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EXHIBIT 10.4
THIRD AMENDMENT AND WAIVER
THIRD AMENDMENT AND WAIVER (this "Amendment"), dated as of May 23,
1997, among ANCHOR GLASS CONTAINER CORPORATION, f/k/a Anchor Glass Acquisition
Corporation, a Delaware Corporation (the "Borrower"), the financial institutions
party to the Credit Agreement referred to below (the "Lenders"), BANKERS TRUST
COMPANY, as an Issuing Bank (an "Issuing Bank"), BT COMMERCIAL CORPORATION,
acting as Co-Syndication Agent and Agent (the "Agent"), and PNC BANK, NATIONAL
ASSOCIATION, as Co-Syndication Agent and as an Issuing Bank (an "Issuing Bank").
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, the Borrower, the Lenders, the Issuing Banks and the Agent
are parties to a Credit Agreement, dated as of February 5, 1997 (as amended,
modified or supplemented through the date hereof, the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement as
herein provided;
NOW, THEREFORE, it is agreed:
1. Section 8.6 is waived to the extent necessary to permit the
Borrower to declare a cash dividend for the fiscal quarter ended March 31, 1997.
2. Section 8.6 of the Credit Agreement is hereby amended by (i)
deleting the text ", declare or" in the second line therein and (ii) deleting
the text "at the rate set forth therein" appearing at the end of subclause (z)
of clause (ii) and inserting the following text in lieu thereof:
"either (A) at the rate and on the dates set forth in the Series A
Certificate of Designation or (B) in the event the Borrower has
declared, but has been prohibited from paying, Dividends and accrued
but unpaid Dividends then remain outstanding, an amount not to exceed
the amount declared at the rate set forth in the Series A Certificate
of Designation for the most recent date of declaration (and not
including any declared, accrued and unpaid amounts prior to such most
recent declaration)".
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3. In order to induce the Lenders to enter into this Amendment, the
Borrower hereby represents and warrants that (i) the representations, warranties
and agreements contained in Article 6 of the Credit Agreement are true and
correct in all material respects on and as of the Third Amendment Effective Date
(as defined in Section 7 of this Amendment) (it being understood and agreed that
any representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date) and (ii) there exists no Default (after giving effect to
Section 2 of this Amendment) or Event of Default on the Third Amendment
Effective Date, in each case both before (except with respect to Section 2 of
this Amendment) and after giving effect to this Amendment.
4. 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.
5. 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, the Agent and each Lender.
6. 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.
7. This Amendment shall become effective on the date (the "Third
Amendment Effective Date") when the Borrower and the Required Lenders shall have
signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered (including by way of facsimile transmission) the same to
the Agent at its address for notice provided for in the Credit Agreement.
8. From and after the Third 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.
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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.
ANCHOR GLASS CONTAINER
CORPORATION
By /s/ M. Xxxxxxx Xxxxxxxx, Xx.
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Name: M. Xxxxxxx Xxxxxxxx, Xx.
Title: Vice President and CFO
BT COMMERCIAL CORPORATION,
Individually, as Agent and as
Co-Syndication Agent
By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
Individually, as Co-Syndication Agent and
Issuing Bank
By /s/ Xxxxxx X. Xxxxx Xxxxx
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Name: Xxxxxx X. Xxxxx Xxxxx
Title: Vice President
BANKERS TRUST COMPANY,
as Issuing Bank
By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
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BTM CAPITAL CORPORATION
By /s/ Illegible
______________________________
Name:
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.
By /s/ Xxxxxx X. Xxxxxx
______________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
CORESTATES BANK, N.A.
By /s/ Xxxx X. Xxxxxx
______________________________
Name: Xxxx X. Xxxxxx
Title: Vice President
FLEET BANK
By /s/ Xxxxxx X. XxXxxxxx
______________________________
Name: Xxxxxx X. XxXxxxxx
Title: Vice President
KEYBANK
By /s/ Xxxx X. Koludey
______________________________
Name: Xxxx X. Koludey
Title: Assistant Vice President
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MELLON BANK, N.A.
By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
NATIONAL BANK OF CANADA
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
By /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
NATIONAL CITY COMMERCIAL
FINANCE, INC.
By /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
SUMMIT COMMERCIAL/
GIBRALTAR CORP.
By /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President