EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT AND US PLEDGE AGREEMENT
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FIRST AMENDMENT TO CREDIT AGREEMENT AND US PLEDGE AGREEMENT (this
"Amendment"), dated as of December 19, 2005, 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"), SILGAN PLASTICS CANADA INC., an Ontario corporation ("Silgan Plastics
Canada"), 827599 ONTARIO INC., an Ontario corporation ("Canadian Holdco" and,
together with Silgan, Containers, Plastics, Manufacturing, CanCo and Silgan
Plastics Canada, the "Borrowers," and each individually, a "Borrower"), the
lenders from time to time party to the Credit Agreement referred to below (each
a "Lender" and, collectively, the "Lenders"), and DEUTSCHE BANK AG NEW YORK
BRANCH, as administrative agent (in such capacity, the "Administrative Agent"),
and acknowledged and agreed to by each of the other Credit Parties. Unless
otherwise defined herein (including those capitalized terms defined in Section
76 of this Amendment), all capitalized terms used herein and defined in the
Credit Agreement referred to below are used herein as therein defined.
W I T N E S S E T H :
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WHEREAS, the Borrowers (other than Canadian Holdco and Silgan Plastics
Canada), the Lenders, the Administrative Agent, the Co-Syndication Agents and
the Co-Documentation Agents have entered into a Credit Agreement, dated as of
June 30, 2005 (the "Credit Agreement");
WHEREAS, Silgan, certain Subsidiaries of Silgan and the Collateral Agent
have entered into a US Pledge Agreement, dated as of June 30, 2005 (the "US
Pledge Agreement");
WHEREAS, (i) Silgan and Silgan Plastics Canada have requested, and the
Lenders have agreed, that Silgan Plastics Canada may become an Incremental Term
Loan Borrower under the Credit Agreement on the terms and conditions set forth
in the Credit Agreement (after giving effect to this Amendment) and in the
applicable Incremental Term Loan Commitment Agreement to be executed by Silgan,
Silgan Plastics Canada, the Incremental Term Loan Lenders party thereto and the
Administrative Agent and (ii) Silgan, Canadian Holdco and Silgan Plastics Canada
have requested, and the Lenders have agreed, that each of Canadian Holdco and
Silgan Plastics Canada may become a Canadian Revolving Borrower under the Credit
Agreement on the terms and conditions set forth in the Credit Agreement (after
giving effect to this Amendment); and
WHEREAS, subject to the terms and conditions set forth herein, the parties
hereto wish to amend certain provisions of the Credit Agreement and the US
Pledge Agreement as provided herein;
NOW, THEREFORE, it is agreed;
A. Amendments to the Credit Agreement
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1. Section 1.01(c) of the Credit Agreement is hereby amended by inserting
the following new sentence at the end thereof:
"In addition to the foregoing, in the case of Canadian
Incremental Term Loans, such Incremental Term Loans (x) shall be
denominated solely in Canadian Dollars, and (y) shall, at the
option of the Canadian Incremental Term Loan Borrower, be
incurred and maintained as, and/or converted into, Canadian Prime
Rate Loans or B/A Discount Rate Loans, provided that all Canadian
Incremental Term Loans made as part of the same Borrowing shall,
unless otherwise specifically provided herein, be of the same
Type."
2. Section 1.01 of the Credit Agreement is hereby further amended by
inserting the following new clause (g) at the end thereof:
"(g) Subject to and upon the terms and conditions set forth
herein, each Canadian Revolving Lender severally agrees, at any
time and from time to time on and after the First Amendment
Effective Date and prior to the Canadian Revolving Loan Maturity
Date, to make a revolving loan or revolving loans (each a
"Canadian Revolving Loan" and, collectively, the "Canadian
Revolving Loans") to each Canadian Revolving Borrower, which
Canadian Revolving Loans:
(i) shall be made and maintained in Canadian Dollars;
(ii) except as hereafter provided, shall, at the option
of the applicable Canadian Revolving Borrower, be incurred
and maintained as, and/or converted into, one or more
Borrowings of (x) Canadian Prime Rate Loans or (y) (i) in
the case of a B/A Lender, the creation of Bankers'
Acceptances on the terms and conditions provided for herein
and in Schedule XI or (ii) in a case of a Non-B/A Lender,
the creation and purchase of completed Drafts and the
exchange of such Drafts for B/A Discount Notes, in each case
on the terms and conditions provided for herein and in
Schedule XI;
(iii) may be repaid and reborrowed in accordance with
the provisions hereof;
(iv) shall not be made (and shall not be required to be
made) by any Canadian Revolving Lender in any instance where
the incurrence thereof (after giving effect to the use of
the proceeds thereof on the date of the incurrence thereof
to simultaneously repay any Canadian Revolving Loans
theretofore outstanding) would cause the Individual Canadian
RL Exposure of such Canadian Revolving Lender to exceed the
Canadian
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Revolving Loan Commitment of such Canadian Revolving
Lender at such time; and
(v) shall not be made (and shall not be required to be
made) by any Canadian Revolving Lender in any instance where
the incurrence thereof (after giving effect to the use of
the proceeds thereof on the date of the incurrence thereof
to simultaneously repay any Canadian Revolving Loans
theretofore outstanding) would cause the Aggregate Canadian
RL Exposure to exceed the Total Canadian Revolving Loan
Commitment at such time."
3. Section 1.02 of the Credit Agreement is hereby amended by (i) inserting
"(x)" immediately after the text "more than" appearing in the second sentence
thereof and (ii) inserting the text "and B/A Discount Rate Loans" immediately
following the text "Euro Rate Loans" appearing in the second sentence thereof
and (iii) inserting the following new clause (y) at the end thereof:
"and (y) five different maturity dates in the aggregate for
all outstanding Bankers' Acceptance Loans".
4. Section 1.03(a) of the Credit Agreement is hereby restated in its
entirety as follows:
"1.03 Notice of Borrowing. (a) Whenever (v) a Borrower
desires to incur Dollar Loans hereunder (excluding (I) Swingline
Loans and (II) 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 (or, in the case of a
Eurodollar Loan with an Interest Period of other than a one, two,
three or six-month period, at least five Business Days' prior
notice of each such Eurodollar Loan), to be incurred hereunder,
(w) the Canadian Incremental Term Loan Borrower desires to incur
Canadian Incremental Term Loans hereunder, the Canadian
Incremental Term Loan Borrower shall give the Administrative
Agent at the applicable Notice Office at least one Business Day's
prior notice of each Canadian Incremental Term Loan (or, in the
case of a B/A Discount Rate Loan with an Interest Period of other
than a one, two, three or six-month period, at least five
Business Days' prior notice of each such B/A Discount Rate Loan),
to be incurred hereunder, (x) an Incremental Term Loan Borrower
(other than the Canadian Incremental Term Loan Borrower) desires
to incur Alternate Currency Incremental Term Loans hereunder
(other than Canadian Incremental Term Loans), such Incremental
Term Loan Borrower shall give the Administrative Agent at the
applicable Notice Office at least three Business Days' (or, in
the case of an Alternate Currency Incremental Term Loan with an
Interest Period of other than a one, two, three or six-month
period, at least five Business Days') prior notice of each such
Alternate Currency Incremental Term Loan to be incurred
hereunder, (y) a Revolving Borrower desires to incur Primary
Alternate Currency Revolving Loans hereunder, such
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Revolving Borrower shall give the Administrative Agent at the
applicable Notice Office at least three Business Days' (or, in
the case of a Primary Alternate Currency Revolving Loan with an
Interest Period of other than a one, two, three or six-month
period, at least five Business Days') prior notice of each such
Primary Alternate Currency Revolving 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 and (z) a Canadian Revolving
Borrower desires to incur Canadian Prime Rate Loans or Bankers'
Acceptance Loans hereunder (excluding Canadian Prime Rate Loans
to the extent resulting from automatic conversions of Bankers'
Acceptance Loans as provided in Schedule XI), such Canadian
Revolving Borrower shall give the Administrative Agent at the
applicable Notice Office at least one Business Day's prior notice
of each Canadian Prime Rate Loan, and at least three Business
Days' prior notice of each Bankers' Acceptance Loan (or, in the
case of a Bankers' Acceptance Loan with a term in excess of 180
days, at least five Business Days' prior notice of each such
Bankers' Acceptance Loan). 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 or Face Amount, as the case may be, of the Loans
to be made pursuant to such Borrowing (stated in Dollars or, in
the case of Alternate Currency 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 and
Revolving 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) (x) 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 (y) in the case of Canadian
Incremental Term Loans, whether such Canadian Incremental Term
Loans being made pursuant to such Borrowing are to be initially
maintained as Canadian Prime Rate Loans or, to the extent
permitted hereunder, B/A Discount Rate Loans, (vii) in the case
of all Euro Rate Loans and B/A Discount Rate Loans, the initial
Interest Period to be applicable thereto, and (viii) in the case
of Canadian Revolving Loans, whether the respective Borrowing
shall consist of Canadian Prime Rate Loans or, to the extent
permitted hereunder, Bankers' Acceptance Loans and, if Bankers'
Acceptance Loans, the term thereof (which shall comply with the
requirements of Schedule XI). 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."
5. Section 1.04 of the Credit Agreement is hereby amended by inserting the
text "; provided, however, that, in no event shall the Administrative Agent make
available to the Canadian Incremental Term Loan Borrower any portion of any
Canadian Incremental Term Loan
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until such corresponding amount is in fact received by the Administrative Agent
from a Canadian Incremental Term Loan Lender" at the end of the third sentence
appearing in said Section.
6. Section 1.05(a) of the Credit Agreement is hereby amended by deleting
the text "and" appearing at the end of clause (iv) of said Section and inserting
the text "and (vi) if Canadian Revolving Loans, by promissory notes duly
executed and delivered by each Canadian Revolving Borrower substantially in the
form of Exhibit B-6 (each a "Canadian Revolving Note" and, collectively, the
"Canadian Revolving Notes")," immediately after the text "the "Swingline
Notes")," appearing at the end of clause (v) of said Section.
7. Section 1.05(d) of the Credit Agreement is hereby amended by inserting
the text ", Canadian Prime Rate Loans, B/A Discount Rate Loans" immediately
after the text "Base Rate Loans" appearing in clause (iv) thereof.
8. Section 1.05 of the Credit Agreement is hereby further amended by
inserting the following new clause (i) at the end thereof:
"(i) The Canadian Revolving Note issued by each Canadian
Revolving Borrower to each Canadian Revolving Lender shall (i) be
payable to such Canadian Revolving Lender or its registered
assigns and be dated the First Amendment Effective Date (or, if
issued after the First Amendment Effective Date, be dated the
date of issuance thereof), (ii) be in a stated principal amount
(expressed in Canadian Dollars) equal to the Canadian Revolving
Loan Commitment of such Canadian Revolving Lender (or, if issued
after the termination thereof, be in a stated principal amount
(expressed in Canadian Dollars) equal to the outstanding Canadian
Revolving Loans of such Canadian Revolving Lender at such time)
and be payable in the outstanding principal amount of the
Canadian Revolving Loans to such Canadian Revolving Borrower
evidenced thereby, (iii) mature on the Canadian Revolving Loan
Maturity Date, (iv) with respect to each Canadian Revolving Loan
evidenced thereby, be payable in Canadian Dollars, provided that
the obligations evidenced by each Canadian Revolving Loan
evidenced thereby shall be subject to conversion into Dollar
Loans as provided in (and in the circumstances contemplated by)
Section 1.16, (v) bear interest as provided in the appropriate
clause of Section 1.08, (vi) be subject to voluntary prepayment
as provided in Section 4.01, and mandatory repayment as provided
in Section 4.02, and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents."
9. Section 1.06 of the Credit Agreement is hereby restated in its entirety
as follows:
"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 or Canadian Incremental Term Loans, as the case may be,
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 or
Types of Canadian
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Incremental Term Loans, as the case may be, into a Borrowing (of
the same Tranche) of another Type of Dollar Loan or Canadian
Incremental Term Loan, as the case may be, provided that (i)
except as otherwise provided in Section 1.10(b), (x) Eurodollar
Loans may be converted into Base Rate Loans and (y) B/A Discount
Rate Loans may be converted into Canadian Prime Rate Loans, in
each case, only on the last day of an Interest Period applicable
to the Loans being converted and no such partial conversion of
Eurodollar Loans or B/A Discount Rate Loans, as the case may be,
shall reduce the outstanding principal amount of such Eurodollar
Loans or B/A Discount Rate Loans made pursuant to a single
Borrowing to less than the Minimum Borrowing Amount applicable
thereto, (ii) unless the Required Lenders otherwise agree, (x)
Base Rate Loans may only be converted into Eurodollar Loans and
(y) Canadian Prime Rate Loans may only be converted into B/A
Discount Rate Loans, in each case, if no Specified 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 Euro Rate Loans and B/A
Discount Rate 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' (or, in the case of an
Interest Period other than a one, two, three or six-month period,
at least five Business Days') prior notice (each a "Notice of
Conversion/Continuation") in the form of Exhibit A-2,
appropriately completed to specify the Dollar Loans or Canadian
Incremental Term Loans to be so converted, the Borrowing(s)
pursuant to which such Dollar Loans or Canadian Incremental Term
Loans were made and, if to be converted into Eurodollar Loans (in
the case of Dollar Loans) or B/A Discount Rate Loans (in the case
of Canadian Incremental Term 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 and/or Canadian Incremental
Loans. For the avoidance of doubt, it is understood that any
conversion of one Type of Canadian Incremental Term Loan into
another Type of Canadian Incremental Term Loan shall not
constitute a repayment of any Canadian Incremental Term Loan
being so converted. Canadian Revolving Loans may be converted
and/or continued as and to the extent provided in Section 1.17
and Schedule XI."
10. Section 1.07 of the Credit Agreement is hereby amended by (i) inserting
the text ", Canadian Revolving Loans" immediately after the text "under a given
Tranche" appearing in the first sentence thereof and (ii) inserting the text ",
Canadian Revolving Loan Commitments" immediately after the text "for such
Tranche" appearing in the first sentence thereof.
11. Section 1.08 of the Credit Agreement is hereby amended by restating
clauses (a), (b), (c) and (d) of such Section in their entirety as follows:
"(a) Each Borrower agrees to pay interest in respect of the
unpaid principal amount of each Base Rate Loan and Canadian Prime
Rate Loan (including with respect to any (x) Euro Rate Loan
converted into a Base Rate
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Loan pursuant to Section 1.16, (y) B/A Discount Rate Loan
converted into a Canadian Prime Rate Loan pursuant to Section
1.16, or (z) Bankers' Acceptance Loan converted into a Canadian
Prime Rate Loan pursuant to Schedule XI) 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 or the respective B/A Discount
Rate Loan or Bankers' Acceptance Loan into a Canadian Prime Rate
Loan, as the case may be) 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, such
Canadian Prime Rate Loan to a B/A Discount Rate Loan or such
Bankers' Acceptance Loan to a Canadian Prime Rate Loan, as the
case may be, pursuant to Section 1.06 or Schedule XI, as the case
may be, (which conversion shall, in the case of a conversion
contemplated by Schedule XI, be deemed to occur on the date upon
which a maturing Bankers' Acceptance or B/A Discount Note is
converted into a Canadian Prime Rate Loan pursuant to Schedule
XI, with the proceeds thereof to be equal to the full Face Amount
of such maturing Bankers' Acceptance or B/A Discount Note), at a
rate per annum which shall be equal to (x) in the case of Dollar
Loans, the sum of the Applicable Margin plus the Base Rate and
(y) in the case of Canadian Prime Rate Loans, the sum of the
Applicable Margin plus the Canadian Prime Rate, in each case, 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 and B/A Discount
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, (B) in the
case of Canadian Incremental Term Loans, the conversion of such
B/A Discount Rate Loan to a Canadian Prime Rate Loan pursuant to
Section 1.06, 1.09 or 1.10, as applicable, and/or (C) in the case
of an Alternate Currency Loan (including a Canadian Incremental
Term Loan), the conversion of such Alternate Currency Loan to a
Base Rate Loan pursuant to Section 1.16, 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, in the case of Euro
Rate Loans, the applicable Euro Rate for such Interest Period
plus (except in the case of Eurodollar Loans) the Associated
Costs Rate, if any, and in the case of B/A Discount Rate Loans,
the applicable B/A Discount Rate for such Interest Period.
(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 Loans (other
than Canadian Incremental Term Loans) under a given Tranche,
equal to 2% in excess of the rate otherwise applicable to such
Tranche of Alternate Currency Loans from time to
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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, (iii) in the case of overdue principal of, and
interest on, Canadian Incremental Term Loans and Canadian
Revolving Loans, equal to the greater of (x) the rate which is 2%
in excess of the rate otherwise applicable to Canadian Prime Rate
Loans from time to time and (y) the rate which is 2% in excess of
the rate then borne by such Canadian Incremental Term Loans or
such Canadian Revolving Loans, as the case may be, and (iv) 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 and Canadian Prime
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 or Canadian Prime 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 and each B/A Discount 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."
12. Section 1.09 of the Credit Agreement is hereby restated in its entirety
as follows:
"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 or B/A Discount
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 (or, in the case of a Euro Rate Loan or B/A Discount Rate
Loan to be converted into, or maintained as, a Euro Rate Loan or
B/A Discount Rate Loan (as applicable) with an Interest Period of
other than a one, two, three or six-month period, on the fifth
Business Day) prior to the expiration of an Interest Period
applicable to such Borrowing of Euro Rate Loans or B/A Discount
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 (x) in the case of Dollar Loans, at the option of
such Borrower, be 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 or a seven-day
period, (y) in the case of Alternate Currency Loans (other than
Canadian Incremental Term Loans and Canadian Revolving Loans)
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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, and (z) in the case of Canadian Incremental Term Loans,
at the option of the Canadian Incremental Term Loan Borrower, be
a one, two, three, six or, to the extent agreed upon by each
Canadian Incremental Term Loan Lender and approved by the
Administrative Agent, twelve-month period, provided that (in each
case):
(i) all Euro Rate Loans and B/A Discount Rate Loans
comprising a Borrowing shall at all times have the same
Interest Period;
(ii) the initial Interest Period for any Euro Rate Loan
or B/A Discount Rate Loan shall commence on the date of
Borrowing of such Euro Rate Loan or B/A Discount Rate Loan
(including, (x) in the case of Eurodollar Loans, the date of
any conversion thereto from a Borrowing of Base Rate Loans
and (y) in the case of B/A Discount Rate Loans, the date of
any conversion thereto from a Borrowing of Canadian Prime
Rate Loans) and each Interest Period occurring thereafter in
respect of such Eurodollar Loan or B/A Discount Rate 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 or B/A Discount 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 or B/A
Discount 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 or B/A Discount 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 or B/A Discount Rate
Loan may be selected at any time when a Specified Default or
an Event of Default is then in existence;
(vi) unless the Required Lenders otherwise agree, no
Interest Period, other than a one month or less period, for
any other Alternate Currency Loan may be selected at any
time when a Specified Default or an Event of Default is then
in existence;
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(vii) except for Alternate Currency Incremental Term
Loans (other than Canadian 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 or B/A Discount 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 or B/A
Discount 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, (y) in the
case of B/A Discount Rate Loans, to convert such B/A Discount
Rate Loans into Canadian Prime Rate Loans, and (z) in the case of
other Alternate Currency Loans, to select a one month Interest
Period for such Alternate Currency Loans, with such new Interest
Period to be effective as of the expiration date of such current
Interest Period."
13. Section 1.10(a) of the Credit Agreement is hereby amended by (i)
deleting the word "or" appearing at the end of clause (iii) of the first
sentence of said Section, (ii) inserting the word "or" at the end of clause (iv)
of the first sentence of said Section and (iii) inserting the following new
clause (v) immediately after clause (iv) of the first sentence of said Section:
"(v) that for any reason a market for bankers' acceptances
does not exist at any time or the Canadian Revolving Lenders
cannot for other reasons, after reasonable efforts, readily sell
bankers' acceptances or perform their other obligations under
this Agreement with respect to bankers' acceptances, in each
case, as determined in good faith by the Administrative Agent;"
14. Section 1.10(a) of the Credit Agreement is hereby further amended by
(i) deleting the text "(or the Administrative Agent, in the case of clause (i)
or (iv) above)" appearing in the first sentence of said Section and inserting
the text "(or the Administrative Agent, in the case of clause (i), (iv) or (v)
above)" in lieu thereof, (ii) deleting the text "except in the case of clauses
(i) and (iv) above" appearing in the first sentence of said Section and
inserting the text "except in the case of clauses (i), (iv) and (v) above" in
lieu thereof, (iii) deleting the word "and" appearing immediately before clause
(z) of the second sentence of said Section, (iv) redesignating clauses (w), (x),
(y) and (z) appearing in the second sentence of said Section as clauses (v),
(w), (x) and (y), respectively, and (v) inserting the text ", and (z) in the
case of clause (v) above, Bankers'
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Acceptance Loans (exclusive of Bankers' Acceptance Loans which have
theretofore been funded) shall no longer be available until such time
as the Administrative Agent notifies the Canadian Revolving Borrowers
and the Canadian Revolving Lenders that the circumstances giving rise
to such notice by the Administrative Agent no longer exist, and any
Notice of Borrowing given by any Canadian Revolving Borrower with
respect to such Bankers' Acceptance Loans which have not been incurred
shall be deemed rescinded by such Canadian Revolving Borrower" at the
end of the second sentence of said Section.
15. Section 1.11 of the Credit Agreement is hereby amended by (i)
inserting the text "or Bankers' Acceptance Loans" immediately after
the text "Euro Rate Loans" appearing in clause (i) of said Section,
(ii) deleting the word "or" appearing at the end of clause (iii) of
said Section, (iii) inserting the text "or Bankers' Acceptance Loans"
immediately after the text "Euro Rate Loans" appearing in clause (iii)
of said Section, (iv) inserting the text "; or (v) if any repayment
(including any repayment made pursuant to Section 4.01 or 4.02 or as a
result of an acceleration of the Loans pursuant to Section 9) of any
Bankers' Acceptance Loan occurs on a date which is not the maturity
date of the respective Bankers' Acceptance Loan, as the case may be"
immediately after clause (iv) of said Section and (v) inserting the
text "or B/A Discount Rate Loans (as applicable)" immediately after
each appearance of the text "Euro Rate Loans" appearing in said
Section.
16. Section 1.13 of the Credit Agreement is hereby amended by restating
clause (i) to the proviso appearing in said Section in its entirety as follows:
"(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, (d) Incremental Term
Loans under a given Tranche, the then remaining Incremental Term
Loan Commitment and the outstanding Incremental Term Loans under
such Tranche and (e) the Canadian Revolving Loan Commitment, the
Canadian Revolving Loan Commitment and outstanding Canadian
Revolving Loans) of, and in each case (except for the replacement
of only outstanding Term Loans and/or Canadian Revolving 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 (or Face Amount) of,
and all accrued and unpaid 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, (IV) the Incremental Term Loan
Commitments and Incremental Term Loans under a given Tranche, the
outstanding Incremental Term Loans of such Tranche or (V) the
Canadian Revolving Loan Commitment, the outstanding
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Canadian Revolving Loans) of the Replaced Lender; provided that
if any Bankers' Acceptance Loans (or B/A Discount Notes) of such
Replaced Lender are outstanding at the time of such replacement
(which do not mature at the time of such replacement), at the
option of such Replaced Lender, (i) the Canadian Revolving
Borrowers shall repay the Face Amount of such Bankers' Acceptance
Loans (and B/A Discount Notes) to such Replaced Lender, (ii) the
Canadian Revolving Borrowers shall enter into cash collateral
arrangements with the Replaced Lender and the Administrative
Agent as are reasonably satisfactory to them in respect of such
Bankers' Acceptance Loans (and B/A Discount Notes) or (iii) such
Replaced Lender and the respective Replacement Lender shall enter
into such indemnity or other arrangements as mutually agreed upon
by such Replaced Lender and such Replacement Lender in respect of
such Bankers' Acceptance Loans (and B/A Discount Notes), (B)
except in the case of the replacement of only outstanding Term
Loans and/or Canadian Revolving 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
accrued and unpaid interest with respect thereto at such time and
(C) an amount equal to all accrued and 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 and/or Canadian Revolving 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 RL
Percentage of any Mandatory Borrowing to the extent such amount
was not theretofore funded by such Replaced Lender;"
17. Section 1.14(a) of the Credit Agreement is hereby amended by (i)
inserting the text "provided that, in the case of the Canadian Incremental Term
Loans, such minimum aggregate amount may equal the Dollar Equivalent of Cdn.
$45,000,000," at the end of clause (iv) of the proviso to said Section, (ii)
inserting the text "provided, however, such aggregate amount may be increased by
the Dollar Equivalent of Cdn. $45,000,000 (as determined at the time that the
Canadian Incremental Term Loan Commitments are obtained) to the extent that the
Canadian Incremental Term Loans to be incurred pursuant to said Commitments are
fully funded on or prior to December 31, 2005," at the end of clause (v) of the
proviso to said Section, and (iii) inserting the text "except for the Canadian
Incremental Term Loans incurred pursuant to the Canadian Incremental Term Loan
Commitment Agreement," immediately before the word "each" appearing in clause
(vii) of the proviso to said Section.
18. Section 1.15(a) of the Credit Agreement is hereby amended by (i)
deleting the amount "$150,000,000" appearing in clause (iv) thereof and
inserting the amount "$200,000,000" in lieu thereof and (ii) inserting the text
"provided, however, such aggregate amount may be increased by the Dollar
Equivalent of Cdn. $45,000,000 (as determined at the time that the Canadian
Incremental Term Loan Commitments are obtained) to the extent that the
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Canadian Incremental Term Loans to be incurred pursuant to said Commitments are
fully funded on or prior to December 31, 2005," at the end of clause (iv) of the
proviso to said Section.
19. Section 1.16(b) of the Credit Agreement is hereby restated in its
entirety as follows:
"(b) On the date of the occurrence of a Sharing Event,
automatically (and without the taking of any action) (w) all then
outstanding Primary Alternate Currency Revolving Loans and
Primary Alternate Currency Unpaid Drawings shall be converted
into Revolving Loans which are maintained in Dollars and Dollar
Unpaid Drawings (in each case, in an amount equal to the Dollar
Equivalent of the aggregate principal amount of the respective
Primary Alternate Currency Revolving Loans and the aggregate
amount of such Primary Alternate Currency Unpaid Drawings, as the
case may be, on the date such Sharing Event first occurred),
which Primary Alternate Currency Revolving Loans and Primary
Alternate Currency Unpaid Drawings (i) shall continue to be owed
by the respective Revolving Borrowers, (ii) shall, in the case of
such Primary Alternate Currency Revolving Loans, 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, (x) all principal, accrued and unpaid interest, Fees
and other amounts owing with respect to such Primary Alternate
Currency Revolving Loans, Primary Alternate Currency Unpaid
Drawings, Primary Alternate Currency Letters of Credit shall be
immediately due and payable in Dollars (in an amount equal to the
Dollar Equivalent of such principal, accrued and unpaid interest,
Fees and other amounts), (y) all then outstanding Canadian
Revolving Loans shall be converted into Canadian Revolving Loans
which are maintained in Dollars as Base Rate Loans (in an amount
equal to the Dollar Equivalent of the aggregate principal amount
(or Face Amount, as applicable) thereof, on the date such Sharing
Event first occurred), which Canadian Revolving Loans (i) shall
continue to be owed by the respective Canadian Revolving
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 (z) all principal
(or Face Amount, as applicable), accrued and unpaid interest,
Fees and other amounts owing with respect to such Canadian
Revolving Loans shall be immediately due and payable in Dollars
(in an amount equal to the Dollar Equivalent of such principal
(or Face Amount, as applicable), accrued and unpaid interest,
Fees and other amounts). The occurrence of any conversion of
Primary Alternate Currency Revolving Loans or Canadian Revolving
Loans as provided above in this Section 1.16(b) shall be deemed
to constitute, for purposes of Section 1.11, a prepayment of the
respective Primary Alternate Currency Revolving Loans or Canadian
Revolving Loans before the last day of any Interest Period or
maturity relating thereto."
20. Section 1.16(d) of the Credit Agreement is hereby amended by (i)
deleting the text "and" appearing immediately after clause (iii) appearing in
the first sentence of said Section and (ii) inserting the following text
immediately after clause (iv) appearing in the first sentence of said Section:
-13-
"and (v) all Canadian Revolving Loan Commitments of all Canadian
Revolving Lenders shall be automatically terminated".
21. Section 1 of the Credit Agreement is hereby further amended by
inserting the following new Sections 1.17 and 1.18 immediately following Section
1.16 thereof:
"1.17 Conversions of Canadian Revolving Loans. (a) The
Canadian Revolving Borrowers shall have the option to convert, on
any Business Day occurring on or after the First Amendment
Effective Date, all or a portion equal to at least the Minimum
Borrowing Amount of the outstanding principal amount of Canadian
Revolving Loans constituting Canadian Prime Rate Loans into a
Borrowing of Bankers' Acceptance Loans; provided, that (i) unless
the Required Lenders otherwise agree, Canadian Prime Rate Loans
may only be converted into Bankers' Acceptance Loans if no
Specified Default or Event of Default is in existence on the date
of the conversion, and (ii) no conversion pursuant to this
Section 1.17 shall result in a greater number of Bankers'
Acceptance Loans than is permitted under Section 1.02. Each
conversion pursuant to this Section 1.17 shall be effected by the
relevant Canadian Revolving 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 in the form of
Exhibit A-2, appropriately completed to specify the Canadian
Prime Rate Loans to be so converted into Bankers' Acceptance
Loans and the term of the proposed Borrowing of Bankers'
Acceptance Loans (which, in each case, shall comply with the
requirements of Schedule XI). The Administrative Agent shall give
each Canadian Revolving Lender prompt notice of any such proposed
conversion affecting any of its Canadian Prime Rate 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 Canadian Revolving Loans being converted.
(b) Mandatory and voluntary conversions of Bankers'
Acceptance Loans into Canadian Prime Rate Loans shall be made in
the circumstances, and to the extent, provided in Schedule XI.
Except as otherwise provided under Section 1.16, Bankers'
Acceptance Loans shall not be permitted to be converted into any
other Type of Loan prior to the maturity date of the relevant
underlying Bankers' Acceptance or B/A Discount Note, as the case
may be.
1.18 Provisions Regarding Bankers' Acceptances, Drafts, etc.
The parties hereto agree that the provisions of Schedule XI shall
apply to all Bankers' Acceptances, Bankers' Acceptance Loans,
Drafts and B/A Discount Notes created pursuant to this Agreement,
and that the provisions of Schedule XI shall be deemed
incorporated by reference into this Agreement as if such
provisions were set forth in this Agreement in their entirety."
22. Section 3.01 of the Credit Agreement is hereby amended by adding the
following new clauses (h) and (i) immediately following clause (g) of said
Section:
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"(h) The Drawing Fees in respect of the Face Amount of each
Bankers' Acceptance Loan shall be paid by each Canadian Revolving
Borrower to the Administrative Agent for distribution to each
Canadian Revolving Lender which accepts and/or purchases such
Bankers' Acceptance Loan at the time of the incurrence by such
Canadian Revolving Borrower of each Bankers' Acceptance Loan.
(i) Each Canadian Revolving Borrower jointly and severally
agrees to pay to the Administrative Agent for distribution to
each Canadian Revolving Lender that is a Non-Defaulting Lender, a
commitment commission (the "Canadian Commitment Commission") for
the period from the First Amendment Effective Date to but
excluding the Canadian Revolving Loan Maturity Date (or such
earlier date as the Total Canadian 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 Canadian Revolving Loan Commitment of such
Canadian Revolving Lender that is Non-Defaulting Lender. Accrued
Canadian Commitment Commission shall be due and payable quarterly
in arrears on each Quarterly Payment Date and on the Canadian
Revolving Loan Maturity Date or upon such earlier date as the
Total Canadian Revolving Loan Commitment shall have been
terminated."
23. Section 3.02(a) of the Credit Agreement is hereby amended by adding the
following new sub-clause (III) immediately following sub-clause (II) of said
Section:
"(III) Upon at least two Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) by any
Canadian Revolving Borrower to the Administrative Agent at the
applicable Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Lenders), any Canadian
Revolving Borrower shall have the right, without premium or
penalty, to terminate the Total Unutilized Canadian Revolving
Loan Commitment, in whole or, if in part, in integral multiples
of Cdn. $1,000,000, provided that each such reduction shall apply
proportionately to permanently reduce the Canadian Revolving Loan
Commitment of each Canadian Revolving Lender. A notice of
termination of the Total Unutilized Canadian Revolving Loan
Commitment pursuant to this Section 3.02(a), delivered by a
Canadian Revolving Borrower contemporaneously with a notice of
prepayment of all outstanding Canadian Revolving Loans pursuant
to Section 4.01(a), may state that such notice is conditioned
upon the effectiveness of other credit facilities the proceeds of
which will be used to refinance in full this Agreement, in which
case such notice may be revoked by such Canadian Revolving
Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied;
provided, however, any such revocation shall not affect any
Canadian Revolving Borrower's obligations pursuant to Section
1.11."
24. Section 3.02(b) of the Credit Agreement is hereby amended by inserting
the text "Canadian Revolving Loan Commitment," immediately after the text
"terminate the entire" appearing in said Section.
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25. Section 3.03(d) of the Credit Agreement is hereby restated in its
entirety as follows:
"(d) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, (x) the Total Revolving
Loan Commitment (and the Revolving Loan Commitment of each
Lender) shall terminate in its entirety on the Revolving Loan
Maturity Date and (y) the Total Canadian Revolving Loan
Commitment (and the Canadian Revolving Loan Commitment of each
Canadian Revolving Lender) shall terminate in its entirety on the
Canadian Revolving Loan Maturity Date."
26. Section 3.03(g) of the Credit Agreement is hereby amended by inserting
the following new sentence at the end thereof:
"Each reduction to, and/or termination of, the Total Canadian
Revolving Loan Commitment pursuant to this Section 3.03 shall be
applied proportionately to permanently reduce, and/or terminate,
the Canadian Revolving Commitment of each Canadian Revolving
Lender."
27. Section 4.01(a) of the Credit Agreement is hereby restated in its
entirety as follows:
"4.01 Voluntary Prepayments. (a) Subject to clause (vii) of
this Section 4.01(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 prior to 3:00 P.M. (Local Time) 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
Canadian Prime Rate Loans 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 and B/A Discount
Rate Loans, (ii) which notice (x) shall specify whether A Term
Loans, B Term Loans, Incremental Term Loans under a given
Tranche, Revolving Loans, Canadian 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, B/A
Discount Rate Loans and Bankers' Acceptance Loans, the specific
Borrowing or Borrowings pursuant to which such Euro Rate Loans,
B/A Discount Rate Loans or Bankers' Acceptance Loans were made,
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 (taking the
Dollar Equivalent of any amounts to be prepaid in an Alternate
Currency) (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 or B/A Discount Rate
-16-
Loans made pursuant to any Borrowing shall reduce the outstanding
Euro Rate Loans or B/A Discount 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
Euro Rate Loans (other than Alternate Currency Incremental Term
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 such Borrower shall have no force or effect, (B)
if such Borrowing is a Borrowing of B/A Discount Rate Loans, such
Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Canadian Prime Rate Loans and
any election of an Interest Period thereafter with respect
thereto given by such Borrower shall have no force or effect, and
(C) if such Borrowing is a Borrowing of Alternate Currency
Incremental Term Loans under a given Tranche (other than Canadian
Incremental Term Loans), 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) each prepayment in respect of any Term Loans made pursuant
to this Section 4.01(a) shall be allocated among the different
Tranches of Term Loans or applied to a single Tranche of Term
Loans in each case as Silgan shall specify in the respective
notice of prepayment; provided, however, if either Silgan fails
to specify how such prepayment is to be allocated or a Default or
an Event of Default exists at the time of the respective
prepayment, such prepayment shall be allocated among 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 (x) any
voluntary prepayments of A Term Loans pursuant to this Section
4.01(a) which are made in 2005 or 2006 shall be applied to the A
Term Loan Scheduled Repayment which is due on December 31, 2007
and (y) any voluntary prepayments of Canadian Incremental Term
Loans pursuant to this Section 4.01(a) which are made in 2005,
2006 or 2007 shall be applied to the respective Incremental Term
Loans Scheduled Repayment which is due on December 31, 2008), 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); (vi) each prepayment in respect of any Tranche of Loans
pursuant to this Section 4.01(a) shall be applied pro rata among
the Lenders with outstanding Loans of such Tranche, provided that
at the respective Revolving Borrower's election in connection
with any prepayment of Revolving Loans and Canadian Revolving
Loans pursuant to this Section 4.01(a), such prepayment shall
not, so long as no Default or Event of Default then exists,
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be applied to any Revolving Loan or Canadian Revolving Loan of a
Defaulting Lender; and (vii) prepayments of Bankers' Acceptance
Loans may not be made prior to the maturity date of the
respective underlying Bankers' Acceptances or B/A Discount Notes,
as the case may be. A notice of prepayment of all outstanding
Loans pursuant to this Section 4.01(a), delivered by a Borrower
contemporaneously with a notice of termination of the Total
Unutilized Revolving Loan Commitment and/or the Total Unutilized
Canadian Revolving Loan Commitment pursuant to Section 3.02(a),
may state that such notice is conditioned upon the effectiveness
of other credit facilities the proceeds of which will be used to
refinance in full this Agreement, in which case such notice may
be revoked by such Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such
condition is not satisfied; provided, however, any such
revocation shall not affect any Borrower's obligations pursuant
to Section 1.11."
28. Section 4.01(b) of the Credit Agreement is hereby amended by (i)
redesignating sub-clause "(C)" thereof as "(D)" and inserting the following new
sub-clause (C) at the end of sub-clause (B) thereof:
", (C) in the case of the repayment of Canadian Revolving
Loans of any Canadian Revolving Lender pursuant to this Section
4.01(b), the Canadian Revolving Loan Commitment of such Canadian
Revolving Lender is terminated concurrently with such repayment
pursuant to Section 3.02(a) (at which time Schedule I shall be
deemed modified to reflect the changed Canadian Revolving Loan
Commitments)".
29. Section 4.02(a) of the Credit Agreement is hereby amended by inserting
the following new clause (v) after clause (iv) of said Section:
"(v) On any day on which the Aggregate Canadian RL Exposure
exceeds the Total Canadian Revolving Loan Commitment as then in
effect, the Canadian Revolving Borrowers shall prepay on such day
the principal of outstanding Canadian Revolving Loans (other than
Bankers' Acceptance Loans where the underlying Bankers'
Acceptance or B/A Discount Note, as the case may be, have not
matured) in an amount equal to such excess. If, after giving
effect to the prepayment of all outstanding Canadian Revolving
Loans to the extent required by the immediately preceding
sentence, the aggregate amount of all outstanding Bankers'
Acceptance Loans exceeds the Total Canadian Revolving Loan
Commitment as then in effect, the Canadian Revolving Borrowers
shall pay to the Administrative Agent at the applicable Payment
Office on such day an amount of cash and/or Cash Equivalents in
Canadian Dollars equal to the amount of such excess, such cash or
Cash Equivalents to be held as security for all Obligations of
the Canadian Revolving Borrowers 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 the
Canadian Revolving Borrowers from time to time so long as the
Total Canadian Revolving Loan Commitment as then in effect
exceeds the Aggregate Canadian RL Exposure at such time."
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30. Section 4.02(e) of the Credit Agreement is hereby restated in its
entirety as follows:
"(e) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each
Excess Cash Flow Payment Date, an amount equal to the remainder
(if positive) of (A) 50% of Excess Cash Flow for the relevant
Excess Cash Flow Payment Period minus (B) the sum of (without
duplication) (1) the aggregate amount of principal prepayments of
Loans (for this purpose, using the Dollar Equivalent with respect
to any Alternate Currency Loans) to the extent (and only to the
extent) that such prepayments were made as a voluntary prepayment
pursuant to Section 4.01 with internally generated funds (but in
the case of a voluntary prepayment of (x) Revolving Loans or
Swingline Loans, only to the extent accompanied by a voluntary
reduction to the Total Revolving Loan Commitment in an amount
equal to such prepayment or (y) Canadian Revolving Loans, only to
the extent accompanied by a voluntary reduction to the Total
Canadian Revolving Loan Commitment in an amount equal to such
prepayment) during the relevant Excess Cash Flow Payment Period
and (2) the aggregate amount of principal prepayments of Term
Loans (for this purpose, using the Dollar Equivalent with respect
to any Alternate Currency Incremental Term Loans) to the extent
(and only to the extent) that such prepayments were made as a
voluntary prepayment pursuant to Section 4.01 with proceeds of
Revolving Loans, Canadian Revolving Loans or Swingline Loans
during (and which Revolving Loans, Canadian Revolving Loans or
Swingline Loans were, at the time of the respective prepayment,
anticipated to be repaid with internally generated funds during)
the relevant Excess Cash Flow 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 Flow 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
Flow Payment Period is less than or equal to 3.50:1.00."
31. Section 4.02(f) of the Credit Agreement is hereby amended by deleting
the text "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)" appearing in said Section
and inserting the following new text in lieu thereof:
"an amount equal to 100% of the Net Sale Proceeds therefrom
shall (x) except with respect to Canadian Incremental Term Loans,
be applied on such date as a mandatory repayment and/or
commitment reduction in accordance with the requirements of
Section 4.02(k) and (y) with respect to any Canadian Incremental
Term Loans, shall be used to make an offer to repay Canadian
Incremental Term Loans in accordance with the requirements of
Section 4.02(k)".
