EXHIBIT 2.10
WAIVER
This Waiver dated as of April 30, 2002 ("Agreement") is among IFCO
Systems, N.V., a public limited liability company organized under the laws of
the Netherlands ("Holdings"), IFCO Systems North America, Inc., a Delaware
corporation ("Borrower"), the Lenders (as defined below) executing this
Agreement, and Bank One, NA, as administrative agent for the Lenders
("Administrative Agent").
INTRODUCTION
A. The Borrower is party to the Second Amended and Restated Credit
Agreement dated as of December 31, 2000, as amended by Amendment No. 1 and
Consent dated as of June 12, 2001, Amendment No. 2 and Waiver dated as of August
31, 2001, Amendment No. 3, Waiver and Consent dated as of October 12, 2001, and
Amendment No. 4, Waiver and Consent dated as of February 22, 2002 (as amended,
the "Credit Agreement") with Holdings, the financial institutions parties
thereto ("Lenders"), CIBC World Markets Corp. and Banc One Capital Markets,
Inc., as co-lead arrangers and co-book runners, CIBC World Markets Corp., as
syndication agent, and the Administrative Agent.
B. The Borrower has requested that the Lenders waive compliance with
certain covenants in the Credit Agreement.
THEREFORE, the Borrower, the Lenders, and the Administrative Agent
hereby agree as follows:
Section 1. Definitions; References. Unless otherwise defined in this
Agreement, terms used in this Agreement which are defined in the Credit
Agreement shall have the meanings assigned to such terms in the Credit
Agreement.
Section 2. Waiver. The Administrative Agent and the Lenders hereby,
notwithstanding any provisions in the Credit Agreement and the Loan Documents to
the contrary, waive compliance with the reporting requirements in Sections
6.1(a), 6.2(a) and 6.2(b) of the Credit Agreement for the calendar year ending
December 31, 2001 only (collectively, the "Existing Defaults"). This temporary
waiver is (i) limited to the extent described herein and shall not be construed
to be a waiver of any other non-compliance, Defaults or Events of Default that
may have occurred or any other actions prohibited by the Credit Agreement and
(ii) is temporary in nature and expires and is no longer of any force and effect
on June 30, 2002 (the "Waiver Termination Date"), on which date the Existing
Defaults shall be immediately and automatically reinstated and shall constitute
"Events of Default" under the Credit Agreement and the other Loan Documents;
provided that, if the Borrower delivers the documentation required by Sections
6.1(a), 6.2(a) and 6.2(b) on or prior to the Waiver Termination Date, the
Lenders hereby agree that the temporary waiver set forth in this Section 2 shall
become a permanent waiver of the Existing Defaults on the effective date of such
delivery. The Administrative Agent and the
Lenders reserve the right to exercise any rights and remedies available to them
in connection with any future violations, non-compliance or defaults with
respect to Sections 6.1(a), 6.2(a), and 6.2(b) of the Credit Agreement or any
other provision of any Loan Document.
Section 3. Representations and Warranties. The Borrower represents
and warrants to the Administrative Agent and the Lenders that:
(a) the representations and warranties set forth in the Credit
Agreement are true and correct in all material respects as of the date of this
Agreement, except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty
was true and correct in all material respects as of such earlier date;
(b) (i) the execution, delivery, and performance of this Agreement
have been duly authorized by appropriate proceedings, and (ii) this Agreement
constitutes a legal, valid, and binding obligation of the Borrower and Holdings,
enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
the rights of creditors generally and general principles of equity;
(c) the attached Acknowledgement and Consent by Guarantors constitutes
a legal, valid, and binding obligation of the Guarantors, enforceable in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the rights of
creditors generally and general principles of equity; and
(d) as of the effectiveness of this Agreement, except for the Defaults
and Events of Default expressly covered by the Forbearance Agreement dated as of
April 15, 2002 among the Borrower, Holdings, the Lenders and the Administrative
Agent, no Default or Event of Default has occurred and is continuing.
Section 4. Effectiveness. This Agreement and the attached
Acknowledgment and Consent shall become effective upon the occurrence of the
following conditions precedent:
(a) the Borrower, Holdings, the Guarantors, the Administrative Agent,
and the Required Lenders shall have delivered duly and validly executed
originals of this Agreement to the Administrative Agent;
(b) the representations and warranties in this Agreement shall be true
and correct in all material respects;
(c) the Administrative Agent and Lenders executing this Agreement
shall have received the required work fee from the Borrower; and
(d) the Borrower shall have paid all costs, fees and expenses which
have been invoiced and are payable pursuant to the terms of the Credit
Agreement.
Section 5. Effect on Loan Documents.
(a) Except as to the waiver expressly set herein, the Credit Agreement and
the Loan Documents remain in full force and effect as originally executed and
amended heretofore.
(b) This Agreement is a Loan Document for the purposes of the provisions of
the other Loan Documents. Without limiting the foregoing, any breach of
representations, warranties, and covenants under this Agreement may be an Event
of Default or Default under other Loan Documents.
(c) HOLDINGS AND THE BORROWER ACKNOWLEDGE THAT ON THE DATE HEREOF ALL
OBLIGATIONS ARE PAYABLE WITHOUT DEFENSE, OFFSET, COUNTERCLAIM OR RECOUPMENT. IN
ADDITION, EACH OF HOLDINGS, THE BORROWER AND THEIR SUBSIDIARIES (FOR THEMSELVES
AND THEIR RESPECTIVE SUCCESSORS, AGENTS, ASSIGNS, TRANSFEREES, OFFICERS,
DIRECTORS, EMPLOYEES, SHAREHOLDERS, ATTORNEYS AND AGENTS) HEREBY RELEASES ANY
AND ALL CLAIMS, CAUSES OF ACTION OR OTHER DISPUTES IT MAY HAVE AGAINST THE
AGENT, ANY OF THE LENDERS, LEGAL COUNSEL TO THE AGENT OR THE LENDERS,
CONSULTANTS HIRED BY ANY OF THE FOREGOING, OR ANY OF THEIR RESPECTIVE
AFFILIATES, SUBSIDIARIES, SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES,
REPRESENTATIVES, SUCCESSORS OR ASSIGNS OF ANY KIND OR NATURE ARISING OUT OF,
RELATED TO, OR IN ANY WAY CONNECTED WITH, THE CREDIT AGREEMENT OR THE LOAN
DOCUMENTS, IN EACH CASE WHICH MAY HAVE ARISEN ON OR BEFORE THE DATE OF THIS
AGREEMENT. THE BORROWER HEREBY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND
HAS CONFERRED WITH ITS COUNSEL AND ADVISORS REGARDING ITS CONTENT, INCLUDING
THIS PARAGRAPH 6(c), AND IS FREELY AND VOLUNTARILY ENTERING INTO THIS AGREEMENT,
AND HEREBY AGREES TO WAIVE ANY CLAIM THAT THE TERMS OF THIS AGREEMENT
(INCLUDING, WITHOUT LIMITATION, THE RELEASES CONTAINED HEREIN) ARE INVALID OR
OTHERWISE UNENFORCEABLE.
(d) THE AGENT AND THE LENDERS HEREBY EXPRESSLY RESERVE ALL OF THEIR RIGHTS,
REMEDIES, AND CLAIMS UNDER THE LOAN DOCUMENTS. EXCEPT AS EXPRESSLY PROVIDED IN
THIS AGREEMENT, NOTHING IN THIS AGREEMENT SHALL CONSTITUTE A WAIVER OR
RELINQUISHMENT (i) OF ANY DEFAULT OR EVENT OF DEFAULT (INCLUDING, WITHOUT
LIMITATION, ANY EXISTING DEFAULT) UNDER ANY OF THE LOAN DOCUMENTS, (ii) OF ANY
OF THE AGREEMENTS, TERMS OR CONDITIONS CONTAINED IN THE LOAN DOCUMENTS, (iii) OF
ANY RIGHTS OR REMEDIES OF THE AGENT AND LENDERS WITH RESPECT TO THE LOAN
DOCUMENTS, OR (iv) OF THE RIGHTS OF THE AGENT AND THE LENDERS TO COLLECT THE
FULL AMOUNTS OWING TO THEM UNDER THE LOAN DOCUMENTS.
Section 6. Choice of Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York.
Section 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original.
[Remainder of page intentionally left blank]
EXECUTED as of the date first above written.
IFCO SYSTEMS, N.V.
By: /s/ Karl Pohler
-------------------------------------------
Karl Pohler
Chief Executive Officer
IFCO SYSTEMS NORTH AMERICA, INC.
By: /s/ David Russell
-------------------------------------------
David Russell
President
BANK ONE, NA, as Administrative Agent and as a
Lender
By: /s/ C. Dianne Wooley
-------------------------------------------
Name: C. Dianne Wooley
-----------------------------------------
Title: First Vice President
----------------------------------------
CIBC INC., as Lender
By: /s/ Katherine Bass
-------------------------------------------
Name: Katherine Bass
-----------------------------------------
Title: Executive Director
----------------------------------------
CIBC World Markets Corp. As Agent
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as Lender
By: ___________________________________________
Name: _________________________________________
Title: ________________________________________
By: ___________________________________________
Name: _________________________________________
Title: ________________________________________
COMERICA BANK, as Lender
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
BNP PARIBAS, as Lender
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
NATIONAL CITY BANK, as Lender
By: /s/ Michael J. Durbin
-----------------------------------------
Name: Michael J. Durbin
---------------------------------------
Title: Vice President
--------------------------------------
THE ROYAL BANK OF SCOTLAND, as Lender
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
THE BANK OF NOVA SCOTIA, as Lender
By: /s/ Olivia L. Braun
-----------------------------------------
Name: Olivia L. Braun
---------------------------------------
Title: Director
--------------------------------------
ACKNOWLEDGMENT AND CONSENT BY GUARANTORS
Each of the undersigned Guarantors (i) acknowledges its receipt of a
copy of the foregoing Agreement (ii) hereby consents to and agrees to be bound
by all of the terms and conditions of the foregoing Agreement and (ii) reaffirms
its obligations under the Guarantee and Collateral Agreement dated as of March
8, 2000 in favor of Bank One, NA, as Administrative Agent.
Dated as April 30, 2002.
BORROWER:
--------
IFCO SYSTEMS NORTH AMERICA, INC.
By: /s/ David Russell
-----------------------------------------
David Russell
President
GUARANTORS:
----------
IFCO SYSTEMS, N.V.
By: /s/ Karl Pohler
-----------------------------------------
Karl Pohler
Chief Executive Officer
IFCO SYSTEMS VIRGINIA, INC.
IFCO SYSTEMS FLORIDA, INC.
IFCO SYSTEMS WISCONSIN, INC.
NLD, INC.
IFCO SYSTEMS CALIFORNIA, INC.
IFCO SYSTEMS BUTNER, INC.
IFCO SYSTEMS PENNSYLVANIA, INC.
IFCO SYSTEMS INDIANA, INC.
VALLEY CRATING AND PACKAGING, INC.
IFCO SYSTEMS WATERLOO, INC.
IFCO SYSTEMS MAINE, INC.
BLACK RIVER FOREST PRODUCTS, INC.
PALEX-TEXAS, INC.
IFCO SYSTEMS IOWA, INC.
IFCO SYSTEMS NORTH CAROLINA, INC.
IFCO SYSTEMS LOUISIANA, INC.
IFCO SYSTEMS ARIZONA, INC.
NLP TRANSPORT, INC.
AZ PALLET, INC.
BROMLEY ACQUISITION COMPANY, INC.
IFCO SYSTEMS OHIO, INC.
PALLET MANAGEMENT SERVICES, INC.
IFCO SYSTEMS WESTERN REGION, INC.
By: /s/ David Russell
-----------------------------------------
David Russell
President
IFCO SYSTEMS CANADA, INC.
By: /s/ David Russell
-----------------------------------------
David Russell
Vice President
PALEX-TEXAS, L.P.
By: PalEx-Texas, Inc., its General Partner
By: /s/ David Russell
-----------------------------------------
David Russell
President
IFCO ICS-CHICAGO, INC.
IFCO INDUSTRIAL CONTAINER SYSTEMS
HOLDING COMPANY
IFCO ICS-WASHINGTON, INC.
IFCO ICS-CALIFORNIA, INC.
ENVIRONMENTAL RECYCLERS OF
COLORADO, INC.
IFCO ICS-FLORIDA, INC.
IFCO ICS-MINNESOTA, INC.
IFCO ICS-GEORGIA, INC.
IFCO ICS-ILLINOIS, INC.
IFCO ICS-NORTH CAROLINA, INC.
IFCO ICS-MIAMI, INC.
CONTAINER RESOURCES CORPORATION
IFCO ICS-SOUTH CAROLINA, INC.
PALEX-KANSAS, INC.
IFCO ICS-MICHIGAN, INC.
By: /s/ Gayle Dalicandro
-----------------------------------------
Gayle Dalicandro
President
IFCO ICS-LLC
By: IFCO ICS-Chicago, Inc., its Manager
By: /s/ Gayle Dalicandro
-----------------------------------------
Gayle Dalicandro
President
PALEX TEXAS HOLDINGS, INC.
By: /s/ David Russell
-----------------------------------------
David Russell
President
IFCO SYSTEMS GMBH
By: /s/ Karl Pohler
-----------------------------------------
Karl Pohler
Chief Executive Officer
By: /s/ Michael Nimtsch
-----------------------------------------
Michael Nimtsch
Chief Financial Officer
SCHOELLER-U.S., INC.
By: /s/ David Russell
-----------------------------------------
David Russell
President
IFCO - U.S., L.L.C.
By: /s/ David Russell
-----------------------------------------
David Russell
President