EXHIBIT 10.73
15th October 1997
SUPPLEMENT REVOLVING MULTICURRENCY CREDIT AGREEMENT
BNY FINANCIAL LIMITED
NATIONSBANK N.A.
(AS LENDERS)
WITH
STYROCHEM EUROPE (THE NETHERLANDS) B.V.
STYROCHEM FINLAND OY
THERMISOL DENMARK APS
THERMISOL SWEDEN AB
THERMISOL FINLAND OY
(AS BORROWER AND GUARANTORS)
WINCUP HOLDINGS, INC.
SP ACQUISITION CO.
STYROCHEM INTERNATIONAL, INC.
RADNOR HOLDINGS CORPORATION
(AS GUARANTORS)
WITH
BNY FINANCIAL LIMITED
(AS AGENT)
▇▇▇▇▇ & ▇▇▇▇▇
London
Index
1. Definitions....................................1
2. Advances, Payments............................13
3. Interest and Fees.............................23
4. Cross-Guarantee...............................27
5. Representations and Warranties................30
6. Affirmative Covenants.........................36
7. Negative Covenants............................40
8. Conditions Precedent..........................45
9. Information...................................51
10. Events of Default.............................57
11. Lenders' Rights and Remedies after Default....60
12. Waivers and Judicial Proceedings..............61
13. Effective Date and Termination................61
14. Regarding Agent...............................62
15. Miscellaneous.................................66
16. Borrowing Agency..............................74
Exhibit 8.1(j) - Form of Officer's Certificate.....79
Exhibit 15.3 - Commitment Transfer Supplement......80
Schedule I to Commitment Transfer Supplement.......87
Schedule II to Commitment Transfer Supplement......88
Schedule 5.2(b) - Subsidiaries.....................89
THIS AGREEMENT is dated 15th October, 1997 between:
(1) STYROCHEM EUROPE (THE NETHERLANDS), B.V., STYROCHEM FINLAND OY, THERMISOL
DENMARK APS, THERMISOL FINLAND OY and THERMISOL SWEDEN AB (in this capacity
each a "Borrower" and together the "Borrowers");
(2) WINCUP HOLDINGS, INC., SP ACQUISITION CO., STYROCHEM INTERNATIONAL, INC.,
RADNOR HOLDINGS CORPORATION, STYROCHEM EUROPE (THE NETHERLANDS) B.V.,
STYROCHEM FINLAND OY, THERMISOL DENMARK APS, THERMISOL FINLAND OY and
THERMISOL SWEDEN AB as guarantors (in this capacity each a "Guarantor" and
together the "Guarantors", and sometimes referred to herein each as an
"Obligor" and collectively the "Obligors");
(3) BNY FINANCIAL LIMITED and NATIONSBANK N.A. as lenders (in this capacity
each a "Lender" and together the "Lender"); and
(4) BNY FINANCIAL LIMITED as administrative agent (in this capacity the
"Agent")
WHEREAS Wincup, Acquisition, StyroChem and Radnor have entered into the U.S.
Credit Facility (as defined below) and pursuant to which it is stipulated that
the parties hereto will enter into this Agreement which shall constitute a
supplement to the U.S. Credit Facility.
IT IS AGREED that the U.S. Credit Facility be supplemented as follows:
1. DEFINITIONS
1.1 Accounting Terms
As used in this Agreement or any certificate, report, note or other
document made or delivered pursuant to this Agreement, accounting terms not
defined in Section 1.2 or elsewhere in this Agreement and accounting terms
partly defined in Section 1.2 to the extent not defined, shall have the
respective meanings given to them under GAAP; provided, however, whenever
such accounting terms are used for the purposes of determining compliance
with financial covenants in this Agreement, such accounting terms shall be
defined in accordance with GAAP applied in preparation of the audited
financial statements of Radnor on a Consolidated Basis for the fiscal
period ended 30th June, 1997.
1.2 General Terms
For purposes of this Agreement terms defined in the U.S. Credit Facility
shall have the same meaning herein as therein and the following terms shall
have the following meanings:
"Acquisition" shall mean SP Acquisition Co., a corporation organised and
existing under the laws of the State of Delaware.
"Advances" shall mean the principal amount of each borrowing by a Borrower
under this Agreement or the principal amount outstanding of that borrowing.
"Advance Rates" shall have the meaning set forth in Section 2.1(a) hereof.
"Agent's Spot Rate of Exchange" shall mean the Agent's spot rate of
exchange for the purchase of the relevant Optional Currency in the London
foreign exchange market with Dollars (as supplied to it at its request by
the Reference Bank) at or about 11:00 a.m. (London time) or a particular
day.
"Applicable Margin" for any period shall be determined by the ratio of
Funded Indebtedness to EBITDA calculated for the most recent fiscal quarter
with respect to the four fiscal quarters then ended which shall be subject
to adjustment from time to time as set forth in Section 3.1. The
Applicable Margin with respect to each Advance provided in Section 3.1 and
in respect of the Facility Fee provided for in Section 3.3 hereof, as the
case may be, shall be the percentage set forth below as corresponds to the
applicable ratio set forth below:
Funded Indebtedness to EBITDA Advance Facility Fee
---------------------------------------- ------- ------------
Greater than 5.0 to 1.0 2.00% .50%
Greater than 4.1 to 1.0 1.75% .375%
But equal to or less than 5.0 to 1.0
Greater than 3.1 to 1.0 1.50% .25%
But equal to or less than 4.1 to 1.0
Greater than 2.1 to 1.0 1.25% .125%
But equal to or less than 3.1 to 1.0
Equal to or less than 2.1 to 1.0 1.00% .125%
"Authority" shall have the meaning set forth in Section 6(m).
"Borrower" or "Borrowers" shall have the meaning set forth in the preamble
to this Agreement and shall include all permitted successors and assigns of
such Persons.
"Borrowing Agent" shall mean StyroChem Europe.
"Business Day" shall mean a day (other than a Saturday or a Sunday) on
which banks are open for business in (a) London and New York and (b) in
relation to a transaction involving an Optional Currency, the principal
financial center of the country of the
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Optional Currency or if more than one country, the country or countries
designated by the Agent..
"Change of Control" shall mean (a) the occurrence of any event (whether in
one or more transactions) which results in a transfer of control of any
Obligor to a Person who is not an Original Owner or an Affiliate of an
Original Owner or (b) any merger or consolidation of or with any Obligor or
sale or transfer of all or substantially all of the property or assets of
any Obligor with or to a Person that is not an Obligor hereunder. For
purposes of this definition, "control of Obligor" shall mean the power,
direct or indirect, (x) to vote 50% or more of the securities having
ordinary voting power for the election of directors of any Obligor or (y)
to direct or cause the direction of the management and policies of an
Obligor, by contract or otherwise.
"Change of Ownership" shall mean (a) any transfer (whether in one or more
transactions) of ownership of 50% or more of the common stock of any
Obligor (including for the purposes of the calculation of percentage
ownership, any shares of common stock into which any capital stock of any
Obligor held by any Original Owner is convertible or for which any such
shares of the capital stock of any Obligor or of any other Person may be
exchanged and any shares of common stock issuable to its Parent upon
exercise of any warrants, options or similar rights which may at the time
of calculation be held by such Original Owners) to a Person who is neither
(at the time of such transfer) an Original Owner nor an Affiliate of an
Original Owner or (b) any merger, consolidation or sale of substantially
all of the property or assets of any Obligor with or to a Person that is
not an Obligor hereunder.
"Charges" shall mean all taxes, charges, fees, imports, levies or other
assessments, including, without limitation, all net income, gross income,
gross receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp,
occupation and property taxes, custom duties, fees, assessments, liens,
claims and charges of any kind whatsoever, together with any interest and
any penalties, additions to tax or additional amounts, imposed by any
taxing or other authority, domestic or foreign, upon the Security Assets,
any Obligor or any of its Affiliates.
"Commitment Percentage" of any Lender shall mean the percentage set forth
below such Lender's name on the signature page hereof as same may be
adjusted upon any assignment by a Lender pursuant to Section 15.3(b)
hereof.
"Commitment Transfer Supplement" shall mean a document in the form of
Exhibit 15.3 hereto, properly completed and otherwise in form and substance
satisfactory to Agent by which the Purchasing Lender purchases and assumes
a portion of the obligation of Lenders to make Advances under this
Agreement.
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"Consents" shall mean all filings and all licenses, permits, consents,
approvals, authorisations, qualifications and orders of governmental
authorities and other third parties, domestic or foreign, necessary to
carry on Obligor's business, including, without limitation, any Consents
required under all applicable federal, state or other applicable law.
"Contract Rate" shall mean, as applicable, the Revolving Interest Rate or
the Default Rate.
"Customer" shall mean and include the account debtor with respect to any
Receivable and/or the prospective purchaser of goods, services or both with
respect to any contract or contract right, and/or any party who enters into
or proposes to enter into any contract or other arrangement with any
Obligor, pursuant to which any Obligor is to deliver any personal property
or perform any services.
"Danish Krona" shall mean the lawful currency for the time being of
Denmark.
"Default" shall mean an event which, with the giving of notice or passage
of time or both, would constitute an Event of Default.
"Default Rate" shall have the meaning set forth in Section 3.1 hereof.
"Deutschmarks" shall mean the lawful currency for the time being of
Germany.
"Documents" shall have the meaning set forth in Section 8.1(c) hereof.
"Dollars" and the sign "$" shall mean lawful money of the United States of
America.
"Effective Date" shall mean 15th October, 1997 or such other date as may be
agreed to by the parties hereto.
"Eligible Inventory" shall mean and include Inventory excluding work in
process, with respect to each Borrower, valued at the lower of cost or
market value, determined on a first-in-first-out basis, which is not, in
Agent's opinion, obsolete, slow moving or unmerchantable and which Agent,
in its sole discretion, shall not deem ineligible Inventory, based on such
considerations as Agent may from time to time deem appropriate including,
without limitation, whether the Inventory is subject to a perfected, first
priority security interest in favour of Agent for the rateable benefit of
the Lenders and whether the Inventory conforms to all standards imposed by
any governmental agency, division or department thereof which has
regulatory authority over such goods or the use or sale thereof.
"Eligible Receivables" shall mean and include, with respect to each
Borrower, each Receivable arising in the ordinary course of such Borrower's
business and which Agent,
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in its sole credit judgment, shall deem to be an Eligible Receivable, based
on such considerations as Agent may from time to time deem appropriate. A
Receivable shall not be deemed eligible unless such Receivable is subject
to Agent's first priority perfected security interest for the rateable
benefit of the Lenders and no other Lien other than Permitted Encumbrances,
and is evidenced by an invoice, ▇▇▇▇ of lading or other documentary
evidence satisfactory to Agent. In addition, no Receivable shall be an
Eligible Receivable if:
(a) it arises out of a sale made by any Borrower to an Affiliate of any
Borrower or to a Person controlled by an Affiliate of any Borrower;
(b) it is due or unpaid more than ninety (90) days after the original
invoice date;
(c) twenty-five per cent. (25%) or more of the Receivables from the
Customer are not deemed Eligible Receivables hereunder. Such
percentage may, in Agent's sole discretion, be increased or decreased
from time to time;
(d) any covenant, representation or warranty contained in this Agreement
with respect to such Receivable has been breached;
(e) the Customer shall (i) apply for, suffer, or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its
property or call a meeting of its creditors, (ii) admit in writing its
inability, or be generally unable, to pay its debts as they become due
or cease operations of its present business, (iii) make a general
assignment for the benefit of creditors, (iv) commence a voluntary
case under any state, federal or other applicable bankruptcy laws (as
now or hereafter in effect), (v) be adjudicated a bankrupt or
insolvent, (vi) file a petition seeking to take advantage of any other
law providing for the relief of debtors, (vii) acquiesce to, or fail
to have dismissed, any petition which is filed against it in any
involuntary case under such bankruptcy laws, or (viii) take any action
for the purpose of effecting any of the foregoing;
(f) the sale to the Customer is on a ▇▇▇▇-and-hold, guaranteed sale, sale-
and-return, sale on approval, consignment or any other repurchase or
return basis or is evidenced by chattel paper;
(g) Agent believes, in its sole judgment, that collection of such
Receivable is insecure or that such Receivable may not be paid by
reason of the Customer's financial inability to pay;
(h) the Customer is the United States of America or any government or
nation other than the United States of America, any state or any
department, agency or instrumentality of any of them, unless the
applicable Borrower effectuates an
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assignment of its right to payment of such Receivable to Agent
pursuant to the Assignment of Claims Act of 1940, as amended (31
U.S.C. Sub-Section 3727 et seq. and 41 U.S.C. Sub-Section 15 et seq.)
or has otherwise complied with other applicable statutes or
ordinances;
(i) the goods giving rise to such Receivable have not been shipped and
delivered to and accepted by the Customer or the services giving rise
to such Receivable have not been performed by the applicable Borrower
and accepted by the Customer or the Receivable otherwise does not
represent a final sale;
(j) the Receivables of the Customer exceed a credit limit determined by
Agent, in its sole discretion, to the extent such Receivable exceeds
such limit;
(k) the Receivable is subject to any offset, deduction, defence, dispute,
or counterclaim to the extent of such offset, deduction, defence,
dispute or counterclaim, the Customer is also a creditor or supplier
of a Borrower or the Receivable is contingent in any respect or for
any reason;
(l) the applicable Borrower has made any agreement with a Customer for any
deduction therefrom, except for discounts or allowances made in the
ordinary course of business for prompt payment, all of which discounts
or allowances are reflected in the calculation of the face value of
each respective invoice related thereto;
(m) shipment of the merchandise or the rendition of services has not been
completed;
(n) any return, rejection or repossession of the merchandise has occurred;
(o) such Receivable is not payable to a Borrower; or
(p) such Receivable is not otherwise satisfactory to Agent as determined
in good faith by Agent in the exercise of its discretion in a
reasonable manner.
"Equipment" shall mean and include as to each Obligor all of such Obligor's
goods (excluding Inventory) whether now owned or hereafter acquired and
wherever located including, without limitation, all equipment, machinery,
apparatus, motor vehicles, fittings, furniture, furnishings, fixtures,
parts, accessories and all replacements and substitutions therefor or
accessions thereto.
"Event of Default" shall mean the occurrence and continuance of any of the
events set forth in Article X hereof.
"Finnish Markka" shall mean the lawful currency for the time being of
Finland.
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"Fixed Charge Coverage" for any period shall mean the ratio for any period
of (1) such period of EBITDA to (2) all Debt Payments plus (a) the
aggregate amount of capital expenditures actually made plus (b) the
aggregate amount of cash payments of taxes made.
"Formula Amount" shall have the meaning set forth in Section 2.1(a) hereof.
"Funded Indebtedness" shall mean Person and its Subsidiaries on a
consolidated basis at the option of the Obligor for a period ending more
than one year after that date, including current maturities of long-term
Indebtedness for Borrowed Money (as determined in accordance with GAAP),
less (ii) the aggregate amount of all cash balances and cash equivalents of
such Persons and/or any of its Subsidiaries.
"General Intangibles" shall mean and include as to each Borrower all of
such Borrower's general intangibles, whether now owned or hereafter
acquired including, without limitation, all choses in action, causes of
action, corporate or other business records, inventions, designs, patents,
patent applications, equipment formulations, manufacturing procedures,
quality control procedures, trademarks, service marks, trade secrets,
goodwill, copyrights, design rights, registrations, licences, franchises,
customer lists, tax refunds, tax refund claims, computer programs, all
claims under guaranties, security interests or other security held by or
granted to such Borrower to secure payment of any of the Receivables by a
Customer, all rights of indemnification and all other intangible property
of every kind and nature (other than Receivables).
"Indebtedness for Borrowed Money" of a person means at any time the sum at
such time of (a) Indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, (b) any obligation of such
Person in respect of letters of credit, banker's or other acceptances or
similar obligations issued or created for the account of such Person, (c)
lease, obligations of such Person with respect to capital leases, (d) all
liabilities secured by any Lien on any property owned by such Person, to
the extent attached to such Person's interest in such property, even though
such Person has not assumed or become personally liable for the payment
thereof, (e) obligations of third parties which are being guarantied or
indemnified against by such Person or which are secured by the property of
such Person; (f) any obligation of such Person or a member of Controlled
Group to a Multiemployer Plan; and (h) any obligations, liabilities or
indebtedness, contingent or otherwise, under or in connection with, any
interest rate or currency swap agreements, cap, floor, and collar
agreements, currency spot, foreign exchange and forward contracts and other
similar agreements and arrangements; but excluding trade and other accounts
payable in the ordinary course of business in accordance with customary
trade terms and which are not more than thirty (30) days past due (as
determined in accordance with customary trade practices) or which are being
disputed in good faith by such Person and for which adequate reserves are
being provided on the books of such Person in accordance with GAAP.
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"Interest Period" shall mean the period provided for any Advance pursuant
to Section 2.2(b).
"Inventory" shall mean and include as to each Obligor all of such Obligor's
now owned or hereafter acquired goods, merchandise and other personal
property, wherever located, to be furnished under any contract of service
or held for sale or lease, all raw materials, work in process, finished
goods and materials and supplies of any kind, nature or description which
are or might be used or consumed in such Obligor's business or used in
selling or furnishing such goods, merchandise and other personal property,
and all documents of title or other documents representing them.
"Inventory Advance Rate" shall mean such term as defined in Section 2.1.
"Lender" and "Lenders" shall have the meaning ascribed to such term in the
Preamble, each Purchasing Lender and shall include each person which is a
transferee, successor or assign of any Lender or any Purchasing Lender.
"LIBOR" shall mean for any Advance for the then current Interest Period
relating thereto, the rate per annum supplied to the Agent, at its request,
quoted by the Reference Bank at or about 11:00 a.m. two (2) Business Days
prior to the first day of such Interest Period for the offering by the
Reference Bank to prime commercial banks in the London interbank Euromarket
of deposits in the currency of the relevant Advance in immediately
available funds for a period equal to such Interest Period and in an amount
equal to the amount of such Advance.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, security interest, lien (whether statutory or otherwise),
Charge, claim or encumbrance, or preference, priority or other security
agreement or preferential arrangement held or asserted in respect of any
asset of any kind or nature whatsoever including, without limitation, any
conditional sale or other title retention agreement, any lease having
substantially the same economic effect as any of the foregoing, and the
filing of, or agreement to give, any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
condition, operations, assets, business or prospects of the applicable
Person or Persons, (b) any Obligor's ability to pay the Obligations in
accordance with the terms thereof, (c) the value of the Security Assets,
the Liens on the Security Assets or the priority of any such Lien, or (d)
the practical realisation of the benefits of Agent and Lenders' rights and
remedies under this Agreement and the Other Documents, all as determined by
the Required Lenders in the good faith exercise of their sole and absolute
discretion.
"Maximum Loan Amount" shall mean $10,000,000.
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"Monthly Advances" shall have the meaning set forth in Section 3.1 hereof.
"Norwegian Krone" shall mean the lawful currency for the time being of
Norway.
"Obligations" shall mean and include any and all of each Obligor's
Indebtedness and/or liabilities to Agent or any of the Lender or any
corporation that directly or indirectly controls or is controlled by or is
under common control with any Lender of every kind, nature and description,
direct or indirect, secured or unsecured, joint, several, joint and
several, absolute or contingent, due or to become due, now existing or
hereafter arising, contractual or tortious, liquidated or unliquidated
under this Agreement or under any Other Document and all obligations of any
Obligor to Agent or the Lenders to perform acts or refrain from taking any
action under this Agreement or any Other Document.
"Optional Currencies" shall mean German Deutschmarks, Danish Krona, Finnish
Markka, Norwegian Krone or Swedish Krona.
"Original Dollar Amount" in relation to an Advance, means (a) if that
Advance is denominated in Dollars, the amount of that Advance, or (b) if
the Advance is denominated in an Optional Currency, the equivalent in
Dollars of the amount of that Advance at the Agent's Spot Rate of Exchange
two Business Days prior to its proposed day of borrowing.
"Other Documents" shall mean the Security Documents and any and all other
agreements, instruments and documents, including, without limitation,
guaranties, pledges, powers of attorney, consents, and all other writings
heretofore, now or hereafter executed and/or delivered by any Obligor to
Agent or any Lender in respect of the transactions contemplated by this
Agreement.
"Payment Office" shall mean the office or bank in the principal financial
centre of the country of the relevant currency or, such other office of
Agent, if any, which it may designate by notice to Borrowing Agent and each
Lender to be the Payment Office.
"Permitted Encumbrances" shall mean (a) Liens in favour of Agent for the
rateable benefit of the Lenders; (b) Liens for taxes, assessments or other
governmental charges not delinquent or being contested in good faith and by
appropriate proceedings and with respect to which proper reserves have been
taken by Obligors; provided, that, the Lien shall have no effect on the
priority of the Liens in favour of Agent for the rateable benefit of the
Lenders or the value of the assets in which Agent has such a Lien and a
stay of enforcement of any such Lien for the benefit of the Lenders shall
be in effect; (c) Liens disclosed in the financial statements referred to
in Section 5.5; (d) deposits or pledges to secure obligations under
worker's compensation, social security or similar laws, or under
unemployment insurance; (e) deposits or pledges to secure bids, tenders,
contracts (other than contracts for the payment of money), leases,
statutory obligations, surety and appeal bonds and other obligations of
like nature arising in the ordinary course of any Obligor's
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business; (f) judgment Liens that have been stayed or bonded and
mechanics', worker's, materialmen's or other like Liens arising in the
ordinary course of any Obligor's business with respect to obligations which
are not due or which are being contested in good faith by the applicable
Obligor; (g) Liens placed upon fixed assets hereafter acquired to secure a
portion of the purchase price thereof, provided that (x) any such lien
shall not encumber any other property of any Obligor and (y) the aggregate
amount of Indebtedness secured by such Liens incurred as a result of such
purchases during any fiscal year shall not exceed the amount provided for
in Section 7.6; and (h) Liens disclosed on Schedule 1.2 of the U.S. Credit
Facility (copy of which is attached hereto).
"Pound Sterling" shall mean the lawful currency for the time being of Great
Britain.
"Prepayment Date" shall have the meaning set forth in Section 13.1 hereof.
"Pro Forma Balance Sheet" shall have the meaning set forth in Section
5(e)(i) hereof.
"Pro Forma Financial Statements" shall have the meaning set forth in
Section 5(e)(ii) hereof.
"Projections" shall have the meaning set forth in Section 5(e)(ii) hereof.
"Purchasing Lender" shall have the meaning set forth in Section 15.3
hereof.
"Radnor" shall mean Radnor Holdings Corporation, a corporation organised
and existing under the laws of the State of Delaware.
"Radnor on a Consolidated Basis" shall mean the consolidation in accordance
with GAAP of the accounts or other items of Radnor and its Subsidiaries.
"Receivables" shall mean and include as to each Obligor all of such
Obligor's accounts, contract rights, instruments (including those
evidencing indebtedness among Obligors and its Affiliates), documents,
chattel paper, general intangibles relating to accounts, drafts and
acceptances, and all other forms of obligations owing to such Obligor
arising out of or in connection with the sale or lease of Inventory or the
rendition of services, all guarantees and other security therefor, whether
secured or unsecured, now existing or hereafter created, and whether or not
specifically sold or assigned to the Agent for the rateable benefit of the
Lenders hereunder.
"Receivables Advance Rate" shall have the meaning set forth in Section
2.1(a) hereof.
"Reference Bank" shall mean The Bank of New York.
"Release" shall have the meaning set forth in Section 5.7(g)(iii) hereof.
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"Reportable Event" shall mean a reportable event described in Section
4043(b) of ERISA or the regulations promulgated thereunder.
"Required Lenders" shall mean Lenders holding at least fifty one per cent.
(51%) of the Advances or if no Advances are outstanding, fifty one per
cent. (51%) of the Commitment Percentages.
"Revolving Interest Rate" shall mean an interest rate per annum equal to
(a) LIBOR plus (b) Applicable Margin.
"Security Assets" shall mean all the assets secured in favour of the Agent
and Lenders under the Security Documents.
"Security Documents" shall mean (a) the StyroChem Finland Security
Agreement, (b) the Thermisol Finland Security Agreement, (c) the U.S.
Security Agreement and (d) any other document designated as such by the
Agent and the Borrowing Agent.
"Second Indenture" shall mean the Indenture dated as of 15th October, 1997
between Radnor, as Issuer, Wincup, Acquisition and StyroChem and Radnor
Management, Inc. as guarantors and First Union National Bank, as trustee.
"Settlement Date" shall mean the Effective Date and thereafter Wednesday of
each week unless such day is not a Business Day in which case it shall be
the next succeeding Business Day.
"StyroChem" shall mean StyroChem International, Inc., a corporation
organised and existing under the laws of the State of Texas.
"StyroChem Europe" shall mean StyroChem Europe and its Subsidiaries, (the
Netherlands) B.V., a Netherlands corporation.
"StyroChem Europe Acquisition Agreement" shall mean the Sale of Assets
Agreement among Radnor, StyroChem Finland, Thermisol Finland, Thermisol
Sweden, Thermisol Denmark, Neste Oy, Isora Oy, Neste Cellplast AB, and
Neste Thermisol A/S pursuant to which Radnor acquired, through StyroChem
Europe, all of the polystyrene and conversion operations of Neste Oy.
"StyroChem Finland" shall mean StyroChem Finland Oy, a corporation
organised under the laws of Finland.
"StyroChem Finland Security Agreement" shall mean the security agreement
entered or to be entered into by StyroChem Finland in favour of the Agent
pursuant to this Agreement.
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"Swedish Krona" shall mean the lawful currency for the time being of Sweden
"Term" shall mean the Effective Date through 15th October, 2002 or such
earlier date on which the Agent terminates this Agreement in accordance
with its terms.
"Thermisol Denmark" shall mean Thermisol Denmark ApS, a corporation
organised under the laws of Denmark.
"Thermisol Finland" shall mean Thermisol Finland Oy, a corporation
organised under the laws of Finland.
"Thermisol Finland Security Agreement" shall mean the security Agreement
entered or to be entered into by Thermisol Finland in favour of the Agent
pursuant to this Agreement.
"Thermisol Sweden" shall mean Gigantissimo 2080 Aktiebolag, in the process
of being renamed Thermisol Sweden AB (subject to the acceptance of the
Swedish Company Registry), a corporation organised under the laws of
Sweden.
"Total Interest" for any period shall mean the accrued and unpaid interest
obligations of Radnor on a Consolidated Basis with respect to its
outstanding Indebtedness during such period.
"Transferee" shall have the meaning set forth in Section 15.3(b) hereof.
"Transactions" shall have the meaning set forth in Section 5.5 hereof.
"Undrawn Availability" at a particular date shall mean an amount equal to
(a) the lesser of (i) the Formula Amount or (ii) the Maximum Loan Amount,
minus (b) the sum of (i) the outstanding amount of Advances plus (ii) all
amounts due and owing to Obligors' trade creditors which are outstanding
more than sixty (60) days past the due date therefor.
"U.S. Credit Facility" means the Second Amended and Restated Revolving
Credit and Security Agreement entered into between BNY Financial
Corporation as Agent or Lender and the U.S. Guarantors and others pursuant
to which the U.S. Lenders agree to fund loans to the U.S. Guarantors up to
an aggregate principal amount of U.S. $30,000,000.
"U.S. Guarantors" shall mean each of Wincup, Acquisition, StyroChem and
Radnor, together known as the "U.S. Guarantors".
"U.S. Lenders" means the Lenders as defined in the U.S. Credit Facility.
"U.S. Security Agreement" shall mean the security agreement entered or to
be entered into by each of the U.S. Guarantors in favour of the Agent
pursuant to this Agreement.
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"Week" shall mean the time period commencing with a Wednesday and ending on
the following Tuesday.
"Wincup" shall mean Wincup Holdings, Inc., a corporation organised under
the laws of the State of Delaware.
"Wincup L.P." shall mean Wincup Holdings, L.P., a limited partnership
organised under the laws of the State of Delaware which was dissolved
effective 7th July, 1997 pursuant to that certain Certificate of
Dissolution dated 25th August, 1997.
"Working Capital" at a particular date, shall mean the excess, if any, of
Current Assets over Current Liabilities at such date.
1.3 Certain Matters of Construction
The terms "herein", "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
section, paragraph or subdivision. Any pronoun used shall be deemed to
cover all genders. Wherever appropriate in the context, terms used herein
in the singular also include the plural and vice versa. All references to
statutes and related regulations shall include any amendments of same and
any successor statutes and regulations. All references to any instruments
or agreements to which Agent is a party, including, without limitation,
references to any of the Other Documents or the US Credit Facility shall
include any and all modifications or amendments thereto and any and all
extensions or renewals thereof.
2. ADVANCES, PAYMENTS
2.1 (a) Borrowing Base
Subject to the terms and conditions set forth in this Agreement, each
Lender, severally and not jointly, agrees to make Advances to the
Borrowers in accordance with the procedures provided for herein in an
aggregate amount outstanding at any time not greater than such
Lender's Commitment Per cent of the lesser of (x) the Maximum Loan
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 of
Borrowers, plus
(ii) the lesser of (x) $5,000,000 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
and the Inventory Advance Rate shall be referred to,
collectively, as the "Advance Rates"), minus
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(iii) such reserves as Agent may, in a commercially reasonable
manner, reasonably deem proper and necessary.
The sum of the amounts (taken at their Original Dollar Amount) derived
from (x) the sum of Sections 2.1(a)(y)(i) plus 2.1(a)(y)(ii) minus (y)
the amount of Section 2.1(a)(y)(iii) at any time and from time to time
shall be referred to as the "Formula Amount".
(b) Discretionary Rights
The Advance Rates may be increased or with the consent of the Required
Lenders, decreased by Agent at any time and from time to time in the
exercise of its reasonable discretion. The 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.
2.2 Procedure for Borrowing
(a) Borrowing Agent on behalf of any Borrower may notify Agent prior to 11:00
a.m. on a Business Day of a Borrower's request to incur, on that day, an
Advance hereunder. Should any amount required to be paid as interest
hereunder, or as fees or other charges under this Agreement or any other
agreement with Agent or any Lender, or with respect to any other
Obligation, become due, same shall be deemed a request for an Advance as of
the date such payment is due, in the amount required to pay in full such
interest, fee, charge or Obligation under this Agreement or any other
agreement with Agent or any Lender, and such request shall be irrevocable.
Any request for an Advance shall be deemed reduced automatically and
without notice so as not to be in excess of, after giving effect to the
requested Advance, an amount which would cause the aggregate Original
Dollar Amount of all Advances to be greater than the lesser of the Maximum
Loan Amount or the Formula Amount.
(b) Notwithstanding the provisions of (a) above, in the event any Borrower
desires to obtain an Advance, it shall give Agent, through the Borrowing
Agent, at least three (3) Business Days' prior written notice; specifying
(i) the date of the proposed borrowing (which shall be a Business Day),
(ii) the Original Dollar Amount on the date of such Advance to be borrowed,
which amount shall be in a minimum of $1,000,000, and (iii) the duration of
the Interest Period therefor. Interest Periods shall be for one (1), two
(2), three (3) or six (6) months. There shall not be outstanding more than
five (5) Advances, in the aggregate.
(c) Each Interest Period of an Advance shall commence on the date such Advance
is made and shall end on such date as a Borrower may elect as in each
notice of borrowing referred to in (b) above provided that:
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(i) any Interest Period which would otherwise end on a day which is not a
Business Day shall be the next preceding or succeeding Business Day
as is the Reference Bank's custom in the market to which such Advance
relates;
(ii) no Interest Period shall end after the last day of the Term; and
(iii) any Interest Period which begins on a day for which there is no
numerically corresponding day in the calendar month during which such
Interest Period is to end, shall (subject to clause (i) above) end on
the last day of such calendar month.
The Borrowing Agent shall elect each Interest Period applicable to an
Advance by its notice of borrowing given to Agent pursuant to Section
2.2(b).
(d) In the event that any prepayment of an Advance is required or permitted on
a date other than the last Business Day of the Interest Period with respect
thereto such Borrower shall indemnify Agent and Lenders therefor in
accordance with Section 2.2(e) hereof.
(e) Each Borrower shall indemnify Agent and Lenders and hold Agent and Lenders
harmless from and against any and all losses or expenses that Agent and any
Lender may sustain or incur as a consequence of any prepayment or any
default by any Borrower in the payment of the principal of or interest on
any Advance or failure by any Borrower to complete a borrowing of, a
prepayment of after notice thereof has been given, including (but not
limited to) any interest payable by Agent or any Lender to lenders of funds
obtained by it in order to make or maintain its Advances hereunder.
(f) Notwithstanding any other provisions hereof, if any applicable law, treaty,
regulation or directive, or any change therein or in the interpretation or
application thereof, shall make it unlawful for any Lender (for purposes of
this subsection (f), the term "Lender" shall include any Lender and the
office or branch where any Lender or any corporation or bank controlling
such Lender makes or maintains any Advance) to make or maintain its
Advance, the obligation of any Lender to make an Advance hereunder shall
forthwith be canceled and the relevant Borrower shall, if any affected
Advance are then outstanding, promptly upon request from Agent, pay all
such affected Advance. If any such payment of any Advance is made on a day
that is not the last day of an Interest Period relative to such Advance,
the relevant Borrower shall pay such Lender, upon such Lender's request,
such amount or amounts as may be necessary to compensate such Lender for
any loss or expense sustained or incurred by such Lender in respect of such
Advance as a result of such payment, including (but not limited to) any
interest or other amounts payable by such Lender to lenders of funds
obtained by such Lender in order to make or maintain such Advance. A
certificate as to any additional amounts payable pursuant to the foregoing
sentence submitted by Agent to Borrower shall be conclusive absent manifest
error; provided, each Lender shall use its best efforts to minimise or
avoid any such additional payment.
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2.3 Disbursement of Advance Proceeds
All Advances shall be disbursed from whichever office or other place Agent
may designate from time to time and, together with any and all other
Obligations of Borrowers to Agent or any of the Lenders, shall be charged
to the applicable Borrower's account on Agent's books. During the Term,
Borrowers may use the Advances by borrowing, prepaying and reborrowing, all
in accordance with the terms and conditions hereof. The proceeds of each
Advance requested on behalf of any Borrower or deemed to have been
requested by such Borrower under Section 2.2(a) hereof shall, with respect
to requested Advances to the extent the Lenders make such Advances, be made
available to such Borrower on the day so requested by way of credit to such
Borrower's operating account at the Bank, or such other bank as the
Borrowing Agent may designate following notification to Agent, in federal
funds or other immediately available funds or, with respect to Advances
deemed to have been requested, be disbursed to Agent to be applied to the
outstanding Obligations giving rise to such deemed request.
2.4 Optional Currencies
(a) Selection
(i) A Borrower shall, through the Borrowing Agent, select the currency of
an Advance in the relevant notice for borrowing.
(ii) The currency of each Advance must be Dollars or an Optional Currency.
(iii) No Borrower may choose a currency if as a result the Advances would
be denominated at any one time in more than five currencies.
(iv) The Agent shall notify each Lender of the currency and the Original
Dollar Amount of each Advance and the applicable Agent's Spot Rate of
Exchange promptly after they are ascertained.
(b) Revocation of currency
If before 9:30 a.m. on any day falling between Business Days prior to the
commencement of an Interest Period relates to an Advance, the Agent
receives notice from a Lender that:
(i) it is impracticable for the Lender to fund its participation in the
relevant Advance in the relevant Optional Currency during its
Interest Period in the ordinary course of business in the London
interbank market; and/or
(ii) the use of the proposed Optional Currency might contravene any law or
regulation,
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the Agent shall give notice to the relevant Borrower and to the Lenders to
that effect before 11:00 a.m. on that day. In this event:
(i) the relevant Borrower and the Lender may agree that the drawdown will
not be made; or
(ii) in the absence of agreement;
(1) the Lender's participation in the Advance (or, if more than one
Lender is similarly affected, those Lender's participations in
the Advance) shall be treated as a separate Advance denominated
in Dollars during the relevant Interest Period;
(2) in the definition of "LIBOR" (insofar as it applies to that
Advance) in Section 1.1 (Definitions) there shall be substituted
for the time "11:00 a.m." the time "1:00 p.m.".
(c) Amount of Optional Currencies
(i) Drawdowns
If an Advance is to be drawn down in an Optional Currency, the amount
of each Lender's participation is that Advance will be determined by
converting into that Optional Currency the Lender's participation in
the Original Dollar Amount of that Advance on the basis of the Agent's
Spot Rate of Exchange two Business Days before its date of borrowing.
(ii) Notification
The Agent shall notify the Lenders and the Borrower of Optional
Currency amounts (and the applicable Agent's Spot Rate of Exchange)
promptly after they are ascertained.
(d) Change of Currency
(i) If more than one currency or currency unit are at the same time
recognised by the central bank of any country as the lawful currency
of that country, then:
(1) any reference in this Agreement or any other Agreement to, and
any obligations arising under this Agreement or any other
Agreement in, the currency of that country shall be translated
into, or paid in, the currency or currency unit of that country
designated by the Agent; and
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(2) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the Agent acting
reasonably.
(ii) If a change in any currency of a country occurs, this Agreement will
and each other Agreement shall be deemed to be amended to the extent
the Agent (having consulted with the Lenders) specifies to be
necessary to reflect the change in currency and to put the Lenders in
the same position, so far as possible, that they would have been in
if no change in currency had occurred.
2.5 Maximum Advances; Repayment of Excess Advances
The aggregate Original Dollar Amount balance of Advances outstanding at any
time to Borrowers shall not exceed the lesser of (a) Maximum Loan Amount or
(b) the Formula Amount.
2.6 Repayment of Advances
(a) Each Advance shall be due and payable in full on the last day of each
Interest Period relative thereto subject to earlier prepayment as herein
provided. Amount[s] repaid hereunder may be reborrowed subject to the
terms of this Agreement.
(b) Where the last date of an Interest Period for an outstanding Advance
coincides with the date on which a new Advance denominated in the same
currency is to be made, the Agent shall apply the new Advance in or toward
repayment of the outstanding Advance so that:
(i) where the amount of the outstanding Advance exceeds the amount of the
new Advance, such Borrower shall be required to repay only the
excess;
(ii) where the amount of the outstanding Advance is exactly the same as
the amount of the new Advance, such Borrower shall not be required to
make any payment; and
(iii) where the amount of the new Advance exceeds the outstanding Advance,
the excess shall be advanced to such Borrower,
PROVIDED ALWAYS THAT nothing in this paragraph (b) shall have the effect,
or be deemed to have the effect, of converting part or all of any Advance
into a term loan and PROVIDED FURTHER THAT the other provisions of this
Agreement (including, without limitation, the provisions of Section 8 are
complied with).
