $16,670,000
December 31, 2005 $16,670,000
December 31, 2006 $16,670,000
December 31, 2007 $16,670,000
A Term Loan Maturity Date $16,650,000
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, Silgan
shall be required to repay that principal amount of B Term Loans, to the extent
then outstanding, as is set forth opposite such date (each such repayment, as
the same may be reduced in amount as provided in Sections 4.01(a), 4.01(b) and
4.02(k) and as the same may be increased as provided in clause (ii) of Section
1.14(c), a "B Term Loan Scheduled Repayment"):
B Term Loan
Scheduled Repayment Date Amount
------------------------ ------
December 31, 2002 $1,750,000
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B Term Loan
Scheduled Repayment Date Amount
------------------------ ------
December 31, 2003 $3,500,000
December 31, 2004 $3,500,000
December 31, 2005 $3,500,000
December 31, 2006 $3,500,000
December 31, 2007 $3,500,000
B Term Loan Maturity Date $330,750,000
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, Silgan shall be required to make, with
respect to each Tranche of Incremental Term Loans, to the extent then
outstanding, scheduled amortization payments of such Tranche of Incremental Term
Loans on the dates and in the principal amounts set forth in the respective
Incremental Term Loan Commitment Agreement (each such repayment, as the same may
be reduced as provided in Sections 4.01(a), 4.01(b) and 4.02(k), an "Incremental
Term Loan Scheduled Repayment" and, together with the A Term Loan Scheduled
Repayments and the B Term Loan Scheduled Repayments, the "Term Loan Scheduled
Repayments"); provided that, if any Incremental Term Loans are incurred which
will be added to (and form part of) an existing Tranche of Incremental Term
Loans, the amount of the then remaining Incremental Term Loan Scheduled
Repayments of the respective Tranche shall be proportionally increased (with the
aggregate amount of increases to the then remaining Incremental Term Loan
Scheduled Repayments to equal the aggregate principal amount of such new
Incremental Term Loans then being incurred) in accordance with the requirements
of clause (ii) of Section 1.14(c).
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each Excess Cash Payment Date, an
amount equal to 50% of Excess Cash Flow for the relevant Excess Cash Payment
Period shall be applied as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Section 4.02(k); provided, however, that no
such mandatory repayment or commitment reduction shall be required on any Excess
Cash Payment Date to the extent that (i) no Default or Event of Default then
exists and (ii) the Total Leverage Ratio as of the last day of the relevant
Excess Cash Payment Period is less than or equal to 3.50:1.00.
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Initial
Borrowing Date upon which Silgan or any of its Subsidiaries receives any cash
proceeds from any Asset Sale (including pursuant to Section 12.20(b)), an amount
equal to 100% of the Net Sale Proceeds therefrom shall be applied on such date
as a mandatory repayment and/or commitment reduction in accordance with the
requirements of Section 4.02(k); provided, however, such Net Sale Proceeds shall
not be required to be so applied on such date so long as no Default or Event of
Default then exists and such Net Sale Proceeds shall be used to purchase assets
(other than current assets) used or to be used in the businesses of Silgan and
its Subsidiaries as are permitted by Section 8.14 within 12 months following the
date of such Asset Sale, and provided further, that if all or any portion of
such Net Sale Proceeds not required to be so applied as a mandatory repayment
and/or commitment reduction as provided above are not so reinvested within such
12 month period, such
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remaining portion shall be applied on the last day of such 12 month period as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Section 4.02(k).
(g) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date on
or after the Initial Borrowing Date upon which Silgan or any of its Subsidiaries
receives any cash proceeds from any Recovery Event, an amount equal to 100% of
the Net Insurance Proceeds from such Recovery Event shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Section 4.02(k); provided, however, that so long as no Default
or Event of Default then exists and the proceeds from any such Recovery Event do
not exceed $75,000,000, such proceeds shall not be required to be so applied on
such date to the extent that such proceeds shall be used to replace or restore
any properties or assets in respect of which such proceeds were paid (and/or to
invest in a then existing manufacturing facility to accommodate for the loss of
capacity at the manufacturing facility subject to such Recovery Event) within 12
months following the date of the receipt of such proceeds (or to reimburse
Silgan or any such Subsidiary on the date of receipt of such proceeds for
amounts theretofore expended by Silgan or such Subsidiary to replace or restore
any such properties or assets or to invest in a then existing manufacturing
facility, as the case may be), and provided further, that (i) if the amount of
such proceeds exceeds $75,000,000, then only the portion of such proceeds in
excess of $75,000,000 shall be applied as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Section 4.02(k) and
(ii) if all or any portion of such proceeds not required to be so applied as a
mandatory repayment and/or commitment reduction as provided above are not so
used within 12 months after the date of the receipt of such proceeds, such
remaining portion shall be applied on the last day of such 12 month period as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Section 4.02(k). Notwithstanding anything to the contrary
contained above in this Section 4.02(g), so long as no Default or Event of
Default then exists which results in the termination of the Total Commitment,
any cash proceeds (even if such cash proceeds exceeds $75,000,000) received by
CanCo from any Recovery Event in respect of its assets may be reinvested as
provided above in this Section 4.02(g) to the extent that CanCo is otherwise
required to reinvest all such proceeds by the terms of the applicable ▇▇▇▇▇▇▇▇
Can Acquisition Documents.
(h) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, (i) on each date on or after the
Initial Borrowing Date upon which Silgan or any of its Subsidiaries receives any
cash proceeds from any incurrence by Silgan or any of its Subsidiaries of
Indebtedness for borrowed money (other than, except as provided below in this
clause (h), Indebtedness for borrowed money permitted to be incurred pursuant to
Section 8.04 as such Section is in effect on the Effective Date) and (ii) on
each date on or after the Initial Borrowing Date upon which Silgan receives any
cash proceeds from any issuance of Additional Permitted Subordinated
Indebtedness the proceeds of which have not been used to Refinance then
outstanding Permitted Subordinated Indebtedness or to finance a Permitted
Acquisition, in each case an amount equal to 100% of the Net Debt Proceeds of
the respective incurrence of Indebtedness shall be applied on such date as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Section 4.02(k); provided, however, if all or any portion of any
Net Debt Proceeds from the issuance of Additional Permitted Subordinated
Indebtedness are to be used to Refinance then outstanding Permitted Subordinated
Indebtedness as otherwise permitted by this Agreement within 60 days from the
date of the issuance thereof,
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such portion shall not be required to be applied pursuant to Section 4.02(k) on
such date (although if all or any portion of such Net Debt Proceeds are not
actually used to Refinance outstanding Permitted Subordinated Indebtedness
within such 60 day period, such remaining portion shall be applied on the last
day of such period (or such earlier date, if any, as Silgan determines not to
proceed with such Refinancing) as a mandatory repayment and/or commitment
reduction in accordance with the requirements of Section 4.02(k).
(i) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, (i) on the date on which Silgan or any
of its Subsidiaries receives any cash proceeds from the initial sale of accounts
receivable pursuant to the Accounts Receivables Facility, 75% of the cash
proceeds therefrom (net of underwriting discounts and commissions and other
reasonable costs associated therewith) to the extent that such proceeds relate
to a fixed amount of funded principal shall be applied on such date as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Section 4.02(k) and (ii) on each date thereafter on which the
fixed amount of funded principal under the Accounts Receivable Facility is
increased, 75% of the cash proceeds from such increased amount (net of
underwriting discounts and commissions and other reasonable costs associated
therewith) shall be applied on each such date as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Section 4.02(k).
(j) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Initial
Borrowing Date upon which Silgan or any of its Subsidiaries receives any cash
proceeds from a sale and leaseback transaction for any asset or property of
Silgan or any of its Subsidiaries, an amount equal to 75 % of the Net Sale
Proceeds therefrom shall be applied on such date as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Section 4.02(k);
provided, however, (x) with respect to the first $10,000,000 in the aggregate of
such proceeds in any fiscal year of Silgan, none of such Net Sale Proceeds shall
be required to be so applied as provided above so long as no Default or Event of
Default then exists and (y) to the extent that any such sale and leaseback
transaction constitutes an "Asset Sale" under, and as defined in, the 9% Senior
Subordinated Debenture Indenture or any other Permitted Subordinated
Indebtedness Documents, 100% of the Net Sale Proceeds therefrom either shall be
applied as a mandatory repayment and/or commitment in accordance with the
requirements of Section 4.02(k) and/or reinvested in assets (other than current
assets) used or to be used in the businesses of Silgan and its Subsidiaries as
are permitted by Section 8.14 within 12 months following the date of such sale
and leaseback transaction, and to the extent that all or any portion of such Net
Sale Proceeds that have not been applied as a mandatory repayment and/or
commitment reduction as provided above are not so reinvested within such 12
month period, such remaining portion shall be applied on the last day of such 12
month period as a mandatory repayment and/or commitment reduction in accordance
with the requirements of Section 4.02(k).
(k) Any amount required to be applied pursuant to this Section 4.02(k)
shall be applied (i) first, as a mandatory repayment of the then outstanding
principal amount of Term Loans, (ii) second, to the extent in excess of the
amount required to be applied pursuant to the preceding clause (i), as a
mandatory reduction to the Total Incremental Term Loan Commitment for each
Tranche of Incremental Term Loans and (iii) third, to the extent in excess of
the amount required to be applied pursuant to the preceding clauses (i) and
(ii), as a mandatory reduction to
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the Total Revolving Loan Commitment. The amount to be applied to repay principal
of outstanding Term Loans shall be allocated among each of the Tranches of Term
Loans on a pro rata basis, with each Tranche of Term Loans to be allocated its
Term Loan Percentage of the amount of such prepayment and with the amount
allocated to each such Tranche of Term Loans to be applied (1) first, to reduce
the Term Loan Scheduled Repayment of each such Tranche of Term Loans which is
due on December 31 of the year in which such repayment is made (it being
understood that any mandatory repayments of A Term Loans, B Term Loans or
Incremental Term Loans which are required to be applied pursuant to this Section
4.02(k) in 2002 shall be applied first (A) in the case of A Term Loans, to the A
Term Loan Scheduled Repayment which is due on December 31, 2003, (B) in the case
of B Term Loans, to the B Term Loan Scheduled Repayment which is due on December
31, 2002 and then to the B Term Loan Scheduled Repayment which is due on
December 31, 2003, and (C) in the case of Incremental Term Loans under a given
Tranche, to the Incremental Term Loan Scheduled Repayment (if any) for such
Tranche which is due on December 31, 2002 and then to the Incremental Term Loan
Scheduled Repayment (if any) for such Tranche which is due on December 31, 2003)
and (2) second, to the extent in excess thereof, to reduce the then remaining
Term Loan Scheduled Repayments of each such of Tranche of Term Loans on a pro
rata basis (based upon the then remaining principal amounts of such Term Loan
Scheduled Repayments of such Tranche of Term Loans after giving effect to all
prior reductions thereto).
(l) Notwithstanding anything to the contrary contained in this Section
4.02 or elsewhere in this Agreement (including, without limitation, in Section
12.12), at any time that A Term Loans are outstanding, Silgan shall have the
option, in its sole discretion, to give the B Lenders and the Incremental Term
Loan Lenders the option to waive their pro rata share of a mandatory repayment
of B Term Loans and Incremental Term Loans which is to be made pursuant to
Section 4.02(e), (f), (g), (h), (i) and/or (j) (each such repayment, a "Waivable
Mandatory Repayment") upon the terms and provisions set forth in this Section
4.02(l). If Silgan elects to exercise the option referred to in the immediately
preceding sentence, Silgan shall give to the Administrative Agent written notice
at the applicable Notice Office of Silgan's intention to give the B Lenders and
Incremental Term Loan Lenders the right to waive a Waivable Mandatory Repayment
(including in such notice, the aggregate amount of such proposed repayment) at
least five Business Days prior to the date of the proposed repayment, which
notice the Administrative Agent shall promptly forward to all B Lenders and
Incremental Term Loan Lenders (indicating in such notice the amount of such
repayment to be applied to each such Lender's outstanding B Term Loans and
Incremental Term Loans). Silgan's offer to permit the B Lenders and Incremental
Term Loan Lenders to waive any such Waivable Mandatory Repayment may apply to
all or part of such repayment, provided that any offer to waive part of such
repayment must be made ratably to the B Lenders and Incremental Term Loan
Lenders on the basis of their outstanding B Term Loans and Incremental Term
Loans. In the event that any such B Lender or Incremental Term Loan Lender
desires to waive its pro rata share of such Lender's right to receive any such
Waivable Mandatory Repayment in whole or in part, such Lender shall so advise
the Administrative Agent no later than 4:00 P.M. (Local Time) on the date which
is two Business Days after the date of such notice from the Administrative
Agent, which notice shall also include the amount such Lender desires to receive
in respect of such repayment. If any B Lender or Incremental Term Loan Lender
does not reply to the Administrative Agent within the two Business Days, such
Lender will be deemed not to have waived any part of such repayment. If any B
Lender or Incremental Term Loan Lender does not specify an amount it wishes to
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receive, such Lender will be deemed to have accepted 100% of its share of such
repayment. In the event that any such B Lender or Incremental Term Loan Lender
waives all or part of its share of any such Waivable Mandatory Repayment, the
Administrative Agent shall apply 100% of the amount so waived by such Lender to
the outstanding A Term Loans in accordance with Section 4.02(k).
(m) On the 30th day preceding December 31 of each year (commencing on
the 30th day preceding December 31, 2002), if a Clean-Down Period shall not have
occurred since the eleven month period ending on December 1 of such year, the
Revolving Borrowers shall repay outstanding Swingline Loans and/or Revolving
Loans in an amount necessary to cause the average Total Unutilized Revolving
Loan Commitment to be equal to or greater than the Clean-Down Amount for an
entire Clean-Down Period which shall begin (or continue in existence, as the
case may be) on or from such date and shall continue until a Clean-Down Period
has occurred.
(n) With respect to each repayment of any Tranche of Loans required by
this Section 4.02, the respective Borrower may designate the Types of Loans
which are to be repaid of such Tranche and, in the case of Euro Rate Loans, the
specific Borrowing or Borrowings pursuant to which such Euro Rate Loans were
made, provided that: (i) repayments of Euro Rate Loans made pursuant to this
Section 4.02 may only be made on the last day of an Interest Period applicable
thereto unless all such Euro Rate Loans of the respective Tranche with Interest
Periods ending on such date of required repayment and all Base Rate Loans of the
respective Tranche have been paid in full; (ii) if any repayment of Euro Rate
Loans made pursuant to a single Borrowing shall reduce the outstanding Loans
made pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount applicable thereto, (x) in the case of Eurodollar Loans, such Borrowing
shall be converted at the end of the then current Interest Period into a
Borrowing of Base Rate Loans, and (y) in the case of Alternate Currency
Incremental Term Loans of a given Tranche, the respective Incremental Term Loan
Borrower shall cooperate with the Administrative Agent in selecting Interest
Periods at the end of the then current Interest Period or Interest Periods so as
to align such Borrowing with the Interest Periods applicable to one or more
other Borrowings of Alternate Currency Incremental Term Loans of such Tranche;
and (iii) each repayment of any Tranche of Loans shall be applied pro rata among
the Lenders with outstanding Loans of such Tranche. In the absence of a
designation by the respective Borrower as described in the preceding sentence,
the Administrative Agent shall, subject to the above, make such designation in
its sole discretion.
(o) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, (i) all then outstanding Loans of a
respective Tranche shall be repaid in full on the respective Maturity Date for
such Tranche of Loans and (ii) in the event that any Revolving Borrower is sold
pursuant to the terms of this Agreement, all Revolving Loans and Swingline Loans
incurred by such Revolving Borrower and outstanding at such time shall be repaid
in full at the time of such sale and all Letters of Credit issued for the
account of such Revolving Borrower and outstanding at such time shall be cash
collateralized in the Cash Collateral Account in a manner reasonably
satisfactory to the Administrative Agent.
(p) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, upon any receipt by CanCo of any cash
capital contribution only
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pursuant to (and only to the extent required by) Section 7.13, an amount equal
to 100% of such cash capital contribution shall be applied as a mandatory
repayment of principal of outstanding Swingline Loans and, if no Swingline Loans
are or remain outstanding, Revolving Loans, in each case made to CanCo.
(q) So long as the CanCo Restrictions are in effect and in addition to
any other mandatory repayments or commitment reductions pursuant to this Section
4.02, CanCo shall be required to repay outstanding Swingline Loans and, if no
Swingline Loans are or remain outstanding, Revolving Loans, in each case made to
it with 100% the Net Sale Proceeds from any Asset Sale made by CanCo or any of
its Subsidiaries to the extent that such Net Sale Proceeds are not reinvested by
CanCo or any of its Subsidiaries as permitted by Section 4.02(f).
(r) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, in the event that ▇▇▇▇▇▇▇▇ Soup or a
Subsidiary thereof purchases all of the capital stock or all or substantially
all of the assets of CanCo, whether pursuant to the terms of the ▇▇▇▇▇▇▇▇ Can
Acquisition Documents or otherwise, all then outstanding Revolving Loans and
Swingline Loans made to CanCo shall have been (or shall concurrently be) repaid
in full at such time and all Letters of Credit issued for the account of CanCo
shall have been (or shall concurrently be) cash collateralized in a manner
satisfactory to the Administrative Agent.
(s) For purposes of making calculations pursuant to this Section 4.02,
the Administrative Agent shall be entitled to use the Dollar Equivalent of any
such amounts stated in a currency other than Dollars.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement and under any Note shall be
made to the Administrative Agent for the account of the Lender or Lenders
entitled thereto not later than 12:00 Noon (Local Time) on the date when due and
shall be made in immediately available funds at the applicable Payment Office in
(x) Dollars if such payment is made in respect of (i) principal of or interest
on Dollar Loans owing by any Borrower or any increased costs or similar
obligations owing by any Borrower in respect of Dollar Loans or (ii) except as
provided in following clause (y), any other Obligation of any Borrower under
this Agreement or under any Note issued by such Borrower and (y) in the
applicable Alternate Currency if such payment is made in respect of (i)
principal of or interest on Alternate Currency Incremental Term Loans or
Commitments in respect thereof or (ii) any increased costs, indemnities or other
amounts owing with respect to Alternate Currency Incremental Term Loans or
Commitments in respect thereof; provided that, from and after any Sharing Event,
all payments of principal, interest and fees in respect of any outstanding
Alternate Currency Incremental Term Loans shall be made in Dollars. Any payments
under this Agreement or under any Note which are made later than 12:00 Noon
(Local Time) on any Business Day shall be deemed to have been made on the next
succeeding Business Day. Whenever any payment to be made hereunder or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable at the applicable
rate during such extension.
4.04 Net Payments. (a) All payments made by each Borrower hereunder
and under any Note will be made without setoff, counterclaim or other defense.
Except as provided
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in Section 4.04(b), all such payments will be made free and clear of, and
without deduction or withholding for, any present or future taxes, levies,
imposts, duties, fees, assessments or other charges of whatever nature now or
hereafter imposed by any jurisdiction or by any political subdivision or taxing
authority thereof or therein with respect to such payments (but excluding,
except as provided in the second succeeding sentence, any tax imposed on or
measured by the net income or net profits of a Lender pursuant to the laws of
the jurisdiction in which it is organized or in which the principal office or
applicable lending office of such Lender is located or any subdivision thereof
or therein) and all interest, penalties or similar liabilities with respect
thereto (collectively, "Taxes"). If any Taxes are so levied or imposed, such
Borrower agrees to pay the full amount of such Taxes, and such additional
amounts as may be necessary so that every payment of all amounts due under this
Agreement and under any Note, after withholding or deduction for or on account
of any Taxes, will not be less than the amount provided for herein or in such
Note. If any amounts are payable in respect of Taxes pursuant to the preceding
sentence, then such Borrower agrees to reimburse each Lender, upon the written
request of such Lender, for taxes imposed on or measured by the net income or
net profits of such Lender pursuant to the laws of the jurisdiction in which it
is organized or in which the principal office or applicable lending office of
such Lender is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction and for any withholding of income or similar
taxes imposed by any such jurisdiction as such Lender shall determine are
payable by, or withheld from, such Lender in respect of such amounts so paid to
or on behalf of such Lender pursuant to the preceding sentence and in respect of
any amounts paid to or on behalf of such Lender pursuant to this sentence. Each
Borrower will furnish to the Administrative Agent within 45 days after the date
the payment of any Taxes is due pursuant to applicable law certified copies of
tax receipts evidencing such payment by such Borrower (or if such receipts are
unavailable, such other evidence reasonably satisfactory to the Administrative
Agent). Each Borrower agrees to indemnify and hold harmless each Lender, and to
reimburse such Lender upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Lender.
(b) Each Lender that is lending to a US Borrower and is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
U.S. Federal income tax purposes agrees to deliver to each such US Borrower and
the Administrative Agent on or prior to the Effective Date, or in the case of
(x) a Lender that is an assignee or transferee of an interest under this
Agreement pursuant to Section 1.13 or 12.04 (unless the respective Lender was
already a Lender to a US Borrower hereunder immediately prior to such assignment
or transfer) or (y) an Eligible Transferee that becomes a Lender pursuant to
Section 1.14, on the date of such assignment or transfer or on the date such
Eligible Transferee becomes a Lender hereunder, as the case may be, (i) two
accurate and complete original signed copies of Internal Revenue Service Form
W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax
treaty) (or successor forms) certifying to such Lender's entitlement as of such
date to a complete exemption from United States withholding tax with respect to
payments to be made by such US Borrower under this Agreement and under any Note
or (ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A)
of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or
W-8BEN (with respect to a complete exemption under an income tax treaty) (or
successor forms) pursuant to clause (i) above, (x) a certificate substantially
in the form of Exhibit D (any such certificate, a "Section 4.04(b)(ii)
Certificate") and (y) two accurate and complete original signed copies of
Internal Revenue Service Form W-8BEN (with respect to the portfolio interest
exemption) (or successor form) certifying to such Lender's
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entitlement as of such date to a complete exemption from U.S. withholding tax
with respect to payments of interest to be made by such US Borrower under this
Agreement and under any Note. In addition, each Lender that is lending to a US
Borrower agrees that from time to time after the Effective Date, when a lapse in
time or change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, such Lender will deliver to each such US
Borrower and the Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect
to the benefits of any income tax treaty), or Form W-8BEN (with respect to the
portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as the case
may be, and such other forms as may be required in order to confirm or establish
the entitlement of such Lender to a continued exemption from or reduction in
United States withholding tax with respect to payments by such US Borrower under
this Agreement and under any Note, or it shall immediately notify each such US
Borrower and the Administrative Agent of its inability to deliver any such Form
or Certificate in which case such Lender shall not be required to deliver any
such Form or Certificate pursuant to this Section 4.04(b). Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to Section
12.04(b) and the immediately succeeding sentence, (x) each US Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, Fees or other
amounts payable hereunder for the account of any Lender that is lending to such
US Borrower and which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the
extent that such Lender has not provided to such US Borrower, the U.S. Internal
Revenue Service Forms that establish a complete exemption from such deduction or
withholding and (y) no US Borrower shall be obligated pursuant to Section
4.04(a) to gross-up payments to be made to a Lender in respect of income or
similar taxes imposed by the United States if (I) such Lender has not provided
to such US Borrower the Internal Revenue Service Forms required to be provided
to such US Borrower pursuant to this Section 4.04(b) or (II) in the case of a
payment by such US Borrower, other than interest, to a Lender described in
clause (ii) above, to the extent that such Forms do not establish a complete
exemption from withholding of such taxes. Notwithstanding anything to the
contrary contained in the preceding sentence and except as set forth in Section
12.04(b), the respective US Borrower or US Borrowers agree to indemnify each
Lender in the manner set forth in Section 4.04(a) (without regard to the
identity of the jurisdiction requiring the deduction or withholding) in respect
of any amounts deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes that are effective after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of income or similar Taxes.
Section 5. Conditions Precedent.
--------------------
5.01 Conditions to Loans on the Initial Borrowing Date. The obligation
of each Lender to make Loans, and the obligation of each Issuing Lender to issue
Letters of Credit, in each case on the Initial Borrowing Date is subject at the
time of the making of such Loans or the issuance of such Letters of Credit to
the satisfaction of the following conditions:
(a) Execution of Agreement; Notes. On or prior to the Initial
Borrowing Date, (i) the Effective Date shall have occurred and (ii) there
shall have been delivered to the Administrative Agent for the account of
each of the Lenders that has requested same
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the appropriate A Term Note, B Term Note and/or Revolving Note
executed by the appropriate Borrower, and to the Swingline Lender to the
extent requested by it the appropriate Swingline Notes executed by the
appropriate Borrower, in each case in the amount, maturity and as otherwise
provided herein.
(b) Officer's Certificate. On the Initial Borrowing Date, the
Administrative Agent shall have received a certificate dated the Initial
Borrowing Date signed by the president or any vice president of Silgan
certifying that all of the applicable conditions in Sections 5.01(f), (k),
(l) and (m) and 5.02 have been satisfied on such date.
(c) Opinions of Counsel. On the Initial Borrowing Date, the
Administrative Agent shall have received (i) from ▇▇▇▇▇ ▇▇▇▇▇, Esq.,
General Counsel to Silgan, an opinion addressed to the Administrative
Agent, the other Agents and each of the Lenders and dated the Initial
Borrowing Date covering the matters set forth in Exhibit E-1 and such other
matters incident to the transactions contemplated herein as the Agents may
reasonably request, (ii) from Pillsbury Winthrop LLP, counsel to the
Borrowers, an opinion addressed to the Administrative Agent, the other
Agents and each of the Lenders and dated the Initial Borrowing Date
covering the matters set forth in Exhibit E-2 and such other matters
incident to the transactions contemplated herein as the Agents may
reasonably request and (iii) from local counsel reasonably satisfactory to
the Agents, opinions each of which shall be in form and substance
reasonably satisfactory to the Agents and shall cover the perfection of the
security interests granted pursuant to the Security Documents and such
other matters incident to the transactions contemplated herein as the
Agents may reasonably request.
(d) Corporate Documents; Proceedings. (i) On the Initial Borrowing
Date, the Administrative Agent shall have received a certificate, dated the
Initial Borrowing Date, signed by the president or any vice president of
each Credit Party, and attested to by the secretary or any assistant
secretary of such Credit Party, in the form of Exhibit F with appropriate
insertions, together with copies of the Certificate of Incorporation and
By-Laws of such Credit Party and the resolutions of such Credit Party
referred to in such certificate, and the foregoing shall be reasonably
acceptable to the Agents.
(ii) All corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this
Agreement and the other Credit Documents shall be reasonably satisfactory
in form and substance to the Agents and the Required Lenders, and the
Administrative Agent shall have received all information and copies of all
documents and papers, including records of corporate proceedings,
governmental approvals, good standing certificates and bring-down
telegrams, if any, which the Agents reasonably may have requested in
connection therewith, such documents and papers where appropriate to be
certified by proper corporate or governmental authorities.
(e) Management Agreements; Debt Agreements; Tax Sharing Agreement;
▇▇▇▇▇▇▇▇ Can Acquisition Documents. On the Initial Borrowing Date, there
shall have been delivered to the Administrative Agent true and correct
copies, certified as true and complete by an appropriate officer of Silgan
of (i) all management, consulting and similar agreements entered into by
Silgan or any of its Subsidiaries (collectively, the
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"Management Agreements"), (ii) the 9% Senior Subordinated Debenture
Indenture (together with all amendments thereto), (iii) the Tax Sharing
Agreement and (iv) all ▇▇▇▇▇▇▇▇ Can Acquisition Documents (other than the
▇▇▇▇▇▇▇▇ Can Supply Agreement).
(f) Repayment and Termination of Commitments under the Existing Credit
Agreement. On the Initial Borrowing Date and concurrently with the
incurrence of Term Loans and Revolving Loans on such date, the total
commitments (and all security interests) under the Existing Credit
Agreement shall have been terminated, and all loans thereunder shall have
been repaid in cash in full, together with all accrued interest and fees
thereon, all letters of credit (other than the Existing Letters of Credit,
if any) issued thereunder shall have been terminated, and all other amounts
owing pursuant to the Existing Credit Agreement shall have been repaid in
full. The Administrative Agent shall have received evidence in form, scope
and substance reasonably satisfactory to it that the matters set forth in
this Section 5.01(f) have been satisfied on such date.
(g) US Borrowers/Subsidiaries Guaranty. On the Initial Borrowing Date,
each US Credit Party (other than CanCo) shall have duly authorized,
executed and delivered the US Borrowers/Subsidiaries Guaranty in the form
of Exhibit G (as modified, supplemented or amended from time to time, the
"US Borrowers/Subsidiaries Guaranty"), and the US Borrowers/Subsidiaries
Guaranty shall be in full force and effect.
(h) US Pledge Agreement. On the Initial Borrowing Date, each US Credit
Party shall have duly authorized, executed and delivered the US Pledge
Agreement in the form of Exhibit H (as modified, supplemented or amended
from time to time, the "US Pledge Agreement") and shall have delivered to
the Collateral Agent, as pledgee thereunder, all of the Certificated
Securities, if any, referred to (and as defined) therein and owned by such
US Credit Party, (x) endorsed in blank in the case of promissory notes
constituting Certificated Securities and (y) together with executed and
undated stock powers in the case of capital stock constituting Certificated
Securities, and the US Pledge Agreement shall be in full force and effect.
(i) US Security Agreement. On the Initial Borrowing Date, each US
Credit Party shall have duly authorized, executed and delivered the US
Security Agreement in the form of Exhibit I (as modified, supplemented or
amended from time to time the "US Security Agreement") covering all of such
US Credit Party's present and future US Security Agreement Collateral,
together with:
(1) proper Financing Statements (Form UCC-1 or the
appropriate equivalent) fully executed for filing under the UCC of
each jurisdiction as may be necessary or, in the opinion of the
Collateral Agent, desirable to perfect the security interests
purported to be created by the US Security Agreement;
(2) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports, listing all effective Financing
Statements that name Silgan or any of its Subsidiaries, in each case
as debtor and that are filed in the jurisdictions referred to in
clause (1) above, together with copies of such other Financing
Statements filed in any other jurisdiction that name Silgan or any of
its
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Subsidiaries as debtor (none of which shall cover the US Security
Agreement Collateral except to the extent evidencing Permitted Liens);
(3) evidence of the completion of all other recordings and
filings of, or with respect to, the US Security Agreement as may be
necessary or, in the reasonable opinion of the Collateral Agent,
desirable to perfect the security interests purported to be created by
the US Security Agreement; and
(4) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the US
Security Agreement have been taken;
and the US Security Agreement shall be in full force and effect.
(j) US Mortgages; Title Insurance; Surveys, etc. On the Initial
Borrowing Date, the Collateral Agent also shall have received:
(x) fully executed counterparts of US Mortgages covering
such of the Real Property owned or leased by any US Credit Party as
shall be designated as a "US Mortgaged Property" on Schedule III,
together with evidence that counterparts of the US Mortgages have been
delivered to the title insurance company insuring the Lien of the US
Mortgages for recording in all places to the extent necessary or
desirable, in the reasonable judgment of the Collateral Agent,
effectively to create a valid and enforceable first priority mortgage
Lien (subject to Permitted Encumbrances relating thereto) on each such
US Mortgaged Property in favor of the Collateral Agent (or such other
trustee as may be required or desired under local law) for the benefit
of the Secured Creditors;
(y) Mortgage Policies on each US Mortgaged Property issued
by title insurers reasonably satisfactory to the Collateral Agent in
amounts reasonably satisfactory to the Collateral Agent and assuring
the Collateral Agent that the US Mortgages are valid and enforceable
first priority mortgage Liens on the respective US Mortgaged
Properties, free and clear of all defects and encumbrances except
Permitted Encumbrances and such Mortgage Policies shall otherwise be
in form and substance reasonably satisfactory to the Collateral Agent
and shall include, as appropriate, an endorsement for future advances
under this Agreement and the Notes and for any other matter that the
Collateral Agent in its reasonable discretion may reasonably request,
shall not include an exception for mechanics' liens, and shall provide
for affirmative insurance and such reinsurance as the Collateral Agent
in its reasonable discretion may request; and
(z) to the extent reasonably requested by the Collateral
Agent, a survey, in form and substance reasonably satisfactory to the
Collateral Agent, of each owned US Mortgaged Property, certified by a
licensed professional surveyor reasonably satisfactory to the
Collateral Agent (or, in the case of a US Mortgaged Property subject
to a mortgage under the Existing Credit Agreement, a certificate of an
authorized officer of the respective US Credit Party certifying that
there
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have been no material changes to such US Mortgaged Property since
the date of the last survey thereto except as noted in the
Mortgage Policy or such officer's certificate with respect to such US
Mortgaged Property).
(k) Adverse Change, etc. (i) Since December 31, 2001, nothing shall
have occurred (and neither any Agent nor the Lenders shall have become
aware of any facts or conditions not previously known) which any Agent or
the Required Lenders shall determine has had, or could reasonably be
expected to have, (i) a material adverse effect on (x) the rights or
remedies of the Administrative Agent or the Lenders hereunder or under the
other Credit Documents or (y) the ability of any Credit Party to perform
its obligations to the Administrative Agent or the Lenders hereunder or
under the other Credit Documents or (ii) a Material Adverse Effect.
(ii) On or prior to the Initial Borrowing Date, all necessary
governmental (domestic and foreign) and material third party approvals
and/or consents in connection with the transactions contemplated by the
Credit Documents and otherwise referred to herein or therein shall have
been obtained and remain in effect, and all applicable waiting periods
shall have expired without any action being taken by any competent
authority which restrains, prevents or imposes materially adverse
conditions upon the consummation of the transactions contemplated by the
Credit Documents and otherwise referred to herein or therein. Additionally,
there shall not exist any judgment, order, injunction or other restraint
issued or filed or a hearing seeking injunctive relief or other restraint
pending or notified prohibiting or imposing materially adverse conditions
upon the consummation of the transactions contemplated by the Credit
Documents, the making of the Loans or issuance of any Letters of Credit.
(iii) No consents or approvals shall be required to be obtained by
Silgan from the holders of the 9% Senior Subordinated Debentures in
connection with the entering into of this Agreement or any of the other
documents referred herein (including, without limitation, any of the
Security Documents) and the incurrence of all Loans hereunder. The full
amount of the Loans may be incurred under the 9% Senior Subordinated
Debenture Indenture and all Obligations incurred hereunder and under the
other Credit Documents constitute "Senior Indebtedness" and "Designated
Senior Indebtedness" for purposes of the 9% Senior Subordinated Debenture
Indenture. The Agents shall have received evidence (including appropriate
legal opinions and a certificate of the chief financial officer or
treasurer of Silgan) in form, scope and substance reasonably satisfactory
to them that the matters set forth in this clause (iii) have been
satisfied.
