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FIRST AMENDMENT
THIS FIRST AMENDMENT dated as of September 27, 2000 (this "Amendment")
amends the Short Term Credit Agreement dated as of September 29, 1999 (the
"Credit Agreement") among PACTIV CORPORATION (formerly known as Tenneco
Packaging Inc.), various financial institutions and BANK OF AMERICA, N.A., as
Administrative Agent. Terms defined in the Credit Agreement are, unless
otherwise defined herein or the context otherwise requires, used herein as
defined therein.
WHEREAS, the Company, the Lenders and the Administrative Agent have
entered into the Credit Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as more fully set forth below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 Amendments. Subject to the conditions precedent set forth in
Section 3, effective on September 27, 2000, the Credit Agreement shall be
amended as set forth below:
1.1 Extension of Termination Date. The definition of Termination Date set
forth in Section 1.1 is amended by deleting the date "September 27, 2000" and
substituting the date "September 26, 2001" therefor.
1.2 Addition of Increase Option. (a) Article II is amended by adding the
following Section 2.14 thereto in proper numerical sequence:
Section 2.14 Optional Increase in Combined Commitments. The
Company may at any time, by means of a letter to the Administrative
Agent substantially in the form of Exhibit G, request that the
Combined Commitments be increased by (a) increasing the amount of the
Commitment of one or more Lenders which have agreed to such increase
and/or (b) adding any bank or other financial institution as a party
hereto with a Commitment in an amount agreed to by such bank or other
financial institution (each, an "Additional Lender"); provided that
(i) no Person shall be added as a party hereto unless such Person
shall have been approved in writing by the Administrative Agent (which
approval shall not be unreasonably withheld), (ii) in no event shall
the Combined Commitments exceed $300,000,000 without the written
consent of all Lenders, and (iii) at the time of any increase, and
after giving effect thereto, no Event of Default or Unmatured Event of
Default shall exist. Any increase in the Combined Commitments pursuant
to this Section 2.14 shall become effective three Business Days after
the date on which the Administrative Agent has received and accepted
the applicable increase letter in the form of Annex 1 to Exhibit G (in
the case of
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an increase in the amount of the Commitment of an existing Lender) or
assumption letter in the form of Annex 2 to Exhibit G (in the case of
the addition of an Additional Lender as a new Lender) or on such other
date as is agreed among the Company, the Administrative Agent and the
increasing Lender or the Additional Lender, as applicable (it being
understood that the Administrative Agent shall consult with the
Company to select a date which minimizes, to the extent possible, any
loss or expense under Section 3.4 resulting from any such increase).
The Administrative Agent shall promptly notify the Company and the
Lenders of any increase in the amount of the Combined Commitments
pursuant to this Section 2.14 and of the amount of the Commitment and
Pro Rata Share of each Lender after giving effect thereto. The Company
acknowledges that a reallocation of the Commitments as a result of a
non-pro-rata increase in the Combined Commitments may require
prepayment of all or portions of certain Offshore Rate Loans on the
date of such increase (and any such prepayment shall be subject to the
provisions of Section 3.4).
(b) The parenthetical clause immediately prior to the first proviso
clause in Section 2.1 is amended in its entirety to read as follows:
(such amount, as reduced pursuant to Section 2.5, increased
pursuant to Section 2.14 or changed by one or more assignments
under Section 10.8, such Lender's "Commitment")
(c) The third sentence of Section 2.5 is amended in its entirety to read
as follows:
Once reduced in accordance with this Section, the Commitments may
not be increased (except pursuant to Section 2.14).
(d) Addition of Exhibit G (Request for Increase). Exhibit G attached
hereto is added to the Credit Agreement as Exhibit G thereto.
1.3 Amendment of Schedule 2.1. Schedule 2.1 is amended in its entirety by
substituting the Schedule 2.1 attached hereto therefor.
SECTION 2 Representations and Warranties. The Company represents and
warrants to the Lenders that (a) each of the representations and warranties of
the Company set forth in the Credit Agreement is true and correct in all
material respects as of the date of the execution and delivery of this
Amendment by the Company, with the same effect as if made on such date (except
to the extent such representations and warranties expressly refer to an earlier
date, in which case they were true and correct in all material respects as of
such earlier date); (b) the execution and delivery by the Company of this
Amendment and the performance by the Company of its obligations under the
Credit Agreement, as amended hereby (as so amended, the "Amended Credit
Agreement"), (i) are within the powers of the Company, (ii) have been duly
authorized by all necessary corporate action on the part of the Company, (iii)
have received all
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necessary governmental approval and (iv) do not and will not (x) contravene
the terms of any of the Company's Organizational Documents, (y) conflict with
or result in any breach or contravention of, or the creation of any Lien under,
any document evidencing any material Contractual Obligation to which the
Company or any of its Subsidiaries is a party or any order, injunction, writ or
decree of any Governmental Authority to which the Company or any of its
Subsidiaries or any of its property is subject or violate any Requirement of
Law applicable to the Company or any Subsidiary; and (c) the Amended Credit
Agreement is a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or equitable principles relating to
enforceability.
SECTION 3 Effectiveness. This Amendment shall become effective on
September 27, 2000, but only if on or before such date the Administrative Agent
shall have received (i) for the account of each Lender, an extension fee in the
amount set forth in the invitation letter from Banc of America Securities LLC
dated September 7, 2000; and (ii) counterparts of this Amendment executed by
each of the Lenders.
SECTION 4 Deletion of Lenders. Effective on the date of the effectiveness
of this Amendment, each of (i) Morgan Guaranty Trust Company of New York and
(ii) Bank Hapoalim B.M. (each an "Exiting Lender") shall cease to be a party to
the Credit Agreement and shall have no further rights or obligations
thereunder, provided that each Exiting Lender shall continue to have all rights
and obligations under any provision of the Credit Agreement which by its terms
would survive termination of the Credit Agreement.
SECTION 5 Miscellaneous.
5.1 Continuing Effectiveness, etc. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the First Amendment Effective Date, all
references in the Credit Agreement and the Notes to "Credit Agreement",
"Agreement" or similar terms shall refer to the Amended Credit Agreement.
5.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
5.3 Expenses. The Company agrees to pay the reasonable costs and expenses
of the Administrative Agent (including Attorney Costs) in connection with the
preparation, execution and delivery of this Amendment.
5.4 Governing Law. This Amendment shall be a contract made under and
governed by the law of the State of Illinois; provided that the Administrative
Agent and the Lenders shall retain all rights arising under Federal law.
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5.5 Successors and Assigns. This Amendment shall be binding upon the
Company, the Lenders and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Company, the
Lenders and the Administrative Agent and the respective successors and assigns
of the Lenders and the Administrative Agent.
Delivered at Chicago, Illinois as of the day and year first above written.
PACTIV CORPORATION
By: /s/ David Brush
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David Brush
Title: VICE PRESIDENT AND TREASURER
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BANK OF AMERICA, N.A.,
as Administrative Agent and as a Lender
By: /s/ John W. Pocalyko
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John W. Pocalyko
Title: MANAGING DIRECTOR
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CREDIT SUISSE FIRST BOSTON, as Syndication
Agent and as a Lender
By: /s/ William S. Lutkins
--------------------------------------
William S. Lutkins
Title: VICE PRESIDENT
-----------------------------------
By: /s/ David L. Sawyer
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David L. Sawyer
Title: VICE PRESIDENT
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BANK ONE, NA (Main Office Chicago), as
Co-Documentation Agent and as a Lender
By: /s/ Scott D. Moreen
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Scott D. Moreen
Title: VICE PRESIDENT
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BNP PARIBAS (formerly Banque Nationale de
Paris), as Co-Documentation Agent and as
a Lender
By: /s/ Richard L. Sted
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Richard L. Sted
Title: Central Region Manager
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THE BANK OF NEW YORK
By: /s/ John-Paul Marotta
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John-Paul Marotta
Title: VICE PRESIDENT
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THE CHASE MANHATTAN BANK
By: /s/ Gail Weiss
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Gail Weiss
Title: VICE PRESIDENT
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CITICORP USA, INC.
By: /s/ Mary O'Connell
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Mary O'Connell
Title: VICE PRESIDENT
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COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Graham A. Warning
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Graham A. Warning
Title: Assistant Treasurer
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By: /s/ Carol Otten
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Carol Otten
Title: Assistant Vice President
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FIRST UNION NATIONAL BANK
By: /s/ J. Andrew Phelps
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J. Andrew Phelps
Title: VICE PRESIDENT
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BARCLAYS BANK PLC
By: /s/ Terance Bullock
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Title: VICE PRESIDENT
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WACHOVIA BANK, N.A.
By: /s/ Susan F. Holmes
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Susan F. Holmes
Title: VICE PRESIDENT
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THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Masashi Sakai
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Masashi Sakai
Title: General Manager
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Hisashi Miyashiro
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Hisashi Miyashiro
Title: DEPUTY GENERAL MANAGER
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THE SUMITOMO BANK, LIMITED
By: /s/ Edward D. Henderson, Jr.
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Edward D. Henderson, Jr.
Title: Senior Vice President
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SUNTRUST BANK (formerly SunTrust Bank,
Atlanta)
By: /s/ Charles C. Pick
-----------------------------------
Charles C. Pick
Title: VICE PRESIDENT
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BAYERISCHE LANDESBANK
GIRONZENTRALE, CAYMAN ISLANDS BRANCH
By: /s/ Alexander Kohnert
-----------------------------------
Alexander Kohnert
Title: First Vice President
--------------------------------
By: /s/ James Fox
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James Fox
Title: Vice President
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BANCA COMMERCIALE ITALIANA, CHICAGO
BRANCH
By: /s/ J. Dickerhof
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J. Dickerhof
Title: VICE PRESIDENT
--------------------------------
By: /s/ Frank Maffel
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Frank Maffel
Title: Authorized Signatory
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THE DAI-ICHI KANGYO BANK, LTD
By: /s/ Nobuyasu Fukatsu
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Nobuyasu Fukatsu
Title: General Manager
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SOCIETE GENERALE
By: /s/ Jerry Parisi
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Jerry Parisi
Title: MANAGING DIRECTOR
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BBL INTERNATIONAL (U.K.) LIMITED
By: /s/ M.C. Swineen
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M.C. Swineen
Title: Authorized Signatory
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By: /s/ C.E. Wright
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C.E. Wright
Title: Authorized Signatory
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THE FUJI BANK, LIMITED
By: /s/ Peter L. Chinnici
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Peter L. Chinnici
Title: Senior Vice President & Group Head
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