EXHIBIT 10.2
FIFTH AMENDMENT TO REVOLVING CREDIT,
TERM LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
(this "Amendment") is made as of February 14, 2005, effective as of December 31,
2004 (the "Effective Date"), 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"), and MARPAC INDUSTRIES, INC., a
New York corporation ("MI") (PVC, Novatec, Novapak, Airopak and MI, each a
"Borrower" and collectively the "Borrowers"), and 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").
W I T N E S S E T H:
D. 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,
Third Amendment to Revolving Credit, Term Loan and Security Agreement dated as
of April 9, 2004 and Fourth Amendment to Revolving Credit, Term Loan and
Security Agreement dated as of November 15, 2004 (as further amended,
supplemented or modified from time to time, the "Credit Agreement"), by and
among the Borrowers, certain former Borrowers, 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.
E. PNC is currently the sole Lender.
F. 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 "Fixed Charge Coverage Ratio" in Section 1.2 of the
Credit Agreement is hereby amended to read in its entirety as follows:
""Fixed Charge Coverage Ratio" shall mean and include, with respect
to any fiscal period, the ratio of (a) EBITDA minus unfinanced
capitalized expenditures made and taxes paid in cash during such
period to (b) all Debt Payments during such period (excluding all
principal payments made to Fleet Bank during such fiscal period);
provided, however, with respect to any fiscal period which includes
the Borrowers' fiscal quarter ended
December 31, 2004, "Fixed Charge Coverage Ratio" shall mean and
include the ratio of (a) the sum of (i) EBITDA minus (ii) unfinanced
capitalized expenditures made and taxes paid in cash during such
period, plus (iii) a non-cash charge for goodwill impairment not
exceeding $3,300,000 recognized during such fiscal quarter ended
December 31, 2004, plus (iv) loss from any sale of PVC's real
property located at 00 Xxxxx Xxxx, Xxxxxxxx, Xxxx of Ulster, Ulster
County, New York (the "Ulster Property") not exceeding $450,000
recognized during such fiscal quarter ended December 31, 2004 to (b)
all Debt Payments during such period (excluding all principal
payments made to Fleet Bank during such fiscal period)."
Nothing contained herein shall be deemed to be a consent by the Sole Lender or
the Agent to any sale of the Ulster Property.
3. 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; and provided, however, that, for purposes of
this subsection (b), in calculating Net Worth, the following amounts
shall be added to the amount of the assets: (i) a non-cash charge
for goodwill impairment not exceeding $3,300,000 recognized during
the Borrowers' fiscal quarter ended December 31, 2004 and (ii) loss
from any sale of the Ulster Property not exceeding $450,000
recognized during such fiscal quarter ended December 31, 2004."
4. In order to induce the sole Lender and the Agent to enter into this
Amendment, the 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 has been duly authorized, executed and delivered
by each Borrower and constitutes their respective legal, valid and binding
obligations, enforceable in accordance with its 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.
5. This Amendment shall become effective as of the Effective Date upon
receipt by the Agent of four (4) originals of this Amendment executed by each
Borrower and one original of this Amendment executed by the sole Lender.
6. The Borrowers hereby confirm that all liens granted on the Collateral
shall continue unimpaired and in full force and effect.
7. 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.
8. 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.
9. 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.
10. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth 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 FIFTH 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]
[SECOND OF THREE SIGNATURE PAGES TO FIFTH 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 FIFTH AMENDMENT]
STATE OF NEW JERSEY ) Xxxxx X. Xxxxxx
) SS.: Notary Public of New Jersey
COUNTY OF MONMOUTH ) My Commission Expires Jan. 27, 2007
On the 14th day of February, in the year 2005 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 14th day of February, in the year 2005 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 14th day of February, in the year 2005 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 14th day of February, in the year 2005 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 14th day of February, in the year 2005 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.
