EXHIBIT 10.26
SIXTH AMENDMENT TO FOURTH AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
--------------------------------------------------
This Sixth Amendment to Fourth Amended and Restated Revolving Credit,
Term Loan and Security Agreement (the "Amendment") is made this 17/th/ day of
November, 2003, by and among WinCup Holdings, Inc. ("WinCup"), 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
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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, Agent and Lenders 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, (ii) certain Letter
Agreement, dated as of March 21, 2002, among Borrowers, Agent and Lenders, (iii)
certain Second Amendment to Revolving Credit, Term Loan and Security Agreement
dated March 5, 2003, (iv) certain Third Amendment to Revolving Credit, Term Loan
and Security Agreement dated August 1, 2003, (v) certain Fourth Amendment to
Revolving Credit, Term Loan and Security Agreement dated September 12, 2003 and
(vi) certain Fifth Amendment to Revolving Credit, Term Loan and Security
Agreement dated October 27, 2003.
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.
074658.01156/30240935v5
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. 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:
"$50,500,000 Prepayment" shall mean a $50,500,000 prepayment of
which $18,000,000 shall be applied to the Term Loans applied
first to the First Supplemental Term Loan and then to the
outstanding principal installments of the Term Loan in the
inverse order of the maturities thereof, and $32,500,000 of which
shall be applied to the outstanding balance of Revolving
Advances.
"$58,500,000 Prepayment" shall mean a $58,500,000 prepayment of
which $26,000,000 shall be applied to the Term Loans applied
first to the First Supplemental Term Loan and then to the
outstanding principal installments of the Term Loan in the
inverse order of the maturities thereof, and $32,500,000 of which
shall be applied to the outstanding balance of Revolving
Advances.
"Acquisition Agreement" shall mean the Asset Purchase Agreement
including all exhibits and schedules thereto dated as of November
10, 2003 among Polar Plastics Inc., a Delaware corporation and
Polar Plastics (NC) Inc., a North Carolina corporation
(collectively, "Seller") as seller and Wincup Holdings, Inc., as
buyer.
"First Supplemental Term Loan" shall mean the Advances made
pursuant to Section 2.4.1 hereof.
"First Supplemental Term Loan Maturity Date" shall mean December
1, 2004.
"First Supplemental Term Loan Note" shall have the meaning set
forth in Section 2.4.1 hereof.
"Gross Proceeds" shall mean the gross cash proceeds received in
connection with a Qualified IPO.
"Polar M&E Appraisal" shall mean that certain orderly liquidation
value appraisal dated as of November 12, 2003 prepared by Plastic
Asset Solutions.
"Qualified IPO" means a bona fide underwritten sale to the public
of Radnor's common stock pursuant to a registration statement
(other than on
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Form S-8 or any other form relating to securities issuable under
any benefit plan of Radnor or any of its Subsidiaries) that is
declared effective by the SEC.
"Term Loans" shall mean collectively, the Term Loan and the First
Supplemental Term Loan.
(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 Loans.
"Applicable Margin" for any period shall be determined by (i)
whether a prepayment has been made and (ii) 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 except calculated for the quarters ended
September 30, 2003, December 31, 2003 and March 31, 2004 as set
forth in Section 6.5 hereof, 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:
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Post $50,500,000 Post $58,500,000
Current Pricing Prepayment Prepayment
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Revolving Term Revolving Term Revolving Term
Fixed Advances Loan Advances Loan Advances Loan
Charge Eurodollar Eurodollar Eurodollar Eurodollar Eurodollar Eurodollar
Coverage Rate Rate Rate Rate Rate Rate
Ratio Margin Margin Margin Margin Margin Margin
--------- ---------- ---------- ---------- ---------- ---------- ----------
Less than 3.00% 3.25% 2.75% 3.00% 2.50% 2.75%
1.15:1
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1.15:1 to 2.75% 3.00% 2.50% 2.75% 2.25% 2.50%
less than
1.50:1
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1.50:1 to 2.50% 2.75% 2.25% 2.50% 2.00% 2.25%
less than
1.75:1
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1.75:1 or 2.25% 2.50% 2.00% 2.25% 1.75% 2.00%
greater
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In the event of a Default or Event of Default hereunder, the
Applicable Margin shall be consistent with a Fixed Charge
Coverage Ratio of 1.15 to 1 as shown above.
"Debt Payments" shall mean and include all cash actually expended
to make (a) total interest payments on any Indebtedness, plus,
(b) principal payments on all Indebtedness, plus, (c) taxes
actually paid and not accrued.
"EBITDA" shall mean Net Income plus interest expense, taxes,
depreciation and amortization deducted in calculating Net Income
for such period, determined in accordance with GAAP, excluding
any gain or loss resulting from foreign currency translation
adjustments. For purposes of determining EBITDA for all covenant
calculations through September 30, 2004, EBITDA may include
pro-forma results relating to the U.S. domestic assets acquired
from Seller (which may also include adjustments related to
Borrowers' synergies resulting from assets acquired from Seller
provided that such adjustments are documented pursuant to
documentation satisfactory to Agent and Lenders, in their sole
discretion).
"Maximum Revolving Advance Amount" shall mean Fifty Five Million
Dollars ($55,000,000) minus the total outstanding principal
balance of the First Supplemental Term Loan.
"Note" shall mean, collectively, the Revolving Credit Note, the
Term Note and the First Supplemental Term Loan Note.
"Term Loan Rate" shall mean an interest rate per annum equal to
(a) subject to Section 3.1(b), 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.
2. 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
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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) $30,000,000 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"),
plus
(iv) the Stone Mountain Availability, minus
(v) such reserves as Agent may, in a commercially
reasonable manner, reasonably deem proper and necessary.
The amount derived from the sum of Sections 2.1(a)(y)(i), (ii),
(iii) and (iv) minus (v) 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 2.1(b) shall be deleted in its entirety and replaced as
follows:
(b) Discretionary Rights. The Advance Rates may only be
increased or decreased by the Agent with the consent of all
Lenders, at any time and from time to time in the exercise of
their reasonable discretion. Agent shall have the right, in its
sole discretion, to institute reserves hereunder; provided
however, that Agent may not release any reserves so established
without the consent of all Lenders. Borrowers consent to any such
increases or decreases and acknowledge that decreasing the
Advance Rates or increasing the reserves may limit or restrict
Advances requested by any Borrower.
(c) A new Section 2.4.1 shall be added to the Loan Agreement as
follows:
2.4.1 First Supplemental Term Loan. Subject to the terms and
conditions of this Agreement, each Lender, severally and not
jointly, will make a term loan ("First Supplemental Term Loan")
to Borrowers in the sum equal to such Lender's Commitment
Percentage of Five Million and 00/100 Dollars ($5,000,000). The
First Supplemental Term Loan shall be
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advanced on the effective date of this Amendment and shall be,
with respect to principal, payable commencing on March 1, 2004
and continuing on June 1, 2004, September 1, 2004 and December 1,
2004 as follows, subject to acceleration upon the occurrence of
an Event of Default under this Agreement or termination of this
Agreement: (a) three (3) consecutive quarterly payments each in
the amount of One Million Two Hundred Fifty Thousand Dollars
($1,250,000) followed by; (b) a final payment of all outstanding
principal and interest on the First Supplemental Term Loan plus
all fees and expenses then due and owing at the First
Supplemental Term Loan Maturity Date, and shall be evidenced by
one or more secured promissory notes (collectively, the "First
Supplemental Term Loan Note") in substantially the form attached
hereto as Exhibit 2.4.1.
(d) Section 2.6 (a) shall be amended by adding the following sentence
at the end:
The First Supplemental Term Loan shall be due and payable as
provided in Section 2.4.1 hereof and in the First Supplemental
Term Loan Note, subject to mandatory prepayments as herein
provided.
(e) Section 2.13(a) shall be amended by adding the following
sentence:
"The First Supplemental Term Loan shall be advanced according to
the Commitment Percentages of the Lenders."
(f) 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 or the First
Supplemental Term Loan Note, shall be applied to, that portion of
the Term Loans evidenced by the Term Note or the First
Supplemental Term Loan Note, pro rata according to the Commitment
Percentages of the Lenders."
(g) Section 2.14 (a) shall be deleted in its entirety and replaced as
follows:
2.14 (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
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First Supplemental Term Loan in the inverse order of the
maturities thereof, (y) second, to the outstanding principal
installments of the Term Loan in the inverse order of the
maturities thereof and (z) third, 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.
(h) A new Section 2.14(c) shall be added to the Loan Agreement as
follows:
2.14(c) Upon completion of a Qualified IPO, Borrowers shall make
a prepayment equal to eighty four percent (84%) of the Gross
Proceeds, the first $18,000,000 of such Gross Proceeds being
applied to the Term Loans and the remainder of such Gross
Proceeds to the outstanding balance of the Revolving Advances.
Amounts applied to the Term Loans shall first be applied to the
First Supplemental Term Loan and then to the outstanding
principal of the Term Loan in the inverse order of maturities
thereof.
3. 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. (a) 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 (i)
each three months on the anniversary date of the commencement of
such Eurodollar Rate Loan or (ii) 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, subject to 3.1(b) below, (x) with
respect to Revolving Advances, the applicable Revolving Interest
Rate and (y) with respect to the Term Loans, 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, (A) 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 (B) Eurodollar Rate Loans shall bear interest at the
applicable Contract Rate for Eurodollar Rate Loans plus two (2%)
percent per annum as
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074658.01156/30240935v5
applicable (as applicable, the "Default Rate").
(b) Upon the Borrowers making of a $50,500,000 Prepayment and
provided that no Default or Event of Default has occurred or is
continuing, interest on all Term Loans that are Domestic Rate
Loans shall be charged at a rate equal to the Alternate Base
Rate.
(b) Section 3.4(a) shall be deleted in its entirety and replaced as
follows:
3.4(a) Intentionally Omitted.
4. Section V of the Loan Agreement shall be amended as follows:
(a) Section 5.17 shall be deleted in its entirety and replaced as
follows:
5.17 Disclosure. No representation or warranty made by any
Borrower in this Agreement, in the Acquisition Agreement, or in
any financial statement, report, certificate or any other
document furnished in connection herewith or therewith contains
any untrue statement of a material fact or omits to state any
material fact necessary to make the statements herein or therein
not misleading.
(b) Section 5.18 shall be deleted in its entirety and replaced as
follows:
5.18. Delivery of Acquisition Agreement. Agent has received
complete copies of the Acquisition Agreement (including all
exhibits, schedules and disclosure letters referred to therein or
delivered pursuant thereto, if any) and all amendments thereto,
waivers relating thereto and other side letters or agreements
affecting the terms thereof. None of such documents and
agreements has been amended or supplemented, nor have any of the
provisions thereof been waived, except pursuant to a written
agreement or instrument which has heretofore been delivered to
Agent.
5. Section VI of the Loan Agreement shall be amended as follows:
(a) Section 6.5 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 calculated at the end of
each fiscal quarter, based on a single quarter for the quarter
ended September 30, 2003, based on two quarters for the quarter
ended December 31, 2003, based on three quarters for the quarter
ended March 31, 2004 and thereafter based on the most recent four
fiscal quarters then ended (for purposes of calculating the Fixed
Charge Coverage Ratio for quarters ending on or before June 30,
2004, the amount of interest expense attributable to the Senior
Notes and the Second Senior Notes shall be equal to one-quarter
of the annual interest expense for each quarter included in the
test period) equal to or greater than the
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amounts set forth below for the periods set forth below:
Period Fixed Charge Coverage Ratio
------ ---------------------------
September 30, 2003 0.75 to 1:
December 31, 2003 1.05 to 1;
March 31, 2004 1.00 to 1;
June 30, 2004 1.10 to 1;
September 30, 2004 1.10 to 1; and
December 31, 2004 and
each quarter thereafter 1.15 to 1.
(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 at the end of each fiscal quarter, based on a single
quarter for the quarter ended September 30, 2003, based on two
quarters for the quarter ended December 31, 2003, based on three
quarters for the quarter ended March 31, 2004 and thereafter
based on the most recent four fiscal quarters then ended (using
an annualized calculation of EBITDA for quarters ending on or
before June 30, 2004) not greater than the amounts set forth
below for the periods set forth below:
Funded Debt to
Period EBITDA Ratio
------ ------------
September 30, 2003 6.75 to 1;
December 31, 2003 5.20 to 1;
March 31, 2004 5.20 to 1;
June 30, 2004 5.10 to 1;
September 30, 2004 and
December 31, 2004 4.50 to 1;
March 31, 2005 and each
quarter through September 30, 2005 4.25 to 1; and
December 31, 2005 and each
quarter thereafter 3.75 to 1.
(c) A new Section 6.12 shall be added to the Loan Agreement as
follows:
6.12. Exercise of Rights. Enforce in a commercially reasonable
manner all of its rights under the Acquisition Agreement and any
agreement executed in connection therewith including, but not
limited to, all indemnification rights and pursue all remedies
available to it with diligence and in good faith in connection
with the enforcement of any such rights.
6. Section VII of the Loan Agreement shall be amended as follows:
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(a) The reference to "$13,000,000" contained in Section 7.6 (Capital
Expenditures) shall be amended to read "$25,000,000".
(b) The reference to "$9,000,000" contained in Section 7.11 (Leases)
shall be amended to read "$11,000,000".
(c) A new Section 7.20 shall be added to the Loan Agreement as
follows:
7.20. Other Agreements. Enter into any material amendment, waiver
or modification of the Acquisition Agreement or any related
agreements.
