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EXHIBIT 4.14
AMENDMENT NO. 2 TO INTERCREDITOR AGREEMENT
THIS AMENDMENT NO. 2 TO INTERCREDITOR AGREEMENT ("Amendment"), dated as
of October 16, 2000 (the "Amendment"), is by and between The Bank of New York
("BoNY") and Bank of America, National Association ("Bank of America").
A. Bankers Trust Company ("BTC"), as the Note Agent, and BT
Commercial Corporation ("BTCC"), as the Credit Agent and the Shared Collateral
Agent, entered into that certain Intercreditor Agreement, dated as of February
5, 1997.
B. Pursuant to the terms of that certain Amendment No. 1 to
Intercreditor Agreement, dated as of April 17, 1997 (the "First Amendment"),
between BoNY and BTCC, BoNY replaced BTC as the Note Agent (the First Amendment
and the Intercreditor Agreement referred to in Recital A hereof shall be
referred to collectively hereinafter as the "Intercreditor Agreement").
C. Concurrently herewith it is proposed that Bank of America
enter into that certain Loan and Security Agreement (as such agreement may be
amended, restated, or otherwise modified from time to time, the "Loan
Agreement"), with Anchor Glass Container Corporation (the "Borrower") and
certain lending institutions (including, without limitation, Bank of America) as
the "Lenders" (as defined therein).
D. It is proposed that pursuant to the terms of the Intercreditor
Agreement, upon execution and delivery of the Loan Agreement and the
effectiveness of this Amendment, Bank of America shall replace BTCC as the
Credit Agent.
E. It is proposed that pursuant to the terms of the Intercreditor
Agreement, upon execution and delivery of the Loan Agreement and the
effectiveness of this Amendment, BoNY shall replace BTCC as the Shared
Collateral Agent.
F. The parties hereto wish to amend the Intercreditor Agreement
on the terms and conditions set forth below:
NOW, THEREFORE, in consideration of the premises, and in order to
induce Bank of America to enter into the Loan Agreement and to become the Credit
Agent pursuant to the terms of the Intercreditor Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
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ARTICLE I
Definitions
Section I.1 Definitions. Unless otherwise defined herein, all
capitalized terms and phrases used in this Amendment shall have the meanings as
are specifically set forth for such terms and phrases in the Intercreditor
Agreement.
ARTICLE II
Amendments
Section II.1 Amendment of Definitions in Section 1 of the Intercreditor
Agreement. Effective as of the date hereof, each of the following defined terms
contained in Section 1 of the Intercreditor Agreement are amended and restated
in their entirety to read as follows:
"Bank Creditors" means the Credit Agent and the Lenders.
"Borrower" has the meaning set forth in the Recitals, and
includes any successor thereto, including, without limitation, Anchor
Glass Container Corporation.
"BT Account" means a deposit account, maintained by the
Borrower with the Credit Agent, into which available funds in the
Concentration Account are transferred in accordance with the terms of
the BTCC Credit Agreement.
"BTCC" means BT Commercial Corporation or any successor
thereto, including, without limitation, Bank of America, National
Association.
"BTCC Credit Agreement Security Documents" means,
collectively, any and all documents executed in connection with the
BTCC Credit Agreement or in furtherance thereof (including, without
limitation, the BTCC Credit Agreement), pursuant to which the Borrower
grants to the Credit Agent, for the benefit of the Credit Agent and the
Lenders, a Lien on the Lenders' Collateral, as the same may be amended,
modified, or supplemented from time to time.
"Cash Collateral Account of the BTCC Credit Agreement" means a
non-interest bearing cash collateral account maintained with, and in
the sole dominion and control of the Collateral Agent for the benefit
of the Lenders, established pursuant to the BTCC Credit Agreement.
"Collateral Agent" means BTCC or any successor thereof under
the BTCC Credit Agreement as agent for the Lenders.
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"Collateral Agent's Lien" means the Liens of the Collateral
Agent in the BTCC Collateral pursuant to the BTCC Credit Agreement
Security Documents.
