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EXHIBIT 10.47
WAIVER AND FIRST AMENDMENT
TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as of
November 13, 2000 is entered into by and among U.S. PLASTIC LUMBER CORP., a
Nevada corporation (the "Company"), the financial institutions listed on the
signature pages hereof (collectively, the "Banks"), and Bank of America, N.A.,
as agent (in such capacity, the "Administrative Agent") for the Banks.
W I T N E S S E T H:
WHEREAS, the Company, the Banks and the Administrative Agent are
parties to a Credit Agreement dated as of June 30, 2000 (the "Existing Credit
Agreement" and, as amended and modified by this Amendment, the "Amended Credit
Agreement"); and
WHEREAS, the parties hereto desire to amend the Existing Credit
Agreement in certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1 DEFINED TERMS. Terms defined in the Existing Credit Agreement
and not otherwise defined herein are used herein as therein defined.
SECTION 2 AMENDMENTS TO EXISTING CREDIT AGREEMENT.
2.1 Definition of Base Rate Margin. The definition of Base Rate Margin
in Section 1.1 of the Existing Credit Agreement is deleted in its entirety and
the following is substituted therefor:
"Base Rate Margin means 3.50%; provided that the Base Rate Margin shall
be decreased to (i) 3.25% upon completion of the sale of the assets
described in the side letter of even date herewith and receipt by the
Company of $4,000,000 of Net Cash Proceeds from the issuance of Equity
or Equity Equivalents by the Company after November 13, 2000, (ii)
3.00% upon completion of the sale of the assets described in the side
letter of even date herewith and receipt by the Company of $6,000,000
of Net Cash Proceeds from the issuance of Equity or Equity Equivalents
by the Company after November 13, 2000, (iii) 2.75% upon completion of
the sale of the assets described in the side letter of even date
herewith and receipt by the Company of $8,000,000 of Net Cash Proceeds
from the issuance of Equity or Equity Equivalents by the Company after
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November 13, 2000, and (iv) the levels established in the pricing grid
set forth in Schedule 1.1 on the first date on which (w) the pricing is
scheduled to be adjusted pursuant to Schedule 1.1, (x) the Company has
achieved Compliance with 9/30/01 Covenants, (y) no Event of Default or
Unmatured Event of Default exists and (z) the Company has either
voluntarily prepaid Term Loans by an amount not less than the
Designated Amount or prepaid the Term Loans in full."
2.2 Definition of Borrowing Base. The definition of Borrowing Base in
Section 1.1 of the Existing Credit Agreement is deleted in its entirety and the
following is substituted therefor:
"Borrowing Base means, at any time of determination, the sum of (i) 80%
of Eligible Accounts Receivable, plus (ii) (A) through April 15, 2001,
the least of (1) 50% of Eligible Inventory, (2) 100% of the amount
determined pursuant to clause (i), or (3) $5,000,000, and (B) after
April 15, 2001, the least of (1) 50% of Eligible Inventory, (2) 50% of
the amount determined pursuant to clause (i), or (3) $5,000,000, plus
(iii) the Specified Percentage of the Initial Equipment Value of all
Eligible Equipment."
2.3 Definition of EBITDA. The definition of EBITDA in Section 1.1 of
the Existing Credit Agreement is deleted in its entirety and the following is
substituted therefor:
"EBITDA means, for any period, Consolidated Net Income for such period
plus to the extent deducted in determining such Consolidated Net
Income, Interest Expense, income tax expense, depreciation and
amortization for such period; provided that for purposes of calculating
the Interest Coverage Ratio for the Computation Period ending June 30,
2001, EBITDA shall be calculated based on an annualization of the last
three Fiscal Quarters ending on that date."
2.4 Definition of Eligible Accounts Receivable. Clause (7) of the
definition of Eligible Accounts Receivable in Section 1.1 of the Existing Credit
Agreement is deleted in its entirety and the following is substituted therefor:
"(7) such account receivable is not outstanding more than 90 days after
the date of such original invoice therefor, unless such account
receivable arises in connection with the Company's winter buying
program (and is readily identifiable as such) in which case such
account receivable is not outstanding more than 150 days after the date
of such invoice; provided that in no event shall the aggregate amount
of all Eligible Accounts Receivable arising in connection with the
winter buying program exceed $2,000,000;"
2.5 Definition of Eurodollar Margin. The definition of Eurodollar
Margin in Section 1.1 of the Existing Credit Agreement is deleted in its
entirety and the following is substituted therefor:
"Eurodollar Margin means 4.75%; provided that the Eurodollar Margin
shall be decreased to (i) 4.50% upon completion of the sale of the
assets described in the side letter of even date herewith and receipt
by the Company of $4,000,000 of Net Cash Proceeds from the issuance of
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Equity or Equity Equivalents by the Company after November 13, 2000,
(ii) 4.25% upon completion of the sale of the assets described in the
side letter of even date herewith and receipt by the Company of
$6,000,000 of Net Cash Proceeds from the issuance of Equity or Equity
Equivalents by the Company after November 13, 2000, (iii) 4.00% upon
completion of the sale of the assets described in the side letter of
even date herewith and receipt by the Company of $8,000,000 of Net Cash
Proceeds from the issuance of Equity or Equity Equivalents by the
Company after November 13, 2000, and (iv) the levels established in the
pricing grid set forth in Schedule 1.1 on the first date on which (w)
the pricing is scheduled to be adjusted pursuant to Schedule 1.1, (x)
the Company has achieved Compliance with 9/30/01 Covenants, (y) no
Event of Default or Unmatured Event of Default exists and (z) the
Company has either voluntarily prepaid Term Loans by an amount not less
than the Designated Amount or prepaid the Term Loans in full."
2.6 Additional Definitions. The following definitions shall be added to
Section 1.1 of the Existing Credit Agreement in appropriate alphabetical
sequence:
"Chicago Facility means the facility operated by the Company and
located at 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx."
"Compliance with 9/30/01 Covenants means that, as of the end of a
Fiscal Quarter, (a) no Event of Default or Unmatured Event of Default
exists and (b) the Company would be in compliance with each of the
financial covenants set forth in Section 10.6.2 through 10.6.7 assuming
that the ratios and requirements for September 30, 2001 were
applicable."
"Designated Amount means an amount equal to 25% of the aggregate Net
Cash Proceeds from the issuance of Equity or Equity Equivalents after
June 30, 2000 and prior to March 31, 2001."
"Equity or Equity Equivalents means any of (a) common stock, (b)
preferred stock with quarterly cash dividends not exceeding 10% per
annum, or (c) convertible subordinated debentures which are unsecured,
do not require cash interest payments prior to December 31, 2003, have
a tenor of at least 5 years, have no financial covenants, may not be
repaid without Required Banks' approval and have other terms and
conditions (including subordination terms) acceptable to the Required
Banks."
2.7 Changes in Commitment Amount. Section 6.2.1 of the Existing Credit
Agreement is renumbered as "Section 6.2" and moved to be in appropriate
numerical sequence, Section 6.2 of the Existing Credit Agreement is renumbered
as "Section 6.2.1" and moved to be in appropriate numerical sequence and the
following new Section 6.2.3 is inserted in the Existing Credit Agreement in
appropriate numerical sequence:
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"6.2.3 Mandatory Reduction of the Revolving Commitments. Unless the
Required Banks consent otherwise, the Revolving Commitment Amount shall
be reduced immediately by an amount equal to the amount of any Net Cash
Proceeds received concurrently with or after repayment in full of the
Term Loans (excluding any portion thereof used to prepay Term Loans).
Notwithstanding the foregoing, with the approval of the Required Banks,
the Revolving Commitment Amount shall not be required to be reduced
with Net Cash Proceeds from the sale of Clean Earth, Inc. to the extent
such Net Cash Proceeds are used to repay amounts outstanding under the
Xxxxx Note."
2.8 Mandatory Prepayments. Clauses (a) and (b) of Section 6.3.2 of the
Existing Credit Agreement are deleted in their entirety and the following is
substituted therefor:
(a) Concurrently with the receipt by the Company or any Subsidiary of
any Net Cash Proceeds from the issuance of any Equity or Equity
Equivalents (excluding any such issuance by a Subsidiary to the Company
or another Subsidiary), the Company shall make a prepayment of the
Loans in an amount equal to the Specified Percentage (as defined below)
of such Net Cash Proceeds for such Fiscal Year except to the extent (x)
such issuance is in connection with an acquisition permitted by Section
10.11, or (y) the first $8,000,000 of Net Cash Proceeds received after
November 13, 2000 and prior to April 1, 2001 is used for working
capital and other general corporate purposes. The "Specified
Percentage" shall be (i) 75% so long as the Funded Debt to Adjusted
EBITDA Ratio is greater than or equal to 3.0 to 1.0, (ii) 50% so long
as the Funded Debt to Adjusted EBITDA Ratio is greater than or equal to
2.0 to 1 but less than 3.0 to 1.0, and (iii) 0% so long as the Funded
Debt to Adjusted EBITDA Ratio is less than 2.0 to 1.0. For purposes
hereof, Funded Debt shall be calculated as of the date of receipt of
any Net Cash Proceeds, Adjusted EBITDA shall be based on the most
recently submitted financial statements and the determination of the
Specified Percentage shall be based on the Funded Debt to Adjusted
EBITDA Ratio as determined immediately after receipt of any Net Cash
Proceeds and prior to giving effect to any required prepayments.
(b) Concurrently with the receipt by the Company of any Net Cash
Proceeds from any Asset Sales (excluding, so long as no Event of
Default or Unmatured Event of Default exists, the first $1,250,000 of
Net Cash Proceeds received during the period from January 1, 2001 to
March 31, 2001 from the sale of the assets described in the side letter
of even date herewith), the Company shall make a prepayment of the
Loans in an amount equal to 100% (or, if such Net Cash Proceeds are
from the sale and leaseback of the Chicago Facility, 50%) of such Net
Cash Proceeds; provided that no prepayment shall be required pursuant
to this clause (b) unless and until the aggregate amount of all Net
Cash Proceeds which would be required to be prepaid pursuant to this
clause (b) absent this proviso, minus all Net Cash Proceeds previously
applied pursuant to this proviso, equals or exceeds $100,000."
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The following new clause (e) is inserted at the end of Section 6.3.2:
"(e) If at any time the Revolving Commitment Amount is reduced pursuant
to Section 6.2.3, the Company shall immediately make a prepayment of
outstanding Revolving Loans (or provide cash collateral for outstanding
Letters of Credit) in the amount, if any, by which the Revolving Amount
Outstandings exceed the Revolving Commitment."
2.9 Application of Mandatory Prepayments of the Loans. Section 6.3.3 of
the Existing Credit Agreement is deleted in its entirety and the following is
substituted therefor:
"6.3.3 Application of Mandatory Prepayments of Term Loans. Each
mandatory prepayment of Term Loans pursuant to clause (a) or (c) of
Section 6.3.2 shall be applied to the outstanding Term Loans on a pro
rata basis with respect to each remaining installment thereof until
such Term Loans shall have been fully prepaid. Each mandatory
prepayment of Term Loans pursuant to clause (b) of Section 6.3.2 shall
be applied first, to the next scheduled quarterly repayment of the
outstanding Term Loans up to an aggregate of $6,250,000, and second, to
the remaining quarterly repayments of the outstanding Term Loans in the
inverse order of maturity until such Term Loans shall have been fully
prepaid; provided that any Net Cash Proceeds from the sale of Clean
Earth, Inc. shall be applied to the outstanding Term Loans on a pro
rata basis with respect to each remaining installment thereof until
such Term Loans shall have been fully prepaid. Prepayments shall be
applied pro rata to the applicable Term Loans of all Banks in
accordance with their Percentages."
2.10 Audit Report. Section 10.1.1 of the Existing Credit Agreement is
deleted in its entirety and the following is substituted therefor:
"10.1.1 Annual Report. Promptly when available and in any event within
90 days after the close of each Fiscal Year: (a) a copy of the annual
audit report of the Company and its Subsidiaries for such Fiscal Year,
including therein consolidated balance sheets of the Company and its
Subsidiaries as of the end of such Fiscal Year and consolidated
statements of earnings and cash flow of the Company and its
Subsidiaries for such Fiscal Year certified without qualification by
KPMG LLP or other independent auditors of recognized standing selected
by the Company and reasonably acceptable to the Required Banks,
together with a written statement from such accountants to the effect
that in making the examination necessary for the signing of such annual
audit report by such accountants, they have not become aware of any
Event of Default or Unmatured Event of Default that has occurred and is
continuing or, if they have become aware of any such event, describing
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it in reasonable detail; (b) consolidating balance sheets of the
Company and its Subsidiaries as of the end of such Fiscal Year and
consolidating statements of earnings for the Company and its
Subsidiaries for such Fiscal Year, certified by the chief financial
officer of the Company; and (c) not later than 45 days after the end of
each Fiscal Year, preliminary financial statements."
2.11 Quarterly Reports. Section 10.1.2 of the Existing Credit Agreement
is amended by deleting the number "50" appearing in the first line thereof and
inserting "45" in lieu thereof.
2.12 Monthly Reports. Section 10.1.3 of the Existing Credit Agreement
is deleted in its entirety and the following is substituted therefor:
"10.1.3 Monthly Reports. Promptly when available and in any event
within 30 days after the end of each of the first two months of each
Fiscal Quarter and 45 days after the end of each Fiscal Quarter, (a)
consolidated and consolidating balance sheets of the Company and its
Subsidiaries as of the end of such month, together with consolidated
and consolidating statements of earnings for such month and for the
period beginning with the first day of the applicable Fiscal Year and
ending on the last day of such month including consolidations by
product line and production facility with respect to the plastics
division, and consolidated cash flow statements for such month
including any variance from the budget/forecast and the prior Fiscal
Year, certified by the chief financial officer of the Company, (b) a
detailed report of Capital Expenditures by the Company and its
Subsidiaries as of the end of such month including any variance from
the budget/ forecast, (c) a progress report with respect to the
Company's capital raising efforts and (d) a duly completed compliance
certificate in the form of Exhibit B, with appropriate insertions,
dated the date of such monthly financial statements and signed by the
chief financial officer of the Company, containing a computation of
each of the financial ratios and restrictions set forth in Section 10.6
(and, in the case of each compliance certificate issued prior to June
30, 2001, a computation of the Funded Debt to Adjusted EBITDA Ratio and
the Senior Funded Debt to Adjusted EBITDA Ratio) and to the effect that
such officer has not become aware of any Event of Default or Unmatured
Event of Default that has occurred and is continuing or, if there is
any such event, describing it and the steps, if any, being taken to
cure it."
2.13 Projections. Section 10.1.9 of the Existing Credit Agreement is
deleted in its entirety and the following is substituted therefor:
"10.1.9 Projections. (a) As soon as practicable and in any event within
60 days after the commencement of each Fiscal Year, financial
projections for the Company and its Subsidiaries for such Fiscal Year
prepared in a manner consistent with the projections delivered by the
Company to the Administrative Agent prior to the Effective Date; and
(b) as soon as practicable and in any event within 45 days after the
end of each Fiscal Quarter, updates of such financial projections."
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2.14 Reports. The Existing Credit Agreement is amended by adding the
following Section 10.1.11 thereto in appropriate numerical sequence and
re-numbering the existing Section 10.1.11 as Section 10.1.12:
"10.1.11 Weekly Reports. As soon as practicable and in any event within
5 days after the end of each week, (a) a report outlining any major
business developments with respect to the Company and its Subsidiaries
and, (b) a Borrowing Base Certificate signed by the chief financial
officer of the Company as of the last day of such week."
2.15 Minimum Net Worth. Section 10.6.1 of the Existing Credit Agreement
is deleted in its entirety and the following is substituted therefor:
"10.6.1 Minimum Net Worth. Not permit Net Worth at any time to be less
than $75 million plus 75% of positive quarterly Consolidated Net Income
plus 100% of Net Cash Proceeds from the issuance of Equity or Equity
Equivalents after June 30, 2000."
2.16 Minimum Interest Coverage. Section 10.6.2 of the Existing Credit
Agreement is deleted in its entirety and the following is substituted therefor:
"10.6.2 Minimum Interest Coverage. Not permit the Interest Coverage
Ratio as of the last date of any Computation Period to be less than the
applicable ratio set forth below:
Computation
Period Ending: Interest Coverage Ratio:
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September 30, 2000 through March 31, 2001 1.50 to 1.0
June 30, 2001 1.75 to 1.0
September 30, 2001 2.00 to 1.0
December 31, 2001 and thereafter 3.00 to 1.0."
