EX-10.1 3 a2097193zex-10_1.htm EX-10.1
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Exhibit 10.1—SIXTH AMENDMENT AND WAIVER

SIXTH AMENDMENT AND WAIVER (this "Amendment"), dated as of December 20, 2002, among CONSOLIDATED CONTAINER HOLDINGS LLC, a Delaware limited liability company ("Holdings"), CONSOLIDATED CONTAINER COMPANY LLC, a Delaware limited liability company (the "Borrower"), the Banks party to the Credit Agreement referred to below (the "Banks"), DEUTSCHE BANK TRUST COMPANY AMERICAS, (f/k/a Bankers Trust Company), as Administrative Agent (the "Administrative Agent"), JPMORGAN CHASE BANK (successor by merger to Morgan Guaranty Trust Company of New York), as Documentation Agent (the "Documentation Agent"), and CREDIT SUISSE FIRST BOSTON (f/k/a Donaldson, Lufkin & Jenrette Securities Corporation), as Syndication Agent (the "Syndication Agent" and, together with the Administrative Agent and the Documentation Agent, the "Agents"). Unless otherwise indicated, 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, Holdings, the Borrower, the Banks and the Agents are parties to a Credit Agreement, dated as of July 1, 1999 (as amended, restated, modified and/or supplemented, the "Credit Agreement"); and

WHEREAS, subject to the terms and conditions of this Amendment, the Banks wish to grant certain amendments under the Credit Agreement as herein provided on the terms and conditions set forth herein;

NOW, THEREFORE, it is agreed:

I. Amendments and Waivers.

1. Sections 4.02(b), 4.02(c) and 4.02(e) of the Credit Agreement are hereby amended by, in each case, deleting the date "December 31, 2002" appearing in the table set forth in said Section and inserting the date "January 7, 2003" in lieu thereof.

2. The definition of "Tranche 3 Revolving Loan Maturity Date" is hereby amended by deleting the date "January 5, 2003" appearing therein and inserting the date "January 7, 2003" in lieu thereof.

3. For the period (the "Waiver Period") from the Sixth Amendment Effective Date (as defined below) to and including January 7, 2003, the Banks hereby waive Holdings' and the Borrower's obligation to comply with (i) Sections 8.08, 8.09 and 8.10 of the Credit Agreement, in each case, with respect to the Test Period ending on December 31, 2002 and (ii) Section 8.18 of the Credit Agreement for the fiscal month of Holdings ending on December 31, 2002. This waiver shall have no force or effect upon the expiration of the Waiver Period at which time all Events of Default that would have arisen (without giving effect to this Amendment) as a result of Holdings' and the Borrower's failure to comply with the aforementioned Sections shall exist and be continuing for all purposes under the Credit Agreement, the other Credit Documents and each Tranche 3 Guaranty.

II. Acknowledgments and Agreements with respect to various Credit Documents and each Tranche 3 Guaranty.

1. For the avoidance of doubt, each Credit Party hereby acknowledges and confirms its due authorization, execution and delivery of all Credit Documents (each Credit Document as amended, restated, modified and/or supplemented through and including the date hereof) to which it is a party, including all instruments, financing statements, agreements, certificates and documents executed and delivered in connection therewith, and hereby ratifies all actions heretofore taken in connection therewith.

2. Each Credit Party, by its execution (or acknowledgment, as the case may be) and delivery of this Amendment, hereby consents to the extensions of credit pursuant to the Credit Agreement (including, without limitation, as amended by this Amendment). Each Credit Party further acknowledges and agrees to the provisions of this Amendment and hereby agrees for the benefit of the Banks that all extensions of credit (including as contemplated by this Amendment) pursuant to the Credit Agreement (including, without limitation, as amended by this Amendment, and as same may be further amended, restated, modified and/or supplemented from time to time) shall be fully entitled to all benefits of, and shall be fully guaranteed and secured pursuant to and in accordance with the terms of, each of the Credit Documents, as applicable.

