EXHIBIT 10.23
EXECUTION COPY
SEVENTH AMENDMENT TO GUARANTY AGREEMENT
This SEVENTH AMENDMENT TO GUARANTY AGREEMENT (this "Amendment"), dated
as of March 28, 2003, is made and entered into by and between CARAUSTAR
INDUSTRIES, INC., a North Carolina corporation (the "Guarantor"), and SUNTRUST
BANK, a Georgia banking corporation, formerly known as SunTrust Bank, Atlanta
(the "Lender").
WITNESSETH:
WHEREAS, the Guarantor executed that certain Guaranty Agreement, dated
as of July 30, 1999, in favor of the Lender, as amended by that certain First
Amendment to Guaranty Agreement, dated as of September 29, 2000, that certain
Second Amendment and Waiver to Guaranty Agreement, dated as of March 12, 2001,
that certain Third Amendment to Guaranty Agreement, dated as of April 9, 2001,
that certain Fourth Amendment and Waiver to Guaranty Agreement, dated as of
January 18, 2002, that certain Fifth Amendment to Guaranty Agreement, dated as
of September 23, 2002 and that certain Sixth Amendment to Guaranty Agreement,
dated as of December 31, 2002 (as the same may be further amended, restated,
supplemented or otherwise modified from time to time, the "Guaranty
Agreement"), pursuant to which the Guarantor guaranteed 50% of the obligations
of Premier Boxboard Limited LLC, a Delaware limited liability corporation (the
"Borrower"), under a certain Amended and Restated Revolving Credit Agreement,
dated as of December 18, 2000, as amended by that certain First Amendment to
Revolving Credit Agreement, dated as of March 12, 2001, that certain Second
Amendment to Revolving Credit Agreement, dated as of September 23, 2002 and
that certain Third Amendment to Revolving Credit Agreement (the "Third
Amendment"), dated as of the date hereof, as the same may be further amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"; capitalized terms used herein and not otherwise defined shall have
the meanings assigned to such terms in the Credit Agreement);
WHEREAS, the Guarantor has requested that the Lender amend the
Guaranty Agreement in the manner set forth below, and the Lender is willing to
do so subject to the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, the parties hereto, intending to be legally bound, hereby amend the
Guaranty Agreement as follows:
1. Section 8 of the Guaranty Agreement is hereby amended by
deleting such section in its entirety and inserting the following in lieu
thereof:
SECTION 8. FINANCIAL COVENANTS.
(a) Maximum Total Leverage Ratio. As of the end of each fiscal
quarter, commencing with the end of the fiscal quarter ending March 31, 2003,
the Guarantor will not permit the Total Leverage Ratio (as such term is defined
in the Caraustar Credit Agreement) to be greater than or equal to:
Period Ratio
fiscal quarter ending March 31, 2003 70.0%
fiscal quarter ending June 30, 2003 70.0%
fiscal quarter ending September 30, 2003 70.0%
fiscal quarter ending December 31, 2003 70.0%
fiscal quarter ending March 31, 2004 and each 67.5%
fiscal quarter ending thereafter
(b) Minimum Fixed Charge Coverage Ratio. As of the end of each
fiscal quarter, commencing with the end of the fiscal quarter ending March 31,
2003, the Guarantor will not permit the Fixed Charge Coverage Ratio (as such
term is defined in the Caraustar Credit Agreement) to be less than:
Period Ratio
fiscal quarter ending March 31, 2003 0.95:1.0
fiscal quarter ending June 30, 2003 0.85:1.0
fiscal quarter ending September 30, 2003 0.85:1.0
fiscal quarter ending December 31, 2003 1.05:1.0
fiscal quarter ending March 31, 2004 and each 1.50:1.0
fiscal quarter thereafter
(c) Minimum Tangible Net Worth. At all times on and after March
31, 2003, the Guarantor will not permit Tangible Net Worth (as such term is
defined in the Caraustar Credit Agreement) to be less than $65,000,000 plus, as
of the end of each fiscal quarter, commencing with the end of the fiscal
quarter ending June 30, 2003, (i) 50% of Net Income (as such term is defined in
the Caraustar Credit Agreement) to the extent positive for the fiscal quarter
then ended, such increases to be cumulative, and (ii) 100% of the Net Cash
Proceeds (as such term is defined in the Caraustar Credit Agreement) of Equity
Issuances (as such term is defined in the Caraustar Credit Agreement) during
the fiscal quarter then ended, such increases to be cumulative.
