WAIVER NO. 4
Exhibit
10.1
WAIVER
XX. 0
XXXXXX
XX.
0, dated as of December 17, 2007 (this “Agreement”), to the Credit
Agreement, dated as of June 10, 2005 (as amended, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among Tekni-Plex,
Inc. (the “Borrower”), Citicorp USA, Inc., as Administrative Agent (in
such capacity, the “Administrative Agent”), General Electric Capital
Corporation, as Syndication Agent (in such capacity, the “Syndication
Agent”), and the Lenders and Issuers party thereto.
W
I T N E
S S E T H :
WHEREAS,
an Event of Default may occur under the Credit Agreement on or after
December 17, 2007; and
WHEREAS,
the Borrower has requested that the Lenders agree and, subject to the terms
and
conditions of this Agreement, the Lenders have agreed, to waive any Bond
Interest Cross Default (as defined below) and any Default or Event of Default
arising from a Deposit Account Non-Effectiveness (as defined below) for the
duration of the Waiver Period (as defined below);
NOW,
THEREFORE, in consideration of the premises and the agreements hereinafter
contained, the parties hereto agree as follows:
1. Defined
Terms. Unless otherwise defined herein, each term used herein
which is defined in the Credit Agreement has the meaning assigned to such term
in the Credit Agreement. In addition, the following term shall have
the following meaning:
“Waiver
Default” shall mean the failure of the Borrower to observe or perform any
term, covenant or agreement binding on it contained in Section 6
below.
2. Waiver.
(a) As
of the date hereof, the Borrower acknowledges that an Event of Default may
occur
under the Credit Agreement as a result of any failure to make a scheduled
interest payment due December 17, 2007 pursuant to the terms of the
Subordinated Note Indenture (the “Bond Interest Cross
Default”).
(b) During
the period from the date hereof to February 14, 2008 (the “Waiver
Period”), the Lenders hereby agree to waive the Bond Interest Cross Default
and any Default or Event of Default arising out of the Deposit Account
Non-Effectiveness (as defined below); provided, however, that
the Waiver Period shall terminate (i) automatically and immediately, upon
the occurrence of any Event of Default other than the Bond Interest Cross
Default or an Event of Default arising from the Deposit Account
Non-Effectiveness, (ii) automatically and immediately, on or after
January 17, 2008, if (A) any Cash Flow Forecast delivered pursuant to
Section 6(b) shows the total U.S. liquidity of the Borrower
and its Domestic Subsidiaries falling below $5 million in either the week of
or
the subsequent two weeks immediately following delivery of such Cash Flow
Forecast (disregarding, however, any impact on liquidity related to the
cash
interest
due February 15, 2008 pursuant to the terms of the New Senior Secured Note
Indenture) or (B) Available Credit is less than $5 million at any time,
(iii) upon one Business Day’s notice by the Administrative Agent, if an
uncured Waiver Default exists or (iv) upon one Business Day’s notice by the
Administrative Agent, on or after January 17, 2008, if the Borrower has not
entered into a waiver or forbearance agreement in respect of the Subordinated
Note Indenture acceptable to the Administrative Agent in its sole
discretion.
3. Conditions
to Effectiveness. This Agreement shall become effective (the
“Effective Date”) upon the satisfaction of the following conditions
precedent:
(a) The
Administrative Agent shall have received a duly executed counterpart of this
Agreement, executed by the Borrower, the Administrative Agent and the Requisite
Lenders, and acknowledged and agreed to by the Guarantors;
(b) The
Administrative Agent shall have received from the Borrower a projected statement
of cash flows for the thirteen week period commencing on December 17, 2007
(the “Cash Flow Forecast”);
(c) The
Administrative Agent shall have received from the Borrower a certificate of
a
Responsible Officer of the Borrower to the effect that all representations
and
warranties contained in this Agreement are true and correct as of the date
hereof;
(d) There
shall have been paid to the Administrative Agent for the account of each Lender
a fee in an amount equal to 0.2% of such Lender’s Revolving Credit Commitment
then in effect; and
(e) The
Administrative Agent and the Lenders shall have received all other fees and
expense (including reasonable fees and expenses of counsel) actually incurred
in
connection with the negotiation, preparation and execution of this Agreement,
in
each case to the extent set forth in an invoice delivered to the Borrower by
7:00 p.m. (New York City time) on December 13, 2007.
