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Exhibit 10.1
SIXTH AMENDMENT TO REVOLVING CREDIT,
TERM LOAN AND SECURITY AGREEMENT
THIS SIXTH
AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
(this "Amendment") is made as of September
__, 2005, effective as of June 30,
2005 (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").
WITNESSETH:
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,
Third Amendment to Revolving Credit, Term
Loan and Security Agreement dated as
of April __, 2004, Fourth Amendment to
Revolving Credit, Term Loan and Security
Agreement dated as of November 15, 2004 and
Fifth Amendment to Revolving Credit,
Term Loan and Security Agreement dated as
of February 14, 2005 (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.
B. PNC is
currently 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 "Debt Payments" in Section 1.2 of the Credit
Agreement
is hereby amended to read in its entirety
as follows:
" "Debt Payments" shall mean and include all cash actually expended
by
Borrowers to make (a) interest payments on any Advances
hereunder,
plus (b) scheduled principal payments on the
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Term Loan and the Equipment Loans, plus (c) payments for all
fees,
commissions and charges set forth herein and with respect to
any
Advances, with the exception of the closing fee defined in the
Fee
Letter, plus (d) capitalized lease payments, plus (e) payments
with
respect to any other Indebtedness for borrowed money; provided,
however, the calculation of Debt Payments for any period commencing
on
or after July 1, 2004 for purposes of this Agreement (except
for
purposes of determining the Fixed Charge Coverage Ratio for use
in
determining the Revolving Interest Rate and Term Loan Rate) shall
not
include any cash expended by or for the account of Novatec to make
any
of the payments described in the foregoing clauses (a) through
(e)."
3. The
definition of "Earnings Before Interest and Taxes" in Section 1.2
of
the Credit Agreement is hereby amended to
read in its entirety as follows:
" "Earnings Before Interest and Taxes" shall mean for any period
the
sum of (i) net income (or loss) of Borrowers on a consolidated
basis
for such period (excluding extraordinary gains and losses), plus
(ii)
all interest expense of Borrowers on a consolidated basis for
such
period, plus (iii) all charges against income of Borrowers on a
consolidated basis for such period for federal, state and local
taxes
actually paid; provided, however, the calculation of Earnings
Before
Interest and Taxes for any period commencing on or after July 1,
2004
for purposes of this Agreement (except for purposes of
determining
EBITDA and the Fixed Charge Coverage Ratio for use in determining
the
Revolving Interest Rate and Term Loan Rate) shall not include (x)
any
net income (or loss) of or for the account of Novatec for such
period,
(y) any interest expense of or for the account of Novatec for
such
period, or (z) any charges against income of or for the account
of
Novatec for such period for federal, state and local taxes
actually
paid."
4. 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
2
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of $2,200,000 for such fiscal year, plus (vii) 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 (and in addition to
the
charges described in the foregoing clause (vi)), one-time
restructuring charges approved by Agent for such fiscal year or
part
thereof not exceeding an aggregate amount of $1,500,000 for
such
fiscal year, plus (viii) in the case of any such period which is
the
Borrowers' fiscal year ending June 30, 2006 or which includes any
part
of such fiscal year, one-time restructuring charges approved by
Agent
for such fiscal year or part thereof not exceeding an aggregate
amount
of $800,000 for such fiscal year; provided, however, that (a)
each
calculation of EBITDA for purposes of this Agreement (except
for
purposes of determining the Fixed Charge Coverage Ratio for use
in
determining the Revolving Interest Rate and the Term Loan Rate)
for
any period which is the Borrowers' fiscal year ending June 30, 2005
or
any fiscal year thereafter, or any part of any such fiscal year,
shall
exclude depreciation expenses, amortization expenses and
non-cash
deferred management fees of or for the account of Novatec and (b)
the
foregoing clauses (vii) and (viii) shall not apply (and the
charges
described therein shall not be added) to any calculation of EBITDA
for
purposes of determining the Fixed Charge Coverage Ratio for use
in
determining the Revolving Interest Rate and Term Loan Rate."
5. 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 impairmen
