1
EXHIBIT 10.46
FIFTH AMENDMENT, WAIVER AND CONSENT
FIFTH AMENDMENT, WAIVER AND CONSENT (this "Amendment"), dated
as of January 16, 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 :
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 exist as a result of the Borrower's failure to comply with the
requirement of Section 7.1(d) of the Credit Agreement that, not later than
thirty days prior to the end of the fiscal year ending on December 31, 1997,
the Borrower shall deliver monthly projections to the Lenders, provided that
the Borrower delivers such monthly projections to the Lenders on or prior to
February 10, 1998.
2. The Lenders hereby waive any Default or Event of
Default that may exist as a result of the Borrower's failure to comply with the
requirements in the second sentence of Section 7.5(d) of the Credit Agreement
(that the Borrower will deliver to each of the Banks (i) a complete copy of the
annual report (on Internal Revenue Service Form 5500-series) of each Plan
required to be filed with the Internal Revenue Service and (ii) copies of any
records, documents or other information that must be furnished to the PGBC with
respect to any Plan pursuant to Section 4010 of ERISA), provided, however, that
such
2
requirements in the second sentence of Section 7.5(d) are satisfied as
amended in Section 3 below.
3. Section 7.5(d) of the Credit Agreement is hereby
amended by (i) deleting the text following the first sentence thereof in its
entirety and (ii) inserting the following new text in lieu thereof:
"The Borrower will deliver to each of the Lenders copies of any
records, documents or other information that must be furnished to the
PBGC with respect to any Plan pursuant to Section 4010 of ERISA. Upon
request, the Borrower will deliver to the requesting Lender a complete
copy of the annual report (on Internal Revenue Service Form
5500-series) of each Plan (including, to the extent required, the
related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information),
other than a Multiemployer Plan, required to be filed with the
Internal Revenue Service. In addition to any certificates or notices
delivered to the Lenders pursuant to the first sentence hereof, copies
of any records, documents or other information required to be
furnished to the PBGC, and any material notices received by the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate with
respect to any Plan or Foreign Pension Plan, or received from any
government agency or plan administrator or sponsor or trustee with
respect to any Multiemployer Plan, shall be delivered to the Lenders
no later than ten (10) days after the date such records, documents
and/or information has been furnished to the PBGC or such notice has
been received by the Borrower, the Subsidiary or the ERISA Affiliate,
as applicable."
4. The Lenders hereby consent to deem the Letter
Agreement, dated December 31, 1997, between the Borrower, Fountain Associates
I, Ltd. and Citicorp Leasing, Inc. (attached as Annex I hereto) to satisfy the
requirements of Section 8.23(b)(ii) of the Credit Agreement, provided that the
transactions described therein are consummated on or prior to January 30, 1998.
5. 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 Fifth
Amendment Effective Date (as defined in Section 9 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 Sections 1 and 2 of this Amendment) or Event of
Default on the Fifth Amendment Effective Date, in each case both before (except
with respect to Sections 1 and 2 of this Amendment) and after giving effect to
this Amendment.
-2-
3
6. 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.
7. 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.
8. 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.
9. This Amendment shall become effective on the date
(the "Fifth 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.
10. From and after the Fifth 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.
* * *
-3-
4
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
----------------------------------
Name: M. Xxxxxxx Xxxxxxxx
Title: VP & CFO
BT COMMERCIAL CORPORATION,
Individually, as Agent and as
Co-Syndication Agent
By /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: VP
PNC BANK, NATIONAL ASSOCIATION,
Individually, as Co-Syndication
Agent and Issuing Bank
By /s/ Enrico Xxxxx Xxxxx
-----------------------------------
Name: Enrico Xxxxx Xxxxx
Title:
BANKERS TRUST COMPANY,
as Issuing Bank
By /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: VP
5
BTM CAPITAL CORPORATION
By /s/ illegible
------------------------------------
Name: illegible
Title: Sr. VP
THE CIT GROUP/BUSINESS CREDIT, INC.
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: VP
CORESTATES BANK, N.A.
By /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: VP
FLEET BANK
By /s/ Xxxxxx XxXxxxxx
------------------------------------
Name: Xxxxxx XxXxxxxx
Title: VP
KEY CORPORATE CAPITAL, INC.