(d) Maximum Capital Expenditures. Capital Expenditures (as such
term is defined in the Caraustar Credit Agreement) in any fiscal year shall not
exceed the amount set forth below with respect to such Fiscal Year:
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Fiscal Year Amount
Fiscal Year ending December 31, 2003 $30,000,000
Fiscal Year ending December 31, 2004 $30,000,000
Fiscal Year ending December 31, 2005 $30,000,000
For the purpose of calculating (i) Net Worth (as such term is defined in the
Caraustar Credit Agreement) as part of the calculation of the Total Leverage
Ratio with respect to Section 8(a) above and (ii) Tangible Net Worth with
respect to Section 8(c) above, such calculations shall exclude (i.e., there
will be added back to Net Worth or Tangible Net Worth, as the case may be) (a)
for each fiscal year beginning with the 2002 fiscal year, any year-end non-cash
adjustment (on an after-tax basis) to other comprehensive income to reflect any
Additional Minimum Liability (as defined below), and (b) for the fiscal
quarters ending December 31, 2002 and March 31, 2003, any restructuring charges
(cash or non-cash) taken during such fiscal quarters in connection with the
Borrower retiring or taking other action on idle or underperforming assets;
provided, however, that the aggregate incremental amount of all such charges
added back to Net Worth or Tangible Net Worth, as the case may be, (I) with
respect to the charges referenced in the foregoing clause (a), shall not exceed
$30,000,000 (calculated on an after-tax basis) and (II) with respect to the
charges referenced in the foregoing clause (b), shall not exceed $16,000,000
(calculated on an after-tax basis). For purposes hereof, "Additional Minimum
Liability" means, as of any date, with respect to any Pension Plan (as such
term is defined in the Caraustar Credit Agreement), the sum of the absolute
values of (x) the unfunded accumulated benefit obligation existing as of the
end of the fiscal year then ending or the most recently ended fiscal year, as
applicable, plus (y) the Borrower's prepaid pension asset position existing as
of the end of the fiscal year then ending or the most recently ended fiscal
year, as applicable."
2. This Amendment shall not become effective until the Lender
shall have received from the Guarantor the duly executed counterparts of this
Amendment and all conditions precedent contained in Section 4 of the Third
Amendment have been completed and satisfied in Lender's sole discretion.
3. In order to induce the Lender to enter into this Amendment,
the Guarantor represents and warrants to the Lender that after giving effect to
this Amendment, all representations and warranties set forth in Section 6 of
the Guaranty Agreement are true and correct in all material respects and no
default under the covenants contained in Section 7 or 8 of the Guaranty
Agreement has occurred and is continuing. The Guarantor reaffirms and ratifies
its obligations under the Guaranty Agreement after giving effect to this
Amendment.
4. Except as expressly provided herein, the Guaranty Agreement
shall continue in full force and effect, and the unamended terms and conditions
of the Guaranty Agreement are expressly incorporated herein and ratified and
confirmed in all respects. This Amendment is not intended to be or to create,
nor shall it be construed as, a novation or an accord and satisfaction.
5. From and after the date hereof, references to the Guaranty
Agreement shall be references to the Guaranty Agreement as amended hereby.
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6. This Amendment constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof. Neither this
Amendment nor any provision hereof may be changed, waived, discharged, modified
or terminated orally, but only by an instrument in writing signed by the
parties required to be a party thereto pursuant to the Guaranty Agreement.
7. THIS AMENDMENT SHALL BE GOVERNED IN ALL RESPECTS BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF).
8. This Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which, taken
together, shall constitute one and the same document, and shall be effective as
of the date first above written.
9. Guarantor agrees to reimburse the Lender for the reasonable
fees and expenses of counsel for the Lender in connection with this Amendment.
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IN WITNESS WHEREOF, Guarantor and the Lender have caused this
Amendment to be executed as of the date first above written.
GUARANTOR:
CARAUSTAR INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Chief
Financial Officer
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SIGNATURE PAGE TO SEVENTH AMENDMENT TO CREDIT AGREEMENT
SUNTRUST BANK, formerly known as
SUNTRUST BANK, ATLANTA
By: /s/ J. Xxxxx Xxxxxxx
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Name: J. Xxxxx Xxxxxxx
Title: V.P.
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SIGNATURE PAGE TO SEVENTH AMENDMENT TO CREDIT AGREEMENT
