EXHIBIT 10.1
FIFTH AMENDMENT AND AGREEMENT TO THE CREDIT AGREEMENT AND FIRST
AMENDMENT TO THE SECURITY AGREEMENT
FIFTH AMENDMENT AND AGREEMENT TO THE CREDIT AGREEMENT AND
FIRST AMENDMENT TO THE SECURITY AGREEMENT (this "Amendment"), dated as of
February 27, 2002, among CONSOLIDATED CONTAINER HOLDINGS LLC, a Delaware limited
liability company ("Holdings"), CONSOLIDATED CONTAINER COMPANY LLC, a Delaware
limited liability company (the "Borrower"), the Banks party to the Credit
Agreement referred to below (the "Banks"), BANKERS TRUST COMPANY, as
Administrative Agent (in such capacity, the "Administrative Agent") under the
Credit Agreement and as Collateral Agent (in such capacity, the "Collateral
Agent") under the Security Agreement, JPMORGAN CHASE BANK (successor by merger
to ▇▇▇▇▇▇ Guaranty Trust Company of New York), as Documentation Agent (the
"Documentation Agent"), and CREDIT SUISSE FIRST BOSTON (formerly known as
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation), as Syndication Agent (the
"Syndication Agent" and, together with the Administrative Agent and the
Documentation Agent, the "Agents"). Unless otherwise indicated, all capitalized
terms used herein and not otherwise defined shall have the respective meanings
provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Holdings, the Borrower, the Banks and the Agents are
parties to a Credit Agreement, dated as of July 1, 1999 (as amended, restated,
modified and/or supplemented to but not including the date hereof, the "Credit
Agreement");
WHEREAS, the Borrower, each Guarantor, and the Collateral
Agent are parties to a Security Agreement, dated as of July 1, 1999 (as amended,
restated, modified and/or supplemented to but not including the date hereof, the
"Security Agreement"); and
WHEREAS, the parties hereto wish to amend, modify and
supplement the Credit Agreement and the Security Agreement as provided herein,
to, among other things, reduce the existing revolving credit facilities and
substitute a new revolving credit facility, in each case, on terms and
conditions set forth herein;
NOW, THEREFORE, it is agreed:
I. AMENDMENTS AND AGREEMENT.
1. Effective as of the Fifth Amendment Effective Date (as
defined below) (i) the Total Revolving Loan Commitment shall be reduced from
$73,500,000 to $54,500,000, with the Revolving Loan Commitment (if any) of each
Bank to be reduced PRO RATA based on the amount such Bank's Revolving Loan
Commitment bears to the Total Revolving Loan Commitment and (ii) in substitution
for such reduction, the Tranche 3 Revolving Loan Facility (as defined after
giving effect to this Amendment) shall be added and shall consist of a Total
Tranche 3 Revolving Loan Commitment (as defined after giving effect to this
Amendment) of $15,000,000 (as set forth in Annex I to the Credit Agreement (as
in effect after giving effect to this Amendment)), which Total Tranche 3
Revolving Loan Commitment may be increased by up to $4,000,000 in accordance
with Section 1.16 of the Credit Agreement (as in effect after giving effect to
this Amendment).
2. Section 1.01 of the Credit Agreement is hereby amended by
inserting at the end thereof the following new clause (h):
"(h) Subject to and upon the terms and conditions set forth
herein, each Bank with a Tranche 3 Revolving Loan Commitment severally
agrees, at any time and from time to time on and after the Fifth
Amendment Effective Date and prior to the Tranche 3 Revolving Loan
Maturity Date, to make a revolving loan or revolving loans (each, a
"Tranche 3 Revolving Loan" and, collectively, the "Tranche 3 Revolving
Loans") to the Borrower, which Tranche 3 Revolving Loans (i) shall be
made and maintained in Dollars, (ii) shall, at the option of the
Borrower, be incurred and maintained as and/or converted into Base Rate
Loans or Eurodollar Loans, (iii) may be repaid and reborrowed in
accordance with the provisions hereof, and (iv) shall not exceed for
any Bank at any time outstanding that aggregate principal amount which
equals the Tranche 3 Revolving Loan Commitment of such Bank at such
time."
3. Section 1.03(a) of the Credit Agreement is hereby amended
by deleting clause (ii) thereof and inserting in lieu thereof the following new
clause (ii):
"(ii) whether the respective Borrowing shall consist of A Term
Loans, B Term Loans, C Term Loans, Tranche 2 Converted Term Loans,
Revolving Loans or Tranche 3 Revolving Loans,".
4. Section 1.05(a) of the Credit Agreement is hereby amended
to read in its entirety as follows:
"(a) At the request of any Bank, the Borrower's obligation to
pay the principal of, and interest on, the Loans made by such Bank to
the Borrower shall be evidenced (i) if A Term Loans, by a promissory
note duly executed and delivered by the Borrower substantially in the
form of Exhibit B-1 with blanks appropriately completed in conformity
herewith (each an "A Term Note" and, collectively, the "A Term Notes"),
(ii) if B Term Loans, by a promissory note duly executed and delivered
by the Borrower substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (each a "B Term Note"
and, collectively, the "B Term Notes"), (iii) if C Term Loans, by a
promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-3 with blanks appropriately
completed in conformity herewith (each, a "C Term Note" and,
collectively, the "C Term Notes"), (iv) if Revolving Loans, by a
promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-4 with blanks appropriately
completed in conformity herewith (each, a "Revolving Note" and,
collectively, the "Revolving Notes"), (v) if Swingline Loans, by a
promissory note substantially in the form of Exhibit B-5, with blanks
appropriately completed in conformity herewith (the "Swingline Note"),
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(vi) if Tranche 2 Converted Term Loans by a promissory note
substantially in the form of Exhibit B-6, with blanks appropriately
completed in conformity herewith (each, a "Tranche 2
Revolving/Converted Term Note" and, collectively, the "Tranche 2
Revolving/Converted Term Notes") and (vii) if Tranche 3 Revolving
Loans, by a promissory note substantially in the form of Exhibit B-7
with blanks appropriately completed in conformity herewith (each a
"Tranche 3 Revolving Note" and, collectively, the "Tranche 3 Revolving
Notes")."
5. Section 1.05 of the Credit Agreement is hereby further
amended by (i) redesignating clauses (g) and (h) thereof as clauses (h) and (i),
respectively, and (ii) inserting the following new clause (g) immediately
following clause (f) thereof:
"(g) The Tranche 3 Revolving Note issued to any Bank that has
a Tranche 3 Revolving Loan Commitment shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank and be dated the
date of issuance, (iii) be in a stated principal amount equal to the
Tranche 3 Revolving Loan Commitment of such Bank, (iv) mature on the
Tranche 3 Revolving Loan Maturity Date, (v) bear interest as provided
in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi)
be subject to voluntary prepayment as provided in Section 4.01 and
mandatory repayment as provided in Section 4.02 and (vii) be entitled
to the benefits of this Agreement and each Tranche 3 Guaranty and be
secured by the Security Documents."
6. Section 1.07 of the Credit Agreement is hereby amended
to read in its entirety as follows:
"1.07 PRO RATA BORROWINGS. All Borrowings of Term Loans under
this Agreement shall be incurred by the Borrower from the Banks PRO
RATA on the basis of their A Term Loan Commitments (and after the
termination thereof, A Term Loans), B Term Loan Commitment (and after
the termination thereof, B Term Loans) and C Term Loan Commitment (and
after the termination thereof, C Term Loans). All Borrowings of
Revolving Loans under this Agreement shall be incurred by the Borrower
from the Banks PRO RATA on the basis of their Revolving Loan
Commitments, as the case may be, PROVIDED that all Borrowings of
Revolving Loans made pursuant to a Mandatory Borrowing shall be
incurred from the ▇▇ ▇▇▇▇▇ PRO RATA on the basis on their Revolving
Percentages. All Tranche 2 Revolving Loans shall be converted into
Tranche 2 Converted Term Loans on the Tranche 2 Conversion Date PRO
RATA on the basis of each Bank's Tranche 2 Revolving Loan Commitment
and, following the Tranche 2 Conversion Date, all Borrowings of Tranche
2 Converted Term Loans shall be incurred by the Borrower from the Banks
PRO RATA on the basis of their Tranche 2 Converted Term Loans. All
Borrowings of Tranche 3 Revolving Loans under this Agreement shall be
incurred by the Borrower from the Banks PRO RATA on the basis of their
Tranche 3 Revolving Loan Commitments. It is understood that no Bank
shall be responsible for any default by any other Bank of its
obligation to make Loans hereunder and that each Bank shall be
obligated to make the Loans to be made by it hereunder, regardless of
the failure of any other Bank to fulfill its commitments hereunder."
