THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.22
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is made and entered into as of this 3 day of August, 2004, among Caraustar Industries, Inc., a North Carolina corporation (“Caraustar”), and each Subsidiary of Caraustar listed on the signature pages hereto as a “Borrower” (Caraustar and each such Subsidiary, individually, a “Borrower”, and, collectively, “Borrowers”), and each Subsidiary of Caraustar listed on the signature pages hereto as a “Guarantor” (each such Subsidiary, individually, a “Guarantor”, and, collectively, “Guarantors”; Borrowers and Guarantors, collectively, “Obligors”), the Lenders party to this Amendment (the “Lenders”), and Bank of America, N.A., as Agent for the Lenders (the “Agent”).
W I T N E S S E T H :
WHEREAS, Borrowers, Guarantors, the Lenders and the Agent entered into that certain Credit Agreement, dated as of June 24, 2003, pursuant to which the Lenders agreed to make certain loans to Borrowers (as amended, modified, supplemented and restated from time to time, the “Credit Agreement”); and
WHEREAS, Borrowers, Guarantors, the Lenders and the Agent desire to enter into this Amendment for the purpose of amending the Credit Agreement in certain respects.
NOW, THEREFORE, in consideration of the foregoing premises, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise expressly defined herein shall have the respective meanings given to such terms in the Credit Agreement.
2. The Credit Agreement is amended by deleting clause (iv) of Section 7.14 and replacing it with the following:
(iv) immediately after giving effect to such prepayment, the Obligors are in compliance with the financial covenant set forth in Section 7.23(a); provided, that (A) this requirement shall apply whether or not such financial covenant would then be applicable as a result of the terms of Section 7.23(b), (B) such financial covenant shall be measured as of the most recently ended fiscal month for which the Obligors have delivered the financial statements required under Section 5.2(b) for the twelve fiscal month period then ended (or, in the case of any fiscal month ending prior to March 31, 2004, for the period commencing on April 1, 2003 and ending on the last day of such fiscal month), (C) in the case of any fiscal month end that is not also a fiscal quarter end, the level of the required Fixed Charge Coverage Ratio shall be the same as the Fixed Charge Coverage Ratio required under Section 7.23(a) as of the immediately preceding fiscal quarter end, (D) in calculating the Fixed Charge Coverage Ratio for purposes of this Section 7.14(a), such prepayment shall be included as a Fixed Charge, except to the extent that, in
the case of the first $10,000,000 of prepayments, such prepayments are made from cash of the Obligors and not from the direct or indirect proceeds of Loans, and (E) this requirement shall not apply with respect to the first $14,000,000 of prepayments made from the Closing Date through September 30, 2004; and;
3. To induce the Agent and the Lenders to enter into this Amendment, Borrowers and Guarantors hereby represent and warrant that, as of the date hereof, there exists no Default or Event of Default under the Credit Agreement.
4. Borrowers and Guarantors hereby restate, ratify, and reaffirm each and every representation and warranty heretofore made by each of them under or in connection with the execution and delivery of the Credit Agreement, as modified hereby, and the other Loan Documents, as fully as though such representations and warranties had been made on the date hereof and with specific reference to this Amendment, except to the extent that any such representation or warranty relates solely to a prior date.
5. Except as expressly set forth herein, the Credit Agreement and the other Loan Documents shall be and remain in full force and effect as originally written, and shall constitute the legal, valid, binding and enforceable obligations of Borrowers and Guarantors to the Agent and the Lenders.
6. Borrowers agree to pay on demand all reasonable costs and expenses of the Agent in connection with the preparation, execution, delivery and enforcement of this Amendment and all other Loan Documents and any other transactions contemplated hereby, including, without limitation, the reasonable fees and out-of-pocket expenses of legal counsel to the Agent.
7. Borrowers and Guarantors agree to take such further action as the Agent shall reasonably request in connection herewith to evidence the agreements herein contained.
8. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument.
9. This Amendment shall be binding upon and inure to the benefit of the successors and permitted assigns, and legal representatives and heirs, of the parties hereto.
10. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Georgia.
[SIGNATURES BEGIN ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have entered into this Agreement on the date first above written.
| BORROWERS: | CARAUSTAR INDUSTRIES, INC. | |||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||||
| CARAUSTAR CUSTOM PACKAGING GROUP, INC. | ||||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||||
| CARAUSTAR RECOVERED FIBER GROUP, INC. | ||||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||||
| CARAUSTAR INDUSTRIAL AND CONSUMER PRODUCTS GROUP, INC. | ||||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||||
| CARAUSTAR MILL GROUP, INC. | ||||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||||
| XXXXXXX PAPERBOARD, INC. | ||||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||||
| GUARANTORS: | PBL INC. | |||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||||
| GYPSUM MGC, INC. | ||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||
| XXXXXXXXX GYPSUM COMPANY | ||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||
| CARAUSTAR, G.P. | ||||||
| By: |
CARAUSTAR INDUSTRIES, INC., | |||||
| general partner | ||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxx, | ||||||
| Vice President | ||||||
| By: |
CARAUSTAR INDUSTRIAL AND CONSUMER PRODUCTS GROUP, INC., general partner | |||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxx, | ||||||
| Vice President | ||||||
| XxXXXXXX GYPSUM COMPANY, LLC | ||||||
| By: |
XxXXXXXXX GYPSUM COMPANY, sole member | |||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||
| RECCMG, LLC | ||||||
| By: |
CARAUSTAR MILL GROUP, INC., sole member | |||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||
| CICPG, LLC | ||||||
| By: |
CARAUSTAR INDUSTRIAL AND CONSUMER PRODUCTS GROUP, INC. | |||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||
| FEDERAL TRANSPORT, INC. | ||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||
| AUSTELL HOLDING COMPANY, LLC | ||||||
| By: |
CARAUSTAR INDUSTRIES, INC., sole member | |||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||
| CAMDEN PAPERBOARD CORPORATION | ||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||
| CHICAGO PAPERBOARD CORPORATION | ||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||
| HALIFAX PAPER BOARD COMPANY, INC. | ||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||
| CARAUSTAR CUSTOM PACKAGING (MARYLAND), INC. | ||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||
| LENDERS: | BANK OF AMERICA, N.A. | |||||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||||||
| XXXXXXX XXXXX CAPITAL, a division of Xxxxxxx Xxxxx Business Financial Services Inc. | ||||||||||
| By: |
/s/ Xxxx X. Oder | |||||||||
| Name: |
Xxxx X. Oder | |||||||||
| Title: |
Vice President | |||||||||
| THE CIT GROUP/BUSINESS CREDIT, INC. | ||||||||||
| By: |
/s/ Illegible | |||||||||
| Name: |
Illegible | |||||||||
| Title: |
Vice President | |||||||||
| AGENT: | BANK OF AMERICA, N.A. | |||||||||
| By: |
/s/ Xxxxxx X. Xxxxxxxx | |||||||||
| Xxxxxx X. Xxxxxxxx, Vice President | ||||||||||
