Exhibit 10.1


 


SECOND AMENDMENT TO CREDIT AGREEMENT


 


THIS SECOND
AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of July 31,
2009, is by and among Ball Corporation, an Indiana corporation (“Company”),
Ball European Holdings, S.ar.l., a corporation organized under the laws of
Luxembourg (“European Holdco”), the financial institutions signatory
hereto in their capacity as Lenders (as defined below) under the Credit
Agreement (as defined below) and Deutsche Bank AG New York Branch, as
administrative agent for the Lenders (“Administrative Agent”).


 


W  I  T  N  E  S  S  E
T  H :


 


WHEREAS, Company,
European Holdco, certain subsidiaries of Company (together with Company and
European Holdco, “Borrowers”), certain financial institutions (the “Lenders”)
and Administrative Agent are parties to that certain Credit Agreement dated as
of October 13, 2005, as amended by that certain First Amendment to Credit
Agreement, dated as of March 27, 2006 (as further amended, restated,
supplemented or otherwise modified and in effect from time to time, the “Credit
Agreement”), pursuant to which the Lenders have provided to Borrowers
credit facilities and other financial accommodations; and


 


WHEREAS, Borrowers have
requested that Administrative Agent and the Lenders amend the Credit Agreement
in certain respects as set forth herein and the Lenders and Administrative
Agent are agreeable to the same, subject to the terms and conditions hereof.


 


NOW, THEREFORE, in
consideration of the premises and of the mutual covenants contained herein, and
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:


 


1.     Defined Terms. 
Terms capitalized herein and not otherwise defined herein are used with
the meanings ascribed to such terms in the Credit Agreement.


 


2.     Amendments to Credit Agreement. 
The Credit Agreement is, as of the Second Amendment Effective Date,
hereby amended as follows:


 


(a)   Section 2.9(a)(i) of the Credit
Agreement is hereby amended by adding the words “(other than as to pricing,
fees and other economic terms)” immediately following the words “the existing
Term Loan Facilities” therein.


 


(b)   Section 2.9(a) of the Credit
Agreement is hereby amended by adding the following at the end of such
subsection:


 


“Any Person which
becomes a Lender with respect to a tranche of Additional Term Loans added
pursuant to this Section 2.9 after July 31, 2009 (each such Lender, a
“New Term Loan Lender”) hereby acknowledges and agrees that the term of the
Multicurrency Revolving Facility, the Canadian Revolving Facility and each
subfacility thereof may be extended or replaced and that each New Term
Loan Lender, solely with respect to the Additional Term Loans held by such New
Term Lender, agrees in advance to any changes made to this Credit Agreement in
order to implement such extension or replacement (including changes with
respect to pricing, fees and other economic terms


 

















 


relating solely to
such extended or replaced facility or facilities)  as may
be reasonably proposed to be made by the Company (the Company’s
signature to be conclusive evidence of such reasonability).  Each New Term
Loan Lender hereby agrees to take such actions and execute and deliver such amendments,
agreements, instruments or documents as the Administrative Agent may reasonably
request to give effect to the preceding sentence, provided that the foregoing
provision shall not be construed to require a New Term Loan Lender to execute
any amendment, agreement, instrument or document which contains changes other
than those relating solely to such extended or replaced facility or facilities.”


 


(c)   Section 4.3(e) of the Credit Agreement
is hereby amended by adding the words “; provided, however, that Company
may designate in a notice to the Administrative Agent that such voluntary
prepayment shall be applied first to any specified remaining Scheduled Term Repayment
due within 12 months of such voluntary prepayment” immediately following the
words “on a pro rata basis” therein.


 


3.     Representations and Warranties. 
In order to induce Administrative Agent and the Lenders to enter into
this Amendment, each of Company and European Holdco hereby represents and
warrants to Administrative Agent and the Lenders, in each case after giving
effect to this Amendment, as follows:


 


(a)   Each of Company and European Holdco has the
corporate or other organizational right, power and capacity and has been duly
authorized and empowered by all requisite corporate or limited liability
company and shareholder or member action to enter into, execute, deliver and
perform this Amendment and all agreements, documents and instruments executed
and delivered pursuant to this Amendment.


