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EXHIBIT 10.57
SIXTEENTH AMENDMENT AND WAIVER
SIXTEENTH AMENDMENT AND WAIVER (this "Amendment"), dated as of August
8, 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 defaults as stated above, the
parties hereto wish to amend Section 2.3(c) of the Credit Agreement as herein
provided, subject to and on the terms and conditions set forth herein, in order
to modify the Agent Advance Period and thereby provide the Borrower with access
to funds;
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NOW, THEREFORE, it is agreed:
1. Section 2.3(c) is hereby amended by inserting ", except for Agent
Advances to the Borrower made after August 24, 1999 up to and until October 15,
1999" after "(i) the fifteenth Business Day after such date", so that the
paragraph will now read as follows:
"(c) In the event the Borrower is unable to comply with (i)
the Borrowing Base limitations set forth in Section 2.2(a) or the
Inventory Sublimit or (ii) the conditions precedent to the making of a
Revolving Loan or the issuance of a Letter of Credit set forth in
Section 5.2, the Lenders authorize the Payments Administrator, for the
account of the Lenders, to make Agent Advances to the Borrower for a
period commencing on the date the Payments Administrator first
receives a Notice of Borrowing requesting an Agent Advance until the
earlier of (i) the fifteenth Business Day after such date, except for
Agent Advances to the Borrower made after August 24, 1999 up to and
until October 15, 1999, (ii) the date the Borrower is again able to
comply with the Borrowing Base limitations, the Inventory Sublimit,
and the conditions precedent to the making of Revolving Loans and
issuance of Letters of Credit, or obtains an amendment or waiver with
respect thereto, or (iii) the date the Required Lenders instruct the
Payments Administrator to cease making Agent Advances (in each case,
the "Agent Advance Period"). The Payments Administrator shall not make
any Agent Advance to the extent that at such time the amount of such
Agent Advance when added to the aggregate outstanding amount of other
Agent Advances would exceed the lesser of (A) the remainder of (i) the
Total Commitments at such time less (ii) the Outstandings at such time
and (B) the lesser of (x) $10,000,000 or (y) 10% of the Outstandings
at such time."
2. In order to induce the 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 Sixteenth 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 Sixteenth Amendment Effective Date after giving effect to this
Amendment.
3. 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.
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4. This Amendment does not constitute a waiver to any of the events
of default described above and does not in any way limit the rights or remedies
of the Lenders with respect to such events of default.
5. 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.
6. 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.
7. This Amendment shall become effective on the date (the "Sixteenth
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.
8. From and after the Sixteenth 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/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Treasurer
BT COMMERCIAL CORPORATION,
Individually, as Agent and
as Co-Syndication Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
Individually, as Co-Syndication Agent
and Issuing Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BANKERS TRUST COMPANY, as Issuing Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
CORESTATES BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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:
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Name:
Title:
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▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President/Manager
NATIONAL CITY COMMERCIAL FINANCE, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
SUMMIT COMMERCIAL/GIBRALTAR CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
