1
EXHIBIT 10.1(b)
--------------------------------------------------------------------------------
CONSENT
DATED AS OF APRIL 20, 2001
UNDER
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 21, 1999
among
PRINTPACK, INC.,
THE INSTITUTIONS FROM TIME TO TIME
PARTIES THERETO AS LENDERS,
and
BANK ONE, NA
(FORMERLY, THE FIRST NATIONAL BANK OF CHICAGO),
as Agent
--------------------------------------------------------------------------------
BANC ONE CAPITAL MARKETS, INC.,
as Lead Arranger and Sole Book Runner
and
SUNTRUST BANK, ATLANTA
as Documentation Agent
--------------------------------------------------------------------------------
SIDLEY & AUSTIN
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
--------------------------------------------------------------------------------
2
CONSENT
DATED AS OF APRIL 20, 2001
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 21, 1999
THIS CONSENT ("Consent") is made as of April 20, 2001 by and
among Printpack, Inc. (the "Borrower"), the financial institutions listed on the
signature pages hereof (the "Lenders") and Bank One, NA (formerly known as The
First National Bank of Chicago), with its principal office in Chicago, Illinois,
as contractual representative (the "Agent"), under that certain Amended and
Restated Credit Agreement dated as of May 21, 1999 by and among the Borrower,
the Lenders and the Agent as amended by Amendment No. 1 thereto dated as of
December 15, 1999 (as so amended, as hereby modified, and as further amended,
modified, supplemented or restated from time to time, the "Credit Agreement").
Defined terms used herein and not otherwise defined herein shall have the
respective meanings given to them in the Credit Agreement.
WHEREAS, the Borrower has informed the Lenders that it is
considering acquiring the operating assets of Independent Packaging LP
(hereinafter "IP") on the terms and conditions outlined in the information
package dated March 26, 2001 (the "Acquisition Information") distributed to the
Lenders (the "Proposed IP Acquisition");
WHEREAS, the Proposed IP Acquisition does not constitute a
Permitted Acquisition under the terms of the Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders consent
to the Proposed IP Acquisition and otherwise treat the Proposed IP Acquisition
as a Permitted Acquisition;
WHEREAS, the Lenders and the Agent have agreed to consent to
the Proposed IP Acquisition on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrower, the Lenders and the Agent have agreed to the following consent under
the Credit Agreement.
1. CONSENT TO PROPOSED IP ACQUISITION. Notwithstanding the provisions
of Section 7.3(G)(iii)(4) or Section 7.3(G)(iii)(5) of the Credit Agreement to
the contrary, effective as of the date hereof, the Lenders consent to the
Borrower's consummation of the Proposed IP Acquisition, on substantially the
terms as more particularly described in the Acquisition Information; provided
that:
(a) nothing herein shall relieve the Borrower from the
requirement, in connection with the consummation of the Proposed IP Acquisition,
to comply with all of the provisions regarding Collateral set forth in the
Credit Agreement and the other Loan Documents;
(b) nothing herein shall relieve the Borrower from the
requirement, in connection with the consummation of the Proposed IP Acquisition,
to comply with the provisions set forth in Section 7.3(G)(ii) of the Credit
Agreement, if applicable;
1
3
(c) nothing herein shall relieve the Borrower from the
requirement, in connection with the consummation of the Proposed IP Acquisition,
to comply with the provisions of Section 2.12 of the Credit Agreement;
(d) Indebtedness constituting Capitalized Lease Obligations in
an aggregate amount not to exceed $7,500,000 assumed by the Borrower in
connection with the Proposed IP Acquisition shall be deemed to be Permitted
Purchase Money Indebtedness under the Credit Agreement, provided, however, that
(i) the basket available for Permitted Purchase Money Indebtedness under Section
7.3(A)(iii) shall not be utilized as a result of the assumption of such
Capitalized Lease Obligations, and (ii) the assumption of such Capitalized Lease
Obligations shall not constitute a Capital Expenditure under the Credit
Agreement;
(e) the basket available for subsequent Acquisitions under
Section 7.3(G)(iii)(4) of the Credit Agreement for the 12-month period following
the consummation of the Proposed IP Acquisition shall not be utilized as a
result of the Proposed IP Acquisition;
(f) the Lenders' consent to the Proposed IP Acquisition shall
only be effective if after giving effect to such Acquisition and the incurrence
of any Indebtedness permitted by Section 7.3(A) of the Credit Agreement in
connection therewith, on a pro forma basis using historical audited and reviewed
unaudited financial statements obtained from the seller, broken down by fiscal
quarter in the Borrower's reasonable judgment, as if the Acquisition and such
incurrence of Indebtedness had occurred on the first day of the twelve-month
period ending on the last day of the Borrower's most recently completed fiscal
quarter, the Borrower would have had a Fixed Charge Coverage Ratio for such four
fiscal quarters of greater than 2.70 to 1.00, and a Leverage Ratio for such four
fiscal quarters of less than 3.50 to 1.00;
(g) no Default or Unmatured Default shall have occurred and be
continuing as of the date of such Acquisition or would result therefrom, and the
representations and warranties contained in Article VI of the Credit Agreement,
as modified hereby, are true and correct as of the date of such Acquisition; and
(h) the Agent shall have received and be reasonably satisfied
with the terms of the applicable acquisition agreement and shall have received
all such other documents, instruments, agreements, corporate resolutions and
opinions as it shall reasonably request in connection with the Proposed IP
Acquisition and the Collateral to be granted as a result thereof.
2. CONDITION OF EFFECTIVENESS. The effectiveness of this Consent is
subject to the condition precedent that the Agent shall have received (a)
counterparts of this Consent duly executed by the Borrower, the Required Lenders
and the Agent and (b) counterparts of the Reaffirmation attached hereto duly
executed by Printpack Enterprises, Inc. and Printpack Holdings, Inc.
3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower hereby
represents and warrants as follows:
(a) This Consent and the Credit Agreement as modified hereby
constitute legal, valid and binding obligations of the Borrower and are
enforceable against the Borrower in accordance with their terms.
(b) As of the date hereof and giving effect to the terms of
this Consent, (i) there exists no Default or Unmatured Default and (ii) the
representations and warranties contained in
2
4
Article VI of the Credit Agreement, as modified hereby, are true and correct,
except for changes reflecting events, conditions or transactions permitted or
not prohibited by the Credit Agreement.
4. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND LOAN DOCUMENTS.
(a) Upon the effectiveness of Section 1 hereof, each reference
to the Credit Agreement in the Credit Agreement or any other Loan Document shall
mean and be a reference to the Credit Agreement as modified hereby.
(b) Except as specifically modified above, the Credit
Agreement and all other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and effect and are
hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Consent
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Agent or the Lenders, nor constitute a waiver of
any provision of the Credit Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
5. GOVERNING LAW. THE AGENT ACCEPTS THIS CONSENT, ON BEHALF OF ITSELF,
THE LEAD ARRANGER AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND
AGREEING TO IT THERE. ANY DISPUTE BETWEEN THE BORROWER AND THE AGENT, THE LEAD
ARRANGER, ANY LENDER, OR ANY OTHER HOLDER OF SECURED OBLIGATIONS ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH, THIS CONSENT OR THE CREDIT AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING,
WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
6. HEADINGS. Section headings in this Consent are included herein for
convenience of reference only and shall not constitute a part of this Consent
for any other purpose.
7. COUNTERPARTS. This Consent may be executed by one or more of the
parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
3
5
IN WITNESS WHEREOF, this Consent has been duly executed as of
the day and year first above written.
PRINTPACK, INC.,
as the Borrower
By: /s/ XXXXXXX X. XXXXXXX, III
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx, III
Title: Treasurer
BANK ONE, NA
(Formerly known as The First National Bank of Chicago)
(Main Office Chicago, Illinois)
as Agent and as a Lender
By: /s/ LOUIS VIRGO
-------------------------------------------------
Name: Louis Virgo
Title: Assistant Vice President
6
SUNTRUST BANK, ATLANTA, as Documentation
Agent and as a Lender
By: /s/ J XXXXXXXXXXX XXXXXXX
-------------------------------------------------
Name: J. Xxxxxxxxxxx Xxxxxxx
Title: Managing Director
By: /s/ XXXXXX XXXXX
-------------------------------------------------
Name: Xxxxxx Xxxxx
Title: Bank Officer
7
AMSOUTH BANK, as a Lender
By:
-------------------------------------------------
Name:
Title:
8
COMERICA BANK, as a Lender
By: /s/ XXXXXXXX X. XXXXXX
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Assistant Vice President
9
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ XXXXXX X. XXXXX
-------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
10
WACHOVIA BANK, N.A., as a Lender
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
11
XXXXX XXX & XXXXXXX CLO I LTD., as a Lender
By: Xxxxx Xxx & Farnham Incorporated
Its: Portfolio Manager
By:
-------------------------------------------------
12
SRF TRADING, INC., as a Lender
By:
-------------------------------------------------
Name:
Title:
13
GALAXY CLO 1999-1, LTD., as a Lender
By: SAI Investment Adviser, Inc.
Its: Collateral Manager
By:
-------------------------------------------------
Name:
Title:
14
KZH SOLEIL 2 LLC, as a Lender
By: SAI Investment Adviser, Inc.
Its: Collateral Manager
By:
-------------------------------------------------
Name:
Title:
15
BLACK DIAMOND CLO 1998-1 LTD., as a Lender
By: Black Diamond Capital Management, L.L.C.
Its: Collateral Manager
By: /s/ XXXX X. XXXXXXXXX
-------------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director
16
BLACK DIAMOND INTERNATIONAL FUNDING,
LTD., as a Lender
By: /s/ XXXXX XXXX
-------------------------------------------------
Name: Xxxxx Xxxx
Title: Director
17
BLACK DIAMOND CLO 2000-1 LTD., as a Lender
By: /s/ XXXXX XXXX
-------------------------------------------------
Name: Xxxxx Xxxx
Title: Director
18
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a Lender
By:
-------------------------------------------------
Name:
Title:
19
CENTURION CDO II, LTD., as a Lender
By:
-------------------------------------------------
Name:
Title:
20
KZH STERLING LLC, as a Lender
By:
-------------------------------------------------
Name:
------------------------------------------------
21
REGIONS BANK, as a Lender
By: /s/ XXXXXXX X. XXX
-------------------------------------------------
Name: Xxxxxxx X. Xxx
Title: Senior Vice President
22
TRANSAMERICA BUSINESS CAPITAL
CORPORATION (as successor to
Transamerica Business Credit Corporation)
By: /s/ XXXXXX XXXXXXX
-------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
23
EXHIBIT A
TO
CONSENT DATED AS OF
APRIL 20, 2001
REAFFIRMATION
Attached
24
REAFFIRMATION
Dated as of April 20, 2001
Each of the undersigned acknowledges receipt of a copy of the Consent
dated as of April 20, 2001 ("Consent") to the Amended and Restated Credit
Agreement dated as of May 21, 1999, by and among Printpack, Inc. (the
"Borrower"), the financial institutions listed on the signature pages hereof
(the "Lenders") and Bank One, NA (formerly known as The First National Bank of
Chicago), with its principal office in Chicago, Illinois, as contractual
representative (the "Agent") as amended by Amendment No. 1 thereto dated as of
December 15, 1999 (as so amended, and as further amended, modified, supplemented
or restated from time to time, the "Credit Agreement"). Capitalized terms used
in this Reaffirmation and not defined herein shall have the meanings given to
them in the Credit Agreement as so amended. Without in any way establishing a
course of dealing by the Agent or any Lender, each of the undersigned reaffirms
the terms and conditions of the Loan Documents executed by it, including,
without limitation, the Parent Agreements, and acknowledges and agrees that all
such Loan Documents remain in full force and effect and are hereby ratified,
reaffirmed and confirmed. All references to the Credit Agreement contained in
the above-referenced documents shall be a reference to the Credit Agreement as
so modified by the Consent and as the same may from time to time hereafter be
amended, modified or restated.
PRINTPACK ENTERPRISES, INC.
By: /s/ XXXXXXX X. XXXXXXX, III
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx, III
Title: Treasurer
PRINTPACK HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXXXXX, III
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx, III
Title: Treasurer
