Exhibit 10.34
EXECUTION COPY
FOURTH AMENDMENT TO REIMBURSEMENT
AND CREDIT AGREEMENT
dated as of and effective
December 31, 2006
By and Between
Trex Company, Inc.
and
JPMorgan Chase Bank, N.A., as
Issuing Bank and Administrative Agent
in connection with the Letter of
Credit
securing
$25,000,000
Mississippi Business Finance
Corporation
Variable Rate Demand Environmental Improvement
Revenue Bonds
(Trex Company, Inc. Project), Series
2004
FOURTH AMENDMENT TO REIMBURSEMENT AND CREDIT
AGREEMENT
TABLE OF CONTENTS
This Table of Contents is not a part
of this Fourth Amendment to Reimbursement and Credit Agreement and
is only for convenience of reference.
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Page
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Section
1. Definitions; Rules of Interpretation
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1
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1.1
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Definitions
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1
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1.2
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Rules of
Interpretation
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1
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Section
2. Amendment of Original Agreement
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2
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2.1
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Amendment of
Section 1.01 of Original Agreement
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2
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2.2
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Amendment of
Section 2.02(a) of Original Agreement
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2
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2.3
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Amendment of
Section 6.10 of Original Agreement
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3
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2.4
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Amendment of
Section 6.11 of Original Agreement
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3
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2.5
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Amendment of
Section 6.12(b) of Original Agreement
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4
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2.6
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Amendment of
Section 7.01(c) of Original Agreement
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4
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Section
3. Representations of the Parties
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4
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3.1
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Due
Organization
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4
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3.2
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Due
Authorization
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4
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3.3
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No
Conflict
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5
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3.4
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Further
Assurances
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5
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Section
4. Special Representations of the
Borrower
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5
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4.1
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Prior
Representations and Warranties
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5
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4.2
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No
Default
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5
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4.3
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Full Force
and Effect
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5
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4.4
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BBT
Agreement Amendment
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5
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Section
5. More Favorable Covenants
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5
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Section
6. Consent
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6
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Section
7. Miscellaneous
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6
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7.1
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Governing
Law
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6
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7.2
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Execution in
Counterparts
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6
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7.3
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Costs and
Expenses
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6
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7.4
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Modification
Fee
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6
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Section
8. Effective Date
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6
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-i-
FOURTH AMENDMENT TO REIMBURSEMENT
AND CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO
REIMBURSEMENT AND CREDIT AGREEMENT (this “Fourth
Amendment”), dated as of and effective December 31,
2006, between TREX COMPANY, INC., a Delaware corporation (the
“Borrower” ) and JPMorgan Chase Bank,
N.A., as Issuing Bank (in such capacity the
“Bank” ) and Administrative Agent (in
such capacity the “Administrative Agent”
).
BASIS FOR THIS FOURTH
AMENDMENT
1. This Fourth Amendment is
authorized by Section 11.03 of the Reimbursement and Credit
Agreement dated as of December 1, 2004, among the Borrower,
the Bank and the Administrative Agent (the “Original
Agreement”). The terms, conditions and provisions of the
Original Agreement, as amended by the First Amendment to
Reimbursement and Credit Agreement dated July 25, 2005, among
the Borrower, the Bank and the Administrative Agent (the
“First Amendment”), the Second Amendment to
Reimbursement and Credit Agreement dated as of and effective
December 31, 2005 (the “Second Amendment”) and the
Third Amendment to Reimbursement and Credit Agreement dated as of
and effective November 21, 2006 (the “Third
Amendment” and together with the Original Agreement, the
First Amendment and the Second Amendment, the “Amended
Agreement”) are incorporated into this Fourth Amendment by
reference to the same extent and with the same force and effect as
if fully stated in this Fourth Amendment.
2. The Borrower, the Bank and the
Administrative Agent have agreed to a further amendment to
(a) Section 6.11 of the Original Agreement in order to
provide a new Fixed Charge Coverage Ratio on December 31, 2006
and March 31, 2007, (b) Section 6.12 of the Original
Agreement in order to provide a new ratio of Funded Net Debt to
Consolidated EBITDA on December 31, 2006 and March 31,
2007 and (c) Section 7.01 in order to permit an increase
in the amount of Debt outstanding under the BBT Agreement. The Bank
and the Administrative Agent have also agreed to certain other
consents and agreements as herein provided.
3. In consideration of the premises
and of the mutual covenants herein contained, and for good and
valuable consideration, the Bank, the Administrative Agent and the
Borrower do mutually covenant and agree, as follows:
Section 1. Definitions;
Rules of Interpretation .
1.1 Definitions . For
purposes of this Fourth Amendment, all capitalized words and
phrases not defined in this Fourth Amendment shall have the
meanings given to them in Section 1.01 of the Original
Agreement.
1.2 Rules of Interpretation .
For all purposes of the Agreement the following shall govern,
except as otherwise expressly provided for or unless the context
otherwise requires:
(i) The “Agreement”
shall mean the Amended Agreement as modified, altered, amended or
supplemented by this Fourth Amendment and as it may from time to
time be further modified, altered, amended or
supplemented.
(ii) All references in this Fourth
Amendment to designated “Sections” and other
subdivisions are to the designated Sections and other subdivisions
of the Original Agreement unless otherwise indicated.
(iii) Terms defined in this Fourth
Amendment shall have the meanings prescribed for them where defined
herein.
(iv) All accounting terms not
otherwise defined in this Fourth Amendment shall have the meanings
assigned to them in accordance with the Original
Agreement.
(v) Words of the masculine gender
shall be deemed and construed to include correlative words of the
feminine and neuter genders.
(vi) Terms in the singular include
the plural and vice versa.
(vii) The headings and the table of
contents set forth in this Fourth Amendment are solely for
convenience of reference and shall not constitute a part of this
Fourth Amendment nor shall they affect its meaning, construction or
effect.
Section 2. Amendment of
Original Agreement .
2.1 Amendment of
Section 1.01 of the Original Agreement . Section 1.01
of the Original Agreement is hereby amended by inserting the
following defined term in the correct alphabetical order to read as
follows:
“USA Patriot
Act” means the
United Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act
(Title III of Pub. L. 107-56 (signed into law October 26,
2001)), as amended from time to time, and any successor statute,
including the rules or regulations promulgated thereunder, in each
case as in effect from time to time.
2.2 Amendment of
Section 2.02(a) of the Original Agreement .
Section 2.02(a) of the Original Agreement, as amended by the
Second Amendment is hereby further amended to read in its entirety
as follows:
“(a) The Borrower hereby
agrees to pay to the Bank, in advance, on each Fee Payment Date
until the expiration or termination of the Letter of Credit, a
nonrefundable facility fee calculated based on the Stated Amount as
of the Fee Payment Date and based on a 360 day year but charged on
the actual number of days elapsed. The amount payable on the
(i) Issuance Date shall be based upon the ratio of Funded Net
Debt to Consolidated EBITDA as of September 30, 2004 and based
upon the number of days from the Issuance Date through and
including March 31, 2005 and (ii) the amount payable on
each Fee Payment Date thereafter shall be based upon the ratio of
Funded Net Debt to Consolidated EBITDA as disclosed in the
Certificate of Compliance most recently delivered for purposes of
demonstrating the Borrower’s compliance with
-2-
Section 6.12