32. Section 4.02(f) of the Credit Agreement is hereby further amended by
(i) deleting the text "such Net Sale Proceeds shall not be required to be so
applied" appearing in the first proviso of said Section and inserting the text
"such Net Sale Proceeds shall not be required to be
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so applied or used to make an offer to repay Canadian Incremental Term Loans, as
the case may be," in lieu thereof and (ii) deleting the text "not required to be
so applied as a mandatory repayment and/or commitment reduction" appearing in
the second proviso of said Section and inserting the text "not required to be so
applied as a mandatory repayment and/or commitment reduction and/or used to make
an offer to repay Canadian Incremental Term Loans, as the case may be," in lieu
thereof.
33. Section 4.02(g) of the Credit Agreement is hereby amended by deleting
the text "an amount equal to 100% of the Net Insurance 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)" appearing in said Section
and inserting the following new text in lieu thereof:
"an amount equal to 100% of the Net Insurance Proceeds therefrom
shall (x) except with respect to Canadian Incremental Term Loans,
be applied on such date as a mandatory repayment and/or
commitment reduction in accordance with the requirements of
Section 4.02(k) and (y) with respect to any Canadian Incremental
Term Loans, shall be used to make an offer to repay Canadian
Incremental Term Loans in accordance with the requirements of
Section 4.02(k)".
34. Section 4.02(g) of the Credit Agreement is hereby further amended by
(i) deleting the text "such proceeds shall not be required to be so applied"
appearing in the first proviso of said Section and inserting the text "such
proceeds shall not be required to be so applied and/or used to make an offer to
repay Canadian Incremental Term Loans, as the case may be," in lieu thereof and
(ii) restating clauses (i) and (ii) of the second proviso of said Section in
their entirety as follows:
(i) if the amount of such proceeds exceeds $125,000,000, then
only the portion of such proceeds in excess of $125,000,000 shall
be applied as a mandatory repayment and/or commitment reduction
and/or used to make an offer to repay Canadian Incremental Term
Loans, as the case may be, 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 and/or used to make an offer to repay
Canadian Incremental Term Loans, as the case may be, 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 and/or used to make an offer to repay
Canadian Incremental Term Loans, as the case may be, in
accordance with the requirements of Section 4.02(k)
35. Section 4.02(k) of the Credit Agreement is hereby restated in its
entirety as follows:
"(k)(I) Except as otherwise provided in sub-clause (II)
below, 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
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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 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 which are required
to be applied pursuant to this Section 4.02(k) in 2005 or 2006
shall be applied to the A Term Loan Scheduled Repayment which is
due on December 31, 2007) 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).
Notwithstanding anything to the contrary contained above in this
Section 4.02(k), (A) in no case will the aggregate amount of
mandatory repayments of Canadian Incremental Term Loans made (or
required to be made) pursuant to Sections 4.02(d), (e), (h), (i)
and (j) during the Canadian Five-Year Period exceed 25% of the
initial aggregate principal amount of the Canadian Incremental
Term Loans and (B) to the extent that the aggregate amount of
mandatory repayments of Canadian Incremental Term Loans made (or
that otherwise would be required to be made) pursuant to Sections
4.02(d), (e), (h), (i) and (j) during the Canadian Five-Year
Period exceeds 25% of the initial aggregate principal amount of
the Canadian Incremental Term Loans, an amount equal to the
Dollar Equivalent of such excess shall be applied as a mandatory
repayment of the other Tranches of Term Loans in accordance with
the provisions set forth above in this Section 4.02(k) (but, for
this purpose, determined as if no Canadian Incremental Term Loans
were outstanding at the time of such repayment).
(II) Each amount required to be used to make an offer to
repay Canadian Incremental Term Loans pursuant to Sections
4.02(f) and (g) in accordance with this Section 4.02(k) (with any
such offer to prepay being herein called an "Offer to Prepay
Canadian Incremental Term Loans") shall be subject to the
following requirements: (A) the Canadian Incremental Term Loan
Borrower shall deliver a notice (each, an "Offer to Prepay
Notice") to the Administrative Agent (for distribution to the
Canadian Incremental Term Loan Lenders) irrevocably and
unconditionally offering to prepay Canadian Incremental Term
Loans made by such Canadian Incremental Term Loan Lenders in an
aggregate amount equal to the Term Loan Percentage allocated to
the Canadian Incremental Term Loans of the Net Sale Proceeds of
the respective Asset Sale or the Net Insurance Proceeds of the
respective Recovery Event, as the case may be, giving rise to
such Offer to Prepay Canadian Incremental Term Loans pursuant to
Section 4.02(f) or (g), as the case may be, which notice shall
set forth (i) the date of the proposed consummation of such Offer
to Prepay Canadian Incremental
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Term Loans (which shall be no later than the fifth Business Day
following delivery of the respective Offer to Prepay Notice),
(ii) the last Business Day on which such Offer to Prepay Canadian
Incremental Term Loans may be accepted or declined (which shall
in no event be later than the date occurring three Business Days
after the date of delivery of such Offer to Prepay Notice) and
(iii) the aggregate principal amount of the Canadian Incremental
Term Loans subject to such Offer to Prepay Canadian Incremental
Term Loans; and (B) on or prior to the last Business Day on which
such Offer to Prepay Canadian Incremental Term Loans may be
accepted or declined, the Canadian Incremental Term Loan Borrower
shall repay Canadian Incremental Term Loans subject to the
respective Offer to Prepay Canadian Incremental Term Loans, with
such prepayment of Canadian Incremental Term Loans to be applied
in accordance with the requirements of sub-clause (I) above;
provided, however, to the extent that any Canadian Incremental
Term Loan Lender declines such Offer to Prepay Canadian
Incremental Term Loans, the aggregate amount of such Net Sale
Proceeds or Net Insurance Proceeds that otherwise would have been
applied to the Canadian Incremental Term Loans of such Canadian
Incremental Term Loan Lender shall instead be applied as a
mandatory repayment of the other Tranches of Term Loans in
accordance with the provisions set forth in sub-clause (I) above
(but, for this purpose, determined as if no Canadian Incremental
Term Loans were outstanding at the time of such repayment). Each
Canadian Incremental Term Loan Lender, the Administrative Agent
and the Canadian Incremental Term Loan Borrower hereby agree that
nothing in this Agreement shall be understood to mean or suggest
that the Canadian Incremental Term Loans subject to an Offer to
Prepay Canadian Incremental Term Loans constitute "securities"
for purposes of either the Securities Act or the Securities
Exchange Act."
36. Section 4.02(m) of the Credit Agreement is hereby restated in its
entirety as follows:
"(m) 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 or B/A Discount Rate
Loans, the specific Borrowing or Borrowings pursuant to which
such Euro Rate Loans or B/A Discount Rate Loans were made,
provided that: (i) repayments of Euro Rate Loans and B/A Discount
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 or B/A Discount Rate Loans of the respective
Tranche with Interest Periods ending on such date of required
repayment and all Base Rate Loans or Canadian Prime Rate Loans
(as applicable) of the respective Tranche have been paid in full;
(ii) if any repayment of Euro Rate Loans or B/A Discount 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, (y) in the case of B/A Discount Rate Loans,
such Borrowing shall be converted at the end of the
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then current Interest Period into a Borrowing of Canadian Prime
Rate Loans, and (z) in the case of Alternate Currency Loans of a
given Tranche (other than Canadian Incremental Term Loans), the
respective 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 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."
37. Section 4.02(n) of the Credit Agreement is hereby amended by (i)
deleting the text "and" appearing at the end of clause (ii) of said Section and
(ii) inserting the text ", and (iv) in the event that (x) any Canadian Revolving
Borrower is sold pursuant to the terms of this Agreement, all Canadian Revolving
Loans incurred by such Canadian Revolving Borrower and outstanding at such time
shall be repaid in full at the time of such sale and such Canadian Revolving
Borrower shall have no rights to borrow or receive other extensions of credit
hereunder and (y) all Canadian Revolving Borrowers are sold pursuant to the
terms of this Agreement, the Total Canadian Revolving Loan Commitment shall be
terminated at the time the last Canadian Revolving Borrower is sold pursuant to
such sale" at the end of said Section.
38. Section 4.03 of the Credit Agreement is hereby amended by (i) inserting
the text ", or Face Amount (if applicable) of," immediately after the text
"principal of" appearing in clause (y)(i) of the first sentence of said Section,
and (ii) inserting the text "(or Face Amount, if applicable)" immediately after
the text "principal," appearing in the proviso to the first sentence of said
Section.
39. Section 4.04 of the Credit Agreement is hereby amended by inserting the
following new clauses (c), (d) and (e) after clause (b) of said Section:
"(c) Each Canadian Revolving Lender (other than a Schedule I
Bank or a Schedule II Bank) providing Canadian Revolving Loan
Commitments on the First Amendment Effective Date shall have
delivered to each Canadian Revolving Borrower and the
Administrative Agent such certificates, forms, documents or other
evidence as may be applicable and determined by such Canadian
Revolving Borrowers, acting reasonably, to be reasonably
satisfactory to establish that such Canadian Revolving Lender is
a Canadian Resident on the First Amendment Effective Date (it
being acknowledged that a representation by such Person that it
is a Canadian Resident shall be deemed to be reasonably
satisfactory evidence thereof if such representation is
accompanied by an explanation of the basis for such status).
(d) Notwithstanding the provisions of this Section 4.04,
unless a Sharing Event has occurred or an Event of Default has
occurred and is continuing, no amounts shall be payable pursuant
to this Section 4.04 in respect of any payment made by any
Canadian Borrower in respect of a Canadian Revolving
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Loan to a Canadian Revolving Lender that is not a Canadian
Resident at the time of the payment.
(e) Unless a Sharing Event shall have occurred, each
Canadian Revolving Lender that ceases to be a Canadian Resident
shall use commercially reasonable efforts to promptly (and in any
event within 30 days thereof) notify each Canadian Revolving
Borrower in writing that it is not a Canadian Resident."
40. Section 5.04(b) of the Credit Agreement is hereby amended by inserting
the following text at the end of the second sentence thereof:
", except for Silgan Plastics Canada pursuant to the Canadian
Incremental Term Loan Commitment Agreement."
41. Section 6.10(b) of the Credit Agreement is hereby amended by inserting
the following new sentence at the end thereof:
"The proceeds of all Canadian Revolving Loans incurred by each
Canadian Revolving Borrower shall be utilized for such Canadian
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."
42. Section 8.01(xiv) of the Credit Agreement is hereby amended by
inserting the following text at the end thereof:
", provided, however, no Liens, other than Permitted Canadian Second-Liens,
shall be permitted pursuant to this clause (xiv) if any Loans (or other
Obligations in respect thereof) are owing by the Canadian Incremental Term
Loan Borrower or any Canadian Revolving Borrower or any Canadian Revolving
Loan Commitment or any Canadian Incremental Term Loan Commitment is in
effect."
43. Section 8.04(x) of the Credit Agreement is hereby amended by inserting
the text "Canadian Revolving Loans," immediately before the text "Revolving
Loans" appearing in sub-clauses (II) and (iv)(x) of said Section.
44. Section 8.06 of the Credit Agreement is hereby amended by (i) deleting
the word "and" appearing at the end of clause (iv) of said Section, (ii)
deleting the period appearing at the end of clause (v) therein and inserting ";"
in lieu thereof, and (iii) inserting the following new clauses (vi) and (vii)
immediately after clause (v) of said Section:
"(vi) Canadian Holdco may provide general corporate,
administrative and/or management services to Silgan Plastics
Canada and may receive compensation therefor; and
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(vii) Silgan and Plastics may enter into franchise
agreements with Silgan Plastics Canada and may receive
compensation therefor."
45. Section 9.01 of the Credit Agreement is hereby amended by inserting the
text "(or Face Amount, as applicable)" immediately after the text "or of any
principal" appearing in clause (i) of said Section.
46. Section 9.06 of the Credit Agreement is hereby amended by deleting the
text ", in the opinion of the Required Lenders," appearing in clause (iii) of
said Section.
47. The paragraph immediately following Section 9.11 of the Credit
Agreement is hereby amended by inserting the text "(including, without
limitation, the Face Amount of all outstanding Bankers' Acceptance Loans)"
immediately following the text "all Obligations" appearing in clause (ii) of
said paragraph.
48. The definition of "Administrative Agent" appearing in Section 10.01 of
the Credit Agreement is hereby amended by inserting the text "; provided that as
used herein and in the other Credit Documents, for purposes of actions to be
taken hereunder, notices to be received or given and payments to be received or
made in respect of all Canadian Revolving Loans, the term "Administrative Agent"
shall mean the Canadian Sub-Agent" at the end of said definition.
49. The definition of "Alternate Currency Incremental Term Loan" appearing
in Section 10.01 of the Credit Agreement is hereby amended by inserting the text
"(including, without limitation, each Canadian Incremental Term Loan)"
immediately after the text "Alternate Currency" appearing in said definition.
50. The definition of "Alternate Currency Loan" appearing in Section 10.01
of the Credit Agreement is hereby amended by inserting the text ", each Canadian
Revolving Loan" immediately after the text "each Alternate Currency Incremental
Term Loan" appearing therein.