3. For the avoidance of doubt, each Tranche 3 Guarantor hereby acknowledges and confirms its due authorization, execution and delivery of the respective Tranche 3 Guaranty (as amended, restated, modified and/or supplemented through and including the date hereof) to which it is a party, including all agreements, certificates and documents executed and delivered in connection therewith, and hereby ratifies all actions heretofore taken in connection therewith.

4. Each Tranche 3 Guarantor, by its execution (or acknowledgment, as the case may be) and delivery of this Amendment, hereby consents to the extension of Tranche 3 Revolving Loans pursuant to the Credit Agreement (including, without limitation, as amended by this Amendment). Each Tranche 3 Guarantor further acknowledges and agrees to the provisions of this Amendment and hereby agrees for the benefit of the Banks that all extensions of Tranche 3 Revolving Loans (including as contemplated by this Amendment) pursuant to the Credit Agreement shall be fully entitled to all benefits of, and shall be fully guaranteed pursuant to and in accordance with the terms of, the respective Tranche 3 Guaranty to which it is a party.

III. Miscellaneous.

1. This Amendment is limited as specified and shall not constitute a modification, acceptance or Amendment of any other provision of the Credit Agreement or any other Credit Document.

2. 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 and the Administrative Agent.

3. 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.

4. This Amendment shall become effective on the date (the "Sixth Amendment Effective Date") when (i) each Credit Party, each Tranche 3 Guarantor, each Tranche 3 Revolving Loan Bank, the Majority Banks of the A Term Loan Tranche, the Majority Banks of the B Term Loan Tranche, the Majority Banks of the Tranche 2 Converted Term Loan Tranche and the Required Banks shall have signed a counterpart hereof (whether the same or different counterpart) and shall have delivered (including by way of facsimile transmission) the same to the Administrative Agent at the Notice Office and (ii) the Borrower shall have paid to each Bank which executes and delivers to the Administrative Agent a counterpart of this Amendment on or before 5:00 p.m. (New York time) on December 20, 2002, a fee equal to 0.10% of the sum of (w) the aggregate principal amount of such Bank's outstanding Term Loans on the Sixth Amendment Effective Date, (x) the aggregate principal amount of such Bank's Tranche 2 Converted Term Loans on the Sixth Amendment Effective Date, (y) such Bank's Revolving Loan Commitment on the Sixth Amendment Effective Date and (z) such Bank's Tranche 3 Revolving Loan Commitment on the Sixth Amendment Effective Date.

5. In order to induce the Banks to enter into this Amendment, the Borrower hereby represents and warrants that (i) the representations, warranties and agreements contained in Section 6 of the Credit Agreement are true and correct in all material respects on and as of the Sixth Amendment Effective Date, both before and after giving effect to this Amendment and (ii) there exists no Default or Event of Default on the Sixth Amendment Effective Date, after giving effect to the Amendments contained in this Amendment.

6. From and after the Sixth 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.

* * *

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.

		CONSOLIDATED CONTAINER HOLDINGS LLC
		By:	/s/ Richard P. Sehring
			Name: Richard P. Sehring
			Title: SVP Finance and Accounting
		CONSOLIDATED CONTAINER COMPANY LLC
		By:	Consolidated Container Holdings LLC, as its Sole Member and Manager
		By:	/s/ Richard P. Sehring
			Name: Richard P. Sehring
			Title: SVP Finance and Accounting
		DEUTSCHE BANK TRUST COMPANY AMERICAS,
			Individually and as Administrative Agent
		By:	/s/ Marco Orlando
			Name: Marco Orlando
			Title: Director
		JPMORGAN CHASE BANK,
			Individually and as Documentation Agent
		By:	/s/ Douglas A. Jenks
			Name: Douglas A. Jenks
			Title: Vice President