(c) Each Borrower shall repay the aggregate principal amount of all outstanding
Advances in any event by no later than the end of Term.
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(d) Borrowers recognise that the amounts evidenced by checks, notes, drafts or
any other items of payment relating to and/or proceeds of Security Assets
may not be collectible by Agent on the date received. In consideration of
Agent's agreement to conditionally credit a Borrower's account as of the
Business Day on which Agent receives those items of payment, each Borrower
agrees that, in computing the charges under this Agreement, all items of
payment shall be deemed applied by Agent on account of the Obligations one
(1) Business Day after receipt by Agent of good funds with respect to such
items of payment. Agent is not, however, required to credit any Borrower's
account for the amount of any item of payment which is unsatisfactory to
Agent and Agent may charge such Borrower's account for the amount of any
item of payment which is returned to Agent unpaid.
(e) All payments of principal, interest and other amounts payable hereunder, or
under any of the related agreements shall be made to Agent at the Payment
Office in the principal financial centre of the country of the relevant
currency on the due date therefor in lawful money of the country of the
relevant currency in immediately available funds to Agent. Agent shall have
the right to effectuate payment on any and all Obligations due and owing
hereunder by charging the applicable Borrower's account or by making
Advances as provided in Section 2.2 hereof.
(f) Obligors shall pay principal, interest, and all other amounts payable
hereunder, or under any related agreement, without any deduction
whatsoever, including, but not limited to, any deduction for any setoff or
counterclaim.
2.7 Currency
(i) A repayment or prepayment of an Advance or any part of an Advance is
payable in the currency in which such Advance is denominated on its
due date.
(ii) Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
(iii) Amounts payable in respect of costs, expenses and taxes and the like
are payable in the currency in which they are incurred.
(iv) Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in Dollars.
2.8 Statement of Account
Agent shall maintain, in accordance with its customary procedures, a loan
account in the name of each Borrower in which shall be recorded the date
and amount of each Advance made by Lenders and the date and amount of each
payment in respect thereof; provided, however, the failure by Agent to
record the date and amount of any Advance shall not adversely affect Agent
or any Lender. Each month, Agent shall send to Borrowing Agent
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a statement showing the accounting for the Advances made, payments made or
credited in respect thereof, and other transactions between Lenders and
each Borrower, during such month. The monthly statements shall be deemed
correct and binding upon Borrowers in the absence of manifest error and
shall constitute an account stated between Lenders and Borrowers unless
Agent receives a written statement of a Borrower's specific exceptions
thereto within thirty (30) days after such statement is received by
Borrowing Agent. The records of Agent with respect to the loan account
shall be prima facie evidence of the amounts of Advances and other charges
thereto and of payments applicable thereto, absent manifest error.
2.9 Additional Payments
Any sums expended by Agent or any Lender due to any Borrower's failure to
perform or comply with its obligations under this Agreement or any Other
Document including, without limitation, any Borrower's obligations under
Section 6.1 hereof, may be charged to such Borrower's account as a Advance
and added to the Obligations, provided Agent shall promptly thereafter
provide to Borrowing Agent a copy of documentation supporting such charges.
2.10 Manner of Borrowing and Payment
(a) Each borrowing of Advances shall be advanced according to the Commitment
Percentages of the Lenders.
(b) (i) Each payment (including each prepayment) by Borrowers on account of
the principal of and interest on the Advances, shall be applied to
the Advances pro rata according to the applicable Commitment
Percentages of the Lenders.
(c) (i) Notwithstanding anything to the contrary contained in Sections
2.13(a) and (b) hereof, commencing with the first Business Day
following the Effective Date, each borrowing of Advances shall be
advanced by Agent and each payment by Borrowers on account of
Advances shall be applied first to those Advances made by Agent. On
or before 1:00 p.m., London time, on each Settlement Date commencing
with the first Settlement Date following the Effective Date, Agent
and the Lenders shall make certain payments as follows: (I) if the
aggregate amount of new Advances made by Agent during the preceding
Week exceeds the aggregate amount of repayments applied to
outstanding Advances during such preceding Week (if any), then each
Lender shall provide Agent with funds in an amount equal to its
Commitment Percentage of the difference between (w) such Advances and
(x) such repayments and (II) if the aggregate amount of repayments
applied to outstanding Advances during such Week exceeds the
aggregate amount of new Advances made during such Week, then Agent
shall provide each Lender with funds in an amount equal to its
Commitment Percentage of the difference between (y) such repayments
and (z) such Advances.
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(ii) Each Lender shall be entitled to earn interest at the applicable
Contract Rate on outstanding Advances which it has funded.
(iii) Promptly following each Settlement Date, Agent shall submit to each
Lender a certificate with respect to payments received and Advances
made during the Week immediately preceding such Settlement date. Such
certificate of Agent shall be conclusive in the absence of manifest
error.
(d) If any Lender or any Transferee (a "benefited Lender") shall at any time
receive any payment of all or part of its Advances, or interest thereon, or
receive any Security Assets in respect thereof (whether voluntarily or
involuntarily or by set-off) in a greater proportion than any such payment
to and Security Assets received by any other Lender, if any, in respect of
such other Lender's Advances, or interest thereon, and such greater
proportionate payment or receipt of any Security Asset is not expressly
permitted hereunder, such benefited Lender shall purchase for cash from the
other Lenders such portion of each such other Lender's Advances, or shall
provide such other Lender with the benefits of any such Security Asset, or
the proceeds thereof, as shall be necessary to cause such benefited Lender
to share the excess payment or benefits of such Security Asset or proceeds
rateably with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from
such benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest. Each Lender so purchasing a portion of another Lender's Advances
may exercise all rights of payment (including, without limitation, rights
of set-off) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
(e) Unless Agent shall have been notified by telephone, confirmed in writing,
by any Lender that such Lender will not make the amount which would
constitute its applicable Commitment Percentage of the Advances available
to Agent, Agent may (but shall not be obligated to) assume that such Lender
shall make such amount available to Agent and, in reliance upon such
assumption, make available to Borrowers a corresponding amount. Agent will
promptly notify Borrowing Agent of its receipt of any such notice from a
Lender. If such amount is made available to Agent on a date after a
Settlement Date, such Lender shall pay to Agent on demand an amount equal
to its cost of funds and any other transactional costs associated with
movement of such fund from and including such Settlement Date to the date
on which such amount becomes immediately available to Agent. A certificate
of Agent submitted to any Lender with respect to any amounts owing under
this paragraph (e) shall be conclusive, in the absence of manifest error.
if such amount is not in fact made available to Agent by such Lender within
three (3) Business Days after such Settlement Date, Agent shall be entitled
to recover such an amount, with interest thereon at the domestic rate per
annum then applicable to Advances hereunder, on demand from Borrowers;
provided, however, that Agent's right to such recovery shall not prejudice
or otherwise adversely affect any Borrower's rights (if any) against such
Lender.
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(f) Notwithstanding anything to the contrary contained herein, in the event any
Lender (x) has refused (which refusal constitutes a breach by such Lender
of its obligations under this Agreement) to make available its Commitment
Percentage of any Advance or (y) notifies either Agent or Borrowers that it
does not intend to make available its Commitment Percentage of any Advance
(if the actual refusal would constitute a breach by such Lender of its
obligations under this Agreement) (each, a "Lender Default"), all rights
and obligations hereunder of such Lender (a "Defaulting Lender") as to
which a Lender Default is in effect and of the other parties hereto shall
be modified to the extent of the express provisions of this Section 2.13(f)
while such Lender Default remains in effect.
(i) Advances shall be allocated pro rata among Lenders (the "Non-
Defaulting Lenders") which are not Defaulting Lenders in accordance
with their respective Commitment Percentages, and no Commitment
Percentage of any Lender or any pro rata share of any Advances
required to be advanced by any Lender shall be increased as a result
of such Lender Default. Amounts received in respect of principal of
Advances shall be applied to reduce Advances of each Lender pro rata
based on the aggregate of the outstanding Advances of all Lenders at
the time of such application; provided that, such amount shall not
be applied to any Advances of a Defaulting Lender at any time when,
and to the extent that, the aggregate amount of Advances of any
Lender that is not a Defaulting Lender exceeds such Lender's
Commitment Percentage of all Advances then outstanding.
(ii) A Defaulting Lender shall not be entitled to give instructions to
Agent or to approve, disapprove, consent to or vote on any matters
relating to this Agreement or the Other Documents. All amendments,
waivers and other modifications of this Agreement and the Other
Documents may be made without regard to a Defaulting Lender and,
solely for purposes of the definition of "Required Lenders", a
Defaulting Lender shall be deemed not to be a Lender and not to have
Advances outstanding.
(iii) Other than as expressly set forth in this Section 2.10(f), the
rights and obligations of a Defaulting Lender (including the
obligation to indemnify Agent) and the other parties hereto shall
remain unchanged. Nothing in this Section 2.10(f) shall be deemed to
release any Defaulting Lender from its obligations under this
Agreement or the Other Documents, shall alter such obligations,
shall operate as a waiver of any default by such Defaulting Lender
hereunder, or shall prejudice any rights which any Borrower, Agent
or any Lender may have against any Defaulting Lender as a result of
any default by such Defaulting Lender hereunder.
(iv) In the event a Defaulting Lender retroactively cures, to the
satisfaction of Agent, the breach which caused such Lender to become
a Defaulting Lender, such Defaulting Lender shall no longer be a
Defaulting Lender and shall be treated as a Lender under this
Agreement.
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3. INTEREST AND FEES
3.1 Interest
(i) Interest on Advances shall be payable in arrears on the last day of
each Interest Period relating thereto and in the case of an Interest
Period in excess of three months' duration also on the date following
three months from the commencement of the Interest Period. Interest
charges shall be computed on the actual principal of Advances
outstanding during the month (the "Monthly Advances") at a rate per
annum equal to the applicable Contract Rate.
(ii) Default Interest
(1) If an Obligor fails to pay an amount payable by it under this
Agreement, it shall forthwith on demand by the Agent pay interest
on the overdue amount from the due date up to the date of actual
payment, as well after as before judgment, at a rate (the
"Default Rate") determined by the Agent to be 2 per cent. per
annum above the higher of:
(i) the rate on the overdue amount under Section 3.1
immediately before the due date (if of principal); and
(ii) the rate which would have been payable if the overdue
amount had, during the period of non-payment, constituted
an Advance in the currency of the overdue amount for such
successive Interest Periods of such duration as the Agent
may determine (each a "Designated Interest Period").
(2) The Default Rate will be determined by the Agent on each Business
Day or the first day of, or two Business Days before the first
day of, the relevant Designated Interest Period, as appropriate.
(3) If the Agent determines that deposits in the currency of the
overdue amount are not at the relevant time being made available
by the Reference Bank to leading banks in the London interbank
market, the default rate will be determined by reference to the
cost of funds to the Agent from whatever sources it may select.
(4) Default interest will be compounded at the end of each Designated
Interest Period.
(iii) So long as no Default or Event of Default shall have occurred and be
continuing, the Applicable Margin shall be increased or decreased, as
the case may be, as of the first day of each month following the
fiscal quarter reported upon in the
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financial statements delivered pursuant to Sections 9(g) and (h)
hereof, commencing with fiscal quarter ending 30th June, 1998, based
upon the ratio of Funded Indebtedness to EBITDA with respect to the
four (4) fiscal quarters then ended as reported upon in the
applicable financial statements.
3.2 Facility Fee
If, for any month during the Term, the average daily unpaid balance of the
Advances for each day of such month does not equal the Maximum Loan Amount,
then Borrower shall pay to Agent for the rateable benefit of the Lenders a
fee at the rate of the Applicable Margin per annum multiplied by the amount
by which the Maximum Loan Amount exceeds such average daily unpaid balance.
Such fee shall be payable to Agent in arrears on the last day of each month
and on the last day of the Term. So long as no Default or Event of Default
shall have occurred and be continuing, the Applicable Margin with respect
to this facility fee shall be increased or decreased, as the case may be,
as of the first day of each month following the fiscal quarter reported
upon in the financial statements delivered pursuant to Sections 9(g) and
(h) hereof, commencing with fiscal quarter ending 30th June; 1998 based
upon the ratio of Funded Indebtedness to EBITA with respect to the four (4)
fiscal quarters then ended as reported upon in the applicable financial
statement.
3.3 Security Monitoring Fee
Borrower shall pay to Agent (for the sole benefit of Agent) on the first
day of each month following any month in which Agent performs any security
monitoring - namely any field examination, security analysis or other
business analysis, the need for which is to be determined by Agent and
which monitoring is undertaken by Agent or for Agent's benefit - a security
monitoring fee in an amount equal to 500 Pound Sterling per day for each
person performing such monitoring, plus all costs and disbursements
incurred by Agent in the performance of such examination or analysis. In
addition, Borrowers agree to pay to NationsBank, N.A. (for so long as it is
a Lender hereunder) such security monitoring fee on the same terms and
conditions set forth above with respect to one security monitoring field
examination per year.
3.4 Computation of Interest and Fees
Interest and fees hereunder shall be computed on the basis of a year of 360
days and for the actual number of days elapsed. If any payment to be made
hereunder becomes due and payable on a day other than a Business Day, the
due date thereof shall be extended to the next succeeding Business Day and
interest thereon shall be payable at the applicable Contract Rate during
such extension.
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3.5 Maximum Charges
In no event whatsoever shall interest and other charges charged hereunder
exceed the highest rate permissible under law which a court of competent
jurisdiction shall, in a final determination, deem applicable hereto. In
the event that a court determines that Agent or any Lender has received
interest and other charges hereunder in excess of the highest rate
permissible hereto, such excess amount shall be first applied to any unpaid
principal balance owned by Borrowers, and if the then remaining excess
amount is greater than the previously unpaid principal balance, the Lenders
shall promptly refund such excess amount to Borrowers and the provisions
hereof shall be deemed amended to provide for such permissible rate.
3.6 Increased Costs
In the event that any applicable law, treaty or governmental regulation, or
any change therein or in the interpretation or application thereof, or
compliance by any Lender (for purposes of this Section 3.7, the term
"Lender" shall include Agent or any Lender and any corporation or bank
controlling Agent or any Lender) and the office or branch where Agent or
any Lender (as so defined) makes or maintains any Advance with any request
or directive (whether or not having the force of law) from any central bank
or other financial, monetary or other authority, shall:
(i) subject to Agent or any Lender to any tax of any kind whatsoever with
respect to this Agreement or any Advance or change the basis of
taxation of payments to Agent or any Lender of principal, fees,
interest or any other amount payable hereunder or under any Other
Documents (except for changes in the rate of tax on the overall net
income of Agent or any Lender by the jurisdiction in which it
maintains its principal office);
(ii) change the currency of a country, impose, modify or hold applicable
any reserve, special deposit, assessment or similar requirement
against assets held by, or deposits in or for the account of,
advances of loans by, or other credit extended by, any office of
Agent or any Lender, including (without limitation) pursuant to
Regulation D of the Board of Governors of the Federal Reserve System;
or
(iii) impose on Agent or any Lender or the London interbank currency market
any other condition with respect to this Agreement, any Other
Documents or any Advance;
and the result of any of the foregoing is to increase the cost to Agent or
Lender of making, renewing or maintaining its Advances hereunder by any
amount that Agent or such Lender deems to be material or to reduce the
amount of any payment (whether of principal, interest or otherwise) in
respect of any of the Advances by an amount that Agent or such Lender deems
to be material, then, in any case Borrowers shall promptly
25
pay Agent or such Lender, upon its demand, such additional amount as will
compensate Agent or such Lender for such additional cost or such reduction,
as the case may be, provided that the foregoing shall not apply to
increased costs which are reflected in the Interest Rate for any Interest
Period. Agent or such Lender shall certify the amount of such additional
cost or reduced amount to Borrowing Agent, and such certification shall be
conclusive absent manifest error.
3.7 Basis for Determining Interest Rate Inadequate or Unfair
In the event that Agent or any Lender shall have determined that:
(i) reasonable means do not exist for ascertaining the Interest Rate for
any Interest Period; or
(ii) deposits in the relevant currency and amount and for the relevant
maturity are not available in the London interbank Eurocurrency
market, with respect to an outstanding Advance or a proposed Advance
Loan;
then the Agent shall promptly notify the Borrowing Agent of the fact that
this Section 3.7 is in operation. After any notification under Section 3.7
the relevant Advance shall not be made. However, within five Business Days
of receipt of the notification, the Borrowing Agent and the Agent shall
enter into negotiations for a period of not more than 30 days with a view
to agreeing a substitute basis for determining the rate of interest and/or
funding applicable to that and (to the extent required) any future Advance.
Any substitute basis agreed shall be, with the prior consent of all the
Lenders, binding on all the parties hereto.
3.8 Capital Adequacy
(i) In the event that Agent or any Lender shall have determined that any
applicable law, rule, regulation or guideline regarding capital
adequacy, or any change therein, or any change in the interpretation
or administration thereof by any governmental authority, central bank
or comparable agency charged with the interpretation or
administration thereof, or compliance by Agent or any Lender (for
purposes of this Section 3.8, the term "Lender" shall include Agent
or any Lender and any corporation or bank controlling Agent or any
Lender) and the office or branch where Agent or any Lender (as so
defined) makes or maintains any Advance with any request or directive
regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on Agent or any
Lender's capital as a consequence of its obligations hereunder to a
level below that which Agent or such Lender could have achieved but
for such adoption, change or compliance (taking into consideration
Agent's and each Lender's policies with respect to capital adequacy)
by an amount deemed by
26
Agent or any Lender to be material, then, from time to time,
Borrowers shall pay upon demand to Agent or such Lender such
additional amount or amounts as will compensate Agent or such Lender
for such reduction. In determining such amount or amounts, Agent or
such Lender may use any reasonable averaging or attribution methods.
The protection of this Section 3.8 shall be available to Agent and
each Lender regardless of any possible contention of invalidity or
inapplicability with respect to the applicable law, regulation or
condition.
(ii) A certificate of Agent or such Lender setting forth such amount or
amounts as shall be necessary to compensate Agent or such Lender with
respect to Section 3.8(a) hereof when delivered to Borrowers shall be
conclusive absent manifest error.
4. CROSS-GUARANTEE
4.1 Cross Guarantee
Each Guarantor irrevocably and unconditionally, jointly and severally:
(a) as principal obligor guarantees to each of the Agent and each Lender
prompt performance by each Obligor of all its obligations under this
Agreement and the Other Documents;
(b) undertakes with each of the Agent and the Lender that whenever a
Borrower does not pay any amount when due under or in connection with
this Agreement and any Other Documents, that Guarantor shall
forthwith on demand by the Agent pay that amount as if the Guarantor
instead of the Obligor were expressed to be the principal obligor;
and
(c) indemnifies each of the Agent and the Lender on demand against any
loss or liability suffered by it if any obligation guaranteed by that
Guarantor is or becomes unenforceable, invalid or illegal.
4.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by the Obligors under this Agreement and any
Other Documents regardless of any intermediate payment or discharge in
whole or in part.
4.3 Reinstatement
(a) Where any discharge (whether in respect of the obligations of any Obligor
or any security for those obligations or otherwise) is made in whole or in
part on any arrangement is made on the faith of any payment, security or
other disposition which is avoided or must
27
be restored on insolvency, liquidation or otherwise without limitation, the
liability of each Guarantor under this Section 4 shall continue as if the
discharge or arrangement had not occurred.
(b) Each of the Agent and the Lenders may concede or compromise any claim that
any payment, security or other disposition is liable to avoidance or
restoration.
4.4 Waiver of defenses
The obligations of each Guarantor under this Section 4 will not be affected
by an act omission, matter or thing which, but for this provision, would
reduce, release or prejudice any of its obligations under this Section 4 or
prejudice or diminish those obligations in whole or in part, including
(whether or not know to it or any of the Agent or the Lenders):
(a) any time or waiver granted to, or composition with, any Obligor or
any other person;
(b) the taking, variation, compromise, exchange, renewal or release of,
or refusal or neglect to perfect, take up or enforce, any rights
against, or security over assets of, any Obligor or any other person
or any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise
the full value of any security;
(c) any incapacity or lack of powers, authority or legal personality of
or dissolution or change in the members or status of any Obligor or
any other person;
(d) any variation (however fundamental) or replacement of this Agreement
or any Other Documents or security so that references to this Agent
and any other Agreement in this Section 4 shall include each
variation or replacement.
(e) any unenforceability, illegality or invalidity of any obligation of
any person under this Agreement and any Other Documents or security,
to the intent that the Guarantor's obligations under this Section 4
shall remain in full force and its guarantee be construed
accordingly, as if there were no unenforceability, illegality or
invalidity; or
(f) any postponement, discharge, reduction, non-probability or other
similar circumstance affecting any obligation of any Obligor under
this Agreement and any Other Documents resulting from any insolvency,
liquidation or dissolution proceedings or from any law, regulation or
order so that each obligation shall for the purposes of each
Guarantor's obligations under this Section 4 to construed as if there
were no such circumstance.
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4.5 Immediate recourse
Each Guarantor waives any right it may have of first requiring any of the
Agent and the Lenders (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment from any
person before claiming from that Guarantor under this Section 4.
4.6 Appropriations
Until all amounts which may be or become payable by the Obligors under or
in connection with this Agreement and any Other Documents have been
irrevocably paid in full, each of the Agent and the Lenders (or any trustee
or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by the Agent or any Lender (or any trustee or
agent on its behalf) in respect of those amounts, or apply and enforce
the same in such manner and order as it sees fit (whether against
those amounts or otherwise) and no Guarantor shall be entitled to the
benefit of the same; and
(b) hold in a suspense account any moneys received from any Guarantor or
on account of the Guarantor's liability under this Section 4, without
liability to pay interest on those moneys.
4.7 Non-competition
Until all amounts which may be or become payable by the Obligors under or
in connection with this Agreement and any Other Documents have been
irrevocably paid in full, no Guarantor shall, after a claim has been made
or by virtue of any payment or performance by it under this Section 4:
(a) be subrogated to any rights, security or moneys held, received or
receivable by the Agent or the Lender (or any trustee or agent on its
behalf) or be entitled to any right of contribution or indemnity in
respect of any payment made or moneys received on account of that
Guarantor's liability under this Section 4;
(b) claim, ranking, prove or vote as a creditor of any Obligor or its
estate in competition with the Agent or the Lender (or any trustee or
agent on its behalf); or
(c) receive, claim or have the benefit of any payment, distribution or
security from or on account of any Obligor, or exercise any right of
set-off as against any Obligor.
29
Each Guarantor shall hold in trust for and forthwith pay or transfer to the
Agent for the Agent and the Lenders any payment or distribution or benefit
of security received by it contrary to this Section 4 as directed by the
Agent.
4.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by any
other security now or subsequently held by the Agent and the Lenders.
4.9 Thermisol Sweden
Thermisol Sweden shall not, where the distribution restrictions in the
provisions of Chapter 12 Section 2 of the Swedish Companies Act
(Aktiebolagslagen (1975:1385) apply in relation to the guarantee given by
it hereunder, in each case taking into account the extent to which any
commercial benefit is derived by it in giving such guarantee, assume any
liability as Guarantor in respect of any indebtedness of any Obligor owed
or owing by such Obligor under or in connection with this Agreement or the
Other Agreements to the extent that the obligations and liabilities of
Thermisol Sweden in respect thereof would exceed an amount equal to the
lesser of:
(a) the amount of distributable reserves according to its last audited and
adopted balance sheet as at the date hereof; and
(b) an amount being available for distribution by it under Chapter 12
Section 2 second paragraph of the aforementioned Swedish Companies
Act.
5. REPRESENTATIONS AND WARRANTIES
Each Obligor represents and warrants to the Agent and the Lenders as
follows:
(a) Authority
It has full power, authority and legal right to enter into this
Agreement and the Other Documents and perform its respective
Obligations hereunder and thereunder. The execution, delivery and
performance hereof and of the Other Documents (a) are within its
respective corporate powers, have been duly authorised, are not in
contravention of law or the terms of any Obligor's by-laws,
certificate of incorporation or other applicable documents relating to
the formation or conduct of its respective business or of any material
agreement or undertaking to which it is a party or by which it is
bound, and (b) will not conflict with nor result in any breach in any
of the provisions of or constitute a default under or result in the
creation of any Lien except Permitted Encumbrances upon any of its
respective assets under the provisions of any agreement, charter
30
document, instrument, by-law, or other instrument to which it or its
property is a party or by which it may be bound.
(b) Formation and Qualification
(i) Each is duly formed and in good standing under the laws of its
state of incorporation or formation and (in the case of each U.S.
Guarantor) is qualified to do business and is in good standing in
the states listed on Schedule 5.2(a) of the U.S. Credit Facility
(copy of which is attached hereto) which constitute all states in
which qualification and good standing are necessary for each to
conduct its business and own its property and where the failure
to so qualify could have a Material Adverse Effect. Each Obligor
has delivered to Agent true and complete copies of its
certificate of incorporation and/or by-laws and each will
promptly notify Agent of any amendment or changes thereto.
(ii The only Subsidiaries of Obligors are listed on Schedule
5(b)(ii).
(c) Survival of Representations and Warranties
All representations and warranties of each Obligor contained in this
Agreement and the Other Documents shall be true at the time of the
execution of this Agreement and the Other Documents, and shall survive
the execution, delivery and acceptance thereof by the parties thereto
and the closing of the transactions described therein or related
thereto.
(d) Tax Returns
Each U.S. Guarantor's federal tax identification number is set forth
on Schedule 5.4 of the U.S. Credit Facility (copy of which is attached
hereto). Each Obligors have each filed all applicable federal, state
and local tax returns and other reports it is required by law to file
and has paid all taxes, assessments, fees and other governmental
charges that are due and payable. The provision for taxes on the
books of Obligors are adequate for all years not closed by applicable
statutes, and for its current fiscal year, and no Obligor has any
knowledge of any deficiency or additional assessment in connection
therewith not provided for on its books.
(e) Financial Statements
(i) The pro forma balance sheet of Radnor on a Consolidated Basis
(the "Pro Forma Balance Sheet") furnished to Agent and the
Lenders on the Effective Date reflects the consummation of the
transactions contemplated by the StyroChem Europe Acquisition
Agreement, the Second Indenture and under this Agreement (the
"Transactions") and are accurate, complete
31
and correct and fairly reflect in all material respects the
financial condition of the Obligors on a consolidated basis as
of the Effective Date after giving effect to the Transactions,
and have been prepared in accordance with GAAP, consistently
applied. The Pro Forma Balance Sheet has been certified as
accurate, complete and correct in all material respects by the
Chief Financial Officer of Radnor. All financial statements
referred to in this subsection 5(e)(i), including the related
schedules and notes thereto, have been prepared, in accordance
with GAAP, except as may be disclosed in such financial
statements.
(ii) The twelve-month cash flow projections of Radnor on a
Consolidated Basis and their projected balance sheets as of the
Effective Date, copies of which have been previously submitted
to Agent and the Lenders ("the Projections") were prepared by
the Chief Financial Officer of each Obligor, are based on
underlying assumptions which provide a reasonable basis for the
projections contained therein and reflect such Obligor's
judgment based on present circumstances of the most likely set
of conditions and course of action for the projected period. The
Projections, together with the Pro Forma Balance Sheet of the
Obligors on a consolidated basis, are referred to as the "Pro
Forma Financial Statements".
(iii) The balance sheets of each Obligor as of 30th June, 1997, and
the related statements of income, changes in stockholder's
equity, and changes in cash flow for the period ended on such
date, which have been delivered to Agent, have been prepared in
accordance with GAAP, consistently applied and present fairly
the financial position of each Obligor at such date and the
results of their operations for such period. Since 30th June,
1997 there has been no change in the condition, financial or
otherwise, of any Obligor as shown on the balance sheets as of
such date, except changes in the ordinary course of business,
none of which individually or in the aggregate has caused a
Material Adverse Effect.
(f) Corporate Name
No Obligor has been known by any other corporate name in the past five
years and does not sell Inventory under any other name except as set
forth on Schedule 5.6 of the U.S. Credit Facility (copy of which is
attached hereto), nor has any Obligor been the surviving entity of a
merger or consolidation or acquired all or substantially all of the
assets of any Person during the preceding five (5) years, except for
(i) the dissolution of Wincup L.P., (ii) the acquisition of certain
assets of Wincup from ▇▇▇▇▇ River and Wincup L.P., (iii) the
acquisition of stock of Acquisition pursuant to the Acquisition
Agreement and (iv) the acquisition by Radnor of the limited
partnership interest of ▇▇▇▇▇ River in Wincup L.P.
32
(g) Solvency; No Litigation, Violation, Indebtedness or Default
(i) After giving effect to the Transactions, each Obligor will be
solvent, able to pay its respective debts as they mature, have
capital sufficient to carry on its respective business and all
businesses in which it its about to engage, and (i) as of the
Effective Date, the fair present saleable value of its assets,
calculated on a going concern basis, is in excess of the amount
of its liabilities and (ii) subsequent to the Effective Date,
the fair saleable value of its assets (calculated on a going
concern basis) will be in excess of the amount of its
liabilities.
(ii) Except as disclosed in Schedule 5.8(b) of the U.S. Credit
Facility (a copy of which is attached hereto) or the Pro Forma
Financial Statements, no Obligor has (i) any pending or
threatened litigation, arbitration, actions or proceedings which
involve the possibility of having a Material Adverse Effect on
such Obligor or on its ability to perform this Agreement, and
(ii) any liabilities nor indebtedness other than the
Obligations.
(iii) No Obligor is in violation of any applicable statute, regulation
or ordinance in any respect which could have a Material Adverse
Effect on such Obligor and no Obligor is in violation of any
order of any court, governmental authority or arbitration board
or tribunal which could have a Material Adverse Effect on such
Obligor.
(h) Patents, Trademarks, Copyrights and Licenses
All patents, patent applications, trademarks, trademark applications,
service marks, service ▇▇▇▇ applications, copyrights, copyright
applications, design rights, tradenames, assumed names, trade secrets
and licenses owned or utilised by any Obligor are set forth on
Schedule 5.9 of the U.S. Credit Facility (copy of which is attached
hereto), are valid and have been duly registered or filed with all
appropriate governmental authorities and constitute all of the
intellectual property rights which are necessary for the operation of
its business; there is no objection to or pending challenge to the
validity of any such material patent, trademark, copyright, design
rights tradename, trade secret or license and no Obligor is aware of
any grounds for any challenge, except as set forth in Schedule 5.9 of
the U.S. Credit Facility (copy of which is attached hereto). Each
patent, patent application, patent license, trademark, trademark
application, trademark license, service ▇▇▇▇, service ▇▇▇▇
application, service ▇▇▇▇ license, copyright, copyright application
and copyright license owned or held by any Obligor and all trade
secrets used by any Obligor consist of original material or property
developed by such Obligor or was lawfully acquired by such Obligor
from the proper and lawful owner thereof. Each of such items has been
maintained so as to preserve the value thereof from the date of
creation or acquisition thereof. With respect to
33
all software used by any Obligor, such Obligor is in possession of all
source and object codes related to each piece of software or is the
beneficiary of a source code escrow agreement, each such source code
escrow agreement being listed on Schedule 5.9 of the U.S. Credit
Facility (copy of which is attached hereto).
(i) Licenses and Permits
Except as set forth in Schedule 5.10 of the U.S. Credit Facility (copy
of which is attached hereto), each Obligor (a) is in compliance with
and (b) has procured and is now in possession of, all material
licenses or permits required by any applicable federal, state or local
law or regulation for the operation of its business in each
jurisdiction wherein it is now conducting or proposes to conduct
business and where the failure to procure such licenses or permits
could have a Material Adverse Effect.
(j) Default of Indebtedness
No Obligor is in default in the payment of the principal of or
interest on any Indebtedness or under any instrument or agreement
under or subject to which any Indebtedness has been issued and no
event has occurred under the provisions of any such instrument or
agreement which with or without the lapse of time or the giving of
notice, or both, constitutes or would constitute an event of default
thereunder.
(k) No Default
No Obligor is in default in the payment or performance of any of its
material contractual obligations and no Default has occurred.
(l) No Burdensome Restrictions
No Obligor is party to any contract or agreement the performance of
which could have a Material Adverse Effect. No Obligor has agreed or
consented to cause or permit in the future (upon the happening of a
contingency or otherwise) any of its property, whether now owned or
hereafter acquired, to be subject to a Lien which is not a Permitted
Encumbrance.
(m) No Labour Disputes
No Obligor is involved in any labour dispute; there are no strikes or
walkouts or union organisation of any Obligor's employees threatened
or in existence and no labour contract is scheduled to expire during
the Term other than as set forth on Schedule 5.14 of the U.S. Credit
Facility (copy of which is attached hereto).
34
(n) Margin Regulations
No Obligor is engaged, nor will either of them engage, principally or
as one of its important activities, in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms
under Regulation U or Regulation G of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in
effect. No part of the proceeds of any Advance will be used for
"purchasing" or "carrying" "margin stock" as defined in Regulation U
of such Board of Governors.
(o) Investment Company Act
No Obligor is an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended, nor
is either entity controlled by such a company.
(p) Disclosure
No representation or warranty made by any Obligor in this 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.
There is no fact known to any Obligor or which reasonably should be
known to any Obligor which such Obligor has not disclosed to Agent in
writing with respect to the transactions contemplated by the StyroChem
Europe Acquisition Agreement or this Agreement which could reasonably
be expected to have a Material Adverse Effect.
(q) Delivery of StyroChem Europe Acquisition Agreement
Agent and Lenders have received complete copies of the StyroChem
Europe Acquisition Agreement and the Second Indenture (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 therefore been delivered to Agent and Lenders.
(r) Swaps
No Obligor is a party to, nor will it be a party to, any swap
agreement whereby such Obligor has agreed or will agree to swap
interest rates or currencies unless
35
same provides that damages upon termination following an event of
default thereunder are payable on an unlimited "two-way basis" without
regard to fault on the part of either party.
(s) Conflicting Agreements
No provision of any mortgage, indenture, contract, agreement,
judgment, decree or order binding on any Obligor or affecting any
Security Assets conflicts with, or requires any Consent which has not
already been obtained to, or would in any way prevent the execution,
delivery or performance of, the terms of this Agreement or the Other
Documents.
(t) Applications of Certain Laws and Regulations
No Obligor nor any Affiliate of any Obligor is subject to any statute,
rule or regulation which regulates the incurrence of any Indebtedness,
including without limitation, statutes or regulations relative to
common or interstate carriers or to the sale of electricity, gas,
steam, water, telephone, telegraph or other public utility services.
(u) Business and Property of the Obligor
Upon and after the Effective Date, the Obligors propose to engage
substantially in the business of manufacturing and/or distributing
polystyrene beads and disposable products sold to or through the food
service industry and activities necessary to conduct the foregoing.
On the Effective Date, each Obligor will own all the property and
possess all of the rights and Consents necessary for the conduct of
its business.
(v) Acquisition
Each Obligor has acquired all of its assets and property in accordance
with all applicable statutes and laws, such property is free and clear
of all Liens other than Permitted Encumbrances.
6. AFFIRMATIVE COVENANTS
Each Obligor shall, until payment in full of the Obligations and
termination of this Agreement:
(a) Payment of Fees
Pay to Agent on demand all usual and customary fees and expenses which
Agent incurs in connection with the forwarding of Advance proceeds.
Agent may,
36
without making demand, charge the accounts of the Obligors for all
such fees and expenses, provided Agent shall promptly thereafter
provide Borrowing Agent with copies of supporting documentation.
(b) Conduct of Business and Maintenance of Existence and Assets
(i) Conduct continuously and operate actively its business according
to good business practices and maintain all of its properties
useful or necessary in its business in good working order and
condition (reasonable wear and tear excepted and except as may
be disposed of in accordance with the terms of this Agreement),
including, without limitation, all licenses, patents,
copyrights, design rights, tradenames, trade secrets and
trademarks and in the case of StyroChem Finland and Thermisol
Finland take all actions necessary to enforce and protect the
validity of any intellectual property right or other right
included in the Security Assets;
(ii) keep in full force and effect its existence and comply in all
material respects with the laws and regulations governing the
conduct of its business; and
(iii) make all such reports and pay all such franchise and other taxes
and license fees and do all such other acts and things as may be
lawfully required to maintain its rights, licenses, leases,
powers and franchises under the laws of the state or the country
of its incorporation or any political subdivision thereof.
(c) Violations
Promptly notify Agent in writing of any violation of any law, statute,
regulation or ordinance of any Governmental Body, or of any agency
thereof, applicable to any Obligor which may have a Material Adverse
Effect on any Obligor.
37
(d) Net Worth
Cause to be maintained Net Worth of Radnor on a Consolidated Basis in
an amount not less than the amounts set forth below as of the dates
set forth below:
Date Amount
------
12-31-97 $ 7,000,000
12-31-98 $ 8,000,000
12-31-99 $ 9,000,000
12-31-00 $10,000,000
12-31-01 $10,000,000
12-31-02 $10,000,000
(e) Current Ratio
Cause to be maintained a ratio of Current Assets to Current
Liabilities for Radnor on a Consolidated Basis of not less than 1.00
to 1.00 at the end of each fiscal quarter.
(f) Fixed Charge Coverage
Cause to be maintained for each fiscal quarter of Radnor on a
Consolidated Basis a Fixed Charge Coverage equal to or greater than
1.00 to 1.00 at the end of each fiscal quarter for the most recent
four fiscal quarters then ended.
(g) Interest Coverage
Cause to be maintained for each fiscal quarter of Radnor on a
Consolidated Basis an Interest Coverage equal to or greater than 1.25
to 1.00 at the end of each fiscal quarter for the most recent four
fiscal quarters then ended.
(h) Net Income
Achieve net income for Radnor on a Consolidated Basis (excluding non-
cash extraordinary items) of at least $1 in each fiscal year.
(i) Execution of Supplemental Instruments
Execute and deliver to Agent from time to time, upon demand, such
supplemental agreements, statements, assignments and transfers, or
instructions or documents and such other instruments as Agent may
request, in order that the full intent of this Agreement or the
Security Documents or Other Documents may be carried into effect.
