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Exhibit 10.5
FOURTH AMENDMENT
FOURTH AMENDMENT (this "Amendment"), dated as of September 15, 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:
Section 1.1 of the Credit Agreement is hereby amended by inserting
the following new definition in alphabetical order:
"Qualified Offer shall have the meaning given to such term in
Section 8.23."
Section 8.23 of the Credit Agreement is hereby amended by (i)
deleting subsection (b)(i) in its entirety, (ii) deleting each reference to the
amount "$2,500,000" in subsection (b)(ii) and inserting "$5,000,000" in lieu
thereof, (iii) deleting the text "the Agent shall have received a Qualified
Offer" appearing in subsection (b)(ii) and inserting the following text in lieu
thereof:
"the Borrower shall have delivered to the Agent a written bona fide offer
to purchase the Headquarters Property on terms and conditions, and from
parties, reasonably satisfactory to the Agent (provided that acceptability
of the purchase price shall be
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determined based on an appraisal delivered to the Agent by the Borrower
from appraisers, and in form and substance, satisfactory to the Agent) (an
offer meeting the foregoing requirements, a "Qualified Offer"), and which
such Qualified Offer",
(iv) re-numbering subsection (b)(ii) as (b)(i), (v) re-numbering subsection
(b)(iii) as (b)(ii), and (vi) re-numbering subsection (b)(iv) as (b)(iii).
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 Fourth 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 or Event of Default on
the Fourth Amendment Effective Date, in each case both before and after giving
effect to this Amendment.
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.
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.
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.
This Amendment shall become effective on the date (the "Fourth
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.
From and after the Fourth 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/ X. Xxxx May
----------------------------
Name: X. Xxxx May
Title: Sr. Vice President
BT COMMERCIAL CORPORATION,
Individually, as Agent and as
Co-Syndication Agent
By /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
Individually, as Co-Syndication Agent and
Issuing Bank
By /s/ illegible
----------------------------
Name: illegible
Title: Assistant Vice President
BANKERS TRUST COMPANY,
as Issuing Bank
By /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
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Title:
BTM CAPITAL CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
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
----------------------------
Name:
Title:
KEY CORPORATE CAPITAL INC.
By /s/ Xxx X. Xxxxx
----------------------------
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Name: Xxx X. Xxxxx
Title: Senior Vice President
MELLON BANK, N.A.
By /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
NATIONAL BANK OF CANADA
By /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
By /s/ Xxxx X. Moere
----------------------------
Name: Xxxx X. Moere
Title: Vice President
NATIONAL CITY COMMERCIAL
FINANCE, INC.
By /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Account Executive/Officer
SUMMIT COMMERCIAL/
GIBRALTAR CORP.
By /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: President