		SIGNATURE PAGE TO THE SIXTH AMENDMENT AND WAIVER, DATED AS OF DECEMBER 20, 2002, TO THE CREDIT AGREEMENT, DATED AS OF JULY 1,1999, AMONG CONSOLIDATED CONTAINER HOLDINGS LLC, CONSOLIDATED CONTAINER COMPANY LLC, THE VARIOUS BANKS PARTY THERETO, JPMORGAN CHASE BANK (SUCCESSOR BY MERGER TO MORGAN GUARANTY TRUST COMPANY OF NEW YORK), AS DOCUMENTATION AGENT, CREDIT SUISSE FIRST BOSTON (F/K/A DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION), AS SYNDICATION AGENT, AND DEUTSCHE BANK TRUST COMPANY AMERICAS (F/K/A BANKERS TRUST COMPANY), AS ADMINISTRATIVE AGENT
		NAME OF INSTITUTION:
		ADDISON CDO, LIMITED (#1279)
		By:	Pacific Investment Management Company LLC, as its Investment Advisor
		By:	/s/ Mohan V. Phansalkar
			Name: Mohan V. Phansalkar
			Title: Executive Vice President
		AIMCO CDO SERIES 2000-A
		By:	/s/ Chris Goergen
			Name: Chris Goergen
			Title: Authorized Signatory
		By:	/s/ Patricia W. Wilson
			Name: Patricia W. Wilson
			Title: Authorized Signatory

		AIMCO CLO SERIES 2001-A
		By:	/s/ Chris Goergen
			Name: Chris Goergen
			Title: Authorized Signatory
		By:	/s/ Patricia W. Wilson
			Name: Patricia W. Wilson
			Title: Authorized Signatory
		APEX (IDM) CDO I, Ltd.
		By:	David L. Babson & Company Inc. as Collateral Manager
		By:	/s/ Glen Duffy
			Name: Glen Duffy
			Title: Managing Director
		ATHENA CDO, LIMITED (#1277)
		By:	Pacific Investment Management Company LLC, as its Investment Advisor
		By:	/s/ Mohan V. Phansalkar
			Name: Mohan V. Phansalkar
			Title: Executive Vice President
		BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC.
		By:	/s/ Thomas L. Mowat
			Name: Thomas L. Mowat
			Title: Director
		By:	/s/ Elizabeth Tallmadge
			Name: Elizabeth Tallmadge
			Title: Managing Director Chief Investment Officer
		BANK OF MONTREAL
		By:	/s/ Mary Kay Parsek
			Name: Mary Kay Parsek
			Title: Director
		BAYERISCHE HYPO-UND VEREINSBANK AG NEW YORK BRANCH
		By:	/s/ Thomas L. Mowat
			Name: Thomas L. Mowat
			Title: Director
		By:	/s/ Elizabeth Tallmadge
			Name: Elizabeth Tallmadge
			Title: Managing Director Chief Investment Officer

		BEDFORD CDO, LIMITED (#1276)
		By:	Pacific Investment Management Company LLC, as its Investment Advisor
		By:	/s/ Mohan V. Phansalkar
			Name: Mohan V. Phansalkar
			Title: Executive Vice President
		CAPTIVA II FINANCE LTD.
		By:	/s/ David Dryer
			Name: David Dryer
			Title: Director
		CAPTIVA III FINANCE LTD. (ACCT. 275),
		as advised by Pacific Investment Management Company LLC
		By:	/s/ David Dryer
			Name: David Dryer
			Title: Director
		CAPTIVA IV FINANCE LTD. (ACCT. 1275),
		as advised by Pacific Management Company LLC
		By:	/s/ David Dryer
			Name: David Dryer
			Title: Director
		CARLYLE HIGH YIELD PARTNERS II, LTD.
		By:	/s/ Linda Pace
			Name: Linda Pace
			Title: Principal
		CENTURION CDO II, LTD.
		By:	American Express Asset Management Group Inc. as Collateral Manager
		By:	/s/ Leanne Stavrakis
			Name: Leanne Stavrakis
			Title: Director-Operations
		CENTURIAN CDO III
		By:	American Express Asset Management Group Inc. as Collateral Manager
		By:	/s/ Leanne Stavrakis
			Name: Leanne Stavrakis
			Title: Director-Operations

		CENTURIAN CDO VI, LTD.
		By:	American Express Asset Management Group Inc. as Collateral Manager
		By:	/s/ Leanne Stavrakis
			Name: Leanne Stavrakis
			Title: Director-Operations
		DELANO COMPANY (#274)
		By:	Pacific Investment Mangement Company LLC, as its Investment Advisor
		By:	/s/ Mohan V. Phansalkar
			Title: Mohan V. Phansalkar
			Title: Executive Vice President
		EATON VANCE CDO IV, LTD.
		By:	Eaton Vance Management as Investment Advisor
		By:	/s/ Scott H. Page
			Name: Scott H. Page
			Title: Vice President
		EATON VANCE INSTITUTIONAL SENIOR LOAN FUND
		By:	Eaton Vance Management as Investment Advisor
		By:	/s/ Scott H. Page
			Name: Scott H. Page
			Title: Vice President
		EATON VANCE SENIOR INCOME TRUST
		By:	Eaton Vance Management as Investment Advisor
		By:	/s/ Scott H. Page
			Name: Scott H. Page
			Title: Vice President
		ELC (CAYMAN) LTD.
		By:	David L. Babson & Company Inc. as Collateral Manager
		By:	/s/ Glen Duffy
			Name: Glen Duffy
			Title: Managing Director
		ELC (CAYMAN) LTD. 2000-I
		By:	David L. Babson & Company Inc. as Collateral Manager
		By:	/s/ Glen Duffy
			Name: Glen Duffy
			Title: Managing Director

		ELC (CAYMAN) LTD. CDO SERIES 1999-I
		By:	David L. Babson & Company Inc. as Collateral Manager
		By:	/s/ Glen Duffy
			Name: Glen Duffy
			Title: Managing Director
		ERSTE BANK
		By:	/s/ Brandon A. Meyerson
			Name: Brandon A. Meyerson
			Title: Vice President
		By:	/s/ Lynne McCarthy
			Name: Lynne McCarthy
			Title: Vice President
		FIRSTRUST BANK
		By:	/s/ Kent Nelson
			Name: Kent Nelson
			Title: Senior Vice President
		FLAGSHIP CLO 2001-1
		By:	/s/ Mark S. Pelletier
			Name: Mark S. Pelletier
			Title: Director
		FLEET NATIONAL BANK
		By:	/s/ Virginia Dennett
			Name: Virginia Dennett
			Title: Director
		GENERAL ELECTRIC CAPITAL CORPORATION
		By:	/s/ W. Jerome McDermott
			Name: W. Jerome McDermott
			Title: Duly Authorized Signatory
		GRAYSON & CO.
		By:	Boston Management and Research as Investment Advisor
		By:	/s/ Scott H. Page
			Name: Scott H. Page
			Title: Vice President
		HAMILTON CDO, LTD.
		By:	Stanfield Capital Partners LLC
		By:	/s/ Christopher A. Bondy
			Name: Christopher A. Bondy Title: Partner

		HIGHLAND LEGACY LIMITED
		By:	Highland Capital Management, L.P. as Collateral Manager
		By:	/s/ Mark Okada
			Name: Mark Okada
			Title: Chief Investment Officer, Highland Capital Management, L.P.
		HIGHLAND LOAN FUNDING V LTD.
		By:	Highland Capital Management, L.P. as Collateral Manager
		By:	/s/ Mark Okada
			Name: Mark Okada
			Title: Chief Investment Officer, Highland Capital Management, L.P.
		JISSEKIKUN FUNDING, LTD. (#1288)
		By:	Pacific Investment Management Company LLC, as its Investment Advisor
		By:	/s/ Mohan V. Phansalkar
			Name: Mohan V. Phansalkar
			Title: Executive Vice President
		KZH CRESCENT LLC
		By:	/s/ Rowena Smith
			Name: Rowena Smith
			Title: Authorized Agent
		KZH CRESCENT-2 LLC
		By:	/s/ Rowena Smith
			Name: Rowena Smith
			Title: Authorized Agent
		KZH CRESCENT-3 LLC
		By:	/s/ Rowena Smith
			Name: Rowena Smith
			Title: Authorized Agent
		KZH CYPRESSTREE-1 LLC
		By:	/s/ Rowena Smith
			Name: Rowena Smith
			Title: Authorized Agent
		KZH ING-2 LLC
		By:	/s/ Rowena Smith
			Name: Rowena Smith
			Title: Authorized Agent