 


(b)   This Amendment constitutes each of Company’s
and European Holdco’s, respective legal, valid and binding obligation,
enforceable against each of Company and European Holdco respectively, except as
enforcement thereof may be subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally and general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law or otherwise).


 


(c)   The representations and warranties contained
in the Credit Agreement and the other Loan Documents are true and correct in
all material respects at and as of the Second Amendment Effective Date as though
made on and as of the Second Amendment Effective Date (except to the extent
expressly made as of a specified date, in which event such representation and
warranty is true and correct in all material respects as of such specified
date).


 


(d)   Each of Company’s and European Holdco’s
execution, delivery and performance of this Amendment do not and will not
violate its respective articles or certificate of incorporation, by-laws or
other Organizational Documents, any law, rule, regulation, order, writ,
judgment, decree or award applicable to it or any contractual provision to
which it is a party or to which it or any of its respective property is
subject.


 


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(e)   No authorization or approval or other action
by, and no notice to or filing or registration with, any governmental authority
or regulatory body (other than those which have been obtained and are in force
and effect) is required in connection with the execution, delivery and
performance by Company, European Holdco or any other Credit Party of this
Amendment and all agreements, documents and instruments executed and delivered
pursuant to this Amendment.


 


(f)    No Event of Default or Unmatured Event of
Default exists under the Credit Agreement or would exist immediately after
giving effect to this Amendment.


 


4.     Conditions to Effectiveness of
Amendment.
This Amendment shall become effective on the Business Day (the “Second
Amendment Effective Date”) each of the following conditions precedent is
satisfied:


 


(a)   Execution
and Delivery of Amendment.
Administrative Agent (or its counsel) shall have received from (A) Lenders
constituting the Required Lenders and (B) Company and European Holdco
either (i) a counterpart of this Amendment signed on behalf of such party
or (ii) written evidence satisfactory to Administrative Agent (which may
include telecopy transmission of a signed signature page of this
Amendment) that such party has signed a counterpart of this Amendment.


 


(b)   Adverse Change.   On the Second
Amendment Effective Date, both before and after giving effect to the Amendment,
there shall be no facts, events or circumstances then existing and nothing
shall have occurred which shall have come to the attention of any of the
Lenders which materially adversely affects the business, financial condition or
operations of Company and its Subsidiaries taken as a whole since December 31,
2008;


 


(c)   Litigation. 
No action, suit or proceeding (including, without limitation, any
inquiry or investigation) by any entity (private or governmental) shall be
pending or, to the best knowledge of Borrowers, threatened against Company or
any of its Subsidiaries or with respect to the Credit Agreement, or any
documentation executed in connection therewith or the transactions contemplated
thereby (including, without limitation, this Amendment), or which
Administrative Agent shall determine would reasonably be expected to have a
Material Adverse Effect, and no injunction or other restraining order shall
remain effective or a hearing therefor remain pending or noticed with respect
to the Credit Agreement, or any documentation executed in connection therewith
or the transactions contemplated thereby (including, without limitation, this
Amendment), the effect of which would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect;


 


(d)   Representations
and Warranties.   The representations and warranties contained
in this Amendment, the Credit Agreement and the other Loan Documents shall each
be true and correct in all material respects at and as of the Second Amendment
Effective Date as though made on and as of the Second Amendment Effective Date
(except to the extent such representations and warranties are expressly made as
of a specified date in which event such representations and warranties shall be
true and correct in all material respects as of such specified date); and


 


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(e)   No
Defaults.  No Unmatured Event of Default or
Event of Default under the Credit Agreement shall have occurred and be
continuing.


 


5.     Miscellaneous. The parties hereto hereby further agree
as follows:


 


(a)   Costs,
Expenses and Taxes.   Company hereby agrees to pay all reasonable
fees, costs and expenses of Administrative Agent incurred in connection with
the negotiation, preparation and execution of this Amendment and the
transactions contemplated hereby, including, without limitation, the reasonable
fees and expenses of Winston & Strawn LLP, counsel to Administrative
Agent.