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7. Section 1 of the Credit Agreement is hereby further amended
by inserting the following new Section 1.16 at the end thereof:
"1.16 ADDITIONAL TRANCHE 3 REVOLVING LOAN COMMITMENT. Upon
five Business Days written notice (such notice, the "Tranche 3 Increase
Notice") to the Administrative Agent and BTCo (and so long as the
Tranche 3 Guaranty Payment Request Date has not yet occurred), the
Borrower shall have the right on any one Business Day on or before the
date which is 15 days prior to the Tranche 3 Revolving Loan Maturity
Date to effect a one-time increase to the Total Tranche 3 Revolving
Loan Commitment (the date of such increase, the "Tranche 3 Increase
Date") in an aggregate amount of up to $4,000,000 (such amount, the
"Additional Tranche 3 Revolving Loan Commitment Amount"). On the
Tranche 3 Increase Date (i) the Tranche 3 Revolving Loan Commitment of
BTCo shall automatically increase by the Additional Tranche 3 Revolving
Loan Commitment Amount and (ii) the Borrower shall, in coordination
with the Administrative Agent, repay all outstanding Tranche 3
Revolving Loans of each Bank with a Tranche 3 Revolving Loan
Commitment, and incur additional Tranche 3 Revolving Loans from other
Banks with Tranche 3 Revolving Loan Commitments, in each case, so that
each Bank with a Tranche 3 Revolving Loan Commitment participates in
each Borrowing of Tranche 3 Revolving Loans PRO RATA on the basis of
their respective Tranche 3 Revolving Loan Commitments (after giving
effect to such increase pursuant to this Section 1.16) (it being
understood that the Borrower shall be obligated to pay to the Banks
with Tranche 3 Revolving Loan Commitments the costs of the type
referred to in Section 1.11 in connection with any such repayment
and/or Borrowing, provided that such reallocation of Tranche 3
Revolving Loan Commitments shall be done with a view to minimizing such
costs to the Borrower). The Administrative Agent shall promptly notify
each Bank upon receipt of the Tranche 3 Increase Notice. On the Tranche
3 Increase Date, the Total Tranche 3 Revolving Loan Commitment under,
and for all purposes of, this Agreement shall be increased by the
aggregate amount of such Additional Tranche 3 Revolving Loan Commitment
Amount and Schedule I shall be deemed modified to reflect the revised
Tranche 3 Revolving Loan Commitments of the affected Banks. Upon
surrender of any old Tranche 3 Revolving Notes by a Bank with a Tranche
3 Revolving Loan Commitment (or, if lost, a standard lost note
indemnity in form and substance reasonably satisfactory to the
Borrower), to the extent requested by such Bank, a new Tranche 3
Revolving Note will be issued, at the Borrower's expense, to such Bank,
which shall conform to the requirements of Section 1.05 (with
appropriate modifications to the extent needed to reflect the revised
Tranche 3 Revolving Loan Commitment of such Bank)."
8. Section 3.01 of the Credit Agreement is hereby amended by
deleting clause (f) thereof and inserting the following new clause (f) in lieu
thereof:
"(f) The Borrower agrees to pay to each Bank with a Tranche 3
Revolving Loan Commitment a commitment fee (the "Tranche 3 Revolving
Loan Commitment Fee") for the period from and including the Fifth
Amendment Effective Date to, but not including, the Tranche 3 Revolving
Loan Maturity Date, computed at a rate equal to 0.50% on the average
daily Unutilized Tranche 3 Revolving Loan Commitment of such Bank.
Accrued Tranche 3 Revolving Loan Commitment Fees shall be due and
payable quarterly
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in arrears on each Quarterly Payment Date and on the Tranche 3
Revolving Loan Maturity Date.
9. Section 3.02(b) of the Credit Agreement is hereby amended
to read in its entirety as follows:
"(b) Upon at least two Business Days' prior written notice to
the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Banks), the
Borrower shall have the right, at any time or from time to time,
without premium or penalty, to permanently reduce the Total Unutilized
Tranche 3 Revolving Loan Commitment, in whole or in part, in integral
multiples of $1,000,000 in the case of partial reductions to the Total
Unutilized Tranche 3 Revolving Loan Commitment, PROVIDED that each such
reduction shall apply proportionately to permanently reduce the Tranche
3 Revolving Loan Commitment of each Bank with a Tranche 3 Revolving
Loan Commitment."
10. Section 3.03 of the Credit Agreement is hereby amended by
deleting clauses (e), (f) and (g) thereof and by inserting in lieu thereof the
following new clauses (e), (f), (g), (h), (i) and (j):
"(e) The Total Tranche 3 Revolving Loan Commitment (and the
Tranche 3 Revolving Loan Commitment of each Bank) shall terminate in
its entirety on the Tranche 3 Revolving Loan Maturity Date.
(f) On each date after the Fifth Amendment Effective Date
upon which a mandatory repayment of Term Loans or Tranche 2 Converted
Term Loans pursuant to any of Sections 4.02(f) through (j), inclusive,
is required and exceeds in amount the aggregate principal amount of
Term Loans or Tranche 2 Converted Term Loans then outstanding (or would
be required if such Term Loans or Tranche 2 Converted Term Loans were
then outstanding), the Total Revolving Loan Commitment shall be
permanently reduced by the amount, if any, by which the amount required
to be applied pursuant to said Sections (determined as if an unlimited
amount of Term Loans and/or Tranche 2 Converted Term Loans were
actually outstanding) exceeds the aggregate principal amount of such
Term Loans or Tranche 2 Converted Term Loans then outstanding.
(g) On each date after the Fifth Amendment Effective Date
upon which a mandatory reduction of the Total Revolving Loan Commitment
pursuant to Section 3.03(f) is required and exceeds in amount the Total
Revolving Loan Commitment, the Total Tranche 3 Revolving Loan
Commitment shall be permanently reduced by the amount, if any, by which
the amount required to be applied pursuant to said Section (determined
as if an unlimited Total Revolving Loan Commitment existed at such
time) exceeds the Total Revolving Loan Commitment at such time.
(h) The Total Tranche 3 Revolving Loan Commitment shall be
permanently reduced in an amount equal to the Total Unutilized Tranche
3 Revolving Loan Commitment (if any) on the Tranche 3 Guaranty Payment
Request Date.
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(i) At any time after the Tranche 3 Guaranty Payment Request
Date upon which a repayment of the principal of Tranche 3 Revolving
Loans is made, the Total Tranche 3 Revolving Loan Commitment shall be
permanently reduced by an amount equal to the aggregate amount of
Tranche 3 Revolving Loans being repaid at such time.
(j) Each reduction to the Total Revolving Loan Commitment or
the Total Tranche 3 Revolving Loan Commitment pursuant to this Section
3.03 shall be applied proportionately to reduce the Revolving Loan
Commitment or the Tranche 3 Revolving Loan Commitment, as the case may
be, of each Bank with such a Commitment."
11. Section 4.01(i) of the Credit Agreement is hereby amended
by deleting the text "Tranche 2 Revolving Loans" appearing therein and by
inserting in lieu thereof the text "Tranche 3 Revolving Loans".
12. Section 4.01 of the Credit Agreement is hereby further
amended by inserting the following paragraph at the end thereof:
"Notwithstanding anything to the contrary contained above in this
Section 4.01, no voluntary prepayments of Revolving Loans or Swingline
Loans pursuant to this Section 4.01 may be made at any time when any
Tranche 3 Revolving Loans are outstanding."
13. Section 4.02(a)(ii) of the Credit Agreement is hereby
amended to read in its entirety as follows:
"(ii) If on any date the aggregate outstanding principal
amount of Tranche 3 Revolving Loans exceeds the Total Tranche 3
Revolving Loan Commitment as then in effect, the Borrower shall repay
on such date the principal of Tranche 3 Revolving Loans in an aggregate
amount equal to such excess."
14. Notwithstanding anything to the contrary contained in
Section 4.02(i) of the Credit Agreement, the Banks hereby agree that the
requirements of such Section shall not give rise to a mandatory repayment for
the Excess Cash Payment Period in respect of the fiscal year of the Borrower
ending December 31, 2001.
15. Section 4.02(l) of the Credit Agreement is hereby amended
by deleting the term "Tranche 2 Convertible Term Loans" appearing therein and
inserting the term "Tranche 2 Converted Term Loans" in lieu thereof.
16. Section 4.02(n) of the Credit Agreement is hereby amended
by inserting the following new sentence at the end thereof:
"All outstanding Tranche 3 Revolving Loans shall be repaid in
full on the Tranche 3 Revolving Loan Maturity Date."
17. Section 5 of the Credit Agreement is hereby amended by
inserting the following new Sections 5.20 and 5.21 immediately following Section
5.19 appearing in said Section:
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"5.20 OVERRIDE OF TOTAL REVOLVING LOAN COMMITMENT. At the time
of each Credit Event, and after giving effect to such Credit Event, (x)
the sum of (i) the aggregate principal amount of outstanding Revolving
Loans PLUS (ii) the aggregate principal amount of outstanding Swingline
Loans plus (iii) the Letter of Credit Outstandings, in each case at
such time (after giving effect to such Credit Event), shall not exceed
the Revolving Loan Cap Amount as then in effect and (y) the aggregate
principal amount of outstanding Revolving Loans of each Bank, when
added to such Bank's Revolving Percentage of (i) the Letter of Credit
Outstandings and (ii) the aggregate principal amount of the Swingline
Loans, in each case at such time (after giving effect to such Credit
Event), shall not exceed such Bank's Revolving Percentage of the
Revolving Loan Cap Amount as then in effect.
5.21 OVERRIDE OF TOTAL TRANCHE 3 REVOLVING LOAN COMMITMENT. At
the time of each Credit Event that includes the incurrence of Tranche 3
Revolving Loans by the Borrower (i) the Total Unutilized Revolving
Commitment must be zero and (ii) the Tranche 3 Guaranty Payment Request
Date shall not have occurred."
