AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment"), dated as of July 31, 2001, among Sweetheart Cup
Company Inc. (the "Borrower"), Sweetheart Holdings Inc. (the "Parent"), the
financial institutions listed on the signature pages hereto (the "Lenders") and
Bank of America, N.A., as agent (the ""gent").
WHEREAS, the Borrower, the Parent, the Lenders and the Agent
entered into a certain Second Amended and Restated Loan and Security Agreement,
dated as of June 15, 2000 as amended (such agreement as so amended being
referred to herein as the "Loan Agreement"), pursuant to which such lenders have
made term loans to the Borrower in an original aggregate principal amount of
$25,000,000 and have agreed, subject to certain terms and conditions, to make
revolving advances to the Borrower and to issue or to cause the issuance of
letters of credit for the account of the Borrower;
WHEREAS, the parties to the Loan Agreement now wish to amend
certain provisions of the Loan Agreement;
NOW, THEREFORE, the Borrower, the Parent, the Lenders and the
Agent hereby agree as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used but
not defined herein shall have the respective meanings set forth in the Loan
Agreement.
SECTION 2. AMENDMENTS. Subject to the terms and conditions
of effectiveness set forth in Section 3 below, the Loan Agreement is amended as
follows:
2.1. The definition of "Majority Lenders" in Section 1.1
of the Loan Agreement is hereby deleted in its entirety and
the following definition shall be substituted therefor:
`"Majority Lenders" means at any time
Lenders whose Pro Rata Shares aggregate more than
50%.'
2.2. The definition of "Maximum Revolver Amount" in
Section 1.1 of the Loan Agreement is hereby amended by
replacing the amount "$135,000,000" with the amount
"$145,000,000".
2.3. The definition of "Pro Rata Share" in Section 1.1 of
the Loan Agreement is hereby deleted in its entirety and
the following definition shall be substituted therefor:
`"Pro Rata Share" means, with respect to a
Lender at any time, a fraction (expressed as a
percentage), the numerator of which is the sum of (x)
the amount of such Lender's Commitment at such time
plus (y) the aggregate unpaid principal balance of
the Term Loans owing to such Lender at such time and
the denominator of which is the sum of (x) the
amounts of all of the Lenders' Commitments at such
time plus (y) the aggregate unpaid principal balance
of the Term Loans owing to all of the Lenders at such
time; provided, that references to Pro Rata Share in
the context solely of the revolving line of credit
provided hereunder (including, without limitation,
with respect to Revolving Loans and participations in
Revolving Loans, Letters of Credit and Credit
Support) means, with respect to a Lender at any time,
a fraction (expressed as a percentage), the numerator
of which is the amount of such Lender's Commitment at
such time and the denominator of which is the sum of
the amounts of all of the Lenders' Commitments at
such time, or if no Commitments are outstanding, a
fraction (expressed as a percentage), the numerator
of which is the amount of Obligations owed to such
Lender at such time with respect to the revolving
line of credit provided hereunder and the denominator
of which is the aggregate amount of the Obligations
owed to all Lenders at such time with respect to the
revolving line of credit provided hereunder and;
provided, further, that references to Pro Rata Share
in the context solely of the Term Loans means, with
respect to a Lender at any time, a fraction
(expressed as a percentage), the numerator of which
is the aggregate unpaid principal balance of the Term
Loans owing to such Lender at such time and the
denominator of which is the aggregate unpaid
principal balance of the Term Loans owing to all of
the Lenders at such time.'
2.4. The definition of "Required Lenders" in Section 1.1
of the Loan Agreement is hereby deleted in its entirety and
the following definition shall be substituted therefor:
`"Required Lenders" means at any time
Lenders whose Pro Rata Shares aggregate more than 66
2/3%.'
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2.5. The amount "$160,000,000" in Section 2.1 of the Loan
Agreement is hereby deleted and the amount "$170,000,000"
shall be substituted therefor.
2.6. Section 2.2(g)(iii) of the Loan Agreement is hereby
amended by adding the phrase "and Term Loans" immediately
after the phrase "such Lender's Commitment" in the proviso to
the fourth sentence thereof.
2.7. The amount "$135,000,000" in Section 2.2(i) of the Loan
Agreement is hereby deleted and the amount "$145,000,000"
shall be substituted therefor.