(l) Litigation. On the Initial Borrowing Date, no litigation by any
entity (private or governmental) shall be pending or threatened with
respect to this Agreement or any documentation executed in connection
herewith or the transactions contemplated hereby or which any Agent or the
Required Lenders shall determine could reasonably be expected to have a
Material Adverse Effect.
(m) Fees, etc. On the Initial Borrowing Date, each Borrower shall have
paid to the Administrative Agent, the other Agents and the Lenders all
costs, fees and expenses
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(including, without limitation, reasonable legal fees and expenses)
payable to the Administrative Agent, the other Agents and the Lenders
to the extent then due.
(n) Financial Projections; Pro Forma Balance Sheet. On or prior to the
Initial Borrowing Date, there shall have been delivered to each Agent (i)
detailed projected financial statements for Silgan and its Subsidiaries for
the period through December 31, 2008 (the "Projections"), which Projections
shall reflect the forecasted financial condition and results of operations
of Silgan and its Subsidiaries after giving effect to the transactions
contemplated hereby and (ii) a pro forma consolidated balance sheet as of
March 31, 2002 of Silgan and its Subsidiaries after giving effect to the
transactions contemplated hereby, which Projections and balance sheet shall
be in form and substance reasonably satisfactory to the Agents and the
Required Lenders. There are no statements or conclusions in any of the
Projections which are based upon or include information known to any
Borrower to be misleading in any material respect or which fail to take
into account material information regarding the matters reported therein.
On the Initial Borrowing Date, each Borrower believes that the Projections
were prepared in good faith based upon reasonable assumptions, it being
recognized, however, that projections as to future events are not to be
viewed as facts and that actual results during the period or periods
covered thereby may differ from the projected results and that the
differences may be material.
(o) Insurance. On the Initial Borrowing Date, Silgan shall have
delivered to the Administrative Agent certificates from the respective
insurer with respect to each insurance policy listed in Schedule IV, which
certificates shall name the Collateral Agent as an additional insured
and/or loss payee and shall state that such insurance shall not be
cancelled without at least 30 days' prior written notice by the respective
insurer to the Collateral Agent.
5.02 Conditions to All Credit Events. The obligation of each Lender to
make any Loans (including, without limitation, Loans made on the Initial
Borrowing Date), and of each Issuing Lender to issue any Letters of Credit, is
subject at the time of each such Credit Event, to the satisfaction of the
following conditions:
(a) No Default. At the time of each such Credit Event and also
immediately after giving effect thereto, there shall exist no Default or
Event of Default.
(b) Representations and Warranties. At the time of each such Credit
Event and also immediately after giving effect thereto, all representations
and warranties contained herein and in the other Credit Documents shall be
true and correct in all material respects with the same effect as though
such representations and warranties had been made on and as of the date of
such Credit Event (it being understood and agreed that any representation
or warranty which by its terms is made as of a specified date shall be
required to be true and correct in all material respects only as of such
specified date).
(c) Notice of Borrowing; Letter of Credit Request. Prior to the making
of any Loan (other than a Swingline Loan or a Revolving Loan made pursuant
to a Mandatory Borrowing), the Administrative Agent shall have received a
Notice of Borrowing meeting
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the requirements of Section 1.03(a). Prior to the making of any
Swingline Loan, the Swingline Lender shall have received the notice
required by Section 1.03(b)(i). Prior to the issuance of any Letter of
Credit (other than the Existing Letters of Credit), the Administrative
Agent and the respective Issuing Lender shall have received a Letter of
Credit request meeting the requirements of Section 2.03.
5.03 No Excess Cash. The obligation of each Lender with a Revolving
Loan Commitment to make Revolving Loans (other than pursuant to a Mandatory
Borrowing) and the obligation of the Swingline Lender to make Swingline Loans,
in each case shall be subject to the satisfaction of the condition that at the
time of each such Credit Event and immediately after giving effect thereto, the
sum of (i) the aggregate amount of all cash and Cash Equivalents held by Silgan
and its Domestic Subsidiaries at such time plus (ii) the Foreign Intercompany
Loan Amount at such time (in each case after giving effect to the incurrence of
such Credit Event and the application of proceeds therefrom and any other cash
or Cash Equivalents on hand (to the extent such proceeds and/or other cash or
Cash Equivalents are actually utilized by Silgan and/or any Subsidiary of Silgan
on the respective date of incurrence of the respective Credit Event for a
permitted purpose other than an investment in Cash Equivalents)) shall not
exceed $100,000,000.
5.04 Revolving Borrowers etc. At any time that Silgan desires that an
additional Wholly-Owned Domestic Subsidiary of Silgan become a Revolving
Borrower hereunder, such Revolving Borrower shall satisfy the following
conditions at the time it becomes a Revolving Borrower:
(i) the consent of the Administrative Agent shall have been obtained
(which consent shall not be unreasonably withheld or delayed);
(ii) to the extent requested by any Lender or the Swingline Lender,
such Revolving Borrower shall have executed and delivered Revolving Notes
and Swingline Notes satisfying the conditions set forth in Section 1.05;
(iii) such Revolving Borrower shall have executed and delivered an
Election to Become a Revolving Borrower in the form of Exhibit J, which
shall be in full force and effect; and
(iv) to the extent any of the documents, writings, records,
instruments, consents and opinions that would have been required by
Sections 5.01(c) and (d) if such Revolving Borrower had been subject
thereto on the Initial Borrowing Date had not been heretofore delivered,
such items shall have been delivered to, and shall be reasonably
satisfactory to, the Administrative Agent.
5.05 Incremental Term Loans. Prior to the incurrence of any
Incremental Term Loans, Silgan shall have satisfied (or caused to be satisfied)
all of the applicable conditions set forth in Section 1.14.
The acceptance of the benefits of each Credit Event (and the
occurrence of the Initial Borrowing Date) shall constitute a representation and
warranty by each of the Borrowers to the Administrative Agent and each of the
Lenders that all the applicable conditions specified in this Section 5 with
respect to such Credit Event are satisfied as of that time. All of the Notes,
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certificates, legal opinions and other documents and papers referred to in this
Section 5, unless otherwise specified, shall be delivered to the Administrative
Agent at the applicable Notice Office for the account of each of the Lenders
and, except for the Notes, in sufficient counterparts in the case of Credit
Documents or copies for each of the Lenders and shall be reasonably satisfactory
in form and substance to the Required Lenders.
Section 6. Representations Warranties and Agreements. In order to
induce the Lenders to enter into this Agreement and to make the Loans and issue
or participate in Letters of Credit, each of the Borrowers makes the following
representations, warranties and agreements as to itself and its Subsidiaries, in
each case after giving effect to the transactions to occur on the Initial
Borrowing Date, all of which shall survive the execution and delivery of this
Agreement and the Notes and the making of the Loans and the issuance of the
Letters of Credit, with the occurrence of each Credit Event on and after the
Initial Borrowing Date being deemed to constitute a representation and warranty
that the matters specified in this Section 6 are true and correct in all
material respects on and as of the Initial Borrowing Date and on the date of
each such Credit Event (it being understood and agreed that any representation
or warranty which by its terms is made as of a specified date shall be required
to be true and correct in all material respects only as of such specified date):
6.01 Organizational Status. Each Credit Party and each of its
Subsidiaries (i) is a duly organized and validly existing corporation,
partnership or limited liability company, as the case may be, in good standing
under the laws of the jurisdiction of its organization, (ii) has the corporate,
partnership or limited liability company, as the case may be, power and
authority to own its property and assets and to transact the business in which
it is engaged and presently proposes to engage and (iii) is duly qualified as a
foreign corporation, partnership or limited liability company, as the case may
be, and in good standing in each jurisdiction where the ownership, leasing or
operation of property or the conduct of its business requires such
qualification, except in those jurisdictions where the failure to be so
qualified could not reasonably be expected to, either individually or in the
aggregate, have a Material Adverse Effect.
6.02 Power and Authority. Each Credit Party has the corporate,
partnership or limited liability company, as the case may be, power and
authority to execute, deliver and carry out the terms and provisions of each of
the Credit Documents to which it is party and has taken all necessary corporate,
partnership or limited liability company, as the case may be, action to
authorize the execution, delivery and performance by it of each of such Credit
Documents. Each Credit Party has duly executed and delivered each of the Credit
Documents to which it is party and each of such Credit Documents constitutes its
legal, valid and binding obligation enforceable in accordance with its terms,
except to the extent that the enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by equity principles (regardless of whether
enforcement is sought in equity or at law).
6.03 No Violation. Neither the execution, delivery or performance by
any Credit Party of any Credit Document to which it is a party, nor compliance
by it with any of the terms and provisions thereof, (i) will contravene any
provision of any law, statute, rule or regulation or any order, writ, injunction
or decree of any court or governmental instrumentality, (ii) will
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conflict or be inconsistent with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien (except pursuant to the Security Documents) upon any of the property or
assets of such Credit Party or any of its Subsidiaries pursuant to the terms of
any indenture, mortgage, deed of trust, credit agreement, loan agreement or any
other material agreement, contract or instrument to which such Credit Party or
any of its Subsidiaries is a party or by which it or any of its property or
assets is bound or to which it may be subject or (iii) will violate any
provision of the certificate of incorporation or by-laws (or equivalent
organizational documents) of such Credit Party or any of its Subsidiaries.
6.04 Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made and except for any filings of financing
statements, mortgages and other documents required by the Security Documents,
all of which have been made), or exemption by, any governmental or public body
or authority, or any subdivision thereof, is required to authorize, or is
required in connection with, (i) the execution, delivery and performance of any
Credit Document or (ii) the legality, validity, binding effect or enforceability
of any such Credit Document.
6.05 Security Documents. (a) The security interests created in favor
of the Collateral Agent for the benefit of the Secured Creditors under the US
Pledge Agreement constitute first priority perfected security interests in the
US Pledge Agreement Collateral referred to therein subject to no Lien of any
other Person. No consents, filings or recordings are required in order to
perfect, and/or maintain the perfection and priority of, the security interests
purported to be created by the US Pledge Agreement.
(b) The US Security Agreement creates, in favor of the Collateral
Agent for the benefit of the Secured Creditors, a valid and enforceable
perfected security interest in and Lien on all of the US Security Agreement
Collateral referred to therein, as may be perfected by the filing of financing
statements or by the taking of possession by the Collateral Agent, superior to
and prior to the rights and Liens (other than Permitted Liens) of all third
Persons and subject to no other Liens other than Permitted Liens. Except as have
been obtained or made, no consents, filings or recordings are required to
maintain the perfection and priority of the security interests purported to be
created by the US Security Agreement. At the time of the granting of any
security interests pursuant to the US Security Agreement, the respective US
Credit Party thereunder shall have good and marketable title to all US Security
Agreement Collateral referred to therein free and clear of all Liens except
those described above in this Section 6.05.
(c) The US Mortgages create a valid and enforceable perfected security
interest in and Lien on all of the respective US Mortgaged Properties, in favor
of the Collateral Agent for the benefit of the Secured Creditors, superior to
and prior to the rights and Liens (other than Permitted Liens) of all third
Persons and subject to no other Liens other than Permitted Encumbrances. No
consents, filings or recordings are required to maintain the perfection and
priority of the security interests purported to be created by the US Mortgages,
except for the filings and recordings of the US Mortgages (and related UCC
fixture filings). At the time of the granting of any US Mortgage, the respective
US Credit Party shall have good and marketable title (subject to the respective
Permitted Encumbrances) to, or a valid Leasehold interest, as
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applicable, to the US Mortgaged Properties covered thereby, free and clear of
Liens except those described in the second preceding sentence. Schedule III sets
forth all Real Property owned and leased (beneficially or otherwise) by each US
Credit Party (all as indicated therein) on the Initial Borrowing Date.
(d) The Foreign Security Documents, after the execution and delivery
thereof, will create in favor of the Collateral Agent for the benefit of the
respective Secured Creditors, a valid and enforceable perfected security
interest in and Lien on all of the Foreign Collateral specified therein,
superior to and prior to the rights and Liens of all third Persons (other than
Permitted Liens) and subject to no other Liens other than Permitted Liens. The
respective Foreign Credit Party will have good and marketable title to, or a
valid Leasehold interest in, as applicable, the respective Foreign Collateral,
free and clear of all Liens, except those described in the preceding sentence.
(e) The Additional Security Documents, after the execution and
delivery thereof, will create, in favor of the Collateral Agent for the benefit
of the Secured Creditors referred to therein, a valid and enforceable perfected
security interest in and Lien on all of the Additional Collateral covered
thereby, superior to and prior to the rights and Liens of all third Persons
(other than Permitted Liens) and subject to no other Liens other than Permitted
Liens. The respective Credit Party will have good and marketable title to, or a
valid Leasehold interest in, as applicable, the respective Additional
Collateral, free and clear of all Liens, except those described in the preceding
sentence.
6.06 Insurance. Schedule IV sets forth, as of the Initial Borrowing
Date, a listing of all insurance maintained by each of the Borrowers and its
Subsidiaries, with the amounts insured set forth therein.
6.07 Financial Statements; Financial Condition; etc. (a) The
statements of consolidated and consolidating financial condition of Silgan and
its Subsidiaries at December 31, 2001 and March 31, 2002 and the related
consolidated and consolidating statements of income and cash flow of Silgan and
its Subsidiaries for the fiscal year and three-month period ended on such date,
as the case may be (which (x) in the case of the financial statements for the
fiscal year ended on December 31, 2001, have been certified by nationally
recognized independent certified public accountants satisfactory to the Agents
and (y) in the case of all such financial statements, have heretofore been
furnished to the Lenders), present fairly the financial position of Silgan and
its Subsidiaries at the date of such statements and for the periods covered
thereby and have been prepared in accordance with accounting principles
generally accepted in the United States and practices consistently applied.
Since December 31, 2001, nothing has occurred that has had, or could reasonably
be expected to have, a Material Adverse Effect.
(b) On the Initial Borrowing Date and after giving effect to the
transactions and financings contemplated hereby, (i) the sum of the assets of
each of Silgan and its Subsidiaries (taken as a whole) and each Borrower (on a
stand alone basis), at a fair valuation, will exceed its respective liabilities,
including contingent liabilities, (ii) each of Silgan and its Subsidiaries
(taken as a whole) and each Borrower (on a stand alone basis) will have
sufficient capital with which to conduct its respective businesses and (iii)
each of Silgan and its Subsidiaries (taken as a whole) and each Borrower (on a
stand alone basis) will not have incurred
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debts, and does not intend to incur debts, beyond its ability to pay such debts
as they mature. For purposes of this Section 6.07(b), "debt" means any liability
on a claim, and "claim" means (x) any right to payment, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, or (y) any right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
(c) Except as fully disclosed in the financial statements delivered
pursuant to clause (ii) of the first sentence of Section 5.01(n) and pursuant to
Section 6.07(a), there were as of the Initial Borrowing Date no liabilities or
obligations with respect to Silgan or any of its Subsidiaries of any nature
whatsoever (whether absolute, accrued, contingent or otherwise and whether or
not due), which, either individually or in the aggregate, would be material to
Silgan and its Subsidiaries taken as a whole. As of the Initial Borrowing Date,
each Borrower knows of no Material Loss Contingency (as defined in Statements of
Financial Accounting Standards No. 5) as to Silgan and its Subsidiaries taken as
a whole.
6.08 Litigation. There are no actions, suits, investigations or
proceedings pending or, to the best of the knowledge of any Borrower, threatened
(i) with respect to any Credit Document or (ii) that are reasonably likely to
have a Material Adverse Effect.
6.09 True and Complete Disclosure. To the best of each Borrower's
knowledge after due inquiry, this Agreement and all other written information
furnished to the Lenders by or on behalf of the Borrowers in connection herewith
did not taken as a whole contain any untrue statement of material fact or omit
to state a material fact necessary in order to make the information contained
herein and therein not misleading.
6.10 Use of Proceeds; Margin Regulations. (a) All proceeds of the A
Term Loans and B Term Loans shall be used (i) to finance the repayment of
amounts owing pursuant to the Existing Credit Agreement and (ii) to pay the fees
and expenses incurred in connection with the transactions contemplated hereby.
All proceeds of Incremental Term Loans incurred by Silgan shall be used (i) to
finance Permitted Acquisitions (and to pay the fees and expenses related
thereto) and to refinance any Indebtedness assumed as part of any such Permitted
Acquisitions (and to pay all accrued and unpaid interest thereon, any prepayment
premium associated therewith and the fees and expenses related thereto), (ii) to
finance Permitted Subordinated Debt Repurchases (and to pay all accrued and
unpaid interest thereon, any prepayment premium associated therewith and the
fees and expenses related thereto) and (iii) to prepay outstanding Revolving
Loans. All proceeds of Incremental Term Loans incurred by any Foreign
Incremental Term Loan Borrower shall be used to finance Permitted Acquisitions
(and to pay the fees and expenses related thereto) made by any member of the
Related Foreign Company Group of such Foreign Incremental Term Loan Borrower and
to refinance any Indebtedness assumed as part of any such Permitted Acquisitions
(and to pay all accrued and unpaid interest thereon, any prepayment premium
associated therewith and the fees and expenses related thereto).
(b) The proceeds of all Revolving Loans and Swingline Loans incurred
by each Revolving Borrower shall be utilized (i) (x) to finance the repayment of
amounts owing
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pursuant to the Existing Credit Agreement and (y) to pay the fees and expenses
incurred in connection with the transactions contemplated hereby and (ii) for
such Revolving Borrower's general corporate and working capital purposes and for
the general corporate and working capital purposes of its respective
Subsidiaries, including the payment of Dividends, the repayment of certain
Indebtedness, the financing of Permitted Acquisitions and the making of
Investments, in each case to the extent and for the purposes permitted herein.
(c) No part of any Credit Event (or the proceeds thereof) will be used
by any Borrower or any Subsidiary thereof to purchase or carry any Margin Stock
or to extend credit to others for the purpose of purchasing or carrying any
Margin Stock except to the extent permitted by Section 8.03(iv). The value of
all Margin Stock at any time owned by Silgan and its Subsidiaries does not, and
will not, exceed 25% of the value of the assets of Silgan and its Subsidiaries
taken as a whole. Neither the making of any Loan nor the use of the proceeds
thereof nor the occurrence of any other Credit Event will violate or be
inconsistent with the provisions of Regulations T, U or X of the Board of
Governors of the Federal Reserve System.
6.11 Tax Returns and Payments. Each of the Borrowers and each of its
Subsidiaries has timely filed with the appropriate taxing authority all federal
tax returns and all other material tax returns, domestic and foreign, required
to be filed by it and has paid all income taxes payable by it which have become
due pursuant to such tax returns and all other taxes and assessments payable by
it which have become due, other than those not yet delinquent and except for
those contested in good faith and for immaterial taxes. Each of the Borrowers
and each of its Subsidiaries has paid, or has provided adequate reserves (in the
good faith judgment of the management of such Borrower) for the payment of, all
federal and other material income taxes, domestic and foreign, applicable for
all prior fiscal years and for the current fiscal year to the date hereof.
6.12 Compliance with ERISA. (a) Each Plan is in substantial
compliance with ERISA and the Code; no Plan is insolvent or in reorganization;
no Plan other than a Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) has a material Unfunded Current Liability; no Plan has an
accumulated or waived material funding deficiency or has applied for an
extension of any amortization period within the meaning of Section 412 of the
Code; no Borrower nor any Subsidiary of any Borrower nor any ERISA Affiliate has
incurred any material liability to or on account of a Plan which is a
single-employer plan (as defined in Section 4001(a)(15) of ERISA) pursuant to
Section 4062, 4063 or 4064 of ERISA or a multiemployer plan (as defined in
Section 4001(a)(3) of ERISA) pursuant to Section 515, 4201 or 4204 of ERISA; no
proceedings have been instituted to terminate any Plan; and no condition exists
which presents a material risk to any Borrower or any Subsidiary of any Borrower
or any ERISA Affiliate of incurring a material liability to or on account of a
Plan pursuant to any of the foregoing Sections of ERISA or the Code; no lien
imposed under the Code or ERISA on the assets of any Borrower or any Subsidiary
of any Borrower or any ERISA Affiliate exists or is likely to arise on account
of any Plan; and each of the Borrowers and their Subsidiaries may terminate
contributions to any other employee benefit plans maintained by them (except as
provided pursuant to collective bargaining agreements) without incurring any
material liability to any person interested therein other than with respect to
benefits accrued prior to the date of termination. Notwithstanding anything to
the contrary contained in this Section 6.12, all representations and warranties
made in this Section 6.12 with respect to a Plan that is a
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multiemployer plan (as defined in Section 4001(a)(3) of ERISA) shall be to the
best knowledge of the Borrowers.
(b) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. All material
contributions required to be made with respect to a Foreign Pension Plan have
been timely made. Neither Silgan nor any of its Subsidiaries has incurred any
material obligation in connection with the termination of or withdrawal from any
Foreign Pension Plan. The present value of the accrued benefit liabilities
(whether or not vested) under all Foreign Pension Plans, determined as of the
end of Silgan's most recently ended fiscal year on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the current value of
the assets of such Foreign Pension Plans allocable to such benefit liabilities
by an amount which is material in relation to Silgan and its Subsidiaries taken
as a whole.
6.13 Subordination. The subordination provisions contained in all
notes, debentures, indentures and other instruments entered into or issued in
respect of any Permitted Subordinated Indebtedness are, or will be, enforceable
against the issuer of the respective security and the holders thereof and the
Loans and all other Obligations are, or will be, within the definition of
"Senior Indebtedness" contained therein.
6.14 Subsidiaries. Schedule V sets forth, as of the Initial Borrowing
Date, (i) each of the Subsidiaries of Silgan, (ii) the legal name of each such
Subsidiary, (iii) the jurisdiction of organization and the organizational
identification number (if any) of each such Subsidiary and (iv) the percentage
ownership (direct or indirect) of Silgan in each class of capital stock or other
equity interest of its Subsidiaries and also identifies the direct owner
thereof.
6.15 Compliance with Statutes etc. (a) Each Borrower and each of its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including applicable statutes, regulations, orders and
restrictions relating to environmental standards and controls), except for any
failure to be in compliance therewith which could not reasonably be expected to,
either individually or in the aggregate, have a Material Adverse Effect.
(b) Each Borrower and each of its Subsidiaries has complied with all
applicable federal, state, provincial, foreign and local environmental laws
(including, without limitation, RCRA and CERCLA), regulations and ordinances
governing its business products, properties or assets with respect to all
discharges into the ground and surface water, emissions into the ambient air and
generation, accumulation, storage, treatment, transportation, labeling or
disposal of waste materials or process by-products, and none of the Borrowers
nor any of their Subsidiaries is liable for any penalties, fines or forfeitures.
All material licenses, permits or registrations required for the business of the
Borrowers and their Subsidiaries, as presently conducted, under any federal,
state or local environmental laws, regulations or ordinances have been secured
and each of the Borrowers and their Subsidiaries is in substantial compliance
therewith. None of the Borrowers nor any of their Subsidiaries is in
noncompliance with, breach of or default under any applicable writ, order,
judgment, injunction, or decree to which any such
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Person is a party and no event has occurred and is continuing which, with the
passage of time or the giving of notice or both, would constitute a
noncompliance, breach of or default thereunder. There are no legal or
governmental proceedings pending or, to the best of the Borrowers' knowledge
after reasonable investigation, threatened which (a) question the validity, term
or entitlement of any Borrower or any of its Subsidiaries of or to any material
permit, license, order or registration required for the operation of any
facility which any Borrower or any of its Subsidiaries currently operates and
(b) wherein an unfavorable decision, ruling or finding could have an adverse
effect on the financial viability of any of its facilities. To the best of the
Borrowers' knowledge and belief, none of the Borrowers nor any of their
Subsidiaries has disposed of or otherwise discharged any hazardous waste, toxic
substances or similar materials, the disposal of which could give rise to any
liability under applicable environmental laws and regulations.
Notwithstanding anything to the contrary in this Section 6.15(b), the
representations and warranties made in this Section 6.15(b) shall only be untrue
if the aggregate effect of all failures, noncompliances and penalties, fines or
forfeitures of the types described above in this Section 6.15(b) could
reasonably be expected to have a Material Adverse Effect.
6.16 Investment Company Act. None of the Borrowers nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
6.17 Public Utility Holding Company Act. None of the Borrowers nor any
of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
6.18 Labor Relations. None of the Borrowers nor any of their
respective Subsidiaries is engaged in any unfair labor practice that, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. There is (i) no unfair labor practice complaint pending
against any Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrowers, threatened against any of them, before the National Labor Relations
Board, and no grievance or arbitration proceeding arising out of or under
collective bargaining agreements is so pending against any Borrower or any of
its Subsidiaries or, to the best knowledge of the Borrowers, threatened against
any of them and (ii) no strike, labor dispute, slowdown or stoppage pending
against any Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrowers, threatened against any Borrower or any of its Subsidiaries, except
(with respect to any matter specified in clause (i) or (ii) above, either
individually or in the aggregate) such as could not reasonably be expected to
have a Material Adverse Effect.
6.19 Patents, Licenses, Franchises and Formulas. Each Borrower and
each of its Subsidiaries owns all the patents, trademarks, permits, service
marks, trade names, copyrights, domain names, licenses, franchises and formulas,
or rights with respect to the foregoing, and has obtained assignments of all
leases and other rights of whatever nature, necessary for the present conduct of
its business, without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
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Section 7. Affirmative Covenants. Each Borrower covenants and agrees
as to itself and its Subsidiaries that on and after the Effective Date and until
the Total Commitment and all Letters of Credit have terminated and the Loans,
Notes and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder and thereunder are paid in full:
7.01 Information Covenants. Silgan will furnish to the Administrative
Agent (who will then promptly furnish a copy of same to each Lender):
(a) Quarterly Financial Statements. Within 60 days (or 120 days in the
case of the fourth fiscal quarter) after the close of each quarterly
accounting period in each fiscal year of Silgan, the consolidated and
consolidating balance sheets of Silgan and its Subsidiaries and
Unrestricted Subsidiaries as at the end of such quarterly accounting period
and the related consolidated and consolidating statements of income and
cash flow for such quarterly accounting period and for the elapsed portion
of the fiscal year ended with the last day of such quarterly accounting
period, in each case setting forth comparative figures for the related
periods in the prior fiscal year, all of which shall be certified by the
chief financial officer, treasurer or controller of Silgan, subject to
normal year-end audit adjustments.
(b) Annual Financial Statements. Within 120 days after the close of
each fiscal year of Silgan, the consolidated and consolidating balance
sheets of Silgan and its Subsidiaries and Unrestricted Subsidiaries as at
the end of such fiscal year and the related consolidated and consolidating
statements of income and cash flow for such fiscal year, in each case
setting forth comparative figures for the preceding fiscal year and
certified, in the case of the consolidated financial statements, by
independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent, and in the case of the
consolidating financial statements, by the chief financial officer,
treasurer or controller of Silgan, in each case together with a report of
such accounting firm stating that in the course of its regular audit of the
financial statements of Silgan and its Subsidiaries and Unrestricted
Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm obtained no knowledge of
any Default or Event of Default which has occurred and is continuing or, if
in the opinion of such accounting firm such a Default or an Event of
Default has occurred and is continuing, a statement as to the nature
thereof.
(c) Management Letters. Promptly after Silgan's receipt thereof, a
copy of any "management letter" received by Silgan from its certified
public accountants.
(d) Budgets; Forecasts. Within 75 days after the first day of each
fiscal year of Silgan, (i) a budget in form and scope reasonably
satisfactory to the Administrative Agent (including budgeted statements of
income and sources and uses of cash and balance sheets) prepared by Silgan
for each of the twelve months beginning on the first day of such fiscal
year accompanied by the statement of the chief financial officer, treasurer
or controller of Silgan to the effect that, to the best of such officer's
knowledge, the budget is a reasonable estimate for the period covered
thereby and (ii) a forecast of operations and sources and uses of cash for
the five-year period beginning on the first day of such fiscal year,
setting forth the assumptions made in preparing such forecast and
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accompanied by the statement of the chief financial officer, treasurer or
controller of Silgan to the effect that, to the best of such officer's
knowledge, the forecast is a reasonable estimate for the period covered
thereby.
(e) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 7.01(a) and (b), a
certificate of the chief financial officer, treasurer or controller of
Silgan to the effect that, (A) to the best of such officer's knowledge, no
Default or Event of Default has occurred and is continuing or, if any
Default or Event of Default has occurred and is continuing, specifying the
nature and extent thereof, which certificate shall set forth (in reasonable
detail) the calculations required to establish (i) in the case of the
statements delivered pursuant to Section 7.01(a), (I) whether the Borrowers
were in compliance with the provisions of Sections 4.02(f), 4.02(g),
4.02(h), 4.02(j), 8.03(iii), 8.03(iv), 8.04(xiii), 8.05(xiv), 8.08 and 8.09
at the end of such fiscal quarter, (II) the amount of Cumulative
Consolidated Net Income, the Net Equity Proceeds Amount, the Permitted
Additional Investment Basket Amount, the Consolidated Tangible Assets and
the Retained Excess Cash Flow Amount at the end of such fiscal quarter,
(III) the Senior Leverage Ratio at the end of such fiscal quarter, and (IV)
the Applicable Margin and the Applicable Commitment Commission Percentage
at such time, and (ii) in the case of the statements delivered pursuant to
Section 7.01(b), (I) the amount of the Excess Cash Flow for the respective
fiscal year, (II) the amount of any mandatory prepayments and/or commitment
reductions required pursuant to Sections 3.03 and/or 4.02 during such
fiscal year, (III) whether the Borrowers were in compliance with the
provisions of Sections 8.01(xx), 8.02(v), 8.02(vi), 8.03, 8.04, 8.05 and
8.07 through 8.09, inclusive, at the end of such fiscal year, (IV) the
amount of Cumulative Consolidated Net Income, the Net Equity Proceeds
Amount, the Permitted Additional Investment Basket Amount, the Consolidated
Tangible Assets and the Retained Excess Cash Flow Amount at the end of such
fiscal year, (V) the Senior Leverage Ratio at the end of such fiscal year,
and (VI) the Applicable Margin and the Applicable Commitment Commission
Percentage at such time and (B) no changes are required to be made to any
of Annexes C and F of the US Security Agreement or Annexes A through F,
inclusive, and Annex H, in each case of the US Pledge Agreement, in each
case so as to make the information set forth therein accurate and complete
as of the date of such certificate, or to the extent that such information
is no longer accurate and complete as of such date, list in reasonable
detail all information necessary to make all such Annexes accurate and
complete (at which time such Annexes shall be deemed modified to reflect
such information).
(f) Notice of Default or Litigation. Promptly, and in any event within
three Business Days after an officer of any Borrower obtains knowledge
thereof, notice of (i) the occurrence of any event which constitutes a
Default or an Event of Default, (ii) any litigation or governmental
proceeding pending (x) against any Borrower or any of its Subsidiaries
which could reasonably be expected to have a Material Adverse Effect or (y)
with respect to any Credit Document and (iii) any other event (including
any such event relating to environmental matters) which is reasonably
likely to have a Material Adverse Effect.
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(g) Other Reports and Filings. Promptly, copies of all financial
information, proxy materials and other information and reports, if any, (i)
which any Borrower shall file with the Securities and Exchange Commission
or any governmental agencies substituted therefor (the "SEC") or (ii) which
Silgan shall deliver to the holders of, or to the trustee with respect to,
the 9% Senior Subordinated Debentures or any Additional Permitted
Subordinated Indebtedness.
(h) CanCo Monthly Reports. So long as the CanCo Restrictions are in
effect, within 30 days after the end of each fiscal month of CanCo, (i) the
unaudited balance sheet of CanCo as at the end of such fiscal month which
shall be certified by the chief financial officer, treasurer or controller
of Silgan or CanCo or by the president or vice-president of finance of
CanCo and (ii) a certificate of the chief financial officer, treasurer or
controller of Silgan or CanCo or of the president or vice-president of
finance of CanCo setting forth (in reasonable detail) (A) the calculations
required to establish the CanCo Permitted Debt Amount and the aggregate
outstanding amount of all CanCo Included Debt as at the end of such fiscal
month and (B) the aggregate outstanding amount of all Revolving Loans and
Swingline Loans made to CanCo and the aggregate outstanding amount of all
Letter of Credit Outstandings in respect of Letters of Credit issued for
the account of CanCo as at the end of the Business Day immediately
preceding the date of such certificate.
(i) Other Information. From time to time, such other information or
documents (financial or otherwise) as the Administrative Agent, any other
Agent or the Required Lenders may reasonably request.
7.02 Books, Records and Inspections. Each of the Borrowers will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries in conformity with accounting principles
generally accepted in the United States (or, in the case of a Foreign Subsidiary
of Silgan, in the jurisdiction of organization of such Foreign Subsidiary) and
all requirements of law shall be made of all dealings and transactions in
relation to its business and activities. Each of the Borrowers will, and will
cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative Agent, any other Agent or any Lender to
visit and inspect, under guidance of officers of such Borrower or such
Subsidiary, any of the properties of such Borrower or such Subsidiary, and,
under guidance of officers of such Borrower or such Subsidiary, to examine the
books of account of such Borrower or such Subsidiary and discuss the affairs,
finances and accounts of such Borrower or such Subsidiary with, and be advised
as to the same by, its and their officers and independent public accountants (so
long as an officer of such Borrower or Subsidiary is present), all at such
reasonable times and intervals and to such reasonable extent as the
Administrative Agent, such other Agent or such Lender may request upon
reasonable prior notice. In connection with the foregoing, the Administrative
Agent, the other Agents and the Lenders agree to keep any information delivered
or made available by the Borrowers which the Borrowers clearly indicate to be
confidential information confidential in accordance with Section 12.15.
7.03 Maintenance of Property; Insurance. (a) Each of the Borrowers
will, and will cause each of its Subsidiaries to, (i) keep all property useful
and necessary in its business in reasonable working order and condition,
ordinary wear and tear excepted, (ii) maintain with
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financially sound and reputable insurance companies insurance on all of its
property and against at least such risks and in at least such amounts as (in
each case) is consistent with prudent risk management and industry practice and
(iii) furnish to the Administrative Agent and each Lender, upon written request,
full information as to the insurance carried.
