UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to _____
Commission File Number: 333-53603-01
GPC CAPITAL CORP. II
(Exact name of registrant as specified in its charter)
Delaware 23-2952404
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1110 East Princess Street
York, Pennsylvania
(Address of principal executive offices)
17403
(zip code)
(717) 849-8500
(Registrant's telephone number, including area code)
Securities Registered pursuant to Section 12(b) of the Act: None
Securities Registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes [X] No [ ].
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
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the best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
As of the date hereof, 1,000 shares of the registrant's common stock, par
value $.01 per share, are outstanding.
There is no established public trading market for the registrant's common
stock, par value $.01 per share. The aggregate market value of the voting
securities held by non-affiliates of the registrant as of February 28, 1999
was $-0-. As of February 28, 1999, all of the outstanding common stock, par
value $.01 per share, of the registrant was owned by Graham Packaging
Holdings Company, a Pennsylvania limited partnership. See Item 12, "Security
Ownership of Certain Beneficial Owners and Management."
_______________
DOCUMENTS INCORPORATED BY REFERENCE
None.
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GPC CAPITAL CORP. II
INDEX
Page
Number
PART I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Item 1. Business . . . . . . . . . . . . . . . . . . . . . . . . . 5
Item 2. Properties . . . . . . . . . . . . . . . . . . . . . . . . 7
Item 3. Legal Proceedings . . . . . . . . . . . . . . . . . . . . . 7
Item 4. Submission of Matters to a Vote of Security Holders . . . . 8
PART II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Item 5. Market for Registrant's Common Equity and Related Stockholder
Matters . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Item 6. Selected Financial Data . . . . . . . . . . . . . . . . . . 8
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations . . . . . . . . . . . . . . . . . 9
Item 7A. Quantitative and Qualitative Disclosures About Market Risk 10
Item 8. Financial Statements and Supplementary Data . . . . . . . . 11
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure . . . . . . . . . . . . . . . . . 19
PART III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Item 10. Directors and Executive Officers of the Registrant . . . . 20
Item 11. Executive Compensation . . . . . . . . . . . . . . . . . . 21
Item 12. Security Ownership of Certain Beneficial Owners
and Management . . . . . . . . . . . . . . . . . . . . . . . 21
Item 13. Certain Relationships and Related Transactions . . . . . . 21
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PART IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Item 14. Exhibits, Financial Statement Schedules and Reports on
Form 8-K . . . . . . . . . . . . . . . . . . . . . . . . . 23
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PART I
Item 1. Business
Unless the context otherwise requires, all references herein to the
"Company," with respect to periods prior to the recapitalization described
below (the "Recapitalization"), refer to the business historically conducted
by Graham Packaging Holdings Company ("Holdings") (which served as the
operating entity for the business prior to the Recapitalization) and one of
its predecessors (Graham Container Corporation), together with Holdings'
subsidiaries and certain affiliates, and, with respect to periods subsequent
to the Recapitalization, refer to Holdings and its subsidiaries. Since the
Recapitalization, Graham Packaging Company (the "Operating Company") has been
a wholly owned subsidiary of Holdings. GPC Capital Corp. II is a wholly
owned subsidiary of Holdings. All references to the "Recapitalization"
herein shall mean the collective reference to the recapitalization of
Holdings and related transactions as described under "--The Recapitalization"
below, including the initial borrowings under the New Credit Agreement (as
defined below), the Senior Discount Offering (as defined below) and the
related uses of proceeds. References to "Continuing Graham Partners" herein
refer to Graham Packaging Corporation ("Graham GP Corp."), Graham Family
Growth Partnership or affiliates thereof or other entities controlled by
Donald C. Graham and his family, and references to "Graham Partners" refer to
the Continuing Graham Partners, Graham Engineering Corporation ("Graham
Engineering") and the other partners of Holdings (consisting of Donald C.
Graham and certain entities controlled by Mr. Graham and his family). All
references to "Management" herein shall mean the management of the Company at
the time in question, unless the context indicates otherwise. In addition,
unless otherwise indicated, all sources for all industry data and statistics
contained herein are estimates contained in or derived from internal or
industry sources believed by the Company to be reliable.
CAUTIONARY STATEMENT REGARDING FORWARD LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 provides a
"safe harbor" for certain "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933, as amended (the "Securities
Act"), and Section 21E of the Securities Exchange Act of 1934, as amended.
All statements other than statements of historical facts included in this
Report on Form 10-K, including, without limitation, statements regarding the
Company's future financial position, economic performance and results of
operations, business strategy, budgets, projected costs and plans and
objectives of management for future operations, are forward-looking
statements. In addition, forward-looking statements generally can be
identified by the use of forward-looking terminology such as "may", "will",
"expect", "intend", "estimate", "anticipate", "believe", or "continue" or the
negative thereof or variations thereon or similar terminology. Although the
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Company believes that the expectations reflected in such forward-looking
statements are reasonable, the Company can give no assurance that such
expectations will prove to have been correct. Important factors that could
cause actual results to differ materially from the Company's expectations
("cautionary statements") include, without limitation, those discussed in
"Business" and "Management's Discussion and Analysis of Financial Condition
and Results of Operations". All subsequent written and oral forward-looking
statements attributable to the Company, or persons acting on its behalf, are
expressly qualified in their entirety by the cautionary statements.
GPC Capital Corp. II ("CapCo II") was incorporated in Delaware in
January, 1998. CapCo II is a wholly owned subsidiary of Holdings, which
was formed in 1989. CapCo II's sole purpose is to act as co-obligor with
Holdings of the Senior Discount Notes (as defined below under "--The
Recapitalization"), and as co-guarantor with Holdings under the New Credit
Agreement (as defined below under "--The Recapitalization"). CapCo II has
only nominal assets, does not conduct any operations and did not receive any
of the proceeds of the offering of the Senior Discount Notes. Accordingly,
investors in the Senior Discount Notes must look solely to the cash flow and
assets of Holdings for payment of the Senior Discount Notes.
The principal executive offices of CapCo II are located at 1110
East Princess Street, York, Pennsylvania 17403, Telephone (717) 849-8500.
The Recapitalization
The Recapitalization of Holdings was consummated on February 2,
1998 pursuant to an Agreement and Plan of Recapitalization, Redemption and
Purchase, dated as of December 18, 1997 (the "Recapitalization Agreement"),
by and among (i) Holdings, (ii) the Graham Partners, and (iii) BMP/Graham
Holdings Corporation, a Delaware corporation ("Investor LP") formed by an
affiliate of Blackstone Capital Partners III Merchant Banking Fund L.P., and
BCP/Graham Holdings L.L.C., a Delaware limited liability company and a wholly
owned subsidiary of Investor LP ("Investor GP").
On February 2, 1998, as part of the Recapitalization, Holdings and
CapCo II (together with Holdings, the "Holdings Issuers"), consummated an
offering (the "Senior Discount Offering") pursuant to Rule 144A under the
Securities Act of $169,000,000 aggregate principal amount at maturity of
their 10 3/4% Senior Discount Notes Due 2009, Series A (the "Senior Discount
Old Notes").
In connection with the Recapitalization, the Holdings Issuers
entered into a Registration Rights Agreement with the Initial Purchasers of
the Senior Discount Old Notes, pursuant to which Holdings Issuers agreed to
exchange the Senior Discount Old Notes for Notes having the same terms but
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registered under the Securities Act and not containing the restrictions on
transfer that are applicable to the Senior Discount Old Notes.
Pursuant to the related Registration Rights Agreement, on September
8, 1998, the Holdings Issuers consummated an exchange offer (the "Senior
Discount Exchange Offer"), pursuant to which the Holdings Issuers issued
$169,000,000 aggregate principal amount at maturity of their 10 3/4% Senior
Discount Notes Due 2009, Series B (the "Senior Discount Exchange Notes"),
which were registered under the Securities Act, in exchange for an equal
principal amount at maturity of Senior Discount Old Notes (the Senior
Discount Old Notes and the Senior Discount Exchange Notes being herein called
the "Senior Discount Notes").
The Recapitalization also included the initial borrowing by the
Operating Company of $403.5 million in connection with a new credit facility
by and among the Operating Company, Holdings and a syndicate of lenders.
Such new credit facility was amended on August 13, 1998 (as so amended, the
"New Credit Agreement"), as described below under "Management's Discussion
and Analysis of Financial Condition and results of Operations--Liquidity and
Capital Resources" (Item 7).
CapCo II is co-obligor with Holdings of the Senior Discount Notes
and co-guarantor with Holdings under the New Credit Agreement.
Employees
As of December 31, 1998, CapCo II had no employees.
Environmental Matters
There are no material environmental matters which relate to
compliance by CapCo II with Federal, State and local environmental
provisions.
Intellectual Property
CapCo II does not own any property which is considered intellectual
property.
Item 2. Properties
CapCo II does not own or lease any properties.
Item 3. Legal Proceedings
None.
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Item 4. Submission of Matters to a Vote of Security Holders
No matters were submitted to a vote of security holders during the
fourth quarter of 1998.
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder
Matters
All of CapCo II's common stock, par value $.01 per share ("common
stock"), is owned by Holdings, 1110 East Princess Street, York, Pennsylvania
17403. There is no established public trading market for CapCo II's common
stock.
In the first quarter of 1998, CapCo II issued 1,000 shares of
common stock to Holdings in a transaction exempt from registration under the
Securities Act pursuant to Section 4(2) of the Securities Act.
As indicated under Item 1, "Business---The Recapitalization", upon
the Closing of the Recapitalization on February 2, 1998, the Holdings Issuers
consummated an offering pursuant to Rule 144A under the Securities Act of
$169,000,000 aggregate principal amount at maturity of their Senior Discount
Old Notes. Pursuant to the Purchase Agreement dated January 23, 1998 (the
"Purchase Agreement"), the Initial Purchasers, BT Alex. Brown Incorporated,
Bankers Trust International PLC, Lazard Freres & Co. LLC and Salomon Brothers
Inc, purchased the Senior Discount Old Notes at a price of 57.173% of the
principal amount, for a discount of 2.361% from the initial offering price
of 59.534% or a total discount of $3,990,090. Pursuant to the Purchase
Agreement, the Holdings Issuers also reimbursed the Initial Purchasers for
certain expenses. Pursuant to the Senior Discount Exchange Offer, on
September 8, 1998, the Holdings Issuers issued $169,000,000 aggregate
principal amount at maturity of their Senior Discount Exchange Notes in
exchange for an equal principal amount of Senior Discount Old Notes.
No dividends were paid to the holder of CapCo II's common stock in
1998.
Under the New Credit Agreement, the Operating Company is subject to
restrictions on the payment of dividends and other distributions to Holdings,
as described in Item 8, "Management's Discussion and Analysis of Financial
Condition and Results of Operations -Liquidity and Capital Resources."
Item 6. Selected Financial Data
None.
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Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Results of Operations
None.
Liquidity and Capital Resources
On February 2, 1998, Holdings and CapCo II, as co-obligor, issued
$100.6 million of Senior Discount Old Notes ($169 million aggregate
principal amount at maturity.)
On September 8, 1998, Holdings and Capco II consummated the Senior
Discount Exchange Offer for all of their outstanding Senior Discount Old
Notes, and issued in exchange therefor their Senior Discount Exchange Notes,
which have the same terms as the Senior Discount Old Notes, except that the
Senior Discount Exchange Notes are registered under the Securities Act and do
not include the restrictions on transfer applicable to the Senior Discount
Old Notes.
The Senior Discount Notes mature on January 15, 2009, with interest
payable at 10.75%. Cash interest on the Senior Discount Notes does not
accrue until January 15, 2003.
On February 2, 1998, the Operating Company refinanced the majority
of its existing credit facilities and entered into the New Credit Agreement
with a consortium of banks. The New Credit Agreement was amended on August
13, 1998 (the "Amendment") to provide for an additional Term Loan Borrowing
of up to an additional $175 million which can be drawn in two installments
(of which $75 million was drawn and outstanding as of December 31, 1998). A
commitment fee of.75% is due on the unused portion. The New Credit Agreement
and the Amendment consist of four term loans to the Operating Company
totaling up to $570 million and two revolving loan facilities to the
Operating Company totaling $225 million. The obligations of the Operating
Company under the New Credit Agreement and Amendment are guaranteed by
Holdings and certain subsidiaries of Holdings, including CapCo II. The term
loans are payable in quarterly installments through January 31, 2007,
required a payment of $3.2 million in 1998, and require payments of $5.0
million in 1999, $15.0 million in 2000, $20.0 million in 2001, $25.0 million
in 2002 and $ xx million in 2003. The revolving loan facilities expire on
January 31, 2004. Interest is payable at (a) the "Alternate Base Rate" (the
higher of the Prime Rate or the Federal Funds Rate plus 0.50%) plus a margin
ranging from 0% to 2.00%; or (b) the "Eurocurrency Rate" (the applicable
interest rate offered to banks in the London interbank eurocurrency market)
plus a margin ranging from 0.625% to 3.00%. A commitment fee ranging from
0.20% to 0.50% is due on the unused portion of the revolving loan commitment.
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As part of the Amendment to the New Credit Agreement, if certain events of
default were to occur (including, without limitation, if the Company's Net
Leverage Ratio were above 5.15:1.0 at March 31, 2000), Blackstone has agreed
to make an equity contribution to the Company through the administrative
agent of up to $50 million. In addition, the New Credit Agreement and
Amendment contain certain affirmative and negative covenants as to the
operations and financial condition of the Operating Company, as well as
certain restrictions on the payment of dividends and other distributions to
Holdings.
Under the New Credit Agreement and Amendment, the Operating Company
is subject to restrictions on the payment of dividends or other distributions
to Holdings; provided that, subject to certain limitations, the Operating
Company may pay dividends or other distributions to Holdings (i) in respect
of overhead, tax liabilities, legal, accounting and other professional fees
and expenses, (ii) to fund purchases and redemptions of equity interests of
Holdings or Investor LP held by then present or former officers or employees
of Holdings, the Operating Company or their Subsidiaries (as defined) or by
any employee stock ownership plan upon such person's death, disability,
retirement or termination of employment or other circumstances with certain
annual dollar limitations and (iii) to finance, starting on July 15, 2003,
the payment of cash interest payments on the Senior Discount Notes.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Not applicable.
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Item 8. Financial Statements and Supplementary Data
INDEX TO FINANCIAL STATEMENTS
Page
Number
Statement re omission of independent auditors' report . . . . . . . . . . 12
Financial Statements
Balance Sheet at December 31, 1998 . . . . . . . . . . . . . . 13
Statement of Income for the year ended December 31, 1998 . . . 14
Statement of Shareholders' Equity for the year ended
December 31,1998 . . . . . . . . . . . . . . . . . . . . . . . 15
Statement of Cash Flows for the year ended December 31, 1998 . 16
Notes to Financial Statements . . . . . . . . . . . . . . . . 17
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Report of independent auditors omitted pursuant to Rule 3-11 of Regulation S-X.
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GPC CAPITAL CORP. II
BALANCE SHEET
December 31, 1998
Total assets --
Total liabilities --
Total shareholders equity --
See accompanying notes
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GPC CAPITAL CORP. II
STATEMENT OF INCOME
For the Year Ended December 31, 1998
Net sales --
Operating income --
Interest expense, net --
Net income --
See accompanying notes
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GPC CAPITAL CORP. II
STATEMENT OF SHAREHOLDERS' EQUITY
December 31, 1998
Balance February 2, 1998 --
Balance December 31, 1998 --
See accompanying notes
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GPC CAPITAL CORP. II
STATEMENT OF CASH FLOWS
For the Year Ended December 31, 1998
Operating activities --
Investing activities --
Financing activities --
See accompanying notes
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GPC CAPITAL CORP. II
NOTES TO FINANCIAL STATEMENTS
December 31, 1998
1. Basis of Presentation
GPC Capital Corp. II, is wholly owned subsidiary of Graham
Packaging Holdings Company, a Pennsylvania limited partnership formerly known
as Graham Packaging Company ("Holdings"). The sole purpose of GPC Capital
Corp. II is to act as co-obligor with Holdings of the Senior Discount Notes
and as co-guarantor with Holdings under the New Credit Agreement and
Amendment (as defined herein). GPC Capital Corp. II has only nominal assets
and does not conduct any independent operations.
2. Debt Arrangements
On February 2, 1998, Holdings and GPC Capital Corp. II, as co-
obligor, issued $100.6 million gross proceeds of Senior Discount Notes Due
2009 ($169 million aggregate principal amount at maturity). The Senior
Discount Notes mature on January 15, 2009, with interest payable at 10.75%.
Cash interest on the Senior Discount Notes does not accrue until January 15,
2003.
On February 2, 1998, Graham Packaging Company, a Delaware limited
partnership formerly known as Graham Packaging Holdings I, L.P. (the
"Operating Company") refinanced the majority of its existing credit
facilities and entered into a new Credit Agreement (the "New Credit
Agreement") with a consortium of banks. The New Credit Agreement was amended
on August 13, 1998 (the "Amendment") to provide for an additional Term Loan
Borrowing of up to an additional $175 million which can be drawn in two
installments (of which $75 million was drawn and outstanding as of September
27, 1998). A commitment fee of.75% is due on the unused portion. The New
Credit Agreement and the Amendment consist of four term loans to the
Operating Company totaling up to $570 million and two revolving loan
facilities to the Operating Company totaling $255 million. The obligations
of the Operating Company under the New Credit Agreement and Amendment are
guaranteed by Holdings and certain other subsidiaries of Holdings. The term
loans are payable in quarterly installments through January 31, 2007,
required a payment of $3.2 million in 1998, and require payments of $5.0
million in 1999, $15.0 million in 2000, $20.0 million in 2001 and $25.0
million in 2002 and $27.5 million in 2003. The revolving loan facilities
expire on January 31, 2004. Interest is payable at (a) the "Alternate Base
Rate" (the higher of the Prime Rate or the Federal Funds Rate plus 0.50%)
plus a margin ranging from 0% to 2.00%; or (b) the "Eurocurrency Rate" (the
applicable interest rate offered to banks in the London interbank
eurocurrency market) plus a margin ranging from 0.625% to 3.00%. A
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commitment fee ranging from 0.20% to 0.50% is due on the unused portion
of the revolving loan commitment. As part of the Amendment to the New Credit
Agreement, if certain events of default were to occur (including, without
limitation, if the Company's Net Leverage Ratio were above 5.15:1.0 at
March 31, 2000), Blackstone has agreed to make an equity contribution to
the Company through the administrative agent of up to $50 million. In
addition, the New Credit Agreement and Amendment contain certain affirmative
and negative covenants as to the operations and financial condition of the
Operating Company, as well as certain restrictions on the payment of dividends
and other distributions to Holdings.
On September 8, 1998, Holdings and GPC Capital Corp. II
consummated an exchange offer for all of their outstanding Senior Discount
Notes Due 2009 which had been issued on February 2, 1998 (the "Old Notes"),
and issued in exchange therefor their Senior Discount Notes Due 2009, Series
B (the "Exchange Notes"), which have the same terms as the Old Notes, except
that the Exchange Notes are registered under the Securities Act of 1933 and
do not include the restrictions on transfer applicable to the Old Notes.
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Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
Not applicable.
PART III
Item 10. Directors and Executive Officers of the Registrant
The directors and executive officers of CapCo II are as follows:
Name Age Position
Philip R. Yates 51 President, Treasurer and Assistant Secretary and
a Director
John E. Hamilton 40 Vice President, Secretary and Assistant Treasurer
and a Director
Chinh E. Chu 32 Vice President and a Director
Simon P. 30 Vice President and a Director
Lonergan
Philip R. Yates has served as President and Chief Executive Officer
of the Operating Company since the Recapitalization. Since the
Recapitalization, Mr. Yates has also served as President and Chief Executive
Officer of GPC Opco GP LLC ("Opco GP"), the general partner of the Operating
Company, and of various subsidiaries of the Operating Company or their
general partner, as President, Treasurer and Assistant Secretary of CapCo II
and GPC Capital Corp I ("CapCo I"), and as a member of the Boards of
Directors of CapCo I and CapCo II. From April 1995 to the Recapitalization,
Mr. Yates served as President and Chief Operating Officer of the Company.
From 1994 to 1995, Mr. Yates served as President of the Company. Prior to
1994, Mr. Yates served in various management positions with the Company.
John E. Hamilton has served as Chief Financial Officer or Senior
Vice President, Finance and Administration or Vice President, Finance and
Administration of the Operating Company since the Recapitalization. Since
January 21, 1999, Mr. Hamilton has served as Chief Financial Officer of Opco
GP and Holdings, and has served as Treasurer and Secretary of Opco GP and of
various subsidiaries of the Operating Company or their general partner since
the Recapitalization. Since the Recapitalization, Mr. Hamilton has served as
Vice President, Secretary and Assistant Treasurer of CapCo I and CapCo II,
and as a member of the Boards of Directors of CapCo I and CapCo II.
Subsequent to the Recapitalization and until January 21, 1999, Mr. Hamilton
served as Vice President, Finance and Administration of Opco GP and Holdings.
From November 1992 to the Recapitalization, Mr. Hamilton served as Vice
President, Finance and Administration, North America of the Company. Prior to
1992, Mr. Hamilton served in various management positions with the Company.
Chinh E. Chu is a Managing Director of The Blackstone Group L.P.
which he joined in 1990. Since the Recapitalization, Mr. Chu has served as
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Vice President, Secretary and Assistant Treasurer of Investor LP and Investor
GP, as a Vice President of CapCo I and CapCo II and as a member of the Boards
of Directors of Investor LP, CapCo I and CapCo II. Prior to joining
Blackstone, Mr. Chu was a member of the Mergers and Acquisitions Group of
Salomon Brothers Inc from 1988 to 1990. He currently serves on the Boards of
Directors of Prime Succession Inc., Roses, Inc. and Haynes International,
Inc.
Simon P. Lonergan is an Associate of The Blackstone Group L.P.
which he joined in 1996. Since the Recapitalization, Mr. Lonergan has served
as Vice President, Assistant Secretary and Assistant Treasurer of Investor LP
and Investor GP, as a Vice President of CapCo I and CapCo II and as a member
of the Boards of Directors of Investor LP, CapCo I and CapCo II. Prior to
joining Blackstone, Mr. Lonergan was an Associate at Bain Capital, Inc. and a
Consultant at Bain and Co. He currently serves on the Board of Directors of
CommNet Cellular, Inc. and the Advisory Committee of InterMedia Partners VI
Except as described above, there are no arrangements or
understandings between any director or executive officer and any other person
pursuant to which such person was elected or appointed as a director or
executive officer of CapCo II.
Item 11. Executive Compensation
Compensation of Directors
The members of the Board of Directors of CapCo II are not
compensated for their services except that each is reimbursed for his
reasonable expenses in performing his duties as such.
Item 12. Security Ownership of Certain Beneficial Owners and Management
CapCo II has outstanding 1,000 shares of common stock all which
are owned by Holdings, 1110 East Princess Street, York, Pennsylvania 17403
Item 13. Certain Relationships and Related Transactions
An affiliate of BT Alex. Brown Incorporated and Bankers Trust
International PLC, two of the Initial Purchasers of the Old Notes, acquired
approximately a 4.8% equity interest in Investor LP. Bankers Trust Company,
an affiliate of BT Alex. Brown Incorporated and Bankers Trust International
PLC, acted as administrative agent and provided a portion of the financing
under the New Credit Agreement entered into in connection with the
Recapitalization, for which it received customary commitment and other fees
and compensation.
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The New Credit Agreement includes a $100 million Growth Capital
Revolving Credit Facility under which the Operating Company is entitled to
draw amounts for capital expenditure requirements and to finance acquisitions
and investments; provided that loans under the Growth Capital Revolving
Credit Facility may only be incurred to the extent that such loans are
matched with equity contributions from the principal equity holders of
Investor LP (which equity contributions shall, in turn, ultimately be
contributed to the Operating Company) on a dollar-for-dollar basis.
