First Amendment to Credit and Security Agreement



 Exhibit 10.4 
  
 FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT AND WAIVER OF DEFAULTS 
  
 This FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT AND WAIVER OF
DEFAULTS, dated as of March 10, 2005, is made by and between USPOLY COMPANY, a Minnesota corporation (the “Borrower”), and WELLS FARGO BUSINESS CREDIT, INC., a Minnesota corporation (the “Lender”). 
  
 Recitals 
  
 The Borrower and the Lender are parties to an Amended and Restated Credit and Security Agreement dated as of September 27,
2004 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). 
  
 The Borrower has requested that certain amendments be made to the Credit Agreement which the Lender is willing to make pursuant to the terms and
conditions set forth herein. 
  
 NOW, THEREFORE, in consideration
of the premises and of the mutual covenants and agreements herein contained, it is agreed as follows: 
  
 1. Defined Terms. Capitalized terms used in this Amendment which are defined in the Credit Agreement shall have the same meanings as defined
therein, unless otherwise defined herein. In addition, Section 1.1 of the Credit Agreement is amended by amending the following definitions: 
  
 “Borrowing Base” means at any time the lesser of: 
  
 (a) the Maximum Line; or 
  
 (b) subject to change from time to time in the Lender’s sole discretion, the sum of: 
  
 (i) 85% of Eligible Accounts, (other than Eligible Accounts
included in the Dating Program), plus 
  
 (ii)
80% of that portion of Eligible Accounts included in the Dating Program that does not exceed $1,500,000, plus 
  
 (iii) the lesser of (A) 60% of Eligible Inventory or (B) $8,000,000, minus 
  
 (iv) The Wells Fargo Bank Obligations Reserve. 
  
 “Floating Rate” means (i) with respect to the
Revolving Advances, an annual interest rate equal to the sum of the Base Rate plus one percent (1.00%), 

  









 
(ii) with respect to the Term Advance, an annual rate of interest equal to the sum of the Base Rate plus one and one-quarter of one percent (1.25%), (iii)
with respect to the Over-Advance Term Advance, an annual rate of interest equal to the sum of the Base Rate plus three-quarters of one percent (0.75%), and (iv) with respect to the Real Estate Advance, an annual rate of interest equal to the sum of
the Base Rate plus one and one half percent (1.50%), which interest rates shall, in each case, change when and as the Base Rate changes. 
  
 “Maximum Line” means $15,000,000 unless said amount is reduced pursuant to Section 2.16, in which event it means such lower
amount. 
  
 “Medallion Subordination
Agreement” means that certain Amended and Restated Subordination Agreement dated as of September 27, 2004 between the Lender and Medallion Capital, Inc., as the same may be amended, restated or otherwise modified from time to time. 

 
 2. Amendment to Eligible Accounts. Section 1.1 of the Credit
Agreement is further amended by deleting subclause (xiv) and the last sentence of the definition of “Eligible Accounts” contained therein and by substituting in lieu thereof the following: 
  
 (xiv) That portion of the Accounts owed by any account
debtor which would cause the total Accounts owed by such account debtor which would be Eligible Accounts but for this subclause (xiv) to exceed 25% (or in the case of Rainmaker Sales, 30%) of the aggregate Accounts owing by all account debtors which
would be Eligible Accounts but for this subclause (xiv), in each case based upon the unpaid balance of such Accounts; and 
  
 (xv) Accounts, or portions thereof otherwise deemed ineligible by the Lender in its sole discretion. 
  
 Satisfaction of the conditions specified in clauses (i)
through (xiv) of this definition shall be determined from time to time by the Lender in its sole discretion. 
  
 3. Financial Covenants. Sections 6.2(a), (b), (c) and (d) of the Credit Agreement are amended to read in their entireties as follows: 

 
 (a) Minimum Debt Service Coverage Ratio.
The Borrower will maintain its Debt Service Coverage Ratio, determined on each December 31 (commencing on December 31, 2004) for the period from the beginning of the calendar year containing such date to such date, at not less than 1.05 to 1.00 (or,
on December 31, 2004, 0.25 to 1.00). 
  