(b) To the extent that insurance is required to be maintained in
accordance with clause (a) above in this Section 7.03, each Borrower will, and
will cause each of the other Credit Parties to, at all times keep its property
insured in favor of the Collateral Agent, and all policies or certificates (or
certified copies thereof) with respect to such insurance (and any other
insurance maintained by such Borrower and/or such other Credit Parties) (i)
shall be endorsed to the Collateral Agent's satisfaction for the benefit of the
Collateral Agent (including, without limitation, by naming the Collateral Agent
as loss payee and/or additional insured), (ii) shall state that such insurance
policies shall not be canceled without at least 30 days' prior written notice
thereof by the respective insurer to the Collateral Agent, and (iii) shall be
deposited with the Collateral Agent.
7.04 Franchises. Each of the Borrowers will, and will cause each of
its Subsidiaries to, do or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its rights, franchises,
licenses and patents, except for those rights, franchises, licenses and patents
the loss of which, either individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect; provided, however, that nothing
in this Section 7.04 shall prevent (i) the withdrawal by any Borrower or any of
its Subsidiaries of its qualification as a foreign corporation, partnership or
limited liability company, as the case may be, in any jurisdiction where such
withdrawal, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect or (ii) any transaction permitted by
Section 8.02.
7.05 Compliance with Statutes; etc. Each of the Borrowers will, and
will cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except for any failure to be in compliance therewith which could not,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
7.06 ERISA. (a) As soon as possible and in any event within 30 days
after any Borrower or any Subsidiary of any Borrower or any ERISA Affiliate
knows or has reason to know: that a Reportable Event has occurred with respect
to a Plan (except to the extent that such Borrower has previously delivered to
the Lenders a certificate and notice (if any) concerning such event pursuant to
the next clause hereof); that a contributing sponsor (as defined in Section
4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA is subject to the
advance reporting requirement of PBGC Regulation Section 4043.61 (without regard
to subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
..64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following 30 days; that with
respect to a Plan, a material accumulated funding deficiency has been incurred
or an application is to be or has been made to the Secretary of the Treasury for
a waiver or modification of the minimum funding standard (including any required
installment
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payments) or an extension of any amortization period under Section 412 of the
Code; that a Plan has been or is likely to be terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA; that a Plan other
than a Plan which is a multiemployer plan (as defined in Section 4001(a)(3) of
ERISA) has a material Unfunded Current Liability; that proceedings have been
instituted or may reasonably be expected to be instituted to terminate a Plan;
or that any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate will
incur or is likely to incur any material liability to or on account of a Plan
which is a single-employer plan (as defined in Section 4001(a)(15) of ERISA)
under Section 4062, 4063 or 4064 of ERISA, or which is a multiemployer plan (as
defined in Section 4001(a)(3) of ERISA) under Section 515, 4201 or 4204 of
ERISA, Silgan will (in each such case) deliver to the Administrative Agent a
certificate of the chief financial officer or treasurer of Silgan setting forth
details as to such occurrence and action, if any, which such Borrower or
Subsidiary or ERISA Affiliate is required or proposes to take, together with any
notices required to be given to or filed with or by such Borrower or Subsidiary,
the ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with
respect thereto. Silgan will deliver to the Administrative Agent, upon request
by the Administrative Agent, a complete copy of the annual report (Form 5500) of
each Plan that is not (i) a multiemployer plan (as defined in Section 4001(a)(3)
of ERISA) or (ii) a Plan which is no longer maintained or contributed to by any
Borrower, any Subsidiary of any Borrower or an ERISA Affiliate, in each case
which is required to be filed with the Internal Revenue Service. Copies of any
other notices required to be delivered to the Lenders hereunder shall be
delivered no later than 30 days after the later of the date such report or
notice has been filed with the Internal Revenue Service or the PBGC, given to
Plan participants or received by any Borrower or any of its Subsidiaries or any
ERISA Affiliate.
(b) As soon as possible and in any event within 30 days after any
Borrower or any Subsidiary of any Borrower knows or has reason to know of the
occurrence of any of the following events (to the extent that any such events,
either individually or in the aggregate, could reasonably be expected to be
material to Silgan and its Subsidiaries taken as a whole), Silgan will deliver
to the Administrative Agent, a certificate of the chief financial officer or
treasurer of Silgan setting forth the full details as to such occurrence and the
action, if any, that Silgan or such Subsidiary is required or proposes to take,
together with any notices required or proposed to be given to or filed with or
by Silgan, such Subsidiary or a Foreign Pension Plan participant with respect
thereto: that any contribution required to be made with respect to a Foreign
Pension Plan has not been timely made; or that Silgan or any Subsidiary of
Silgan may incur any liability pursuant to any Foreign Pension Plan. In addition
to any certificates or notices delivered to the Administrative Agent pursuant to
the first sentence hereof, copies of any material notices received by Silgan or
any Subsidiary of Silgan with respect to any Foreign Pension Plan shall be
delivered to the Administrative Agent no later than 30 days after the date such
notice has been received by Silgan or such Subsidiary, as applicable.
7.07 End of Fiscal Years; Fiscal Quarters. Each Borrower will cause
(i) each of its, and each of its Domestic Subsidiaries', fiscal years to end on
December 31 and (ii) each of its, and each of its Domestic Subsidiaries', fiscal
quarters to end on March 31, June 30, September 30 and December 31.
7.08 Taxes. Each of the Borrowers will, and will cause each of its
Subsidiaries to, pay when due all taxes which, if not paid when due, could
reasonably be expected to have a
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Material Adverse Effect except as contested in good faith and by appropriate
proceedings if adequate reserves (in the good faith judgment of the management
of Silgan) have been established with respect thereto.
7.09 Additional Security; Further Assurances; etc. (i) Each of the
Borrowers will, and will cause each of the US Subsidiary Guarantors and Related
Foreign Company Guarantors to, grant to the Collateral Agent, for the benefit of
the Secured Creditors described in the Security Documents to which such Credit
Party is a party, security interests and Mortgages in such assets and properties
of such Credit Party as are not covered by the original Security Documents to
which such Credit Party is a party, or as may be requested from time to time by
the Required Lenders (the "Additional Security Documents"). Such security
interests and Mortgages shall be granted pursuant to documentation reasonably
satisfactory in form and substance to the Administrative Agent and shall (except
as otherwise consented to by the Required Lenders) constitute valid and
enforceable perfected security interests superior to and prior to the rights of
all third Persons and subject to no other Liens, except Permitted Liens. The
Additional Security Documents or other instruments related thereto shall have
been duly recorded or filed in such manner and in such places as are required by
law to establish, perfect, preserve and protect the Liens, in favor of the
Collateral Agent for the benefit of the respective Secured Creditors, required
to be granted pursuant to the Additional Security Documents and all taxes, fees
and other charges payable in connection therewith shall have been paid in full.
Notwithstanding the foregoing, (x) this Section 7.09(a) shall not apply to any
operating lease which by its terms prevents the respective Credit Party from
granting a security interest therein, provided that such Credit Party shall use
reasonable good faith efforts at the time it enters into any such lease, to have
any such restrictive terms eliminated and (y) unless otherwise permitted (or not
restricted) by the applicable CanCo Restrictions then in effect, any Additional
Security Documents entered into by CanCo shall only secure CanCo's direct
obligations under the Credit Documents to which it is a party.
(b) Each of the Borrowers will, and will cause each of the other
Credit Parties to, at its own expense, make, execute, endorse, acknowledge, file
and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports, landlord-lender agreements and other assurances or
instruments and take such further steps relating to the Collateral covered by
any of the Security Documents as the Collateral Agent may reasonably require.
Furthermore, the Borrowers shall cause to be delivered to the Collateral Agent
such opinions of counsel, title insurance and other related documents as may be
reasonably requested by the Administrative Agent to assure themselves that this
Section 7.09 has been complied with.
(c) Each of the Borrowers agrees that each action required above by
this Section 7.09 shall be completed as soon as possible, but in no event later
than 90 days after such action is requested to be taken by the Administrative
Agent or the Required Lenders.
(d) At such time as the applicable CanCo Restrictions cease to be
effective, (i) Silgan will cause CanCo Holding to pledge and deliver to the
Collateral Agent pursuant to the US Pledge Agreement all of the capital stock of
CanCo, (ii) CanCo will execute and deliver to the Administrative Agent a
counterpart of the US Borrowers/Subsidiaries Guaranty and (iii)
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CanCo will deliver to the Administrative Agent such officer's certificates,
board of directors resolutions and opinions of counsel as may be reasonably
requested by, and in form, scope and substance reasonably satisfactory to, the
Administrative Agent.
7.10 Foreign Subsidiaries Security. (a) If following a change in the
relevant sections of the Code or the regulations, rules, revenue rulings,
notices or other official pronouncements issued or promulgated thereunder,
counsel for Silgan reasonably acceptable to the Administrative Agent does not
within 30 days after a request from the Administrative Agent or the Required
Lenders deliver a written opinion or other evidence, in form and substance
reasonably satisfactory to the Administrative Agent, with respect to any Foreign
Subsidiary of Silgan which has not already had all of its stock pledged pursuant
to the US Pledge Agreement that (i) a pledge of 66-2/3% or more of the total
combined voting power of all classes of capital stock of such Foreign Subsidiary
entitled to vote to secure the Obligations of the US Credit Parties, (ii) the
entering into by such Foreign Subsidiary of a security agreement in
substantially the form of the US Security Agreement to secure the Obligations of
the US Borrowers and of such Foreign Subsidiary under the US
Borrowers/Subsidiaries Guaranty, (iii) the entering into by such Foreign
Subsidiary of a pledge agreement substantially in the form of the US Pledge
Agreement to secure the Obligations of the US Borrowers and of such Foreign
Subsidiary under the US Borrowers/Subsidiaries Guaranty and (iv) the entering
into by such Foreign Subsidiary of a guaranty in substantially the form of the
US Borrowers/Subsidiaries Guaranty guaranteeing the Obligations of the US
Borrowers, in any such case could reasonably be expected to cause the
undistributed earnings of such Foreign Subsidiary as determined for U.S. Federal
income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's United States parent for Federal income tax purposes, then (A) in
the case of a failure to deliver the evidence described in clause (i) above,
that portion of such Foreign Subsidiary's outstanding capital stock so issued by
such Foreign Subsidiary not theretofore pledged pursuant to the US Pledge
Agreement to secure the Obligations of the US Credit Parties shall be pledged to
the Collateral Agent for the benefit of the Secured Creditors pursuant to the US
Pledge Agreement (or another pledge agreement in substantially similar form, if
needed), (B) in the case of a failure to deliver the evidence described in
clause (ii) or (iii) above, such Foreign Subsidiary (only to the extent that
same is a Foreign Credit Party) shall execute and deliver the US Security
Agreement (or another security agreement in substantially similar form, if
needed) and the US Pledge Agreement (or another pledge agreement in
substantially similar form, if needed), as the case may be, granting to the
Collateral Agent for the benefit of the Secured Creditors a security interest in
all of such Foreign Subsidiary's assets or the capital stock and promissory
notes owned by such Foreign Subsidiary, as the case may be, and securing the
Obligations of the US Borrowers and, in the event the US Borrowers/Subsidiaries
Guaranty shall have been executed by such Foreign Subsidiary, the obligations of
such Foreign Subsidiary thereunder, and (C) in the case of a failure to deliver
the evidence described in clause (iv) above, such Foreign Subsidiary (to the
extent that same is a Foreign Credit Party) shall execute and deliver the US
Borrowers/Subsidiaries Guaranty (or another guaranty in substantially similar
form, if needed), guaranteeing the Obligations of the US Borrowers, in each case
to the extent that the entering into of the US Security Agreement, the US Pledge
Agreement or the US Borrowers/Subsidiaries Guaranty (or substantially similar
documents) is permitted by the laws of the respective foreign jurisdiction
(after complying with any "whitewash" or other applicable proceedings) and with
all documents delivered pursuant to this Section 7.10 to be in form and
substance reasonably satisfactory to the Administrative Agent.
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(b) The Lenders understand and agree that to the extent the capital
stock of Canadian Holdco, Silgan Plastics Canada or any other Subsidiary of
Canadian Holdco is required to be pledged pursuant to the Canadian Credit
Facility, such capital stock shall not be required to be pledged pursuant to
this Agreement (and to the extent that such capital stock has theretofore been
pledged pursuant to the US Pledge Agreement, such capital stock shall be
released from the Liens created thereunder).
7.11 Real Estate Appraisals. In the event that the Administrative
Agent, any other Agent or the Required Lenders at any time after the Initial
Borrowing Date determine in its or their good faith discretion (as a result of
events or circumstances affecting the Collateral Agent or the Required Lenders
after the Initial Borrowing Date) that real estate appraisals satisfying the
requirements set forth in 12 C.F.R., Part 34-Subpart C, or any successor or
similar statute, rule, regulation, guideline or order (any such appraisal a
"Required Appraisal") are or were required to be obtained, or should be
obtained, in connection with any Mortgaged Property or Mortgaged Properties,
then, within 120 days after receiving written notice thereof from the
Administrative Agent, such other Agent or the Required Lenders, as the case may
be, such Required Appraisal shall be delivered, at the expense of Silgan, to the
Administrative Agent, which Required Appraisal, and the respective appraiser,
shall be reasonably satisfactory to the Agents.
7.12 Margin Stock. Each of the Borrowers will, and will cause each of
their respective Subsidiaries to, take any and all actions as may be required to
ensure that no capital stock pledged, or required to be pledged, pursuant to any
Security Document shall constitute Margin Stock.
7.13 CanCo Capital Contributions. If, at any time that CanCo has any
Revolving Loans or Swingline Loans outstanding, CanCo makes or pays any Dividend
to Silgan or any of its Subsidiaries, then immediately after Silgan or any of
its Subsidiaries receives any such Dividend from CanCo, Silgan will, and will
cause its respective Subsidiaries to, immediately contribute the full amount of
such Dividend to CanCo as an equity contribution, and CanCo shall use the full
amount of any such cash capital contribution to make a payment pursuant to (and
to the extent required by) Section 4.02(p).
7.14 Use of Proceeds. Each Borrower will use the proceeds of the Loans
incurred by it only as provided in Section 6.10.
7.15 Maintenance of Corporate Separateness. Each Borrower will cause
each of its Unrestricted Subsidiaries to satisfy customary corporate
formalities, including, as applicable, the holding of regular board of
directors' and shareholders' meetings or action by directors or shareholders
without a meeting and the maintenance of corporate offices and records. No
Borrower nor any of its Subsidiaries shall make any payment to a creditor of any
Unrestricted Subsidiary in respect of any liability of any Unrestricted
Subsidiary except pursuant to any guaranty given by such Borrower or Subsidiary
to such creditor pursuant to Section 8.04(xiii), and no bank account or similar
account of any Unrestricted Subsidiary shall be commingled with any bank account
or similar account of Silgan or any of its Subsidiaries. Any financial
statements distributed to any creditors of any Unrestricted Subsidiary shall
clearly establish or indicate the corporate separateness of such Unrestricted
Subsidiary from Silgan and its
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Subsidiaries. Finally, neither Silgan nor any of its Subsidiaries shall take any
action, or conduct its affairs in a manner, which is likely to result in the
corporate existence of Silgan or any of its Subsidiaries or Unrestricted
Subsidiaries being ignored, or in the assets and liabilities of Silgan or any of
its Subsidiaries being substantively consolidated with those of any other such
Person or any Unrestricted Subsidiary in a bankruptcy, reorganization or other
insolvency proceeding.
Section 8. Negative Covenants. Each Borrower covenants and agrees as
to itself and its Subsidiaries that on and after the Effective Date and until
the Total Commitment and all Letters of Credit have terminated and the Loans,
Notes and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder and thereunder are paid in full:
8.01 Liens. None of the Borrowers will, nor will it permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
such Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets
(including sales of accounts receivable with recourse to any Borrower or any of
its Subsidiaries), or assign any right to receive income or permit the filing of
any financing statement under the UCC or any other similar notice of Lien under
any similar recording or notice statute; provided that the provisions of this
Section 8.01 shall not prevent the creation, incurrence, assumption or existence
of the following Liens (collectively, "Permitted Liens"):
(i) inchoate Liens for taxes not yet due and payable, or Liens for
taxes being contested in good faith and by appropriate proceedings for
which adequate reserves (in the good faith judgment of the management of
Silgan) have been established;
(ii) Liens in respect of property or assets of any Borrower or any of
its Subsidiaries imposed by law, which were incurred in the ordinary course
of business, such as carriers', warehousemen's and mechanics' liens and
other similar Liens arising in the ordinary course of business, and (x)
which do not in the aggregate materially detract from the value of such
property or assets or materially impair the use thereof in the operation of
the business of such Borrower or such Subsidiary or (y) which are being
contested in good faith by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the property or assets
subject to such Lien;
(iii) Liens in existence on the Initial Borrowing Date which are
listed, and the property subject thereto described, in Schedule VI, plus
any renewals, replacements and extensions of any such Liens, provided that
(x) the aggregate principal amount of the Indebtedness, if any, secured by
such Liens does not increase from that amount outstanding at the time of
any such renewal, replacement or extension plus, in the case of a revolving
credit facility, any unutilized commitments thereunder at such time (but
only to the extent that such commitments were in effect on the Initial
Borrowing Date), (y) the terms of any such Indebtedness are no more
restrictive in any material respect than the terms of the Indebtedness
being renewed, replaced or extended and (z) any such renewal, replacement
or extension does not encumber any additional assets or properties of
Silgan or any of its Subsidiaries;
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(iv) Liens created pursuant to the Security Documents;
(v) pledges or deposits in connection with worker's compensation,
unemployment insurance and other social security legislation;
(vi) deposits made in the ordinary course of business (including,
without limitation, surety bonds) to secure the performance of tenders,
bids, leases, contracts (other than for the repayment of Indebtedness),
statutory obligations and other similar obligations, provided that the
aggregate amount of cash and the fair market value (as determined in good
faith by management of Silgan) of non-cash collateral so deposited shall at
no time exceed $10,000,000;
(vii) Permitted Encumbrances on the Mortgaged Properties, and
easements, rights-of-way, zoning restrictions and other similar
restrictions, charges or encumbrances which do not materially interfere
with the ordinary conduct of the business of any Borrower or any of its
Subsidiaries and which do not materially detract from the value of the
property to which they attach or impair the use thereof to any Borrower or
any of its Subsidiaries;
(viii) Liens created by virtue of Capitalized Lease Obligations,
provided that such Liens are only in respect of the property or assets
subject to, and secure only, the respective capitalized lease;
(ix) leases or subleases granted to other Persons in the ordinary
course of business not materially interfering with the conduct of the
business of any Borrower or any of its Subsidiaries;
(x) Liens placed upon equipment, machinery or other materials used in
the ordinary course of business of any Borrower or any of its Subsidiaries
(other than the Receivables Subsidiary) at the time of the acquisition
thereof by such Borrower or such Subsidiary or within 120 days thereafter
to secure Indebtedness incurred to pay all or a portion of the purchase
price thereof or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of any such equipment, machinery or other
materials or extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount, provided that (x) the aggregate
outstanding principal amount of all Indebtedness secured by Liens permitted
by this clause (x) shall not at any time exceed $50,000,000 and (y) in all
events, the Lien encumbering the equipment, machinery or other materials so
acquired does not encumber any other asset of such Borrower or such
Subsidiary (other than the proceeds of such equipment, machinery or other
materials);
(xi) statutory and common law landlords' liens under leases to which
any Borrower or any of its Subsidiaries is a party;
(xii) Liens existing on any asset prior to the acquisition thereof
pursuant to a Permitted Acquisition so long as any such Liens were not
created in contemplation of such acquisition and any such Liens do not
extend to any other assets of any Borrower or any of its Subsidiaries, plus
any renewals, replacements and extensions of any such Liens, provided that
(x) the aggregate principal amount of the Indebtedness, if any,
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secured by such Liens does not increase from that amount outstanding at
the time of any such renewal, replacement or extension plus (I) in the
case of a revolving credit facility, any unutilized commitments thereunder
at such time (but only to the extent that such commitments were in effect
at the time of such acquisition and were not created in contemplation
thereof) and (II) the reasonable fees and expenses incurred in connection
therewith, (y) the terms of any such Indebtedness are no more restrictive
in any material respect than the terms of the Indebtedness being renewed,
replaced or extended and (z) any such renewal, replacement or extension
does not encumber any additional assets or properties of Silgan or any of
its Subsidiaries;
(xiii) Liens granted by the Receivables Subsidiary on those accounts
receivable and related assets sold by it pursuant to the Accounts
Receivable Facility Documents to the extent that such Liens are created by
the Accounts Receivable Facility Documents;
(xiv) Liens on the capital stock of Canadian Holdco and on the assets
of Canadian Holdco and/or any of its Foreign Subsidiaries that are
organized under the laws of Canada (or any province thereof) to secure the
obligations under the Canadian Credit Facility so long as such Liens do not
extend to any other assets of any Borrower or any of its other
Subsidiaries;
(xv) Liens arising out of judgments or awards (including deposits to
secure appeal bonds) in respect of which Silgan or any of its Subsidiaries
shall in good faith be prosecuting an appeal or proceedings for review in
respect of which there shall have been secured a subsisting stay of
execution pending such appeal or proceedings, provided that the aggregate
amount of such judgments and the aggregate amount of any cash and the fair
market value (as determined in good faith by management of Silgan) of any
other property pledged by Silgan and its Subsidiaries to secure such Liens
does not exceed $7,500,000 at any time outstanding;
(xvi) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(xvii) so long as the applicable CanCo Restrictions are in effect,
Liens on the capital stock of CanCo in favor of ▇▇▇▇▇▇▇▇ Soup solely to
secure the respective Credit Parties' obligations to ▇▇▇▇▇▇▇▇ Soup under
the ▇▇▇▇▇▇▇▇ Can Acquisition Documents;
(xviii) so long as the applicable CanCo Restrictions are in effect,
Liens on the capital stock and assets of CanCo created by virtue of
▇▇▇▇▇▇▇▇ Soup's option to purchase all of CanCo's capital stock or assets
as set forth in the ▇▇▇▇▇▇▇▇ Can Acquisition Documents;
(xix) Liens placed upon the accounts receivable and inventory of a
Foreign Subsidiary of Silgan to secure such Foreign Subsidiary's
Indebtedness incurred pursuant to Section 8.04(xviii); provided, however,
to the extent that such Foreign Subsidiary is a Foreign Credit Party, the
Collateral Agent shall retain a second Lien on such accounts receivable and
inventory pursuant to intercreditor arrangements reasonably acceptable to
the Administrative Agent; and
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(xx) Liens (other than in respect of the Receivables Subsidiary and,
so long as the CanCo Restrictions are in effect, CanCo) not otherwise
permitted by the provisions of this Section 8.01 to the extent securing
liabilities not in excess of $25,000,000 in the aggregate; provided,
however, that if such Liens are consensual Liens, those Liens shall not
encumber properties or assets with an aggregate fair market value (as
determined in good faith by management of Silgan) in excess of $35,000,000.
8.02 Consolidation, Merger, Sale of Assets, etc. None of the Borrowers
will, nor will it permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of all or any part of its property
or assets, or purchase or otherwise acquire (in one or a series of related
transactions) any part of the property or assets (other than purchases or other
acquisitions of inventory, materials and equipment in the ordinary course of
business) of any Person (or agree to do any of the foregoing at any future time
unless any such agreement is expressly made subject to obtaining the consent of
the Required Lenders), or permit any of its Subsidiaries so to do any of the
foregoing, except that:
(i) such Borrower and its Subsidiaries may make sales of inventory in
the ordinary course of business and sales of other assets in the ordinary
course of business not in excess of $1,000,000 per sale or series of
related sales;
(ii) such Borrower and its Subsidiaries may, in the ordinary course of
business, sell equipment and materials which are uneconomic or obsolete;
(iii) Capital Expenditures shall be permitted (other than by the
Receivables Subsidiary) to the extent not in violation of Section 8.07;
(iv) the Designated Credit Parties and the Receivables Subsidiary may
transfer and sell accounts receivable and related assets pursuant to, and
in accordance with the terms of, the Accounts Receivable Facility
Documents;
(v) Subsidiaries of Silgan may enter into sale and leaseback
transactions with respect to their equipment and Real Property, so long as
(v) no Default or Event of Default then exists or would result therefrom,
(w) each such sale and leaseback transaction is in an arm's length
transaction and the respective Subsidiary receives at least fair market
value (as determined in good faith by Silgan or such Subsidiary), (x) the
total consideration received by such Subsidiary is cash and is paid at the
time of the closing of such sale, (y) the Net Sale Proceeds therefrom are
applied and/or reinvested as (and to the extent) required by Section
4.02(j) and (z) the aggregate amount of all proceeds received from all sale
and leaseback transactions pursuant to this clause (v) shall not exceed the
greater of (I) $150,000,000 and (II) 10% of the Consolidated Tangible
Assets at such time (based on the most recently delivered financial
statements pursuant to Section 7.01);
(vi) such Borrower and its Subsidiaries may sell other assets (other
than (i) accounts receivable, (ii) pursuant to a sale and leaseback
transaction or (iii) the capital stock of the Receivables Subsidiaries or
the capital stock of any Subsidiary of Silgan which is a Credit Party
unless all of such capital stock of such Subsidiary is sold), so long
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as (v) no Default or Event of Default then exists or would result
therefrom, (w) each such sale is in an arm's length transaction and such
Borrower or such Subsidiary receives at least fair market value (as
determined in good faith by such Borrower or such Subsidiary, as the case
may be), (x) the total consideration received by such Borrower or such
Subsidiary is at least 80% cash and such cash is paid at the time of the
closing of such sale (although Containers and Manufacturing may sell their
seaboard containers facility and related assets located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ for consideration of less than 80% cash so long
as the aggregate purchase price for such sale does not exceed $3,500,000),
(y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and
to the extent) required by Section 4.02(f) and (z) the aggregate amount of
all proceeds received from all assets sold pursuant to this clause (vi)
shall not exceed $150,000,000;
(vii) Investments may be made to the extent permitted by Section 8.05;
(viii) (A) any Domestic Subsidiary of Silgan that is a US Credit Party
may merge with and into any other Domestic Subsidiary of Silgan that is a
US Credit Party, and (B) any Foreign Subsidiary of Silgan that is a Foreign
Credit Party may merge with and into any other Foreign Subsidiary of Silgan
that is a Foreign Credit Party, in each case so long as (i) if only one
such Subsidiary is a Wholly-Owned Subsidiary of Silgan, such Wholly-Owned
Subsidiary is the surviving corporation of such merger, (ii) if only one
such Subsidiary also is a Borrower, such Borrower is the surviving
corporation of such merger, (iii) the security interests granted to the
Collateral Agent for the benefit of the Secured Creditors pursuant to the
respective Security Documents in the assets of the Subsidiary which is
being merged out of existence shall remain in full force and effect and
perfected and (iv) if the Subsidiary that is being merged is a
non-Wholly-Owned Subsidiary of Silgan, the only consideration paid to the
minority shareholders of such non-Wholly-Owned Subsidiary is common stock
of Silgan, Qualified Preferred Stock of Silgan and/or cash and with the
payment of the merger consideration to be treated as a Permitted
Acquisition made pursuant to (and Silgan shall be required to satisfy the
requirements of) Section 8.02(x);
(ix) (A) any Domestic Subsidiary of Silgan (other than a US Credit
Party and the Receivables Subsidiary) may merge with and into any other
Domestic Subsidiary of Silgan (other than the Receivables Subsidiary), and
(B) any Foreign Subsidiary of Silgan (other than a Foreign Credit Party)
may merge with and into any other Foreign Subsidiary of Silgan, in each
case so long as (i) in the case of any merger involving a Credit Party, the
Credit Party is the surviving corporation of such merger, (ii) in the case
of any merger involving a Borrower, such Borrower is the surviving
corporation of such merger, (iii) if only one such Subsidiary is a
Wholly-Owned Subsidiary of Silgan, such Wholly-Owned Subsidiary is the
surviving corporation of such merger, and (iv) if the Subsidiary that is
being merged out of existence is a non-Wholly-Owned Subsidiary of Silgan,
the only consideration paid to the minority shareholders of such
non-Wholly-Owned Subsidiary is common stock of Silgan, Qualified Preferred
Stock of Silgan and/or cash and with the payment of the merger
consideration to be treated as a Permitted Acquisition made pursuant to
(and Silgan shall be required to satisfy the requirements of) Section
8.02(x);
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(x) Silgan and its Wholly-Owned Subsidiaries (other than the
Receivables Subsidiary) may acquire at least 80% of the capital stock of,
and Wholly-Owned Subsidiaries of Silgan (other than the Receivables
Subsidiary) may acquire all or substantially all of the assets of, any
Person (or any product line or division of such Person or any manufacturing
facility of such Person so long as the acquisition of any such
manufacturing facility does not constitute a Capital Expenditure) so long
as (i) no Default or Event of Default then exists or would result
therefrom, (ii) to the extent any such acquisition is structured as a
merger, such acquisition must be effected by (and the surviving entity must
remain or become) a Wholly-Owned Subsidiary of Silgan, (iii) to the extent
applicable, all of the provisions of Section 8.11 shall have been complied
with in respect of such acquisition, (iv) the Person or assets so acquired
was engaged or were used, as the case may be, primarily in the packaging
business, (v) the only consideration paid by Silgan or the respective
Wholly-Owned Subsidiary consists of cash, common stock of Silgan, Qualified
Preferred Stock of Silgan and/or Indebtedness permitted to be incurred
under Sections 8.04(xi) and (xix) and (vi) at least five Business Days
prior to the consummation of any such acquisition in which the aggregate
purchase price, together with the aggregate amount of Indebtedness assumed
in connection therewith, equals or exceeds $10,000,000, Silgan shall have
delivered to the Administrative Agent a certificate of its chief financial
officer or treasurer setting forth (in reasonable detail) the recalculation
of the Total Leverage Ratio on a Pro Forma Basis for the Test Period then
most recently ended prior to the date of such acquisition for which
financial statements have been delivered to the Lenders under this
Agreement, and such recalculation shall show that Silgan would have been in
compliance with Section 8.09 as of the last day of such Test Period (any
acquisition pursuant to this Section 8.02(x), a "Permitted Acquisition");
(xi) Subsidiaries of Silgan may from time to time sell individual
accounts receivable (other than as part of the Accounts Receivable
Facility) so long as (i) no Default or Event of Default then exists or
would result therefrom, (ii) each such sale is for cash which is paid at
the time of such sale and (iii) no more than $50,000,000 of accounts
receivable in the aggregate are sold pursuant to this clause (xi) in any
fiscal year of Silgan;
(xii) such Borrower and its Subsidiaries (other than CanCo and its
Subsidiaries) may sell inventory, materials, supplies, equipment and spare
parts to CanCo and its Subsidiaries, and CanCo may sell such items to other
Credit Parties, in each case, so long as all such sales are on an
arm's-length basis and are for cash (although in the case of the sale of
materials, supplies, equipment or spare parts, the consideration may be in
the form of the substantially simultaneous exchange for materials,
supplies, equipment or spare parts, as applicable, of equivalent value);
and
(xiii) any Subsidiary of Silgan that conducts no operations, has no
assets (other than immaterial assets) and has no liabilities (other than
immaterial liabilities) may be dissolved or liquidated.
Notwithstanding anything to the contrary contained above in this
Section 8.02 or elsewhere in this Agreement, so long as the CanCo Restrictions
are in effect, (x) in no event shall
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CanCo or any of its Subsidiaries be permitted to engage in any transaction
otherwise permitted by clauses (viii), (ix) and (x) of this Section 8.02, and
(y) in no event shall the capital stock of CanCo or any of its Subsidiaries be
sold directly, or through the sale of any parent company of CanCo, other than as
expressly permitted by Section 12.20(b) (which sale shall be in addition to
those already permitted under clause (vi) of this Section 8.02).
To the extent any Collateral is sold as permitted by this Section 8.02
or the Required Lenders waive the provisions of this Section 8.02 with respect
to the sale of any Collateral as provided in Section 12.12, such Collateral in
each such case shall be sold free and clear of the Liens created by the
respective Security Documents and the Administrative Agent and Collateral Agent
shall be authorized to take any action deemed appropriate to effect the
foregoing.
8.03 Dividends. None of the Borrowers will, nor will it permit any of
its Subsidiaries to, authorize, declare or pay any Dividends with respect to
such Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of Silgan may pay cash Dividends to Silgan or to a
Wholly-Owned Subsidiary of Silgan;
(ii) any non-Wholly-Owned Subsidiary of Silgan may pay cash Dividends
to its shareholders, partners or members generally so long as (x) the
respective Borrower or its respective Subsidiary which owns the equity
interest or interests in the Subsidiary paying such cash Dividends receives
at least its proportionate share thereof (based upon its relative holdings
of the equity interest or interests in the Subsidiary paying such cash
Dividends and taking into account the relative preferences, if any, of the
various classes of equity interests in such Subsidiary) and (y) no cash
Dividends may be paid by any Subsidiary of Silgan pursuant to this clause
(ii) at any time that any Intercompany Loans are outstanding to such
Subsidiary;
(iii) so long as no Default or Event of Default then exists or would
result therefrom, Silgan may pay cash Dividends (other than to repurchase
or redeem any shares of its capital stock or to pay any cash Dividends on
its Qualified Preferred Stock) so long as the aggregate amount of such cash
Dividends paid on or after the Initial Borrowing Date pursuant to this
clause (iii) does not exceed an amount equal to the sum of (1) $16,000,000
in any fiscal year of Silgan plus (2) the remainder of, if positive, (x)
50% of Cumulative Consolidated Net Income (it being understood that if
Cumulative Consolidated Net Income is less than zero, then minus 100% of
the amount of such loss) minus (y) the aggregate amount of Dividends paid
pursuant to clause (iv) of this Section 8.03 in excess of $50,000,000; and
(iv) so long as no Default or Event of Default then exists or would
result therefrom, Silgan may redeem or repurchase shares of its capital
stock and/or pay cash Dividends on its Qualified Preferred Stock in an
aggregate amount not to exceed the sum of (1) $50,000,000 plus (2) the
remainder of, if positive, (x) 50% of Cumulative Consolidated Net Income
(it being understood that if Cumulative Consolidated Net Income is less
than zero, then minus 100% of the amount of such loss) minus (y) the
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aggregate amount of cash Dividends paid pursuant to clause (iii) of this
Section 8.03 in excess of $16,000,000 in any fiscal year of Silgan plus (3)
the Net Equity Proceeds Amount at such time.