38
(j) Payment of Indebtedness
Pay, discharge or otherwise satisfy at or before maturity (subject,
where applicable, to specified grace periods and, in the case of the
trade payables, to normal payment practices) all its material
obligations and liabilities of whatever nature, except when the amount
or validity thereof is currently being contested in good faith by
appropriate proceedings and each Obligor shall have provided for such
reserves as Agent may reasonably deem proper and necessary, subject at
all times to any applicable subordination arrangement in favour of
Agent and the Lenders.
(k) Standards of Financial Statements
Cause all financial statements referred to in Sections 9.7, 9.8, 9.9,
9.10, 9.11, 9.12, 9.13 and 9.14 as to those to which GAAP is
applicable to be complete and correct in all material respects
(subject, in the case of interim financial statements, to normal year-
end audit adjustments) and to be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods
reflected therein (except as concurred in by such reporting
accountants or officer, as the case may be, and disclosed there).
(l) Exercise of Rights
Enforce all of its rights under the StyroChem Europe Acquisition
Agreement and all documents 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.
(m) Environmental Matters
(i) The Obligors will ensure that all real property owned or
occupied by Obligors remains in compliance in all material
respects with all Environmental Laws and they will not place
or permit to be placed any Hazardous Substances on any such
property except as not prohibited by applicable law or
appropriate governmental authorities.
(ii) Obligors will establish and maintain a system to assure and
monitor continued compliance with all applicable Environmental
Laws which system shall include periodic reviews of such
compliance.
(iii) Promptly upon the written request of Agent from time to time,
each Obligor shall provide Agent, at Obligors' expense, with
an environmental site assessment or environmental audit report
prepared by an environmental engineering firm acceptable in
the reasonable opinion of
39
Agent, to assess with a reasonable degree of certainty the
existence of a Hazardous Discharge and the potential costs in
connection with abatement, cleanup and removal of any
Hazardous Substances found on, under, at or within any real
property owned or occupied by an Obligor. Any report or
investigation of such Hazardous Discharge proposed and
acceptable to an appropriate Authority that is charged to
oversee the clean-up of such Hazardous Discharge shall be
acceptable to Agent. If such estimates, individually or in the
aggregate, exceed $100,000, Agent shall have the right to
require the Obligors to post a bond, letter of credit or other
security reasonably satisfactory to Agent to secure payment of
these costs and expenses.
(iv) Each Obligor shall defend and indemnify Agent and the Lenders
and hold Agent, the Lenders and their respective employees,
agents, directors and officers harmless from and against all
loss, liability, damage and expense, claims, costs, fines and
penalties, including attorney's fees, suffered or incurred by
Agent or the Lenders under or on account of any Environmental
Laws, including, without limitation, the assertion of any lien
thereunder, with respect to any Hazardous Discharge, the
presence of any Hazardous Substances, whether or not the same
originates or emerges from any real property owned or occupied
by an Obligor or any contiguous real estate, except to the
extent such loss, liability, damage and expense is
attributable to any Hazardous Discharge resulting from actions
on the part of Agent or any Lender. Obligors' obligations
under this Section 6(m) shall arise upon the discovery of the
presence of any Hazardous Substances at any real property
owned or occupied by an Obligor, whether or not any federal,
state, or local environmental agency has taken or threatened
any action in connection with the presence of any Hazardous
Substances. Obligors' obligations and the indemnification
hereunder shall survive the termination of this Agreement.
7. NEGATIVE COVENANTS
No Obligor shall, until satisfaction in full of the Obligations and
termination of this Agreement with the Other Agreements:
(a) Merger, Consolidation, Acquisition and Sale of Assets
(i) Enter into any merger, consolidation or other reorganisation
with or into any other Person (other than another Obligor) or
acquire all or substantial portion of the assets or stock of
any Person (other than another Obligor) or permit any other
Person (other than another Obligor) to consolidate with or
merge with it.
40
(ii) Sell, lease, transfer or otherwise dispose of all or any
material part of its properties or assets, except in the
ordinary course of its business.
(b) Creation of Liens
Create or suffer to exist any Lien or transfer upon or against any of
its property or assets not owned or hereafter acquired, except
Permitted Encumbrances.
(c) Guarantees
Become liable upon the obligations of any Person by assumption,
endorsement or guaranty thereof or otherwise (other than to Lenders or
to any Affiliates of Lenders) except (a) as disclosed on Schedule 7.3
of the U.S. Credit Facility (copy of which is attached hereto), and
(b) the endorsement of checks in the ordinary course of business.
(d) Investments
Purchase or acquire obligations or stock of, or any other interest in,
any Person, except (a) obligations issued or guaranteed by the United
States of America or any agency thereof; (b) commercial paper with
maturities of not more than 180 days and a published rating of not
less than A-1 or P-1 (or the equivalent rating); (c) certificates of
time deposit and bankers' acceptances having maturities of not more
than 180 days and repurchase agreements backed by United States
government securities of a commercial bank if (i) such bank has a
combined capital and surplus of at least $500,000,000, or (ii) its
debt obligations, or those of a holding company of which it is a
Subsidiary, are rated not less than A (or the equivalent rating) by a
nationally recognised investment rating agency; (d) U.S. money market
funds that invest solely in obligations issued or guaranteed by the
United States of America or an agency thereof; and (e) investments in
one or more Subsidiaries, joint ventures or other Affiliates in an
aggregate sum not to exceed the sum of (i) 50% of the cumulative net
income of Radnor on a Consolidated Basis plus (ii) $3,000,000;
provided, at the time of such investment (x) no Event of Default has
occurred or would occur after giving effect to such payment and (y)
and after giving effect to such investment the Undrawn Availability is
more than $2,000,000.
(e) Loans
Make advances, loans or extensions of credit to any Person, including
without limitation, any Parent, Subsidiary or Affiliate except with
respect to (a) the extension of commercial trade credit in connection
with the sale of Inventory in the ordinary course of its business, (b)
loans to its employees in the ordinary course of business not to
exceed the aggregate amount of $100,000 at any time
41
outstanding provided, the provisions of this subclause (b) shall not
prohibit any loans to an irrevocable life insurance trust established
by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Insurance Trust") for the purposes of paying
annual premiums on the life insurance policies owned by the Insurance
Trust on the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ in an aggregate amount not to
exceed $700,000 outstanding at any one time, (c) loans to another
Obligor so long as (i) such loan or advance is evidenced by a
promissory note and such note is assigned to Agent as collateral
security for the Obligations and (ii) at the time of such loan no
Event of Default has occurred or would occur after giving effect to
such loan or advance, (d) loans to StyroChem International, Ltd. in an
aggregate amount not to exceed $4,000,000 at any time outstanding so
long as (i) after giving effect to any such loan or advance the
Undrawn Availability is more than $2,000,000 and (ii) at the time of
such loan no Event of Default has occurred or would occur after giving
effect to such loan or advance and (f) loans to Affiliates of the
Obligors not to exceed $5,000,000 in the aggregate.
(f) Capital Expenditures
Contract for, purchase or make any expenditure or commitments for
fixed or capital assets (including capitalised leases) in an amount in
excess of the amounts set forth below for the fiscal years set forth
below with respect to Radnor on a Consolidated Basis:
Fiscal Year Ended Amount
31-12-97 $15,000,000
31-12-98 21,100,000
31-12-99 17,100,000
31-12-00 14,000,000
31-12-01 9,900,000
31-12-02 7,400,000
(g) Dividends: Distributions
Declare, pay or make any dividend or distribution to any of its
shareholders or apply any of its funds, property or assets to the
purchase, redemption or other retirement of any of its capital stock
except, so long as (a) a notice of termination with regard to this
Agreement shall not be outstanding and (b) if Undrawn Availability is
less than $5,000,000 the purpose for such distribution shall be as
42
set forth in writing to Lenders at least ten (10) days prior to such
distribution and such distribution shall in fact be used for such
purpose: (i) any Obligor shall be permitted to make distributions to
any of its shareholders who are Obligors hereunder to enable Radnor to
make its regularly scheduled payments of interest on the Senior Notes
and the Second Senior Notes if (x) the aggregate amount of such
distributions do not exceed the interest payments then required to be
paid by Radnor on the Senior Notes or the Second Senior Notes, as the
case may be, and (y) at the time of and after giving effect to any
such distribution no Event of Default has occurred or would occur; and
(iii) any Obligor shall be permitted to make distributions to any of
its shareholders for any purpose if at the time of and after giving
effect to such distribution no Event of Default has occurred or would
occur, (y) in the event that Borrowers have Advances outstanding
hereunder in excess of $2,000,000 at the time of such distribution,
after giving effect to such distribution the difference between (1)
Undrawn Availability is more than $2,000,000 and (z) in the event such
distribution is made by Radnor, after giving effect to such
distribution, the aggregate amount of all payments or distributions
made by Radnor during such fiscal year does not exceed 50% of the net
income of Radnor on a Consolidated Basis for the immediately preceding
fiscal year.
(h) Indebtedness
Create, incur, assume or suffer to exist any Indebtedness (exclusive
of trade debt) except in respect of (i) Indebtedness to Lenders; (ii)
Indebtedness incurred for capital expenditures permitted under Section
7.6 hereof; (iii) Indebtedness due under the Senior Notes and the
Second Senior Notes; and (iv) Indebtedness in a maximum aggregate
amount outstanding not greater than $10,000,000 (when added to the
amount of Indebtedness incurred by all other Borrowers).
Notwithstanding the foregoing, the Obligors may incur Indebtedness in
excess of the foregoing amounts if, after giving pro forma effect to
the incurrence of such Indebtedness, Interest Coverage Ratio for each
of the four fiscal quarters most recently ended would equal or exceed
2.0 or 1.0 if calculated as if such Indebtedness was outstanding for
the entire four quarter period.
(i) Nature of Business
Substantially change the nature of the business in which it is
presently engaged, nor except as specifically permitted hereby
purchase or invest, directly or indirectly, in any assets or property
other than in the ordinary course of business for assets or property
which are useful in, necessary for and are to be used in its business
as presently conducted.
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(j) Transactions with Affiliates
Directly or indirectly, purchase, acquire or lease any property from,
or sell, transfer or lease any property to, or otherwise deal with,
any Affiliate, except transactions disclosed in the ordinary course of
business, on an arm's length basis on terms no less favourable than
terms which would have been obtainable from a Person other than an
Affiliate provided the provisions of this Section 7(j) shall not
prohibit any payments to Radnor Management, Inc. ("Management") in
accordance with the provisions of the Management Services Agreement
dated as of 18th December, 1996 among Management, Borrowers, StyroChem
International, Ltd. and StyroChem FSC, Limited. ("Management
Agreement") in an aggregate amount not to exceed the actual Expenses
under and as defined in the Management Agreement.
(k) Leases
Enter as lessee into any lease arrangement for real or personal
property (unless capitalised and permitted under Section 7.6 hereof)
if after giving effect thereto, aggregate annual rental payments for
all leased property would exceed $6,000,000 in any one fiscal year.
(l) Subsidiaries
(i) Form any Subsidiary unless (A) (i) such Subsidiary expressly
joins in this Agreement as a Obligor and becomes jointly and
severally liable for the obligations of Obligors hereunder and
under any other agreement between Obligors, Agent and Lenders
and (ii) Agent shall have received all documents, including
legal opinions, it may reasonably require to establish
compliance with each of the foregoing condition or (B) such
Subsidiary is formed pursuant to the provisions of Section 7.4
hereof.
(ii) Enter into any partnership, joint venture or similar
arrangement unless the amount invested therein is less than
$5,000,000 per year in the aggregate.
(m) Fiscal Year and Accounting Changes
Change its fiscal year from December 31 or make any change (i) in
accounting treatment and reporting practices except as required by
GAAP or (ii) in tax reporting treatment except as required by law.
44
(n) Pledge of Credit
Now or hereafter pledge any Lender's credit on any purchases or for
any purposes whatsoever or use any portion of any Advance in or for
any business other than Obligor's business as conducted on the date of
this Agreement.
(o) Amendment of Certificate of Incorporation
Amend, modify or waive any material term or material provision of its
constitutional documents, the Senior Notes or the Second Senior Notes.
(p) Senior Notes
At any time, directly or indirectly, pay, prepay, repurchase, redeem,
retire or otherwise acquire, or make any payment on account of any
principal of, interest on or premium payable in connection with the
repayment or redemption of the Senior Notes, except that Radnor may
(i) pay all regularly scheduled payments of interest on the Senior
Notes so long as no Event of Default has occurred or would occur after
giving effect to such payment and (ii) repurchase Senior Notes so long
as after giving effect to such repurchase Undrawn Availability of
Radnor under the U.S. Credit Facility is not less than $15,000,000.
(q) Second Senior Notes
At any time, directly or indirectly, pay, prepay, repurchase, redeem,
retire or otherwise acquire, or make any payment on account of any
principal of, interest on or premium payable in connection with the
repayment or redemption of the Second Senior Notes, except that Radnor
may (i) pay all regularly scheduled payments of interest on the Second
Senior Notes so long as no Event of Default has occurred or would
occur after giving effect to such payment and (ii) repurchase Second
Senior Notes so long as after giving effect to such repurchase Undrawn
Availability of Radnor under the U.S. Credit Facility is not less than
$15,000,000.
(r) Prepayment of Indebtedness
At any time, directly or indirectly, prepay any Indebtedness (other
than to Agent and the Lenders), or repurchase, redeem, retire or
otherwise acquire any Indebtedness of Obligor, except Senior Notes and
Second Senior Notes in accordance with Section 7(q) and 7(p).
8. CONDITIONS PRECEDENT
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8.1 Conditions to Initial Advances
The agreement of Agent and each Lender hereunder is subject to the
satisfaction, or waiver by Required Lenders, immediately prior to or
concurrently with the making of the first Advance hereunder, of the
following conditions precedent:
(a) Security Documents
The Agent shall have received the Security Documents duly executed and
delivered by an authorised officer of each of StyroChem Finland and
Thermisol Finland and the U.S. Guarantors, respectively;
(b) Filings, Registrations and Recordings
Each document (including, without limitation, any Uniform Commercial
Code financing statement) required by this Agreement, the Security
Documents, any related agreement or under law or reasonably requested
by the Agent to be filed, registered or recorded in order to create,
in favour of Agent for its benefit and for the rateable benefit of the
Lenders, a perfected security interest in or lien upon the Security
Assets shall have been properly filed, registered or recorded in each
jurisdiction in which the filing, registration or recordation thereof
is so required or requested, and Agent shall have received an
acknowledgment copy, or other evidence satisfactory to it, of each
such filing, registration or recordation and satisfactory evidence of
the payment of any necessary fee, tax or expense relating thereto;
(c) Thermisol Sweden
Agent shall have received a certified copy of a notification from the
Swedish tax authorities exempting the Guarantee to be given by
Thermisol Sweden hereunder from any Swedish company law financial
assistance prohibitions.
(d) Proceedings of Obligors
Agent shall have received a copy of the resolutions in form and
substance reasonably satisfactory to Agent, of the Board of Directors
of Obligors, authorising (i) the execution, delivery and performance
of this Agreement, and in the case of StyroChem Finland, Thermisol
Finland and the U.S. Guarantors the Security Agreements, each Obligor,
any related agreements, the StyroChem Europe Acquisition Agreement,
and in the case of Obligor party thereof, the Senior Notes, the Second
Senior Notes and all documents executed in connection therewith
(collectively the "Documents") and (ii) the granting by the relevant
Obligor of the security interests in and liens upon the Security
Assets in each case certified by the President or a duly authorised
officer of such Obligor on a date
46
not earlier than the Effective Date; and, such certificate shall state
that the resolutions thereby certified have not been amended,
modified, revoked or rescinded as of the date of such certificate;
(e) Incumbency Certificates of Obligors
Agent shall have received a certificate of the Secretary of each
Obligor, dated not earlier than the Effective Date, as to the
incumbency and signature of the officers of each Obligor executing
this Agreement, and in the case of StyroChem Finland and Thermisol
Finland and each U.S. Guarantor, the Security Documents, and
certificate or other documents to be delivered by it pursuant hereto,
together with evidence of the incumbency of such officer;
(f) Certificates
Agent shall have received a copy of the Articles or Certificate of
Incorporation or other constitutional documents, and all amendments to
the foregoing, certified by the Secretary of State (where applicable)
or by an authorised officer of each Obligor together with copies of
the by-laws and shareholders agreements of each Obligor, as
applicable, certified as accurate and complete by the general partner
if applicable, or an authorised officer of each Obligor or secretary
of each Obligor;
(g) Good Standing Certificates
In respect of each U.S. Guarantor, Agent shall have received good
standing certificates for such U.S. Guarantor dated not more than ten
(10) days prior to the Effective Date, issued by the Secretary of
State (where applicable) or by an appropriate officer of such U.S.
Guarantor or other appropriate official of such U.S. Guarantor's
jurisdiction of formation and each jurisdiction where the conduct of
such U.S. Guarantor's business activities or the ownership of its
properties necessitates qualification;
(h) Legal Opinions
Agent shall have received the executed legal opinions of Duane, Morris
& Heckscher in respect of each U.S. Guarantor 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 contemplated by this Agreement, the StyroChem Europe
Acquisition Agreement, the Security Documents and related agreements
as Agent may reasonably require and the Obligors hereby authorise and
direct such counsel to deliver such opinions to Agent and the Lender;
47
(i) No Litigation
(A) No litigation, investigation or proceeding before or by any
arbitrator or Governmental Body shall be continuing or threatened
against any Obligor or against the officers or directors of any
Obligor (A) in connection with the Documents or any of the
transactions contemplated thereby and which, in the reasonable
opinion of the Agent, is deemed material or (B) which if
adversely determined, could, in the reasonable opinion of the
Agent, have a Material Adverse Effect on any Obligor; and
(B) no injunction, writ, restraining order or other order of any
nature materially adverse to any Obligor or the conduct of its
business or inconsistent with the due consummation of the
Transactions shall have been issued by any Governmental Body;
(j) Financial Condition Opinions
Agent shall have received, in respect of each U.S. Guarantor, an
executed Officers' Certificate in the form of Exhibit 8.1(j).
(k) Security Assets Examination
Agent shall have completed Security Assets examinations and received
appraisals as shall be required by the Lenders with respect to the
Receivables, Inventory and General Intangibles subject to the Security
Documents the results of which shall be satisfactory in form and
substance to the Agent;
(l) Pro Forma Financial Statements
Agent and Lenders shall have received a copy of the Pro Forma
Financial Statements which shall be satisfactory in all respects to
Lenders;
(m) Other Documents
Agent and Lenders shall have received final executed copies of the
StyroChem Europe Acquisition Agreement, the Second Senior Notes and
the Second Indenture and all related agreements, documents and
instruments as in effect on the Effective Date all of which shall be
in form and substance satisfactory to Agent and Lenders and shall
provide, among other things, for such indemnifications and consents as
Agent or any Lender deems reasonably necessary and the transactions
contemplated by such documentation shall be consummated concurrently
with the making of the initial Advance hereunder;
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(n) Consents
Agent shall have received any and all Consents necessary to permit the
effectuation of the transactions contemplated by this Agreement and
the Other Documents; and, Agent shall have received such Consents and
waivers of such third parties as might assert claims with respect to
the Security Assets, as Agent and its counsel shall deem necessary;
(o) No Material Adverse Change
(i) since 30th June, 1997 (a) no material adverse change shall have
occurred in the condition, financial or otherwise, operations,
properties or prospects of any Obligor, (b) no material damage or
destruction shall have occurred to any of the Security Assets and no
material depreciation in the value thereof, (c) no material adverse
deviation shall have occurred from the forecasts and projections
previously delivered to Agent and (d) no event, condition or state of
facts which could reasonably be expected to have a Material Adverse
Effect on any Obligor shall have occurred and (ii) no representations
made or information supplied to Agent or the Lenders shall have been
proven to be inaccurate or misleading in any material respect;
(p) Contract Review
Agent shall have reviewed all material contracts of each Obligor
including, without limitation, leases, union contracts, labour
contracts, vendor supply contracts, license agreements and
distributorship agreements and such contracts and agreements shall be
satisfactory in all respect to Agent;
(q) Closing Certificate
Agent shall have received closing certificate signed by the Chief
Financial Officer of each Obligor dated as of the date hereof, stating
that (i) all representations and warranties made by each as set forth
in this Agreement and the Other Documents are true and correct on and
as of such date, (ii) the Obligors are on such date in compliance with
all the terms and provisions set forth in this Agreement and the Other
Documents and (iii) on such date no Default or Event of Default has
occurred or is continuing;
(r) Borrowing Base
Agent and Lenders shall have received evidence from the Obligors that
the aggregate amount of Eligible Receivables and Eligible Inventory is
sufficient in value and amount to support Advances in the amount
requested by an Obligor on
49
the Effective Date and, so that after giving effect to the initial
Advances hereunder, the Obligors shall have Undrawn Availability of at
least $5,000,000;
(s) Agreements
Agent and Lenders shall have received copies of all agreements
evidencing the obligations of any Obligor with respect to its
Indebtedness for borrowed money, which agreements shall be in form and
substance satisfactory to Agent and shall set forth the conditions on
which (i) such Obligor may make and the holder(s) of such indebtedness
may receive payments with respect thereto and (ii) the holder(s) of
such indebtedness may accelerate such obligations, commence any action
against or otherwise exercise any rights or enforce any remedies
against such Obligor, which conditions shall be satisfactory in form
and substance to Agent in its discretion.
(t) StyroChem Europe Acquisition Agreement
Agent and Lenders shall have received evidence satisfactory to them
that Borrowers (other than StyroChem Europe) have acquired all of the
assets pursuant to the StyroChem Europe Acquisition Agreement in
accordance with all applicable laws and that such assets are free and
clear of all Liens other than Permitted Encumbrances.
(u) U.S. Credit Facility
Evidence satisfactory to Agent that the U.S. Credit Facility has been
duly authorised, executed and delivered to BNY Financial Corporation
and BNY Financial Corporation shall have advised Agent that it has
received all conditions preceding to closing.
(v) Other Documents
Agent shall have received the executed Other Documents (other than
those already delivered under (a) and (u) above, each in form and
substance satisfactory to Lenders.
(w) Insurance
Agent shall have received in form and substance satisfactory to Agent,
certified copies of each Obligor's casualty insurance policies
evidencing coverage on all Security Assets in such amounts, with such
carriers and covering such risks as is acceptable to Agent, together
with loss payable endorsements on Agent's standard form of loss payee
endorsement naming Agent as loss payee, and certified copies
50
of each Obligor's liability insurance policies, together with
endorsements naming Agent as an additional or co-insured.
8.2 Conditions to Each Advance
The agreement of Lenders to make any Advance requested to be made on any
date (including, without limitation, the initial Advance), is subject to
the satisfaction of the following conditions precedent as of the date such
Advance is made:
(a) Representations and Warranties. Each of the representations and
warranties made by Obligor in or pursuant to this Agreement, the Other
Documents and any related agreements to which it is a party, and each
of the representations and warranties contained in any certificate,
document or financial or other statement furnished at any time under
or in connection with this Agreement, the Other Documents or any
related agreement shall be true and correct in all material respects
on and as of such date as if made on and as of such date except as
such representations and warranties are modified in a manner
consistent with this Agreement and the Other Documents;
(b) No Default. No Event of Default or Default shall have occurred and be
continuing on such date, or would exist after giving effect to the
Advances requested to be made, on such date and, in the case of the
initial Advance, after giving effect to the consummation of the
transactions contemplated by the StyroChem Europe Acquisition
Agreement and the Senior Notes; provided, however that Lenders in
their sole discretion, may continue to make Advances notwithstanding
the existence of an Event of Default or Default and that any Advances
so made shall not be deemed a waiver of any such Event of Default or
Default; and
(c) Maximum Advances. In the case of any Advances requested to be made
after giving effect thereto, the aggregate Advances shall not exceed
the maximum Advances permitted under Section 2.1 hereof.
Each request for an Advance by any Borrower hereunder shall constitute a
representation and warranty by each Obligor as of the date of such Advance
that the conditions contained in this subsection shall have been satisfied.
9. INFORMATION
Each Obligor shall, until satisfaction in full of the Obligations and the
termination of this Agreement:
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(a) Disclosure of Material Matters
Immediately upon learning thereof, report to Agent all matters
materially affecting the value, enforceability or collectability of
any portion of the Security Assets including, without limitation, any
Obligor's reclamation or repossession of, or the return to any Obligor
of, a material amount of goods or claims or disputes asserted by any
Customer or other obligor.
(b) Schedules
Deliver to Agent, and if requested, the Lenders, on or before the
fifteenth (15th) day of each month as and for the prior month (a)
accounts receivable ageings, (b) accounts payable schedules and (c)
Inventory reports for each Borrower; provided, if Undrawn Availability
is less than $4,000,000 with respect to all Borrowers, Borrowers shall
provide Agent with daily reports of sales, collections, credits
issued, debits or other adjustments made by any Borrower with respect
to Receivables. In addition, each Borrower will deliver to Agent at
such intervals as Agent may require: (i) confirmatory assignment
schedules, (ii) copies of Customer's invoices, (iii) evidence of
shipment or delivery, and (iv) such further schedules, documents
and/or information regarding the Security Assets as Agent may required
including, without limitation, trial balances and test verifications.
Agent shall have the right to confirm and verify all Receivables by
any manner and through any medium it considers advisable and do
whatever it may deem reasonably necessary to protect its interests
hereunder. The items to be provided under this Section are to be in
form satisfactory to Agent and executed by each Borrower and delivered
to Agent from time to time solely for Agent's convenience in
maintaining records of the Security Assets, and any Borrower's failure
to deliver any of such items to Agent shall not affect, terminate,
modify or otherwise limit Agent's Lien with respect to the Security
Assets.
(c) Litigation
Promptly notify Agent and Lenders in writing of any litigation, suit
or administrative proceeding affecting any Obligor, whether or not the
claim is covered by insurance, and of any suit or administrative
proceeding, which may have a Material Adverse Effect on any Obligor.
(d) Material Occurrences
Promptly notify Agent and Lenders in writing upon the occurrence of
(a) any Event of Default or Default; (b) any event of default or (c)
any event which with the giving of notice or lapse of time, or both,
would constitute an event of default under the Senior Notes; (d) any
event, development or circumstance whereby any financial statements or
other reports furnished to Agent or any Lender fail in any
52
material respect to present daily, in accordance with GAAP
consistently applied, the financial condition or operating results of
any Obligor as of the date of such statements; (e) and in respect of
each U.S. Guarantor any accumulated retirement plan funding deficiency
which, if such deficiency continued for two plan years and was not
corrected as provided in Section 4971 of the Internal Revenue Code
applicable to it, could subject any Obligor to a tax imposed by
Section 4971 of the Internal Revenue Code and in respect of any
Borrower, any similar deficiency with respect to such Borrower under
applicable law; (f) each and every default by any Obligor which might
result in the acceleration of the maturity of any Indebtedness,
including the names and addresses of the holders of such Indebtedness
with respect to which there is a default existing or with respect to
which the maturity has been or could be accelerated, and the amount of
such Indebtedness; and (g) any other development in the business or
affairs of any Obligor which might reasonably be expected to be
materially adverse; in each case describing the nature thereof and the
action such Obligor proposes to take with respect thereto.
(e) Government Receivables
Notify Agent immediately if any of the Receivables arise out of
contracts between any Obligor and the United States or any other
government or nation other than the United States, any state, or any
department, agency or instrumentality of any of them.
(f) Annual Financial Statements
Furnish Agent and the Lenders within ninety (90) days after the end of
each fiscal year of each Obligors, financial statements of Radnor on a
Consolidated Basis as well as a consolidating basis including, but not
limited to, statements of income and stockholders' equity and cash
flow from the beginning of the current fiscal year to the end of such
fiscal year and the balance sheet as at the end of such fiscal year,
all prepared in accordance with GAAP applied on a basis consistent
with prior practices, and in reasonable detail and reported upon
without qualification by an independent certified public accounting
firm selected by Radnor and satisfactory to Agent (the "Accountants").
The report of such accounting firm shall be accompanied by a statement
of such accounting firm certifying that (i) they have caused this
Agreement to be reviewed, (ii) in making the examination upon which
such report was based either no information came to their attention
which to their knowledge constituted an Event of Default or a Default
under this Agreement or any related agreement or, if such information
came to their attention, specifying any such Default or Event of
Default, its nature, when it occurred and whether it is continuing,
and such report shall contain or have appended thereto calculations
which set forth Obligors' compliance with the requirements or
restrictions imposed by Sections 6.5, 6.6,
53
6.7, 6.8, 6.9, 7.6 and 7.11 hereof. In addition, the reports shall be
accompanied by a certificate of each Obligor's Chief Financial Officer
which shall state that, based on an examination sufficient to permit
him to make an informed statement, no Default or Event of Default
exists, or, if such is not the case, specifying such Default or Event
of Default, its nature, when it occurred, whether it is continuing and
the steps being taken by such Obligor with respect to such event and,
such certificate shall have appended thereto calculations which set
forth Radnor's compliance with the requirements or restrictions
imposed by Section 6.5, 6.6, 6.7, 6.8, 6.9, 7.6 and 7.11 hereof.
(g) Quarterly Financial Statements
Furnish Agent and Lenders within 30 days after the end of each fiscal
quarter, an unaudited balance sheet of Radnor on a Consolidated Basis
and unaudited statements of income and stockholders' equity and cash
flow reflecting results of operations from the beginning of the fiscal
year to the end of such quarter and for such quarter, prepared on a
basis consistent with prior practices and complete and correct in all
material respects, subject to normal year end adjustments. The
reports shall be accompanied by a certificate of Radnor's Chief
Financial Officer which will state that, based on an examination
sufficient to permit him to make an informed statement, no Default or
Event of Default exists, or, if such is not the case, specifying such
Default or Event of Default, its nature, when it occurred, whether it
is continuing and the steps being taken by such Obligor with respect
to such event and, such certificate shall have appended thereto
calculations which set forth Radnor's compliance with the requirements
or restrictions imposed by Sections 6.5, 6.6, 6.7, 6.8, 6.9, 7.6 and
7.11 hereof.
(h) Monthly Financial Statements
Furnish agent and Lenders within thirty (30) days after the end of
each month, an unaudited balance sheet of Radnor on a Consolidated
Basis as well as a consolidating basis and unaudited statements of
income and stockholders' equity and cash flow reflecting results of
operations from the beginning of the fiscal year to the end of such
month and for such month, prepared on a basis consistent with prior
practices and complete and correct in all material respects, subject
to normal year end adjustments. The reports shall be accompanied by a
certificate of Radnor's Chief Financial Officer which shall state
that, based on an examination sufficient to permit him to make an
informed statement, no Default or Event of Default exists, or, if such
is not the case, specifying such Default or Event of Default, its
nature, when it occurred, whether it is continuing and the steps being
taken by Radnor with respect to such event and, such certificate shall
have appended thereto calculations which set forth Radnor's compliance
with the requirements or restrictions imposed by Sections 6.5, 6.6,
6.7, 6.8, 6.9, 7.6 and 7.11 hereof.
54
(i) Other Reports
Furnish Agent and Lenders as soon as possible, but in any event within
ten (10) days after the issuance thereof, (i) with copies of such
financial statements, reports and returns as Radnor shall send to its
shareholders and (ii) copies of all notices sent pursuant to the
Senior Notes.
(j) Additional Information
Furnish Agent and Lenders with such additional information as Agent
and Lenders shall reasonably request in order to enable Agent and
Lenders to determine whether the terms, covenants, provisions and
conditions of this Agreement have been complied with by the Obligors
including, without limitation and without the necessity of any request
by Agent or any Lender, (a) copies of all environmental audits and
reviews, (b) at least thirty (30) days prior thereto, notice of any
Obligor's opening of any new office or place of business or any
Obligor's closing of any existing office or place of business, and (c)
promptly upon learning thereof, notice of any labour dispute to which
any Obligor may become a party, any strikes or walkouts relating to
any of its plants or other facilities, and the expiration of any
labour contract to which any Obligor is a party or by which any
Obligor is bound.
(k) Projected Operating Budget
Furnish Agent and Lenders, no later than (x) ninety (90) days
following the Effective Date and (y) thirty (30) days prior to the
beginning of each fiscal year commencing with fiscal year 1998, a
month by month projected operating budget and cash flow of Radnor on a
Consolidated Basis for such fiscal year (including an income statement
for each month and a balance sheet as at the end of the last month in
each fiscal quarter), such projections to be accompanied by a
certificate signed by Radnor's Chief Financial Officer to the effect
that such projections have been prepared on the basis of sound
financial planning practice consistent with past budgets and financial
statements and that such officer has no reason to question the
reasonableness of any material assumptions on which such projections
were prepared.
(l) Notice of Suits, Adverse Events
Furnish Agent and Lenders with prompt notice of (i) any lapse or other
termination of any Consent issued to any Obligors by any Governmental
Body or any other Person that is material to the operation of any
Obligor's business, (ii) any refusal by any Governmental Body or any
other Person to renew or extend any such Consent; and (iii) copies of
any periodic or special reports filed by any Obligor with any
Governmental Body or Person, if such reports indicate any
55
material change in the business, operations, affairs or condition of
any Obligor, or if copies thereof are requested by Agent or any
Lender, and (iv) copies of any material notices and other
communications from any Governmental Body or Person which specifically
relate to any Obligor.
(m) ERISA Notices and Requests
Furnish Agent and Lenders with immediate written notice in the event
that (i) any Obligor or any member of the Controlled Group knows or
has reason to know that a Termination Event has occurred, together
with a written statement describing such Termination Event and the
action, if any, which Obligor or member of the Controlled Group has
taken, is taking, or proposes to take with respect thereto and, when
known, any action taken or threatened by the Internal Revenue Service,
Department of Labour or PBGC with respect thereto, (ii) Obligor, or
any member of the Controlled Group knows or has reason to know that a
prohibited transaction (as defined in Sections 406 of ERISA and 4975
of the Internal Revenue Code) has occurred together with a written
statement describing such transaction and the action which such
Obligor or any member of the Controlled Group has taken, is taking or
proposes to take with respect thereto, (iii) a funding waiver request
has been filed with respect to any Plan together with all
communications received by any Obligor, or any member of the
Controlled Group with respect to such request, (iv) any increase in
the benefits of any existing Plan or the establishment of any new Plan
or the commencement of contributions to any Plan to which such Obligor
or any member of the Controlled Group was not previously contributing
shall occur, (v) any Obligor or any member of the Controlled Group
shall receive from the PBGC a notice of intention to terminate a Plan
or to have a trustee appointed to administer a Plan, together with
copies of each such notice, (vi) any Obligor or any member of the
Controlled Group shall receive any favourable or unfavourable
determination letter from the Internal Revenue Service regarding the
qualification of a Plan under Section 401(a) of the Internal Revenue
Code, together with copies of such letter; (vii) any Obligor or any
member of the Controlled Group shall receive a notice regarding the
imposition of withdrawal liability, together with copies of each such
notice; (viii) any Obligor or any member of the Controlled Group shall
fail to make a required instalment or any other required payment under
Section 412 of the Internal Revenue Code on or before the due date for
such instalment or payment; (ix) any Obligor or any member of the
Controlled Group knows that (a) a Multiemployer Plan has been
terminated, (b) the administrator or plan sponsor of a Multiemployer
Plan intends to terminate a Multiemployer Plan, or (c) the PBGC has
instituted or will institute proceedings under Section 4042 of ERISA
to terminate a Multiemployer Plan.
56
(n) Additional Documents
Execute and deliver to Agent, upon request, such documents and
agreements as Agent may, from time to time, reasonably request to
carry out the purposes, terms or conditions of this Agreement.
10. EVENTS OF DEFAULT
The occurrence of any one or more of the following events shall constitute
an "Event of Default":
(a) failure by any Obligor to pay any principal or interest on the
Obligations when due, whether at maturity or by reason of acceleration
pursuant to the terms of this Agreement or any Other Document or by
notice of intention to prepay, or by required prepayment or failure to
pay any other liabilities or make any other payment, fee or charge
provided for herein or any Other Document when due;
(b) any representation or warranty made or deemed made by any Obligor in
this Agreement or any Other Documents or any related agreement or in
any certificate, document or financial or other statement furnished at
any time in connection herewith or therewith shall prove to have been
misleading in any material respect on the date when made or deemed to
have been made;
(c) failure by any Obligor to (i) furnish financial information when due
or when requested, or (ii) permit the inspection of its books or
records;
(d) issuance of a notice of Lien, levy, assessment, injunction or
attachment against a material portion of any Obligor's property;
(e) (i) a failure or neglect of any Obligor to perform, keep or observe
any term, provision, condition or covenant, contained in Sections
6.1., 6.2, 6.3 and 6.9 hereof which is not cured within thirty (30)
days from the occurrence of such failure or neglect; or (ii) failure
or neglect of any Obligor to perform, keep or observe any other term,
provision, condition, covenant herein contained, or contained in any
other agreement or arrangement, now or hereafter entered into between
any Obligor, Agent and the Lenders after expiration of all applicable
grace periods;
(f) any judgment in excess of $300,000 is rendered against any Obligor or
judgment liens filed against any Obligor of judgments in excess of
$1,000,000 in the aggregate are rendered against all Obligors for an
amount which within thirty (30) days of such rendering or filing is
not either satisfied, stayed or discharged of record;
57
(g) any Obligor shall (i) apply for, consent to or suffer the appointment
of, or the taking of possession by, a receiver, custodian, trustee,
liquidator or similar fiduciary of itself or of all or a substantial
part of its property, (ii) make a general assignment for the benefit
of creditors, (iii) commence a voluntary case under any state or
federal bankruptcy laws (as now or hereafter in effect); (iv) be
adjudicated a bankrupt or insolvent, (v) file a petition seeking to
take advantage of any other law providing for the relief of debtors,
(vi) acquiesce to, or fail to have dismissed, within forty five (45)
days, any petition filed against it in any involuntary case under such
bankruptcy laws, or (vii) take any action for the purpose of effecting
any of the foregoing;
(h) any Obligor shall admit in writing its inability, or be generally
unable, to pay its debts as they become due or cease operations of its
present business;
(i) any Subsidiary of any Obligor, shall (i) apply for, consent to or
suffer the appointment of, or the taking of possession by, a receiver,
custodian, trustee, liquidator or similar fiduciary of itself or of
all or a substantial part of its property, (ii) admit in writing its
inability, or be generally unable, to pay its debts as they become due
or cease operations of its present business, (iii) make a general
assignment for the benefit of creditors, (iv) commence a voluntary
case under any state or federal bankruptcy laws (as now or hereafter
in effect), (v) be adjudicated a bankrupt or insolvent, (vi) file a
petition seeking to take advantage of any other law providing for the
relief of debtors, (vii) acquiesce to, or fail to have dismissed,
within forty five (45) days, any petition filed against it in any
involuntary case under such bankruptcy laws, or (viii) take any action
for the purpose of effecting any of the foregoing;
(j) any change in the condition or affairs (financial or otherwise) of any
Obligor which in Agent's opinion impairs the Security Assets or the
ability of any Obligor to perform its Obligations under this
Agreement;
(k) any Lien created hereunder or provided for hereby or under any related
agreement for any reason ceases to be or is not a valid and perfected
Lien having a first priority interest;
(l) an event of default has occurred and been declared under the Senior
Notes which default shall not have been cured or waived within any
applicable grace period;
(m) a default of the obligations of any Obligor under any other agreement
to which it is a party shall occur which materially adversely affects
its condition, affairs or prospects (financial or otherwise) which
default is not cured within any applicable grace period;
58
(n) termination or breach of any guarantee or similar agreement executed
and delivered to Agent in connection with the Obligations of any
Obligor, or if any Guarantor attempts to terminate, challenges the
validity of, or its liability under, any such guarantee or similar
agreement;
(o) any Change of Ownership or Change of Control shall have occurred;
(p) any material provision of this Agreement shall, for any reason, cease
to be valid and binding on any Obligor, or Obligor shall so claim in
writing to Agent;
(q) (i) any Governmental Body shall (A) revoke, terminate, suspend or
adversely modify any license, permit, patent, trademark or tradename of
any Obligor, the continuation of which is material to the continuation
of any Obligor's business, or (B) commence proceedings to suspend,
revoke, terminate or adversely modify any such license, permit,
trademark, tradename or patent and such proceedings shall not be
dismissed or discharged within sixty (60) days, or (C) schedule or
conduct a hearing on the renewal of any license, permit, trademark,
tradename or patent necessary for the continuation of any Obligor's
business and the staff of such Governmental Body issues a report
recommending the termination, revocation, suspension or material,
adverse modification of such license, permit, trademark, tradename or
patent; (ii) any agreement which is necessary or material to the
operation of any Obligor's business shall be revoked or terminated and
not replaced by a substitute acceptable to Agent within thirty (30)
days after the date of such revocation or termination, and such
revocation or termination and non-replacement could reasonably be
expected to have a Material Adverse Effect on any Obligor;
(r) any portion of the Security Assets shall be seized or taken by a
Governmental Body or the title and rights of any Obligor shall have
become the subject matter of litigation which might, in the opinion of
Agent, upon final determination, result in impairment or loss of the
security provided by this Agreement or the Other Documents;
(s) the operations of any Obligor's manufacturing facilities are
interrupted at any time for more than fourteen (14) consecutive days,
or if any Obligor's manufacturing capacity is reduced by 25% as a
result of such an interruption of operations (other than permanent
interruptions resulting from planned closing of up to three (3) plants)
unless such Obligor shall (i) be entitled to receive for such period of
interruption, proceeds of business interruption insurance sufficient to
assure that its per diem cash needs during such period is at least
equal to its average per diem cash needs for the consecutive twelve
(12) month period immediately preceding the initial date of
interruption and (ii) receive such proceeds in the amount described in
clause (i) preceding not later than thirty (30) days following the
initial date of any such interruption; provided, however, that
notwithstanding the
59
provisions of clauses (i) and (ii) of this section, an Event of Default
shall be deemed to have occurred if any Obligor shall be receiving the
proceeds of business interruption insurance for a period of thirty (30)
consecutive days.
(t) an event or condition specified in Section 7.16 or 9.15 hereof shall
occur or exist with respect to any Plan and, as a result of such event
or condition, together with all other such events or conditions, any
Obligor or any member of the Controlled Group shall incur, or in the
opinion of Lender be reasonably likely to incur, a liability to a Plan
or the PBGC (or both) which, in the reasonable judgment of the Required
Lenders, could have a Material Adverse Effect on any Obligor; or
(u) there shall occur any Event of Default (as defined under the U.S.
Credit Facility) under such Facility or the U.S. Credit Facility is
terminated for any reason by any party thereto or an event of default
howsoever described has occurred and been declared under any Security
Document which default shall not have been cured or waived within any
applicable grace period.
11. LENDERS' RIGHTS AND REMEDIES AFTER DEFAULT
11.1 Rights and Remedies
Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all
Obligations shall be immediately due and payable and this Agreement and the
obligation of Lenders to make Advances shall be deemed terminated; and,
(ii) any of the other Events of Default and at any time thereafter (such
default not having previously been cured), at the option of Required
Lenders all Obligations shall be immediately due and payable and the
Lenders shall have the right to terminate this Agreement and to terminate
the obligation of Lenders to make Advances. Upon the occurrence of any
Event of Default, Agent may, and at the direction of the Required Lenders
shall, exercise any and all other rights and remedies provided for herein,
including under the Uniform Commercial Code and at law or equity generally.
11.2 Agent's Discretion
Agent shall have the right in its sole discretion, but with the consent of
the Required Lenders to determine which rights, Liens, security interest or
remedies Agent may at any time pursue, relinquish, subordinate, or modify
or to take any other action with respect thereto and such determination
will not in any way modify or affect any of Agent's or Lenders' rights
hereunder.
11.3 Set-Off
In addition to any other rights which Agent or any Lender may have under
applicable law, upon the occurrence of an Event of Default hereunder, Agent
and such Lender shall
60
have a right to apply any of Obligors' property held by Agent and such
Lender (including any cash deposit in any currency) to reduce the
Obligations.
11.4 Rights and Remedies not Exclusive
The enumeration of the foregoing rights and remedies is not intended to be
exhaustive and the exercise of any right or remedy shall not preclude the
exercise of any other right or remedies provided for herein or otherwise
provided by law, all of which shall be cumulative and not alternative.
11.5 Actions in Concert
Anything in this Agreement to the contrary notwithstanding, each Lender
hereby agrees with each other Lender that no Lender shall take any action
to protect or enforce its rights arising out of this Agreement (including,
without limitation, exercising any right of set-off) without first
obtaining the prior written consent of Agent and Required Lenders, it being
the intent of Lenders that any such action to protect or enforce rights
under this Agreement shall be taken in concert and at the direction or with
the consent of the Agent and the Required Lenders.
12. WAIVERS AND JUDICIAL PROCEEDINGS
12.1 Waiver of Notice
Each Obligor each hereby waives notice of non-payment of any of the
Receivables, demand, presentment, protest and notice thereof with respect
to any and all instruments, notice of acceptance hereof, notice of loans or
advances made, credit extended, Security Assets received or delivered, or
any other action taken in reliance hereon, and all other demands and
notices of any description, except such as are expressly provided for
herein.
12.2 Delay
No delay or omission on Agent's or any Lender's part in exercising any
right, remedy or option shall operate as a waiver of such or any other
right, remedy or option or of any default.
13. EFFECTIVE DATE AND TERMINATION
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 Obligor, 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.
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13.2 Termination
The termination of the Agreement shall not affect any of Obligor's, Agent's
or any Lender's rights, or any of the Obligations having their inception
prior to the effective date of such termination, and the provisions hereof
shall continue to be fully operative until all transactions entered into,
rights or interests created or Obligations have been fully disposed of,
concluded or liquidated. The security interests, Liens and rights granted
to Agent and the Lenders hereunder or under the Security Documents and the
financing statements filed hereunder shall continue in full force and
effect, notwithstanding the termination of this Agreement or the fact that
Obligor's account may from time to time be temporarily in a zero or credit
position, until all of the Obligations of the Obligors have been paid or
performed in full after the termination of this Agreement or the Obligors
have furnished Agent and the Lenders with an indemnification satisfactory
to Agent and the Lenders with respect thereto. Accordingly, each Obligor
where applicable waives any rights which it may have under Section 9-404(1)
of the Uniform Commercial Code to demand the filing of termination
statements with respect to the Security Assets, and Agent shall not be
required to send such UCC termination statements to the Obligors, or to
file them with any filing office, unless and until this Agreement shall
have been terminated in accordance with its terms and all Obligations paid
in full in immediately available funds.
14. REGARDING AGENT
14.1 Appointment
Each Lender hereby designates BNY Financial Limited to act as Agent for
such Lender under this Agreement and the Other Documents. Each Lender
hereby irrevocably authorises Agent to take such action on its behalf under
the provisions of this Agreement and the Other Documents and to exercise
such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto and
Agent shall hold all Security Assets, payments of principal and interests,
fees (except the fees set forth in Sections 3.3(a)) and 3.4(b) charges and
collections (without giving effect to any collection days) received
pursuant to this Agreement, for the rateable benefit of Lenders. Agent may
perform any of its duties hereunder by or through its agents or employees.
As to any matters not expressly provided for by this Agreement Agent shall
not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding; provided, however, that
Agent shall not be required to take any action which exposes Agent to
liability or which is contrary to this Agreement or the Other Documents or
applicable law unless Agent is furnished with an indemnification reasonably
satisfactory to Agent with respect thereto.
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14.2 Nature of Duties
Agent shall have no duties or responsibilities except those expressly set
forth in this Agreement and the Other Documents. Neither Agent nor any of
its officers, directors, employees or agents shall be (i) liable for any
action taken or omitted by them as such hereunder or in connection
herewith, unless caused by their gross negligence (but not mere negligence)
or wilful misconduct, or (ii) responsible in any manner for any recitals,
statements, representations or warranties made by any Obligor or any
officer thereof contained in this Agreement, or in any of the Other
Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by Agent under or in connection
with, this Agreement or any of the Other Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement, or any of the Other Documents or for any failure of any Obligor
to perform its respective obligations hereunder. Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any of the Other Documents, or to inspect
the properties, books or records of any Obligor or, if applicable, general
partner of any Obligor. The duties of Agent as respects the Advances to
any Obligor shall be mechanical and administrative in nature; Agent shall
not have by reason of this Agreement a fiduciary relationship in respect of
any Lender; and nothing in this Agreement, expressed or implied, is
intended to or shall be construed as to impose upon Agent any obligations
in respect of this Agreement except as expressly set forth herein.
14.3 Lack of Reliance
Independently and without reliance upon Agent or any other Lender, each
Lender has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of each Obligor in
connection with the making and the continuance of the Advances hereunder
and the taking or not taking of any action in connection herewith, and (ii)
its own appraisal of the creditworthiness of the Obligors. Agent shall
have no duty or responsibility, either initially or on a continuing basis,
to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before making of the Advances
or at any time or times thereafter except as shall be provided by an
Obligor pursuant to the terms hereof. Agent shall not be responsible to
any Lender for any recitals, statements, information, representations or
warranties herein or in any agreement, document, certificate or a statement
delivered in connection with or for the execution, effectiveness,
genuineness, validity, enforceability, collectability or sufficiency of
this Agreement or any Other Document, or of the financial condition of each
Obligor, or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of
this Agreement, the Other Documents or the financial condition of each
Obligor, or the existence of any Event of Default or any Default.
63
Agent may resign on sixty (60) days' written notice to each of Lenders and
the Obligors and upon such resignation, the Required Lenders will promptly
designate a successor Agent reasonably satisfactory to the Obligors.
Any such successor Agent shall succeed to the rights, powers and duties of
Agent, and the term "Agent" shall mean such successor agent effective upon
its appointment, and the former Agent's rights, powers and duties as Agent
shall be terminated, without any other or further act or deed on the part
of such former Agent. After any Agent's resignation as Agent, the
provisions of this Article XIV shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
14.4 Certain Rights of Agent
If Agent shall request instructions from Lenders with respect to any act or
action (including failure to act) in connection with this Agreement or any
Other Document, Agent shall be entitled to refrain from such act or taking
such action unless and until Agent shall have received instructions from
the Required Lenders; and Agent shall not incur liability to any Person by
reason of so refraining. Without limiting the foregoing, Lenders shall not
have any right of action whatsoever against Agent as a result of its acting
or refraining from acting hereunder in accordance with the instructions of
the Required Lenders.
14.5 Reliance
Agent shall be entitled to rely, and shall be fully protected in relying,
upon any note, writing, resolution, notice, statement, certificate, telex,
teletype or telecopier message, cablegram, order or other document or
telephone message believed by it to be genuine and correct and to have been
signed, sent or made by the proper person or entity, and, with respect to
all legal matters pertaining to this Agreement and the Other Documents and
its duties hereunder, upon advice of counsel selected by it. Agent may
employ agents and attorneys-in-fact and shall not be liable for the default
or misconduct of any such agents or attorneys-in-fact selected by Agent
with reasonable care.
14.6 Notice of Default
Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default hereunder or under the Other Documents,
unless Agent has received notice from a Lender or any Obligor referring to
this Agreement or the Other Documents, describing such Default or Event of
Default and stating that such notice is a "notice of default." In the
event that Agent receives such a notice, Agent shall give notice thereof to
Lenders. Agent shall take such action with respect to such Default or
Event of Default as shall be directed by the Required Lenders; provided,
that, unless and until Agent shall have received such directions, Agent may
(but shall not be obligated to) take such action,
64
or refrain from taking such action, with respect to such Default or Event
of Default as it shall deem advisable in the best interests of Lenders.
14.7 Indemnification
To the extent Agent is not reimbursed and indemnified by the Obligors,
each Lender will reimburse and indemnify Agent in proportion to its
respective portion of the Advances (or, if no Advances are outstanding,
according to its Commitment Percentage), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against Agent in
performing its duties hereunder, or in any way relating to or arising out
of this Agreement or any Other Document; provided that, Lenders shall not
be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from Agent's wilful misconduct or gross (not mere)
negligence.
14.8 Agent in its Individual Capacity
With respect to the obligation of Agent to lend under this Agreement, the
Advances made by it shall have the same rights and powers hereunder as any
other Lender and as if it were not performing the duties as Agent
specified herein; and the term "Lender" or any similar term shall, unless
the context clearly otherwise indicates, include Agent in its individual
capacity as a Lender. Agent may engage in business with Obligors as if it
were not performing the duties specified herein, and may accept fees and
other consideration from any the Obligor for services in connection with
this Agreement or otherwise without having to account for the same to
Lenders.
14.9 Delivery of Documents
To the extent Agent receives documents and information from any Obligor
pursuant to the terms of this Agreement, Agent will promptly furnish such
documents and information to Lenders.
14.10 Obligors' Undertaking to Agent
Without prejudice to their respective obligations to the Lenders under the
provisions of this Agreement, each Obligor hereby undertakes with Agent to
pay to Agent from time to time on demand all amounts from time to time due
and payable by it for the account of Agent or the Lenders or any of them
pursuant to this Agreement to the extent not already paid. Any payment
made pursuant to any such demand shall pro tanto satisfy the Obligors'
obligations to make payments for the account of the Lenders or the
relevant one or more of them pursuant to this Agreement.
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15. MISCELLANEOUS
15.1 Jurisdiction
(a) Submission
For the benefit of each of the Agent and the Lender, each Obligor
agrees that the courts of England have jurisdiction to settle any
disputes in connection with this Agreement and accordingly submits to
the jurisdiction of the English courts.
(b) Service of process
(i) Each Obligor undertakes to appoint an agent for service of
process relating to any proceedings before the English courts in
connection with this Agreement within 30 days from the date
hereof.
(ii) Without prejudice to any other mode of service, each Obligor:
(a) agrees that failure by a process agent to notify the Obligor
of the process will not invalidate the proceedings concerned;
and
(b) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of this process to
its address for the time being applying under Section 15.6.
(c) Forum convenience and enforcement abroad
Each Obligor:
(i) waives objection to the English courts on grounds of inconvenient
forum or otherwise as regards proceedings in connection with this
Agreement.
(ii) agrees that a judgment or order of any English court in
connection with this Agreement is conclusive and binding on it
and may be enforced against it in the courts of any other
jurisdiction.
(d) Non-exclusivity
Nothing in this Section 15.1 limits the right of the Agent or any
Lender to bring proceedings against an Obligor in connection with this
Agreement:
(i) in any other court of competent jurisdiction; or
(ii) concurrently in more than one jurisdiction.
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(e) Governing Law
This Agreement is governed by English law.
15.2 Entire Understanding
(a) This Agreement and the documents executed concurrently herewith contain the
entire understanding between Obligors, Agent and each Lender and supersedes
all prior agreements and understandings, if any, relating to the subject
matter hereof. Any promises, representations, warranties or guarantees not
herein contained and hereinafter made shall have no force and effect unless
in writing, signed by each Obligor's, Agent's and each Lender's respective
officers. Neither this Agreement nor any portion or provisions hereof may
be changed, modified, amended, waived, supplemented, discharged, cancelled
or terminated orally or by any course of dealing, or in any manner other
than by an agreement in writing, signed by the party to be charged. Each
Obligor acknowledges that it has been advised by counsel in connection with
the execution of this Agreement and Other Documents and is not relying upon
oral representations or statements inconsistent with the terms and
provisions of this Agreement.
(b) The Required Lenders, Agent with the consent in writing of the Required
Lenders, and each Obligor may, subject to the provisions of this Section
15.2(b), from time to time enter into written supplemental agreements to
this Agreement or the Other Documents executed by Obligors, for the purpose
of adding or deleting any provisions or otherwise changing, varying or
waiving in any manner the rights of the Lenders, Agent or any Obligor
thereunder or the conditions, provisions or terms thereof or waiving any
Event of Default thereunder, but only to the extent specified in such
written agreements; provided, however, that no such supplemental agreement
shall, (x) amend Sections 6.5, 6.6, 6.7, 6.8 and 7.6 without the consent of
67% of the Lenders or (y) without the consent of all the Lenders:
(i) increase or decrease the Commitment Percentage of any Lender or the
Maximum Loan Amount or the Advance Rates.
(ii) extend the due date for any amount payable hereunder, or decrease the
rate of interest or reduce any fee payable by Obligors to Agent or
Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Lenders or alter, amend
or modify this Section 15.2(b).
(iv) release any Security Asset during any calendar year having an
aggregate value in excess of $100,000.
(v) change the rights and duties of Agent.
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Any such supplemental agreement shall apply equally to each of the Lenders
and shall be binding upon the Obligors, the Lenders and Agent and all
future holders of the Obligations. In the case of any waiver, the
Obligors, Agent and the Lenders shall be restored to their former positions
and rights, and any Event of Default waived shall be deemed to be cured and
not continuing, but no waiver of a specific Event of Default shall extend
to any subsequent Event of Default (whether or not the subsequent Event of
Default is the same as the Event of Default which was waived), or impair
any right consequent thereon.
15.3 Successors and Assigns; Participations; New Lenders
(a) This Agreement shall be binding upon and inure to the benefit of the
Obligors, Agent, each Lender and their respective successors and assigns,
except that no Obligor may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of Agent
and Required Lenders.
(b) Each Obligor acknowledges that in the regular course of commercial banking
business one or more Lenders may at any time and from time to time sell
participating interests in the Advances to other financial institutions
(each such transferee or purchaser of a participating interest, a
"Transferee"). Each Transferee may exercise all rights of payment
(including without limitation rights of set-off) with respect to the
portion of such Advances held by it or other Obligations payable hereunder
as fully as if such Transferee were the direct holder thereof provided that
the Obligors shall not be required to pay to any Transferee more than the
amount which it would have been required to pay to the Lender which granted
an interest in its Advances or other Obligations payable hereunder to such
Transferee had such Lender retained such interest in the Advance hereunder
or other Obligations payable hereunder and in no event shall the Obligors
be required to pay any such amount arising from the same circumstances and
with respect to the same Advances or other Obligations payable hereunder to
both such Lender and such Transferee. Each Obligor hereby grants to any
Transferee a continuing security interest in any deposits, moneys or other
property actually or constructively held by such Transferee as security for
the Transferee's interest in the Advances.
(c) Any Lender may with the consent of Agent which shall not be unreasonably
withheld or delayed sell, assign or transfer all or any part of its rights
under this Agreement and the Other Documents to one or more additional
banks or financial institutions and one or more additional banks or
financial institutions may commit to make Advances hereunder (each a
"Purchasing Lender"), pursuant to a Commitment Transfer Supplement,
executed by a Purchasing Lender, the transferor Lender, and Agent and
delivered to Agent for recording provided no Purchasing Lender shall be
sold an aggregate commitment of less than $5,000,000. Upon such execution,
delivery, acceptance and recording, from and after the transfer effective
date determined pursuant to such Commitment Transfer Supplement, (i)
Purchasing Lender thereunder shall be a party hereto and, to the extent
provided in such Commitment Transfer Supplement, have the rights and
obligations of a
68
Lender thereunder with a Commitment Percentage as set forth therein, and
(ii) the transferor Lender thereunder shall, to the extent provided in such
Commitment Transfer Supplement, be released from its obligations under this
Agreement, the Commitment Transfer Supplement creating a novation for that
purpose. Such Commitment Transfer Supplement shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Lender and the resulting adjustment of the
Commitment Percentages arising from the purchase by such Purchasing Lender
of all or a portion of the rights and obligations of such transferor Lender
under this Agreement and the Other Documents. Each Obligor hereby consent
to the addition of such Purchasing Lender and the resulting adjustment of
the Commitment Percentages arising from the purchase by such Purchasing
Lender of all or a portion of the rights and obligations of such transferor
Lender under this Agreement and the Other Documents. Each Obligor shall
execute and deliver such further documents and do such further acts and
things in order to effectuate the foregoing.
(d) Agent shall maintain at its address a copy of each Commitment Transfer
Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Advances owing to each Lender
from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and each Obligor, Agent and Lenders may treat
each Person whose name is recorded in the Register as the owner of the
Advance recorded therein for the purposes of this Agreement. The Register
shall be available for inspection by the Obligors, or any Lender at any
reasonable time and from time to time upon reasonable prior notice. Agent
shall receive a fee in the amount of $2500 payable by the applicable
Purchasing Lender upon the effective date of each transfer or assignment to
such Purchasing Lender.
(e) Each Obligor authorises each Lender to disclose to any Transferee or
Purchasing Lender and any prospective Transferee or Purchasing Lender any
and all financial information in such Lender's possession concerning the
Obligors which has been delivered to such Lender by or on behalf of any
Obligor pursuant to this Agreement or in connection with such Lender's
credit evaluation of Obligors.
15.4 Application of Payments
Agent shall have the continuing and exclusive right to apply or reverse and
re-apply any payment and any and all proceeds of Security Assets to any
portion of the Obligations. To the extent that any Obligor makes a payment
or Agent or any Lender receives any payment or proceeds of the Security
Assets for any Obligor's benefit, which are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be
repaid to a trustee, debtor in possession, receiver, custodian or any other
party under any bankruptcy law, common law or equitable cause, then, to
such extent, the Obligations or part thereof intended to be satisfied shall
be revived and continue as if such payment or proceeds had not been
received by Agent or such Lender.
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15.5 Indemnity
Each Obligor shall indemnify Agent and each Lender and their officers,
employees and agents from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind or nature whatsoever (including, without
limitation, fees and disbursements of counsel) which may be imposed on,
incurred by, or asserted against Agent or any Lender in any litigation,
proceeding or investigation instituted or conducted by any governmental
agency or instrumentality or any other Person with respect to any aspect
of, or any transaction contemplated by, or referred to in, or any matter
related to, this Agreement, whether or not Agent or any Lender is a party
thereto, except to the extent that any of the foregoing arises out of the
wilful misconduct or gross (not mere) misconduct of the party being
indemnified.
15.6 Notice
Any notice or request hereunder may be given to any Obligor or to Agent or
any Lender at their respective addresses set forth below or at such other
address as may hereafter be specified in a notice designated as a notice of
change of address under this Section. Any notice or request hereunder
shall be given by (a) hand delivery, (b) overnight courier, (c) registered
or certified mail, return receipt requested, (d) telex or telegram,
subsequently confirmed by registered or certified mail, or (e) telecopy to
the number set out below (or such other number as may hereafter be
specified in a notice designated as a notice of change of address) with
telephone communication to a duly authorised officer of the recipient
confirming its receipt as subsequently confirmed by registered or certified
mail. Any notice or other communication required or permitted pursuant to
this Agreement shall be deemed given (a) when personally delivered to any
officer of the party to whom it is addressed, (b) on the earlier of actual
receipt thereof or three (3) days following posting thereof by certified or
registered mail, postage prepaid, or (c) upon actual receipt thereof when
sent by a recognised overnight delivery service or (d) upon actual receipt
thereof when sent by telecopier to the number set forth below with
telephone communication confirming receipt and subsequently confirmed by
registered, certified or overnight mail to the address set forth below, in
each case addressed to each party at its address set forth below or at such
other address as has been furnished in writing by a party to the other by
like notice:
(i) If to Agent BNY Financial Limited
at: ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: []
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telecopier: 0181 240 5801
70
with a copy to: ▇▇▇▇▇ & Overy
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telecopier: 44 171 330 9999
and
▇▇▇▇ & Hessen LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to a Lender other than Agent, as specified on the signature
pages hereof;
(iii) If to an Obligor: c/o Radnor Holdings Corporation
Three Radnor Corporate Center
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copies to ▇▇▇▇▇ ▇▇▇▇▇▇ & Heckscher
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
15.7 Survival
The obligations of Obligors under Sections 2.2(e), 3.6, 3.7, 3.8, 14.7 and
15.5 shall survive termination of this Agreement and the Other Documents
and payment in full of the Obligations.
15.8 Severability
If any part of this Agreement is contrary to, prohibited by, or deemed
invalid under applicable laws or regulations, such provision shall be
inapplicable and deemed omitted
71
to the extent so contrary, prohibited or invalid, but the remainder hereof
shall not be invalidated thereby and shall be given effect so far as
possible.
15.9 Expenses
All costs and expenses including, without limitation, reasonable
attorneys' fees and disbursements incurred by Agent, any Lender and Agent
on behalf of the Lenders (a) in all efforts made to enforce payment of any
Obligation or effect collection of any Security Asset, or (b) in
connection with the entering into, modification, amendment, administration
and enforcement of this Agreement or any consents or waivers hereunder and
all related agreements, documents and instruments or any change in the
currency of a country or the operation of Section 2.4(d), or (c) in
instituting, maintaining, preserving, enforcing and foreclosing on Agent's
security interest in or Lien on any of the Security Assets, whether
through judicial proceedings or otherwise, or (d) in defending or
prosecuting any actions or proceedings arising out of or relating to
Agent's or any Lender's transactions with any Obligor, or (e) in
connection with any advice given to Agent or any Lender with respect to
its rights and obligations under this Agreement and all related
agreements, may be charged to Obligors' accounts and shall be part of the
Obligations.
15.10 Injunctive Relief
Each Obligor recognises that, in the event any Obligor fails to perform,
observe or discharge any of its obligations or liabilities under this
Agreement, any remedy at law may prove to be inadequate relief to Agent
and the Lenders; therefore, Agent and each Lender, if Agent or such Lender
so requests, shall be entitled to temporary and permanent injunctive
relief in any such case without the necessity of proving that actual
damages are not an adequate remedy.
15.11 Consequential Damages
Neither Agent nor Lenders nor any agent or attorney for any of them shall
be liable to any Obligor for consequential damages arising from any breach
of contract, tort or other wrong relating to the establishment,
administration or collection of the Obligations.
15.12 Captions
The captions at various places in this Agreement are intended for
convenience only and do not constitute and shall not be interpreted as
part of this Agreement.
15.13 Counterparts; Telecopied Signatures
This Agreement may be executed in any number of and by different parties
hereto on separate counterparts, all of which, when so executed, shall be
deemed an original, but all
72
such counterparts shall constitute one and the same agreement. Any
signature delivered by a party by facsimile transmission shall be deemed
to be an original signature hereto.
15.14 Construction
The parties acknowledge that each party and its counsel have reviewed this
Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any amendments,
schedules or exhibits thereto.
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16. BORROWING AGENCY
16.1 Borrowing Agency Provisions
(a) Each Obligor hereby irrevocably designates Borrowing Agent to be its
attorney and agent and in such capacity to borrow, sign and endorse notes,
and execute and deliver all instruments, documents, writings and further
assurances now or hereafter required hereunder, on behalf of such Obligor
or Obligors, and hereby authorises Agent to pay over or credit all loan
proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a
borrowing agent in the manner set forth in this Agreement is solely as an
accommodation to Obligors and at their request. Neither Agent nor any
Lender shall incur liability to Obligors as a result thereof. To induce
Agent and Lenders to do so in consideration thereof, each Obligor hereby
indemnifies Agent and each Lender and holds Agent and each Lender harmless
from and against any and all liabilities, expenses, losses, damages and
claims of damage or injury asserted against Agent or any Lender by any
Person arising from or incurred by reason of the handling of the financing
arrangements of Obligors as provided herein, reliance by Agent or any
Lender on any request or instruction from Borrowing Agent or any other
action taken by Agent or any Lender with respect to this Section 15.1
except due to wilful misconduct or gross (not mere) negligence by the
indemnified party.
(c) All Obligations shall be joint and several, and each Obligor shall make
payment upon the maturity of the Obligations by acceleration or otherwise,
and such obligation and liability on the part of each Obligor shall in no
way be affected by an extensions, renewals and forbearance granted to Agent
or any Lender to any Obligor, failure of Agent or any Lender to give any
Obligor notice of borrowing or any other notice, any failure of Agent or
any Lender to pursue or preserve its rights against any Obligor, the
release by Agent or any Lender of any Security Asset now or thereafter
acquired from any Obligor, and such agreement by each Obligor to pay upon
any notice issued pursuant thereto is unconditional and unaffected by prior
recourse by Agent or any Lender to the other Obligors or any Security Asset
for such Obligor's Obligations or the lack thereof.
16.2 Waiver of Subrogation
Each Obligor expressly waives any and all rights of subrogation,
reimbursement, indemnity, exoneration, contribution of any other claim
which such Obligor may now or hereafter have against the other Obligors or
other Person directly or contingently liable for the Obligations hereunder,
or against or with respect to the other Obligor's property (including,
without limitation, any property which is Security Asset for the
Obligations), arising from the existence or performance of this Agreement,
until termination of this Agreement and repayment in full of the
Obligations.
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Each of the parties has signed this Agreement as of the day and year first
above written.
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Signatories
As Borrowers and Guarantors
STYROCHEM EUROPE (NETHERLAND) B.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its:
Address
STYROCHEM FINLAND OY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its:
Address
THERMISOL DENMARK APS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its:
Address
THERMISOL FINLAND OY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its:
Address
76
THERMISOL SWEDEN AB
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President
Address
WINCUP HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President
Address
SP ACQUISITION CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President
Address
STYROCHEM INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President
Address
RADNOR HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President
Address
77
As Lender and Agent
BNY FINANCIAL LIMITED
By: /s/ A.T.G. ▇▇▇▇▇▇
Its: Credit Director
2nd Floor,
▇▇▇ House,
Railway Approach
Wallington,
Surrey M6 0DY
England
Commitment Percentage: 50%
As Lender
NATIONSBANK, N.A., as Lender
By: [SIGNATURE APPEARS HERE]
Its: Vice President
New ▇▇▇▇▇ ▇▇. ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Loans Administration Contact:
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ telephone
▇▇▇▇ ▇▇▇ ▇▇▇▇ fax
Commitment Percentage: 50%
78
Exhibit 8.1(j) Form of Officer's Certificate
OFFICER'S CERTIFICATE
The undersigned, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his capacity as President of each of
WinCup Holdings, Inc. ("Holdings"), Radnor Holdings Corporation ("Radnor"), SP
Acquisition Co. ("SP"), and StyroChem International, Inc. ("StyroChem"), as
President of Holdings, the general partner of WinCup Holdings, L.P. ("LP"),
(Holdings, Radnor, SP, StyroChem and LP collectively "Borrowers") hereby gives
this Certificate to induce the Lenders and Agent (as such terms are hereafter
defined) to provide certain financial accommodations to Borrowers pursuant to
the terms of a Revolving Credit Agreement dated as of this date (as amended or
supplemented, the "Loan Agreement") by and among the Borrowers, BNY Financial
Limited ("BNY"), the financial institutions named therein and which hereafter
become a party thereto (BNY and such other financial institutions, collectively,
"Lenders") and BNY, as administrative agent for Lenders (BNY in such capacity,
"Agent"). All capitalized terms used herein which are not otherwise defined
hereunder shall have the meanings given to them in the Loan Agreement. The
undersigned hereby certifies to Agent and Lender that:
1. The representations and warranties contained in the Loan Agreement and the
Other Documents are true and correct on and as of this day.
2. Borrowers are in compliance with all of the terms and provisions set forth
in the Loan Agreement and the Other Documents.
3. No Default or Event of Default has occurred and is continuing.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Certificate
the [ ] day of October, 1997.
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
79
Exhibit 15.3
COMMITMENT TRANSFER SUPPLEMENT
COMMITMENT TRANSFER SUPPLEMENT, dated as of 16th October, 1997, among [ ]
(the "Transferor Lender"), [ ] ("Purchasing Lender"), and BNY
FINANCIAL LIMITED, as agent for the Lenders under the Revolving Credit Agreement
described below (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, this Commitment Transfer Supplement is being executed and delivered in
accordance with Section 15.3 of the Revolving Credit Agreement dated as of 16th
October, 1997 between STYROCHEM EUROPE (THE NETHERLANDS) B.V. ("StyroChem
Europe"), STYROCHEM FINLAND OY ("StyroChem Finland"), THERMISOL DENMARK APS
("Thermisol Finland"), WINCUP HOLDINGS, L.P. ("WINCUP"), WINCUP HOLDINGS, INC.
("Holdings"), SP ACQUISITION CO. ("Acquisition"), STYROCHEM INTERNATIONAL, INC.
("StyroChem") and RADNOR HOLDINGS CORPORATION ("Radnor") (StryoChem Europe,
StyroChem Finland, Thermisol Denmark, Thermisol Sweden, Thermisol Finland,
WINCUP, Holdings, Acquisition, StyroChem and Radnor each an "Obligor" and
jointly and severally, the "Obligors"), BNY FINANCIAL LIMITED ("BNY"), each of
the other financial institutions, the "Lenders") and the Agent (as same may be
amended, supplemental or otherwise modified in accordance with the terms hereof,
the "Loan Agreement");
WHEREAS, Purchasing Lender wishes to become Lender party to the Loan Agreement;
and
WHEREAS, the Transferor Lender is selling and assigning to Purchasing Lender
rights, obligations and commitments under the Loan Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. All capitalised terms used herein which are not defined shall have the
meanings given to them in the Loan Agreement.
2. Upon receipt by the Agent of four counterparts of this Commitment Transfer
Supplement, to each of which is attached a fully completed Schedule I, and
each of which has been executed by the Transferor Lender and Agent, Agent
will transmit to Transferor Lender and Purchasing Lender a Transfer
Effective Notice, substantially in the form of Schedule II to this
Commitment Transfer Supplement (a "Transfer Effective Notice"). Such
Transfer Effective Notice shall set forth, inter alia, the date on which
the transfer effected by this Commitment Transfer Supplement shall become
effective (the "Transfer Effective Date"), which date shall not be earlier
than the first Business Day following the
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date such Transfer Effective Notice is received. From and after the
Transfer Effective Date, Purchasing Lender shall be a Lender party to the
Loan Agreement for all purposes thereof.
3. At or before 12:00 Noon (New York City time) on the Transfer Effective Date
Purchasing Lender shall pay to Transferor Lender, in immediately available
funds, an amount equal to the purchase price, as agreed between Transferor
Lender and such Purchasing Lender (the "Purchase Price"), of the portion of
the Advances being purchased by such Purchasing Lender (such Purchasing
Lender's "Purchased Percentage") of the outstanding Advances and other
amounts owing to the Transferor Lender of the Purchase Price from a
Purchasing Lender, Transferor Lender hereby irrevocably sells, assigns and
transfers to such Purchasing Lender, without recourse, representation or
warranty, and Purchasing Lender hereby irrevocably purchases, takes and
assumes from Transferor Lender, such Purchasing Lender's Purchased
Percentage of the Advances and other amounts owing to the Transferor Lender
under the Loan Agreement together with all instruments, documents and
collateral security pertaining thereto.
4. Transferor Lender has made arrangement with Purchasing Lender with respect
to (i) the portion, if any, to be paid, and the date or dates for payment,
by Transferor Lender to such Purchasing Lender of any fees heretofore
received by Transferor Lender pursuant to the Loan Agreement prior to the
Transfer Effective Date and (ii) the portion, if any, to be paid, and the
date or dates for payment, by such Purchasing Lender to Transferor Lender
of fees or interest received by such Purchasing Lender pursuant to the Loan
Agreement from and after the Transfer Effective Date.
5. (a) All principal payments that would otherwise be payable from and after
the Transfer Effective Date to or for the account of Transferor Lender
pursuant to the Loan Agreement shall, instead, be payable to or for
the account of Transferor Lender and Purchasing Lender, as the case
may be, in accordance with their respective interests a reflected in
this Commitment Transfer Supplement.
(b) All interest, fees and other amounts that would otherwise accrue for
the account of Transferor Lender from and after the Transfer Effective
Date pursuant to the Loan Agreement shall, instead, accrue for the
account of, and be payable to, Transferor Lender and Purchasing
Lender, as the case may be, in accordance with their respective
interests as reflected in this Commitment Transfer Supplement. In the
event that any amount of interest, fees or other amounts accruing
prior to the Transferor Lender and Purchasing Lender will make
appropriate arrangement for payment by Transferor Lender to such
Purchasing Lender of such amount upon receipt thereof from Borrowers.
81
6. Concurrently with the execution and delivery hereof, Transferor Lender will
provide to Purchasing Lender conformed copies of the Loan Agreement and all
related documents delivered to Transferor Lender.
7. Each of the parties to this Commitment Transfer Supplement agrees that at
any time and from time to time upon the written request of any other party,
it will execute and deliver such further documents and do such further acts
and things as such other party may reasonably request in order to effect
the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment Transfer Supplement, Transferor
Lender and Purchasing Lender confirm to and agree with each other and Agent
and Lenders as follows:
(i) other than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned hereby free and
clear of any adverse claim, Transferor Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or
in connection with the Loan Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the
Loan Agreement or any other instrument or document furnished
pursuant thereto;
(ii) Transferor Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrowers
or the performance or observance by Borrowers of any of their
Obligations under the Loan Agreement or any other instrument or
document furnished pursuant hereto;
(iii) Purchasing Lender confirms that is has received a copy of the Loan
Agreement, together with copies of such financial statements and
such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Commitment Transfer Supplement;
(iv) Purchasing Lender will, independently and without reliance upon
Agent, Transferor Lender or any other Lenders and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under the Loan Agreement;
(v) Purchasing Lender appoints and authorizes Agent to take such action
as agent on it behalf and to exercise such powers under the Loan
Agreement as are delegated to the Agent by the terms thereof;
(vi) Purchasing Lender agrees that it will perform all of its respective
obligations as set forth in the Loan Agreement to be performed by
each as a Lender; and
82
(vii) Purchasing Lender represents and warrants to Transferor Lender,
Lenders, Agent and Borrower that it is either (x) entitled to the
benefits of an income tax treaty with the United States of America
that provides for an exemption from the United States withholding
tax on interest and other payments made by Borrowers under the Loan
Agreement and the Other Documents or (y) is engaged in trade or
business within the United States of America.