4. Release. In
further consideration of the Lenders’ execution of this Agreement, the Borrower
and each of the other Loan Parties hereby releases and forever discharges the
Administrative Agent, the Syndication Agent and the Lenders and all persons
controlling, controlled by, or under common control with any of the foregoing,
and any of their trustees, agents, employees, directors, officers, counsel
and
advisors (collectively, the “Released Group”) of and from all damage,
loss, claims, responsibilities, disputes, demands, liabilities, obligations,
actions and causes of action (whether at law or equity) whatsoever which the
Borrower or any other Loan Party may now have or claim to have against any
such
member of the Released Group as of the Effective Date, and whether presently
known or unknown, matured or unmatured, fixed or contingent and of every nature
and extent whatsoever on account of or in any way concerning, arising out of,
founded upon or in any way relating to this Agreement, the Obligations, the
Credit Agreement or the other Loan Documents, including, but not
limited
to, all such loss or damage of any kind heretofore sustained, or that may arise
as a consequence of the dealing between the parties. For purposes of
the release contained in this paragraph, the term “Borrower” shall mean
and include the Borrower’s successors and assigns, including, without
limitation, any trustees acting on behalf of such parties.
5. Representations
and Warranties.
(a) All
of the Borrower’s representations and warranties contained in this Agreement
shall survive the execution, delivery and acceptance of this Agreement by the
parties hereto. The Borrower expressly reaffirms that each of the
representations and warranties set forth in Article IV of the Credit Agreement,
except with respect to any Default or Event of Default arising from the fact
that no Deposit Account Control Agreement is effective with respect to a
concentration account (the “Wachovia Account”) at Wachovia Bank,
National Association (the “Deposit Account Non-Effectiveness”),
continues to be true and correct, and hereby remakes and incorporates herein
by
reference each such representation and warranty as though made on the date
of
the execution of this Agreement, except to the extent such representations
and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct as of such
earlier date.
(b) The
Borrower has not assigned, conveyed or otherwise transferred, either directly
or
indirectly, in whole or in part, any of the claims purported to be released
pursuant to Section 4 above.
(c) This
Agreement and the other documents and statements furnished by or on behalf
of
the Borrower to the Administrative Agent or any Lender hereunder or in
connection herewith, taken as a whole, do not and will not contain any material
misstatement of fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were, are
or
will be made, not misleading; provided, however, that to the extent any
such document or statement was based upon or constitutes a forecast or
projection, the Borrower represents only that it acted in good faith and
utilized reasonable assumptions and due care in the preparation of such document
or statement.
6. Covenants.
(a) The
Borrower shall either (i) deliver an executed Deposit Account Control Agreement
among the Borrower, the Administrative Agent and Wachovia Bank, National
Association in form and substance reasonably satisfactory to the Administrative
Agent within 15 Business Days after the Effective Date (or such later date
as
the Administrative Agent may, in its sole discretion, agree) (the “Control
Agreement Deadline”) or (ii) not, at any time after the Control Agreement
Deadline, permit the balance of the Wachovia Account to exceed the minimum
balance necessary to cover checks that have been issued in the ordinary course
of business before the Control Agreement Deadline but have not yet cleared;
provided that if, on and after January 4, 2008, there is not yet an
effective Deposit Account Control Agreement in form and substance reasonably
satisfactory to the Administrative Agent, the Borrower shall not
issue
any
checks drawable upon the Wachovia Account unless and until a Deposit Account
Control Agreement in form and substance reasonably satisfactory to the
Administrative Agent becomes effective.