8.04 Indebtedness. None of the Borrowers will, nor will it permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred under the Credit Documents;
(ii) existing Indebtedness (other than the 9% Senior Subordinated
Debentures and the other Indebtedness specifically permitted under clauses
(iv), (vi) and (xiv) of this Section 8.04) listed on Schedule VII
("Existing Indebtedness"), plus any renewals, replacements or extensions
thereof to the extent permitted by Section 8.01(iii);
(iii) obligations under trade letters of credit incurred by such
Borrower or any of its Subsidiaries (other than the Receivables Subsidiary)
in the ordinary course of business, which, in each case, are to be repaid
in full not more than one year after the date on which such Indebtedness is
originally incurred to finance the purchase of goods by such Borrower or
such Subsidiary;
(iv) obligations under letters of credit incurred by such Borrower or
any of its Subsidiaries (other than the Receivables Subsidiary) in the
ordinary course of business in support of obligations incurred in
connection with worker's compensation, unemployment insurance and other
social security legislation in an aggregate amount not to exceed
$30,000,000 at any time outstanding;
(v) Indebtedness of Silgan not to exceed $500,000,000 (as reduced by
any repayments of principal thereof) in aggregate principal amount
evidenced by the 9% Senior Subordinated Debentures;
(vi) Indebtedness of CanCo under the ▇▇▇▇▇▇▇▇ Seller Note in an
aggregate principal amount not to exceed $3,000,000 (as reduced by any
repayments of principal thereof);
(vii) intercompany Indebtedness among Silgan and its Subsidiaries to
the extent permitted by Sections 8.05(vii), (viii), (ix) and (xiv);
(viii) Indebtedness consisting of Capitalized Lease Obligations (other
than by the Receivables Subsidiary) to the extent permitted by Section
8.07;
(ix) unsecured guarantees by Silgan or any of its Subsidiaries (other
than the Receivables Subsidiary) of Silgan's or such Subsidiaries'
respective lease obligations under operating leases entered into by any
such Person;
(x) unsecured subordinated Indebtedness of Silgan ("Additional
Permitted Subordinated Indebtedness") the Net Debt Proceeds of which are
used solely to finance a Permitted Acquisition (and to pay the fees and
expenses related thereto) and to refinance any Indebtedness assumed as part
of such Permitted Acquisition (including to pay for all
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accrued and unpaid interest thereon, any prepayment premium associated
therewith and all costs and expenses incurred in connection therewith), to
repay outstanding Term Loans pursuant to Section 4.02(h) or within 60 days
after the incurrence thereof to Refinance outstanding Permitted
Subordinated Indebtedness theretofore issued by Silgan (including to pay
for all accrued and unpaid interest thereon, any prepayment premium
associated therewith and all costs and expenses incurred in connection
therewith) pursuant to a Permitted Subordinated Debt Repurchase, so long as
(i) no Default or Event of Default then exists or would result therefrom,
(ii) at least five Business Days prior to the issuance of any such
Additional Permitted Subordinated Indebtedness, Silgan shall have delivered
to the Administrative Agent a certificate of its chief financial officer or
treasurer detailing the intended use of the proceeds from such Additional
Permitted Subordinated Indebtedness and setting forth (in reasonable
detail) the recalculation of the Interest Coverage Ratio and the Total
Leverage Ratio on a Pro Forma Basis for the Test Period then most recently
ended prior to the date of such issuance for which financial statements
have been delivered to the Lenders under this Agreement, and such
recalculation shall show that Silgan would have been in compliance with
Sections 8.08 and 8.09 as of the last day of such Test Period, (iii) all of
the terms and conditions of such Additional Permitted Subordinated
Indebtedness (other than interest rates, but including, without limitation,
subordination provisions, covenants (other than the restricted payments
covenant), events of default, remedies, amortizations and maturities) are
no less favorable in any material respect to the Lenders (although the
subordination provisions contained in any such Additional Permitted
Subordinated Indebtedness shall be no less favorable in any respect to the
Lenders) or materially more restrictive on Silgan and its Subsidiaries than
those terms and conditions contained in the 9% Senior Subordinated
Debenture Documents, (iv) no more than $250,000,000 in aggregate principal
amount of Additional Permitted Subordinated Indebtedness may be issued to
finance Permitted Acquisitions (and to pay the fees and expenses related
thereto) and to refinance any Indebtedness assumed as part of Permitted
Acquisitions, and (v) in the case of Additional Permitted Subordinated
Indebtedness the Net Debt Proceeds of which are to be used to Refinance
then outstanding Permitted Subordinated Indebtedness, until such proceeds
are so used to effect such Refinancing, such proceeds are (x) applied to
repay outstanding Revolving Loans and/or Swingline Loans and/or (y) placed
in a cash collateral account established and maintained by, and pursuant to
arrangements satisfactory to, the Administrative Agent;
(xi) Indebtedness of any Subsidiary of Silgan assumed in connection
with a Permitted Acquisition so long as (i) such Indebtedness was not
issued or created in contemplation of such acquisition and (ii) all of the
terms and conditions of such Indebtedness are reasonably acceptable to the
Administrative Agent;
(xii) Indebtedness of Silgan under Interest Rate Protection Agreements
related to Indebtedness otherwise permitted under this Section 8.04;
(xiii) unsecured guaranties (including any payments made thereunder)
by Silgan and its Subsidiaries (other than the Receivables Subsidiary) of
obligations of Joint Ventures, Unrestricted Subsidiaries and Subsidiaries
of Silgan which are not US Credit Parties (other than the Receivables
Subsidiary) in an aggregate amount not to exceed at
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any time outstanding, when added to the aggregate amount of
Investments made pursuant to Section 8.05(xiv), an amount equal to the sum
of (I) $175,000,000 and (II) the Permitted Additional Investment Basket
Amount at such time (determined without regard to any write-downs or
write-offs of such Investments); provided, however, the aggregate amount of
all guaranties (and including all payments made thereunder) made pursuant
to this Section 8.04(xiii) for the benefit of Unrestricted Subsidiaries,
when added to the aggregate amount of all Investments made pursuant to
Section 8.05(xiv) in Unrestricted Subsidiaries, shall not exceed
$75,000,000;
(xiv) Indebtedness of Canadian Holdco and/or any of its Foreign
Subsidiaries that are organized under the laws of Canada (or any province
thereof) under the Canadian Credit Facility so long as the aggregate
outstanding principal amount of all term loans, revolving loans, letters of
credit and/or bankers acceptances thereunder does not exceed $50,000,000,
which Indebtedness may be guaranteed on an unsecured basis by Silgan,
Containers and/or Plastics (although the guaranty of Plastics may be
secured by the capital stock of Canadian Holdco);
(xv) Indebtedness permitted by Section 8.01(x);
(xvi) Indebtedness of the Receivables Subsidiary under the Accounts
Receivable Facility to the extent that the obligations thereunder are
required to be reflected as a liability on the consolidated balance sheet
of Silgan in accordance with accounting principles generally accepted in
the United States;
(xvii) an unsecured guaranty by Silgan, Containers, Containers
Operating, CanCo Holding and CanCo of each other's obligations to ▇▇▇▇▇▇▇▇
Soup under the ▇▇▇▇▇▇▇▇ Can Acquisition Documents, although such guaranty
may be secured by the capital stock of CanCo;
(xviii) Indebtedness of any Foreign Subsidiary of Silgan (other than
Canadian Holdco or any of its Subsidiaries) under lines of credit extended
by third Persons to such Foreign Subsidiary the proceeds of which
Indebtedness are used for such Foreign Subsidiary's working capital and
Capital Expenditure purposes, provided that the aggregate principal amount
of all such Indebtedness incurred pursuant to this clause (xviii) shall not
exceed $30,000,000 at any time outstanding; and
(xix) additional Indebtedness of Silgan and its Subsidiaries (other
than the Receivables Subsidiary) not otherwise permitted hereunder not
exceeding $50,000,000 in aggregate principal amount at any time
outstanding.
Notwithstanding anything to the contrary contained above in this
Section 8.04, so long as the CanCo Restrictions are in effect, (x) in no event
shall CanCo or any of its Subsidiaries incur any Indebtedness under clauses
(xi), (xiii) and (xix) of this Section 8.04 and (y) in no event shall Silgan or
any of its Subsidiaries guaranty any obligations of CanCo or any of its
Subsidiaries to ▇▇▇▇▇▇▇▇ Soup or any Subsidiary thereof other than as expressly
permitted by clause (xvii) of this Section 8.04.
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8.05 Advances; Investments and Loans. None of the Borrowers will, nor
will it permit any of its Subsidiaries to, lend money or credit or make advances
to any Person, or purchase or acquire any stock, obligations or securities of,
or any other interest in, or make any capital contribution to, any other Person
or become liable for the purchase or sale of any currency at a future date
pursuant to a futures contract or similar agreement (each of the foregoing, an
"Investment" and, collectively, "Investments"), or permit any of its
Subsidiaries so to do, except that the following shall be permitted:
(i) such Borrower and its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms;
(ii) such Borrower and its Subsidiaries may acquire and hold Cash
Equivalents;
(iii) such Borrower and its Subsidiaries may make loans and advances
to their respective officers, employees and agents in the ordinary course
of business in an aggregate amount not to exceed $10,000,000 at any one
time outstanding (determined without regard to any write-downs or
write-offs thereof);
(iv) such Borrower and its Subsidiaries may establish Subsidiaries to
the extent permitted pursuant to Section 8.11;
(v) Silgan and its Subsidiaries may own the capital stock of their
respective Subsidiaries;
(vi) the Borrowers and their Subsidiaries may continue to hold any
Investment they held as of the Initial Borrowing Date as set forth on
Schedule VIII, provided that any additional Investments made with respect
thereto shall be permitted only if permitted under the other provisions of
this Section 8.05;
(vii) (A) the US Credit Parties may make Intercompany Loans to one
another and (B) the Foreign Credit Parties may make Intercompany Loans to
one another and to the US Credit Parties so long as (x) in the case of any
Intercompany Loans made to a US Credit Party by a Foreign Credit Party,
such Intercompany Loans are subordinated to the Obligations of the US
Credit Parties on a basis reasonably satisfactory to the Administrative
Agent (which, in any event, shall provide that no payments shall be made
thereunder upon the occurrence and during the continuance of any Default or
Event of Default) and (y) each Intercompany Loan made pursuant to this
clause (vii) is evidenced by an Intercompany Note which shall be pledged to
the Collateral Agent pursuant to the applicable Security Document;
(viii) (A) the Credit Parties may make Intercompany Loans to
Wholly-Owned Subsidiaries of Silgan which are not US Credit Parties (other
than the Receivables Subsidiary) in an aggregate principal amount not to
exceed $75,000,000 at any time outstanding (determined without regard to
any write-downs or write-offs thereof) and (B) Subsidiaries of Silgan which
are not Credit Parties may make Intercompany Loans to one another (other
than to the Receivables Subsidiary) and to Silgan and the other Credit
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Parties so long as (x) in the case of any such Intercompany Loans made to
Silgan and/or to any other Credit Party, such Intercompany Loans are
subordinated to the Obligations on a basis reasonably satisfactory to the
Administrative Agent (which, in any event, shall provide that no payment
shall be made thereunder upon the occurrence and during the continuance of
any Default or Event of Default), and (y) each Intercompany Loan made
pursuant to this clause (viii) by a Credit Party is evidenced by an
Intercompany Note which shall be pledged to the Collateral Agent pursuant
to the applicable Security Document;
(ix) Silgan and the other US Credit Parties may make Intercompany
Loans and/or cash common equity contributions to Wholly-Owned Foreign
Subsidiaries of Silgan for the purpose of enabling such Wholly-Owned
Foreign Subsidiaries to consummate a Permitted Acquisition (including to
refinance any Indebtedness assumed as part of such Permitted Acquisition)
so long as (i) any such Intercompany Loan and/or cash common equity
contribution is funded with proceeds from Incremental Term Loans incurred
by Silgan and/or Revolving Loans incurred by a Revolving Borrower;
provided, however, no more than $50,000,000 of proceeds of Revolving Loans
in the aggregate may be used to make Investments pursuant to this Section
8.05(ix), and (ii) each such Investment that is made as an Intercompany
Loan shall be evidenced by an Intercompany Note that is pledged to the
Collateral Agent pursuant to the applicable Security Document;
(x) the US Credit Parties may make cash common equity contributions to
their Subsidiaries which also are US Credit Parties and (B) the Foreign
Credit Parties may make cash common equity contributions to their
Subsidiaries which also are Foreign Credit Parties;
(xi) Plastics may make capital contributions to Canadian Holdco from
time to time to the extent and only in the amounts necessary for Canadian
Holdco to comply with certain Canadian laws and regulations relating to
minimum equity capitalization;
(xii) Canadian Holdco may make capital contributions to Silgan
Plastics Canada from time to time to the extent and only in the amounts
necessary for Silgan Plastics Canada to comply with certain Canadian laws
and regulations relating to minimum equity capitalization;
(xiii) Permitted Acquisitions consisting of stock acquisitions shall
be permitted;
(xiv) so long as no Default or Event of Default then exists or would
result therefrom, Silgan and its Wholly-Owned Subsidiaries (other than the
Receivables Subsidiary) may make cash Investments in, or transfer assets
to, any Joint Venture, Unrestricted Subsidiary or any Subsidiary of Silgan
which is not a US Credit Party (other than the Receivables Subsidiary), so
long as the aggregate amount of such cash Investments and the fair market
value of all other assets so transferred (as determined in good faith by
Silgan), when added to the amount of guaranties outstanding under Section
8.04(xiii) (and including any payments made under any such guaranties),
does not exceed the sum of (I) $175,000,000 and (II) the Permitted
Additional Investment Basket Amount
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at such time (determined without regard to any write-downs or
write-offs of any Investments made pursuant to this clause (xiv));
provided, however, the aggregate amount of all Investments made pursuant to
this Section 8.05(xiv) in Unrestricted Subsidiaries, when added to the
aggregate amount of all guaranties outstanding under Section 8.04(xiii)
made for the benefit of Unrestricted Subsidiaries (and including any
payments made under any such guaranties), shall not exceed $75,000,000;
(xv) Silgan and its Subsidiaries may receive and hold non-cash
consideration in connection with any Asset Sale to the extent permitted by
Section 8.02(vi); and
(xvi) Silgan and its Subsidiaries may enter into Other Hedging
Agreements in the ordinary course of business providing protection against
fluctuations in currency values in connection with Silgan's or any of its
Subsidiaries' operations so long as management of Silgan or such
Subsidiary, as the case may be, has determined in good faith that the
entering into of such Other Hedging Agreements are bona fide hedging
activities and are not for speculative purposes.
Notwithstanding anything to the contrary contained above in this
Section 8.05, so long as the CanCo Restrictions are in effect, (x) in no event
shall CanCo or any of its Subsidiaries be permitted to make any Investments
otherwise permitted by clauses (ix), (xiii) and (xiv) of this Section 8.05 and
(y) in no event shall Silgan or any of its other Subsidiaries be permitted to
make any Investments in CanCo or any of its Subsidiaries otherwise permitted to
be made under this Section 8.05, although Containers and its other Wholly-Owned
Subsidiaries may (A) make cash equity Investments in, and Intercompany Loans to,
CanCo in an aggregate amount outstanding for all such Investments not to exceed
$50,000,000 at any time (determined without regard to any write-downs or
write-offs thereof), (B) make a cash equity Investment in CanCo on the Initial
Borrowing Date with proceeds of Loans incurred on such date in an aggregate
amount not to exceed $75,000,000 to refinance outstanding loans incurred by
CanCo under the Existing Credit Agreement and (C) make equity Investments in
CanCo as, and to the extent, required by Section 7.13 (it being understood and
agreed that (i) all Investments made to CanCo as an Intercompany Loan shall be
evidenced by an Intercompany Note which shall be pledged to the Collateral Agent
under the Pledge Agreement and (ii) all Investments made in or to CanCo as
permitted in this sentence shall be in addition to the Investment amounts
permitted by clauses (vii), (viii) and (xiv) of this Section 8.05, provided that
no portion of the Investment amounts set forth in such clauses (vii), (viii) and
(xiv) may be used to make Investments in CanCo or any of its Subsidiaries).
8.06 Transactions with Affiliates and Unrestricted Subsidiaries. None
of the Borrowers will, nor will it permit any of its Subsidiaries to, enter into
any transaction or series of related transactions, whether or not in the
ordinary course of business, with any Affiliate or Unrestricted Subsidiary of
such Borrower, other than on terms and conditions substantially as favorable to
such Borrower or such Subsidiary as would be obtainable by such Borrower or such
Subsidiary at the time in a comparable arm's length transaction with a Person
other than an Affiliate, provided that:
(i) each of Silgan and its Domestic Subsidiaries and Unrestricted
Subsidiaries may execute, deliver and perform their obligations under the
Tax Sharing Agreement;
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provided, however, to the extent that any such Unrestricted Subsidiary
is a party thereto, such Unrestricted Subsidiary shall be treated no more
favorably thereunder than the manner in which any Domestic Subsidiary of
Silgan is treated;
(ii) transactions among Silgan and its Subsidiaries shall be permitted
to the extent that such transactions are otherwise not restricted by the
terms of this Agreement or any other Credit Document and so long as no
minority shareholder in any such Subsidiary that is party to any such
transaction is otherwise an Affiliate of Silgan;
(iii) Silgan, Containers, Plastics and other Subsidiaries of Silgan
may each make such payments as are required pursuant to, and perform its
obligations under, its Management Services Agreement, provided that the
Quarterly Management Fee (as defined in the respective Management Services
Agreement) shall accrue but not be paid by Silgan, Containers, Plastics
and/or such other Subsidiaries, as the case may be, upon the occurrence of
certain events, and to the extent, provided in the respective Management
Services Agreement, and provided further, (x) that the aggregate payments
payable pursuant to this clause (iii) shall not exceed at any time the
amount which would be payable under the Management Services Agreement of
Silgan if the payment under the other Management Services Agreements were
zero, and (y) to the extent that any Unrestricted Subsidiary is a party to
any Management Services Agreement, such Unrestricted Subsidiary shall be
treated no more favorably thereunder than the manner in which the
Subsidiaries of Silgan are treated under those Management Services
Agreements to which such Subsidiaries are a party;
(iv) the payment of reasonable and customary regular fees and granting
of options to directors of Silgan who are not employees of Silgan or any of
its Subsidiaries shall be permitted;
(v) Silgan and its Subsidiaries may sell raw materials to Unrestricted
Subsidiaries for cash and at the same price or prices that Silgan or such
Subsidiaries pay for such raw materials; and
(vi) Silgan and its Subsidiaries may provide administrative services
to Unrestricted Subsidiaries.
Notwithstanding anything to the contrary contained above, this Section
8.06 shall not prohibit (i) the transfer of any assets, the making of any
Dividends or the making of any Investments permitted pursuant to Sections 8.02,
8.03, 8.04 and 8.05 or otherwise specifically permitted by the terms of this
Agreement or (ii) transactions with Affiliates (A) approved by a majority of the
disinterested members of the Board of Directors (or an authorized committee
thereof) of Silgan or, to the extent that the value of such transaction is less
than $5,000,000, by a majority of the Board of Directors (or an authorized
committee thereof) of Silgan or (B) for which Silgan or its respective
Subsidiary delivers to the Administrative Agent a written opinion of an
unaffiliated nationally recognized investment banking firm stating that such
transaction is fair to Silgan or such Subsidiary from a financial point of view,
provided that if the value of any such transaction not otherwise permitted under
clauses (i) through (vi) of the first paragraph of
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this Section 8.06 exceeds $8,000,000, then the foregoing determination must be
made in the manner provided in clause (B) above.
8.07 Capital Expenditures. (a) None of the Borrowers will, nor will it
permit any of its Subsidiaries to, make any Capital Expenditure during any
period set forth below which exceeds in the aggregate for Silgan and its
Subsidiaries the amount set forth opposite such period below:
Period Amount
------ ------
Initial Borrowing Date through
December 31, 2002 $83,000,000
Calendar Year ended
December 31, 2003 $125,000,000
Calendar Year ended
December 31, 2004 $125,000,000
Calendar Year ended
December 31, 2005 $125,000,000
Calendar Year ended
December 31, 2006 $125,000,000
Calendar Year ended
December 31, 2007 $125,000,000
Calendar Year ended
December 31, 2008 $125,000,000
Notwithstanding anything to the contrary contained above in this
Section 8.07, (i) each of the amounts set forth in the table above shall be
increased at the time of any Permitted Acquisition by an amount equal to 7% of
the annual sales of the Person or assets acquired as part of such Permitted
Acquisition for the most recently ended consecutive four quarter period of such
Person prior to such Permitted Acquisition (provided that in the case of a
Permitted Acquisition effected after the first day of any calendar year, the
actual additional amount permitted to be expended pursuant to this clause (i) in
such calendar year shall be the amount set forth above in this clause (i)
multiplied by a fraction, the numerator of which is the number of days remaining
during such calendar year and the denominator of which is 365) and (ii) to the
extent that Capital Expenditures made during any period set forth in the table
above are less than the amount set forth opposite such period in the table above
(as adjusted pursuant to preceding clause (i)), such amount (the "Carryover
Amount") may be carried forward and utilized to make Capital Expenditures in
excess of the amount permitted in the table above (as adjusted pursuant to
preceding clause (i)) in the immediately succeeding calendar year but not in any
calendar year thereafter, it being understood and agreed that any Capital
Expenditures made in such immediately succeeding calendar year shall be deemed
to have first utilized the Carryover Amount in respect of such immediately
preceding calendar year.
(b) In addition to the Capital Expenditures permitted pursuant to the
preceding clause (a) and succeeding clause (c), Capital Expenditures made with
any of the following shall be permitted: (i) proceeds utilizing the Net Equity
Proceeds Amount, (ii) Net Insurance Proceeds (except to the extent that such
proceeds are required to be applied pursuant to Section 4.02(g)),
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(iii) proceeds utilizing the Retained Excess Cash Flow Amount and (iv) Net Sale
Proceeds from any Asset Sale or sale and leaseback transaction to the extent
that such Net Sale Proceeds are not required to be used by Silgan or any of its
Subsidiaries to repay any Indebtedness (or reduce any unutilized commitments in
respect thereof).
(c) In addition to the Capital Expenditures permitted pursuant to the
preceding clauses (a) and (b), Capital Expenditures made in connection with
plant rationalizations associated with any Permitted Acquisition shall be
permitted so long as (i) such Capital Expenditures are of the type that would
have been recorded under generally accepted accounting principles as a purchase
accounting liability prior to EITF 95-3 and (ii) the aggregate amount thereof
does not exceed $15,000,000 in any calendar year.
8.08 Interest Coverage Ratio. None of the Borrowers will permit the
Interest Coverage Ratio for any Test Period ended on the last day of a fiscal
quarter set forth below to be less than the ratio set forth opposite such fiscal
quarter below:
Fiscal Quarter Ended Ratio
-------------------- -----
June 30, 2002 2.75:1.00
September 30, 2002 2.75:1.00
December 31, 2002 2.75:1.00
March 31, 2003 2.75:1.00
June 30, 2003 2.75:1.00
September 30, 2003 2.75:1.00
December 31, 2003 2.75:1.00
March 31, 2004 2.75:1.00
June 30, 2004 2.75:1.00
September 30, 2004 2.75:1.00
December 31, 2004 2.75:1.00
March 31, 2005
and the last day of each fiscal
quarter thereafter 3.00:1.00
8.09 Total Leverage Ratio. None of the Borrowers will permit the Total
Leverage Ratio for any Test Period ended on the last day of a fiscal quarter set
forth below to be greater than the ratio set forth opposite such fiscal quarter
below:
Fiscal Quarter Ended Ratio
-------------------- -----
June 30, 2002 4.50:1.00
September 30, 2002 4.50:1.00
December 31, 2002 4.50:1.00
March 31, 2003 4.50:1.00
June 30, 2003 4.50:1.00
September 30, 2003 4.25:1.00
December 31, 2003 4.25:1.00
March 31, 2004 4.25:1.00
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Fiscal Quarter Ended Ratio
-------------------- -----
June 30, 2004 4.25:1.00
September 30, 2004 4.00:1.00
December 31, 2004 4.00:1.00
March 31, 2005 4.00:1.00
June 30, 2005 4.00:1.00
September 30, 2005 and each
fiscal quarter thereafter 3.75:1.00
8.10 Limitation on Voluntary Payments and Modifications of Certain
Indebtedness; Modifications of Documents; Certificate of Incorporation; By-Laws
and Certain Other Agreements; etc. None of the Borrowers will, nor will it
permit any of its Subsidiaries to, (i) make any voluntary or optional payment or
prepayment on or redemption or acquisition for value of (including, without
limitation, by way of depositing with the trustee with respect thereto money or
securities before due for the purpose of paying when due) or exchange any 9%
Senior Subordinated Debentures or any Additional Permitted Subordinated
Indebtedness, or make any purchase, redemption or acquisition for value of (or
any offer to purchase, redeem or acquire) any 9% Senior Subordinated Debentures
or any Additional Permitted Subordinated Indebtedness, whether as a result of a
Change of Control, the consummation of asset sales or otherwise; provided,
however, that Silgan may Refinance outstanding Permitted Subordinated
Indebtedness through Permitted Subordinated Debt Repurchases, (ii) amend or
modify, or permit the amendment or modification of, any provision of the 9%
Senior Subordinated Debenture Documents or any other Permitted Subordinated
Indebtedness Documents other than any amendments or modifications which could
not reasonably be expected to be adverse to the interests of the Lenders and
which have been approved by the Administrative Agent, (iii) amend or modify, or
permit the amendment or modification of, any provision of any Management
Services Agreement other than any amendments or modifications to the
non-monetary terms thereof which could not reasonably be expected to be adverse
to the interests of the Lenders, (iv) after the execution or delivery thereof,
amend or modify, or permit the amendment or modification of, any provision of
the Accounts Receivable Facility Documents other than any amendments or
modifications thereto which could not reasonably be expected to be adverse to
the interests of the Lenders or (v) amend, modify or change its certificate of
incorporation (including, without limitation, by the filing or modification of
any certificate of designation) or by-laws (or equivalent organizational
documents) other than amendments, modifications or changes thereto which could
not reasonably be expected to be adverse to the interests of the Lenders. In
addition to the foregoing, none of the Borrowers will, nor will it permit any of
its Subsidiaries to, (i) make any voluntary or optional payment or prepayment on
or redemption or acquisition for value of or exchange the ▇▇▇▇▇▇▇▇ Seller Note
or (ii) amend or modify, or permit the amendment or modification of, any
provision of the ▇▇▇▇▇▇▇▇ Seller Note, the ▇▇▇▇▇▇▇▇ Can Guaranty, Section 6(b)
of the ▇▇▇▇▇▇▇▇ Can Pledge Agreement or any ▇▇▇▇▇▇▇▇ Can Acquisition Document to
the extent that such amendment or modification would decrease the purchase price
required to be paid by ▇▇▇▇▇▇▇▇ Soup or a Subsidiary thereof for the capital
stock or assets of CanCo and its Subsidiaries upon the exercise of its remedies
under the ▇▇▇▇▇▇▇▇ Can Acquisition Documents, change the assets on which
▇▇▇▇▇▇▇▇ Soup has a Lien or an option to purchase or alter in any way the
obligation of ▇▇▇▇▇▇▇▇ Soup or a Subsidiary thereof to repay in full all
Obligations (other than accrued Fees) of CanCo up to the CanCo Permitted Debt
Amount
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or, with respect to accrued Fees of CanCo, the obligation of Containers or any
other Borrower other than CanCo to repay in full all such accrued Fees, upon the
exercise by ▇▇▇▇▇▇▇▇ Soup of its remedies under the ▇▇▇▇▇▇▇▇ Can Pledge
Agreement.
8.11 Creation of Subsidiaries and Unrestricted Subsidiaries. None of
the Borrowers will, nor will it permit any of its Subsidiaries to, establish,
create or acquire after the Initial Borrowing Date any Subsidiary or
Unrestricted Subsidiary; provided that, Silgan and its Wholly-Owned Subsidiaries
shall be permitted to (I) establish or create Wholly-Owned Subsidiaries, (II)
establish, create or acquire Unrestricted Subsidiaries to the extent permitted
by Section 8.05(xiv), (III) acquire Subsidiaries which are at least 80% owned by
Silgan and its Wholly-Owned Subsidiaries to the extent permitted by Section
8.02(x) and (IV) acquire or create other non-Wholly-Owned Subsidiaries to the
extent permitted by Section 8.05(xiv), so long as (i) in the case of preceding
clauses (I), (II), (III) and (IV), at least 10 Business Days' prior written
notice thereof is given to the Administrative Agent (or such shorter period of
time as is acceptable to the Administrative Agent), (ii) the capital stock of
such new Subsidiary or Unrestricted Subsidiary is pledged pursuant to (and to
the extent required by) the applicable Security Document, and the certificates
representing such stock, together with stock powers duly executed in blank, are
delivered to the Collateral Agent, (iii) in the case of a Domestic Subsidiary,
such new Domestic Subsidiary executes and delivers a counterpart of the US
Borrowers/Subsidiaries Guaranty, the US Pledge Agreement and the US Security
Agreement, (iv) in the case of any Foreign Subsidiary that is (or is required to
become) a Foreign Credit Party, such new Foreign Subsidiary executes and
delivers counterparts of the applicable Foreign Security Documents (or new
Foreign Security Documents) and Related Foreign Company Guaranty, and (v) such
new Subsidiary takes all such other actions as may be required by Section 7.09.
In addition, Silgan will cause each new Subsidiary that is required to become a
Credit Party to deliver to the Administrative Agent all other relevant
documentation of the type described in Sections 5.01(c), (d) and (i)(2) as such
new Subsidiary would have had to deliver if it were a Credit Party on the
Initial Borrowing Date. Notwithstanding anything to the contrary contained in
this Section 8.11, so long as the CanCo Restrictions are in effect, in no event
shall CanCo or any of its Subsidiaries establish, create or acquire any
Subsidiary or Unrestricted Subsidiary.
8.12 Limitation on Restrictions on Subsidiary Dividends and Other
Distributions. None of the Borrowers will, nor will it permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
such Subsidiary to (a) pay dividends or make any other distributions on its
capital stock or any other interest or participation in its profits, owned by
such Borrower or any Subsidiary of such Borrower, or pay any Indebtedness owed
to such Borrower or a Subsidiary of such Borrower, (b) make loans or advances to
such Borrower or (c) transfer any of its properties or assets to such Borrower,
except for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) this Agreement and the other Credit Documents, (iii) the 9%
Senior Subordinated Debenture Documents or any other Permitted Subordinated
Indebtedness Documents (so long as such restrictions are no more restrictive in
any material respect than those set forth in the 9% Senior Subordinated
Debenture Documents), (iv) customary provisions restricting subletting or
assignment of any lease or other contract of such Borrower or a Subsidiary of
such Borrower, (v) restrictions on the transfer of any asset subject to a Lien
permitted by Section 8.01, (vi) restrictions on the Receivables Subsidiary to
the extent set forth
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in the Accounts Receivable Facility Documents, (vii) agreements with principal
customers of Silgan and its Subsidiaries restricting the transfer of assets
substantially dedicated to products sold to such customers (although such
restrictions shall not apply to the granting of Liens pursuant to the Security
Documents), (viii) restrictions imposed on Canadian Holdco and its Subsidiaries
pursuant to the Canadian Credit Facility, (ix) customary restrictions imposed by
any agreement or instrument governing Indebtedness of any Foreign Subsidiary
incurred under Section 8.04(xviii) so long as (A) such restrictions are not
applicable to any Subsidiary of Silgan other than the Foreign Subsidiary
incurring such Indebtedness and its Foreign Subsidiaries and (B) Silgan has made
a good faith determination that the imposition of such restrictions could not
reasonably be expected to cause Silgan or any of its other Subsidiaries to fail
to comply with all of their respective obligations under agreements which they
are a party to or subject to (including, but not limited to, the Credit
Documents and the Permitted Subordinated Indebtedness Documents), and (x)
restrictions only of the type described in clauses (a), (b) and (c) above in
this Section 8.12 which are imposed on any Subsidiary of Silgan acquired
pursuant to a Permitted Acquisition to the extent such restrictions are set
forth in any Indebtedness assumed in connection with such Permitted Acquisition
so long as such restrictions are not applicable to any Subsidiary of Silgan
other than the Subsidiary being acquired and such restrictions were not created
or imposed in connection with or in contemplation of such Permitted Acquisition.
8.13 Limitation on Issuances of Capital Stock. (a) None of the
Borrowers will permit any of its Subsidiaries to issue any capital stock
(including by way of sales of treasury stock) or any options or warrants to
purchase, or securities convertible into, capital stock, except for (i)
transfers and replacements of then outstanding shares of capital stock, (ii)
stock splits, stock dividends and similar issuances which do not decrease the
percentage ownership of such Borrower or any of its Subsidiaries in any class of
the capital stock of such Subsidiary, (iii) issuances of common stock by
Wholly-Owned Subsidiaries of Silgan to Silgan or a Wholly-Owned Domestic
Subsidiary thereof, (iv) issuances of common stock by Foreign Subsidiaries of
Silgan to Silgan or a Wholly-Owned Subsidiary thereof, (v) issuances of common
stock by newly created Subsidiaries in accordance with the terms of this
Agreement and (vi) in the case of Foreign Subsidiaries of Silgan, nominal shares
to local nationals and to qualify directors, in each case to the extent required
by applicable law.
(b) None of the Borrowers will, nor will it permit any of its
Subsidiaries to, issue any class of (i) preferred stock other than Qualified
Preferred Stock of Silgan or (ii) redeemable common stock other than at the sole
option of such Borrower or such Subsidiary.
8.14 Business. (a) None of the Borrowers will, nor will any Borrower
permit any of its Subsidiaries or Unrestricted Subsidiaries to, engage (directly
or indirectly) in any business other than the packaging business.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Borrowers will not permit the Receivables Subsidiary to engage in
any business activities (including, but not limited to, making acquisitions or
Investments) or incur or assume any liabilities other than, in each case, solely
in connection with the transactions contemplated by the Accounts Receivable
Facility Documents.
