THIRD AMENDMENT TO
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered into as of July 22, 2003 among
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UNITED STATES CAN COMPANY, a Delaware corporation (the "Borrower"), U.S. Can Corporation, a Delaware corporation
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(the "Parent"), the Domestic Subsidiaries of the Parent (together with the Parent, the "Guarantors"), the Lenders
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party hereto and BANK OF AMERICA, N.A., as Administrative Agent for the Lenders (the "Administrative Agent").
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Capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Credit
Agreement (as defined below).
RECITALS
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WHEREAS, the Borrower, the Guarantors, the Lenders, the Administrative Agent, Citicorp North America,
Inc., as Syndication Agent and Bank One, NA (Main Office Chicago), as Documentation Agent entered into that
certain Credit Agreement, dated as of October 4, 2000 (as amended by that certain First Amendment to Credit
Agreement dated as of April 1, 2001, as amended by that certain Second Amendment to Credit Agreement dated as
December 18, 2001 and as otherwise amended or modified from time to time, the "Credit Agreement");
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WHEREAS, the Borrower has requested that the Required Lenders amend certain provisions of the Credit
Agreement; and
WHEREAS, the Required Lenders are willing to amend certain provisions of the Credit Agreement, as more
fully set forth herein, subject to the terms and conditions specified below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
SECTION 1
AMENDMENTS TO CREDIT AGREEMENT
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SECTION 1.1 Existing Definitions.
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(a) Applicable Percentage. The following sentence is added at the end of the definition
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of "Applicable Percentage" set forth in Section 1.1 of the Credit Agreement as follows:
If the Second Lien Debt Conditions are not satisfied on or before October 15, 2003, the
Applicable Percentage for Revolving Loans, Tranche A Term Loans, Tranche B Term Loans and
Letter of Credit Fees shall, in each case, be increased by 1.00%. Such increase shall be
retroactively effective as of July 1, 2003 and the amounts of such increase accruing prior to
October 15, 2003 shall be payable: (w) with respect to Loans for all Interest Payment Dates
occurring during the period commencing July 1, 2003 and ending on October 15, 2003, on October
15, 2003, (x) with respect to Loans for all Interest Payment Dates occurring after October 15,
2003, on the next Interest Payment Date, (y) with respect to the Letter of Credit Fees accruing
from July 1, 2003 through September 30, 2003, on October 15, 2003 and (z) with respect to the
Letter of Credit Fees accruing after October 15, 2003, on the dates provided in Section 3.4(b).
(b) Change of Control. Clause (f) of the definition of Change of Control in Section 1.1
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of the Credit Agreement is amended in its entirety as follows and a new clause (g) is added to the
definition of Change of Control in Section 1.1 of the Credit Agreement as follows:
(f) a "change of control" (as defined in any Indebtedness of a Credit Party or a
Subsidiary incurred pursuant to Section 8.1(n)) to the extent that such "change of control"
causes the holder of such Indebtedness to demand payment thereof or to cause any payment to be
made with respect thereto; or
(g) a "change of control" (as defined in the Second Lien Loan Documents) occurs.
(c) Debt Issuance. The definition of Debt Issuance in Section 1.1 of the Credit Agreement
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is amended and restated in its entirety as follows:
"Debt Issuance" means the issuance of any Indebtedness for borrowed money by a Credit
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Party or any of its Subsidiaries, other than (i) Indebtedness permitted by Sections 8.1(a)
through (n), inclusive and (ii) the amount of Second Lien Debt in excess of $70,000,000
incurred pursuant to Section 8.1(o).
(d) EBITDA. Clause (c) of the definition of EBITDA in Section 1.1 of the Credit Agreement
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is amended in its entirety as follows:
(c) Cash Restructuring Expenditures in excess of $25,000,000, in the aggregate,
incurred pursuant to programs initiated after December 18, 2001, minus
(e) Net Cash Proceeds. The definition of Net Cash Proceeds in Section 1.1 of the Credit
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Agreement is amended and restated in its entirety as follows:
"Net Cash Proceeds" means the aggregate cash proceeds received from an Asset
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Disposition, an Equity Issuance or a Debt Issuance net of (a) actual transaction costs payable
to third parties, (b) taxes paid or a good faith estimate of the taxes payable with respect to
such proceeds, and (c) in connection with an Asset Disposition only, (i) any reserve for
adjustment in respect of the sale price of such asset or assets established in accordance with
GAAP; provided that any subsequent reversal or reduction of such reserves shall constitute
additional Net Cash Proceeds and (ii) any amounts paid to holders of existing Permitted Liens
on any such assets to satisfy and discharge such Permitted Liens; provided that such amount
shall not be less than the "proceeds" from any asset disposition, equity issuance or debt
issuance as such terms are defined in the Subordinated Loan Documents or the Second Lien Loan
Documents.
