Common use of Waivers to Credit Agreement Clause in Contracts

Waivers to Credit Agreement. 1. Holdings and the Borrower have informed the Banks that as a result of management’s internal review of its records and determination that certain Credit Parties had not fulfilled certain obligations under bottle and resin supply agreements with Xxxx Foods Company, formerly known as Suiza Foods Company (“Xxxx Foods”) and certain affiliates of Xxxx Foods, (i) Consolidated Container Company LP, Holdings and the Borrower have entered into a Settlement Agreement, dated August 22, 2006, as amended August 25, 2006 (the “Settlement Agreement”) with Xxxx Foods under which such Credit Parties will pay $10,000,000 to Xxxx Foods in installments through 2008, (ii) Holdings’ previously issued financial statements for the years ended December 31, 2005, 2004 and 2003 (and the fiscal quarters comprising such fiscal years) and for the fiscal quarter ended March 31, 2006 (such financial statements, collectively, the “Original Financial Statements”) should no longer be relied upon and should be restated (the “Restatement”) as promptly as practicable (such restated financial statements, the “Restated Financial Statements”), which Restated Financial Statements have now been delivered to the Banks (together with a revised compliance certificate as described in Section 8.01(e) of the Credit Agreement in respect of each Test Period ending during such period), (iii) Holdings and the Borrower failed to deliver the financial statements for the quarter ended June 30, 2006 within the time period required by Section 8.01(b) of the Credit Agreement, but financial statements for such quarter otherwise satisfying the requirements of Section 8.01(b) have now been delivered to the Banks, (iv) Holdings and the Borrower failed to deliver the financial statements for the month ended July 31, 2006 within the time period required by Section 8.01(a) of the Credit Agreement, but financial statements for such month otherwise satisfying the requirements of Section 8.01(a) have now been delivered to the Banks, (v) the Original Financial Statements delivered pursuant to Section 7.05 of the Credit Agreement did not comply with the terms of such Section and (vi) Holdings and the Borrower maintained books and records in a manner which did not comply with the terms of Section 8.02 of the Credit Agreement (the matters referred to in this Section II(1), collectively, the “Disclosed Matters”). 2. To the extent representations and warranties contained in Sections 7.05 and 7.07 of the Credit Agreement constituted a misrepresentation solely as a result of the foregoing Disclosed Matters, the Banks hereby waive any Default or Event of Default arising under Section 10.02 of the Credit Agreement as a result thereof. 3. The Banks hereby waive the failure of Holdings and the Borrower to deliver financial statements for the month ended July 31, 2006 within the time period required by Section 8.01(a) of the Credit Agreement, and also hereby waive any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result of such failure. 4. The Banks hereby waive the failure of Holdings and the Borrower to deliver financial statements for the fiscal quarter ended June 30, 2006 within the time period required by Section 8.01(b) of the Credit Agreement, and also hereby waive any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result of such failure. 5. The Banks hereby waive the failure of Holdings and the Borrower to provide notice of any Default and/or Event of Default arising from the Disclosed Matters within the time period required by Section 8.01(g) of the Credit Agreement, and also hereby waive any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result of such failure. 6. To the extent Section 8.02 of the Credit Agreement was violated solely as a result of the foregoing Disclosed Matters, the Banks hereby waive such violation and any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result thereof. 7. To the extent Section 8.05 of the Credit Agreement was violated solely as a result of the foregoing Disclosed Matters, the Banks hereby waive such violation and any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result thereof. 8. To the extent (a) Sections 9.08, 9.09 and 9.10 of the Credit Agreement were violated solely as a result of the foregoing Disclosed Matters for (and only for) the Test Period ended September 30, 2005 and (b) Section 9.10 of the Credit Agreement was violated solely as a result of the foregoing Disclosed Matters for (and only for) the Test Period ended December 31, 2005, the Banks hereby waive such violations and any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result thereof. 9. The Banks hereby waive any Default or Event of Default that arose under Section 10.04 of the Credit Agreement as a result of a default by the Borrower in its obligation to deliver financial statements for the fiscal quarter ended June 30, 2006 to the holders of the Senior Second Lien Notes and the Senior Subordinated Notes within the time period required by the Senior Second Lien Note Documents and the Senior Subordinated Note Documents, but only to the extent that such defaults have been cured prior to the First Amendment Effective Date. 10. The Banks hereby confirm and agree that, for the purposes of the Credit Agreement, the Disclosed Matters in and of themselves shall not constitute or be deemed to be a “Material Adverse Effect”.

Waivers to Credit Agreement. 1. Holdings The Lenders waive the Borrower's compliance with the following terms and the Borrower have informed the Banks that as a result of management’s internal review of its records and determination that certain Credit Parties had not fulfilled certain obligations under bottle and resin supply agreements with Xxxx Foods Company, formerly known as Suiza Foods Company (“Xxxx Foods”) and certain affiliates of Xxxx Foods, (i) Consolidated Container Company LP, Holdings and the Borrower have entered into a Settlement Agreement, dated August 22, 2006, as amended August 25, 2006 (the “Settlement Agreement”) with Xxxx Foods under which such Credit Parties will pay $10,000,000 to Xxxx Foods in installments through 2008, (ii) Holdings’ previously issued financial statements for the years ended December 31, 2005, 2004 and 2003 (and the fiscal quarters comprising such fiscal years) and for the fiscal quarter ended March 31, 2006 (such financial statements, collectively, the “Original Financial Statements”) should no longer be relied upon and should be restated (the “Restatement”) as promptly as practicable (such restated financial statements, the “Restated Financial Statements”), which Restated Financial Statements have now been delivered to the Banks (together with a revised compliance certificate as described in Section 8.01(e) of the Credit Agreement in respect of each Test Period ending during such period), (iii) Holdings and the Borrower failed to deliver the financial statements for the quarter ended June 30, 2006 within the time period required by Section 8.01(b) conditions of the Credit Agreement, but financial statements retroactive to the date of such non-compliance (the following herein called the "Waivers"): (i) that, pursuant to Section 2.01(ii), the total amount of all then outstanding Working Capital Obligations not exceed the aggregate amount of the Borrowing Base, as to which the Borrower was not in compliance on one or more days during the period from January 2, 1999 through January 18, 1999 (because the fixed reserve against the Borrowing Base, set forth in clause (x) of the definition thereof, remained at $10,000,000 during such period pending the execution of the First Amendment to the Credit Agreement, effective as of January 19, 1999); (ii) that, pursuant to Section 5.21, Consolidated EBITDA be at least $2,700,000 for such quarter otherwise satisfying the requirements two (2) Fiscal Quarters ending closest to December 31, 1998, as to which the Borrower was not in compliance as of January 2, 1999 (the actual Fiscal Quarter end); (iii) that, pursuant to Section 5.24, Consolidated Tangible Net Worth be at least $77,500,000 plus the cumulative quarterly increase described in said Section for Fiscal Quarter, as to which the Borrower was not in compliance as of January 2, 1999, which waiver shall be effective, in the case of Section 8.01(b5.24, through April 30, 1999; (iv) that, pursuant to Section 5.34, by not later than February 15, 1999, the Borrower shall have now been delivered to the BanksCollateral Agent the appraisal of the Inventory Collateral described therein; and (v) that, pursuant to Section 5.42, by not later than February 10, 1999, the Borrower shall have delivered certain Mortgages and other instruments more particularly described therein in respect of the Mortgaged Real Property; subject, however, to the following terms and conditions: (A) the foregoing waivers are limited solely to the specific matters and for the specific times or time periods described hereinabove; (B) on the First Waiver Date, the Borrower shall have paid to SunTrust, as Administrative Agent, the sum of $81,592.03, as a waiver fee, to be shared by the Lenders pro rata based on their respective shares of the total Commitments; (C) as soon as practicable, but not later than March 15, 1999, the Borrower shall have obtained and delivered a copy to each of the Agents of a written commitment letter (or series thereof) from one or more banks or other financial institutions, on a fully underwritten basis and which is otherwise acceptable to the Required Lenders, to extend financing to the Borrower in an aggregate amount at least sufficient to pay all Obligations (at par) and retire all Commitments under the Credit Agreement by not later than April 30, 1999, which commitment shall have been accepted by the Borrower (and, should the Borrower be unable to comply with the foregoing requirement by March 15, 1999, then, the Waivers granted hereinabove shall be subject to withdrawal by the Required Lenders); (D) in specific reference to the requirements for delivery of the appraisal of the Inventory Collateral, the Borrower shall have obtained and delivered such appraisal to the Collateral Agent by not later than February 19, 1999 (and, should the Borrower be unable to comply with the foregoing requirement by March 15, 1999, then, the Waivers granted hereinabove shall be subject to withdrawal by the Required Lenders); and (E) in specific reference to the requirements for delivery of Mortgages and other instruments in respect of Mortgaged Real Property set forth in Section 5.42: (1) by