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(c) Notwithstanding anything to the contrary contained in this
Agreement, so long as the CanCo Restrictions are in effect, CanCo Holding (1)
will hold no assets other than the capital stock of CanCo and Intercompany Loans
to Silgan and its other Subsidiaries otherwise permitted to be made under this
Agreement and engage in no business other than (i) those activities that are
incidental to (x) the maintenance of its corporate existence in compliance with
applicable law, (y) legal, tax and accounting matters in connection with any of
the permitted activities under this clause (c) and (z) the entering into, and
performing its obligations under, this Agreement, the other Credit Documents to
which it is a party and the ▇▇▇▇▇▇▇▇ Can Acquisition Documents to which it is a
party and (2) may in no event transfer the capital stock of CanCo to Silgan or
any other Subsidiary or Affiliate.
8.15 Change of Name. None of the Borrowers will, nor will it permit
any of its Subsidiaries which are Credit Parties to, change its legal name or
jurisdiction of organization unless and until (i) it shall have given to the
Administrative Agent and the Collateral Agent 15 days' prior written notice of
its intention so to do, clearly describing such new name and/or jurisdiction of
organization and providing such other information in connection therewith as the
Administrative Agent and the Collateral Agent may reasonably request, and (ii)
with respect to such new name and/or jurisdiction of organization, it shall have
taken all action, reasonably satisfactory to the Administrative Agent and the
Collateral Agent, to maintain the security interests granted by any Borrower or
any such other Credit Party to the Collateral Agent in the Collateral pursuant
to any Security Document at all times fully perfected and in full force and
effect.
8.16 Designated Senior Indebtedness. Silgan will not designate any
Indebtedness, other than the Obligations, as "Designated Senior Indebtedness"
for purposes of the 9% Senior Subordinated Debentures or any Additional
Permitted Subordinated Indebtedness.
Section 9. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
9.01 Payments. Any Borrower shall (i) default in the payment when due
of any Unpaid Drawings or of any principal of the Loans or the Notes, or (ii)
default, and such default shall continue unremedied for three or more Business
Days, in the payment when due of any interest on Unpaid Drawings or of any
interest on the Loans or the Notes or of any Fees or any other amounts owing
hereunder or thereunder; or
9.02 Representations, etc. Any representation, warranty or statement
made or deemed made by any Credit Party herein or in any other Credit Document
or in any certificate delivered pursuant hereto or thereto shall prove to be
untrue or inaccurate in any material respect on the date as of which made or
deemed made; or
9.03 Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement (other than
those referred to in Sections 9.01 and 9.02 and clause (ii) of this Section
9.03) contained in this Agreement and such default shall continue unremedied for
a period of 30 days after written notice to the Borrowers by the Administrative
Agent or the Required Lenders or (ii) default in the due performance or
observance by it of any term, covenant or agreement contained in Section
7.01(f)(i), 7.07, 7.13 or
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Section 8 and, in the case of a default pursuant to Section 7.13, such default
shall continue unremedied for a period of 14 days; or
9.04 Default Under Other Agreements. (i) Any Borrower or any of its
Subsidiaries shall (x) default in any payment of any Indebtedness (other than
the Obligations and the Intercompany Notes) beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created or (y) default in the observance or performance of any agreement or
condition relating to any Indebtedness (other than the Obligations and the
Intercompany Notes) or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause (determined without regard to whether
any notice is required but giving effect to any grace period), any such
Indebtedness to become due prior to its stated maturity or (ii) any Indebtedness
of any Borrower or any of its Subsidiaries shall be declared to be due and
payable, or required to be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof, provided that it shall not
constitute an Event of Default under this Section 9.04 unless the aggregate
amount of all Indebtedness referred to in clauses (i) and (ii) above equals or
exceeds $7,500,000; or
9.05 Bankruptcy, etc. Any Borrower or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against any
Borrower or any of its Subsidiaries, and the petition is not controverted within
10 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of any Borrower or any of
its Subsidiaries, or any Borrower or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to any Borrower or any
of its Subsidiaries, or there is commenced against any Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days, or any Borrower or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or any Borrower or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or any
Borrower or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate action is taken by any Borrower or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
9.06 ERISA. (i) (a) A single-employer plan (as defined in Section
4001(a)(15) of ERISA) established by any Borrower, any Subsidiary of any
Borrower or any ERISA Affiliate shall fail to maintain the minimum funding
standard required by Section 412 of the Code for any plan year or part thereof
or a waiver of such standard or the extension of any amortization period is
sought or granted under Section 412 of the Code, (b) any Plan is, shall have
been or is likely to be terminated or the subject of termination proceedings
under ERISA or an event has occurred entitling the PBGC to terminate a Plan
under Section 4042(a) of ERISA, (c) any Plan other than
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a Plan which is a multiemployer plan (as defined in Section 4001(a)(3) of ERISA)
shall have an Unfunded Current Liability, (d) any Borrower, any Subsidiary of
any Borrower or an ERISA Affiliate has incurred or is likely to incur a
liability to or on account of a Plan under Section 515, 4062, 4063, 4064, 4201
or 4204 of ERISA or (e) a contribution required to be made with respect to a
Foreign Pension Plan has not been timely made, or any Borrower or any Subsidiary
of any Borrower has incurred liabilities pursuant to one or more Foreign Pension
Plans; (ii) there shall result from any such event or events described in clause
(i) (x) the imposition of a lien upon the assets of any Borrower, any Subsidiary
of any Borrower or an ERISA Affiliate, (y) the provision of security to induce
the issuance of a waiver or extension of any funding requirement under Section
412 of the Code, or (z) liability or a material risk of incurring liability to
the PBGC or the Internal Revenue Service or a Plan or a trustee appointed under
ERISA; and (iii) the events described in clauses (i) and (ii) in the opinion of
the Required Lenders, could reasonably be expected to have a Material Adverse
Effect; or
9.07 Guaranties. Any Guaranty or any provision thereof shall cease to
be in full force or effect, or any Guarantor, or any Person acting by or on
behalf of such Guarantor, shall deny or disaffirm its obligations under any
Guaranty to which it is party, or any Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any Guaranty to which it is party; or
9.08 Security Documents. Any Security Document shall, after the
execution and delivery thereof, cease to be in full force and effect, or shall
cease to give the Collateral Agent the Liens, rights, powers and privileges
purported to be created thereby (including, without limitation, a perfected
security interest in, and Lien on, all the Collateral covered thereby except as
provided in such Security Document), in favor of the Collateral Agent for the
benefit of the respective Secured Creditors, in each case superior to and prior
to the rights and Liens of all third Persons (other than Permitted Liens), or
any Credit Party shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to any
Security Document beyond the period of grace, if any, provided for therein; or
9.09 Judgments. One or more judgments or decrees shall be entered
against any Borrower or any of its Subsidiaries involving, when added to any
other judgments or decrees against any Borrower and its Subsidiaries, a
liability (not paid or fully covered by a reputable and solvent insurance
company) of $7,500,000 or more, and all such judgments or decrees shall not have
been vacated, discharged or stayed or bonded pending appeal within 60 days from
the entry thereof; or
9.10 Change of Control. A Change of Control shall occur; or
9.11 Accounts Receivable Facility. After the execution and delivery
thereof, (i) the Receivables Subsidiary shall default in any payment of any
amounts beyond the period of grace, if any, provided in the Accounts Receivable
Facility Documents or (ii) Silgan or any of its Subsidiaries shall default in
the observance or performance of any agreement or condition contained in the
Accounts Receivable Facility Documents to which they are a party, or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of the obligations
of the Receivables Subsidiary under the Accounts Receivable Facility (or a
trustee or agent on behalf of such holder or holders) to
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cause (determined without regard to whether any notice is required but giving
effect to any grace period), the Accounts Receivable Facility to become due (or
unwind) prior to its stated maturity or (iii) the obligations of the Receivables
Subsidiaries under the Accounts Receivable Facility shall be declared to be due
and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Lenders, shall by written notice to the Borrowers, take any or all
of the following actions, without prejudice to the rights of the Administrative
Agent, any other Agent, any Lender or the holder of any Note to enforce its
claims against any Borrower (provided that, if an Event of Default specified in
Section 9.05 shall occur with respect to any Borrower, the result which would
occur upon the giving of written notice by the Administrative Agent to the
Borrowers as specified in clauses (i) and (ii) below shall occur automatically
without the giving of any such notice): (i) declare the Total Commitment
terminated, whereupon all Commitments shall forthwith terminate immediately and
any Commitment Commission shall forthwith become due and payable without any
other notice of any kind; (ii) declare the principal of and any accrued interest
in respect of all Loans and the Notes and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each of the Borrowers; (iii) exercise any rights or
remedies under any of the Guaranties and/or in its capacity as Collateral Agent
under any of the Security Documents; (iv) direct the Revolving Borrowers to pay
(and the Revolving Borrowers agree that upon receipt of such notice they will
pay) to the Administrative Agent at the Payment Office such additional amount of
cash, to be held as security by the Administrative Agent in the Cash Collateral
Account, as is equal to the aggregate Stated Amount of all then outstanding
Letters of Credit; and (v) terminate any Letter of Credit which may be
terminated in accordance with its terms.
Section 10. Definitions and Accounting Terms.
--------------------------------
10.01 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"A Term Loan" shall have the meaning provided in Section 1.01(a).
"A Term Loan Commitment" shall mean, for each Lender, the amount set
forth opposite such Lender's name in Schedule I directly below the column
entitled "A Term Loan Commitment", as same may be (x) terminated pursuant to
Sections 3.03 and 9 or (y) adjusted from time to time as a result of assignments
to or from such Lender pursuant to Sections 1.13 and/or 12.04(b).
"A Term Loan Maturity Date" shall mean June 28, 2008.
"A Term Loan Scheduled Repayment" shall have the meaning provided in
Section 4.02(b).
"A Term Note" shall have the meaning provided in Section 1.05(a).
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"Accounts Receivable Facility" shall mean the transactions
contemplated by the Accounts Receivable Facility Documents pursuant to which the
Designated Credit Parties sell their accounts receivable and related assets to
the Receivables Subsidiary for resale by the Receivables Subsidiary as part of a
customary asset securitization transaction involving accounts receivable and
related assets.
"Accounts Receivable Facility Documents" shall mean the pooling and
servicing agreement, the receivables purchase agreement and each of the other
documents and agreements entered into in connection with the Accounts Receivable
Facility, all of the terms and conditions of which shall be required to be
reasonably satisfactory in form and substance to the Agents (it being understood
that at least 15 Business Days prior to the entering into of any Accounts
Receivable Facility, drafts of the Accounts Receivable Facility Documents with
respect thereto shall be distributed to the Agents for their review, and the
Agents shall receive all subsequent drafts of such Accounts Receivable Facility
Documents).
"Additional Collateral" shall mean any assets or properties of any
Credit Party given as collateral pursuant to any Additional Security Document.
"Additional Permitted Subordinated Indebtedness" shall have the
meaning provided in Section 8.04(x).
"Additional Security Documents" shall have the meaning provided in
Section 7.09(a) and shall include any additional security documentation executed
and delivered pursuant to Sections 7.10 and/or 8.11.
"Adjusted Consolidated Net Income" shall mean, for any period,
Consolidated Net Income of Silgan and its Subsidiaries for such period plus the
amount of all net non-cash charges (including, without limitation, depreciation,
amortization, deferred tax expense, non-cash interest expense, write-downs of
inventory and other non-cash charges) that were deducted in (or excluded from)
arriving at the Consolidated Net Income of Silgan and its Subsidiaries for such
period less the amount of all net non-cash gains and gains from sales of assets
(other than sales of inventory in the ordinary course of business) that were
added in arriving at said Consolidated Net Income for such period.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement, and shall include any successor Administrative
Agent appointed pursuant to Section 11.09.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all directors
and officers of such Person), controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to control another Person if
such Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agents" shall mean and include the Administrative Agent, the
Co-Syndication Agents and the Co-Documentation Agents.
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"Agreement" shall mean this Credit Agreement, as same may be modified,
supplemented or amended from time to time.
"Alternate Currency" shall mean each Currency other than Dollars.
"Alternate Currency Incremental Term Loan" shall mean each Incremental
Term Loan denominated in an Alternate Currency.
"Applicable Commitment Commission Percentage" and "Applicable Margin"
shall mean: from and after any Start Date to and including the corresponding End
Date, (i) with respect to the Commitment Commission, the respective per annum
percentage set forth below under the column "Applicable Commitment Commission
Percentage" and (ii) with respect to A Term Loans, B Term Loans, Revolving Loans
and Swingline Loans, the respective percentage per annum set forth below under
the respective Tranche and Type of Loans and (in the case of preceding clauses
(i) and (ii)) opposite the respective Level (i.e., ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇,
▇▇▇▇▇ 4 or Level 5, as the case may be) indicated to have been achieved on an
applicable Test Date for such Start Date (as shown in the respective officer's
certificate delivered pursuant to Section 7.01(e) or the first proviso below):
A Term Loans and
Revolving Loans A Term Loans and B Term Loans Applicable
maintained as Revolving Loans B Term Loans maintained as Commitment
Total Base Rate Loans maintained as maintained as Eurodollar Commission
Level Leverage Ratio and Swingline Loans Eurodollar Loans Base Rate Loans Loans Percentage
----- -------------- ------------------- ---------------- --------------- ------------- ----------
1 Less than
2.50:1.00 0.250% 1.250% 1.000% 2.000% 0.250%
2 Greater than or
equal to
2.50:1.00 but
less than
3.00:1.00 0.500% 1.500% 1.000% 2.000% 0.375%
3 Greater than or
equal to
3.00:1.00 but
less than
3.50:1.00 0.750% 1.750% 1.000% 2.000% 0.500%
4 Greater than or
equal to
3.50:1.00 but
less than
4.00:1:00 1.000% 2.000% 1.000% 2.000% 0.500%
5 Greater than or
equal to 1.250% 2.250% 1.250% 2.250% 0.500%
4.00:1.00
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; provided, however, that if Silgan fails to deliver the financial statements
required to be delivered pursuant to Section 7.01(a) or (b) (accompanied by the
officer's certificate required to be delivered pursuant to Section 7.01(e)
showing the applicable Total Leverage Ratio on the relevant Test Date) on or
prior to the respective date required by such Sections, then Level 5 pricing
shall apply until such time, if any, as the financial statements required as set
forth above and the accompanying officer's certificate have been delivered
showing the pricing for the respective Margin Reduction Period is at a level
which is less than Level 5 (it being understood that, in the case of any late
delivery of the financial statements and officer's certificate as so required,
any reduction in the Applicable Commitment Commission Percentage or in the
Applicable Margin shall apply only from and after the date of the delivery of
the complying financial statements and officer's certificate); provided further,
that Level 5 pricing shall apply at all times when a Specified Default or an
Event of Default is in existence. Notwithstanding anything to the contrary
contained in the immediately preceding sentence (other than the further proviso
thereof), (A) Level 4 pricing shall apply for the period from the Initial
Borrowing Date through, but not including, the first Start Date after the
Initial Borrowing Date, (B) in no event shall pricing below Level 4 apply for
the period from the Initial Borrowing Date to the date of the delivery of
Silgan's financial statements (and related officer's certificate) in respect of
its fiscal year ending December 31, 2002 and (C) with respect to each Tranche of
Incremental Term Loans (to the extent then outstanding), the Applicable Margin
shall be that percentage set forth in, or calculated in accordance with, Section
1.14 and the relevant Incremental Term Loan Commitment Agreement.
"Applicable Currency" shall mean, for any Tranche of Incremental Term
Loans, the Currency for such Tranche designated in the Incremental Term Loan
Commitment Agreement for such Tranche.
"Asset Sale" shall mean any sale, transfer or other disposition by
Silgan or any of its Subsidiaries to any Person other than to Silgan or a
Wholly-Owned Subsidiary of Silgan of any asset (including, without limitation,
any capital stock or other securities of, or equity interests in, another
Person) other than sales of assets pursuant to Sections 8.02 (i), (ii), (iv) and
(v).
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit K (appropriately
completed).
"Associated Costs Rate" shall mean the percentage rate per annum to be
charged in addition to the interest rate which is intended to compensate each
Lender for the cost to such Lender of compliance with (a) the cash ratios and
special deposit requirements of the Bank of England and/or the banking
supervision or other costs imposed by the UK Financial Services Authority (or in
either case, any other authority which replaces all or any of its functions),
determined in accordance with Schedule X, and (b) any reserve asset requirements
of the European Central Bank.
"B Lenders" shall have the meaning provided in Section 4.01(c).
"B Term Loan" shall have the meaning provided in Section 1.01(b).
-▇▇-
"▇ ▇▇▇▇ Loan Commitment" shall mean, for each Lender, the amount set
forth opposite such Lender's name in Schedule I directly below the column
entitled "B Term Loan Commitment," as same may be (x) terminated pursuant to
Sections 3.03 and/or 9 or (y) adjusted from time to time as a result of
assignments to or from such Lender pursuant to Sections 1.13 and/or 12.04(b).
"B Term Loan Maturity Date" shall mean November 30, 2008.
"B Term Loan Scheduled Repayment" shall have the meaning provided in
Section 4.02(c).
"B Term Note" shall have the meaning provided in Section 1.05(a).
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" shall mean, at any time, the higher of (i) 1/2 of 1% in
excess of the Federal Funds Rate and (ii) the Prime Lending Rate.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii) any other
Loan (other than an Alternate Currency Incremental Term Loan except as otherwise
provided in Section 1.15) designated or deemed designated as a Base Rate Loan by
the respective Borrower at the time of the incurrence thereof or conversion
thereto.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean the borrowing of one Type of Loan of a single
Tranche from all the Lenders having Commitments of the respective Tranche (or
from the Swingline Lender in the case of Swingline Loans) on a given date (or
resulting from a conversion or conversions on such date) having in the case of
Euro Rate Loans the same Interest Period; provided that Base Rate Loans incurred
pursuant to Section 1.10(b) shall be considered part of the related Borrowing of
Eurodollar Loans.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall be
in New York City a legal holiday or a day on which banking institutions are
authorized by law or other government action to close and (ii) with respect to
all notices and determinations in connection with, and payments of principal and
interest on or with respect to, Euro Rate Loans any day which is a Business Day
described in clause (i) above and which is also (A) a day for trading by and
between banks in the relevant interbank market and which shall not be a legal
holiday or a day on which banking institutions are authorized or required by law
or other government action to close in the city where the applicable Payment
Office of the Administrative Agent is located in respect of such Euro Rate Loans
and (B) in relation to any payment in Euros, a day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.
"Calculation Period" shall mean the Test Period most recently ended on
or prior to the date that any determination is required to be made hereunder on
a Pro Forma Basis.
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"▇▇▇▇▇▇▇▇ Can Acquisition" shall mean the prior purchase of
substantially all of the prior steel manufacturing assets of ▇▇▇▇▇▇▇▇ Soup by
CanCo in accordance with the ▇▇▇▇▇▇▇▇ Can Acquisition Documents.
"▇▇▇▇▇▇▇▇ Can Acquisition Documents" shall mean (i) the Purchase
Agreement by and among ▇▇▇▇▇▇▇▇ Soup, CanCo and Containers, (ii) the ▇▇▇▇▇▇▇▇
Can Pledge Agreement, (iii) the ▇▇▇▇▇▇▇▇ Can Guaranty, (iv) the ▇▇▇▇▇▇▇▇ Can
Supply Agreement, (v) the ▇▇▇▇▇▇▇▇ Seller Note, (vi) the Shared Services
Agreement by and among ▇▇▇▇▇▇▇▇ Soup, CanCo and Containers, (vii) the Labor
Supply Agreement by and among ▇▇▇▇▇▇▇▇ Soup, CanCo and Containers, (viii) the
Intercompany Agreement by and among Containers, Manufacturing, CanCo and
▇▇▇▇▇▇▇▇ Soup, (ix) all leases by and among CanCo, Containers and ▇▇▇▇▇▇▇▇ Soup,
(x) CanCo's certificate of incorporation and (xi) CanCo's bylaws.
"▇▇▇▇▇▇▇▇ Can Guaranty" shall mean the guaranty entered into in
connection with the ▇▇▇▇▇▇▇▇ Can Acquisition which was made by Silgan,
Containers, Manufacturing, CanCo and CanCo Holding in favor of ▇▇▇▇▇▇▇▇ Soup.
"▇▇▇▇▇▇▇▇ Can Pledge Agreement" shall mean the Pledge and Rights
Agreement entered into in connection with the ▇▇▇▇▇▇▇▇ Can Acquisition by and
among CanCo Holding, Containers, CanCo and ▇▇▇▇▇▇▇▇ Soup.
"▇▇▇▇▇▇▇▇ Can Supply Agreement" shall mean the Supply Agreement
entered into in connection with the ▇▇▇▇▇▇▇▇ Can Acquisition by and among
Containers, CanCo, CanCo Holding and ▇▇▇▇▇▇▇▇ Soup.
"▇▇▇▇▇▇▇▇ Seller Note" shall mean the promissory note issued by CanCo
to ▇▇▇▇▇▇▇▇ Soup in an aggregate principal amount of $3,000,000 which is due on
May 31, 2008, bears interest at a rate of 16-2/3% per annum and which interest
is payable quarterly in arrears.
"▇▇▇▇▇▇▇▇ Soup" shall mean ▇▇▇▇▇▇▇▇ Soup Company, a New Jersey
corporation.
"Canadian Credit Facility" shall mean a credit facility entered into
by Canadian Holdco and/or its Foreign Subsidiaries organized under the laws of
Canada (or any province thereof) and satisfying the requirements of Section
8.04(xiv).
"Canadian Holdco" shall mean 827599 Ontario Inc., an Ontario
corporation and a Wholly-Owned Subsidiary of Plastics, or any other Wholly-Owned
Foreign Subsidiary or Subsidiaries of Plastics organized under the laws of
Canada (or any province thereof) which replace 827599 Ontario Inc. as the
ultimate Canadian parent or parent companies of Silgan Plastics Canada.
"CanCo" shall have the meaning provided in the first paragraph of this
Agreement.
"CanCo Holding" shall mean Silgan Corporation, a Delaware corporation.
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"CanCo Included Debt" shall mean all Indebtedness of CanCo that is
required to be included in the calculation of the CanCo Permitted Debt Amount.
"CanCo Permitted Debt Amount" shall mean, at any time, the "Permitted
Debt Amount" calculated at such time under, and as defined in, CanCo's
certificate of incorporation (as such certificate of incorporation was in effect
on June 3, 1998).
"CanCo Restrictions" shall mean, collectively, (i) the restrictions
imposed on CanCo pursuant to the applicable ▇▇▇▇▇▇▇▇ Can Acquisition Documents
limiting CanCo's ability to (x) guaranty the Obligations of the other Borrowers
pursuant to the US Borrowers/Subsidiaries Guaranty and to secure such guaranty
pursuant to the applicable Security Documents and (y) become jointly and
severally liable with the other Credit Parties as provided for in this Agreement
and in certain of the other Credit Documents, (ii) the pledge of the capital
stock of CanCo pursuant to the applicable ▇▇▇▇▇▇▇▇ Can Acquisition Documents and
(iii) the contractual right of ▇▇▇▇▇▇▇▇ Soup or any Affiliate thereof to
purchase the capital stock of CanCo or any of the assets of CanCo (other than
inventory in the ordinary course of business in accordance with supply
arrangements) whether upon the occurrence of a Triggering Event or otherwise.
"CanCo Revolving Sub-Limit" shall mean, initially, $75,000,000, with
the amount of the CanCo Revolving Sub-Limit to be reduced from time to time
thereafter by the principal amount of any repayment required to be made under
Section 4.02(p) or 4.02(r) (whether or not any Revolving Loans or Swingline
Loans are actually outstanding at such time), provided that, notwithstanding
anything to the contrary contained above, but except as provided below, the
CanCo Revolving Sub-Limit shall not be reduced to below $25,000,000.
Notwithstanding the foregoing, the CanCo Revolving Sub-Limit shall be reduced to
zero upon any requirement to repay all outstanding Revolving Loans and Swingline
Loans incurred by CanCo pursuant to Section 4.02(r) (whether or not any
Revolving Loans or Swingline Loans are actually outstanding at such time).
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles and, without duplication, the amount of
all Capitalized Lease Obligations incurred by such Person (but excluding any
such expenditures that constitute Permitted Acquisitions).
"Capitalized Lease Obligations" shall mean, with respect to any
Person, all rental obligations of such Person which, under accounting principles
generally accepted in the United States, are or will be required to be
capitalized on the books of such Person, in each case taken at the amount
thereof accounted for as indebtedness in accordance with such principles.
"Carryover Amount" shall have the meaning provided in Section 8.07(a).
"Cash Collateral Account" shall have the meaning provided in Section
4.02(a).
"Cash Equivalents" shall mean, as to any Person, (i) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities of not more than
one year from the date of acquisition, (ii) time deposits, certificates
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of deposit and money market deposits of any commercial bank incorporated in the
United States of recognized standing having capital and surplus in excess of
$50,000,000 with maturities of not more than one year from the date of
acquisition by such Person or any money-market fund sponsored by a registered
broker dealer or mutual fund distributor, (iii) repurchase obligations with a
term of not more than thirty days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper issued by
the parent corporation of any commercial bank (provided that the parent
corporation and the bank are both incorporated in the United States) of
recognized standing having capital and surplus in excess of $500,000,000 and
commercial paper issued by any Person incorporated in the United States rated at
least A-1 or the equivalent thereof by Standard & Poor's Ratings Services or at
least P-1 or the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc. and in
each case maturing not more than one year after the date of acquisition by such
Person, (v) marketable direct obligations issued by the District of Columbia or
any state of the United States or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date of
acquisition and, at the time of acquisition, rated at least "A" by Standard &
Poor's Ratings Services or ▇▇▇▇▇'▇ Investors Service, Inc., (vi) investments in
money market funds substantially all of whose assets are comprised of securities
of the types described in clauses (i) through (v) above, and (vii) in the case
of a Foreign Subsidiary, substantially similar investments of the type described
above denominated in foreign currencies and from similarly capitalized and rated
foreign banks in the jurisdiction in which such Foreign Subsidiary is organized.
"CERCLA" shall mean the Comprehensive Environmental Response
Compensation of Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. ss. 9601 et seq.
"Change of Control" shall mean (i)(a) any "person" or "group" (within
the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act),
other than Mr. D. ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇. ▇▇▇▇▇▇ Silver and their respective
Affiliates, becomes the ultimate "beneficial owner" (as defined in Rule 13d-3
under the Securities Exchange Act) of more than 40% of the total voting power of
the Voting Stock of Silgan and (b) Mr. D. ▇▇▇▇ ▇▇▇▇▇▇▇▇, Mr. R. Philip Silver
and their respective affiliates and any spouse, parent, brother, sister or
lineal descendant of Mr. D. ▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇. ▇. ▇▇▇▇▇▇ Silver beneficially
own, directly or indirectly, less than 18% of the total voting power of the
Voting Stock of Silgan, (ii) individuals who on the Effective Date constitute
the Board of Directors of Silgan (together with any new directors whose election
by the Board of Directors of Silgan or whose nomination by the Board of
Directors of Silgan for election by Silgan's stockholders was approved by a vote
of at least a majority of the members of the Board of Directors of Silgan then
in office who either were members of the Board of Directors of Silgan on the
Effective Date or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the members of the
Board of Directors of Silgan then in office or (iii) any "change of control" or
similar event shall occur under the 9% Senior Subordinated Debentures or any
Additional Permitted Subordinated Indebtedness.
"Clean-Down Amount" shall mean an amount equal to $90,000,000.
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"Clean-Down Period" shall mean any 30 consecutive day period during
which the average amount of the Total Unutilized Revolving Loan Commitment shall
be equal to or greater than the Clean-Down Amount for such consecutive 30-day
period.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated thereunder and rulings issued
thereunder. Section references to the Code are to the Code as in effect at the
date of this Agreement, and to any subsequent provisions of the Code amendatory
thereof, supplemental thereto or substituted therefor.
"Co-Documentation Agents" shall have the meaning provided in the first
paragraph of this Agreement.
"Collateral" shall mean all US Collateral, all Foreign Collateral and
all cash and Cash Equivalents deposited into the Cash Collateral Account.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the respective Secured Creditors pursuant to the respective
Security Documents, and shall include any successor Collateral Agent appointed
pursuant to the terms of this Agreement or the respective Security Document, as
the case may be.
"Commitment Commission" shall have the meaning provided in Section
3.01(a).
"Commitments" shall mean any of the commitments of any Lender, i.e.,
whether the A Term Loan Commitment, the B Term Loan Commitment, each Incremental
Term Loan Commitment or the Revolving Loan Commitment.
"Consolidated Current Assets" shall mean, at any time, the current
assets of Silgan and its Subsidiaries at such time determined on a consolidated
basis.
"Consolidated Current Liabilities" shall mean, at any time, the
current liabilities of Silgan and its Subsidiaries at such time determined on a
consolidated basis, provided that the current portion of the Loans (including
any accrued interest with respect to such current portion and accrued interest
on the 9% Senior Subordinated Debentures and any Additional Permitted
Subordinated Indebtedness, in each case from the last regularly scheduled
interest payment date) shall not be considered current liabilities for purposes
of making the foregoing determination.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss) of Silgan and its Subsidiaries for such period, determined on a
consolidated basis, provided that (i) the net income of any other Person which
is not a Subsidiary of Silgan (including each Unrestricted Subsidiary) or is
accounted for by Silgan by the equity method of accounting shall be included
only to the extent of the payment of cash dividends or cash distributions by
such other Person to Silgan or a Subsidiary thereof during such period, (ii) the
net income of any Subsidiary of Silgan shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary
of its income is not at the time permitted by operation of the terms of its
charter or any agreement, instrument or law applicable to such Subsidiary, (iii)
there shall be excluded from such calculation (to the extent otherwise included
therein) (A) any non-cash charges incurred in connection with the entering into
of this Agreement and the
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issuance of the 9% Senior Subordinated Debentures and (B) any extraordinary
non-cash gains or extraordinary non-cash charges, and (iv) there shall be
deducted from such calculation (to the extent not otherwise deducted in
accordance with accounting principles generally accepted in the United States),
any cash payments made in such period on account of an extraordinary non-cash
charge incurred in such period or in a prior period.
"Consolidated Tangible Assets" shall mean, at any time, the assets of
Silgan and its Subsidiaries determined on a consolidated basis at such time less
the amount of all intangible assets of Silgan and its Subsidiaries at such time,
including, without limitation, all goodwill, customer lists, franchises,
licenses, computer software, patents, trademarks, trade names, copyrights,
service marks, brand names, unamortized deferred charges, unamortized debt
discount and capitalized research and development costs.
"Containers" shall have the meaning provided in the first paragraph of
this Agreement.
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person as a result of such Person being a general partner of the other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner, and any obligation of such Person guaranteeing or intended
to guarantee any Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of such
Person, whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of any such primary
obligation or (y) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the holder of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall,
unless expressly limited by its terms to a lesser amount, be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or such lesser amount) or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
"Co-Syndication Agents" shall have the meaning provided in the first
paragraph of this Agreement.
"Credit Documents" shall mean and include this Agreement, each Note,
each Guaranty, each Security Document and, after the execution and delivery
thereof, each Election to Become a Revolving Borrower and each Incremental Term
Loan Commitment Agreement.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit.
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"Credit Party" shall mean and include each US Credit Party and each
Foreign Credit Party.
"Cumulative Consolidated Net Income" shall mean, at any time for any
determination thereof, the Consolidated Net Income of Silgan and its
Subsidiaries for the period (taken as one accounting period) commencing on
January 1, 2002 and ending on the last day of the then most recently ended
fiscal quarter of Silgan.
"Currency" shall mean Dollars, Euros, Pounds Sterling and any other
freely transferable currency to the extent that such currency is approved by the
Administrative Agent and the respective Incremental Term Loan Lender and/or
Incremental Term Loan Lenders providing the Incremental Term Loans subject to
such Other Alternate Currency.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
"Designated Credit Parties" shall mean those Credit Parties that are
from time to time party to the Accounts Receivables Facility Documents.
"Deutsche Bank" shall mean Deutsche Bank Trust Company Americas, in
its individual capacity, and any successor entity thereto by merger,
consolidation or otherwise.
"Dividend" shall mean, with respect to any Person, that such Person
has declared or paid a dividend or returned any equity capital to its
stockholders, partners or members or authorized or made any other distribution,
payment or delivery of property (other than common equity of such Person and, in
the case of Silgan, other than additional shares of Qualified Preferred Stock)
or cash to its stockholders, partners or members as such, or redeemed, retired,
purchased or otherwise acquired, directly or indirectly, for a consideration any
shares of any class of its capital stock or any partnership interests or
membership interest outstanding on or after the Effective Date (or any options
or warrants issued by such Person with respect to its capital stock or such
other equity interests), or set aside any funds for any of the foregoing
purposes, or shall have permitted any of its Subsidiaries to purchase or
otherwise acquire for a consideration any shares of any class of the capital
stock or any partnership interests or membership interests of such Person
outstanding on or after the Effective Date (or any options or warrants issued by
such Person with respect to its capital stock or such other equity interests).
"Dollar Equivalent" shall mean, at any time for the determination
thereof, with respect to an amount of an Alternate Currency (or another foreign
currency), the amount of Dollars which could be purchased with such amount of
such Alternate Currency (or such other foreign currency, as applicable) at the
spot exchange rate therefor as quoted by the Administrative Agent as of 11:00
A.M. (Local Time) on the date two Business Days prior to the date of any
determination thereof for purchase on such date (or, in the case of any
determination pursuant to Section 12.21, on the date of determination).
"Dollar Loan" shall mean each Loan denominated in Dollars.
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"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of Silgan
incorporated or organized in the United States or any State or territory
thereof.
"Drawing" shall have the meaning provided in Section 2.05(b).
"EBIT" shall mean, for any period, the Consolidated Net Income of
Silgan and its Subsidiaries for such period, before Interest Expense and
provision for taxes and (to the extent not already otherwise excluded from the
calculation thereof under this Agreement) without giving effect to any gains or
losses from sales of assets (other than sales of inventory in the ordinary
course of business), or any non-cash adjustments resulting from changes in value
of employee stock options.
"EBITDA" shall mean, for any period, EBIT for such period, adjusted by
adding thereto the amount of all depreciation and all amortization of
intangibles (including covenants not to compete), goodwill and loan fees that
were deducted in arriving at EBIT for such period.
"Effective Date" shall have the meaning provided in Section 12.10.
"Election to Become a Revolving Borrower" shall mean a certificate in
the form of Exhibit J.
