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Exhibit 10.59
EIGHTEENTH AMENDMENT
EIGHTEENTH AMENDMENT (this "Amendment"), dated as of February 1, 2000,
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");
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. Section 2.2(b)(x)(i) of the Credit Agreement is hereby amended
by inserting the phrase "including establishing or increasing reserves against
Eligible Inventory pursuant to receipt of notice from the Borrower that
Anheuser-Xxxxx, Incorporated will not purchase the full quantity of bottles
specified in the Southeast Bottle Supply Agreement, dated May 26, 1999, between
the Borrower and Anheuser-Xxxxx, Incorporated," after the words "Eligible
Inventory," such that Section 2.2(b) now reads:
"(b) The Agent shall (x) at any time be entitled to (i) establish and
increase or decrease reserves against Eligible Accounts Receivable (including,
but not limited to, reserves against fluctuations in the foreign exchange rate
of Canadian dollars) and Eligible Inventory, including establishing or
increasing reserves against Eligible Inventory pursuant to receipt of notice
from the Borrower that Anheuser-Xxxxx, Incorporated will not purchase the full
quantity of bottles specified in the Southeast Bottle Supply Agreement, dated
May 26, 1999, between the Borrower and Anheuser-Xxxxx, Incorporated, and (ii)
impose additional restrictions (or eliminate the same) to the standards of
"Eligible Accounts Receivable" and "Eligible Inventory" and (y) upon not less
than ten (10) days' prior notice to the Borrower reduce the advance rates under
Section 2.2(a)(ii)(A) or (B) or the Inventory Sublimit or restore such advance
rates to any level equal to or below the advance rates stated in Section
2.2(a)(ii)(A) or (B) or the Inventory Sublimit, and "Eligible Inventory," in the
exercise of its Permitted Discretion. The Agent may but shall not be required to
rely on each Borrowing Base Certificate and any other schedules or reports
delivered to it in connection herewith in determining the then eligibility of
Accounts and
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Inventory. Reliance thereon by the Agent from time to time shall not be deemed
to limit the right of the Agent to revise advance rates or standards of
eligibility as provided in this Section 2.2(b)."
2. Section 8.25 of the Credit Agreement is hereby amended by
deleting the section in its entirety and inserting the following new section:
8.25 Minimum Availability. The Available Borrowing Amount less the
Outstandings shall not be permitted to be less than $12,500,000 until the
initial funding of the sale and leaseback of the Southeast Project is
consummated in compliance with this Agreement and the Borrower has received and
notified the Agent of receipt of proceeds in the amount of $24,000,000;
thereafter, the Available Borrowing Amount less the Outstandings shall not be
permitted to be less than $6,000,000 until the Borrower has received a signed
commitment for at least an additional $50,000,000 of financing for the Southeast
Project under terms and conditions, and pursuant to documentation, satisfactory
to the Agent.
3. Article 8 of the Credit Agreement is hereby amended by
inserting the following new section:
"8.26 Southeast Bottle Supply Agreement Notice. The Borrower shall
notify the Agent at least 15 Business Days prior to invoicing Anheuser-Xxxxx,
Incorporated for the payment of any capital amortization fee pursuant to
Sections 3.2 and 7.4 of the Southeast Bottle Supply Agreement, dated May 26,
1999, between the Borrower and Anheuser-Xxxxx, Incorporated."
4. Section 9.1 of the Credit Agreement is hereby amended by
inserting the word "or" at the end of 9.1(o) and inserting the following new
provision:
"(p) Southeast Project. The Borrower or any of Borrower's
Subsidiaries shall (i) default in any payment beyond the period of grace, if
any, under any of the documents delivered in connection with the Southeast
Project, including, but not limited to, the Master Lease Agreement, dated as of
December 30, 1999, between General Electric Capital Corporation and the Borrower
and as amended, modified or supplemented or (ii) default in the observance or
performance of any agreement, instrument, or condition relating to the Southeast
Project, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the parties under
such documents to cause the obligations thereunder to become due prior to their
stated maturity;"
5. In order to induce the undersigned 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
Eighteenth Amendment Effective Date (as defined in Section 9 of this Amendment
and after giving effect thereto) (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
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Default or Event of Default, except as described above, on the Eighteenth
Amendment Effective Date after giving effect to this Amendment.
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
"Eighteenth 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 Eighteenth 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
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Name: X. Xxxxxxx Lighter
Title: Sr. VP & CFO
BT COMMERCIAL CORPORATION,
Individually, as Agent and as
Co-Syndication Agent
By /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: VP
PNC BANK, NATIONAL ASSOCIATION,
Individually, as Co-Syndication
Agent and Issuing Bank
By /s/ Enrico Xxxxx Xxxxx
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Name: Enrico Xxxxx Xxxxx
Title:
BANKERS TRUST COMPANY, as Issuing Bank
By /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: VP
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THE CIT GROUP/BUSINESS CREDIT, INC.
By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
CORESTATES BANK, N.A.
By
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Name:
Title:
FLEET BANK
By
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Name:
Title:
KEY CORPORATE CAPITAL, INC.
By
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Name:
Title:
MELLON BANK, N.A.
By
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Name:
Title:
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NATIONAL BANK OF CANADA
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President
NATIONAL CITY COMMERCIAL FINANCE, INC.
By
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Name:
Title:
SUMMIT COMMERCIAL/GIBRALTAR CORP.
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: VP
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