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EXHIBIT 10.52
TWELFTH AMENDMENT AND WAIVER
TWELFTH AMENDMENT AND WAIVER (this "Amendment"), dated as
of January 28, 1999, 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 ("BTCC"), 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");
WHEREAS, Consumers Packaging Inc. ("Consumers"), G&G
Investments, Inc. ("G&G"), Glenshaw Glass Company, Hillsboro Glass Company,
Consumers International Inc., Consumers U.S. Inc., U.S. Holdco, I.M.T.E.C.
Enterprises Inc., the Borrower and the Agent are parties to an Intercompany
Agreement dated as of April 17, 1998, (the "Intercompany Agreement"), whereby
the Affiliate Companies acknowledged the restrictions regarding "Affiliate
Transactions" contained in the Credit Agreement, the Anchor Indenture and the
Consumers Indenture, and agreed that they would not enter into any transaction
in violation of such restrictions;
WHEREAS, G&G and the Borrower are parties to an Intercompany
Note, dated as of September 8, 1998 (the "Intercompany Note"), in the principal
amount of U.S. $17,330,021.37, between G&G, as Maker, and the Borrower, as
Holder; and
WHEREAS, the parties hereto wish to amend and/or waive
certain provisions of the Credit Agreement as herein provided, subject to and
on the terms and conditions set forth herein;
NOW, THEREFORE, it is agreed:
1. Notwithstanding anything to the contrary contained
in the Credit Agreement, the undersigned Lenders hereby waive compliance with
the Interest Coverage Ratio for December 31, 1998, set forth in Section 8.11,
provided that such waiver will terminate and will cease to be effective, and
any Default or Event of Default which would have occurred under Section 8.11
but for such waiver will be reinstated:
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(A) unless the Borrower shall have received a cash
payment of at least $20 million in settlement of outstanding receivables owing
on the date hereof from certain of the Affiliates on or before February 3,
1999; or
(B) if the amounts owing to the Borrower under
intercompany receivables from its Affiliates (x) increases above the amount
outstanding on the date hereof or (y) increases with respect to the
intercompany receivables arising from the manufacturing of molds, after the
payments thereof required under clause (A) above, and such increase remains
outstanding for more than 45 days or the aggregate amount of such intercompany
receivables exceed $ 3,000,000.
2. Section 8.7 (b) Clause (w) of the Credit
Agreement is hereby amended by adding the following text at the end thereof:
"provided that the Borrower shall not be required to comply
with this clause (w) in respect of the Interest Coverage
Ratio on December 31, 1998 in connection with the making of
payments under the Management Agreement if (A) the Borrower
has received a cash payment of $20 million in repayment of
intercompany receivables owing to it from its Affiliates and
if (B) the Available Borrowing Amount less Outstandings at
such time (both before and after giving effect to any
payment) is more than $28,000,000, and the Borrower shall
deliver a certificate to the Administration Agent, in form
and substance satisfactory to it, showing the calculation
thereof, and the then outstanding trade payable balances,
which shall verify that they are normal and customary for the
Borrower."
3. Notwithstanding any provision of the Credit
Agreement, the Borrower may amend the Intercompany Note to extend the Maturity
Date thereof to March 31, 1999.
4. The undersigned Lenders hereby authorize the Agent
to execute the Third Amendment to the Intercompany Agreement in the form of
Exhibit A hereto.
5. 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
Twelfth Amendment Effective Date (as defined in Section 9 of this Amendment and
after giving effect thereto) (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 Twelfth Amendment Effective Date, after giving effect to this Amendment.
6. 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.
7. 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
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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.
8. 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.
9. This Amendment shall become effective on the date
(the "Twelfth Amendment Effective Date") when (i) 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; (ii) the Agent shall have received a legal opinion,
substantially in the form of Exhibit B to this Amendment, from Xxxxxx Xxxxxxx
Xxxxxx & Xxxxxx, LLC; and (iii) the Agent shall have received a fee equal to
$137,500 for pro rata distribution among the Lenders according to their
respective Commitments under the Credit Agreement.
10. From and after the Twelfth 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.
Name: M. Xxxxxxx Xxxxxxxx, Xx.
Title: Senior Vice President-Finance
and Chief Financial Officer
BT COMMERCIAL CORPORATION,
Individually, as Agent
and as Co-Syndication Agent
By /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: V.P.
PNC BANK, NATIONAL ASSOCIATION,
Individually, as
Co-Syndication Agent and
Issuing Bank
By /s/ X. X. Xxxxxx
Name: X. X. Xxxxxx
Title: Sr. Vice President
BANKERS TRUST COMPANY, as Issuing Bank
By /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: V.P.
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THE CIT GROUP/BUSINESS CREDIT, INC.
By /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: AVP
CORESTATES BANK, N.A.
By /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X.Xxxxxxxx
Title: AVP
FLEET BANK
By______________________________
Name:
Title:
KEY CORPORATE CAPITAL, INC.
By______________________________
Name:
Title:
MELLON BANK, N.A.
By /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Assn. Vice President
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XXXXXXXX XXXX XX XXXXXX
By______________________________
Name:
Title:
By______________________________
Name:
Title:
NATIONAL CITY COMMERCIAL FINANCE, INC.
By /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
SUMMIT COMMERCIAL/GIBRALTAR CORP.
By______________________________
Name:
Title:
