THIRD AMENDMENT TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS THIRD AMENDMENT TO REVOLVING CREDIT AND TERM LOAN
AGREEMENT (this "Amendment") is entered into as of August 14,
2000, among GRAPHIC PACKAGING INTERNATIONAL CORPORATION (formerly
ACX Technologies, Inc.), a Colorado corporation ("Borrower"),
Lenders under the Credit Agreement described below, and BANK OF
AMERICA, N.A., in its capacity as Administrative Agent for the
Lenders under the Credit Agreement ("Administrative Agent"), and
Guarantors under the Credit Agreement (hereinafter defined).
Reference is made to the Revolving Credit and Term Loan
Agreement, dated as of August 2, 1999 (as amended to date, the
"Credit Agreement"), among Borrower, Administrative Agent, the
Managing Agents, and the Co-Agents thereunder, and the Lenders
party thereto. Unless otherwise defined in this Amendment,
capitalized terms used herein shall have the meaning set forth in
the Credit Agreement; all Section and Schedule references herein
are to Sections and Schedules in the Credit Agreement; and all
Paragraph references herein are to Paragraphs in this Amendment.
RECITALS
A. Borrower has requested that Lenders agree to amend
certain provisions of the Credit Agreement, including without
limitation, extending the Termination Date with respect to the
One-Year Term Facility, changing the amortization of the Term
Loan Facility, changing certain financial covenants, changing the
application of certain mandatory prepayments, and permitting
Borrower to pay dividends on a series of preferred stock to be
issued by Borrower.
B. As an inducement to Lenders to agree to such
amendments, Borrower proposes to issue a series of preferred
stock and to apply the Net Cash Proceeds from such Equity
Issuance as a prepayment of the One-Year Term Principal Debt (the
"Preferred Issuance").
C. In consideration of the Preferred Issuance and subject
to the terms and conditions of this Amendment, Lenders are
willing to agree to such amendments.
Accordingly, for adequate and sufficient consideration, the
parties hereto agree, as follows:
Paragraph 1. Amendments.
1.1 Definitions.
(a) The definition of "Applicable Margin" is deleted in its
entirety and the following is substituted therefor:
"Applicable Margin means:
(a) On any date of determination occurring on or
prior to the First Amendment Date, the percentage
per annum set forth in the table below for the
appropriate Type of Borrowing or commitment fees
(as the case may be):
Applicable Margin
--------------------------------------------------
Base Rate Eurodollar Rate Commitment
Borrowings Borrowings Fees
---------- --------------- ----------
1.00% 2.500% .500%
(b) On any date of determination occurring after
the First Amendment Date but prior to the Third
Amendment Date, the percentage per annum set forth
in the table below for the appropriate Type of
Borrowing or commitment fees (as the case may be):
Applicable Margin
--------------------------------------------------
Base Rate Eurodollar Rate Commitment
Borrowings Borrowings Fees
---------- --------------- ----------
1.50% 3.00% .500%
(c) On any date of determination occurring on and
after the Third Amendment Date with respect to the
One-Year Term Facility, the percentage per annum
set forth in the table below for the appropriate
Type of Borrowing or commitment fees (as the case
may be):
Applicable Margin
--------------------------------------------------
Base Rate Eurodollar Rate Commitment
Borrowings Borrowings Fees
---------- --------------- ----------
1.75% 3.25% .500%
(d) Solely with respect to the Revolver Facility
and the Term Facility, on any date of
determination occurring on and after the Third
Amendment Date, the percentage per annum set forth
in the table below for the Type of Borrowing or
commitment fees (as the case may be) that
corresponds to the Leverage Ratio at such date of
determination, as calculated based on the
quarterly Compliance Certificate of Borrower most
recently delivered pursuant to Section 9.3 hereof:
Applicable Margin
---------------------------------
Eurodollar
Base Rate Rate Commitment
Leverage Ratio Borrowings Borrowings Fees
-------------- ---------- ---------- ----------
Less than 0.75% 2.25% .375%
4.00:1.0
Greater than or 1.00% 2.50% .500%
equal to
4.00:1.0,
but less than
4.50:1.0
Greater than or 1.25% 2.75% .500%
equal to
4.50:1.0,
but less than
5.00:1.0
Greater than or 1.75% 3.25% .500%
equal to 5.00:1.0
The provisions in Item (d) preceding are further
subject to, the following:
(i) With respect to any adjustments in
the Applicable Margin as a result of changes
in the Leverage Ratio, such adjustment shall
be effective commencing on the second
Business Day after the delivery of the
Financial Statements (and the related
Compliance Certificate) pursuant to Sections
9.3(a) and 9.3(b) or the most recent
Permitted Acquisition Compliance Certificate
for a Permitted Acquisition, as the case may
be;
(ii) If Borrower fails to timely furnish
to Lenders the Financial Statements and
related Compliance Certificates required to
be delivered pursuant to Sections 9.3(a) and
9.3(b), and such failure shall not be
remedied within five days after written
notice thereof from Administrative Agent or
any Lender, then (unless the Default Rate has
been effected by Required Lenders pursuant to
Section 3.6) the Applicable Margin shall be
the maximum Applicable Margin specified in
the Table above for the period from the date
such Financial Statements and related
Compliance Certificates were due to the date
such Financial Statements and related
Compliance Certificates are received by
Administrative Agent; and
(iii) Notwithstanding any contrary
provision of this clause (d), if Borrower has
not received at least $50,000,000 of
aggregate gross proceeds from the issuance of
Subordinated Debt on or before August 15,
2001 (and prepaid the Obligation pursuant to
Section 3.3(b)(i) with the Net Cash Proceeds
thereof), then the Applicable Margin for Base
Rate Borrowings and Eurodollar Rate
Borrowings under the Revolver Facility and
the Term Loan Facility shall, on any date of
determination occurring after August 15,
2001, be increased by .75% over the
applicable percentage set forth in the
immediately preceding table."
