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EXHIBIT 10.47
SIXTH AMENDMENT AND WAIVER
SIXTH AMENDMENT AND WAIVER (this "Amendment"), dated as of
March 11, 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, 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 :
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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, subject to and on the terms and conditions set forth
herein;
NOW, THEREFORE, it is agreed:
1. The Lenders hereby waive any Default or Event of Default
that may have resulted from the Borrower's failure to comply with the
requirement of Section 8.4(a) of the Credit Agreement that, the Borrower will
not, and will not permit any of its Subsidiaries to, make any Capital
Expenditures in the fiscal year ending 1997 exceeding $40,000,000 in the
aggregate.
2. Section 1.1 of the Credit Agreement is hereby amended by
inserting the following new definition in alphabetical order:
"Dollar Equivalent shall mean, on any date of
calculation of the Borrowing Base pursuant to Section 2.2(c)
of the Credit Agreement or any other date requested by the
Agent, with respect to any amount in Canadian dollars, the
equivalent in Dollars of such amount, determined by the
Borrower using the rate at which such Canadian dollars may be
exchanged into Dollars, as published on such date in the Wall
Street Journal."
3. The definition of "Eligible Accounts Receivable" in
Section 1.1 of the Credit Agreement is hereby amended by (i) deleting the first
sentence therein in its entirety, (ii) inserting the following new first
sentence in lieu thereof:
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"Eligible Accounts Receivable" shall mean the sum of (i)
Accounts of the Borrower payable in Dollars and (ii) the
Dollar Equivalent of Accounts of the Borrower payable in
Canadian dollars not to exceed U.S. $2,000,000 in the
aggregate, in each case deemed by the Agent in its Permitted
Discretion to be eligible for inclusion in the calculation of
Borrowing Base.";
(iii) delete the reference to "Schedule XVI" in clause (d),
(iv) insert "Schedule XV" in lieu thereof, (v) delete each reference to
"Schedule XV" in clause (f), (vi) insert "Schedule XIV" in lieu thereof,
(vii) delete the reference to "Schedule XV" in clause (i) and (viii) insert
"Schedule XIV" in lieu thereof.
4. Section 2.2 of the Credit Agreement is hereby amended by
inserting the following parenthetical immediately after "Eligible Accounts
Receivable" in the second line of clause (b) thereof:
"(including, but not limited to, reserves against fluctuations
in the foreign exchange rate of Canadian dollars)".
5. Section 8.18 of the Credit Agreement is hereby amended by
(i) deleting the reference to "Schedule XII" therein and (ii) inserting
"Schedule XIII" in lieu thereof.
6. Schedule XIV to the Credit Agreement is hereby amended by
inserting a new line setting forth the account debtor "Altrista Corporation"
and the corresponding permitted percentage "up to 15.0%" immediately following
the line setting forth the account debtor "Bacardi-Martini/Castleton" and the
corresponding permitted percentage "up to 15.0%".
7. Schedule XV to the Credit Agreement is hereby amended by
inserting a new line setting forth the account debtor "Altrista Corporation"
and the corresponding payment terms "Home canning sales between January 1 and
May 31 will have net June 1 payment terms" at the end thereof.
8. 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
Sixth Amendment Effective Date (as defined in Section 12 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 (after giving effect to Section 1 of this Amendment) or Event of
Default on the Sixth Amendment Effective Date, in each case both before (except
with respect to Section 1 of this Amendment) and after giving effect to this
Amendment.
9. 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.
10. 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
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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.
11. 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.
12. This Amendment shall become effective on the date (the
"Sixth 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.
13. From and after the Sixth 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
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Name: M. Xxxxxxx Xxxxxxxx
Title: Senior Vice President -Finance
Chief Financial Officer
BT COMMERCIAL CORPORATION,
Individually, as Agent and as
Co-Syndication Agent
By
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Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
Individually, as
Co-Syndication Agent and
Issuing Bank
By
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Name:
Title:
BANKERS TRUST COMPANY, as Issuing Bank
By
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Name:
Title:
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BTM CAPITAL CORPORATION
By
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Name:
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.
By
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Name:
Title:
CORESTATES BANK, N.A.
By
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Name:
Title:
FLEET BANK
By
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Name:
Title:
KEY CORPORATE CAPITAL, INC.
By
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Name:
Title:
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MELLON BANK, N.A.
By
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Name:
Title:
NATIONAL BANK OF CANADA
By
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Name:
Title:
NATIONAL CITY COMMERCIAL FINANCE,
INC.
By
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Name:
Title:
SUMMIT COMMERCIAL/GIBRALTAR CORP.
By
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Name:
Title:
