EXHIBIT 10.1
SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AND SECURITY AGREEMENT
This Second Amendment to Fourth Amended and Restated Revolving Credit
and Security Agreement (the "Amendment") is made this 5th day of March, 2003, by
and among WinCup Holdings, Inc., Radnor Chemical Corporation, StyroChem U.S.,
Ltd., Radnor Holdings Corporation, Radnor Delaware II, Inc., StyroChem Delaware,
Inc., WinCup Texas, Ltd., StyroChem GP, L.L.C., StyroChem LP, L.L.C., WinCup GP,
L.L.C., and WinCup LP, L.L.C. (each individually a "Borrower" and collectively,
"Borrowers"), and PNC Bank, National Association ("PNC"), as Lead Arranger and
Administrative Agent (defined below), Fleet Capital Corporation ("Fleet"), as
Documentation Agent (defined below) and Lenders (defined below).
BACKGROUND
A. On December 26, 2001, Borrowers, the financial institutions which
are now or which hereafter become a party hereto (individually, a "Lender" and
collectively, the "Lenders"), and PNC, as agent for Lenders (PNC in such
capacity, the "Agent") entered into a certain Fourth Amended and Restated
Revolving Credit and Security Agreement (as amended, modified, renewed,
extended, replaced or substituted from time to time, the "Loan Agreement") to
reflect certain financing arrangements between the parties thereto. The Loan
Agreement and all other documents executed in connection therewith are
collectively referred to as the "Existing Financing Agreements." All capitalized
terms not otherwise defined herein shall have the meaning ascribed thereto in
the Loan Agreement. In the case of a direct conflict between the provisions of
the Loan Agreement and the provisions of this Amendment, the provisions hereof
shall prevail.
B. Borrowers and Agent modified certain definitions, terms and
conditions contained in the Loan Agreement pursuant to that (i) certain First
Amendment to Revolving Credit and Security Agreement dated February 4, 2002 to
facilitate the execution of a Commitment Transfer Supplement by and between
Lenders and Fleet Capital Corporation and (ii) certain Letter Agreement, dated
as of March 21, 2002, among Borrowers, Agent and Lenders.
C. The Borrowers have requested and the Agent has agreed to modify
certain definitions, terms and conditions in the Loan Agreement to increase the
credit facilities provided therein.
D. The parties have agreed, subject to the terms and conditions of
this Amendment, to modify and amend the Existing Financing Agreements.
NOW THEREFORE, with the foregoing background hereinafter deemed
incorporated by reference herein and made part hereof, the parties hereto,
intending to be legally bound, promise and agree as follows:
1. The title page of the Loan Agreement and the Preamble shall be amended
to read "Fourth Amended and Restated Revolving Credit, Term Loan and Security
Agreement."
2. As of the effective date of this Amendment, Fleet is hereby appointed
as Documentation Agent ("Documentation Agent") and PNC, in addition to its
appointment as an Agent is additionally appointed as Lead Arranger and
Administrative Agent ("Lead Arranger and Administrative Agent") under the terms
of the Existing Financing Agreements.
3. Section I of the Loan Agreement shall be amended as follows:
(a) There shall be added to Section I of the Loan Agreement the
following definitions:
"Excess Cash Flow" shall mean for any fiscal period, EBITDA of
Radnor on a Consolidated Basis for such fiscal period, minus
non-financed capital expenditures made by Radnor on a
Consolidated Basis during such fiscal period, minus taxes paid in
cash by Radnor on a Consolidated Basis during such fiscal period,
minus interest paid in cash by Radnor on a Consolidated Basis
during such fiscal period, minus scheduled principal payments
made by Radnor on a Consolidated Basis for Indebtedness of Radnor
on a Consolidated Basis during such fiscal period, plus decreases
in working capital of Radnor on a Consolidated Basis for such
fiscal period, minus increases in working capital of Radnor on a
Consolidated Basis during such fiscal period.
"Funded Debt to EBITDA Ratio" shall mean with respect to such
fiscal period the ratio of (a) all Indebtedness for Borrowed
Money (less cash on hand) to (b) EBITDA.
"Funding Date" shall mean the date on which the conditions
precedent specified in Sections 14 and 15 of this Amendment have
been satisfied.
"Maximum Revolving Advance Amount" shall mean Forty Five Million
Dollars ($45,000,000).
"Mortgage" shall mean those mortgages on the Mortgaged Properties
securing the original principal amount of Forty Five Million
Dollars ($45,000,000) together with all extensions, renewals,
amendments, supplements, modifications, substitutions and
replacements thereto and thereof.
"Mortgaged Properties" shall mean that certain real property
owned by WinCup Holdings, Inc. generally known as 0000 Xxxxxxxxx
Xxxx, 0000 Xxxxxxxxx Xxxx and 0000 Xxxxxxxxx Xxxx, Xxxx Xxxxxxx,
Xxxxxxxx and that certain real property owned by WinCup Holdings,
Inc. generally known as 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx,
each as more particularly described in the Mortgages.
2
"New M&E Appraisal" shall mean that certain orderly liquidation
value appraisal dated as of January 29, 2003 prepared by Plastic
Asset Solutions.
"New Real Property Appraisals" shall mean those certain fair
market value appraisals currently being prepared by Xxxxxxx &
Wakefield and Xxxxxx Valuation Group for each of the Mortgaged
Properties.
"OLV of Unencumbered M&E" shall mean the appraised orderly
liquidation value of certain of Borrowers' Equipment as listed in
the New M&E Appraisal, which is not encumbered by a Lien (other
than a Permitted Encumbrance) as determined in accordance with
the New M&E Appraisal.
"Term Loan" shall mean the Advances made pursuant to Section 2.4
hereof.
"Term Loan Rate" shall mean an interest rate per annum equal to
(a) the sum of the Alternate Base Rate plus twenty-five (25)
basis points, with respect to Domestic Rate Loans, and (b) the
sum of the Eurodollar Rate plus the Applicable Margin with
respect to Eurodollar Rate Loans.
"Term Note" shall mean, collectively, the promissory notes
described in Section 2.4 hereof.
(b) The following definitions shall be deleted in their entirety and
replaced as follows:
"Advances" shall mean and include the Revolving Advances, Letters
of Credit as well as the Term Loan.
"Applicable Margin" for any period shall be determined by the
Fixed Charge Coverage Ratio of Radnor on a Consolidated Basis
calculated for the most recent fiscal quarter with respect to the
four fiscal quarters then ended which shall be increased or
decreased from time to time, as the case may be, so long as no
Default or Event of Default shall have occurred and be
continuing, as of the first day of each fiscal quarter following
the fiscal quarter reported upon in the financial statements
delivered pursuant to Sections 9.7 and 9.8 hereof. The Applicable
Margin with respect to Eurodollar Rate Loans shall be the
percentage set forth below as corresponds to the applicable ratio
set forth below:
3
Revolving
Advances Term Loan
Eurodollar Eurodollar
Fixed Charge Coverage Ratio Rate Margin Rate Margin
--------------------------- ----------- -----------
Less than 1.5:1 2.50% 2.75%
1.50:1 to 1.74:1 2.25% 2.50%
1.75:1 or greater 2.00% 2.25%
In the event of a Default or Event of Default hereunder, the Applicable
Margin shall be (a) 2.50% with respect to Revolving Advances and (b) 2.75% with
respect to the Term Loan.
"Collateral" shall mean and include:
(a) all Receivables;
(b) all Equipment (excluding Equipment as set forth in
Schedule 1.1);
(c) all General Intangibles;
(d) all Inventory;
(e) all Investment Property (excluding the stock or other
ownership interests of any Subsidiary of Radnor or any other
Borrower);
(f) all Mortgaged Properties;
(g) all of each Borrower's right, title and interest in and
to (i) its respective goods and other property including,
but not limited to, all merchandise returned or rejected by
Customers, relating to or securing any of the Receivables;
(ii) all of each Borrower's rights as a consignor, a
consignee, an unpaid vendor, mechanic, artisan, or other
lienor, including stoppage in transit, setoff, detinue,
replevin, reclamation and repurchase; (iii) all additional
amounts due to any Borrower from any Customer relating to
the Receivables; (iv) other property, including warranty
claims, relating to any goods securing this Agreement; (v)
all of each Borrower's contract rights, rights of payment
which have been earned under a contract right, instruments
(including promissory notes), documents, chattel paper
(including electronic chattel paper), warehouse receipts,
deposit accounts, letters of credit, and money; (vi) all
commercial tort claims (whether now existing or hereafter
arising); and (vii) if and when obtained by any Borrower,
all real and personal property of third parties in which
such
4
Borrower has been granted a lien or security interest as
security for the payment or enforcement of Receivables;
(h) all of each Borrower's ledger sheets, ledger cards,
files, correspondence, records, books of account, business
papers, computers, computer software (owned by any Borrower
or in which it has an interest), computer programs, tapes,
disks and documents relating to (a), (b), (c), (d), (e), (f)
or (g) of this Paragraph; and
(i) all proceeds and products of (a), (b), (c), (d), (e),
(f), (g) or (h) in whatever form, including, but not limited
to: cash, deposit accounts (whether or not comprised solely
of proceeds), certificates of deposit, insurance proceeds
(including hazard, flood and credit insurance), negotiable
instruments and other instruments for the payment of money,
chattel paper, security agreements, documents, eminent
domain proceeds, condemnation proceeds and tort claim
proceeds.
"Contract Rate" shall mean, as applicable, the Revolving Interest
Rate or the Term Loan Rate.
"Fixed Charge Coverage Ratio" for any period shall mean with
respect to any fiscal period the ratio of (a) EBITDA minus
unfinanced capital expenditures and all distributions and
dividends made during such period to (b) all Debt Payments made
during such period.
"Maximum Loan Amount" shall mean Ninety Million Dollars
($90,000,000) less repayments of the Term Loan.
"Note" shall mean, collectively, the Revolving Credit Note and
the Term Note.
"Revolving Advances" shall mean Advances made other than Letters
of Credit and the Term Loan.
"Revolving Interest Rate" shall mean an interest rate per annum
equal to (a) the Alternate Base Rate with respect to Domestic
Rate Loans and (b) the Eurodollar Rate plus the Applicable Margin
with respect to Eurodollar Rate Loans.
"Senior Notes and Second Senior Notes" shall mean, until closing
and funding occurs under the Bond Refinancing (as defined below),
the 10% Senior Notes due 2003 and the 10% Series B Senior Notes
due 2003 issued by Radnor pursuant to the Indenture and Second
Indenture, respectively; and at any time after the closing and
funding of the Bond Refinancing, shall collectively mean the
notes due under the Bond Refinancing documents issued by Radnor
pursuant to the indenture and
5
any notes issued in exchange or substitution therefor.
"Term" shall mean the Effective Date through March 4, 2008.
"Undrawn Availability" at a particular date shall mean an amount
equal to (a) the lesser of (i) the Formula Amount or (ii) the
Maximum Revolving Advance Amount, minus (b) the sum of (i) the
outstanding amount of Advances (other than the Term Loan), plus
(ii) all amounts due and owing to Borrowers' trade creditors
which are outstanding more than sixty (60) days beyond normal
trade terms, plus (iii) fees and expenses for which Borrowers are
liable hereunder but which have not been paid or charged to
Borrowers' Account.
4. Section II of the Loan Agreement shall be amended as follows:
(a) Section 2.1(a) shall be deleted in its entirety and replaced as
follows:
2.1 Revolving Advances.
(a) Subject to the terms and conditions set forth in this
Agreement, including, without limitation, Section 2.1(b),
each Lender, severally and not jointly, agrees to make
Revolving Advances to Borrowers in accordance with the
procedures provided for herein in an aggregate amount
outstanding at any time not greater than such Lender's
Commitment Percentage of the Borrowing Base (as defined
below) minus the undrawn or unreimbursed amount of
outstanding Letters of Credit unless Borrowers have
deposited with Agent cash collateral in such amounts and in
accordance with Section 3.2. For purposes hereof, "Borrowing
Base" shall mean the lesser of (x) the Maximum Revolving
Advance Amount or (y) the sum of:
(i) up to 85%, subject to the provisions of Section 2.1(b)
hereof ("Receivables Advance Rate"), of Eligible
Receivables, plus
(ii) the lesser of (x) $1,000,000 or (y) up to 85%, subject
to the provisions of 2.1(b) hereof ("Canadian Receivables
Advance Rate"), of Eligible Canadian Receivables, plus
(iii) the lesser of (x) $25,000,000 or (y) up to 60%,
subject to the provisions of Section 2.1(b) hereof
("Inventory Advance Rate"), of Eligible Inventory of
Borrowers (the Receivables Advance Rate, the Canadian
Receivables Advance Rate and the Inventory Advance Rate
shall be referred to, collectively, as the "Advance Rates"),
minus
(iv) such reserves as Agent may, in a commercially
reasonable manner, reasonably deem proper and necessary.