(f) Permitted Investments. Clause (l) of the definition of Permitted Investments in
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Section 1.1 of the Credit Agreement is amended in its entirety as follows:
(l) Investments, other than Investments in Formametal S.A. (Argentina), not otherwise
permitted by the other clauses of this definition not to exceed $2,500,000, in the aggregate,
at any one time outstanding; provided that (1) if the Leverage Ratio set forth in
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Section 7.11(a) (as set forth in Section 7.11(a) or as adjusted by the Borrower pursuant to the
terms of Section 7.11(a)) as of December 31 of the immediately preceding year, is less than
4.50 to 1.0 (and the Leverage Ratio is less than 4.50 to 1.0 as of such December 31, as set
forth in the Officer's Compliance Certificate delivered pursuant to Section 7.1(d)),
Investments may be made pursuant to this clause (l) in Formametal S.A. (Argentina) and the
limit pursuant to this clause (l) shall be increased to $10,000,000, and (2) if the Second Lien
Debt Conditions have been satisfied by October 15, 2003, the limit pursuant to this clause (l)
shall be increased to $10,000,000
(g) Permitted Liens. New clauses (m) and (n) are added to the definition of Permitted
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Liens in Section 1.1 of the Credit Agreement as follows:
(m) subject to the terms of the Intercreditor Agreement, Liens on the Collateral securing the
Second Lien Debt, if any and (n) Liens on Property of Foreign Subsidiaries securing
Indebtedness of Foreign Subsidiaries permitted by Section 8.1.
(h) Significant Asset Disposition. The definition of Significant Asset Disposition in
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Section 1.1 of the Credit Agreement is amended and restated in its entirety as follows:
"Significant Asset Disposition" means an Asset Disposition of (a) all or substantially
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all of the assets or stock of a Credit Party or a Subsidiary of a Credit Party or (b) a line of
business, a division or a facility disposed of together with its customer base and revenue
source of a Credit Party or one of its Subsidiaries (excluding for purposes hereof, the Custom
and Specialty Sale).
(i) New Definitions. The following new definitions are added to Section 1.1 of the Credit
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Agreement in the appropriate alphabetical order:
"Custom and Specialty Sale" means the sale or other disposition of, in one transaction
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or a series of transactions, the custom and specialty products business segment of the Borrower.
"Intercreditor Agreement" means, if the Second Lien Debt is issued, that certain
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intercreditor agreement, dated as of the date that all of the Second Lien Debt Conditions are
satisfied, among the Administrative Agent, on behalf of itself and the Lenders, the holders of
the Second Lien Securities (or their designated representative) and the Credit Parties, as the
same may be amended, modified or replaced from time to time.
"Second Lien Debt" means the Indebtedness, in an amount not to exceed $125,000,000,
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issued pursuant to the Second Lien Loan Documents upon satisfaction of the Second Lien Debt
Conditions.
"Second Lien Debt Conditions" means each of the following conditions:
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(a) the Second Lien Debt shall be issued on or prior to October 15, 2003;
(b) the Second Lien Loan Documents shall contain terms not materially
less favorable to the Borrower or the Lenders than the terms set forth on Annex I
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hereto (as reasonably determined by the Administrative Agent) and shall be otherwise
reasonably acceptable to the Administrative Agent, and all conditions precedent set
forth in the Second Lien Loan Documents shall have been satisfied;
(c) the Administrative Agent shall have received a copy of the Second
Lien Loan Documents, certified by the Borrower to be true and complete;
(d) the principal amount of the Second Lien Debt shall not exceed
$125,000,000, and at least $70,000,000 of the Net Cash Proceeds from the issuance
thereof shall have been applied to prepay the Loans in accordance with Section 3.3(b);
(e) the Administrative Agent shall have received a certificate of the
secretary or assistant secretary of each Credit Party certifying as to resolutions of
the Board of Directors of such Credit Party approving and adopting the Second Lien
Loan Documents and the transactions contemplated therein and authorizing the
execution, delivery and performance thereof;
(f) the Administrative Agent shall have received an opinion or opinions
from counsel to the Credit Parties relating to the Second Lien Debt in form and
substance satisfactory to the Administrative Agent, addressed to the Administrative
Agent on behalf of the Lenders;
(g) the Administrative Agent shall have received an executed copy of the
Intercreditor Agreement, which shall contain terms and conditions satisfactory to the
Administrative Agent;
(h) Lenders holding at least 50% of the outstanding Tranche A Term Loans shall
have executed the Third Amendment by July 22, 2003; and
(i) The Administrative Agent shall have received executed amendments to the
Collateral Documents as the Administrative Agent deems necessary to address matters
resulting from the adoption of Revised Article 9 of the Uniform Commercial Code.
"Second Lien Indenture" means any Indenture entered into by the Borrower in connection
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with the issuance of the Second Lien Securities.
"Second Lien Loan Documents" means (a) the Second Lien Indenture, (b) the Second Lien
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Securities and (c) any other agreement, document, instrument or certificate executed in
connection with the foregoing.
"Second Lien Securities" means any securities issued by the Borrower in connection
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with the Second Lien Debt.
"Third Amendment" means that certain Third Amendment to Credit Agreement and Waiver,
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dated as of July 22, 2003 among the Credit Parties, the Lenders party thereto and the
Administrative Agent.