51. The definition of "Applicable Commitment Commission Percentage" and
"Applicable Margin" appearing in Section 10.01 of the Credit Agreement is hereby
restated in its entirety as follows:
"Applicable Commitment Commission Percentage" and
"Applicable Margin" shall mean: (A) with respect to B Term Loans
maintained as (x) Base Rate Loans, 0.25% per annum, and (y)
Eurodollar Loans, 1.25% per annum, and (B) 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, Revolving Loans, Canadian 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., ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 5 or Level 6, 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):
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A Term Loans
and Revolving
Loans
maintained as
Euro Rate
A Term Loans and Loans,
Revolving Loans Canadian
maintained as Base Revolving
Rate Loans, Loans
Canadian Revolving maintained as
Loans maintained as Bankers' Applicable
Canadian Prime Acceptance Commitment
Total Rate Loans and Loans and Commission
Level Leverage Ratio Swingline Loans Drawing Fee Percentage
----- -------------- --------------- ----------- ----------
1 Less than 1.50:1.00 0.00% 0.75% 0.20%
2 Greater than or equal to
1.50:1.00 but less than 0.00% 0.875% 0.20%
2.00:1.00
3 Greater than or equal to
2.00:1.00 but less than 0.00% 1.00% 0.25%
2.50:1.00
4 Greater than or equal to
2.50:1.00 but less than 0.125% 1.125% 0.30%
3.00:1:00
5 Greater than or equal to
3.00:1.00 but less than 0.25% 1.25% 0.375%
3.50:1:00
6 Greater than or equal to 0.50% 1.50% 0.50%
3.50:1.00
; 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 6 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 6
(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
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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 6 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, and (B) 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."
52. The definition of "Applicable Currency" appearing in Section 10.01 of
the Credit Agreement is hereby restated in its entirety as follows:
"Applicable Currency" shall mean, (i) for any Tranche of
Incremental Term Loans, the Currency for such Tranche designated
in the Incremental Term Loan Commitment Agreement for such
Tranche, (ii) for A Term Loans, B Term Loans and Swingline Loans,
Dollars, (iii) for Revolving Loans and Letters of Credit, Dollars
and each Primary Alternate Currency and (iv) for Canadian
Revolving Loans, Canadian Dollars.
53. The definition of "Borrowing" appearing in Section 10.01 of the Credit
Agreement is hereby restated in its entirety as follows:
"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 (x) Euro Rate
Loans and B/A Discount Rate Loans the same Interest Period and
(y) in the case of Bankers' Acceptance Loans, underlying Bankers'
Acceptances, Drafts or B/A Discount Notes with the same
maturities; provided that Base Rate Loans incurred pursuant to
Section 1.10(b) shall be considered part of the related Borrowing
of Eurodollar Loans."
54. The definition of "Business Day" appearing in Section 10.01 of the
Credit Agreement is hereby amended by (i) deleting the text "clause (ii) below"
appearing in clause (i) thereof and inserting the text "clauses (ii) and (iii)
below" and (ii) inserting the following new clause (iii) at the end of said
definition:
"and (iii) with respect to all notices and determination in
connection with, and payments of principal (or Face Amount, as
applicable) of, and interest and Drawing Fees on, Canadian
Revolving Loans or Canadian Incremental Term Loans (as
applicable), any day which is a Business Day described in clause
(i) above and which is not a legal holiday or a day on which
banking institutions are authorized or required by law or other
government action to close in Toronto, Ontario"
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55. The definition of "Commitments" appearing in Section 10.01 of the
Credit Agreement is hereby amended by inserting the text ", the Canadian
Revolving Loan Commitment" immediately after the text "each Incremental Term
Loan Commitment" appearing in said definition.
56. The definition of "Currency" appearing in Section 10.01 of the Credit
Agreement is hereby amended by inserting the text ", Canadian Dollars"
immediately after the text "Pounds Sterling" appearing in said definition.
57. The definition of "Euro Rate" appearing in Section 10.01 of the Credit
Agreement is hereby amended by inserting the text "(other than Canadian
Incremental Term Loans and Canadian Revolving Loans)" immediately after the text
"Other Alternate Currency" appearing in clause (ii) of said definition.
58. The definition of "Euro Rate Loan" appearing in Section 10.01 of the
Credit Agreement is hereby amended by inserting the text ", a Canadian Revolving
Loan and a Canadian Incremental Term Loan" at the end of said definition.
59. The definition of "Excess Cash Flow" appearing in Section 10.01 of the
Credit Agreement is hereby amended by inserting the text "Canadian Revolving
Loans," immediately before the text "Revolving Loans" appearing in the
parenthetical of clause (b)(I) of said definition.
60. The definition of "Exchange Percentage" appearing in Section 10.01 of
the Credit Agreement is hereby amended by inserting the text "(or Face Amount,
as applicable)" immediately after the text "principal amount" each place such
text appears therein.
61. The definition of "Foreign Revolving Borrower" appearing in Section
10.01 of the Credit Agreement is hereby restated in its entirety as follows:
"Foreign Revolving Borrower" shall mean (i) in the case of
Canadian Revolving Loans only, each Canadian Revolving Borrower,
and (ii) any other Wholly-Owned Foreign Subsidiary of Silgan that
becomes a Revolving Borrower pursuant to Section 5.04(b).
62. The definition of "Lender Default" appearing in Section 10.01 of the
Credit Agreement is hereby amended by deleting the text "or (f)" appearing
therein and inserting the text ",(f) or (g)" in lieu thereof.
63. The definition of "Loan" appearing in Section 10.01 of the Credit
Agreement is hereby amended by inserting the text "each Canadian Revolving
Loan," immediately before the text "each Revolving Loan" appearing in said
definition.
64. The definition of "Maturity Date" appearing in Section 10.01 of the
Credit Agreement is hereby amended by inserting the text "the Canadian Revolving
Loan Maturity Date, " immediately before the text "the Revolving Loan Maturity
Date" appearing in said definition.
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65. The definition of "Minimum Borrowing Amount" appearing in Section 10.01
of the Credit Agreement is hereby amended by (i) deleting the word "and"
appearing at the end of clause (iii) of said definition and inserting a comma in
lieu thereof and (ii) inserting the text "and (v) for Canadian Revolving Loans
maintained, incurred as, or converted into Canadian Prime Rate Loans, Cdn.
$1,000,000, and for Canadian Revolving Loans maintained or incurred as, or
converted into Bankers' Acceptance Loans, Cdn. $2,000,000" at the end of said
definition.
66. The definition of "Net Insurance Proceeds" appearing in Section 10.01
of the Credit Agreement is hereby restated in its entirety as follows:
"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) except if any Obligations are owing
hereunder or under any other Credit Document by the Canadian
Incremental Term Loan Borrower or any Canadian Revolving Borrower
or any Canadian Revolving Loan Commitments are in effect 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 secured under the Security Documents) which is
secured by the respective assets subject to such Recovery Event).
67. The definition of "Note" appearing in Section 10.01 of the Credit
Agreement is hereby amended by inserting the text "each Canadian Revolving
Note," immediately before the text "each Revolving Loan Note" appearing in said
definition.
68. The definition of "Notice Office" appearing in Section 10.01 of the
Credit Agreement is hereby amended by inserting the text "; provided that in the
case of all Borrowings of Canadian Revolving Loans and all notices relating
thereto, the "Notice Office" shall, unless otherwise provided above, also
include the office of the Canadian Sub-Agent located at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇" at the end of said definition.
69. The definition of "Payment Office" appearing in Section 10.01 of the
Credit Agreement is hereby amended by inserting the text "; provided that in the
case of all payments in respect of Canadian Revolving Loans and Canadian
Revolving Loan Commitments and all notices relating thereto, the "Payment
Office" shall, unless otherwise provided above, also include the office of the
Canadian Sub-Agent located at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇" at the end of said definition.
70. The definition of "Permitted Debt Repurchases" appearing in Section
10.01 of the Credit Agreement is hereby amended by deleting clause (iv) of said
definition in its entirety and inserting the following new clause (iv) in lieu
thereof:
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"(iv) except as provided in the immediately succeeding
sentence, at the time of each such Refinancing and immediately
after giving effect thereto, (x) at any time prior to the initial
incurrence of any Canadian Revolving Loan and at all times after
any subsequent incurrence of Canadian Revolving Loans, the sum of
the Total Unutilized Revolving Loan Commitment plus the Dollar
Equivalent of the Total Unutilized Canadian Revolving Loan
Commitment shall be at least $100,000,000 and (y) at any time
after the initial incurrence of any Canadian Revolving Loan, but
prior to any subsequent incurrence of Canadian Revolving Loans,
the sum of the Total Unutilized Revolving Loan Commitment plus
the Dollar Equivalent of the Total Unutilized Canadian Revolving
Loan Commitment plus the Dollar Equivalent of any outstanding
Canadian Revolving Loans shall be at least $100,000,000."
71. The definition of "Required Lenders" appearing in Section 10.01 of the
Credit Agreement is hereby restated in its entirety as follows:
"Required Lenders" shall mean Non-Defaulting Lenders the sum
of whose outstanding Term Loans, Incremental Term Loan
Commitments, Revolving Loan Commitments (or after the termination
thereof, outstanding Revolving Loans and RL Percentage of
outstanding Swingline Loans and Letter of Credit Outstandings),
and Canadian Revolving Loan Commitments (or after the termination
thereof, outstanding Canadian Revolving Loans) 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, (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 and (iv) the
Total Canadian Revolving Loan Commitment less the Canadian
Revolving Loan Commitments of all Defaulting Lenders (or, if
after the Total Canadian Revolving Loan Commitment has been
terminated, the sum of the then total outstanding Canadian
Revolving Loans of Non-Defaulting Lenders). For purposes of this
definition, the calculation of the outstanding principal amount
of all Alternate Currency Loans shall be determined by taking the
Dollar Equivalent thereof at the time of any such calculation."
72. The definition of "Related Foreign Company Group" appearing in Section
10.01 of the Credit Agreement is hereby amended by inserting the following new
parenthetical at the end of said definition:
"(as well as any other Subsidiaries of such parents that are
incorporated in the same jurisdiction as such Foreign Borrower)"
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73. The definition of "Revolving Borrower" appearing in Section 10.01 of
the Credit Agreement is hereby amended by inserting the text ", each Canadian
Revolving Borrower (but solely with respect to Canadian Revolving Loans)"
immediately after the text "Can Co" appearing therein.
74. The first sentence of the definition of "Tranche" appearing in Section
10.01 of the Credit Agreement is hereby restated in its entirety as follows:
"Tranche" shall mean the respective facilities and
commitments utilized in making Loans hereunder, with there being
five separate Tranches on the First Amendment Effective Date,
i.e., A Term Loans, B Term Loans, Canadian Revolving Loans and
Swingline Loans.
75. The definition of "Type" appearing in Section 10.01 of the Credit
Agreement is hereby amended by (i) deleting the word "and" appearing at the end
of clause (i) of said definition, (ii) inserting the text "(other than a
Canadian Incremental Term Loan)" immediately after the text "any Alternate
Currency Loan" appearing in said definition and (iii) inserting the following
new clauses (iii) and (iv) at the end of said definition:
", (iii) for any Canadian Incremental Term Loan, the type of such
Canadian Incremental Term Loan determined with regard to the
interest option available thereto, i.e., whether a Canadian Prime
Rate Loan or a B/A Discount Rate Loan and (iv) for any Canadian
Revolving Loan, the type of such Canadian Revolving Loan
determined with regard to the interest option available thereto,
i.e., whether a Canadian Prime Rate Loan or a Bankers' Acceptance
Loan".
76. Section 10.01 of the Credit Agreement is hereby further amended by
inserting the following new definitions in the appropriate alphabetical order:
"Aggregate Canadian RL Exposure" shall mean, at any time,
the aggregate principal amount (or Face Amount, as applicable) of
all Canadian Revolving Loans then outstanding.
"B/A Discount Proceeds" shall mean, in respect of any
Bankers' Acceptance or Draft to be purchased by a Canadian
Revolving Lender on any date pursuant to Section 1.01(g) and
Schedule XI, the difference between (i) the result (rounded to
the nearest whole Canadian cent, and with one-half of one
Canadian cent being rounded up) calculated on such day by
dividing the aggregate Face Amount of such Bankers' Acceptance or
Draft by the sum of one plus the product of (x) the B/A Discount
Rate (expressed as a decimal) applicable to such Bankers'
Acceptance or Draft multiplied by (y) a fraction, the numerator
of which is the number of days in the term of such Bankers'
Acceptance or Draft and the denominator of which is 365, and (ii)
the aggregate applicable Drawing Fee with such product being
rounded up or down to the fifth decimal place and .000005 being
rounded up.
"B/A Discount Note" shall have the meaning provided in
Schedule XI.
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"B/A Discount Rate" shall mean:
(a) with respect to B/A Discount Rate Loans advanced by a
Canadian Incremental Term Loan Lender and Bankers' Acceptance
Loans accepted and/or purchased by a Canadian Revolving Lender,
in each case, that is a Schedule I Bank, the CDOR Rate; and
(b) with respect to B/A Discount Rate Loans advanced by a
Canadian Incremental Term Loan Lender and Bankers' Acceptance
Loans accepted and/or purchased by a Canadian Revolving Lender,
in each case, that is not a Schedule I Bank, including without
limitation, a Schedule II Bank and a Schedule III Bank, the CDOR
Rate plus ten (10) basis points (0.10%).
"B/A Discount Rate Loan" shall mean any Canadian Incremental
Term Loan bearing interest at a rate determined by reference to
the B/A Discount Rate.
"B/A Instruments" shall mean, collectively, Bankers'
Acceptances, Drafts and B/A Discount Notes, and, in the singular,
any one of them.
"B/A Lender" shall mean any Canadian Revolving Lender which
is not a Non-B/A Lender.
"Bankers' Acceptance" shall mean a Draft drawn by any
Canadian Revolving Borrower and accepted by a Canadian Revolving
Lender pursuant to Section 1.01(g) and Schedule XI.
"Bankers' Acceptance Loans" shall mean (i) the creation of
Bankers' Acceptances or (ii) the creation and purchase of
completed Drafts and the exchange of such Drafts for B/A Discount
Notes, in each case as contemplated in Section 1.01(g) and
Schedule XI.
"Canadian Commitment Commission" shall have the meaning
provided in Section 3.01(i).
"Canadian Dollar Equivalent" shall mean, at any time for the
determination thereof, the amount of Canadian Dollars 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. (New York 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 1.16 or 12.21 or Section 28 of
the US Borrowers/Subsidiaries Guaranty, on the date of
determination).
"Canadian Dollars" and "Cdn.$" shall mean freely
transferable lawful money of Canada.
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"Canadian Five-Year Period" shall mean the period beginning
on the Canadian Incremental Term Loan Borrowing Date and ending
on the five-year anniversary thereof.