 


(b)   Counterparts. 
This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which counterparts, when
so executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same Amendment.


 


(c)   Headings.   Headings used in this Amendment are for
convenience of reference only and shall not affect the construction of this
Amendment.


 


(d)   Integration. 
This Amendment and the Credit Agreement (as amended hereby) constitute
the entire agreement among the parties hereto with respect to the subject
matter hereof.


 


(e)   Governing
Law.   THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID
STATE, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAWS RULES.


 


(f)    Binding
Effect.   This Amendment shall be binding upon, and
inure to the benefit of, Borrowers, Administrative Agent, the Lenders and their
respective successors and assigns; provided, however, that no
Borrower may assign its rights or obligations hereunder or in connection
herewith or any interest herein (voluntarily, by operation of law or otherwise)
without the prior written consent of the Lenders.


 


(g)   Amendment;
Waiver.  The parties hereto agree and acknowledge that
nothing contained in this Amendment in any manner or respect limits or
terminates any of the provisions of the Credit Agreement or any of the other
Loan Documents other than as expressly set forth herein and further agree and
acknowledge that the Credit Agreement (as amended hereby) and each of the other
Loan Documents remain and continue in full force and effect and are hereby
ratified and confirmed.  Except to the
extent expressly set forth herein, the execution, delivery and effectiveness of
this Amendment shall not operate as a waiver of any rights, power or remedy of
the Lenders or Administrative Agent under the Credit Agreement or any other
Loan Document, nor constitute a waiver of any provision of the Credit Agreement
or any other Loan Document.  No delay on
the part of any Lender or Administrative Agent in exercising any of their
respective rights, remedies, powers and privileges under the Credit Agreement
or any of the Loan Documents or partial or single exercise thereof, shall
constitute a waiver thereof.  On and
after the Second Amendment Effective Date each reference in the Credit
Agreement to “this 


 


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Agreement,” “hereunder,” “hereof,” “herein” or words
of like import, and each reference to the Credit Agreement in the Loan
Documents and all other documents delivered in connection with the Credit
Agreement shall mean and be a reference to the Credit Agreement as amended
hereby.  Company and European Holdco
acknowledge and agree that this Amendment constitutes a “Loan Document” for
purposes of the Credit Agreement, including, without limitation, Section 10.1
of the Credit Agreement.  None of the
terms and conditions of this Amendment may be changed, waived, modified or
varied in any manner, whatsoever, except in accordance with Section 12.1
of the Credit Agreement.


 


[Signature Pages Follow]


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed by their respective
officers thereunto duly authorized, as of the date first written above.


 


 


	
   

  	
  BALL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott C. Morrison

  
	
   

  	
  Name:

  	
  Scott C. Morrison

  
	
   

  	
  Title:

  	
  Vice President &
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BALL EUROPEAN HOLDINGS,
  S.AR.L.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott C. Morrison

  
	
   

  	
  Name:

  	
  Scott C. Morrison

  
	
   

  	
  Title:

  	
  Vice President &
  Treasurer

  



 


Signature Page to Second
Amendment to Credit Agreement


 

















 


	
   

  	
  DEUTSCHE BANK AG NEW
  YORK BRANCH, in its individual capacity and as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Evelyn Thierry

  
	
   

  	
  Name:

  	
  Evelyn Thierry

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Erin Morrissey

  
	
   

  	
  Name:

  	
  Erin Morrissey

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page to Second
Amendment to Credit Agreement


 

















 


	
   

  	
  DEUTSCHE BANK AG CANADA BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eitan Szlak

  
	
   

  	
  Name:

  	
  Eitan Szlak

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marcellus Leung

  
	
   

  	
  Name:

  	
  Marcellus Leung

  
	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page to Second
Amendment to Credit Agreement


 

















 


	
   

  	
  [Name of Lending
  Institution]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Signature Page to Second
Amendment to Credit Agreement