1
Exhibit 10.49
ELEVENTH AMENDMENT AND WAIVER
ELEVENTH AMENDMENT AND WAIVER (this "Amendment"), dated as of
September 8, 1998, 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, 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 any provision of the Credit Agreement, the
Borrower may make an intercompany advance to G&G, the repayment of which shall
be evidenced by the Promissory Note dated September 8, 1998 (the "Intercompany
Note") in the principal amount of U.S. $17,330,021.37, provided that (a) ***
(b) unless sooner repaid, the Intercompany Note will
mature 120 days after its issuance (the "Note Maturity Date"); (c) the
Intercompany Note will bear interest from the date of its issuance to the Note
Maturity Date (the "Interest Period") at the rate paid by the Borrower on
Revolving Loans under the Credit Agreement plus 1/2%; (d) the Intercompany Note
shall be pledged to BTCC, as Collateral Agent under the Security Agreement; (e)
the Borrower hereby agrees not to amend, modify or supplement the Intercompany
Note; and (f) the Intercompany Note shall be guaranteed by G&G for the benefit
of the Lenders, which guaranty secured by a pledge of certain stock owned by
2
G&G and pledged to BTCC, as Collateral Agent under Guaranty and Pledge Agreement
in the form attached hereto as Exhibit B.
2. Section 1 of the Credit Agreement is hereby amended by (i)
adding ", the Guaranty and Pledge Agreement" after the words "the Security
Agreement" appearing in the definition of Collateral Documents; and (ii) adding
the following definition in alphabetical order:
"Guaranty and Pledge Agreement" shall mean the Guaranty and
Pledge Agreement attached to the Eleventh Amendment to this Agreement,
dated as of September 8, 1998, as same may be amended, modified or
supplemented from time to time."
3. Section 2.2 of the Credit Agreement is hereby amended by
(i) renumbering Section 2.2(a)(ii)(D) as Section 2.2(a)(ii)(E); (ii) amending
the definition of "Borrowing Base" appearing in such Section 2.2 to mean the
"sum of the amounts calculated in accordance with clauses (ii)(A), (B), (C) and
(D) above"; and (iii) inserting the following clause (a)(ii)(D):
"(D) an amount equal to $5,000,000, so long as the
Intercompany Note (as defined in the Eleventh Amendment to this
Agreement dated as of September 8, 1998) remains outstanding and
unpaid, and minus"
4. Section 9.1 of the Credit Agreement is hereby amended by
(i) adding "G&G Investments, Inc.," before "the Borrower" where it appears
Sections 9.1(b) and (g); and (ii) inserting the following section (o):
"(o) Intercompany Note, Guaranty and Pledge
Agreement. G&G shall fail to pay all principal and interest on the
Intercompany Note on or before the Note Maturity Date (capitalized
terms used in this Section 9.1(o) shall have the meanings set forth in
the Eleventh Amendment to this Agreement, dated as of September 8,
1998), or the Intercompany Note shall fail to be in full force and
effect prior to its repayment in full, or G&G shall breach its
agreements set forth therein or in the Guaranty and Pledge Agreement
or deny or disaffirm its obligation thereunder;"
5. Section 7.1(e) of the Credit Agreement is hereby amended
by adding the following text at the end thereof:
"(together, so long as the Intercompany Note is outstanding,
with the calculation of the aggregate value of the price per share of common
stock of Consumers pledged pursuant to the Guaranty and Pledge Agreement)"
6. The undersigned Lenders hereby authorize the Agent to
execute the Second Amendment to the Intercompany Agreement in the form of
Exhibit C hereto.
7. 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
-2-
3
Eleventh Amendment Effective Date (as defined in Section 11 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 Eleventh Amendment Effective Date, after giving effect to this Amendment.
8. 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.
9. 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.
10. 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.
11. This Amendment shall become effective on the date (the
"Eleventh 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) G&G and Anchor shall have executed and pledged
Intercompany Note, substantially in the form of Exhibit D to this Amendment, to
BTCC as Collateral Agent under the Security Agreement; (iii) G&G shall have
executed and delivered the Guaranty and Pledge Agreement, and G&G shall have
delivered the capital stock initially required to be delivered thereunder,
together with signed and undated stock powers; (iv) the Agent shall have
received a legal opinion, substantially in the form of Exhibit E to this
Amendment, from Xxxxxx Xxxxxxx Xxxxxx & Xxxxxx, LLC; (v) the Lenders shall have
received true and correct copies of the Purchase Agreement, which shall be in
form and substance satisfactory to the Required Lenders and (vi) the Agent
shall have received a fee of $137,500 for pro rata distribution among the
Lenders according to their respective Commitments under the Credit Agreement.
12. From and after the Eleventh 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.
* * *
-3-
4
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.
*** Portions hereof have been omitted and filed separately pursuant to a
request for confidential treatment in accordance with Rule 24b-2.
ANCHOR GLASS CONTAINER CORPORATION
By /s/ M. Xxxxxxx Xxxxxxxx, Xx.
----------------------------------
Name: M. Xxxxxxx Xxxxxxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
BT COMMERCIAL CORPORATION,
Individually, as Agent
and as Co-Syndication Agent
By /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION,
Individually, as Co-Syndication
Agent and Issuing Bank
By /s/ Xxxxxx X. Xxxxx Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx Xxxxx
Title: Vice President
BANKERS TRUST COMPANY, as Issuing Bank
By /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Principal
5
THE CIT GROUP/BUSINESS CREDIT, INC.
By
----------------------------------
Name:
Title:
CORESTATES BANK, N.A.
By
----------------------------------
Name:
Title:
FLEET BANK
By
----------------------------------
Name:
Title:
KEY CORPORATE CAPITAL, INC.
By
----------------------------------
Name:
Title:
MELLON BANK, N.A.
By
----------------------------------
Name:
Title:
0
XXXXXXXX XXXX XX XXXXXX
By /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President / Manager
By /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
NATIONAL CITY COMMERCIAL FINANCE, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
SUMMIT COMMERCIAL/GIBRALTAR CORP.
By /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
