EXHIBIT 10.06
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement (this "Amendment") is entered
into as of January 22, 2002 (but with an effective date of September 30, 2001
pursuant to Section 4 below) among (i) CARAUSTAR INDUSTRIES, INC. (the
"Borrower"), (ii) the subsidiaries of the Borrower identified as Guarantors on
the signature pages hereto, (iii) the Lenders identified on the signature pages
hereto and (iv) BANK OF AMERICA, N.A., as Administrative Agent (the
"Administrative Agent"). All capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Credit Agreement
referred to below.
RECITALS
A. A Credit Agreement dated as of March 29, 2001 (as amended by that
certain First Amendment to Credit Agreement dated as of September 10, 2001 and
that certain Second Amendment to Credit Agreement dated as of November 30, 2001
and as further modified or amended from time to time, the "Credit Agreement")
has been entered into by and among the Borrower, the Guarantors party thereto
(the "Guarantors"), the financial institutions party thereto (the "Lenders") and
the Administrative Agent.
B. The Borrower has requested, and the Required Lenders have agreed to,
an amendment of the terms of the Credit Agreement as set forth below.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendments to Section 1.1 of the Credit Agreement. The definitions
of "Interest Expense", "Premier Boxboard Interest Expense" and "Standard Gypsum
Interest Expense" found in Section 1.1 of the Credit Agreement are hereby
amended in their entirety to read as follows:
(a) "Interest Expense" means, for any period, as applied
to the Borrower and its Consolidated Subsidiaries,
all interest expense (whether paid or accrued) and
capitalized interest, including without limitation
(a) the amortization of debt discount and premium,
(b) the interest component under Capital Leases and
synthetic leases and (c) the implied interest
component, discount or other similar fees or charges
in connection with any asset securitization program,
net of interest income of the Borrower and its
Subsidiaries (including any net amount payable or
receivable under any Hedging Agreement regarding the
hedging of interest rate risk exposure) and, in each
case, as determined and computed on a Consolidated
basis in accordance with GAAP.
(b) "Premier Boxboard Interest Expense" means, for any
period, as applied to Premier Boxboard and its
Consolidated Subsidiaries, all interest expense
(whether paid or accrued) and capitalized interest,
including without
limitation (a) the amortization of debt discount and
premium, (b) the interest component under Capital
Leases and synthetic leases and (c) the implied
interest component, discount or other similar fees or
charges in connection with any asset securitization
program, net of interest income of Premier Boxboard
and its Subsidiaries (including any net amount
payable or receivable under any Hedging Agreement
regarding the hedging of interest rate risk exposure)
and, in each case, as determined and computed on a
Consolidated basis in accordance with GAAP.
(c) "Standard Gypsum Interest Expense" means, for any
period, as applied to Standard Gypsum and its
Consolidated Subsidiaries, all interest expense
(whether paid or accrued) and capitalized interest,
including without limitation (a) the amortization of
debt discount and premium, (b) the interest component
under Capital Leases and synthetic leases and (c) the
implied interest component, discount or other similar
fees or charges in connection with any asset
securitization program, net of interest income of
Standard Gypsum and its Subsidiaries (including any
net amount payable or receivable under any Hedging
Agreement regarding the hedging of interest rate risk
exposure) and, in each case, as determined and
computed on a Consolidated basis in accordance with
GAAP.
2. Amendment to Section 9.1(b) of the Credit Agreement. Section 9.1(b)
of the Credit Agreement is hereby amended by replacing the chart found therein
with the following:
Period Ratio
------ -----
fiscal quarter ending March 31, 2001 2.50:1.0
fiscal quarter ending June 30, 2001 2.50:1.0
fiscal quarter ending September 30, 2001 2.50:1.0
fiscal quarter ending December 31, 2001 2.25:1.0
fiscal quarter ending March 31, 2002 2.25:1.0
fiscal quarter ending June 30, 2002 2.50:1.0
fiscal quarter ending September 30, 2002 2.75:1.0
fiscal quarter ending December 31, 2002 and each 3.00:1.0
fiscal quarter ending thereafter
3. Representations and Warranties. Each Credit Party hereby represents
and warrants to the Administrative Agent and the Lenders that (a) no Default or
Event of Default exists; (b) all of the representations and warranties set forth
in the Loan Documents are true and correct in all material respects as of the
date hereof (except for those that expressly state that they
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are made as of an earlier date); and (c) it has no claims, counterclaims,
offsets, credits or defenses to its obligations under the Loan Documents or, to
the extent it does, they are hereby released in consideration of the Required
Lenders entering into this Amendment.
4. Conditions Precedent; Effective Date. This Amendment shall be deemed
effective as of September 30, 2001, provided that each of the following
conditions precedent has been satisfied:
(a) The Administrative Agent shall have received from the
Credit Parties and the Required Lenders duly executed counterparts of
this Amendment; and
(b) The Administrative Agent shall have received from the
Borrower an amendment fee equal to 0.15% multiplied by the aggregate
Revolving Credit Commitments of the Consenting Lenders (as defined
below), such fee being for the account of each such Consenting Lender
pro rata according to such Lender's Revolving Credit Commitment;
provided, however, that such fee shall be payable only to those Lenders
(the "Consenting Lenders") that shall have returned (including via
telecopy) executed signature pages to this Amendment on or before
Friday, January 18, 2002, as directed by the Administrative Agent.
5. Ratification of Credit Agreement. The term "this Agreement" or
"Credit Agreement" and all similar references as used in each of the Loan
Documents shall hereafter mean the Credit Agreement as amended by this
Amendment. Except as herein specifically agreed, the Credit Agreement is hereby
ratified and confirmed and shall remain in full force and effect according to
its terms.
6. Authority/Enforceability. Each of the Credit Parties hereto
represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by
such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Person of this Amendment.
7. Expenses. The Borrower agrees to pay all reasonable costs and
expenses in connection with the preparation, execution and delivery of this
Amendment, including without
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limitation the reasonable fees and expenses of Xxxxx & Xxx Xxxxx PLLC, special
counsel to the Administrative Agent.
8. Counterparts/Telecopy. This Amendment may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts by telecopy shall be effective as an original
and shall constitute a representation that an original will be delivered.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
10. Entirety. This Amendment and the other Loan Documents embody the
entire agreement between the parties and supersede all prior agreements and
understandings, if any, relating to the subject matter hereof. These Loan
Documents represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements
of the parties. There are no oral agreements between the parties.
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This Amendment shall be deemed to be effective as of the day and year
first above written.
BORROWER: CARAUSTAR INDUSTRIES, INC.,
a North Carolina corporation
By: /s/ H. Xxx Xxxxxx, III
----------------------------------
Name: H. Xxx Xxxxxx, III
Title: Vice President Planning & Development
and Chief Financial Officer
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GUARANTORS: AUSTELL HOLDING COMPANY, LLC,
a Georgia corporation
CAMDEN PAPERBOARD CORPORATION,
a New Jersey corporation
CARAUSTAR CUSTOM PACKAGING GROUP, INC.,
a Delaware corporation
CARAUSTAR CUSTOM PACKAGING GROUP (MARYLAND), INC.,
a Maryland corporation
CARAUSTAR INDUSTRIAL & CONSUMER PRODUCTS GROUP, INC. ,
a Delaware corporation
CARAUSTAR MILL GROUP, INC., an Ohio corporation f/k/a
Caraustar Paperboard Corporation (as successor by
merger to Austell Box Board Corporation, Buffalo
Paperboard Corporation, Carolina Component Concepts,
Inc., Carolina Converting Incorporated, Carolina
Paper Board Corporation, Carotell Paper Board
Corporation, Chattanooga Paperboard Corporation,
Cincinnati Paperboard Corporation, Columbus
Recycling, Inc., New Austell Box Board Company, Paper
Recycling, Inc., Reading Paperboard Corporation,
Richmond Paperboard Corporation and Sweetwater Paper
Board Company, Inc.)
CARAUSTAR RECOVERED FIBER GROUP, INC.,
a Delaware corporation
CHICAGO PAPERBOARD CORPORATION,
an Illinois corporation
FEDERAL TRANSPORT, INC.,
an Ohio corporation
GYPSUM MGC, INC.,
a Delaware corporation
HALIFAX PAPER BOARD COMPANY, INC.,
a North Carolina corporation
XXXXXXXXX GYPSUM COMPANY,
a Delaware corporation
XXXXXXXX GYPSUM COMPANY, LLC,
a Delaware corporation
PBL INC.,
a Delaware corporation
XXXXXXX PAPERBOARD, INC.,
a Connecticut corporation
By: /s/ H. Xxx Xxxxxx, III
-------------------------------
Name: H. Xxx Xxxxxx, III
Title: Vice President Planning & Development
of each of the foregoing Guarantors
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CARAUSTAR, G.P.,
a South Carolina general partnership
By: CARAUSTAR INDUSTRIES, INC.,
a North Carolina corporation, general partner
By: /s/ H. Xxx Xxxxxx, III
------------------------
Name: H. Xxx Xxxxxx, III
Title: Vice President
By: CARAUSTAR INDUSTRIAL & CONSUMER PRODUCTS
GROUP, INC., a Delaware corporation, general partner
By: /s/ H. Xxx Xxxxxx, III
---------------------------
Name: H. Xxx Xxxxxx, III
Title: Vice President
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LENDERS: BANK OF AMERICA, N.A.,
as Administrative Agent and individually as
an Issuing Lender and a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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BANKERS TRUST COMPANY,
individually as an Issuing Lender and a Lender
By:/s/ M.A. Orlando
-----------------------
Name: Xxxxx X. Orlando
Title: Director
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CREDIT SUISSE FIRST BOSTON
By: /s/ Xxx Xxxxx
----------------
Name Xxx Xxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------
Name Xxxxxxx Xxxxxxxxx
Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH
By:/s/ Xxx Xxxxx
--------------------------
Name: Xxx Xxxxx
Title: Vice President
00
XXX XXXX XX XXX XXXX
By:/s/ Xxxxxx X. XxXxxxxxx
-----------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Assistant Vice President
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