As part of the Amendment to the New Credit Agreement, if certain
events of default were to occur (including, without limitation, if the
Company's Net Leverage Ratio were above 5.15:1.0 at March 31, 2000),
Blackstone has agreed to make an equity contribution to the Company through
the administrative agent of up to $50 million.
Pursuant to the Purchase Agreement dated January 23, 1998, the
Initial Purchasers, BT Alex. Brown Incorporated, Bankers Trust International
PLC, Lazard Freres & Co. LLC and Salomon Brothers Inc, purchased the Senior
Discount Old Notes at a price of 57.173% of the principal amount, for a
discount of 2.361% from the initial offering price of 59.534% or a total
discount of $3,990,090. Pursuant to the Purchase Agreement, the Holdings
Issuers also reimbursed the Initial Purchasers for certain expenses.
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PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K
(a) The following Financial Statement Schedules and Reports are
included herein:
None.
All other schedules are not submitted because they are not
applicable or not required or because the required information is included in
the financial statements or the notes thereto.
(b) The following exhibits are filed herewith or incorporated herein by
reference:
Exhibit
Number Description of Exhibit
2.1 -- Agreement and Plan of Recapitalization, Redemption and
Purchase dated as of December 18, 1997, as amended as of
January 29, 1998, by and among Graham Packaging Holdings
Company, BCP/Graham Holdings L.L.C., BMP/Graham Holdings
Corporation and the other parties named therein
(incorporated herein by reference to Exhibit 2.1 to the
Registration Statement on Form S-4 (File No. 333- 53603-
01)).
2.2 -- Purchase Agreement dated January 23, 1998 among Graham
Packaging Holdings Company, Graham Packaging Company, GPC
Capital Corp. I, GPC Capital Corp. II, BT Alex. Brown
Incorporated, Bankers Trust International PLC, Lazard
Freres & Co. L.L.C. and Salomon Brothers Inc (incorporated
herein by reference to Exhibit 2.2 to the Registration
Statement on Form S-4 (File No. 333- 53603-01)).
3.1 -- Certificate of Incorporation of GPC Capital Corp. II
(incorporated herein by reference to Exhibit 3.7 to the
Registration Statement on Form S-4 (File No. 333- 53603-
01)).
3.2 -- By-Laws of GPC Capital Corp. II (incorporated herein by
reference to Exhibit 3.8 to the Registration Statement on
Form S-4 (File No. 333- 53603-01)).
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Exhibit
Number Description of Exhibit
4.1 -- Indenture dated as of February 2, 1998 among Graham
Packaging Holdings Company and GPC Capital Corp. II and
The Bank of New York, as Trustee, relating to the Senior
Discount Notes Due 2009 of Graham Packaging Holdings
Company and GPC Capital Corp. II (incorporated herein by
reference to Exhibit 4.7 to the Registration Statement on
Form S-4 (File No. 333- 53603-01)).
4.2 -- Form of 10 3/4% Senior Discount Note Due 2009, Series A
(included in Exhibit 4.7) (incorporated herein by
reference to Exhibit 4.8 to the Registration Statement on
Form S-4 (File No. 333- 53603-01)).
4.3 -- Form of 10 3/4% Senior Discount Note Due 2009, Series B
(included in Exhibit 4.7) (incorporated herein by
reference to Exhibit 4.9 to the Registration Statement on
Form S-4 (File No. 333- 53603-01)).
4.4 -- Registration Rights Agreement dated as of February 2, 1998
among Graham Packaging Holdings Company, GPC Capital Corp.
II, BT Alex. Brown Incorporated, Bankers Trust
International PLC, Lazard Freres & Co. L.L.C. and Salomon
Brothers Inc. relating to the Senior Discount Notes Due
2009 of Graham Packaging Holdings Company and GPC Capital
Corp. II (incorporated herein by reference to Exhibit 4.10
to the Registration Statement on Form S-4 (File No. 333-
53603-01)).
10.1 -- Credit Agreement dated as of February 2, 1998 among Graham
Packaging Holdings Company, Graham Packaging Company, GPC
Capital Corp. I, the lending institutions identified in
the Credit Agreement and the agents identified in the
Credit Agreement (incorporated herein by reference to
Exhibit 10.1 to the Registration Statement on Form S-4
(File No. 333- 53603-01)).
10.2 -- First Amendment to Credit Agreement dated as of August 13,
1998.
24 -- Power of Attorney--Page 26 of Form 10-K.
27 -- Financial Data Schedule.
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Exhibit
Number Description of Exhibit
99.1 -- Form of Senior Discount Letter of Transmittal
(incorporated herein by reference to Exhibit to the
Registration Statement on Form S-4 (File No. 333- 53603-
01)).
99.2 -- Form of Senior Discount Notice of Guaranteed Delivery
(incorporated herein by reference to Exhibit to the
Registration Statement on Form S-4 (File No. 333- 53603-
01)).
(c) Reports on Form 8-K
No Reports on Form 8-K were required to be filed during the quarter ended
December 31, 1998.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused this report
to be signed on its behalf by the undersigned thereunto duly authorized.
Dated: March 29, 1999
GPC CAPITAL CORP. II
(Registrant)
By: /s/ John E. Hamilton
Name: John E. Hamilton
Title: Vice President
(chief accounting officer
and duly authorized
officer)
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POWER OF ATTORNEY
We, the undersigned officers and directors of GPC Capital Corp. II,
do hereby constitute and appoint Philip R. Yates and John E. Hamilton, or
either of them, our true and lawful attorneys and agents, to sign for us, or
any of us, in our names in the capacities indicated below, any and all
amendments to this report, and to cause the same to be filed with the
Securities and Exchange Commission, granting to said attorneys, and each of
them, full power and authority to do and perform any act and thing necessary
or appropriate to be done in the premises, as fully to all intents and
purposes as the undersigned could do if personally present, and we do hereby
ratify and confirm all that said attorneys and agents, or either of them,
shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed on the 29th day of March, 1999 by the following
persons on behalf of the registrant and in the capacities indicated, with
respect to GPC Capital Corp. II:
Signature Title
/s/ Philip R. Yates President, Treasurer and Assistant
Secretary
Philip R. Yates And Director (Principal Executive
Officer)
/s/ John E. Hamilton Vice President, Secretary and
Assistant
John E. Hamilton Treasurer and Director (Principal
Financial
Officer and Principal Accounting
Officer)
/s/ Chinh E. Chu Director
Chinh E. Chu
/s/ Simon P. Lonergan Director
Simon P. Lonergan
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<PAGE>
SUPPLEMENTAL INFORMATION TO BE FURNISHED WITH REPORTS FILED PURSUANT TO
SECTION 15(d) OF THE ACT BY REGISTRANTS WHICH HAVE NOT REGISTERED SECURITIES
PURSUANT TO SECTION 12 OF THE ACT.
No annual report to security holders covering the registrant's last
fiscal year has been sent to security holders. No proxy statement, form of
proxy or other proxy soliciting material has been sent to more than 10 of the
registrant's security holders with respect to any annual or other meeting of
security holders.
Exhibit 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"),
dated as of August 13, 1998, among GRAHAM PACKAGING HOLDINGS COMPANY, a
Pennsylvania limited partnership ("Holdings"), GRAHAM PACKAGING COMPANY,
a Delaware limited partnership (the "Borrower"), GPC CAPITAL CORP. I, a
Delaware corporation (the "Co-Borrower"), the various Lenders party to
the Credit Agreement referred to below, NATIONSBANK, N.A., as
documentation agent (in such capacity, the "Documentation Agent"),
BANKERS TRUST COMPANY, as administrative agent (in such capacity, the
"Administrative Agent"), as syndication agent (in such capacity, the
"Syndication Agent") and as collateral agent (in such capacity, the
"Collateral Agent") for the Lenders, and BANKERS TRUST COMPANY, as
fronting bank (in such capacity, the "Fronting Bank"). All capitalized
terms used herein and not otherwise defined shall have the respective
meanings provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Holdings, the Borrower, the Co-Borrower, the Lenders,
the Agents and the Fronting Bank are parties to a Credit Agreement, dated
as of February 2, 1998 (as amended, modified or supplemented to, but not
including, the date hereof, the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement
as herein provided;
NOW, THEREFORE, it is agreed:
I.
Amendments to Credit Agreement.
1. The fourth paragraph of the Credit Agreement is hereby
amended by deleting said paragraph in its entirety and by inserting in
lieu thereof the following new paragraph:
"The Borrower has requested the Lenders to extend credit,
subject to the terms and conditions herein, in the form of
(a) Tranche A Term Loans on the Closing Date, in an aggregate
principal amount not in excess of $75,000,000, (b) Tranche B Term
Loans on the Closing Date, in an aggregate principal amount not in
excess of $175,000,000, (c) Tranche C Term Loans on the Closing
Date, in an aggregate principal amount not in excess of
$145,000,000, (d) Tranche D Term Loans on up to two Tranche D Term
Loan Borrowing Dates, in an aggregate principal amount not in
excess of $175,000,000, (e) Revolving Loans and Swingline Loans at
any time and from time to time prior to the Revolving Credit
Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of the difference between
(i) $155,000,000 and (ii) the Revolving L/C Exposure at such time,
(f) Letters of Credit, at any time and from time to time prior to
the Revolving Credit Maturity Date, in an aggregate stated amount
at any time outstanding not in excess of $50,000,000 and (g) Growth
Capital Revolving Loans at any time and from time to time prior to
the Growth Capital Maturity Date, in an aggregate principal amount
at any time outstanding not in excess of $100,000,000."
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2. The fifth paragraph of the Credit Agreement is hereby
amended by deleting said paragraph in its entirety and by inserting in
lieu thereof the following new paragraph:
"The proceeds of the Tranche A Term Loans, the Tranche B Term
Loans and the Tranche C Term Loans will be used on the Closing
Date, together with (a) up to $15,000,000 of the proceeds of
Revolving Loans, (b) the cash obtained by Investor LP and Investor
GP as described in clause (a) of the second preceding paragraph and
(c) the proceeds of the issuance of the Holdings Discount Notes and
Senior Subordinated Notes, solely (i) to effect the Purchase and
Redemption, (ii) to effect the Refinancing and (iii) to pay related
fees, expenses and other transaction costs. The proceeds of the
Tranche D Term Loans will be used to repay outstanding Revolving
Loans, to finance Permitted Business Acquisitions and Capital
Expenditures and for general corporate purposes. The proceeds of
Revolving Loans (except as described above) will be used for
general corporate purposes. The Letters of Credit and Swingline
Loans will be used for general corporate purposes. The proceeds of
the Growth Capital Revolving Loans shall be utilized by the
Borrower and its Subsidiaries to make Capital Expenditures,
acquisitions and investments, in each case as herein provided."
3. Section 1.01 of the Credit Agreement is hereby amended by
deleting the definitions of "ABR Margin", "Fund", "LIBOR Margin", "Loan
Documents", "Mortgages", "Revolving Credit Commitment", "Security
Documents", "Term Commitments" and "Tranche" appearing therein and by
inserting the following new definitions in the appropriate alphabetical
order:
"ABR Margin" shall mean for Tranche A Term Loans, Tranche B
Term Loans, Tranche C Term Loans, Tranche D Term Loans, Revolving
Loans, Growth Capital Revolving Loans and Swingline Loans, the rate
per annum set forth under the relevant column heading opposite such
Loans as set forth on Schedule A hereto.
"Asset Disposition" shall mean any sale, transfer or other
disposition by Holdings, the Borrower or any of their respective
Subsidiaries to any person other than the Borrower or any
Subsidiary Guarantor of any asset, the Net Proceeds from which
exceed $10,000,000.
"Assumed Note" shall mean that certain demand note (as amended
from time to time) issued by CMB Plastique S.A. in the face
principal amount of 106,229,000 French francs (approximately
$16,800,000).
"Blackstone Capital Partners" shall mean Blackstone Capital
Partners III Merchant Banking Fund L.P., a Delaware limited
partnership.
"Blackstone Family Partnership" shall mean Blackstone Family
Investment Partnership III L.P., a Delaware limited partnership.
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"Blackstone Offshore Partners" shall mean Blackstone Offshore
Capital Partners III L.P., a Cayman Islands limited partnership.
"Capital Call Agreement" shall mean the Capital Call
Agreement, substantially in the form of Exhibit K, among Blackstone
Capital Partners, Blackstone Offshore Partners, Blackstone Family
Partnership, Investor LP, Holdings, the Borrower, the
Administrative Agent and the Collateral Agent.
"Capital Call Contributions" shall mean the capital
contributions made (or deemed made) by Blackstone Capital Partners,
Blackstone Offshore Partners, Blackstone Family Partnership and/or
Investor LP to Holdings (which capital contributions are, in turn,
contributed (or deemed contributed) by Holdings to the Borrower)
from time to time pursuant to the Capital Call Agreement.
"Converted Foreign Debt" shall mean Indebtedness (or any
portion thereof) which (x) constitutes Indebtedness of a Foreign
Subsidiary of the Borrower to the Borrower or a domestic Subsidiary
of the Borrower and (y) is converted into (or otherwise accounted
for as) equity (in accordance with GAAP) of such Foreign Subsidiary
of the Borrower.
"Designated Business Acquisitions" shall mean the acquisition
of all or substantially all the assets of, or shares or other
equity interests in, the following persons (or any subsequent
investment made in a previously acquired Designated Business
Acquisition): (i) Graham Emballages Plastiques France S.A. (f/k/a
CMB Plastique S.A.), (ii) Graham Packaging U.K. Ltd. (f/k/a
CarnaudMetalbox plc), (iii) CMB Plastpak Plastic, Ambalaj Sanayi
A.S., (iv) Graham Packaging Deutschland GmbH (f/k/a Raku GmbH), (v)
Euroflex Industria e Comercio Ltda., (vi) Cimplast S.A.C.I., (vii)
Lido Plast S.A., (viii) Amerpack S.A., (ix) Dodisa S.A. and (x)
Lido Plast San Luis S.A.
"First Amendment" shall mean the First Amendment, dated as of
August 13, 1998, to this Agreement.
"First Amendment Effective Date" shall mean the date the First
Amendment becomes effective in accordance with its terms.
"Fund" shall mean Blackstone Capital Partners III Merchant
Banking Fund L.P., a Delaware limited partnership, and Blackstone
Offshore Capital Partners III L.P., a Cayman Islands limited
partnership.
"Information Systems and Equipment" means, with respect to any
person, all computer hardware, firmware and software, as well as
other information processing systems, or any equipment containing
embedded microchips, whether directly owned, licensed, leased,
operated or otherwise controlled by such person, including through
third-party service providers, and which, in whole or in part, are
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used, operated, relied upon, or integral to, such person's conduct
of its business.
"IRB Financing" shall mean the incurrence by the Borrower and
its domestic Subsidiaries of industrial revenue bond financing the
proceeds of which shall be used to finance the construction (or
expansion) of an on-site (or near-site) Quaker Oats plant facility
in the State of Georgia.
"IRB Financing Documents" shall mean each of the agreements
and documents entered into in connection with the IRB Financing.
"LIBOR Margin" shall mean for Tranche A Term Loans, Tranche B
Term Loans, Tranche C Term Loans, Tranche D Term Loans, Revolving
Loans and Growth Capital Revolving Loans, the rate per annum set
forth under the relevant column heading opposite such Loans as set
forth on Schedule A hereto.
"Loan Documents" shall mean this Agreement, the Letters of
Credit, the Guarantee Agreements, the Security Documents and, after
the execution and delivery thereof pursuant to the terms of this
Agreement, any Note and the Capital Call Agreement.
"Mortgage Amendments" shall have the meaning provided such
term in the First Amendment.
"Mortgages" shall mean the mortgages, deeds of trust,
assignments of leases and rents and other security documents (in
each case as amended pursuant to the respective Mortgage Amendment)
delivered pursuant to clause (i) of Section 4.02(h) or pursuant to
Section 5.11, each substantially in the form of Exhibit E.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Borrower or a Subsidiary of the Borrower issued in exchange
for, or the net proceeds of which are used to extend, refinance,
renew, replace, defease or refund (collectively, to "Refinance"),
Indebtedness permitted by Section 6.01(j) (or previous refinancings
thereof constituting Permitted Refinancing Indebtedness) of the
Borrower or such Subsidiary of the Borrower, as the case may be,
provided that (i) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount (or accreted value, if applicable) of
the Indebtedness so Refinanced (plus unpaid accrued interest and
premium thereon), (ii) the average life to maturity of such
Permitted Refinancing Indebtedness is greater than or equal to that
of the Indebtedness being Refinanced, (iii) if the Indebtedness
being Refinanced is subordinated in right of payment to the
Obligations under this Agreement, such Permitted Refinancing
Indebtedness shall be subordinated in right of payment to such
Obligations on terms at least as favorable to the Lenders as those
contained in the documentation governing the Indebtedness being
Refinanced, (iv) no Permitted Refinancing Indebtedness shall have
different obligors, or greater guarantees or security, than the
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Indebtedness being Refinanced and (v) if the Indebtedness being
Refinanced is secured by any collateral (whether equally and
ratably with, or junior to, the Secured Parties or otherwise), such
Permitted Refinancing Indebtedness may be secured by such
collateral (including any collateral pursuant to after-acquired
property clauses to the extent any such collateral secured the
Indebtedness being Refinanced) on terms no less favorable to the
Secured Parties than those contained in the documentation governing
the Indebtedness being Refinanced.
"Pro Forma Basis" shall mean, as to any person, for any events
as described in clauses (ii) and (iii) below which occur subsequent
to the commencement of a period for which the financial effect of
such events is being calculated, and giving effect to the events
for which such calculation is being made, such calculation as will
give pro forma effect to such events as if same had occurred at the
beginning of such period of calculation, and
(i) for purposes of the foregoing calculation, each
transaction giving rise to the need to calculate the pro forma
effect to any of the following events shall be assumed to have
occurred on the first day of the four consecutive fiscal
quarter period last ended on or before the occurrence of the
respective event for which such pro forma effect is being
determined (the "Reference Period");
(ii) in making any determination of EBITDA, (x) pro forma
effect shall be given to any Asset Disposition and to any
Permitted Business Acquisition (or any similar transaction or
transactions which require a waiver or consent of the Required
Lenders pursuant to Section 6.05), in each case which occurred
during the Reference Period (or, in the case of determinations
made pursuant to the definition of Permitted Business
Acquisition contained herein, occurring during the Reference
Period or thereafter and through and including the date upon
which the respective Permitted Business Acquisition is
consummated) as if such Asset Disposition, Permitted Business
Acquisition or other transaction, as the case may be, occurred
on the first day of the Reference Period and (y) to the extent
applicable, effect shall be given to the first proviso to the
definition of Net Leverage Ratio or the first proviso to
Section 6.11, as the case may be; and
(iii) in making any determination on a Pro Forma Basis,
(x) all Indebtedness (including Indebtedness incurred or
assumed and for which the financial effect is being
calculated, whether incurred under this Agreement or other-
wise, but excluding normal fluctuations in revolving
indebtedness incurred for working capital purposes and not to
finance any acquisition) incurred or permanently repaid during
the Reference Period (or, in the case of determinations made
pursuant to the definition of Permitted Business Acquisition
contained herein, occurring during the Reference Period or
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thereafter and through and including the date upon which the
respective Permitted Business Acquisition is consummated)
shall be deemed to have been incurred or repaid at the
beginning of such period and (y) Interest Expense of such
person attributable to interest on any Indebtedness, for which
pro forma effect is being given as provided in preceding
clause (x), bearing floating interest rates shall be computed
on a pro forma basis as if the rates which would have been in
effect during the period for which pro forma effect is being
given had been actually in effect during such periods.
Pro forma calculations made pursuant to the definition of Pro
Forma Basis shall be determined in good faith by a Responsible
Officer of the Borrower and may include adjustments, in the
reasonable determination of the Borrower as set forth in an
officers' certificate, to (i) reflect operating expense reductions
reasonably expected to result from any acquisition, merger or Asset
Disposition or (ii) eliminate the effect of any extraordinary
accounting event with respect to any acquired person or assets on
Consolidated Net Income.
"Reference Period" shall have the meaning provided in the
definition of Pro Forma Basis.
"Revolving Credit Commitment" shall mean, with respect to each
Lender, the amount set forth opposite such Lender's name on
Schedule 2.01 directly below the column entitled "Revolving Credit
Commitment" or in the Assignment and Acceptance pursuant to which
such Lender assumed its Revolving Credit Commitment, as applicable,
as the same may be reduced from time to time pursuant to
Section 2.09 and pursuant to assignments by such Lender pursuant to
Section 9.04.
"Security Documents" shall mean the Mortgages, the Security
Agreement, the Intellectual Property Security Agreement, the Pledge
Agreement, the Capital Call Agreement and each of the security
agreements, mortgages and other instruments and documents executed
and delivered pursuant to any of the foregoing or pursuant to
Section 5.11.
"Term Commitments" shall mean the Tranche A Term Loan
Commitments, the Tranche B Term Loan Commitments, the Tranche C
Term Loan Commitments and the Tranche D Term Loan Commitments.
"Test Period" shall mean, on any date of determination, the
period of four consecutive fiscal quarters of the Borrower then
last ended (taken as one accounting period), provided that in the
case of determinations made pursuant to the first proviso to the
definition of Net Leverage Ratio or the first proviso to Section
6.11, the Test Period shall instead constitute the respective two
or three fiscal quarter period being tested as described in said
provisos.
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"Total Available Growth Capital Commitment" shall mean, at any
time, the aggregate amount of Available Growth Capital Commitments,
as in effect at such time.
"Total Tranche D Term Loan Commitment" shall mean, at any
time, the aggregate amount of the Tranche D Term Loan Commitments,
as in effect at such time.
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being seven separate
Tranches, i.e., Tranche A Term Loans, Tranche B Term Loans, Tranche
C Term Loans, Tranche D Term Loans, Revolving Loans, Growth Capital
Revolving Loans and Swingline Loans.
"Tranche D Maturity Date" shall mean January 31, 2007.
"Tranche D Syndication Date" shall mean that date upon which
the Administrative Agent determines in its sole discretion (and
notifies the Borrower) that the primary syndication (and resultant
addition of institutions as Lenders pursuant to Section 9.04)
relating to Tranche D Term Loan Commitments has been completed.
"Tranche D Term Borrowing" shall mean a Borrowing comprised of
Tranche D Term Loans.
"Tranche D Term Loan Borrowing Date" shall have the meaning
provided in Section 2.01(a)(iv).
"Tranche D Term Loan Commitment" shall mean with respect to
each Lender, the commitment of such Lender to make Tranche D Term
Loans hereunder as set forth in Section 2.01(a)(iv), as the same
may be reduced from time to time pursuant to Section 2.09.
"Tranche D Term Loan Installment Date" shall have the meaning
provided in Section 2.11(a).
"Tranche D Term Loans" shall mean the term loans made by the
Lenders to the Borrower pursuant to Section 2.01(a)(iv).
"Year 2000 Compliant" means, with respect to any Information
Systems and Equipment, that such Information Systems and Equipment
accurately process date data (including, but not limited to,
calculating, comparing and sequencing), before, during and after
the year 2000, as well as same and multi-century dates, or between
the years 1999 and 2000, taking into account all leap years,
including the fact that the year 2000 is a leap year, and further,
that when used in combination with, or interfacing with, other
Information Systems and Equipment, shall accurately accept, release
and exchange date data, and shall in all material respects continue
to function in the same manner as it performs as of the date hereof
and shall not otherwise impair the accuracy or functionality of any
Information Systems and Equipment.
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4. The definition of "Available Investment Basket Amount"
appearing in Section 1.01 of the Credit Agreement is hereby amended by
deleting the reference to "Section 6.01(j)" therein and by inserting in
lieu thereof a reference to "Section 6.04(j)".
5. The definition of "Capital Expenditures" appearing in
Section 1.01 of the Credit Agreement is hereby amended by inserting,
immediately at the end thereof, the following new sentence:
"Notwithstanding anything to the contrary contained above and for
avoidance of doubt, it is expressly understood and agreed that, to
the extent not otherwise included above, Capital Expenditures shall
include (without duplication of amounts) the aggregate outstanding
principal amount of all IRB Financings incurred under Section
6.01(w)."
6. The definition of "Designated Capital Contributions"
appearing in Section 1.01 of the Credit Agreement is hereby amended by
inserting, immediately after the phrase "pursuant to Section 7.02"
appearing in the last sentence thereof, the phrase "or by way of Capital
Call Contributions".
7. The definition of "Indebtedness" appearing in Section
1.01 of the Credit Agreement is hereby amended by deleting the
parenthetical set forth in clause (d) thereof and by inserting in lieu
thereof the following new parenthetical: "(other than current trade
liabilities and current intercompany liabilities (but not any
refinancings, extensions, renewals or replacements thereof) incurred in
the ordinary course of business and maturing within 365 days after the
incurrence thereof)".
8. The definition of "Net Leverage Ratio" appearing in
Section 1.01 of the Credit Agreement is hereby amended by inserting,
immediately at the end of the first sentence thereof, the following new
proviso:
", provided, further, to the extent any Asset Disposition or any
Permitted Business Acquisition (or any similar transaction or
transactions which require a waiver or a consent of the Required
Lenders pursuant to Section 6.05) has occurred during the relevant
Test Period, EBITDA shall be determined for the respective Test
Period on a Pro Forma Basis for such occurrences".
9. The definition of "Net Proceeds" appearing in Section
1.01 of the Credit Agreement is hereby amended by inserting, immediately
after the phrase "Designated Capital Contributions" appearing in sub-
clause (ii) of the parenthetical set forth in clause (c) thereof, the
phrase "and Capital Call Contributions".
10. The definition of "Permitted Business Acquisition"
appearing in Section 1.01 of the Credit Agreement is hereby amended by
(i) in clause (d)(i) thereof, deleting the term "pro forma basis"
appearing therein and inserting in lieu thereof the phrase "Pro Forma
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Basis", (ii) in clause (e) thereof, inserting the following parenthetical
at the end thereof: "(it being understood and agreed that the foregoing
restriction in this clause (e) shall not be applicable with respect to
any proposed Designated Business Acquisition so long as after giving
effect to such proposed Designated Business Acquisition the aggregate
consideration paid (or payable) in connection with all Designated
Business Acquisitions theretofore effected (and including such proposed
Designated Business Acquisition) shall not have exceeded $110,000,000)"
and (iii) deleting the last sentence thereof in its entirety.
11. Section 2.01 of the Credit Agreement is hereby amended by
deleting clauses (a), (b) and (d)(iv) thereof in their entirety and by
inserting in lieu thereof the following new clauses (a), (b) and (d)(iv),
respectively:
"(a) Subject to the terms and conditions and relying upon the
representations and warranties of Holdings and the Borrower herein
set forth, each Lender agrees, severally and not jointly:
(i) to make a Tranche A Term Loan to the Borrower on the
Closing Date, in a principal amount not to exceed the
Tranche A Term Loan Commitment set forth opposite its name on
Schedule 2.01, as the same may be reduced from time to time
pursuant to Section 2.09;
(ii) to make a Tranche B Term Loan to the Borrower on the
Closing Date in a principal amount not to exceed the Tranche B
Term Loan Commitment set forth opposite its name on
Schedule 2.01, as the same may be reduced from time to time
pursuant to Section 2.09;
(iii) to make a Tranche C Term Loan to the Borrower on
the Closing Date in a principal amount not to exceed the
Tranche C Term Loan Commitment set forth opposite its name on
Schedule 2.01, as the same may be reduced from time to time
pursuant to Section 2.09; and
(iv) to make Tranche D Term Loans to the Borrower, at the
Borrower's option, (x) on a single date occurring on, or
within two Business Days after, the First Amendment Effective
Date and (y) on a single date on any date during the six month
period immediately subsequent to the First Amendment Effective
Date (each date upon which Tranche D Term Loans are made being
herein referred to as a "Tranche D Term Loan Borrowing Date"),
in an aggregate principal amount not to exceed the Tranche D
Term Loan Commitment set forth opposite its name on
Schedule 2.01, as the same may be reduced from time to time
pursuant to Section 2.09, provided that on the date specified
in preceding clause (x), the Borrower shall be required to
incur at least $50,000,000 aggregate principal amount of
Tranche D Term Loans."
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"(b) Subject to the terms and conditions and relying upon the
representations and warranties of Holdings and the Borrower herein
set forth, each Lender agrees, severally and not jointly, to make
Revolving Loans to the Borrower, at any time and from time to time
on or after the date hereof, and until the earlier of the Revolving
Credit Maturity Date and the termination of the Revolving Credit
Commitment of such Lender in accordance with the terms hereof, in
an aggregate principal amount at any time outstanding that will not
result in such Lender's Revolving Credit Exposure at such time
exceeding the Revolving Credit Commitment of such Lender at such
time, as the same may be reduced from time to time pursuant to
Section 2.09, provided that the aggregate principal amount of
Revolving Loans made to the Borrower on the Closing Date shall not
exceed $15,000,000."
"(d) (iv) In the case of Revolving Loans made by Lenders
other than the Swingline Lender under the immediately preceding
paragraph (iii), each such Lender shall make the amount of its
Revolving Loan available to the Administrative Agent, in same day
funds, at the office of the Administrative Agent located at 130
Liberty Street, New York, New York, not later than 1:00 p.m.,
New York City time, on the Business Day next succeeding the date
such notice is given. The proceeds of such Revolving Loans shall
be immediately delivered to the Swingline Lender (and not to the
Borrower) and applied to repay the Refunded Swingline Loans. On
the day such Revolving Loans are made, the Swingline Lender's
Applicable Percentage of the Refunded Swingline Loans shall be
deemed to be paid with the proceeds of a Revolving Loan made by the
Swingline Lender and such portion of the Swingline Loans deemed to
be so paid shall no longer be outstanding as Swingline Loans and
shall be outstanding as a Revolving Loan of the Swingline Lender.
The Borrower authorizes the Administrative Agent and the Swingline
Lender to charge the Borrower's account with the Administrative
Agent (up to the amount available in such account) in order to pay
immediately to the Swingline Lender the amount of such Refunded
Swingline Loans to the extent amounts received from Lenders,
including amounts deemed to be received from the Swingline Lender,
are not sufficient to repay in full such Refunded Swingline Loans.
If any portion of any such amount paid (or deemed to be paid) to
the Swingline Lender should be recovered by or on behalf of the
Borrower from the Swingline Lender in bankruptcy, by assignment for
the benefit of creditors or otherwise, the loss of the amount so
recovered shall be ratably shared among all Lenders in the manner
contemplated by Section 2.17. Subject to the compliance by the
Swingline Lender with the provisions of subparagraph (vii) below,
each Lender's obligation to make the Revolving Loans referred to in
this paragraph shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right that such Lender
may have against the Swingline Lender, the Borrower or any other
person for any reason whatsoever; (B) the occurrence or continuance
of an Event of Default or a Default; (C) any adverse change in the
condition (financial or otherwise) of Holdings or any of its
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Subsidiaries; (D) any breach of this Agreement by Holdings, the
Borrower or any other Lender; or (E) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing. Nothing in this Section 2.01(d) shall be deemed to
relieve any Lender from its obligation to fulfill its Commitments
hereunder or to prejudice any rights that the Borrower may have
against any Lender as a result of any default by such Lender
hereunder."
12. Section 2.02 of the Credit Agreement is hereby amended by
deleting clauses (b) and (e) thereof in their entirety and by inserting
in lieu thereof the following new clauses (b) and (e), respectively:
"(b) Subject to Sections 2.08 and 2.14, each Borrowing shall
be comprised entirely of ABR Loans or (except in the case of
Swingline Loans or as set forth in the second proviso to this
sentence) Eurodollar Loans as the Borrower may request pursuant to
Section 2.03. Each Lender may at its option make any Eurodollar
Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan, provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan
in accordance with the terms of this Agreement and such Lender
shall not be entitled to any amounts payable under Section 2.13 or
Section 2.19 in respect of increased costs arising as a result of
such exercise, provided, further, that prior to the earlier of (x)
the 35th day after the Closing Date and (y) the Syndication Date,
the following restrictions shall apply to each Tranche (other than
Tranche D Term Loans): (I) no Loans may be incurred as Eurodollar
Loans prior to the fifth day after the Closing Date and (II) no
more than one borrowing under each Tranche of Revolving Loans and
Growth Capital Revolving Loans may be incurred as Eurodollar Loans,
each of which borrowings of Eurodollar Loans shall be incurred on
the fifth day after the Closing Date and have a one month Interest
Period, provided, further, that prior to the earlier of (A) the
35th day after the First Amendment Effective Date and (B) the
Tranche D Syndication Date, no more than one borrowing of Tranche D
Term Loans may be incurred as Eurodollar Loans, which borrowing of
Eurodollar Loans shall be incurred on the fifth day after the First
Amendment Effective Date and have a one month Interest Period.
Borrowings of more than one Type may be outstanding at the same
time; provided, however, that the Borrower shall not be entitled to
request any Borrowing that, if made, would result in more than 25
Eurodollar Borrowings outstanding hereunder at any time. For
purposes of the foregoing, Borrowings having different Interest
Periods, regardless of whether they commence on the same date,
shall be considered separate Borrowings."
"(e) Notwithstanding any other provision of this Agreement,
the Borrower shall not be entitled to request any Borrowing if the
Interest Period requested with respect thereto would end after the
Tranche A Maturity Date, Tranche B Maturity Date, Tranche C
Maturity Date, Tranche D Maturity Date, Revolving Credit Maturity
Date or Growth Capital Maturity Date, as applicable."
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13. Section 2.05 of the Credit Agreement is hereby amended by
deleting clauses (a) and (c) thereof in their entirety and by inserting
in lieu thereof the following new clauses (a) and (c), respectively:
"(a) The Borrower agrees to pay to each Lender (other than
any Defaulting Lender), through the Administrative Agent, on the
last day of March, June, September and December in each year, and
on the date on which the Commitments of all the Lenders shall be
terminated as provided herein, a commitment fee (a "Commitment
Fee") on the average daily unused amount of the Commitments of such
Lender during the preceding quarter (or other period ending with
the date on which the last of the Commitments of such Lender shall
be terminated) at (x) in the case of Tranche D Term Loan
Commitments, a rate equal to 0.75% per annum and (y) in the case of
all other Commitments, either (i) a rate equal to 0.50% per annum
or (ii) for any such period commencing on or after the date of the
Borrower's delivery to the Administrative Agent of the Borrower's
consolidated financial statements for the second full fiscal
quarter of the Borrower commencing after the Closing Date, at the
rate per annum effective for each day in such period as set forth
on Schedule A. All Commitment Fees shall be computed on the basis
of the actual number of days elapsed in a year of 360 days. For
the purpose of calculating any Lender's Commitment Fee, the
outstanding Swingline Loans during the period for which such
Lender's Commitment Fee is calculated shall be deemed to be zero.
The Commitment Fee due to each Lender shall commence to accrue on
the Closing Date (or in the case of Tranche D Term Loan
Commitments, the First Amendment Effective Date) and shall cease to
accrue on the date on which the last of the Commitments of such
Lender shall be terminated as provided herein."
"(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, the fees set forth in the Fee Letter dated as
of December 18, 1997 and in the Fee Letter dated as of July 11,
1998, at the times specified therein (the "Administrative Agent
Fees")."
14. Section 2.06 of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting in lieu thereof the
following new Section 2.06:
"SECTION 2.06. Interest on Loans. (a) Subject to the
provisions of paragraph (c) below and Section 2.07, the Loans
comprising each ABR Borrowing shall bear interest (computed on the
basis of the actual number of days elapsed over a year of 365 or
366 days, as the case may be, when determined by reference to the
Prime Rate and over a year of 360 days at all other times) at a
rate per annum equal to the Alternate Base Rate plus, in the case
of (i) Tranche A Term Loans, Revolving Loans, Swingline Loans or
Growth Capital Revolving Loans, 1.25%, (ii) Tranche B Term Loans,
1.75% or (iii) Tranche C Term Loans or Tranche D Term Loans, 2.00%.
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(b) Subject to the provisions of paragraph (c) below and
Section 2.07, the Loans comprising each Eurodollar Borrowing shall
bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus, in the case of (i) Tranche A Term Loans, Revolving
Loans or Growth Capital Revolving Loans, 2.25%, (ii) Tranche B Term
Loans, 2.75% or (iii) Tranche C Term Loans or Tranche D Term Loans,
3.00%.
(c) Subject to the provisions of Section 2.07, Tranche A Term
Loans, Tranche B Term Loans, Tranche C Term Loans, Tranche D Term
Loans, Revolving Loans, Swingline Loans and Growth Capital
Revolving Loans comprising any ABR Borrowing or Eurodollar
Borrowing shall bear interest (computed as set forth in paragraph
(a) or (b) above, as applicable) for any date on or after the date
of the Borrower's delivery to the Administrative Agent of the
Borrower's consolidated financial statements for the second full
fiscal quarter of the Borrower commencing after the Closing Date,
at a rate per annum equal to the Alternate Base Rate or the
Adjusted LIBO Rate, as applicable, plus the ABR Margin or the LIBOR
Margin, as applicable, effective for such date as set forth on
Schedule A.
(d) Interest on each Loan shall be payable on the Interest
Payment Dates applicable to such Loan except as otherwise provided
in this Agreement. The applicable Alternate Base Rate or Adjusted
LIBO Rate for each Interest Period or day within an Interest
Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive
absent manifest error. The Administrative Agent shall give the
Borrower prompt notice of each such determination."
15. Section 2.09 of the Credit Agreement is hereby amended by
deleting clauses (a) and (c) thereof in their entirety and by inserting
in lieu thereof the following new clauses (a) and (c), respectively:
"(a) (i) The Tranche A Term Loan Commitments, Tranche B Term
Loan Commitments and Tranche C Term Loan Commitments shall be
automatically and permanently terminated at 5:00 p.m., New York
City time, on the Closing Date. The Tranche D Term Loan
Commitments shall be automatically and permanently (x) reduced at
5:00 p.m., New York City time, on each date on which Tranche D Term
Loans are incurred (after giving effect to the making of Tranche D
Term Loans on such date), in an amount equal to the aggregate
principal amount of Tranche D Term Loans incurred on such date, (y)
terminated at 5:00 p.m., New York City time, in their entirety on
the date occurring on the earlier of (A) six calendar months after
the First Amendment Effective Date and (B) the second Tranche D
Term Loan Borrowing Date, in each case, after giving effect to the
making of any Tranche D Term Loans on or prior to such date and (z)
prior to the termination of the Tranche D Term Loan Commitments as
provided in preceding clause (y), be reduced from time to time to
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the extent required by Section 2.11. The Total Revolving Credit
Commitment shall be automatically and permanently terminated at
5:00 p.m., New York City time, on the Revolving Credit Maturity
Date. The Total Growth Capital Commitment shall be automatically
and permanently terminated at 5:00 p.m., New York City time, on the
Growth Capital Maturity Date.
(ii) The Commitments (and the Term Commitments, Revolving
Credit Commitments, Growth Capital Commitments, Swingline Loan
Commitment and Revolving L/C Commitment of each Lender) shall
terminate in their entirety on March 31, 1998 unless the Closing
Date shall have occurred on or prior to such date."
"(c) In addition to any other mandatory commitment reductions
pursuant to this Section 2.09, on each date after the Closing Date
upon which a mandatory prepayment of Term Loans pursuant to Section
2.12(c) and/or (d) is required (and exceeds in amount the aggregate
principal amount of Term Loans then outstanding) or would be
required if Term Loans were then outstanding, the amount required
to be applied pursuant to said Section (determined as if an
unlimited amount of Term Loans were actually outstanding) in excess
of the aggregate principal amount of Term Loans then outstanding
shall be applied (x) first, to permanently reduce the Total Tranche
D Term Loan Commitment as then in effect, (y) second, to the extent
in excess of the amount pursuant to preceding clause (x), to
permanently reduce the Total Growth Capital Commitment as then in
effect and (z) third, to the extent in excess of the amount applied
pursuant to preceding clauses (x) and (y), to permanently reduce
the Total Revolving Credit Commitment."
16. Section 2.10 of the Credit Agreement is hereby amended by
deleting clause (viii) thereof in its entirety and by inserting in lieu
thereof the following new clause (viii):
"(viii) (A) with respect to each Tranche (other than Tranche
D Term Loans), prior to the earlier of (i) the 35th day after the
Closing Date and (ii) the Syndication Date, conversions of ABR
Loans into Eurodollar Loans may only be made if the conversion is
effective on the fifth day after the Closing Date and otherwise in
accordance with Section 2.02(b) and (B) with respect to Tranche D
Term Loans, prior to the earlier of (i) the 35th day after the
First Amendment Effective Date and (ii) the Tranche D Syndication
Date, conversions of ABR Loans into Eurodollar Loans may only be
made if the conversion is effective on the fifth day after the
First Amendment Effective Date and otherwise in accordance with
Section 2.02(b)."
17. Section 2.11 of the Credit Agreement is hereby amended by
(i) in clause (a)(iii) thereof, deleting the parenthetical contained
therein and by inserting in lieu thereof the following new parenthetical:
"(each such date being called a "Tranche C Term Loan
Installment Date")",
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(ii) inserting, immediately after the amortization table
contained in clause (a)(iii) thereof, the following new clause (iv):
"(iv) The Tranche D Term Borrowings shall be payable as to
principal in the amounts and on the dates set forth below (each
such date being called a "Tranche D Term Loan Installment Date"
and, together with the Tranche A Term Loan Installment Dates, the
Tranche B Term Loan Installment Dates and the Tranche C Term Loan
Installment Dates, the "Installment Dates"):
Tranche D
Term Loan
Date Amount
March 31, 1999 $ 437,500
June 30, 1999 $ 437,500
September 30, 1999 $ 437,500
December 31, 1999 $ 437,500
March 31, 2000 $ 437,500
June 30, 2000 $ 437,500
September 30, 2000 $ 437,500
December 31, 2000 $ 437,500
March 31, 2001 $ 437,500
June 30, 2001 $ 437,500
September 30, 2001 $ 437,500
December 31, 2001 $ 437,500
March 31, 2002 $ 437,500
June 30, 2002 $ 437,500
September 30, 2002 $ 437,500
December 31, 2002 $ 437,500
March 31, 2003 $ 437,500
June 30, 2003 $ 437,500
September 30, 2003 $ 437,500
December 31, 2003 $ 437,500
March 31, 2004 $ 437,500
June 30, 2004 $ 437,500
September 30, 2004 $ 437,500
December 31, 2004 $ 437,500
March 31, 2005 $ 437,500
June 30, 2005 $ 437,500
September 30, 2005 $ 437,500
December 31, 2005 $ 437,500
March 31, 2006 $40,687,500
June 30, 2006 $40,687,500
September 30, 2006 $40,687,500
January 31, 2007 $40,687,500
; provided that in the event the aggregate principal amount of
Tranche D Term Loans incurred (irrespective of any repayments or
prepayments of any such Tranche D Term Loans) at the time that
the Tranche D Term Loan Commitments are terminated in accordance
with Section 2.09 is less than $175,000,000, an amount equal to
such difference shall be applied to reduce the then remaining
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scheduled installments (as determined on the date the Tranche D
Term Loan Commitments are terminated) set forth above in the
table above pro rata based on the then remaining principal
amount of each such amount.",
(iii) deleting clause (b) thereof in its entirety and
by inserting in lieu thereof the following new clause (b):
"(b) Except as set forth in paragraphs (c) and (d)
below,
(i) all Net Proceeds, Capital Call Contributions and
Excess Cash Flow to be applied at any time to prepay Term
Borrowings pursuant to Sections 2.12(c) and (d), respectively,
shall be applied to the Tranche A Term Borrowings, Tranche B
Term Borrowings, Tranche C Term Borrowings and Tranche D Term
Borrowings ratably in accordance with the respective principal
amounts outstanding thereof; and
(ii) each prepayment of principal of the Term
Borrowings pursuant to Section 2.12(a) shall be applied to the
Tranche A Term Borrowings, the Tranche B Term Borrowings, the
Tranche C Term Borrowings and the Tranche D Term Borrowings
ratably in accordance with the respective outstanding principal
amounts thereof.
Such prepayments made pursuant to Section 2.12(a) and
prepayments made pursuant to Section 2.12(d) shall reduce
scheduled payments required under paragraph (a) above, of the
respective Tranches of Term Loans required to be repaid, after
the date of such prepayment in the scheduled order of maturity
and such prepayments made pursuant to Section 2.12(c) shall
reduce scheduled payments required under paragraph (a) above, of
the respective Tranches of Term Loans required to be repaid,
after the date of such prepayment on a pro rata basis. To the
extent not previously paid, all Tranche A Term Borrowings shall
be due and payable on the Tranche A Maturity Date, all Tranche B
Term Borrowings shall be due and payable on the Tranche B
Maturity Date, all Tranche C Term Borrowings shall be due and
payable on the Tranche C Maturity Date and all Tranche D Term
Borrowings shall be due and payable on the Tranche D Maturity
Date. Each payment of Borrowings pursuant to this Section 2.11
shall be accompanied by accrued interest on the principal amount
paid to but excluding the date of payment." and
(iv) deleting clause (d) thereof in its entirety and by
inserting in lieu thereof the following new clause (d):
"(d) Any Lender holding Tranche B Term Loans, Tranche C
Term Loans or Tranche D Term Loans may, to the extent Tranche A
Term Borrowings are outstanding, elect on not less than one
Business Day's prior written notice to the Administrative Agent
with respect to (i) any optional prepayment made pursuant to
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Section 2.12(a), if the Borrower shall have consented to the
availability of such election pursuant to this Section 2.11(d),
or (ii) any mandatory prepayment made pursuant to
Section 2.12(c) or (d), not to have such prepayment applied to
such Lender's Tranche B Term Loans, Tranche C Term Loans or
Tranche D Term Loans, as the case may be, until all Tranche A
Term Borrowings shall have been paid in full, in which case the
amount not so applied shall be applied to prepay Tranche A Term
Borrowings, and shall reduce scheduled payments under
Section 2.11(a) after the date of any prepayment on the same
basis as is provided for the respective types of payments
pursuant to Section 2.11(b)."
18. Section 2.12(c) of the Credit Agreement is hereby
amended by deleting said Section in its entirety and inserting in lieu
thereof the following new Section 2.12(c):
"(c) The Borrower shall apply all Net Proceeds and
Capital Call Contributions promptly upon receipt thereof by
Holdings, the Borrower or any of their Subsidiaries to prepay
Term Borrowings in accordance with paragraphs (b) and (d) of
Section 2.11, provided that to the extent Capital Call
Contributions are required by the express terms of the Capital
Call Agreement to be applied to outstanding obligations pursuant
to this Agreement in a manner different from that provided above
in this Section 2.12(c), such Capital Call Contributions shall
be applied in accordance with the express requirements of the
Capital Call Agreement."
19. Section 2.21 of the Credit Agreement is hereby
amended by deleting the reference to "Revolving Commitment" therein and
by inserting in lieu thereof a reference to "Revolving Credit
Commitment".
20. Article III of the Credit Agreement is hereby
amended by adding the following new section at the end thereof:
"SECTION 3.25 Year 2000. Except to the extent the
failure to do so, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, each
of Holdings, the Borrower and each of their respective
Subsidiaries has taken (or is taking) all reasonable measures
(including reprogramming, remediation, internal testing and
other corrective action) to ensure that all of its Information
Systems and Equipment are Year 2000 Compliant. Furthermore, to
the extent that such reprogramming, remediation, testing or
other corrective action is required, the cost thereof, as well
as the cost of the reasonably foreseeable consequences of
failure of such Information Systems and Equipment to become Year
2000 Compliant, to Holdings and its Subsidiaries (including,
without limitation, reprogramming errors and the failure of
other systems or equipment) could not reasonably result in a
Material Adverse Effect."
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21. Section 4.01 of the Credit Agreement is hereby
amended by (i) inserting, immediately after clause (c) thereof, the
following new clause (d):
"(d) In the event of any Tranche D Term Borrowings,
to the best of the knowledge of Holdings and the Borrower (in
each case, after due inquiry), no Capital Call Event (as defined
in the Capital Call Agreement) shall have theretofore occurred."
and
(ii) deleting the penultimate sentence thereof and
inserting in lieu thereof the following new sentence:
"Each Borrowing (including without limitation each Tranche D
Term Borrowing) and each issuance of a Letter of Credit (except
those specified in the parenthetical contained in the
introductory paragraph of this Section 4.01) shall be deemed to
constitute a representation and warranty by the Borrower on the
date of such Borrowing or issuance, as the case may be, as to
the matters specified in paragraphs (b) and (c) of this
Section 4.01 and, with respect to any Tranche D Term Borrowings,
as to the matter specified in paragraph (d) of this Section
4.01."
22. Section 6.01 of the Credit Agreement is hereby
amended by (i) deleting clause (a) thereof and inserting in lieu thereof
the following new clause (a):
"(a) Indebtedness existing on the date hereof and set
forth in Schedule 6.01, but not any extensions, renewals or
replacements of such Indebtedness except (i) renewals and
extensions expressly provided for in the agreements evidencing
any such Indebtedness as the same are in effect on the date of
this Agreement and (ii) refinancings and extensions of any such
Indebtedness if the average life to maturity thereof is greater
than or equal to that of the Indebtedness being refinanced or
extended, provided that such extending, renewal or replacement
Indebtedness shall not be (A) Indebtedness of an obligor that
was not an obligor with respect to the Indebtedness being
extended, renewed or refinanced or (B) in a principal amount
which exceeds the Indebtedness being renewed, extended or
refinanced (plus unpaid accrued interest and premium thereon),
provided, further, that, for purposes of preceding sub-clause
(ii), refinancings of Indebtedness thereunder shall include,
with respect to any Indebtedness existing on the date hereof and
set forth in Schedule 6.01 and which constitutes Converted
Foreign Debt, incurrence of Indebtedness which would otherwise
satisfy the requirements of this paragraph (a) of Section 6.01
assuming that such Converted Foreign Debt had not been converted
into (or otherwise accounted for as) equity of the obligor and
that such Converted Foreign Debt constitutes the Indebtedness
being refinanced and is outstanding on the date of such
incurrence of Indebtedness (provided, that no premium, interest,
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penalties, fees, indemnification, reimbursements, damages or any
other liabilities shall be attributable to, or deemed to have
accrued or otherwise become due and payable with respect to, any
such Converted Foreign Debt);",
(ii) in clause (j) thereof, (x) deleting the phrase "paragraph (j) shall
not at any time outstanding exceed $15,000,000" appearing therein and by
inserting in lieu thereof the phrase "paragraph (j) (including the amount
of any Permitted Refinancing Indebtedness incurred pursuant to the last
parenthetical of this paragraph (j) of Section 6.01) shall not at any
time outstanding exceed $25,000,000 (plus, upon the assumption of the
Assumed Note by a Subsidiary of the Borrower, an amount equal to the
aggregate principal amount (not to exceed 106,229,000 French francs) of
the Assumed Note)" and (y) inserting the following parenthetical at the
end thereof: "(it being understood and agreed that Permitted Refinancing
Indebtedness incurred to refinance Indebtedness otherwise permitted under
this paragraph (j), or refinancings thereof previously effected pursuant
to this parenthetical, shall be permitted)", (iii) in clause (o) thereof,
changing the reference therein to "$20,000,000" to "$50,000,000", (iv)
deleting clause (v) thereof and inserting in lieu thereof the following
new clause (v):
"(v) Indebtedness of any Foreign Subsidiary that is a
Subsidiary of the Borrower (which Subsidiary must be a Wholly
Owned Subsidiary of the Borrower to the extent the aggregate
principal amount of Indebtedness at any time outstanding
pursuant to this clause (v) exceeds $30,000,000) to the Borrower
or any domestic Subsidiary of the Borrower (which domestic
Subsidiary must be a Wholly Owned Subsidiary of the Borrower to
the extent the aggregate principal amount of Indebtedness at any
time outstanding pursuant to this clause (v) exceeds
$30,000,000) in an aggregate principal amount outstanding at any
time not in excess of the higher of (i) $30,000,000 and (ii) the
aggregate principal amount of Indebtedness necessary or
desirable (as determined in good faith by the Borrower and such
Foreign Subsidiary) to be incurred by such Foreign Subsidiary in
connection with the consummation of the Designated Business
Acquisitions; provided that if the Administrative Agent or
Required Lenders so request, any such Indebtedness shall be
evidenced by a promissory note which shall be in form and
substance satisfactory to the Administrative Agent and which
shall be pledged pursuant to the Pledge Agreement (so long as
such pledge would not result in adverse tax consequences to
Holdings, the Borrower or the applicable Subsidiary); it being
understood and agreed that to the extent any Indebtedness
incurred under this paragraph (v) of Section 6.01 in connection
with the Designated Business Acquisitions constitutes at any
time or from time to time Converted Foreign Debt, incurrence of
Indebtedness shall be permitted hereunder to refinance such
Converted Foreign Debt (assuming for purposes of succeeding
clauses (i) through (iv), inclusive, that such Converted Foreign
Debt had not been converted into (or otherwise accounted for as)
equity of the obligor), provided that (i) the principal amount
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of such refinancings does not exceed the principal amount of
such Converted Foreign Debt, (ii) the average life to maturity
of such refinancings is greater than or equal to that of such
Converted Foreign Debt, (iii) if the Converted Foreign Debt is
subordinated in right of payment to the Obligations under this
Agreement, such refinancing shall be subordinated in right of
payment to such Obligations on terms at least as favorable to
the Lenders as those contained in the documentation governing
the Converted Foreign Debt and (iv) no refinancings shall have
different obligors or obligees (i.e., the obligees shall be the
Borrower or any domestic Subsidiary of the Borrower (which
domestic Subsidiary must be a Wholly Owned Subsidiary of the
Borrower to the extent the aggregate principal amount of
Indebtedness at any time outstanding pursuant to this clause (v)
exceeds $30,000,000)), or greater guarantees or security, than
the Converted Foreign Debt, provided, further, no premium,
interest, penalties, fees, indemnification, reimbursements,
damages or any other liabilities shall be attributable to, or
deemed to have accrued or otherwise become due and payable with
respect to, any such Converted Foreign Debt;",
(v) redesignating clause "(w)" thereof as clause "(x)" thereof and
changing the reference therein to clause "(v)" to "(w)" and (vi)
inserting, immediately after clause (v) thereof, the following new
clause:
"(w) Indebtedness of the Borrower and its domestic
Subsidiaries in respect of one or more IRB Financings so long as
(i) the aggregate outstanding principal amount thereof does not
at any time exceed $30,000,000 (as reduced by any repayments of
principal thereof), (ii) such Indebtedness is incurred on or
before the date occurring eighteen calendar months after the
First Amendment Effective Date, (iii) no Default or Event of
Default exists at the time of the incurrence of the respective
IRB Financing or would result therefrom and (iv) all of the
terms and conditions of the respective IRB Financing Documents
(as well as the structure of the respective IRB Financing) are
in form and substance satisfactory to the Administrative Agent
(it being understood and agreed that promptly (A) upon any
increase in the aggregate outstanding principal amount of IRB
Financings from time to time on or before the date occurring
eighteen calendar months after the First Amendment Effective
Date or (B) upon request of the Administrative Agent, the
Borrower shall deliver a certificate to the Administrative
Agent, signed by a Responsible Officer of the Borrower and
certifying as to (1) the aggregate principal amount of all IRB
Financings theretofore incurred by the Borrower and its domestic
Subsidiaries (irrespective of any repayments or prepayments of
any such IRB Financings) and (2) if different than the amount
set forth in immediately preceding sub-clause, the then
aggregate outstanding principal amount of such IRB Financings);
and".
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23. Section 6.02(d) of the Credit Agreement is hereby
amended by inserting, immediately after the first reference therein to
"Indebtedness", the following parenthetical:
"(or Permitted Refinancing Indebtedness, in which case any such
Lien shall be permitted subject to compliance with clause (iv)
of the definition of Permitted Refinancing Indebtedness
contained herein)".
24. Section 6.04 of the Credit Agreement is hereby
amended by (i) in clause (k) thereof, changing the reference therein to
"$20,000,000" to "$25,000,000", (ii) in clause (l) thereof, inserting the
following parenthetical at the end thereof: "(it being understood and
agreed that investments by the Borrower and its Subsidiaries in Foreign
Subsidiaries that are Wholly Owned Subsidiaries of the Borrower shall be
permitted to the extent necessary or desirable (as determined in good
faith by the Borrower) to be made in connection with the Designated
Business Acquisitions)", (iii) in clause (m) thereof, inserting,
immediately after the reference to "Designated Capital Contributions"
therein, the phrase "and Capital Call Contributions", (iv) in clause (r)
thereof, deleting the word "and" at the end thereof and (v) inserting,
immediately after clause (r) thereof, the following new clause:
"(s) investments constituting Converted Foreign Debt
permitted under Sections 6.01(a) and/or (v); and".
25. Section 6.07 of the Credit Agreement is hereby
amended by (i) deleting clause (a) thereof and inserting in lieu thereof
the following new clause (a):
"(a) Sell or transfer any property or assets to, or
purchase or acquire any property or assets from, or otherwise
engage in any other transaction with, any of its Affiliates or
any known direct or indirect holder of 10% or more of any class
of capital stock of Holdings, unless such transaction forms a
part of the Recapitalization or is (i) otherwise permitted (or
required) under this Agreement or the Capital Call Agreement and
(ii) upon terms no less favorable to Holdings, the Borrower or
such Subsidiary, as the case may be, than it would obtain in a
comparable arm's-length transaction with a person which was not
an Affiliate, provided that the foregoing restriction shall not
apply to (A) the payment to the Fund or any of its Affiliates or
the Fund Affiliates of the monitoring and management fees
referred to in paragraph (c) below or fees payable on the
Closing Date or (B) the indemnification of directors of
Holdings, the Borrower and their Subsidiaries in accordance with
customary practice." and
(ii) in clause (b) thereof, deleting sub-clause (viii)
thereof in its entirety and inserting in lieu thereof the following new
sub-clause (viii):
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<PAGE>
"(viii) any purchase by the Investors or the Continuing Partners
of Equity Interests of Holdings or Investor LP (whether pursuant
to the Capital Call Agreement or otherwise) or any purchase by
Holdings of Equity Interests of the Borrower or any contribution
by Holdings to the equity capital of the Borrower, provided that
any Equity Interests of the Borrower purchased by Holdings shall
be pledged to the Collateral Agent on behalf of the Lenders
pursuant to the Pledge Agreement,".
26. Section 6.09 of the Credit Agreement is hereby
amended by (i) in clause (b)(i) thereof, inserting, immediately before
the phrase "any Holdings Discount Notes", the phrase "any IRB Financings
(without the prior written consent of the Administrative Agent)," and
(ii) in clause (b)(ii) thereof, (x) inserting, immediately before the
first reference to the phrase "any Holdings Discount Notes", the phrase
"any IRB Financings (without the prior written consent of the
Administrative Agent)," and (y) inserting, immediately before the phrase
"any Holdings Discount Notes Document", the phrase "any of the respective
IRB Financing Documents,".
27. Section 6.10(a) of the Credit Agreement is hereby
amended by deleting said Section in its entirety and inserting in lieu
thereof the following new Section 6.10(a):
"(a) (x) During the period (taken as one accounting
period) from the Closing Date through and including December 31,
1998, the Borrower and its Subsidiaries may make Capital
Expenditures in an aggregate amount not to exceed $200,000,000
and (y) during any fiscal year thereafter the Borrower and its
Subsidiaries may make Capital Expenditures so long as the
aggregate amount thereof does not exceed the amount set forth
opposite such fiscal year below (provided that the amounts for
such fiscal years set forth in clauses (x) and (y) hereof shall
be reduced by any amounts used to make Permitted Business
Acquisitions pursuant to clause (x) of the proviso to the
definition of Permitted Business Acquisition Amount):
Year Amount
1999 $140,000,000
2000 $110,000,000
2001 $ 90,000,000
2002 and each fiscal $ 80,000,000".
year thereafter
28. Section 6.11 of the Credit Agreement is hereby
amended by inserting, immediately after the phrase "December 31, 1998,
multiplied by 4/3" appearing therein, the following additional proviso:
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<PAGE>
", provided, further, to the extent any Asset Disposition or any
Permitted Business Acquisition (or any similar transaction or
transactions which require a waiver or a consent of the Required
Lenders pursuant to Section 6.05) has occurred during the
relevant Test Period, the Interest Coverage Ratio shall be
determined for the respective Test Period on a Pro Forma Basis
for such occurrences".
29. Section 7.01 of the Credit Agreement is hereby
amended by (i) deleting the word "or" appearing at the end of clause (k)
thereof, (ii) inserting the word "or" at the end of clause (l) thereof
and (iii) inserting, immediately after clause (l) thereof, the following
new clause (m):
"(m) (i) the Capital Call Agreement or any material
provision thereof shall cease to be in full force and effect, or
Blackstone Capital Partners, Blackstone Offshore Partners,
Blackstone Family Partnership, Investor LP, any Loan Party or
any person acting by or on behalf of Blackstone Capital
Partners, Blackstone Offshore Partners, Blackstone Family
Partnership, Investor LP or any such Loan Party shall deny or
disaffirm in writing its obligations under the Capital Call
Agreement or Blackstone Capital Partners, Blackstone Offshore
Partners, Blackstone Family Partnership, Investor LP, any Loan
Party or any person acting on or behalf of Blackstone Capital
Partners, Blackstone Offshore Partners, Blackstone Family
Partnership, Investor LP or any such Loan Party shall default in
the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to
the Capital Call Agreement and such default shall continue
unremedied for a period of 10 days or (ii) any representation,
warranty or statement made (or deemed made) by Blackstone
Capital Partners, Blackstone Offshore Partners, Blackstone
Family Partnership or Investor LP in the Capital Call Agreement
shall prove to be false or misleading in any material respect on
the date as of which made or deemed made;".
30. Section 7.02 of the Credit Agreement is hereby
amended by adding the following new clause (c) immediately at the end
thereof:
"(c) Limitation Regarding Capital Call Agreement.
Notwithstanding anything herein to the contrary, it is
understood and agreed that any increases to EBITDA pursuant to
Section 7.02(a) shall have no effect (and shall not increase
EBITDA) in measuring Financial Performance Covenants for
purposes of determining compliance with the Capital Call
Agreement."
31. Section 9.18 of the Credit Agreement is hereby
amended by deleting the references to "(except, if any such Holdings
Partner is a Loan Party, for such Loan Party's obligations under the Loan
Documents)" appearing in clauses (a) and (b) thereof and by inserting in
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<PAGE>
lieu of each reference thereto a reference to "(except, if any such
Holdings Partner is a Loan Party or is otherwise a party to any Loan
Documents, for such person's obligations under such Loan Documents)".
32. The Credit Agreement is hereby amended by deleting
Schedules A and 2.01 thereto in their entirety and by inserting in lieu
thereof new Schedules A and 2.01, respectively, in the form of the
respective such Schedules attached hereto.
33. The Credit Agreement is hereby amended by (i)
deleting Exhibits A and B thereto in their entirety and by inserting in
lieu thereof new Exhibits A and B, respectively, in the forms of the
respective such Exhibits attached hereto and (ii) inserting new Exhibit K
in the form of Exhibit K attached hereto.
II.
Acknowledgment with respect to Various Loan Documents.
1. For avoidance of doubt, the Borrower hereby
acknowledges and confirms its due execution and delivery of all Loan
Documents (each Loan Document as amended, modified or supplemented
through and including the date hereof), including all instruments,
financing statements, agreements, certificates and documents executed and
delivered in connection therewith, and hereby ratifies all actions
heretofore taken in connection therewith.
2. Each Loan Party, by its execution and delivery of a
copy of this First Amendment, hereby consents to the extensions of credit
pursuant to the Credit Agreement. Each Loan Party further acknowledges
and agrees to the provisions of this First Amendment and hereby agrees
for the benefit of the Lenders that all extensions of credit (including
without limitation all Tranche D Term Loans) pursuant to the Credit
Agreement (as same is amended by this First Amendment, and as same may be
further amended, modified or supplemented from time to time) shall be
fully entitled to all benefits of (and shall be fully guaranteed pursuant
to) each of the Guarantee Agreements and shall be fully secured pursuant
to, and in accordance with the terms of, all the Security Documents.
III.
Miscellaneous.
1. In order to induce the Lenders to enter into this
First Amendment, each of Holdings and the Borrower hereby represents and
warrants to each of the Lenders that (i) all representations and
warranties contained in Section 3 of the Credit Agreement and in the
other Loan Documents are true and correct in all material respects on and
as of the First Amendment Effective Date and after giving effect to this
First Amendment (unless such representations and warranties relate to a
specific earlier date, in which case such representations and warranties
shall be true and correct as of such earlier date) and (ii) there exists
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<PAGE>
no Default or Event of Default on the First Amendment Effective Date
after giving effect to this First Amendment.
2. This First 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 Loan Document.
3. This First 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 shall be lodged with
the Company and the Administrative Agent.
4. THIS FIRST 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.
5. This First Amendment shall become effective on the
date (the "First Amendment Effective Date") when:
(a) Each Loan Party (including, without limitation,
Holdings, the Borrower, the Co-Borrower and each Subsidiary
Guarantor) and the Required Lenders shall have signed a
counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by usage of facsimile
transmission) same to the Administrative Agent at its office
located at 130 Liberty Street, New York, New York;
(b) Each of Blackstone Capital Partners, Blackstone
Offshore Partners, Blackstone Family Partnership, Investor LP,
Holdings and the Borrower shall have signed a counterpart of the
Capital Call Agreement (whether the same or different
counterparts) and shall have delivered (including by usage of
facsimile transmission) same to the Administrative Agent at its
office located at 130 Liberty Street, New York, New York, and
the Capital Call Agreement shall be in full force and effect on
such date and each document (including each Uniform Commercial
Code financing statement) required by law or reasonably
requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Collateral Agent for
the benefit of the Secured Parties a valid, legal and perfected
first-priority security interest in and lien on the Collateral
described in such agreement shall have been delivered to the
Collateral Agent;
(c) The Administrative Agent shall have received, on
behalf of itself, the Syndication Agent, the Documentation
Agent, the Collateral Agent, the Lenders and the Fronting Bank,
a favorable written opinion, in form and substance satisfactory
to the Administrative Agent, of special New York counsel,
special Pennsylvania counsel and special Cayman Islands counsel
for the various Loan Parties and the other parties (other than
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<PAGE>
the Administrative Agent and the Collateral Agent) to the
Capital Call Agreement (each of which counsel shall be
reasonably satisfactory to the Administrative Agent), in each
case (i) dated the First Amendment Effective Date,
(ii) addressed to the Fronting Bank, the Administrative Agent,
the Syndication Agent, the Collateral Agent, the Documentation
Agent and the Lenders and (iii) covering such matters incident
to this First Amendment, the Capital Call Agreement and the
transactions contemplated herein and therein as the
Administrative Agent and the Required Lenders may reasonably
request;
(d) All legal matters incident to this First Amendment
(including the borrowings and extensions of credit pursuant to
the Credit Agreement as amended hereby), the Capital Call
Agreement and the other Loan Documents shall be reasonably
satisfactory to the Administrative Agent and the Required
Lenders;
(e) With respect to the Loan Parties, the
Administrative Agent shall have received each of the following
items: (i) a certificate of the Secretary or Assistant Secretary
of each Loan Party dated the First Amendment Effective Date and
certifying (x) that attached thereto is a true and complete copy
of resolutions duly adopted by the Board of Directors (or
equivalent governing body) of such Loan Party (or, its managing
general partner or managing member) authorizing the execution,
delivery and performance of this First Amendment (and the
Capital Call Agreement, in the case of Holdings and the
Borrower) and the consummation of the transactions contemplated
hereby, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect and (y) as
to the incumbency and specimen signature of each officer
executing this First Amendment (and the Capital Call Agreement,
in the case of Holdings and the Borrower) on behalf of such Loan
Party, (ii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to preceding clause
(i), (iii) in the case of Holdings and the Borrower, a
certificate as to the good standing of such person as of a
recent date from the Secretary of State of the Commonwealth of
Pennsylvania or the State of Delaware, as the case may be, and
(iv) such other documents as the Administrative Agent and the
Required Lenders may reasonably request, and all of the
foregoing shall be reasonably acceptable to the Administrative
Agent in its reasonable discretion;
(f) With respect to each of Blackstone Capital
Partners, Blackstone Offshore Partners, Blackstone Family
Partnership and Investor LP, each of the following items shall
have been made available (and be satisfactory) to the
Administrative Agent: (i) a true and complete copy of the
certificate or articles of incorporation, partnership agreement
-26-
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<PAGE>
or other constituent documents, including all amendments
thereto, of such person, (x) in the case of a corporation,
certified as of a recent date by the Secretary of State of the
state of its organization, or (y) in the case of a partnership,
certified by an authorized person of such person and (ii) a true
and complete copy of the by-laws (or partnership agreement or
other equivalent governing documents) of such person as in
effect on the First Amendment Effective Date and at all times
since a date prior to the date of the resolutions described in
succeeding clause (g);
(g) With respect to each of Blackstone Capital
Partners, Blackstone Offshore Partners, Blackstone Family
Partnership and Investor LP, the Administrative Agent shall have
received each of the following items: (i) a certificate of an
authorized person of such person dated the First Amendment
Effective Date and certifying (x) that attached thereto is a
true and complete copy of resolutions duly adopted by the Board
of Directors (or equivalent governing body) of such person (or,
its managing general partner or managing member) authorizing the
execution, delivery and performance of the Capital Call
Agreement to which such person is a party and that such
resolutions have not been modified, rescinded or amended and are
in full force and effect, (y) that the certificate or articles
of incorporation, partnership agreement or other constituent
documents and by-laws of such person made available pursuant to
clause (f) above have not been amended since the date of the
last amendment thereto disclosed and (z) as to the incumbency
and specimen signature of each person executing the Capital Call
Agreement or any other document delivered in connection herewith
on behalf of such person, (ii) a certificate of another
authorized person as to the incumbency and specimen signature of
the authorized person executing the certificate pursuant to (i)
above, (iii) a certificate as to the good standing of such
person as of a recent date from the applicable Governmental
Authority and (iv) such other documents as the Administrative
Agent and the Required Lenders may reasonably request, and all
of the foregoing shall be reasonably acceptable to the
Administrative Agent in its reasonable discretion;
(h) The Administrative Agent shall have received a
certificate of the Borrower, dated the First Amendment Effective
Date and signed by the Borrower, confirming compliance with the
conditions precedent set forth in paragraphs (b), (c) and (d) of
Section 4.01; and
(i) The Collateral Agent shall have received (i) fully
executed counterparts of amendments (the "Mortgage Amendments"),
in form and substance satisfactory to the Administrative Agent
and the Required Lenders, to each of the Mortgages, together
with evidence that counterparts of each of the Mortgage
Amendments have been delivered to the title insurance company
insuring the Lien of the Mortgages for recording in all places
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<PAGE>
to the extent necessary or, in the reasonable opinion of the
Collateral Agent, desirable to effectively maintain a valid and
enforceable first priority (subject to any Lien expressly
permitted by Section 6.02 of the Credit Agreement) mortgage lien
on each Mortgaged Property in favor of the Collateral Agent (or
such other trustee as may be required or desired under local
law) for the benefit of the Secured Parties, (ii) endorsements
of the authorized issuing agent for title insurers reasonably
satisfactory to the Collateral Agent to each policy or policies
of title insurance relating to the Mortgages Properties assuring
the Collateral Agent that each Mortgage is a valid and
enforceable first priority mortgage lien on the respective
Mortgaged Property, free and clear of all defects and
encumbrances (except any Lien expressly permitted by Section
6.02 of the Credit Agreement) and (iii) such other documents as
the Administrative Agent and the Required Lenders may reasonably
request, and all of the foregoing shall be reasonably acceptable
to the Administrative Agent in its reasonable discretion.
