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EXHIBIT 10.3
AMENDMENT NO. 1
AND
WAIVER NO. 1
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 1 AND WAIVER NO. 1 TO AMENDED AND RESTATED CREDIT
AGREEMENT ("Agreement") is being executed and delivered as of November 12,
1997, by and among United States Can Company, a Delaware corporation (the
"Borrower"), the financial institutions from time to time party to the Amended
and Restated Credit Agreement referred to below (collectively, the "Lenders",
and each individually, a "Lender"), and Bank of America National Trust and
Savings Association (as successor to Bank of America Illinois), as the "Agent"
for the Lenders (the "Agent"). Undefined capitalized terms which are used
herein shall have the meanings ascribed to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent are parties to that
certain Amended and Restated Credit Agreement dated as of April 25, 1997 (the
"Credit Agreement"), pursuant to which the Lenders have agreed to provide,
subject to the terms and conditions contained therein, certain loans and other
financial accommodations to the Borrower;
WHEREAS, the Borrower has failed to comply with each of the following
(hereinafter, collectively, the "Covenant Defaults"): (a) its Total Leverage
Ratio, as set forth in clause (b) of Section 6.3 of the Credit Agreement, with
respect to its four fiscal quarter period ending on October 5, 1997, (b) its
Interest Coverage Ratio, as set forth clause (e) of Section 6.3 of the Credit
Agreement, with respect to its four fiscal quarter period ending on October 5,
1997, and (c) the covenant set forth in Section 6.2(g) of the Credit Agreement,
by virtue of its consummation of the sale, in bulk, of the inventory relating
to its metal pail business located in North Brunswick, New Jersey for
approximately $1,200,000 in aggregate consideration at a time during which
Events of Default resulting solely from the Borrower's noncompliance with the
financial covenants described in clauses (a) and (b) of this paragraph were
continuing; and
WHEREAS, the Borrower requested, and subject to the terms and
conditions hereof, the Lenders and the Agent agreed (i) to waive the Covenant
Defaults, (ii) to amend the definition of EBITDA solely with respect to the
calculation of its Total Leverage Ratio and Interest Coverage Ratio for its
fiscal quarter ending October 5, 1997 to exclude the effect of a restructuring
charge of up to $35,000,000 for such period, (iii) to amend Section 6.2(b) of
the Credit Agreement to permit the Borrower to make an investment in a joint
venture based in Argentina in which the Borrower or its Subsidiaries will have
a minority interest, provided that such investment, net of the proceeds of the
sale by the Borrower and its Subsidiaries of certain excess equipment to such
joint venture and the provision of certain related services, does not exceed
$100,000, (iv) to amend Section 6.2(c) of the Credit Agreement to permit the
Borrower
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to make dividends to Parent to facilitate Parent's repurchase of Parent
Subordinated Debt for aggregate consideration not to exceed the lesser of
$40,000,000 and the aggregate amount of net cash proceeds received by the
Borrower in connection with a sale of the business assets of its Metal Services
Division, (v) to amend Section 6.2(f) of the Credit Agreement to permit the
Borrower to guaranty indebtedness in an aggregate maximum amount not to exceed
$10,000,000 of Persons in which the Borrower holds a minority equity investment
and (vi) to amend the definition of Permitted Disposition to include, subject
to certain conditions, the sale of substantially all of the business assets of
the Borrower's Metal Services business;
NOW, THEREFORE, in consideration of the foregoing premises, the terms and
conditions stated herein and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Borrower, the Lenders and
the Agent, such parties hereby agree as follows:
1. Amendment No. 1 to Credit Agreement. Subject to Paragraph 3 of this
Agreement, and effective as of the date of this Agreement, the Credit Agreement
is hereby amended as follows (section and schedule references herein refer to
those of the Credit Agreement):
(a) Section 2.2.2 is deleted in its entirety and replaced with the
following provision:
"SECTION 2.2.2. Mandatory. (a) The Commitment Amount shall be
automatically and permanently reduced pursuant to this subsection by
$12,500,000 on April 25, 2000 and by $12,500,000 on April 25, 2001;
provided, however, if the Incremental Syndication shall have not occurred,
no reduction to the Commitment Amount shall occur pursuant to this
subsection on April 25, 2000 and, on April 25, 2001, the Commitment Amount
shall be automatically and permanently reduced pursuant to this subsection
by $10,000,000.
(b) If the Metal Services Sale Date occurs prior to calendar year
2001, the Commitment Amount shall be automatically and permanently reduced
(i) on the Metal Services Sale Date by $25,000,000 and (ii) on each Metal
Services Reduction Date by additional amounts equal to the applicable
Metal Services Reduction Increment with respect to each such Metal
Services Reduction Date. If the Metal Services Sale Date occurs after
calendar year 2000, the Commitment Amount shall be automatically and
permanently reduced on the Metal Services Sale Date by an amount equal to
the lesser of $40,000,000 and the amount of the Metal Services Gross
Proceeds received as of the Metal Services Sale Date. Nothing in this
subsection shall be construed to permit any such sale which is otherwise
prohibited by Section 6.2(g)."
