EXHIBIT 10.1
FOURTH AMENDMENT TO REVOLVING CREDIT,
TERM LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND SECURITY
AGREEMENT (this "Amendment") is made as of November 15, 2004, among PVC
CONTAINER CORPORATION, a Delaware corporation ("PVC"), NOVATEC PLASTICS
CORPORATION, a Delaware corporation ("Novatec"), NOVAPAK CORPORATION, a Delaware
corporation ("Novapak"), AIROPAK CORPORATION, a Delaware corporation
("Airopak"), MARPAC INDUSTRIES, INC., a New York corporation ("MI"), and MARPAC
SOUTHWEST, INC., an Oklahoma corporation ("MS") (PVC, Novatec, Novapak, Airopak,
MI and MS, each a "Borrower" and collectively the "Borrowers"), PNC BANK,
NATIONAL ASSOCIATION, a national banking association ("PNC"), as a Lender (as
defined below) and as agent for Lenders (in such capacity, the "Agent"), and
each other Lender that is a signatory hereto.
W I T N E S S E T H:
A. Pursuant to the Revolving Credit, Term Loan and Security Agreement
dated August 31, 2000, as amended by the First Amendment to Revolving Credit,
Term Loan and Security Agreement dated as of November 27, 2001, Second Amendment
to Revolving Credit, Term Loan and Security Agreement dated as of June 11, 2003
and Third Amendment to Revolving Credit, Term Loan and Security Agreement dated
as of April 9, 2004 (the "Third Amendment") (as further amended, supplemented or
modified from time to time, the "Credit Agreement"), by and among the Borrowers,
a former Borrower (PVC Container International Sales Corporation ("PVCCISC")),
the financial institutions which are now or which hereafter become a party
thereto (collectively, the "Lenders" and individually a "Lender") and the Agent,
as agent for the Lenders, the Lenders agreed to make revolving credit and term
loans to the Borrowers upon the terms and conditions set forth therein.
B. Simultaneously with the execution, delivery and effectiveness hereof,
PNC is purchasing from the other two Lenders all of the Commitment Percentages
of such other Lenders and all of the outstanding Advances and other amounts
owing to such other Lenders under the Credit Agreement and the Note, together
with all instruments, documents and collateral security pertaining thereto,
which purchases are being made pursuant to separate Commitment Transfer
Supplements dated as of the date hereof between PNC, on the one hand, and each
of such other Lenders, on the other hand; and, as a result of such purchases,
PNC is now the sole Lender.
C. The Borrowers, the Agent and the sole Lender have agreed to amend the
Credit Agreement upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrowers, the Agent and the sole Lender agree as follows:
1. Capitalized terms used in this Amendment shall have the same meanings
given them in the Credit Agreement, unless otherwise defined herein.
2. The definition of "EBITDA" in Section 1.2 of the Credit Agreement is
hereby amended to read in its entirety as follows:
""EBITDA" shall mean for any period the sum of (i) Earnings Before
Interest and Taxes for such period plus (ii) depreciation expenses
for such
period, plus (iii) amortization expenses for such period, plus (iv)
non-cash deferred management fees which are expended during such
period, plus (v) restructuring charges for the Borrowers' fiscal
year ended June 30, 2004 previously approved by Agent, plus (vi) in
the case of any such period which is the Borrowers' fiscal year
ending June 30, 2005 or which includes any part of such fiscal year,
one-time charges for outside consultants, severance and other
restructuring charges approved by Agent for such fiscal year or part
thereof not exceeding an aggregate amount of $2,200,000 for such
fiscal year."
3. The definition of "Fee Letter" in Section 1.2 of the Credit Agreement
is hereby amended to read in its entirety as follows:
"Fee Letter" shall mean the fee letter dated August 31, 2000 among
Borrowers and PNC, as amended by letter dated November 15, 2004
among Borrowers and PNC."
4. The definition of "Maximum Equipment Loan Amount" in Section 1.2 of the
Credit Agreement is hereby amended to read in its entirety as follows:
""Maximum Equipment Loan Amount" shall mean $1,000,000 less
repayments of the Equipment Loans."
5. The definition of "Maximum Loan Amount" in Section 1.2 of the Credit
Agreement is hereby amended to read in its entirety as follows:
""Maximum Loan Amount" shall mean $28,532,000 less repayments of the
Term Loan and Equipment Loans."