18. Section 6.08 of the Credit Agreement is hereby amended
by (i) redesignating clause (e) thereof as clause (f), and (ii) inserting the
following new clause (e) immediately following clause (d) thereof:
"(e) All proceeds of the Tranche 3 Revolving Loans shall be
used by the Borrower and its Subsidiaries for working capital and
general corporate purposes, to the extent permitted by this Agreement."
19. Section 7.01 of the Credit Agreement is hereby amended by
deleting clause (k) thereof and inserting the following new clause (k) in lieu
thereof:
"(k) MINIMUM EBITDA CERTIFICATE. On or prior to June 21, 2002,
a certificate of the chief financial officer or treasurer of the
Borrower, (x) certifying (i) as to the Consolidated EBITDA of Holdings
and its Subsidiaries for the period from January 1, 2002 through May
31, 2002 (taken as one accounting period) and (ii) that no Default or
Event of Default has occurred and is continuing (or, if a Default or
Event of Default has occurred and is continuing, identifying each such
Default or Event of Default), and (y) attaching thereto (i) the
consolidated statement of income for Holdings and its Subsidiaries (on
a consolidated basis) for each monthly accounting period that ends
after January 1, 2002 and on or prior to May 31, 2002 and (ii) the
calculations necessary to establish compliance with Section 8.17 as of
May 31, 2002."
20. Section 7 of the Credit Agreement is hereby further
amended by inserting the following new Section 7.18 at the end thereof.
"7.18 MORTGAGE AMENDMENTS. Each Credit Party party to a
Mortgage hereby agrees to deliver to the Collateral Agent, or cause to
be delivered to the Collateral Agent, within 45 days following the
Fifth Amendment Effective Date (x) fully executed counterparts of
amendments (the "Mortgage Amendments"), in form and substance
reasonably satisfactory to the Collateral Agent, to each Mortgage as
may be reasonably
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specified by the Collateral Agent, together with evidence that
counterparts of each of the Mortgage Amendments have been delivered
to the title company insuring the Lien on the relevant Mortgage for
recording in all places to the extent necessary or desirable, in the
reasonable judgment of the Collateral Agent, is effective to
maintain a valid and enforceable first priority mortgage lien on the
relevant Mortgaged Properties in favor of the Collateral Agent for
the benefit of the Secured Creditors and (y) either endorsements to
the relevant existing Mortgage Policies or new Mortgage Policies
assuring the Collateral Agent that each Mortgage so specified by the
Collateral Agent, after giving effect to the respective Mortgage
Amendment, is a valid and enforceable first priority mortgage lien
on the respective Mortgaged Property, free and clear of all defects
and encumbrances, except Permitted Encumbrances."
21. Section 8.05(ii) of the Credit Agreement by inserting
the text "Subject to Section 8.18," at the beginning thereof.
22. Section 8.07 of the Credit Agreement is hereby amended
by inserting the following new clause (c) at the end thereof:
"(c) Notwithstanding anything to the contrary contained in
this Section 8.07, Holdings and the Borrower will not, and will not
permit any of their Subsidiaries to, make Capital Expenditures in
excess of the sum of (i) $35,000,000 in the aggregate for Holdings and
all of its Subsidiaries taken together during the fiscal year of
Holdings ending December 31, 2002 and (ii) $2,500,000 of cash Capital
Expenditures of the type referred to in the last sentence of Section
8.07(a)."
23. Notwithstanding anything to the contrary contained in
Section 8.05, neither the Borrower nor any other Credit Party shall be permitted
to make any Permitted Acquisition on and after the Fifth Amendment Effective
Date to and including December 31, 2002; it being understood and agreed that the
Borrower shall be permitted to acquire a joint venture interest in ▇▇▇▇ Mexico
S.A. de C.V. for aggregate consideration (including cash and non-cash
consideration) not to exceed $3,500,000.
24. Section 8.08 of the Credit Agreement is hereby amended by
deleting the portion of the table appearing therein from March 31, 2002 through
December 31, 2002, and inserting in lieu thereof the following:
"March 31, 2002 7.25:1.00
June 30, 2002 7.25:1.00
September 30, 2002 6.60:1.00
December 31, 2002 5.25:1.00".
25. Section 8.09 of the Credit Agreement is hereby amended by
deleting the portion of the table appearing therein from March 31, 2002 through
December 31, 2002, and inserting in lieu thereof the following:
"March 31, 2002 1.70:1.00
June 30, 2002 1.80:1.00
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September 30, 2002 1.90:1.00
December 31, 2002 2.20:1.00".
26. Section 8.10 of the Credit Agreement is hereby amended by
deleting the portion of the table appearing therein from March 31, 2002 through
December 31, 2002, and inserting in lieu thereof the following:
"March 31, 2002 0.70:1.00
June 30, 2002 0.70:1.00
September 30, 2002 0.75:1.00
December 31, 2002 0.95:1.00".
27. Section 8 of the Credit Agreement is hereby amended by
inserting the following new Sections 8.17 and 8.18 at the end thereof:
"8.17 MINIMUM EBITDA. Holdings and the Borrower will not
permit Consolidated EBITDA for the period from January 1, 2002 through
and including May 31, 2002 (taken as one accounting period) to be less
than $35,000,000.
8.18 UTILIZATION. Holdings and the Borrower will not permit
(i) the sum of (x) the Total Unutilized Revolving Loan Commitment PLUS
(y) the Total Unutilized Tranche 3 Revolving Loan Commitment PLUS (z)
cash and Cash Equivalents of Holdings and its Domestic Subsidiaries to
be less than $15,000,000 on the last day of any fiscal month of
Holdings ending on or after June 30, 2002 and (ii) the sum of (x) the
Total Unutilized Revolving Loan Commitment PLUS (y) cash and Cash
Equivalents of Holdings and its Domestic Subsidiaries to be less than
$15,000,000 on December 31, 2002."
28. Section 9.08 of the Credit Agreement is hereby amended by
deleting the text "Section 12 of the Guaranty" appearing therein and inserting
the text "Section 12 of the Subsidiary Guaranty" in lieu thereof.
29. Section 9 of the Credit Agreement is hereby further
amended by (x) inserting the word "or" at the end of Section 9.10 of the Credit
Agreement and (y) inserting the following new Section 9.11 immediately following
Section 9.10 of the Credit Agreement:
"9.11 TRANCHE 3 GUARANTY. At any time prior to the termination
of the Total Tranche 3 Revolving Loan Commitment or when any Tranche 3
Obligations are outstanding, and unless otherwise waived in writing by
the Required Tranche 3 Banks (a) any Tranche 3 Guaranty or any
provision thereof shall cease to be in full force or effect as to any
Tranche 3 Guarantor, or any Tranche 3 Guarantor or any Person acting by
or on behalf of any Tranche 3 Guarantor shall deny or disaffirm such
Tranche 3 Guarantor's obligations under the respective Tranche 3
Guaranty; or (b) any Tranche 3 Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to the respective Tranche 3
Guaranty (other than a payment obligation under the respective Tranche
3 Guaranty), and such default shall continue unremedied for 15 or more
days after notice to the applicable Tranche 3 Guarantor and the
Administrative Agent by any Tranche 3 Revolving Loan Bank ; or (c) any
Tranche 3 Guarantor shall default in the payment of any amount when due
in respect
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of the Guaranteed Obligations (as defined in the respective Tranche
3 Guaranty), and such default shall continue unremedied for three or
more days; or (d) a Tranche 3 Guaranty Event of Default (as defined
in the respective Tranche 3 Guaranty) shall have occurred;".
30. The definition of "Bank Default" appearing in Section
10.01 of the Credit Agreement is hereby amended by deleting the text "or (d)"
appearing therein and inserting the text ", (d), (f) or (h)" in lieu thereof.
31. Section 10 of the Credit Agreement is hereby further
amended by (i) deleting the definitions of "Applicable Margin", "Commitment",
"Fourth Amendment", "Fourth Amendment Effective Date", "Loan", "Minimum
Borrowing Amount", "Note", "Required Banks", "Test Period", "Third Amendment
Effective Date", "Total Commitment", and "Tranche" and "Tranche 2 Conversion
Date" appearing therein and (ii) inserting the following new definitions in the
appropriate alphabetical order:
"Additional Tranche 3 Revolving Loan Commitment Amount" shall
have the meaning provided in Section 1.16.
