EXHIBIT 10.62
ASSUMPTION AND MODIFICATION AGREEMENT
THIS ASSUMPTION AND MODIFICATION AGREEMENT (this "Agreement") dated as
of January 20, 1996 is by and among WINCUP HOLDINGS, INC. ("Transferor"), a
Delaware corporation, with offices at 000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx, XX
00000; WINCUP HOLDINGS, L.P., a Delaware limited partnership with offices at
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx, XX 00000 ("Transferee"); and XXXXX PAPER
COMPANY, a Pennsylvania corporation with offices at 000 Xxxxxx Xxxxx, Xxxxxx,
Xxxxx 00000 ("Noteholder").
BACKGROUND
A. Transferor intends to transfer to Transferee certain premises
located in El Campo, Texas; Shreveport, Louisiana; Mount Sterling, Ohio; and
Higginsville, Missouri (collectively, the "Mortgaged Property") under and
subject to the outstanding obligations of Transferor to Noteholder under the
Negotiable Secured Note, dated February 24, 1992 as amended by a First Amendment
to Negotiable Secured Note (the "Note"), made by Xxxxx Container Products Group,
Inc., a Delaware corporation, in favor of Noteholder, in the original principal
amount of FIVE MILLION DOLLARS (the "Indebtedness"). Initially capitalized terms
used and not otherwise defined in this Agreement shall have the respective
meanings given to those terms in the Note.
B. The Note is secured by the following Mortgages (collectively, with
the Note, this Agreement and with all amendments, modifications, replacements,
extensions hereof and thereof and any other documents evidencing or securing the
obligations described therein whether now or hereafter made, the "Loan
Documents"):
1. Deed of Trust and Security Agreement, dated February 24, 1992,
recorded in Xxxxxxx County, Texas Deed Records;
2. Mortgage and Security Agreement, dated February 24, 1992,
recorded in Caddo Parish, Louisiana;
3. Mortgage and Security Agreement, dated February 24, 1992,
recorded in Madison County, Ohio; and
4. Deed of Trust and Security Agreement, dated February 24, 1992,
filed for record in the Office of Recorder of Deeds, Lafayette
County, Missouri.
C. The parties are entering into this Agreement to evidence the
consent of Noteholder to the transfer of the Mortgaged Property to Transferee
and certain modifications of the Note described in this Agreement, to be
effective as of the date of transfer of the Mortgaged Property from Transferor
to Transferee (the "Effective Date").
TERMS AND PROVISIONS
1. Assumption. Effective on the Effective Date, Transferee shall
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assume and hereby agrees from and after the Effective Date to pay, as and when
due and payable, the outstanding principal amount of the Indebtedness, together
with interest, fees, and expenses now or hereafter becoming due under the Loan
Documents and any renewals, extensions and modifications thereof (all of the
foregoing obligations being hereinafter collectively referred to as the
"Obligations").
2. Modification. From and after the Effective Date, and subject to
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the provisions of Section 4 of the Note, the outstanding principal balance of
the Indebtedness shall bear interest at a rate equal to 100 basis points higher
than the rate set forth in the Term Loan Notes by the Transferee as maker
delivered pursuant to the Revolving Credit, Term Loan and Security Agreement
dated as of the date hereof among Transferee, Transferor, NationsBank, N.A. and
Bank of New York Commercial Corporation, as lender and as agent (the "Term
Notes"), as such rate is adjusted from time to time as set forth in such Term
Notes; provided, however, that if the Transferee and Transferor satisfy their
obligations in full under the Term Notes at any time while there remains any
principal outstanding under the Note, such unpaid principal shall bear interest
at an annual rate equal to the prime rate, as published in The Wall Street
Journal three business days prior to the last day of each calendar quarter, plus
200 basis points. Such interest shall be payable as follows:
(a) Interest. Interest accrued on the Indebtedness through the
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last day of each calendar quarter shall be due and payable by wire transfer on
the tenth day of the succeeding calendar quarter.
(b) Principal. The outstanding principal of the Indebtedness,
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which was $4,816,457 as of December 31, 1995 and with respect to which a
$200,000 principal payment has since been made by Transferor, shall be repaid in
one installment on the fifth anniversary of the Effective Date (the "Maturity
Date"). Transferee further agrees that such payment shall be made prior to the
Transferor making any payment to Xxxxx River Paper Company, Inc. or any
successor thereto or any person or entity to whom Xxxxx River Paper Company,
Inc. may assign its interest in Transferee (Xxxxx River Paper Company, Inc. or
any such successor or assignee being hereinafter referred to as "JR") in
connection with either (i) the exercise by JR of its right to require Transferor
to redeem all of JR's interest in Transferee commencing five years from the
Effective Date or on such earlier date as Transferor may permit JR to exercise
such right, as set forth in Transferee's Agreement of Limited Partnership dated
as of the Effective Date between Transferor and JR (the "Partnership Agreement)
or (ii) the exercise by Transferor of its right to acquire all of JR's interest
in Transferee under the Partnership Agreement.
