Exhibit 10.24
AMENDMENT NO. 1
to the
FIFTH AMENDED AND RESTATED REVOLVING
CREDIT AND TERM LOAN AGREEMENT
This AMENDMENT NO. 1 dated as of August 11, 2000 (the "AMENDMENT") to
the FIFTH AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT is by
and among ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ HOLDINGS, INC., a Delaware corporation,
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ CORP., a New Jersey corporation, ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, INC. (f/k/a
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Midwest, Inc., successor by merger to ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ West,
Inc., ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Southwest, Inc. and R-S Southwest Realty, Inc.), an
Illinois corporation, RSLPCO, INC., a Delaware corporation, ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇,
L.P., a Texas limited partnership, CONTAINER MANAGEMENT SERVICES, INC.
(successor by merger to CMS Acquisition, Inc.), a South Carolina corporation,
HUNTER DRUMS LIMITED (successor by amalgamation to HDL Acquisition Inc.), an
Ontario corporation, and NEW ENGLAND CONTAINER CO., INC., a Rhode Island
corporation (collectively, the "BORROWERS" and individually, a "BORROWER"),
FLEET NATIONAL BANK (f/k/a BankBoston, N.A.), a national banking association
("FNB"), and such other financial institutions that are or may become parties to
the Credit Agreement (as hereinafter defined) from time to time in accordance
with the provisions thereof (FNB and such other financial institutions being
collectively referred to herein as the "LENDERS" and each as a "LENDER"), FNB as
administrative agent for the Lenders (the "AGENT") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Partners L.P., as Syndication Agent.
WHEREAS, the Borrowers, the Syndication Agent, the Lenders and the
Agent are parties to that certain Fifth Amended and Restated Revolving Credit
and Term Loan Agreement, dated as of February 10, 1999 (as amended, restated,
modified or supplemented and in effect from time to time, the "CREDIT
AGREEMENT"); and
WHEREAS, the Lenders, the Syndication Agent and the Agent, subject to
the terms and conditions hereof, have agreed to amend the Credit Agreement as
set forth herein;
NOW, THEREFORE, the Borrowers, the Lenders, the Syndication Agent and
the Agent hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used herein without
definition that are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
SECTION 2. AMENDMENT TO SECTION 12.1 OF THE CREDIT AGREEMENT. The
Lenders and the Agent hereby waive any Default or Event of Default resulting
from the Borrowers' noncompliance with Section 12.1 of the Credit Agreement as
such Section 12.1 is in effect prior to the effectiveness of this Amendment.
Section 12.1 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
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"12.1 MINIMUM INTEREST COVERAGE. As of April 1, 2000 and
thereafter, Holdings will not permit, at the end of any of its fiscal
quarters occurring during the periods set forth below, the ratio of
Adjusted EBITDA for the four consecutive fiscal quarters then ended to
Interest Charges for such period to be less than the ratio set forth
opposite such period:
Period Ratio
------ -----
April 1, 2000 through March 31, 2001 1.50:1.00
April 1, 2001 - December 31, 2001 1.60:1.00
January 1, 2002 - December 31, 2002 1.75:1.00
January 1, 2003 - December 31, 2003 1.85:1.00
January 1, 2004 and thereafter 2.00:1.00"
SECTION 3. AMENDMENT TO SECTION 12.2 OF THE CREDIT AGREEMENT.
Section 12.2 Credit Agreement is hereby amended and restated in its entirety
as follows:
"12.2 MAXIMUM SENIOR LEVERAGE RATIO. As of April 1, 2000 and
thereafter, Holdings will not permit, at the end of any of its fiscal
quarters ending during the periods set forth in the table below, the
ratio of (a) Senior Funded Debt as of the last day of such fiscal
quarter to (b) Adjusted EBITDA for the four consecutive fiscal quarters
then ended, to exceed the ratio set forth opposite such period in such
table:
Period Ratio
------ -----
April 1, 2000 through June 30, 2000 2.25:1.00
July 1, 2000 through March 31, 2001 2.00:1.00
April 1, 2001 through September 30, 2001 1.90:1.00
October 1, 2001 through March 31, 2002 1.85:1.00
April 1, 2002 through December 31, 2002 1.80:1.00
January 1, 2003 through March 31, 2003 1.75:1.00
April 1, 2003 through December 31, 2003 1.70:1.00
January 1, 2004 though December 31, 2004 1.60:1.00
January 1, 2005 and thereafter 1.50:1.00"
SECTION 4. NEW SECTION 12.4 OF THE CREDIT AGREEMENT. Section 12 of the
Credit Agreement is hereby amended by inserting the following new Section 12.4
after Section 12.3 thereof:
"12.4 MAXIMUM ADJUSTED EBITDA LESS CONTAINER PURCHASES. As of
July 1, 2000 and thereafter, Holdings will not permit, for each of its
fiscal quarters ending during the periods set forth in the table below,
Adjusted EBITDA MINUS the aggregate amount of all purchases of
containers and container components by CMS (or by any other Borrower or
Borrower's Subsidiary which at any time engages in a container leasing
program similar to that engaged in by CMS on August 11, 2000) which are
capitalized as property, plant and equipment in accordance with GAAP
and are not otherwise included in the calculation of Adjusted EBITDA
for such period, to be less than the amounts opposite such period in
such table:
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Period Quarterly Minimum
------ -----------------
July 1, 2000 through September 30, 2000 $22,500,000
October 1, 2000 through December 31, 2000 $24,000,000
January 1, 2001 through June 30, 2001 $25,000,000
July 1, 2001 through June 30, 2002 $26,000,000
July 1, 2002 through June 30, 2003 $29,000,000
July 1, 2003 and thereafter $31,000,000"
SECTION 5. FIELD EXAMINATIONS AND APPRAISALS. The Borrowers hereby
agree to deliver to the Lenders and the Agent within ninety (90) days of the
date hereof (a) a report of an independent collateral auditor with respect to
the Borrowers' accounting with respect to accounts receivable (including, to
the extent required by the Agent, verification with respect to the amount,
aging, identity and credit of the Borrowers' account debtors and the billing
practices of the Borrowers and their Subsidiaries) and inventory (including,
to the extent required by the Agent, verification as to the value, location
and type) of the Borrowers and their Subsidiaries (the "FIELD EXAM") and (b)
an appraisal of the value of all real estate, equipment and fixtures of the
Borrowers and their Subsidiaries (the "APPRAISAL"), where such Field Exam and
Appraisal shall be in form and substance satisfactory to the Agent and shall
be conducted at the expense of the Borrowers by an independent collateral
auditor or appraiser, as applicable, satisfactory to the Agent. Such Field
Exam and Appraisal shall be conducted upon reasonable notice to the Borrowers
and during normal business hours. The parties hereto agree that the failure
to deliver such Field Exam and Appraisal shall constitute an Event of Default
under the Credit Agreement.
SECTION 6. AMENDMENT FEE. The Borrowers hereby agrees to pay to the
Agent, for the account of each Lender that executes this Amendment, a fee of
$150,000 (such fee referred to herein as the "AMENDMENT FEE"), such Amendment
Fee to be fully earned and payable on the effective date hereof and to be
shared PRO RATA by such Lenders in accordance with the sum of such Lenders'
Revolving Credit Commitments and outstanding Term Loans.
SECTION 7. AFFIRMATION OF THE COMPANIES. Each of the Borrowers hereby
affirms its joint and several, absolute and unconditional promise to pay to each
Lender and the Agent the Loans and all other amounts due under the Notes, the
Credit Agreement and the other Loan Documents and each of the Borrowers confirms
and agrees that the obligations of the Borrowers to the Lenders and the Agent
under the Credit Agreement as amended hereby and the other Loan Documents are
secured by and entitled to the benefits of the Security Documents.
SECTION 8. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the date on which the following conditions shall have been
satisfied:
8.1. LOAN DOCUMENTS. This Amendment and all related documents
shall have been duly executed and delivered by the respective parties
thereto, shall be in full force and effect and shall be in form and
substance satisfactory to the Majority Lenders.
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8.2. PROCEEDINGS AND DOCUMENTS. All proceedings in connection
with the transactions contemplated by this Amendment and all other
documents incident hereto and thereto shall be reasonably satisfactory
in form and substance to the Lenders and to the Agent, and the Lenders
and the Agent shall have received all information and such counterpart
originals or certified or other copies of such documents as the Agent
may reasonably request.
8.3. AMENDMENT FEE. The Borrowers shall have paid the
Amendment Fee and all other fees payable under Section 14 hereunder.
