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EXHIBIT 10.11
SECOND AMENDMENT AND WAIVER TO CREDIT AGREEMENT
This SECOND AMENDMENT AND WAIVER TO CREDIT AGREEMENT (this
"AMENDMENT") is entered into as of February 24, 2004, among WESTLAKE CHEMICAL
CORPORATION ("WESTLAKE") and certain of its domestic subsidiaries listed as
Borrowers to the Credit Agreement described below (collectively, the
"BORROWERS"), Required Lenders under the Credit Agreement, BANK OF AMERICA,
N.A., in its capacity as Agent for Lenders under the Credit Agreement ("Agent"),
and Guarantors under the Credit Agreement (hereinafter defined).
Reference is made to the Credit Agreement, dated as of July
31, 2003 (as amended, modified, and supplemented, the "CREDIT AGREEMENT"), among
the Borrowers, Agent, and Lenders party thereto. Unless otherwise defined in
this Amendment, capitalized terms used herein shall have the meaning set forth
in the Credit Agreement; all Section references herein are to Sections in the
Credit Agreement; and all Paragraph references herein are to Paragraphs in this
Amendment.
RECITALS
A. Borrowers have requested that Lenders amend SECTION 7.12 to permit
Westlake to issue guaranties of another Loan Party on the terms and conditions
set forth herein.
B. Subject to the terms and conditions of this Amendment, Lenders are
willing to agree to such amendment and to waive any potential Default or Event
of Default that may have occurred as a result of any such Guaranty prior to the
Effective Date (defined below) of this Amendment ("WAIVED EVENT").
Accordingly, for adequate and sufficient consideration, the parties
hereto agree, as follows:
PARAGRAPH 1. AMENDMENT. SECTION 7.12 is amended by deleting such Section in its
entirety and substituting the following therefor:
"7.12 Guaranties. No Loan Party nor any of their Subsidiaries shall
make, issue, or become liable on any Guaranty, except (a) Obligation
Guaranties in favor of the Agent, (b) Guaranties of Debt permitted by
SECTION 7.13, (c) unsecured Guaranties by Westlake of another Loan
Party for goods furnished or services rendered in the ordinary course
of business of such Loan Party, and (d) a Guaranty by Westlake Olefins
Corporation for the account of Suzhou Huasu Plastics Co. Ltd. in an
aggregate amount not to exceed $8,500,000."
PARAGRAPH 2. WAIVER. Required Lenders hereby waive any potential Default or
Event of Default that may have occurred solely as a result of the Waived Event
and agree that Lenders will not exercise their rights or remedies under the Loan
Documents solely as a result of the occurrence of any Waived Event.
PARAGRAPH 3. EFFECTIVE DATE. Notwithstanding any contrary provision, this
Amendment is not effective until the date (the "EFFECTIVE DATE") upon which (a)
the representations and warranties in this Amendment are true and correct; (b)
Agent has received counterparts of this Amendment executed by each Borrower,
each Guarantor, and Required Lenders; and (c) Borrowers have paid Attorney Costs
of Agent incurred in connection with the Loan Documents, including any
outstanding Attorney's Costs of Agent on the Effective Date.
PARAGRAPH 4. ACKNOWLEDGMENT AND RATIFICATION. As a material inducement to Agent
and Lenders to execute and deliver this Amendment, each Borrower and each
Guarantor (a) consent to the agreements in this Amendment and (b) agree and
acknowledge that the execution, delivery, and performance of this Amendment
shall in no way release, diminish, impair, reduce, or otherwise affect the
respective obligations of Borrowers or Guarantors under their respective Loan
Documents, which Loan Documents shall remain in full force and effect, and all
Liens, guaranties, and rights thereunder are hereby ratified and confirmed.
PARAGRAPH 5. REPRESENTATIONS. As a material inducement to Lenders to execute and
deliver this Amendment, each Borrower and each Guarantor represent and warrant
to Lenders (with the knowledge and intent that Lenders are relying upon the same
in entering into this Amendment) that as of the Effective Date and as of the
date of execution of this Amendment, (a) all representations and warranties in
the Loan Documents are true and correct in all material respects as though made
on the date hereof, except to the extent that (i) any of them speak to a
different specific date or (ii) the facts on which any of them were based have
been changed by transactions contemplated or permitted by the Credit Agreement,
and (b) no Default or Event of Default exists other than as waived herein.
PARAGRAPH 6. EXPENSES. Borrowers shall pay all reasonable costs, fees, and
expenses paid or incurred by Agent in connection with this Amendment, including,
without limitation, Attorney Costs of Agent in connection with the negotiation,
preparation, delivery, and execution of this Amendment and any related
documents.
PARAGRAPH 7. MISCELLANEOUS.
7.1 This Amendment is a "Loan Document" referred to in the Credit
Agreement, and the provisions relating to Loan Documents in ARTICLE 13 of the
Credit Agreement are incorporated in this Amendment by reference. Unless stated
otherwise (a) the singular number includes the plural and vice versa and words
of any gender include each other gender, in each case, as appropriate, (b)
headings and captions may not be construed in interpreting provisions, (c) this
Amendment must be construed, and its performance enforced, under New York law,
(d) if any part of this Amendment is for any reason found to be unenforceable,
all other portions of it nevertheless remain enforceable, and (e) this Amendment
may be executed in any number of counterparts with the same effect as if all
signatories had signed the same document, and all of those counterparts must be
construed together to constitute the same document.
7.2 The Loan Documents shall remain unchanged and in full force and
effect, except as provided in this Amendment, and are hereby ratified and
confirmed. On and after the Effective Date, all references to the "Credit
Agreement" shall be to the Credit Agreement as herein amended. The execution,
delivery, and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any rights of Lenders under any Loan
Document, nor constitute a waiver under any of the Loan Documents.
PARAGRAPH 8. ENTIRE AGREEMENT. THIS AMENDMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THIS AMENDMENT AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
PARAGRAPH 9. PARTIES. This Amendment binds and inures to Borrowers, Guarantors,
Agent, Lenders, and their respective successors and assigns.
The parties hereto have executed this Amendment in multiple
counterparts to be effective as of the Effective Date.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES TO FOLLOW.
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
BANK OF AMERICA, N.A., as Agent and a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Its Duly Authorized Signatory
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
▇▇▇▇▇ FARGO FOOTHILL, LLC,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
LASALLE BUSINESS CREDIT, LLC,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
UBS AG, STAMFORD BRANCH,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. Saint
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Saint
Title: Banking Products Services, US
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: Associate Director
Title: Banking Products Services, US
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
CREDIT SUISSE FIRST BOSTON, ACTING THROUGH
ITS CAYMAN ISLANDS BRANCH, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director Vice President
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
BORROWERS AND GUARANTORS:
WESTLAKE CHEMICAL CORPORATION,
a Delaware corporation
WESTLAKE PVC CORPORATION, a Delaware corporation
WESTLAKE VINYLS, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇
President of the above Borrowers
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
NORTH AMERICAN PIPE CORPORATION,
a Delaware corporation
VAN BUREN PIPE CORPORATION,
a Delaware corporation
WESTECH BUILDING PRODUCTS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
President of the above Borrowers
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
GEISMER VINYLS COMPANY LP,
a Delaware limited partnership
By: GVGP, Inc., its general partner
WESTLAKE PETROCHEMICALS LP,
a Delaware limited partnership
By: Westlake Chemical Investments, Inc.,
its general partner
WESTLAKE POLYMERS LP, a Delaware limited partnership
By: Westlake Chemical Investments, Inc.,
its general partner
WESTLAKE STYRENE LP, a Delaware limited partnership
By: Westlake Chemical Holdings, Inc.,
its general partner
WPT LP, a Delaware limited partnership
By: Westlake Chemical Holdings, Inc.,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------
▇▇▇▇▇▇ ▇▇▇▇
President of the general partners of
the above Borrowers
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
GUARANTORS:
GRAMERCY CHLOR-ALKALI CORPORATION,
a Delaware corporation
GVGP, INC., a Delaware corporation
WESTLAKE CHEMICAL HOLDINGS, INC.,
a Delaware corporation
WESTLAKE CHEMICAL INVESTMENTS, INC.,
a Delaware corporation
WESTLAKE MANAGEMENT SERVICES, INC.,
a Delaware corporation
WESTLAKE OLEFINS CORPORATION,
a Delaware corporation
WESTLAKE OVERSEAS CORPORATION,
a United States Virgin Islands corporation
WESTLAKE RESOURCES CORPORATION,
a Delaware corporation
WESTLAKE VINYL CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇▇▇▇
President of the above entities
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
NORTH AMERICAN PROFILES, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER
Signature Page to that certain Second Amendment and Waiver to Credit Agreement
dated as of the date first stated above, among Westlake Chemical Corporation and
certain of its domestic subsidiaries, as Borrowers, Bank of America, N.A., in
its capacity as Agent, Required Lenders, and Guarantors.
GEISMAR HOLDINGS, INC., a Delaware corporation
WESTLAKE CHEMICAL MANUFACTURING, INC.,
a Delaware corporation
WESTLAKE CHEMICAL PRODUCTS, INC.,
a Delaware corporation
WESTLAKE DEVELOPMENT CORPORATION,
a Delaware corporation
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President of the above entities
SIGNATURE PAGE TO SECOND AMENDMENT AND WAIVER