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EXHIBIT 10.27
FOURTH AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment") is dated as of the 28th day of September, 1995,
and entered into by and between (i) BANK OF AMERICA TEXAS, N.A., a national
banking association, with offices at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the "Lender") as assignee of BankAmerica Business Credit,
Inc., and (ii) SUN COAST HOLDINGS, INC., a Nevada corporation, with offices at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇ (herein referred to as "Borrower"), Borrower being a wholly-owned
subsidiary of (iii) SUN COAST INDUSTRIES, INC., a Delaware corporation, with
offices at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (herein referred to as
"Industries"), (iv) PLASTICS MANUFACTURING COMPANY, a Delaware corporation,
with offices at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Old Plastics"),
(v) PLASTICS MANUFACTURING COMPANY, a Nevada corporation, with offices at ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("New Plastics"), (vi) SUN COAST CLOSURES,
INC., a Florida corporation with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Closures"), and (vi) CUSTOM LAMINATES, INC., a Nevada
corporation, with offices at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
("Laminates"). Industries, Old Plastics, New Plastics, Closures and Laminates
are referred to from time to time herein individually as "Guarantor" and
jointly as "Guarantors."
WHEREAS, Lender, Borrower and Guarantors (other than New Plastics)
entered into an Amended and Restated Loan and Security Agreement dated as of
April 29, 1994, as amended by that certain First Amendment to Amended and
Restated Loan and Security Agreement dated effective as of June 30, 1994 (the
"First Amendment"), the Second Amendment to Amended and Restated Loan and
Security Agreement dated as of November 23, 1994 (the "Second Amendment") and
the Third Amendment to Amended and Restated Loan and Security Agreement dated
as of March 22, 1995 (the "Third Amendment") (as so amended by the First
Amendment, the Second Amendment and the Third Amendment, and as amended and
modified from time to time, the "Agreement");
WHEREAS, in connection with the execution of the Agreement, Borrower
executed and delivered unto Lender that certain Amended and Restated Capital
Expenditures Term Note dated of even date therewith, in the maximum original
principal amount of $10,000,000.00, payable to the order of Lender (the
"Note");
WHEREAS, Borrower intends to liquidate Old Plastics and to contribute
the assets of Old Plastics to New Plastics, and, subject to the terms and
conditions of this Amendment, Lender has consented to such liquidation;
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WHEREAS, Borrower has formed a new wholly-owned Subsidiary, New
Plastics, which has acquired or will acquire the assets of Old Plastics and
which has agreed to become a Guarantor under the Agreement in conjunction with
this Amendment and to grant to Lender a security interest in all of its assets;
and
WHEREAS, Lender, Borrower and Guarantors desire to amend the Agreement
and the Note as hereinafter set forth and New Plastics desires to become a
party to the Agreement;
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth in the Agreement and this Amendment, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
ARTICLE I
Amendments to Definitions
Section 1.01. Definitions. Capitalized terms used in this
Amendment, to the extent not otherwise defined herein, shall have the same
meanings as in the Agreement, as amended hereby.
Section 1.02. Amendment to Definition of "Applicable Interest
Rate". The term "Applicable Interest Rate" as defined in the Agreement is
amended in its entirety to read as follows:
"'Applicable Interest Rate' means at all times a per annum
interest rate equal to the Reference Rate; provided, however, that if
the ratio of Debt to Adjusted Tangible Net Worth exceeds 1.75 to 1 as
of March 31, 1996 then the Applicable Interest Rate will be, at all
times thereafter beginning on April 1, 1996, a per annum interest rate
equal to the Reference Rate plus one percent (1%)."
Section 1.03. The definitions "Capex Loan Offshore Rate", "Capex
Loan Reference Rate", "Interest Period", "Interest Rate Election", "Interest
Rate Election Notice", "Offshore Rate", "Offshore Rate Capex Loans", "Offshore
Rate Loans", "Offshore Rate Revolving Loans", "Offshore Rate Term Loans",
"Revolving Loan Offshore Rate" and "Term Loan Offshore Rate" are hereby deleted
from the Agreement.