Unless the Administrative Agent has received actual notice from any
Lender that the conditions contained in this Section 5 of Part III have
not been met to its satisfaction, upon the satisfaction of the conditions
described in clauses (a) and (b) above and upon the Administrative
Agent's good faith determination that the conditions described in clauses
(c) through (i), inclusive, above have been met, then the First Amendment
Effective Date shall have been deemed to have occurred, regardless of any
subsequent determination that one or more of the conditions thereto had
not been met (although the occurrence of the First Amendment Effective
Date shall not release Holdings, the Borrower, any other Loan Party or
any other relevant person from any liability for failure to satisfy one
or more of the applicable conditions contained in this Section 5 of Part
III). The Administrative Agent will give the Borrower and each Lender
prompt written notice of the occurrence of the First Amendment Effective
Date.
6. Promptly following any request from the
Administrative Agent (and in any event within 60 days after receiving any
such request), Holdings, the Borrower, the Co-Borrower and the other Loan
Parties shall take such action or actions as may be reasonably requested
by the Administrative Agent to protect and preserve any security
interests created, or intended to be created, pursuant to the various
Security Documents (including without limitation the Capital Call
Agreement). It is understood and agreed by the parties hereto that the
provisions of this Section 6 of Part III shall constitute a covenant and
agreement for purposes of the Credit Agreement.
7. From and after the First Amendment Effective Date,
all references in the Credit Agreement and each of the Loan Documents to
the Credit Agreement shall be deemed to be references to the Credit
Agreement as amended hereby.
* * *
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
First Amendment to be duly executed by their respective authorized
officers as of the day and year first above written.
GRAHAM PACKAGING HOLDINGS
COMPANY
By: BCP/Graham Holdings L.L.C., its
general partner
By: /s/ John E. Hamilton
___________________________________
Name: John E. Hamilton
Title:
GRAHAM PACKAGING COMPANY
By: GPC Opco GP LLC, its general partner
By: /s/ John E. Hamilton
___________________________________
Name: John E. Hamilton
Title:
GPC CAPITAL CORP. I
By: /s/ John E. Hamilton
___________________________________
Name: John E. Hamilton
Title:
BANKERS TRUST COMPANY,
Individually, as Administrative Agent,
as Syndication Agent and as Fronting Bank
By: /s/ Mary Kay Coyle
___________________________________
Name: Mary Kay Coyle
Title: Managing Director
NATIONSBANK, N.A.,
Individually and as Documentation Agent
By: /s/ Philip Durand
___________________________________
Name: Philip Durand
Title: Vice President
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<PAGE>
ABN AMRO BANK, NV
By: /s/ Roy D. Hasbrook
___________________________________
Name: Roy D. Hasbrook
Title: Group Vice President and Director
By: /s/ Louis K. McLinden, Jr.
___________________________________
Name: Louis K. McLinden, Jr.
Title: Vice President
AG CAPITAL FUNDING PARTNERS L.P.
By: Angello Gordon & Co., L.P.,
as Investment Advisor
By: /s/ Jeffrey H. Aronson
___________________________________
Name: Jeffrey H. Aronson
Title: Managing Director
ALLIANCE CAPITAL MANAGEMENT L.P.,
as Manager on behalf of ALLIANCE CAPITAL
FUNDING, L.L.C.
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, General Partner of Alliance
Capital Management L.P.
By: /s/ Kenneth G. Ostmann
___________________________________
Name: Kenneth G. Ostmann
Title: Vice President
AMARA-I FINANCE LIMITED
By: /s/ Ian David Moore
___________________________________
Name: Ian David Moore
Title: Director
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc.,
as Collateral Manager
By: /s/ Michael D. Hatley
___________________________________
Name: Michael D. Hatley
Title: Senior Vice President
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<PAGE>
ARES LEVERAGED INVESTMENT FUND, L.P.
By: Ares Management, L.P.
General Partner
By: /s/ Merritt S. Hooper
___________________________________
Name: Merritt S. Hooper
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ J. Alan Edwards
___________________________________
Name: J. Alan Edwards
Title: Authorized Signatory
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ Nicholas J. Campbell
___________________________________
Name: Nicholas J. Campbell
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Robert T. Sacks
___________________________________
Name: Robert T. Sacks
Title: Managing Director
CIBC, INC.
By: /s/ Frank Fiorito
___________________________________
Name: Frank Fiorito
Title: Authorized Signatory
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<PAGE>
CREDIT AGRICOLE INDOSUEZ
By: /s/ Craig Welch
___________________________________
Name: Craig Welch
Title: First Vice President
By: /s/ Sarah McClintock
___________________________________
Name: Sarah McClintock
Title: Vice President & Team Leader
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (E)
By: TCW Asset Management Company
as Attorney-in-Fact
By: /s/ Mark L. Gold
___________________________________
Name: Mark L. Gold
Title: Managing Director
By: /s/ Justin L. Driscoll
___________________________________
Name: Justin L. Driscoll
Title: Senior Vice President
CREDIT LYONNAIS, NEW YORK BRANCH
By: /s/ Attila Koc
___________________________________
Name: Attila Koc
Title: First Vice President
CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC.
As: Attorney-in-Fact and on behalf on First
Allmerica Financial Life Insurance Company as
Portfolio Manager
By: /s/ Catherine C. McDermott
___________________________________
Name: Catherine C. McDermott
Title: Principal
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<PAGE>
CYPRESSTREE INVESTMENT PARTNERS I, LTD.
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager.
By: /s/ Catherine C. McDermott
___________________________________
Name: Catherine C. McDermott
Title: Principal
DEEPROCK & COMPANY
By: Eaton Vance Management,
as investment advisor
By: /s/ Scott H. Page
___________________________________
Name: Scott H. Page
Title: Vice President
DELANO COMPANY
By: PACIFIC INVESTMENT MANAGEMENT
COMPANY, as its Investment Advisor
By: Illegible
___________________________________
Name:
Title:
FIRSTRUST BANK
By: /s/ Edward D'Ancona
___________________________________
Name: Edward D'Ancona
Title: Executive Vice President
FIRST DOMINION FUNDING I
By: /s/ Andrew H. Marshak
___________________________________
Name: Andrew H. Marshak
Title: Authorized Signatory
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<PAGE>
FIRSTUNION NATIONAL BANK, successor by
merger to Corestates Bank, N.A.
By: /s/ Joan Anderson
___________________________________
Name: Joan Anderson
Title: Vice President
FRANKLIN FLOATING RATE TRUST
By: /s/ Chauncey Lufkin
___________________________________
Name: Chauncey Lufkin
Title: Vice President
THE FUJI BANK, LTD.
By: /s/ Teiji Teramoto
___________________________________
Name: Teiji Teramoto
Title: Vice President & Manager
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: /s/ Stephen B. Kim
___________________________________
Name: Stephen B. Kim
Title: Authorized Signatory
IMPERIAL BANK, a California banking
corporation
By: /s/ Ray Vadalma
___________________________________
Name: Ray Vadalma
Title: Senior Vice President
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: INDOSUEZ CAPITAL LUXEMBOURG,
as Collateral Manager
By: /s/ Denis Sergent
___________________________________
Name: Denis Sergent
Title: Authorized Signatory
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<PAGE>
INDOSUEZ CAPITAL FUNDING IIA, LIMITED.
By: INDOSUEZ CAPITAL LUXEMBOURG,
as Collateral Manager
By: /s/ Denis Sergent
___________________________________
Name: Denis Sergent
Title: Authorized Signatory
KZH-CRESCENT-2 CORPORATION
By: /s/ Virginia Conway
___________________________________
Name: Virginia Conway
Title: Authorized Agent
KZH - CYPRESS TREE - I CORPORATION
By: /s/ Virginia Conway
___________________________________
Name: Virginia Conway
Title: Authorized Agent
KZH HOLDING CORPORATION III
By: /s/ Virginia Conway
___________________________________
Name: Virginia Conway
Title: Authorized Agent
KZH-SOLEIL CORPORATION
By: /s/ Virginia Conway
___________________________________
Name: Virginia Conway
Title: Authorized Agent
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, New York Branch
By: /s/ Koji Sasayama
___________________________________
Name: Koji Sasayama
Title: Deputy General Manager
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<PAGE>
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/ Andrew Dickey
___________________________________
Name: Andrew Dickey
Title: Managing Director
MASSMUTUAL CORPORATE
VALUE PARTNERS LIMITED
By: MASSMUTUAL MUTUAL LIFE
INSURANCE COMPANY,
as Investment Manager
By: /s/ Andrew Dickey
___________________________________
Name: Andrew Dickey
Title: Managing Director
MASSMUTUAL/DARBY CBO LLC
By: MASSMUTUAL/DARBY CBO IM INC.,
as Investment Manager
By: /s/ Andrew Dickey
___________________________________
Name: Andrew Dickey
Title: Vice President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ John B. Wheeler
___________________________________
Name: John B. Wheeler
Title: Managing Director
MASSMUTUAL HIGH YIELD PARTNERS II,
L.L.C.
By: HYP Management, Inc., as managing member
By: /s/ John B. Wheeler
___________________________________
Name: John B. Wheeler
Title: Vice President
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<PAGE>
MERRILL LYNCH DEBT STRATEGIES
PORTFOLIO
By: MERRILL LYNCH ASSET MANAGEMENT
L.P, as Investment Advisor
By: /s/ Joseph P. Matteo
___________________________________
Name: Joseph P. Matteo
Title: Authorized Signatory
MERRILL LYNCH GLOBAL INVESTMENT
SERIES, INCOME STRATEGIES PORTFOLIO
By: MERRILL LYNCH ASSET MANAGEMENT
L.P, as Investment Advisor
By: /s/ Joseph P. Matteo
___________________________________
Name: Joseph P. Matteo
Title: Authorized Signatory
MERRILL LYNCH PRIME RATE PORTFOLIO
By: MERRILL LYNCH ASSET MANAGEMENT
L.P, as Investment Advisor
By: /s/ Joseph P. Matteo
___________________________________
Name: Joseph P. Matteo
Title: Authorized Signatory
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
By: /s/ Joseph P. Matteo
___________________________________
Name: Joseph P. Matteo
Title: Authorized Signatory
DEBT STRATEGIES FUND III, INC.
By: /s/ Joseph P. Matteo
___________________________________
Name: Joseph P. Matteo
Title: Authorized Signatory
-37-
<PAGE>
<PAGE>
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ James R. Dingler
___________________________________
Name: James R. Dingler
Title: Director
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Beatrice E. Kossodo
___________________________________
Name: Beatrice E. Kossodo
Title: Senior Vice President
ML BCO IV (CAYMAN)
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Mark K. Okada
___________________________________
Name: Mark K. Okada
Title: Executive Vice President
ML CLO XV PILGRIM AMERICA (CAYMAN)
LTD.
By: PILGRIM AMERICA INVESTMENTS, INC.,
as its Investment Manager
By: /s/ Jeffrey A. Bakalar
___________________________________
Name: Jeffrey A. Bakalar
Title: Vice President
MORGAN STANLEY DEAN WITTER PRIME
INCOME TRUST
By: /s/ Peter Gewirtz
___________________________________
Name: Peter Gewirtz
Title: Authorized Signatory
-38-
<PAGE>
<PAGE>
NATEXIS BANQUE BFCE
By: /s/ Kevin McOwen
___________________________________
Name: Kevin McOwen
Title: Assistant Treasurer
By: Illegible
___________________________________
Name:
Title:
NORSE CBO, LTD.
By: Peterson Capital Management, LLC
as its Investment Advisor
By: Peterson Capital Advisors, LLC
its Manager and Pursuant to delegated
authority
By: /s/ Timothy S. Peterson
___________________________________
Name: Timothy S. Peterson
Title: President
NORTHERN LIFE INSURANCE COMPANY
By: ING Capital Advisors Inc.,
as Investment Advisor
By: /s/ Michael D. Hatley
___________________________________
Name: Michael D. Hatley
Title: Senior Vice President
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities by GenPar, L.P.
its General Partner
By: Oak Hill Securities M.G.P., Inc.,
its General Partner
By: /s/ Scott D. Krase
___________________________________
Name: Scott D. Krase
Title: Vice President
-39-
<PAGE>
<PAGE>
OCTAGON LOAN TRUST
By: Octagon Credit Investors, as manager
By: /s/ Joyce C. DeLucca
___________________________________
Name: Joyce C. DeLucca
Title: Managing Director
Pam Capital Funding LP
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Mark K. Okada
___________________________________
Name: Mark K. Okada
Title: Executive Vice President
PARIBAS
By: /s/ David I. Canavan
___________________________________
Name: David I. Canavan
Title: Director
PARIBAS
By: /s/ Sean Reddington
___________________________________
Name: Sean Reddington
Title: Vice President
PRESIDENT & FELLOWS OF HARVARD
COLLEGE
By: /s/ Timothy S. Peterson
___________________________________
Name: Timothy S. Peterson
Title: Authorized Signatory
By: /s/ Jack Meyer
___________________________________
Name: Jack Meyer
Title: President and CEO
-40-
<PAGE>
<PAGE>
PRESIDENTIAL LIFE INSURANCE COMPANY
By: /s/ Stanley Rubin
___________________________________
Name: Stanley Rubin
Title: Senior Vice President
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Thomas Cecka
___________________________________
Name: Thomas Cecka
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By: /s/ Scott H. Page
___________________________________
Name: Scott H. Page
Title: Vice President
SOCIETE GENERALE
By: /s/ Jerry Parisi
___________________________________
Name: Jerry Parisi
Title: Director
SOUTHERN PACIFIC BANK
By: /s/ Cheryl A. Wasilewski
___________________________________
Name: Cheryl A. Wasilewski
Title: Vice President
SUMMIT BANK
By: /s/ Bruce A. Gray
___________________________________
Name: Bruce A. Gray
Title: Vice President
-41-
<PAGE>
<PAGE>
THE TRAVELERS INSURANCE COMPANY
By: /s/ John W. Petchler
___________________________________
Name: John W. Petchler
Title: Second Vice President
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By: /s/ Jeffrey W. Maillet
___________________________________
Name: Jeffrey W. Maillet
Title: Senior Vice President & Director
Acknowledged and Agreed:
GPC CAPITAL CORP. II
GPC OPCO GP LLC
GPC CAPITAL CORP. I
GRAHAM PACKAGING POLAND, L.P.,
By: GPC Sub GP LLC, its general partner
GRAHAM RECYCLING COMPANY,
By: GPC Sub GP LLC, its general partner
GRAHAM PACKAGING FRANCE PARTNERS,
By: GPC Sub GP LLC, its general partner
GRAHAM PACKAGING LATIN AMERICA, LLC
GPC SUB GP LLC
By: /s/ John E. Hamilton
___________________________________
Name: John E. Hamilton
Title:
On Behalf of each of the above
Subsidiary Guarantors
-42-
<PAGE>
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
LIBOR Margin ABR Margin
for Revolving LIBOR for Revolving ABR Margin
Loans, Growth Margin for Loans, Growth for
Capital Tranche C Capital Tranche C
Revolving LIBOR Term Loans Revolving ABR Margin Term Loans
Loans and Margin for and Loans and for and Tranche
Tranche A Term Tranche B Tranche D Tranche A Tranche B D Term Commitment
Level Net Leverage Ratio Loans Term Loans Term Loans Term Loans Term Loans Loans Fee
------ --------------------- ------------- --------- ---------- ------------ ----------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 Greater than 5.5 to 2.25% 2.75% 3.00% 1.25% 1.75% 2.00 % 0.50%
1.00
2 Greater than 5.0 to 2.00% 2.50% 2.75% 1.00% 1.50% 1.75% 0.50%
1.00 but less than or
equal to 5.5 to 1.00
3 Greater than 4.5 to 1.75% 2.25% 2.50% 0.75% 1.25% 1.50% 0.375%
1.00 but less than or
equal to 5.0 to 1.00
4 Greater than 4.0 to 1.50% 2.00% 2.25% 0.50% 1.00% 1.25% 0.375%
1.00 but less than or
equal to 4.5 to 1.00
5 Greater than 3.5 to 1.25% 1.75% 2.00% 0.25% 0.75% 1.00% 0.25%
1.00 but less than or
equal to 4.0 to 1.00
6 Greater than 3.0 to 1.00% 1.50% 1.75% 0.0% 0.50% 0.75 % 0.25%
1.00 but less than or
equal to 3.5 to 1.00
7 Greater than 2.5 to 0.75% 1.50% 1.75% 0.0% 0.50% 0.75 % 0.25%
1.00 but less than or
equal to 3.0 to 1.00
8 Less than or equal to 0.625% 1.50% 1.75% 0.0% 0.50% 0.75 % 0.20%
2.5 to 1.00
</TABLE>
The "LIBOR Margin", the "ABR Margin" and the Commitment Fee for any date
shall be determined by reference to the Net Leverage Ratio as of the last
day of the fiscal quarter most recently ended as of such date and any
change shall become effective upon the delivery to the Administrative
Agent of the financial statements to be delivered pursuant to Section
5.04 for the most recently ended fiscal quarter together with a
certificate of a Responsible Officer of the Borrower (a) setting forth in
-43-
<PAGE>
<PAGE>
reasonable detail the calculation of the Net Leverage Ratio for the end
of such fiscal quarter and (b) stating that the signer has reviewed the
terms of this Agreement and the other Loan Documents and has made, or
caused to be made under his or her supervision, a review in reasonable
detail of the transactions and condition of Holdings, the Borrower and
their Subsidiaries during the accounting period, and that the signer does
not have knowledge of the existence as at the date of such officers'
certificate of any Event of Default or Default. It is understood that
the foregoing certificate of a Responsible Officer shall be permitted to
be delivered prior to, but in no event later than, the time of the actual
delivery of the financial statements required to be delivered pursuant to
Section 5.04. Notwithstanding the foregoing, at any time during which (i)
the Borrower has failed to deliver the certificate required under Section
5.04(c) with respect to a fiscal quarter following the date the delivery
thereof is due or (ii) a Default or Event of Default is in existence, the
Net Leverage Ratio shall be deemed, solely for the purposes of this
Schedule A, to be greater than 5.5 to 1.00, until such time as the
Borrower shall deliver such certificate.
-44-
<PAGE>
<PAGE>
SCHEDULE 2.01
COMMITMENTS AND OUTSTANDING PRINCIPAL
OF TRANCHE A, B AND C TERM LOANS<F1>
<TABLE>
<CAPTION>
Outstanding Principal of Outstanding Principal of Outstanding Principal of
Tranche A Term Loans Tranche B Term Loans Tranche C Term Loans
------------------------ ------------------------- -------------------------
<S> <C> <C> <C>
Bankers Trust Company $4,886,363.92 $27,252,604.29 $24,838,802.19
NationsBank, N.A.
Goldman Sachs Credit Partners L.P. 2,272,727.28
The Bank of Nova Scotia 4,318,181.82
The Chase Manhattan Bank 4,318,181.82
Credit Lyonnais, New York Branch 4,318,181.82
Societe Generale 4,318,181.82
ABN AMRO Bank, N.V. 3,409,090.91
Bank of Tokyo-Mitsubishi Ltd. 3,181,818.18
Credit Agricole Indosuez 3,181,818.18
First Union 3,181,818.18
The Fuji Bank, Ltd. 3,181,818.18
The Imperial Bank 3,181,818.18
The Long-Term Credit Bank of Japan, 3,181,818.18
Limited
The Mitsubishi Trust and Banking 3,181,818.18
Corporation
Natexis Banque BFCE 2,386,363.63 2,452,734.38 2,032,265.63
National City Bank 3,181,818.18
The Prudential Insurance Company of 3,181,818.18
America
Summit Bank 3,181,818.18
Southern Pacific Bank 2,272,727.27
Cypress Tree 2,272,727.00 5,450,520.84 2,258,072.92
AG Capital Funding 5,450,520.84 4,516,145.84
Alliance Capital 5,450,520.84 4,516,145.84
ARES Leveraged Investment Fund L.P. 5,450,520.84 4,516,145.84
Indosuez Capital Funding IV, L.P. 5,450,520.84 4,516,145.84
KZH Soleil Corporation (SunAmerica) 5,450,520.84 4,516,145.84
KZH Holding Corporation III - Oakmont 5,450,520.84 4,516,145.84
ML CLO XV Pilgrim 5,450,520.84 4,516,145.84
Morgan Stanley Dean Witter Prime Income 5,450,520.84 4,516,145.84
Trust
<FN>
<F1>Schedule prepared as at August 7,
1998.
-1-
<PAGE>
<PAGE>
Outstanding Principal of Outstanding Principal of Outstanding Principal of
Tranche A Term Loans Tranche B Term Loans Tranche C Term Loans
------------------------ ------------------------- -------------------------
<S> <C> <C> <C>
Octagon Credit Investors Loan Portfolio 5,450,520.84 4,516,145.84
Presidential Life Insurance Company 5,450,520.84 4,516,145.84
The Travelers Insurance Company 5,450,520.84 4,516,145.84
Van Kampen American Capital Prime Rate 5,450,520.84 4,516,145.84
Income Trust
ML CBO IV (Cayman)/ Protective 5,000,000.00 2,180,208.34 1,806,458.34
Eaton Vance Senior Debt Portfolio 4,905,468.76 4,064,531.26
Merrill Lynch Inc Strategies Portfolio 4,905,468.76 4,064,531.26
Paribas 1,818,181.82
Archimedes 4,360,416.67 3,612,916.67
Delano Company 4,087,890.63 3,387,109.38
Firstrust 1,590,909.09
KZH-Crescent 2 Corporation 3,815,364.59 3,161,302.09
Indosuez Capital Funding IIA 2,734,375.00 2,265,625.00
First Dominion Funding I 2,725,260.42 2,258,072.92
Franklin Floating Rate Trust 2,725,260.42 2,258,072.92
KZH - Cypress Tree-1 2,725,260.42 2,258,072.92
Merrill Lynch Debt Strategies Portfolio 2,725,260.42 2,258,072.92
Merrill Lynch Prime Rate Portfolio 2,725,260.42 2,258,072.92
Merrill Lynch Senior Floating Rate Fund,
Inc.
Debt Strategies Fund III, Inc.
PAM Capital (Protective) 2,725,260.42 2,258,072.92
Amara-1 2,725,260.42 2,258,072.92
Toronto Dominion 2,725,260.42 2,258,072.92
Eaton Vance Deeprock 545,052.08 451,614.58
Mass Mutual CVP 1,353,364.32 1,121,359.02
Harvard Management Company, Inc. 2,725,260.42 2,258,072.92
Northern Life Insurance Company 1,090,104.17 903,229.17
Massmutual Life 3,068,643.24 2,542,590.11
Massmutual/Darby CBO LLC 1,028,513.28 852,196.73
Massmutual High Yield Partners II
Metropolitan Life Insurance Company 8,175,781.27 6,774,218.77
Oakhill Securities Fund 5,441,406.27 4,508,593.77
CIBC Inc.
Continental Assurance Company 1,635,156.25 1,354,843.75
TOTAL: $75,000,000.00 $174,416,667.00 $144,516,667.00
</TABLE>
-2-
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Tranche D Term Revolving Credit Growth Capital Swingline Loan
Loan Commitments Commitments Commitments Commitments
------------------- ------------------- ------------------- ------------------
<S> <C> <C> <C> <C>
Bankers Trust Company $81,000,000.00 $14,795,454.51 $9,545,454.57 $20,000,000.00
NationsBank, N.A. 10,333,333.33 6,666,666.67
Goldman Sachs Credit Partners L.P. 4,696,969.69 3,030,303.03
The Bank of Nova Scotia 8,924,242.42 5,757,575.76
The Chase Manhattan Bank 8,924,242.42 5,757,575.76
Credit Lyonnais, New York Branch 8,924,242.42 5,757,575.76
Societe Generale 8,924,242.42 5,757,575.76
ABN AMRO Bank, N.V. 7,045,454.55 4,545,454.54
Bank of Tokyo-Mitsubishi Ltd. 6,575,757.58 4,242,424.24
Credit Agricole Indosuez 6,575,757.58 4,242,424.24
First Union 6,575,757.58 4,242,424.24
The Fuji Bank, Ltd. 6,575,757.58 4,242,424.24
The Imperial Bank 6,575,757.58 4,242,424.24
The Long-Term Credit Bank of Japan, 6,575,757.58 4,242,424.24
Limited
The Mitsubishi Trust and Banking 6,575,757.58 4,242,424.24
Corporation
Natexis Banque BFCE 4,931,818.19 3,181,818.18
National City Bank 6,575,757.58 4,242,424.24
The Prudential Insurance Company of 6,575,757.58 4,242,424.24
America
Summit Bank 6,575,757.58 4,242,424.24
Southern Pacific Bank 4,696,969.70 3,030,303.03
Cypress Tree
AG Capital Funding
Alliance Capital
ARES Leveraged Investment Fund L.P.