(b) Section 2.8.1 is amended to add the following provision immediately
following clause (d) of such section, to change the period at the end of such
clause to a semicolon, and to add the word "and" to the end of such clause:
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"(e) shall, immediately upon receipt thereof, make
mandatory prepayments of the Loans in amounts equal to the aggregate
cash proceeds, net of transaction costs, from time to time received
by or for the benefit of the Borrower in connection with any sale or
sales of any of the Metal Service Assets outside the ordinary course
of business (provided, that, nothing in this subsection shall be
construed to permit any such sale which is otherwise prohibited by
Section 6.2(g))."
(c) Section 6.2(b) is amended to delete the word "and" which appears
after clause (v) of such section, to add the following provision immediately
after such clause, and to redesignate clause (vi) of such section as clause
"(vii)" of such section:
"(vi) Investments by the Borrower or any Subsidiary in an
Argentinean joint venture, provided that (A) the aggregate amount of
such Investments, minus the sum of (x) the proceeds of the sale by
the Borrower and its Subsidiaries to such venture of certain
refurbished excess aerosol manufacturing equipment having an
aggregate net book value not exceeding $800,000 prior to
refurbishment and such transfers and (y) the proceeds of
transportation, installation and technical support services provided
by the Borrower and its Subsidiaries to such venture with respect to
such equipment, does not exceed $100,000, and (B) the aggregate gross
amount of such Investments does not exceed $4,500,000."
(d) Section 6.2(c) is amended to delete the word "and" which appears
after clause (iii)(B) of such section, and to add the following provisions
immediately after clause (iii)(C) of such section:
"and (D) to repurchase Parent Subordinated Notes; provided that, with
respect to any such repurchase, (1) the aggregate consideration paid and
payable with respect to the proposed repurchase and all prior repurchases
does not exceed the lesser of $40,000,000 and the amount of aggregate cash
proceeds, net of transaction costs, received by or for the benefit of the
Borrower prior to such proposed repurchase in connection with the
consummation of the sales or series of related or unrelated sales of any
of the Metal Services Assets outside the ordinary course of business, (2)
all such aggregate net cash proceeds from the sales of Metal Services
Assets shall have been applied to the repayment of outstanding principal
balance of the Loans pursuant to Section 2.8.1(e), (3) the Commitment
Amount shall have been reduced pursuant to Section 2.2.2(b), (4) prior to
making of any such Restricted Payment, the Borrower shall have certified
to the Agent and the Lenders that such sale or sales of the Metal Services
Assets have been consummated and that such sales are not prohibited by the
terms of this Agreement or the Parent Indenture, and shall have set forth
in such certificate the aggregate amount of net cash proceeds, and gross
cash and noncash proceeds, received by or for the benefit of the Borrower
in connection with such sales, (5) no Default or Event of Default exists
or would result from the Borrower's making of such Restricted Payments, or
from Parent's repurchasing such Parent Subordinated Notes and (6) neither
such Restricted Payments by
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the Borrower, nor such repurchases by Parent, violates any term or
provision of the Parent Indenture;"
(e) Section 6.2(f) is amended to delete the word "and" which appears
at the end of clause (iii) of such section, to replace such word with a comma,
to delete the parenthetical and proviso which appear at the end of clause (iv)
of such section, and to add the following provision immediately following
clause (iv) thereof:
"and (v) for the benefit of creditors of any Person in which the
Borrower holds a minority equity Investment; provided that (1) each
Guaranty permitted under clauses (i), (iii), (iv) or (v) shall be limited
in amount to a stated maximum Dollar liability, (2) the Guaranties
permitted under clause (iii) shall be limited in amount to a stated
maximum Dollar liability of $30,000,000 in the aggregate, (3) each
Guaranty permitted under clause (ii) shall be limited in amount to the
aggregate purchase price of goods purchased by the applicable Foreign
Subsidiary from such supplier or vendor, (4) the Guaranties permitted
under clause (iv) shall be limited in amount to a stated maximum Dollar
liability of $20,000,000 in the aggregate, (5) the Guaranties permitted
under subclause (C) of clause (iv) shall be limited in amount to a stated
maximum Dollar liability of $10,000,000 in the aggregate, (6) the
Guaranties permitted under clause (v) shall be limited in amount to a
stated maximum Dollar liability of $10,000,000 in the aggregate and (7)
after the incurrence of any such Guaranty permitted under this Section
6.2(f), there would exist no Default or Event of Default."