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Section 1.04. The definitions "Reference Rate Capex Loans",
"Reference Rate Revolving Loans", "Reference Rate Term Loans", "Revolving Loan
Reference Rate", "Term Loan Reference Rate" and "Capex Loan Reference Rate" are
each amended by deleting any reference to the "subpart" of the definition of
Applicable Interest Rate.
Section 1.05. Article 1 of the Agreement is further amended by the
addition of the following definitions:
"'Mandatory Capex Prepayment' means a prepayment of the
Capital Expenditures Term Loan which equals 80% of the original cost
or liquidation value of each item of Equipment which is transferred to
Mexico pursuant to the Mexican Leases.
'Mexican Assignments' means each and every Collateral
Assignment of Lease executed by Borrower or any Guarantor in favor of
Lender related to the Mexican Leases.
'Mexican Leases' means the leases by Borrower of any of its
Equipment to any of its Mexican Affiliates, including but not limited
to, NovaPlast, S.A. de C.V.
'Payment Account' means each blocked bank account or bank
account associated with a lock box, established pursuant to Section
6.10, to which the funds of the Borrower (including, without
limitation, Proceeds of Accounts and other Collateral) are deposited
or credited and which is maintained in the name of the Lender or the
Borrower, as the Lender may determine, on terms acceptable to the
Lender.
'Unused Line Fee' shall have the meaning set forth in Section 3.4."
ARTICLE II
Amendments to Sections
Section 2.01. Termination of Interest Rate Options. Borrower
agrees and acknowledges that it no longer has the option to request Offshore
Rate Loans, and that all Loans going forward will be Reference Rate Loans.
Section 2.02. Amendment to Section 2.3 of the Agreement. Section
2.3(i)(a) of the Agreement is hereby amended to read as follows:
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"(a) the aggregate amount of up to Nine Million and No/100
Dollars ($9,000,000) during the term of this Agreement. "
All other provisions of Section 2.3 remain unchanged.
Section 2.03. Amendment to Section 3.4 of the Agreement. A new
Section 3.4 is hereby added to the Agreement and reads in its entirety as
follows:
"3.4 Unused Line Fee. For every month during the term of
this Agreement, the Borrower shall pay the Lender a fee (the "Unused
Line Fee") in an amount equal to three-eighths of one percent (0.375%)
per annum, multiplied by the amount by which (a) the Maximum Revolving
Credit Line then in effect exceeds the average closing daily unpaid
balance of all Revolving Loans and all issued but undrawn Letters of
Credit during such month, with the unpaid balance calculated for this
purpose by applying payments immediately upon receipt. Such a fee, if
any, shall be calculated on the basis of a year of three hundred sixty
(360) days and actual days elapsed, shall begin to accrue on September
28, 1995, and shall be payable to the Lender on the first day of each
Fiscal Quarter prior to the termination of this Agreement commencing
on October 1, 1995 and with a final payment due and owing on the
termination of this Agreement, with respect to the prior quarter or
portion thereof."
Section 2.04. Amendment to Section 4.4 of the Agreement. Section
4.4 of the Agreement is hereby amended by the addition of new subparagraph (d)
which reads in its entirety as follows:
"(d) Whenever Equipment is transferred to Mexico pursuant
to a Mexican Lease, Borrower shall pay to Lender a Mandatory Capex
Prepayment, provided however, that the initial Mandatory Capex
Prepayment may be deferred by Borrower until March 31, 1996."
All other provisions of Section 4.4 remain unchanged.