Indosuez Capital Funding IV, L.P. 6,750,000
KZH Soleil Corporation (SunAmerica)
KZH Holding Corporation III - Oakmont
ML CLO XV Pilgrim
Morgan Stanley Dean Witter Prime Income 6,750,000
Trust
Octagon Credit Investors Loan Portfolio 6,750,000
Presidential Life Insurance Company
The Travelers Insurance Company 6,750,000
Van Kampen American Capital Prime Rate
Income Trust
ML CBO IV (Cayman)/ Protective
Eaton Vance Senior Debt Portfolio
Merrill Lynch Inc Strategies Portfolio
Paribas 3,757,575.76 2,424,242.42
Archimedes
Delano Company
Firstrust 3,287,878.79 2,121,212.12
-3-
<PAGE>
<PAGE>
Tranche D Term Revolving Credit Growth Capital Swingline Loan
Loan Commitments Commitments Commitments Commitments
------------------- ------------------- ------------------- ------------------
KZH-Crescent 2 Corporation 6,250,000
Indosuez Capital Funding IIA
First Dominion Funding I
Franklin Floating Rate Trust 6,750,000
KZH - Cypress Tree-1 6,750,000
Merrill Lynch Debt Strategies Portfolio
Merrill Lynch Prime Rate Portfolio
Merrill Lynch Senior Floating Rate Fund, 7,000,000
Inc.
Debt Strategies Fund III, Inc. 3,000,000
PAM Capital (Protective)
Amara-1
Toronto Dominion
Eaton Vance Deeprock
Mass Mutual CVP
Harvard Management Company, Inc. 3,000,000
Northern Life Insurance Company 2,750,000
Massmutual Life
Massmutual/Darby CBO LLC 4,500,000
Massmutual High Yield Partners II 2,250,000
Metropolitan Life Insurance Company 6,750,000
Oakhill Securities Fund 6,750,000
CIBC Inc. 10,750,000
Continental Assurance Company 500,000
TOTAL: $175,000,000.00 $155,000,000.00 $100,000,000.00 $20,000,000.00
</TABLE>
-4-
<PAGE>
<PAGE>
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
_________________________________________________________________________
Reference is made to the Credit Agreement described in Item 2 of Annex I
hereto (as such Credit Agreement may hereafter be amended, supplemented
or otherwise modified from time to time, the "CREDIT AGREEMENT"). Unless
defined in Annex I hereto, terms defined in the Credit Agreement are used
herein as therein defined. BANKERS TRUST COMPANY (the "ASSIGNOR") and
__________ (the "ASSIGNEE") hereby agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee without recourse and without representation or warranty (other
than as expressly provided herein), and the Assignee hereby purchases and
assumes from the Assignor, that interest in and to all of the Assignor's
rights and obligations under the Credit Agreement as of the date hereof
which represents the percentage interest specified in Item 4 of Annex I
hereto (the "ASSIGNED SHARE") of all of the outstanding rights and
obligations under the Credit Agreement relating to the facilities listed
in Item 4 of Annex I hereto, including, without limitation, [(q) in the
case of any assignment of all or any portion of the Total Tranche A Term
Loan Commitment, all rights and obligations with respect to the Assigned
Share of such Total Tranche A Term Loan Commitment,]<F1> [(r) in the case
of any assignment of all or any portion of the Total Tranche B Term Loan
Commitment, all rights and obligations with respect to the Assigned Share
of such Total Tranche B Term Loan Commitment,]<F2> [(s) in the case of
arty assignment of all or any portion of the Tranche C Term Loan
Commitment, all rights and obligations Rich respect to the Assigned Share
of such Total Tranche C Term Loan Commitment,]<F3>; [(t) in the case of
any assignment of all or any portion of the Tranche D Term Loan
Commitment, all rights and obligations with respect to the Assigned Share
of such Total Tranche D Term Loan Commitment,]<F4> (u) in the case of any
_______________
[FN]
<F1> Delete bracketed language in Assignment and Acceptances executed
after the termination of the Total Tranche A Term Loan
Commitment.
<F2> Delete bracketed language in Assignment and Acceptances executed
after the termination of the Total Tranche B Term Loan
Commitment.
<F3> Delete bracketed language in Assignment and Acceptances executed
after the termination of the Total Tranche C Term Loan
Commitment.
<F4> Delete bracketed language in Assignment and Acceptances executed
after the termination of the Total Tranche D Term Loan
Commitment.
-1-
<PAGE>
<PAGE>
assignment of outstanding Tranche A Term Loans, all rights and
obligations with respect to the Assigned Share of such Tranche A Term
Loans, (v) in the case of any assignment of outstanding Tranche B Term
Loans, all rights and obligations with respect to the Assigned Share of
such outstanding Tranche B Term Loans, (w) in the case of any assignment
of outstanding Tranche C Term Loans, all rights and obligations with
respect to Me Assigned Share of such outstanding Tranche C Term Loans,
(x) in the case of any assignment of outstanding Tranche D Term Loans,
all rights and obligations with respect to the Assigned Share of such
outstanding Tranche D Term Loans, (y) in the case of any assignment of
all or any portion of the Total Revolving Credit Commitment, all rights
and obligations with respect to the Assigned Share of such Total
Revolving Credit Commitment and of any outstanding loans and Letters of
Credit and (z) in the case of any assignment of all or any portion of the
Total Growth Capital Commitment, all rights and obligations with respect
to the Assigned Share of such Total Growth Capital Commitment and any
outstanding Growth Capital Revolving Loans. After giving effect to such
sale and assignment, the Assignee's Revolving Credit Commitment, Growth
Capital Commitment[, Tranche A Term Loan Commitment]<F5> [, Tranche B
Term Loan Commitment]<F6> [, Tranche C Term Loan Commitment]<F7> [,
Tranche D Term loran Commitment]<F8> and the amount of the outstanding
Term Loans opting to the Assignee will be as set forth in Item 4 of Annex
I hereto.
2. The Assignor (i) represents and warrants that
it is the legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse claim;
(ii) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or
in connection with the Credit Agreement or the other Loan Documents or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or the other Loan Documents
or any other instrument or document furnished pursuant thereto; and (iii)
_______________
[FN]
<F5> Delete bracketed language in Assignment and Acceptances executed
after the termination of the Total Tranche A Term Loan
Commitment.
<F6> Delete bracketed language in Assignment and Acceptances executed
after the termination of the Total Tranche B Term Loan
Commitment.
<F7> Delete bracketed language in Assignment and Acceptances executed
after the termination of the Total Tranche C Term Loan
Commitment.
<F8> Delete bracketed language in Assignment and Acceptances executed
after the termination of the Total Tranche D Term Loan
Commitment.
-2-
<PAGE>
<PAGE>
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of Holdings, the Borrower or any of
their Subsidiaries or the performance or observance by Holdings, the
Borrower or any of their Subsidiaries of any of their obligations under
the Credit Agreement or the other Loan Documents to which they are a
party or any other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received
a copy of the Credit Agreement and the other Loan Documents, together
with copies of the financial statements referred to therein and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance
upon the Administrative Agent, the Assignor or any other Lender or Agent
and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not
taking action under the Credit Agreement; (iii) confirms that it is an
Eligible Transferee under Section 9.04(b) of the Credit Agreement; (iv)
appoints and authorizes the Administrative Agent and the Collateral Agent
to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement and the other Loan Documents as are delegated
to the Administrative Agent and the Collateral Agent, as the case may be,
by the terns thereof, together smith such powers as are reasonably
incidental thereto; [and] (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lenders; and (vii) to
the extent legally entitled to do so, attaches the forms described in
Section 9.04(b) of the Credit Agreement]<F9>.
4. Following the execution of this Assignment and
Acceptance by the Assignor and the Assignee, an executed original hereof
(together with all attachments) will be delivered to the Administrative
Agent. This Assignment and Acceptance shall be effective, unless
otherwise specified in Item 5 of Annex I hereto (the "SETTLEMENT DATE"),
upon the receipt of the consent of the Administrative Agent and/or the
Borrower to the extent required by Section 9.04(b) of the Credit
Agreements receipt by the Administrative Agent of the administrative fee
referred to in such Section 9.04(b), and the registration of the transfer
as provided by Section 9.05(c) of the Credit Agreement.
5. Upon the Settlement Date of this Assignment and
Acceptance, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the
rifles and obligations of a Lender thereunder and under the other Loan
_______________
[FN]
<F9> Include if the Assignee is organized under the laws of a
jurisdiction outside of the United States.
-3-
<PAGE>
<PAGE>
Documents and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement and the other Loan Documents
except with respect to indemnification provisions under the Credit
Agreement (including, without limitation, Sections 2.13, 2.15, 2.19 and
9.05).
6. It is agreed that the Assignee shall be
entitled to (x) all interest on the Assigned Share of the Loans at the
rates specified in Item 6 of Annex I; (y) all Commitment Fees (if
applicable) on the Assigned Share of the Total Revolving Credit
Commitment, Total Growth Capital Commitment and/or Total Term Loan
Commitment (if not theretofore terminated) at the rate specified in Item
7 of Annex I hereto; and (z) all L/C Participation Fees (if applicable)
on the Assignee's participation in all Genes of Credit at the rate
specified in Item 8 of Annex I hereto, which, in each case, accrue on and
after the Settlement Date, such interest and, if applicable, Commitment
Fees and L/C Participation Fees, to be paid by the Administrative Agent
directly to the Assignee. It is further agreed that all payments of
principal made on the Assigned Share of the Loans which occur on and
after the Settlement Date will be paid directly by the Administrative
Agent to the Assignee. Upon the Settlement Date, the Assignee shall pay
to the Assignor an amount specified by the Assignor in writing which
represents the Assigned Share of the principal amount of the respective
Loans made by the Assignor pursuant to the Credit Agreement which are
outstanding on the Settlement Date, and which are being assigned
hereunder. The Assignor and the Assignee shall make 811 appropriate
adjustments in payments under the Credit Agreement for periods prior to
the Settlement Date directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
-4-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their
duly authorized officers to execute and deliver this Assignment and
Acceptance as of the date first above written, such execution also being
made on Annex I hereto.
Accepted this _____ day of _________, 1998
BANKERS TRUST COMPANY, NAME OF ASSIGNEE,
as Assignor as Assignee
By: ____________________________ By: _________________________
____________________________ _________________________
(Print Name and Title) (Print Name and Title)
[Acknowledged and Agreed:
BANKERS TRUST COMPANY,
as Administrative Agent, Swingline Lender
and Fronting Bank
By: ____________________________
____________________________
(Print Name and Title)
GRAHAM PACKAGING COMPANY
By: ____________________________
its managing general partner
____________________________
(Print Name and Title)]<F10>
_______________
[FN]
<F10> The consent of the Administrative agent and the Borrower
required for assignments made as (and to the extent) provided in
Section 9.04(b)(y)(ii) of the Credit Agreement.
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<PAGE>
<PAGE>
ANNEX I
_________________________________________________________________________
1. Borrower: Graham Packaging Company
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of February 2, 1998, among Graham
Packaging Holdings Company, a Pennsylvania limited partnership,
Graham Packaging Company, a Delaware limited partnership (the
"Borrower"), GPC CAPITAL CORP. I. a Delaware corporation (the
"Co-Borrower"), certain financial institutions party thereto,
NationsBanc Montgomery Securities L.L.C., as Documentation Agent,
Bankers Trust Company, as Administrative Agent, as Syndication Agent
as Collateral Agent and as Fronting Bank.
3. Date of Assignment and Acceptance: ___________, 1998
4. Amounts (as of date of Item #3 above):
<TABLE>
<CAPTION>
a. b. c.
---------------- ---------------- ----------------
Aggregate Amount
Amount for all Assigned of Assigned
Lenders Share Share
---------------- ---------------- ----------------
<S> <C> <C> <C>
[Total Tranche A Term Loan Commitment $ % $]<F11>
[Total Tranche B Term Loan Commitment $ % $]<F12>
[Total Tranche C Term Loan Commitment $ % $]<F13>
[Total Tranche D Term Loan Commitment $ % $]<F14>
_______________
<FN>
<F11> This row should be deleted in the case of Assignment and Acceptances executed after the termination of
the Total Tranche A Term Loan Commitment.
<F12> This row should be deleted in the case of Assignment and Acceptances executed after the termination of
the Total Tranche B Term Loan Commitment.
<F13> This row should be deleted in the case of Assignment and Acceptances executed after the termination of
the Total Tranche C Term Loan Commitment.
<F14> This row should be deleted in the case of Assignment and Acceptances executed after the termination of
the Total Tranche D Term Loan Commitment.
Outstanding Principal of Tranche A $ % $
Term Loans
-6-
<PAGE>
<PAGE>
a. b. c.
---------------- ---------------- ----------------
Aggregate Amount
Amount for all Assigned of Assigned
Lenders Share Share
---------------- ---------------- ----------------
Outstanding Principal of Tranche B $ % $
Term Loans
Outstanding Principal of Tranche C $ % $
Term Loans
Outstanding Principal of Tranche D $ % $
Term Loans
Revolving Credit Commitment $ % $
Growth Capital Revolving Commitment $ % $
</TABLE>
5. Settlement Date: _____________, 1998
6. Rate of Interest to the Assignee: As set forth in Section 2.06 of the
Credit Agreement (unless otherwise
agreed to by the Assignor and the
Assignee)<F15>
7. Commitment Fees to the Assignee: As set forth in Section 2.05(a) of
the Credit Agreement (unless
otherwise agreed to by the Assignor
and the Assignee)<F16>
[FN]
<F15> The Borrower and the Administrative Agent shall direct the entire
amount of the interest to the Assignee at the rate set forth in
Section 2.06 of the Credit Agreement, with the Assignor and Assignee
effecting the agreed upon sharing of the interest through payments by
the Assignee to the Assignor.
<F16> Insert "NOT APPLICABLE" in lieu of text if no portion of the Total
Revolving Credit Commitment or Total Growth Capital Commitment is
being assigned. Otherwise, the Borrower and the Administrative Agent
shall direct the entire amount of the Commitment Fees to the Assignee
at the rate set forth in Section 2.05(a) of the Credit Agreement, with
the Assignor and the Assignee effecting the agreed upon sharing of
Commitment Fees through payment by the Assignee to the Assignor.
-7-
<PAGE>
<PAGE>
8. L/C Participation
Fees to the Assignee: As set forth in Section
2.05(b) of the Credit
Agreement (unless otherwise
agreed to by the Assignor and
the Assignee)<F17>
9. Notice Instructions:
ASSIGNOR Bankers Trust Company
Loan Syndications Division
One Bankers Trust Plaza,
14th Floor
New York, NY 10006
Attention: Deborah Jacob
Telephone: (212) 250-6514
Telecopier: (212) 250-7351/6029
Reference: Graham Packaging Company
ASSIGNEE ____________________
____________________
____________________
Attention:
Telephone:
Telecopier:
Reference: Graham Packaging Company
10. Payment Instructions:
ASSIGNOR Bankers Trust Company
ABA Number 021001033
Commercial Loan Division
Account Number 99401268
Reference: Graham Packaging Company
ASSIGNEE ____________________
____________________
____________________
Reference: Graham Packaging Company
[FN]
<F17> Insert "NOT APPLICABLE" in lieu of text if no portion of the Total
Revolving Credit Commitment is being assigned. Otherwise, the
Borrower and the Administrative Agent shall direct the entire amount
of the L/C Participation Fees to the Assignee at the rate set forth in
Section 2.05(b) of the Credit Agreement, with the Assignor and the
Assignee effecting the agreed upon sharing of L/C Participation Fees
through payment by the Assignee to the Assignor.
-8-
<PAGE>
<PAGE>
Accepted and Agreed:
BANKERS TRUST COMPANY, NAME OF ASSIGNEE,
By: _________________________ By: _________________________
_________________________ _________________________
(Print Name and Title) (Print Name and Title)
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<PAGE>
<PAGE>
EXHIBIT B
FORM OF
BORROWING REQUEST
Bankers Trust Company
130 Liberty Street
New York, NY 10006
Attention of [ ]
Telecopy No. (212) [ ]
[Date]
Ladies and Gentlemen:
The undersigned, GRAHAM PACKAGING COMPANY (the
"Borrower"), refers to the Credit Agreement, dated as of February 2, 1998
(as it may hereafter be amended, modified, extended or restated from time
to time, the "Credit Agreement"), among GRAHAM PACKAGING HOLDINGS
COMPANY, the Borrower, GPC CAPITAL CORP. I, as Co-Borrower, the various
Lenders party thereto, NATIONSBANK, N.A., as Documentation Agent, BANKERS
TRUST COMPANY, as Administrative Agent, as Syndication Agent and as
Collateral Agent for the Lenders, and BANKERS TRUST COMPANY, as Fronting
Bank. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
The Borrower hereby gives you notice pursuant to Section 2.03 of the
Credit Agreement that it requests a Borrowing under the Credit Agreement,
and in that connection sets forth below the terms on which such Borrowing
is requested to be made:
(A) Type of Borrowing<F1> ___________________________________
(B) Interest rate basis<F2> ___________________________________
(C) Date of Borrowing
(which must be a Business Day) ____________________________
(D) Funds are requested to be
disbursed to the Borrower at:
Bank Name: ____________________________________________
Bank Address: ____________________________________________
[FN]
<F1> Term Borrowing, Revolving Credit Borrowing or Growth Capital
Borrowing (and in the case of a Term Borrowing, specify the
Commitments pursuant to which the Loans comprising such
Borrowing are to be made).
<F2> Eurodollar Borrowing or ABR Borrowing.
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<PAGE>
<PAGE>
Account Number: ____________________________________________
(E) Principal Amount of Borrowing<F3> __________________________
(F) Interest Period and the last day
thereof<F4> __________________________
GRAHAM PACKAGING COMPANY
By: GPC Opco GP LLC,
its managing general partner
By: _______________________
Name:
Title:
Copy to:
Bankers Trust Company, as Administrative Agent
for the Lenders referred to above,
130 Liberty Street
New York, NY 10006
Attention of [ ]
[FN]
<F3> In Dollars not less than $5,000,000 (and in an integral multiple
of $1,000,000) or equal to the remaining available balance of
the applicable Commitments or such other amounts as may be
permitted by the Credit Agreement to refund Swingline Loans.
<F4> Which shall be subject to the definition of the term "Interest
Period" and end not later than the Revolving Credit Maturity
Date, Growth Capital Maturity Date, Tranche A Maturity Date,
Tranche B Maturity Date, Tranche C Maturity Date or Tranche D
Maturity Date, as applicable.
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<PAGE>
<PAGE>
EXHIBIT K
FORM OF
CAPITAL CALL AGREEMENT
CAPITAL CALL AGREEMENT (as amended, supplemented or modified
from time to time, this "Agreement"), dated as of August 13, 1998, among
BLACKSTONE CAPITAL PARTNERS III MERCHANT BANKING FUND L.P., a Delaware
limited partnership ("Blackstone Capital Partners"), BLACKSTONE OFFSHORE
CAPITAL PARTNERS III L.P., a Cayman Islands limited partnership
("Blackstone Offshore Partners" and, together with Blackstone Capital
Partners, being collectively referred to herein as the "Fund"),
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP III L.P., a Delaware limited
partnership ("Blackstone Family Partnership"), BMP/GRAHAM HOLDINGS
CORPORATION, a Delaware corporation ("Investor LP"), GRAHAM PACKAGING
HOLDINGS COMPANY, a Pennsylvania limited partnership ("Holdings"), GRAHAM
PACKAGING COMPANY, a Delaware limited partnership (the "Borrower"),
BANKERS TRUST COMPANY, as administrative agent (the "Administrative
Agent") for the benefit of the various lenders (the "Lenders") from time
to time party to the Credit Agreement referred to below and BANKERS TRUST
COMPANY, as collateral agent (the "Collateral Agent") for the benefit of
the Secured Parties (as defined in the Security Agreement referred to
below). All capitalized terms used herein and not otherwise defined
shall have the respective meanings provided such terms in the Credit
Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Holdings, the Borrower, the Co-Borrower, the Lenders,
the Agents and the Fronting Bank are parties to a Credit Agreement, dated
as of February 2, 1998 (as amended, modified or supplemented from time to
time, the "Credit Agreement");
WHEREAS, pursuant to the First Amendment to Credit Agreement,
dated as of the date hereof (the "First Amendment"), the Agents and
certain of the Lenders (the "Tranche D Lenders") have agreed to make
available to the Borrower the Total Tranche D Term Loan Commitment in
accordance with the terms thereof;
WHEREAS, (i) prior to the date hereof, the Fund has formed
Investor LP (which is wholly owned by the Fund, Blackstone Family
Partnership and one or more other Investors) and (ii) as of the date
hereof, (x) Investor LP has, directly and through one or more wholly-
owned subsidiaries, acquired limited and general partnership interests in
Holdings and owns (directly and indirectly) approximately 85% of the
issued and outstanding Equity Interests of Holdings and (y) Holdings owns
100% of the issued and outstanding Equity Interests of the Borrower free
and clear of any and all Liens (other than liens in favor of the
Collateral Agent pursuant to the Pledge Agreement);
WHEREAS, each of the Fund (and each of Blackstone Capital
Partners and Blackstone Offshore Partners), Blackstone Family
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<PAGE>
<PAGE>
Partnership, Investor LP, Holdings and the Borrower will obtain benefits
as a result of the First Amendment and the making of Tranche D Term Loans
to the Borrower under the Credit Agreement;
WHEREAS, it is a condition precedent to the entering into the
First Amendment and the making of Tranche D Term Loans to the Borrower
under the Credit Agreement that each of the Fund, Blackstone Family
Partnership, Investor LP, Holdings and the Borrower shall have executed
and delivered this Agreement; and
WHEREAS, in order to induce the Lenders to approve the First
Amendment and the Agents and the Tranche D Lenders to make the Tranche D
Term Loans provided for therein, each of the Fund, Blackstone Family
Partnership, Investor LP, Holdings and the Borrower desires to execute
and deliver this Agreement in order to satisfy the condition described in
the immediately preceding recital;
NOW, THEREFORE, it is agreed:
1. Certain Defined Terms. As used herein, the following
terms shall have the following meanings:
"Administrative Agent" shall have the meaning provided
in the first paragraph of this Agreement.
"Agreement" shall have the meaning provided in the first
paragraph of this Agreement.
"Blackstone Capital Partners" shall have the meaning
provided in the first paragraph of this Agreement.
"Blackstone Family Partnership" shall have the meaning
provided in the first paragraph of this Agreement.
