EXHIBIT 10.36
CONSENT AND NINTH AMENDMENT TO CREDIT AGREEMENT
This Consent and Ninth Amendment to Credit Agreement, dated as of
January 31, 1997 (this "Agreement"), is between ATLANTIS PLASTICS, INC., a
Florida corporation ("Borrower"), and XXXXXX FINANCIAL, INC., a Delaware
corporation in its individual capacity as a Lender and in its capacity as agent
for the Lenders, "Agent".
W I T N E S S E T H:
WHEREAS, Agent, Borrower and Lenders are parties to that certain Credit
Agreement dated as of February 22, 1993 (as heretofore amended, the "Credit
Agreement"; capitalized terms not otherwise defined herein shall have the
definitions provided therefor in the Credit Agreement) and to certain other
documents executed in connection with the Credit Agreement; and
WHEREAS, the parties wish to further amend the Credit Agreement as
provided herein;
NOW, THEREFORE, the parties agree as follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT.
(a) The definitions of "Base Rate Loans" and "LIBOR Rate
Loans" contained in subsection 1.1 of the Credit Agreement are hereby amended
and restated as follows:
"Base Rate Loans" means Loans bearing interest at rates
determined by reference to the Base Rate.
"LIBOR Rate Loans" means Loans bearing interest at rates
determined by reference to the LIBOR.
(b) The following definition is hereby inserted into
subsection 1.1 of the Credit Agreement in alphabetical order:
"Ninth Amendment Effective Date" means December 31, 1996.
(c) Subsection 2.2(A) of the Credit Agreement is hereby
amended and restated as follows:
(A) RATE OF INTEREST.
(1) So long as no Event of Default has occurred
and is continuing, from the Ninth Amendment Effective Date with
respect to the Revolving Loans outstanding at the Ninth Amendment
Effective Date and from the date all future Revolving Loans are made
and the date all other Obligations become due, depending upon
Borrower's election from time to time, as permitted herein, to have
portions of the
Loans accrue interest based upon the LIBOR, the Loans and the other
Obligations shall bear interest at the rates set forth in below:
The Revolving Loan and all other Obligations shall bear
interest as follows:
(a) If a Base Rate Loan, then at the sum of the Base Rate PLUS
the Base Rate Margin.
(b) If a LIBOR Loan, then at the sum of the LIBOR PLUS the LIBOR
Margin.
"Base Rate Margin" shall mean, (i) for the period commencing
on the Ninth Amendment Effective Date and ending on the day preceding the
first Business Day of the calendar month commencing immediately after the
receipt by Agent of the next Compliance Certificate delivered by Borrower
(the first Business Day of the calendar month commencing immediately after
the receipt by Agent of each Compliance Certificate delivered by Borrower
being hereinafter referred to as an "Adjustment Date"), the applicable
percent per annum set forth in the pricing table below opposite the
Adjusted Total Debt to EBIDAT ratio, assuming that the Adjusted Total Debt
to EBIDAT ratio equals 4.50 to 1.00, and (ii) during the period commencing
on each Adjustment Date and ending on the day preceding each subsequent
Adjustment Date (each such period being hereinafter referred to as a
"Calculation Period"), the applicable percent per annum set forth in the
pricing table below opposite the Adjusted Total Debt to EBIDAT ratio
calculated for such Calculation Period.
"LIBOR Margin" shall mean (i) for all LIBOR Rate Loans having
an Interest Period (as defined in subsection 2.2(B)(1)) commencing during
the period commencing on the Ninth Amendment Effective Date and ending on
the day preceding the first Adjustment), the applicable percent per annum
set forth in the pricing table below opposite the Adjusted Total Debt to
EBIDAT ratio, assuming that the Adjusted Total Debt to EBIDAT ratio equals
4.50 to 1.00, and (ii) for all LIBOR Rate Loans having an Interest Period
commencing during the period commencing on an Adjustment Date and ending on
the day preceding the subsequent Adjustment, the applicable percent per
annum set forth in the pricing table below opposite the Adjusted Total Debt
to EBIDAT ratio calculated for such Calculation Period.
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PRICING TABLE
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ADJUSTED TOTAL BASE RATE MARGIN LIBOR MARGIN
DEBT TO
EBIDAT RATIO
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Revolving Revolving
Loans Loans
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Greater than 4.75x 1.00% 2.75%
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Greater than 4.50 but
less than or equal to 0.75% 2.50%
4.75x
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Greater than 4.00 but
less than or equal to 0.50% 2.25%
4.50x
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Greater than 3.50 but
less than or equal to 0.25% 2.00%
4.00x
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Equal to or less than
3.50x 0.00% 1.75%
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If Borrower shall fail to deliver a Compliance Certificate by
the date required pursuant to subsection 5.1(C), effective as of the
first Business Day of the immediately succeeding calendar month and
continuing through the day preceding the next succeeding Adjustment
Date, each applicable Base Rate Margin and each applicable LIBOR Rate
Margin shall be conclusively presumed to equal the highest applicable
Base Rate Margin and the highest applicable LIBOR Margin specified in
the pricing table set forth above.
(2) At the election of Agent, in its sole discretion, after
the occurrence of an Event of Default and for so long as such Event of
Default continues, the Loans and all other Obligations shall bear
interest until paid in full at a rate per annum (meaning 360 days) that
is two percent (2.0%) in excess of the rate of interest otherwise
payable under this Agreement; PROVIDED that, in the case of LIBOR Rate
Loans, upon the expiration of the Interest Period in effect at the time
any such increase in interest rate is effective, such LIBOR Rate Loans
shall thereupon become Base Rate Loans and thereafter bear interest
payable upon demand at a rate which is two percent (2.0%) per annum in
excess of the interest rate otherwise payable under this Agreement for
Base Rate Loans.