(f) Section 6.2(i) is amended to add the following phrase to clause
(iii) of such section immediately preceding the proviso of such clause:
"other than as may be permitted by Section 6.2(c)(iii)(D)"
(g) Section 6.3 is amended to add the following provision to the end
of such section:
"(f) Fiscal Periods. Notwithstanding anything in this section
or in the definitions used in this section to the contrary, all references
herein or therein to a date which is the first or last day of a calender
quarter shall be construed to refer to the first or last day (as
applicable) of the Borrower's fiscal quarterly period which occurs closest
to such calendar day (for example, a reference herein to March 31, 2000
shall mean and refer to the last day of the Borrower's fiscal quarter
ending on or about March 31, 2000, and a reference herein to April 1, 2000
shall mean and refer to the first day of the Borrower's fiscal quarter
beginning on or about April 1, 2000).
(h) Schedule I is amended to add the following provision to the end
of the definition of "EBITDA":
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"; provided, however, that, solely for purposes of computing the
Borrower's and its consolidated Subsidiaries' EBITDA to determine the
Borrower's compliance with the financial covenants set forth in Sections
6.3(b) and 6.3(e) for any four (4) fiscal quarter period which includes
the Borrower's fiscal quarter ended October 5, 1997, no adjustment shall
be made pursuant to clause (iv) of this definition and, instead, the
amount of EBITDA otherwise calculated pursuant to this definition shall be
increased by the aggregate amount of restructuring charges incurred by the
Borrower and its Subsidiaries during the Borrower's fiscal quarter ended
October 5, 1997, but only to the extent such amount does not exceed
$35,000,000."
(i) Schedule I is further amended to delete the word "and" at the end
of clause (d) of the definition of "Permitted Disposition" and to add the
following provisions to the end of such definition:
and (f) the sale for fair value by the Borrower of substantially all of
the Metal Services Assets outside the ordinary course of its business,
provided that (i) the Metal Services Gross Proceeds with respect thereto
is greater than or equal to $35,000,000, (ii) at least 90% of such Metal
Services Gross Proceeds are payable by the purchaser of such Metal
Services Assets in cash, or by wire transfer of immediately available
funds, on the Metal Services Sale Date or, with respect to inventory,
within six (6) months thereafter (plus any applicable grace periods),
(iii) the Borrower shall make a mandatory prepayment with respect thereto
in accordance with Section 2.8.1(e), (iv) the Commitment Amount shall be
reduced in connection therewith pursuant to Section 2.2.2(b) and (v) no
Default or Event of Default shall have occurred and be continuing as of
the Metal Services Sale Date."
(j) Schedule I is further amended to add the following definitions to
such schedule in their respective alphabetical locations:
"Metal Services Assets" means the assets of the Borrower's Metal
Services business, including, without limitation, the inventory, property,
plant and equipment relating to its facilities located at Chicago Litho on
Pulaski Avenue in Chicago, Illinois, at Chicago Metal Services on Pulaski
Avenue in Chicago, Illinois, and at the facilities located in Brookfield,
Illinois, Alsip, Illinois (Midwest Litho) and Trenton, New Jersey.
"Metal Services Gross Proceeds" means the aggregate gross cash and
noncash proceeds received by or for the benefit of the Borrower in connection
with the sale or series of related or unrelated sales of the Metal Services
Assets outside the ordinary course of the Borrower's business.
"Metal Services Reduction Increment" means, as of any Metal Services
Reduction Date, (a) if the Metal Services Sale Date shall occur during calendar
years 1997 or 1998, an amount equal to the lesser of $5,000,000 and one-third
(1/3) of the amount, if any, by which the Metal Services Gross Proceeds
received prior to such Metal Services Reduction Date exceeds $25,000,000; (b)
if the Metal Services Sale Date shall occur during calendar year 1999, an
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amount equal to the lesser of $10,000,000 and one-half (1/2) of the amount, if
any, by which the Metal Services Gross Proceeds received prior to such Metal
Services Reduction Date exceeds $25,000,000; and (c) if the Metal Services Sale
Date shall occur after calendar year 1999, the lesser of $15,000,000 and the
amount, if any, by which the Metal Services Gross Proceeds received prior to
such Metal Services Reduction Date exceeds $25,000,000.
"Metal Services Reduction Date" means (a) if the Metal Services Sale
Date occurs during calendar year 1997 or 1998, each of April 25, 1999, April
25, 2000 and ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) if the Metal Services Sale Date occurs during
calendar year 1999, each of April 25, 2000 and April 25, 2001, and (c) if the
Metal Services Sale Date occurs during calendar year 2000, April 25, 2001.
"Metal Services Sale Date" means the date of the Borrower's
consummation of the sale of the Metal Services Assets outside the ordinary
course of the Borrower's business, or if such assets are sold in a series of
related or unrelated sales, the date of the Borrower's consummation of the
first of such sales.