not later than February 19, 1999, the Borrower shall have complied in all respects with Section 5.42 in regard to the following real property: (a) all real property in Pike County, (ivb) Holdings the "Grifxxx xxxnt" and (c) the "Northside plant"; (2) by not later than February 19, 1999, the Borrower failed shall have complied at least with the requirement in Section 5.42 that Mortgages be executed and delivered to deliver the financial statements for Collateral Agent in respect of all other Mortgaged Real Property not described in clause (1) above; and (3) by not later than March 5, 1999, the month ended July 31Borrower shall have complied in all other respects with Section 5.42 in respect of all Mortgaged Real Property described in clause (2) above; and, 2006 within if Borrower is unable to comply with any of the time period required foregoing requirements by the deadlines stated therefor, then, (i) the Waivers granted hereinabove shall be subject to withdrawal by the Required Lenders and (ii) at the option of the Required Lenders, a late delivery fee of $1,000 per Business Day shall be imposed until the Borrower has duly complied with each of such requirements. (F) the interest rate payable on the Loans, as set forth in modified Section 8.01(a) 2.05 of the Credit Agreement, but financial statements for such month otherwise satisfying is hereby increased by changing the requirements of reference thereto in Section 8.01(a2.05(ii) have now been delivered thereof from "one percent (1%) per annum" to the Banks, "two percent (v2%) the Original Financial Statements delivered pursuant to Section 7.05 per annum," effective as of the Credit Agreement did not comply with the terms of such Section and (vi) Holdings and the Borrower maintained books and records in a manner which did not comply with the terms of Section 8.02 of the Credit Agreement (the matters referred to in this Section II(1), collectively, the “Disclosed Matters”). 2. To the extent representations and warranties contained in Sections 7.05 and 7.07 of the Credit Agreement constituted a misrepresentation solely as a result of the foregoing Disclosed Matters, the Banks hereby waive any Default or Event of Default arising under Section 10.02 of the Credit Agreement as a result thereof. 3. The Banks hereby waive the failure of Holdings and the Borrower to deliver financial statements for the month ended July 31, 2006 within the time period required by Section 8.01(a) of the Credit Agreement, and also hereby waive any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result of such failure. 4. The Banks hereby waive the failure of Holdings and the Borrower to deliver financial statements for the fiscal quarter ended June 30, 2006 within the time period required by Section 8.01(b) of the Credit Agreement, and also hereby waive any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result of such failure. 5. The Banks hereby waive the failure of Holdings and the Borrower to provide notice of any Default and/or Event of Default arising from the Disclosed Matters within the time period required by Section 8.01(g) of the Credit Agreement, and also hereby waive any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result of such failure. 6. To the extent Section 8.02 of the Credit Agreement was violated solely as a result of the foregoing Disclosed Matters, the Banks hereby waive such violation and any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result thereof. 7. To the extent Section 8.05 of the Credit Agreement was violated solely as a result of the foregoing Disclosed Matters, the Banks hereby waive such violation and any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result thereof. 8. To the extent (a) Sections 9.08, 9.09 and 9.10 of the Credit Agreement were violated solely as a result of the foregoing Disclosed Matters for (and only for) the Test Period ended September 30, 2005 and (b) Section 9.10 of the Credit Agreement was violated solely as a result of the foregoing Disclosed Matters for (and only for) the Test Period ended December 31, 2005, the Banks hereby waive such violations and any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result thereof. 9. The Banks hereby waive any Default or Event of Default that arose under Section 10.04 of the Credit Agreement as a result of a default by the Borrower in its obligation to deliver financial statements for the fiscal quarter ended June 30, 2006 to the holders of the Senior Second Lien Notes and the Senior Subordinated Notes within the time period required by the Senior Second Lien Note Documents and the Senior Subordinated Note Documents, but only to the extent that such defaults have been cured prior to the First Amendment Effective Waiver Date. 10. The Banks hereby confirm and agree that, for the purposes (G) effective as of the First Waiver Date, Letter of Credit AgreementFees shall be increased, the Disclosed Matters in prospectively, on both existing and future Letters of themselves shall not constitute or be deemed Credit, to be a “Material Adverse Effect”four and one-half percent (4-1/2%) per annum, plus any facing fees, and remain fixed at such amount hereafter.

Waivers to Credit Agreement. 1. Holdings The Lenders waive the Borrower's compliance with the following terms and conditions of the Credit, retroactive to the date of such non-compliance (the following herein called the "Waivers"): (i) that, pursuant to Section 2.01(ii), the total amount of all then outstanding Working Capital Obligations not exceed the aggregate amount of the Borrowing Base, as to which the Borrower was not in compliance on one or more days during the period from January 2, 1999 through January 18, 1999 (because the fixed reserve against the Borrowing Base, set forth in clause (x) of the definition thereof, remained at $10,000,000 during such period pending the execution of the First Amendment to the Credit Agreement, effective as of January 19, 1999); (ii) that, pursuant to Section 5.21, Consolidated EBITDA be at least $2,700,000 for the two (2) Fiscal Quarters ending closest to December 31, 1998, as to which the Borrower was not in compliance as of January 2, 1999 (the actual Fiscal Quarter end); (iii) that, pursuant to Section 5.24, Consolidated Tangible Net Worth be at least $77,500,000 plus the cumulative increase described in said Section for the Fiscal Quarter ending closest to December 31, 1998, as to which the Borrower was not in compliance as of January 2, 1999 (the actual Fiscal Quarter end); (iv) that, pursuant to Section 5.34, by not later than February 15, 1999, the Borrower shall have informed delivered to the Banks that Collateral Agent the appraisal of the Inventory Collateral described therein; and (v) that, pursuant to Section 5.42, by not later than February 10, 1999, the Borrower shall have delivered certain Mortgages and other instruments more particularly described therein in respect of the Mortgaged Real Property; subject, however, to the following terms and conditions: (A) the foregoing waivers are limited solely to the specific matters and for the specific times or time periods described hereinabove; (B) on the First Waiver Date, the Borrower shall have paid to SunTrust, as Administrative Agent, the sum of $81,592.03, as a result waiver fee, to be shared by the Lenders pro rata based on their respective shares of management’s internal review the total Commitments; (C) as soon as practicable, but not later than March 15, 1999, the Borrower shall have obtained and delivered a copy to each of its records the Agents of a written commitment letter (or series thereof) from one or more banks or other financial institutions, on a fully underwritten basis and determination that certain Credit Parties had not fulfilled certain obligations under bottle and resin supply agreements with Xxxx Foods Companywhich is otherwise acceptable to the Required Lenders, formerly known as Suiza Foods Company to extend financing to the Borrower in an aggregate amount at least sufficient to pay all Obligations (“Xxxx Foods”at par) and certain affiliates retire all Commitments under the Credit Agreement by not later than April 30, 1999, which commitment shall have been accepted by the Borrower (and, should the Borrower be unable to comply with the foregoing requirement by March 15, 1999, then, the Waivers granted hereinabove shall be subject to withdrawal by the Required Lenders); (D) In specific reference to the requirements for delivery of Xxxx Foodsthe appraisal of the Inventory Collateral, the Borrower shall have obtained and delivered such appraisal to the Collateral Agent by not later than February 19, 1999 (and, should the Borrower be unable to comply with the foregoing requirement by March 15, 1999, then, the Waivers granted hereinabove shall be subject to withdrawal by the Required Lenders); and (E) in specific reference to the requirements for delivery of Mortgages and other instruments in respect of Mortgaged Real Property set forth in Section 5.42: (1) by not later than February 19, 1999, the Borrower shall have complied in all respects with Section 5.42 in regard to the following real property: (a) all real property in Pike County, (b) the "Grifxxx xxxnt" and (c) the "Northside plant"; (2) by not later than February 19, 1999, the Borrower shall have complied at least with the requirement in Section 5.42 that Mortgages be executed and delivered to the Collateral Agent in respect of all other Mortgaged Real Property not described in clause (1) above; and (3) by not later than March 5, 1999, the Borrower shall have complied in all other respects with Section 5.42 in respect of all Mortgaged Real Property described in clause (2) above; and, if Borrower is unable to comply with any of the foregoing requirements by the deadlines stated therefor, then, (i) Consolidated Container Company LP, Holdings the Waivers granted hereinabove shall be subject to withdrawal by the Required Lenders and the Borrower have entered into a Settlement Agreement, dated August 22, 2006, as amended August 25, 2006 (the “Settlement Agreement”) with Xxxx Foods under which such Credit Parties will pay $10,000,000 to Xxxx Foods in installments through 2008, (ii) Holdings’ previously issued financial statements for at the years ended December 31, 2005, 2004 and 2003 (and the fiscal quarters comprising such fiscal years) and for the fiscal quarter ended March 31, 2006 (such financial statements, collectively, the “Original Financial Statements”) should no longer be relied upon and should be restated (the “Restatement”) as promptly as practicable (such restated financial statements, the “Restated Financial Statements”), which Restated Financial Statements have now been delivered to the Banks (together with a revised compliance certificate as described in Section 8.01(e) option of the Credit Agreement in respect Required Lenders, a late delivery fee of each Test Period ending during such period), (iii) Holdings and $1,000 per Business Day shall be imposed until the Borrower failed to deliver the financial statements for the quarter ended June 30, 2006 within the time period required by Section 8.01(b) of the Credit Agreement, but financial statements for such quarter otherwise satisfying the requirements of Section 8.01(b) have now been delivered to the Banks, (iv) Holdings and the Borrower failed to deliver the financial statements for the month ended July 31, 2006 within the time period required by Section 8.01(a) of the Credit Agreement, but financial statements for such month otherwise satisfying the requirements of Section 8.01(a) have now been delivered to the Banks, (v) the Original Financial Statements delivered pursuant to Section 7.05 of the Credit Agreement did not comply has duly complied with the terms each of such Section and (vi) Holdings and the Borrower maintained books and records in a manner which did not comply with the terms of Section 8.02 of the Credit Agreement (the matters referred to in this Section II(1), collectively, the “Disclosed Matters”)requirements. 2. To the extent representations and warranties contained in Sections 7.05 and 7.07 of the Credit Agreement constituted a misrepresentation solely as a result of the foregoing Disclosed Matters, the Banks hereby waive any Default or Event of Default arising under Section 10.02 of the Credit Agreement as a result thereof. 3. The Banks hereby waive the failure of Holdings and the Borrower to deliver financial statements for the month ended July 31, 2006 within the time period required by Section 8.01(a) of the Credit Agreement, and also hereby waive any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result of such failure. 4. The Banks hereby waive the failure of Holdings and the Borrower to deliver financial statements for the fiscal quarter ended June 30, 2006 within the time period required by Section 8.01(b) of the Credit Agreement, and also hereby waive any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result of such failure. 5. The Banks hereby waive the failure of Holdings and the Borrower to provide notice of any Default and/or Event of Default arising from the Disclosed Matters within the time period required by Section 8.01(g) of the Credit Agreement, and also hereby waive any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result of such failure. 6. To the extent Section 8.02 of the Credit Agreement was violated solely as a result of the foregoing Disclosed Matters, the Banks hereby waive such violation and any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result thereof. 7. To the extent Section 8.05 of the Credit Agreement was violated solely as a result of the foregoing Disclosed Matters, the Banks hereby waive such violation and any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result thereof. 8. To the extent (a) Sections 9.08, 9.09 and 9.10 of the Credit Agreement were violated solely as a result of the foregoing Disclosed Matters for (and only for) the Test Period ended September 30, 2005 and (b) Section 9.10 of the Credit Agreement was violated solely as a result of the foregoing Disclosed Matters for (and only for) the Test Period ended December 31, 2005, the Banks hereby waive such violations and any Default or Event of Default arising under Section 10.03 of the Credit Agreement as a result thereof. 9. The Banks hereby waive any Default or Event of Default that arose under Section 10.04 of the Credit Agreement as a result of a default by the Borrower in its obligation to deliver financial statements for the fiscal quarter ended June 30, 2006 to the holders of the Senior Second Lien Notes and the Senior Subordinated Notes within the time period required by the Senior Second Lien Note Documents and the Senior Subordinated Note Documents, but only to the extent that such defaults have been cured prior to the First Amendment Effective Date. 10. The Banks hereby confirm and agree that, for the purposes of the Credit Agreement, the Disclosed Matters in and of themselves shall not constitute or be deemed to be a “Material Adverse Effect”.