EXHIBIT 10.41
FOURTH AMENDMENT TO SECURED CREDIT AGREEMENT
This Fourth Amendment to Secured Credit Agreement (this
"AGREEMENT") is dated as of May 14, 1999 by and among Gibraltar Packaging Group,
Inc., a Delaware corporation (the "BORROWER"), the financial institutions
parties to the Credit Agreement (as defined herein) (collectively, the "LENDERS"
and individually, a "LENDER") and First Source Financial LLP, as Agent for the
Lenders (the "AGENT").
RECITALS
WHEREAS, the Borrower, the Agent and the Lenders are parties
to that certain Secured Credit Agreement, dated as of July 31, 1998 (the
"ORIGINAL CREDIT AGREEMENT"), as amended by that certain First Amendment to
Secured Credit Agreement, dated as of September 1, 1998 (the "FIRST AMENDMENT"),
that certain Second Amendment to Secured Credit Agreement, dated as of November
13, 1998 (the "SECOND AMENDMENT") and that certain Third Amendment to Secured
Credit Agreement, dated as of February 12, 1999 (the "THIRD AMENDMENT"; the
Original Credit Agreement, as amended by the First Amendment, the Second
Amendment and the Third Amendment, is collectively referred to herein as the
"SECURED CREDIT AGREEMENT"), among the Borrower, the Agent and the Lenders;
WHEREAS, the Borrower wishes, and the Agent and the Lenders
are willing, to amend certain provisions of the Secured Credit Agreement and to
waive compliance with certain provisions of the Secured Credit Agreement, all on
the terms and conditions set forth in this Agreement.
WHEREAS, First Source Financial LLP and LaSalle Business
Credit, Inc. are the only Lenders which are parties to the Secured Credit
Agreement as of the date hereof; and
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, the parties hereto agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used but not otherwise defined herein
shall have the meanings as set forth in the Secured Credit Agreement.
2. Waiver. The Lenders hereby waive any Unmatured Event of Default or
Event of Default caused by the Borrower's failure to comply with the Net Worth,
Debt to EBITDA Ratio, Interest Coverage Ratio and Fixed Charge Coverage Ratio
covenants set forth in Sections 11.32(a), (b), (c) and (d) of the Secured Credit
Agreement through March 31, 1999; provided, however, that
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the Borrower may not incur or continue any LIBOR Rate Loans (or convert any
Prime Rate Loans into LIBOR Rate Loans) from the date hereof until the date on
which the Borrower demonstrates to the Agent and the Lenders, by the delivery of
a Compliance Certificate and the financial statements required under Section
11.1(b), its compliance with the financial covenant set forth in Sections
11.32(d).
3. Amendments to Secured Credit Agreement.
(a) Section 2.12.10 of the Secured Credit Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
SECTION 2.12.10 CASH COLLATERAL.
(a) DEPOSIT OF CASH COLLATERAL UPON AN EVENT OF
DEFAULT. Upon demand by Agent or the Required Lenders after the
occurrence of any Event of Default, Borrower shall deposit in an
account (the "LETTER OF CREDIT CASH COLLATERAL ACCOUNT") maintained
with FSFP in the name of Agent, for the ratable benefit of Agent and
the Lenders, with respect to each Letter of Credit then outstanding
(other than the RIC Letter of Credit, which does not constitute a
Letter of Credit hereunder), promptly upon such demand, cash or Cash
Equivalents in an amount equal to 110% of the greatest amount for which
such Letter of Credit may be drawn.
(b) TERMS OF LETTER OF CREDIT CASH COLLATERAL
ACCOUNT. Any funds held in the Letter of Credit Cash Collateral Account
shall be promptly applied by Agent to reimburse the Issuing Bank for
drafts drawn from time to time under the Letters of Credit. Such funds,
if any, remaining in the Letter of Credit Cash Collateral Account
following the termination of all Letters of Credit and the payment of
all Reimbursement Obligations in full shall, unless Agent is otherwise
directed by a court of competent jurisdiction, be promptly paid over to
Borrower. Upon the deposit of any amounts in the Letter of Credit Cash
Collateral Account and, in any event, on or before the Revolving Loan
Termination Date, Borrower shall enter into a security agreement in
form and substance satisfactory to Agent, pledging to Agent, for the
benefit of Agent and the Lenders, a security interest in all Cash
Equivalents delivered to Agent pursuant to the terms hereof. If no
Unmatured Event of Default or Event of Default has occurred and is
continuing, the Borrower may direct the investment of funds maintained
in the Letter of Credit Cash Collateral Account in Cash Equivalents.