2.17 Funded Debt to Adjusted EBITDA Ratio. Section 10.6.3 of the
Existing Credit Agreement is deleted in its entirety and the following is
substituted therefor:
"10.6.3 Funded Debt to Adjusted EBITDA Ratio. Not permit the Funded
Debt to Adjusted EBITDA Ratio as of the last date of any Computation
Period to exceed the applicable ratio set forth below:
Computation Funded Debt to
Period Ending: Adjusted EBITDA Ratio:
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June 30, 2001 3.75 to 1.0
September 30, 2001 through December 31, 2001 3.50 to 1.0
March 31, 2002 and thereafter 3.25 to 1.0."
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2.18 Senior Funded Debt to Adjusted EBITDA Ratio. Section 10.6.4 of the
Existing Credit Agreement is deleted in its entirety and the following is
substituted therefor:
"10.6.4 Senior Funded Debt to Adjusted EBITDA Ratio. Not permit the
Senior Funded Debt to Adjusted EBITDA Ratio as of the last date of any
Computation Period to exceed the applicable ratio set forth below:
Computation Senior Funded Debt to
Period Ending: Adjusted EBITDA Ratio:
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June 30, 2001 3.25 to 1.0
September 30, 2001 through December 31, 2001 3.00 to 1.0
March 31, 2002 and thereafter 2.75 to 1.0."
2.19 Capital Expenditures. Section 10.6.6 of the Existing Credit
Agreement is deleted in its entirety and the following is substituted therefor:
"10.6.6 Capital Expenditures. The Company will not permit the aggregate
amount of all Capital Expenditures (excluding amounts, if any, paid to
consummate acquisiti ons permitt ed by Section 10.11(c) which
constitute Capital Expenditures) made by the Company and its
Subsidiaries to exceed (a) during the Fiscal Quarter ending December
31, 2000, $2,120,000; (b) during any Fiscal Quarter thereafter until
the Company has achieved Compliance with 9/30/01 Covenants, $1,250,000
plus the Additional CapEx Amount (as defined below); and (c) during any
period of four consecutive Fiscal Quarters ending on the last day of a
Fiscal Quarter on or after the date on which the Company has achieved
Compliance with 9/30/01 Covenants, 125% of the sum of depreciation
expense plus amortization expense of the Company and its Subsidiaries
for such period of four consecutive Fiscal Quarters. For purposes of
clause (b) above, the Additional CapEx Amount for any Fiscal Quarter
shall be (i) $500,000 if by the last day of such Fiscal Quarter the
Company has completed the sale of the assets described in the side
letter of even date herewith and received at least $6,000,000 in Net
Cash Proceeds from the issuance of Equity or Equity Equivalents after
November 13, 2000; and (ii) $1,000,000 if the Company has completed the
sale of the assets described in the side letter of even date herewith
and received at least $8,000,000 in Net Cash Proceeds from the issuance
of Equity or Equity Equivalents after November 13, 2000."
2.20 Financial Covenants. The Existing Credit Agreement is amended by
adding the following Section 10.6.8 thereto in appropriate numerical sequence:
"10.6.8 Minimum EBITDA. Not permit the cumulative monthly EBITDA as of
the last day of any calendar month beginning with the calendar month
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ending October 31, 2000 through the calendar month ending March 31,
2001 to be less than the applicable amount set forth below:
Month Ending: Minimum EBITDA
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October 31, 2000 $ 800,000
November 30, 2000 $1,800,000
December 31, 2000 $3,000,000
January 31, 2001 $3,600,000
February 28, 2001 $4,200,000
March 31, 2001 $4,800,000;
and not permit the EBITDA for the month ending April 30, 2001 to be
less than $1,500,000 and for the month ending May 31, 2001 to be less
than $2,000,000."
2.21 Events of Default. The Existing Credit Agreement is amended by
adding the following Section 12.1.12 thereto in appropriate numerical sequence:
"12.1.12 Additional Equity. The Company shall fail to receive Net Cash
Proceeds from the issuance of Equity or Equity Equivalents after
November 13, 2000 in an aggregate amount equal to at least (i)
$2,000,000 by November 30, 2000, (ii) $4,000,000 (including any amount
referred to in clause (i)) by December 26, 2000, and (iii) $4,500,000
(including any amounts referred to in clauses (i) and (ii)) by January
31, 2001."
2.22 Permitted Acquisitions and Asset Sales. Section 10.11 of the
Existing Credit Agreement is amended by deleting clauses (c) and (d) in their
entirety and substituting the following therefor:
"(c) any such purchase or other acquisition by the Company or any
wholly-owned Subsidiary of the assets or stock of any Person where the
Required Banks have consented to such purchase or acquisition; and (d)
sales and dispositions of assets (including the stock of Subsidiaries)
so long as the net book value of all assets sold or otherwise disposed
of in any Fiscal Year does not exceed $100,000; provided that the
Company may dispose of Clean Earth, Inc. with the consent of the
Required Banks, which consent shall not be unreasonably withheld."
SECTION 3 WAIVER. The Required Banks waive any Event of Default under
the Existing Credit Agreement resulting from failure to comply with the
financial covenants set forth in Sections 10.6.2, 10.6.3 and 10.6.4 of the
Existing Credit Agreement for the Fiscal Quarter ended September 30, 2000 and
from the failure to apply the Net Cash Proceeds from the issuance of $4,100,000
of preferred stock during the Fiscal Quarter ended September 30, 2000 in
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conformity with the requirements of Sections 6.3.2 and 6.3.3 of the Existing
Credit Agreement. The Required Banks further waive any Event of Default
resulting from the failure to comply with Section 10.6.7 of the Existing Credit
Agreement for the Fiscal Quarters ending September 30, 2000, December 31, 2000
and March 31, 2001. This waiver is limited to the matters specifically set forth
herein and shall not be deemed to constitute a waiver or consent with respect to
any other matter whatsoever.
SECTION 4 REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Banks and the Administrative Agent that:
4.1 Authorization; No Conflict. The execution and delivery by the
Company of this Amendment and the performance by the Company of its obligations
under the Amended Credit Agreement are duly authorized by all necessary
corporate action, do not require any filing or registration with or approval or
consent of any governmental agency or authority, do not and will not conflict
with, result in any violation of, or constitute any default under any provision
of the certificate of incorporation or by-laws of the Company or any of its
Subsidiaries or any material agreement or other document binding upon or
applicable to the Company or any of its Subsidiaries (or any of their respective
properties) or any material law or governmental regulation or court decree or
order applicable to the Company or any of its Subsidiaries, and will not result
in or require the creation or imposition of any Lien in any of the properties of
the Company or any of its Subsidiaries pursuant to the provisions of any
agreement binding upon or applicable to the Company or any of its Subsidiaries.
4.2 Due Execution; Enforceability. This Amendment has been duly
executed and delivered by the Company and, together with the Amended Credit
Agreement, is a legal, valid and binding obligation of the Company, enforceable
in accordance with its terms subject, as to enforcement only, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of the rights of creditors generally and to general principles of
equity (regardless of whether enforcement is sought in equity or at law).
4.3 Reaffirmation of Warranties. The warranties contained in Section 9
of the Existing Credit Agreement are true and correct on the date of this
Amendment, except to the extent that such warranties (a) solely relate to an
earlier date or (b) are changed by circumstances or events that do not
constitute a breach of the covenants set forth in Section 10 of the Amended
Credit Agreement.
SECTION 5 CONDITIONS PRECEDENT. This Amendment shall become effective
as of the date hereof upon satisfaction of all of the following conditions (such
date is herein called the "Amendment Effective Date"):
5.1 Receipt of Documents. The Administrative Agent shall have received
all of the following, each duly executed and dated the date of its delivery and
in form and substance satisfactory to the Administrative Agent, and each in
sufficient number of signed counterparts to provide one for each Bank:
(a) Amendment. Counterpart originals of this Amendment, duly executed
by the Company, the Banks and the Administrative Agent. For purposes
hereof, a facsimile executed copy shall be treated as an original.
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(b) Resolutions; Incumbency. A certificate of the secretary or an
assistant secretary of the Company, substantially in the form of
Attachment A to this Amendment, with respect to resolutions of the
Board of Directors of the Company and the names and signatures of the
officers of the Company authorized to execute and deliver this
Amendment, together with a sample of the true signature of each such
officer. (The Administrative Agent and each Bank may conclusively rely
on such certificate until formally advised by a like certificate of any
changes therein, and may conclusively rely on any such subsequent
certificate.)
(c) Consents. Certified copies of all documents evidencing any
necessary corporate action, consents, and governmental and regulatory
approvals with respect to this Amendment.
(d) Side Letter. Counterpart originals of the side letter dated of even
date herewith, duly executed by the Company, the Banks and the
Administrative Agent. For purposes hereof, a facsimile executed copy
shall be treated as an original.
(e) Amendment to Subordination Agreement. Counterpart originals of the
amendment to the Subordination Agreement dated June 30, 2000 between
Xxxxx Partnership and the Company, duly executed by the Company and
Xxxxx Partnership. For purposes hereof, a facsimile executed copy shall
be treated as an original.
(f) Other. Such other documents as the Agent or any Bank may reasonably
request.
5.2 Other Conditions. The following further conditions precedent shall
have been satisfied:
(a) No Default. No Event of Default or Unmatured Event of Default shall
have occurred and be continuing.
(b) Certificate. The Administrative Agent shall have received a
certificate, dated such date as shall be acceptable to the
Administrative Agent and signed by the president or a vice president of
the Company, substantially in the form of Attachment B to this
Amendment, as to the matters set forth in Sections 4.3 and 5.2(a).
(c) Fees. The Company shall have paid to the Administrative Agent for
the account of each Bank, a fee of 1/4% of each Bank's Commitment and
shall have paid all other fees and expenses then due and payable.
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SECTION 6 Miscellaneous.
6.1 Additional Fees. The Company agrees to pay the Administrative Agent
for the account of each Bank a fee equal to 1/2% of each Bank's
Commitment as of the Amendment Effective Date on the earlier of June
30, 2001 and the consummation of the sale of Clean Earth, Inc.
6.2 Expenses. The Company agrees to pay on demand all reasonable costs
and expenses of the Administrative Agent (including fees, charges and
expenses of counsel for the Administrative Agent) in connection with
the preparation, negotiation, execution, delivery and administration of
this Amendment and all other instruments or documents provided for
herein or delivered or to be delivered hereunder or in connection
herewith. All obligations provided in this Section 6.2 shall survive
any termination of this Amendment and the Amended Credit Agreement.
6.3 Captions. Section captions used in this Amendment are for
convenience only and shall not affect the construction of this
Amendment.
6.4 Governing Law. THIS AMENDMENT 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
Amendment shall be interpreted in such manner as to be effective and
valid under applicable laws, but if any provision of this Amendment
shall be prohibited by or invalid under such laws, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Amendment.
6.5 Counterparts. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate
counterparts, and each such counterpart, when executed and delivered
(including by facsimile), shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same
Amendment.
6.6 Reference to Credit Agreement. Except as herein amended, the
Existing Credit Agreement shall remain in full force and effect and is
hereby ratified in all respects. On and after the effectiveness of the
amendment to the Existing Credit Agreement accomplished hereby, each
reference in the Amended Credit Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import, and each
reference to the Existing Credit Agreement in any Note and in any other
agreement, document or other instrument executed and delivered pursuant
to the Amended Credit Agreement, shall mean and be a reference to the
Amended Credit Agreement.
6.7 Successors and Assigns. This Amendment shall be binding upon the
parties hereto and their respective successors and assigns, and shall
inure to the sole benefit of the parties hereto and the successors and
assigns of the Administrative Agent and the Banks. Notwithstanding the
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foregoing, the Company shall not assign its rights or duties hereunder
without the consent of the Administrative Agent and the Banks.
Delivered at Chicago, Illinois, as of the day and year first above written.
U.S. PLASTIC LUMBER CORP.
By: /s/ XXXX X. XXXXXX
-------------------------------
Print Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ XXXXXXXX X. XXXX
-------------------------------
Print Name: Xxxxxxxx X. Xxxx
Title: Vice President
BANKS
BANK OF AMERICA, N.A., as Issuing
Bank and Swing Line Bank
By: /2/ XXXXXX X. XXXXXXXX
-------------------------------
Print Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as a Bank
By: /s/
-------------------------------
Print Name:
Title:
UNION PLANTERS BANK, as a Bank
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------
Print Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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