Section 2.05. Amendment to Section 4.5 of the Agreement. Section
4.5 of the Agreement is hereby amended in its entirety to read as follows:
"4.5 Repayment of Term Loan. The Borrower shall repay the
principal of the Capital Expenditures Term Loan in consecutive
quarterly installments of Four Hundred Thirty Seven Thousand Five
Hundred and No/100 Dollars ($437,500) each, commencing on the first
day of October, 1995 and continuing on the first day of each
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consecutive Fiscal Quarter thereafter, with a final installment of the
remaining balance due on April 1, 2000."
Section 2.06. Amendment to Section 6.8 of the Agreement. Section
6.8 of the Agreement is hereby amended in its entirety to read as follows:
"6.8 Collateral Reporting. The Borrower will
provide the Lender each month with a Borrowing Base
Certificate in the Form of Exhibit R (the "Collateral Report")
which is attached to the Agreement and made a part hereof.
Such Collateral Report will be submitted no later than the
last day of the month following the month for which the
information contained in the Collateral Report has been
compiled. In addition, five (5) days prior to any date for
which a Revolving Loan has been requested, Borrower will
submit to Lender a current accounts receivable aging report."
Section 2.07. Amendment to Section 6.10 of the Agreement. Section
6.10 of the Agreement is hereby amended in its entirety to read as follows:
"6.10 Collection of Accounts. (a) Until the Lender
notifies the Borrower to the contrary, the Borrower shall make
collection of all Accounts and other Collateral for the Lender and
shall receive all payments as the Lender's trustee. After an Event of
Default has occurred, if the Lender requests, the Borrower shall
establish a lock-box service for collections of Accounts at a bank
mutually acceptable to the Lender and the Borrower and pursuant to
documentation satisfactory to the Lender. If such lock-box service is
established, the Borrower shall instruct all Account Debtors to make
all payments directly to the address established for such service.
If, notwithstanding such instructions, the Borrower receives any
Proceeds of Accounts, it shall receive such payments as the Lender's
trustee and shall immediately deliver such payments to the Lender in
their original form duly endorsed in blank or deposit them into a
Payment Account, as the Lender may direct. All collections received
in any such lock box or Payment Account or directly by the Borrower or
the Lender, and all funds in any Payment Account or other account to
which such collections are deposited, shall be the sole property of
the Lender and subject to the Lender's sole control. The Borrower, at
the Lender's request, shall execute and deliver to the Lender such
documents as the Lender shall require to grant the Lender access to
any post office box in which collections of Accounts are received.
(b) If sales of Inventory are made for cash, the Borrower
shall immediately deliver to the Lender the identical checks, cash or
other forms of payment which the Borrower receives."
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Section 2.08. Amendment to Section 7.2 of the Agreement. Section
7.2 of the Agreement is hereby amended by the addition of new subsection (g)
which reads as follow:
"(g) As soon as available, but in any event not later than
thirty (30) days after the end of each month, (i) monthly financial
statements in a format comparable to the financial forecasts attached
to this Amendment as Appendix 1, with a gross profit margin analysis
by segment as set forth on Appendix 2, and (ii) monthly status reports
on Capital Expenditures related to NovaPlast, S.A. de C.V. accompanied
by a comparison of all such Capital Expenditures to the Capital
Expenditures set forth on Borrower's plan, a copy of which will be
attached to this Amendment no later than October 6, 1995 as Appendix
3. If the monthly financial statements and gross profit margin
analysis described in subsection (i) above deviate significantly from
Borrower's plan therefor, a narrative explanation of such deviations
will be required."
Section 2.09. Amendment to Section 9.16(b) of the Agreement.
Section 9.16(b) of the Agreement is hereby amended in its entirety to read as
follows:
"(b) Borrower has formed a wholly-owned United States
Subsidiary, Sun Coast Acquisition, Inc., which has formed in turn a
wholly-owned Mexican Subsidiary, Sun Coast de Mexico, S.A. de C.V.
("S.C. Mexico"). S.C. Mexico has purchased the stock of NovaPlast,
S.A. de C.V. ("NovaPlast") for (i) approximately $1,000,000 in cash
(including the repayment of certain bank debt owed by NovaPlast), (ii)
a note for approximately $300,000, and (iii) a note for approximately
$1,000,000, the two notes being referred to as the "Acquisition
Notes". Borrower may provide the two foregoing Subsidiaries (A) up to
a $750,000 working capital facility, and (B) sufficient funds to
enable the Subsidiaries to make their regularly scheduled payments of
principal only* under the Acquisition Notes in an amount not to exceed
$500,000 per year, provided (x) no Event of Default has occurred and
is continuing under the Agreement or (y) the making of any such
payment would result in an Event of Default. The Subsidiaries will be
required to make interest payments under the notes. NovaPlast may
incur up to $250,000 in third party debt for capital expenditures
which debt may be guaranteed by Borrower and its Affiliates. Borrower
and the Guarantors may enter into the Mexican Leases which relate to
the Equipment set forth on Appendix 4 hereto (the "Identified
Equipment") subject to (i) Borrower's payment to Lender of the
Mandatory Capex Prepayment, and (ii) Borrower's or the lessor
Guarantor's execution of the Mexican Assignments. If Borrower or any
Guarantor wishes to enter into any Mexican Leases relating to
Equipment other than the Identified Equipment, Borrower must first
obtain Lender's approval which approval may be withheld at Lender's
sole discretion. Borrower will, at Lenders' request, cause either or
both of such Subsidiaries to execute an Affiliate Guaranty, pledge its
stock in such United States Subsidiary to Lender,
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and/or cause such United Stated Subsidiary to pledge its stock in such
Mexican Subsidiary to Lender."
Section 2.10. Amendment to Section 9.17 of the Agreement. Section
9.17 of the Agreement is hereby amended in its entirety to read as follows:
"9.17 Capital Expenditures. Neither Industries nor any of
its Subsidiaries shall make or incur any Capital Expenditure if, after
giving effect thereto, the aggregate amount of all Capital
Expenditures by the Borrower and its Subsidiaries would exceed One
Million One Hundred Thousand and No/100 Dollars ($1,100,000) for the
Fiscal Quarter ending September 30, 1995; Nine Hundred Fifty-Five
Thousand and No/100 Dollars ($955,000) for the Fiscal Quarter ending
December 31, 1995; Three Hundred Fifty Thousand and No/100 Dollars
($350,000) for the Fiscal Quarter ending March 31, 1996; and Two
Hundred Seventy-Five Thousand and No/100 Dollars ($275,000) for the
Fiscal Quarter ending June 30, 1996 and each Fiscal Quarter ending
thereafter."
Section 2.11. Amendment to Section 9.18 of the Agreement. Section
9.18 of the Agreement is hereby amended in its entirety to read as follows:
"9.18 Industries and its Subsidiaries will maintain on a
consolidated basis a Cash Flow Ratio of not less than the following
ratios at the end of each of the following Fiscal Quarters:
Fiscal Quarter Ending Ratio
September 30, 1995 1.25 to 1
December 31, 1995 1 to 1
March 31, 1996 1.20 to 1
June 30, 1996 and each
Fiscal Quarter thereafter 1.85 to 1
This ratio will be calculated at the end of each Fiscal Quarter using
the Cash Flow from that quarter and each of the three immediately
preceding quarters. The current portion of long term debt will be
measured as of the last day of such Fiscal Quarter, and will exclude
the liabilities of Borrower under the Revolving Loan facility."