9. Schedule I hereto sets forth the revised Commitment Percentages of
Transferor Lender and the Commitment Percentage of Purchasing Lender as
well as administrative information with respect to Purchasing Lender.
10. This Commitment Transfer Supplement shall be governed by, and construed in
accordance with, the laws of the State of New York.
83
IN WITNESS WHEREOF, the parties hereto have caused this Commitment Transfer
Supplement to be executed by their respective duly authorized officers on the
date set forth above.
-----------------------------------
as Transferor Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
-----------------------------------
as Purchasing Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
BNY FINANCIAL LIMITED
as Agent
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Consented to:
WINCUP HOLDINGS L.P.
By:
------------------------------------
Name:
Its:
WINCUP HOLDINGS, INC.
By:
------------------------------------
Name:
Its:
84
SP ACQUISITION
By:
------------------------------------
Name:
Its:
STYROCHEM INTERNATIONAL, INC.
By:
------------------------------------
Name:
Its:
RADNOR HOLDINGS CORPORATION
By:
------------------------------------
Name:
Its:
STYROCHEM EUROPE (THE NETHERLANDS) B.V.
By:
------------------------------------
Name:
Its:
STYROCHEM FINLAND OY
By:
------------------------------------
Name:
Its:
THERMISOL DENMARK APS
By:
------------------------------------
Name:
Its:
85
THERMISOL FINLAND OY
By:
------------------------------------
Name:
Its:
THERMISOL SWEDEN AB
By:
------------------------------------
Name:
Its:
86
SCHEDULE I TO COMMITMENT TRANSFER SUPPLEMENT
LIST OF OFFICES, ADDRESSES FOR NOTICES AND COMMITMENT AMOUNTS
[Transferor Lender] Revised Commitment Amount $
Revised Commitment Percentage:
[Purchasing Lender] Commitment Amount $
Commitment Percentage:
Addresses for Notices
Attention:
Telephone:
Telecopier:
87
SCHEDULE II TO COMMITMENT TRANSFER SUPPLEMENT
[Form of Transfer Effective Notice]
To: [ ], as Transferor Lender and
[ ], as Purchasing Lender:
The undersigned, as Agent under the Revolving Credit Agreement dated as of 16th
October, 1997 between each of the Obligors therein defined, BNY FINANCIAL
LIMITED ("BNY"), each of the other financial institutions named in or which
hereafter become a party to the Loan Agreement (BNY and such other hereafter
become a party to the Loan Agreement (BNY and such other financial institutions,
the "Lenders") and BNY as agent for the Lenders, acknowledges receipt of four
(4) executed counterparts of a completed Commitment Transfer Supplement in the
form attached hereto. [Note: Attach copy of Commitment Transfer Supplement.]
Terms defined in such Commitment Transfer Supplement are used herein as therein
defined.
Pursuant to such Commitment Transfer Supplement, you are advised that the
Transfer Effective Date will be [Insert date of Transfer Effective Notice].
BNY FINANCIAL LIMITED,
as Agent
By:
-----------------------------------
Title:
--------------------------------
ACCEPTED FOR RECORDATION
IN REGISTER:
88
Schedule 5.2(b)
Subsidiaries
Name of Obligor: Radnor Holdings Corporation
Subsidiaries: WinCup Holdings, Inc., Benchmark Holdings, Inc., SP
Acquisition Co., Radnor Management, Inc., Radnor
Asset Management, Inc., Radnor Investments, Inc.,
Radnor Investment Advisors, Inc.
The sole subsidiary of Radnor Investments, Inc. is
Radnor Investments II, Inc.
Radnor Investment Advisors, Inc. is the general partner
of Radnor Investment Advisors, L.P., a Delaware limited
partnership.
Radnor Investment Advisors, L.P. is the general partner
of Radnor Investments, L.P. a Delaware limited
partnership.
Name of Obligor: WinCup Holdings, Inc.
Subsidiaries: WinCup Holdings, L.P. was dissolved and merged into
WinCup Holdings, Inc. in July 1997.
Name of Obligor: SP Acquisition Co.
Subsidiaries: StyroChem International, Inc., StyroChem International,
Ltd. (Quebec corporation), StyroChem Europe (the
Netherlands) B.V. (Netherlands corporation). The
subsidiaries of StyroChem Europe (the Netherlands)
B.V. are: StyroChem Finland Oy (Finnish Corporation),
Thermisol Denmark Aps (Netherlands Corporation),
Thermisol Finland Oy (Finnish Corporation), and
Thermisol Sweden AB (Swedish Corporation).
Name of Obligor: StyroChem International, Inc.
Subsidiaries: StyroChem FSC, Ltd. (Barbados corporation)
Name of Obligor: StyroChem Europe (the Netherlands) B.V.
Subsidiaries:
Name of Obligor: StyroChem Finland Oy
Subsidiaries: None
Name of Obligor: Thermisol Denmark Aps
Subsidiaries: None
89
Name of Obligor: Thermisol Sweden AB
Subsidiaries: None
Name of Obligor: Thermisol Finland Oy
Subsidiaries: None
90
CONFORMED COPY
12th December, 1997
SUPPLEMENT REVOLVING MULTICURRENCY CREDIT AGREEMENT
BNY FINANCIAL LIMITED
NATIONSBANK N.A.
AS LENDERS
WITH
STYROCHEM EUROPE (THE NETHERLANDS) B.V.
STYROCHEM FINLAND OY
THERMISOL DENMARK APS
THERMISOL SWEDEN AB
THERMISOL FINLAND OY
AS BORROWERS
GUARANTEED BY INTER ▇▇▇▇
▇▇▇▇▇▇ HOLDINGS, INC.
RADNOR CHEMICAL CORPORATION
STYROCHEM U.S., INC.
RADNOR HOLDINGS CORPORATION
WITH
BNY FINANCIAL LIMITED
AS AGENT
▇▇▇▇▇ & OVERY
London
CONTENTS
Clause Page
1. Definitions...........................................................
2. Advances, Payments..................................................11
3. Interest And Fees...................................................19
4. Cross-Guarantee.....................................................22
5. Representations And Warranties......................................26
6. Affirmative Covenants...............................................30
7. Negative Covenants..................................................34
8. Conditions Precedent................................................37
9. Information.........................................................42
10. Events Of Default...................................................44
11. Lenders' Rights And Remedies After Default..........................47
12. Waivers And Judicial Proceedings....................................48
13. Effective Date And Termination......................................48
14. Regarding Agent.....................................................49
15. Miscellaneous.......................................................52
16. Borrowing Agency....................................................59
AError! Bookmark not defined.
Annex 1 Commitment Transfer Supplement..................................63
Schedule I to Commitment Transfer Supplement.......................69
Schedule II to Commitment Transfer Supplement......................70
Annex 2 Subsidiaries....................................................71
B3:112290.1
--------------------------------------------------------------------------------
THIS AGREEMENT is dated as of 12th December, 1997 between:
(1) STYROCHEM EUROPE (THE NETHERLANDS), B.V., STYROCHEM FINLAND OY, THERMISOL
DENMARK APS, THERMISOL FINLAND OY and THERMISOL SWEDEN AB(in this capacity
each a "Borrower" and together the "Borrowers");
(2) WINCUP HOLDINGS, INC., RADNOR CHEMICAL CORPORATION, STYROCHEM U.S. INC.,
RADNOR HOLDINGS CORPORATION, (each a "U.S. Guarantor" and together the
"U.S. Guarantors") STYROCHEM EUROPE (THE NETHERLANDS) B.V., STYROCHEM
FINLAND OY, THERMISOL FINLAND OY and THERMISOL SWEDEN AB each a "European
Guarantor" and together the "European Guarantors");
(3) BNY FINANCIAL LIMITED and NATIONSBANK N.A. as lenders (in this capacity
each a "Lender" and together the "Lenders"); and
(4) BNY FINANCIAL LIMITED as administrative agent (in this capacity the
"Agent")
WHEREAS Wincup, Acquisition, StyroChem and Radnor have entered into the U.S.
Credit Facility (as defined below) and pursuant to which it is stipulated that
the parties hereto will enter into this Agreement which shall constitute a
supplement to the U.S. Credit Facility.
WHEREAS the parties hereto wish to terminate the credit agreements entered into
between them on 15th October, 1997 and 21st November, 1997 and replace the same
with this Agreement.
IT IS AGREED that the U.S. Credit Facility be supplemented as follows:
1. DEFINITIONS
1.1 Accounting Terms
As used in this Agreement or any certificate, report, note or other
document made or delivered pursuant to this Agreement, accounting terms
not defined in Section 1.2 or elsewhere in this Agreement and accounting
terms partly defined in Section 1.2 to the extent not defined, shall have
the respective meanings given to them under GAAP; provided, however,
whenever such accounting terms are used for the purposes of determining
compliance with financial covenants in this Agreement, such accounting
terms shall be defined in accordance with GAAP applied in preparation of
the audited financial statements of Radnor on a Consolidated Basis for
the fiscal period ended 31st December, 1996.
1.2 General Terms
For purposes of this Agreement terms defined in the U.S. Credit Facility
and exhibits and schedules referred to in the same shall have the same
meaning herein as therein and the following terms shall have the
following meanings:
"Acquisition" shall mean Radnor Chemical Corporation, a corporation
organised and existing under the laws of the State of Delaware.
"Advances" shall mean the principal amount of each borrowing by a
Borrower under this Agreement or the principal amount outstanding of that
borrowing.
2
B3:112290.1
--------------------------------------------------------------------------------
"Advance Rates" shall have the meaning set forth in Section 2.1(a)
hereof.
"Agent's Spot Rate of Exchange" shall mean the Agent's spot rate of
exchange for the purchase of the relevant Optional Currency in the London
foreign exchange market with Dollars (as supplied to it at its request by
the Reference Banks) at or about 11.00 a.m. (London time) on a particular
day.
"Applicable Margin" for any period shall be determined by the ratio of
Funded Indebtedness to EBITDA calculated for the most recent fiscal
quarter with respect to the four fiscal quarters then ended which shall
be subject to adjustment from time to time as set forth in Section 3.1.
The Applicable Margin with respect to each Advance provided in Section
3.1 and in respect of the Facility Fee provided for in Section 3.3
hereof, as the case may be, shall be the percentage set forth below as
corresponds to the applicable ratio set forth below:
Funded Indebtedness to EBITDA Advance Facility Fee
Greater than 5.0 to 1.0 2.00% .50%
Greater than 4.1 to 1.0 1.75% .375%
But equal to or less than 5.0 to 1.0
Greater than 3.1 to 1.0 1.50% .25%
But equal to or less than 4.1 to 1.0
Greater than 2.1 to 1.0 1.25% .125%
But equal to or less than 3.1 to 1.0
Equal to or less than 2.1 to 1.0 1.00% .125%
"Borrower" or "Borrowers" shall have the meaning set forth in the
preamble to this Agreement and shall include all permitted successors and
assigns of such Persons.
"Borrowing Agent" shall mean StyroChem Europe.
"Business Day" shall mean a day (other than a Saturday or a Sunday) on
which banks are open for business in (a) London and New York and (b) in
relation to a transaction involving an Optional Currency, the principal
financial centre of the country of the Optional Currency or if more than
one country, the country or countries designated by the Agent.
"Change of Control" shall mean (a) the occurrence of any event (whether
in one or more transactions) which results in a transfer of control of
any Borrower or U.S. Guarantor to a Person who is not an Original Owner
or an Affiliate of an Original Owner or (b) any merger or consolidation
of or with any Borrower or U.S. Guarantor or sale or transfer of all or
substantially all of the property or assets of any Borrower or U.S.
Guarantor with or to a Person that is not a Borrower or U.S. Guarantor
hereunder. For purposes of this definition, "control of Borrower or U.S.
Guarantor" shall mean the power, direct or indirect, (x) to vote 50% or
more of the securities having ordinary voting power for the election of
directors of any
3
B3:112290.1
-------------------------------------------------------------------------------
Borrower or U.S. Guarantor or (y) to direct or cause the direction of the
management and policies of a Borrower or U.S. Guarantor, by contract or
otherwise.
"Change of Ownership" shall mean (a) any transfer (whether in one or more
transactions) of ownership of 50% or more of the common stock of any
Borrower or U.S. Guarantor (including for the purposes of the calculation
of percentage ownership, any shares of common stock into which any
capital stock of any Borrower or U.S. Guarantor held by any Original
Owner is convertible or for which any such shares of the capital stock of
any Borrower or U.S. Guarantor or of any other Person may be exchanged
and any shares of common stock issuable to its Parent upon exercise of
any warrants, options or similar rights which may at the time of
calculation be held by such Original Owners) to a Person who is neither
(at the time of such transfer) an Original Owner nor an Affiliate of an
Original Owner or (b) any merger, consolidation or sale of substantially
all of the property or assets of any Borrower or U.S. Guarantor with or
to a Person that is not a Borrower or U.S. Guarantor hereunder.
"Charges" shall mean all taxes, charges, fees, imposts, levies or other
assessments, including, without limitation, all net income, gross income,
gross receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, licence, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp,
occupation and property taxes, custom duties, fees, assessments, liens,
claims and charges of any kind whatsoever, together with any interest and
any penalties, additions to tax or additional amounts, imposed by any
taxing or other authority, domestic or foreign, upon the Security Assets,
any Borrower.
"Commitment Percentage" of any Lender shall mean the percentage set forth
below such Lender's name on the signature page hereof as same may be
adjusted upon any assignment by a Lender pursuant to Section 15.3(b)
hereof.
"Commitment Transfer Supplement" shall mean a document in the form of
Annex 1 hereto, properly completed and otherwise in form and substance
satisfactory to Agent by which the Purchasing Lender purchases and
assumes a portion of the obligation of Lenders to make Advances under
this Agreement.
"Consents" shall mean all filings and all licenses, permits, consents,
approvals, authorisations, qualifications and orders of governmental
authorities and other third parties, domestic or foreign, necessary to
carry on Borrower or U.S. Guarantor's business, including, without
limitation, any Consents required under all applicable federal, state or
other applicable law.
"Contract Rate" shall mean, as applicable, the Revolving Interest Rate or
the Default Rate.
"Customer" shall mean and include the account debtor with respect to any
Receivable and/or the prospective purchaser of goods, services or both
with respect to any contract or contract right, and/or any party who
enters into or proposes to enter into any contract or other arrangement
with any Borrower, pursuant to which any Borrower is to deliver any
personal property or perform any services.
"Danish Krona" shall mean the lawful currency for the time being of
Denmark.
"Default" shall mean an event which, with the giving of notice or passage
of time or both, would constitute an Event of Default.
4
B3:112290.1
--------------------------------------------------------------------------------
"Default Rate" shall have the meaning set forth in Section 3.1 hereof.
"Deutschmarks" shall mean the lawful currency for the time being of
Germany.
"Documents" shall have the meaning set forth in Section 8.1(c) hereof.
"Dollars" and the sign "$" shall mean lawful currency of the United
States of America.
"Effective Date" shall mean the date hereof or such other date as may be
agreed to by the parties hereto.
"Eligible Inventory" shall mean and include Inventory excluding work in
process, with respect to each Borrower, valued at the lower of cost or
market value, determined on a first-in-first-out basis, which is not, in
Agent's opinion, obsolete, slow moving or unmerchantable and which Agent,
in its sole discretion, shall not deem ineligible Inventory, based on
such considerations as Agent may from time to time deem appropriate
including, without limitation, whether the Inventory is subject to a
perfected, first priority security interest in favour of Agent for the
rateable benefit of the Lenders and whether the Inventory conforms to all
standards imposed by any governmental agency, division or department
thereof which has regulatory authority over such goods or the use or sale
thereof.
"Eligible Receivables" shall mean and include, with respect to each
Borrower, each Receivable arising in the ordinary course of such
Borrower's business and which Agent, in its sole credit judgment, shall
deem to be an Eligible Receivable, based on such considerations as Agent
may from time to time deem appropriate. A Receivable shall not be deemed
eligible unless such Receivable is subject to Agent's first priority
perfected security interest for the rateable benefit of the Lenders and
no other Lien other than Permitted Encumbrances, and is evidenced by an
invoice, ▇▇▇▇ of lading or other documentary evidence satisfactory to
Agent. In addition, no Receivable shall be an Eligible Receivable if:
(a) it arises out of a sale made by any Borrower to an Affiliate of any
Borrower or to a Person controlled by an Affiliate of any Borrower;
(b) it is due or unpaid more than ninety (90) days after the original
invoice date;
(c) twenty-five per cent. (25%) or more of the Receivables from the
Customer are not deemed Eligible Receivables hereunder. Such
percentage may, in Agent's sole discretion, be increased or
decreased from time to time;
(d) any covenant, representation or warranty contained in this Agreement
with respect to such Receivable has been breached;
(e) the Customer shall (i) apply for, suffer, or consent to the
appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of all or a
substantial part of its property or call a meeting of its creditors,
(ii) admit in writing its inability, or be generally unable, to pay
its debts as they become due or cease operations of its present
business, (iii) make a general assignment for the benefit of
creditors, (iv) commence a voluntary case under any state, federal
or other applicable
5
B3:112290.1
--------------------------------------------------------------------------------
bankruptcy laws (as now or hereafter in effect), (v) be adjudicated
a bankrupt or insolvent, (vi) file a petition seeking to take
advantage of any other law providing for the relief of debtors,
(vii) acquiesce to, or fail to have dismissed, any petition which is
filed against it in any involuntary case under such bankruptcy laws,
or (viii) take any action for the purpose of effecting any of the
foregoing;
(f) the sale to the Customer is on a ▇▇▇▇-and-hold, guaranteed sale,
sale-and-return, sale on approval, consignment or any other
repurchase or return basis or is evidenced by chattel paper;
(g) Agent believes, in its sole judgment, that collection of such
Receivable is insecure or that such Receivable may not be paid by
reason of the Customer's financial inability to pay;
(h) the Customer is the United States of America or any government or
nation other than the United States of America, any state or any
department, agency or instrumentality of any of them, unless the
applicable Borrower effectuates an assignment of its right to
payment of such Receivable to Agent pursuant to the Assignment of
Claims Act of 1940, as amended (31 U.S.C. Sub-Section 3727 et seq.
and 41 U.S.C. Sub-Section 15 et seq.) or has otherwise complied with
other applicable statutes or ordinances;
(i) the goods giving rise to such Receivable have not been shipped and
delivered to and accepted by the Customer or the services giving
rise to such Receivable have not been performed by the applicable
Borrower and accepted by the Customer or the Receivable otherwise
does not represent a final sale;
(j) the Receivables of the Customer exceed a credit limit determined by
Agent, in its sole discretion, to the extent such Receivable exceeds
such limit;
(k) the Receivable is subject to any offset, deduction, defence,
dispute, or counterclaim to the extent of such offset, deduction,
defence, dispute or counterclaim, the Customer is also a creditor or
supplier of a Borrower or the Receivable is contingent in any
respect or for any reason;
(l) the applicable Borrower has made any agreement with a Customer for
any deduction therefrom, except for discounts or allowances made in
the ordinary course of business for prompt payment, all of which
discounts or allowances are reflected in the calculation of the face
value of each respective invoice related thereto;
(m) shipment of the merchandise or the rendition of services has not
been completed;
(n) any return, rejection or repossession of the merchandise has
occurred;
(o) such Receivable is not payable to a Borrower; or
(p) such Receivable is not otherwise satisfactory to Agent as determined
in good faith by Agent in the exercise of its discretion in a
reasonable manner.
6
B3:112290.1
--------------------------------------------------------------------------------
"Equipment" shall mean and include as to each Borrower all of such
Borrower's goods (excluding Inventory) whether now owned or hereafter
acquired and wherever located including, without limitation, all
equipment, machinery, apparatus, motor vehicles, fittings,
furniture, furnishings, fixtures, parts, accessories and all replacements
and substitutions therefor or accessions thereto.
"Event of Default" shall mean the occurrence and continuance of any of
the events set forth in Article 10 hereof.
"Finnish Markka" shall mean the lawful currency for the time being of
Finland.
"Fixed Charge Coverage" for any period shall mean the ratio for any
period of (1) such period of EBITDA to (2) all Debt Payments plus (a) the
aggregate amount of capital expenditures actually made plus (b) the
aggregate amount of cash payments of taxes made.
"Formula Amount" shall have the meaning set forth in Section 2.1(a)
hereof.
"General Intangibles" shall mean and include as to each Borrower all of
such Borrower's general intangibles, whether now owned or hereafter
acquired including, without limitation, all choses in action, causes of
action, corporate or other business records, inventions, designs,
patents, patent applications, equipment formulations, manufacturing
procedures, quality control procedures, trademarks, service marks, trade
secrets, goodwill, copyrights, design rights, registrations, licences,
franchises, customer lists, tax refunds, tax refund claims, computer
programs, all claims under guaranties, security interests or other
security held by or granted to such Borrower to secure payment of any of
the Receivables by a Customer, all rights of indemnification and all
other intangible property of every kind and nature (other than
Receivables).
"Interest Period" shall mean the period provided for any Advance pursuant
to Section 2.2(b) or in the case of overdue interest pursuant to Section
3.1.
"Inventory" shall mean and include as to each Borrower all of such
Borrower's now owned or hereafter acquired goods, merchandise and other
personal property, wherever located, to be furnished under any contract
of service or held for sale or lease, all raw materials, work in process,
finished goods and materials and supplies of any kind, nature or
description which are or might be used or consumed in such Borrower's
business or used in selling or furnishing such goods, merchandise and
other personal property, and all documents of title or other documents
representing them.
"Inventory Advance Rate" shall mean such term as defined in Section 2.1.
"Lender" and "Lenders" shall have the meaning ascribed to such term in
the Preamble, each Purchasing Lender and shall include each person which
is a transferee, successor or assign of any Lender or any Purchasing
Lender.
"LIBOR" shall mean for any Advance for the then current Interest Period
relating thereto, the arithmetic mean rounded upwards if necessary to the
nearest one-sixteenth of one per cent. (1/16%) of rates per annum
supplied to the Agent, at its request, quoted by the Reference Banks at
or about 11.00 a.m. two (2) Business Days prior to the first day of such
Interest
7
B3:112290.1
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Period for the offering by the Reference Banks to prime commercial banks
in the London Interbank Euromarket of deposits in the currency of the
relevant Advance in immediately available funds for a period equal to
such Interest Period and in an amount equal to the amount of such
Advance.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, security interest, lien (whether statutory or otherwise),
Charge, claim or encumbrance, or preference, priority or other security
agreement or preferential arrangement held or asserted in respect of any
asset of any kind or nature whatsoever including, without limitation, any
conditional sale or other title retention agreement, any lease having
substantially the same economic effect as any of the foregoing, and the
filing of, or agreement to give, any financing statement under the
Uniform Commercial Code or comparable law of any jurisdiction.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
condition, operations, assets, business or prospects of the applicable
Person or Persons, (b) the ability of any Borrower, European or U.S.
Guarantor to pay the Obligations in accordance with the terms thereof,
(c) the value of the Security Assets, the Liens on the Security Assets or
the priority of any such Lien, or (d) the practical realisation of the
benefits of Agent and Lenders' rights and remedies under this Agreement
and the Security Documents, all as determined by the Required Lenders in
the good faith exercise of their sole and absolute discretion.
"Maximum Loan Amount" shall mean $10,000,000.
"Norwegian Krone" shall mean the lawful currency for the time being of
Norway.
"Obligations" shall mean and include, with respect to each Borrower,
European and U.S. Guarantor, any and all of each such Borrower's,
European and U.S. Guarantor's Indebtedness and/or liabilities to Agent or
any of the Lenders or any corporation that directly or indirectly
controls or is controlled by or is under common control with any Lender
of every kind, nature and description, direct or indirect, secured or
unsecured, joint, several, joint and several, absolute or contingent, due
or to become due, now existing or hereafter arising, contractual or
tortious, liquidated or unliquidated under this Agreement or under any
Security Document and all obligations of each such Borrower, European and
U.S. Guarantors to Agent or the Lenders to perform acts or refrain from
taking any action under this Agreement or any Security Document.
"Optional Currencies" shall mean German Deutschmarks, Danish Krona,
Finnish Markka, Norwegian Krone or Swedish Krona.
"Original Dollar Amount" in relation to an Advance, means (a) if that
Advance is denominated in Dollars, the amount of that Advance, or (b) if
the Advance is denominated in an Optional Currency, the equivalent in
Dollars of the amount of that Advance at the Agent's Spot Rate of
Exchange two Business Days prior to its proposed day of borrowing.
"Payment Office" shall mean the office or bank in the principal financial
centre of the country of the relevant currency or, such other office of
Agent, if any, which it may designate by notice to Borrowing Agent and
each Lender to be the Payment Office.
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"Permitted Encumbrances" shall mean (a) Liens in favour of Agent for the
rateable benefit of the Lenders; (b) Liens for taxes, assessments or
other governmental charges not delinquent or being contested in good
faith and by appropriate proceedings and with respect to which proper
reserves have been taken by the Borrowers; provided, that, the Lien shall
have no effect on the priority of the Liens in favour of Agent for the
rateable benefit of the Lenders or the value of the assets in which Agent
has such a Lien and a stay of enforcement of any such Lien for the
rateable benefit of the Lenders shall be in effect; (c) Liens disclosed
in the financial statements referred to in Section 5(e); (d) deposits or
pledges to secure obligations under worker's compensation, social
security or similar laws, or under unemployment insurance; (e) deposits
or pledges to secure bids, tenders, contracts (other than contracts for
the payment of money), leases, statutory obligations, surety and appeal
bonds and other obligations of like nature arising in the ordinary course
of any Borrower's business; (f) judgment Liens that have been stayed or
bonded and mechanics', worker's, materialmen's or other like Liens
arising in the ordinary course of any Borrower's business with respect to
obligations which are not due or which are being contested in good faith
by the applicable Borrower; (g) Liens placed upon fixed assets hereafter
acquired to secure a portion of the purchase price thereof, provided that
(x) any such lien shall not encumber any other property of any Borrower
and (y) the aggregate amount of Indebtedness secured by such Liens
incurred as a result of such purchases during any fiscal year shall not
exceed the amount provided for in Section 7(f); and (h) Liens disclosed
on Schedule 1.2 of the U.S. Credit Facility.
"Pound Sterling" shall mean the lawful currency for the time being of
Great Britain.
"Pro Forma Balance Sheet" shall have the meaning set forth in Section
5(e)(i) hereof.
"Pro Forma Financial Statements" shall have the meaning set forth in
Section 5(e)(ii) hereof.
"Projections" shall have the meaning set forth in Section 5(e)(ii)
hereof.
"Purchasing Lender" shall have the meaning set forth in Section 15.3
hereof.
"Radnor" shall mean Radnor Holdings Corporation, a corporation organised
and existing under the laws of the State of Delaware.
"Radnor on a Consolidated Basis" shall mean the consolidation in
accordance with GAAP of the accounts or other items of Radnor and its
Subsidiaries.
"Receivables" shall mean and include as to each Borrower all of such
Borrower's accounts, contract rights, instruments (including those
evidencing indebtedness among Borrowers and its Affiliates), documents,
chattel paper, general intangibles relating to accounts, drafts and
acceptances, and all other forms of obligations owing to such Borrower
arising out of or in connection with the sale or lease of Inventory or
the rendition of services, all guarantees and other security therefor,
whether secured or unsecured, now existing or hereafter created, and
whether or not specifically sold or assigned to the Agent for the
rateable benefit of the Lenders hereunder.
"Receivables Advance Rate" shall have the meaning set forth in Section
2.1(a) hereof.
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"Reference Bank" shall mean the London offices of The Bank of New York,
Nationbank N.A. and Lloyds Bank PLC or such other bank as the Agent and
the Borrowing Agent may agree.
"Release" shall have the meaning set forth in Section 5.7(g)(iii) hereof.
"Reportable Event" shall mean a reportable event described in Section
4043(b) of ERISA or the regulations promulgated thereunder.
"Required Lenders" shall mean Lenders holding at least fifty one per
cent. (51%) of the Advances or if no Advances are outstanding, fifty one
per cent. (51%) of the Commitment Percentages.
"Revolving Interest Rate" shall mean an interest rate per annum equal to
(a) LIBOR plus (b) Applicable Margin.
"Security Assets" shall mean all the assets secured in favour of the
Agent and Lenders under the Security Documents.
"Security Documents" shall mean (a) the StyroChem Finland Security
Agreement and the Collateral Documents as defined therein and related
thereto, (b) the Thermisol Finland Security Agreement and the Collateral
Documents as defined therein and related thereto, and (c) any other
document designated as such by the Agent and the Borrowing Agent.
"StyroChem" shall mean StyroChem U.S., Inc., a corporation organised and
existing under the laws of the State of Texas.
"StyroChem Europe" shall mean StyroChem Europe and its Subsidiaries, (the
Netherlands) B.V., a Netherlands corporation.
"StyroChem Europe Acquisition Agreement" shall mean the Sale of Assets
Agreement among Radnor, StyroChem Finland, Thermisol Finland, Thermisol
Sweden, Thermisol Denmark, Neste Oy, Isora Oy, Neste Cellplast AB, and
Neste Thermisol A/S pursuant to which Radnor acquired, through StyroChem
Europe, all of the polystyrene and conversion operations of Neste Oy in
Finland, Sweden and Denmark.
"StyroChem Finland" shall mean StyroChem Finland Oy a corporation
organised under the laws of Finland.
"StyroChem Finland Security Agreement" shall mean the security agreement
entered or to be entered into by StyroChem Finland in favour of the Agent
pursuant to this Agreement.
"Swedish Krona" shall mean the lawful currency for the time being of
Sweden
"Term" shall mean the Effective Date through 15th October, 2002 or such
earlier date on which the Agent terminates this Agreement in accordance
with its terms.
"Thermisol Denmark" shall mean Thermisol Denmark ApS, a corporation
organised under the laws of Denmark.
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"Thermisol Finland" shall mean Thermisol Finland Oy a corporation
organised under the laws of Finland.
"Thermisol Finland Security Agreement" shall mean the security Agreement
entered or to be entered into by Thermisol Finland in favour of the Agent
pursuant to this Agreement.
"Thermisol Sweden" shall mean Thermisol Sweden AB, a corporation
organised under the laws of Sweden.
"Total Interest" for any period shall mean the accrued and unpaid
interest obligations of Radnor on a Consolidated Basis with respect to
its outstanding Indebtedness during such period.
"Transferee" shall have the meaning set forth in Section 15.3(b) hereof.
"Transactions" shall have the meaning set forth in Section 5(e) hereof.
"Undrawn Availability" at a particular date shall mean an amount equal to
(a) the lesser of (i) the Formula Amount or (ii) the Maximum Loan Amount,
minus (b) the sum of (i) the outstanding amount of Advances plus (ii) all
amounts due and owing to Borrowers' trade creditors which are outstanding
more than sixty (60) days past the due date therefor.
"U.S. Credit Facility" means the Second Amended and Restated Revolving
Credit and Security Agreement entered into between BNY Financial
Corporation as Agent or Lender and the U.S. Guarantors and others
pursuant to which the U.S. Lenders agree to fund loans to the U.S.
Guarantors up to an aggregate principal amount of U.S.$30,000,000.
"U.S. Guarantors" shall mean each of Wincup, Acquisition, StyroChem and
Radnor, together known as the "U.S. Guarantors".
"U.S. Lenders" means the Lenders as defined in the U.S. Credit Facility.
"Wincup" shall mean Wincup Holdings, Inc., a corporation organised under
the laws of the State of Delaware.
"Working Capital" at a particular date, shall mean the excess, if any, of
Current Assets over Current Liabilities at such date.
1.3 Certain Matters of Construction
The terms "herein", "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
section, paragraph or subdivision. Any pronoun used shall be deemed to
cover all genders. Wherever appropriate in the context, terms used herein
in the singular also include the plural and vice versa. All references to
statutes and related regulations shall include any amendments of same and
any successor statutes and regulations. All references to any instruments
or agreements to which Agent is a party, including, without limitation,
references to any of the Security Documents or the US Credit Facility
shall include any and all modifications or amendments thereto and any and
all extensions or renewals thereof.
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2. ADVANCES, PAYMENTS
2.1 (a) Borrowing Base
Subject to the terms and conditions set forth in this Agreement, each
Lender, severally and not jointly, agrees to make Advances to the
Borrowers in accordance with the procedures provided for herein in an
aggregate amount outstanding at any time not greater than such
Lender's Commitment per cent of the lesser of (x) the Maximum Loan
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 of
Borrowers determined by the Agent on the basis of the most
recent report provided to the Agent pursuant to Section
9(b)(a) hereunder on the date the Agent receives a notice of
borrowing under Section 2.2(a) hereunder, plus
(ii) the lesser of (x) $5,000,000 or (y) up to 60%, subject to the
provisions of Section 2.1(b) hereof ("Inventory Advance
Rate"), of Eligible Inventory of Borrowers determined by the
Agent on the basis of the most recent report provided to the
Agent pursuant to Section 9(b)(c) hereunder on the date the
Agent receives a notice of borrowing under Section 2.2(a)
hereunder (the Receivables Advance Rate and the Inventory
Advance Rate shall be referred to, collectively, as the
"Advance Rates"), minus
(iii) such reserves as Agent may, in a commercially reasonable
manner, reasonably deem proper and necessary.
The sum of the amounts (taken at their Original Dollar Amount) derived
from (x) the sum of Sections 2.1(a)(y)(i) plus 2.1(a)(y)(ii) minus (y)
the amount of Section 2.1(a)(y)(iii) at any time and from time to time
shall be referred to as the "Formula Amount".
(b) Discretionary Rights
The Advance Rates may be increased or with the consent of the Required
Lenders, decreased by Agent at any time and from time to time in the
exercise of its reasonable discretion. The 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.
2.2 Procedure for Borrowing
(a) In the event any Borrower desires to obtain an Advance, it shall give
Agent, through the Borrowing Agent, at least three (3) Business Days' prior
written notice; specifying (i) the date of the proposed borrowing (which
shall be a Business Day), (ii) the Original Dollar Amount on the date of
such Advance to be borrowed, which amount shall be in a minimum of
$1,000,000 in the case of an Advance to be denominated in Finnish Markka
and $500,000 in the case of an Advance to be denominated in any other
currency, and (iii) the duration of the Interest Period
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therefor. Interest Periods shall be for one (1), two (2), three (3) or six
(6) months. There shall not be outstanding more than ten (10) Advances, in
the aggregate.
(b) Each Interest Period of an Advance shall commence on the date such Advance
is made and shall end on such date as a Borrower may elect in each notice
of borrowing referred to in (a) above provided that:
(i) any Interest Period which would otherwise end on a day which is
not a Business Day shall be the next preceding or succeeding
Business Day as is the Reference Bank's custom in the market to
which such Advance relates;
(ii) no Interest Period shall end after the last day of the Term; and
(iii) any Interest Period which begins on a day for which there is no
numerically corresponding day in the calendar month during which
such Interest Period is to end, shall (subject to Section
2.2(b)(i) above) end on the last day of such calendar month.
The Borrowing Agent shall elect each Interest Period applicable to an
Advance by its notice of borrowing given to Agent pursuant to Section
2.2(a).
(c) In the event that any prepayment of an Advance is required or permitted on
a date other than the last Business Day of the Interest Period with respect
thereto such Borrower shall indemnify Agent and Lenders therefor in
accordance with Section 2.2(d) hereof.
(d) Each Borrower shall indemnify Agent and Lenders and hold Agent and Lenders
harmless from and against any and all losses or expenses that Agent and any
Lender may sustain or incur as a consequence of any prepayment or any
default by any Borrower in the payment of the principal of or interest on
any Advance or failure by such Borrower to complete a borrowing of, a
prepayment of any Advance after notice thereof has been given, including
(but not limited to) any interest payable by Agent or any Lender to lenders
of funds obtained by it in order to make or maintain its Advances
hereunder.
(e) Notwithstanding any other provision hereof, if any applicable law, treaty,
regulation or directive, or any change therein or in the interpretation or
application thereof, shall make it unlawful for any Lender (for purposes of
this subsection (f), the term "Lender" shall include any Lender and the
office or branch where any Lender makes or maintains any Advance or any
corporation or bank controlling such Lender) to make or maintain its
participation in any Advance, the obligation of any Lender to participate
in such Advance hereunder shall forthwith be cancelled and the relevant
Borrower shall, if any affected Advance are then outstanding, promptly upon
request from Agent, repay all such affected Advance. If any such repayment
of any Advance is made on a day that is not the last day of an Interest
Period relative to such Advance , the relevant Borrower shall pay such
Lender, upon such Lender's request, such amount or amounts as may be
necessary to compensate such Lender for any loss or expense sustained or
incurred by such Lender in respect of such Advance as a result of such
repayment, including (but not limited to) any interest or other amounts
payable by such Lender to lenders of funds obtained by such Lender in order
to make or maintain such Advance. A certificate as to any additional
amounts payable pursuant to the foregoing sentence submitted by Agent to
Borrower shall be conclusive absent manifest error; provided, each Lender
shall use its reasonable efforts to minimise or avoid any such additional
payment.
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2.3 Disbursement of Advance Proceeds
All Advances shall be disbursed from whichever office or other place Agent
may designate from time to time and, together with any and all other
Obligations of Borrowers to Agent or any of the Lenders, shall be charged
to the applicable Borrower's account on Agent's books. During the Term,
Borrowers may use the Advances by borrowing, prepaying and reborrowing, all
in accordance with the terms and conditions hereof. The proceeds of each
Advance requested on behalf of any Borrower shall, with respect to
requested Advances to the extent the Lenders make such Advances, be made
available to such Borrower on the day so requested by way of credit to such
Borrower's operating account at the Bank, or such other bank as the
Borrowing Agent may designate following notification to Agent, in federal
funds or other immediately available funds or, with respect to Advances
deemed to have been requested, be disbursed to Agent to be applied to the
outstanding Obligations giving rise to such deemed request.
2.4 Optional Currencies
(a) Selection
(i) A Borrower shall, through the Borrowing Agent, select the currency
of an Advance in the relevant notice for borrowing.
(ii) The currency of each Advance must be Dollars or an Optional
Currency.
(iii) No Borrower may choose a currency if as a result the Advances
would be denominated at any one time in more than five currencies.
(iv) The Agent shall notify each Lender of the currency and the
Original Dollar Amount of each Advance and the applicable Agent's
Spot Rate of Exchange promptly after they are ascertained.
(b) Revocation of currency
If before 9.30 a.m. on any day falling two Business Days prior to the
commencement of an Interest Period relating to an Advance, the Agent
receives notice from a Lender that:
(i) it is impracticable for the Lender to fund its participation in
the relevant Advance in the relevant Optional Currency during its
Interest Period in the ordinary course of business in the London
interbank market; and/or
(ii) the use of the proposed Optional Currency might contravene any law
or regulation,
the Agent shall give notice to the relevant Borrower and to the
Lenders to that effect before 11.00 a.m. on that day. In this
event:
(i) the relevant Borrower and the Lender may agree that the drawdown
will not be made; or
(ii) in the absence of agreement:
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(1) that Lender's participation in the Advance (or, if more than
one Lender is similarly affected, those Lender's
participations in the Advance) shall be treated as a separate
Advance denominated in Dollars during the relevant Interest
Period;
(2) in the definition of "LIBOR" (insofar as it applies to that
Advance) in Section 1.1 (Definitions) there shall be
substituted for the time "11.00 a.m." the time "1.00 p.m.".
(c) Amount of Optional Currencies
(i) Drawdowns
If an Advance is to be drawn down in an Optional Currency, the
amount of each Lender's participation in that Advance will be
determined by converting into that Optional Currency the Lender's
participation in the Original Dollar Amount of that Advance on the
basis of the Agent's Spot Rate of Exchange two Business Days
before its date of borrowing.
(ii) Notification
The Agent shall notify the Lenders and the Borrower of Optional
Currency amounts (and the applicable Agent's Spot Rate of
Exchange) promptly after they are ascertained.
(d) Change of Currency
(i) If more than one currency or currency unit are at the same time
recognised by the central bank of any country as the lawful
currency of that country, then:
(1) any reference in this Agreement or any other Agreement to,
and any obligations arising under this Agreement or any other
Agreement in, the currency of that county shall be translated
into, or paid in, the currency or currency unit of that
country designated by the Agent; and
(2) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the Agent acting
reasonably.
(ii) If a change in any currency of a country occurs, this Agreement
will and each other Agreement shall be deemed to be amended to the
extent the Agent (having consulted with the Lenders) specifies to
be necessary to reflect the change in currency and to put the
Lenders in the same position, so far as possible, that they would
have been in if no change in currency had occurred.
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2.5 Maximum Advances; Repayment of Excess Advances
The aggregate Original Dollar Amount balance of Advances outstanding at any
time to Borrowers shall not exceed the lesser of (a) Maximum Loan Amount or
(b) the Formula Amount.
2.6 Repayment of Advances
(a) Each Advance shall be due and payable in full on the last day of each
Interest Period relative thereto subject to earlier prepayment as herein
provided. Amounts repaid hereunder may be reborrowed subject to the terms
of this Agreement.
(b) Where the last date of an Interest Period for an outstanding Advance
coincides with the date on which a new Advance denominated in the same
currency is to be made, the Agent shall apply the new Advance in or towards
repayment of the outstanding Advance so that:
(i) where the amount of the outstanding Advance exceeds the amount of
the new Advance, such Borrower shall be required to repay only the
excess;
(ii) where the amount of the outstanding Advance is exactly the same as
the amount of the new Advance, such Borrower shall not be required
to make any payment; and
(iii) where the amount of the new Advance exceeds the outstanding
Advance, the excess shall be advanced to such Borrower,
PROVIDED ALWAYS THAT nothing in this paragraph (b) shall have the effect,
or be deemed to have the effect, of converting part or all of any Advance
into a term loan and PROVIDED FURTHER THAT the other provisions of this
Agreement (including, without limitation, the provisions of Section 8 are
complied with).
(c) Each Borrower shall repay the aggregate principal amount of all outstanding
Advances in any event by no later than the end of Term.
(d) All payments of principal, interest and other amounts payable hereunder, or
under any of the related agreements shall be made to Agent at the Payment
Office in the principal financial centre of the country of the relevant
currency on the due date therefor in lawful money of the country of the
relevant currency in immediately available funds to Agent.
(e) Borrowers shall pay principal, interest, and all other amounts payable
hereunder, or under any related agreement, without any deduction
whatsoever, including, but not limited to, any deduction for any setoff or
counterclaim.
2.7 Currency
(i) A repayment or prepayment of an Advance or any part of an Advance
is payable in the currency in which such Advance is denominated on
its due date.
(ii) Interest is payable in the currency in which the relevant amount
in respect of which it is payable is denominated.
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(iii) Amounts payable in respect of costs, expenses and taxes and the
like are payable in the currency in which they are incurred.
(iv) Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in Dollars.
2.8 Statement of Account
Agent shall maintain, in accordance with its customary procedures, a loan
account in the name of each Borrower in which shall be recorded the date
and amount of each Advance made by Lenders and the date and amount of each
payment in respect thereof; provided, however, the failure by Agent to
record the date and amount of any Advance shall not adversely affect Agent
or any Lender. Each month, Agent shall send to Borrowing Agent a statement
showing the accounting for the Advances made, payments made or credited in
respect thereof, and other transactions between Lenders and each Borrower,
during such month. The monthly statements shall be deemed correct and
binding upon Borrowers in the absence of manifest error and shall
constitute an account stated between Lenders and Borrowers unless Agent
receives a written statement of a Borrower's specific exceptions thereto
within thirty (30) days after such statement is received by Borrowing
Agent. The records of Agent with respect to the loan account shall be
prima facie evidence of the amounts of Advances and other charges thereto
and of payments applicable thereto, absent manifest error.
2.9 Additional Payments
Any sums expended by Agent or any Lender due to any Borrower's failure to
perform or comply with its obligations under this Agreement or any Security
Document including, without limitation, any Borrower's obligations under
Section 6(a) hereof, may be charged to such Borrower's account as an
Advance and added to the Obligations, provided Agent shall promptly
thereafter provide to Borrowing Agent a copy of documentation supporting
such charges.
2.10 Manner of Borrowing and Payment
(a) Each borrowing of Advances shall be advanced according to the Commitment
Percentages of the Lenders.
(b) (i) Each payment (including each prepayment) by Borrowers on account
of the principal of and interest on the Advances, shall be applied
to the Advances pro rata according to the applicable Commitment
Percentages of the Lenders.
(c) If any amount owing by a Borrower, a European or U.S. Guarantor hereunder
to the Agent or any Lender (the "recovering Finance Party") is discharged
by payment, set-off or any other manner other than through the Agent in
accordance with Section 2.10 (a "recovery"), then:
(i) the recovering Finance Party shall, within three Business Days,
notify details of the recovery to the Agent;
(ii) the Agent shall determine whether the recovery is in excess of the
amount which the recovering Finance Party would have received had
the recovery been received by the Agent and distributed in
accordance with section 2.10(b);
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(iii) subject to Section 2.10(e), the recovering Finance Party shall
within three Business Days of demand by the Agent pay to the Agent
an amount (the "redistribution") equal to the excess;
(iv) the Agent shall treat the redistribution as if it were a payment
by the Borrower, European or U.S. Guarantor concerned under
Section 2 and shall pay the redistribution to the Lenders (other
than the recovering Finance Party) in accordance with section
2.10(b);
(v) after payment of the full redistribution, the recovering Finance
Party will be subrogated to the portion of the claims paid under
paragraph (iv) above and that Borrower, European or U.S. Guarantor
will owe the recovering Finance Party a debt which is equal to the
redistribution immediately payable and of the type originally
discharged.
(d) If under Section 2.10(c):
(i) a recovering Finance Party must subsequently return a recovery, or
an amount measured by reference to a recovery, to a Borrower,
European or U.S. Guarantor; and
(ii) the recovering Finance Party has paid a redistribution in relation
to that recovery,
each Lender shall, within three Business Days of demand by the recovering
Finance Party through the Agent, reimburse the recovering Finance Party all
or the appropriate portion of the redistribution paid to that Lender.
Thereupon, the subrogation in Section 2.6(c)(v) will operate in reverse to
the extent of the reimbursement.
(e) Notwithstanding Section 2.10(d) above:
(i) A recovering Finance Party need not pay a redistribution to the
extent that it would not, after the payment, have a valid claim
against the Borrower, European or U.S. Guarantor concerned in the
amount of the redistribution pursuant to Section 2.10(c)(v).
(ii) Where a recovering Finance Party has recovered an excess amount as
a consequence of the satisfaction or enforcement of a judgment
obtained in any legal action or proceedings to which it is a
party, Section 2.10(c) shall not apply so as to benefit any other
Lender which (being entitled so to do) did not join with the
recovering Finance Party in such action or proceedings unless the
recovering Finance Party did not give prior notice of its
involvement in such action or proceedings to the Agent for
disclosure to the other Lenders.
(f) Unless Agent shall have been notified by telephone, confirmed in writing,
by any Lender that such Lender will not make the amount which would
constitute its applicable Commitment Percentage of the Advances available
to Agent, Agent may (but shall not be obligated to) assume that such Lender
shall make such amount available to Agent and, in reliance upon such
assumption, make available to Borrowers a corresponding amount. Agent will
promptly notify Borrowing Agent of its receipt of any such notice from a
Lender. If such amount is made available to Agent on a date after the
relevant date of borrowing relative to such Advances,
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such Lender shall pay to Agent on demand an amount equal to its cost of
funds and any other transactional costs associated with movement of such
fund from and including such drawdown date to the date on which such amount
becomes immediately available to Agent. A certificate of Agent submitted to
any Lender with respect to any amounts owing under this paragraph (e) shall
be conclusive, in the absence of manifest error. If such amount is not in
fact made available to Agent by such Lender within three (3) Business Days
after the relevant date of borrowing, Agent shall be entitled to recover
such an amount, with interest thereon at the rate per annum reflecting the
Agent's cost of funds, on demand from Borrowers; provided, however, that
Agent's right to such recovery shall not prejudice or otherwise adversely
affect any Borrower's rights (if any) against such Lender.
(g) Notwithstanding anything to the contrary contained herein, in the event any
Lender (x) has refused (which refusal constitutes a breach by such Lender
of its obligations under this Agreement) to make available its Commitment
Percentage of any Advance or (y) notifies either Agent or Borrowers that it
does not intend to make available its Commitment Percentage of any Advance
(if the actual refusal would constitute a breach by such Lender of its
obligations under this Agreement) (each, a "Lender Default"), all rights
and obligations hereunder of such Lender (a "Defaulting Lender") as to
which a Lender Default is in effect and of the other parties hereto shall
be modified to the extent of the express provisions of this Section 2.10(g)
while such Lender Default remains in effect.
(i) Advances shall be allocated pro rata among Lenders (the "Non-
Defaulting Lenders") which are not Defaulting Lenders in
accordance with their respective Commitment Percentages, and no
Commitment Percentage of any Lender or any pro rata share of any
Advances required to be advanced by any Lender shall be increased
as a result of such Lender Default. Amounts received in respect of
principal of Advances shall be applied to reduce Advances of each
Lender pro rata based on the aggregate of the outstanding Advances
of all Lenders at the time of such application; provided that,
such amount shall not be applied to any Advances of a Defaulting
Lender at any time when, and to the extent that, the aggregate
amount of Advances of any Lender that is not a Defaulting Lender
exceeds such Lender's Commitment Percentage of all Advances then
outstanding.
(ii) A Defaulting Lender shall not be entitled to give instructions to
Agent or to approve, disapprove, consent to or vote on any matters
relating to this Agreement or the Security Documents. All
amendments, waivers and other modifications of this Agreement and
the Security Documents may be made without regard to a Defaulting
Lender and, solely for purposes of the definition of "Required
Lenders", a Defaulting Lender shall be deemed not to be a Lender
and not to have a participation in the Advances outstanding.
(iii) Other than as expressly set forth in this Section 2.10(f), the
rights and obligations of a Defaulting Lender (including the
obligation to indemnify Agent) and the other parties hereto shall
remain unchanged. Nothing in this Section 2.10(f) shall be deemed
to release any Defaulting Lender from its obligations under this
Agreement or the Security Documents, shall alter such obligations,
shall operate as a waiver of any default by such Defaulting Lender
hereunder, or shall prejudice any rights which any Borrower, Agent
or any Lender may have against any Defaulting Lender as a result
of any default by such Defaulting Lender hereunder.
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(iv) In the event a Defaulting Lender retroactively cures, to the
satisfaction of Agent, the breach which caused such Lender to
become a Defaulting Lender, such Defaulting Lender shall no longer
be a Defaulting Lender and shall be treated as a Lender under this
Agreement.
3. INTEREST AND FEES
3.1 Interest
(i) Interest on Advances shall be payable in arrears on the last day
of each Interest Period relating thereto and in the case of an
Interest Period in excess of three months' duration also on the
date following three months from the commencement of the Interest
Period. Interest charges shall be computed on the actual principal
of Advances outstanding during each Interest Period at a rate per
annum equal to the applicable Contract Rate.
(ii) Default Interest
(1) If a Borrower fails to pay an amount payable by it under this
Agreement, it shall forthwith on demand by the Agent pay
interest on the overdue amount from the due date up to the
date of actual payment, as well after as before judgment, at
a rate (the "Default Rate") determined by the Agent to be 2
per cent. per annum above the higher of:
(i) the rate on the overdue amount under Section 3.1
immediately before the due date (if of principal); and
(ii) the rate which would have been payable if the overdue
amount had, during the period of non-payment,
constituted an Advance in the currency of the overdue
amount for such successive Interest Periods of such
duration as the Agent may determine (each a "Designated
Interest Period").
(2) The Default Rate will be determined by the Agent on each
Business Day or the first day of, or two Business Days before
the first day of, the relevant Designated Interest Period, as
appropriate.
(3) If the Agent determines that deposits in the currency of the
overdue amount are not at the relevant time being made
available by the Reference Bank to leading banks in the
London interbank market, the default rate will be determined
by reference to the cost of funds to the Agent from whatever
sources it may select.
(4) Default interest will be compounded at the end of each
Designated Interest Period.
(iii) So long as no Default or Event of Default shall have occurred and
be continuing, the Applicable Margin shall be increased or
decreased, as the case may be, as of the first day of each month
following the fiscal quarter reported upon in the financial
statements delivered pursuant to Sections 9(g) and (h) hereof,
commencing with fiscal quarter ending 30th June, 1998, based upon
the ratio of Funded Indebtedness to EBITDA with
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respect to the four (4) fiscal quarters then ended as reported
upon in the applicable financial statements.
3.2 Facility Fee
If, for any month during the Term, the average daily unpaid balance of the
Advances for each day of such month does not equal the Maximum Loan Amount,
then Borrowers shall pay to Agent for the rateable benefit of the Lenders a
fee at the rate of the Applicable Margin per annum multiplied by the amount
by which the Maximum Loan Amount exceeds such average daily unpaid balance.
Such fee shall be payable to Agent in arrears on the last day of each month
and on the last day of the Term. So long as no Default or Event of Default
shall have occurred and be continuing, the Applicable Margin with respect
to this facility fee shall be increased or decreased, as the case may be,
as of the first day of each month following the fiscal quarter reported
upon in the financial statements delivered pursuant to Sections 9(g) and
(h) hereof, commencing with fiscal quarter ending 30th June; 1998 based
upon the ratio of Funded Indebtedness to EBITA with respect to the four (4)
fiscal quarters then ended as reported upon in the applicable financial
statement.
3.3 Security Monitoring Fee
Borrowers shall pay to Agent (for the sole benefit of Agent) on the first
day of each month following any month in which Agent performs any security
monitoring - namely any field examination, security analysis or other
business analysis, the need for which is to be determined by Agent and
which monitoring is undertaken by Agent or for Agent's benefit - a security
monitoring fee in an amount equal to 500 Pound Sterling per day for each
person performing such monitoring, plus all costs and disbursements
incurred by Agent in the performance of such examination or analysis. In
addition, Borrowers agree to pay to Nations Bank, N.A. (for so long as it
is a Lender hereunder) such security monitoring fee on the same terms and
conditions set forth above with respect to one security monitoring field
examination per year.
3.4 Computation of Interest and Fees
Interest and fees hereunder shall be computed on the basis of a year of 360
days and for the actual number of days elapsed. If any payment to be made
hereunder becomes due and payable on a day other than a Business Day, the
due date thereof shall be extended to the next succeeding Business Day and
interest thereon shall be payable at the applicable Contract Rate during
such extension.
3.5 Maximum Charges
In no event whatsoever shall interest and other charges charged hereunder
exceed the highest rate permissible under law which a court of competent
jurisdiction shall, in a final determination, deem applicable hereto. In
the event that a court determines that Agent or any Lender has received
interest and other charges hereunder in excess of the highest rate
permissible hereto, such excess amount shall be first applied to any unpaid
principal balance owed by Borrowers, and if the then remaining excess
amount is greater than the previously unpaid principal balance, the Lenders
shall promptly refund such excess amount to Borrowers and the provisions
hereof shall be deemed amended to provide for such permissible rate.
21 B3:112290.1
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3.6 Increased Costs
In the event that any applicable law, treaty or governmental regulation, or
any change therein or in the interpretation or application thereof, or
compliance by any Lender (for purposes of this Section 3.6, the term
"Lender" shall include Agent or any Lender and any corporation or bank
controlling Agent or any Lender) and the office or branch where Agent or
any Lender (as so defined) makes or maintains any Advance with any request
or directive (whether or not having the force of law) from any central bank
or other financial, monetary or other authority, shall:
(i) subject Agent or any Lender to any tax of any kind whatsoever with
respect to this Agreement or any Advance or change the basis of
taxation of payments to Agent or any Lender of principal, fees,
interest or any other amount payable hereunder or under any Security
Documents (except for changes in the rate of tax on the overall net
income of Agent or any Lender by the jurisdiction in which it
maintains its principal office);
(ii) change the currency of a country, impose, modify or hold applicable
any reserve, special deposit, assessment or similar requirement
against assets held by, or deposits in or for the account of,
advances or loans by, or other credit extended by, any office of
Agent or any Lender, including (without limitation) pursuant to
Regulation D of the Board of Governors of the Federal Reserve
System; or
(iii) impose on Agent or any Lender or the London interbank currency
market any other condition with respect to this Agreement, any
Security Documents or any Advance;
and the result of any of the foregoing is to increase the cost to Agent or
Lender of making, renewing or maintaining its Advances hereunder by an
amount that Agent or such Lender deems to be material or to reduce the
amount of any payment (whether of principal, interest or otherwise) in
respect of any of the Advances by an amount that Agent or such Lender deems
to be material, then, in any case Borrowers shall promptly pay Agent or
such Lender, upon its demand, such additional amount as will compensate
Agent or such Lender for such additional cost or such reduction, as the
case may be, provided that the foregoing shall not apply to increased costs
which are reflected in the Interest Rate for any Interest Period. Agent or
such Lender shall certify the amount of such additional cost or reduced
amount to Borrowing Agent, and such certification shall be conclusive
absent manifest error.
3.7 Basis for Determining Interest Rate Inadequate or Unfair
In the event that Agent or any Lender shall have determined that:
(i) reasonable means do not exist for ascertaining the Interest Rate for
any Interest Period; or
(ii) deposits in the relevant currency and amount and for the relevant
maturity are not available in the London interbank Eurocurrency
market, with respect to an outstanding Advance or a proposed Advance
Loan;
then the Agent shall promptly notify the Borrowing Agent of the fact that
this Section 3.7 is in operation. After any notification under Section 3.7
the relevant Advance shall not be made.
22 B3:112290.1
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However, within five Business Days of receipt of the notification, the
Borrowing Agent and the Agent shall enter into negotiations for a period of
not more than 30 days with a view to agreeing a substitute basis for
determining the rate of interest and/or funding applicable to that and (to
the extent required) any future Advance. Any substitute basis agreed shall
be, with the prior consent of all the Lenders, binding on all the parties
hereto.
3.8 Capital Adequacy
(i) In the event that Agent or any Lender shall have determined that any
applicable law, rule, regulation or guideline regarding capital adequacy,
or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by Agent or any Lender (for purposes of this Section
3.8, the term "Lender" shall include Agent or any Lender and any
corporation or bank controlling Agent or any Lender) and the office or
branch where Agent or any Lender (as so defined) makes or maintains any
Advance with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of
return on Agent or any Lender's capital as a consequence of its obligations
hereunder to a level below that which Agent or such Lender could have
achieved but for such adoption, change or compliance (taking into
consideration Agent's and each Lender's policies with respect to capital
adequacy) by an amount deemed by Agent or any Lender to be material, then,
from time to time, Borrowers shall pay upon demand to Agent or such Lender
such additional amount or amounts as will compensate Agent or such Lender
for such reduction. In determining such amount or amounts, Agent or such
Lender may use any reasonable averaging or attribution methods. The
protection of this Section 3.8 shall be available to Agent and each Lender
regardless of any possible contention of invalidity or inapplicability with
respect to the applicable law, regulation or condition.
(ii) A certificate of Agent or such Lender setting forth such amount or amounts
as shall be necessary to compensate Agent or such Lender with respect to
Section 3.8(i) hereof when delivered to Borrowers shall be conclusive
absent manifest error.
4. CROSS-GUARANTEE
4.1 Cross Guarantee
(i) Each European Guarantor irrevocably and unconditionally, jointly and
severally:-
(a) as principal obligor guarantees to each of the Agent and each Lender
prompt performance by each Borrower of all its obligations under this
Agreement and the Security Documents;
(b) undertakes with each of the Agent and the Lender that whenever a
Borrower does not pay any amount when due under or in connection with
this Agreement and any Security Documents, that Guarantor shall
forthwith on demand by the Agent pay that amount as if that Guarantor
instead of the Borrower were expressed to be the principal obligor;
and
23 B3:112290.1
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(c) indemnifies each of the Agent and the Lender on demand against any
loss or liability suffered by it if any obligation guaranteed by that
Guarantor is or becomes unenforceable, invalid or illegal.
(ii) Each U.S. Guarantor irrevocably and unconditionally, jointly and
severally:-
(a) as principal obligor guarantees, to each of the Agent and each Lender
prompt performance by each Borrower of all its obligations under this
Agreement and the Security Documents;
(b) undertakes with each of the Agent and the Lender that whenever a
Borrower does not pay any amount when due under or in connection with
this Agreement and any Security Documents, that Guarantor shall
forthwith on demand by the Agent pay that amount as if that Guarantor
instead of that Borrower were expressed to be the principal obligor;
and
(c) indemnifies each of the Agent and the Lender on demand against any
loss or liability suffered by it if any obligation guaranteed by that
U.S. Guarantor is or becomes unenforceable, invalid or illegal.
4.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by the Borrowers under this Agreement and any
Security Documents regardless of any intermediate payment or discharge in
whole or in part.
4.3 Reinstatement
(a) Where any discharge (whether in respect of the obligations of any
Borrower or European or U.S. Guarantor or any security for those
obligations or otherwise) is made in whole or in part or any
arrangement is made on the faith of any payment, security or other
disposition which is avoided or must be restored on insolvency,
liquidation or otherwise without limitation, the liability of each
European and U.S. Guarantor under this Section 4 shall continue as if
the discharge or arrangement had not occurred.
(b) Each of the Agent and the Lenders may concede or compromise any claim
that any payment, security or other disposition is liable to avoidance
or restoration.
4.4 Waiver of defences
The obligations of each European and U.S. Guarantor under this Section 4
will not be affected by an act omission, matter or thing which, but for
this provision, would reduce, release or prejudice any of its obligations
under this Section 4 or prejudice or diminish those obligations in whole or
in part, including (whether or not known to it or any of the Agent or the
Lenders):
(a) any time or waiver granted to, or composition with, any Borrower,
European or U.S. Guarantor or any other person;
(b) the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against,
or security over assets of, any
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Borrower, European or U.S. Guarantor or any other person or any non-
presentation or non-observance of any formality or other requirement
in respect of any instrument or any failure to realise the full value
of any security;
(c) any incapacity or lack of powers, authority or legal personality of or
dissolution or change in the members or status of any Borrower,
European or U.S. Guarantor or any other person;
(d) any variation (however fundamental) or replacement of this Agreement
or any Security Documents or security so that references to this
Agreement and any other Agreement in this Section 4 shall include each
variation or replacement;
(e) any unenforceability, illegality or invalidity of any obligation of
any person under this Agreement and any Security Documents or
security, to the intent that each European or U.S. Guarantor's
obligations under this Section 4 shall remain in full force and its
guarantee be construed accordingly, as if there were no
unenforceability, illegality or invalidity; or
(f) any postponement, discharge, reduction, non-probability or other
similar circumstance affecting any obligation of any Borrower,
European or US Guarantor under this Agreement and any Security
Documents resulting from any insolvency, liquidation or dissolution
proceedings or from any law, regulation or order so that each
obligation shall for the purposes of each European or U.S. Guarantor's
obligations under this Section 4 be construed as if there were no such
circumstance.
4.5 Immediate recourse
Each European and U.S. Guarantor waives any right it may have of first
requiring any of the Agent and the Lenders (or any trustee or agent on its
behalf) to proceed against or enforce any other rights or security or claim
payment from any person before claiming from that Guarantor under this
Section 4.
4.6 Appropriations
Until all amounts which may be or become payable by the Borrowers, European
and U.S. Guarantors under or in connection with this Agreement and any
Security Documents have been irrevocably paid in full, each of the Agent
and the Lenders (or any trustee or agent on its behalf) may:-
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by the Agent or any Lender (or any trustee or
agent on its behalf) in respect of those amounts, or apply and enforce
the same in such manner and order as it sees fit (whether against
those amounts or otherwise) and no European or U.S. Guarantor shall be
entitled to the benefit of the same; and
(b) hold in a suspense account any moneys received from any European or
U.S. Guarantor or on account of a European or U.S. Guarantor's
liability under this Section 4, without liability to pay interest on
those moneys.
25 B3:112290.1
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4.7 Non-competition
Until all amounts which may be or become payable by the Borrowers, European
and U.S. Guarantors under or in connection with this Agreement and any
Security Documents have been irrevocably paid in full, no European or U.S.
Guarantor shall, after a claim has been made or by virtue of any payment or
performance by it under this Section 4;
(a) be subrogated to any rights, security or moneys held, received or
receivable by the Agent or any Lender (or any trustee or agent on its
behalf) or be entitled to any right of contribution or indemnity in
respect of any payment made or moneys received on account of that
Guarantor's liability under this Section 4;
(b) claim, ranking, prove or vote as a creditor of any Borrower, European
or U.S. Guarantor or its estate in competition with the Agent or any
Lender (or any trustee or agent on its behalf); or
(c) receive, claim or have the benefit of any payment, distribution or
security from or on account of any Borrower, European or U.S.
Guarantor, or exercise any right of set-off as against any Borrower,
European or U.S. Guarantor.
Each European and U.S. Guarantor shall hold in trust for and forthwith pay
or transfer to the Agent for the Agent and the Lenders any payment or
distribution or benefit of security received by it contrary to this Section
4 as directed by the Agent.
4.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by any
other security now or subsequently held by the Agent and the Lenders.
4.9 Thermisol Sweden
(a) Thermisol Sweden shall not, where the distribution restrictions in the
provisions of Chapter 12 Section 2 of the Swedish Companies Act
(Aktiebolagslagen (1975:1385) apply in relation to the guarantee given by
it hereunder, in each case taking into account the extent to which any
commercial benefit is derived by it in giving such guarantee, assume any
liability as a European Guarantor in respect of any indebtedness of any
Borrower owed or owing by such Borrower under or in connection with this
Agreement or the Security Documents to the extent that the obligations and
liabilities of Thermisol Sweden in respect thereof would exceed an amount
equal to the lesser of:
(i) the amount of distributable reserves according to its last audited and
adopted balance sheet as at the date hereof; and
(ii) an amount being available for distribution by it under Chapter 12
Section 2 second paragraph of the aforementioned Swedish Companies
Act.
(b) The provision of Section 4.9 (a) also applies to:
(i) any undertaking by Thermisol Sweden that is stated to be joint and
several in nature;
26 B3:112290.1
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(ii) any indemnity given by Thermisol Sweden for the benefit of any other
Borrower or European Guarantor; and
(iii) any undertaking as a primary obligor of obligations not
corresponding to the benefit derived by the company.
5. REPRESENTATIONS AND WARRANTIES
Each Borrower, European and U.S. Guarantor represents and warrants to the
Agent and the Lenders as follows:
(a) Authority
It has full power, authority and legal right to enter into this
Agreement and, where relevant, the Security Documents and perform its
respective Obligations hereunder and thereunder. The execution,
delivery and performance hereof and of the Security Documents (a) are
within its respective corporate powers, have been duly authorised,
provided that with respect to Thermisol Sweden, it has complied with
its undertaking under Section 6 (n), are not in contravention of law
or the terms of any of it's by-laws, certificate of incorporation or
other applicable documents relating to the formation or conduct of its
respective business or of any material agreement or undertaking to
which it is a party or by which it is bound, and (b) will not conflict
with nor result in any breach in any of the provisions of or
constitute a default under or result in the creation of any Lien
except Permitted Encumbrances upon any of its respective assets under
the provisions of any agreement, charter document, instrument, by-law,
or other instrument to which it or its property is a party or by which
it may be bound.
(b) Formation and Qualification
(i) It is duly formed and in good standing under the laws of its
state of incorporation or formation. It has delivered to Agent
true and complete copies of its certificate of incorporation
and/or by-laws and each will promptly notify Agent of any
amendment or changes thereto.
(ii) The only Subsidiaries of Borrowers are listed on Annex 2.
(c) Survival of Representations and Warranties
All representations and warranties by it contained in this Agreement
and, where applicable, the Security Documents shall be true at the
time of the execution of this Agreement and where applicable the
Security Documents, and shall survive the execution, delivery and
acceptance thereof by the parties thereto and the closing of the
transactions described therein or related thereto.
(d) Tax Returns
Each Borrower has filed all applicable tax returns and other reports
it is required by law to file and has paid all taxes, assessments,
fees and other governmental charges that are due and payable. The
provision for taxes on the books of Borrowers are adequate for all
years not closed by applicable statutes, and for its current fiscal
year,
27 B3:112290.1
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and no Borrower has any knowledge of any deficiency or additional
assessment in connection therewith not provided for on its books.
(e) Financial Statements
(i) The pro forma balance sheet of Radnor on a Consolidated Basis
(the "Pro Forma Balance Sheet") furnished to Agent and the
Lenders on the Effective Date reflects the consummation of the
transactions contemplated by the StyroChem Europe Acquisition
Agreement, the Second Indenture and under this Agreement (the
"Transactions") and are accurate, complete and correct and fairly
reflect in all material respects the financial condition of the
Radnor on a Consolidated Basis as of the Effective Date after
giving effect to the Transactions, and have been prepared in
accordance with GAAP, consistently applied. The Pro Forma
Balance Sheet has been certified as accurate, complete and
correct in all material respects by the Chief Financial Officer
of Radnor. All financial statements referred to in this Section
5(e)(i), including the related schedules and notes thereto, have
been prepared, in accordance with GAAP, except as may be
disclosed in such financial statements.
(ii) The twelve-month cash flow projections of Radnor on a
Consolidated Basis and their projected balance sheets as of the
Effective Date, copies of which have been previously submitted to
Agent and the Lenders (the "Projections") were prepared by the
Chief Financial Officer of Radnor, are based on underlying
assumptions which provide a reasonable basis for the projections
contained therein and reflect Radnor's judgment based on present
circumstances of the most likely set of conditions and course of
action for the projected period. The Projections together with
the Pro Forma Balance Sheet of Radnor on a Consolidated Basis,
are referred to as the "Pro Forma Financial Statements".
(f) Corporate Name
No Borrower has been known by any other corporate name in the past
five years and does not sell Inventory under any other name nor has
any Obligor been the surviving entity of a merger or consolidation or
acquired all or substantially all of the assets of any Person during
the preceding five (5) years, except for (i) the name of Foriplus Oy,
has been renamed StyroChem Finland, (ii) the name of Redifasti Oy,
which has been renamed Thermisol Finland Oy, (iii) the name of
Gigantissimo 2080 Aktiebolag, which has been renamed Thermisol Sweden
AB, (iv) ApSKBIL 17 nr. 1053, which has been renamed Thermisol Denmark
ApS, and will subsequently (subject to approval) be renamed Thermisol
Denmark A/S.
(g) Solvency; No Litigation, Violation, Indebtedness or Default
(i) After giving effect to the Transactions, it will be solvent, able
to pay its respective debts as they mature, have capital
sufficient to carry on its respective business and all businesses
in which it is about to engage, and (i) as of the Effective Date,
the fair present saleable value of its assets, calculated on a
going concern basis, is in excess of the amount of its
liabilities and (ii)
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subsequent to the Effective Date, the fair saleable value of
its assets (calculated on a going concern basis) will be in
excess of the amount of its liabilities.
(ii) Except as disclosed in Schedule 5.8(b) of the U.S. Credit
Facility or the Pro Forma Financial Statements, it has no
pending or threatened litigation, arbitration, actions or
proceedings which involve the possibility of having a Material
Adverse Effect on it or on its ability to perform this
Agreement.
(iii) It is not in violation of any applicable statute, regulation or
ordinance in any respect which could have a Material Adverse
Effect on it and it is not in violation of any order of any
court, governmental authority or arbitration board or tribunal
which could have a Material Adverse Effect on it.
(h) Patents, Trademarks, Copyrights and Licenses
All patents, patent applications, trademarks, trademark applications,
service marks, service ▇▇▇▇ applications, copyrights, copyright
applications, design rights, tradenames, assumed names, trade secrets
and licenses owned or utilised by any Borrower are set forth on
Schedule 5.9 of the U.S. Credit Facility, are valid and have been duly
registered or filed with all appropriate governmental authorities and
constitute all of the intellectual property rights which are necessary
for the operation of its business; there is no objection to or pending
challenge to the validity of any such material patent, trademark,
copyright, design rights tradename, trade secret or license and no
Borrower is aware of any grounds for any challenge. Each patent,
patent application, patent license, trademark, trademark application,
trademark license, service ▇▇▇▇, service ▇▇▇▇ application, service
▇▇▇▇ license, copyright, copyright application and copyright license
owned or held by any Borrower and all trade secrets used by any
Borrower consist of original material or property developed by such
Borrower or was lawfully acquired by such Borrower from the proper and
lawful owner thereof. Each of such items has been maintained so as to
preserve the value thereof from the date of creation or acquisition
thereof. With respect to all software used by any Borrower, such
Borrower is in possession of all source and object codes related to
each piece of software or is the beneficiary of a source code escrow
agreement, each such source code escrow agreement being listed on
Schedule 5.9 of the U.S. Credit Facility.
(i) Licences and Permits
Each Borrower (a) is in compliance with and (b) has procured and is
now in possession of, all material licenses or permits required by any
applicable law or regulation for the operation of its business in each
jurisdiction wherein it is now conducting or proposes to conduct
business and where the failure to procure such licenses or permits
could have a Material Adverse Effect.
(j) Default of Indebtedness
It is not in default in the payment of the principal of or interest on
any Indebtedness or under any instrument or agreement under or subject
to which any Indebtedness has
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been issued and no event has occurred under the provisions of any such
instrument or agreement which with or without the lapse of time or the
giving of notice, or both, constitutes or would constitute an event of
default thereunder.
(k) No Default
It is not in default in the payment or performance of any of its
material contractual obligations and no Default has occurred.
(l) No Burdensome Restrictions
It is not a party to any contract or agreement the performance of
which could have a Material Adverse Effect. It has not agreed or
consented to cause or permit in the future (upon the happening of a
contingency or otherwise) any of its property, whether now owned or
hereafter acquired, to be subject to a Lien which is not a Permitted
Encumbrance.
(m) No Labour Disputes
It is not involved in any labour dispute; there are no strikes or
walkouts or union organisation of any Borrower's employees threatened
or in existence and no labour contract is scheduled to expire during
the Term other than as set forth on Schedule 5.14 of the U.S. Credit
Facility.
(n) Disclosure
No representation or warranty made by it this 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.
There is no fact known to it or which reasonably should be known to it
which it has not disclosed to Agent in writing with respect to the
transactions contemplated by the StyroChem Europe Acquisition
Agreement or this Agreement which could reasonably be expected to have
a Material Adverse Effect.
(o) Delivery of StyroChem Europe Acquisition Agreement
Agent and Lenders have received complete copies of the StyroChem
Europe Acquisition Agreement and the Second Indenture (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 and Lenders.
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(p) Swaps
If it is a Borrower, it is not a party to, nor will it be a party to,
any swap agreement whereby it has agreed or will agree to swap
interest rates or currencies unless same provides that damages upon
termination following an event of default thereunder are payable on an
unlimited "two-way basis" without regard to fault on the part of
either party.
(q) Conflicting Agreements
No provision of any mortgage, indenture, contract, agreement,
judgment, decree or order binding on it if it is a Borrower or
affecting any Security Assets conflicts with, or requires any Consent
which has not already been obtained to, or would in any way prevent
the execution, delivery or performance of, the terms of this Agreement
or, where applicable, the Security Documents.
(r) Applications of Certain Laws and Regulations
If it is a Borrower, neither it nor any of its Affiliate is subject to
any statute, rule or regulation which regulates the incurrence of any
Indebtedness except as disclosed in the opinion of counsel delivered
to Agent in connection with this Agreement.
(s) Business and Property of the Borrower
Upon and after the Effective Date, the Borrowers propose to engage
substantially in the business of manufacturing and/or distributing
polystyrene beads and disposable products sold to or through the food
service industry or the insulation industry and activities necessary
to conduct the foregoing. On the date of the first borrowing
hereunder, each Borrower will own all the property and possess all of
the rights and Consents necessary for the conduct of its business.
(t) Acquisition
Each Borrower has acquired all of its assets and property in
accordance with all applicable statutes and laws, such property is
free and clear of all Liens other than Permitted Encumbrances.
6. AFFIRMATIVE COVENANTS
Each Borrower shall, until payment in full of the Obligations and
termination of this Agreement:
(a) Payment of Fees
Pay to Agent on demand all usual and customary fees and expenses which
Agent incurs in connection with the forwarding of Advance proceeds to
the relevant Borrower. Agent may, without making demand, charge the
accounts of each Borrower for all such fees and expenses applicable to
such Borrower provided Agent shall promptly thereafter provide
Borrowing Agent with copies of supporting documentation.
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(b) Conduct of Business and Maintenance of Existence and Assets
(i) Conduct continuously and operate actively its business
according to good business practices and maintain all of its
properties useful or necessary in its business in good working
order and condition (reasonable wear and tear excepted and
except as may be disposed of in accordance with the terms of
this Agreement), including, without limitation, all licenses,
patents, copyrights, design rights, tradenames, trade secrets
and trademarks and in the case of StyroChem Finland and
Thermisol Finland take all actions necessary to enforce and
protect the validity of any intellectual property right or
other right included in the Security Assets;
(ii) keep in full force and effect its existence and comply in all
material respects with the laws and regulations governing the
conduct of its business; and
(iii) make all such reports and pay all such franchise and other
taxes and license fees and do all such other acts and things as
may be lawfully required to maintain its rights, licenses,
leases, powers and franchises under the laws of the state or
the country of its incorporation or any political subdivision
thereof.
(c) Violations
Promptly notify Agent in writing of any violation of any law, statute,
regulation or ordinance of any Governmental Body, or of any agency
thereof, applicable to any Borrower which may have a Material Adverse
Effect on any Borrower.
(d) Net Worth
Cause to be maintained Net Worth of Radnor on a Consolidated Basis in
an amount not less than the amounts set forth below as of the dates
set forth below:
Date Amount
======
12-31-97 $ 7,000,000
12-31-98 $ 8,000,000
12-31-99 $ 9,000,000
12-31-00 $10,000,000
12-31-01 $10,000,000
12-31-02 $10,000,000
(e) Current Ratio
Cause to be maintained a ratio of Current Assets to Current
Liabilities for Radnor on a Consolidated Basis of not less than 1.00
to 1.00 at the end of each fiscal quarter.
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(f) Fixed Charge Coverage
Cause to be maintained for each fiscal quarter of Radnor on a
Consolidated Basis a Fixed Charge Coverage equal to or greater than
1.00 to 1.00 at the end of each fiscal quarter for the most recent
four fiscal quarters then ended.
(g) Interest Coverage
Cause to be maintained for each fiscal quarter of Radnor on a
Consolidated Basis an Interest Coverage equal to or greater than 1.25
to 1.00 at the end of each fiscal quarter for the most recent four
fiscal quarters then ended.
(h) Net Income
Cause to be achieved net income for Radnor on a Consolidated Basis
(excluding non-cash extraordinary items) of at least $1 in each fiscal
year.
(i) Execution of Supplemental Instruments
Execute and deliver to Agent from time to time, upon demand, Styrochem
Finland Security Agreement and Thermisol Finland Security Agreement
and such supplemental agreements, statements, assignments and
transfers, or instructions or documents and such other instruments as
Agent may request, in order that the full intent of this Agreement or
the Security Documents may be carried into effect.
(j) Payment of Indebtedness
Pay, discharge or otherwise satisfy at or before maturity (subject,
where applicable, to specified grace periods and, in the case of the
trade payables, to normal payment practices) all its material
obligations and liabilities of whatever nature, except when the amount
or validity thereof is currently being contested in good faith by
appropriate proceedings and each Borrower shall have provided for such
reserves as Agent may reasonably deem proper and necessary, subject at
all times to any applicable subordination arrangement in favour of
Agent and the Lenders.
(k) Standards of Financial Statements
Cause all financial statements referred to in Section 9(f) as to which
GAAP is applicable to be complete and correct in all material respects
(subject, in the case of interim financial statements, to normal year-
end audit adjustments) and to be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods
reflected therein (except as concurred in by such reporting
accountants or officer, as the case may be, and disclosed therein).
(l) Exercise of Rights
Enforce all of its rights under the StyroChem Europe Acquisition
Agreement and all documents executed in connection therewith
including, but not limited to, all
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indemnification rights and pursue all remedies available to it with
diligence and in good faith in connection with the enforcement of any
such rights.
(m) Environmental Matters
(i) Each Borrower will ensure that all real property owned or
occupied by such Borrower remains in compliance in all material
respects with all Environmental Laws and they will not place or
permit to be placed any Hazardous Substances on any such
property except as not prohibited by applicable law or
appropriate governmental authorities.
(ii) Each Borrower will establish and maintain a system to assure and
monitor continued compliance with all applicable Environmental
Laws which system shall include periodic reviews of such
compliance.
(iii) Promptly upon the written request of Agent from time to time,
each Borrower shall provide Agent, at such Borrowers expense,
with an environmental site assessment or environmental audit
report prepared by an environmental engineering firm acceptable
in the reasonable opinion of Agent, to assess with a reasonable
degree of certainty the existence of a Hazardous Discharge and
the potential costs in connection with abatement, cleanup and
removal of any Hazardous Substances found on, under, at or
within any real property owned or occupied by such Borrower. Any
report or investigation of such Hazardous Discharge proposed and
acceptable to an appropriate authority that is charged to
oversee the clean-up of such Hazardous Discharge shall be
acceptable to Agent. If such estimates, individually or in the
aggregate, exceed $100,000, Agent shall have the right to
require such Borrower to post a bond, letter of credit or other
security reasonably satisfactory to Agent to secure payment of
these costs and expenses.
(iv) Each Borrower shall defend and indemnify Agent and the Lenders
and hold Agent, the Lenders and their respective employees,
agents, directors and officers harmless from and against all
loss, liability, damage and expense, claims, costs, fines and
penalties, including attorney's fees, suffered or incurred by
Agent or the Lenders under or on account of any Environmental
Laws, including, without limitation, the assertion of any lien
thereunder, with respect to any Hazardous Discharge, the
presence of any Hazardous Substances, whether or not the same
originates or emerges from any real property owned or occupied
by such Borrower or any contiguous real estate, except to the
extent such loss, liability, damage and expense is attributable
to any Hazardous Discharge resulting from actions on the part of
Agent or any Lender. Each Borrower's obligations under this
Section 6(m) shall arise upon the discovery of the presence of
any Hazardous Substances at any real property owned or occupied
by such Borrower whether or not any federal, state, or local
environmental agency has taken or threatened any action in
connection with the presence of any Hazardous Substances. Each
Borrower's obligations and the indemnifications hereunder shall
survive the termination of this Agreement.
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(n) Thermisol Sweden
Thermisol Sweden shall deliver to the Agent, as soon as available a
certified copy of a notification from the Swedish tax authorities
exempting the guarantee to be given by Thermisol Sweden hereunder from
any Swedish company law financial assistance prohibitions.
7. NEGATIVE COVENANTS
No Borrower shall, until satisfaction in full of the Obligations and
termination of this Agreement:
(a) Merger, Consolidation, Acquisition and Sale of Assets
(i) Enter into any merger, consolidation or other reorganisation
with or into any other Person (other than another Borrower) or
acquire all or a substantial portion of the assets or stock of
any Person (other than another Borrower) or permit any other
Person (other than another Borrower) to consolidate with or
merge with it.
(ii) Sell, lease, transfer or otherwise dispose of all or any
material part of its properties or assets, except in the
ordinary course of its business.
(b) Creation of Liens
Create or suffer to exist any Lien or transfer upon or against any of
its property or assets now owned or hereafter acquired, except
Permitted Encumbrances.
(c) Guarantees
Become liable upon the obligations of any Person by assumption,
endorsement or guaranty thereof or otherwise (other than to Lenders or
to any Affiliates of Lenders) except (a) as disclosed on Schedule 7.3
of the U.S. Credit Facility; (b) the endorsement of checks in the
ordinary course of business; and (c) guarantees not to exceed a
liability of $5,000,000 for Radnor on a Consolidated Basis in the
aggregate at any time.
(d) Investments
Purchase or acquire obligations or stock of, or any other interest in,
any Person, except (a) obligations issued or guaranteed by the United
States of America or any agency thereof; (b) commercial paper with
maturities of not more than 180 days and a published rating of not
less than A-1 or P-1 (or the equivalent rating); (c) certificates of
time deposit and bankers' acceptances having maturities of not more
than 180 days and repurchase agreements backed by United States
government securities of a commercial bank if (i) such bank has a
combined capital and surplus of at least $500,000,000, or (ii) its
debt obligations, or those of a holding company of which it is a
Subsidiary, are rated not less than A (or the equivalent rating) by a
nationally recognised investment rating agency; (d) U.S. money market
funds that invest solely in obligations issued or guaranteed by the
United States of America or an agency thereof;
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and (e) investments in one or more Subsidiaries, joint ventures or
other Affiliates in an aggregate sum not to exceed the sum of (i) 50%
of the cumulative net income of Radnor on a Consolidated Basis plus
(ii) $3,000,000; provided, at the time of such investment (x) no Event
of Default has occurred or would occur after giving effect to such
payment and (y) and after giving effect to such investment the Undrawn
Availability (as defined in the U.S. Credit Facility) is more than
$2,000,000.
(e) Loans
Make advances, loans or extensions of credit to any Person, including
without limitation, any Parent, Subsidiary or Affiliate except with
respect to (a) the extension of commercial trade credit in connection
with the sale of Inventory in the ordinary course of its business, (b)
loans to its employees in the ordinary course of business not to
exceed the aggregate amount of $100,000 at any time outstanding (c)
loans to another Borrower or U.S. Guarantor so long as (i) such loan
or advance is evidenced by a promissory note and such note is
assigned to Agent as collateral security for the Obligations and (ii)
at the time of such loan no Event of Default has occurred or would
occur after giving effect to such loan or advance, and (d) loans to
Affiliates of the Borrowers not to exceed $5,000,000 for Radnor on a
Consolidated Basis in the aggregate.
(f) Capital Expenditures
Contract for, purchase or make any expenditure or commitments for
fixed or capital assets (including capitalised leases) in an amount in
excess of the amounts set forth below for the fiscal years set forth
below with respect to Radnor on a Consolidated Basis:
Fiscal Year Ended Amount
31-12-97 $15,000,000
31-12-98 21,100,000
31-12-99 17,100,000
31-12-00 14,000,000
31-12-01 9,900,000
31-12-02 7,400,000
(g) Indebtedness
Create, incur, assume or suffer to exist any Indebtedness (exclusive
of trade debt) except in respect of (i) Indebtedness to Lenders; (ii)
Indebtedness incurred for capital expenditures permitted under Section
7(f) hereof; (iii) Indebtedness due under and guarantees issued in
respect of the Senior Notes; (iv) Indebtedness in a maximum aggregate
amount outstanding not greater than $10,000,000 for Radnor on a
Consolidated Basis (when added to the amount of Indebtedness for
Radnor on a Consolidated Basis incurred by all Borrowers and U.S.
Guarantors); and (iv) a
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subordinated debt instrument which may be issued by each of StyroChem
Finland, Thermisol Denmark, Thermisol Finland and Thermisol Sweden
(each an "Acquirer" and together the "Acquirers") to StyroChem Europe
in order to evidence a loan by StyroChem Europe to any of the
Acquirers in order to finance the portion of the purchase price
payable by such Acquirer under the StyroChem Europe Acquisition
Agreement PROVIDED THAT the Agent shall have received on or prior to
the issuance of such subordinated debt instrument evidence
satisfactory to it from the legal advisers in the jurisdiction of the
place of incorporation of each relevant Acquirer confirming the
effectiveness of the subordination of such debt instrument to the
rights of the Agent and the Lenders hereunder. Notwithstanding the
foregoing, the Borrowers may incur Indebtedness in excess of the
foregoing amounts if, after giving pro forma effect to the incurrence
of such Indebtedness, Interest Coverage Ratio for each of the four
fiscal quarters most recently ended would equal or exceed 2.0 to 1.0
if calculated as if such Indebtedness was outstanding for the entire
four quarter period.
(h) Nature of Business
Substantially change the nature of the business in which it is
presently engaged, nor except as specifically permitted hereby
purchase or invest, directly or indirectly, in any assets or property
other than in the ordinary course of business for assets or property
which are useful in, necessary for and are to be used in its business
as presently conducted.
(i) Transactions with Affiliates
Directly or indirectly, purchase, acquire or lease any property from,
or sell, transfer or lease any property to, or otherwise deal with,
any Affiliate, except transactions disclosed in the ordinary course of
business, on an arm's-length basis on terms no less favourable than
terms which would have been obtainable from a Person other than an
Affiliate provided the provisions of this Section 7(j) shall not
prohibit any payments to Radnor Management, Inc. ("Management") in
accordance with the provisions of the Management Services Agreement
dated as of 18th December, 1996 among Management, Borrowers, StyroChem
International, Ltd. and StyroChem FSC, Limited. ("Management
Agreement") in an aggregate amount not to exceed the actual Expenses
under and as defined in the Management Agreement.
(j) Leases
Enter as lessee into any lease arrangement for real or personal
property (unless capitalised and permitted under Section 7.6 hereof)
if after giving effect thereto, aggregate annual rental payments for
all leased property for Radnor on a Consolidated Basis would exceed
$6,000,000 in any one fiscal year.
(k) Subsidiaries
(i) Form any Subsidiary unless (A) (i) such Subsidiary expressly
joins in this Agreement as either European or U.S. Guarantor and
becomes jointly and severally liable for the obligations of
Borrowers and the European Guarantor and/or as the case may be of
the U.S. Guarantors hereunder and under any
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other agreement between the European and U.S. Guarantors, Agent
and Lenders and (ii) Agent shall have received all documents,
including legal opinions, it may reasonably require to establish
compliance with each of the foregoing conditions or (B) such
Subsidiary is formed pursuant to the provisions of Section 7(d)
hereof.
(ii) Enter into any partnership, joint venture or similar arrangement
unless the amount invested therein is less than $5,000,000 per
year in the aggregate.
(l) Fiscal Year and Accounting Changes
Change its fiscal year from December 31 or make any change (i) in
accounting treatment and reporting practices except as required by
GAAP or (ii) in tax reporting treatment except as required by law.
(m) Pledge of Credit
Now or hereafter pledge any Lender's credit on any purchases or for
any purpose whatsoever or use any portion of any Advance in or for any
business other than Borrower's business as conducted on the date of
this Agreement.
(n) Amendment of Certificate of Incorporation
Amend, modify or waive any material term or material provision of its
constitutional documents.
(o) Prepayment of Indebtedness
At any time, directly or indirectly, prepay any Indebtedness (other
than to Agent and the Lenders), or repurchase, redeem, retire or
otherwise acquire any Indebtedness of the Borrowers
8. CONDITIONS PRECEDENT
8.1 Conditions to Initial Advance
The agreement of Agent and each Lender hereunder is subject to the
satisfaction, or waiver by Required Lenders, immediately prior to or
concurrently with the making of the first Advance hereunder, of the
following conditions precedent:
(a) Security Documents
The Agent shall have received the Security Documents duly executed and
delivered by an authorised officer of each of StyroChem Finland and
Thermisol Finland respectively;
(b) Filings, Registrations and Recordings
Each document (including, without limitation, any Uniform Commercial
Code financing statement) required by this Agreement, the Security
Documents any related
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agreement or under law or reasonably requested by the Agent to be
filed, registered or recorded in order to create, in favour of Agent
for its benefit and for the rateable benefit of the Lenders, a
perfected security interest in or lien upon the Security Assets shall
have been properly filed, registered or recorded in each jurisdiction
in which the filing, registration or recordation thereof is so
required or requested, and Agent shall have received an
acknowledgement copy, or other evidence satisfactory to it, of each
such filing, registration or recordation and satisfactory evidence of
the payment of any necessary fee, tax or expense relating thereto;
(c) Proceedings of Borrowers
Agent shall have received a copy of the resolutions in form and
substance reasonably satisfactory to Agent, of the Board of Directors
of each Borrower, European and U.S. Guarantor authorising (i) the
execution, delivery and performance of this Agreement, and in the case
of StyroChem Finland and Thermisol Finland the Security Documents, any
related agreements, the StyroChem Europe Acquisition Agreement, and
all documents executed in connection therewith (collectively the
"Documents") and (ii) the granting by the relevant Borrower of the
security interests in and liens upon the Security Assets in each case
certified by the President or a duly authorised officer of such
Borrower, European and U.S. Guarantor on a date not earlier than the
Effective Date; and, such certificate shall state that the resolutions
thereby certified have not been amended, modified, revoked or
rescinded as of the date of such certificate;
(d) Incumbency Certificates of Borrower and U.S. Guarantors
Agent shall have received a certificate of the Secretary of each
Borrower and U.S. Guarantor, dated not earlier than the Effective
Date, as to the incumbency and signature of the officers of each such
company executing this Agreement, and in the case of StyroChem Finland
and Thermisol Finland, the Security Documents, any certificate or
other documents to be delivered by it pursuant hereto, together with
evidence of the incumbency of such officer;
(e) Certificates
Agent shall have received a copy of the Articles or Certificate of
Incorporation or other constitutional documents, and all amendments to
the foregoing, certified by the Secretary of State (where applicable)
or by an authorised officer of each Borrower and U.S. Guarantor
together with copies of the by-laws and shareholders agreements of
each Borrower and U.S. Guarantor, as applicable, certified as accurate
and complete by the general partner if applicable, or an authorised
officer of each Borrower and U.S. Guarantor or secretary of each
Borrower and U.S. Guarantor;
(f) Good Standing Certificates
In respect of each U.S. Guarantor, Agent shall have received good
standing certificates for such U.S. Guarantor dated not more than [ten
(10)] days prior to the Effective Date, issued by the Secretary of
State (where applicable) or by an appropriate officer
--------------------------------------------------------------------------------
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of such U.S. Guarantor or other appropriate official of such U.S.
Guarantor's jurisdiction of formation and each jurisdiction where the
conduct of such U.S. Guarantor's business activities or the ownership
of its properties necessitates qualification;
(g) Legal Opinions
Agent shall have received the executed legal opinions of ▇▇▇▇▇ ▇▇▇▇▇▇
& Heckscher in respect of each U.S. Guarantor 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 contemplated by this Agreement, the StyroChem Europe
Acquisition Agreement, the Security Documents and related agreements
as Agent may reasonably require and the Borrowers hereby authorise and
direct such counsel to deliver such opinions to Agent and the Lender;
(h) No Litigation.
(A) No litigation, investigation or proceeding before or by any
arbitrator or Governmental Body shall be continuing or threatened
against any Borrower or against the officers or directors of any
Borrower (A) in connection with the Documents or any of the
transactions contemplated thereby and which, in the reasonable
opinion of the Agent, is deemed material or (B) which if
adversely determined, could, in the reasonable opinion of the
Agent, have a Material Adverse Effect on any Borrower; and
(B) no injunction, writ, restraining order or other order of any
nature materially adverse to any Borrower or the conduct of its
business or inconsistent with the due consummation of the
Transactions shall have been issued by any Governmental Body;
(i) Security Assets Examination
Agent shall have completed Security Assets examinations and received
appraisals as shall be required by the Lenders with respect to the
Receivables, Inventory and General Intangibles subject to the Security
Documents the results of which shall be satisfactory in form and
substance to the Agent;
(j) Pro Forma Financial Statements
Agent and Lenders shall have received a copy of the Pro Forma
Financial Statements which shall be satisfactory in all respects to
Lenders;
(k) Other Documents
Agent and Lenders shall have received final executed copies of the
StyroChem Europe Acquisition Agreement, and all related agreements,
documents and instruments as in effect on the Effective Date all of
which shall be in form and substance satisfactory to Agent;
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(l) Consents
Agent shall have received any and all Consents necessary to permit the
effectuation of the transactions contemplated by this Agreement and in
the Security Documents; and, Agent shall have received such Consents
and waivers of such third parties as might assert claims with respect
to the Security Assets, as Agent and its counsel shall deem necessary;
(m) No Material Adverse Change
(i) since 30th June, 1997 (a) no material adverse change shall have
occurred in the condition, financial or otherwise, operations,
properties or prospects of any Borrower or U.S. Guarantor, (b) no
material damage or destruction shall have occurred to any of the
Security Assets and no material depreciation in the value thereof, (c)
no material adverse deviation shall have occurred from the forecasts
and projections previously delivered to Agent and (d) no event,
condition or state of facts which could reasonably be expected to have
a Material Adverse Effect on any Borrower or U.S. Guarantor shall have
occurred and (ii) no representations made or information supplied to
Agent or the Lenders shall have been proven to be inaccurate or
misleading in any material respect;
(n) Contract Review
Agent shall have reviewed all material contracts of each Borrower
including, without limitation, leases, union contracts, labour
contracts, vendor supply contracts, license agreements and
distributorship agreements and such contracts and agreements shall be
satisfactory in all respects to Agent;
(o) Closing Certificate
Agent shall have received closing certificate signed by the Chief
Financial Officer of each Borrower dated as of the date hereof,
stating that (i) all representations and warranties made by such
Borrower as set forth in this Agreement and the Security Documents are
true and correct on and as of such date, (ii) such Borrower is on such
date in compliance with all the terms and provisions set forth in this
Agreement and where applicable the Security Documents and (iii) on
such date no Default or Event of Default has occurred or is
continuing;
(p) Borrowing Base
Agent and Lenders shall have received evidence from the Borrowers that
the aggregate amount of Eligible Receivables and Eligible Inventory is
sufficient in value and amount to support Advances in the amount
requested by any Borrower on the date of first borrowing hereunder
and, so that after giving effect to the initial Advances hereunder,
the Borrowers shall have Undrawn Availability of at least $1,000,000;
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(q) Agreements
Agent and Lenders shall have received copies of all agreements
evidencing the obligations of any Borrower with respect to its
Indebtedness for borrowed money, which agreements shall be in form
and substance satisfactory to Agent and shall set forth the
conditions on which (i) such Borrower may make and the holder(s) of
such indebtedness may receive payments with respect thereto and (ii)
the holder(s) of such indebtedness may accelerate such obligations,
commence any action against or otherwise exercise any rights or
enforce any remedies against such Borrower, which conditions shall be
satisfactory in form and substance to Agent in its discretion.
(r) StyroChem Europe Acquisition Agreement
Agent and Lenders shall have received evidence satisfactory to them
that Borrowers (other than StyroChem Europe) have acquired all of the
assets pursuant to the StyroChem Europe Acquisition Agreement in
accordance with all applicable laws and that such assets are free and
clear of all Liens other than Permitted Encumbrances.
(s) Insurance
Agent shall have received in form and substance satisfactory to
Agent, certified copies of the casualty insurance policies of
StyroChem Finland and Thermisol Finland evidencing coverage on all
Security Assets in such amounts, with such carriers and covering such
risks as is acceptable to Agent, together with loss payable
endorsements on Agent's standard form of loss payee endorsement
naming Agent as loss payee, and certified copies of each Borrower's
liability insurance policies, together with endorsements naming Agent
as an additional or co-insured.
8.2 Conditions to Each Advance
The agreement of Lenders to make any Advance requested to be made on any
date (including, without limitation, the initial Advance), is subject to
the satisfaction of the following conditions precedent as of the date such
Advance is made:
(a) Representations and Warranties. Each of the representations and
warranties made by a Borrower, European or U.S. Guarantor in or
pursuant to this Agreement, the Security Documents and any related
agreements to which it is a party, and each of the representations
and warranties contained in any certificate, document or financial or
other statement furnished at any time under or in connection with
this Agreement, the Security Documents or any related agreement shall
be true and correct in all material respects on and as of such date
as if made on and as of such date except as such representations and
warranties are modified in a manner consistent with this Agreement
and the Security Documents;
(b) No Default. No Event of Default or Default shall have occurred and be
continuing on such date, or would exist after giving effect to the
Advances requested to be made, on such date and, in the case of the
initial Advance, after giving effect to the consummation of the
transactions contemplated by the StyroChem Europe Acquisition
Agreement and the Senior Notes; provided, however that Lenders in
their sole discretion, may continue to make Advances notwithstanding
the existence of an Event
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of Default or Default and that any Advances so made shall not be
deemed a waiver of any such Event of Default or Default; and
(c) Maximum Advances. In the case of any Advances requested to be made
after giving effect thereto, the aggregate Advances shall not exceed
the maximum Advances permitted under Section 2.1 hereof.
Each request for an Advance by any Borrower hereunder shall constitute a
representation and warranty by each Borrower, European and U.S. Guarantor
as of the date of such Advance that the conditions contained in this
subsection shall have been satisfied.
9. INFORMATION
Each Borrower shall, until satisfaction in full of the Obligations and the
termination of this Agreement:
(a) Disclosure of Material Matters
Immediately upon learning thereof, report to Agent all matters
materially affecting the value, enforceability or collectability of
any portion of the Security Assets including, without limitation, any
Borrower reclamation or repossession of, or the return to any
Borrower of, a material amount of goods or claims or disputes
asserted by any Customer or other obligor.
(b) Schedules
Deliver to Agent on or before the fifteenth (15th) day of each month
as and for the prior month (a) a report of all Receivables which is
subject to a perfected first priority security interest in favour of
the Agent outstanding and containing such information in respect
thereof as the Agent may from time to time require, (b) accounts
payable schedules and (c) a report of all Inventories which is
subject to a perfected first priority security interest in favour of
the Agent outstanding and containing such information in respect
thereof as the Agent may from time to time require; provided, if
Undrawn Availability is less than $1,000,000 with respect to all
Borrowers, Borrowers shall provide Agent with daily reports of sales,
collections, credits issued, debits or other adjustments made by any
Borrower with respect to Receivables. In addition, each Borrower will
deliver to Agent at such intervals as Agent may require: (i) copies
of Customer's invoices, (ii) evidence of shipment or delivery, and
(iii) such further schedules, documents and/or information regarding
the Security Assets as Agent may require including, without
limitation, trial balances and test verifications. Agent shall have
the right to confirm and verify all Receivables and Inventory by any
manner and through any medium it considers advisable and do whatever
it may deem reasonably necessary to protect its interests hereunder.
The items to be provided under this Section are to be in form
satisfactory to Agent and executed by each Borrower and delivered to
Agent from time to time solely for Agent's convenience in maintaining
records of the Security Assets, and any Borrower's failure to deliver
any of such items to Agent shall not affect, terminate, modify or
otherwise limit Agent's Lien with respect to the Security Assets.
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(c) Litigation
Promptly notify Agent and Lenders in writing of any litigation, suit
or administrative proceeding affecting any Borrower, whether or not
the claim is covered by insurance, and of any suit or administrative
proceeding, which may have a Material Adverse Effect on any Borrower.
(d) Material Occurrences
Promptly notify Agent and Lenders in writing upon the occurrence of
(a) any Event of Default or Default; (b) any event of default or (c)
any event which with the giving of notice or lapse of time, or both,
would constitute an event of default under the Senior Notes; (d) any
event, development or circumstance whereby any financial statements
or other reports furnished to Agent or any Lender fail in any
material respect to present fairly, in accordance with GAAP
consistently applied, the financial condition or operating results of
any Borrower as of the date of such statements; (e) and in respect of
each U.S. Guarantor any accumulated retirement plan funding
deficiency which, if such deficiency continued for two plan years and
was not corrected as provided in Section 4971 of the Internal Revenue
Code applicable to it, could subject any Borrower to a tax imposed by
Section 4971 of the Internal Revenue Code and in respect of any
Borrower, any similar deficiency with respect to such Borrower under
applicable law; (f) each and every default by any Borrower which
might result in the acceleration of the maturity of any Indebtedness,
including the names and addresses of the holders of such Indebtedness
with respect to which there is a default existing or with respect to
which the maturity has been or could be accelerated, and the amount
of such Indebtedness; and (g) any other development in the business
or affairs of any Borrower which might reasonably be expected to be
materially adverse; in each case describing the nature thereof and
the action such Borrower proposes to take with respect thereto.
(e) Government Receivables
Notify Agent immediately if any of the Receivables arise out of
contracts between any Borrower and the United States or any other
government or nation other than the United States, any state, or any
department, agency or instrumentality of any of them.
(f) Annual Financial Statements
Procure that Radnor will furnish to the Agent under the U.S. Credit
Facility all financial statements, reports, budgets and other
information required by the U.S. Credit Agreement.
(g) Additional Information
Furnish Agent and Lenders with such additional information as Agent
and Lenders shall reasonably request in order to enable Agent and
Lenders to determine whether the terms, covenants, provisions and
conditions of this Agreement have been complied with by the Borrowers
including, without limitation and without the necessity of any
request by Agent or any Lender, (a) copies of all environmental
audits and reviews, (b) at least
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thirty (30) days prior thereto, notice of any Borrower opening of any
new office or place of business or any Borrower closing of any
existing office or place of business, and (c) promptly upon learning
thereof, notice of any labour dispute to which any Borrower may
become a party, any strikes or walkouts relating to any of its plants
or other facilities, and the expiration of any labour contract to
which any Borrower is a party or by which any Borrower is bound.
(h) Notice of Suits, Adverse Events
Furnish Agent and Lenders with prompt notice of (i) any lapse or
other termination of any Consent issued to any Borrowers by any
Governmental Body or any other Person that is material to the
operation of any Borrower business, (ii) any refusal by any
Governmental Body or any other Person to renew or extend any such
Consent; and (iii) copies of any periodic or special reports filed by
any Borrower with any Governmental Body or Person, if such reports
indicate any material change in the business, operations, affairs or
condition of any Borrower, or if copies thereof are requested by
Agent or any Lender, and (iv) copies of any material notices and
other communications from any Governmental Body or Person which
specifically relate to any Borrower.
(i) Additional Documents
Execute and deliver to Agent, upon request, such documents and
agreements as Agent may, from time to time, reasonably request to
carry out the purposes, terms or conditions of this Agreement.
10. EVENTS OF DEFAULT
The occurrence of any one or more of the following events shall constitute
an "Event of Default":
(a) failure by any Borrower or European Guarantor to pay any principal or
interest on the Obligations when due, whether at maturity or by
reason of acceleration pursuant to the terms of this Agreement or any
Security Document or by notice of intention to prepay, or by required
prepayment or failure to pay any other liabilities or make any other
payment, fee or charge provided for herein or any Security Document
when due;
(b) any representation or warranty made or deemed made by any Borrower
or European Guarantor in this Agreement or any Security Documents or
any related agreement or in any certificate, document or financial
or other statement furnished at any time in connection herewith or
therewith shall prove to have been misleading in any material
respect on the date when made or deemed to have been made;
(c) failure by any Borrower or European Guarantor to (i) furnish
financial information when due or when requested, or (ii) permit the
inspection of its books or records;
(d) issuance of a notice of Lien, levy, assessment, injunction or
attachment against a material portion of any Borrower or European
Guarantor property;
(e) (i) a failure or neglect of any Borrower or European Guarantor to
perform, keep or observe any term, provision, condition or covenant,
contained in Sections 6(a), 6(b),
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6(c) and 6(i) hereof which is not cured within thirty (30) days from
the occurrence of such failure or neglect; or (ii) failure or
neglect of any Borrower or European Guarantor to perform, keep or
observe any other term, provision, condition, covenant herein
contained, or contained in any other agreement or arrangement, now
or hereafter entered into between any Borrower or European
Guarantor, Agent and the Lenders after expiration of all applicable
grace periods;
(f) any judgment in excess of $300,000 is rendered against any Borrower
or European Guarantor or judgment liens filed against any Borrower
or European Guarantor of judgments in excess of $1,000,000 in the
aggregate are rendered against all Borrower or European Guarantor
for an amount which within thirty (30) days of such rendering or
filing is not either satisfied, stayed or discharged of record;
(g) any Borrower or European Guarantor shall (i) apply for, consent to
or suffer the appointment of, or the taking of possession by, a
receiver, custodian, trustee, liquidator or similar fiduciary of
itself or of all or a substantial part of its property, (ii) make a
general assignment for the benefit of creditors, (iii) commence a
voluntary case under any state or federal bankruptcy laws (as now or
hereafter in effect), (iv) be adjudicated a bankrupt or insolvent,
(v) file a petition seeking to take advantage of any other law
providing for the relief of debtors, (vi) acquiesce to, or fail to
have dismissed, within forty five (45) days, any petition filed
against it in any involuntary case under such bankruptcy laws, or
(vii) take any action for the purpose of effecting any of the
foregoing;
(h) any Borrower or European Guarantor shall admit in writing its
inability, or be generally unable, to pay its debts as they become
due or cease operations of its present business;
(i) any Subsidiary of any Borrower or European Guarantor, shall (i) apply
for, consent to or suffer the appointment of, or the taking of
possession by, a receiver, custodian, trustee, liquidator or similar
fiduciary of itself or of all or a substantial part of its property,
(ii) admit in writing its inability, or be generally unable, to pay
its debts as they become due or cease operations of its present
business, (iii) make a general assignment for the benefit of
creditors, (iv) commence a voluntary case under any state or federal
bankruptcy laws (as now or hereafter in effect), (v) be adjudicated a
bankrupt or insolvent, (vi) file a petition seeking to take advantage
of any other law providing for the relief of debtors, (vii) acquiesce
to, or fail to have dismissed, within forty five (45) days, any
petition filed against it in any involuntary case under such
bankruptcy laws, or (viii) take any action for the purpose of
effecting any of the foregoing;
(j) any change in the condition or affairs (financial or otherwise) of
any Borrower or European Guarantor which in Agent's opinion impairs
the Security Assets or the ability of any Borrower or European
Guarantor to perform its Obligations under this Agreement;
(k) any Lien created hereunder or provided for hereby or under any
related agreement for any reason ceases to be or is not a valid and
perfected Lien having a first priority interest;
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(l) an event of default has occurred and been declared under the Senior
Notes which default shall not have been cured or waived within any
applicable grace period;
(m) a default of the obligations of any Borrower or European Guarantor
under any other agreement to which it is a party shall occur which
materially adversely affects its condition, affairs or prospects
(financial or otherwise) which default is not cured within any
applicable grace period;
(n) termination or breach of any guarantee or similar agreement executed
and delivered to Agent in connection with the Obligations of any
Borrower, European or U.S. Guarantor, or if any European or U.S.
Guarantor attempts to terminate, challenges the validity of, or its
liability under, any such guarantee or similar agreement;
(o) any Change of Ownership or Change of Control shall have occurred;
(p) any material provision of this Agreement shall, for any reason, cease
to be valid and binding on any Borrower, or Borrower shall so claim
in writing to Agent;
(q) (i) any Governmental Body shall (A) revoke, terminate, suspend or
adversely modify any license, permit, patent, trademark or tradename
of any Borrower, the continuation of which is material to the
continuation of any Borrower's business, or (B) commence proceedings
to suspend, revoke, terminate or adversely modify any such license,
permit, trademark, tradename or patent and such proceedings shall not
be dismissed or discharged within sixty (60) days, or (c) schedule or
conduct a hearing on the renewal of any license, permit, trademark,
tradename or patent necessary for the continuation of any Borrower's
business and the staff of such Governmental Body issues a report
recommending the termination, revocation, suspension or material,
adverse modification of such license, permit, trademark, tradename or
patent; (ii) any agreement which is necessary or material to the
operation of any Borrower's business shall be revoked or terminated
and not replaced by a substitute acceptable to Agent within thirty
(30) days after the date of such revocation or termination, and such
revocation or termination and non-replacement could reasonably be
expected to have a Material Adverse Effect on any Borrower;
(r) any portion of the Security Assets shall be seized or taken by a
Governmental Body or the title and rights of any Borrower shall have
become the subject matter of litigation which might, in the opinion
of Agent, upon final determination, result in impairment or loss of
the security provided by the Security Documents;
(s) the operations of any Borrower's manufacturing facilities are
interrupted at any time for more than fourteen (14) consecutive days,
or if any Borrower's manufacturing capacity is reduced by 25% as a
result of such an interruption of operations (other than permanent
interruptions resulting from planned closing of up to three (3)
plants) unless such Borrower shall (i) be entitled to receive for
such period of interruption, proceeds of business interruption
insurance sufficient to assure that its per diem cash needs during
such period is at least equal to its average per diem cash needs for
the consecutive twelve (12) month period immediately preceding the
initial date of interruption and (ii) receive such proceeds in the
amount described in Sub-section (i)
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preceding not later than thirty (30) days following the initial date
of any such interruption; provided, however, that notwithstanding the
provisions of Sub-section (i) and (ii) of this Section, an Event of
Default shall be deemed to have occurred if any Borrower shall be
receiving the proceeds of business interruption insurance for a
period of thirty (30) consecutive days;
(t) there shall occur any Event of Default (as defined under the U.S.
Credit Facility) under such Facility or the U.S. Credit Facility is
terminated for any reason by any party thereto or an event of default
howsoever described has occurred and been declared under any Security
Document which default shall not have been cured or waived within any
applicable grace period; or
(u) the Agent determines that all Advances outstanding hereunder exceed
the Formula Amount on the basis of information delivered to the Agent
pursuant to Section 9.
11. LENDERS' RIGHTS AND REMEDIES AFTER DEFAULT
11.1 Rights and Remedies
Upon the occurrence of (i) an Event of Default pursuant to Section 10(g)
all Obligations shall be immediately due and payable and this Agreement
and the obligation of Lenders to make Advances shall be deemed terminated;
and, (ii) any of the other Events of Default and at any time thereafter
(such default not having previously been cured), at the option of
Required Lenders all Obligations shall be immediately due and payable and
the Lenders shall have the right to terminate this Agreement and to
terminate the obligation of Lenders to make Advances. Upon the occurrence
of any Event of Default, Agent may, and at the direction of the Required
Lenders shall, exercise any and all other rights and remedies provided
for herein, including under law or equity generally.
11.2 Agent's Discretion
Agent shall have the right in its sole discretion, but with the consent
of the Required Lenders to determine which rights, Liens, security
interests or remedies Agent may at any time pursue, relinquish,
subordinate, or modify or to take any other action with respect thereto
and such determination will not in any way modify or affect any of
Agent's or Lenders' rights hereunder.
11.3 Set-Off
In addition to any other rights which Agent or any Lender may have under
applicable law, upon the occurrence of an Event of Default hereunder,
Agent and such Lender shall have a right to apply any of Borrower's
property held by Agent and such Lender (including any cash deposit in any
currency) to reduce the Obligations.
11.4 Rights and Remedies not Exclusive
The enumeration of the foregoing rights and remedies is not intended to be
exhaustive and the exercise of any right or remedy shall not preclude the
exercise of any other right or remedies provided for herein or otherwise
provided by law, all of which shall be cumulative and not alternative.
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11.5 Actions in Concert
Anything in this Agreement to the contrary notwithstanding, each Lender
hereby agrees with each other Lender that no Lender shall take any action
to protect or enforce its rights arising out of this Agreement (including,
without limitation, exercising any right of set-off) without first
obtaining the prior written consent of Agent and Required Lenders, it
being the intent of Lenders that any such action to protect or enforce
rights under this Agreement shall be taken in concert and at the direction
or with the consent of the Agent and the Required Lenders.
12. WAIVERS AND JUDICIAL PROCEEDINGS
12.1 Waiver of Notice
Each Borrower, European and U.S. Guarantor each hereby waives notice of
non-payment of any of the Receivables, demand, presentment, protest and
notice thereof with respect to any and all instruments, notice of
acceptance hereof, notice of loans or advances made, credit extended,
Security Assets received or delivered, or any other action taken in
reliance hereon, and all other demands and notices of any description,
except such as are expressly provided for herein.
12.2 Delay
No delay or omission on Agent's or any Lender's part in exercising any
right, remedy or option shall operate as a waiver of such or any other
right, remedy or option or of any default.
13. EFFECTIVE DATE AND TERMINATION
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,
European and U.S. Guarantor, 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.
13.2 Termination
The termination of the Agreement shall not affect any Borrower's, European
or U.S. Guarantor's Agent's or any Lender's rights, or any of the
Obligations having their inception prior to the effective date of such
termination, and the provisions hereof shall continue to be fully
operative until all transactions entered into, rights or interests created
or Obligations have been fully disposed of, concluded or liquidated. The
security interests, Liens and rights granted to Agent and the Lenders
hereunder or under the Security Documents and the financing statements
filed hereunder shall continue in full force and effect, notwithstanding
the termination of this Agreement or the fact that Borrower's, account may
from time to time be temporarily in a zero or credit position, until all
of the Obligations of the Borrowers have been paid or performed in full
after the termination of this Agreement or the Borrowers, European and
U.S. Guarantors have furnished Agent and the Lenders with an
indemnification satisfactory to Agent and the Lenders with respect
thereto.
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14. REGARDING AGENT
14.1 Appointment
Each Lender hereby designates BNY Financial Limited to act as Agent for
such Lender under this Agreement and the Security Documents. Each Lender
hereby irrevocably authorises Agent to take such action on its behalf
under the provisions of this Agreement and the Security Documents and to
exercise such powers and to perform such duties hereunder and thereunder
as are specifically delegated to or required of Agent by the terms hereof
and thereof and such other powers as are reasonably incidental thereto and
Agent shall hold all Security Assets, payments of principal and interest,
fees (except the fees set forth in Sections 3.3)and charges and
collections (without giving effect to any collection days) received
pursuant to this Agreement, for the rateable benefit of Lenders. Agent may
perform any of its duties hereunder by or through its agents or employees.
As to any matters not expressly provided for by this Agreement Agent shall
not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the
Required Lenders, and such instructions shall be binding; provided,
however, that Agent shall not be required to take any action which exposes
Agent to liability or which is contrary to this Agreement or the Security
Documents or applicable law unless Agent is furnished with an
indemnification reasonably satisfactory to Agent with respect thereto.
14.2 Nature of Duties
Agent shall have no duties or responsibilities except those expressly set
forth in this Agreement and the Security Documents. Neither Agent nor any
of its officers, directors, employees or agents shall be (i) liable for
any action taken or omitted by them as such hereunder or in connection
herewith, unless caused by their gross negligence (but not mere
negligence) or wilful misconduct, or (ii) responsible in any manner for
any recitals, statements, representations or warranties made by any
Borrower, European or U.S. Guarantor or any officer thereof contained in
this Agreement, or in any of the Security Documents or in any certificate,
report, statement or other document referred to or provided for in, or
received by Agent under or in connection with, this Agreement or any of
the Security Documents or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, or any of
the Security Documents or for any failure of any Borrower, European or
U.S. Guarantor to perform its respective obligations hereunder. Agent
shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any of the Security Documents, or to
inspect the properties, books or records of any Borrower, European or U.S.
Guarantor or, if applicable, general partner of any Borrower, European or
U.S. Guarantor. The duties of Agent as respects the Advances to any
Borrower, European or U.S. Guarantor shall be mechanical and
administrative in nature; Agent shall not have by reason of this Agreement
a fiduciary relationship in respect of any Lender; and nothing in this
Agreement, expressed or implied, is intended to or shall be so construed
as to impose upon Agent any obligations in respect of this Agreement
except as expressly set forth herein.
14.3 Lack of Reliance
Independently and without reliance upon Agent or any other Lender, each
Lender has made and shall continue to make (i) its own independent
investigation of the financial condition and
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affairs of each Borrower, European and U.S. Guarantor in connection with
the making and the continuance of the Advances hereunder and the taking or
not taking of any action in connection herewith, and (ii) its own
appraisal of the creditworthiness of any Borrower, European and U.S.
Guarantor. Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession
before making of the Advances or at any time or times thereafter except as
shall be provided by an Borrower, European and U.S. Guarantor pursuant to
the terms hereof. Agent shall not be responsible to any Lender for any
recitals, statements, information, representations or warranties herein or
in any agreement, document, certificate or a statement delivered in
connection with or for the execution, effectiveness, genuineness,
validity, enforceability, collectability or sufficiency of this Agreement
or any Security Document, or of the financial condition of each Borrower,
European and U.S. Guarantor, or be required to make any inquiry concerning
either the performance or observance of any of the terms, provisions or
conditions of this Agreement, the Security Documents or the financial
condition of each Borrower, European and U.S. Guarantor, or the existence
of any Event of Default or any Default.
Agent may resign on sixty (60) days' written notice to each of Lenders and
the Borrowing Agent and upon such resignation, the Required Lenders will
promptly designate a successor Agent reasonably satisfactory to the
Borrowing Agent.
Any such successor Agent shall succeed to the rights, powers and duties of
Agent, and the term "Agent" shall mean such successor agent effective upon
its appointment, and the former Agent's rights, powers and duties as Agent
shall be terminated, without any other or further act or deed on the part
of such former Agent. After any Agent's resignation as Agent, the
provisions of this Section 14 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this
Agreement.
14.4 Certain Rights of Agent
If Agent shall request instructions from Lenders with respect to any act
or action (including failure to act) in connection with this Agreement or
any Security Document, Agent shall be entitled to refrain from such act or
taking such action unless and until Agent shall have received instructions
from the Required Lenders; and Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, Lenders
shall not have any right of action whatsoever against Agent as a result of
its acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders.
14.5. Reliance
Agent shall be entitled to rely, and shall be fully protected in relying,
upon any note, writing, resolution, notice, statement, certificate, telex,
teletype or telecopier message, cablegram, order or other document or
telephone message believed by it to be genuine and correct and to have
been signed, sent or made by the proper person or entity, and, with
respect to all legal matters pertaining to this Agreement and the Security
Documents and its duties hereunder, upon advice of counsel selected by it.
Agent may employ agents and attorneys-in-fact and shall not be liable for
the default or misconduct of any such agents or attorneys-in-fact selected
by Agent with reasonable care.
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14.6 Notice of Default
Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder or under the Security
Documents, unless Agent has received notice from a Lender or any
Borrower, European and U.S. Guarantor referring to this Agreement or the
Security Documents, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that
Agent receives such a notice, Agent shall give notice thereof to Lenders.
Agent shall take such action with respect to such Default or Event of
Default as shall be directed by the Required Lenders; provided, that,
unless and until Agent shall have received such directions, Agent may
(but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of Lenders.
14.7 Indemnification
To the extent Agent is not reimbursed and indemnified by the Borrowers,
European or U.S. Guarantors, each Lender will reimburse and indemnify
Agent in proportion to its respective portion of the Advances (or, if no
Advances are outstanding, according to its Commitment Percentage), from
and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or
asserted against Agent in performing its duties hereunder, or in any way
relating to or arising out of this Agreement or any Security Document;
provided that, Lenders shall not be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from Agent's wilful
misconduct or gross (not mere) negligence.
14.8 Agent in its Individual Capacity
With respect to the obligation of Agent to lend under this Agreement, the
Advances made by it shall have the same rights and powers hereunder as
any other Lender and as if it were not performing the duties as Agent
specified herein; and the term "Lender" or any similar term shall, unless
the context clearly otherwise indicates, include Agent in its individual
capacity as a Lender. Agent may engage in business with any Borrower,
European and U.S. Guarantor as if it were not performing the duties
specified herein, and may accept fees and other consideration from any
Borrower, European and U.S. Guarantor for services in connection with
this Agreement or otherwise without having to account for the same to
Lenders.
14.9 Delivery of Documents
To the extent Agent receives documents and information from any Borrower,
European and U.S. Guarantor pursuant to the terms of this Agreement,
Agent will promptly furnish such documents and information to Lenders.
14.10 Borrowers Undertaking to Agent
Without prejudice to their respective obligations to the Lenders under
the other provisions of this Agreement, each Borrower hereby undertakes
with Agent to pay to Agent from time to time on demand all amounts from
time to time due and payable by it for the account of Agent or the
Lenders or any of them pursuant to this Agreement to the extent not
already paid. Any payment made pursuant to any such demand shall pro
tanto satisfy the Borrowers' obligations
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to make payments for the account of the Lenders or the relevant
one or more of them pursuant to this Agreement.
15 MISCELLANEOUS
15.1 Jurisdiction
(a) Submission
For the benefit of each of the Agent and the Lender, each Borrower,
European and U.S. Guarantor agrees that the courts of England have
jurisdiction to settle any disputes in connection with this
Agreement and accordingly submits to the jurisdiction of the English
courts.
(b) Service of process
(i) Each Borrower, European and U.S. Guarantor undertakes to
appoint an agent for service of process relating to any
proceedings before the English courts in connection with this
Agreement within 30 days from the date hereof
(ii) Without prejudice to any other mode of service, each Borrowers,
European and U.S. Guarantor:-
(a) agrees that failure by a process agent to notify the
relevant Borrower, European and U.S. Guarantor of the
process will not invalidate the proceedings concerned; and
(b) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of this process
to its address for the time being applying under Section
15.5.
(c) Forum convenience and enforcement abroad
Each Borrower, European and U.S. Guarantor:-
(i) waives objection to the English courts on grounds of
inconvenient forum or otherwise as regards proceedings in
connection with this Agreement.
(ii) agrees that a judgment or order of an English court in
connection with this Agreement is conclusive and binding on it
and may be enforced against it in the courts of any other
jurisdiction.
(d) Non-exclusivity
Nothing in this Section 15.1 limits the right of the Agent or any
Lender to bring proceedings against a Borrower, European and U.S.
Guarantor in connection with this Agreement:-
(i) in any other court of competent jurisdiction; or
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(ii) concurrently in more than one jurisdiction.
(e) Governing Law
This Agreement is governed by English law.
15.2 Entire Understanding
(a) This Agreement and the documents executed concurrently herewith contain the
entire understanding between the Borrowers, European and U.S. Guarantors,
Agent and each Lender and supersedes all prior agreements and
understandings, if any, relating to the subject matter hereof. Any
promises, representations, warranties or guarantees not herein contained
and hereinafter made shall have no force and effect unless in writing,
signed by each Borrower, European and U.S. Guarantor, Agent's and each
Lender's respective officers. Neither this Agreement nor any portion or
provisions hereof may be changed, modified, amended, waived, supplemented,
discharged, cancelled or terminated orally or by any course of dealing, or
in any manner other than by an agreement in writing, signed by the party to
be charged. Each Borrower, European and U.S. Guarantor acknowledges that
it has been advised by counsel in connection with the execution of this
Agreement and Security Documents and is not relying upon oral
representations or statements inconsistent with the terms and provisions of
this Agreement.
(b) The Required Lenders, Agent with the consent in writing of the Required
Lenders, and each Borrower, European and U.S. Guarantor may, subject to the
provisions of this Section 15.2 (b), from time to time enter into written
supplemental agreements to this Agreement or the Security Documents
executed by the relevant Borrowers, European and U.S. Guarantors, for the
purpose of adding or deleting any provisions or otherwise changing, varying
or waiving in any manner the rights of the Lenders, Agent or any Borrower,
European and U.S. Guarantor thereunder or the conditions, provisions or
terms thereof or waiving any Event of Default thereunder, but only to the
extent specified in such written agreements; provided, however, that no
such supplemental agreement shall, ((x)) amend Sections 6(e), 6(f), 6(g),
6(h) and 7(f) without the consent of 67% of the Lenders or (y) without the
consent of all the Lenders:
(i) increase or decrease the Commitment Percentage of any Lender or the
Maximum Loan Amount or the Advance Rates.
(ii) extend the due date for any amount payable hereunder, or decrease the
rate of interest or reduce any fee payable by the Borrowers, European
and U.S. Guarantors to Agent or Lenders pursuant to this Agreement.
(iii) alter the definition of the term Required Lenders or alter, amend or
modify this Section 15.2(b).
(iv) release any Security Asset during any calendar year having an
aggregate value in excess of $100,000.
(v) change the rights and duties of Agent.
Any such supplemental agreement shall apply equally to each of the Lenders
and shall be binding upon the Borrowers, European and U.S. Guarantors, the
Lenders and Agent and all
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future holders of the Obligations. In the case of any waiver, the
Borrowers, European and U.S. Guarantors, Agent and the Lenders shall be
restored to their former positions and rights, and any Event of Default
waived shall be deemed to be cured and not continuing, but no waiver of a
specific Event of Default shall extend to any subsequent Event of Default
(whether or not the subsequent Event of Default is the same as the Event of
Default which was waived), or impair any right consequent thereon.
15.3 Successors and Assigns; Participations; New Lenders
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrowers, European and U.S. Guarantors, Agent, each Lender and their
respective successors and assigns, except that no Borrowers, European and
U.S. Guarantor may assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of Agent and
Required Lenders.
(b) Each Borrower, European and U.S. Guarantor acknowledges that in the regular
course of commercial banking business one or more Lenders may at any time
and from time to time assign or transfer sell participating interests in
the Advances to other financial institutions (each such transferee or
purchaser of a participating interest, a "Transferee"). Each Transferee
may exercise all rights of payment (including without limitation rights of
set-off) with respect to the portion of such Advances held by it or other
Obligations payable hereunder as fully as if such Transferee were the
direct holder thereof provided that the Borrowers, European and U.S.
Guarantors shall not be required to pay to any Transferee more than the
amount which they would have been required to pay to the Lender which
granted an interest in its Advances or other Obligations payable hereunder
to such Transferee had such Lender retained such interest in the Advances
hereunder or other Obligations payable hereunder and in no event shall the
Borrowers, European and U.S. Guarantors be required to pay any such amount
arising from the same circumstances and with respect to the same Advances
or other Obligations payable hereunder to both such Lender and such
Transferee. Each Borrower, European and U.S. Guarantor hereby grants to
any Transferee a continuing security interest in any deposits, moneys or
other property actually or constructively held by such Transferee as
security for the Transferee's interest in the Advances.
(c) Any Lender may with the consent of Agent which shall not be unreasonably
withheld or delayed sell, assign or transfer all or any part of its rights
under this Agreement and the Security Documents to one or more additional
banks or financial institutions and one or more additional banks or
financial institutions may commit to make Advances hereunder (each a
"Purchasing Lender"), pursuant to a Commitment Transfer Supplement,
executed by a Purchasing Lender, the transferor Lender, and Agent and
delivered to Agent for recording provided no Purchasing Lender shall be
sold an aggregate commitment of less than $5,000,000. Upon such execution,
delivery, acceptance and recording, from and after the transfer effective
date determined pursuant to such Commitment Transfer Supplement, (i)
Purchasing Lender thereunder shall be a party hereto and, to the extent
provided in such Commitment Transfer Supplement, have the rights and
obligations of a Lender thereunder with a Commitment Percentage as set
forth therein, and (ii) the transferor Lender thereunder shall, to the
extent provided in such Commitment Transfer Supplement, be released from
its obligations under this Agreement, the Commitment Transfer Supplement
creating a novation for that purpose. Such Commitment Transfer Supplement
shall be deemed to amend this Agreement to the extent, and only to the
extent, necessary to reflect the addition of such Purchasing Lender and the
resulting adjustment of the Commitment Percentages arising from the
purchase by such Purchasing
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Lender of all or a portion of the rights and obligations of such
transferor Lender under this Agreement and the Security Documents. Each
Borrower, European and U.S. Guarantor hereby consents to the addition of
such Purchasing Lender and the resulting adjustment of the Commitment
Percentages arising from the purchase by such Purchasing Lender of all or
a portion of the rights and obligations of such transferor Lender under
this Agreement and the Security Documents. Each Borrower, European and
U.S. Guarantor shall execute and deliver such further documents and do
such further acts and things in order to effectuate the foregoing.
(d) Agent shall maintain at its address a copy of each Commitment Transfer
Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Advances owing to each
Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and each Borrowers,
European and U.S. Guarantor, Agent and Lenders may treat each Person
whose name is recorded in the Register as the owner of the Advance
recorded therein for the purposes of this Agreement. The Register shall
be available for inspection by the Borrowers, European and U.S.
Guarantors, or any Lender at any reasonable time and from time to time
upon reasonable prior notice. Agent shall receive a fee in the amount of
$2500 payable by the applicable Purchasing Lender upon the effective date
of each transfer or assignment to such Purchasing Lender.
(e) Each Borrower, European and U.S. Guarantor authorises each Lender to
disclose to any Transferee or Purchasing Lender and any prospective
Transferee or Purchasing Lender any and all financial information in such
Lender's possession concerning the Borrowers, European and U.S.
Guarantors which has been delivered to such Lender by or on behalf of any
Borrower, European and U.S. Guarantor pursuant to this Agreement or in
connection with such Lender's credit evaluation of Borrowers, European
and U.S. Guarantors.
15.4. Indemnity
Each Borrower, European and U.S. Guarantor shall indemnify Agent and each
Lender and their officers, employees and agents from and against any and
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses and disbursements of any kind or nature
whatsoever (including, without limitation, fees and disbursements of
counsel) which may be imposed on, incurred by, or asserted against Agent
or any Lender in any litigation, proceeding or investigation instituted
or conducted by any governmental agency or instrumentality or any other
Person with respect to any aspect of, or any transaction contemplated by,
or referred to in, or any matter related to, this Agreement, whether or
not Agent or any Lender is a party thereto, except to the extent that any
of the foregoing arises out of the wilful misconduct or gross (not mere)
negligence of the party being indemnified.
15.5 Notice
Any notice or request hereunder may be given to any Borrower, European
and U.S. Guarantor or to Agent or any Lender at their respective
addresses set forth below or at such other address as may hereafter be
specified in a notice designated as a notice of change of address under
this Section. Any notice or request hereunder shall be given by (a) hand
delivery, (b) overnight courier, (c) registered or certified mail, return
receipt requested, (d) telex or telegram, subsequently confirmed by
registered or certified mail, or (e) telecopy to the number set out below
(or such other number as may hereafter be specified in a notice
designated as a notice of change of address) with telephone communication
to a duly authorised officer of the recipient confirming its receipt as
subsequently confirmed by registered or certified mail. Any notice or
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other communication required or permitted pursuant to this Agreement shall
be deemed given (a) when personally delivered to any officer of the party
to whom it is addressed, (b) on the earlier of actual receipt thereof or
three (3) days following posting thereof by certified or registered mail,
postage prepaid, or (c) upon actual receipt thereof when sent by a
recognised overnight delivery service or (d) upon actual receipt thereof
when sent by telecopier to the number set forth below with telephone
communication confirming receipt and subsequently confirmed by registered,
certified or overnight mail to the address set forth below, in each case
addressed to each party at its address set forth below or at such other
address as has been furnished in writing by a party to the other by like
notice:
(i) If to Agent BNY Financial Limited
at: ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telecopier: 0181 240 5801
with a copy to: ▇▇▇▇▇ & Overy
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telecopier: 44 171 330 9999
and
▇▇▇▇ & Hessen LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to a Lender other than Agent, as specified on the signature pages
hereof;
(iii) If to Borrowers,
European and U.S.
Guarantors: c/o Radnor Holdings Corporation
Three Radnor Corporate Center
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copies to ▇▇▇▇▇ ▇▇▇▇▇▇ & Heckscher
One Liberty Place
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
15.6 Survival
The obligations of Borrowers, European and U.S. Guarantors under Sections
2.2(d), 3.5, 3.6, 3.7, 14.7 and 15.4 shall survive termination of this
Agreement and the Security Documents and payment in full of the
Obligations.
15.7 Severability
If any part of this Agreement is contrary to, prohibited by, or deemed
invalid under applicable laws or regulations, such provision shall be
inapplicable and deemed omitted to the extent so contrary, prohibited or
invalid, but the remainder hereof shall not be invalidated thereby and
shall be given effect so far as possible.
15.8 Expenses
All costs and expenses including, without limitation, reasonable
attorneys' fees and disbursements incurred by Agent, any Lender and Agent
on behalf of the Lenders (a) in all efforts made to enforce payment of
any Obligation or effect collection of any Security Asset, or (b) in
connection with the entering into, modification, amendment,
administration and enforcement of this Agreement or any consents or
waivers hereunder and all related agreements, documents and instruments
or any change in the currency of a country or the operation of Section
2.4(d), or (c) in instituting, maintaining, preserving, enforcing and
foreclosing on Agent's security interest in or Lien on any of the
Security Assets, whether through judicial proceedings or otherwise, or
(d) in defending or prosecuting any actions or proceedings arising out of
or relating to Agent's or any Lender's transactions with any Borrower,
European and U.S. Guarantor, or (e) in connection with any advice given
to Agent or any Lender with respect to its rights and obligations under
this Agreement and all related agreements, may be charged to Borrowers,
European and U.S. Guarantors' accounts and shall be part of the
Obligations.
15.9 Injunctive Relief
Each Borrower, European and U.S. Guarantor recognises that, in the event
any Borrower, European and U.S. Guarantor fails to perform, observe or
discharge any of its obligations or liabilities under this Agreement, any
remedy at law may prove to be inadequate relief to Agent and the Lenders;
therefore, Agent and each Lender, if Agent or such Lender so requests,
shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving that actual damages are not an
adequate remedy.
15.10 Consequential Damages
Neither Agent nor Lenders nor any agent or attorney for any of them shall
be liable to any Borrower, European and U.S. Guarantor for consequential
damages arising from any breach of contract, tort or other wrong relating
to the establishment, administration or collection of the Obligations.
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15.11 Captions
The captions at various places in this Agreement are intended for
convenience only and do not constitute and shall not be interpreted as
part of this Agreement.
15.12 Counterparts; Telecopied Signatures
This Agreement may be executed in any number of and by different parties
hereto on separate counterparts, all of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and
the same agreement. Any signature delivered by a party by facsimile
transmission shall be deemed to be an original signature hereto.
15.13 Construction
The parties acknowledge that each party and its counsel have reviewed
this Agreement and that the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement or any
amendments, schedules or exhibits thereto.
15.14 Language
Each notice, document, instrument, certificate and statement referred to
herein or to be delivered hereunder shall be in the English language or
accompanied by an English translation thereof certified as accurate by an
officer of the relevant Borrower, European and U.S. Guarantor. In the
case of conflict and unless the Agent otherwise specifies, the English
language version of any such document shall prevail.
15.15 Currency Indemnity
(a) If:
(i) any amount payable by a Borrower, European and U.S. Guarantor
hereunder or in connection herewith is received by the Agent or any
Lender in a currency (the "Payment Currency") other than that agreed
to be payable hereunder (the "Agreed Currency"), whether as a result
of any judgement or order or the enforcement thereof, the
liquidation of such Borrower, European and U.S. Guarantor or
otherwise howsoever; and
(ii) the amount produced by converting the Payment Currency so received
into the Agreed Currency is less than the relevant amount of the
Agreed Currency.
then such Borrower, European and U.S. Guarantor shall indemnify each of
the Agent and the Lenders for the deficiency and any loss sustained as a
result. Such conversion shall be made at such prevailing rate of
exchange, on such date and in such market as is determined by the Agent,
or the relevant Lender as being most appropriate for such conversion.
Such Borrower, European and U.S. Guarantor shall in addition pay the
costs of such conversion.
(b) The above indemnity shall constitute separate and independent obligations
of each Borrower, European and U.S. Guarantor from its other obligations
hereunder and shall apply irrespective of any indulgence granted by the
Agent or any Lender.
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16. BORROWING AGENCY
16.1 Borrowing Agency Provisions
(a) Each Borrower hereby irrevocably designates Borrowing Agent to be its
attorney and agent and in such capacity to borrow, sign and endorse
notes, and execute and deliver all instruments, documents, writings and
further assurances now or hereafter required hereunder and to receive any
notice hereunder on behalf of such Borrower, and hereby authorises Agent
to pay over or credit all loan proceeds hereunder in accordance with the
request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a
borrowing agent in the manner set forth in this Agreement is solely as an
accommodation to the Borrowers and at their request. Neither Agent nor
any Lender shall incur liability to the Borrowers as a result thereof. To
induce Agent and Lenders to do so and in consideration thereof, each
Borrower hereby indemnifies Agent and each Lender and holds Agent and
each Lender harmless from and against any and all liabilities, expenses,
losses, damages and claims of damage or injury asserted against Agent or
any Lender by any Person arising from or incurred by reason of the
handling of the financing arrangements of Borrowers as provided herein,
reliance by Agent or any Lender on any request or instruction from
Borrowing Agent or any other action taken by Agent or any Lender with
respect to this Section 16.1 except due to wilful misconduct or gross
(not mere) negligence by the indemnified party.
(c) Each Borrower, European and U.S. Guarantor shall make payment upon the
maturity of its respective Obligations by acceleration or otherwise, and
such obligation and liability on the part of each Borrower, European and
U.S. Guarantor shall in no way be affected by any extensions, renewals
and forbearance granted to Agent or any Lender to any Borrower, European
and U.S. Guarantor, failure of Agent or any Lender to give any Borrower,
European and U.S. Guarantor any notice, any failure of Agent or any
Lender to pursue or preserve its rights against any Borrower, European
and U.S. Guarantor, the release by Agent or any Lender of any Security
Asset now or thereafter acquired from any Borrower, European and U.S.
Guarantor, and such agreement by each Borrower, European and U.S.
Guarantor to pay upon any notice issued pursuant thereto is unconditional
and unaffected by prior recourse by Agent or any Lender to the other
Borrowers, European and U.S. Guarantors or any Security Asset for such
Borrowers, European and U.S. Guarantors Obligations or the lack thereof.
16.2 Waiver of Subrogation
Each Borrower, European and U.S. Guarantor expressly waives any and all
rights of subrogation, reimbursement, indemnity, exoneration,
contribution of any other claim which it may now or hereafter have
against the other Borrowers, European and U.S. Guarantors or other Person
directly or contingently liable for the Obligations hereunder, or against
or with respect to the other Borrowers, European and U.S. Guarantors
property (including, without limitation, any property which is Security
Asset for the Obligations), arising from the existence or performance of
this Agreement, until termination of this Agreement and repayment in full
of the Obligations.
Each of the parties has signed this Agreement as of the day and year
first above written.
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SIGNATORIES
As Borrowers and Guarantors
STYROCHEM EUROPE (NETHERLAND) B.V.
By: ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director A
STYROCHEM FINLAND OY
By: ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
THERMISOL FINLAND OY
By: ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
THERMISOL SWEDEN AB
By: ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
As Borrower
THERMISOL DENMARK APS
By: ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
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As Guarantors
WINCUP HOLDINGS, INC.
By: ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
RADNOR CHEMICAL CORPORATION
By: ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
STYROCHEM U.S., INC.
By: ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
RADNOR HOLDINGS CORPORATION
By: ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
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As Lender and Agent
BNY FINANCIAL LIMITED
By: ▇. ▇▇▇▇▇▇
2nd Floor,
▇▇▇ House,
Railway Approach
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Commitment Percentage: 50%
As Lender
NATIONSBANK, N.A.
By: ▇. ▇▇▇▇▇ III
New Broad Street House
35 New ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Loan Administration Contact: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Commitment Percentage: 50%
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Annex 1
COMMITMENT TRANSFER SUPPLEMENT
COMMITMENT TRANSFER SUPPLEMENT, dated [ ], among [
] (the "Transferor Lender"), [ ]
("Purchasing Lender"), and BNY FINANCIAL LIMITED, as agent for the Lenders under
the Revolving Credit Agreement described below (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, this Commitment Transfer Supplement is being executed and delivered in
accordance with Section 15.3 of the Supplement Revolving Multicurrency Credit
Agreement dated 10th December, 1997 between STYROCHEM EUROPE (THE NETHERLANDS)
B.V. ("StyroChem Europe"), STYROCHEM FINLAND OY ("StyroChem Finland"), THERMISOL
DENMARK APS ("Thermisol Denmark"), THERMISOL SWEDEN AB ("Thermisol Sweden"), and
THERMISOL FINLAND Oy ("Thermisol Finland"), WINCUP HOLDINGS, L.P. ("WINCUP"),
WINCUP HOLDINGS, INC. ("Holdings"), RADNOR CHEMICAL CORPORATION ("Acquisition"),
STYROCHEM U.S., INC. ("StyroChem") and RADNOR HOLDINGS CORPORATION ("Radnor")
(StyroChem Europe, StyroChem Finland, Thermisol Denmark, Thermisol Sweden,
Thermisol Finland, WINCUP, Holdings, Acquisition, StyroChem and Radnor each an
"Obligor" and jointly and severally, the "Obligors"), BNY FINANCIAL LIMITED
("BNY"), each of the other financial institutions named in or which hereafter
become a party to the Loan Agreement (BNY and such other financial institutions,
the "Lenders") and the Agent (as same may be amended, supplemented or otherwise
modified in accordance with the terms hereof, the "Loan Agreement");
WHEREAS, Purchasing Lender wishes to become Lender party to the Loan Agreement;
and
WHEREAS, the Transferor Lender is selling and assigning to Purchasing Lender
rights, obligations and commitments under the Loan Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. All capitalised terms used herein which are not defined shall have the
meanings given to them in the Loan Agreement.
2. Upon receipt by the Agent of four counterparts of this Commitment Transfer
Supplement, to each of which is attached a fully completed Schedule I, and
each of which has been executed by the Transferor Lender and Agent, Agent
will transmit to Transferor Lender and Purchasing Lender a Transfer
Effective Notice, substantially in the form of Schedule II to this
Commitment Transfer Supplement (a "Transfer Effective Notice"). Such
Transfer Effective Notice shall set forth, inter alia, the date on which
the transfer effected by this Commitment Transfer Supplement shall become
effective (the "Transfer Effective Date"), which date shall not be earlier
than the first Business Day following the date such Transfer Effective
Notice is received. From and after the Transfer Effective Date, Purchasing
Lender shall be a Lender party to the Loan Agreement for all purposes
thereof.
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3. At or before 12:00 Noon (London time) on the Transfer Effective Date
Purchasing Lender shall pay to Transferor Lender, in immediately available
funds, an amount equal to the purchase price, as agreed between Transferor
Lender and such Purchasing Lender (the "Purchase Price"),of the portion of
the Advances being purchased by such Purchasing Lender (such Purchasing
Lender's "Purchased Percentage") of the outstanding Advances and other
amounts owing to the Transferor Lender under the Loan Agreement. Effective
upon receipt by Transferor Lender of the Purchase Price from a Purchasing
Lender, Transferor Lender hereby irrevocably sells, assigns and transfers
to such Purchasing Lender, without recourse, representation or warranty,
and Purchasing Lender hereby irrevocably purchases, takes and assumes from
Transferor Lender, such Purchasing Lender's Purchased Percentage of the
Advances and other amounts owing to the Transferor Lender under the Loan
Agreement together with all instruments, documents and collateral security
pertaining thereto.
4. Transferor Lender has made arrangements with Purchasing Lender with respect
to (i) the portion, if any, to be paid, and the date or dates for payment,
by Transferor Lender to such Purchasing Lender of any fees heretofore
received by Transferor Lender pursuant to the Loan Agreement prior to the
Transfer Effective Date and (ii) the portion, if any, to be paid, and the
date or dates for payment, by such Purchasing Lender to Transferor Lender
of fees or interest received by such Purchasing Lender pursuant to the Loan
Agreement from and after the Transfer Effective Date.
5. (a) All principal payments that would otherwise be payable from and
after the Transfer Effective Date to or for the account of Transferor
Lender pursuant to the Loan Agreement shall, instead, be payable to or
for the account of Transferor Lender and Purchasing Lender, as the
case may be, in accordance with their respective interests as
reflected in this Commitment Transfer Supplement.
(b) All interest, fees and other amounts that would otherwise accrue for
the account of Transferor Lender from and after the Transfer Effective
Date pursuant to the Loan Agreement shall, instead, accrue for the
account of, and be payable to, Transferor Lender and Purchasing
Lender, as the case may be, in accordance with their respective
interests as reflected in this Commitment Transfer Supplement. In the
event that any amount of interest, fees or other amounts accruing
prior to the Transfer Effective Date was included in the Purchase
Price paid by any Purchasing Lender, Transferor Lender and Purchasing
Lender will make appropriate arrangements for payment by Transferor
Lender to such Purchasing Lender of such amount upon receipt thereof
from Borrowers.
6. Concurrently with the execution and delivery hereof, Transferor Lender will
provide to Purchasing Lender conformed copies of the Loan Agreement and all
related documents delivered to Transferor Lender.
7. Each of the parties to this Commitment Transfer Supplement agrees that at
any time and from time to time upon the written request of any other party,
it will execute and deliver such further documents and do such further acts
and things as such other party may reasonably request in order to effect
the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment Transfer Supplement, Transferor
Lender and Purchasing Lender confirm to and agree with each other and Agent
and Lenders as follows:
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(i) other than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned hereby free and clear
of any adverse claim, Transferor Lender makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection
with the Loan Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan
Agreement or any other instrument or document furnished pursuant
thereto;
(ii) Transferor Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrowers
or the performance or observance by Borrowers of any of their
Obligations under the Loan Agreement or any other instrument or
document furnished pursuant hereto;
(iii) Purchasing Lender confirms that it has received a copy of the Loan
Agreement, together with copies of such financial statements and such
other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Commitment
Transfer Supplement;
(iv) Purchasing Lender will, independently and without reliance upon
Agent, Transferor Lender or any other Lenders and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under the Loan Agreement;
(v) Purchasing Lender appoints and authorises Agent to take such action
as agent on its behalf and to exercise such powers under the Loan
Agreement as are delegated to the Agent by the terms thereof;
(vi) Purchasing Lender agrees that it will perform all of its respective
obligations as set forth in the Loan Agreement to be performed by
each as a Lender; and
9. Schedule I hereto sets forth the revised Commitment Percentages of
Transferor Lender and the Commitment Percentage of Purchasing Lender as
well as administrative information with respect to Purchasing Lender.
10. This Commitment Transfer Supplement shall be governed by, and construed in
accordance with, the laws of England.
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IN WITNESS WHEREOF, the parties hereto have caused this Commitment Transfer
Supplement to be executed by their respective duly authorised officers on the
date set forth above.
----------------------------
as Transferor Lender
By:
-------------------------
Name:
-----------------------
Title:
----------------------
----------------------------
as a Purchasing Lender
By:
-------------------------
Name:
-----------------------
Title:
----------------------
BNY FINANCIAL LIMITED
as Agent
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Consented to:
WINCUP HOLDINGS L.P.
By:
-------------------------------
Name:
Its:
WINCUP HOLDINGS, INC.
By:
-------------------------------
Name:
Its:
67
B3:112290.1
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RADNOR CHEMICAL CORPORATION
By:
---------------------------
Name:
Its:
STYROCHEM U.S., INC.
By:
---------------------------
Name:
Its:
RADNOR HOLDINGS CORPORATION
By:
---------------------------
Name:
Its:
STYROCHEM EUROPE (THE NETHERLANDS) B.V.
By:
---------------------------
Name:
Its:
STYROCHEM FINLAND OY
By:
---------------------------
Name:
Its:
68
B3:112290.1
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THERMISOL DENMARK APS
By:
-----------------------------
Name:
Its:
THERMISOL FINLAND OY
By:
-----------------------------
Name:
Its:
THERMISOL SWEDEN AB
By:
-----------------------------
Name:
Its:
69
B3:112290.1
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SCHEDULE I TO COMMITMENT TRANSFER SUPPLEMENT
LIST OF OFFICES, ADDRESSES FOR NOTICES AND COMMITMENT AMOUNTS
[Transferor Lender] Revised Commitment Amount $
Revised Commitment
Percentage:
[Purchasing Lender] Commitment Amount $
Commitment Percentage:
Addresses for Notices
Attention:
Telephone:
Telecopier:
70
B3:112290.1
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SCHEDULE II TO COMMITMENT TRANSFER SUPPLEMENT
[Form of Transfer Effective Notice]
To: [ ], as Transferor Lender and
[ ], as Purchasing Lender:
The undersigned, as Agent under the Supplement Revolving Multicurrency Credit
Agreement dated 10 December, 1997 between each of the Obligors therein defined,
BNY FINANCIAL LIMITED ("BNY"), each of the other financial institutions named in
or which hereafter become a party to the Loan Agreement (BNY and such other
hereafter become a party to the Loan Agreement (BNY and such other financial
institutions, the "Lenders") and BNY as agent for the Lenders, acknowledges
receipt of four (4) executed counterparts of a completed Commitment Transfer
Supplement in the form attached hereto. [Note: Attach copy of Commitment
Transfer Supplement.] Terms defined in such Commitment Transfer Supplement are
used herein as therein defined.
Pursuant to such Commitment Transfer Supplement, you are advised that the
Transfer Effective Date will be [Insert date of Transfer Effective Notice].
BNY FINANCIAL LIMITED,
as Agent
By:
-----------------------
Title:
--------------------
ACCEPTED FOR RECORDATION
IN REGISTER:
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B3:112290.1
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Annex 2
Subsidiaries
Name of Borrower: Styrochem Europe (The Netherlands) B.V.
Subsidiaries: StyroChem Finland Oy (Finnish Corporation), Thermisol Denmark
Aps (Netherlands Corporation), Thermisol Finland Oy (Finnish
Corporation), and Thermisol Sweden AB (Swedish Corporation).
Name of Borrower: StyroChem Finland Oy
Subsidiaries: None
Name of Borrower: Thermisol Denmark Aps
Subsidiaries: None
Name of Borrower: Thermisol Sweden AB
Subsidiaries: None
Name of Borrower: Thermisol Finland Oy
Subsidiaries: None