(b) Clause (c) of the definition of "Financial Hedge" is
amended by deleting such clause in its entirety and substituting
the following therefor:
"to the extent such Financial Hedge is issued by
any Lender or any Affiliate of a Lender to
Borrower and provides interest rate protection
with respect to all or any portion of the
Principal Debt (any such Financial Hedge being
referred to herein as a "Lender Financial Hedge"),
the credit exposure under such Lender Financial
Hedge shall be secured after the Lien Triggering
Date by Liens in and to the Collateral as
evidenced by the Collateral Documents on a pari
passu basis with the Liens of Administrative Agent
(held for the benefit of Lenders), and such Lender
or Affiliate issuing a Lender Financial Hedge
shall, by acceptance of the benefits of such Liens
in the Collateral agree to the provisions of
Section 12.11; and"
(c) The definition of "Interest Expense" is amended by
adding the following sentence at the end of such definition:
"With respect to the calculation of Interest
Expense for the Companies, Interest Expense, for
any period of calculation, shall also include the
aggregate amount of Distributions actually paid by
Borrower on the Preferred Stock."
(d) Clauses (b)(ii) and (b)(iii) of the definition of "Net
Cash Proceeds" are amended by adding a clause at the beginning of
each such provision which reads as follows:
"to the extent permitted by Section 9.6,"
(e) The definition of "Obligation" is amended by deleting
the words "Financial Hedge" in the last line thereof and
substituting therefor the words "Lender Financial Hedge."
(f) Clause (b)(i) of the definition of "Permitted
Acquisition" is deleted in its entirety and the following is
substituted therefor:
"(i) the Purchase Price for such Acquisition must
be less than or equal to $50,000,000, and when
aggregated with the Purchase Price of each other
Permitted Acquisition consummated in such calendar
year, may not exceed $100,000,000 in the
aggregate;"
(g) The definition of "Required Lenders" is amended by
deleting all references to "51%" in such definition and
substituting therefor "66-2/3%".
(h) The definition of "Subordinated Debt" is deleted in its
entirety and the following is substituted therefor:
"Subordinated Debt means, on any date of
determination, any Debt of the Companies which has
been subordinated to the Obligation on terms
(including, without limitation, subordination
terms) acceptable to Administrative Agent and
Reviewing Lenders."
(i) Clause (d) of the definition of "Termination Date" is
deleted in its entirety and the following is substituted
therefor:
"(d) for purposes of the One-Year Term Facility,
the earlier of (x) August 15, 2001, and (y) the
effective date of any other termination,
cancellation, or acceleration of the One-Year Term
Facility."
(j) The following definitions of "Average Pro Forma
Availability," "Cumulative Term Loan Deferment," "Excess
Availability Statement," "Lender Financial Hedge," "Material
Debt," "Preferred Stock," "Reviewing Lenders," "Third Amendment,"
and "Third Amendment Date" shall be alphabetically inserted in
Section 1.1 to read, as follows:
"Average Pro Forma Availability means, for each
fiscal quarter ending on and after March 31, 2001,
the amount by which (i) the amount of Debt, if
any, that Borrower could incur under the Revolver
Facility on the last day of such fiscal quarter
without violating the financial covenants in
Section 9.30 exceeds (ii) the average daily
Revolver Commitment Usage for the 30-day period
ending on the last day of such fiscal quarter."
"Cumulative Term Loan Deferment means, for each
fiscal quarter ending after the Third Amendment
Date, the aggregate amount of Term Loan Principal
Debt for which the amortization was deferred
pursuant to the terms of the Third Amendment,
which amount shall be calculated on a cumulative
basis beginning with the Third Amendment Date and
shall be the amount set forth in the table below
which corresponds to the applicable fiscal
quarter:
Cumulative
Amount of Term
Loan Principal
Debt
Quarter Ending Deferments
------------------ --------------
September 30, $6,250,000
2000
December 31, $12,500,000
2000
March 31, 2001 $18,750,000
June 30, 2001 $25,000,000
September 30, $31,250,000
2001
December 31, 2001 $37,500,000
March 31, 2002 $46,250,000
June 30, 2002 $55,000,000
September 30, $63,750,000
2002
December 31, 2002 $72,500,000
March 31, 2003 $82,500,000
June 30, 2003 $92,500,000
September 30, $102,500,000
2003
December 31, 2003 $112,500,000
March 31, 2004 $125,000,000
June 30, 2004 $137,500,000
"
"Excess Availability Statement means a statement
signed by a Responsible Officer, substantially in
the form of Exhibit E-4."
"Lender Financial Hedge has the meaning set forth
in clause (c) of the definition of "Financial
Hedge."
"Material Debt means, on any date of
determination, any Debt of any Company or the
Companies, individually or collectively (other
than the Obligation and the Subordinated Debt),
which is in excess (individually or collectively)
of $10,000,000 if prior to the Qualifying Date or
$20,000,000 on and after the Qualifying Date."
"Preferred Stock means, the preferred stock issued
by Borrower immediately prior to or substantially
concurrent with the Third Amendment, on terms and
conditions acceptable to Administrative Agent and
Reviewing Lenders, together with any additional
Preferred Stock issued in lieu of dividends on the
Preferred Stock."
"Reviewing Lenders means, collectively, Fleet
National Bank, Morgan Guaranty Trust Company of
New York, and Wachovia Bank, N.A., in their
capacity as Lenders; provided that, if any
Reviewing Lender ceases to own an economic
interest in the Loan Documents, a successor
"Reviewing Lender" shall be appointed by
Administrative Agent."
"Third Amendment means that certain Third
Amendment to Revolving Credit and Term Loan
Agreement dated as of August 14, 2000, among
Borrower, Guarantors, Administrative Agent, and
Lenders."
"Third Amendment Date means the date upon which
the Third Amendment becomes effective in
accordance with the terms of such Third
Amendment."
1.2 Principal Payments. Section 3.2(c) is amended by
substituting the following table for the table set forth at the
end of such Section:
"
Quarterly
Principal
Quarter Ending Installments
------------------- ----------------
March 31, 2000 $6,250,000/each
and June 30, 2000
September 30, none
2000, and
December 31, 2000
March 31, 2001, $6,250,000/each
June 30, 2001,
September 30,
2001, and
December 31, 2001
March 31, 2002, $8,750,000/each
June 30, 2002,
September 30,
2002, and
December 31, 2002
March 31, 2003, $10,000,000/each
June 30, 2003,
September 30,
2003, and
December 31, 2003
March 31, 2004, $12,500,000/each
and June 30, 2004
August 2, 2004 $187,500,000
"
1.3 Optional Prepayments. Section 3.3(a) is amended by
deleting the phrase ", or the One-Year Term Principal Debt" from
line 4 thereof and inserting the word "or" immediately prior to
the phrase "the 180-Day Term Principal Debt."
1.4 Mandatory Prepayments.
(a) The lead-in paragraph to Section 3.3(b) shall be
deleted in its entirety and the following is substituted
therefor:
"Until such time as the Principal Debt has been
repaid in full and the Revolver Commitment is
terminated in full, the Principal Debt shall be
permanently prepaid (or the Revolver Commitment
reduced to the extent required in this Section
3.3(b)) in the amounts and upon the occurrence of
any of the following events:"
(b) The paragraph immediately following Section 3.3(b)(v)
shall be deleted in its entirety and the following is substituted
therefor:
"Each commitment reduction or prepayment under
Section 3.3(b) (other than prepayments under
Section 3.3(b)(i) from the issuance of the
Subordinated Debt) shall be applied as follows
(unless a Default or Potential Default has
occurred and is continuing or would arise as a
result thereof (whereupon the provisions of
Section 3.12(b) shall apply)):
(i) first, as a prepayment of the
Obligation arising under the 180-Day
Term Facility until paid in full;
(ii) second, as a prepayment of the
Obligation arising under the One-Year
Term Facility until paid in full;
(iii) third, as a prepayment of the
Obligation arising under the Term Loan
Facility until paid in full; and
(iv) fourth, if the commitment
reduction or prepayment under
Section 3.3(b)(ii), (iii), or (v) occurs
prior to the Qualifying Date, as a
reduction of the Revolver Commitment and
if required pursuant to Section 3.3(c),
a mandatory prepayment of the Revolver
Principal Debt.
Each commitment reduction or prepayment under
Section 3.3(b)(i) from the issuance of the
Subordinated Debt shall be applied as follows:
(i) first, as a prepayment of the
Obligation arising under the 180-Day
Term Facility until paid in full;
(ii) second, as a prepayment of the
Obligation arising under the One-Year
Term Facility until paid in full; and
(iii) third, to the Revolver
Principal Debt and Term Loan Principal
Debt, as follows: (x) up to 50% of any
such payment (or portion thereof) to be
applied pursuant to this clause (iii) as
a prepayment of the Revolver Principal
Debt (without a reduction in the
Revolver Commitment, unless a Default or
Potential Default then exists), but not
to exceed an amount equal to the lesser
of (A) the Revolver Principal Debt then
outstanding, or (B) the amount by which
the cumulative prepayments pursuant to
this clause (iii)(x) made on and after
the Third Amendment Date (including any
prepayment to be made on the date of
determination) is less then $25,000,000,
and (y) 50% of any prepayment (or
portion thereof) to be applied pursuant
to this clause (iii) (together with any
portion of the remaining prepayment not
applied to the Revolver Principal Debt
pursuant to clause (iii)(x), if any), as
a prepayment of the Obligation arising
under the Term Loan Facility until paid
in full.
All mandatory prepayments of the Term Loan
Principal Debt shall be applied Pro Rata to the
Term Loan Principal Debt owed to each Term Loan
Lender and shall be applied to the regularly-
scheduled Term Loan Principal Debt reductions as
set forth in Section 3.2(c) in inverse order of
maturities. All mandatory prepayments of the
180-Day Term Principal Debt or the One-Year Term
Principal Debt shall be applied Pro Rata to the
180-Day Term Principal Debt or the One-Year Term
Principal Debt (as the case may be) owed to each
180-Day Term Lender or One-Year Term Lender."