Upon the occurrence and during the continuance of an Unmatured Event of
Default or Event of Default, Borrower shall have no control over funds
deposited in the Letter of Credit Cash Collateral Account, which funds
shall be invested by Agent from time to time in its discretion in Cash
Equivalents.
(b) Section 2 of the Secured Credit Agreement is hereby amended by
adding the following new Section 2.15 immediately following Section 2.14:
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SECTION 2.15 LASALLE LETTER OF CREDIT. Notwithstanding anything to the
contrary contained in this Agreement, Borrower may (a) cause LaSalle National
Bank (the "RIC ISSUING BANK") to issue a letter of credit (the "RIC LETTER OF
CREDIT") for the account of Borrower in the face amount not to exceed $150,000,
to support the obligations of Borrower to Royal Indemnity Company, and (b)
pledge to the RIC Issuing Bank as security for its reimbursement obligations to
the RIC Issuing Bank in respect of the RIC Letter of Credit, cash or Cash
Equivalents (the "XXX XXXX COLLATERAL") in an amount not to exceed 100% of the
aggregate undrawn face amount of the outstanding RIC Letter of Credit and all
fees and other amounts due or which may become due with respect thereto. The RIC
Letter of Credit shall not be a Letter of Credit under this Agreement and,
therefore, no LC Guaranty shall be issued in respect thereof. Notwithstanding
anything to the contrary contained in Section 6.2 hereof, Borrower may maintain
a depositary account (the "XXX XXXX COLLATERAL ACCOUNT") with the RIC Issuing
Bank; provided, that no funds other than XXX Xxxx Collateral shall be maintained
in such XXX Xxxx Collateral Account; provided, further, that (i) Borrower shall
have irrevocably instructed the RIC Issuing Bank, at the request of Agent, to
provide Agent with information concerning the XXX Xxxx Collateral Account, (ii)
the RIC Issuing Bank shall have acknowledged such instructions in writing for
the benefit of Agent, and (iii) at any time when an Event of Default or
unmatured Event of Default has occurred and is continuing Borrower shall, at
Agent's request, promptly cause the RIC Issuing Bank to provide Agent with daily
reports of the balance in the XXX Xxxx Collateral Account. Upon the
establishment of the XXX Xxxx Collateral Account, Borrower shall enter into a
security agreement in form and substance satisfactory to Agent, pledging to
Agent, for the benefit of Agent and the Lenders, a second priority security
interest (subject only to the security interest of the RIC Issuing Bank in the
XXX Xxxx Collateral) in the XXX Xxxx Collateral Account and all cash and Cash
Equivalents held therein.
(c) Section 4.1 of the Secured Credit Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
SECTION 4.1 INTEREST RATES. Subject to Section 4.3, Borrower
hereby promises to pay interest on the outstanding principal amount of each Loan
for the period commencing on the date thereof until such Loan is paid in full,
at a rate per annum determined by reference to the Prime Rate or the LIBOR Rate,
respectively. The applicable basis for determining the rate of interest shall be
selected by Borrower at the time a borrowing is requested pursuant to Section
2.3 or at the time a Notice of LIBOR Activity is given pursuant to Section 4.4,
as the case may be. If on any day any portion of any Loan is outstanding with
respect to which notice has not been given to Agent in accordance with the terms
of this Agreement specifying the basis for determining the rate of interest
thereon, then for that day, such portion of such Loan shall be a Prime Rate Loan
and shall bear interest at a rate determined by reference to the Prime Rate.