 (b) Maximum Senior Debt to Capital Base Ratio. The Borrower will maintain its Senior Debt to Capital Base Ratio, determined as at the end of each calendar year, at not more than (a) 4.00 to 1.00 as at December
31, 2004 and (b) 3.25 to 1.00 as at December 31, 2005 and the last day of each calendar year thereafter. 
  
 (c) Minimum Earnings Before Taxes. The Borrower will achieve Earnings Before Taxes, for the period from the beginning of the
calendar year containing the following 

  

 2 








 
indicated months to the last day of such month, of not less than the amount set forth opposite such month (numbers in parenthesis denote negative numbers):

  

					
	 Period Ending on the Last Day Of

	  	Minimum Earnings
Before Taxes

	 
	 December, 2004
	  	$	(1,600,000	)
	 January, 2005
	  	$	(400,000	)
	 February, 2005
	  	$	(650,000	)
	 March, 2005
	  	$	(950,000	)
	 April, 2005
	  	$	(975,000	)
	 May, 2005
	  	$	(650,000	)
	 June, 2005
	  	$	(325,000	)
	 July, 2005
	  	$	(150,000	)
	 August, 2005
	  	$	150,000	 
	 September, 2005
	  	$	500,000	 
	 October, 2005
	  	$	800,000	 
	 November, 2005
	  	$	800,000	 
	 December, 2005
	  	$	800,000	 
	 January, 2006
	  	$	(400,000	)
	 February, 2006
	  	$	(650,000	)
	 March, 2006
	  	$	(900,000	)
	 April, 2006
	  	$	(900,000	)
	 May 2006 and thereafter
	  	$	(650,000	)

  
 (d)
Capital Expenditures. The Borrower will not incur or contract to incur Capital Expenditures (in each case excluding the purchase price paid in connection with the Acquisition) of more than (a) $1,000,000 in the aggregate during the
calendar year ending December 31, 2004 and (b) $1,500,000 in the aggregate during any calendar year ending on or after December 31, 2005. 
  
 4. Salaries. Section 6.8 of the Credit Agreement is amended to read in its entirety as follows: 
  
 Section 6.8 Salaries. The Borrower will not pay
excessive or unreasonable salaries, bonuses, commissions, consultant fees or other compensation; or increase the salary, bonus, commissions, consultant fees or other compensation of any Director, Officer or consultant, or any member of their
families, by more than 10% in any one year, either individually or for all such persons in the aggregate, or pay any such increase from any source other than profits earned in the year of payment, provided, that as long as no Default or Event of
Default has occurred or would result therefrom, the Borrower may pay a management fee to Spell Capital Partners, LLC in an amount up to $37,500 

  

 3 








 
during the calendar quarter ending on December 31, 2004 and up to $150,000 during the 2005 calendar year. The Borrower may engage or hire consultants from
time to time which engagement or hiring shall not be deemed an increase in consultant fees. The Borrower will not enter into any employment contracts with any Person, other than the employment contracts existing on the date hereof and listed in
Schedule 6.8 hereto. 
  
 5. New Form of Revolving Note.
Exhibit A to the Credit Agreement is amended to read as set forth in Exhibit A hereto, which Exhibit A is made a part of the Credit Agreement as Exhibit A. 
  
 6. New Schedules. Schedules 5.1, 5.2 and 5.11 of the Credit Agreement are amended to read as set forth on Exhibit B hereto. 
  
 7. No Other Changes. Except as explicitly amended by this Amendment,
all of the terms and conditions of the Credit Agreement shall remain in full force and effect and shall apply to any advance or letter of credit thereunder. 
  
 8. Waiver of Defaults. The Borrower is in default of the following provisions of the Credit Agreement as they existed prior to the date of this
Agreement (collectively, the “Existing Financial Covenant Defaults”): 
  

			
	 Section/Covenant

	  	 Periods in Default


	Section 6.2(c) Minimum Earnings Before Taxes	  	October 2004 and November 2004

  
 In addition, the
Borrower has advised the Lender that it has paid a management fee of $37,500 to Spell Capital Partners, LLC (“Spell”) in the calendar quarter ending on December 31, 2004. Under Section 2 of the Subordination Agreement dated as of September
27, 2004 by and among the Bank, the Borrower, Medallion Capital, Inc. (“Medallion”) and Spell, the Borrower agreed to not pay Spell a management fee in excess of $31,250 in any calendar quarter. Under Section 7.1(i) of the Credit
Agreement, it is an Event of Default if there is a default under any material contract of the Borrower (a contract being deemed “material” if it exceeds $50,000 of amounts remaining unpaid by the Borrower) (collectively with the Existing
Financial Covenant Defaults, the “Existing Defaults”). 
  
 Upon the terms and subject to the conditions set forth in this Amendment, the Lender hereby waives the Existing Defaults. This waiver shall be effective only in this specific instance and for the specific purpose for which it is given, and
this waiver shall not entitle the Borrower to any other or further waiver in any similar or other circumstances. 
  
 9. Amendment Fee. The Borrower shall pay the Lender as of the date hereof a fully earned, non-refundable fee in the amount of $60,000 in
consideration of the Lender’s execution and delivery of this Amendment. 
  
 10. Conditions Precedent. This Amendment, and the waiver set forth in Paragraph 8 hereof, shall be effective when the Lender shall have received an executed original hereof, 

  

 4 








 
together with each of the following, each in substance and form acceptable to the Lender in its sole discretion: 
  
 (a) The Lender shall have received a Certificate of
Authority for Amendment by the Secretary of the Borrower certifying as to (i) the resolutions of the board of directors of the Borrower approving the execution and delivery of this Amendment, (ii) the fact that the articles of incorporation and
bylaws of the Borrower, which were certified and delivered to the Lender pursuant to the Certificate of Authority of the Borrower’s secretary or assistant secretary dated as of September 27, 2004 continue in full force and effect and have not
been amended or otherwise modified except as set forth such Certificate, and (iii) certifying that the officers and agents of the Borrower who have been certified to the Lender, pursuant to the Certificate of Authority of the Borrower’s
secretary or assistant secretary dated as of September 27, 2004, as being authorized to sign and to act on behalf of the Borrower continue to be so authorized or setting forth the sample signatures of each of the officers and agents of the Borrower
authorized to execute and deliver this Amendment and all other documents, agreements and certificates on behalf of the Borrower. 
  
 (b) The Amended and Restated Revolving Note in the form of Exhibit A hereto, duly executed by the Borrower. 
  
 (c) A First Amendment to Subordination Agreement in a form
prescribed by the Lender, duly executed by Medallion. 
  
 (d) A First Amendment to Subordination Agreement in a form prescribed by the Lender, duly executed by Uponor Aldyl Company, Inc. 
  
 (e) A Second Amendment to Subordination Agreement in a form prescribed by the Lender, duly executed by the Borrower, Medallion and Spell.

  
 (f) A copy of any amendment to the Medallion
Subordinated Debt documents, in form and substance acceptable to the Lender, certified as true and correct by the Secretary of the Borrower. 
  
 (g) A true and correct copy of any settlement agreement(s) with respect to the settlement of earn out payments by and between the Borrower
and Uponer North America. 
  
 (h) Payment of the
fee described in Paragraph 9. 
  
 (i) Such other
matters as the Lender may reasonably require. 
  
 11.
Representations and Warranties. The Borrower hereby represents and warrants to the Lender as follows: 
  
 (a) The Borrower has all requisite power and authority to execute this Amendment and to perform all of its obligations hereunder, and this
Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms. 
  

 5 








 (b) The execution, delivery and performance by the Borrower of this Amendment have been
duly authorized by all necessary corporate action and do not (i) require any authorization, consent or approval by any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) violate any provision of
any law, rule or regulation or of any order, writ, injunction or decree presently in effect, having applicability to the Borrower, or the articles of incorporation or by-laws of the Borrower, or (iii) result in a breach of or constitute a default
under any indenture or loan or credit agreement or any other agreement, lease or instrument to which the Borrower is a party or by which it or its properties may be bound or affected. 
  
 (c) All of the representations and warranties contained in Article V of the Credit Agreement are correct on
and as of the date hereof as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date. 
  

12. References. All references in the Credit Agreement to “this Agreement” shall be deemed to refer to the Credit Agreement as amended
hereby; and any and all references in the Security Documents to the Credit Agreement shall be deemed to refer to the Credit Agreement as amended hereby. 
  
 13. No Other Waiver. Except as set forth in Paragraph 8 hereof, the execution of this Amendment and acceptance of any documents related hereto
shall not be deemed to be a waiver of any Default or Event of Default under the Credit Agreement or breach, default or event of default under any Security Document or other document held by the Lender, whether or not known to the Lender and whether
or not existing on the date of this Amendment. 
  
 14.
Release. The Borrower hereby absolutely and unconditionally releases and forever discharges the Lender, and any and all participants, parent corporations, subsidiary corporations, affiliated corporations, insurers, indemnitors, successors and
assigns thereof, together with all of the present and former directors, officers, agents and employees of any of the foregoing, from any and all claims, demands or causes of action of any kind, nature or description, whether arising in law or equity
or upon contract or tort or under any state or federal law or otherwise, which the Borrower has had, now has or has made claim to have against any such person for or by reason of any act, omission, matter, cause or thing whatsoever arising from the
beginning of time to and including the date of this Amendment, whether such claims, demands and causes of action are matured or unmatured or known or unknown. 
  

15. Costs and Expenses. The Borrower hereby reaffirms its agreement under the Credit Agreement to pay or reimburse the Lender on demand for all
costs and expenses incurred by the Lender in connection with the Loan Documents, including without limitation all reasonable fees and disbursements of legal counsel. Without limiting the generality of the foregoing, the Borrower specifically agrees
to pay all fees and disbursements of counsel to the Lender for the services performed by such counsel in connection with the preparation of this Amendment and the documents and instruments incidental hereto. The Borrower hereby agrees that the
Lender may, at any time or from time to time in its sole discretion and without further authorization by the Borrower, make a loan to the Borrower under the Credit Agreement, or apply the proceeds of any loan, for the purpose of paying any such
fees, disbursements, costs and expenses and the fee required under Paragraph 9 hereof. 
  

 6 








 16. Miscellaneous. This Amendment may be executed in any number of counterparts, each of which
when so executed and delivered shall be deemed an original and all of which counterparts, taken together, shall constitute one and the same instrument. 
  
 [Remainder of page intentionally left blank.] 
  

 7 








 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date
first written above. 
  

											
	WELLS FARGO BUSINESS CREDIT, INC.	 	 	 	 USPOLY COMPANY

					
	 By:
	 	 /s/s Mona M. Krueger
	 	 	 	By:	 	 /s/ Frank Bailor

	 Its:
	 	 Vice-President
	 	 	 	 Its:
	 	 President


  
 [Signature Page to
First Amendment to Credit 
 and Security Agreement and Waiver of Defaults] 
  









 Wells Fargo/USPoly 
 Revised Schedules 
  
 EXHIBIT 1

 TO 
 FIRST
AMENDMENT 
 TO 
 AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT 
 BY AND BETWEEN 
 WELLS FARGO BUSINESS CREDIT, INC. 
 AND 
 USPOLY COMPANY 
  
 LIST OF REVISED SCHEDULES 
  

			
	Schedule 5.1	  	Trade Names, Chief Executive Office, Principal Place of Business, and Locations of Collateral
		
	Schedule 5.2	  	Capitalization and Organizational Chart
		
	Schedule 5.11	  	Intellectual Property Disclosures

  

 1 









 Wells Fargo/USPoly 
 Revised Schedules 
  

 SCHEDULE 5.1 
  
 Trade Names, Chief Executive Office, Principal Place of Business, and Locations of Collateral 
  
 Assumed Names: 
  

	 	•	 	PW Poly Corp. 

  

	 	•	 	Extrusion Technologies, Inc. 

  

	 	•	 	USPoly Company 

  
 Chief Executive Office: 
  
 7901 N.
Kickapoo 
 Shawnee, OK 74804 
  
 Principal Place of Business: 
  
 7901 N. Kickapoo 
 Shawnee, OK 74804 
 (Records relating to the Business are kept at this location, 1933 West Second Street, Hastings, NE 68901 and 4501 W. 49th Street, Tulsa, OK 74107) 
  
 Other Inventory and Equipment Locations: 
  

			
	 600 David Eccles Road
	  	700 E. 45th Street
	 Baker City, Oregon 97814
	  	Shawnee, OK 74801
		
	 1840 McCain Parkway
	  	8730 E. Clauson Avenue
	 Pelham, AL 35128
	  	Pico Rivera, CA 90660
		
	 125, 143, and 145 North Maple Street
	  	1811 East Commerce Drive
	 Hastings, Nebraska 68902
	  	Fayetteville, AR 72701
		
	 116 and 120 North Woodland
	  	1255 N. 13th Street
	 Hastings, Nebraska 68902
	  	Rogers, AR 72756
		
	 Buildings 18, 19 and 20
	  	2707 North Eola Road, Suite B
	 Industrial Park East
	  	Aurora, IL 60504
	 Hastings, Nebraska 68902
	  	 
		
	 Buildings 1 and 2
	  	8117 Burch Park Drive
	 Spady Industrial Park East
	  	Evansville, IN 47725
	 Hastings, Nebraska 68902
	  	 

  

 2 









 Wells Fargo/USPoly 
 Revised Schedules 
  


			
	 112-124; 136-140 and 146 Chestnut Street
	  	729 West Winder Industrial Parkway
	 Hastings, Nebraska 68902
	  	Winder, GA 30680
		
	 1075 W. North Temple
	  	12 River Road
	 Salt Lake City, UT 84116
	  	Chatham, NJ 07928
		
	 6390 S. Jasmine Way
	  	1414 Castlewood Drive
	 Englewood, CO 80111
	  	Wheaton, IL 60189
		
	 2184 S. 394th W. Avenue
	  	11 Doe Hill Road
	 Mannford, OK 74077
	  	Morristown, NJ 07960
		
	 4501 West 49th Street
	  	 
	 Tulsa, OK, 74107
	  	 

  

 3 









 Wells Fargo/USPoly 
 Revised Schedules 
  

 SCHEDULE 5.2 
  
 Capitalization and Organizational Chart 
  
 Capitalization: 
  
 See attached. 
  
 Subsidiaries: 
  
 None. 

 

 4 









 Wells Fargo/USPoly 
 Revised Schedules 
  

 CAPITALIZATION 
  

										
	 Record Holder

	  	Number of
Shares

	  	Number of
Warrants

	  	Number of
Options

	  	Percentage
Owned

	 
	 PW Eagle, Inc.
	  	9,830,133	  	 	  	 	  	56.88	%
	 Agio Poly Partners
	  	840,000	  	 	  	 	  	4.86	%
	 AIC II Investments
	  	100,000	  	 	  	 	  	0.58	%
	 Baratz Family Ltd. Partnership
	  	50,000	  	 	  	 	  	0.29	%
	 Frank B. & Connie J. Bennett
	  	40,000	  	 	  	 	  	0.23	%
	 Arland D. Brusven
	  	50,000	  	 	  	 	  	0.29	%
	 Joseph J. Buska
	  	50,000	  	 	  	 	  	0.29	%
	 Bruce A. Christensen
	  	50,000	  	 	  	 	  	0.29	%
	 Clint Hill Partners Four
	  	150,000	  	 	  	 	  	0.87	%
	 John Colwell Jr.
	  	20,000	  	 	  	 	  	0.12	%
	 Concord Development Co. Profit Share Trust; Paul Coniaris, Trustee
	  	20,000	  	 	  	 	  	0.12	%
	 UBS Financial Services Custodian for Thomas W. Devine IRA
	  	30,000	  	 	  	 	  	0.17	%
	 Andrew Dovolis
	  	8,000	  	 	  	 	  	0.05	%
	 Anne Dovolis
	  	8,000	  	 	  	 	  	0.05	%
	 Gregg Dovolis
	  	8,000	  	 	  	 	  	0.05	%
	 Gregg Dovolis
	  	50,000	  	 	  	 	  	0.29	%
	 Robert J. Evans
	  	150,000	  	 	  	 	  	0.87	%
	 Kevin P. & Martha K. Harris
	  	200,000	  	 	  	 	  	1.16	%
	 Ed Hengel Jr.
	  	50,000	  	 	  	 	  	0.29	%
	 Ronald J. Herold
	  	200,000	  	 	  	 	  	1.16	%
	 Randy Morgan
	  	20,000	  	 	  	 	  	0.12	%
	 MoCo Inc.
	  	20,000	  	 	  	 	  	0.12	%
	 Richard W. Perkins, Trustee U/A dtd. 6-14-78 FBO RW Perkins
	  	100,000	  	 	  	 	  	0.58	%
	 Victor Philip Reim
	  	200,000	  	 	  	 	  	1.16	%
	 Bruce A. Richard
	  	150,000	  	 	  	37,500	  	1.08	%
	 Harry W. Spell, II Irrevoc. Trust (3)
	  	8,000	  	 	  	37,500	  	0.26	%
	 Nichole Spell Irrevocable Trust
	  	8,000	  	 	  	 	  	0.05	%
	 William H. Spell
	  	150,000	  	 	  	120,250	  	1.56	%
	 James J. Tiampo Money Purchase Plan & Trust (Keogh) c/o James J. Tiampo, Trustee
	  	200,000	  	 	  	 	  	1.16	%
	 Chris P. & Rosemary E. Tountas
	  	50,000	  	 	  	 	  	0.29	%
	 Donald A. Washburn
	  	200,000	  	 	  	 	  	1.16	%
	 Dobson West
	  	150,000	  	 	  	54,750	  	1.18	%
	 Medallion Base Shares (1)
	  	 	  	1,091,914.78	  	 	  	6.32	%
	 Medallion Performance Shares (2)
	  	 	  	2,192,294.02	  	 	  	12.69	%
	 Darlene Jerome
	  	9,090	  	 	  	6,818	  	0.09	%
	 Frank V. Bailor
	  	204,545	  	 	  	204,545	  	2.37	%
	 Darren Warn
	  	90,909	  	 	  	68,182	  	0.92	%
	 Michael Shaw
	  	2,272	  	 	  	1,705	  	0.02	%
	 Total (3)(4)
	  	13,466,949	  	3,284,208.81	  	531,250	  	100.00	%

  

	(1)	Exact number of warrant shares will equal 7.5% (excluding Base Shares) of the Borrower as of date of the Spin Off 

  

	(2)	Exact number of warrant shares will be the number required to give Medallion Capital, Inc. a 24% internal rate of return as of September 27, 2009 not to exceed shares equaling 14%
of the Company on a fully diluted basis. 

  

	(3)	Options issued to Harry W. Spell. 

  

 5 









 Wells Fargo/USPoly 
 Revised Schedules 
  

 SCHEDULE 5.11 
  
 Intellectual Property Disclosures 
  

	(a)	Intellectual Property: 

  
 Meter Loop Frame Assembly. 
  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Issued
Number/Registration
Date


	USA	  	Patent	  	Granted	  	 09/627,942
  
 07/28/2000
	  	 6382679
  
 05/07/2002


  
 Adjustable Meter Loop Assembly.

  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Issued
Number/Registration
Date


	USA	  	Patent	  	Granted	  	 10/052,660
  
 01/18/2002
	  	 6,668,644
  
 12/30/2003


  
 Coupling Device – Plastic Pipes
(“MetFit”) 
  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Issued
Number/Registration
Date


	USA	  	Patent	  	Granted	  	 08/077992
  
 06/18/1993
	  	 5388873
  
 02/14/1995

					
	Japan	  	Patent	  	Granted	  	 7-502954
  
 06/16/1994
	  	 3366928
  
 11/8/2002

					
	Canada	  	Patent	  	Pending	  	 2165448
  
 06/16/1994
	  	 

  

 6 









 Wells Fargo/USPoly 
 Revised Schedules 
  

 Anodeless service riser  
  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Issued
Number/Registration
Date


	USA	  	Patent	  	Granted	  	 09/206,043
  
 12/04/1998
	  	 6237963
  
 05/29/2001

					
	Canada	  	Patent	  	Pending	  	 2350554
  
 12/02/1999
	  	 
					
	Mexico	  	Patent	  	Pending	  	 PA/2001/005611
  
 12/02/1999
	  	 

  
 MetFit 
  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Registration
Number/Date


	Finland	  	Trademark	  	Registered	  	 199504858
  
 08/25/1995
	  	 208924
  
 01/30/1998

					
	USA	  	Trademark	  	Registered	  	 74-198958
  
 08/28/1991
	  	 1760686
  
 03/23/1993

					
	Benelux	  	Trademark	  	Registered	  	 854406
  
 08/24/1995
	  	584715
					
	Germany	  	Trademark	  	Registered	  	 39534653.3
  
 08/24/1995
	  	 39534653
  
 07/16/1996

					
	UK	  	Trademark	  	Registered	  	 2031636
  
 08/25/1995
	  	 2031636
  
 07/26/1996

					
	France	  	Trademark	  	Registered	  	 95585487
  
 08/23/1995
	  	95585487

  

 7 









 Wells Fargo/USPoly 
 Revised Schedules 
  

 Allcoat3 
  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Registration
Number/Date


	USA	  	Trademark	  	Pending	  	 76530883
  
 07/18/2003
	  	 

  
 Duratherm System 
  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Registration
Number/Date


	USA	  	Trademark	  	Pending	  	 76422939
  
 06/19/2002
	  	 

  
 Ultra - Stripe 
  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Registration
Number/Date


	USA	  	Trademark	  	Pending	  	 76446326
  
 09/03/2002
	  	 

  
 Aldyl 
  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Registration
Number/Date


	USA	  	Trademark	  	Registered	  	 72-190904
  
 04/13/1964
	  	 0781240
  
 12/08/1964

					
	Canada	  	Trademark	  	Registered	  	 CA031306700
  
 05/8/1968
	  	 TMA0161532
  
 03/07/1969


  
 pwpoly 
  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Registration
Number/Date


	USA	  	Trademark	  	Pending	  	 78/228,172
  
 03/20/03
	  	 

  
 USPOLY & Design

  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Registration
Number/Date


	USA	  	Trademark	  	Pending	  	 78/421,865
  
 05/19/04
	  	 

  

 8 









 Wells Fargo/USPoly 
 Revised Schedules 
  

 GREEN STRIPE DESIGN MARK 
  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Registration
Number/Date


	USA	  	Trademark	  	Registered	  	 	  	 1,559,008
  
 10/03/89


  
 PURE-CORE

  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Registration
Number/Date


	USA	  	Trademark	  	Registered	  	 	  	 1,526,900
  
 02/28/89


  
 TRI-STRIPE

  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Registration
Number/Date


	USA	  	Trademark	  	Registered	  	 	  	 1,640,478
  
 04/09/91


  
 PURE-CORE BLUE XT

  

									
	 Country

	  	 Type

	  	 Status

	  	 Application Number/Date

	  	 Registration
Number/Date


	USA	  	Trademark	  	Pending	  	 78/289,010
  
 08/19/03
	  	 

  

 9 









 Wells Fargo/USPoly 
 Revised Schedules 
  


	(c)	Intellectual Property Licensed from Others: 

  

	 	•	 	Novell software and services pursuant to a certain Corporate License Agreement by and among Novell Ireland Software Limited, Novell, Inc. and the Uponor Group assigned to the
Borrower pursuant to that certain Novation Agreement dated effective on or about September 27, 2004. 

  

	 	•	 	Borrower has a limited right to use the name “Uponor” pursuant to the Acquisition Documents. 

  

	 	•	 	Borrower has rights to use the trademark “PW PURPLEPLUS”, which has United States Federal Trademark Registration No. 1,723,768 pursuant to that certain Trademark License
Agreement dated as of October 4, 2004, between PW Eagle, Inc., as Owner, and Borrower f/k/a PW Poly Corp., as Licensee. 