"Canadian Incremental Term Loan Borrower" shall mean Silgan
Plastics Canada.
"Canadian Incremental Term Loan Borrowing Date" shall mean
the date upon which the Canadian Incremental Term Loan Borrower
incurs the Canadian Incremental Term Loans.
"Canadian Incremental Term Loan Commitment Agreement" shall
mean the Incremental Term Loan Commitment Agreement to be entered
into on or prior to December 31, 2005 among Silgan, the Canadian
Incremental Term Loan Borrower, the financial institutions party
thereto as "Incremental Term Loan Lenders" and the Administrative
Agent, and acknowledged and to be agreed to by the other Credit
Parties.
"Canadian Incremental Term Loan Commitments" shall mean the
Incremental Term Loan Commitments of the Canadian Incremental
Term Loan Lenders provided to, and obtained by, the Canadian
Incremental Term Loan Borrower pursuant to the Canadian
Incremental Term Loan Commitment Agreement.
"Canadian Incremental Term Loan Lender" shall mean each
Lender holding any Canadian Incremental Term Loan and/or any
Canadian Incremental Term Loan Commitment.
"Canadian Incremental Term Loan Maturity Date" shall mean
the Incremental Term Loan Maturity Date set forth in the Canadian
Incremental Term Loan Commitment Agreement.
"Canadian Incremental Term Loans" shall mean the Tranche of
Incremental Term Loans made pursuant to the Canadian Incremental
Term Loan Commitment Agreement.
"Canadian Prime Rate" shall mean, for any day, the rate of
interest per annum equal to the greater of (i) the per annum rate
of interest quoted or established as the "prime rate" of the
Canadian Sub-Agent which it quotes or establishes for such day as
its reference rate of interest in order to determine interest
rates for commercial loans in Canadian Dollars in Canada to its
Canadian borrowers; and (ii) the arithmetic average rate for
Canadian Dollar banker's acceptances having a term of 30 days
that appears on Reuters Screen CDOR Page (or such other page as
may be selected by the Canadian Sub-Agent as a replacement page
for such banker's acceptances if such screen is not available) at
approximately 10:00 a.m. (Toronto time) on such day plus 75 basis
points per annum, adjusted automatically with each quoted or
established change in such
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rate, all without the necessity of any notice to the Canadian
Incremental Term Loan Borrower or any other Person.
"Canadian Prime Rate Loans" shall mean any Canadian
Incremental Term Loan or Canadian Revolving Loan designated or
deemed designated as such by the Canadian Incremental Term Loan
Borrower or the relevant Canadian Revolving Borrower, as the case
may be, at the time of the incurrence thereof or conversion
thereto.
"Canadian Resident" shall mean, in respect of a Canadian
Revolving Loan, at any time, a Person who at that time is (a) not
a non-resident of Canada for purposes of the Income Tax Act
(Canada); (b) an authorized foreign bank deemed to be resident in
Canada for purposes of Part XIII of the Income Tax Act (Canada)
in respect of all amounts payable to such Person pursuant to such
Canadian Revolving Loans; (c) a Canadian partnership, within the
meaning of that term for the purposes of paragraph 212(13.1)(b)
of the Income Tax Act (Canada); or (d) able to establish to the
satisfaction of the Administrative Agent and the Canadian
Revolving Borrowers based on applicable law in effect on the date
on which it becomes a Canadian Revolving Lender that such Person
is not liable for withholding tax pursuant to Part XIII of the
Income Tax Act (Canada) in respect of all amounts payable to such
Person pursuant to such Canadian Revolving Loans.
"Canadian Revolving Borrower" shall mean each of Canadian
Holdco and Silgan Plastics Canada; it being understood that
Canadian Revolving Borrowers shall only be permitted to incur
Canadian Revolving Loans under this Agreement.
"Canadian Revolving Lender" shall mean each Lender which has
a Canadian Revolving Loan Commitment or which has any outstanding
Canadian Revolving Loans.
"Canadian Revolving Loan" shall have the meaning provided in
Section 1.01(g).
"Canadian Revolving Loan Commitment" shall mean, for each
Canadian Revolving Lender, the amount, in Canadian Dollars, set
forth opposite such Canadian Revolving Lender's name in Schedule
I directly below the column entitled "Canadian 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).
"Canadian Revolving Loan Maturity Date" shall mean June 30,
2011.
"Canadian Revolving Note" shall have the meaning provided in
Section 1.05(a).
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"Canadian Second-Lien Holders" shall have the meaning
provided in the definition of Permitted Canadian Second-Liens.
"Canadian Sub-Agent" shall mean Deutsche Bank Canada, or any
other affiliate of DBTCA or DBAG designated by DBTCA to act in
such capacity.
"CDOR Rate" shall mean, on any day, the per annum rate of
interest which is the rate determined as being the arithmetic
average of the two lowest rates applicable to Canadian Dollar
bankers' acceptances having identical issue and comparable
maturity dates as the B/A Discount Rate Loans or Bankers'
Acceptance Loans, as the case may be, proposed to be incurred by
the Canadian Incremental Term Loan Borrower or a Canadian
Revolving Borrower (as applicable) displayed and identified as
such on the display referred to as the "CDOR Page" (or any
display substituted therefor) of Reuters Monitor Money Rates
Service as at approximately 10:00 A.M. (Local Time) on such day,
or if such day is not a Business Day, then on the immediately
preceding Business Day (as adjusted by the Canadian Sub-Agent in
good faith after 10:00 A.M. (Local Time) to reflect any error in
a posted rate of interest or in the posted average annual rate of
interest); provided, however, if such a rate does not appear on
such CDOR Page, then the CDOR Rate, on any day, shall be the
discount rate quoted the Canadian Sub-Agent (determined as of
10:00 A.M. (Local Time)) on such day at which the Canadian
Sub-Agent would purchase its own bankers acceptances in a
comparable face amount and with comparable maturity dates to the
B/A Discount Rate Loans or Bankers' Acceptance Loans, as the case
may be, proposed to be incurred by the Canadian Incremental Term
Loan Borrower or a Canadian Revolving Borrower (as applicable) on
such day, or if such day is not a Business Day, then on the
immediately preceding Business Day.
"Deutsche Bank Canada" shall mean Deutsche Bank AG, Canada
Branch, in its individual capacity, and any successor corporation
thereto by merger, amalgamation, consolidation or otherwise.
"Draft" shall mean, at any time, either a depository ▇▇▇▇
within the meaning of the Depository Bills and Notes Act
(Canada), or a ▇▇▇▇ of exchange, within the meaning of the Bills
of Exchange Act (Canada), drawn by any Canadian Revolving
Borrower on a Canadian Revolving Lender and bearing such
distinguishing letters and numbers as such Canadian Revolving
Lender may determine, but which at such time has not been
completed or accepted by such Canadian Revolving Lender.
"Drawing Date" shall mean any Business Day fixed pursuant to
Schedule XI for the creation of Bankers' Acceptances or the
purchase of completed Drafts and the exchange thereof for B/A
Discount Notes, in each case by a Canadian Revolving Lender
pursuant to Schedule XI.
"Drawing Fee" shall mean, in respect of a Draft drawn by any
Canadian Revolving Borrower hereunder and accepted by a B/A
Lender or a Draft
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purchased by a Non-B/A Lender, a fee calculated on the Face
Amount of such Draft at a rate per annum equal to the Applicable
Margin that would be payable with respect to a Revolving Loan
maintained as a Eurodollar Loan drawn on the Drawing Date of such
Draft. Drawing Fees shall be calculated on the basis of the term
to maturity of the Draft and a year of 365 days.
"Face Amount" shall mean, in respect of a Draft, Bankers'
Acceptance or B/A Discount Note, as the case may be, the amount
payable to the holder thereof on its maturity. The Face Amount of
any Bankers' Acceptance Loan shall be equal to the aggregate Face
Amounts of the underlying Bankers' Acceptances, B/A Discount
Notes or Drafts, as the case may be.
"First Amendment Effective Date" shall have the meaning
provided in the First Amendment, dated as of December 19, 2005,
to this Agreement.
"Individual Canadian RL Exposure" shall mean, at any time
for any Canadian Revolving Lender, the aggregate principal amount
(or Face Amount, as applicable) of all Canadian Revolving Loans
made by such Canadian Revolving Lender and outstanding at such
time.
"Non-B/A Lender" shall mean any Canadian Revolving Lender
which is unwilling or unable to create Bankers' Acceptances by
accepting Drafts and which has identified itself as a "Non-B/A
Lender" by written notice to any relevant Canadian Revolving
Borrower.
"Offer to Prepay Canadian Incremental Term Loans" shall have
the meaning provided in Section 4.02(k)(II).
"Offer to Prepay Notice" shall have the meaning provided in
Section 4.02(k)(II).
"Permitted Canadian Second-Liens" shall mean second priority
Liens granted pursuant to the proviso contained in Section
8.01(xiv) 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; provided that (i) such second priority
Liens do not extend to any other assets of any Borrower or any of
its other Subsidiaries, (ii) all collateral in respect of such
second priority Liens is also subject to a first priority Lien
granted in favor of the applicable Secured Creditors in respect
of the Obligations of the Canadian Incremental Term Borrower
and/or the Canadian Revolving Borrowers and any Guaranties in
connection therewith and (iii) the priority of such second
priority Liens relative to the Liens created by or purported to
be created by any Security Document in respect of the Obligations
of the Canadian Incremental Term Borrower and/or the Canadian
Revolving Borrowers and any guaranties in connection therewith
and the related rights as between the applicable Secured
Creditors and any Person holding obligations secured by such
second priority Liens, including, without limitation, any
"collateral agent",
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"security agent" or similar term (all such Persons, collectively,
the "Canadian Second-Lien Holders") shall be governed by
intercreditor and subordination arrangements, pursuant to
documentation in form and substance, and on terms and conditions,
in each case, reasonably acceptable to the Administrative Agent.
"Schedule I Bank" shall mean a bank that is a Canadian
chartered bank listed on Schedule I to the Bank Act (Canada).
"Schedule II Bank" shall mean a bank that is a Canadian
chartered bank listed on Schedule II to the Bank Act (Canada).
"Schedule III Bank" shall mean an authorized foreign bank
listed on Schedule III to the Bank Act (Canada).
"Total Unutilized Canadian Revolving Loan Commitment" shall
mean, at any time, an amount equal to the remainder of (x) the
then Total Canadian Revolving Loan Commitment less (y) the sum of
the aggregate principal amount (or Face Amount, as applicable) of
all Canadian Revolving Loans then outstanding.
"Unutilized Canadian Revolving Loan Commitment" with respect
to any Canadian Revolving Lender, at any time, shall mean such
Canadian Revolving Lender's Canadian Revolving Loan Commitment at
such time less the aggregate principal amount (or Face Amount, as
applicable) of all Canadian Revolving Loans made by such Canadian
Revolving Lender and outstanding at such time.
77. Section 11.01 of the Credit Agreement is hereby amended by deleting the
first sentence of said Section in its entirety and inserting the following new
sentence in lieu thereof:
"The Lenders hereby irrevocably designate and appoint (i)
Deutsche Bank as Administrative Agent and (ii) Deutsche Bank
Canada as the Canadian Sub-Agent (for purposes of this Section 11
and Section 12.01, the term "Administrative Agent" also shall
include Deutsche Bank in its capacity as Collateral Agent
pursuant to the Security Documents and Deutsche Bank Canada as
the Canadian Sub-Agent) to act as specified herein and in the
other Credit Documents."
78. Section 11 of the Credit Agreement is hereby further amended by
inserting the following new Section 11.11 immediately after Section 11.10:
"11.11 Quebec Security. For greater certainty, and without
limiting the powers of the Collateral Agent hereunder or under
any of the other Credit Documents, each Canadian Revolving
Borrower and the Canadian Incremental Term Loan Borrower hereby
acknowledges that the Collateral Agent shall, for purposes of
holding any security granted by such Canadian Revolving Borrower,
the Canadian Incremental Term Loan Borrower or by any of their
respective Subsidiaries on property pursuant to the laws of the
Province of Quebec to secure Obligations of such Canadian
Revolving Borrower, the Canadian Incremental
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Term Loan Borrower or such Subsidiary under any bond or debenture
(the "Quebec Secured Obligations"), be the holder of an
irrevocable power of attorney (fonde de pouvoir) (within the
meaning of the Civil Code of Quebec) for all present and future
holders of any bond or debenture. Each of the Lenders, for itself
and for all present and future affiliates that are or may become
a Secured Creditor and each Agent hereby irrevocably constitutes,
to the extent necessary, the Collateral Agent as the holder of an
irrevocable power of attorney (fonde de pouvoir) (within the
meaning of Article 2692 of the Civil Code of Quebec) in order to
hold security granted by any of the Canadian Revolving Borrowers,
the Canadian Incremental Term Loan Borrower or by any of their
respective Subsidiaries in the Province of Quebec to secure the
Quebec Secured Obligations. Each assignee (for itself and for all
present and future affiliates) of a Lender and each Agent shall
be deemed to have confirmed and ratified the constitution of the
Collateral Agent as the holder of such irrevocable power of
attorney (fonde de pouvoir) by execution of the relevant
Assignment and Assumption Agreement or other relevant
documentation. Notwithstanding the provisions of Section 32 of
the Act respecting the special powers of legal persons (Quebec),
the Collateral Agent may acquire and be the holder of any bond or
debenture. Each Canadian Revolving Borrower and the Canadian
Incremental Term Loan Borrower hereby acknowledges that such bond
or debenture constitutes a title of indebtedness, as such term is
used in Article 2692 of the Civil Code of Quebec."