"Applicable Margin" shall mean (I) prior to the Fifth
Amendment Effective Date, for purposes of calculating the applicable
interest rate for any day for any Revolving Loan, Tranche 2 Revolving
Loan, A Term Loan or B Term Loan, the appropriate applicable percentage
set forth below corresponding to the Leverage Ratio in effect as of the
most recent Determination Date:
=========================================================================================================================
Applicable Margin
----------------------------------------------------------
For Revolving Loans, For B Term Loans
Tranche 2 Revolving Loans
and A Term Loans
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Base
Pricing Eurodollar Rate Eurodollar Base Rate
Level Leverage Ratio Loans Loans Loans Loans
-------------------------------------------------------------------------------------------------------------------------
I more than 5.0:1.00 2.25% 1.25% 2.75% 1.75%
-------------------------------------------------------------------------------------------------------------------------
II more than 4.5:1.0 less than or equal to 5.0:1.0 2.00% 1.00% 2.50% 1.50%
-------------------------------------------------------------------------------------------------------------------------
III more than 3.5:1.00 less than or equal to 4.5:1.0 1.75% 0.75% 2.25% 1.25%
-------------------------------------------------------------------------------------------------------------------------
IV more than 3.0:1.0 less than or equal to 3.5:1.0 1.50% 0.50% 2.00% 1.00%
-------------------------------------------------------------------------------------------------------------------------
V more than 2.5:1.0 less than or equal to 3.0:1.0 1.25% 0.25% 2.00% 1.00%
-------------------------------------------------------------------------------------------------------------------------
VI less than or equal to 2.5:1.0 1.00% 0% 2.00% 1.00%
-------------------------------------------------------------------------------------------------------------------------
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and (II) on and after the Fifth Amendment Effective Date, for purposes
of calculating the applicable interest rate for any day for any
Revolving Loan, A Term Loan, B Term Loan or Tranche 2 Converted Term
Loan, the appropriate applicable percentage set forth below
corresponding to the Leverage Ratio in effect as of the most recent
Determination Date:
=========================================================================================================================
Applicable Margin
----------------------------------------------------------
For Revolving Loans, For B Term Loans
Tranche 2 Converted Term Loans
and A Term Loans
-------------------------------------------------------------------------------------------------------------------------
Base
Pricing Eurodollar Rate Eurodollar Base Rate
Level Leverage Ratio Loans Loans Loans Loans
-------------------------------------------------------------------------------------------------------------------------
I more than 6.0:1.0 3.75% 2.75% 4.25% 3.25%
-------------------------------------------------------------------------------------------------------------------------
II more than 5.5:1.0 less than or equal to 6.0:1.0 3.50% 2.50% 4.00% 3.00%
-------------------------------------------------------------------------------------------------------------------------
III more than 5.0:1.00 less than or equal to 5.5:1.0 3.25% 2.25% 3.75% 2.75%
-------------------------------------------------------------------------------------------------------------------------
IV more than 4.5:1.0 less than or equal to 5.0:1.0 3.00% 2.00% 3.50% 2.50%
-------------------------------------------------------------------------------------------------------------------------
V more than 3.5:1.0 less than or equal to 4.5:1.0 2.50% 1.50% 3.25% 2.25%
-------------------------------------------------------------------------------------------------------------------------
VI more than 3.0:1.0 less than or equal to 3.5:1.0 2.00% 1.00% 3.00% 2.00%
-------------------------------------------------------------------------------------------------------------------------
VII more than 2.5:1.0 less than or equal to 3.0:1.0 1.75% 0.75% 3.00% 2.00%
-------------------------------------------------------------------------------------------------------------------------
VIII less than or equal to 2.5:1.0 1.50% 0.50% 3.00% 2.00%
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The Applicable Margin shall be determined and adjusted
quarterly on each Determination Date; PROVIDED, HOWEVER, that if
Holdings fails to provide the officer's certificate to the
Administrative Agent as required by Section 7.01(e) for the last day of
the most recently ended fiscal quarter of Holdings preceding the
Determination Date, the Applicable Margins from such Determination Date
shall be based on Pricing Level I until such time as an appropriate
officer's certificate is provided, whereupon the Applicable Margins
shall be determined by the Leverage Ratio as of the last day of the
most recently ended fiscal quarter of Holdings preceding such
Determination Date. Each Applicable Margin shall be effective from one
Determination Date until the next Determination Date. Any adjustments
in the Applicable Margins shall be applicable to all existing Loans and
Letters of Credit as well as any new Loans and Letters of Credit made
or issued. Notwithstanding anything to the contrary contained herein,
(i) with respect to each C Term Loan Sub-Facility, to the extent then
outstanding, the Applicable Margins shall be that percentage set forth
in or calculated in accordance with the relevant C Term Loan Commitment
Agreement, (ii) on and after the Fifth Amendment Effective Date to but
not including the first Determination Date after the Fifth Amendment
Effective Date,
-11-
the Applicable Margin shall be determined in accordance with Pricing
Level I set forth above and (iii) with respect to the Tranche 3
Revolving Loan Facility, the Applicable Margin shall be (x) 1.00% in
the case of Base Rate Loans and (y) 2.00% in the case of Eurodollar
Loans.
"Commitment" shall mean any of the commitments of any Bank,
I.E., whether the A Term Loan Commitment, B Term Loan Commitment, C
Term Loan Commitment, Revolving Loan Commitment, Tranche 2 Revolving
Loan Commitment or Tranche 3 Revolving Loan Commitment.
"Determination Date" shall have the meaning provided in the
definition of "Applicable Commitment Fee Percentage".
"Fifth Amendment" shall mean the Fifth Amendment to this
Agreement, dated as of February 27, 2002.
"Fifth Amendment Effective Date" shall have the meaning
provided in the Fifth Amendment.
"Loan" shall mean, collectively, each Term Loan, Tranche 2
Converted Term Loan, Revolving Loan, Tranche 2 Revolving Loan, Tranche
3 Revolving Loan, in each case, and Swingline Loan made by any Bank
hereunder.
"Minimum Borrowing Amount" shall mean (i) with respect to Term
Loans $5,000,000, (ii) with respect to Revolving Loans and Tranche 3
Revolving Loans, in each case maintained as Eurodollar Loans,
$1,000,000 (and multiples of $500,000 in excess thereof), (iii) with
respect to Revolving Loans and Tranche 3 Revolving Loans, in each case
maintained as Base Rate Loans, $500,000 (and multiples of $100,000 in
excess thereof) and (iv) with respect to Swingline Loans, $100,000.
"Mortgage Amendments" shall have the meaning provided in
Section 7.18.
"Non-Tranche 3 Obligations" shall mean all Obligations
(including, without limitation, any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law, but excluding any Other Secured
Obligations) other than the Tranche 3 Obligations.
"Non-Tranche 3 Secured Obligations" shall mean and include all
Non-Tranche 3 Obligations (including, without limitation, any interest
accruing subsequent to the filing of a petition of bankruptcy at the
rate provided for in the documentation with respect thereto, whether or
not such interest is an allowed claim under applicable law) and all
Other Secured Obligations.
"Note" shall mean each Term Note, each Revolving Note, each
Tranche 2 Revolving/Converted Term Note, each Tranche 3 Revolving Note
and the Swingline Note.
-12-
"Other Secured Obligations" shall mean any Interest Rate
Protection or Other Hedging Obligations under, and as defined in, the
various Security Documents, which Interest Rate Protection or Other
Hedging Obligations are secured pursuant to the various Security
Documents.
"Proceeds" shall mean "Proceeds" as such term is defined in
Section 9-102(a)(64) of the Uniform Commercial Code as in effect in the
State of
New York on the date hereof and, in any event, shall include,
without limitation, (a) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to Holdings or any of its
Subsidiaries from time to time with respect to any of the Collateral,
(b) any and all payments (in any form whatsoever) made or due and
payable to the Holdings or any of its Subsidiaries from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental
agency (or any Person acting under color of governmental authority) and
(c) any and all other amounts from time to time paid or payable under
or in connection with any of the Collateral.
"Remedial Action" shall mean any claim, proceeding or action
to foreclose upon, take possession or control of, sell, lease or
otherwise dispose of, or in any other manner realize, take steps to
realize or seek to realize upon, the whole or any part of any
Collateral, whether pursuant to the UCC, by foreclosure, by setoff, by
self-help repossession, by notification to account debtors, by deed in
lieu of foreclosure, by exercise of power of sale, by judicial action
or otherwise, or the exercise of any other remedies with respect to any
Collateral available under any of the Security Documents, or under
applicable law.
"Required Banks" shall mean Non-Defaulting Banks the sum of
whose outstanding Term Loans, Revolving Loan Commitments (or, after the
Total Revolving Loan Commitment has been terminated, outstanding
Revolving Loans and Revolving Percentages of outstanding Swingline
Loans and Letter of Credit Outstandings), Tranche 2 Revolving Loan
Commitments (or, after the Total Tranche 2 Revolving Loan Commitment
has been terminated, outstanding Tranche 2 Revolving Loans or Tranche 2
Converted Term Loans, as the case may be) and Tranche 3 Revolving Loan
Commitments (or, after the Total Tranche 3 Revolving Loan Commitment
has been terminated, outstanding Tranche 3 Revolving Loans) constitute
greater than 50% of the sum of (i) the total outstanding Term Loans of
Non-Defaulting Banks, (ii) the Total Revolving Loan Commitment less the
aggregate Revolving Loan Commitments of Defaulting Banks (or, after the
Total Revolving Loan Commitment has been terminated, the total
outstanding Revolving Loans of Non-Defaulting Banks and the aggregate
Revolving Percentages of all Non-Defaulting Banks of the total
outstanding Swingline Loans and Letter of Credit Outstandings at such
time), (iii) the Total Tranche 2 Revolving Loan Commitment less the
Tranche 2 Revolving Loan Commitments of Defaulting Banks (or, after the
Total Tranche 2 Revolving Loan Commitment has been terminated, the
total outstanding Tranche 2 Revolving Loans or Tranche 2 Converted Term
Loans, as the case may be, of Non-Defaulting Banks at such time), and
(iv) the Total Tranche 3 Revolving Loan Commitment less the Tranche 3
Revolving Loan Commitments of Defaulting Banks (or, after the Total
Tranche 3 Revolving Loan Commitment has been terminated, the total
outstanding Tranche 3 Revolving Loans of
-13-
Non-Defaulting Banks at such time). Notwithstanding anything to the
contrary contained in this definition, it is understood and agreed
that, to the extent that any payment in respect of the principal of
any Tranche 3 Revolving Loan (or any part thereof) has been made by
any Tranche 3 Guarantor pursuant to any Tranche 3 Guaranty, then
such principal amount (or part thereof, as the case may be) shall
not be included in the foregoing calculations of Required Banks,
unless the Total Commitment and all Non-Tranche 3 Obligations,
together with all interest owing with respect thereto, have been
indefeasibly paid in full in cash.