  

	(d)	Other Intellectual Property Needed for Business: 

  

	 	•	 	Borrower has copyrights in all written works 

  

	 	•	 	Borrower also uses and has common law rights in the following trademarks: EAGLE, EAGLE 3408, COMM PLUS, EAGLE TRI-STRIPE, GREEN STRIPE (word mark), EAGLE-TOUGH, POLY FLO, GEO-FLO,
EAGLE GEO-FLO, POLY FLEX, POLY-DRIP and POLY-LD 

  

	(e)	Infringement: 

  

	 	•	 	By Letter Agreement dated December 30, 2002 (“Letter Agreement”), Seller agreed to pay Kerotest Manufacturing Corp. (“Kerotest”) $10,000.00 for the privilege of
selling 150 units of the Uponor ServicePro 2000 Battery Powered Electrofusion Processor (the “Units”), which allegedly infringe patent No. 5951902, in order to resolve any potential claim by Kerotest against the Seller for patent
infringement (the “Kerotest Dispute”). Borrower assumed the Letter Agreement pursuant to the Acquisition Documents. Moreover, after all the Units covered by the $10,000.00 initial payment to Kerotest are sold, Borrower must pay a $50.00
royalty payment to Kerotest upon the sale of each additional unit until all inventory contemplated by the Kerotest Dispute has been sold. As of July 27, 2004, there were approximately 143 units remaining in inventory, approximately 35 of which were
part of the first 150 Units covered by the initial $10,000.00 royalty payment and approximately 108 of which require the $50.00 per unit royalty payment to Kerotest upon sale. 

  

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 Wells Fargo/USPoly 
 Revised Schedules 
  

 EXHIBIT A TO FIRST 
 AMENDMENT TO CREDIT AND 
 SECURITY AGREEMENT 
 AND WAIVER OF DEFAULTS 
  
 EXHIBIT A TO AMENDED AND RESTATED 
 CREDIT AND SECURITY AGREEMENT 
  
 AMENDED AND RESTATED 
 REVOLVING NOTE 
  

			
	$15,000,000	 	Minneapolis, Minnesota
March 10, 2005

  
 For value received,
the undersigned, USPOLY COMPANY., a Minnesota corporation (the “Borrower”), hereby promises to pay on the Termination Date under the Credit Agreement (defined below), to the order of WELLS FARGO BUSINESS CREDIT, INC., a Minnesota
corporation (the “Lender”), at its main office in Minneapolis, Minnesota, or at any other place designated at any time by the holder hereof, in lawful money of the United States of America and in immediately available funds, the principal
sum of FIFTEEN MILLION DOLLARS ($15,000,000) or, if less, the aggregate unpaid principal amount of all Revolving Advances made by the Lender to the Borrower under the Credit Agreement (defined below) together with interest on the principal amount
hereunder remaining unpaid from time to time, computed on the basis of the actual number of days elapsed in a 360-day year, from the date hereof until this Note is fully paid at the rate from time to time in effect under the Amended and Restated
Credit and Security Agreement of even date herewith (as the same may hereafter be amended, supplemented or restated from time to time, the “Credit Agreement”) by and between the Lender and the Borrower. The principal hereof and interest
accruing thereon shall be due and payable as provided in the Credit Agreement. This Note may be prepaid only in accordance with the Credit Agreement. 
  
 This Note is issued pursuant, and is subject, to the Credit Agreement, which provides, among other things, for acceleration hereof. This Note is the
Revolving Note referred to in the Credit Agreement. This Note is secured, among other things, pursuant to the Credit Agreement and the Security Documents as therein defined, and may now or hereafter be secured by one or more other security
agreements, mortgages, deeds of trust, assignments or other instruments or agreements. 
  
 This Note amends and restates, but does not constitute prepayment upon or a novation of, the Revolving Note dated as of September 27, 2004 made by the undersigned in favor of the Lender in the original principal
amount of $10,000,000. 
  
 The Borrower shall pay all costs of
collection, including reasonable attorneys’ fees and legal expenses if this Note is not paid when due, whether or not legal proceedings are commenced. 
  

 11 









 Wells Fargo/USPoly 
 Revised Schedules 
  

 Presentment or other demand for payment, notice of dishonor and protest are expressly waived.

  

			
	USPOLY COMPANY
		
	By:	 	 /s/ Frank Bailor

	 Its:
	 	 President



  

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