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Section 2.12. Amendment to Section 9.19 of the Agreement. Section
9.19 of the Agreement is hereby amended in its entirety to read as follows:
"9.19 Debt Ratio. Industries and its Subsidiaries on a
consolidated basis will not permit the ratio of Debt to Adjusted
Tangible Net Worth to exceed the following ratios at the end of each
of the following respective Fiscal Quarters:
Fiscal Quarter Ending Ratio
September 30, 1995 3 to 1
December 31, 1995 3 to 1
March 31, 1996 2.85 to 1
June 30, 1996 and each
Fiscal Quarter thereafter 2.55 to 1"
Section 2.13. Amendment to Section 9.20 of the Agreement. Section
9.20 of the Agreement is hereby amended in its entirety to read as follows:
"9.20 Current Ratio. Industries and its Subsidiaries on a
consolidated basis will not permit the ratio of (a) Current Assets to
(b) Current Liabilities to be less than 1 to 1 at the end of any
Fiscal Quarter. Outstanding Revolving Loans shall be included as part
of Current Liabilities."
Section 2.14. Amendment to Section 9.21 of the Agreement. Section
9.21 of the Agreement is hereby amended in its entirety to read as follows:
"9.21 Adjusted Tangible Net Worth.
(a) Industries and its Subsidiaries on a consolidated
basis will not permit Adjusted Tangible Net Worth to be less
than the following amounts at the end of each of the following
Fiscal Quarters:
Fiscal Quarter Ending Amount
September 30, 1995 $ 13,775,000
December 31, 1995 $ 13,500,000
March 31,1 996 $ 14,100,000
June 30, 1996, and each
Fiscal Quarter thereafter $ 15,325,000
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(b) Plastics will not permit the Plastics Adjusted
Tangible Net Worth to be less than the following amounts at
the end of each of the following Fiscal Quarters:
Fiscal Quarter Ending Amount
September 30, 1995 $ 2,100,000
December 31, 1995 $ 1,400,000
March 31, 1996 $ 1,525,000
June 30, 1996, and each
Fiscal Quarter thereafter $ 2,000,000
(c) Closures will not permit the Closures Adjusted
Tangible Net Worth to be less than the following amounts at
the end of each of the following Fiscal Quarters:
Fiscal Quarter Ending Amount
September 30, 1995 $ 4,900,000
December 31, 1995 $ 5,150,000
March 31, 1996 $ 5,400,000
June 30, 1996, and each
Fiscal Quarter thereafter $ 5,800,000"
2.15. Amendments to Article 12 of the Agreement. Article 12 is
hereby amended to read in its entirety as follows:
"The initial term of this Agreement shall be from the Renewal
Date to January 31, 1997 (the "Termination Date"). The
Borrower may also terminate this Agreement at any time during
its initial term if: (a) it gives the Lender ten (10) days
prior written notice of termination by registered or certified
mail; and (b) it pays and performs all Obligations on or prior
to the effective date of termination. If Borrower prepays all
Obligations on or prior to October 31, 1995, Borrower shall
pay Lender a prepayment premium in an amount equal to one
percent (1%) of the then outstanding balance of all Loans and
Letter of Credit. The Lender may also terminate this
Agreement as provided in Section 11.2. Upon the effective
date of termination of this Agreement for any reason
whatsoever, all Obligations (including, without limitation,
all unpaid principal of and accrued interest on the Term Loan
and the Capital
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Expenditures Term Loan) shall become immediately due and
payable. Notwithstanding the termination of this Agreement,
until all Obligations are paid and performed in full (other
than indemnification obligations which are to survive the
termination hereof), the Lender shall retain all its rights
and remedies hereunder (including, without limitation, in all
then existing and after-arising Collateral).
ARTICLE III
Modification of Note
Section 3.01. Superseding Provisions. In the event and to the
extent that any terms and provisions set forth in the Note are inconsistent
with the terms and provisions set forth in this Amendment, then the terms and
provisions of this Amendment shall modify and supersede any such inconsistent
terms and provisions.
