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EXHIBIT 10.58
SEVENTEENTH AMENDMENT
SEVENTEENTH AMENDMENT (this "Amendment"), dated as of October 11,
1999, 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, G&G Investments, Inc. ("G&G") and the Borrower are parties to
an Intercompany Note, dated as of September 8, 1998 (the "Intercompany Note"),
in the principal amount of U.S. $17,330,021.37, between G&G, as Maker, and the
Borrower, as Holder;
WHEREAS, G&G and BT Commercial Corporation, individually and as
Collateral Agent (including any successor collateral agent, the "Pledgee"), are
parties to a Guaranty and Pledge Agreement, dated as of September 8, 1998 (as
amended, modified, or supplemented through the date hereof, the "Guaranty and
Pledge Agreement");
WHEREAS, pursuant to Section 9.1(c) of the Credit Agreement, the
failure by the Borrower to maintain the Interest Coverage Ratio in accordance
with Section 8.11 of the Credit Agreement constitutes an Event of Default;
WHEREAS, pursuant to Section 9.1(o) of the Credit Agreement, the
failure by G&G to pay the Intercompany Note constitutes an Event of Default;
WHEREAS, pursuant to Section 9.1(o) of the Credit Agreement, the
failure by G&G to pledge additional common stock of Consumers Packaging Inc. in
accordance with Section 4.1 of the Guaranty and Pledge Agreement constitutes an
Event of Default; and
WHEREAS, notwithstanding the events of default described above, the
parties hereto wish to amend the Credit Agreement as herein provided, subject
to and on the terms and conditions set forth herein;
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NOW, THEREFORE, it is agreed:
1. Section 1.1 of the Credit Agreement is hereby amended by
inserting the following new definitions in alphabetical order:
Fixed Charge Ratio shall mean for any period, the ratio of
(x) EBITDA for such period to (y) the sum of the following made during
such period: (i) Interest Expense, (ii) Capital Expenditures, (iii)
cash Dividends, (iv) cash costs and expenses resulting from Plant
Closures, (v) any Investments made pursuant to Sections 8.5(a)-(h),
(vi) principal payments of term debt, without duplication of any
amount paid pursuant to the Capital Expenditure provision above, and
(vi) cash taxes paid.
Southeast Project shall mean, pursuant to documentation
satisfactory in form and substance to the Agent, (i) the sale and
leaseback of certain existing equipment of the Borrower, (ii) the
financing of certain improvements to existing equipment of the
Borrower, (iii) financing by the lessor of certain new equipment of
the Borrower, and (iv) the replacement of certain existing Operating
Leases of the Borrower.
2. Section 8.1 is hereby amended by (i) deleting "and" at the end
of Section 8.1(d), (ii) deleting the period at the end of Section 8.1(e) and
adding in lieu thereof "; and", and (iii) inserting the following clause:
(f) the transactions made in connection with the Southeast
Project.
3. Section 8.3 is hereby amended by (i) deleting the period after
Section 8.3(i) and inserting a semicolon in lieu thereof, (ii) deleting the
period after Section 8.3(j) and inserting in lieu thereof "; and", and (iii)
inserting the following clause:
(k) Indebtedness of the Borrower or any of the Borrower's
Subsidiaries incurred pursuant to the Southeast Project.
4. Section 8.11 is hereby amended by deleting such section in its
entirety and replacing it with the following provision in lieu thereof:
8.11 Fixed Charge Ratio. The Borrower will not permit the
Fixed Charge Ratio for any period of four consecutive fiscal quarters
(or if shorter, any period beginning on October 1, 1999 and ending on
the last day of any fiscal quarter) in each case taken as one
accounting period, ended on a date set forth below to be less than the
ratio set forth opposite such date:
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Fiscal Quarter
Ended Ratio
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December 31,1999 0.4:1.0
March 31, 2000 0.55:1.0
June 30, 2000 0.8:1.0
September 30, 2000 1.0:1.0
December 31, 2000 1.0:1.0
March 31, 2001 1.1:1.0
June 30, 2001 1.1:1.0
September 30, 2001 1.2:1.0
December 31, 2001 1.2:1.0
5. Section 8.23 is hereby amended by inserting "(i)" immediately
before the phrase "have a Material Adverse Effect" and inserting "or (ii)
materially change the Borrower's ability to comply with Section 8.25"
immediately after.
6. Article 8 of the Credit Agreement is hereby amended by 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 sale
and leaseback portion of the Southeast Project is consummated and the Borrower
has received and notified the Agent of receipt of proceeds in the amount of
$30,000,000.
7. 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
Seventeenth Amendment Effective Date (as defined in Section 6 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 Default or Event of Default,
except as described above, on the Seventeenth Amendment Effective Date after
giving effect to this Amendment.
8. 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.
9. 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.
10. 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.
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11. This Amendment shall become effective on the date (the
"Seventeenth Amendment Effective Date") when (a) 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 (b) G&G or Ghaznavi Canada Inc. pledges an additional
4,023,159 shares of common stock of Consumers pursuant to Section 4.1 of the
Guaranty and Pledge Agreement, (c) the Borrower pays all outstanding and
invoiced legal fees of White & Case LLP, (d) the Agent receives a fee equal to
$250,000 for pro rata distribution among the Lenders according to their
respective Commitments under the Credit Agreement, (e) G&G delivers an
amendment to the Intercompany Note in form and substance satisfactory to the
Agent to (i) change the maturity date to December 31, 2000, (ii) in addition to
the foregoing, require that G&G use any cash Dividends received after the
Seventeenth Amendment Effective Date from Consumers to pay amounts outstanding
under the Intercompany Note and (iii) require that G&G cause Consumers to pay
to G&G 85% of any cash Dividends permissible under any debt agreements to which
Consumers is a party and permissible under applicable laws, rules or
regulations.
12. From and after the Seventeenth 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/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice President - Treasurer
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: Vice President
PNC BANK, NATIONAL ASSOCIATION,
Individually, as Co-Syndication Agent
and Issuing Bank
By:
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Name:
Title:
BANKERS TRUST COMPANY, as Issuing Bank
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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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: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: Asst. Vice President
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: /s/ Xxxxxxx X. Xxxxxxxx III
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Name: Xxxxxxx X. Xxxxxxxx III
Title: Vice President
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XXXXXXXX XXXX XX XXXXXX
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: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
SUMMIT COMMERCIAL/GIBRALTAR CORP.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