		KZH PONDVIEW LLC
		By:	/s/ Rowena Smith
			Name: Rowena Smith
			Title: Authorized Agent
		KZH STERLING LLC
		By:	/s/ Rowena Smith
			Name: Rowena Smith
			Title: Authorized Agent
		KZH WATERSIDE LLC
		By:	/s/ Rowena Smith
			Name: Rowena Smith
			Title: Authorized Agent
		MIZUHO CORPORATE BANK, LTD.
		By:	/s/ Naoki Yamamori
			Name: Naoki Yamamori
			Title: Deputy General Manager
		NATIONAL CITY BANK
		By:	/s/ Andrew Pernsteiner
			Name: Andrew Pernsteiner
			Title: Account Officer
		OAK BROOK BANK
		By:	/s/ Henry Wessel
			Name: Henry Wessel
			Title: Vice President
		PAMCO CAYMAN LTD
		By:	Highland Capital Management, L.P. as Collateral Manager
		By:	/s/ Mark Okada
			Name: Mark Okada
			Title: Chief Investment Officer, Highland Capital Management, L.P.
		PROMETHEUS INVESTMENT FUNDING NO. 1 LTD.
		By:	HVB Credit Advisors LLC
		By:	/s/ Thomas R. Mowat
			Name: Thomas R. Mowat
			Title: Director
		By:	/s/ Elizabeth Tallmadge
			Name: Elizabeth Tallmadge
			Title: Managing Director Chief Investment Officer

		RESTORATION FUNDING CLO, LTD.
		By:	Highland Capital Management, L.P. as Collateral Manager
		By:	/s/ Mark Okada
			Name: Mark Okada
			Title: Chief Investment Officer, Highland Capital Management, L.P.
		SENIOR DEBT PORTFOLIO
		By:	Boston Management and Research as Investment Advisor
		By:	/s/ Scott H. Page
			Name: Scott H. Page
			Title: Vice President
		SEQUILS - CENTURION V, LTD.
		By:	American Express Asset Management Group Inc. as Collateral Manager
		By:	/s/ Leanne Stavrakis
			Name: Leanne Stavrakis
			Title: Director-Operations
		SEQUILS I, LTD.
		By:	TCW Advisors, Inc. as its Collateral Manager
		By:	/s/ Mark L. Gold
			Name: Mark L. Gold
			Title: Managing Director
		By:	/s/ G. Steven Kalin
			Name: G. Steven Kalin
			Title: Vice President
		SEQUILS IV, LTD.
		By:	TCW Advisors, Inc. as its Collateral Manager
		By:	/s/ Mark L. Gold
			Name: Mark L. Gold
			Title: Managing Director
		By:	/s/ G. Steven Kalin
			Name: G. Steven Kalin
			Title: Vice President
		STANFIELD ARBITRAGE CDO, LTD.
		By:	Stanfield Capital Partners LLC as Collateral Manager
		By:	/s/ Christopher A. Bondy
			Name: Christopher A. Bondy
			Title: Partner

		SUNAMERICA SENIOR FLOATING RATE FUND, INC.
		By:	Stanfield Capital Partners LLC as Subadvisor
		By:	/s/ Christopher A. Bondy
			Name: Christopher A. Bondy
			Title: Partner
		TALCOTT NOTCH CBO-I
		By:	General Re-New England Asset Management, Inc., as Collateral Manager
		By:	/s/ Susan Bosworth
			Name: Susan Bosworth
			Title: Vice President
		TCW LEVERAGED INCOME TRUST, L.P.
		By:	TCW Advisers (Bermuda), Ltd., as General Partner
		By:	/s/ Mark L. Gold
			Name: Mark L. Gold
			Title: Managing Director
		By:	TCW Investment Management Company, as Investment Adviser
		By:	/s/ G. Steven Kalin
			Name: G. Steven Kalin
			Title: Vice President
		TCW LEVERAGED INCOME TRUST II, L.P.
		By:	TCW Advisers (Bermuda), Ltd., as General Partner
		By:	/s/ Mark L. Gold
			Name: Mark L. Gold
			Title: Managing Director
		By:	TCW Investment Management Company, as Investment Adviser
		By:	/s/ G. Steven Kalin
			Name: G. Steven Kalin
			Title: Vice President
		TCW SELECT LOAN FUND, LIMITED
		By:	TCW Advisors, Inc. as its Collateral Manager
		By:	/s/ Mark L. Gold
			Name: Mark L. Gold
			Title: Managing Director
		By:	/s/ G. Steven Kalin
			Name: G. Steven Kalin Title: Vice President

		THE BANK OF NEW YORK
		By:	/s/ Brendan T. Nedzi
			Name: Brendan T. Nedzi
			Title: SVP
		THE BANK OF NOVA SCOTIA
		By:	/s/ Mark Sparrow
			Name: Mark Sparrow
			Title: Director
		THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
		By:	/s/ Mary Gaffney
			Name: Mary Gaffney
			Title: Associate Director
		By:	/s/ Kieran Rockett
			Name: Kieran Rockett
			Title: Deputy Manager
		THE SUMITOMO TRUST AND BANKING CO., LTD.
		By:	/s/ Elizabeth A. Quirk
			Name: Elizabeth A. Quirk
			Title: Vice President
		TORONTO DOMINION (NEW YORK), INC.
		By:	/s/ Stacy Malek
			Name: Stacy Malek
			Title: Vice President
		TRYON CDO LTD. 2000-I
		By:	David L. Babson & Company Inc. as Collateral Manager
		By:	/s/ Glen Duffy
			Name: Glen Duffy
			Title: Managing Director
		WEBSTER BANK
		By:	/s/ John Gilsenan
			Name: John Gilsenan
			Title: Vice President
		WINDSOR LOAN FUNDING, LIMITED
		By:	Stanfield Capital Partners LLC as Collateral Manager
		By:	/s/ Christopher A. Bondy
			Name: Christopher A. Bondy
			Title: Partner

Acknowledged and Agreed to by:

VESTAR CAPITAL PARTNERS III, L.P.
By:	Vestar Associates III, L.P., its General Partner
By:	Vestar Associates Corporation III, its General Partner
By:	/s/ John R. Woodard
	Name:	John R. Woodard
	Title:	Managing Director
DEAN FOODS COMPANY
By:	/s/ Ronald H. Klein
	Name:	Ronald H. Klein
	Title:	SVP Corporate Development
CONSOLIDATED CONTAINER COMPANY LP
By:	/s/ Richard P. Sehring
	Name:	Richard P. Sehring
	Title:	SVP Finance and Accounting
REID PLASTICS GROUP LLC
By:	/s/ Richard P. Sehring
	Name:	Richard P. Sehring
	Title:	SVP Finance and Accounting
CONSOLIDATED CONTAINER CAPITAL, INC.
By:	/s/ Richard P. Sehring
	Name:	Richard P. Sehring
	Title:	SVP Finance and Accounting
PLASTIC CONTAINERS LLC
By:	/s/ Richard P. Sehring
	Name:	Richard P. Sehring
	Title:	SVP Finance and Accounting
CONTINENTAL CARRIBEAN CONTAINERS, INC.
By:	/s/ Richard P. Sehring
	Name:	Richard P. Sehring
	Title:	SVP Finance and Accounting

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Exhibit 10.1—SIXTH AMENDMENT AND WAIVER