"Blackstone Offshore Partners" shall have the meaning
provided in the first paragraph of this Agreement.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Capital Call Amount" shall mean, on any date of
determination, an amount of cash equal to $50,000,000 (reduced by the
aggregate amount of net cash equity proceeds (including without
limitation net cash equity proceeds received through the public markets
or other sources but in any event exclusive of (i) Designated Capital
Contributions and (ii) contributions to capital to effect any exercise of
Cure Rights pursuant to Section 7.02 of the Credit Agreement) which have
been received after the date hereof by Holdings, and in turn contributed
by Holdings to the equity of the Borrower; provided, however, no such
reduction to the Capital Call Amount shall be effective if, on the date
any cash equity proceeds of the type described in this parenthetical are
received by Holdings or the Borrower, a Capital Call Event or any other
Event of Default exists except to the extent the Capital Call Amount has
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<PAGE>
<PAGE>
been applied strictly in accordance with Section 3 hereof) multiplied by
a fraction (A) the numerator of which shall be the sum of (x) the
aggregate principal amount of all Tranche D Term Loans incurred by the
Borrower on or prior to the respective date of determination of the
Capital Call Amount (irrespective of any repayments or prepayments of
such Tranche D Term Loans) and (y) the aggregate principal amount of IRB
Financings incurred by the Borrower and its domestic Subsidiaries on or
prior to the respective date of determination of the Capital Call Amount
(irrespective of any repayments or prepayments of any such IRB
Financings), provided, however, notwithstanding anything to the contrary
contained above, if the numerator would otherwise exceed $150,000,000,
then the numerator shall be deemed to equal $150,000,000 and (B) the
denominator of which shall be equal to $150,000,000. Notwithstanding the
immediately preceding sentence, in the case of a Capital Call Event of
the type described in clause (v)(x) of the definition thereof and
provided that no Capital Call Event of the type described in any of
clauses (i) through (iv), inclusive, of the definition thereof has
theretofore occurred (and except as set forth in Section 2(a) hereof),
the Capital Call Amount shall mean an amount of cash equal to the lesser
of (x) the amount calculated pursuant to the immediately preceding
sentence and (y) that amount which is necessary to be subtracted from
Total Net Debt to cause the Net Leverage Ratio to be equal to or less
than 5.15:1.0 in respect of the Test Period ending closest to March 31,
2000; it being expressly understood and agreed that the amount referred
to in preceding clause (y) shall be determined without giving effect to
any exercise of Cure Rights pursuant to Section 7.02 of the Credit
Agreement (i.e., any increases to EBITDA pursuant to Section 7.02(a) of
the Credit Agreement shall have no effect (and shall not increase EBITDA)
in measuring the Net Leverage Ratio). Notwithstanding the foregoing to
the contrary, on any date of determination, the Capital Call Amount shall
at no time be less than $0.
"Capital Call Event" shall mean:
(i) the occurrence of an Event of Default pursuant to
paragraph (h) or (i) of Section 7.01 of the Credit Agreement
(other than with respect to Insignificant Subsidiaries); or
(ii) the Loans then outstanding under the Credit
Agreement shall have been declared by the Administrative Agent
to be due and payable in whole or in part pursuant to the last
paragraph of Section 7.01 of the Credit Agreement; or
(iii) the commencement of an involuntary proceeding or
the filing of an involuntary petition in a court of competent
jurisdiction seeking (a) relief in respect of any of the
Designated Capital Call Investors or Investor LP, or of a
substantial part of the property or assets of such person under
Title 11 of the United States Code, as now constituted or
hereafter amended, or any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (b) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any of the Designated
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<PAGE>
<PAGE>
Capital Call Investors or Investor LP or for a substantial part
of the property or assets of such person or (c) the winding-up
or liquidation of any of the Designated Capital Call Investors
or Investor LP; and such proceeding or petition shall have
continued undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered; or
(iv) any of the Designated Capital Call Investors or
Investor LP shall have (a) voluntarily commenced any proceeding
or filed any petition seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or
any other federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (b) consented to the institution
of, or failed to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in preceding
clause (a), (c) applied for or consented to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or
similar official for such person or for a substantial part of
its property or assets, (d) filed an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (e) made a general assignment for the benefit of
creditors, (f) become unable, admitted in writing its inability
or fail generally to pay its debts as they become due or
(g) taken any action for the purpose of effecting any of the
foregoing; or
(v) (x) the Net Leverage Ratio shall exceed 5.15:1.0 in
respect of the Test Period ending closest to March 31, 2000 or
(y) the financial statements (and the accompanying
certification) with respect to the Test Period ending closest to
March 31, 2000 shall have not been delivered to the
Administrative Agent on or prior to the thirtieth day after same
are due pursuant to Section 5.04 of the Credit Agreement;
it being expressly understood and agreed that for purposes of this
definition the Net Leverage Ratio shall be determined without giving
effect to any exercise of Cure Rights pursuant to Section 7.02 of the
Credit Agreement (i.e., any increases to EBITDA pursuant to Section
7.02(a) of the Credit Agreement shall have no effect (and shall not
increase EBITDA) in measuring the Net Leverage Ratio).
"Capital Call Percentages" shall mean (i) with respect
to Blackstone Capital Partners, 79.785225%, (ii) with respect to
Blackstone Offshore Partners, 14.214775% and (iii) Blackstone Family
Partnership, 6.000000%, in each case as such Capital Call Percentage may
be adjusted at any time and from time to time with the prior written
consent of the Administrative Agent (with the consent of the Required
Lenders).
"Chattel Paper" shall have the meaning ascribed thereto
in the Uniform Commercial Code in effect in the State of New York on the
date hereof.
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<PAGE>
<PAGE>
"Collateral" shall mean, collectively, this Agreement,
all rights (including all contract rights and rights to receive payments
and capital contributions) hereunder and all Proceeds (as defined in the
Security Agreement) hereof and thereof.
"Collateral Agent" shall have the meaning provided in
the first paragraph of this Agreement.
"Credit Agreement" shall have the meaning provided in
the first recital of this Agreement.
"Designated Capital Call Investors" shall mean,
collectively, Blackstone Capital Partners, Blackstone Offshore Partners
and Blackstone Family Partnership.
"Event of Default" shall have the meaning provided in
the Credit Agreement.
"First Amendment" shall have the meaning provided in the
second recital of this Agreement.
"Fund" shall have the meaning provided in the first
paragraph of this Agreement.
"Grantors" shall mean, collectively, all of the parties
to this Agreement (other than the Designated Capital Call Investors, the
Collateral Agent and the Administrative Agent).
"Holdings" shall have the meaning provided in the first
paragraph of this Agreement.
"Insignificant Subsidiary" shall mean, on any date of
determination, any Subsidiary of Holdings which would not be a
Significant Subsidiary (within the meaning of Rule 1-02(w) of Regulation
S-X (as in effect on the date hereof, provided that each reference to "10
percent" appearing therein shall be deemed for purposes of this Agreement
to be a reference to (i) "20 percent" on any date of determination
occurring during the calendar year ending December 31, 1998, (ii) "17 1/2
percent" on any date of determination occurring during the calendar year
ending December 31, 1999 and (iii) "15 percent" on any date of
determination occurring during any calendar year thereafter) promulgated
by the SEC) of Holdings.
"Instruments" shall have the meaning ascribed thereto in
the Uniform Commercial Code in effect in the State of New York on the
date hereof.
"Interest Rate Protection Agreements" shall mean any
interest rate hedging agreement or arrangement designed to protect
against fluctuations in interest rates entered into by the Borrower or a
Subsidiary of the Borrower with any of the Other Creditors (as defined in
the Security Agreement).
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<PAGE>
<PAGE>
"Investment" shall mean a cash contribution made (or
deemed made) by a Designated Capital Call Investor after the date hereof
to the equity capital of Investor LP pursuant to this Agreement.
"Investor LP" shall have the meaning provided in the
first paragraph of this Agreement.
"Lenders" shall have the meaning provided in the first
paragraph of this Agreement.
"Obligations" shall have the meaning provided in the
Security Agreement.
"Proportionate Share" of each Lender at any time shall
mean a fraction (x) the numerator of which is the sum of (I) the
aggregate principal amount of all Loans made by such Lender and then
outstanding plus (II) the amount (if any) of such Lender's participation
at such time in outstanding Swingline Loans and Letters of Credit and (y)
the denominator of which is the sum of (I) the aggregate principal amount
of all Loans then outstanding plus (II) the aggregate stated amount of
all Letters of Credit at such time.
"Secured Parties" shall have the meaning provided in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement,
dated as of February 2, 1998, among Holdings, the Borrower, each
Subsidiary Guarantor and the Collateral Agent for the benefit of the
Secured Parties, as same is amended, modified or supplemented from time
to time.
"Tranche D Lenders" shall have the meaning provided in
the second recital of this Agreement.
2. (a) Each of the Designated Capital Call Investors
hereby severally and not jointly agrees on an absolute, irrevocable and
unconditional basis that, within 14 days after the occurrence of a
Capital Call Event, it will make a payment (in cash) directly to the
Administrative Agent in an amount equal to its Capital Call Percentage of
the Capital Call Amount (determined as of the date of the occurrence of
the Capital Call Event); it being understood and agreed that, in the case
of a Capital Call Event of the type described in clause (v)(x) of the
definition thereof, such 14-day period shall begin on the date on which
financial statements (and as certified by an accounting firm or Financial
Officer of Holdings or the Borrower, as the case may be, on behalf of
Holdings or the Borrower, respectively) in respect of the Test Period
ending closest to March 31, 2000 are made available pursuant to Section
5.04 of the Credit Agreement. In calculating the Capital Call Amount,
EBITDA and Total Net Debt (and related calculations) shall be determined
(except as otherwise expressly provided in the definition of Capital Call
Event contained herein) in accordance with the Credit Agreement.
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<PAGE>
<PAGE>
(b) To the extent the Designated Capital Call Investors
are prohibited by operation of law from making Investments in Investor LP
(which are contributed by Investor LP to the equity capital of Holdings
which are further contributed by Holdings to the equity capital of the
Borrower) as contemplated by Section 3(a) below due to any bankruptcy or
similar proceeding relating to Investor LP or Holdings (or any of
Holdings' Subsidiaries) or for any other reason whatsoever, then, at the
election of the Administrative Agent (with the consent of the Required
Lenders), the Designated Capital Call Investors' respective Investments
shall instead be promptly made by means of the purchase by such
Designated Capital Call Investors from each of the Lenders of a
subordinated participation in such Lenders' outstanding Loans (including
such Lenders' participations in outstanding Swingline Loans and Letters
of Credit), pro rata among the Lenders based on their respective
Proportionate Shares at such time, with such participations to be
evidenced by a subordinated participation agreement in form and substance
satisfactory to the Administrative Agent (it being expressly understood
and agreed (and the subordinated participation agreement shall provide)
that no payment or distribution of any kind or character, whether in
cash, property, securities or otherwise, shall be made under any
circumstances whatsoever with respect to any such subordinated
participation until the date on which (i) all Commitments and Letters of
Credit under the Credit Agreement shall have been terminated, (ii) all
Obligations (except those evidenced by the subordinated participations
purchased pursuant to this Section 3(b)) shall have been paid in full in
cash in accordance with the requirements of the Credit Agreement (or the
other Loan Documents) or the Interest Rate Protection Agreements, as the
case may be, (iii) all Interest Rate Protection Agreements shall have
been terminated and (iv) all Obligations (as defined in the Senior
Subordinated Note Indenture and, for avoidance of doubt, including
without limitation all obligations for principal, premium, interest,
penalties, fees, indemnification, reimbursements, damages and other
liabilities under the Senior Subordinated Note Indenture) on the Senior
Subordinated Notes shall have been paid in full in cash (or such other
payment provided for to the satisfaction of the holders of the Senior
Subordinated Notes)).
3. (a) All payments received by the Administrative
Agent pursuant to Section 2(a) above shall automatically be deemed (as of
the date of receipt by the Administrative Agent of such respective
payments) to be Investments by the respective Designated Capital Call
Investors in Investor LP which have been further contributed (as cash) by
Investor LP to the equity capital of Holdings which have been further
contributed (as cash) by Holdings to the equity capital of the Borrower.
(b) All payments received by the Administrative Agent
pursuant to Section 2(a) above shall be promptly applied by it in the
following manner:
(i) if on (x) the date that payments are due and
payable to the Administrative Agent pursuant to Section 2(a)
above or (y) the date that any such payment is actually made to
(and received by) the Administrative Agent, there exists (A) a
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<PAGE>
Default under paragraph (h) or (i) of Section 7.01 of the Credit
Agreement (other than with respect to Insignificant
Subsidiaries) or (B) a Capital Call Event of the type described
in clause (i) or (ii) of the definition thereof, the
Administrative Agent shall forward all such payments to the
Collateral Agent, which shall promptly thereafter apply such
payments in accordance with Section 7 of the Security Agreement
as though same constituted a portion of the Collateral (as
defined in the Security Agreement) thereunder; and
(ii) to the extent that payments are not required to be
applied pursuant to preceding clause (i), the Administrative
Agent shall, on behalf of the Borrower, promptly apply same
directly to the repayment of Term Loans pursuant to Section
2.12(c) of the Credit Agreement (and in accordance with
paragraphs (b) and (d) of Section 2.11 of the Credit Agreement).
(c) Each of the Designated Capital Call Investors,
Investor LP, Holdings and the Borrower hereby consents on an absolute,
irrevocable and unconditional basis to the application of the payments
received by the Administrative Agent pursuant to Section 2(a) above in
the manner contemplated by this Section 3.
4. All payments required to be made by any Designated
Capital Call Investor, Investor LP, Holdings and/or the Borrower pursuant
to this Agreement shall be made in Dollars and in immediately available
funds, and shall be made on the same basis as provided in Sections 2.18
and 2.19 of the Credit Agreement; it being expressly understood and
agreed that, without limiting the foregoing and for avoidance of doubt,
(x) none of the Designated Capital Call Investors and Investor LP shall
incur any additional or supplemental liabilities or obligations in
connection with the application by the Administrative Agent (whether on
behalf of the Borrower or otherwise) of any payments received by it
pursuant to Section 3 above and (y) Holdings and the Borrower shall be
liable for any and all additional or supplemental amounts required to be
paid under the Credit Agreement (including without limitation Sections
2.13 and 2.19 of the Credit Agreement) and the other Loan Documents to
the extent Holdings and/or the Borrower, as the case may be, would be so
liable if repayment of Term Loans (as contemplated by Section 3 above)
had been effectuated directly by the Borrower in accordance with the
Credit Agreement and not by the Administrative Agent on behalf of the
Borrower.
5. The obligations of each of the Designated Capital
Call Investors and Investor LP hereunder are independent of the
obligations of any Guarantor, the Borrower or any other party, and a
separate action or actions may brought and prosecuted against any of the
Designated Capital Call Investors and Investor LP whether or not an
action is brought against any Guarantor, the Borrower or any other party
and whether or not any Guarantor, the Borrower or any other party shall
be joined in any such action or actions. Each of the Designated Capital
Call Investors, Investor LP, Holdings and the Borrower waives, to the
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<PAGE>
fullest extent permitted by law, the benefit of statute of limitations
affecting its liability hereunder or the enforcement hereof.
6. Each of the Designated Capital Call Investors,
Investor LP, Holdings and the Borrower hereby waives notice of acceptance
of this Agreement and notice of any liability to which it may apply, and
waives presentment, demand of payment, protest, notice of dishonor, or
nonpayment of any such liability, suit or taking of other action by
Holdings and/or the Borrower (in the case of the Designated Capital Call
Investors and Investor LP), the Collateral Agent, the Administrative
Agent, any Secured Party or any Lender against, and any other notice to
any such person or any other party liable thereon.
7. (a) As security for the prompt and complete payment
and performance when due, whether at the stated maturity, by
acceleration, upon one or more dates set for prepayment or otherwise of
the Obligations, each of the Grantors hereby grants to the Collateral
Agent, for the ratable benefit of the Secured Parties, a first priority
security interest in the Collateral. Such security interests are granted
as security only and shall not subject any Secured Party or the
Collateral Agent to, or in any way alter or modify, any obligation or
liability of any Grantor with respect to or arising out of the
Collateral. All rights of the Collateral Agent hereunder, the security
interest and all obligations of the Grantors hereunder shall be absolute,
irrevocable and unconditional.
(b) Each Grantor covenants and agrees with the
Collateral Agent, for the ratable benefit of the Secured Parties, from
and after the date of this Agreement until this Agreement and the
security interests created hereby are terminated pursuant to Section 17
below:
(i) If any amount payable under or in connection with
any of the Collateral shall be or become evidenced by any
promissory note, other Instrument or Chattel Paper, such
promissory note, Instrument or Chattel Paper shall be
immediately delivered to the Collateral Agent, duly indorsed in
a manner reasonably satisfactory to the Collateral Agent, to be
held as Collateral pursuant to this Agreement.
(ii) Each Grantor shall cause to be done the filing of
UCC financing statements in the jurisdictions listed on
Schedule I hereto with respect to it. Each Grantor shall
maintain the security interests created by this Agreement as
first priority perfected security interests and shall defend
such security interests against all claims and demands of all
persons whomsoever.
(iii) At any time and from time to time, upon the
written request of the Collateral Agent, and at the sole expense
of a Grantor, such Grantor shall promptly and duly execute and
deliver such further instruments and documents and take such
further action as the Collateral Agent may reasonably request
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for the purpose of obtaining or preserving the full benefits of
this Section 7 and of the rights and powers herein granted,
including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code in
effect in any jurisdiction with respect to the security
interests created hereby.
(iv) No Grantor shall, except (x) upon prior written
notice to the Collateral Agent and (y) if filings under the UCC
or otherwise have been made which maintain in favor of the
Collateral Agent a valid, legal and perfected security interest
in the Collateral subject to no Liens,
(1) change the location of its chief executive
office and chief place of business from that specified
on Schedule II hereto; or
(2) change its (A) corporate name or any trade
name used to identify it in its conduct of business or
in the ownership of its properties, (B) identity or
(C) corporate or partnership structure to such an extent
that any financing statement filed in favor of the
Collateral Agent in connection with this Agreement would
become seriously misleading.
(v) Each Grantor shall advise the Collateral Agent
promptly, in reasonable detail, at its address set forth in
Section 9.01 of the Credit Agreement or as set forth immediately
below its signature below, as the case may be, of:
(1) any Lien (other than security interests
created hereby) on any material portion of the
Collateral; and
(2) the occurrence of any other event which
could reasonably be expected to have a material adverse
effect on the security interests created hereby or on
the aggregate value of the Collateral.
(vi) Notwithstanding anything to the contrary provided
herein, the Collateral Agent assumes no liabilities with respect
to any claims regarding each Grantor's ownership (or purported
ownership) of, or rights or obligations (or purported rights or
obligations) arising from, the Collateral or any use (or actual
or alleged misuse) whether arising out of any past, current or
future event, circumstance, act or omission or otherwise, or any
claim, suit, loss, damage, expense or liability of any kind or
nature arising out of or in connection with the Collateral. All
of such liabilities shall, as between the Collateral Agent and
the Grantors, be borne exclusively by the Grantors.
(vii) The Borrower agrees to pay all expenses of the
Collateral Agent and to indemnify the Collateral Agent with
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respect to any and all losses, claims, damages, liabilities and
related expenses in respect of this Agreement or the Collateral
in each case to the same extent the Borrower is required to do
so with respect to the Credit Agreement pursuant to Section 9.05
of the Credit Agreement. Any amounts payable as provided
hereunder shall be additional Obligations secured hereby and by
the Security Documents. Without prejudice to the survival of
any other agreements contained herein, all indemnification and
reimbursement obligations contained herein shall survive the
payment in full of the principal and interest under the Credit
Agreement, the expiration of the Letters of Credit and the
termination of the Commitments, all Interest Rate Protection
Agreements or this Agreement.
(viii) A Grantor shall not (x) make or permit to be
made an assignment, pledge or hypothecation of the Collateral,
and shall grant no other security interest in such Collateral or
(y) make or permit to be made any transfer of such Collateral,
and shall remain at all times in possession thereof other than
transfers to the Collateral Agent pursuant to the provisions
hereof.
(ix) Anything herein to the contrary notwithstanding,
each Grantor shall remain liable under this Agreement to observe
and perform all the conditions and obligations to be observed
and performed by it hereunder, all in accordance with and
pursuant to the terms and provisions of this Agreement. No
Secured Party shall have any obligation or liability under this
Agreement by reason of or arising out of this Agreement or the
receipt by any such Secured Party of any payment relating to
this Agreement pursuant hereto, nor shall any Secured Party be
obligated in any manner to perform any of the obligations of a
Grantor under or pursuant to this Agreement, to make any
payment, to make any inquiry as to the nature or the sufficiency
of any payment received by it or as to the sufficiency of any
performance by any party under this Agreement, to present or
file any claim, to take any action to enforce any performance or
to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or
times.
(x) The parties hereto acknowledge that the Collateral
Agent shall be entitled to exercise such remedies, powers and
rights with respect to the Collateral as are set forth in
Sections 7 (excluding Section 7.2 and, with respect to Investor
LP, Sections 7.3(g) and 7.5 thereof) through 11, inclusive, of
the Security Agreement and all provisions of such Sections of
the Security Agreement relating to such remedies, powers and
rights, together with all definitions therein applicable to such
provisions, are hereby incorporated by reference as if set forth
herein in their entirety, provided that:
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(1) all references to "Grantor" or "Grantors"
therein shall have the respective meanings ascribed
thereto herein;
(2) all references to "Collateral" therein
shall have the meaning ascribed thereto herein;
(3) all references to "the Contracts" therein
shall be deemed to be references to "this Agreement"
herein;
(4) all references to "Default" or "Event of
Default" therein shall be deemed to be references to
"Capital Call Event" herein;
(5) all references to "Section 17(a)" therein
shall be deemed to be references to "Section 17 of this
Agreement" herein; and
(6) all references to "this Agreement",
"herein", "hereunder" and words of similar import
therein shall mean and be a reference to "this
Agreement" as defined herein.
(xi) Each Grantor waives and agrees not to assert any
rights or privileges it may acquire under Section 9-112 of the
Uniform Commercial Code as from time to time in effect in the
State of New York.
8. The Collateral Agent, the Administrative Agent, the
Secured Parties (or any of the Secured Parties) and/or the Lenders (or
any of the Lenders) may (except as shall be required by applicable
statute and cannot be waived) at any time and from time to time without
the consent of, or notice to, any of the Designated Capital Call
Investors, Investor LP, Holdings or the Borrower, in each case without
incurring responsibility to any such person, without impairing or
releasing the obligations of any such person hereunder, upon or without
any terms or conditions and in whole or in part:
(i) change the manner, place or terms of payment of,
and/or change or extend the time of payment of, renew, alter or
increase any of the Obligations, any security therefor, or any
liability incurred directly or indirectly in respect thereof;
(ii) take and hold security for the payment of the
Obligations and sell, exchange, release, impair, surrender,
realize upon or otherwise deal with in any manner and in any
order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Obligations or
any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any
offset there against;
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(iii) exercise or refrain from exercising any rights
against the Borrower, any other Loan Party or others or
otherwise act or refrain from acting;
(iv) settle or compromise any of the Obligations, any
security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part
thereof to the payment of any liability (whether due or not) of
the Borrower to creditors of the Borrower other than the Secured
Parties;
(v) except as otherwise expressly provided herein,
apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Collateral
Agent, the Administrative Agent, the Secured Parties or the
Lenders regardless of what liability or liabilities of the
Designated Capital Call Investors, Investor LP, Holdings or the
Borrower remain unpaid;
(vi) release or substitute any one or more endorsers,
guarantors, Loan Parties or other obligors;
(vii) consent to or waive any breach of, or any act,
omission or default under, any of the Loan Documents or any of
the instruments or agreements referred to therein, or otherwise
amend, modify or supplement any of the Loan Documents or any of
such other instruments or agreements, provided that no such
consent, waiver, amendment, modification or supplement relating
to the definition of "Net Leverage Ratio" shall be effective for
purposes of this Agreement without the consent of the Designated
Capital Call Investors and Investor LP;
(viii) act or fail to act in any manner referred to in
this Agreement which may deprive any of the Designated Capital
Call Investors, Investor LP or Holdings of any right to
subrogation against the Borrower to recover any payments made
pursuant to this Agreement;
(ix) pursue its rights and remedies under this
Agreement and/or under any guaranty of all or any part of the
Obligations in whatever order, or collectively, and the
Collateral Agent, the Administrative Agent, the Secured Parties
and the Lenders shall be entitled to the strict performance of
each Designated Capital Call Investor, Investor LP, Holdings and
the Borrower hereunder, notwithstanding any action taken (or not
taken) by the Collateral Agent, the Administrative Agent, the
Secured Parties and the Lenders to enforce any of its rights or
remedies against any Designated Capital Call Investor, Investor
LP, Holdings, the Borrower or any other person, for all or any
part of the Obligations or any payment received under this
Agreement or any other such guaranty; and/or
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(x) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or
equitable discharge of any Designated Capital Call Investor,
Investor LP, Holdings or the Borrower from its liabilities under
this Agreement.
