AMENDMENT NO. 2 TO FORBEARANCE AGREEMENT
Exhibit
10.1
AMENDMENT NO. 2 TO
FORBEARANCE AGREEMENT
AMENDMENT
NO. 2 (the “Amendment”), dated as
of March 14, 2008, to the Forbearance Agreement (as amended, the “Agreement”)1 dated as of January 16, 2008 by and among
Tekni-Plex, Inc. (the “Company”), each of
the Company’s subsidiaries identified on the signature pages thereof (the “Subsidiaries”), the
Holders of the Company’s 12 3/4% Senior Subordinated Notes due 2010 (the “Notes”) that were
issued pursuant to that certain Indenture, dated as of June 21, 2000 (as
supplemented on May 6, 2002, August 22, 2002, and April 25, 2005, the “Indenture”), that are
signatories thereto (each a “Noteholder,” and
collectively, the “Noteholders,” and
together with the Company, the “Parties”) and U.S. Bank National Association, as
successor indenture trustee (the “Indenture Trustee”)
under the Indenture.
RECITALS
WHEREAS,
the parties hereto are desirous of extending the Agreement on the terms set
forth herein;
WHEREAS,
the Noteholders continue to collectively hold not less than $286,650,000 in
aggregate principal amount of the Notes, representing not less than 91% of the
aggregate principal amount of the Notes that are outstanding, and not less than
$184,250,000 in aggregate principal amount of the Second Lien Notes,
representing not less than 67% of the aggregate principal amount of the Second
Lien Notes that are outstanding.
NOW
THEREFORE, in consideration of the premises and the respective covenants and
agreements set forth in this Agreement, the Parties, each intending to be
legally bound, agree as follows:
1. Forbearance. Section
1(c) of the Agreement is hereby amended by replacing the date “March 17, 2008”
with “March 27, 2008”.
2. Effectiveness. This
Amendment shall become effective upon execution and delivery of counterparts of
this Agreement by the Noteholders, the Company and the
Subsidiaries. This Amendment shall be effective as to the
Noteholders, the Company and the Subsidiaries in accordance with Section 2
hereof regardless of whether the Indenture Trustee executes this
Agreement. This Amendment shall be effective as to the Indenture
Trustee upon the Indenture Trustee becoming a signatory
hereto.
3. Representations, Warranties
and Covenants.
(a) The
Company and the Subsidiaries represent, warrant and covenant as
follows:
(i) Except for
the Interest Default, no other Default or Event of Default has occurred and is
continuing.
(ii) The
execution, delivery and performance by the Company and the Subsidiaries of this
Agreement:
(1) are within
their corporate powers;
(2) have been
duly authorized by all necessary corporate action;
(3) do not and
will not (A) contravene their certificate of incorporation or by-laws or limited
partnership or other constituent documents, (B) violate any (i) applicable
material
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requirement
of law or (ii) material order or decree of any governmental authority or
arbitrator applicable to them, (C) materially conflict with or result in the
breach of, or constitute a default under, or result in or permit the termination
or acceleration of, any material contractual obligation of the Company or the
Subsidiaries, or (D) result in the creation or imposition of any material lien
or encumbrance upon any of the material property of the Company or the
Subsidiaries; and
(4) do not and
will not require the consent of, authorization by, approval of any governmental
authority.
(b) The
Noteholders represent as follows:
(i) As of the
date hereof, based on the representations of each of the individual Noteholders,
the Noteholders, in the aggregate, hold, with all rights, including without
limitation the right to vote, not less than $286,650,000 in principal amount of
the Notes, representing not less than 91% of the aggregate principal amount of
the Notes outstanding.
(ii) As of the
date hereof, based on the representations of each of the individual Noteholders,
the Noteholders, in the aggregate, hold, with all rights, including without
limitation the right to vote, not less than $184,250,000 in principal amount of
the Second Lien Notes, representing not less than 67% of the aggregate principal
amount of the Second Lien Notes outstanding.
4. Ratification of
Liability. The Company and its Subsidiaries hereby ratify and
reaffirm all of their payment and performance obligations and obligations to
indemnify, contingent or otherwise, under the Indenture.