"Eligible Transferee" shall mean and include a commercial bank, an
insurance company, a finance company, a financial institution, any fund that
invests in loans or any other "accredited investor" (as defined in Regulation D
of the Securities Act), but excluding Silgan or any of its Subsidiaries.
"EMU Legislation" shall mean the legislative measures of the European
Council for the introduction of, changeover to or operation of a single or
unified European currency.
"End Date" shall mean, for any Margin Reduction Period, the last day
of such Margin Reduction Period.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at the
date of this Agreement, and to any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean any person (as defined in Section 3(9) of
ERISA) (including each trade or business (whether or not incorporated)) which
together with any Borrower or any Subsidiary of any Borrower would be deemed to
be a "single employer" or a member of the same "controlled group" of
"contributing sponsors" within the meaning of Section 4001 of ERISA.
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"Euro" shall mean the single currency of the participating member
states as described in any EMU Legislation.
"Euro Equivalent" shall mean, at any time for the determination
thereof, the amount of Euros which could be purchased with the amount of Dollars
involved in such computation at the spot rate of exchange therefor as quoted by
the Administrative Agent as of 11:00 A.M. (Local Time) on the date two Business
Days prior to the date of any determination thereof for purchase on such date
(or, in the case of any determination pursuant to Section 12.21, on the date of
determination).
"Euro Rate" shall mean (i) for any Borrowing of Loans denominated in
Dollars or a Primary Alternate Currency, the relevant interest rate, i.e., the
Eurodollar Rate in the case of Dollar Loans or the relevant Primary Alternate
Currency LIBOR in the case of Alternate Currency Incremental Term Loans
denominated in a Primary Currency, as the case may be, and (ii) for any
Borrowing of Loans denominated in an Other Alternate Currency, such rate per
annum as shall be agreed upon by the respective Incremental Term Loan Borrower,
the Administrative Agent and the relevant Incremental Term Loan Lenders and set
forth in the relevant Incremental Term Loan Commitment Agreement.
"Euro Rate Loan" shall mean each Loan other than a Base Rate Loan.
"Eurodollar Loan" shall mean each Dollar Loan (other than a Swingline
Loan) designated as a Eurodollar Loan by any Borrower at the time of the
incurrence thereof or conversion thereto by such Borrower.
"Eurodollar Rate" shall mean (a) the offered quotation to first-class
banks in the New York interbank Eurodollar market by the Administrative Agent in
its individual capacity for Dollar deposits of amounts in immediately available
funds comparable to the outstanding principal amount of the Eurodollar Loan of
the Administrative Agent in its individual capacity with maturities comparable
to the Interest Period applicable to such Eurodollar Loan commencing two
Business Days thereafter as of 10:00 A.M. (Local Time) on the date which is two
Business Days prior to the commencement of such Interest Period, divided (and
rounded off to the nearest 1/100 of 1%) by (b) a percentage equal to 100% minus
the then stated maximum rate of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves
required by applicable law) applicable to any member bank of the Federal Reserve
System in respect of Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).
"Euro-zone" shall mean the region composed of the member states as
described in any EMU Legislation.
"Event of Default" shall have the meaning provided in Section 9.
"Excess Cash Flow" shall mean, for any period, the remainder of (a)
the sum of (I) Adjusted Consolidated Net Income for such period and (II) the
decrease, if any, in Working Capital from the first day to the last day of such
period, minus, without duplication, (b) the sum of (I) the amount of all Capital
Expenditures made by Silgan and its Subsidiaries on a consolidated basis during
such period, other than Capital Expenditures to the extent financed through
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insurance or condemnation proceeds, Asset Sale proceeds, proceeds from a sale
and leaseback transaction, proceeds utilizing the Net Equity Proceeds Amount or
the Retained Excess Cash Flow Amount or Indebtedness (other than Revolving Loans
or Swingline Loans) during such period, (II) the aggregate principal amount of
permanent payments or prepayments on Indebtedness for borrowed money of Silgan
and its Subsidiaries (other than (A) repayments or prepayments of Intercompany
Loans, (B) repayments or prepayments of Indebtedness to the extent made with
insurance or condemnation proceeds, Asset Sale proceeds, proceeds from a sale
and leaseback transaction, equity proceeds or proceeds from the incurrence or
issuance of any Indebtedness and (C) repayments of Loans, provided that
repayments of Loans shall be deducted in determining Excess Cash Flow if such
repayments were (1) required as a result of a Term Loan Scheduled Repayment or
(2) made as a voluntary prepayment other than a voluntary prepayment made with
Net Equity Proceeds or with the Retained Excess Cash Flow Amount (but in the
case of a voluntary prepayment of Revolving Loans or Swingline Loans, only to
the extent accompanied by a corresponding voluntary reduction to the Total
Revolving Loan Commitment)) on a consolidated basis during such period, (III)
the increase, if any, in Working Capital from the first day to the last day of
such period, (IV) the aggregate amount of costs and expenses incurred by Silgan
and its Subsidiaries during such period in connection with the consolidation and
plant rationalization of their operations to the extent such amounts have not
reduced Adjusted Consolidated Net Income for such period or constituted Capital
Expenditures made during such period, (V) the aggregate amount of Investments
made under Section 8.05(xiv) during such period except to the extent utilizing
proceeds from the Permitted Additional Investment Basket Amount and (VI) the
aggregate amount of Dividends paid pursuant to Sections 8.03(iii) and (iv)
during such period except to the extent utilizing proceeds from the Net Equity
Proceeds Amount.
"Excess Cash Payment Date" shall mean the date occurring 120 days
after the last day of each fiscal year of Silgan (beginning with its fiscal year
ending on December 31, 2003).
"Excess Cash Payment Period" shall mean, with respect to the repayment
required on each Excess Cash Payment Date, the immediately preceding fiscal year
of Silgan.
"Exchange Percentage" shall mean, as to each Lender, a fraction,
expressed as a decimal, of which (a) the numerator shall be the sum of (i) the
aggregate outstanding principal amount of the Loans owed to such Lender and (ii)
the LC Exposure of such Lender, and (b) the denominator shall be the sum of
(i) the aggregate outstanding principal amount of the Loans owed to all the
Lenders and (ii) the aggregate LC Exposure of all the Lenders.
"Existing Credit Agreement" shall mean the Credit Agreement, dated as
of July 29, 1997, among Silgan, Containers, Plastics, certain other Subsidiaries
of Silgan, the financial institutions party thereto, Deutsche Bank, as
administrative agent, Bank of America, N.A., as syndication agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Partners L.P. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as
co-documentation agents and Bank of America, N.A., Deutsche Bank, ▇▇▇▇▇▇▇ Sachs
Credit Partners, L.P. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as co-arrangers,
as amended, modified or supplemented through the Initial Borrowing Date.
"Existing Indebtedness" shall have the meaning provided in Section
8.04(ii).
"Existing Letters of Credit" shall have the meaning provided in
Section 2.01.
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"Facing Fees" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"Foreign Collateral" shall mean all assets or properties of any
Foreign Credit Party covered by any of the Foreign Security Documents, including
all Additional Collateral covered thereby.
"Foreign Credit Party" shall mean each Foreign Incremental Term Loan
Borrower and each Related Foreign Company Guarantor.
"Foreign Incremental Term Loan Borrower" shall mean any Wholly-Owned
Foreign Subsidiary of Silgan that becomes an Incremental Term Loan Borrower
pursuant to Section 1.14(d).
"Foreign Intercompany Loan Amount" shall mean, at any time, an amount
equal to the aggregate outstanding principal amount of Intercompany Loans made
by Silgan and its Domestic Subsidiaries to Foreign Subsidiaries of Silgan,
provided that for purposes of this definition, the principal amount of an
Intercompany Loan made to a Foreign Subsidiary of Silgan shall not be included
to the extent that such principal amount exceeds the amount of all cash and Cash
Equivalents held by such Foreign Subsidiary and its Subsidiaries at such time.
"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program (other than a
statutorily required program) established or maintained outside the United
States of America by Silgan or any one or more of its Subsidiaries primarily for
the benefit of employees of Silgan or such Subsidiaries residing outside the
United States of America, which plan, fund or other similar program provides, or
results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which plan
is not subject to ERISA or the Code.
"Foreign Security Documents" shall have the meaning provided in
Section 1.14(d) and, after the execution and deliver thereof, shall include each
Additional Security Document entered into by a Foreign Credit Party.
"Foreign Subsidiary" shall mean, as to any Person, each Subsidiary of
such Person which is not a Domestic Subsidiary.
"Guarantor" shall mean and include each US Guarantor and each Related
Foreign Company Guarantor.
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"Guaranty" shall mean and include the US Borrowers/Subsidiaries
Guaranty, each Related Foreign Company Guaranty and each other guaranty that may
be executed and delivered pursuant to Section 7.10.
"Incremental Term Loan" shall have the meaning provided in Section
1.01(c).
"Incremental Term Loan Borrower" shall mean Silgan (if Silgan incurs
Incremental Term Loans) and each Foreign Incremental Term Loan Borrower.
"Incremental Term Loan Borrowing Date" shall mean, with respect to
each Tranche of Incremental Term Loans, each date on which Incremental Term
Loans of such Tranche are incurred pursuant to Section 1.01(c) and as otherwise
permitted by Section 1.14.
"Incremental Term Loan Commitment" shall mean, for each Lender, any
commitment to make Incremental Term Loans provided by such Lender pursuant to
Section 1.14, in such amount as agreed to by such Lender in the respective
Incremental Term Loan Commitment Agreement and as set forth opposite such
Lender's name in Schedule I (as modified in accordance with Section 1.14)
directly below the column entitled "Incremental Term Loan Commitment", as the
same may be (x) reduced from time to time or terminated pursuant to Sections
3.02, 3.03, 4.02 and/or 9 or (y) adjusted from time to time as a result of
assignments to and from such Lender pursuant to Sections 1.13 and/or 12.04(b).
"Incremental Term Loan Commitment Agreement" shall mean each
Incremental Term Loan Commitment Agreement in the form of Exhibit L
(appropriately completed) executed in accordance with Section 1.14.
"Incremental Term Loan Commitment Termination Date" shall mean, with
respect to any Tranche of Incremental Term Loans, the last date by which
Incremental Term Loans under such Tranche may be incurred under this Agreement,
which date shall be set forth in the respective Incremental Term Loan Commitment
Agreement but may be no later than June 28, 2008.
"Incremental Term Loan Lender" shall have the meaning provided in
Section 1.14(b).
"Incremental Term Loan Maturity Date" shall mean, for any Tranche of
Incremental Term Loans, the final maturity date set forth for such Tranche of
Incremental Term Loans in the respective Incremental Term Loan Commitment
Agreement relating thereto, provided that the final maturity date for all
Incremental Term Loans of a given Tranche shall be the same date.
"Incremental Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(d).
"Incremental Term Note" shall have the meaning provided in Section
1.05(a).
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money
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or for the deferred purchase price of property or services, (ii) indebtedness
under all bankers' acceptances, and the face amount of all letters of credit
issued for the account of such Person and all drafts drawn thereunder, (iii) all
liabilities secured by any Lien on any property owned by such Person, whether or
not such liabilities have been assumed by such Person, (iv) the aggregate amount
required to be capitalized under leases under which such Person is the lessee,
(v) all obligations under Interest Rate Protection Agreements and (vi) all
Contingent Obligations of such Person. Notwithstanding the foregoing,
Indebtedness (x) shall not include trade payables and accrued expenses incurred
by any Person in accordance with customary practices and in the ordinary course
of business of such Person and (y) shall include the obligations under the
Accounts Receivable Facility to the extent that such obligations are required to
be reflected as a liability on the consolidated balance sheet of Silgan in
accordance with accounting principles generally accepted in the United States.
"Initial Borrowing Date" shall mean the date occurring on or after the
Effective Date on which the initial Borrowing of Loans hereunder occurs.
"Intercompany Loan" shall mean any intercompany loan or advance
between Silgan and any of its Subsidiaries or between any Subsidiaries of
Silgan, which in the case of an Intercompany Loan made by a Credit Party, shall
be evidenced by an Intercompany Note.
"Intercompany Note" shall mean a promissory note in form and substance
reasonably satisfactory to the Administrative Agent evidencing an Intercompany
Loan.
"Interest Coverage Ratio" shall mean, for any period, the ratio of (x)
EBITDA for such period to (y) Interest Expense for such period.
"Interest Determination Date" shall mean the second Business Day prior
to the commencement of any Interest Period relating to a Euro Rate Loan.
"Interest Expense" shall mean, for any period, the sum of (i) the
total consolidated interest expense of Silgan and its Subsidiaries for such
period (without giving effect to any amortization or write-off of up-front fees
and expenses in connection with any debt issuance) net of any total consolidated
interest income of Silgan and its Subsidiaries for such period and (ii) the
product of (A) the aggregate amount of all cash Dividend payments made on any
class of Qualified Preferred Stock prior to the fifth anniversary after the
issuance of such Qualified Preferred Stock and (B) a fraction, the numerator of
which is one and the denominator of which is one minus the current effective
consolidated federal, state, local and foreign income tax rate of Silgan
expressed as a decimal.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate cap
agreement, interest rate swap agreement, interest rate collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"Investments" shall have the meaning provided in Section 8.05.
"Issuing Country" shall have the meaning provided in Section 12.22.
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"Issuing Lender" shall mean (i) with respect to standby Letters of
Credit, Deutsche Bank, and (ii) with respect to trade Letters of Credit, any
Lender (and, in the case of Deutsche Bank (to the extent that it subsequently
agrees to be an issuer of trade Letters of Credit hereunder), any bank affiliate
thereof which have agreed to issue trade Letters of Credit hereunder) which, at
the request of Silgan and with the consent of the Administrative Agent, agrees
in such Lender's sole discretion to become an Issuing Lender for purposes of
issuing trade Letters of Credit pursuant to Section 2.
"Joint Book Managers" shall have the meaning provided in the first
paragraph of this Agreement.
"Joint Lead Arrangers" shall have the meaning provided in the first
paragraph of this Agreement.
"Joint Venture" shall mean any Person (other than a Subsidiary of
Silgan) in which Silgan (directly or through one or more of its Subsidiaries)
owns 50% or less of the equity interests.
"Judgment Currency" shall have the meaning provided in Section
12.21(a).
"Judgment Currency Conversion Date" shall have the meaning provided in
Section 12.21(a).
"LC Exposure" shall mean, at any time, the sum of (i) the aggregate
Stated Amount of all outstanding Letters of Credit and (ii) the aggregate amount
of all Unpaid Drawings that have not yet been reimbursed by or on behalf of the
Revolving Borrowers at such time.
"LC Reserve Account" shall have the meaning provided in Section
1.15(g).
"Leaseholds" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lender" shall have the meaning provided in the first paragraph of
this Agreement.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing (including
any Mandatory Borrowing) or to fund its portion of any unreimbursed payment
under Section 2.04(c) or (ii) a Lender having notified in writing any Borrower
and/or the Administrative Agent that such Lender does not intend to comply with
its obligations under Section 1.01(a), (b), (c), (d) or (f) or Section 2.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fees" shall have the meaning provided in Section
3.01(b).
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"Letter of Credit Outstandings" shall mean, at any time, the sum of
(i) the aggregate Stated Amount of all outstanding Letters of Credit and (ii)
the amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in Section
2.03(a).
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement and any lease having substantially the same effect as any of the
foregoing).
"Loan" shall mean each A Term Loan, each B Term Loan, each Incremental
Term Loan, each Revolving Loan and each Swingline Loan.
"Local Time" shall mean the local time in effect at (x) the applicable
Notice Office in the case of Notices of Borrowing, Notices of
Conversions/Continuances and Letter of Credit Requests and (y) the applicable
Payment Office in the case of all payments and disbursements of Loans, other
Obligations or Letters of Credit.
"Majority Lenders" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if all outstanding Obligations of the other Tranches under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated.
"Management Agreements" shall have the meaning provided in Section
5.01(e).
"Management Services Agreements" shall mean each of the Amended and
Restated Management Service Agreements, each dated as of February 14, 1997,
between each of Silgan, Containers and Plastics and S&H Inc., as any such
Management Services Agreement may be amended, modified or supplemented from time
to time pursuant to the terms hereof and thereof, as well as any additional
Management Services Agreement entered into between any other Subsidiary or
Unrestricted Subsidiary of Silgan and S&H Inc. so long as the terms and
conditions thereof are substantially similar to the Management Services
Agreements existing on the Initial Borrowing Date.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(f).
"Manufacturing" shall have the meaning provided in the first paragraph
of this Agreement.
"Margin Reduction Period" shall mean each period which shall commence
on a date on which the financial statements are delivered pursuant to Section
7.01(a) (other than in respect of the fourth fiscal quarter of any fiscal year
of Silgan) or Section 7.01(b), as the case may be, and which shall end on the
earlier of (i) the date of actual delivery of the next financial statements
pursuant to Section 7.01(a) (other than in respect of the fourth fiscal quarter
of any fiscal year of Silgan) or Section 7.01(b), as the case may be, and (ii)
the latest date on which the next financial statements are required to be
delivered pursuant to Section 7.01(a) (other than in
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respect of the fourth fiscal quarter of any fiscal year of Silgan) or Section
7.01(b), as the case may be; provided that the first Margin Reduction Period
shall commence on the date of delivery of the financial statements in respect of
the fiscal quarter of Silgan ending on June 30, 2002.
"Margin Stock" shall have the meaning provided in Regulation U of the
Board of Governors of the Federal Reserve System.
"Material Adverse Effect" shall mean a material adverse effect on the
business, operations, property, assets, liabilities or condition (financial or
otherwise) of Silgan and its Subsidiaries taken as a whole.
"Maturity Date" shall mean the A Term Loan Maturity Date, the B Term
Loan Maturity Date, each Incremental Term Loan Maturity Date, the Revolving Loan
Maturity Date or the Swingline Expiry Date, as the case may be.
"Maximum Amount" shall have the meaning provided in Section 12.19.
"Maximum Swingline Amount" shall mean $30,000,000.
"Minimum Borrowing Amount" shall mean (i) for Term Loans that are
Dollar Loans, $5,000,000, (ii) for Incremental Term Loans denominated in an
Alternate Currency, an amount in such Alternate Currency to be determined by the
Administrative Agent and the respective Incremental Term Lenders as set forth in
the relevant Incremental Term Loan Commitment Agreement, (iii) for Revolving
Loans, $2,500,000 (except that, in the case of Revolving Loans made to CanCo
that are maintained as Base Rate Loans, the Minimum Borrowing Amount in respect
thereof shall be $1,000,000) and (iv) for Swingline Loans, $250,000.
"Mortgage Policy" shall mean the mortgage title insurance policy or a
binding commitment with respect thereto.
"Mortgaged Properties" shall mean all Real Property of the Credit
Parties subject to a Mortgage.
"Mortgages" shall mean mortgages, deeds of trust, leasehold mortgages
and leasehold deeds of trust (or similar instruments) granted in favor of the
Collateral Agent for the benefit of the respective Secured Creditors with
respect to the Mortgaged Properties, which mortgages, deeds of trust, leasehold
mortgages and leasehold deeds of trust (or similar instruments) are or shall be
in a form which is satisfactory to the Administrative Agent, with such changes
as are necessary or desirable in the opinion of local or foreign counsel to
conform with applicable law and procedure.
"NAIC" shall mean the National Association of Insurance Commissioners.
"Net Debt Proceeds" shall mean, with respect to any incurrence of
Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated therewith)
received by the respective Person from the respective incurrence of such
Indebtedness for borrowed money
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"Net Equity Proceeds" shall mean, with respect to each sale or
issuance by Silgan of its equity, the cash proceeds received by Silgan therefrom
(net of underwriting discounts and commissions and other reasonable costs
associated therewith).
"Net Equity Proceeds Amount" shall mean, at any time, an amount equal
to the Net Equity Proceeds received by Silgan after the Initial Borrowing Date,
with the Net Equity Proceeds Amount to be immediately reduced by (i) the amount
of any voluntary prepayments of Term Loans made pursuant to Section 4.01(a) with
Net Equity Proceeds, (ii) the amount of any Permitted Subordinated Debt
Repurchases made with Net Equity Proceeds, (iii) the amount of any Capital
Expenditures or Permitted Acquisitions made with Net Equity Proceeds, (iv) the
amount of any Investments made pursuant to Section 8.05(xiv) or guarantees
entered into pursuant to Section 8.04(xiii) in each case with Net Equity
Proceeds and (v) the amount of Dividends paid pursuant to Section 8.03(iv) made
with Net Equity Proceeds.
"Net Insurance Proceeds" shall mean, with respect to any Recovery
Event, the cash proceeds received by the respective Person therefrom (net of (i)
reasonable costs and taxes associated therewith, (ii) in the case of insurance
or condemnation proceeds received by Silgan or any of its Foreign Subsidiaries
solely in respect of the assets or property of Canadian Holdco or any of its
Foreign Subsidiaries organized under the laws of Canada (or any province
thereof), any amounts required to be applied under the Canadian Credit Facility
and (iii) the amount of such insurance or condemnation proceeds required to be
used to repay any Indebtedness (other than Indebtedness under this Agreement)
which is secured by the respective assets subject to such Recovery Event).
"Net Sale Proceeds" shall mean, for any Asset Sale or sale and
leaseback transaction, the gross cash proceeds (including any cash received by
way of deferred payment pursuant to a promissory note, receivable or otherwise,
but only as and when received) received from such Asset Sale or sale and
leaseback transaction net of (i) the reasonable costs incurred in connection
therewith, (ii) the amount of such gross cash proceeds required to be used to
repay any Indebtedness (other than Indebtedness under this Agreement) which is
secured by the respective assets which were sold and (iii) the estimated
marginal increase in taxes which will be payable by Silgan's consolidated group
with respect to the year in which sale occurs as a result thereof.
"9% Senior Subordinated Debenture Documents" shall mean the 9% Senior
Subordinated Debentures, the 9% Senior Subordinated Debenture Indenture and each
of the other documents executed in connection therewith.
"9% Senior Subordinated Debenture Indenture" shall mean the Indenture,
dated as of June 9, 1997, between Silgan and Bank One Trust Company, N.A. (as
successor in interest to The First National Bank of Chicago), as Trustee, and as
amended by the First Supplemental Indenture thereto, dated as of June 24, 1997
and the Second Supplemental Indenture thereto, dated as of April 23, 2002.
"9% Senior Subordinated Debentures" shall mean Silgan's 9% Senior
Subordinated Debentures due June 1, 2009, which were issued prior to the Initial
Borrowing Date pursuant to the 9% Senior Subordinated Debenture Indenture. As
used herein, the term "9% Senior Subordinated Debentures" shall include any 9%
Senior Subordinated Debentures
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which are identical securities to the 9% Senior Subordinated Debentures issued
prior to the Initial Borrowing Date (other than with respect to transfer
restrictions and registration rights), but which shall be issued pursuant to a
registered exchange offer for the 9% Senior Subordinated Debentures theretofore
issued pursuant to the 9% Senior Subordinated Debenture Indenture. In no event
will the issuance of any such exchange 9% Senior Subordinated Debentures
increase the aggregate principal amount of 9% Senior Subordinated Debentures
then outstanding or otherwise result in an increase in an interest rate
applicable to the 9% Senior Subordinated Debentures.
"Non-Defaulting Lender" shall mean and include each Lender other than
a Defaulting Lender.
"Note" shall mean each A Term Note, each B Term Note, each Incremental
Term Note, each Revolving Note and each Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion/Continuation" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean (i) except as provided in clause (ii)
below, the office of the Administrative Agent located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other office or offices as the
Administrative Agent may designate in writing to the Borrowers and the Lenders
from time to time, and (ii) in the case of Incremental Term Loans of a given
Tranche to a Foreign Incremental Term Loan Borrower, the office of the
Administrative Agent designated as the "Notice Office" for such Tranche of
Incremental Term Loans in the respective Incremental Term Loan Commitment
Agreement (which office may be the same as that in the preceding clause (i),
although if such office is not the same, a copy of the relevant notice also
shall be delivered to the Administrative Agent at the Notice Office referred to
in the preceding clause (i)), or such other office or offices as the
Administrative Agent may designate in writing to the Borrowers and the Lenders
from time to time.
"Obligation Currency" shall have the meaning provided in Section
12.21(a).
"Obligations" shall mean all amounts owing to the Administrative
Agent, the other Agents, the Collateral Agent, the Swingline Lender, any Lender
or any Issuing Lender pursuant to the terms of this Agreement or any other
Credit Document.
"Other Alternate Currency" shall mean an Alternate Currency other than
a Primary Alternate Currency.
"Other Hedging Agreements" shall mean any foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed to
protect against fluctuations in currency values.
"Participant" shall have the meaning provided in Section 2.04(a).
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"Payment Office" shall mean (i) except as provided in clause (ii)
below, the office of the Administrative Agent located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other office as the Administrative Agent
may designate in writing to the Borrowers and the Lenders from time to time, and
(ii) in the case of Incremental Term Loans of a given Tranche to a Foreign
Incremental Term Loan Borrower, the office of the Administrative Agent
designated as the "Payment Office" for such Tranche of Incremental Term Loans in
the respective Incremental Term Loan Commitment Agreement (which office may be
the same as that in the preceding clause (i)), or such other office or offices
as the Administrative Agent may designate in writing to the Borrowers and the
Lenders from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall have the meaning provided in Section
8.02(x).
"Permitted Additional Investment Basket Amount" shall mean, at any
time, an amount equal to the sum of (I) the Net Equity Proceeds Amount at such
time and (II) the Retained Excess Cash Flow Amount at such time.
"Permitted Encumbrance" shall mean, with respect to any Mortgaged
Property, such exceptions to title as are set forth in the Mortgage Policy
delivered with respect thereto, all of which exceptions must be acceptable to
the Administrative Agent in its reasonable discretion.
"Permitted Liens" shall have the meaning provided in Section 8.01.
"Permitted Subordinated Debt Repurchases" shall mean one or more open
market or privately negotiated transactions or voluntary Refinancings pursuant
to which Silgan Refinances outstanding 9% Senior Subordinated Debentures or
Additional Permitted Subordinated Indebtedness so long as (i) at the time of
each such Refinancing, no Default or Event of Default then exists or would
result therefrom, (ii) at the time of each such Refinancing and immediately
after giving effect thereto, the Senior Leverage Ratio for the Test Period then
most recently ended for which financial statements have been delivered to the
Lenders under this Agreement, on a Pro Forma Basis, would have been no greater
than 2.50:1.00, (iii) within five Business Days prior to the consummation of any
such Refinancing, Silgan shall deliver to the Administrative Agent a certificate
of its chief financial officer or treasurer setting forth (in reasonable detail)
the calculation of the Senior Leverage Ratio on a Pro Forma Basis for the Test
Period then most recently ended prior to the date of such Refinancing for which
the financial statements have been delivered to the Lenders under this
Agreement, and such calculation shall show that the Senior Leverage Ratio as of
the last day of such Test Period was no greater than 2.50:1.00, (iv) at the time
of each such Refinancing and immediately after giving effect thereto, the Total
Unutilized Revolving Loan Commitment shall be at least (x) $200,000,000 to the
extent that any such Refinancing occurs during the period from and including
November 1 of any year through and including June 30 of the succeeding year or
(y) $150,000,000 to the extent that any such Refinancing occurs at any other
time during any year, and (v) immediately following any such Refinancing, the 9%
Senior Subordinated Debentures or the Additional Permitted Subordinated
Indebtedness so Refinanced are cancelled by Silgan.
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"Permitted Subordinated Indebtedness" shall mean the 9% Senior
Subordinated Debentures and any Additional Permitted Subordinated Indebtedness.
"Permitted Subordinated Indebtedness Documents" shall mean all
indentures, securities purchase agreements, note agreements and other documents
and agreements entered into in connection with any Permitted Subordinated
Indebtedness.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any multiemployer plan (as defined in Section
4001(a)(3) of ERISA) or any single-employer plan (as defined in Section
4001(a)(15) of ERISA), subject to Title IV of ERISA, which is maintained or
contributed to, or at any time during the five calendar years preceding the date
of this Agreement was maintained or contributed to by any Borrower, any
Subsidiary of any Borrower or any ERISA Affiliate.
"Plastics" shall have the meaning provided in the first paragraph of
this Agreement.
"Pounds Sterling" shall mean freely transferable lawful money of the
United Kingdom.
"Pounds Sterling Equivalent" shall mean, at any time for the
determination thereof, the amount of Pounds Sterling which could be purchased
with the amount of Dollars involved in such computation at the spot exchange
rate therefor as quoted by the Administrative Agent as of 11:00 A.M. (Local
Time) on the date two Business Days prior to the date of any determination
thereof for purchase on such date (or, in the case of any determination pursuant
to Section 12.21, on the date of determination).
"Primary Alternate Currency" shall mean each of Euros and Pounds
Sterling.
"Primary Alternate Currency LIBOR" shall mean, with respect to each
Interest Period applicable to any Alternate Currency Incremental Term Loan
denominated in a Primary Alternate Currency, the British Bankers Association
Interest Settlement Rate that appears on page 3750 (or other appropriate page if
the relevant Primary Alternate Currency does not appear on such page) of the Dow
▇▇▇▇▇ Telerate Screen (or any successor page) for deposits in the relevant
Primary Alternate Currency with maturities comparable to such Interest Period as
of 11:00A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period or, if such rate does not appear on the Dow
▇▇▇▇▇ Telerate Screen (or any successor page), the offered quotations to
first-class banks in the London interbank market by the Administrative Agent for
deposits in the relevant Primary Alternate Currency of amounts in same day funds
comparable to the outstanding principal amount of such Alternate Currency
Incremental Term Loan with maturities comparable to such Interest Period
determined as of 11:00 A.M. (London time) on the date which is two Business Days
prior to the commencement of such Interest Period; provided that in the event
the Administrative Agent has made any determination pursuant to Section
1.10(a)(i) in respect of Alternate Currency Incremental Term Loans denominated
in such Primary Alternate Currency, or in the circumstances described in
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clause (i) to the proviso to Section 1.10(b) in respect of Alternate Currency
Incremental Term Loans denominated in such Primary Alternate Currency, Primary
Alternate Currency LIBOR determined pursuant to this definition with respect to
such Primary Alternate Currency shall instead be the rate determined by the
Administrative Agent as the all-in-cost of funds for the Administrative Agent to
fund the respective Alternate Currency Incremental Term Loan denominated in such
Primary Alternate Currency with maturities comparable to the Interest Period
applicable thereto.
"Prime Lending Rate" shall mean the rate which Deutsche Bank announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Deutsche Bank may make commercial loans or
other loans at rates of interest at, above or below the Prime Lending Rate.
"Pro Forma Basis" shall mean, in connection with any calculation of
compliance with any financial covenant or financial term required by this
Agreement to be determined on a Pro Forma Basis, the calculation thereof after
giving effect on a pro forma basis to (w) the assumption, incurrence or issuance
of any Indebtedness or capital stock (other than revolving Indebtedness, except
to the extent same is incurred to refinance other outstanding Indebtedness
(including any Indebtedness assumed as part of any Permitted Acquisition and any
Permitted Subordinated Indebtedness pursuant to a Refinancing), or to finance
Permitted Acquisitions or Investments made pursuant to Section 8.05(xiv)) during
(and, in the case of determining compliance with Section 8.02(x), after the
first day of) the relevant Calculation Period as if such Indebtedness had been
incurred or capital stock issued (and the proceeds thereof applied) on the first
day of the relevant Calculation Period, it being understood that to the extent
any Indebtedness is incurred to purchase any working capital in connection with
a Permitted Acquisition, such amount shall be based on the average working
capital of the Person or assets so acquired for the four quarter period
immediately preceding the date of such acquisition, (x) the permanent repayment
of any Indebtedness (other than revolving Indebtedness (except to the extent
accompanied by a corresponding permanent commitment reduction) and any Term Loan
Scheduled Repayment or scheduled principal amortization payment under the
Canadian Credit Facility) during (and, in the case of determining compliance
with Section 8.02(x), after the first day of) the relevant Calculation Period as
if such Indebtedness had been retired or redeemed on the first day of the
relevant Calculation Period, (y) the consummation of any Specified Asset Sale or
sale and leaseback transaction during and, in the case of determining compliance
with Section 8.02(x), after the first day of) the relevant Calculation Period as
if such Specified Asset Sale or sale and leaseback transaction had been
consummated on the first day of the relevant Calculation Period and (z) all
Permitted Acquisitions, consummated during (and, in the case of determining
compliance with Section 8.02(x), after the first day of) the relevant
Calculation Period and, in the case of determining compliance with Section
8.02(x), on or prior to the date of the respective Permitted Acquisition then
being effected, with the following rules to apply in connection with the
foregoing:
(i) all Indebtedness and capital stock (x) (other than revolving
Indebtedness, except to the extent same is incurred to refinance other
outstanding Indebtedness (including any Indebtedness assumed as part of any
Permitted Acquisition and any Permitted Subordinated Indebtedness pursuant to a
Refinancing) or to finance Permitted Acquisitions or Investments
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made pursuant to (Section 8.05(xiv)) assumed, incurred or issued during (and, in
the case of determining compliance with Section 8.02(x), after the first day of)
the relevant Calculation Period (whether incurred to finance a Permitted
Acquisition or an Investment made pursuant to Section 8.05(xiv), to refinance
Indebtedness or otherwise) shall be deemed to have been incurred or issued (and
the proceeds thereof applied) on the first day of the respective Calculation
Period and remain outstanding through the date of determination and (y) (other
than revolving Indebtedness (except to the extent accompanied by a corresponding
permanent commitment reduction)) permanently retired or redeemed during (and, in
the case of determining compliance with Section 8.02(x), after the first day of)
the relevant Calculation Period shall be deemed to have been retired or redeemed
on the first day of the respective Calculation Period and remain retired through
the date of determination;
(ii) all Indebtedness assumed to be outstanding pursuant to preceding
clause (i) shall be deemed to have borne interest at (x) the rate applicable
thereto, in the case of fixed rate indebtedness or (y) in the case of floating
rate indebtedness, the average rate which would have been applicable thereto
during the respective period when same was deemed outstanding (although interest
expense with respect to any Indebtedness for periods while same was actually
outstanding during the respective period shall be calculated using the actual
rates applicable thereto while same was actually outstanding); and
(iii) in making any determination of EBITDA, pro forma effect shall be
given to any Permitted Acquisition and any Specified Asset Sale and sale and
leaseback transaction for the periods described above, taking into account, in
the case of any Permitted Acquisition, any factually supportable and
identifiable cost savings and expenses which are directly attributable to such
Permitted Acquisition as if such cost savings or expenses were realized on the
first day of the respective period, but only to the extent that such cost
savings and expenses would otherwise be permitted to be accounted for as an
adjustment pursuant to Article 11 of Regulation S-X under the Securities Act.