"Required Tranche 3 Banks" shall mean those Non-Defaulting
Banks, the sum of whose outstanding Tranche 3 Revolving Loan
Commitments (or, if after the Total Tranche 3 Revolving Loan Commitment
has been terminated, outstanding Tranche 3 Revolving Loans) represent
an amount greater than 50% of the Total Tranche 3 Revolving Loan
Commitment less the aggregate Tranche 3 Revolving Loan Commitments of
Defaulting Banks (or, if after the Total Tranche 3 Revolving Loan
Commitment has been terminated, the total outstanding Tranche 3
Revolving Loans of Defaulting Banks).
"Revolving Loan Cap Amount" shall mean $43,500,000.
"Secured Obligations" shall mean and include all Non-Tranche 3
Secured Obligations and, subject to the provisions of Section 14, all
Tranche 3 Obligations.
"Test Period" shall mean, at any time, each period of four
consecutive fiscal quarters then last ended, in each case taken as one
accounting period; PROVIDED that, notwithstanding anything to the
contrary contained above or in Section 13.07 or otherwise required by
generally accepted accounting principles, and solely in determining
compliance with Sections 8.08, 8.09 and 8.10, to the extent the
respective Test Period includes (w) the fiscal quarter of Holdings
ended June 30, 2001, Consolidated EBITDA for such fiscal quarter shall
be deemed to be $27,000,000, (x) the fiscal quarter of Holdings ended
September 30, 2001, Consolidated EBITDA for such fiscal quarter shall
be deemed to be $21,000,000 and (y) the fiscal quarter of Holdings
ended December 31, 2001, Consolidated EBITDA for such fiscal quarter
shall be deemed to be $13,100,000.
"Third Amendment Effective Date" shall mean November 13, 2001.
"Total Commitment" shall mean the sum of the Total A Term Loan
Commitment, the Total B Term Loan Commitment, the Total C Term Loan
Commitment, the Total Revolving Loan Commitment, the Total Tranche 2
Revolving Loan Commitment and the Total Tranche 3 Revolving Loan
Commitment.
"Total Tranche 3 Revolving Loan Commitment" shall mean the sum
of the Tranche 3 Revolving Loan Commitments of each of the Banks.
"Total Unutilized Tranche 3 Revolving Loan Commitment" shall
mean, at any time (i) the Total Tranche 3 Revolving Loan Commitment at
such time LESS (ii) the aggregate principal amount of all Tranche 3
Revolving Loans outstanding at such time.
-14-
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being seven separate
Tranches, I.E., A Term Loans, B Term Loans, C Term Loans, Revolving
Loans, Swingline Loans, Tranche 2 Converted Term Loans and Tranche 3
Revolving Loans.
"Tranche 2 Conversion Date" shall mean the Fifth Amendment
Effective Date.
"Tranche 3 Guarantor" shall mean, collectively, each
guarantor, in whole or in part, of any obligation under the Tranche 3
Revolving Loan Facility.
"Tranche 3 Guaranty" shall mean, collectively, one or more
guaranties executed and delivered by any Tranche 3 Guarantor pursuant
to the terms of the Fifth Amendment.
"Tranche 3 Guaranty Payment Request Date" shall mean the day
on which the first request or demand for payment is made by the
Administrative Agent or any Tranche 3 Revolving Loan Bank to any
Tranche 3 Guarantor under any Tranche 3 Guaranty in respect of any part
of the Guaranteed Obligations (as defined therein) which is due but
unpaid.
"Tranche 3 Increase Date" shall have the meaning provided in
Section 1.16.
"Tranche 3 Increase Notice" shall have the meaning provided in
Section 1.16.
"Tranche 3 Obligations" shall mean all Obligations
constituting the principal of, or interest (including, without
limitation, any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim
under applicable law) on, Tranche 3 Revolving Loans or under the
Tranche 3 Revolving Notes, Tranche 3 Revolving Loan Commitment Fees,
and any other amounts owing pursuant to the terms of this Agreement or
any other Credit Documents with respect to the Tranche 3 Revolving
Loans.
"Tranche 3 Revolving Loan" shall have the meaning provided in
Section 1.01(h).
"Tranche 3 Revolving Loan Bank" shall mean each Bank with a
Tranche 3 Revolving Loan Commitment, outstanding Tranche 3 Revolving
Loans or any other obligations in respect of the Tranche 3 Revolving
Loan Facility.
"Tranche 3 Revolving Loan Commitment" shall mean, with respect
to each Bank, the amount set forth opposite such Bank's name in Annex I
directly below the column entitled "Tranche 3 Revolving Loan
Commitment," as the same may be reduced or terminated pursuant to
Sections 3.02, 3.03 and/or 9.
"Tranche 3 Revolving Loan Commitment Fee" shall have the
meaning provided in Section 3.01(f).
"Tranche 3 Revolving Loan Facility" shall mean the Tranche
evidenced by the Total Tranche 3 Revolving Loan Commitment.
-15-
"Tranche 3 Revolving Loan Maturity Date" shall mean January 5,
2003.
"Tranche 3 Revolving Note" shall have the meaning provided in
Section 1.05(a).
"Unutilized Tranche 3 Revolving Loan Commitment" with respect
to any Bank at any time, shall mean such Bank's Tranche 3 Revolving
Loan Commitment at such time, if any, less the sum of the aggregate
principal amount of all Tranche 3 Revolving Loans made by such Bank.
32. Section 13.04(b) of the Credit Agreement is hereby amended
by (i) deleting the phrase "Revolving Loan Commitments (and related outstanding
Obligations hereunder), Tranche 2 Revolving Loan Commitments (and related
outstanding Obligations hereunder) and/or its outstanding Term Loans and/or
Tranche 2 Converted Term Loans" appearing in clause (x) thereof and inserting in
lieu thereof the phrase "Revolving Loan Commitments (and related outstanding
Obligations hereunder), Tranche 3 Revolving Loan Commitments (and related
outstanding Obligations hereunder), its outstanding Term Loans and/or its
outstanding Tranche 2 Converted Term Loans", (ii) deleting the phrase "Revolving
Loan Commitments (and related outstanding Obligations hereunder), Tranche 2
Revolving Loan Commitments (and related outstanding Obligations hereunder)
and/or outstanding principal amount of Term Loans and/or Tranche 2 Converted
Term Loans" appearing in clause (y) thereof and inserting in lieu thereof the
phrase "Revolving Loan Commitments (and related outstanding Obligations
hereunder), Tranche 3 Revolving Loan Commitments (and related outstanding
Obligations hereunder), outstanding Term Loans and/or outstanding Tranche 2
Converted Term Loans", (iii) deleting each phrase "Revolving Loan Commitments,
Tranche 2 Revolving Loan Commitments, Term Loans and/or Tranche 2 Converted Term
Loans" appearing in the provisos contained therein and inserting in lieu thereof
"Revolving Loan Commitments, Tranche 3 Revolving Loan Commitments, Term Loans
and/or Tranche 2 Converted Term Loans", (iv) deleting the phrase "To the extent
that an assignment of all or any portion of a Bank's Revolving Loan Commitment
or Tranche 2 Revolving Loan Commitment" appearing in the fourth sentence thereof
and inserting in lieu thereof "To the extent that an assignment of all or any
portion of a Bank's Revolving Loan Commitment or Tranche 3 Revolving Loan
Commitment".
33. The parties hereto hereby agree that, without the written
consent of Holdings, the Borrower, the Required Banks (or each Bank, to the
extent required by Section 13.12) and each Tranche 3 Guarantor, (i) the
percentages in the pricing grid set forth in the definition of "Applicable
Margin" in this Agreement shall not be amended or modified to increase such
percentages, solely as such increase would increase the interest rates
applicable to Tranche 3 Revolving Loans, (ii) Section 3.01(f), Sections 3.03(h)
and (i), Section 4.01 (solely in respect of the last sentence thereof), Section
5.21 and Section 14 shall not be amended, modified or waived in any respect,
(iii) the Tranche 3 Revolving Loan Maturity Date shall not be extended, (iv) the
Total Tranche 3 Revolving Loan Commitment shall not be increased (other than
pursuant to Section 1.16 of the Credit Agreement) and (v) the aggregate
principal amount of all outstanding Tranche 3 Revolving Loans shall not exceed
$19,000,000; it being understood that, without such requisite consent, no
amendment, modification or waiver of a type referred to in this Section 33 shall
have any force or effect.