Subject to Section 4.3, (i) each Prime
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Rate Revolving Loan and LIBOR Rate Revolving Loan shall bear interest at a rate
per annum determined as follows: (a) if it is a Prime Rate Revolving Loan, then
at the sum of the Prime Rate in effect from time to time plus one and
one-quarter of one percent (1.25%); or (b) if it is a LIBOR Rate Revolving Loan,
then at the sum of the LIBOR Rate for the applicable Interest Period plus three
and one-quarter of one percent (3.25%) (the "LIBOR REVOLVING MARGIN"); and (ii)
each Prime Rate Term Loan and LIBOR Rate Term Loan shall bear interest at a rate
per annum determined as follows: (a) if it is a Prime Rate Term Loan, then at
the sum of the Prime Rate in effect from time to time plus one and
three-quarters of one percent (1.75%); or (b) if it is a LIBOR Rate Term Loan,
then at the sum of the LIBOR Rate for the applicable Interest Period plus three
and three-quarters of one percent (3.75%).
(d) Section 10.27 of the Secured Credit Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
SECTION 10.27 SOLVENCY. Borrower and its Subsidiaries are
Solvent, as determined on a consolidated basis, both before and after giving to
the execution and delivery of this Agreement and any of the other Related
Documents to which Borrower or any Subsidiary is a party and consummation of the
transactions contemplated hereunder or thereunder, including, without
limitation, the Related Transactions.
(e) Section 11 of the Secured Credit Agreement is hereby amended by
inserting the following new Section 11.34 immediately following Section 11.33:
SECTION 11.34 KEY MAN INSURANCE POLICY. On or before July 15,
1999, the Borrower shall deliver to the Agent a duly executed assignment of a
$5,000,000 life insurance policy on Xxxxxxx Xxxxxxxx in form and substance
satisfactory to the Agent.
4. Representations and Warranties. To induce the Agent and the Lenders
to enter into this Agreement and to make all future Loans under the Secured
Credit Agreement, the Borrower represents and warrants to the Agent and the
Lenders that:
(a) Due Authorization, etc. The execution, delivery and performance by
the Borrower of this Agreement executed as of the date hereof are within its
corporate powers, have been duly authorized by all necessary corporate action
(including without limitation, shareholder approval, if any shall be required),
have received all necessary governmental approval (if any shall be required),
and do not and will not contravene or conflict with any Requirement of Law or
Contractual Obligation binding upon such entity. This Agreement is the legal,
valid, and binding obligation of the Borrower enforceable against the Borrower
in accordance with its respective terms.
(b) Certain Agreements. To the best of the Borrower's knowledge, on the
date hereof all warranties of the Borrower thereto set forth in the Secured
Credit Agreement, as amended hereby,
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are true and correct in all material respects, without any waiver or
modification thereof and no default of any party exists under the Secured Credit
Agreement or any Related Document.
(c) Financial Information. All balance sheets, all statement of
operations, of shareholders' equity and of changes in financial position, and
other financial data which have been or shall hereafter be furnished to the
Agent for the purposes of or in connection with this Agreement have been and
will be prepared in accordance with GAAP consistently applied throughout the
periods involved and do and will, present fairly the financial condition of the
entities involved as of the dates thereof and the results of their operations
for the periods covered thereby.
(d) Litigation. No material litigation (including, without limitation,
derivative actions), arbitrations, governmental investigation or proceeding or
inquiry shall, on the date hereof, be pending which was not previously disclosed
in writing to the Agent and no material adverse development shall have occurred
in any litigation (including, without limitation, derivative actions),
arbitration, government investigations, or proceeding or inquiry previously
disclosed to the Agent in writing.
5. Conditions to Effectiveness. This Agreement shall be effective as of
March 31, 1999 upon the satisfaction of the conditions set forth in this Section
5 and delivery of the following documents to the Agent on or prior to the date
hereof (unless another date is specified), in form and substance satisfactory to
the Agent and the Lenders:
(a) Agreement. The Borrower shall have delivered to the Agent executed
originals of this Agreement.
(b) Consents and Acknowledgments. The Borrower shall have obtained all
consents, approvals and acknowledgments which may be required with respect to
the execution, delivery and performance of this Agreement.
(c) No Default. As of the date hereof after giving effect to this
Agreement and the waiver set forth in Section 2 hereof, no Unmatured Event of
Default or Event of Default under any Related Document shall have occurred and
be continuing.
(d) Amendment Fee. The Borrower shall have delivered to the Agent for
the benefit of the Lenders, on or before May 14, 1999, an amendment fee of
$40,000.
6. Affirmation of Guaranties.
Each Guarantor (i) consents to and approves the execution and delivery
of this Agreement by the Borrower, the Agent and the Lenders, (ii) agrees that
this Agreement does not and shall not limit or diminish in any manner its
obligations under its Guaranty or under any of the other Related Documents to
which it is a party, (iii) agrees that this Agreement shall not be construed as
requiring the consent of any Guarantor in any other circumstance, (iv) reaffirms
its obligations under its Guaranty and all of the other Related Documents to
which it is a party, and (v) agrees that its
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Guaranty and such other Related Documents remain in full force and effect and
are each hereby ratified and confirmed.
7. Miscellaneous.
(a) Captions. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this Agreement.
(b) Governing Law. This Agreement shall be a contract made under and
governed by the laws of the State of Illinois, without regard to conflict of
laws principles. Wherever possible each provision of this Agreement shall be
interpreted in such manner to be effective and valid under applicable law, but
if any provision of this Agreement shall be prohibited by or invalid under such
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provisions or the
remaining provision of this Agreement.
(c) Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute one and the same Agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
(d) Successors and Assignees. This Agreement shall be binding upon the
Borrower, the Agent, the Lenders and their respective successors and assignees,
and shall inure to the sole benefit of the Borrower, the Agent, the Lenders and
their successors and assignees.
(e) References. Any reference to the Secured Credit Agreement contained
in any notice, request, certificate, or other document executed concurrently
with or after the execution and delivery of this Agreement shall be deemed to
include this Agreement unless the context shall otherwise require.
(f) Continued Effectiveness. Notwithstanding anything contained herein,
the terms of this Agreement are not intended to and do not serve to effect a
novation as to the Secured Credit Agreement, any Note or any of the Collateral
Documents provided to furnish security therefor. The parties hereto expressly do
not intend to extinguish the Secured Credit Agreement, any Note or the
Collateral Documents. Instead, it is the express intention of the parties hereto
to reaffirm the existence of the indebtedness created under the Secured Credit
Agreement which is evidenced by Notes and secured by the various Collateral
Documents. The Secured Credit Agreement and each of the Related Documents as
amended hereby remain in full force and effect. The execution, delivery and
effectiveness of this Agreement shall not operate as a waiver of any right,
power or remedy of the Lenders or the Agent under the Secured Credit Agreement
or any Related Document to which the Lenders and the Agent are a party nor,
except as set forth in Section 2 hereof, constitute a waiver of any provision in
or Event of Default or Unmatured Event of Default (now or hereafter existing)
under the terms of the Secured Credit Agreement or any Related Document.
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(g) Fees and Expenses. In accordance with Section 14.4 of the Secured
Credit Agreement, the Borrower agrees to pay on demand all fees, costs and
expenses incurred by the Agent and the Lenders in connection with the
preparation, execution and delivery of this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
GIBRALTAR PACKAGING GROUP, INC., as
Borrower
By: /s/ Xxxx X. Xxxxx
Name Printed: Xxxx X. Xxxxx
Title: Executive VP & CFO
FIRST SOURCE FINANCIAL LLP,
as Agent and a Lender
By: First Source Financial, Inc.
Its: Manager
By: /s/ Xxxx Xxxxxxx
Name Printed: Xxxx Xxxxxxx
Title: Senior Vice President
LASALLE BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Xxxxx Xxxx
Name Printed: Xxxxx Xxxx
Title: Vice President
RIDGEPAK CORPORATION, as a Guarantor
By: /s/ Xxxx X. Xxxxx
Name Printed: Xxxx X. Xxxxx
Title: Secretary
S-1
[TO FOURTH AMENDMENT TO SECURED CREDIT AGREEMENT]
NIEMAND HOLDINGS, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxx
Name Printed: Xxxx X. Xxxxx
Title: Secretary
NIEMAND INDUSTRIES, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxx
Name Printed: Xxxx X. Xxxxx
Title: Secretary
GB LABELS, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxx
Name Printed: Xxxx X. Xxxxx
Title: Secretary
STANDARD PACKAGING AND PRINTING
CORP., as a Guarantor
By: /s/ Xxxx X. Xxxxx
Name Printed: Xxxx X. Xxxxx
Title: Secretary
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[TO FOURTH AMENDMENT TO SECURED CREDIT AGREEMENT]