"Concentration Account" means an account established pursuant
to a Concentration Account Agreement entered into between the Borrower
and the Collateral Agent and into which all available amounts held in
the Collection Accounts shall be transferred each Business Day.
"Concentration Account Agreement" means an agreement entered
into between the Borrower and the Collateral Agent establishing a
Concentration Account.
"Disbursement Account" means a checking account opened by the
Borrower with the Credit Agent for general purposes, including the
purpose of paying trade payables and other operating expenses.
"Hedging Obligations" means, collectively, at any time, all
debts, liabilities, and obligations of the Borrower, whether now or
hereafter existing, incurred in connection with any Hedge Agreement (as
such term is defined in the BTCC Credit Agreement) entered into with
the Credit Agent or any Lender.
"Interest Rate Creditors" means the Credit Agent acting in its
individual capacity, any Lender or a syndicate of financial
institutions organized by the Credit Agent or an affiliate of the
Credit Agent (even if the Credit Agent or any such Lender ceases to be
a Lender under the BTCC Credit Agreement for any reason), and any
institution that participates, and in each case their subsequent
assigns, in one or more interest rate agreements (including, without
limitation, interest rate swaps, caps, collars, and similar agreements
permitted by the BTCC Credit Agreement).
Section II.2 Amendment to Section 3.1 of the Intercreditor
Agreement. Effective as of the date hereof, Section 3.1(a) of the Intercreditor
Agreement is hereby amended and restated in its entirety to read as follows:
(a) The Lenders' Liens in all that Anchor Property set
forth and described on Exhibit A hereto (the "Bank Collateral") shall
be first priority Liens in such Property, superior to any Senior
Noteholders' Liens in such Property, and the Senior Noteholders' Liens
in such Property, if any, shall be subordinate to the Lenders' Liens in
such Property.
Section II.3 Amendment to Section 3.4 of the Intercreditor
Agreement. Effective as of the date hereof, Section 3.4(b) of the Intercreditor
Agreement is hereby amended and restated in its entirety to read as follows:
(b) the Note Agent, any Senior Noteholder, or the Shared
Collateral Agent obtains possession of any of the Lenders' Collateral
or receives any Proceeds
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from any Remedial Action with respect to Lenders' Collateral or
Disposition of Lenders' Collateral described in Section 3.3 hereof or
as a result of its Lien on any Lenders' Collateral at any time prior to
payment in full of all BTCC Credit Agreement Obligations; or
Additionally, the phrase "Credit Agreement Obligations" contained in the portion
of Section 3.4 following clause (c) thereof is amended to read "BTCC Credit
Agreement Obligations".
Section II.4 Amendment to Section 3.5 of the Intercreditor
Agreement. Effective as of the date hereof, Section 3.5 of the Intercreditor
Agreement is hereby amended as follows: (a) clause (i) thereof is amended and
restated in its entirety to read "(i) in the case of Bank Collateral, applied in
accordance with the requirements set forth in the BTCC Credit Agreement" and (b)
the word "he" contained therein shall be amended to read "be".
Section II.5 Amendment to Section 4.1 of the Intercreditor
Agreement. Effective as of the date hereof, the word "obligations" at the end of
Section 4.1(a) of the Intercreditor Agreement is hereby amended to read
"Obligations."
Section II.6 Amendment to Section 5.1 of the Intercreditor
Agreement. Effective as of the date hereof, Section 5.1(a) of the Intercreditor
Agreement is hereby amended and restated in its entirety to read as follows:
(a) Subject to the resignation and removal provisions of
Section 5.5 hereof, the Credit Agent hereby irrevocably designates,
appoints, and authorizes the Note Agent as Shared Collateral Agent
hereunder (the Note Agent in such capacity being hereinafter referred
to as the "Shared Collateral Agent") upon the written instruction of
the Credit Agent to take such action, including, without limitation,
the exercise of rights and the pursuit of remedies pursuant to this
Agreement and the Shared Collateral Security Documents, as agent on its
behalf and to exercise such other powers under this Agreement and the
Shared Collateral Security Documents as are expressly delegated to the
Shared Collateral Agent by the terms hereof and thereof, together with
such powers as are reasonably incidental thereto.