7. 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.
8. Section 15.2(b) shall be modified by adding a new Section 15.2(b)(vii)
as follows:
(vii) modify either of the definitions of Eligible Inventory or
Eligible Receivables if such modification would increase the
ability of any Borrower to include Inventory or Receivables in
the Borrowing Base.
9. 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
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074658.01156/30240935v5
(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.
10. Conditions Precedent/Effectiveness Conditions. This Amendment shall be
effective upon satisfaction of the conditions set forth in Section 10 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) Borrowers shall demonstrate, after giving effect to the Advances
hereunder, Undrawn Availability of at least $7,000,000;
(b) The receipt by Agent of each Lender's Commitment Percentage of
the Revolving Advances and the Term Loans (in an aggregate amount equal to not
less than Sixty-Six Million Two Hundred Thousand Dollars ($66,200,000));
(c) 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;
(d) Agent shall have received prior to or on the effective date of
this Amendment, at Borrowers' expense, the following searches (the results of
which are to be consistent with the warranties made by Borrowers in the Loan
Agreement and the Other Documents), (i) UCC searches with the Secretary of State
and local filing office of each state where Seller is organized, maintains its
executive office, a place of business, or assets, and (ii) judgment, state and
federal tax lien and corporate tax lien searches, in all applicable filing
offices of each state searched under subparagraph (i) above;
(e) Agent shall have received evidence satisfactory to Agent, that
the lien held by POL (NC) QRS 15-25, INC., a Delaware corporation is
subordinated to the liens held by the Agent;
(f) Agent shall have received final executed copies of the
Acquisition Agreement and all related agreements, documents and instruments as
in effect on the effective date of this Amendment and the transactions
contemplated by such documentation shall be consummated prior to or
contemporaneously with the making of the Advances;
(g) Agent shall have received a fully executed collateral assignment
of the Acquisition Agreement, in form and substance satisfactory to Agent, from
WinCup Holdings, Inc. and Seller;
(h) Agent shall have received a fully executed collateral assignment,
in form and substance satisfactory to Agent, of that certain Promissory Note in
the original principal amount of $4,000,000 executed by Xxxxxxx X. Xxxxxxx in
favor of Radnor Management, Inc.;
(i) Agent shall have received the executed legal opinions of Xxxxx
Xxxxxx LLP and such other counsel as may be required by the Lenders in form and
substance satisfactory to the Lenders which shall cover such matters incident to
the transactions
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074658.01156/30240935v5
contemplated by this Agreement, the Note, and related agreements as Agent may
reasonably require and Borrowers hereby authorize and direct such counsel to
deliver such opinions to Agent and the Lender;
(j) Agent shall have received executed landlord waivers and mortgagee
waivers from each landlord and/or mortgagee of Borrowers for each lease assumed,
or property acquired, in connection with the Acquisition Agreement, each in form
and substance satisfactory to Agent and its counsel;
(k) Agent shall have received the Polar M&E Appraisal, in form and
substance satisfactory to Agent;
(l) Agent shall have received a copy of a recent award letter
executed by a major customer of WinCup, in form and substance satisfactory to
Agent;
(m) Agent shall have received evidence of termination, in form and
substance satisfactory to Agent, from LaSalle Business Credit, as Agent for
Standard Federal National Association (as successor in interest to Mellon Bank,
N.A.) of all liens or security interests held by LaSalle Business Credit, LLC in
the personal property of Seller; and
(n) Agent shall have received each Note and each Other Document
required by Agent all duly executed by Borrowers.
11. 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.
12. 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.
13. 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 Financing Agreements are hereby reaffirmed and shall
continue in full force and effect as therein written.
14. 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.
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(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]
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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
074658.01156/30240935v5
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
074658.01156/30240935v5
Agents:
------
PNC BANK, NATIONAL ASSOCIATION,
as Agent
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx, Vice President
PNC BANK, NATIONAL ASSOCIATION, as
Lead Arranger and Administrative Agent
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx, Vice President
FLEET CAPITAL CORPORATION,
as Documentation Agent
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
Lenders:
-------
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx, Vice President
Commitment Percentage: 33.3333%
FLEET CAPITAL CORPORATION, as Lender
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
Commitment Percentage: 27.7778%
Signature Page 3 of 4
074658.01156/30240935v5
LASALLE BUSINESS CREDIT, LLC,
as Lender
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
----------------------------------
Title: Vice President
---------------------------------
Commitment Percentage: 27.7778%
FIFTH THIRD BANK,
as Lender
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
Commitment Percentage: 11.1111%
Signature Page 4 of 4
074658.01156/30240935v5