-16-
34. The Credit Agreement is hereby further amended by
inserting the following new Section 14 at the end thereof:
"Section 14. SPECIAL PROVISIONS WITH RESPECT TO THE TRANCHE 3
REVOLVING LOAN FACILITY. To induce the Required Banks to enter into the
Fifth Amendment and thereby permit the making of the Tranche 3
Revolving Loans, the following agreements are made by the Tranche 3
Revolving Loan Banks (and their successors and assigns) for the benefit
of the Banks holding Non-Tranche 3 Obligations hereunder (except that
the agreement contained in Section 14.04 is made by the Banks party to
the Fifth Amendment (and their successors and assigns) for the benefit
of the Tranche 3 Revolving Loan Banks):
14.01 PRIORITIES WITH RESPECT TO COLLATERAL. The Banks
acknowledge and agree that all Secured Obligations shall be secured
pursuant to the Security Documents in accordance with the terms
thereof; PROVIDED that, notwithstanding anything to the contrary
contained in this Agreement or any other Credit Document, as between
the Tranche 3 Obligations and Non-Tranche 3 Secured Obligations, the
following priorities and agreements with respect to the Collateral
shall apply:
(i) The Liens created under the Security Documents on the
Collateral and the Proceeds thereof securing the Non-Tranche 3 Secured
Obligations shall be superior and prior to the Liens of the holders of
(or claimants in respect of) the Tranche 3 Obligations with respect
thereto as set forth in this Section 14 and in the Security Agreement.
(ii) The holders of the Tranche 3 Obligations and each
Tranche 3 Guarantor (or any Affiliate thereof) which obtains a claim
in respect of the Tranche 3 Obligations, in each case, for
themselves and their successors and assigns, hereby acknowledge and
agree for the benefit of the other Secured Creditors that they shall
not be entitled to receive, in respect of the Tranche 3 Obligations
held by them, any of the proceeds of any Collateral following the
occurrence of an Event of Default or received as a result of the
enforcement of rights pursuant to the Security Documents until all
Non-Tranche 3 Secured Obligations have been indefeasibly paid in
full in cash. The Tranche 3 Revolving Loan Banks (for themselves and
their successors and assigns) hereby agree that, to the extent that
their outstanding Tranche 3 Revolving Loans are excluded for
purposes of determining the "Required Banks" in accordance with the
last sentence appearing in the definition thereof, they shall have
no rights to institute foreclosure under the Security Documents, but
shall only be entitled to share in the proceeds of the Collateral as
realized and following the indefeasible payment in full in cash of
all Non-Tranche 3 Secured Obligations.
(iii) Until all Non-Tranche 3 Secured Obligations have been
indefeasibly paid in full in cash, each holder of the Tranche 3
Obligations, and each Tranche 3 Guarantor who obtains a claim in
respect of the Tranche 3 Obligations, in each case, hereby agrees (x)
not to exercise, with respect to the Tranche 3 Obligations, any right
of setoff or counterclaim with respect to the Collateral or any
Proceeds thereof, (y) that all Proceeds of Collateral shall be paid to
the Administrative Agent for application to the Non-Tranche 3 Secured
Obligations and (z) that any Proceeds of Collateral received by any
holder of (or claimant in respect of) the Tranche 3 Obligations in its
capacity as such and any other
-17-
cash or other property received by any holder of (or claimant in
respect of) the Tranche 3 Obligations in its capacity as such shall
be segregated and held in trust and paid over to the Administrative
Agent for the benefit of the holders of all Non-Tranche 3 Secured
Obligations in the same form as received, with any necessary
endorsements.
(iv) If the Collateral Agent releases its liens in any
Collateral in connection with the sale, lease, transfer or other
disposition thereof, the holders of (and claimants in respect of) the
Tranche 3 Obligations shall execute and deliver to the Collateral Agent
such termination statements, release documents, consents and other
documents as the Collateral Agent may request to effectively release,
and facilitate the release of, the Liens held by the Collateral Agent
in such Collateral.
The provisions of this Section 14.01 shall be effective at all
times during the term of this Agreement, and notwithstanding (without
limitation): (i) the initiation of any bankruptcy, moratorium,
reorganization or other insolvency proceeding with respect to Holdings
or any of its Subsidiaries (and all references to Holdings or any of
its Subsidiaries shall include any such entity as debtor in possession
or any receiver or trustee for such entity); (ii) the priorities which
would otherwise result under the terms of the respective Security
Documents or under applicable law; (iii) the taking of possession of
any Collateral by any Tranche 3 Revolving Loan Bank; or (iv) any other
matter whatsoever; and shall continue in full force and effect until
the Total Commitment has terminated and all Secured Obligations have
been repaid in full.
14.02 CERTAIN DISPOSITIONS OF COLLATERAL. Notwithstanding
anything to the contrary contained above, to the extent Collateral is
sold in accordance with the requirements of Section 8.02 of this
Agreement (and is not sold as a result of any Remedial Action pursuant
to a Security Document) at a time when no Default or Event of Default
exists pursuant to Section 9.05, the proceeds thereof shall be applied
in accordance with the requirements of Section 4.02 of this Agreement.
14.03 FURTHER ASSURANCES. Each of the holders of the Tranche 3
Obligations agrees to take such further action and shall execute and
deliver to the Administrative Agent, the Collateral Agent and the Banks
such additional documents and instruments (in recordable form, if
requested) as the Administrative Agent, the Collateral Agent or the
Banks may reasonably request to effectuate the terms of, and the
priorities established by, this Section 14.
14.04 AGREEMENT FOR BENEFIT OF TRANCHE 3 REVOLVING LOAN BANKS.
Each Bank which executes and delivers a counterpart of the Fifth
Amendment hereby irrevocably agrees, for the benefit of the Tranche 3
Revolving Loan Banks, that such Bank (and its successors and assigns)
will not, unless the prior written consent of the Required Tranche 3
Banks has been obtained, agree to any amendment or modification to this
Agreement to the extent such amendment or modification would amend,
modify or alter any of the provisions of this Section 14 or any defined
term as used herein. The agreements contained in this Section 14.04 are
made for the benefit of the Tranche 3 Revolving Loan Banks and may not
be amended or modified without the prior written consent of the
Required Tranche 3 Banks."
-18-
35. Annex I to the Credit Agreement is hereby amended by
deleting the same in its entirety and inserting in lieu thereof the new Annex I
in the form attached hereto.
36. Exhibit A to the Credit Agreement is hereby amended by
inserting the phrase "[Tranche 2 Converted Term Loans] [Tranche 3 Revolving
Loans]" immediately after the phrase "[Revolving Loans]" appearing therein.
37. The Credit Agreement is hereby further amended by
inserting a new Exhibit B-7 thereto in the form of Exhibit B-7 attached hereto.
38. The Credit Agreement is hereby further amended by deleting
Exhibit M thereto in its entirety and inserting in lieu thereof a new Exhibit M
thereto in the form of Exhibit M attached hereto.
II. Amendments to the Security Agreement.
1. Section 7.4 of the Security Agreement is hereby amended
by deleting such Section in its entirety and inserting the following new Section
7.4 in lieu thereof:
"7.4 APPLICATION OF PROCEEDS. (a) All moneys collected by the
Collateral Agent upon any sale or other disposition of the Collateral
(or, to the extent the Pledge Agreement or the Mortgages require
proceeds of collateral thereunder to be applied in accordance with the
provisions of this Agreement, the Pledgee under the Pledge Agreement or
the Mortgagee under such Mortgage), together with all other moneys
received by the Collateral Agent hereunder, shall be applied as
follows:
(i) FIRST, to the payment of all Obligations owing to
the Collateral Agent, the Pledgee or the Mortgagee resulting
from their acting as Collateral Agent, Pledgee or Mortgagee,
respectively;
(ii) SECOND, to the extent proceeds remain after the
application pursuant to the preceding clause (i), an amount
equal to the outstanding Non-Tranche 3 Secured Obligations
shall be paid to the Secured Creditors as provided in Section
7.4(e), with each Secured Creditor receiving an amount equal
to its outstanding Non-Tranche 3 Secured Obligations or, if
the proceeds are insufficient to pay in full all such
Non-Tranche 3 Secured Obligations, its PRO RATA Share of the
amount remaining to be distributed, to be applied, with
respect to the Credit Document Obligations, first to the
payment of interest in respect of the unpaid principal amount
of Loans (other than the Tranche 3 Revolving Loans)
outstanding, second to the payment of principal of Loans
(other than the Tranche 3 Revolving Loans) outstanding, then
to the other Credit Document Obligations (other than the
Tranche 3 Obligations);
(iii) THIRD, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii), an
amount equal to the outstanding Tranche 3 Obligations shall be
paid to the Secured Creditors as provided in Section 7.4(e),
with each Secured Creditor receiving an amount equal to its
outstanding Tranche
-19-
3 Obligations or, if the proceeds are insufficient to pay in
full all such Tranche 3 Obligations, its PRO RATA Share of the
amount remaining to be distributed; and
(iv) FOURTH, to the extent proceeds remain after the
applications pursuant to preceding clauses (i) through (iii),
and following the termination of this Agreement pursuant to
Section 10.9 hereof, to the relevant Assignor, to the extent
directed by such Assignor or a court of competent
jurisdiction, or to whomever may be lawfully entitled to
receive such surplus.