In addition, to the extent that either historical financial
information of the Person or assets acquired as part of any Permitted
Acquisition is not available or pro forma adjustments have been made to any
available historical financial information, Silgan also shall provide a
certificate of its chief financial officer or treasurer certifying that the
financial information used to determine such pro forma calculations reasonably
reflects the results that would have occurred had such Permitted Acquisition
occurred on the first day of the most recently ended Test Period.
"Projections" shall have the meaning provided in Section 5.01(n).
"Qualified Preferred Stock" shall mean any preferred stock of Silgan
so long as the terms of any such preferred stock (i) do not contain any
mandatory put, redemption, repayment, sinking fund or other similar provision
occurring before May 30, 2009, (ii) provide that the payment of all Dividends
thereunder are subject to the provisions set forth in this Agreement, as the
same may be amended, modified, replaced or refinanced from time to time, (iii)
do not contain any covenants that are more restrictive in any material respect
than those covenants contained in the 9% Senior Subordinated Debenture
Indenture, (iv) do not grant the holders thereof any voting rights except for
(x) voting rights required to be granted to such holders under applicable law
and (y) limited customary voting rights on fundamental matters
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such as mergers, consolidations, sales of all or substantially all of the assets
of Silgan, liquidations involving Silgan or amendments to any of the covenants
set forth therein, and (v) are otherwise reasonably satisfactory to the
Administrative Agent.
"Quarterly Payment Date" shall mean the last Business Day of each
March, June, September and December.
"RCRA" shall mean the Resources Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. ss. 6901 et seq.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Receivables Subsidiary" shall mean a special purpose Wholly-Owned
Domestic Subsidiary of Silgan formed to enter into the Accounts Receivable
Facility.
"Recovery Event" shall mean the receipt by Silgan or any of its
Subsidiaries of any cash insurance proceeds or casualty or condemnation awards
payable by reason of theft, loss, physical destruction, damage, taking or any
other similar event with respect to any property or assets of Silgan or any of
its Subsidiaries.
"Refinance," "Refinanced" or "Refinancing" shall mean, when used in
respect of the 9% Senior Subordinated Debentures and/or any Additional Permitted
Subordinated Indebtedness, to refinance, redeem, repay, repurchase, acquire or
defease any such issue of Permitted Subordinated Indebtedness.
"Register" shall have the meaning provided in Section 12.16.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Related Foreign Company Group" shall mean, with respect to any
Foreign Incremental Term Loan Borrower, the Foreign Subsidiaries which are
parents of such Foreign Incremental Term Loan Borrower and the Subsidiaries of
such Foreign Incremental Term Loan Borrower.
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"Related Foreign Company Guarantor" shall have the meaning provided in
Section 1.14(d).
"Related Foreign Company Guaranty" shall have the meaning provided in
Section 1.14(d).
"Relevant Currency Equivalent" shall mean the Dollar Equivalent, the
Euro Equivalent or the Pounds Sterling Equivalent, as applicable.
"Replaced Lender" shall have the meaning provided in Section 1.13.
"Replacement Lender" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.
"Required Appraisal" shall have the meaning provided in Section 7.11.
"Required Lenders" shall mean Non-Defaulting Lenders the sum of whose
outstanding Term Loans, Incremental Term Loan Commitments and Revolving Loan
Commitments (or after the termination thereof, outstanding Revolving Loans and
RL Percentage of outstanding Swingline Loans and Letter of Credit Outstandings)
represent an amount greater than 50% of the sum of (i) all outstanding Term
Loans of Non-Defaulting Lenders, (ii) the Total Incremental Term Loan Commitment
in respect of all Tranches of Incremental Term Loans less the Incremental Term
Loan Commitments of all Defaulting Lenders and (iii) the Total Revolving Loan
Commitment less the Revolving Loan Commitments of all Defaulting Lenders (or, if
after the Total Revolving Loan Commitment has been terminated, the sum of the
then total outstanding Revolving Loans of Non-Defaulting Lenders and the
aggregate RL Percentages of all Non-Defaulting Lenders of the total outstanding
Swingline Loans and Letter of Credit Outstandings at such time). For purposes of
this definition, the calculation of the outstanding principal amount of all
Alternate Currency Incremental Term Loans shall be determined by taking the
Dollar Equivalent thereof at the time of any such calculation.
"Required US Lenders" shall mean those Non-Defaulting Lenders holding
Loans and Revolving Loan Commitments of the US Borrowers which would constitute
the Required Lenders under, and defined in, this Agreement if all the
outstanding Obligations of the Foreign Incremental Term Loan Borrowers were
repaid in full and all the Commitments with respect thereto were terminated.
"Retained Excess Cash Flow Amount" shall mean, initially zero and at
any time on or after January 1, 2004, a cumulative amount equal to the remainder
of (x) 100% of Excess Cash Flow for each Excess Cash Payment Period (commencing
with the Excess Cash Payment Period ending December 31, 2003) less (y) the
amount (if any) required to be repaid pursuant to Section 4.02(e) in respect of
each such Excess Cash Payment Period, with the Retained Excess Cash Flow Amount
to be immediately reduced by (i) the amount of any voluntary prepayments of Term
Loans made pursuant to Section 4.01(a) utilizing the Retained Excess Cash Flow
Amount, (ii) the amount of any Permitted Subordinated Debt Repurchases made with
the
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proceeds of the Retained Excess Cash Flow Amount (including all amounts expended
in respect of principal, premium and fees, but excluding interest), (iii) the
amount of any Capital Expenditures made with the proceeds of the Retained Excess
Cash Flow Amount and (iv) the amount of any Investments made pursuant to Section
8.05(xiv) or guaranties entered into pursuant to Section 8.04(xiii) in excess of
$175,000,000 in the aggregate in each case made with the proceeds of the
Retained Excess Cash Flow Amount.
"Revolving Borrower" shall mean each of Containers, Plastics,
Manufacturing, CanCo and any other Wholly-Owned Domestic Subsidiary of Silgan
(other than the Receivables Subsidiary) that becomes a Revolving Borrower
pursuant to Section 5.04.
"Revolving Loan Commitment" shall mean, for each Lender, the amount
set forth opposite such Lender's name in Schedule I directly below the column
entitled "Revolving Loan Commitment," as same may be (x) reduced from time to
time or terminated pursuant to Sections 3.02, 3.03, 4.02 and/or 9, or (y)
adjusted from time to time as a result of assignments to or from such Lender
pursuant to Sections 1.13 and/or 12.04(b).
"Revolving Loan Maturity Date" shall mean June 28, 2008.
"Revolving Loans" shall have the meaning provided in Section 1.01(d).
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"Revolving Outstandings" shall mean, at any time, the sum of the
aggregate principal amount of all Revolving Loans and Swingline Loans then
outstanding plus the aggregate amount of all Letter of Credit Outstandings at
such time; provided, however, (i) that the term Revolving Outstandings shall not
include any Revolving Loans or Swingline Loans the proceeds of which were used
to finance a Permitted Acquisition (including to refinance any Indebtedness
assumed as part of any Permitted Acquisition), an Investment pursuant to Section
8.05(xiv), a payment under a guaranty provided under Section 8.04(xiii) or a
Permitted Subordinated Debt Repurchase and (ii) for the period through, but not
including, December 31, 2002, the Revolving Outstandings amount shall be equal
to $3,000,000.
"RL Percentage" of any Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Lender at such time and the denominator of which is the Total
Revolving Loan Commitment at such time; provided that if the RL Percentage of
any Lender is to be determined after the Total Revolving Loan Commitment has
been terminated, then the RL Percentages of the Lenders shall be determined
immediately prior (and without giving effect) to such termination.
"SEC" shall have the meaning provided in Section 7.01(g).
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b).
"Secured Creditors" shall have the meaning provided in the respective
Security Documents.
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"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Security Document" shall mean and include each Foreign Security
Document and each US Security Document.
"Senior Leverage Ratio" shall mean, at any time, the Total Leverage
Ratio at such time but calculated without regard to any outstanding Permitted
Subordinated Indebtedness at such time.
"Sharing Event" shall mean (i) the occurrence of any Event of Default
with respect to any Borrower pursuant to Section 9.05, (ii) the acceleration of
the maturity of the Loans pursuant to the last paragraph of Section 9 or (iii)
if the Required US Lenders so elect, the failure to pay any Tranche of Loans in
full at the respective Maturity Date therefor.
"Silgan" shall have the meaning provided in the first paragraph of
this Agreement.
"Silgan Plastics Canada" shall mean Silgan Plastics Canada Inc., an
Ontario corporation and a Wholly-Owned Subsidiary of Canadian Holdco.
"Specified Asset Sale" shall mean any Asset Sale in which the gross
cash proceeds received therefrom is at least $1,000,000.
"Specified Default" shall mean any Default under Section 9.01 or 9.05.
"Start Date" shall mean, with respect to any Margin Reduction Period,
the first day of such Margin Reduction Period.
"Stated Amount" of each Letter of Credit shall mean the maximum amount
available to be drawn thereunder, determined without regard to whether any
conditions to drawing could then be met.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, limited
liability company, joint venture or other entity in which such Person and/or one
or more Subsidiaries of such Person has more than a 50% equity interest at the
time. Notwithstanding the foregoing (and except for purposes of Sections 6.11,
6.12, 7.06, 7.08, 9.06 and 12.01, and the definition of Unrestricted Subsidiary
contained herein), an Unrestricted Subsidiary shall be deemed not to be a
Subsidiary of Silgan or any of its other Subsidiaries for purposes of this
Agreement or any other Credit Document. Unless the context indicates otherwise,
all references herein to Subsidiaries are references to Subsidiaries of any
Borrower.
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"Supermajority Lenders" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if (x) all outstanding Obligations of the other Tranches under
this Agreement were repaid in full and all Commitments with respect thereto were
terminated and (y) the text "an amount greater than 50%" contained therein were
changed to "an amount equal to at least 66-2/3%".
"Swingline Expiry Date" shall mean the date which is two Business Days
prior to the Revolving Loan Maturity Date.
"Swingline Lender" shall mean Deutsche Bank.
"Swingline Loan" shall have the meaning provided in Section 1.01(e).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Tax Sharing Agreement" shall mean the Tax Allocation Agreement, dated
as of July 13, 1990, as amended on December 21, 1993 and August 1, 1995, by and
among Silgan and each of its Domestic Subsidiaries party thereto, as amended,
modified or supplemented from time to time.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan" shall mean each A Term Loan, each B Term Loan and each
Incremental Term Loan.
"Term Loan Percentage" of a Tranche of Term Loans shall mean, at any
time, a fraction (expressed as a percentage), the numerator of which is equal to
the aggregate outstanding principal amount of all Term Loans of such Tranche
(which, in the case of Alternate Currency Incremental Term Loans, shall be the
Dollar Equivalent of such aggregate outstanding principal amount) at such time
and the denominator of which is equal to the aggregate outstanding principal
amount of all Term Loans of all Tranches (which, in the case of Alternate
Currency Incremental Term Loans, shall be the Dollar Equivalent of such
aggregate principal amount) at such time.
"Term Loan Scheduled Repayment" shall have the meaning provided in
Section 4.02(d).
"Test Date" shall mean, with respect to any Start Date, the last day
of the most recent fiscal quarter of Silgan ended immediately prior to such
Start Date.
"Test Period" shall mean each period of four consecutive fiscal
quarters of Silgan (in each case taken as one accounting period).
"Total A Term Loan Commitment" shall mean, at any time, the sum of the
A Term Loan Commitments of each of the Lenders at such time.
"Total B Term Loan Commitment" shall mean, at any time, the sum of the
B Term Loan Commitments of each of the Lenders at such time.
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"Total Commitment" shall mean, at any time, the sum of the Commitments
of each of the Lenders at such time.
"Total Incremental Term Loan Commitment" shall mean, at any time and
for any Tranche of Incremental Term Loans, the sum of the Incremental Term Loan
Commitments of such Tranche of each of the Lenders at such time.
"Total Indebtedness" shall mean, at any time, the aggregate amount of
Indebtedness of Silgan and its Subsidiaries determined on a consolidated basis
at such time (but excluding (x) obligations in respect of Interest Rate
Protection Agreements and (y) any premiums or discounts associated with the
issuance of any Indebtedness to the extent that accounting principles generally
accepted in the United States would require such amounts to be reflected as
Indebtedness on a consolidated balance sheet of Silgan).
"Total Leverage Ratio" shall mean, for any period, the ratio of (x)
the sum of (I) Total Indebtedness (excluding Revolving Outstandings) as of the
last day of such period plus (II) the Revolving Outstandings on the December 31
immediately preceding the last day of such period (or, in the case of a Test
Period ended on December 31 in any fiscal year of Silgan, the Revolving
Outstandings on such December 31) to (y) EBITDA for then the most recently ended
Test Period. In determining the Total Leverage Ratio for any period, there shall
be excluded from Total Indebtedness an amount equal to the amount of
unrestricted cash and Cash Equivalents on the consolidated balance sheet of
Silgan and its Subsidiaries as of the last day of such period to the extent, but
only to the extent, no Revolving Loans or Swingline Loans are outstanding on
such day, provided, that in no event shall more than $50,000,000 be deducted in
determining Total Indebtedness as of the last day of such period); it being
understood and agreed, however, for purposes of determining Total Indebtedness
or Revolving Loans or Swingline Loans at any time that the CanCo Restrictions
are in effect, there shall be excluded from such calculation that aggregate
principal amount of all Revolving Loans and Swingline Loans made to CanCo which
equals the aggregate amount of unrestricted cash and Cash Equivalents held by
Silgan and its Subsidiaries (other than CanCo and its Subsidiaries) as reflected
on the consolidated balance sheet of Silgan and its Subsidiaries as of the last
day of such period.
"Total Revolving Loan Commitment" shall mean, at any time, the sum of
the Revolving Loan Commitments of each of the Lenders at such time.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
an amount equal to the remainder of (x) the then Total Revolving Loan Commitment
less (y) the sum of the aggregate principal amount of all Revolving Loans and
Swingline Loans then outstanding plus the then aggregate amount of all Letter of
Credit Outstandings.
"Tranche" shall mean the respective facilities and commitments
utilized in making Loans hereunder, with there being four separate Tranches on
the Effective Date, i.e., A Term Loans, B Term Loans, Revolving Loans and
Swingline Loans. In addition, and notwithstanding the foregoing, any Incremental
Term Loans extended after the Initial Borrowing Date shall, except to the extent
provided in Section 1.14(c), be made pursuant to one or more additional Tranches
which shall be designated pursuant to the respective Incremental Term Loan
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Commitment Agreements in accordance with the relevant requirements specified in
Section 1.14, provided that, for purposes of Section 1.15 only, for so long as
the CanCo Restrictions remain in effect and CanCo has not become a party to the
US Borrowers/Subsidiaries Guaranty, Revolving Loans and Letter of Credit
Outstandings made to CanCo shall be deemed to be a separate Tranche.
"Triggering Event" shall mean (i) any of the events described in
Section 6(a) of the ▇▇▇▇▇▇▇▇ Can Pledge Agreement, (ii) the non-renewal of the
term under the ▇▇▇▇▇▇▇▇ Can Supply Agreement and purchase by ▇▇▇▇▇▇▇▇ Soup of
all of CanCo's assets, all as described in Article 8 of the ▇▇▇▇▇▇▇▇ Can Supply
Agreement and (iii) any other event that allows ▇▇▇▇▇▇▇▇ Soup to purchase all or
substantially all of the assets or capital stock of CanCo.
"Type" shall mean (i) for any Dollar Loan, the type of such Dollar
Loan determined with regard to the interest option available thereto, i.e.,
whether a Base Rate Loan or a Eurodollar Loan, and (ii) for any Alternate
Currency Incremental Term Loan, the Applicable Currency of such Alternate
Currency Incremental Term Loan.
"UCC" shall mean the Uniform Commercial Code as in effect in the
relevant jurisdictions.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the present value of the accrued benefits under the Plan as of the
close of its most recent plan year exceeds the fair market value of the assets
allocable thereto determined in accordance with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States of
America.
"Unpaid Drawing" shall have the meaning provided in Section 2.05(a).
"Unrestricted Subsidiary" shall mean any Subsidiary of Silgan that is
(i) acquired or created after the Initial Borrowing Date and (ii) designated by
Silgan as an Unrestricted Subsidiary hereunder by written notice to the
Administrative Agent at the time that such Subsidiary is created or acquired,
provided that Silgan shall only be permitted to so designate such Subsidiary as
an Unrestricted Subsidiary after the Initial Borrowing Date so long as (w) no
Default or Event of Default then exists or would result therefrom, (x) all of
the provisions of Section 8.11 shall have been complied with in respect of such
newly-designated Unrestricted Subsidiary, (y) such Unrestricted Subsidiary shall
be capitalized (to the extent capitalized by Silgan or any of its Subsidiaries)
through Investments as permitted by, and in compliance with, Section 8.05(xiv),
and with any assets owned by such Unrestricted Subsidiary at the time of the
initial designation thereof to be treated as Investments in such Unrestricted
Subsidiary pursuant to Section 8.05(xiv), and (z) at least five Business Days
prior to the designation of any Person as an Unrestricted Subsidiary, Silgan
shall have delivered to the Administrative Agent a certificate of its chief
financial officer or treasurer setting forth (in reasonable detail) the
recalculation of the Interest Coverage Ratio and the Total Leverage Ratio on a
Pro Forma Basis for the Test Period then most recently ended prior to the date
of such designation for which financial statements have been delivered to the
Lenders under this Agreement, and such recalculation shall
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show that Silgan would have been in compliance with Sections 8.08 and 8.09 as of
the last day of such Test Period.
"Unutilized Revolving Loan Commitment" with respect to any Lender, at
any time, shall mean such Lender's Revolving Loan Commitment at such time less
the sum of (i) the aggregate outstanding principal amount of Revolving Loans
made by such Lender and (ii) such Lender's RL Percentage of the Letter of Credit
Outstandings.
"US Borrower" shall mean Silgan or any Revolving Borrower.
"US Borrowers/Subsidiaries Guaranty" shall have the meaning provided
in Section 5.01(g).
"US Collateral" shall mean all assets or properties of any US Credit
Party covered by any of the US Security Documents, including all Additional
Collateral covered thereby.
"US Credit Party" shall mean each of Silgan, each Revolving Borrower
and each other US Guarantor.
"US Guarantor" shall mean Silgan, each Revolving Borrower and each
other US Subsidiary Guarantor in their capacities as such, although neither
CanCo nor any of its Subsidiaries shall be a Guarantor for so long as the
applicable CanCo Restrictions remain in effect.
"US Mortgage" shall mean a Mortgage encumbering a US Mortgaged
Property.
"US Mortgaged Property" shall mean any Mortgaged Property owned or
leased by a US Credit Party.
"US Pledge Agreement" shall have the meaning provided in Section
5.01(h).
"US Pledge Agreement Collateral" shall mean all "Collateral" as
defined in the US Pledge Agreement.
"US Security Agreement" shall have the meaning provided in Section
5.01(i).
"US Security Agreement Collateral" shall mean and include all
"Collateral" as defined in the US Security Agreement.
"US Security Documents" shall mean and include the US Pledge
Agreement, the US Mortgages, the US Security Agreement and, after the execution
and delivery thereof, each Additional Security Document entered into by a US
Credit Party.
"US Subsidiary Guarantor" shall mean (i) each Revolving Borrower in
its capacity as a guarantor under the US Borrowers/Subsidiaries Guaranty and
(ii) each other Domestic Subsidiary of Silgan (other than the Receivables
Subsidiary), although neither CanCo nor any of its Subsidiaries shall be a US
Subsidiary Guarantor for so long as the applicable CanCo Restrictions are in
effect.
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"Voting Stock" shall mean the capital stock of Silgan ordinarily
having the power to vote for the election of directors of Silgan.
"Waivable Mandatory Repayment" shall have the meaning provided in
Section 4.02(l).
"Waivable Voluntary Prepayment" shall have the meaning provided in
Section 4.01(c).
"Weighted Average Life to Maturity" shall mean, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the then
outstanding principal amount of such Indebtedness into (ii) the product obtained
by multiplying (x) the amount of each then remaining installment or other
required scheduled payments of principal, including payment at final maturity,
in respect thereof, by (y) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment.
"Wholly-Owned Domestic Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person that is a Domestic Subsidiary.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person that is a Foreign Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than directors' qualifying shares
and/or other nominal amounts of shares required to be held by local nationals
under applicable law) is at the time owned by such Person and/or one or more
Wholly-Owned Subsidiaries of such Person and (ii) any partnership, association,
joint venture, limited liability company or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity
interest at such time (other than nominal interests required to be held by local
nationals under applicable law).
"Working Capital" shall mean, at any time, Consolidated Current Assets
(excluding cash and Cash Equivalents) less Consolidated Current Liabilities at
such time; provided, however, for purposes of calculating Excess Cash Flow for
any Excess Cash Payment Period, Working Capital shall be calculated on a Pro
Forma basis to give effect to any Permitted Acquisitions made during such
period.
10.02 Principles of Construction. (a) All references to sections,
schedules and exhibits are to sections, schedules and exhibits in or to this
Agreement unless otherwise specified.
(b) All accounting terms not specifically defined herein shall be
construed in accordance with accounting principles generally accepted in the
United States in conformity with those used in the preparation of the last
audited financial statements referred to in Section 6.07(a).
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Section 11. The Administrative Agent and the Other Agents.
11.01 Appointment. The Lenders hereby designate Deutsche Bank as
Administrative Agent (for purposes of this Section 11 and Section 12.01, the
term "Administrative Agent" shall also include Deutsche Bank in its capacity as
Collateral Agent pursuant to the Security Documents) to act as specified herein
and in the other Credit Documents. The Lenders hereby designate Bank of America,
N.A. and Citicorp USA, Inc., as Co-Syndication Agents, to act as specified
herein and in the other Credit Documents. The Lenders hereby designate ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Senior Funding, Inc. and Fleet National Bank as Co-Documentation Agents
to act as specified herein and in the other Credit Documents. Each Lender hereby
irrevocably authorizes the Administrative Agent and the other Agents to take
such action on its behalf under the provisions of this Agreement, the other
Credit Documents and any other instruments and agreements referred to herein or
therein and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent and the other Agents by the terms hereof and thereof and such other powers
as are reasonably incidental thereto. The Administrative Agent and the other
Agents may perform any of their respective duties hereunder by or through their
respective officers, directors, agents or employees.
11.02 Nature of Duties. Neither the Administrative Agent nor any other
Agent shall have any duties or responsibilities except those expressly set forth
in this Agreement and in the other Credit Documents. Neither the Administrative
Agent, any other Agent nor any of their respective officers, directors, agents,
affiliates or employees shall be liable for any action taken or omitted by it or
them hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and
non-appealable decision). The duties of the Administrative Agent and the other
Agents shall be mechanical and administrative in nature; neither the
Administrative Agent nor any other Agent shall have by reason of this Agreement
or any other Credit Document a fiduciary relationship in respect of any Lender;
and nothing in this Agreement or any other Credit Document, expressed or
implied, is intended to or shall be so construed as to impose upon the
Administrative Agent or any other Agent any obligations in respect of this
Agreement or any other Credit Document except as expressly set forth herein.
11.03 Lack of Reliance on the Administrative Agent and the Other
Agents. Independently and without reliance upon the Administrative Agent or any
other Agent, each Lender, to the extent it deems appropriate, has made and shall
continue to make (i) its own independent investigation of the financial
condition and affairs of Silgan and its Subsidiaries in connection with the
making and the continuance of the Loans and the taking or not taking of any
action in connection herewith and (ii) its own appraisal of the creditworthiness
of Silgan and its Subsidiaries and, except as expressly provided in this
Agreement, neither the Administrative Agent nor any other Agent shall have any
duty or responsibility, either initially or on a continuing basis, to provide
any Lender with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans, or at any time or
times thereafter. Neither the Administrative Agent nor any other Agent shall be
responsible to any Lender for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution,
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effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of Silgan or any of its Subsidiaries or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement or any other Credit
Document, or the financial condition of Silgan or any of its Subsidiaries or the
existence or possible existence of any Default or Event of Default.
11.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, as the case may be, the Administrative
Agent shall be entitled to refrain from such act or taking such action unless
and until the Administrative Agent shall have received instructions from the
Required Lenders and the Administrative Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder or
under any other Credit Document in accordance with the instructions of the
Required Lenders.
11.05 Reliance. The Administrative Agent and each of the other Agents
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, statement, certificate, telex, teletype or
facsimile message, cablegram, radiogram, order or other document or telephone
message signed, sent or made by any Person that the Administrative Agent or such
other Agent believes to be the proper Person, and, with respect to all legal
matters pertaining to this Agreement and any other Credit Document and its
duties hereunder and thereunder, upon advice of counsel selected by it.
11.06 Indemnification. To the extent the Administrative Agent or any
other Agent is not reimbursed and indemnified by the Borrowers, the Lenders will
reimburse and indemnify the Administrative Agent and such other Agent, in
proportion to their respective "percentages" as used in determining the Required
Lenders (determined as if there are no Defaulting Lenders), for and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent or such other Agent, in their respective capacities as
such, in performing their duties hereunder or under any other Credit Document,
in any way relating to or arising out of this Agreement or any other Credit
Document; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's or
such other Agent's gross negligence or willful misconduct (as determined by a
court of competent jurisdiction in a final and non-appealable decision).
11.07 The Administrative Agent and the other Agents in Their
Individual Capacity. With respect to its obligation to make Loans and to
participate in Letters of Credit under this Agreement, the Administrative Agent
and each of the other Agents shall have the rights and powers specified herein
for a "Lender" and may exercise the same rights and powers as though they were
not performing the duties specified herein; and the term "Lenders," "Required
Lenders," "Majority Lenders," "Supermajority Lenders" or any similar terms
shall,
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unless the context clearly otherwise indicates, include the Administrative Agent
and each of the other Agents in their individual capacities. The Administrative
Agent and each of the other Agents may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with, or
purchase an equity interest in, Silgan or any Affiliate of Silgan as if it were
not performing the duties specified herein, and may accept fees and other
consideration from Silgan and its Subsidiaries for services in connection with
this Agreement and otherwise without having to account for the same to the
Lenders. The Administrative Agent and each of the other Agents may also be an
equity investor in Silgan or any Affiliate of Silgan without any consent
required from any Lender.
11.08 Holders. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any note or notes issued in
exchange therefor.
11.09 Resignation by the Administrative Agent and the Other Agents.
(a) The Administrative Agent and/or any of the other Agents may resign from the
performance of all their respective functions and duties hereunder and/or under
the other Credit Documents at any time by giving 15 Business Days' prior (or, in
the case of an other Agent, same day) written notice to the Borrowers and the
Lenders. In the case of the resignation by the Administrative Agent, such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below. In
the case of a resignation by any other Agent, such resignation shall become
effective immediately.
(b) Upon any such notice of resignation, the Required Lenders shall
appoint a successor Administrative Agent hereunder and/or under the other Credit
Documents who shall be a commercial bank or trust company reasonably acceptable
to Silgan.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of Silgan, shall then appoint a successor Administrative Agent who shall
serve as Administrative Agent hereunder and/or under the other Credit Documents
until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 20th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Lenders shall thereafter perform all
the duties of the Administrative Agent hereunder and/or under any other Credit
Document until such time, if any, as the Required Lenders appoint a successor
agent as provided above.
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Section 12. Miscellaneous
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12.01 Payment of Expenses, etc. The Borrowers jointly and severally
agree that they will: (i) whether or not the transactions herein contemplated
are consummated, pay all reasonable out-of-pocket costs and expenses of the
Administrative Agent and each of the other Agents in connection with the
preparation, execution and delivery of the Credit Documents and the documents
and instruments referred to therein and any amendment, waiver or consent
relating thereto (including, without limitation, the reasonable fees and
disbursements of White & Case, local and foreign counsel and, without
duplication, the allocated costs of in-house counsel for the other Agents) and
of the Administrative Agent and each of the other Agents in connection with
their syndication efforts with respect to this Agreement and of the
Administrative Agent, each of the other Agents, the Collateral Agent and each of
the Lenders in connection with the enforcement of the Credit Documents and the
documents and instruments referred to therein or in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings (including, without limitation, the reasonable fees and
disbursements of counsel and consultants for the Administrative Agent, each of
the other Agents and the Collateral Agent as a group and, after the occurrence
of an Event of Default, one additional counsel for the Lenders as a group); (ii)
pay and hold each of the Lenders harmless from and against any and all present
and future stamp, excise and other similar taxes with respect to the foregoing
matters and save each of the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to such Lender) to pay such taxes; and (iii)
indemnify the Administrative Agent, each of the other Agents, the Collateral
Agent and each Lender, its officers, directors, employees, affiliates,
representatives and agents from and hold each of them harmless against any and
all liabilities, obligations (including removal or remedial actions), losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys' and consultants' fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a) any
investigation, litigation or other proceeding (whether or not the Administrative
Agent, any other Agent or any Lender is a party thereto) related to the entering
into and/or performance of this Agreement or any other Credit Document or the
use of any Letter of Credit or the proceeds of any Loans hereunder or the
consummation of any transactions contemplated herein or in any other Credit
Document or the exercise of any of their rights or remedies provided herein or
in the other Credit Documents, or (b) the actual or alleged presence of
hazardous materials in the air, surface water or groundwater or on the surface
or subsurface of any Real Property owned or at any time operated by Silgan or
any of its Subsidiaries, the generation, storage, transportation, handling or
disposal of hazardous materials by or of (or on behalf of or at the direction
of) Silgan or any of its Subsidiaries at any location, whether or not owned or
operated by Silgan or any of its Subsidiaries, the non-compliance of any Real
Property with foreign, federal, state and local laws, regulations, and
ordinances (including applicable permits thereunder) applicable to any Real
Property, or any environmental claim asserted against Silgan, any of its
Subsidiaries or any Real Property owned or at any time operated by Silgan or any
of its Subsidiaries, including, in each case, without limitation, the reasonable
fees and disbursements of counsel and other consultants incurred in connection
with any such investigation, litigation or other proceeding (but excluding any
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified (as determined by a court of competent jurisdiction
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in a final and non-appealable decision)). To the extent that the undertaking to
indemnify, pay or hold harmless the Administrative Agent, any other Agent or any
Lender set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Borrowers shall make the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.
12.02 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, the Administrative
Agent and each Lender is hereby authorized at any time or from time to time
without presentment, demand, protest or other notice of any kind to any Borrower
or to any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and apply any and all deposits (general or special) and
any other Indebtedness at any time held or owing by Administrative Agent or such
Lender (including, without limitation, by branches and agencies of the
Administrative Agent or such Lender (or Affiliates thereof) wherever located) to
or for the credit or the account of such Borrower against and on account of the
Obligations and liabilities of such Borrower to the Administrative Agent or such
Lender under this Agreement or under any of the other Credit Documents,
including, without limitation, all interests in Obligations purchased by such
Lender pursuant to Section 12.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not the Administrative Agent or such Lender
shall have made any demand hereunder and although said Obligations, liabilities
or claims, or any of them, shall be contingent or unmatured. Notwithstanding
anything to the contrary contained in this Section 12.02, no Lender shall
exercise any such right of set-off without the prior consent of the
Administrative Agent or the Required Lenders so long as the Obligations shall be
secured by any Real Property located in the State of California, it being
understood and agreed, however, that this sentence is for the sole benefit of
the Lenders and may be amended, modified or waived in any respect by the
Required Lenders without the requirement of prior notice to or consent by any
Credit Party and does not constitute a waiver of any rights against any Credit
Party or against any Collateral.
12.03 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to any Borrower, at
its address specified opposite its signature below; if to any Lender, at its
office specified opposite its name on Schedule IX; and if to the Administrative
Agent, at the Notice Office; or, as to any Borrower or the Administrative Agent,
at such other address as shall be designated by such party in a written notice
to the other parties hereto and, as to each other party, at such other address
as shall be designated by such party in a written notice to the Borrowers and
the Administrative Agent. All such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, cabled or sent by overnight courier,
be effective when deposited in the mails, delivered to the telegraph company,
cable company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to the Administrative Agent
shall not be effective until received by the Administrative Agent.