(c) Section 3.3(d) is amended by deleting the reference to
"Section 3.3(b) and (c)" therein and substituting "Section
3.3(b), (c), and (e)" therefor.
(d) A new Section 3.3(e) is added after Section 3.3(d) as
follows:
"(e) Mandatory Prepayments from Excess
Availability. No later than the tenth (10th) day
following the date on which Borrower delivers the
Excess Availability Statement required pursuant to
Section 9.3(l) for each fiscal quarter ending on
and after March 31, 2001, Borrower shall prepay an
aggregate principal amount equal to the lesser of
(i) the amount by which the sum of (x) Average Pro
Forma Availability for such fiscal quarter and
(y) cash or Cash Equivalents shown on Borrower's
balance sheet as of such fiscal quarter end,
exceeds $60,000,000 or (ii) the difference between
(A) the amount of the Cumulative Term Loan
Deferment with respect to such fiscal quarter and
(B) all amounts previously paid pursuant to this
Section 3.3(e) as a prepayment of the Term Loan
Principal Debt. Each prepayment under this
Section 3.3(e) shall be applied ratably to the One-
Year Term Principal Debt and the Term Loan
Principal Debt (as used herein, "ratably" shall
mean the proportion that the One-Year Term
Principal Debt or the Term Loan Principal Debt, as
the case may be, bears to the sum of the One-Year
Term Principal Debt and the Term Loan Principal
Debt). All mandatory prepayments of the Term Loan
Principal Debt under this Section 3.3(e) shall be
applied Pro Rata to the Term Loan Principal Debt
owed to each Term Loan Lender and shall be applied
to the Term Loan Principal Debt reductions as set
forth in Section 3.2(c) in inverse order of
maturities. All mandatory prepayments of the One-
Year Term Principal Debt under this Section 3.3(e)
shall be applied Pro Rata to the One-Year Term
Principal Debt owed to each One-Year Term Lender.
If no One-Year Term Principal Debt or Term Loan
Principal Debt remains outstanding, the mandatory
prepayment in this Section 3.3(e) shall not be
required."
1.5 Application of Proceeds. Section 3.12(b) is amended
by deleting clause (v) thereof in its entirety and substituting
the following therefor:
"(v) to the ratable payment of the Principal Debt
and all indebtedness, liabilities, and obligations
then due and owing to any Lender or any Affiliate
of a Lender arising from, by virtue of, or
pursuant to any Lender Financial Hedge (as used in
this Section 3.12(b)(v), "ratable payment" means
for any Lender or Affiliate of a Lender (as the
case may be), on any date of determination, that
portion which the Principal Debt owed to such
Lender plus the amount of any indebtedness,
liabilities, and obligations arising under any
Lender Financial Hedge then due and owing to such
Lender or such Affiliate of a Lender, bears to the
sum of the Principal Debt owed to all Lenders and
the aggregate indebtedness, liabilities, and
obligations then due and owing under all Lender
Financial Hedges);"
1.6 Fees. A new Section 5.5 shall be added as follows:
"5.5 Additional Fee. If Borrower has not received
at least $50,000,000 of aggregate gross proceeds
from the issuance of the Subordinated Debt on or
before August 15, 2001 (and prepaid the Obligation
pursuant to Section 3.3(b)(i) with the Net Cash
Proceeds thereof), Borrower shall pay to
Administrative Agent, for the ratable account of
Revolver Lenders and the Term Loan Lenders, a fee
equal to $750,000. For purposes hereof "ratable"
means (i) for any Revolver Lender, on any date of
determination, that proportion which the Committed
Sum under the Revolver Facility for such Revolver
Lender bears to the sum of all Committed Sums
under the Revolver Facility for all Revolver
Lenders plus the aggregate Term Loan Principal
Debt owed to all Term Loan Lenders and (ii) for
any Term Loan Lender, on any date of
determination, that proportion which the Term Loan
Principal Debt owed to such Term Loan Lender bears
to the sum of all Committed Sums under the
Revolver Facility for all Revolver Lenders plus
the aggregate Term Loan Principal Debt owed to all
Term Loan Lenders."
1.7 Purpose of Credit Facilities. Section 8.1 is
amended by adding the following proviso to the end of the first
sentence of such Section:
"provided that the Revolver Facility may not be
used to prepay or repay the One-Year Term Loan
except as permitted by Section 9.6."
1.8 Reporting Requirements. A new Section 9.3(l) shall
be added as follows:
" (l) Promptly after preparation, and no later
than 50 days after the last day of each fiscal
quarter of Borrower arising on and after March 31,
2001, an Excess Availability Statement for the
fiscal quarter then ended."