9. No invalidity, irregularity or unenforceability of
all or any of the Loans, Letters of Credit and/or any of the other
Obligations or of any security therefor shall affect, impair or be a
defense to this Agreement, and the obligations of the Designated Capital
Call Investors, Investor LP, Holdings and the Borrower hereunder shall be
absolute, irrevocable and unconditional notwithstanding the occurrence of
any event or the existence of any circumstance, including, without
limitation, any bankruptcy or insolvency proceeding with respect to any
Designated Capital Call Investor, Investor LP, Holdings or any of its
Subsidiaries or any event or circumstance which would constitute a legal
or equitable discharge, except payment in full in cash of all Obligations
in accordance with the Credit Agreement (or the other Loan Documents) or
the Interest Rate Protection Agreements, as the case may be.
10. In order to induce the Lenders (including the
Tranche D Lenders) to enter into the First Amendment, each of the
Designated Capital Call Investors, Investor LP, Holdings and the Borrower
makes the following representations, warranties and agreements:
(a) (i) Each of Blackstone Capital Partners,
Blackstone Offshore Partners, Blackstone Family Partnership,
Holdings and the Borrower is a duly organized and validly
existing limited partnership in good standing under the laws of
the State of Delaware (or, in the case of (x) Blackstone
Offshore Partners, the Cayman Islands and (y) Holdings, the
Commonwealth of Pennsylvania) and has the power and authority to
own its property and assets and to transact the business in
which it is engaged and presently proposes to engage and (ii)
Investor LP is a duly organized and validly existing corporation
in good standing under the laws of the State of Delaware and has
the power and authority to own its property and assets and to
transact the business in which it is engaged and presently
proposes to engage.
(b) Each of the Designated Capital Call Investors,
Investor LP, Holdings and the Borrower has the full power and
authority to grant the security interest in the Collateral
pursuant hereto and to execute, deliver and perform the terms
and provisions of this Agreement and has taken all necessary
action to authorize the execution, delivery and performance by
it of this Agreement. Each of the Designated Capital Call
Investors, Investor LP, Holdings and the Borrower has duly
executed and delivered this Agreement, and this Agreement
constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms, except to the extent
that the enforceability hereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
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similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is
sought in equity or at law).
(c) Neither the execution, delivery or performance by
any of the Designated Capital Call Investors, Investor LP,
Holdings or the Borrower of this Agreement, nor compliance by it
with the terms and provisions hereof, nor the consummation of
the transactions contemplated herein, (x) will contravene any
provision of any applicable law, statute, rule or regulation or
any applicable order, writ, injunction or decree of any court or
governmental instrumentality, (y) will conflict with or result
in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or
impose) any Lien upon any of the property or assets of such
person pursuant to the terms of any indenture, mortgage, deed of
trust, credit agreement, loan agreement or any other material
agreement, contract or instrument to which it is a party or by
which it or any of its property or assets is bound or to which
it may be subject or (z) will violate any provision of any of
the organizational documents of such person, in the case of each
of the preceding sub-clauses, which could reasonably be expected
to have (i) a materially adverse effect on the assets, business,
operations, properties, liabilities, profits or condition
(financial or otherwise) of such person, (ii) a material
impairment of the ability of such person to perform any of its
material obligations hereunder or (iii) an impairment of the
validity or enforceability of, or a material impairment of the
material rights, remedies or benefits available to the Lenders,
the Secured Parties, the Administrative Agent or the Collateral
Agent hereunder.
(d) Other than the filing of financing statements in
appropriate form in the jurisdictions specified on Schedule I
hereto, no other order, consent, approval, license,
authorization or validation of, or filing, recording or
registration with, or exemption or any other action by, any
Governmental Authority is or will be required to authorize, or
is required in connection with, (x) the execution, delivery and
performance of this Agreement or (y) the legality, validity,
binding effect or enforceability of this Agreement.
(e) This Agreement is effective to create in favor of
the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable security interest in the
Collateral and, upon the filing of financing statements in
appropriate form in the jurisdictions specified on Schedule I
hereto, this Agreement will constitute a fully perfected Lien
on, and security interest in, all right, title and interest of
the Grantors in such Collateral and, subject to Section 9-306 of
the Uniform Commercial Code, the Proceeds thereof, in each case
prior and superior in right to any other person, other than with
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respect to Liens expressly permitted by Section 6.02 of the
Credit Agreement.
(f) As of the First Amendment Effective Date (as
defined in the First Amendment), each Grantor's chief executive
office and chief place of business is located at the location
listed on Schedule II hereto.
(g) There are no actions, suits or proceedings pending
or, to the knowledge of any of the Designated Capital Call
Investors, Investor LP, Holdings and the Borrower, threatened
(x) with respect to this Agreement or (y) that could reasonably
be expected to (i) materially and adversely effect the business,
operations, property, assets, liabilities or condition
(financial or otherwise) of such person or (ii) have a material
adverse effect on the rights or remedies of the Secured Parties,
the Lenders, the Collateral Agent or the Administrative Agent
hereunder or on the ability of such person to perform its
obligations to the Secured Parties, the Lenders, the Collateral
Agent or the Administrative Agent hereunder.
(h) Each of the Designated Capital Call Investors,
Investor LP, Holdings and the Borrower is in compliance with all
applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business
and the ownership of its property, except such noncompliances as
could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on either (i) the
business, operations, property, assets, liabilities or condition
(financial or otherwise) of such person or (ii) the rights or
remedies of the Secured Parties, the Lenders, the Collateral
Agent or the Administrative Agent hereunder or on its ability to
perform its obligations hereunder.
(i) (x) Each of Blackstone Capital Partners and
Blackstone Offshore Partners (or, in each case, the general
partner(s) thereof) has, and will at all times during the term
of this Agreement have, the right to call cash capital
contributions from the respective partners of Blackstone Capital
Partners or Blackstone Offshore Partners, as the case may be, in
amounts, and at times, sufficient to fund in a timely manner all
of the respective obligations of Blackstone Capital Partners or
Blackstone Offshore Partners, as the case may be, under this
Agreement and (y) Blackstone Family Partnership has, and will at
all times during the term of this Agreement have, sufficient
assets to fund in a timely manner all of its obligations under
this Agreement.
11. (a) Each of Blackstone Capital Partners and
Blackstone Offshore Partners (and, in each case, the general partner(s)
thereof) agrees to take all action as may be necessary so that, at all
times prior to the satisfaction and release of all of the respective
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obligations of Blackstone Capital Partners or Blackstone Offshore
Partners, as the case may be, under this Agreement pursuant to Section 17
below, Blackstone Capital Partners or Blackstone Offshore Partners, as
the case may be, (and/or, in each case, the general partner(s) thereof)
shall have the right to call cash capital contributions from the
respective partners of Blackstone Capital Partners or Blackstone Offshore
Partners, as the case may be, in amounts, and at times, sufficient to
fund in a timely manner all of the respective obligations of Blackstone
Capital Partners or Blackstone Offshore Partners, as the case may be,
under this Agreement.
(b) Blackstone Family Partnership (and the general
partner thereof) agrees to take all action as may be necessary so that,
at all times prior to the satisfaction and release of all of its
obligations under this Agreement pursuant to Section 17 below, Blackstone
Family Partnership shall have sufficient assets to fund in a timely
manner all of its obligations under this Agreement.
12. Blackstone Offshore Partners (and the general
partners thereof) agrees to take all necessary actions (including without
limitation all necessary authorizations, consents or approvals of, the
giving of notice to, or the registration or filing with, or the taking of
any other action in respect of, any governmental or judicial authority or
agency in the Cayman Islands) prior to the 90th day after the First
Amendment Effective Date to ensure (x) continued compliance by Blackstone
Offshore Partners (and the general partners thereof) with all applicable
Cayman Islands statutory requirements, (y) maintenance of existence and
good standing of Blackstone Offshore Partners as an exempted limited
partnership and (z) the authority of the General Partners to act on
behalf of, and to bind, Blackstone Offshore Partners; it being understood
and agreed that such actions shall specifically include, without
limitation, (A) the establishment and maintenance of proper books of
record and account in which full, true and correct entries in conformity
with all requirements of applicable law shall be made of all dealings and
transactions (including the entering into the Capital Call Agreement) in
relation to the business and activities of Blackstone Offshore Partners
and (B) the filing of all original documents and completion of the
statutory registers in connection with recording Blackstone Services
(Cayman) III LDC as the Administrative General Partner of Blackstone
Offshore Partners.
13. No failure or delay on the part of the Collateral
Agent, the Administrative Agent, any Secured Party, any Lender, any
Designated Capital Call Investor, Investor LP, Holdings, the Borrower or
any other Loan Party in exercising any right, power or privilege
hereunder and no course of dealing between or among the Collateral Agent,
the Administrative Agent, any Secured Party, any Lender, any Designated
Capital Call Investor, Investor LP, Holdings, the Borrower or any other
Loan Party shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right,
power or privilege. The rights, powers and remedies herein expressly
provided are cumulative and not exclusive of any rights, powers or
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remedies which the Collateral Agent, the Administrative Agent, any
Secured Party or any Lender would otherwise have. No notice to or demand
on any Designated Capital Call Investor, Investor LP, Holdings or the
Borrower in any case shall entitle such person to any other further
notice or demand in similar or other circumstances or constitute a waiver
of the rights of the Collateral Agent, the Administrative Agent, any
Secured Party or any Lender to any other or further action in any
circumstances without notice or demand.
14. This Agreement shall be binding upon each
Designated Capital Call Investor, Investor LP, Holdings and the Borrower,
and their respective successors and assigns (including, without
limitation, any executors or administrators) and shall inure to the
benefit of the Collateral Agent, the Administrative Agent, the Secured
Parties and the Lenders and their respective successors and assigns.
Each of the Designated Capital Call Investors, Investor LP, Holdings and
the Borrower acknowledges and agrees that this Agreement is made for the
benefit of the Collateral Agent, the Administrative Agent, the Secured
Parties and the Lenders and that the Collateral Agent, the Administrative
Agent, the Secured Parties and/or the Lenders may enforce all of the
obligations of the Designated Capital Call Investors, Investor LP,
Holdings and the Borrower hereunder directly against them. Neither the
Designated Capital Call Investors, Investor LP, Holdings nor the Borrower
may assign any of its rights or obligations hereunder without the consent
of the Required Lenders.
15. This Agreement is expressly made for the benefit of
the Collateral Agent, the Administrative Agent, the Lenders and the
Secured Parties. Neither this Agreement nor any provision hereof may be
changed, modified, amended or waived except with the written consent of
each Designated Capital Call Investor, Investor LP, Holdings, the
Borrower, the Collateral Agent and the Administrative Agent (with the
consent of the Required Lenders).
16. All notices and other communication hereunder shall
be made at the addresses, in the manner and with the effect provided in
Section 9.01 of the Credit Agreement (or, in the case of the Collateral
Agent, Section 12 of the Security Agreement), provided that, for this
purpose, the address of Blackstone Capital Partners, Blackstone Offshore
Partners, Blackstone Family Partnership and Investor LP shall be the
address specified immediately below its respective signature below.
17. (a) This Agreement and the security interests
created hereby shall terminate and be of no further force and effect
(except to the extent any party's obligations, if any, arising prior to
such time hereunder have not theretofore been fulfilled) upon the
earliest of (i) the occurrence of a Capital Call Event and the making of
all of the required payments to the Administrative Agent pursuant to
Section 2(a) above, (ii) so long as no Capital Call Event has theretofore
occurred, the date on which Holdings or the Borrower delivers the
applicable financial statements (and accompanying certification) pursuant
to Section 5.04 of the Credit Agreement demonstrating to the reasonable
satisfaction of the Administrative Agent that the Net Leverage Ratio did
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not exceed 5.15:1.0 in respect of the Test Period ending closest to March
31, 2000 (so long as no Capital Call Event has theretofore occurred) and
(iii) the date on which all Commitments and Letters of Credit under the
Credit Agreement shall have been terminated, all Obligations shall have
been repaid in full in cash in accordance with the requirements of the
Credit Agreement (or the other Loan Documents) or the Interest Rate
Protection Agreements, as the case may be, and all Interest Rate
Protection Agreements shall have been terminated. Notwithstanding
anything to the contrary contained herein, none of the Designated Capital
Call Investors and Investor LP shall have any obligations under this
Agreement in respect of a Capital Call Event of the type described in any
of clauses (i) through (iv), inclusive, of the definition thereof, in
each case if same occurs after March 31, 2000.
(b) In connection with any termination pursuant to
paragraph (a) above, (i) the Borrower shall, on behalf of the Grantors,
deliver to the Collateral Agent a certificate signed by a Responsible
Officer of the Borrower certifying that such termination is permitted
pursuant to paragraph (a) of this Section 17, and the Collateral Agent
shall be entitled (but not required) to conclusively rely thereon and in
any event shall not incur any liability to any person in acting (or
refraining from acting) in reliance thereon and (ii) the Collateral Agent
shall execute and deliver to each Grantor, at the expense of such Grantor
or the Borrower, all Uniform Commercial Code termination statements and
similar documents that such Grantor shall reasonably request to evidence
such termination. Any execution and delivery of termination statements or
documents pursuant to this Section 17 shall be without recourse to or
warranty by the Collateral Agent.
18. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF EACH DESIGNATED CAPITAL CALL INVESTOR, INVESTOR LP, HOLDINGS, THE
BORROWER, THE COLLATERAL AGENT, THE ADMINISTRATIVE AGENT, THE SECURED
PARTIES AND THE LENDERS HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE CITY, COUNTY AND STATE OF
NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
DESIGNATED CAPITAL CALL INVESTOR, INVESTOR LP, HOLDINGS AND THE BORROWER
HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS WITH RESPECT TO
ANY SUCH ACTION OR PROCEEDING. EACH DESIGNATED CAPITAL CALL INVESTOR,
INVESTOR LP, HOLDINGS AND THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES
ANY CLAIM THAT ANY SUCH COURTS LACK JURISDICTION OVER SUCH PERSON, AND
AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFORESAID COURTS, THAT
ANY SUCH COURT LACKS JURISDICTION OVER SUCH PERSON. EACH DESIGNATED
CAPITAL CALL INVESTOR, INVESTOR LP, HOLDINGS AND THE BORROWER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO SUCH PERSON, AT ITS ADDRESS FOR NOTICES PURSUANT TO SECTION
9.01 OF THE CREDIT AGREEMENT (OR, IN THE CASE OF THE COLLATERAL AGENT,
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SECTION 12 OF THE SECURITY AGREEMENT) OR AS SET FORTH IMMEDIATELY BELOW
ITS SIGNATURE BELOW, AS THE CASE MAY BE, SUCH SERVICE TO BECOME EFFECTIVE
30 DAYS AFTER SUCH MAILING. EACH DESIGNATED CAPITAL CALL INVESTOR,
INVESTOR LP, HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED
HEREUNDER THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE COLLATERAL AGENT, THE
ADMINISTRATIVE AGENT, ANY SECURED PARTY, ANY LENDER OR THE HOLDER OF ANY
NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY DESIGNATED CAPITAL
CALL INVESTOR, INVESTOR LP, HOLDINGS OR THE BORROWER IN ANY OTHER
JURISDICTION.
(c) EACH DESIGNATED CAPITAL CALL INVESTOR, INVESTOR LP,
HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE
AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (b) ABOVE AND
HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH DESIGNATED CAPITAL CALL
INVESTOR, INVESTOR LP, HOLDINGS AND THE BORROWER FURTHER IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY COURT OR
JURISDICTION, INCLUDING, WITHOUT LIMITATION, THOSE REFERRED TO IN CLAUSE
(b) ABOVE, IN RESPECT OF ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
19. The Borrower hereby agrees to pay all reasonable
out-of-pocket costs and expenses of each of the Collateral Agent, the
Administrative Agent, each Secured Party and each Lender in connection
with the administration and enforcement of this Agreement and the
Borrower hereby agrees to pay all reasonable out-of-pocket costs and
expenses of the Collateral Agent, the Administrative Agent in connection
with any amendment, waiver or consent relating hereto (including, without
limitation, in each case, the reasonable fees and disbursements of
counsel employed by the Collateral Agent, the Administrative Agent, each
Secured Party and each Lender, as the case may be), in each case within
10 Business Days after any request is made by the Collateral Agent, the
Administrative Agent, any such Secured Party or any such Lender for any
such payment.
20. If any of the Designated Capital Call Investors,
Investor LP, Holdings or the Borrower shall default in the payment of the
Capital Call Amount or any other amount becoming due hereunder, such
person shall on demand from time to time pay interest, to the extent
permitted by law, directly to the Administrative Agent on such defaulted
amount for the period beginning on the date of such default up to (but
not including) the date of actual payment (after as well as before
judgment) at a rate per annum (computed on the basis of the actual number
of days elapsed over a year of 360 days) equal to the greater of (x) 2%
per annum in excess of the rate applicable to Tranche D Term Loans
maintained as ABR Loans (assuming same are outstanding under the Credit
-20-
<PAGE>
<PAGE>
Agreement) from time to time and (y) the rate which is 2% in excess of
the rate then borne by such Loans (assuming same are outstanding under
the Credit Agreement). Any such interest shall be applied by the
Administrative Agent on the same basis and in the same manner as interest
paid pursuant to Section 2.07 of the Credit Agreement. Notwithstanding
the foregoing, if on the date the Capital Call Amount (or any portion
thereof) shall have become due and payable hereunder the Designated
Capital Call Investors are prohibited by operation of law from making
Investments in Investor LP (which are contributed by Investor LP to the
equity capital of Holdings which are further contributed by Holdings to
the equity capital of the Borrower) as contemplated by Section 3(a)
hereof due to any bankruptcy or similar proceeding relating to Investor
LP or Holdings (or any of Holdings' Subsidiaries) or for any other reason
whatsoever, no interest under this Section 20 shall accrue on the Capital
Call Amount (or such portion thereof) for the period beginning on the
date when the Capital Call Amount (or such portion thereof) shall have
become due and payable hereunder up to (but not including) the earlier to
occur of: (x) such legal prohibition on the ability of the Designated
Capital Call Investors to make Investments in Investor LP shall, in the
reasonable opinion of the Administrative Agent, cease to exist and (y)
the Administrative Agent shall have exercised its election to require the
Designated Capital Call Investors to purchase from the Lenders
subordinated participations in the Loans in accordance with Section 2(b)
hereof.
21. Each of the Administrative Agent and the Collateral
Agent shall be entitled to rely, and shall be fully protected in relying,
upon any note, writing, resolution, notice, statement, certificate,
telex, teletype or telecopier message, cablegram, radiogram, order or
other document or telephone message signed, sent or made by any person
that the Administrative Agent or the Collateral Agent, as the case may
be, believed to be the proper person, and, with respect to all legal
matters pertaining to this Agreement and any other Loan Document and its
duties hereunder and thereunder, upon advice of counsel selected by the
Administrative Agent or the Collateral Agent, as the case may be.
22. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto
shall be lodged with each Designated Capital Call Investor, Investor LP,
Holdings, the Borrower, the Collateral Agent and the Administrative
Agent.
23. Notwithstanding anything contained herein to the
contrary, each Lender, each Secured Party and each Agent agree that (a)
in an action to collect any amounts due under, or otherwise in respect
of, this Agreement, no future, current or former partner in Investor LP
or in any Designated Capital Call Investor (except, if any such partner
is a Loan Party or is otherwise a party to any Loan Documents, for such
person's obligations under such Loan Documents) in its capacity as such
will be personally liable for any amounts due or any other liability
-21-
<PAGE>
<PAGE>
under this Agreement, and no deficiency or personal judgment will be
sought against any such partner in its capacity as such for payment of
any amount contemplated herein and (b) no property or assets of any such
future, current or former partner in Investor LP or in any Designated
Capital Call Investor (except, if any such partner is a Loan Party or is
otherwise a party to any Loan Documents, for such person's obligations
under such Loan Documents) in its capacity as such shall be sold, levied
upon or otherwise used to satisfy any judgment rendered in connection
with any action brought with respect to this Agreement; provided,
however, that nothing contained in this Section 23 shall (i) affect,
limit, restrict or impair in any way whatsoever (x) the obligations and
liability of the Designated Capital Call Investors or Investor LP
hereunder as parties hereto or (y) the validity of the obligations
evidenced by this Agreement, (ii) prevent the taking of any action
permitted by law against any of the Designated Capital Call Investors,
Investor LP, Holdings, the Borrower or any other Loan Party (or, in each
case, their respective assets or the proceeds thereof) in respect of such
obligations or (iii) in any way whatsoever affect or impair the right of
any Agent, any Lender or any Secured Party to take any action permitted
by law to realize upon any Collateral or any other collateral or security
which may secure such obligations of the Designated Capital Call
Investors or Investor LP or of Holdings, the Borrower or any other Loan
Party.
* * *
-22-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as
of the day and year first above written.
GRAHAM PACKAGING HOLDINGS
COMPANY
By: BCP/Graham Holdings L.L.C., its
general partner
By: ________________________________
Name:
Title:
GRAHAM PACKAGING COMPANY
By: GPC Opco GP LLC, its general
partner
By: ________________________________
Name:
Title:
-23-
<PAGE>
<PAGE>
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND L.P.
By: Blackstone Management Associates
III LLC, its general partner
By: ________________________________
Name:
Title:
Address:
-24-
<PAGE>
<PAGE>
BLACKSTONE OFFSHORE CAPITAL
PARTNERS III L.P.
By: Blackstone Services (Cayman) III
LDC, its general partner
By: ________________________________
Name:
Title:
Address:
By: Blackstone Management Associates
III LLC, its general partner
By: ________________________________
Name:
Title:
Address:
-25-
<PAGE>
<PAGE>
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP III L.P.
By: Blackstone Management Associates
III LLC, its general partner
By: ________________________________
Name:
Title:
Address:
-26-
<PAGE>
<PAGE>
BMP/GRAHAM HOLDINGS CORPORATION
By: ________________________________
Name:
Title:
Address:
-27-
<PAGE>
<PAGE>
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Collateral Agent and
as Administrative Agent
By:_______________________________
Name:
Title:
-28-
<PAGE>
<PAGE>
SCHEDULE I
LIST OF
JURISDICTIONS FOR UCC FILINGS
-29-
<PAGE>
<PAGE>
SCHEDULE II
LIST OF
CHIEF EXECUTIVE OFFICES AND CHIEF PLACES OF BUSINESS
-30-
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> YEAR YEAR
<FISCAL-YEAR-END> DEC-31-1997 DEC-31-1998
<PERIOD-END> DEC-31-1997 DEC-31-1998
<CASH> 0 0
<SECURITIES> 0 0
<RECEIVABLES> 0 0
<ALLOWANCES> 0 0
<INVENTORY> 0 0
<CURRENT-ASSETS> 0 0
<PP&E> 0 0
<DEPRECIATION> 0 0
<TOTAL-ASSETS> 0 0
<CURRENT-LIABILITIES> 0 0
<BONDS> 0 0
0 0
0 0
<COMMON> 0 0
<OTHER-SE> 0 0
<TOTAL-LIABILITY-AND-EQUITY> 0 0
<SALES> 0 0
<TOTAL-REVENUES> 0 0
<CGS> 0 0
<TOTAL-COSTS> 0 0
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 0 0
<INCOME-PRETAX> 0 0
<INCOME-TAX> 0 0
<INCOME-CONTINUING> 0 0
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 0 0
<EPS-PRIMARY> 0.00 0.00
<EPS-DILUTED> 0.00 0.00
</TABLE>