12.04 Benefit of Agreement. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto;
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provided, however, no Borrower may assign or transfer any of its rights,
obligations or interest hereunder or under any other Credit Document without the
prior written consent of the Banks and, provided further, that, although any
Lender may transfer, assign or grant participations in its rights hereunder,
such Lender shall remain a "Lender" for all purposes hereunder (and may not
transfer or assign all or any portion of its Commitments or outstanding Loans
hereunder except as provided in Sections 1.13 and 12.04(b)) and the transferee,
assignee or participant, as the case may be, shall not constitute a "Lender"
hereunder and, provided further, that no Lender shall transfer or grant any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Revolving Loan Maturity Date) in which such participant
is participating, or reduce the rate or extend the time of payment of interest
or Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) (it being understood that any amendment
or modification to the financial definitions in this Agreement or to Section
12.07(a) shall not constitute a reduction in the rate of interest or Fees
payable hereunder) or reduce the principal amount thereof, or increase the
amount of the participant's participation over the amount thereof then in effect
(it being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Total Commitment shall not constitute a change in the
terms of such participation, and that an increase in any Commitment or Loan
shall be permitted without the consent of any participant if the participant's
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by any Borrower of any of its rights and obligations
under this Agreement or (iii) release all or substantially all of the Collateral
under all of the Security Documents (except as expressly provided in the Credit
Documents) supporting the Loans in which such participant is participating. In
the case of any such participation, the participant shall not have any rights
under this Agreement or any of the other Credit Documents (the participant's
rights against such Lender in respect of such participation to be those set
forth in the agreement executed by such Lender in favor of the participant
relating thereto) and all amounts payable by any Borrower hereunder shall be
determined as if such Lender had not sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender together
with one or more other Lenders) may (x) assign all or a portion of its
Commitments and related outstanding Obligations (or, if the Commitments with
respect to the relevant Tranche have terminated, outstanding Obligations)
hereunder to (i)(A) its parent company and/or any affiliate of such Lender which
is at least 50% owned by such Lender or its parent company or (B) to one or more
other Lenders or any affiliate of any such other Lender which is at least 50%
owned by such other Lender or its parent company (provided that any fund that
invests in loans and is managed or advised by the same investment advisor of
another fund which is a Lender (or by an affiliate of such investment advisor)
shall be treated as an affiliate of such other Lender for the purposes of this
sub-clause (x)(i)(B)), or (ii) in the case of any Lender that is a fund that
invests in loans, any other fund that invests in loans and is managed or advised
by the same investment advisor of any Lender or by an affiliate of such
investment advisor or (y) assign all, or if less than all, a portion equal to at
least $1,000,000 in the aggregate for the assigning Lender or assigning Lenders,
of such Commitments and related outstanding Obligations (or, if the Commitments
with respect to the relevant Tranche have terminated, outstanding Obligations)
hereunder to one or more Eligible Transferees (treating any fund that invests in
loans and any other fund
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that invests in loans and is managed or advised by the same investment advisor
of such fund or by an Affiliate of such investment advisor as a single Eligible
Transferee), each of which assignees shall become a party to this Agreement as a
Lender by execution of an Assignment and Assumption Agreement, provided that (i)
at such time, Schedule I shall be deemed modified to reflect the Commitments
and/or outstanding Loans, as the case may be, of such new Lender and of the
existing Lenders, (ii) upon the surrender of the relevant Notes by the assigning
Lender (or, upon such assigning Lender's indemnifying the respective Borrower or
Borrowers for any lost Note pursuant to a customary indemnification agreement)
new Notes will be issued, at the Borrowers' expense, to such new Lender and to
the assigning Lender upon the request of such new Lender or assigning Lender,
such new Notes to be in conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect the revised
Commitments and/or outstanding Loans, as the case may be, (iii) the consent of
the Administrative Agent shall be required in connection with any such
assignment pursuant to clause (y) above (which consent shall not be unreasonably
withheld or delayed), (iv) the Administrative Agent shall receive at the time of
each such assignment, from the assigning or assignee Lender, the payment of a
non-refundable assignment fee of $3,500 and (v) no such transfer or assignment
will be effective until recorded by the Administrative Agent in the Register
pursuant to Section 12.16. At the time of each assignment pursuant to this
Section 12.04(b) to a Person which is not already a Lender hereunder and which
is not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for Federal income tax purposes, the respective assignee Lender shall
provide to the Borrowers and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable, a Section 4.04(b)(ii) Certificate)
described in Section 4.04(b). To the extent of any assignment pursuant to this
Section 12.04(b), the assigning Lender shall be relieved of its obligations
hereunder with respect to its assigned Commitments and outstanding Loans. To the
extent that an assignment of all or any portion of a Lender's Commitments and
related outstanding Obligations pursuant to Section 1.13 or this Section
12.04(b) would, at the time of such assignment, result in increased costs under
Section 1.10, 1.11, 2.06 or 4.04 from those being charged by the respective
assigning Lender prior to such assignment, then the Borrowers shall not be
obligated to pay such increased costs (although the Borrowers shall be obligated
to pay any other increased costs of the type described above resulting from
changes after the date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Lender
from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support
of borrowings made by such Lender from such Federal Reserve Bank and, with prior
notification to the Administrative Agent (but without the consent of the
Administrative Agent or any Borrower), any Lender which is a fund may pledge all
or any portion of its Loans and Notes to its trustee or to any other
representative of holders of obligations owed or securities issued by such fund,
in each case as security for such obligations or securities; provided, however,
that (i) any foreclosure or similar action by such trustee or representative
shall be subject to the provisions of this Section 12.04 concerning assignments
and (ii) no pledge pursuant to this clause (c) shall release the transferor
Lender from any of its obligations hereunder.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the part
of the Administrative Agent, any other Agent or any Lender or any holder of a
Note in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between any Borrower and the
Administrative Agent, any other Agent or any Lender or the
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holder of any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights,
powers and remedies herein and in any other Credit Document expressly provided
are cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent, any other Agent, any Lender or the holder of any Note
would otherwise have. No notice to or demand on any Borrower in any case shall
entitle any Borrower to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Administrative
Agent, any other Agent, any Lender or the holder of any Note to any other or
further action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of any Borrower in respect of any Obligations of
such Borrower hereunder, the Administrative Agent shall distribute such payment
to the Lenders entitled thereto (other than any Lender that has consented in
writing to waive its pro rata share of any such payment) pro rata based upon
their respective shares, if any, of the Obligations with respect to which such
payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, the Unpaid Drawings, Commitment Commission or Letter of Credit
Fees, of a sum which with respect to the related sum or sums received by other
Lenders is in a greater proportion than the total of such Obligation then owed
and due to such Lender bears to the total of such Obligation then owed and due
to all such Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in the Obligations of such Borrower
to such Lenders in such amount as shall result in a proportional participation
by all of the Lenders in such amount; provided that if all or any portion of
such excess amount is thereafter recovered from such Lender, such purchase shall
be rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 12.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
12.07 Calculations: Computations. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with accounting principles generally accepted in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by Silgan to the Lenders);
provided that, except as otherwise specifically provided herein, (i) all
computations determining compliance with Section 4.02, Section 8 and the
definitions of Applicable Commitment Commission Percentage, Applicable Margin
and Senior Leverage Ratio shall utilize accounting principles and policies in
conformity with those used to prepare the audited
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historical financial statements referred to in Section 6.07(a) and (ii) all
computations determining compliance with Sections 8.08 and 8.09 and the
definitions of Applicable Commitment Commission Percentage, Applicable Margin
and Senior Leverage Ratio shall be determined on a Pro Forma Basis; provided
further that (i) in determining EBITDA for any period, no effect shall be given
(but only to the extent not already otherwise excluded from the calculation of
EBITDA under this Agreement) (I) to FAS 106, (II) to non-cash amounts recorded
(or required to be recorded) in accordance with FAS 133 or (III) to any unusual
charges to the extent that cash is not expended during such period, but effect
shall be given (and shall reduce EBITDA) in any future period to the extent that
any cash payment is made on account of a non-cash unusual charge taken in a
previous period, and (ii) for purposes of calculating the Applicable Commitment
Commission Percentage, the Applicable Margin and all financial ratios and
financial terms, the financial results of Unrestricted Subsidiaries shall be
ignored.
(b) All computations of interest, Commitment Commission and other Fees
hereunder shall be made on the actual number of days elapsed over a year of 360
days.
(c) Notwithstanding anything to the contrary contained in clause (a)
of this Section 12.07, for purposes of determining compliance with any
incurrence tests set forth in Section 8 (excluding Sections 8.08 and 8.09 and
the definitions of Applicable Commitment Commission Percentage, Applicable
Margin, Senior Leverage Ratio and Consolidated Tangible Assets), any amounts so
incurred or expended (to the extent incurred or expended in a currency other
than Dollars) shall be converted into Dollars on the basis of the relevant
exchange rates (as shown on the relevant page of Reuters or (x) if Reuters does
not provide such exchange rates, as shown on the relevant page of the Wall
Street Journal or (y) if the Wall Street Journal does not provide such exchange
rates, on such other basis as is satisfactory to the Administrative Agent) as in
effect on the date of such incurrence or expenditure under any provision of any
such Section that has an aggregate Dollar limitation provided for therein.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE. (A) THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND, EXCEPT TO THE
EXTENT PROVIDED IN CERTAIN OF THE MORTGAGES, OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH BORROWER HEREBY
FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL
JURISDICTION OVER SUCH BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL
ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENTS
BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL
JURIS-
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DICTION OVER SUCH BORROWER. EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO SUCH BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS
SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
EACH BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS
AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR
PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE
OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. WITHOUT LIMITING THE
FOREGOING, EACH FOREIGN INCREMENTAL TERM LOAN BORROWER HEREBY IRREVOCABLY
DESIGNATES, APPOINTS AND EMPOWERS SILGAN (AND SILGAN HEREBY IRREVOCABLY ACCEPTS
SUCH APPOINTMENT) AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND
ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF THE PROPERTY OF EACH SUCH
FOREIGN INCREMENTAL TERM LOAN BORROWER, SERVICE OF ANY AND ALL LEGAL PROCESS,
SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR
ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY BORROWER IN ANY OTHER
JURISDICTION.
(B) EACH BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(C) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
12.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrowers and the
Administrative Agent.
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12.10 Effectiveness. This Agreement shall become effective on the date
(the "Effective Date") on which each of the Borrowers and the Lenders shall have
signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered the same to the Administrative Agent at its Notice Office
or, in the case of the Lenders, shall have given to the Administrative Agent
telephonic (confirmed in writing), written or telex notice (actually received)
at such office that the same has been signed and mailed to it. The
Administrative Agent will give each Borrower and each Lender prompt written
notice of the occurrence of the Effective Date.
12.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.12 Amendment and Waiver. (a) Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Borrowers and the Required Lenders (although (i)
modifications to, or supplements of, the Annexes to the respective Security
Documents may be made in accordance with the provisions of such Security
Documents and (ii) additional parties may be added to, and Subsidiaries of
Silgan may be released from, the respective Guaranties and the Security
Documents in accordance with the provisions thereof, in each case without the
consent of the other Credit Parties party thereto or the Required Lenders),
provided that no such change, waiver, discharge or termination shall, without
the consent of each Lender (other than a Defaulting Lender) (with Obligations
being directly affected thereby in the case of the following clauses (i) and
(vi)), (i) extend the final scheduled maturity of any Loan or Note or extend the
stated maturity of any Letter of Credit or the Total Revolving Loan Commitment
beyond the Revolving Loan Maturity Date, or reduce the rate, or extend the time
of payment, of interest or of Fees thereon (except in connection with the waiver
of applicability of any post-default increase in interest rates), or reduce the
principal amount thereof (it being understood that any amendment or modification
to the financial definitions in this Agreement or to Section 12.07(a) shall not
constitute a reduction in the rate of interest or Fees for the purposes of this
clause (i), notwithstanding the fact that such amendment or modification
actually results in such a reduction, provided that such amendment or
modification was not consummated for the purpose of lowering the interest rate
or Fees hereunder), (ii) release all or substantially all of the Collateral
(except as expressly provided in the Credit Documents (x) in connection with the
termination of all Commitments hereunder and repayment in full of all
Obligations owing pursuant hereto and pursuant to the other Credit Documents and
(y) with respect to sales or other dispositions of property otherwise permitted
under the Credit Documents) under all the Security Documents, (iii) amend,
modify or waive any provision of this Section 12.12 (except for technical
amendments with respect to additional extensions of credit pursuant to this
Agreement which afford the protections to such additional extensions of credit
of the type provided to the Term Loans and the Revolving Loan Commitments on the
Effective Date), (iv) reduce the percentage specified in the definition of
Required Lenders (it being understood that, with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Lenders on substantially the same
basis as the extensions of Term Loans and Revolving Loan Commitments are
included on the Effective Date), (v) consent to the assignment or transfer by
any Borrower of any of its rights and obligations under this Agreement, (vi)
amend, modify or waive (x) any
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provisions in Sections 1.01(a), 1.01(b), 1.01(c), 1.01(d), 1.01(f), 1.15, 2.04
and 11.06 providing for Loans to be made, participations to be acquired,
reimbursement payments to be made and/or indemnity payments to be made, ratably
by the Lenders or Lenders of the respective Tranche, as the case may be, or (y)
except as otherwise provided for in this Agreement, any provisions in Section
12.06 providing for payments to be made to, or shared in, ratably by the Lenders
or Lenders of the respective Tranche, as the case may be (it being understood
that, with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in determining any ratable share
pursuant to any such Sections referred to in this clause (vi) and adjustments to
any such Section may be made consistent therewith), or (vii) consent to the
release of Silgan, Containers, Manufacturing or Plastics from its obligations
under the US Borrowers/Subsidiaries Guaranty except, in the case of Containers,
Manufacturing or Plastics, in connection with a sale of all or substantially all
of the assets of, or all of the capital stock of, Containers, Manufacturing or
Plastics in a transaction permitted under this Agreement or that has been
approved by the Required Lenders; provided further, that no such change, waiver,
discharge or termination shall (t) (A) with respect to any required voluntary or
mandatory Commitment reduction for any Tranche of Loans under Section 3.02(a) or
3.03(g), effect a non-pro rata reduction of any such Commitments of any Lender
which would result in any such Lender receiving less than its pro rata share
thereof without the consent of such Lender or (B) increase the Commitments of
any Lender over the amount thereof then in effect without the consent of such
Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory reduction
in the Total Commitment shall not constitute an increase of the Commitment of
any Lender, and that an increase in the available portion of any Commitment of
any Lender shall not constitute an increase in the Commitment of such Lender),
(u) without the consent of the Swingline Lender, alter its rights or obligations
with respect to Swingline Loans, (v) without the consent of each Issuing Lender
amend, modify or waive any provision of Section 2 or alter its rights or
obligations with respect to Letters of Credit, (w) without the consent of the
Administrative Agent or the other Agents, amend, modify or waive any provision
of Section 11 as same applies to the Administrative Agent or the other Agents or
any other provision as same relates to the rights or obligations of the
Administrative Agent or the other Agents, (x) without the consent of the
Collateral Agent, amend, modify or waive any provision relating to the rights or
obligations of the Collateral Agent, (y) (A) without the consent of the Majority
Lenders of each Tranche which is being allocated a lesser prepayment, repayment
or commitment reduction as a result of the actions described below (or without
the consent of the Majority Lenders of each Tranche in the case of an amendment
to the definition of Majority Lenders), amend the definition of Majority Lenders
or alter the required application of any prepayments or repayments (or
commitment reduction), as between the various Tranches, pursuant to Section 4.01
or 4.02 (excluding Section 4.02(b), (c) or (d)) (although the Required Lenders
may waive, in whole or in part, any such prepayment, repayment or commitment
reduction, so long, as the application, as amongst the various Tranches, of any
such prepayment, repayment or commitment reduction which is still required to be
made is not altered) or (B) without the consent of the Majority Lenders of each
Tranche, amend, modify or waive the definition of Sharing Event or the
provisions of Section 1.15 (other than for technical amendments or modifications
thereto that do not otherwise adversely affect the Lenders under any Tranche of
Loans in a manner disproportionate from the effect on the Lenders under the
other Tranches of Loans) or (z) without the consent of the Supermajority Lenders
of the respective Tranche, amend the definition of Supermajority Lenders (it
being understood that,
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with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the
Supermajority Lender on substantially the same basis as the extensions of Term
Loans and Revolving Loan Commitments are included on the Effective Date) or
reduce the amount of, or shorten or extend, any A Term Loan Scheduled Repayment,
B Term Loan Scheduled Repayment or Incremental Term Loan Scheduled Repayment, as
the case may be.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (vii), inclusive, of the first proviso to Section 12.12(a),
the consent of the Required Lenders is obtained but the consent of one or more
of the other Lenders whose consent is required is not obtained, then Silgan
shall have the right, so long as all non-consenting Lenders whose individual
consent is required are treated as described in either clause (A) or (B) below,
to either (A) replace each such non-consenting Lender or Lenders (or, at the
option of Silgan if the respective Lender's consent is required with respect to
less than all Tranches of Loans (or related Commitments), to replace only the
respective Tranche of Commitments and/or Loans of the respective non-consenting
Lender which gave rise to the need to obtain such Lender's individual consent)
with one or more Replacement Lenders pursuant to Section 1.13 so long as at the
time of such replacement, each such Replacement Lender consents to the proposed
change, waiver, discharge or termination or (B) terminate such non-consenting
Lender's Revolving Loan Commitment and/or Incremental Term Loan Commitment (if
such Lender's consent is required as a result of its Revolving Loan Commitment
and/or Incremental Term Loan Commitment) and/or repay each Tranche of
outstanding Loans of such Lender which gave rise to the need to obtain such
Lender's consent and/or cash collateralize its applicable RL Percentage of the
Letter of Credit of Outstandings, in accordance with Sections 3.02(b) and/or
4.01(b), provided that, unless the Commitments which are terminated and Loans
which are repaid pursuant to preceding clause (B) are immediately replaced in
full at such time through the addition of new Lenders or the increase of the
Commitments and/or outstanding Loans of existing Lenders (who in each case must
specifically consent thereto), then in the case of any action pursuant to
preceding clause (B) the Required Lenders (determined after giving effect to the
proposed action) shall specifically consent thereto, provided further, that
Silgan shall not have the right to replace a Lender, terminate its Commitments
or repay its Loans solely as a result of the exercise of such Lender's rights
(and the withholding of any required consent by such Lender) pursuant to the
second proviso to Section 12.12(a).
12.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2.06, 4.04, 11.06 and 12.01 shall survive
the execution and delivery of this Agreement and the Notes and the making and
repayment of the Loans and all Unpaid Drawings hereunder and the termination of
the Commitments.
12.14 Domicile of Loans. Each Lender may transfer and carry its Loans
at, to or for the account of any office, Subsidiary or Affiliate of such Lender.
Notwithstanding anything to the contrary contained herein, to the extent that a
transfer of Loans pursuant to this Section 12.14 would, at the time of such
transfer, result in increased costs under Section 1.10, 1.11, 2.06 or 4.04 from
those being charged by the respective Lender prior to such transfer, then no
Borrower shall be obligated to pay such increased costs (although each Borrower
shall be
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obligated to pay any other increased costs of the type described above resulting
from changes after the date of the respective transfer).
12.15 Confidentiality. (a) Subject to the provisions of clause (b) of
this Section 12.15, each Lender agrees that it will not disclose without the
prior consent of Silgan (other than on a confidential basis to its employees,
partners, directors, officers, auditors or counsel or to another Lender or such
Lender's holding or parent company if such Lender determines in its sole
discretion that any such party should have access to such information) any
information with respect to Silgan or any of its Subsidiaries which is now or in
the future furnished pursuant to this Agreement or any other Credit Document and
which is designated by any Borrower to the Lender in writing as confidential,
provided that any Lender may disclose any such information (i) as has become
generally available to the public, (ii) as may be required in any report,
statement or testimony submitted to any municipal, state or Federal regulatory
body having or claiming to have jurisdiction over such Lender or to the Federal
Reserve Board, the Federal Deposit Insurance Corporation or the NAIC or similar
organizations (whether in the United States or elsewhere) or their successors,
(iii) as may be required in respect to any summons or subpoena or in connection
with any litigation, (iv) in order to comply with any law, order, regulation or
ruling applicable to such Lender, (v) that is already in possession of such
Lender on a non-confidential basis, (vi) that is provided to such Lender on a
non-confidential basis by a Person who in doing so has not violated a duty of
confidentiality owing to any Lender or to Silgan or any of its Subsidiaries and
(vii) to any prospective or actual transferee or participant in connection with
any contemplated transfer or participation of any of the Obligations or
Commitments or any interest therein by such Lender, provided that such
prospective transferee (x) agrees with such Lender, to maintain the
confidentiality provisions contained in this Section 12.15 or (y) is a direct or
indirect contractual counterparty in swap agreements or such contractual
counterparty's professional advisor so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees in writing to keep
such information confidential to the same extent required of the Lender
hereunder.
(b) Each Borrower hereby acknowledges and agrees that each Lender may
share with any of its Affiliates (including, in the case of any Lender that is a
fund, such Lender's investment advisor) any information related to Silgan or any
of its Subsidiaries (including, without limitation, any nonpublic customer
information regarding the creditworthiness of Silgan and its Subsidiaries,
provided that such affiliates shall be subject to the provision of clause (a) of
this Section 12.15 to the same extent as such Lender).
12.16 Register. Each Borrower hereby designates the Administrative
Agent to serve as such Borrower's agent, solely for purposes of this Section
12.16, to maintain a register (the "Register") on which it will record the name,
address and taxpayer identification number, if any, of each of the Lenders, the
Commitments from time to time of each of the Lenders, the Loans made by each of
the Lenders and each repayment in respect of the principal amount of the Loans
of each of the Lenders. Failure to make any such recordation, or any error in
such recordation, shall not affect such Borrower's obligations in respect of
such Loans. With respect to any Lender, the transfer of the Commitment of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitment shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitment and Loans and prior to such recordation all amounts
owing to
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the transferor with respect to such Commitment and Loans shall remain owing to
the transferor. The registration of assignment or transfer of all or part of any
Commitment and Loan shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
12.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note (if
any) evidencing such Loan, and thereupon one or more new Notes in the same
aggregate principal amount shall be issued to the assigning or transferor Lender
and/or the new Lender at the request of any such Lenders. Each Borrower agrees
to indemnify the Administrative Agent from and against any and all losses,
claims, damages and liabilities of whatsoever nature which may be imposed on,
asserted against or incurred by the Administrative Agent in performing its
duties under this Section 12.16, provided that no Borrower shall be liable for
any portion of such losses, claims, damages and liabilities resulting from the
Administrative Agent's gross negligence or willful misconduct (as determined by
a court of competent jurisdiction in a final and non-appealable decision).
12.17 Certain Agreements with Respect to the 9% Senior Subordinated
Debentures. The Borrowers covenant and agree that they will take, and will cause
each of their Subsidiaries to take, all such actions as may be necessary so as
to ensure that all Indebtedness incurred under this Agreement and the other
Credit Documents (other than any portion of the Term Loans incurred hereunder
which is justified as being incurred under the first paragraph of Section
4.03(a) of the 9% Senior Subordinated Debenture Indenture) will always be
permitted to be incurred under clause (i) of the second paragraph of Section
4.03(a) of the 9% Senior Subordinated Debenture Indenture without relying on any
other provision of the 9% Senior Subordinated Debenture Indenture.
12.18 Limitation on Additional Amounts, etc. Notwithstanding anything
to the contrary contained in Sections 1.10, 1.11 or 2.06, unless a Lender gives
notice to Silgan that Silgan or another Borrower is obligated to pay an amount
under any such Section within 135 days after the later of (x) the date such
Lender incurs the respective increased costs, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital or
(y) the date such Lender has actual knowledge of its incurrence of the
respective increased costs, loss, expense or liability, reductions in amounts
received or receivable or reduction in return on capital, then such Lender shall
only be entitled to be compensated for such amount by the Borrowers pursuant to
said Section 1.10, 1.11 or 2.06, as the case may be, to the extent the
respective increased costs, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital are incurred or
suffered on or after the date which occurs 135 days prior to such Lender giving
notice to Silgan that Silgan or another Borrower is obligated to pay the
respective amounts pursuant to said Section 1.10, 1.11 or 2.06, as the case may
be; provided however, that if the circumstances giving rise to such claims have
a retroactive effect, such 135 day period shall be extended to include the
period of such retroactive effect. This Section 12.18 shall have no
applicability to any Section of this Agreement other than said Sections 1.10,
1.11 or 2.06.
12.19 Maximum Amount. (a) It is the intention of the Borrowers and the
Lenders to conform strictly to the usury and similar laws relating to interest
from time to time in
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force, and all agreements between or among the Borrowers, the Administrative
Agent and the Lenders, whether now existing or hereafter arising and whether
oral or written, are hereby expressly limited so that in no contingency or event
whatsoever, whether by acceleration of maturity hereof or otherwise, shall the
amount paid or agreed to be paid in the aggregate to the Lenders or to
Administrative Agent on behalf of the Lenders as interest hereunder or under the
other Credit Documents or in any other security agreement given to secure the
Obligations, or in any other document evidencing, securing or pertaining to the
Indebtedness evidenced hereby or thereby, exceed the maximum amount permissible
under applicable usury or such other laws (the "Maximum Amount"). If under any
circumstances whatsoever fulfillment of any provision hereof, or of any of the
other Credit Documents, at the time performance of such provision shall be due,
shall involve exceeding the Maximum Amount, then, ipso facto, the obligation to
be fulfilled shall be reduced to the Maximum Amount. For the purposes of
calculating the actual amount of interest paid and/or payable hereunder in
respect of laws pertaining to usury or such other laws, all sums paid or agreed
to be paid to the Banks for the use, forbearance or detention of the
Indebtedness of the Borrowers evidenced hereby, outstanding from time to time
shall, to the extent permitted by applicable law, be amortized, pro rated,
allocated and spread from the date of disbursement of the proceeds of the Loans
until payment in full of all of such Indebtedness, so that the actual rate of
interest on account of such Indebtedness is uniform throughout the term hereof.
The terms and provisions of this subsection shall control and supersede every
other provision of all agreements between or among the Borrowers, the
Administrative Agent and the Lenders.
(b) If under any circumstances the Lenders shall receive an amount
which would exceed the Maximum Amount, such amount shall be deemed a payment in
reduction of the principal amount of the Loans and shall be treated as a
voluntary prepayment under subsection 4.01(a), and shall be so applied in
accordance with Section 4.01(a) or if such amount exceeds the unpaid balance of
the Loans and any other Indebtedness of the Borrowers in favor of the Lenders,
the excess shall be deemed to have been a payment made by mistake and shall be
refunded to the Borrowers.
12.20 ▇▇▇▇▇▇▇▇ Standstill Period/▇▇▇▇▇▇▇▇ Repurchase. (a) Each of the
Lenders hereby expressly acknowledges and agrees for the sole benefit of
▇▇▇▇▇▇▇▇ Soup that (i) the Administrative Agent shall be required to give
▇▇▇▇▇▇▇▇ Soup 30 days' prior written notice of the Lenders' decision to exercise
any remedies against CanCo or CanCo Holding that may be available to the Lenders
under the Credit Documents upon the occurrence of an Event of Default and (ii)
neither the Administrative Agent nor the Lenders shall exercise any such
remedies against CanCo or CanCo Holding until the expiration of such 30 day
period; it being expressly understood and agreed, however, that (x) nothing in
this Section 12.20 shall prevent either (A) the Total Commitment being
automatically terminated and all Obligations becoming automatically due and
payable upon the occurrence of an Event of Default under Section 9.05 or (B) the
termination of the Total Commitment upon the occurrence of an Event of Default,
(y) the 30 day standstill period referred to above in the case of an Event of
Default under Section 9.05 shall commence upon the occurrence of such Event of
Default and no notice to ▇▇▇▇▇▇▇▇ Soup shall be required and (z) the provisions
of this Section 12.20(a) shall not apply to any Credit Party other than CanCo
and CanCo Holding. Each of the Lenders and each of the Borrowers hereby
acknowledges and agrees that the provisions of this Section 12.20(a) are for the
sole benefit of ▇▇▇▇▇▇▇▇ Soup (and may not be amended, modified or waived
without the prior
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written consent of ▇▇▇▇▇▇▇▇ Soup) and that ▇▇▇▇▇▇▇▇ Soup shall be (and is
hereby) a third party beneficiary of such provisions; it being understood and
agreed, however, that the provisions of this Section 12.20(a) shall not affect
any of the obligations that the Borrowers or any other Credit Party may have
under this Agreement or any other Credit Document to which they are a party.
(b) Notwithstanding anything to the contrary contained in this
Agreement, upon the occurrence of a Triggering Event, (i) the sale or other
disposition (including by way of foreclosure or other purchase under the
▇▇▇▇▇▇▇▇ Can Pledge Agreement) of all, but not less than all, of the capital
stock or assets of CanCo shall be permitted in accordance with the terms of the
respective ▇▇▇▇▇▇▇▇ Can Acquisition Documents so long as at the time of such
sale or other disposition, ▇▇▇▇▇▇▇▇ Soup has repaid directly to the
Administrative Agent all outstanding Obligations of CanCo (other than accrued
Fees which shall be repaid by Containers or any other Borrower other than CanCo)
up to the CanCo Permitted Debt Amount at such time and in connection therewith,
the assets so sold to ▇▇▇▇▇▇▇▇ Soup shall be sold free and clear of the Liens
created by the respective Security Documents, it being understood that if the
respective sale is of all of the capital stock of CanCo, CanCo shall be released
of any further liabilities in respect of any Obligations incurred by it
(although such other Obligations shall not be extinguished and shall remain
outstanding and the other Credit Parties shall remain fully obligated in respect
of all such Obligations under the Borrowers/Subsidiaries Guaranty) and (ii)
Silgan shall promptly give the Administrative Agent written notice of such
Triggering Event. Each of the Lenders and each of the Borrowers hereby
acknowledges and agrees that the provisions of this Section 12.20(b) are for the
sole benefit of ▇▇▇▇▇▇▇▇ Soup (and may not be amended, modified or waived
without the prior written consent of ▇▇▇▇▇▇▇▇ Soup; although the provisions of
this Section 12.20(b) are also for the benefit of (and binding against) the
Borrowers and all the other Credit Parties to the extent necessary to enable
them to effect such sale or other disposition and cause the release of the Liens
on the respective assets) and that ▇▇▇▇▇▇▇▇ Soup shall be (and is hereby) a
third party beneficiary of this Section 12.20(b).
(c) Notwithstanding anything to the contrary contained in this
Agreement, in no event shall Section 7.13 or 8.14(c)(2) or any of the terms
thereof be changed, waived, discharged or terminated without the prior written
consent of ▇▇▇▇▇▇▇▇ Soup.
12.21 Judgment Currency. (a) Each Credit Party's obligation hereunder
and under the other Credit Documents to make payments in Dollars or in the case
of an Alternate Currency Incremental Term Loan, the applicable Alternate
Currency (in any such case, the "Obligation Currency") shall not be discharged
or satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by the
Administrative Agent, the Collateral Agent, the respective Issuing Lender or the
respective Lender of the full amount of the Obligation Currency expressed to be
payable to the Administrative Agent, the Collateral Agent, such Issuing Lender
or such Lender under this Agreement or the other Credit Documents. If for the
purpose of obtaining or enforcing judgment against any Credit Party in any court
or in any jurisdiction, it becomes necessary to convert into or from any
currency other than the Obligation Currency (such other currency being
hereinafter referred to as the "Judgment Currency") an amount due in the
Obligation Currency, the conversion shall be made, at the Relevant Currency
Equivalent thereof or, in the case of a conversion into currencies other than
Dollars or a Primary Alternate Currency, at the rate of exchange
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quoted by the Administrative Agent (or, if the Administrative Agent does not
quote a rate of exchange on such currency, by a known dealer in such currency
designated by the Administrative Agent), determined, in each case, as of the day
on which the judgment is given (such Business Day being hereinafter referred to
as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, the respective Borrower or Borrowers covenant and agree to pay such
additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining the Relevant Currency Equivalent or
any other rate of exchange for this Section 12.21, such amounts shall include
any premium and costs payable in connection with the purchase of the Obligation
Currency.
12.22 Euro. (a) If at any time that an Alternate Currency
Incremental Term Loan denominated in a Currency other than Euros is outstanding,
the relevant Alternate Currency is replaced as the lawful currency of the
country that issued such Approved Currency (the "Issuing Country") by the Euro
so that all payments are to be made in the Issuing Country in Euros and not in
the Alternate Currency previously the lawful currency of such country, then such
Alternate Currency Incremental Term Loan shall be automatically converted into
an Alternate Currency Incremental Term Loan denominated in Euros in a principal
amount equal to the amount of Euros into which the principal amount of such
Alternate Currency Incremental Term Loan would be converted pursuant to the EMU
Legislation and thereafter no further Alternate Currency Incremental Term Loans
will be available in such Alternate Currency, with the basis of accrual of
interest, notice requirements and payment offices with respect to such converted
Alternate Currency Incremental Term Loan to be that consistent with the
convention and practices in the Euro-zone interbank market for Euro denominated
loans.
(b) In each case, to the maximum extent permitted under applicable
law, the applicable Borrowers shall from time to time, at the request of any
Lender, pay to such Lender the amount of any losses, damages, liabilities,
claims, reduction in yield, additional expense, increased cost, reduction in any
amount payable, reduction in the effective return of its capital, the decrease
or delay in the payment of interest or any other return forgone by such Lender
or its affiliates with respect to an Alternate Currency Incremental Term Loan
affected by this Section 12.22 as a result of the tax or currency exchange
resulting from the introduction, changeover to or operation of the Euro in any
applicable nation or eurocurrency market.
12.23 Immunity. To the extent that any Foreign Incremental Term Loan
Borrower has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, or otherwise) with respect to
itself or its property, the respective Foreign Incremental Term Loan Borrower
hereby irrevocably waives such immunity in respect of its obligations hereunder
and under the other Credit Documents to which it is a party to the extent
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permitted by applicable law and, without limiting the generality of the
foregoing, agrees that the waivers set forth in this Section 12.23 shall be to
the fullest extent permitted under the Foreign Sovereign Immunities Act of 1976
of the United States and are intended to be irrevocable for purposes of such
Act.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
4 Landmark Square SILGAN HOLDINGS INC.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Treasurer By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Senior Vice President, General
Counsel & Secretary
4 Landmark Square SILGAN CONTAINERS CORPORATION
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Treasurer By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Vice President, General Counsel
& Secretary
4 Landmark Square SILGAN PLASTICS CORPORATION
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Treasurer By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Vice President, General Counsel
& Secretary
4 Landmark Square SILGAN CONTAINERS MANUFACTURING
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Treasurer By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Vice President, General Counsel
& Secretary
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
4 Landmark Square SILGAN CAN COMPANY
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Treasurer By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Vice President, General Counsel
& Secretary
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
DEUTSCHE BANK TRUST COMPANY
AMERICAS, Individually and as
Administrative Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
BANK OF AMERICA, N.A., Individually and
as a Co-Syndication Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
CITICORP USA, INC., Individually and as
a Co-Syndication Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
Individually and as a Co-
Documentation Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK, Individually and
as a Co-Documentation Agent
By /s/ Marwan Isbaih
--------------------------------
Name: Marwan Isbaih
Title: Director
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
NATIONAL CITY BANK
By: /s/▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
By: /s/▇▇▇▇▇ ▇'▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
MIZUHO CORPORATE BANK, LTD.
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
BNP PARIBAS
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director & Head of U.S. MidCap
Group
By: /s/▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
Cooperative Centrale Raiffeisen-Boerenleenbank
B.A. "Rabobank International", New York Branch
By: /s/▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Director
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
ING CAPITAL LLC
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
CITIZENS BANK OF MASSACHUSETTS
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
ALLFIRST BANK
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
TRANSAMERICA BUSINESS CAPITAL CORPORATION
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
ALLIED IRISH BANKS plc
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Erste Bank New York Branch
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Erste Bank New York Branch
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
BANK LEUMI USA
By: /s/▇▇▇▇ Sadan
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Name: ▇▇▇▇ Sadan
Title: Assistant Treasurer
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
PEOPLE'S BANK
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
▇▇▇▇▇▇▇ BANK
By: /s/▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
PROTECTIVE LIFE INSURANCE COMPANY
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sr. VP, CIO & Treasurer
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]
THE SUMITOMO TRUST & BANKING CO., LTD.
New York Branch
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO SILGAN CREDIT AGREEMENT]