SECTION 1.2 Foreign Subsidiary Borrowers. Clause (C) appearing in Section 2.6(f)(i) of the
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Credit Agreement is amended in its entirety as follows:
(C) collateral documents granting to the Collateral Agent, for the benefit of the Lenders, a
first-priority Lien (subject only to Permitted Liens of the types described in clauses (a) through (k)
of the definition thereof) on all of the assets of such Foreign Subsidiary to the extent permitted by
law and if practical (as determined by the Collateral Agent in its sole reasonable discretion),
SECTION 1.3 Mandatory Prepayments. The following sentence is hereby added immediately
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following the third sentence in Section 3.3(c) of the Credit Agreement as follows:
If Lenders holding at least 50% of the outstanding Tranche A Term Loans have executed the Third
Amendment on or before July 22, 2003,then notwithstanding the foregoing, (i) provided that the Second
Lien Debt has been issued in accordance with Section 8.1(o), up to $18,100,000 of prepayments of the
Tranche A Term Loan required pursuant to Section 3.3(b)(iv) may, at the Borrower's election, be applied
to the remaining Principal Amortization Payments of the Tranche A Term Loan in direct order of maturity
and (ii) up to $1,800,000 of prepayments of the Tranche A Term Loan required pursuant to Section
3.3(b)(ii) in connection with the Custom and Specialty Sale may, at the Borrower's election, be applied
to the remaining Principal Amortization Payments of the Tranche A Term Loan in direct order of maturity.
SECTION 1.4 Section 6.25. The words "Except as described on Schedule 6.25 or" are added at the
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beginning of the first sentence of Section 6.25.
SECTION 1.5 Section 6.34. A new Section 6.34 is added to the Credit Agreement to read as
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follows:
6.34 Tax Shelter Representation.
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The Borrower does not intend to treat the Loans, the Letters of Credit and/or related
transactions as being a "reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4). In the event the Borrower determines to take any action inconsistent with such intention, it
will promptly notify the Administrative Agent thereof. If the Borrower so notifies the Administrative
Agent, the Borrower acknowledges that one or more of the Lenders may treat its Loans and/or its interest
in Swing Line Loans and/or Letters of Credit as part of a transaction that is subject to Treasury
Regulation Section 301.6112-1, and such Lender or Lenders, as applicable, will maintain the lists and
other records required by such Treasury Regulation.
SECTION 1.6 Reports. Section 7.1(i) of the Credit Agreement is amended and restated in its
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entirety as follows, Section 7.1(m) is renamed Section 7.1(n) and a new Section 7.1(m) is added to read as
follows:
(i) Reports. Promptly upon transmission or receipt thereof, (a) copies of any filings and
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registrations with, and reports to or from, the Securities and Exchange Commission, or any successor
agency, and copies of all financial statements, proxy statements, notices and reports as a Credit Party
or any of its Subsidiaries shall send to its shareholders generally or to a holder of the Subordinated
Debt or the Second Lien Debt in its capacity as a holder and (b) upon the written request of the
Administrative Agent, all reports and written information to and from the United States Environmental
Protection Agency, or any state or local agency responsible for environmental matters, the United States
Occupational Health and Safety Administration, or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities concerning environmental, health or safety
matters.
*******
(m) Promptly after the Borrower has notified the Administrative Agent of any intention by
the Borrower to treat the Loans and/or the Letters of Credit and related transactions as being a
"reportable transaction" (within the meaning of Treasury Regulation Section 1.6011-4), a duly completed
copy of IRS Form 8886 or any successor form.
SECTION 1.7 Audits; Inspection. The following new paragraph is added to Section 7.10 of the
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Credit Agreement as follows:
In addition to the foregoing, the Credit Parties shall permit (at their sole cost and expense)
Ernst & Young to perform an analysis of financial projections, a valuation of the Borrower's and its
Subsidiaries' current and fixed assets and an analysis of the enterprise valuation of the Borrower and
its Subsidiaries (such analyses and valuations shall be completed by July 15, 2003 and shall be in scope
and detail satisfactory to the Administrative Agent).
SECTION 1.8 Financial Covenants. Section 7.11 of the Credit Agreement is amended and restated
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in its entirety as follows:
7.11 Financial Covenants.
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(a) Leverage Ratio. The Leverage Ratio, as of the end of each fiscal quarter of the
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Borrower during the periods set forth below, shall be less than or equal to:
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Period Ratio
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For the fiscal quarter ending June 29, 2003 7.500 to 1.0
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For the fiscal quarter ending September 28, 2003 7.000 to 1.0
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For the fiscal quarter ending December 31, 2003 7.000 to 1.0
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For the fiscal quarter ending April 4, 2004 7.000 to 1.0
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For the fiscal quarter ending July 4, 2004 6.900 to 1.0
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For the fiscal quarter ending October 3, 2004 6.750 to 1.0
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For the fiscal quarter ending December 31, 2004 6.500 to 1.0
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For the fiscal quarter ending April 3, 2005 6.300 to 1.0
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For the fiscal quarter ending July 3, 2005 6.200 to 1.0
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For the fiscal quarter ending October 2, 2005 5.900 to 1.0
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For the fiscal quarter ending December 31, 2005 5.800 to 1.0
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The Borrower shall have the right during the first fiscal quarter of each fiscal year, upon written
notice to the Administrative Agent, to permanently lower (i.e. make the Leverage Ratio more restrictive)
the Leverage Ratio requirement (i) for the period ending December 31 of the immediately preceding fiscal
year (the "Fiscal Year-End Period") and (ii) for any period subsequent to the Fiscal Year-End Period;
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provided, if the Leverage Ratio requirement is permanently lowered for any period set forth above
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pursuant to the foregoing clauses (i) or (ii), the Leverage Ratio requirement for any subsequent period
shall be no less restrictive. Upon such written notice, the Administrative Agent shall notify the
Lenders of such change(s) in the Leverage Ratio requirements, and this Credit Agreement shall be deemed
amended in accordance with such notice.