2.8. The phrase "(in accordance with its Pro Rata Share)" is
added immediately after each of the phrase "pro rata" in the
first sentence of Section 14.7 of the Loan Agreement and the
phrase "ratable share" in the second sentence of Section 14.7
of the Loan Agreement.
2.9. Section 14.12(a)of the Loan Agreement is hereby amended
by adding the phrase "during the term of this Agreement"
immediately after the phrase "Collateral valued in the
aggregate" in the proviso to the second sentence thereof.
2.10. The Commitment of each Lender shall be the principal
amount set forth beside such Lender's name next to the heading
"Commitment" on the signature pages of this Amendment (in
place and instead of the Commitment identified on the
signature pages of the Loan Agreement), as such Commitment may
be adjusted from time to time in accordance with the terms of
the Loan Agreement.
SECTION 3. EFFECTIVENESS OF AMENDMENTS. The amendments to the
Loan Agreement provided in Section 2 hereof shall become effective when the
following conditions precedent have been satisfied:
3.1. Counterparts. The Agent shall have received an original
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counterpart of this Amendmentduly executed and delivered by
the Borrower, the Agent, the Lenders and the Parent.
3.2. No Default or Event of Default. No Default or Event
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of Default shall have occurredand be continuing.
3.3. Opinion of Counsel. The Agent shall have received such
opinions of counsel for Parent and its Subsidiaries as the
Agent shall reasonably request, in a form, scope and substance
satisfactory to the Agent and its counsel, including, but not
limited to, as to the borrowings and other financial
accommodations under the Total Facility as amended hereby not
resulting in a violation of the
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indenture governing the Senior Subordinated Notes or the
Secured Sale/Leaseback Documents.
3.4. Officers' Certificates.The Agent shall have received(i)
an Officers' Certificate (as defined in the Intercreditor
Agreement) to the effect that the aggregate principal amount
of the Credit Agreement Obligations (as defined in the
Intercreditor Agreement) which may be incurred under the Loan
Agreement (after giving effect to the amendments to the Loan
Agreement herein contemplated) shall not exceed an amount
which would cause a violation of Section 5.09 of the Secured
Sale/Leaseback Participation Agreement (as defined in the
Intercreditor Agreement) and (ii) an Officers' Certificate (as
defined in the indenture governing the Senior Subordinated
Notes) to the effect that any and all Obligations which may be
incurred under the Loan Agreement (after giving effect to the
amendments to the Loan Agreement herein contemplated) as well
as any guarantee obligations of the Parent with respect
thereto are permitted to be incurred under the indenture
governing the Senior Subordinated Notes.
SECTION 4. COUNTERPARTS. This Amendment may be executed in
counterparts, each of which shall be an original, and all of which, taken
together, shall constitute a single instrument. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 5. RATIFICATION AND CONFIRMATION. The Loan Agreement
is hereby ratified and confirmed and, except as herein agreed, remains in full
force and effect. Parent hereby consents to the above amendments to the Loan
Agreement and agrees that its guarantee of the Obligations pursuant to the
Parent Guaranty continues in full force and effect in accordance with the terms
thereof (both before and after giving effect to such amendments). Each of the
Borrower and Parent represents and warrants that (i) all representations and
warranties contained in the Loan Documents are true and correct in all material
respects with the same effect as though such representations and warranties had
been made on and as of the date hereof (except to the extent that such
representations or warranties expressly related to a specified date) and (ii)
there exists no Default or Event of Default.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
"BORROWER"
SWEETHEART CUP COMPANY INC.
By:
--------------------------------
Name:
Title:
"PARENT"
SWEETHEART HOLDINGS INC.
By:
--------------------------------
Name:
Title:
"AGENT"
BANK OF AMERICA, N.A.,
as the Agent
By:
--------------------------------
Name:
Title:
"LENDERS"
Commitment: $58,225,307.74 BANK OF AMERICA, N.A.,
as a Lender
By:
--------------------------------
Name:
Title:
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Commitment: $25,312,500.00 CONGRESS FINANCIAL CORPORATION,
as a Lender
By:
--------------------------------
Name:
Title:
Commitment: $16,875,000.00 TRANSAMERICA BUSINESS CREDIT
CORPORATION,
as a Lender
By:
--------------------------------
Name:
Title:
Commitment: $23,493,442.26 GMAC COMMERCIAL CREDIT LLC,
as a Lender
By:
--------------------------------
Name:
Title:
Commitment: $21,093,750.00 PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By:
--------------------------------
Name:
Title:
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