1.9 Payment of Obligation. In order to permit certain
interest payments on the Subordinated Debt and certain
Distributions on the Preferred Stock (and the use of the
Facilities therefor), to restrict the optional prepayment of the
One-Year Term Principal Debt, and to restrict the use of proceeds
from the Revolver Facility to pay the One-Year Term Principal
Debt, Section 9.6 is amended as follows: (i) relettering "clause
(iii)" in line 9 of Section 9.6 as "clause (c)"; (ii) deleting
the "or" before clause (ii) of clause (b) of Section 9.6;
(iii) by deleting the phrase "other than the Refinanced Debt and
the Britton Debt," from Section 9.6(b)(ii) and substituting
therefor the following phrase:
" other than the Refinanced Debt, the Britton
Debt, payments of interest on the Subordinated
Debt to the extent permitted by Section 9.6(c),
and Distributions on the Preferred Stock to the
extent permitted by Section 9.21; or";
(iv) adding the following provision as clause (iii) at the end
of Section 9.6(b(ii)):
"(iii) make any prepayment of the One-Year Term
Principal Debt, other than mandatory prepayments
made pursuant to Section 3.3(b) or as required on
the Third Amendment Date,",
(v) deleting the exception to the newly-lettered clause (c) in
its entirety and substituting therefor the following:
", except that any Company may from time to time
make payments of interest (excluding payments
arising from any acceleration of maturity thereof)
on the Subordinated Debt to the extent such
payment is not in contravention of the
subordination provisions of such Subordinated
Debt."; and
(vi) adding a sentence at the end of such Section which reads as
follows:
"Borrower may not use Borrowings under the
Revolver Facility to pay all or any portion of the
One-Year Term Principal Debt other than on August
15, 2001, except Borrowings may be made under the
Revolver Facility to facilitate all or any portion
of the payment required on the Third Amendment
Date pursuant to Paragraph 4(c)(ii) of the Third
Amendment and to facilitate any prepayments (if
any) pursuant to Section 3.3(e); provided that,
notwithstanding the foregoing, on August 15, 2001,
proceeds of Borrowings under the Revolver Facility
may be used to repay the One-Year Term Principal
Debt in whole or in part, so long as after giving
effect to such payment, (x) the Revolver
Commitment then in effect (less the Revolver
Commitment Usage on such date of determination)
available to be borrowed without the occurrence of
a Default or Potential Default is at least
$10,000,000 and (y) the One-Year Principal Debt
has been paid in full."
1.10 Debt and Guaranties. Section 9.12(k) is amended by
deleting the words "Administrative Agent and its counsel" in the
last line thereof and substituting therefor the words
"Administrative Agent and Reviewing Lenders."
1.11 Loans, Advances, and Investments.
(a) Section 9.20(d) is amended by deleting the
reference to "5.00:1.00" in line 1 thereof and substituting
therefor "3.50:1.00."
(b) Section 9.20(i) is deleted in its entirety and the
following is substituted therefor:
(i) So long as no Default or Potential Default
then exists or arises, (i) investments in Foreign
Subsidiaries (other than those existing on the
Closing Date), (ii) Acquisitions of, by, or
resulting in, Foreign Subsidiaries, and
(iii) investments in other Persons (other than the
Loan Parties), which investments, individually and
when aggregated with all other investments made
pursuant to this clause (i), do not exceed (A) on
any date of determination when the Leverage Ratio
is greater than or equal to 3.50:1.00, $5,000,000
(determined on a cumulative basis from and after
the Closing Date); (B) on any date of
determination when the Leverage Ratio is less than
3.50:1.00, $25,000,000 (determined on a cumulative
basis from and after the Closing Date); or (C) on
any date of determination on and after the
Qualifying Date, $75,000,000 (determined on a
cumulative basis from and after the Closing
Date)."
1.12 Distributions. Section 9.21 shall be amended by
(i) deleting the "and" before clause (d) thereof and (ii) adding
the following at the end of such section:
"; and (e) so long as no Default or Potential
Default exists or arises as a result thereof,
Distributions made by Borrower to the holders of
the Preferred Stock in amounts sufficient to pay
regularly-scheduled required cash dividends on the
Preferred Stock."
1.13 Amendments to Documents. Section 9.28 shall be
amended by deleting the provision restricting amendments or
modifications to the terms of Subordinated Debt in clause (c)
thereof (which is now covered in new Section 9.33) in its
entirety and substituting the following therefor:
"(c) amend or modify any material (determined in
the reasonable discretion of Administrative Agent)
provision of, or waive any material (determined in
the reasonable discretion of Administrative Agent)
condition under, any document or instrument
evidencing or relating to any Material Debt,
without obtaining prior written consent of
Administrative Agent and Reviewing Lenders with
respect thereto;"
