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EXHIBIT 10.3
SECOND AMENDMENT
SECOND AMENDMENT (this "Amendment"), dated as of April 9, 1997, 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 :
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;
NOW, THEREFORE, it is agreed:
1. Section 1.1 of the Credit Agreement is hereby amended by (i)
deleting the definition "Affiliate Transaction Agreement" in its entirety, (ii)
inserting the following new definitions in lieu thereof:
"Affiliate Transaction Agreement shall mean the Affiliate
Transaction Agreement dated as of the Closing Date, between Consumers,
G&G Investments, Inc., Glenshaw Glass Company, Hillsboro Glass
Company, Canadian Holdco, U.S. Holdco, I.M.T.E.C. Enterprises Inc., an
Oklahoma corporation, the Borrower and the Agent; provided, however,
that upon the execution of the Intercompany Agreement, the Affiliate
Transaction Agreement shall be replaced with such Intercompany
Agreement and shall thereafter mean the Intercompany Agreement.
Intercompany Agreement shall mean the Intercompany Agreement
dated as of April 17, 1997, in the form of Exhibit 17 to the First
Mortgage Notes Indenture, dated as of April 17, 1997, between Anchor
Glass
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Container Corporation (f/k/a Anchor Glass Acquisition Corporation),
U.S. Holdco and The Bank of New York, as Trustee, and in form and
substance satisfactory to the Agent.",
(iii) deleting the reference to "Schedule XV" in the definition of "Designated
Properties", (iv) inserting "Schedule XVI" in lieu thereof, (v) deleting the
reference to "clause (f)" in clause (g) of the definition of "Eligible Accounts
Receivable" and (vi) inserting "clause (g)" in lieu thereof.
2. Section 7.17 of the Credit Agreement is hereby amended by (i)
deleting the word "60th" appearing therein and (ii) inserting the word "120th"
in lieu thereof.
3. Section 8.1 of the Credit Agreement is hereby amended by (i)
deleting the word "Property" appearing in subsection (d) thereof and (ii)
inserting the word "Asset" in lieu thereof.
4. Section 8.4 of the Credit Agreement is hereby amended by (i)
deleting the amounts corresponding to the fiscal quarters listed under the
heading "Amount" in clause (a) thereof, (ii) inserting the following new amounts
in lieu thereof:
"$40,000,000
$35,000,000
$35,000,000
$40,000,000
$40,000,000",
(iii) deleting the amounts corresponding to the fiscal quarters listed under the
heading "Amount" in clause (c) thereof and (iv) inserting the following new
amounts in lieu thereof:
"$45,000,000
$45,000,000
$45,000,000
$45,000,000
$45,000,000".
5. Section 8.21 of the Credit Agreement is hereby amended by (i)
deleting the amounts corresponding to the fiscal years listed under the heading
"Fiscal Year Ending" in clause (a) thereof and (ii) inserting the following new
amounts in lieu thereof:
"$27,000,000
$19,300,000
$8,000,000
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$5,000,000
$1,000,000".
6. Article 8 of the Credit Agreement is hereby amended by inserting as
a new Section 8.25 the following new paragraph:
"8.25 Intercompany Agreement. Notwithstanding anything to
the contrary contained in the Intercompany Agreement, in no case (A)
shall the aggregate commissions paid by the Members of the Anchor
Group (as defined in the Intercompany Agreement) in any twelve-month
period exceed the sum of (i) the aggregate commissions received by the
Members of the Anchor Group pursuant to Section 6 of the Intercompany
Agreement and (ii) U.S. $2.5 million or (B) shall the aggregate
commissions paid to the Members of the Anchor Group by the Members of
the Consumers Group (as defined in the Intercompany Agreement) in any
twelve-month period exceed the sum of (i) the aggregate commissions
received by the Members of the Consumers Group pursuant to Section 6
of the Intercompany Agreement and (ii) U.S. $2.5 million, provided,
however, the limitations contained in this Section 8.25 shall not
apply to (and the calculations made pursuant to this Section 8.25
shall not include) commissions paid by or to the Members of the Anchor
Group if the manufacturing is being done by an Affiliated Glass
Manufacturer (as defined in the Intercompany Agreement) not a Member
of the Anchor Group or a Member of the Anchor Group, as the case may
be, as a result of furnace repairs, strikes or events of force
majeure, in each case temporary in nature, affecting the operation by
such Affiliated Glass Manufacturer or Member of the Anchor Group, as
the case may be, of one or more of its plants."
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 Second Amendment Effective
Date (as defined in Section 11 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 2 of this Amendment) or Event of Default on the Second
Amendment Effective Date, in each case both before (except with respect to
Section 2 of this Amendment) and 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.
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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 "Second
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.
12. From and after the Second 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, Xx.
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Name: M. Xxxxxxx Xxxxxxxx, Xx.
Title: Vice President and Chief
Financial Officer
BT COMMERCIAL CORPORATION,
Individually, as Agent and as
Co-Syndication Agent
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
Individually, as Co-Syndication Agent and
Issuing Bank
By /s/ Xxxxxx X. Xxxxx Xxxxx
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Name: Xxxxxx X. Xxxxx Xxxxx
Title: Vice President
BANKERS TRUST COMPANY,
as Issuing Bank
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