(b) For purposes of this Agreement, "PRO RATA Share" shall
mean, when calculating a Secured Creditor's portion of any distribution
or amount, that amount (expressed as a percentage) equal to a fraction
the numerator of which is the then unpaid amount of such Secured
Creditor's Non-Tranche 3 Secured Obligations or Tranche 3 Obligations
or, as the case may be, and the denominator of which is the then
outstanding amount of all Non-Tranche 3 Secured Obligations or Tranche
3 Obligations as the case may be.
(c) When payments to Secured Creditors are based upon their
respective PRO RATA Shares, the amounts received by such Secured
Creditors hereunder shall be applied (for purposes of making
determinations under this Section 7.4 only) (i) FIRST, to their
Non-Tranche 3 Secured Obligations and (ii) SECOND, to their Tranche 3
Obligations. If any payment to any Secured Creditor of its PRO RATA
Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of
the unpaid Non-Tranche 3 Secured Obligations or Tranche 3 Obligations,
as the case may be, of the other Secured Creditors, with each Secured
Creditor whose Non-Tranche 3 Secured Obligations or Tranche 3
Obligations, as the case may be, have not been paid in full to receive
an amount equal to such excess amount multiplied by a fraction the
numerator of which is the unpaid Non-Tranche 3 Secured Obligations or
Tranche 3 Obligations, as the case may be, of such Secured Creditor and
the denominator of which is the unpaid Non-Tranche 3 Secured
Obligations or Tranche 3 Obligations, as the case may be, of all
Secured Creditors entitled to such distribution.
(d) All payments required to be made to (i) the Bank Creditors
hereunder shall be made to the Administrative Agent for the account of
the respective Bank Creditors and (ii) the Interest Rate Creditors
hereunder shall be made to the paying agent under the applicable
Interest Rate Protection Agreement or Other Hedging Agreement or, in
the case of Interest Rate Protection Agreements or Other Hedging
Agreements without a paying agent, directly to the applicable Interest
Rate Creditor.
(e) For purposes of applying payments received in accordance
with this Section 7.4, the Collateral Agent shall be entitled to rely
upon (i) the Administrative Agent for a determination (which the
Administrative Agent agrees to provide upon request to the Collateral
Agent) of the outstanding Credit Document Obligations and (ii) upon any
Interest Rate Creditor for a determination (which each Interest Rate
Creditor agrees to provide upon request to the Collateral Agent) of the
outstanding Interest Rate Protection or Other Hedging Obligations owed
to such Interest Rate Creditor. Unless it has actual knowledge
(including by way of written notice from a Secured Creditor) to the
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contrary, the Administrative Agent under the Credit Agreement, in
furnishing information pursuant to the preceding sentence, and the
Collateral Agent, in acting hereunder, shall be entitled to assume that
(x) no Credit Document Obligations other than principal, interest and
regularly accruing fees are owing to any Bank Creditor and (y) no
Interest Rate Protection Agreements or Interest Rate Protection or
Other Hedging Obligations with respect thereto are in existence.
(f) It is understood that each Assignor shall remain liable to
the extent of any deficiency between (x) the amount of the Obligations
for which it is liable directly or as a Guarantor that are satisfied
with proceeds of the Collateral and (y) the aggregate outstanding
amount of such Obligations.
III. ACKNOWLEDGMENTS AND AGREEMENTS WITH RESPECT TO VARIOUS CREDIT
DOCUMENTS.
1. For the avoidance of doubt, each Credit Party hereby
acknowledges and confirms its due authorization, execution and delivery of all
Credit Documents (each Credit Document as amended, restated, modified and/or
supplemented through and including the date hereof) to which it is a party,
including all instruments, financing statements, agreements, certificates and
documents executed and delivered in connection therewith, and hereby ratifies
all actions heretofore taken in connection therewith.
2. Each Credit Party, by its execution (or acknowledgment, as
the case may be) and delivery of this Amendment, hereby consents to the
extensions of credit pursuant to the Credit Agreement (including, without
limitation, as amended by this Amendment). Each Credit Party further
acknowledges and agrees to the provisions of this Amendment and hereby agrees
for the benefit of the Banks that all extensions of credit (including as
contemplated by this Amendment) pursuant to the Credit Agreement (including,
without limitation, as amended by this Amendment, and as same may be further
amended, restated, modified and/or supplemented from time to time) shall be
fully entitled to all benefits of, and shall be fully guaranteed and secured
pursuant to and in accordance with the terms of, each of the Credit Documents,
as applicable.
IV. MISCELLANEOUS.
1. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
2. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Administrative Agent.
3. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF
NEW YORK.
-21-
4. This Amendment shall become effective on the date (the
"Fifth Amendment Effective Date") when:
(i) each Credit Party, the Required Banks and each Bank which
is providing a Tranche 3 Revolving Loan Commitment pursuant to this
Amendment shall have signed a counterpart hereof (whether the same or
different counterpart) and shall have delivered (including by way of
facsimile transmission) the same to the Administrative Agent at the
Notice Office;
(ii) each Tranche 3 Guarantor shall have duly authorized,
executed and delivered the respective Tranche 3 Guaranty in the form of
Exhibit I to this Amendment, and each Tranche 3 Guaranty shall be in
full force and effect;
(iii) the Administrative Agent shall have received for the
account of each Bank which is providing a Tranche 3 Revolving Loan
Commitment pursuant to this Amendment and requests the same, a Tranche
3 Revolving Note, in the amount, maturity and as otherwise provided in
this Amendment and Section 1.05 of the Credit Agreement (as amended
hereby);
(iv) the Administrative Agent shall have received from Holdings,
the Borrower and each Tranche 3 Guarantor true and correct certified
copies of resolutions of the Board of Directors (or equivalent) of such
Person with respect to the matters set forth in this Amendment, and
such resolutions shall be in form and substance satisfactory to the
Administrative Agent;
(v) the Administrative Agent shall have received from each
Tranche 3 Guarantor a certificate, dated the Fifth Amendment Effective
Date, signed by an appropriate officer of each Tranche 3 Guarantor,
certifying and attaching true and correct copies of the certificate of
limited partnership, partnership agreement or other organizational
documents of each Tranche 3 Guarantor, and all of the foregoing shall
be reasonably satisfactory to the Administrative Agent;
(vi) all corporate, partnership and legal proceedings and all
instruments and agreements in connection with the transactions
contemplated by the Credit Agreement and this Amendment shall be
reasonably satisfactory in form and substance to the Administrative
Agent, and the Administrative Agent shall have received all information
and copies of all documents and papers, including records of
proceedings, governmental approvals, good standing certificates and
bring-down telegrams or facsimiles, if any, which the Administrative
Agent reasonably may have requested in connection therewith, such
documents and papers where requested to be certified by proper
corporate, partnership or governmental authorities;
(vii) the Administrative Agent shall have received from (x)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to Holdings, the Borrower and one
of the Tranche 3 Guarantors, an opinion addressed to each Agent, the
Collateral Agent and each of the Banks and dated the Fifth Amendment
Effective Date, covering such matters incident to this Amendment and
the transactions contemplated herein as the Administrative Agent may
reasonably
-22-
request (including, without limitation, an opinion as to no conflict
with the Senior Subordinated Note Documents and appropriate opinions as
to the applicable Tranche 3 Guaranty) and otherwise in form and
substance satisfactory to the Administrative Agent and (b) from ▇▇▇▇▇▇
& ▇▇▇▇, L.L.P., counsel to the other Tranche 3 Guarantor, an opinion
addressed to each Agent, the Collateral Agent and each of the Tranche 3
Revolving Loan Banks and dated the Fifth Amendment Effective Date,
covering such matters incident to the respective Tranche 3 Guaranty as
the Administrative Agent may reasonably request and otherwise in form
and substance satisfactory to the Administrative Agent;
(viii) the Borrower shall have delivered to the Administrative
Agent an officer's certificate signed by an appropriate officer of the
Borrower in form and substance satisfactory to the Administrative
Agent, (x) establishing that the provision of the Tranche 3 Revolving
Loan Commitment pursuant to the terms of the Credit Agreement (as
amended by this Amendment) (including, without limitation, the guaranty
thereof pursuant to each Tranche 3 Guaranty) complies with the terms of
the Senior Subordinated Notes Indenture and (y) containing a
representation and warranty that (I) the incurrence of $19,000,000 of
Tranche 3 Revolving Loans is permitted pursuant to the Senior
Subordinated Note Indenture and (II) the Indebtedness evidenced by the
Tranche 3 Revolving Loans (and each Credit Event occurring after the
Fifth Amendment Effective Date) constitutes, or will constitute, as the
case may be, "Senior Debt" and "Designated Senior Debt" under, and as
defined in, the Senior Subordinated Note Indenture;
(ix) the Borrower shall have paid to each Bank which executed
and delivered to the Administrative Agent a counterpart of the Third
Amendment (prior to 5:00 p.m. on November 13, 2001) and this Amendment
(prior to 5:00 p.m. on February 27, 2002), a fee equal to the product
of (x) 1.50% MULTIPLIED BY (y) the quotient of (i) the number of days
during the period from and including the Third Amendment Effective Date
to but excluding the Fifth Amendment Effective Date DIVIDED BY (ii)
360, MULTIPLIED BY (z) the sum of (i) the aggregate principal amount of
such Bank's outstanding Term Loans on the Fifth Amendment Effective
Date, (ii) the aggregate amount of such Bank's Tranche 2 Converted Term
Loans on the Fifth Amendment Effective Date (after giving effect to
this Amendment) and (iii) such Bank's Revolving Percentage of the
Revolving Loan Cap Amount (as defined after giving effect to this
Amendment) on the Fifth Amendment Effective Date.