1.14 Financial Covenants.
(a) The Leverage Ratio covenant set forth in Section
9.30(a) is amended by substituting the following table for the
table set forth at the end of such Section:
"
Maximum Leverage
Period Ratio
----------------------- ----------------
September 30, 1999, to 5.00 to 1
and including December
30, 1999
December 31, 1999, to 4.75 to 1
(but not
including) the
consummation date of
the Ceramics Spinoff
On the consummation date 6.00 to 1
of the Ceramics Spinoff,
to and including
June 29, 2000
June 30, 2000, to 6.25 to 1
and including September
29, 2000
September 30, 2000, to 5.65 to 1
and including
December 30, 2000
December 31, 2000, to and 5.35 to 1
including March 30, 2001
March 31, 2001, to and 5.15 to 1
including
June 29, 2001
June 30, 2001, to and 5.00 to 1
including
September 29, 2001
September 30, 2001, to 4.75 to 1
and including December
30, 2001
December 31, 2001, to and 4.50 to 1
including June 29, 2002
June 30, 2002, to and 4.25 to 1
including June 29, 2003
June 30, 2003, to and 4.00 to 1
including September 29,
2003
September 30, 2003, to 3.75 to 1
and including June 29,
2004
June 30, 2004, and 3.50 to 1
thereafter
"
(b) The Interest Coverage covenant set forth in Section
9.30(c) is amended by substituting the following table for the
table set forth at the end of such Section:
"
Minimum Interest
Fiscal Quarter(s) Ending Coverage Ratio
------------------------ ----------------
December 31, 1999 2.00 to 1
March 31, 2000 1.60 to 1
June 30, 2000 1.70 to 1
September 30, 2000 1.60 to 1
December 31, 2000 and 1.55 to 1
March 31, 2001
June 30, 2001, 1.60 to 1
September 30, 2001, and
December 31, 2001
March 31, 2002, June 30, 1.70 to 1
2002, September 30, 2002,
and December 31, 2002
March 31, 2003, June 30, 1.80 to 1
2003, September 30, 2003,
and December 31, 2003
March 31, 2004 and 1.90 to 1
thereafter
"
(c) The Total Debt to Consolidated Total Capitalization
financial covenant set forth in Section 9.30(d) is amended by
(i) deleting the proviso after the table set forth at the end of
such Section and (ii) substituting the following table for the
table set forth at the end of such Section:
"
Maximum Total
Debt/
Consolidated
Total
Capitalization
Period Ratio
----------------------- --------------
September 30, 1999, to 75%
and including December
30, 1999
December 31, 1999, to and 72%
including June 29, 2000
June 30, 2000, to and 70.0%
including September 29,
2000
September 30, 2000, and 60.0%
thereafter
"
(d) The Capital Expenditures financial covenant set forth
in Section 9.30(e) is amended in its entirety to read as follows:
"Capital Expenditures. The Capital Expenditures
of the Companies for any period of determination
shall not exceed the amount shown in the table
below which corresponds to such period of
determination:
Permitted Capital
Period Expenditures
---------------------- -----------------
Calendar year 2000 $50,000,000
Calendar year 2001 and $40,000,000 each
Calendar year 2002
Calendar year 2003 and $50,000,000 each
Calendar year 2004
; provided that, notwithstanding the
foregoing, for each of calendar year 2001 and
2002, the amount of Capital Expenditures may
be increased from $40,000,000 to $50,000,000
per year, if the Leverage Ratio of the
Companies for the fiscal year immediately
preceding such calendar year is less than
4.00 to 1."
1.15 Preferred Stock. A new Section 9.32 shall be added
as follows:
"9.32 Preferred Stock. Borrower shall not
(a) issue the Preferred Stock except on terms and
conditions acceptable to Administrative Agent and
Reviewing Lenders; (b) amend or modify any
material (determined in the reasonable discretion
of Administrative Agent) provision of, or waive
any material (determined in the reasonable
discretion of Administrative Agent) condition
under, any document or instrument evidencing or
relating to the Preferred Stock, including,
without limitation, the Certificate of Designation
for the Preferred Stock, without obtaining prior
written consent of Administrative Agent and
Reviewing Lenders with respect thereto; or
(c) make any optional redemptions, prepayments, or
other payments on the Preferred Stock, other than
(x) regularly-scheduled required cash dividends on
the Preferred Stock, or (y) regularly scheduled
dividends on the Preferred Stock, paid solely in
the form of additional shares of Preferred Stock
having an aggregate liquidation preference equal
to the amount of such dividends."
1.16 Subordinated Debt. A new Section 9.33 shall be
added as follows:
"9.33 Subordinated Debt. Borrower shall use
its best efforts to place not less than
$50,000,000 of Subordinated Debt, so long as the
terms of such Subordinated Debt are economically
reasonable in the reasonable judgment of Borrower
and comply with the requirements of the Loan
Documents. Borrower shall not (a) issue any
Subordinated Debt except on terms and conditions
acceptable to Administrative Agent and Reviewing
Lenders; (b) amend or modify any material
(determined in the reasonable discretion of
Administrative Agent) provision of, or waive any
material (determined in the reasonable discretion
of Administrative Agent) condition under, any
document or instrument evidencing or relating to
the Subordinated Debt, without obtaining prior
written consent of Administrative Agent and
Reviewing Lenders with respect thereto; or
(c) make any optional redemptions, prepayments, or
other payments on the Subordinated Debt, other
than as permitted by the terms of Section 9.6."
1.17 Defaults.
(a) Section 10.8 is deleted in its entirety and the
following is substituted therefor:
"Section 10.8 Default Under Other Debt and
Agreements. (a) The occurrence of any "default" or
"event of default" or other breach which
"default," "event of default," or other breach
remains uncured (after lapse of any applicable
cure periods) on any date of determination under
or with respect to the Preferred Stock (other than
a "default" or "event of default" the remedy for
which is limited to the exercise of voting rights
which does not result in a Default under Section
10.7), any Subordinated Debt, or any agreement
creating or evidencing any Material Debt; (b) the
trustee with respect to, or any holder of, the
Preferred Stock, any Subordinated Debt, or any
Material Debt shall effectively declare all or any
portion of that Debt or obligation thereunder due
and payable prior to the stated maturity thereof;
(c) any obligations under the Preferred Stock, any
Subordinated Debt, or any Material Debt, become
due before its stated maturity by acceleration of
the maturity thereof, or (d) any default exists
under any Material Agreement, which default under
such Material Agreement could reasonably be
expected to be a Material Adverse Event."
(b) A new Section 10.13 shall be added as follows:
"Section 10.13 Payment of Certain Other
Agreements. (a) The payment directly or
indirectly (including, without limitation, any
payment in respect of any sinking fund,
defeasance, redemption, or payment of any dividend
or distribution) by any Loan Party or any
Subsidiary thereof of any amount of any
Subordinated Debt or the Preferred Stock in a
manner or at a time during which such payment is
not permitted under the terms of the Loan
Documents, the Certificate of Designation for the
Preferred Stock, or under any instrument or
document evidencing or creating the Subordinated
Debt, including, without limitation, any
subordination provisions set forth therein or
(b) if an event shall occur, including, without
limitation, a "Change in Control" as defined in
any documents evidencing or creating the Preferred
Stock or any agreement evidencing or creating the
Subordinated Debt, and (i) such event results in
the ability of the trustee or the holders of any
such Debt or obligation to request or require (or
any Loan Party shall automatically be so required)
to redeem or repurchase such Debt or obligation,
or (ii) any Loan Party shall initiate notice to
holders of the Subordinated Debt or the holders of
the Preferred Stock, in connection with a
redemption of any Debt or obligation arising under
such agreements or instruments."
1.18 Agents. Section 12.12 is amended by deleting the
last sentence in Section 12.12 and substituting therefor the
following:
"Without limiting the foregoing, each of the
parties to this Agreement acknowledge and agree
that (i) none of the Lenders so identified as
"Managing Agent" or "Co-Agent" shall have or be
deemed to have any fiduciary relationship with any
Lender, (ii) the rights of approval granted to
Administrative Agent and Reviewing Parties under
this Agreement (including, without limitation, the
approval rights contained in Sections 9.12(k),
9.28, 9.32 and 9.33 and the definitions of
Subordinated Debt and Preferred Stock in Section
1.1) shall be exercised by Administrative Agent
and each Reviewing Lender in its sole and absolute
discretion, (iii) no Reviewing Party shall have
any duty, obligation, or liability to the
Administrative Agent, any Lender, or any other
Agent or Co-Agent, as a result of the exercise of,
or the failure to exercise, any right of approval
granted to such Reviewing Party under this
Agreement."
1.19 Third Party Beneficiaries. A new Section 13.15
shall be added as follows:
"13.15 Third Party Beneficiaries. Each Loan
Party and each other party to this Agreement
intends that the Loan Documents shall not benefit
or create any Right or cause of action in or on
behalf of any Person, including without limitation
the holders of the Preferred Stock or the
Subordinated Debt, other than the Loan Parties
and each other party to this Agreement and their
permitted successors and assigns."
1.20 Exhibit E-1. Annex C to the Form of Certificate
set forth on Exhibit E-1 to the Credit Agreement, is deleted in
its entirety and the document labeled Revised Annex C to
Compliance Certificate attached hereto shall be substituted
therefor.
1.21 Exhibit E-2. Exhibit E-2 to the Credit Agreement
is deleted in its entirety and the document labeled Exhibit E-2,
Revised Form of Permitted Acquisition Compliance Certificate
attached hereto shall be substituted therefor.
1.22 Exhibit E-3. Exhibit E-3 to the Credit Agreement
is deleted in its entirety and the document labeled Exhibit E-3,
Revised Form of Permitted Acquisition Loan Closing Certificate
attached hereto shall be substituted therefor.
1.23 Exhibit E-4. The Form of Excess Availability
Certificate attached to this Amendment shall be added to the
Credit Agreement as Exhibit E-4.
Paragraph 2 Waiver. Notwithstanding the provisions of Section
3.1(c), so long as Borrower makes the payments of the One-Year
Term Loan contemplated in Paragraph 4 hereof to Administrative
Agent at its principal office in Dallas, Texas in funds which are
or will be available for immediate use by Administrative Agent by
2:00 p.m. Dallas, Texas time on the Third Amendment Date, without
setoff, deduction, or counterclaim, such payment shall be deemed
made on the Third Amendment Date.
Paragraph 3 Amendment Fees. On the Effective Date, Borrower
shall pay (a) to Administrative Agent (for the ratable benefit of
the Revolver Lenders), an amendment fee in an amount equal to
0.10% of the aggregate Committed Sums under the Revolver Facility
as of the Effective Date; (b) to Administrative Agent (for the
ratable benefit of the Term Loan Lenders), an amendment fee in an
amount equal to 0.10% of the aggregate Term Loan Principal Debt
as of the Effective Date; and (c) to Administrative Agent (for
the ratable benefit of the One-Year Term Lenders), an amendment
fee in an amount equal to 0.10% of the One-Year Term Principal
Debt as of the Effective Date after giving effect to any
prepayments of the One-Year Term Principal Debt to be made on
such date. The failure of Borrower to comply with the provisions
of this Paragraph 3 shall constitute a payment Default entitling
Lenders to exercise their respective Rights under the Loan
Documents.