ARTICLE IV
Miscellaneous
Section 4.01. Ratifications; Grant of Security Interest. The terms
and provisions set forth in this Amendment shall modify and supersede all
inconsistent terms and provisions set forth in the Agreement and, except as
expressly modified and superseded by this Amendment, the terms and provisions
of the Agreement and the Note, including, without limitation, all financial
covenants contained therein, are ratified and confirmed and shall continue in
full force and effect. Lender, Borrower and each Guarantor agree that the
Agreement, as amended hereby, and the Note shall continue to be legal, valid,
binding and enforceable in accordance with their terms. New Plastics
specifically ratifies the Agreement and agrees that it is hereby made a party
thereto and is bound by all the terms and provisions thereof. In connection
therewith, New Plastics hereby grants to Lender a security interest in all of
the Collateral of New Plastics, including, but not limited to, all of the
Receivables, Inventory, Equipment, Proprietary Rights and Proceeds of New
Plastics.
Section 4.02. Representations and Warranties. Each of Borrower and
each Guarantor (each being referred to as a "Loan Party") hereby represents and
warrants to Lender that the execution, delivery and performance of this
Amendment and all other loan documents to which it is or is to be a party
executed and/or delivered in connection herewith, have been authorized by all
requisite corporate action on the part of Borrower or such Guarantor and will
not violate the Certificate or Articles of Incorporation or Bylaws of Borrower
or such Guarantor.
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Section 4.03. Conditions. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent (unless
specifically waived in writing by the Lender):
(a) Each Loan Party shall have executed and delivered
such other documents and instruments as Lender may require, including,
without limitation, a certificate executed by an officer of each Loan
Party certifying as to the following:
(i) Resolutions. The Board of Directors of each
Loan Party has adopted resolutions which authorize the
execution, delivery, and performance by such Loan Party of
this Agreement and the other Loan Documents to which such Loan
Party is or is to be a party;
(ii) Incumbency. The incumbency of the officers of
such Loan Party authorized to sign this Agreement and each of
the other Loan Documents to which such Loan Party is or is to
be a party;
(iii) Articles of Incorporation. The certificate or
articles of incorporation of each Loan Party;
(iv) Bylaws. The bylaws of each Loan Party;
(v) Good Standing, etc. The existence, good
standing and qualification of each Loan Party.
(b) Borrower shall have delivered to Lender a list of all
Equipment that may be leased under the Mexican Leases.
(c) Borrower will pay to Lender an amendment fee in the
amount of $25,000.00.
(d) All corporate proceedings taken in connection with
the transactions contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to Lender and its legal counsel, Jenkens & ▇▇▇▇▇▇▇▇▇, a
Professional Corporation.
Section 4.04. Survival of Representations and Warranties. All
representations and warranties made in the Agreement or any other document or
documents relating thereto, including, without limitation, any Loan Document
furnished in connection with this Amendment, shall survive the execution and
delivery of this Amendment and the other Loan
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Documents, and no investigation by Lender or any closing shall affect the
representations and warranties or the right of Lender to rely thereon.
Section 4.05. Reference to Agreement. The Agreement and the Note,
each of the Loan Documents, and any and all other agreements, documents or
instruments now or hereafter executed and delivered pursuant to the terms
hereof or pursuant to the terms of the Agreement as amended hereby, are hereby
amended so that any reference therein to the Agreement shall mean a reference
to the Agreement as amended hereby.
Section 4.06. Severability. Any provision of this Amendment held
by a court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this Amendment and the effect thereof
shall be confined to the provision so held to be invalid or unenforceable.
Section 4.07. APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN
DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE
PERFORMABLE IN THE STATE OF TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
Section 4.08. Successors and Assigns. This Amendment is binding
upon and shall inure to the benefit of Lender, Borrower, Guarantors and their
respective successors and assigns; provided, however, that neither Borrower nor
any Guarantor may assign or transfer any of its rights or obligations hereunder
without the prior written consent of Lender. Lender may assign any or all of
its rights or obligations hereunder without the prior consent of Borrower and
Guarantors.
Section 4.09. Counterparts. This Amendment may be executed in one
or more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the
same instrument.