6. The definition of "Maximum Revolving Advance Amount" in Section 1.2 of
the Credit Agreement is hereby amended to read in its entirety as follows:
""Maximum Revolving Advance Amount" shall mean $18,000,000."
7. Section 1.2 of the Credit Agreement is hereby amended to add the
following definitions in the appropriate alphabetical positions:
""Anti-Terrorism Laws" shall mean any Laws relating to terrorism or
money laundering, including Executive Order No. 13224, the USA
Patriot
Act, the Laws comprising or implementing the Bank Secrecy Act, and
the Laws administered by the United States Treasury Department's
Office of Foreign Asset Control (as any of the foregoing Laws may
from time to time be amended, renewed, extended, or replaced)."
""Blocked Person" shall have the meaning assigned to such term in
Section 5.24."
""Excess Cash Flow" for any fiscal period shall mean aggregate
EBITDA of Borrowers for such fiscal period minus non-financed
capital expenditures made by Borrowers during such fiscal period
minus taxes actually paid in cash by Borrowers during such fiscal
period plus decreases in working capital of Borrowers for such
fiscal period minus increases in working capital of Borrowers during
such fiscal period."
""Executive Order No. 13224" shall mean the Executive Order No.
13224 on Terrorist Financing, effective September 24, 2001, as the
same has been, or shall hereafter be, renewed, extended, amended or
replaced."
""Law" or "law" shall mean any law (including common law),
constitution, statute, treaty, regulation, rule, ordinance, opinion,
release, ruling, order, injunction, writ, decree, bond, judgment,
authorization or approval, lien or award by or settlement agreement
with any Governmental Body."
""USA Patriot Act" shall mean the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Public Law 107-56, as the same has been, or
shall hereafter be, renewed, extended, amended or replaced."
8. Section 1.2 of the Credit Agreement is hereby amended to delete the
definitions of "Maximum Initial Equipment Loan Amount" and "Maximum Additional
Equipment Loan Amount" appearing therein.
9. Section 2.1(a)(y)(ii) of the Credit Agreement is hereby amended to
change the amount "$10,000,000" appearing therein to "$9,000,000".
10. The Term Loan and certain Initial Equipment Loans (as defined in the
Third Amendment) have heretofore been advanced by the Lenders to the Borrowers,
subject to the terms and conditions of the Credit Agreement. No Additional
Equipment Loans (as defined in the Third Amendment) have been advanced by the
Lenders to the Borrowers. The Borrowers and the sole Lender hereby agree:
(a) that the entire outstanding principal balance of all of the
Initial Equipment Loans previously so advanced are hereby converted to and added
to and hereby become a part of the Term Loan under the Credit Agreement and
shall be included in the "Term Loan" and shall no longer be deemed "Equipment
Loans" as such terms are used in the Credit Agreement, and
(b) that the Credit Agreement shall be amended to provide for
certain new Equipment Loans as herein provided, subject to the terms and
conditions of the Credit Agreement, as amended hereby.
(c) Section 2.4 of the Credit Agreement is hereby amended to read in
its entirety as follows:
"2.4. (a) Term Loan. Subject to the terms and conditions of
this Agreement, each Lender, severally and not jointly, has made a
Term Loan to Borrowers. As of November 15, 2004, the principal
balance of the Term Loan is Five Million Six Hundred Eighty-Five
Thousand Eight Hundred Eighty-Eight and 21/100 Dollars
($5,685,888.21) and shall be, with respect to principal, payable as
follows, subject to acceleration upon the occurrence of an Event of
Default under this Agreement or termination of this Agreement: (i)
the principal portion of the Term Loan shall be payable in
consecutive monthly installments of ninety-four thousand seven
hundred sixty four and 20/100 dollars ($94,764.20) on the first
Business Day of each calendar month, commencing on December 1, 2004,
through and including November 1, 2007, with a final payment on the
last day of the Term in the amount necessary to repay in full the
entire unpaid principal amount of the Term Loan; and (ii) in
addition to the Term Loan payments set forth in Section 2.4(a)(i),
Borrowers shall pay, as additional principal payments on the Term
Loan, fifty percent (50%) of Excess Cash Flow in accordance with
Section 2.14(b); provided that the aggregate of all principal
payments made pursuant to this Section 2.4(a) shall not exceed the
principal amount of the Term Loan. The Term Loan shall be evidenced
by one or more secured promissory notes (collectively, the "Term
Note") in substantially the form attached hereto as Exhibit 2.4(a).
Once repaid, the Term Loan may not be reborrowed.
(b) Equipment Loans. (i) Subject to the terms and conditions
of this Agreement, each Lender, severally and not jointly, shall,
from time to time, make available Advances to Borrowers (each, an
"Equipment Loan" and collectively, the "Equipment Loans") at any
time during the period commencing November 15, 2004 and ending on
November 15, 2005 (the "Borrowing Period") to finance Borrowers'
purchase of Equipment for use in Borrowers' business. All such
Equipment Loans shall be in such amounts as are requested by
Borrowing Agent, but in no event shall any Equipment Loan exceed
eighty percent (80%) of the net invoice cost (excluding taxes,
shipping, delivery, handling, installation, overhead and other so
called "soft" costs) of the Equipment then to be purchased by
Borrowers and the total amount of all Equipment Loans outstanding
hereunder shall not exceed, in the aggregate, the sum of one million
dollars ($1,000,000). Once repaid Equipment Loans may not be
reborrowed.
(ii) Advances constituting Equipment Loans shall be
accumulated during the Borrowing Period. At the end of the Borrowing
Period, the sum of all Equipment Loans made during the Borrowing
Period shall amortize on the basis of a five (5) year schedule (such
amount as determined with respect to the Borrowing Period, the
"Amortization Amount"). The Equipment Loans shall be, with respect
to principal, payable in equal
monthly installments based upon the amortization schedule set forth
above, commencing on December 1, 2005 and on the first day of each
month thereafter with the balance payable upon the expiration of the
Term, subject to acceleration upon the occurrence of an Event of
Default under this Agreement or termination of this Agreement, and
shall be evidenced by one or more secured promissory notes
(collectively, the "Equipment Note"), executed by Borrowers in
substantially the form annexed hereto as Exhibit 2.4(b)."
11. Section 2.9(b) of the Credit Agreement is hereby amended to change the
amount "$4,192,000" appearing therein to "$3,846,000".
12. Section 2.14 of the Credit Agreement is hereby amended (a) to insert
"(a)" immediately prior to "Subject to" in the first line thereof and (b) to add
the following new clause (b) at the end thereof:
"(b) Commencing with the fiscal year of Borrowers ended June
30, 2005, Borrowers shall prepay the outstanding amount of the
Advances in an amount equal to 50% of Excess Cash Flow for each
fiscal year payable upon delivery of the financial statements to
Agent referred to in and required by Section 9.7 for such fiscal
year, but in any event not later than ninety (90) days after the end
of each such fiscal year, which amount shall be applied (x) first,
ratably to the outstanding principal installments of the Term Loan
in the inverse order of the maturities thereof, (y) second, to the
outstanding principal installments of the Equipment Loans in the
inverse order of maturities thereof and (z) third, to the remaining
Advances in such order as Agent may determine subject to Borrowers'
ability to reborrow Revolving Advances in accordance with the terms
hereof. In the event that the financial statements are not so
delivered, then a calculation based upon estimated amounts shall be
made by Agent upon which calculation Borrowers shall make the
prepayment required by this Section 2.14(b), subject to adjustment
when the financial statements are delivered to Agent as required
hereby. The calculation made by Agent shall not be deemed a waiver
of any rights Agent or Lenders may have as a result of the failure
by Borrowers to deliver such financial statements."
13. Article V of the Credit Agreement is hereby amended to add the
following new Section 5.24 at the end thereof:
"5.24. Anti-Terrorism Laws.
(a) General.
None of the Borrowers nor or any Affiliate of any Borrower, is in
violation of any Anti-Terrorism Law or engages in or conspires to
engage in any transaction that evades or avoids, or has the purpose
of evading or
avoiding, or attempts to violate, any of the prohibitions set forth
in any Anti-Terrorism Law.
(b) Executive Order No. 13224
None of the Borrowers, nor or any Affiliate of any Borrower,
or their respective agents acting or benefiting in any capacity in
connection with the Advances or other transactions hereunder, is any
of the following (each a "Blocked Person"):
(i) a Person that is listed in the annex to, or is otherwise
subject to the provisions of, the Executive Order No. 13224;
(ii) a Person owned or controlled by, or acting for or on
behalf of, any Person that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive Order No.
13224;
(iii) a Person or entity with which any Lender is prohibited
from dealing or otherwise engaging in any transaction by any
Anti-Terrorism Law;
(iv) a Person or entity that commits, threatens or conspires
to commit or supports "terrorism" as defined in the Executive Order
No. 13224;
(v) a Person or entity that is named as a "specially
designated national" on the most current list published by the U.S.
Treasury Department Office of Foreign Asset Control at its official
website or any replacement website or other replacement official
publication of such list, or
(vi) a person or entity who is affiliated or associated with a
person or entity listed above.
No Borrower or to the knowledge of any Borrower, any of its agents
acting in any capacity in connection with the Advances or other
transactions hereunder (i) conducts any business or engages in
making or receiving any contribution of funds, goods or services to
or for the benefit of any Blocked Person, or (ii) deals in, or
otherwise engages in any transaction relating to, any property or
interests in property blocked pursuant to the Executive Order No.
13224."
14. Section 6.5 of the Credit Agreement is hereby amended to read in its
entirety as follows:
"6.5. Net Worth. Maintain:
(a) at all times prior to November 15, 2004 a Net Worth in an
amount not less than $16,800,000; provided that such amount shall be
increased at the end of each fiscal year of Borrowers, commencing
with fiscal year end June 30, 2001, by an amount equal to fifty
percent (50%) of the net income, if any, of Borrowers on a
consolidated basis for such fiscal year then ended, calculated in
accordance with GAAP, and provided further, however, that,
notwithstanding the foregoing, such Net Worth as of December 31,
2001 shall be in an amount not less than $16,500,000, and
(b) at all times from and after November 15, 2004 a Net Worth
in an amount of not less than $16,200,000; provided that such amount
shall be increased at the end of each fiscal year of Borrowers,
commencing with fiscal year end June 30, 2005, by an amount equal to
fifty percent (50%) of the net income, if any, of Borrowers on a
consolidated basis for such fiscal year then ended, calculated in
accordance with GAAP."
15. Section 6.6 of the Credit Agreement is hereby amended to read in its
entirety as follows:
"6.6 Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage
Ratio of not less than (a) 1.10 to 1.00 for the period of four (4)
consecutive fiscal quarters ending September 30, 2004, (b) 1.00 to
1.00 for each rolling period of four (4) consecutive fiscal quarters
ending December 31, 2004 and March 31, 2005, and (c) thereafter,
1.10 to 1.00 for each rolling period of four (4) consecutive fiscal
quarters."
16. Article VII of the Credit Agreement is hereby amended to add the
following new Section 7.18 at the end thereof:
"7.18 Anti-Terrorism Laws.
The Borrowers and their respective Affiliates and agents shall
not (i) conduct any business or engage in any transaction or dealing
with any Blocked Person, including the making or receiving any
contribution of funds, goods or services to or for the benefit of
any Blocked Person, (ii) deal in, or otherwise engage in any
transaction relating to, any property or interests in property
blocked pursuant to the Executive Order No. 13224; or (iii) engage
in or conspire to engage in any transaction that evades or avoids,
or has the purpose of evading or avoiding, or attempts to violate,
any of the prohibitions set forth in the Executive Order No. 13224,
the USA Patriot Act or any other Anti-Terrorism Law. Each Borrower
shall deliver to Agent any certification or other evidence requested
from time to time by any Lender in its sole discretion, confirming
such Borrower's compliance with this Section."
17. Clause (b) of Section 8.3 of the Credit Agreement is hereby amended to
read as follows:
"(b) after giving effect thereto, the aggregate Equipment Loans
outstanding shall not exceed the Maximum Equipment Loan Amount."
18. Section 13.1 of the Credit Agreement is hereby amended to change the
date "August 31, 2005" appearing in the first sentence thereof to "November 15,
2007".
19. Article XV of the Credit Agreement is hereby amended to add the
following new Section 15.3 at the end thereof:
"15.3. No Reliance on Agent's Customer Identification Program.
Each Lender acknowledges and agrees that neither such Lender,
nor any of its Affiliates, participants or assignees, may rely on
the Agent to carry out such Lender's, Affiliate's, participant's or
assignee's customer identification program, or other obligations
required or imposed under or pursuant to the USA Patriot Act or the
regulations thereunder, including the regulations contained in 31
CFR 103.121 (as hereafter amended or replaced, the "CIP
Regulations"), or any other Anti-Terrorism Law, including any
programs involving any of the following items relating to or in
connection with any of the Borrowers, their Affiliates or their
agents, this Agreement, the Other Documents or the transactions
hereunder or contemplated hereby: (1) any identity verification
procedures, (2) any record-keeping, (3) comparisons with government
lists, (4) customer notices or (5) other procedures required under
the CIP Regulations or such other Laws."
20. Article XVI of the Credit Agreement is hereby amended to add the
following new Section 16.17 at the end thereof:
"16.17 Certifications From Lenders and Participants - U.S. Patriot
Act
Each Lender or assignee or participant of a Lender that is not
incorporated under the laws of the United States of America or a
state thereof (and is not excepted from the certification
requirement contained in Section 313 of the USA Patriot Act and the
applicable regulations because it is both (i) an affiliate of a
depository institution or foreign bank that maintains a physical
presence in the United States or foreign country, and (ii) subject
to supervision by a banking authority regulating such affiliated
depository institution or foreign bank) shall deliver to the Agent
the certification, or, if applicable, recertification, certifying
that such Lender is not a "shell" and certifying to other matters as
required by Section 313 of the USA Patriot Act and the applicable
regulations: (1) within 10 days after the Closing Date, and (2) as
such other times as are required under the USA Patriot Act."
21. The Borrowers have requested that the Agent and the sole Lender
consent to the dissolution of Marpac Southwest, Inc., which is one of the
Borrowers. The Borrowers hereby represent and warrant to the Agent and the sole
Lender that Marpac Southwest, Inc. has no assets and hereby agree that no assets
shall be transferred into Marpac Southwest, Inc. prior to its dissolution. In
reliance on the foregoing, the Agent and the sole Lender hereby consent to the
dissolution of Marpac Southwest, Inc.. The Borrowers agree to furnish evidence
of such dissolution to the Agent promptly after it has been accomplished.
22. The Agent and the sole Lender hereby consent to the dissolution of
PVCCISC, a former Borrower.
23. The Borrowers agree to pay to the sole Lender an amendment fee of
thirty thousand dollars ($30,000) (the "Amendment Fee").
24. In order to induce the sole Lender and the Agent to enter into this
Amendment, Borrowers hereby represent, warrant and covenant that:
(a) no Default or Event of Default has occurred and is continuing or
will occur after giving effect to the transactions contemplated by this
Amendment.
(b) this Amendment, the letter referred to in clause (b) of Section
25 hereof and each Note referred to in clause (c) of Section 25 hereof have been
duly authorized, executed and delivered by each Borrower and constitute their
respective legal, valid and binding obligations, enforceable in accordance with
their respective terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, moratorium or other similar laws affecting
creditors' rights generally;
(c) the Credit Agreement and each of the Other Documents, after
giving effect to this Amendment and the transactions contemplated hereby,
continue to be in full force and effect and to constitute the legal, valid and
binding obligations of each Borrower, enforceable against each such Borrower in
accordance with their respective terms, except as the enforceability thereof may
be limited by applicable bankruptcy, insolvency, moratorium or other similar
laws affecting creditors' rights generally; and
(d) the representations and warranties made by each Borrower in or
pursuant to the Credit Agreement or any Other Document, or which are contained
in any certificate, document or financial or other statement furnished at any
time under or in connection herewith or therewith, are each true and correct in
all material respects on and as of the date hereof, as though made on and as of
such date.
25. This Amendment shall become effective as of the date first set forth
above upon receipt by the Agent of (a) four (4) originals of this Amendment
executed by each Borrower and one original of this Amendment executed by the
sole Lender; (b) two (2) originals of the letter attached hereto as Exhibit A,
executed by each Borrower and one (1) original of such letter executed by the
sole Lender; (c) one (1) original of each of the following Notes, dated the date
hereof, executed by the Borrowers in favor of the sole Lender: (i) a Revolving
Credit Note in the
principal amount of eighteen million dollars ($18,000,000); (ii) a Term Note in
the principal amount of five million six hundred eighty-five thousand eight
hundred eighty-eight and 21/00 dollars ($5,685,888.21); and (iii) an Equipment
Note in the principal amount of one million dollars ($1,000,000); (d) a
certificate of the Secretary of each Borrower dated the date hereof, in form and
substance satisfactory to the Agent, as to (i) the resolutions of the Board of
Directors of each Borrower authorizing this Amendment, (ii) the incumbency and
signature of the officers of each Borrower executing this Amendment and any
other documents to be delivered pursuant hereto or pursuant to the Credit
Agreement, including evidence of the incumbency of such Secretary, (iii) the
Articles of Incorporation and By-Laws of each Borrower, (iv) the organization,
existence and good standing of each Borrower and (v) the existence of no
shareholder agreements among the Borrowers and their respective shareholders;
(e) an executed legal opinion of Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP
dated the date hereof, in form and substance satisfactory to the Agent, which
shall cover such matters incident to this Amendment and the Credit Agreement, as
amended by this Amendment, as the Agent may require; (f) good standing
certificates for each Borrower (other than Marpac Southwest, Inc.) issued by the
Secretary of State or other appropriate official of each Borrower's jurisdiction
of incorporation; and (g) payment of the Amendment Fee.
26. On the date hereof, as provided in clause (c) of Section 25 hereof,
the Borrowers are executing and delivering to the Agent one (1) original of each
of the following Notes, dated the date hereof, in favor of the sole Lender:
(i) a Revolving Credit Note in the principal amount of
eighteen million dollars ($18,000,000);
(ii) a Term Note in the principal amount of five million six
hundred eighty-five thousand eight hundred eighty-eight and 21/00 dollars
($5,685,888.21); and
(iii) an Equipment Note in the principal amount of one million
dollars ($1,000,000).
The Borrowers hereby acknowledge and confirm that the Revolving Credit
Note referred to in clause (i) above is being issued in replacement and
substitution for the following Revolving Credit Notes:
(a) Revolving Credit Note dated August 31, 2000 from the Borrowers
and PVCCISC in favor of PNC in the original principal amount of
$12,768,964.17;
(b) Revolving Credit Note dated November 19, 2002 from the Borrowers
and PVCCISC in favor of LaSalle Business Credit, Inc. in the original
principal amount of $6,467,347.07; and
(c) Revolving Credit Note dated August 31, 2000 from the Borrowers
and PVCCISC in favor of National City Commercial Finance, Inc. in the
original principal amount of $5,763,688.76.
The Borrowers hereby further acknowledge and confirm that the Revolving
Credit Notes referred to in clauses (a) and (b) above were previously issued in
replacement and substitution for the following Revolving Credit Notes:
(x) Revolving Credit Note dated August 31, 2000 from the
Borrowers and PVCCISC in favor of PNC in the original principal amount of
$13,472,622.48; and
(y) Revolving Credit Note dated August 31, 2000 from the
Borrowers and PVCCISC in favor of National Bank of Canada in the original
principal amount of $5,763,688.76.
The Borrowers hereby further acknowledge and confirm that the Revolving
Credit Notes referred to in clauses (c), (x) and (y) above were previously
issued in replacement and substitution for the Revolving Credit Note dated
August 31, 2000 from the Borrowers and PVCCISC in favor of PNC in the original
principal amount of $25,000,000.00.
The Borrowers hereby further acknowledge and confirm that the Term Note
referred to in clause (ii) above is being issued in replacement and substitution
for the following Term Notes and Equipment Notes:
(A) Term Note dated August 31, 2000 from the Borrowers and
PVCCISC in favor of PNC in the original principal amount of $6,222,571.62;
(B) Term Note dated November 19, 2002 from the Borrowers and
PVCCISC in favor of LaSalle Business Credit, Inc. in the original
principal amount of $2,176,149.50;
(C) Term Note dated August 31, 2000 from the Borrowers and
PVCCISC in favor of National City Commercial Finance, Inc. in the original
principal amount of $2,808,760.81;
(D) Equipment Note dated February 28, 2001 from the Borrowers
and PVCCISC in favor of PNC in the original principal amount of
$1,021,517.13;
(E) Equipment Note dated November 19, 2002 from the Borrowers
and PVCCISC in favor of LaSalle Business Credit, Inc. in the original
principal amount of $333,044.71;
(F) Equipment Note dated February 28, 2001 from the Borrowers
and PVCCISC in favor of National City Commercial Finance, Inc. in the
original principal amount of $461,095.10;
(G) Equipment Note dated June 11, 2003 from the Borrowers and
PVCCISC in favor of PNC in the original principal amount of $766,137.85;
(H) Equipment Note dated June 11, 2003 from the Borrowers and
PVCCISC in favor of LaSalle Business Credit, LLC in the original principal
amount of $388,040.82; and
(I) Equipment Note dated June 11, 2003 from the Borrowers and
PVCCISC in favor of National City Commercial Finance, Inc. in the original
principal amount of $345,821.33.
The Borrowers hereby further acknowledge and confirm that the Term Notes
referred to in clauses (A) and (B) above were previously issued in replacement
and substitution for the following Term Notes:
(AAA) Term Note dated August 31, 2000 from the Borrowers and
PVCCISC in favor of PNC in the original principal amount of $6,565,478.38;
and
(BBB) Term Note dated August 31, 2000 from the Borrowers and
PVCCISC in favor of National Bank of Canada in the original principal
amount of $2,808,760.81.
The Borrowers hereby further acknowledge and confirm that the Equipment
Notes referred to in (D) and (E) above were previously issued in replacement and
substitution for the following Equipment Notes:
(AAAA) Equipment Note dated February 28, 2001 from the
Borrowers and PVCCISC in favor of PNC in the original principal amount of
$1,077,809.80; and
(BBBB) Equipment Note dated February 28, 2001 from the
Borrowers and PVCCISC in favor of National Bank of Canada in the original
principal amount of $461,095.10.
The Borrowers hereby further acknowledge and confirm that the Term Notes
referred to in clauses (C), (AAA) and (BBB) were previously issued in
replacement and substitution for the Term Note dated August 31, 2000 from the
Borrowers and PVCCISC in favor of PNC in the original principal amount of
$12,183,000.00.
27. The Borrowers hereby acknowledge that the Agent shall be conducting
UCC lien searches and title searches after the date hereof with respect to the
Borrowers and the Collateral. The Borrowers hereby acknowledge that they are
obligated to pay all costs, expenses and disbursements associated with such
searches pursuant to Section 16.9 of the Credit Agreement, as well as all other
costs, expenses and disbursements of the Agent and the sole Lender in connection
with this Amendment, including, without limitation, reasonable attorneys' fees.
28. The Borrowers hereby confirm that all liens granted on the Collateral
shall continue unimpaired and in full force and effect.
29. This Amendment may be executed in several counterparts, each of which,
when executed and delivered, shall be deemed an original, and all of which
together shall constitute one agreement. Any signature delivered by a party by
facsimile transmission shall be deemed to be an original signature hereto.
30. This Amendment shall be governed by and construed in accordance with
the laws of the State of New York applied to contracts to be performed wholly
within the State of New York, without giving effect to the principles of
conflicts of law. This Amendment shall be binding upon and inure to the benefit
of the Borrowers, the Lenders and the Agent, and their respective successors and
permitted assigns.
31. From and after the effectiveness hereof, all references to the Credit
Agreement in the Other Documents shall mean the Credit Agreement as amended and
modified by this Amendment.
32. Except as amended and otherwise modified by this Amendment, the Credit
Agreement and the Other Documents shall remain in full force and effect in
accordance with their respective terms. Except as expressly provided herein,
this Amendment shall not constitute an amendment, waiver, consent or release
with respect to any provision of the Credit Agreement or any Other Document, a
waiver of any Default or Event of Default thereunder, or a waiver or release of
any of Agent's or any Lender's rights or remedies (all of which are hereby
reserved). THE BORROWERS EXPRESSLY RATIFY AND CONFIRM THE WAIVER OF JURY TRIAL
AND OTHER PROVISIONS OF SECTION 12.3 OF THE CREDIT AGREEMENT.
[SPACE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
ATTEST: PVC CONTAINER CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------- -----------------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Title: President and Chief Executive Officer
Chief Financial Officer
[Seal]
ATTEST: NOVATEC PLASTICS CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------- -----------------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Title: President and Chief Executive Officer
Chief Financial Officer
[Seal]
ATTEST: NOVAPAK CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------- -----------------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Title: President and Chief Executive Officer
Chief Financial Officer
[Seal]
ATTEST: AIROPAK CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------- -----------------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Title: President and Chief Executive Officer
Chief Financial Officer
[Seal]
[FIRST OF THREE SIGNATURE PAGES TO FOURTH AMENDMENT]
ATTEST: MARPAC INDUSTRIES, INC.,
a New York corporation
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------- -----------------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Title: President and Chief Executive Officer
Chief Financial Officer
[Seal]
ATTEST: MARPAC SOUTHWEST, INC.,
an Oklahoma corporation
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------- -----------------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Title: President and Chief Executive Officer
Chief Financial Officer
[Seal]
[SECOND OF THREE SIGNATURE PAGES TO FOURTH AMENDMENT]
PNC BANK, NATIONAL ASSOCIATION,
as Lender and as Agent
By: /s/ Xxxxxxx Xx Xxxxxxx
------------------------
Name: Xxxxxxx Xx Xxxxxxx
Title: Vice President
[THIRD OF THREE SIGNATURE PAGES TO FOURTH AMENDMENT]
STATE OF NEW JERSEY ) Xxxxx X. Xxxxxx
) SS.: Notary Public of New Jersey
COUNTY OF MONMOUTH ) Commission Expires Jan. 27, 2007
On the 15th day of November, in the year 2004 before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx, to me known, who, being by me duly sworn,
did depose and say that he is the President and Chief Executive Officer of PVC
CONTAINER CORPORATION, the corporation described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the board of directors of said corporation, and that he signed his name
thereto by like order.
/s/ Xxxxx X. Xxxxxx
-------------------------------
STATE OF NEW JERSEY ) Xxxxx X. Xxxxxx
) SS.: Notary Public of New Jersey
COUNTY OF MONMOUTH ) My Commission Expires Jan. 27, 2007
On the 15th day of November, in the year 2004 before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx, to me known, who, being by me duly sworn,
did depose and say that he is the President and Chief Executive Officer of
NOVATEC PLASTICS CORPORATION, the corporation described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by order of the board of directors of said corporation, and that he signed his
name thereto by like order.
/s/ Xxxxx X. Xxxxxx
-------------------------------
STATE OF NEW JERSEY ) Xxxxx X. Xxxxxx
) SS.: Notary Public of New Jersey
COUNTY OF MONMOUTH ) My Commission Expires Jan. 27, 2007
On the 15th day of November, in the year 2004 before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx, to me known, who, being by me duly sworn,
did depose and say that he is the President and Chief Executive Officer of
NOVAPAK CORPORATION, the corporation described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the board of directors of said corporation, and that he signed his name
thereto by like order.
/s/ Xxxxx X. Xxxxxx
-------------------------------
STATE OF NEW JERSEY ) Xxxxx X. Xxxxxx
) SS.: Notary Public of New Jersey
COUNTY OF MONMOUTH ) My Commission Expires Jan. 27, 2007
On the 15th day of November, in the year 2004 before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx, to me known, who, being by me duly sworn,
did depose and say that he is the President and Chief Executive Officer of
AIROPAK CORPORATION, the corporation described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the board of directors of said corporation, and that he signed his name
thereto by like order.
/s/ Xxxxx X. Xxxxxx
-------------------------------
STATE OF NEW JERSEY ) Xxxxx X. Xxxxxx
) SS.: Notary Public of New Jersey
COUNTY OF MONMOUTH ) My Commission Expires Jan. 27, 2007
On the 15th day of November, in the year 2004 before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx, to me known, who, being by me duly sworn,
did depose and say that he is the President and Chief Executive Officer of
MARPAC INDUSTRIES, INC., the corporation described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the board of directors of said corporation, and that he signed his name
thereto by like order.
/s/ Xxxxx X. Xxxxxx
-------------------------------
STATE OF NEW JERSEY ) Xxxxx X. Xxxxxx
) SS.: Notary Public of New Jersey
COUNTY OF MONMOUTH ) My Commission Expires Jan. 27, 2007
On the 15th day of November, in the year 2004 before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx, to me known, who, being by me duly sworn,
did depose and say that he is the President and Chief Executive Officer of
MARPAC SOUTHWEST, INC., the corporation described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the board of directors of said corporation, and that he signed his name
thereto by like order.
/s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
Notary Public of New Jersey
My Commission Expires Jan. 27, 2007