6
The amount derived from the sum of Sections 2.1(a)(y)(i),
(ii) and (iii) minus (iv) at any time and from time to time
shall be referred to as the "Formula Amount". The Revolving
Advances shall be evidenced by one or more secured
promissory notes (collectively, the "Revolving Credit
Note") substantially in the form attached hereto as Exhibit
2.1(a).
(b) Section 2.4 shall be deleted in its entirety and replaced
as follows:
2.4 Term Loan. Subject to the terms and conditions of this
Agreement, each Lender, severally and not jointly, will
make a Term Loan to Borrowers in the sum equal to such
Lender's Commitment Percentage of Forty Five Million and
00/100 Dollars ($45,000,000), which is approximately equal
to the sum of (i) 80% of the OLV of Unencumbered M&E plus
(ii) 70% of the value of the Mortgaged Properties based on
the New Real Property Appraisals. The Term Loan shall be
advanced on the Funding Date and shall be, with respect to
principal, payable commencing on June 1, 2003 and
continuing on the first day of each September, December,
March and June thereafter as follows, subject to
acceleration upon the occurrence of an Event of Default
under this Agreement or termination of this Agreement: (a)
eight (8) consecutive quarterly payments each in the amount
of One Million One Hundred Twenty Five Thousand and 00/100
Dollars ($1,125,000) followed by; (b) four (4) consecutive
quarterly payments each in the amount of One Million Six
Hundred Eighty Seven Thousand Five Hundred and 00/100
Dollars ($1,687,500) followed by; (c) seven (7) consecutive
quarterly payments each in the amount of Two Million Two
Hundred Fifty Thousand and 00/100 Dollars ($2,250,000)
followed by; (d) a final payment of all outstanding
principal and interest on the Term Loan plus all fees and
expenses then due and owing at the expiration of the Term,
and shall be evidenced by one or more secured promissory
notes (collectively, the "Term Note") in substantially the
form attached hereto as Exhibit 2.4.
(c) Section 2.5 shall be deleted in its entirety and replaced
as follows:
2.5 Maximum Advances. The aggregate balance of Revolving
Advances outstanding at any time shall not exceed the
lesser of (a) the Maximum Revolving Advance Amount less
outstanding Letters of Credit or (b) the Formula Amount
less outstanding Letters of Credit.
(d) Section 2.6 (a) shall be deleted in its entirety and
replaced as follows:
(a) The Revolving Advances shall be due and payable in
full on the last day of the Term subject to earlier
prepayment as herein provided. The Term Loan shall be due
and payable as provided in Section 2.4 hereof and in the
Term Note, subject to mandatory prepayments as herein
provided.
7
(e) The reference in 2.9(b) to "$5,000,000" shall be amended to
read "$6,000,000".
(f) Section 2.13(a) shall be amended by adding the following
sentence:
"The Term Loan shall be advanced according to the
Commitment Percentages of the Lenders."
(g) Section 2.13(b) shall be amended by adding the following
sentence after the first full sentence:
"Each payment (including each prepayment) by Borrowers on
account of the principal of and interest on the Term Note,
shall be applied to, that portion of the Term Loan
evidenced by the Term Note pro rata according to the
Commitment Percentages of the Lenders."