By /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Asst. Vice President
6
MELLON BANK, N.A.
By /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: VP
NATIONAL BANK OF CANADA
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: VP
By /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title:
NATIONAL CITY COMMERCIAL FINANCE, INC.
By /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Account Officer
SUMMIT COMMERCIAL/
GIBRALTAR CORP.
By /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: EVP
7
[ANCHOR GLASS CONTAINER LETTERHEAD]
December 31, 1997
Fountain Associates I, Ltd.
c/x Xxxxxx Management Company
0000 Xxxxxxxx Xxxxxxxx Xxxxxxxx
Xxxxx, XX 00000
Citicorp Leasing, Inc.
x/x Xxxxxxxx, N.A.
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
RE: Option Agreement
Ladies and Gentlemen:
Reference is made to the Building Option Agreement dated as of March 31, 1988,
between Anchor Glass Container Corporation, formerly known as Anchor Glass
Acquisition Corporation ("Anchor"), as assignee of Anchor Resolution Corp.,
formerly known as Anchor Glass Container Corporation, and Fountain Associated
I, Ltd. ("Fountain I"), as modified and amended by (a) the First Amendment to
Building Option Agreement dated as of June 16, 1992, (b) the Agreement dated as
of June 16, 1992, (c) the Agreement dated as of Xxxxx 00, 0000, (x) the Amended
and Restated Agreement dated as of September 12, 1996, and (e) the Sixth
Amendment to Lease and Second Amendment to Building Option Agreement dated as
of February 5, 1997 (as so modified and amended, the "Option Agreement").
The purpose of this letter is to confirm our agreements and understandings with
respect to the Option Agreement as follows:
1. Anchor hereby exercises its right under the Option Agreement
to acquire the property described therein (the "Property").
2. The closing on the acquisition on the Property (the "Option
Closing") will be held at the offices of Anchor located on the Property on
January 20, 1998.
3. At the Option Closing, Anchor intends to assign its right
under the Option Agreement to acquire the Property to Highwoods/Florida
Holdings, L.P., a Delaware limited partnership or its designee ("Holdings").
Upon such assignment and payment by Holdings to Citicorp of the purchase price
for the Property (the "Purchase Price") by wire transfer of same day funds, (a)
Citicorp Leasing, Inc. ("Citicorp") will deliver to Holdings documentation to
terminate Citicorp's liens on the Property and security interests in personal
property and fixtures located on the Property, (b) Fountain I will convey the
Property to Holdings and (c) the parties will execute and deliver an Agreement
of Assignment, Assumption and Lease Termination substantially in the
8
form of Exhibit A attached to this letter. On or before January 19, 1998,
Citicorp will provide Anchor with a payoff letter as of January 20, 1998, which
will include (a) an invoice, in reasonable detail, for estimated attorneys'
fees and disbursements incurred by Citicorp in connection with the transactions
contemplated by this letter and (b) wire transfer instructions.
Holdings is obtaining a survey of the Property. Accordingly, it will not be
necessary for Fountain I to deliver a survey of the Property at the Option
Closing.
4. Anchor agrees to reimburse Fountain I for up to $5,000 of
attorneys' fees and disbursements incurred by Fountain I in connection with the
transactions contemplated by this letter upon presentation of an invoice, in
reasonable detail, for such fees and disbursements.
If you are in agreement with the foregoing, please so indicate by signing and
dating a copy of this letter in the spaces provided below and returning it to
the undersigned. This letter may be executed in any number of counterparts and
by different signatories thereto in separate counterparts, each of which when
so executed will be deemed to be an original and all of which taken together
will constitute one and the same instrument. One or more counterparts of this
letter may be delivered by telecopier with the intent that it or they will have
the effect of an originally executed counterpart hereof.
Very truly yours,
Anchor Glass Container Corporation
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxx
Xx. Vice President
Agreed:
Fountain I Associates, Ltd.
By TWC Sixty, Inc., Its
General Partner
Date: December 31, 1997 By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Title: Sr. Vice President
Citicorp Leasing, Inc.
Date: December 31, 1997 By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Title: Vice President
-2-