(d) Subsection 2.3(B) of the Credit Agreement is hereby
amended by reducing the unused facility fee from 0.5% per annum to 0.375% per
annum.
(e) Subsection 2.3(C) of the Credit Agreement is hereby
amended by reducing the Letter of Credit and Guaranty fees from 2.5% per annum
to 1.75% per annum.
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(f)Subsection 6.4 of the Credit Agreement is hereby amended by
adding the following as a new paragraph:
For purposes of calculating the ratio of Adjusted Total Debt to EBIDAT
as provided in this section 6.4, Borrower's EBIDAT for each Trailing
Twelve-Fiscal Month Period ending on the last day of each of Borrower's
Fiscal Quarters ending on March 31, 1997, June 30, 1997, September 30,
1997 and December 31, 1997, there shall be excluded from each such
calculation any contribution to Borrower's EBIDAT attributable to the
Tulsa-Custom business which otherwise would have been included in
Borrower's EBIDAT for the relevant Trailing Twelve-Fiscal Month Period
then ending.
2. CONSENTS.
(a) Subsection 7.7 of the Credit Agreement prohibits Borrower
or any Subsidiary from disposing of assets unless certain specified conditions
have been met. Borrower has requested that Lenders consent to the sale by its
Subsidiary of certain assets of the Custom Film business located in Tulsa,
Oklahoma ("Tulsa-Custom Assets") for an amount not less than $1,500,000 in the
aggregate. Lenders hereby consent to the sale by Borrower's Subsidiary of the
Tulsa-Custom Assets.
(b) At Borrower's request, Lenders hereby consent to Borrower
using the Net Proceeds from the sale of the Tulsa-Custom Assets to repurchase
Borrower's Senior Notes and for other general corporate purposes.
3. REPRESENTATIONS AND WARRANTIES. To induce Agent and Lenders
to enter into this Agreement, Borrower represents and warrants to Xxxxxx that:
(a) AUTHORITY AND BINDING EFFECT. The execution, delivery, and
performance by Borrower of this Agreement is within its corporate power, has
been duly authorized by all necessary corporate action (including, without
limitation, shareholder approval), has received all necessary government
approvals (if any shall be required), and does not and will not contravene or
conflict with any provision of law applicable to Borrower, the Certificate of
Incorporation or Bylaws of Borrower, or any order, judgment, or decree of any
court or other agency of government or any agreement, instrument, or document
binding upon Borrower; and the Credit Agreement as heretofore amended and as
amended as of the date hereof is the legal, valid, and binding obligation of
Borrower enforceable against Borrower in accordance with its terms.
(b) NO DEFAULT. No Default or Event of Default under the
Credit Agreement, as amended hereby, has occurred and is continuing.
4. MISCELLANEOUS.
(a) CAPTIONS. Section captions used in this Agreement are
for convenience only, and shall not affect the construction of this Agreement.
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(b) GOVERNING LAW. This Agreement shall be a contract made
under and governed by the laws of the State of Illinois, without regard to
conflict of laws principles. Whenever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(c) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, and each such counterpart shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
Agreement.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon Agent, Borrower and Lenders and their respective successors and assigns,
and shall inure to the sole benefit of Agent, Borrower and Lenders and the
successors and assigns of Agent, Borrower and Lenders.
(e) REFERENCES. Any reference to the Credit Agreement
contained in any notice, request, certificate, or other document executed
concurrently with or after the execution and delivery of this Agreement shall be
deemed to include this Agreement unless the context shall otherwise require.
(f) CONTINUED EFFECTIVENESS. Notwithstanding anything
contained herein, the terms of this Agreement are not intended to and do not
serve to effect a novation as to the Credit Agreement. The parties hereto
expressly do not intend to extinguish the Credit Agreement. Instead, it is the
express intention of the parties hereto to reaffirm the indebtedness created
under the Credit Agreement which is evidenced by the Notes and secured by the
Collateral. The Credit Agreement as amended hereby and each of the other Loan
Documents remains in full force and effect.
(g) COSTS, EXPENSES AND TAXES. Borrower affirms and
acknowledges that subsection 10.1 of the Credit Agreement applies to this
Agreement and the transactions and Agreements and documents contemplated
hereunder.
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Delivered at Chicago, Illinois, as of the day and year first above
written.
ATLANTIS PLASTICS, INC.
By:______________________________
Name Printed:____________________
Title:___________________________
XXXXXX FINANCIAL, INC.,
Individually and as Agent
By:______________________________
Name Printed:____________________
Title:___________________________
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ACKNOWLEDGMENT
Each of Atlantis Molded Plastics, Inc., Atlantis Plastic Injection
Molding, Inc. (f/k/a Cyanede Plastics, Inc.), Atlantis Plastic Films, Inc. and
Xxxxxx Plastics, Inc. hereby acknowledges and consents to the terms of this
Agreement and hereby affirms, ratifies and confirms all of the terms and
provisions of the such entity's Guaranty in favor of Agent and Lenders.
ATLANTIS MOLDED PLASTICS, INC.
By:_______________________________
Name Printed:_____________________
Title:____________________________
ATLANTIS PLASTICS INJECTION
MOLDING, INC.
By:_______________________________
Name Printed:_____________________
Title:____________________________
ATLANTIS PLASTICS FILMS, INC.
By:_______________________________
Name Printed:_____________________
Title:____________________________
XXXXXX PLASTICS, INC.
By:_______________________________
Name Printed:_____________________
Title:____________________________
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