The foregoing terms shall be set forth in an allonge to be affixed to
the Note.
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3. Notices, Etc.
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(a) The address for notices to Maker, under (Paragraph)6 of the
Note is hereby amended as follows:
To Maker as follows:
Wincup Holdings, L.P.
000 Xxxxxxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
(b) The address for notices to Noteholder under (Paragraph)6 of
the Note is hereby amended as follows:
If to Payee:
Xxxxx Paper Company
c/o Xxxxxxxx Xxxxx Corporation
000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Treasurer
With a copy to:
Xxxxxxxx Xxxxx Corporation
000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
and
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx x0xxx
Attention: Xxxxx X. Xxxxxxxxx, Esquire
4. Acknowledgment. Transferor hereby acknowledges its liability, as
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contemplated by the Subrogation Agreement dated February 28, l992 among
Noteholder, Continental Bank, N.A. and Transferor, to reimburse Noteholder for
an aggregate $3,000,000, plus "Damages" (as described in said Subrogation
Agreement) in respect thereof in connection with drawdowns under the Letter of
Credit furnished by Noteholder as contemplated by the Subrogation Agreement.
Transferor hereby assigns to Noteholder, in full satisfaction of such liability,
Transferor's right to receive (i) $300,000 in original principal amount of
Transferee's Subordinated Promissory Notes and (ii) $2.7 million in original
principal amount of Transferee's Junior Subordinated Notes, and Transferor
hereby directs Transferee to issue such notes directly to Noteholder, and
Noteholder hereby accepts the issuance of such notes by Transferee to Noteholder
as full satisfaction of Transferor's liability under such Subrogation Agreement.
5. Miscellaneous.
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(a) This Agreement and the other Loan Documents contain the entire
agreement of the parties hereto with respect to the subject matter hereof. No
amendment of any provision of this Agreement shall be effective unless it is in
writing and signed by Noteholder and the Obligor against whom enforcement is
sought, no waiver of any provision of this Agreement and no waiver or consent to
any departure by any Obligor therefrom, shall be effective unless it is in
writing and signed by Noteholder and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
(b) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability, and such prohibition or
unenforceability shall not invalidate such provision to the extent it is not
prohibited or unenforceable in any other jurisdiction, nor invalidate the
remaining provisions hereof or thereof.
(c) This Agreement shall i) be binding on Transferor, Transferee
and their respective successors and assigns, and ii) inure, together with all
rights and remedies of Noteholder hereunder, to the benefit of Noteholder and
its successors, transferees and assigns. Without limiting the generality of the
foregoing clause (ii), Noteholder may assign or otherwise transfer any note held
by it, and Noteholder may assign or otherwise transfer its rights under other
Loan Document to any other person, and such other person shall thereupon become
vested with all of the benefits in respect thereof granted to Noteholder under
this Agreement or otherwise.
(d) This Agreement shall be governed by and construed in
accordance with the internal laws, and not the law of conflicts, of the
Commonwealth of Pennsylvania.
(e) The paragraph headings used herein are for convenience only
and do not affect or modify the terms and conditions hereof.
(f) The parties acknowledge and agree that the assumption by
Transferee of the Obligations pursuant to this Agreement shall not affect the
Transferor's liability for such Obligations as set forth in the Note, as
modified hereby.
(g) Transferee agrees to pay the actual fees and expenses of
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol incurred on behalf of Noteholder in
connection with the transactions contemplated hereby, such fees and expenses to
be paid upon consummation of the transactions contemplated hereby based on
reasonable documentation thereof.
(h) Transferor shall deliver to Noteholder, within two business
days after the consummation of the transactions contemplated hereby, a true and
correct copy of the confirmation by Transferor's senior lender prior to the date
hereof relating to the satisfaction of all obligations owed by Transferor to
such lender.
IN WITNESS WHEREOF, Transferor, Transferee and Noteholder have
caused this Assumption and Modification Agreement to be executed by an officer
thereunto duly authorized, as of the date first above written.
WINCUP HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President
WINCUP HOLDINGS, L.P.,
by its sole general partner
WINCUP HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President
XXXXX PAPER COMPANY,
a Pennsylvania corporation
By: /s/ W. Xxxxxx Xxxx
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W. Xxxxxx Xxxx
Assistant Treasurer
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