5. Complete Integration;
Amendments. This Amendment, together with the Agreement –
which remains in full force and effect except as expressly modified by this
Amendment – constitutes the full and final agreement between the Parties with
respect to the subject matter hereof, and may not be modified or amended except
by a written instrument, signed by each of the Parties, expressing such
amendment or modification. The Parties warrant, promise and represent
that in
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executing
this Amendment, each Party is not relying upon any oral representation, promise
or statement made by any other Party hereto and that each Party is not relying
upon any promise, statement or representation contained in any other written
instrument.
6. No Other Amendments;
Reservation of Rights, No Waiver. Other than as otherwise
expressly provided herein, this Amendment shall not be deemed to operate as an
amendment or waiver of, or to prejudice, any right, power, privilege or remedy
of the Noteholders or the Indenture Trustee, as applicable, under the Indenture
or applicable law, nor shall the entering into this Amendment preclude the
Noteholders from refusing to enter into any further amendments or forbearances
with respect to the Indenture. Other than as expressly provided
herein, this Amendment shall not constitute a forbearance with respect to (i)
any failure by the Company to comply with any covenant or other provision in the
Indenture or (ii) the occurrence or continuance of any present or future Event
of Default.
7. Counterparts/Facsimile
Transmission. This Amendment may be signed in counterparts,
each of which, when taken together, shall be deemed an
original. Execution of this Amendment is effective if a signature is
delivered by facsimile transmission or electronic (e.g., “pdf”)
transmission.
8. Successors and
Assigns. This Amendment shall be binding upon and inure to the
benefit of the Parties hereto and each of their respective successors, assigns,
heirs and personal representatives.
9. Authority. Any
person signing this Amendment in a representative capacity (i) represents and
warrants that he/she is authorized to sign this Amendment on behalf of the Party
he/she represents and that his/her signature upon this Amendment
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will bind
the represented Party to the terms of this Amendment, and (ii) acknowledges that
the other Party to this Amendment has relied upon such representation and
warranty.
10. Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its choice
of law provisions.
11. Direction to Indenture
Trustee. The Noteholders’ agreement to forbear as provided in
the Agreement as amended by this Amendment shall constitute a direction from
such Noteholders to the Indenture Trustee to similarly forbear during the
Forbearance Period as extended hereby.
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IN WITNESS
WHEREOF, each of the Parties hereto has caused this Agreement to be duly
executed and delivered as of the date first above written.
TEKNI-PLEX,
INC.
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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Chief
Financial Officer
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SUBSIDIARIES
PURETEC
CORPORATION
XXXXXX
HOLDINGS, INC.
TRI-SEAL
HOLDINGS, INC.
PLASTIC
SPECIALTIES AND TECHNOLOGIES, INC.
BURLINGTON
RESINS, INC.
PLASTIC
SPECIALTIES AND TECHNOLOGIES INVESTMENTS, INC.
DISTRIBUTORS
RECYCLING, INC.
TPI
ACQUISITION SUBSIDIARY, INC.
TP/ELM
ACQUISITION SUBSIDIARY, INC.,
collectively,
as Guarantors
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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Chief
Financial Officer
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THE
NOTEHOLDERS
AVENUE
INVESTMENTS, L.P.
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By:
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Avenue
Partners, LLC,
its
General Partner
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Member
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AVENUE-CDP
GLOBAL OPPORTUNITIES FUND,
L.P.
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By:
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Avenue Global Opportunities Fund
GenPar, LLC,
its General
Partner
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Member
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AVENUE INTERNATIONAL MASTER,
L.P.
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By:
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Avenue International Master GenPar, Ltd.,
its General
Partner
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx Xxxxxxx | |
Title:
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Member
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AVENUE SPECIAL SITUATIONS FUND IV,
L.P.
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By:
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Avenue
Capital Partners IV, LLC, its General Partner
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By:
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GL
Partners IV, LLC,
its
General Partner
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Member
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AVENUE SPECIAL SITUATIONS FUND V,
L.P.
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By:
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Avenue Capital Partners V, LLC,
its General Partner
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By:
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GL Partners V,
LLC,
its General
Partner
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Member
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BARCLAYS BANK,
PLC
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By:
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/s/
Xxxxx Xxxxxx
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Name:
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Xxxxx
Xxxxxx
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Title:
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Managing
Director
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GLENVIEW
CAPITAL MANAGEMENT, LLC,
as
investment adviser for GCM Little Arbor Partners, L.P.,
GCM
Little Arbor Institutional Partners, L.P., and
GCM
Little Arbor Master Fund,
Ltd.
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By:
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/s/
Xxxx Xxxxxxxx
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Name:
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Xxxx
Xxxxxxxx
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Title:
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Chief
Operating Officer and General
Counsel
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XXXXXX XXXXXXX & CO.,
INC
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By:
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/s/
Xxxxxx Xxxxxxx
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Name:
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Xxxxxx
Xxxxxxx
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Title:
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Managing
Director
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OCM OPPORTUNITIES FUND V,
L.P.
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By:
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OCM Opportunities Fund V GP,
L.P.
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Its:
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General
Partner
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By:
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Oaktree
Fund GP I, L.P.
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Its:
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General
Partner
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By:
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/s/
Xxxxxxx Xxxxx
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Name:
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Kennneth
Liang
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Title:
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Managing
Director
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By:
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/s/
Xxxxxx X’Xxxxx
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Name:
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Xxxxxx
X’Xxxxx
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Title:
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Managing
Director
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OCM OPPORTUNITIES FUND VI,
L.P.
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By:
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OCM Opportunities Fund VI GP,
L.P.
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Its:
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General
Partner
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By:
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Oaktree
Fund GP I, L.P.
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Its:
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General
Partner
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By:
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/s/
Xxxxxxx Xxxxx
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Name:
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Xxxxxxx
Xxxxx
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Title:
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Managing
Director
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By:
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/s/
Xxxxxx X’Xxxxx
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Name:
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Xxxxxx
X’Xxxxx
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Title:
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Managing
Director
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OCM OPPORTUNITIES FUND VII,
L.P.
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By:
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OCM Opportunities Fund VII GP,
L.P.
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Its:
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General
Partner
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By:
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OCM Opportunities Fund VII GP
Ltd.
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Its:
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General
Partner
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By:
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Oaktree
Capital Management, L.P.
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Its:
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Director
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By:
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/s/
Xxxxxxx Xxxxx
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Name:
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Xxxxxxx
Xxxxx
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Title:
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Managing
Director
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By:
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/s/
Xxxxxx X’Xxxxx
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Name:
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Xxxxxx
X’Xxxxx
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Title:
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Managing
Director
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OCM PRINCIPAL
OPPORTUNITIES FUND
III, L.P.
OCM PRINCIPAL
OPPORTUNITIES FUND
IIIA,
L.P.
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By:
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OCM Opportunities Fund III GP,
L.P.
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Its:
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General
Partner
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By:
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Oaktree
Fund GP I, L.P.
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Its:
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General
Partner
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By:
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/s/
Jordan X.
Xxxxx
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Name:
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Jordan
X. Xxxxx
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Title:
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Managing
Director
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By:
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/s/
Xxxxx Xxxxxxxxx
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Name:
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Xxxxx
Xxxxxxxxx
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Title:
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Senior
Vice President
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OCM PRINCPAL OPPORTUNITIES FUND
IV,
L.P.
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By:
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OCM Principal Opportunities
Fund IV GP, L.P.
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Its:
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General
Partner
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By:
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OCM Principal Opportunities
Fund IV GP Ltd.
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Its:
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General
Partner
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By:
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Oaktree
Capital Management, L.P.
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Its:
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Director
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By:
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/s/
Jordan X.
Xxxxx
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Name:
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Jordan
X. Xxxxx
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Title:
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Managing
Director
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By:
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/s/
Xxxxx Xxxxxxxxx
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Name:
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Xxxxx
Xxxxxxxxx
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Title:
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Senior
Vice President
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OAKTREE VALUE
OPPORTUNITIES FUND,
L.P.
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By:
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Oaktree Value Opportunities Fund
GP, L.P.
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Its:
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General
Partner
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By:
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Oaktree Value Opportunities Fund
GP Ltd.
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Its:
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General
Partner
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By:
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Oaktree
Capital Management, L.P.
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Its:
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Director
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By:
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/s/
Xxxxxxx Xxxxx
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Name:
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Xxxxxxx
Xxxxx
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Title:
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Managing
Director
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By:
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/s/
Xxxxxx X’Xxxxx
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Name:
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Xxxxxx
X’Xxxxx
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Title:
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Managing
Director
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