2. Waiver No. 1 to the Credit Agreement. Subject to Paragraph 3 of
this Agreement, and effective as of the date of this Agreement, each of the
Lenders and the Agent hereby waive each of the Covenant Defaults.
3. Effectiveness of this Agreement; Conditions Precedent. The
provisions of Paragraphs 1 and 2 shall be deemed to have become effective as of
the date of this Agreement, but such effectiveness shall be expressly
conditioned upon the Agent's receipt on or before November 19, 1997 of each of
the following:
(a) an originally-executed counterpart of this Agreement executed by
a duly authorized officer of the Borrower and each of the Majority Lenders; and
(b) payment of each "Amendment Fee" due and payable pursuant to, and
as defined in, Paragraph 4(e) hereof.
4. Representations, Warranties and Covenants. (a) The Borrower
hereby represents and warrants that this Agreement constitutes the legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms.
(b) The Borrower hereby represents and warrants that the statements
contained in the second "WHEREAS" clause in the introductory paragraphs of this
Agreement are true and correct.
(c) The Borrower hereby represents and warrants that its execution
anddelivery of this Agreement, and its performance hereafter of the Credit
Agreement as modified by this Agreement, have been duly authorized by all
necessary corporate action, do not violate any provision of its articles of
incorporation, bylaws or other charter documents, will not violate any
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law, regulation, court order or writ applicable to it, will not require the
approval or consent of any governmental agency, and do not require the approval
or consent of any third party under the terms of any contract or agreement to
which the Borrower, Parent or any Subsidiary of the Borrower or Parent is bound
(including, without limitation, the Parent Indenture).
(d) The Borrower hereby represents and warrants that, after giving
effect to all of the provisions of this Agreement, (i) no Default or Event of
Default has occurred and is continuing or will have occurred and be continuing
and (ii) all of the representations and warranties of the Borrower contained in
the Credit Agreement (other than representations and warranties which, in
accordance with their express terms, are made only as of a specified date) are,
and will be, true and correct as of the date of the Borrower's execution hereof
in all material respects as though made on and as of such date. The Borrower
hereby further represents and warrants that none of the Covenant Defaults would
have occurred if the amendment contemplated by Paragraph 1(h) hereof were
effective as of October 5, 1997.
(e) The Borrower hereby agrees to pay to the Agent, for the benefit
of each Lender which executes and delivers a counterpart to this Agreement
prior to November 19, 1997, an amendment fee in an amount equal to one-tenth of
one percent (0.10%) of such Lender's Commitment as in existence as of the date
hereof (the "Amendment Fee"), provided no such Amendment Fee shall be due or
payable unless the conditions set forth in Paragraph 3(a) shall have been
satisfied. Such payments shall be made in cash or in immediately available
funds to the Agent, for the benefit of each such Lender, promptly following the
later to occur of such Lender's execution and delivery of a counterpart to this
Agreement and the satisfaction of the conditions set forth in Paragraph 3(a).
5. Reference to and Effect on Credit Agreement. The Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed. Except as expressly set forth in Paragraph 2 hereof, neither the
execution, delivery or effectiveness of this Agreement shall operate as a
waiver of any right, power or remedy of the Agent or any Lender of any Default
or Event of Default under the Credit Agreement, all of which the Agent and the
Lenders hereby expressly reserve. Nothing contained herein shall require the
Agent or the Lender to hereafter waive any Default or Event of Default, whether
arising from the Borrower's subsequent noncompliance with the same provisions
subject to the express waivers provided in this Agreement or otherwise. The
Borrower, the Lenders and the Agent agree and acknowledge that this Agreement
constitutes a "Loan Document" under and as defined in the Credit Agreement.
6. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws and decisions of the State of Illinois.
7. Agent's Expenses. The Borrower hereby agrees to promptly
reimburse the Agent for all of the reasonable out-of-pocket expenses,
including, without limitation, attorneys' and paralegals' fees, it has
heretofore or hereafter incurred or incurs in connection with the preparation,
negotiation and execution of this Agreement.
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8. Counterparts. This Agreement may be executed in counterparts,
each of which shall be an original and all of which together shall constitute
one and the same agreement among the parties.
* * * *
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
day and year first above written.
UNITED STATES CAN COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President - Treasurer
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION (as successor to Bank of
America Illinois), as Agent
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
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Title: Assistant Vice President
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION (as successor to Bank of
America Illinois), as the Primary Issuing
Lender, a Lender and individually
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as an Issuing Lender and a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President
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THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. Toll
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Name: ▇▇▇▇▇▇ ▇. Toll
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Title: Second Vice President
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SOCIETE GENERALE, CHICAGO,
BRANCH, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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