Additionally, the last sentence of Section 5.4(e) is hereby amended and restated
in its entirety to read as follows:
The obligations of the Credit Agent under this Section 5.4 shall in no
event exceed the amounts actually paid to and received by the Credit
Agent from the Borrower to reimburse the Credit Agent for such
obligations plus the proceeds of Shared Collateral received by the
Credit Agent and available to pay such obligations in accordance with
the terms of the BTCC Credit Agreement and the BTCC Credit Agreement
Security Documents.
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Section II.7 Amendment to Section 6 of the Intercreditor
Agreement. Effective as of the date hereof, the phrase "BTCC Credit obligations"
contained in clause (i) of Section 6 of the Intercreditor Agreement is hereby
amended to read "BTCC Credit Obligations".
Section II.8 Amendment to Section 7 of the Intercreditor
Agreement. Effective as of the date hereof, clause (a) of Section 7 of the
Intercreditor Agreement is hereby amended and restated in its entirety to read
as follows:
(a) It is a duly organized and validly existing banking
association under the laws of the United States of America, in the case
of the Credit Agent, and is a duly organized and validly existing
banking corporation under the laws of the State of New York, in the
case of the Note Agent and the Shared Collateral Agent; has all
requisite power and authority to execute, deliver, and perform under
this Agreement; and the execution, delivery, and performance by it of
this Agreement have been duly authorized by all requisite corporate or
other action; and
Section II.9 Amendment to Section 8.1 of the Intercreditor
Agreement. Effective as of the date hereof, the addresses for notice in Section
8.1 of the Intercreditor Agreement are hereby amended to read as follows:
If to the Credit Agent at:
Bank of America, National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Portfolio Manager
If to the Note Agent at:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
If to the Shared Collateral Agent at:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Section II.10 Amendment to Exhibit A of the Intercreditor
Agreement. Effective as of the date hereof, Exhibit A of the Intercreditor
Agreement is hereby amended as follows: (a) the word "and" following the
semicolon at the end of clause (i) thereof is deleted, (b) clause (j) thereof is
amended to read in its entirety "(j) all right, title, and interest of the
Borrower in that certain
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Replacement Promissory Note, dated October 16, 2000, in the original principal
amount of $17,330,021.37, made by G&G Investments, Inc. to the order of the
Borrower (the "Intercompany Note") and all right, title, and interest of the
Borrower in any capital stock or other equity ownership interest that the
Borrower may receive in satisfaction or repayment of the Intercompany Note, and
(c) a new clause (k) is added thereto which shall read in its entirety "(k) all
Proceeds and products of any and all of the foregoing."
Section II.11 Agreement Regarding Certain References in the
Intercreditor Agreement. Effective as of the date hereof, BoNY and Bank of
America agree that (a) all references to BTCC in the Intercreditor Agreement
after the Recitals thereto shall constitute a reference to Bank of America as a
party to the Intercreditor Agreement in the context set forth therein, (b) all
references to the BTCC Credit Agreement after the Recitals thereto shall
constitute a reference to the Loan Agreement, and (c) any references to the
"Company" in the Intercreditor Agreement shall be a reference to the Borrower.
ARTICLE III
Amendments
Section III.1 Representations and Warranties. To induce Bank of
America to assume the role of Credit Agent and to induce the Lenders to make
credit facilities available to the Borrower under the terms of the Loan
Agreement, BoNY represents to Bank of America that:
(a) as of the date hereof, no Default or Event of Default
has occurred and is continuing under the Intercreditor Agreement of
which it has received written notice; and
(b) as of the date hereof, the representations and
warranties of the Note Agent set forth in Section 7 of the
Intercreditor Agreement (as amended hereby) are true and correct with
the same effect as though such representations and warranties had been
made on the date hereof.
Section III.2 Additional Representations and Warranties. Each of
BoNY and Bank of America represents as follows:
(a) such party has full power and authority to enter into
this Amendment and to incur and perform the obligations provided for
under the Intercreditor Agreement and this Amendment, all of which have
been duly authorized by all proper and necessary corporate action; no
consent or approval of stockholders or of any public authority or
regulatory body which has not been obtained is required as a condition
to the validity or enforceability of this Amendment;
(b) this Amendment and the Intercreditor Agreement (as
modified by this Amendment) constitute the valid and legally binding
obligations of each of the parties hereto (as provided therein) and are
fully enforceable against each of the parties hereto in accordance with
their respective terms; and
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(c) the execution and performance of this Amendment, and
the designation of Bank of America as the Credit Agent and BoNY as the
Shared Collateral Agent under the Intercreditor Agreement (as modified
by this Amendment), will not, (i) violate any provision of law, any
order of any court or other agency of government, or the certificate of
incorporation, bylaws, or other similar organizational documents of
such entity, (ii) to the best knowledge of Shared Collateral Agent
without independent investigation violate any indenture, contract,
agreement, or other instrument to, or be in conflict with, result in a
breach of or constitute (with due notice and or lapse of time) a
default under, any such indenture, contract, agreement, or other
instrument affecting such signatory, or (iii) to the best knowledge of
Shared Collateral Agent without independent investigation result in the
creation or imposition of any lien, charge, or encumbrance of any
nature whatsoever relating to such signatory other than the Lenders'
Liens in favor of Bank of America as Credit Agent under the
Intercreditor Agreement.
ARTICLE IV
Conditions
Section IV.1 Effectiveness of this Amendment. The amendments set
forth above shall become effective as of the date of the execution and delivery
of this Amendment and the satisfaction of all conditions precedent to the
effectiveness of the Loan Agreement.
Section IV.2 No Material Adverse Change. Effectiveness of this
Amendment is subject to the condition that no event shall have occurred which
shall have had a material adverse effect on the financial condition or
operations of the Borrower.
ARTICLE V
Miscellaneous
Section V.1 Effect on Intercreditor Agreement. Except as
specifically amended hereby, the terms and provisions of the Intercreditor
Agreement are in all other respects ratified and confirmed and remain in full
force and effect. No reference to this Amendment need be made in any notice,
writing, or other communication relating to the Intercreditor Agreement, any
such reference to the Intercreditor Agreement to be deemed a reference thereto
as amended by this Amendment. All references to the Intercreditor Agreement in
any document, instrument, or agreement executed in connection with the
Intercreditor Agreement shall be deemed to refer to the Intercreditor Agreement
as amended hereby.
Section V.2 Successors and Assigns. This Amendment shall be
binding upon and inure to the benefit of each of the signatories hereto and
their respective successors and assigns.
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Section V.3 Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of New York, without
regard to the conflict of laws principles thereof.
Section V.4 Venue and Waiver of Jury Trial. The provisions of
Section 8.3 of the Intercreditor Agreement are incorporated herein and made a
part hereof and shall govern and apply to this Amendment as if set forth in full
herein.
Section V.5 Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original and all of
which taken together shall constitute one and the same Amendment.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
BANK OF AMERICA, NATIONAL ASSOCIATION,
as the Credit Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Vice President
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THE BANK OF NEW YORK, as the Note
Agent and as the Shared Collateral Agent
By: /s/ Xxxxx Xxxxxxxxx-Xxxxxx
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Name: Xxxxx Xxxxxxxxx-Xxxxxx
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Title: Vice President
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Acknowledged and Agreed:
ANCHOR GLASS CONTAINER CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: Chairman and CEO
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SIGNATURE PAGE TO AMENDMENT NO. 2 TO INTERCREDITOR AGREEMENT