(h) Section 2.14 shall be deleted in its entirety and replaced
as follows:
2.14 Mandatory Prepayments.
(a) To the extent required by Section 4.3 hereof, when any
Borrower sells or otherwise disposes of any Collateral
other than Inventory in the ordinary course of business,
Borrowers shall repay the Advances in an amount equal to
the net proceeds of such sale (i.e., gross proceeds less
taxes arising from such sale and the reasonable costs of
such sales or other dispositions), such repayments to be
made promptly but in no event more than one (1) Business
Day following receipt of such net proceeds, and until the
date of payment, such proceeds shall be held in trust for
Agent. The foregoing shall not be deemed to be implied
consent to any such sale otherwise prohibited by the terms
and conditions hereof. Such repayments shall be applied (x)
first, to the outstanding principal installments of the
Term Loan in the inverse order of the maturities thereof
and (y) second, to the remaining Advances in such order as
Agent may determine, subject to Borrower's ability to
reborrow Revolving Advances in accordance with the terms
hereof.
(b) Borrowers shall prepay the outstanding amount of the
Advances in an amount equal to thirty three percent (33%)
of Excess Cash Flow for each fiscal year (not to exceed in
any given fiscal year an amount equal to the greater of (i)
$4,500,000 or (ii) the scheduled principal amount amortized
on account of the Term Loan for that year), payable upon
delivery of the financial statements to Agent referred to
in and required by Section 9.7 for such fiscal year but in
any event not later than one hundred twenty (120) days
after the end of each such fiscal year, which amount shall
be applied to the outstanding principal installments of the
Term Loan in the inverse order of the maturities thereof;
provided however, Borrowers' requirement to make the Excess
Cash Flow payments hereunder shall cease when the
outstanding principal amount due under the Term Loan falls
below Thirty
8
Million Dollars ($30,000,000). In the event that the
financial statement referenced herein is not so delivered,
then a calculation based upon estimated amounts shall be
made by Agent upon which calculation Borrowers shall make
the prepayment required by this Section 2.14(b), subject to
adjustment when the financial statement is delivered to
Agent as required hereby. The calculation made by Agent
shall not be deemed a waiver of any rights Agent or Lenders
may have as a result of the failure by Borrowers to deliver
such financial statement.
5. Section III of the Loan Agreement shall be amended as follows:
(a) Section 3.1 of the Loan Agreement shall be deleted in its
entirety and replaced as follows:
3.1 Interest. Interest on Advances shall be payable in
arrears on the first day of each month with respect to
Domestic Rate Loans and, with respect to Eurodollar Rate
Loans, at the end of each Interest Period or, for
Eurodollar Rate Loans with an Interest Period in excess of
three months, at the earlier of (a) each three months on
the anniversary date of the commencement of such Eurodollar
Rate Loan or (b) the end of the Interest Period. Interest
charges shall be computed on the actual principal amount of
Advances outstanding during the month (the "Monthly
Advances") at a rate per annum equal to (i) with respect to
Revolving Advances, the applicable Revolving Interest Rate
and (ii) with respect to the Term Loan, the applicable Term
Loan Rate (as applicable, the "Contract Rate"). Whenever,
subsequent to the date of this Agreement, the Alternate
Base Rate is increased or decreased, the applicable
Contract Rate shall be similarly changed without notice or
demand of any kind by an amount equal to the amount of such
change in the Alternate Base Rate during the time such
change or changes remain in effect. The Eurodollar Rate
shall be adjusted with respect to Eurodollar Rate Loans
without notice or demand of any kind on the effective date
of any change in the Reserve Percentage as of such
effective date. Upon and after the occurrence of an Event
of Default, and during the continuation thereof, (i) the
Obligations other than Eurodollar Rate Loans shall bear
interest at the applicable Contract Rate for Domestic Rate
Loans plus two percent (2%) per annum and (ii) Eurodollar
Rate Loans shall bear interest at the applicable Contract
Rate for Eurodollar Rate Loans plus two (2%) percent per
annum as applicable (as applicable, the "Default Rate").
(b) Section 3.2 (i) shall be deleted in its entirety and
replaced as follows:
(i) for the ratable benefit of Lenders for issuing or
causing the issuance of a standby letter of credit, a fee
computed at a per annum rate equal to two percent (2%) on
the outstanding amount thereof from time to time.
9
(c) Section 3.3 shall be deleted in its entirety and replaced
as follows:
3.3 Fees.
(a) Facility Fee. If, for any month during the Term, the
average daily unpaid balance of the Revolving Advances plus
outstanding Letters of Credit for each day of such month
does not equal the Maximum Revolving Advance Amount, then
Borrowers shall pay to Agent for the ratable benefit of
Lenders a fee at a rate equal to three eighths of one
percent (.375%) per annum on the amount by which the
Maximum Revolving Advance Amount exceeds such average daily
unpaid balance. Such fee shall be payable to Agent in
arrears on the last day of each month.
6. Section 4.3 of the Loan Agreement shall be deleted in its
entirety and replaced with the following:
4.3. Disposition of Collateral. Each Borrower will
safeguard and protect all Collateral granted by such
Borrower for Agent's general account and make no
disposition thereof whether by sale, lease or otherwise
except the sale of (i) Inventory in the ordinary course of
business; (ii) Equipment which is obsolete or not used or
useful in the business of Borrowers not to exceed Two
Hundred Fifty Thousand Dollars ($250,000) in the aggregate
in any fiscal year; (iii) Equipment which is replaced by
Equipment of comparable or superior quality and becomes
subject to a Lien in favor of Agent subject only to
Permitted Encumbrances; or (iv) the proceeds of which are
remitted to Agent to be applied pursuant to Section 2.14.
7. Section VI of the Loan Agreement shall be amended as follows:
(a) Section 6.5 of the Loan Agreement shall be deleted in its
entirety and replaced as follows:
6.5. Fixed Charge Coverage Ratio for Radnor on a
Consolidated Basis. Cause to be maintained a Fixed Charge
Coverage Ratio for Radnor on a Consolidated Basis to be
equal to or greater than 1.05 to 1.00 as at the end of each
fiscal quarter for the most recent four fiscal quarters
then ended, beginning on the date hereof and continuing
through fiscal quarter ending December 31, 2003, and for
each fiscal quarter thereafter cause to be maintained a
Fixed Charge Coverage Ratio for Radnor on a Consolidated
Basis to be equal to or greater than 1.15 to 1.00,
calculated based on the most recent four fiscal quarters
then ended.
(b) Section 6.6 shall be deleted in its entirety and replaced
as follows:
6.6. Funded Debt to EBITDA Ratio. Cause to be maintained a
Funded Debt to EBITDA Ratio for Radnor on a Consolidated
Basis to be calculated based on the most recent four fiscal
quarters then ended not
10
greater than the amounts set forth below for the periods
set forth below:
Period Funded Debt to
EBITDA Ratio
At closing and each quarter end
through March 31, 2004 5.00 to 1;
June 30, 2004 and each quarter end
through December 31, 2004 4.50 to 1;
March 31, 2005 and each quarter end
through September 30, 2005 4.25 to 1; and
December 31, 2005 and each quarter end
thereafter 3.75 to 1.
8. Section VII of the Loan Agreement shall be amended as follows:
(a) The reference to "$12,000,000" contained in Section 7.6
shall be amended to read "$13,000,000"; and
(b) Section 7.8(iii) shall be deleted in its entirety and
replaced as follows:
Indebtedness due under the Senior Notes and the Second
Senior Notes, the related indentures and/or guaranties in
respect of the Senior Notes and the Second Senior Notes.
9. The reference to "ninety (90) days" contained in the first
sentence of Section 9.7 shall be amended to read "one hundred twenty (120)
days".
10. The reference to "$300,000" contained in Section 10.6 shall be
amended to read "$500,000".
11. Section 13.1 of the Loan Agreement shall be deleted in its
entirety and replaced as follows:
13.1. Term. This Agreement, which shall inure to the benefit of
and shall be binding upon the respective successors and permitted
assigns of each Borrower, Agent and each Lender, shall become
effective on the date hereof and shall continue in full force and
effect until the last day of the Term unless sooner terminated as
herein provided. Borrowers may terminate this Agreement at any
time upon fifteen (15) days' prior written notice upon payment in
full of the Obligations. In the event the Obligations are prepaid
in full prior to the first anniversary of the Closing Date,
Borrowers shall pay to Agent for the benefit of Lenders an early
termination fee in an amount equal to 1% of the Maximum Revolving
Advance Amount plus 1% the outstanding principal balance due
under the Term Loan. Borrowers may prepay the Term Loan in part
at any time or from time to time without penalty.
11
12. The following section 14.11 is hereby added to the Loan Agreement
and shall read as follows:
14.11 Other Agents. The Documentation Agent and the Lead Arranger
are named for recognition purposes only, and in their respective
capacities as such shall have no powers, duties responsibilities
or liabilities with respect to this Amendment or the Existing
Financing Agreements, it being understood that the Documentation
Agent and the Lead Arranger shall be entitled to all
indemnification and reimbursement rights in favor of "Agent".
Without limitation of the foregoing, neither the Documentation
Agent nor the Lead Arranger shall, solely by reason of this
Amendment or the Existing Financing Agreements, have any
fiduciary relationship in respect of any Lender or any other
Person.
13. Representations and Warranties. Each Borrower hereby:
(a) reaffirms all representations and warranties made to Agent
and Lenders under the Agreement and all of the other Existing Financing
Agreements and confirms that all are true and correct as of the date hereof;
(b) reaffirms all of the covenants contained in the Agreement
and covenants to abide thereby until all Advances, Obligations and other
liabilities of Borrowers to Agent and Lenders, of whatever nature and whenever
incurred, are satisfied and/or released by Agent and Lenders;
(c) represents and warrants that no Default or Event of Default
has occurred and is continuing under any of the Existing Financing Agreements;
(d) represents and warrants that it has the authority and legal
right to execute, deliver and carry out the terms of this Amendment, that such
actions were duly authorized by all necessary corporate action and that the
officers executing this Amendment on its behalf were similarly authorized and
empowered, and that this Amendment does not contravene any provisions of its
Articles of Incorporation and By-laws or of any contract or agreement to which
it is a party or by which any of its properties are bound; and
(e) represents and warrants that this Amendment and all
assignments, instruments, documents, and agreements executed and delivered in
connection herewith, are valid, binding and enforceable in accordance with their
respective terms.
14. Conditions Precedent/Effectiveness Conditions. This Amendment
shall be effective upon satisfaction of the conditions set forth in Section 15
below as well as completion of the following conditions precedent (all documents
to be in form and substance satisfactory to Agent and Agent's counsel):
(a) Agent shall have received fully paid mortgagee title
insurance policies (or binding commitments to issue title insurance policies,
marked to Agent's satisfaction to evidence
12
the form of such policies to be delivered with respect to each Mortgage), in
standard ALTA form, issued by a title insurance company satisfactory to Agent,
each in an amount equal to not less than the fair market value of the Mortgaged
Properties subject to the Mortgage, insuring the Mortgages create a valid Lien
on the Mortgaged Properties with no exceptions which Agent shall not have
approved in writing and no survey exceptions;
(b) Borrowers shall demonstrate, after giving effect to the
Advances hereunder, Undrawn Availability of at least $8,000,000;
(c) The receipt by Agent of each Lender's Commitment Percentage
of the Revolving Advances and the Term Loan (in an aggregate amount equal to
Fifty Million Dollars ($50,000,000)) pursuant to those certain commitments
received from the additional lenders; and
(d) Agent shall have received all fees which are payable to
Agent or to the Lenders as required by the Loan Agreement, this Amendment or any
fee letter entered into by Borrowers and Agent.
In addition, failure to provide Agent, within ninety (90) days of the
date of this Amendment, executed landlord waivers and mortgagee waivers from
each landlord and/or mortgagee of Borrowers, each in form and substance
satisfactory to Agent and its counsel, shall be an Event of Default under the
Loan Agreement and Agent may waive such an Event of Default only with the
consent of Lenders holding one hundred percent (100%) of the Advances, or if no
Advances are outstanding one hundred percent (100%) of the Commitment
Percentages.
15. Additional Effectiveness Condition. Notwithstanding satisfaction
of the conditions set forth in Section 14 above, this Amendment shall not become
effective, and funding hereunder shall not occur, until (i) Borrowers have
successfully completed a high-yield debt offering for the issuance of
$135,000,000 of new notes on terms and conditions substantially in accordance
with the preliminary offering memorandum dated February 19, 2003; and (ii)
Borrowers have received the net proceeds from the issuance of new notes in
connection with such high-yield debt offering (such clause (i) and clause (ii),
collectively, the "Bond Refinancing"). In the event the Borrowers do not
successfully complete such high-yield debt offering, or Borrowers do not receive
the net proceeds due to Borrowers in connection with the Bond Refinancing within
twenty (20) days of the date of this Amendment, this Amendment shall be void and
of no effect."