SECTION 9. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers
hereby represents and warrants to the Lenders and the Agent as follows:
(a) REPRESENTATIONS AND WARRANTIES IN CREDIT AGREEMENT. The
representations and warranties of the Borrowers contained in the Credit
Agreement, as amended hereby, are true and correct in all material
respects on the date hereof and no Default or Event of Default has
occurred and is continuing under the Credit Agreement as amended
hereby.
(b) AUTHORITY, NO CONFLICTS, ETC. The execution, delivery and
performance of this Amendment and the consummation of the transactions
contemplated hereby (i) are within the corporate or partnership powers,
as applicable, of the Borrowers and have been duly authorized by all
necessary corporate or partnership action on the part of the Borrowers,
(ii) do not require any approval or consent of, or filing with, any
governmental agency or authority other than those already obtained or
where failure to do so could not reasonably be expected to result in a
materially adverse effect on Holdings and its Subsidiaries, taken as a
whole, and could not reasonably be expected to have any adverse effect
on the enforceability of any of the Loan Documents, including, without
limitation, this Amendment, (iii) do not conflict with or result in any
breach or contravention of any provision of law, statute, rule or
regulation to which any of the Borrowers is subject or any judgment,
order, writ, injunction, license or permit applicable to any of the
Borrowers, except where such violation or contravention could not
reasonably be expected to have a materially adverse effect on Holdings
and its Subsidiaries, taken as a whole, and could not reasonably be
expected to have any adverse effect on the enforceability of the Loan
Documents, including, without limitation, this Amendment, (iv) do not
conflict with any provision of the corporate charter or bylaws or other
organizational documents of any of the Borrowers, (v) do not conflict
with, or result in a breach of any material term, condition or
provision of, or constitute a default under any agreement, trust deed,
indenture, mortgage, or other instrument to which any of the Borrowers
is a party or by which any of the Borrowers or any of their properties
is bound or affected or result in the creation of any mortgage, lien,
pledge, charge, security interest, or other encumbrance upon any
property of any Borrower, the consequences of which could reasonably be
expected to have a materially adverse effect on Holdings and its
Subsidiaries, taken as a whole.
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(c) ENFORCEABILITY OF OBLIGATIONS. This Amendment and the
Credit Agreement as amended hereby constitute the legal, valid and
binding obligations of the Borrowers, enforceable against the
Borrowers, in accordance with their respective terms, except as limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in equity
or at law) and an implied covenant of good faith and fair dealing, and
except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the
court before which any proceeding therefor may be brought.
SECTION 10. NO OTHER AMENDMENTS. Except as expressly provided in this
Amendment, all of the terms, conditions and provisions of the Credit Agreement
and the other Loan Documents shall remain the same. It is declared and agreed by
each of the parties hereto that the Credit Agreement, as amended hereby, and
each of the other Loan Documents shall continue in full force and effect, and
that this Amendment and the Credit Agreement shall be read and construed as one
instrument.
SECTION 11. EXECUTION IN COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by each party on a separate
counterpart, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one instrument. In
proving this Amendment, it shall not be necessary to produce or account for
more than one such counterpart signed by the party against whom enforcement
is sought.
SECTION 12. GOVERNING LAW. THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS
AN AGREEMENT UNDER SEAL UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND
SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF SAID COMMONWEALTH WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OR CHOICE OF
LAW.
SECTION 13. HEADINGS. Headings or captions used in this Amendment are
for convenience of reference only and shall not define or limit the provisions
hereof.
SECTION 14. EXPENSES. The Borrowers hereby jointly and severally
agree to pay to the Agent, on demand by the Agent, all reasonable
out-of-pocket costs and expenses incurred or sustained by the Agent in
connection with the preparation of this Amendment (including reasonable legal
fees).
IN WITNESS WHEREOF, the parties have executed this Amendment under seal
as of the date first above written.
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
RSLPCO, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, L.P.
By: ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, Inc., its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, INC. (f/k/a ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Midwest, Inc., successor by merger to
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ West, Inc.,
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Southwest, Inc. and
R-S Southwest Realty, Inc.)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
FLEET NATIONAL BANK (f/k/a BankBoston, N.A.),
individually and as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT
PARTNERS L.P., individually and as Syndication
Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
NEW YORK LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Investment Vice President
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: NEW YORK LIFE INVESTMENT MANAGEMENT, LLC,
its Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Investment Vice President
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
COMERICA BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SUMMIT BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
BHF (USA) Capital Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
KEY CORPORATE CAPITAL INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
ALLFIRST BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