Section 4.10. Effect of Waiver. No consent or waiver, express or
implied, by Lender to or of any breach of or deviation from any covenant or
condition of the Agreement or duty shall be deemed a consent or waiver to or of
any other breach of or deviation from the same or any other covenant, condition
or duty.
Section 4.11. Headings. The headings, captions and arrangements
used in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
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Section 4.12. Releases. As a material inducement to Lender to
enter into this Amendment, each of Borrower and each Guarantor (including Old
Plastics) hereby represents and warrants that there are no claims or offsets
against, or defenses or counterclaims to, the terms and provisions of and the
other obligations created or evidenced by the Agreement or the other Loan
Documents. Each of Borrower and each Guarantor hereby releases, acquits, and
forever discharges Lender, and its successors, assigns, and predecessors in
interest, their parents, subsidiaries and affiliated organizations, and the
officers, employees, attorneys, and agents of each of the foregoing (all of
whom are herein jointly and severally referred to as the "Released Parties")
from any and all liability, damages, losses, obligations, costs, expenses,
suits, claims, demands, causes of action for damages or any other relief,
whether or not now known or suspected, of any kind, nature, or character, at
law or in equity, which Borrower or any Guarantor now has or may have ever had
against any of the Released Parties, including, but not limited to, those
relating to (a) usury or penalties or damages therefor, (b) allegations that a
partnership existed between Borrower or any Guarantor and the Released Parties,
(c) allegations of unconscionable acts, deceptive trade practices, lack of good
faith or fair dealing, lack of commercial reasonableness or special
relationships, such as fiduciary, trust or confidential relationships, (d)
allegations of dominion, control, alter ego, instrumentality, fraud,
misrepresentation, duress, coercion, undue influence, interference or
negligence, (e) allegations of tortious interference with present or
prospective business relationships or of antitrust, or (f) slander, libel or
damage to reputation; all hereinafter being collectively referred to as the
"Claims", all of which Claims are hereby waived.
Section 4.13. Expenses of Lender. Borrower agrees to pay on demand
(i) all costs and expenses reasonably incurred by Lender in connection with the
preparation, negotiation and execution of this Amendment, all prior notices and
correspondence related hereto, and the other Loan Documents executed pursuant
hereto and any and all subsequent amendments, modifications, and supplements
hereto or thereto, including, without limitation, the costs and fees of
Lender's legal counsel and the allocated cost of staff counsel and (ii) all
costs and expenses reasonably incurred by Lender in connection with the
enforcement and termination of any rights under the Agreement, this Amendment
and/or other Loan Documents, including, without limitation, the reasonable
costs and fees of Lender's legal counsel and the allocated cost of staff
counsel.
Section 4.13. CONSENTS AND REAFFIRMATIONS. Each Guarantor hereby
consents to the terms and conditions of this Amendment and reaffirms its
obligations under its Guaranty and agrees that the Security Interests granted
to Lender pursuant to the Loan Documents, together with such Guaranty, remain
in full force and effect and are hereby ratified and confirmed.
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Section 4.14. NO ORAL AGREEMENTS. THIS AMENDMENT, TOGETHER WITH
THE OTHER LOAN DOCUMENTS AS WRITTEN, REPRESENT THE FINAL AGREEMENTS AMONG
LENDER, BORROWER AND ALL GUARANTORS AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first above written.
BANK OF AMERICA TEXAS, N.A.
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
SUN COAST HOLDINGS, INC.
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice Chairman of the Board
SUN COAST INDUSTRIES, INC.
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
PLASTICS MANUFACTURING COMPANY,
a Nevada corporation
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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PLASTICS MANUFACTURING COMPANY,
a Delaware corporation
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
SUN COAST CLOSURES, INC.
By:
▇. ▇▇▇▇▇▇ ▇▇▇▇
Chief Executive Officer
CUSTOM LAMINATES, INC.
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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