(b) The
Borrower shall deliver weekly updated Cash Flow Forecasts (similar in form
to
those previously delivered) to the Administrative Agent during the Waiver
Period.
(c) The
Borrower shall deliver weekly updated Borrowing Base Certificates to the
Administrative Agent on Wednesday of each week (or, if such day is not a
Business Day, on the next succeeding Business Day) with respect to the last
Business Day of the prior week pursuant to Section 5.01(n)(i) of the
Credit Agreement.
7. No
Implied Waiver.
The
Lenders’ failure, at any time or times hereafter, to require strict performance
by the Borrower of any provision or term of this Agreement shall not waive,
affect or diminish any right of the Lenders thereafter to demand strict
compliance and performance therewith.
8. Miscellaneous.
(a) On
and after the Effective Date, each reference in the Credit Agreement to “this
Agreement”, “hereunder”, “hereof” or words of like import shall mean and be a
reference to the Credit Agreement as modified hereby.
(b) Except
as expressly provided herein, the Credit Agreement shall remain unchanged and
continue in full force and effect. This Agreement is not a novation
nor is it to be construed as a release, waiver or modification of any of the
terms, conditions, representations, warranties, covenants, rights or remedies
set forth in the Credit Agreement or any of the other Loan Documents except
as
specifically set forth herein. Except as expressly provided herein,
the Lenders reserve all rights, claims and remedies that they have or may have
against the Borrower.
(c) This
Agreement is solely for the benefit of the parties hereto and their respective
successors and assigns, and no other Person shall have any right, benefit or
interest under or because of the existence of this Agreement. This
Agreement shall not be assignable by the Borrower without the written consent
of
the Lenders. The Lenders may assign to one or more Persons all or any
part of, or any participation interest in, the Lenders’ rights and benefits
hereunder.
(d) This
Agreement may be executed in any number of counterparts and by different parties
on separate counterparts, all of which when so executed and delivered, shall
be
deemed an original, and which, when taken together, shall constitute one and
the
same instrument. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile or email shall be effective as delivery
of a
manually executed counterpart of this Agreement.
(e) This
Agreement and the rights and obligations of the parties hereto shall be governed
by, and construed and interpreted in accordance with, the laws of the State
of
New York.
(f) Section
headings in this Agreement are included for convenience of reference only and
shall not constitute a part of this Agreement for any other
purpose.
(g) This
Agreement is a Loan Document.
(h) EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT AND ANY OTHER LOAN
DOCUMENT.
[SIGNATURES
ON FOLLOWING PAGE]
IN
WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
TEKNI-PLEX,
INC.,
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as
Borrower
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By:
/s/ Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
Chief Financial Officer
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CITICORP
USA, INC.,
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as
Administrative Agent and Lender
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By:
/s/ Xxxxx Xxxxx
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Name:
Xxxxx Xxxxx
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Title:
Director/Vice President
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GENERAL
ELECTRIC CAPITAL
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CORPORATION,
as Lender
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By:
/s/ Xxxxx XxXxxxxx
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Name:
Xxxxx XxXxxxxx
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Title:
Duly Authorized Signatory
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XXXXX
FARGO FOOTHILL, LLC.,
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as
Lender
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By:
/s/ Xxxx Xxxxxxx
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Name:
Xxxx Xxxxxxx
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Title:
Vice President
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Acknowledged
and Consented to by:
PURETEC
CORPORATION
XXXXXX
HOLDINGS, INC.
TRI-SEAL
HOLDINGS, INC.
PLASTIC
SPECIALTIES AND TECHNOLOGIES, INC.
BURLINGTON
RESINS, INC.
PLASTIC
SPECIALTIES AND TECHNOLOGIES INVESTMENTS, INC.
DISTRIBUTORS
RECYCLING, INC.
TPI
ACQUISITION SUBSIDIARY, INC.
TP/ELM
ACQUISITION SUBSIDIARY, INC.,
as
Guarantors
By: /s/
Xxxxx X.
Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title: Chief
Financial Officer