(b) Interest Coverage Ratio. The Interest Coverage Ratio, as of the end of each fiscal
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quarter of the Borrower during the periods set forth below, shall be greater than or equal to:
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Period Ratio
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For the fiscal quarter ending June 29, 2003 1.450 to 1.0
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For the fiscal quarter ending September 28, 2003 1.475 to 1.0
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For the fiscal quarter ending December 31, 2003 1.475 to 1.0
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For the fiscal quarter ending April 4, 2004 1.475 to 1.0
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For the fiscal quarter ending July 4, 2004 1.500 to 1.0
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For the fiscal quarter ending October 3, 2004 1.550 to 1.0
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For the fiscal quarter ending December 31, 2004 1.600 to 1.0
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For the fiscal quarter ending April 3, 2005 1.625 to 1.0
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For the fiscal quarter ending July 3, 2005 1.650 to 1.0
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For the fiscal quarter ending October 2, 2005 1.700 to 1.0
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For the fiscal quarter ending December 31, 2005 1.725 to 1.0
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(c) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio, as of the end of each
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fiscal quarter of the Borrower during the periods set forth below, shall be greater than or equal to:
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Period Ratio
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For the fiscal quarter ending June 29, 2003 0.725 to 1.0
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For the fiscal quarter ending September 28, 2003 0.825 to 1.0
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For the fiscal quarter ending December 31, 2003 0.900 to 1.0
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For the fiscal quarter ending April 4, 2004 0.950 to 1.0
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For the fiscal quarter ending July 4, 2004 and thereafter 1.000 to 1.0
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(d) Minimum LTM EBITDA. EBITDA, as of the end of each fiscal quarter of the Borrower, for
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the twelve month period ending on such date, during the periods set forth below, shall be greater than
or equal to:
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Period Amount
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For the fiscal quarter ending June 29, 2003 $ 80,000,000
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For the fiscal quarters ending September 28, 2003 $ 80,000,000
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For the fiscal quarter ending December 31, 2003 $ 80,000,000
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For the fiscal quarter ending April 4, 2004 $ 80,000,000
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For the fiscal quarter ending July 4, 2004 $ 80,000,000
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For the fiscal quarter ending October 3, 2004 $ 80,000,000
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For the fiscal quarter ending December 31, 2004 $ 80,000,000
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For the fiscal quarter ending April 3, 2005 $ 82,500,000
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For the fiscal quarter ending July 3, 2005 $ 82,500,000
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For the fiscal quarter ending October 2, 2005 $ 82,500,000
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For the fiscal quarter ending December 31, 2005 $ 85,000,000
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(e) Minimum Quarterly EBITDA. If the Second Lien Debt Conditions are not satisfied,
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EBITDA, as of the end of each fiscal quarter of the Borrower, for the fiscal quarter ending on such
date, shall be greater than or equal to:
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Period Amount
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For the fiscal quarter ending June 29, 2003 $15,900,000
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For the fiscal quarter ending September 28, 2003 $14,200,000
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For the fiscal quarter ending December 31, 2003 $13,000,000
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For the fiscal quarter ending April 4, 2004 $10,300,000
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For the fiscal quarter ending July 4, 2004 $16,600,000
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For the fiscal quarter ending October 3, 2004 $15,200,000
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For the fiscal quarter ending December 31, 2004 $13,900,000
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For the fiscal quarter ending April 3, 2005 $11,300,000
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For the fiscal quarter ending July 3, 2005 $17,700,000
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For the fiscal quarter ending October 2, 2005 $16,300,000
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For the fiscal quarter ending December 31, 2005 $15,000,000
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SECTION 1.9 Indebtedness. The period at the end of clause (n) of Section 8.1 of the Credit
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Agreement is replaced with a "; and" and a new clause (o) is added to Section 8.1 of the Credit Agreement as
follows:
(o) subject to the satisfaction of the Second Lien Debt Conditions, the Second Lien Debt
(and renewals, refinancings, replacements or extensions thereof on terms and conditions that, when taken
as a whole, are no more restrictive to such Credit Party and its Subsidiaries and are not less favorable
to the Lenders than such existing Indebtedness and in a principal amount not in excess of that
outstanding as of the date of such renewal, refinancing, replacement or extension).
SECTION 1.10 Sale or Lease of Assets.
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(a) The proviso at the end of clause (v) of Section 8.5(i) of the Credit Agreement is amended in
its entirety as follows:
provided that (1) the sale of the Southall U.K. facility in an amount up to 8.2 million pounds sterling
shall be excluded for purposes of calculating compliance with subclause (A) of this clause (v) and (2)
so long as the Net Cash Proceeds are immediately applied to prepay the Loans in accordance with Section
3.3(b)(ii), the Custom and Specialty Sale shall be excluded for purposes of calculating compliance with
subclauses (A) and (B) of this clause (v).
(b) The second paragraph of Section 8.5 of the Credit Agreement is amended and restated in its
entirety as follows:
Upon a sale of assets permitted by this Section 8.5 and so long as the Collateral Agent is satisfied (in
its sole discretion, reasonably exercised) that all other consensual Liens on such assets are being
simultaneously released, the Collateral Agent shall deliver to the Borrower, upon the Borrower's request
and at the Borrower's expense, such documentation as is reasonably necessary to evidence the release of
the Collateral Agent's security interest in such assets, including, without limitation, amendments or
terminations of UCC financing statements and the return of stock certificates.
SECTION 1.11 Other Indebtedness. Section 8.10 of the Credit Agreement is amended and restated
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in its entirety as follows:
8.10 Other Indebtedness; Material Agreements.
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(a) No Credit Party will, nor will it permit any of its Subsidiaries to, (i) after the
issuance thereof, amend or modify any of the terms of any Indebtedness (other than Indebtedness arising
under the Credit Documents or any Hedging Agreement) of such Credit Party or its Subsidiaries if such
amendment or modification, when taken as a whole, would add or change any terms in a manner adverse to
such Credit Party or its Subsidiaries or to the interest of the Lenders, or shorten the final maturity
or average life to maturity or require any payment to be made sooner than originally scheduled or
increase the interest rate applicable thereto or (ii) make (or give any notice with respect thereto) any
voluntary or optional payment or prepayment or redemption or acquisition for value of (including without
limitation, by way of depositing money or securities with the trustee with respect thereto before due
for the purpose of paying when due), refund, refinance or exchange of such Indebtedness other than (A)
Indebtedness arising under the Credit Documents and (B) provided no Default or Event of Default shall
exist immediately prior or after giving effect thereto and subject to the further limitations set forth
in clause (b) below, other Indebtedness.
(b) No Credit Party will, nor will it permit any of its Subsidiaries to, (i) make or offer
to make any principal payments with respect to the Subordinated Debt, (ii) redeem or offer to redeem any
of the Subordinated Debt, (iii) deposit any funds intended to discharge or defease any of the
Subordinated Debt; (iv) make interest payments (including payment of accrued interest and premium, if
any, payable in connection with a redemption of the Subordinated Securities permitted under this
Section 8.10) in respect of the Subordinated Debt in violation of the subordination provisions of the
Subordinated Loan Documents or (v) modify or amend the terms of the Subordinated Debt in any manner
adverse to the Lenders; provided, however, if (A) the Second Lien Debt Conditions are satisfied and (B)
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so long as no Default or Event of Default exists after immediately prior to and after giving effect
thereto, the Borrower may purchase or otherwise redeem Subordinated Debt with cash equal to the sum of
(i) the lesser of (a) $30,000,000 or (b) an amount equal to the Net Cash Proceeds from the Second Lien
Debt in excess of $95,000,000 plus (ii) accrued interest on the Subordinated Debt so purchased or
redeemed.
(c) No Credit Party will, nor will it permit any of its Subsidiaries to amend or modify
(or permit the amendment or modification of) the terms of the Second Lien Loan Documents in a manner
adverse to the interests of the Administrative Agent or the Lenders (including specifically shortening
any maturity or the weighted average life to maturity, requiring any payment sooner than previously
scheduled, increasing the principal amount due thereunder or the interest rate or fees applicable
thereto, causing affirmative or negative covenants therein to be more restrictive than those covenants
as originally executed and delivered or providing for any additional guarantor with respect thereto
unless such Person becomes a Guarantor hereunder).
SECTION 1.12 Limitations. Clause (D) of Section 8.11 of the Credit Agreement is amended and
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restated in its entirety as follows:
(D) the Subordinated Debt and the Second Lien Debt,
SECTION 1.13 Negative Pledges. Clause (b) of Section 8.13 of the Credit Agreement is amended and
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restated in its entirety as follows:
(b) the Subordinated Loan Documents and the Second Lien Loan Documents may restrict the
creation of any Liens on the assets of the Credit Parties except for Liens created pursuant to the
Credit Documents,
SECTION 1.14 Parent. Clause (b) of the first sentence and clause (iv) of the second sentence of
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Section 8.15 of the Credit Agreement are amended and restated in their entireties as follows:
(b) guaranteeing the Credit Party Obligations and the obligations of the Borrower under the Subordinated
Loan Documents and the Second Lien Loan Documents,
******
(iv) possess any liabilities other than the liabilities under the Credit Documents, the Subordinated
Debt, the Second Lien Debt, tax liabilities and other liabilities in the ordinary course of business.
SECTION 1.15 Events of Default. The phrase "the Subordinated Debt" appearing in Section 9.1(f) of
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the Credit Agreement is hereby amended to read as "the Subordinated Debt and the Second Lien Debt", and a new
clause (l) is added to Section 9.1 of the Credit Agreement as follows:
(l) Intercreditor Agreement. The Intercreditor Agreement shall cease to be in full force
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and effect or the obligations of the Trustee (as defined in the Intercreditor Agreement) under the
Intercreditor Agreement shall fail to conform with, or shall violate, the Trust Indenture Act in any
material respect.
SECTION 1.16 Section 11.17. A new paragraph is added at the end of Section 11.17 to read as follows:
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Notwithstanding anything herein to the contrary, confidential information shall not include,
and Administrative Agent and each Lender may disclose to any and all Persons, without limitation of any
kind, any information with respect to the "tax treatment" and "tax structure" (in each case, within the
meaning of Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax analyses) that are provided to the Administrative
Agent or any Lender relating to such tax treatment and tax structure; provided that with respect to any
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document or similar item that in either case contains information concerning the tax treatment or tax
structure of the transaction as well as other information, this sentence shall only apply to such
portions of the document or similar item that relate to the tax treatment or tax structure of the Loans,
the Letters of Credit and transactions contemplated hereby.
SECTION 1.17 Schedules.
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(a) A new Schedule 6.25 is hereby added to the Credit Agreement and Schedules 6.15, 6.19,
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6.26, 6.27(a), 6.27(b), 6.27(c), 6.29 and 6.33 are hereby amended and restated in their entireties and
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attached hereto as Schedules 6.15, 6.19, 6.25, 6.26, 6.27(a), 6.27(b), 6.27(c), 6.29 and 6.33,
--------------- ---- ---- ---- ------- ------- ------- ---- ----
respectively.
(b) Schedule 8.1 to the Credit Agreement is hereby amended as follows:
------------
(i) The following language is hereby added at the end of Schedule 8.1:
------------
Guaranty, dated as of December 20, 1996 made by United States Can Company, together with its
successors and assigns in favor of General Electric Capital Corporation of the obligations of
U.K. Can Limited under the Credit Agreement dated as of December 20, 1996 between U.K. Can
Limited and General Electric Capital Corporation
(ii) The following language is hereby added after the words "Revolving Loan
Agreement dated November 13, 1997 between Kreissparkasse Koln and May Verpackungen GmbH & Co.
KG and βββββββ ββββββ Nachfl. Blechemballagenfabrik GmbH & Co. KG DEM 7,079,000":
subject to the General Terms and Conditions (of which Number 13, Paragraph 2 provides
for the right to request security at any time if a higher risk becomes known)
(iii) The following language is hereby added after the words "Agreement dated August
9, 1999 between May Verpackungen GmbH & Co. KG and βββββββ ββββββ Nachfl.
Blechemballagenfabrik GmbH & Co. KG and Dresdner Bank DEM 18,390,000" :
subject to the General Terms and Conditions (of which Number 13, Paragraph 2 provides
for the right to request security at any time if a higher risk becomes known)
(c) Schedule 8.6 to the Credit Agreement is hereby amended as follows:
------------
(i) The following language is hereby added at the end of Schedule 8.1:
------------
Guaranty, dated as of December 20, 1996 made by United States Can Company, together
with its successors and assigns in favor of General Electric Capital Corporation of
the obligations of U.K. Can Limited under the Credit Agreement dated as of December
20, 1996 between U.K. Can Limited and General Electric Capital Corporation
(ii) The phrase "Existing cash advances to foreign subsidiaries (in the aggregate
amount of $153,013, 477) and Formametal, S.A. in the aggregate amount of $9,864,144) as of
August 27, 2000)" is replaced with the following:
Existing cash advances to foreign subsidiaries (in the aggregate amount of
$153,391,688) and Formametal, S.A. in the aggregate amount of $14,966,401) as of
October 4, 2000)
SECTION 1.18 Failure to Satisfy Second Lien Debt Conditions. If the Second Lien Debt Conditions
-------------------------------------------------
are not satisfied by October 15, 2003, then the following amendments effected by this Amendment shall be of no
force and effect: (a) the addition of a new clause (g) to the definition of "Change of Control" described in
Section 1.1(b) hereof; (b) Section 1.1(c) hereof, (c) Section 1.1(e) hereof, (d) Section 1.1(g) hereof, (e) the
amendment to clause (i) of Section 3.3(c) of the Credit Agreement described in Section 1.3 hereof, (f) Section
1.9 hereof, (g) the amendment to Section 8.10(b) of the Credit Agreement and the addition of new Section 8.10(c)
to the Credit Agreement described in Section 1.11 hereof, (h) Section 1.12 hereof, (i) Section 1.13 hereof, (j)
Section 1.14 hereof and (k) Section 1.15 hereof.
SECTION 2
CONDITIONS PRECEDENT
--------------------
SECTION 2.1 Conditions Precedent. This Amendment shall be deemed effective upon satisfaction
---------------------
of the following conditions:
(a) Documentation. Receipt by the Administrative Agent of copies of this Amendment duly
-------------
executed by the Credit Parties and the Required Lenders.
(b) Authority. Receipt by the Administrative Agent of (i) a certificate of the secretary
---------
or assistant secretary of each Credit Party certifying as to resolutions of the Board of Directors of
such Credit Party approving and adopting each agreement to which they are a party and the transactions
contemplated therein and authorizing the execution, delivery and performance thereof and (ii) an
incumbency certificate of each Credit Party certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the date hereof.
(c) Good Standing. Receipt by the Administrative Agent of certificates of good standing,
-------------
existence or their equivalent with respect to each Credit Party certified as of a recent date by the
appropriate Governmental Authorities of the jurisdiction of its incorporation and in the jurisdiction of
its chief executive office and principal place of business.
(d) Opinions. Receipt by the Administrative Agent of an opinion or opinions from counsel
--------
to the Credit Parties relating to this Amendment and the transactions contemplated herein, including,
without limitation, due authorization, enforceability and no conflict opinions in form and substance
satisfactory to the Administrative Agent, addressed to the Administrative Agent on behalf of the Lenders
and dated as of the date hereof.
(e) Fees. The payment by the Borrower of (i) an amendment fee to each Lender who duly
----
executes and delivers this Amendment on or before July 17, 2003, of 50 basis points (0.50%) on the sum
of its aggregate Commitments (calculated after giving effect to the mandatory prepayments of the Loans
to be made on the effective date of this Amendment as a result of the issuance of the Second Lien Debt,
if any) and (ii) all fees and expenses of the Administrative Agent and its affiliates in connection with
the negotiation, preparation, execution and delivery of this Amendment and the other transactions
contemplated herein, including, without limitation, reasonable legal fees and expenses.
SECTION 3
MISCELLANEOUS
-------------
SECTION 3.1 Ratification of Credit Agreement. The term "Credit Agreement" and "Agreement" as
----------------------------------
used in each of the Credit Documents shall hereafter mean the Credit Agreement as amended by this Amendment.
Except as herein specifically agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in
full force and effect according to its terms.
SECTION 3.2 Authority/Enforceability. Each of the Credit Parties, the Administrative Agent
------------------------
and the Lenders party hereto represents and warrants as follows:
(a) It has taken all necessary action to authorize the execution, delivery and performance
of this Amendment.
(b) This Amendment has been duly executed and delivered by such Person and constitutes
such Person's legal, valid and binding obligations, enforceable in accordance with its terms, except as
such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in a proceeding at law or
in equity).
(c) No consent, approval, authorization or order of, or filing, registration or
qualification with, any court or Governmental Authority or third party is required in connection with
the execution, delivery or performance by such Person of this Amendment.
SECTION 3.3 Representations and Warranties. The Credit Parties represent and warrant to the
--------------------------------
Lenders that:
(a) The representations and warranties of the Credit Parties set forth in Section 6 of the
Credit Agreement are true and correct in all material respects as of the date hereof except for those
that specifically relate to an earlier date.
(b) No event has occurred and is continuing which constitutes a Default or an Event of
Default.
(c) The Collateral Documents continue to create a valid security interest in, and Lien
upon, the Collateral, in favor of the Collateral Agent, for the benefit of the Lenders, which security
interests and Liens are perfected in accordance with the terms of the Collateral Documents and prior to
all Liens other than Permitted Liens.
(d) The Credit Party Obligations are not reduced or modified by this Amendment and are not
subject to any offsets, defenses or counterclaims.
SECTION 3.4 Counterparts/Telecopy. This Amendment may be executed in any number of
---------------------
counterparts, each of which when so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument. Delivery of executed counterparts by telecopy shall be effective as an
original and shall constitute a representation that an original will be delivered if requested.
SECTION 3.5 Further Assurances. The Credit Parties agree to promptly take such action, upon
-------------------
the request of the Administrative Agent, as is necessary to carry out the intent of this Amendment.
SECTION 3.6 GENERAL RELEASE. IN CONSIDERATION OF THE REQUIRED LENDERS ENTERING INTO THIS
----------------
AMENDMENT, THE CREDIT PARTIES HEREBY RELEASE THE ADMINISTRATIVE AGENT, THE LENDERS, AND THE ADMINISTRATIVE
AGENT'S AND THE LENDERS' RESPECTIVE OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, COUNSEL AND DIRECTORS FROM ANY
AND ALL ACTIONS, CAUSES OF ACTION, CLAIMS, DEMANDS, DAMAGES AND LIABILITIES OF WHATEVER KIND OR NATURE, IN LAW OR
IN EQUITY, NOW KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED TO THE EXTENT THAT ANY OF THE FOREGOING ARISES FROM ANY
ACTION OR FAILURE TO ACT UNDER THE CREDIT AGREEMENT OR UNDER THE OTHER CREDIT DOCUMENTS ON OR PRIOR TO THE DATE
HEREOF.
SECTION 3.7 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
--------------
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.8 Intercreditor Agreement. The Required Lenders hereby authorize the Administrative
------------------------
Agent to enter into, on behalf of the Lenders, the Intercreditor Agreement, and to take such action as is
necessary to exercise its rights and perform its obligations thereunder.
SECTION 3.9 UCC Financing Statements. Each Credit Party hereby acknowledges and agrees that
--------------------------
in connection with the perfection of the security interests in the Collateral, the Administrative Agent or the
Collateral Agent have filed and may from time to time file UCC-1 financing statements that describe the
Collateral as being "all assets" of such Credit Party (or words of similar effect) or as being of equal or lessor
scope with greater detail.
SECTION 3.10 Collateral Documents. The Required Lenders hereby authorize the Administrative
---------------------
Agent and the Collateral Agent to enter into, on behalf of the Lenders, amendments to (or amendments and
restatements of) the Collateral Documents as the Administrative Agent deems necessary to address matters
resulting from the adoption of Revised Article 9 of the Uniform Commercial Code.