79. Section 12.04(b) of the Credit Agreement is hereby amended by (i)
inserting the text "(or the Dollar Equivalent thereof in the case of Alternate
Currency Incremental Term Loans)" immediately after the text "$1,000,000"
appearing in clause )(y) of the first sentence of said Section, (ii) inserting
the text "and/or Canadian Revolving Loan Commitments" immediately after the text
"Revolving Loan Commitments" appearing in clause (iii) of the second proviso
contained in said Section, (iii) deleting the text "and" appearing immediately
after clause (iv) of the second proviso contained in said Section, and (iv)
inserting the text "(vi) for the avoidance of doubt, no assignment of Canadian
Incremental Term Loans or Canadian Incremental Term Loan Commitments shall
constitute or be deemed to constitute a new obligation of the Canadian
Incremental Term Loan Borrower as a result of such assignment, and (vii) prior
to the occurrence of a Sharing Event, no Canadian Revolving Lender may assign
any portion of its Canadian Revolving Loan Commitment (or related Obligations)
to any Person who is not a Canadian Resident" immediately after clause (v) of
the second proviso contained in said Section.
80. Section 12.06(b) of the Credit Agreement is hereby amended by inserting
the text "(or Face Amount, as applicable)" immediately after the text
"principal" appearing in said definition.
81. Section 12.07(b) of the Credit Agreement is hereby restated in its
entirety as follows:
"(b) All computations of interest, Commitment Commission,
Canadian Commitment Commission and other Fees hereunder shall be
made on the basis of a year of 360 days for the actual number of
days (including the first day but
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excluding the last day; except that in the case of Letter of
Credit Fees and Facing Fees, the last day shall be included)
occurring in the period for which such interest, Commitment
Commission, Canadian Commitment Commission or other Fees are
payable, provided, however, that (i) all computations of interest
on Alternate Currency Loans denominated in Pounds Sterling, (ii)
all computations of interest on Canadian Prime Rate Loans (iii)
all computations of Drawing Fees, in each case shall be made on
the basis of a year of 365 days for the actual number of days
(including the first day but excluding the last day) occurring in
the period for which such interest is payable."
82. Section 12.07 of the Credit Agreement is further amended by inserting
the following new clause (d) at the end of said Section:
"(d) For purposes of the Interest Act (Canada) with respect
to Canadian Incremental Term Loans or Canadian Revolving Loans,
whenever any interest, fees or commission to be paid hereunder or
in connection herewith is to be calculated on the basis of any
period of time that is other than the number of days in such
year, the yearly rate to which the rate used in such calculation
is equivalent is the rate so used multiplied by the actual number
of days in the calendar year in which the same is to be
ascertained and divided by 360, 365 or 366, as applicable. The
rates of interest under the Agreement are nominal rates, and not
effective rates or yields. The principle of deemed reinvestment
of interest does not apply to any interest calculation under this
Agreement."
83. Section 12.12(a) of the Credit Agreement is hereby amended as follows:
(i) inserting the text "or extend the stated maturity of the
Total Canadian Revolving Loan Commitment beyond the Canadian
Revolving Loan Maturity Date" immediately after the text
"Revolving Loan Maturity Date" appearing in clause (i) of the
first proviso thereof;
(ii) inserting the text "(or Face Amount, as applicable)"
immediately after the text "or reduce the principal amount"
appearing in clause (i) of the first proviso thereof;
(iii) inserting the text "1.01(g)," immediately after the
text "1.01(f)," appearing in clause (vi) of the first proviso
thereof; and
(iv) inserting the text "and Schedule XI" immediately after
the text "and 11.06" appearing in clause (vi) of the first
proviso thereof.
84. Section 12.12(b) of the Credit Agreement is hereby amended by restating
clause (B) of said Section in its entirety as follows:
"(B) terminate such non-consenting Lender's Revolving Loan
Commitment, Canadian Revolving Loan Commitment and/or Incremental
Term Loan Commitment, as the case maybe (if such Lender's consent
is required as a result of its Revolving Loan Commitment,
Canadian Revolving Loan
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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 if any Bankers' Acceptance Loans
(or B/A Discount Notes) of such non-consenting Lender are
outstanding at the time of such termination (which do not mature
at the time of such termination), at the option of such
non-consenting Lender, (i) the Canadian Revolving Borrowers shall
repay the Face Amount of such Bankers' Acceptance Loans (and B/A
Discount Notes) to such non-consenting Lender or (ii) the
Canadian Revolving Borrowers shall enter into cash collateral
arrangements with such non-consenting Lender and the
Administrative Agent as are reasonably satisfactory to them in
respect of such Bankers' Acceptance Loans (and B/A Discount
Notes),"
85. The Credit Agreement is hereby further amended by (i) adding Schedule
XI hereto as Schedule XI thereto, (ii) adding the text "Schedule XI Provisions
Relating to Bankers' Acceptances, Bankers' Acceptance Loans and B/A Discount
Notes" to the Table of Contents of the Credit Agreement immediately below the
text "Schedule X Certain Leasehold Sites" appearing therein and (iii) adding the
text "Exhibit B-6 Form of Canadian Revolving Note" to the Table of Contents of
the Credit Agreement immediately below the text "Exhibit B-5 Form of Swingline
Note".
86. The Credit Agreement is hereby further amended by (i) replacing
Exhibits A-1 and A-2 thereto with Exhibits A-1 and A-2 attached hereto, (ii)
adding Exhibit B-6 attached hereto as Exhibit B-6 of the Credit Agreement and
(iii) appending Schedule I of the Credit Agreement with the information on
Schedule I attached hereto .
B. Amendments to US Pledge Agreement
---------------------------------
1. Section 3.1 of the US Pledge Agreement is hereby amended by inserting
the following new sentence immediately after the last sentence of said Section:
"Notwithstanding anything to the contrary contained in this
Agreement or in any other Security Document, the pledge by
any Pledgor under this Agreement or under any other Security
Document of the Voting Stock of any Foreign Corporation in
excess of 65% of the Voting Stock of such Foreign
Corporation, and the term "Collateral" (as defined herein or
in any such other Security Document) to the extent including
such excess, shall, in each case, (i) only secure the
obligations owing by a Foreign Credit Party to a Secured
Creditor under any Credit Document (or any guaranty thereof
by a US Credit Party) and (ii) except as provided in
preceding clause (i), not secure any obligations (direct or
indirect) owing by a US Credit Party to a Secured Creditor
under any Credit Document. "
C. Agreements
----------
1. Notwithstanding anything to the contrary contained in the Credit
Agreement (including Sections 3.02 and 12.12(a) thereof), on the First Amendment
Effective Date (as
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defined below) the Borrower and the Lenders hereby agree that (i) the Revolving
Loan Commitment of each Revolving Lender listed on Schedule I hereto shall be
permanently reduced by the Dollar Equivalent of the Canadian Revolving
Commitment set forth opposite such Revolving Lender's (or its Canadian
affiliate's) name on Schedule I hereto, (ii) Schedule I of the Credit Agreement
shall be deemed modified to reflect the Revolving Loan Commitments and Canadian
Revolving Loan Commitments after giving effect to immediately preceding clause
(i), and (iii) immediately after giving effect to the agreements made in
immediately preceding clauses (i) and (ii) above, take such actions (including,
without limitation, making any repayments required thereby), if any, required
under Section 4.02(a) of the Credit Agreement.
2. Immediately after giving effect to the reductions to the Revolving Loan
Commitments pursuant to Section C.1. of this Amendment, each Revolving Borrower
shall, in coordination with the Administrative Agent, repay outstanding
Revolving Loans of certain of the Revolving Lenders, and incur additional
Revolving Loans from certain other Revolving Lenders, in each case to the extent
necessary so that all of the Revolving Lenders participate in each outstanding
Borrowing of Revolving Loans pro rata on the basis of their respective Revolving
Loan Commitments (immediately after giving effect to the reductions to the
Revolving Loan Commitments pursuant to Section C.1. of this Amendment) and with
the Revolving Borrowers being obligated to pay to the respective Revolving
Lenders any costs of the type referred to in Section 1.11 of the Credit
Agreement in connection with any such repayment and/or Borrowing.
D. Miscellaneous Provisions
------------------------
1. Silgan represents and warrants that neither it nor any of its
Subsidiaries has incurred any Incremental Term Loans pursuant to Section 1.14 of
the Credit Agreement or any Incremental Revolving Loan Commitments pursuant to
Section 1.15 of the Credit Agreement, in either case prior to the Initial
Effective Date (as defined below).
2. In order to induce the Lenders to enter into this Amendment, each
Borrower hereby represents and warrants to each of the Lenders that (i) all of
the representations and warranties contained in the Credit Agreement and in the
other Credit Documents are true and correct in all material respects on and as
of the Initial Effective Date and the First Amendment Effective Date, both
before and after giving effect to this Amendment (unless such representations
and warranties 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), and (ii) there exists no Default or Event of
Default on the Initial Effective Date and First Amendment Effective Date, both
before and after giving effect to this Amendment.
3. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
4. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
executed by all the parties hereto shall be lodged with Silgan and the
Administrative Agent.
-41-
5. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
6. The provisions of Section A. of this Amendment (excluding those
provisions relating exclusively to the Total Canadian Revolving Loan Commitment
and the ability to incur any Canadian Revolving Loans pursuant thereto) and
Section B of this Amendment shall become effective on the date (the "Initial
Effective Date") when: (i) each Borrower (including each Canadian Revolving
Borrower) and the Required Lenders (determined without giving effect to this
Amendment) shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of telecopier) the same
to the Administrative Agent at the applicable Notice Office; and (ii) each
Canadian Revolving Borrower shall have satisfied each of the requirements set
forth in Section 8.11 of the Credit Agreement to the same extent as if such
Canadian Revolving Borrower was a Credit Party on the Initial Borrowing Date
(including all actions pursuant to clause (iv) of such Section 8.11 and receipt
by the Administrative Agent from Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, an opinion
addressed to the Administrative Agent and each of the Lenders and dated the
Initial Effective Date covering such matters incident to the transactions
contemplated herein as the Administrative Agent may reasonably request).
7. The provisions of Section C. of this Amendment and the provisions of
Section A of this Amendment relating to the Total Canadian Revolving Loan
Commitment and the ability to incur Canadian Revolving Loans pursuant thereto
shall become effective on the date (the "First Amendment Effective Date") when
(i) each Revolving Lender existing on such date and each Canadian Revolving
Lender listed on Schedule I attached hereto shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered
(including by way of telecopier) the same to the Administrative Agent at the
applicable Notice Office and (ii) the Initial Effective Date shall have
occurred.
8. Each Person providing a Canadian Revolving Loan Commitment on the First
Amendment Effective Date hereby represents to the Administrative Agent, Silgan
and each Canadian Revolving Borrower, that such Person is: (a) not a
non-resident of Canada for purposes of the Income Tax Act (Canada); (b) an
authorized foreign bank deemed to be resident in Canada for purposes of Part
XIII of the Income Tax Act (Canada) in respect of all amounts payable to such
Person pursuant to any loans or extensions of credit under the Credit Agreement
(as in effect of the First Amendment Effective Date); (c) a Canadian
partnership, within the meaning of that term for the purposes of paragraph
212(13.1)(b) of the Income Tax Act (Canada); or (d) not liable for withholding
tax pursuant to Part XIII of the Income Tax Act (Canada) in respect of all
amounts payable to such Person with respect to any loans made by such Person
under the Credit Agreement (as in effect on the First Amendment Effective Date).
9. From and after each of the Initial Effective Date and the First
Amendment Effective Date, all references in the Credit Agreement and each of the
other Credit Documents to the Credit Agreement shall be deemed to be references
to the Credit Agreement as modified hereby on the Initial Effective Date or the
First Amendment Effective Date, as the case may be.
* * *
-42-
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered as of the date first above written.
SILGAN HOLDINGS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------------------
Title: Senior Vice President, General Counsel
and Secretary
SILGAN CONTAINERS CORPORATION
SILGAN PLASTICS CORPORATION
SILGAN CONTAINERS MANUFACTURING
CORPORATION
SILGAN CAN COMPANY
827599 ONTARIO INC.
SILGAN PLASTICS CANADA INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
---------------------------------------------
Title: Vice President and Secretary
DEUTSCHE BANK AG NEW YORK BRANCH,
Individually and as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Vice President
SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE CREDIT
AGREEMENT AND US PLEDGE AGREEMENT, DATED AS OF
DECEMBER 19, 2005, AMONG SILGAN HOLDINGS INC.,
SILGAN CONTAINERS CORPORATION, SILGAN PLASTICS
CORPORATION, SILGAN CONTAINERS MANUFACTURING
CORPORATION, SILGAN CAN COMPANY, SILGAN PLASTICS
CANADA INC., 827599 ONTARIO INC., THE LENDERS FROM
TIME TO TIME PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE
AGENT, AND ACKNOWLEDGED AND AGREED TO BY EACH OF
THE OTHER CREDIT PARTIES.
NAME OF INSTITUTION:
DEUTSCHE BANK AG, CANADA BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Title: Managing Director and Principal Officer
BANK OF AMERICA, N.A. (CANADA BRANCH)
By: /s/ ▇▇▇▇▇▇ Sales ▇▇ ▇▇▇▇▇▇▇
----------------------------------------------
Title: Assistant Vice President
AIB DEBT MANAGEMENT LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
Investment Advisor to AIB Debt
Management Limited
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
Investment Advisor to AIB Debt
Management Limited
ALLIED IRISH BANKS, P.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
BANK LEUMI USA
By: /s/ ▇▇▇▇▇ ▇▇▇ Hong
----------------------------------------------
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
BANK OF CHINA, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
Title: Deputy General Manager
THE BANK OF EAST ASIA, LTD, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------------
Title: SVP & Chief Lending Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
Title: SVP & Chief Credit Officer
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
BNP PARIBAS
By: /s/ ▇▇▇▇ ▇▇▇▇
----------------------------------------------
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
BRAYMOOR & CO.