(x) the Borrower shall have paid to each Bank which executes
and delivers to the Administrative Agent a counterpart of this
Amendment on or before 5:00 p.m. (
New York time) on February 27, 2002,
a fee equal to 0.25% of the sum of (i) the aggregate principal amount
of such Bank's outstanding Term Loans on the Fifth Amendment Effective
Date, (ii) the aggregate principal amount of such Bank's Tranche 2
Converted Term Loans on the Fifth Amendment Effective Date (after
giving effect to this Amendment) and (iii) such Bank's Revolving Loan
Commitment on the Fifth Amendment Effective Date (after giving effect
to the reduction thereto pursuant to this Amendment); and
-23-
(xi) the Borrower shall have paid to the Administrative Agent
and the Banks all fees, costs and expenses (including, without
limitation, legal fees and expenses) payable to the Administrative
Agent and the Banks to the extent then due.
Unless the Administrative Agent has received actual notice from any
Bank that the conditions contained above have not been met, upon the
Administrative Agent's good faith determination that the conditions
described above have been met, the Fifth Amendment Effective Date shall
be deemed to have occurred, regardless of any subsequent determination
that one or more of the conditions thereto had not been met (although
the occurrence of the Fifth Amendment Effective Date shall not release
any Credit Party or any Tranche 3 Guarantor from any liability for
failure to satisfy one or more of the applicable conditions specified
above).
5. In order to induce the Banks to enter into this
Amendment, the Borrower hereby represents and warrants that (i) the
representations, warranties and agreements contained in Section 6 of the
Credit Agreement are true and correct in all material respects on and as of
the Fifth Amendment Effective Date, both before and after giving effect to
this Amendment and (ii) there exists no Default or Event of Default on the
Fifth Amendment Effective Date, after giving effect to the waivers and
amendments contained in this Amendment.
6. From and after the Fifth Amendment Effective Date, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
amended hereby.
* * *
-24-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
CONSOLIDATED CONTAINER HOLDINGS
LLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: Chief Financial Officer
CONSOLIDATED CONTAINER COMPANY
LLC
By: Consolidated Container
Holdings LLC, as its Sole
Member and Manager
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: Chief Financial Officer
BANKERS TRUST COMPANY,
Individually, as Administrative
Agent and as Collateral Agent
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: Director
JPMORGAN CHASE BANK (successor
by merger to ▇▇▇▇▇▇ Guaranty
Trust Company of
New York),
Individually and as
Documentation Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Vice President
CREDIT SUISSE FIRST BOSTON
(formally known as ▇▇▇▇▇▇▇▇▇,
Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation), Individually and
as Syndication Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Director
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: Director
ATHENA CDO, LIMITED
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Title: Executive Vice President
BANCO POPULAR DE PUERTO RICO
By /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------
Title: Vice President
BANK AUSTRIA CREDITANSTALT
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Title: Director
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Title: Managing Director
BANK OF MONTREAL
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Title: Director
THE BANK OF
NEW YORK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ ▇. ▇▇▇▇
-----------------------
Title: Assistant Agent
BANK POLSKA KASA OPIEKI, S.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Title: Vice President
BEDFORD CDO, LIMITED
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
Title: Executive Vice President
CAPTIVA III FINANCE, LTD.
By /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------
Title: Director
CAPTIVA IV FINANCE, LTD.
By /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------
Title: Director
DZ BANK AG DEUTSCHE ZENTRAL-
GENOSSENSCHAFTSBANK, FRANKFURT
AM MAIN, (successor by merger to DG BANK
DEUTSCHE GENOSSENSCHAFTSBANK AG), as a
Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
THE DAI-ICHI KANGYO BANK, LIMITED
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Title: Vice President
ERSTE BANK DER OESTERREINCHISCHEN
SPARKASSEN
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Title: Vice President
Erste Bank
New York Branch
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Title: Vice President
Erste Bank
New York Branch
FLEET NATIONAL BANK, N.A.
By /s/ Marwan Isbaih
------------------------------
Title: Director
FIRSTRUST BANK
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Duly Authorized Signatory
GRAYSTON CLO 2001-1 LTD.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Title: Associate Director
BAYERESCHE HYPO-UND VEREINSBANK
AG,
NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Title: Director
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Managing Director
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: Senior Vice President
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND
By /s/ ▇. ▇▇▇▇▇▇
--------------------------
Title: Authorized Signatory
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: Authorized Signatory
KZH CRESCENT LLC
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Authorized Agent
KZH CRESCENT-2 LLC
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Authorized Agent
KZH CRESCENT-3 LLC
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Authorized Agent
KZH PONDVIEW LLC
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Authorized Agent
▇▇▇▇▇▇▇▇ CDO, LTD
By: ▇▇▇▇▇▇▇▇▇ Capital Partners
LLC as its Collateral
Manager
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Partner
KZH WATERSIDE LLC
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Authorized Agent
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Deputy General Manager
NATIONAL CITY BANK
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Title: Account Officer
NATEXIS BANQUE POPULAIRES
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------
Title: Vice President & Group Manager
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
NORTH AMERICAN SENIOR FLOATING
RATE FUND INC.
By: ▇▇▇▇▇▇▇▇▇ Capital Partners
LLC as subadvisor
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Partner
TCW LEVERAGE INCOME TRUST, L.P.
By: TCW Advisors (Bermuda),
Ltd., as General Partner
By /s/ ▇▇▇▇ ▇. Gold
--------------------------
Title: Managing Director
By: TCW Investment Management
Company, as Investment Advisor
By /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President
OAK BROOK BANK
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and
Research as Investment Advisor
By /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
SEQUILS I, LTD.
By: TCW Advisors, Inc. as its
Collateral Manager
By /s/ ▇▇▇▇ ▇. Gold
--------------------------
Title: Managing Director
By /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President
SEQUILS IV, LTD.
By: TCW Advisors, Inc. as its
Collateral Manager
By /s/ ▇▇▇▇ ▇. Gold
--------------------------
Title: Managing Director
By /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President
▇▇▇▇▇▇▇▇▇ ARBITRAGE CDO, LTD.
By: ▇▇▇▇▇▇▇▇▇ Capital Partners
LLC as its Collateral
Manager
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Partner
SUMITOMO TRUST & BANKING CO.,
LTD.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Vice President
TCW LEVERAGED INCOME TRUST II
L.P.
By: TCW Advisors (Bermuda),
Ltd., as General Partner
By /s/ ▇▇▇▇ ▇. Gold
--------------------------
Title: Managing Director
By: TCW Investment Management
Company, as Investment Advisor
By /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President
TORONTO DOMINION (
NEW YORK),
INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President
▇▇▇▇▇▇▇ BANK
By /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------
Title: Vice President
TCW LEVERAGED INCOME TRUST IV,
L.P.
By: TCW (▇▇▇▇ ▇▇), L.L.C.,
as General Partner
By: TCW ASSET MANAGEMENT COMPANY
as managing member of the
General Partner
By /s/ ▇▇▇▇ ▇. Gold
--------------------------
Title: Managing Director
By /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President
WINDSOR LOAN FUNDING, LIMITED
By: ▇▇▇▇▇▇▇▇▇ Capital Partners
LLC as its Investment
Manager
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Partner
ADDISON CDO, LIMITED (ACCT 1279)
By: Pacific Investment
Management Company LLC, as its
Investment Advisor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Title: Executive Vice President
DELANO COMPANY (ACCT 274)
By: Pacific Investment
Management Company LLC, as its
Investment Advisor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Title: Executive Vice President
JISSEKIKUN FUNDING, LTD. (ACCT
1288)
By: Pacific Investment
Management Company LLC, as its
Investment Advisor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Title: Executive Vice President
CAPTIVA II FINANCE LTD.
By /s/ ▇▇▇▇ ▇▇▇▇
--------------------------
Title: Director
APEX (IDM) CDO I, LTD.
By /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Director
ELC (CAYMAN) LTD. 2000-1
By /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Director
▇▇▇▇▇ CLO LTD. 2000-1
By /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Director
PROMETHEUS INVESTMENT FUNDING
NO. 1 LTD.
By: CPF Asset Advisory, L.P.
As Investment Manager
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Title: Director
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Managing Director
Acknowledged and Agreed to by:
FRANKLIN PLASTICS HOLDINGS LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President, General Counsel
▇▇▇▇ PLASTICS GROUP LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President, General Counsel
CONSOLIDATED CONTAINTER CAPITAL, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President, General Counsel
PLASTIC CONTAINERS LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President, General Counsel
CONTINENTAL PLASTIC CONTAINERS LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President, General Counsel
CONTINENTAL CARRIBEAN CONTAINERS, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President, General Counsel