SIGNATURE PAGE TO
THIRD AMENDMENT TO CREDIT AGREEMENT
UNITED STATES CAN COMPANY
CHAR1\707179_ 11
SIGNATURE PAGE TO
THIRD AMENDMENT TO CREDIT AGREEMENT
UNITED STATES CAN COMPANY
CHAR1\707179_ 11
The parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
BORROWER:
--------
UNITED STATES CAN COMPANY,
a Delaware corporation
By: /s/ ββββββ β. βββββββ
--------------------------------------------------
Name: ββββββ β. βββββββ
------------------------------------------------
Title: Senior Vice President and Chief Financial Officer
-----------------------------------------------
DOMESTIC
---------
GUARANTORS:
----------
U.S. CAN CORPORATION,
a Delaware corporation
By: /s/ ββββββ β. βββββββ
--------------------------------------------------
Name: ββββββ β. βββββββ
------------------------------------------------
Title: Senior Vice President and Chief Financial Officer
-----------------------------------------------
USC MAY VERPACKUNGEN HOLDING INC.,
a Delaware corporation
By: /s/ ββββββ β. βββββββ
--------------------------------------------------
Name: ββββββ β. βββββββ
------------------------------------------------
Title: Senior Vice President and Chief Financial Officer
-----------------------------------------------
LENDERS:
-------
BANK OF AMERICA, N.A.,
individually in its capacity as Administrative Agent
By: /s/ βββββββ βββββ
--------------------------------------------------
Name: βββββββ βββββ
-------------------------------------
Title: Vice President
----------------------------------------------
BANK OF AMERICA, N.A., in its capacity as
a Lender
By: /s/ βββββββ β. ββββββββ
--------------------------------------------------
Name: βββββββ β. ββββββββ
------------------------------------------------
Title: Managing Director
-----------------------------------------------
LENDER: ___________________________________
[Insert correct name of Lender]
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
ANNEX I
PRELIMINARY TERMS OF SECOND LIEN DEBT
o There shall be no amortization of the principal amount of the Second Lien Debt prior to April 10, 2006.
o The documentation evidencing and governing the Second Lien Debt shall not contain a cross-default to the
Credit Party Obligations, shall contain only such other covenants as are typical for financings of this type
and not materially more restrictive than the covenants contained in the Indenture governing the Subordinated
Debt (except that the covenant that restricts the creation of Liens is more restrictive than the
corresponding covenant in the Indenture) and shall not contain any other terms, conditions or other
provisions which have or could reasonably be expected to have a material adverse effect on the interests of
the First Lenders (defined below).
o The Second Lien Debt shall be secured by second priority liens (the "Second Liens") on the same (and
-------------
only the same) collateral (the "Collateral") that secures the Credit Party Obligations. Holders of the
----------
Second Lien Debt (the "Second Lenders") will acknowledge that the priority of the Second Liens shall be
---------------
contractually junior to liens securing the Credit Party Obligations (the "First Liens").
-----------
o The Second Lenders will acknowledge that the holders of the Credit Party Obligations (the "First
------
Lenders") will have the exclusive right to collect, foreclose upon, sell, transfer, liquidate or otherwise
dispose of (including, without limitation, releasing) all of the Collateral, free of the Second Liens;
provided that the Second Lenders will retain any rights they have with respect to the surplus, if any,
--------
arising from any such foreclosure, sale, transfer, liquidation or other disposition of the Collateral.
o The Second Lenders will acknowledge that until all Credit Party Obligations are paid in full in cash (or
fully cash collateralized) and all commitments of the First Lenders to make additional extensions of credit
has expired or been terminated, the Second Lenders shall not be entitled to: (a) exercise any rights or
remedies with respect to the Second Liens, including, without limitation, the right to (i) enforce any
Second Liens, sell or otherwise foreclose on any portion of the Collateral or effectuate any setoff,
(ii) request any action, institute proceedings, give any instructions, make any election, notice account
debtors or make collections with respect to any portion of the Collateral, or (iii) object to any of the
terms and conditions of any foreclosure, sale, transfer, liquidation or other disposition by or on behalf of
the First Lenders; (b) demand, accept or obtain any other lien on any Collateral; or (c) amend or modify the
terms of the documents evidencing the Second Liens in a manner adverse to the interests of the First Lenders.
o The Second Lenders will acknowledge that notwithstanding any bankruptcy event of the Borrower or any
Guarantor, the Second Lenders will waive rights to file any claim, motion or objection or make any argument
in respect of the Collateral without the prior written consent of the First Lenders.
o The Second Lenders will agree not to initiate, prosecute, encourage or assist with any other person to
initiate or prosecute, any claim, action or other proceeding challenging the Intercreditor Agreement and/or
the First Liens.
o To the extent that the First Lenders realize any amounts, or otherwise receive any payments, with
respect to the Collateral, which payments are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, then, to the extent of such payment or proceeds received, the obligations owing to the First
Lenders shall be revived and continue in full force and effect enjoying all rights and benefits of the
Intercreditor Agreement as if such payments or proceeds had not been so received.
o The description in the Intercreditor Agreement of the obligations of the Credit Parties secured by the
First Liens shall include interest accruing at the then applicable rate provided in the Credit Agreement
after the maturity of the Loans and interest accruing at the then applicable rate provided in the Credit
Agreement after the commencement of any Bankruptcy Event or like proceeding, to the extent allowed in such
proceeding.