16. Further Assurances and Affirmative Covenant. Each Borrower hereby
agrees to take all such actions and to execute and/or deliver to Agent and
Lenders all such documents, assignments, financing statements and other
documents, as Agent and Lenders may reasonably require from time to time, to
effectuate and implement the purposes of this Amendment.
17. Payment of Expenses. Borrowers shall pay or reimburse Agent and
Lenders for its reasonable attorneys' fees and expenses in connection with the
preparation, negotiation and execution of this Amendment and the documents
provided for herein or related hereto.
18. Reaffirmation of Loan Agreement. Except as modified by the terms
hereof, all of the terms and conditions of the Loan Agreement, as amended, and
all other of the Existing
13
Financing Agreements are hereby reaffirmed and shall continue in full force and
effect as therein written.
19. Miscellaneous.
(a) Third Party Rights. No rights are intended to be created
hereunder for the benefit of any third party donee, creditor, or incidental
beneficiary.
(b) Headings. The headings of any paragraph of this Amendment
are for convenience only and shall not be used to interpret any provision
hereof.
(c) Modifications. No modification hereof or any agreement
referred to herein shall be binding or enforceable unless in writing and signed
on behalf of the party against whom enforcement is sought.
(d) Governing Law. The terms and conditions of this Amendment
shall be governed by the laws of the Commonwealth of Pennsylvania.
(e) Counterparts. This Amendment may be executed in any number
of counterparts and by facsimile, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.
[Signatures begin on following pages]
14
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date first
above written.
WINCUP HOLDINGS, INC.
By: /s/ X. Xxxxxxxxx Xxxxxxxx
-------------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
RADNOR CHEMICAL CORPORATION
By: /s/ X. Xxxxxxxxx Xxxxxxxx
-------------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
STYROCHEM U.S., LTD.
By: StyroChem GP, LLC, its General Partner
By: Radnor Chemical Corporation, its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx
-------------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
RADNOR HOLDINGS CORPORATION
By: /s/ X. Xxxxxxxxx Xxxxxxxx
-------------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
RADNOR DELAWARE II, INC.
By: /s/ X. Xxxxxxxxx Xxxxxxxx
-------------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
STYROCHEM DELAWARE, INC.
By: /s/ X. Xxxxxxxxx Xxxxxxxx
-------------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
Signature Page 1 of 4
WINCUP TEXAS, LTD.
By: WinCup GP, LLC, its General Partner
By: WinCup Holdings, Inc., its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx
-------------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
STYROCHEM GP, L.L.C.
By: Radnor Chemical Corporation, its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx
-------------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
STYROCHEM LP, L.L.C.
By: Radnor Chemical Corporation, its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx
-------------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
WINCUP GP, L.L.C.
By: WinCup Holdings, Inc. its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx
-------------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
WINCUP LP, L.L.C.
By: WinCup Holdings, Inc. its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx
-------------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
Signature Page 2 of 4
Agents:
PNC BANK, NATIONAL ASSOCIATION,
as Agent
By: /s/ Xxxxxx Xxxxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
------------------------------------
Title: Senior Vice President
-----------------------------------
PNC BANK, NATIONAL ASSOCIATION,
as Lead Arranger and Administrative Agent
By: /s/ Xxxxxx Xxxxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
------------------------------------
Title: Senior Vice President
-----------------------------------
FLEET CAPITAL CORPORATION,
as Documentation Agent
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Lenders:
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ Xxxxxx Xxxxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
------------------------------------
Title: Senior Vice President
-----------------------------------
Commitment Percentage: 44.444%
Signature Page 3 of 4
FLEET CAPITAL CORPORATION, as Lender
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
Commitment Percentage: 27.777%
LASALLE BUSINESS CREDIT, LLC,
as Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
Commitment Percentage: 27.777%
Signature Page 4 of 4
[SCHEDULES AND EXHIBITS OMITTED]