Paragraph 4 Effective Date. Notwithstanding any contrary
provision, this Amendment is not effective until the date (the
"Effective Date") upon which Administrative Agent receives
(a) counterparts of this Amendment executed by Borrower,
Guarantors, and Lenders; (b) evidence satisfactory to
Administrative Agent that Borrower has received a minimum of
$100,000,000 in gross proceeds from the issuance of the Preferred
Stock; (c) Borrower has paid to Administrative Agent (for the
ratable benefit of the One-Year Term Lenders) a prepayment of the
One-Year Term Principal Debt in an amount equal to the sum of
(i) 100% of the Net Cash Proceeds from the issuance of the
Preferred Stock as required by Section 3.3(b)(iv), plus (ii) an
amount equal to the difference between $100,000,000 and the
amount paid pursuant to clause (c)(i) hereof; (d) delivery to
Administrative Agent of a fully executed depository bank letter
or similar control agreement with respect to the material deposit
accounts of the Companies maintained with Wachovia National Bank;
(e) delivery to Administrative Agent of the Certificate of
Designation for the Preferred Stock and all other documents
related to the Preferred Stock, which documents shall be
satisfactory to Administrative Agent and Reviewing Lenders;
(f) payment of the amendment fees required to be paid to Lenders
and Administrative Agent on the Effective Date pursuant to
Paragraph 3 hereof; and (g) Borrower pays all unpaid and
reasonable costs, fees, and expenses of Administrative Agent's
counsel incurred in connection with the Loan Documents, including
without limitation, any costs, fees, and expenses in connection
with the negotiation, preparation, delivery, and execution of
this Amendment and any related documents.
Paragraph 5 Acknowledgment and Ratification. As a material
inducement to Administrative Agent and the Lenders to execute and
deliver this Amendment, Borrower and each Guarantor (a) consent
to the agreements in this Amendment and (b) agree and acknowledge
that the execution, delivery, and performance of this Amendment
shall in no way release, diminish, impair, reduce, or otherwise
affect the respective obligations of Borrower or Guarantors under
their respective Collateral Documents, which Collateral Documents
shall remain in full force and effect, and all Liens, guaranties,
and Rights thereunder are hereby ratified and confirmed.
Paragraph 6 Representations. As a material inducement to
Lenders to execute and deliver this Amendment, Borrower
represents and warrants to Lenders (with the knowledge and intent
that Lenders are relying upon the same in entering into this
Amendment) that as of the Effective Date of this Amendment and as
of the date of execution of this Amendment, (a) all
representations and warranties in the Loan Documents are true and
correct in all material respects as though made on the date
hereof, except to the extent that (i) any of them speak to a
different specific date or (ii) the facts on which any of them
were based have been changed by transactions contemplated or
permitted by the Credit Agreement, and (b) except as waived by
this Amendment, no Potential Default or Default exists.
Paragraph 7 Expenses. Borrower shall pay all costs, fees, and
expenses paid or incurred by Administrative Agent incident to
this Amendment, including, without limitation, the reasonable
fees and expenses of Administrative Agent's counsel in connection
with the negotiation, preparation, delivery, and execution of
this Amendment and any related documents.
Paragraph 8 Miscellaneous. This Amendment is a "Loan
Document" referred to in the Credit Agreement, and the provisions
relating to Loan Documents in Section 13 of the Credit Agreement
are incorporated in this Amendment by reference. Unless stated
otherwise (a) the singular number includes the plural and vice
versa and words of any gender include each other gender, in each
case, as appropriate, (b) headings and captions may not be
construed in interpreting provisions, (c) this Amendment must be
construed, and its performance enforced, under New York law, (d)
if any part of this Amendment is for any reason found to be
unenforceable, all other portions of it nevertheless remain
enforceable, and (e) this Amendment may be executed in any number
of counterparts with the same effect as if all signatories had
signed the same document, and all of those counterparts must be
construed together to constitute the same document.
Paragraph 9 Entire Agreement. This Amendment represents the
final agreement between the parties about the subject matter of
this Amendment and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties.
There are no unwritten oral agreements between the parties.
Paragraph 10 Parties. This Amendment binds and inures to
Borrower, Guarantors, Administrative Agent, Lenders, and their
respective successors and assigns.
The parties hereto have executed this Amendment in multiple
counterparts to be effective as of the Effective Date.
Remainder of Page Intentionally Blank.
Signature Pages to Follow.
Signature Page to that certain Third Amendment to Revolving
Credit and Term Loan Agreement dated as of August 14, 2000,
among Graphic Packaging International Corporation, as Borrower,
the One-Year Term Lenders, and the Guarantors under the Credit
Ageement.
GRAPHIC PACKAGING INTERNATIONAL,
CORPORATION (formerly ACX
Technologies, Inc.), as Borrower
By:
Name:
Title:
CHRONOPOL, INC., as a Guarantor
GAC ALUMINUM CORPORATION, as a
Guarantor
GOLDEN TECHNOLOGIES COMPANY, INC.,
as a Guarantor
GP HOLDINGS, INC., as a Guarantor
GRAPHIC PACKAGING CORPORATION, as a
Guarantor
GRAPHIC PACKAGING HOLDINGS INC., as
a Guarantor
GTC NUT COMPANY, as a Guarantor
LAUENER ENGINEERING LIMITED, as a
Guarantor
UNIVERSAL PACKAGING CORPORATION ,
as a Guarantor
By:
Name:
Title:
GEI BROKERS, INC., as a Guarantor
GOLDEN EQUITIES, INC., as a
Guarantor
By:
Name:
Title:
BANK OF AMERICA, N.A., as
Administrative Agent and as a
Lender
By:
Name:
Title:
,
as a Lender
By:
Name:
Title:
,
as a Lender
By:
Name:
Title:
By:
Name:
Title:
,
as a Lender
By:
By:
Name:
Title:
