EXHIBIT 10.10
This Amendment was prepared
by and when recorded should
be mailed to:
Erika K. Del Duca, Esq.
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005
Space above this line for recorder' s use
AMENDMENT OF DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING KNOW ALL PERSONS BY THESE PRESENTS:
THIS AMENDMENT OF DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this " Amendment" ) is made as of the 19 th day of May, 2006 by STYROCHEM U.S., LTD., a Texas limited partnership, successor by conversion to StyroChem U.S., Inc., a Texas corporation, having an office at c/o Radnor Holdings Corporation, Radnor Financial Center, 150 Radnor Chester Road, Building A, Suite 300, Radnor, Pennsylvania 19087 (the " Grantor" ), in favor of COMMONWEALTH LAND TITLE OF FORT WORTH, INC., having an address at 777 Taylor Street, Suite 902, Fort Worth, Texas 76102 (the " Trustee" ), for the benefit of TENNENBAUM CAPITAL PARTNERS, LLC, having an office at 2951 28 th Street, Suite 1000, Santa Monica, California 90405, in its capacity as collateral agent (together with its successors and assigns in such capacity, the " Beneficiary" ). WITNESSETH
WHEREAS, reference is made to the Credit Agreement dated as of December 1, 2005 (the " Original Credit Agreement" ) among Radnor Holdings Corporation, as borrower (the " Company" ), the Grantor, as one of several guarantors, the other Guarantors, the Lenders and the Beneficiary, as agent and collateral agent;
WHEREAS, as security for the promises, terms, conditions, agreements and obligations imposed on the Grantor under the Original Credit Agreement and the Other Documents, the Grantor executed and delivered to the Trustee for the benefit of the Beneficiary a Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing dated as of December 1, 2005 and recorded on December 6, 2005 as Document Number D205362754 with the Office of the County Clerk in Tarrant County of the State of Texas (the " Existing Deed of Trust" ), which covers the real property described in Exhibit A attached hereto; and
Tarrant County, TX (Peden Rd)
WHEREAS, pursuant to the terms of that certain Amendment No. 1 dated as of April 4, 2006 (as may be further amended, restated, supplemented or otherwise modified and in effect from time to time, the " Amendment No. 1" ) among the Company, the Grantor, as one of several guarantors, the Guarantors, the Lenders and the Beneficiary, the parties have agreed to amend the Original Credit Agreement to authorize the issuance of additional loans in the amount of Twenty Three Million Five Hundred Thousand Dollars ($23,500,000) (the " Tranche C Loans" ), increasing the aggregate principal amount of Indebtedness from Ninety Five Million Dollars ($95,000,000) to One Hundred Eighteen Million Five Hundred Thousand Dollars ($118,500,000); and WHEREAS, the Grantor and the Beneficiary desire to amend, extend and modify the Existing Deed of Trust, and the liens created thereby, as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree that the Existing Deed of Trust shall be hereby amended and modified as follows:
Section 1. Defined Terms . Each capitalized term used herein and not otherwise defined herein shall have the meaning assigned thereto in the Existing Deed of Trust, as amended by this Amendment, or if not defined therein, in the Original Credit Agreement, as amended by Amendment No. 1. Each reference in the Existing Deed of Trust to " this Deed of Trust" shall be deemed to be a reference to the Existing Deed of Trust, as amended by this Amendment. Section 2. Modification . The Existing Deed of Trust is hereby amended as follows: (a) The first WHEREAS clause is hereby amended and restated in full by deleting it in its entirety and replacing it with the following: " WHEREAS, the Lenders (as defined in the Credit Agreement (as defined below)) have extended, at the request of Radnor Holdings Corporation (the " Company" ), ninety two million six hundred thousand dollars ($92,600,000) aggregate principal amount of Tranche A Loans (the " Tranche A Loans" ), two million four hundred thousand dollars ($2,400,000) aggregate principal amount of Tranche B Loans (the " Tranche B Loans" ) and twenty three million five hundred thousand dollars ($23,500,000) aggregate principal amount of Tranche C Loans (the " Tranche C Loans" ) (the Tranche A Loans, Tranche B Loans and Tranche C Loans are collectively referred herein as, the " Loans" ); the total aggregate principal amount of the Loans not exceeding one hundred eighteen million five hundred thousand dollars ($118,500,000) and which Loans are evidenced by the Tranche A Notes executed by the Company (the " Tranche A Notes" ), the Tranche B Notes executed by the Company (the " Tranche B Notes" ) and the Tranche C Notes executed by the Company (the " Tranche C Notes" ) pursuant to the Credit Agreement, dated December 1, 2005, between the Company, the Company' s subsidiaries that provide guarantees under the - 2 - Tarrant County, TX (Peden Rd)
Credit Agreement (the " Guarantors" ), the Lenders and Tennenbaum Capital Partners, LLC, as agent and collateral agent, as amended by Amendment No. 1, dated as of April 4, 2006 (as amended, the " Credit Agreement" );" ;
(b) The second WHEREAS clause is hereby amended and restated in full by deleting it in its entirety and replacing it with the following:
" WHEREAS, the Company, the Guarantors, and Beneficiary, as collateral agent, have entered into that certain Tranche A Security Agreement dated as of December 1, 2005 pursuant to which the Company and the Guarantors have granted a security interest in, and undertaken obligations with respect to, certain collateral and other property described therein, as amended by that certain Amendment No. 1 To Tranche A Security Agreement dated as of April 4, 2006 (as amended, the " Tranche A Security Agreement" );" ;
(c) The fourth WHEREAS clause is hereby amended and restated in full by deleting it in its entirety and replacing it with the following:
" WHEREAS , pursuant to the Credit Agreement, the Guarantors have unconditionally guaranteed the repayment of the indebtedness evidenced and represented by the Tranche A Notes and the Tranche C Notes (the " Indebtedness" ), as well as the payment, performance, observance and discharge by the Company of all obligations, covenants, conditions and agreements made by the Company to, with, in favor of and for the benefit of Beneficiary or any of the Tranche A Lenders and the Tranche C Lenders (as those terms are defined in the Credit Agreement) under the Credit Agreement and the Other Documents (as defined below);" ;
(d) The fifth WHEREAS clause is hereby amended and restated in full by deleting it in its entirety and replacing it with the following:
" WHEREAS , Beneficiary, the Tranche A Lenders and the Tranche C Lenders, as a condition precedent to the transactions contemplated by the Credit Agreement, have required that Grantor execute and deliver this Deed of Trust to the Trustee for the benefit of Beneficiary; and" ;
(e) The first paragraph of the Granting Clauses is hereby amended and restated in full by deleting it in its entirety and replacing it with the following:
" NOW, THEREFORE, to secure to Tranche A Lenders and the Tranche C Lenders (i) the payment or performance and discharge of all sums due under this Deed of Trust; (ii) the payment or performance and discharge of all terms, conditions and covenants, including the Secured Obligations, set forth in the Credit Agreement and the Other Documents, other than the payment of
- 3 - Tarrant County, TX (Peden Rd)
principal, prepayment premium, if any, and interest on, the Tranche B Loans and the performance of the Guarantors with respect thereto; and (iii) the payment or performance and discharge of all other obligations or indebtedness of Grantor, the Company, or the other Guarantors to Beneficiary, Tranche A Lenders or Tranche C Lenders of whatever kind or character and whenever borrowed or incurred under the Credit Agreement or the Other Documents, including without limitation, principal, prepayment premium, if any, and interest (as the same may vary in accordance with the terms of the Credit Agreement) on the Tranche A Loans and the Tranche C Loans (but excluding the payment of principal, prepayment premium, if any, and interest on, the Tranche B Loans), fees, late charges and expenses, including attorneys' fees (subsections (i), (ii) and (iii) collectively, the " Liabilities" ), Grantor DOES HEREBY GRANT, BARGAIN, SELL, CONVEY, TRANSFER, ASSIGN, MORTGAGE and SET OVER to Trustee, his/her substitutes and assigns, for the benefit of Beneficiary, Tranche A Lenders and Tranche C Lenders, all right, title and interest of Grantor in and to the following (collectively, the " Property" ):" ;
(f) The references in the fifth grammatical paragraph on page 4 of the Existing Deed of Trust (i.e., the paragraph beginning with the words " The present principal amount of the Liabilities" ) to " $92,600,000" are hereby deleted and " $116,100,000" is substituted therefor;
(g) Section 3 is hereby amended and restated in full by deleting it in its entirety and replacing it with the following:
" SECURITY AGREEMENT . This Deed of Trust (i) shall be construed as a Deed of Trust on real property, and (ii) shall also constitute and serve as a " Security Agreement" on personal property within the meaning of the Code, a