By: Bear ▇▇▇▇▇▇▇ Asset Management, Inc. as its
attorney-in-fact
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Managing Director
BEAR ▇▇▇▇▇▇▇ INSTITUITIONAL LOAN MASTER FUND
By: Bear ▇▇▇▇▇▇▇ Asset Management, Inc. as its
attorney-in-fact
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Managing Director
▇▇▇▇▇ ▇▇▇ COMMERCIAL BANK, LTD., NEW YORK
By: /s/ ▇▇▇ ▇.▇. ▇▇▇▇
----------------------------------------------
Title: VP & General Manager
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
----------------------------------------------
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS
By: /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------------------------
Title: Senior Vice President
COBANK, ACB
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------------
Title: Assistant Vice President
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Title: Assistant Treasurer
DZ BANK AG-DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Title: Senior Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
ERSTE BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President Erste Bank New York
Branch
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
Title: First Vice President
FIRST INDIANA BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
FORTIS CAPITAL CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
Title: Managing Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------------
Title: Managing Director
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------------
Title: Duly Authorized Signatory
ING CAPITAL LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Director
JPMORGAN CHASE BANK, N.A.
By: /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Lincoln ▇▇▇▇▇▇
----------------------------------------------
Title: Senior Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Senior Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank
NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------------
Title: Account Officer
NORTH FORK BUSINESS CAPITAL
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
Title: Senior Vice President
PEOPLE'S BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------------
Title: Executive Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------------
Title: Executive Director
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------------
Title: Senior Vice President
SOVEREIGN BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Title: Senior Vice President
UFJ BANK LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. Small
----------------------------------------------
Title: Senior Vice President & Area Manager
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Assistant Vice President
UNITED OVERSEAS BANK LIMITED, NY AGENCY
By: /s/ ▇▇▇▇, ▇▇▇▇▇ Yew
----------------------------------------------
Title: FVP & General Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Title: VP & Deputy General Manager
U.S. BANK N.A.
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
U.S. Bank, N.A.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
▇▇▇▇▇▇▇ BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
ACKNOWLEDGED AND AGREED
AS OF THE DATE WRITTEN ABOVE:
SILGAN LLC
By: Silgan Containers Corporation,
as Manager
SILGAN CORPORATION
RXI PLASTICS, INC.
SILGAN CLOSURES CORPORATION
SILGAN CLOSURES LLC
SILGAN CLOSURES HOLDING COMPANY
SILGAN CLOSURES INTERNATIONAL HOLDING COMPANY
SILGAN EQUIPMENT COMPANY
SILGAN TUBES CORPORATION
SILGAN TUBES HOLDING COMPANY
828745 ONTARIO INC.
827599 ONTARIO INC.
SILGAN PLASTICS CANADA INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
-------------------------------------------
Title: Vice President and Secretary
SCHEDULE XI
-----------
Provisions Relating to Bankers' Acceptances, Bankers' Acceptance
----------------------------------------------------------------
Loans and B/A Discount Notes
----------------------------
BANKERS' ACCEPTANCES
Acceptances and Drafts.
1. Each Canadian Revolving Lender severally agrees, on the terms and
conditions of the Credit Agreement and this Schedule XI and from time to time on
any Business Day prior to the Canadian Revolving Loan Maturity Date (i) in the
case of a B/A Lender to create Bankers' Acceptances by accepting Drafts and to
purchase such Bankers' Acceptances in accordance with Section 6 of this Schedule
XI and the Credit Agreement and (ii) in the case of a Non-B/A Lender, to
purchase completed Drafts (which have not and will not be accepted by such
Lender or any other Canadian Incremental Term Loan Lender) in accordance with
Section 6 of this Schedule XI and the Credit Agreement.
2. Each Bankers' Acceptance shall be in a minimum Face Amount of
Cdn.$1,000,000 and in an integral multiple of Cdn.$100,000, and shall consist of
the creation and purchase of Bankers' Acceptances or the purchase of Drafts on
the same day, in each case for the B/A Discount Proceeds, effected or arranged
by the Canadian Revolving Lenders in accordance with Section 6 of this Schedule
XI and the Credit Agreement and their respective Canadian Revolving Loan
Commitments.
3. If the Administrative Agent or Canadian Sub-Agent determines that the
Bankers' Acceptances to be created and purchased or Drafts to be purchased on
the making of any Bankers' Acceptance Loan (upon a conversion or otherwise) will
not be created and purchased ratably by the Canadian Revolving Lenders in
accordance with this Schedule XI and the Credit Agreement, then (i) the
requested Face Amount of Bankers' Acceptances and Drafts shall be reduced to
such lesser amount as the Administrative Agent or Canadian Sub-Agent determines
will permit ratable sharing and (x) the amount by which the requested Face
Amount shall have been so reduced shall be converted or continued, as the case
may be, as a Canadian Prime Rate Loan to be made contemporaneously with the
making of such Bankers' Acceptance Loan or (y) each Canadian Revolving Borrower
may cancel part of, or withdraw in its entirety, the related Notice of
Borrowing, or (ii) the Administrative Agent or Canadian Sub-Agent may, acting
reasonably at the request of any Canadian Revolving Borrower, deem any Notice of
Borrowing delivered in such circumstances of a Bankers' Acceptance Loan to be,
in its entirety, a Notice of Borrowing for Canadian Prime Rate Loans, and make a
Canadian Prime Rate Loan to such Canadian Revolving Borrower in the full amount
as originally requested as a Bankers' Acceptance Loan in such Notice of
Borrowing.
Form of Drafts.
4. Each Draft presented by a Canadian Revolving Borrower shall (i) be in a
minimum Face Amount of Cdn. $1,000,000 and in an integral multiple of
Cdn.$100,000, (ii) be dated the date of the making of such Bankers' Acceptance
Loan, and (iii) mature and be payable by the Canadian Revolving Borrower (in
common with all other Drafts presented in connection with such Bankers'
Acceptance Loan) on a Business Day which occurs approximately 30, 60, 90
or 180 days (or such longer period as the Administrative Agent or Canadian
Sub-Agent and each Canadian Revolving Lender may agree) at the election of the
relevant Canadian Revolving Borrower after the Drawing Date and on or prior to
the Maturity Date.
Procedure for Drawing
5. Each Bankers' Acceptance Loan shall be made in accordance with the
notice provisions given by any Canadian Revolving Borrower by way of a Notice of
Borrowing to the Canadian Sub-Agent as set forth in Section 1.03 of the Credit
Agreement.
6. Not later than 2:00 p.m. (Toronto time) on an applicable Drawing Date,
each Canadian Revolving Lender shall complete one or more Drafts in accordance
with the Notice of Borrowing and either (i) accept the Drafts and purchase the
Bankers' Acceptances so created for the B/A Discount Proceeds, or (ii) purchase
the Drafts for the B/A Discount Proceeds. In each case, upon receipt of the B/A
Discount Proceeds and upon fulfillment of the applicable conditions set forth in
Section 5.02 of the Credit Agreement, the Canadian Sub-Agent shall make funds
available to the relevant Canadian Revolving Borrower.
7. Each Canadian Revolving Borrower shall, at the request of any Canadian
Revolving Lender, issue one or more non-interest bearing promissory notes (each
a "B/A Discount Note") payable on the date of maturity of the unaccepted Draft
referred to below in this section, in such form as such Canadian Revolving
Lender may specify and in a principal amount equal to the Face Amount of, and in
exchange for, any unaccepted Drafts which the Canadian Revolving Lender has
purchased in accordance with Section 6 of this Schedule XI and the Credit
Agreement.
8. Bankers' Acceptances purchased by a Canadian Revolving Lender may be
held by it for its own account until the contract maturity date or sold by it at
any time prior to that date in any relevant Canadian market in such Lender's
sole discretion. Each Canadian Revolving Borrower hereby renounces, and shall
not claim or request or require any Lender to claim, any days of grace for the
payment of any Bankers' Acceptance.
Presigned Draft Forms.
9. To enable the Canadian Revolving Lenders to create Bankers' Acceptances
or complete Drafts in the manner specified in this Schedule XI and the Credit
Agreement, each Canadian Revolving Borrower shall supply each Canadian Revolving
Lender with such number of Drafts as it may reasonably request, duly endorsed
and executed on behalf of such Canadian Revolving Borrower. No Canadian
Revolving Lender shall be responsible or liable for its failure to accept and/or
purchase a B/A Instrument if the cause of such failure is, in whole or in part,
due to the failure of any Canadian Revolving Borrower to provide duly executed
and endorsed B/A Instruments to such Canadian Revolving Lender on a timely
basis. Each Canadian Revolving Lender will exercise such care in the custody and
safekeeping of Drafts as it would exercise in the custody and safekeeping of
similar property owned by it and will, upon request by the Canadian Revolving
Borrower, promptly advise the Canadian Revolving Borrower of the number and
designations, if any, of uncompleted Drafts held by it for the Canadian
Revolving Borrower. The signature of any officer of the Canadian Revolving
Borrower on a Draft may be
mechanically reproduced and B/A Instruments bearing facsimile signature shall be
binding upon the Canadian Revolving Borrower as if they had been manually
signed. Even if the individuals whose manual or facsimile signature appears on
any B/A Instrument no longer hold office on the date of signature, at the date
of its acceptance by the Canadian Revolving Lender or at any time after such
date, any B/A Instrument so signed shall be valid and binding upon each Canadian
Revolving Borrower.
10. Upon the request of any Canadian Revolving Lender, each Canadian
Revolving Borrower shall provide to such Canadian Revolving Lender a power of
attorney to complete, sign, endorse and issue B/A Instruments on behalf of such
Canadian Revolving Borrower in form and substance satisfactory to such Canadian
Revolving Lender. Alternatively, at the request of any Canadian Revolving
Lender, each Canadian Revolving Borrower shall deliver to such lender a
"depository ▇▇▇▇" which complies with the requirements of the Depository Bills
and Notes Act (Canada), and hereby consents to the deposit of any Bankers'
Acceptance in the form of a depository ▇▇▇▇ in the book-based debt clearance
systems maintained by the Canadian Depository of Securities Limited or other
recognized clearing house. In such circumstances, the delivery of Bankers'
Acceptances shall be governed by the clearance procedures established
thereunder.
Payment, Conversion or Renewal of B/A Instruments.
11. Upon the maturity of a B/A Instrument, each Canadian Revolving Borrower
may (i) elect to issue a replacement B/A Instrument by giving a Notice of
Borrowing in accordance with Section 1.03 of the Credit Agreement, (ii) elect to
have all or a portion of the Face Amount of the B/A Instrument converted to a
Canadian Prime Rate Loan by giving a Notice of Borrowing in accordance with
Section 1.03 of the Credit Agreement, or (iii) pay, on or before 12:00 Noon
(Toronto time) on the maturity date for the B/A Instrument, an amount in
Canadian Dollars equal to the Face Amount of the B/A Instrument (notwithstanding
that the Canadian Revolving Lender may be the holder of it at maturity). Any
such payment shall satisfy the Canadian Revolving Borrower's obligations under
the B/A Instrument to which it relates and the relevant Canadian Revolving
Lender shall then be solely responsible for the payment of the B/A Instrument.
12. If any Canadian Revolving Borrower fails to pay any B/A Instrument when
due or issue a replacement in the Face Amount of such B/A Instrument pursuant to
Section 11 of this Schedule XI or fails to elect to convert all or a portion of
the Face Amount of such B/A Instrument to a Canadian Prime Rate Loan pursuant to
clause (ii) of Section 11 of this Schedule XI, the unpaid amount due and payable
shall be converted to a Canadian Prime Rate Loan made by the Canadian Revolving
Lenders ratably under the applicable Tranche and shall bear interest calculated
and payable as provided in Section 1.08 of the Credit Agreement. This conversion
shall occur as of the due date and without any necessity for such Canadian
Revolving Borrower to give any notice thereof.
13. On any date on which a Bankers' Acceptance Loan is created, purchased,
converted or continued, the Canadian Sub-Agent shall be entitled to net all
amounts payable on such date by the Canadian Sub-Agent to a Canadian Revolving
Lender against all amounts payable on such date by such Canadian Revolving
Lender to the Canadian Sub-Agent.
Similarly, on any such date each Canadian Revolving Borrower hereby authorizes
each Canadian Revolving Lender to net all amounts payable on such date by such
Canadian Revolving Lender to the Canadian Sub-Agent for the account of such
Canadian Revolving Borrower, against all amounts payable on such date by such
Canadian Revolving Borrower to such Canadian Revolving Lender in accordance with
the Canadian Sub-Agent's calculations.
14. Except for the requirement to pay immediately upon acceleration of the
Canadian Revolving Loans pursuant to Section 9 of the Credit Agreement, each
Canadian Revolving Borrower shall pay to the Canadian Sub-Agent an amount in
Canadian Dollars equal to the Face Amount of each Bankers' Acceptance Loan
requested by such Canadian Revolving Borrower on the maturity date thereof
(notwithstanding that the Canadian Revolving Lender may be the holder of it at
maturity).
Circumstances Making Bankers' Acceptances Unavailable.
15. If, for any reason a market for bankers' acceptances does not exist at
any time or the Canadian Revolving Lenders cannot for other reasons, after
reasonable efforts, readily sell bankers' acceptances or perform their other
obligations under this Agreement with respect to bankers' acceptances, in each
case, as determined in good faith by the Administrative Agent or Canadian
Sub-Agent acting reasonably and in respect of which the Administrative Agent or
Canadian Sub-Agent shall have given notice to the Canadian Revolving Borrowers
of the occurrence and particulars thereof, there is no market for Bankers'
Acceptances, (i) the right of each Canadian Revolving Borrower to request a
Bankers' Acceptance Loan shall be suspended until the circumstances causing a
suspension no longer exist, (ii) any applicable Notice of Borrowing which is
outstanding shall either: (x) be cancelled and the requested Bankers' Acceptance
Loan shall not be made or (y) the Administrative Agent or Canadian Sub-Agent
may, acting reasonably and taking into account any circumstances then affecting
the Canadian Revolving Lenders and the availability of Loans, at the direction
of such Canadian Revolving Borrower, deem the aforementioned Notice of Borrowing
a Notice of Borrowing for Canadian Prime Rate Loans.
16. The Administrative Agent or Canadian Sub-Agent shall promptly notify
each Canadian Revolving Borrower of the suspension of such Canadian Revolving
Borrower's right to request a Bankers' Acceptance Loan and of the termination of
any suspension.
* * *