THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.1
Execution
Copy
THIRD
AMENDMENT
TO
AMENDED
AND RESTATED CREDIT AGREEMENT
THIS
THIRD AMENDMENT TO
AMENDED
AND RESTATED CREDIT
AGREEMENT (this
“Amendment”),
dated
as of March 2, 2006, is entered into by and among HERCULES INCORPORATED,
a
Delaware corporation (the “Company”),
the
Guarantors signatory hereto, the
Lenders
signatory hereto, CREDIT
SUISSE, CAYMAN ISLANDS BRANCH (formerly known as Credit Suisse First Boston,
acting through its Cayman Islands Branch), as Administrative Agent for the
Lenders (in such capacity, the “Administrative
Agent”)
and
WACHOVIA BANK, NATIONAL ASSOCIATION, as Syndication Agent and Issuing Lender
(together with the Administrative Agent, the “Agents”).
RECITALS
A. The
Company, the Guarantors, the Lenders and the Agents are party to that certain
Amended and Restated Credit
Agreement dated as of April 8, 2004 (as amended by that certain First Amendment
to Amended and Restated Credit Agreement dated as of August 12, 2004, that
certain Second Amendment to Amended and Restated Credit Agreement dated as
of
June 29, 2005 and as further amended, restated, modified or supplemented,
the
“Existing
Credit Agreement”).
Unless
otherwise defined herein or the context otherwise requires, terms used in
this
Amendment, including its preamble and recitals, have the meanings provided
in
the Existing Credit Agreement.
B. The
Company has requested certain modifications to the Existing Credit
Agreement.
C. Such
modifications require the consent of (i) all of the Lenders with a Term B
Loan
Commitment (the “Term
B
Lenders”)
and
(ii) the Required Lenders.
D. The
Term B
Lenders and the Required Lenders have consented to the requested modifications
on the terms and conditions set forth herein.
AGREEMENT
NOW,
THEREFORE, IN CONSIDERATION
of the
premises and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
I. AMENDMENTS
TO EXISTING CREDIT AGREEMENT
Subject
to the satisfaction of the conditions precedent set forth in Section 4 of
Article II hereof, from and after the Third Amendment Effective Date (as
defined
below), the Existing Credit Agreement is hereby amended in the following
respects:
1. Section
2.6(b)(iii) of the Existing Credit Agreement is hereby deleted in its entirety
and replaced with the following:
“(iii) Asset
Dispositions.
The Net
Cash Proceeds from any Asset Disposition or Involuntary Disposition (including
insurance and condemnation proceeds) received at any time by any Credit Party
or
any Subsidiary of a Credit Party may, within 270 days from the date of receipt,
be applied (or caused to be applied) by the Company and its Consolidated
Subsidiaries to make Eligible Reinvestments; provided,
however,
that
the Net Cash Proceeds from the FiberVisions Transaction shall be promptly
applied after receipt of such proceeds to permanently repurchase, repay,
legally
defease or otherwise redeem outstanding Indebtedness of the
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Company
(including without limitation, the High Yield Notes) and/or relating to the
Preferred Securities. If and whenever any such Net Cash Proceeds (i) other
than
Net Cash Proceeds from the FiberVisions Transaction and (ii) in excess of
$15,000,000 in the aggregate from the Closing Date are not reinvested in
Eligible
Reinvestments
prior to the expiration of such 270-day period, the Company shall, on the
first
Business Day thereafter, apply such excess unreinvested amount to prepay
the
Loans as set forth in clause (vi) below.”
2. Section
2.14(a) of the Existing Credit Agreement is hereby amended by deleting the
reference to “ONE
HUNDRED MILLION DOLLARS ($100,000,000)”
and
replacing it with a reference to “ONE
HUNDRED TWENTY MILLION DOLLARS ($120,000,000)”.
3. Section
5.2(b)(iii) of the Existing Credit Agreement is hereby deleted in its entirety
and replaced with the following:
“(iii) Sale
of Assets.
It will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
dispose of any of its assets, in a transaction or a series of related
transactions unless (A) such transaction is not an Asset Disposition, (B)
such
transaction is the FiberVisions Transaction or (C) the aggregate value of
the
assets sold, leased or disposed of in such transaction, when added to the
aggregate value of all assets sold, leased or disposed of in all transactions
permitted by this clause (C) at any time after the Closing Date, does not
exceed
$75,000,000; provided, however, that at least 85% of the consideration received
by the Company and/or its Subsidiaries in connection with each such transaction
shall be in cash or Cash Equivalents.”
4. Section
5.2(f)(iii) of the Existing Credit Agreement is hereby amended by inserting
the
word “price,” immediately following the word “anticipated” therein.
5. Section
5.2(k)(ii)(B)(II) of the Existing Credit Agreement is hereby amended by (i)
deleting the reference to “$40,000,000” therein and replacing it with a
reference to “$75,000,000” and (ii) deleting the proviso in its
entirety.
6. Section
5.2(k)(ii) of the Existing Credit Agreement is hereby amended by adding the
following as new clauses (C) and (D) respectively:
“(C)
the
Company may use the Net Cash Proceeds of the FiberVisions Transaction to
repurchase, repay, legally defease or otherwise redeem any
Indebtedness for
borrowed money (including, without limitation, the High Yield Notes) or relating
to Preferred Securities; provided,
however,
that
for the avoidance of doubt, amounts used to repurchase, repay, legally defease
or otherwise redeem such Indebtedness pursuant to this clause (C) shall be
in
addition to, and shall not count towards, the baskets set forth in clauses
(B)(I) and (II); and
(D)
the
Company and its Subsidiaries may make voluntary or optional payments or
prepayments on, or otherwise repurchase, repay, legally defease or otherwise
redeem, Indebtedness of FiberVisions
Delaware Corporation (formerly known as FiberVisions, L.L.C.)
and its
Subsidiaries in an aggregate amount not to exceed $9,000,000.”
7. The
definition of “Applicable Margin” in Section 7.1 of the Existing Credit
Agreement is hereby amended in clause (ii) therein by (i) deleting the reference
to “1.75%”
and
replacing it with a reference to “1.50%” and (ii) deleting the reference to
“0.75%”
and replacing it with a reference to “0.50%”.
8. The
definition of “Consolidated EBITDA” in Section 7.1 of the Existing Credit
Agreement is hereby amended by deleting the “and” immediately before clause
(iii)(f) and replacing it with a “,” and inserting the following as a new clause
(iii)(g):
“(g)
cash
restructuring charges taken by the Company in the fiscal year ended December
31,
2006 not to exceed $35,000,000 in the aggregate”
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9. The
definition of “Permitted Liens” in Section 7.1 of the Existing Credit Agreement
is hereby amended in clause (vii) therein by deleting the phrase “indebtedness
for borrowed money” and replacing it with “Indebtedness.”
10. Section
7.1 of the Existing Credit Agreement is hereby amended by adding the following
definition in the appropriate alphabetical order:
“FiberVisions
Transaction”
shall
mean collectively, the transaction involving (i) the sale of the Company’s 51%
interest in FiberVisions Delaware Corporation (formerly known as FiberVisions,
L.L.C.) to SPG for approximately $125,000,000 in cash and certain other earn-out
payments to be determined, and (ii) the granting by WSP, Inc. to SPG of an
option to buy, no later than January 31, 2007, an additional 14% interest
in
FiberVisions Delaware Corporation (formerly known as FiberVisions,
L.L.C.) for
approximately $7,400,000.
“SPG”
shall
mean SPG/FV Investor LLC, an affiliate of SPG Partners, LLC, a New York-based
private equity firm.
II. MISCELLANEOUS
1. Representations
and Warranties.
Each
of
the Credit Parties represents and warrants to the Lenders and the Administrative
Agent as follows:
(i) It
has
taken all necessary action to authorize the execution, delivery and performance
of this Amendment.
(ii) This
Amendment has been duly executed and delivered by such Credit Party and
constitutes such Credit Party’s legal, valid and binding obligation, enforceable
in accordance with its terms, except as such enforceability may be limited
(x)
by general principles of equity and conflicts of laws (whether enforcement
is
sought by proceedings in equity or at law) or (y) by bankruptcy, reorganization,
insolvency, moratorium or other laws of general application relating to or
affecting the enforcement, of creditors' rights.
(iii) No
consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is
required in connection with the execution, delivery or performance by such
Credit Party of this Amendment (except for those which have been obtained
on or
prior to the Third Amendment Effective Date).
(iv) The
execution and delivery of this Amendment does not diminish or reduce its
obligations under the Credit Documents (including, without limitation, in
the
case of each Guarantor, such Guarantor’s guaranty pursuant to Section 3A of
the Existing Credit Agreement) in any manner, except as specifically set
forth
herein.
(v) Such
Credit Party has no claims, counterclaims, offsets, or defenses to the Credit
Documents and the performance of its obligations thereunder, or if such Credit
Party has any such claims, counterclaims, offsets, or defenses to the Credit
Documents or any transaction related to the Credit Documents, the same are
hereby waived, relinquished and released in consideration of the Required
Lenders’ and the Term B Lenders’ execution and delivery of this
Amendment.
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(vi) The
representations and warranties of the Credit Parties set forth in Section
1 of
the Existing Credit Agreement are true and correct in all material respects
as
of the date hereof (except those that expressly relate to an earlier date,
in
which case such representations and warranties are true and correct in all
material respects as of such earlier date) and all of the provisions of the
Credit Documents, except as amended hereby, are in full force and effect.
(vii) Subsequent
to the execution and delivery of this Amendment and after giving effect hereto,
no unwaived event has occurred and is continuing on the date hereof which
constitutes a Default or an Event of Default.
2. Release
of Liens; Release of Guarantors; Reaffirmations.
Upon
consummation of the FiberVisions Transaction, all security interests, mortgages,
liens, pledges and other encumbrances granted to the Administrative Agent,
on
behalf of the Lenders, encumbering the assets of FiberVisions
Incorporated,
FiberVisions,
L.P.,
FiberVisions Products, Inc., FiberVisions Delaware Corporation (formerly
known
as FiberVisions, L.L.C.), Athens Holdings, Inc. and Xxxxxxxxx Holdings,
Inc.
shall
automatically be deemed to be terminated and released. The Administrative
Agent
will promptly deliver to the Company, at the Company’s expense, (x) UCC releases
in the form of Exhibit A attached hereto, which releases the Company will
be
authorized to file on behalf of the Administrative Agent with the Secretary
of
State of the applicable jurisdiction of incorporation upon the consummation
of
the FiberVisions Transaction and (y) upon the Company’s request, such other
releases or termination statements, discharges of security interest or any
other
discharge or release documents as are reasonably necessary to give effect
to the
foregoing. The Company agrees to give the Administrative Agent prompt written
notice of the closing of the FiberVisions Transaction and in the event such
sale
does not occur on or before April 30, 2006, the Company shall promptly return
such UCC releases to the Administrative Agent. Furthermore, upon consummation
of
the FiberVisions Transaction, each of FiberVisions
Incorporated,
FiberVisions,
L.P., FiberVisions Products, Inc., FiberVisions Delaware Corporation (formerly
known as FiberVisions, L.L.C.), Athens Holdings, Inc. and Xxxxxxxxx Holdings,
Inc.
shall
automatically be deemed released as Guarantors.
Except
as set forth in this Article II, Section 2, each
Credit Party affirms the liens and security interests created and granted
by it
in the Credit Documents (including, but not limited to, the Security Agreement
and the Mortgages) and agrees that this Amendment shall in no manner adversely
affect or impair such liens and security interests.
3. Effect
of Amendment.
Except
as expressly modified and amended in this Amendment, all of the terms,
provisions and conditions of the Credit Documents shall remain unchanged
and in
full force and effect. The
Credit Documents and any and all other documents heretofore, now or hereafter
executed and delivered pursuant to the terms of or otherwise in connection
with
the Credit Documents are hereby amended so that any reference to the Existing
Credit Agreement shall mean a reference to the Existing Credit Agreement
as
amended hereby.
4. Conditions
Precedent.
This
Amendment shall become effective as of the date first above written (the
“Third
Amendment Effective Date”)
when,
and only when, each of the following conditions shall have been satisfied
(it
being understood that the satisfaction of one or more of the following
conditions may occur concurrently with the effectiveness of this
Amendment):
(a) Execution
of Counterparts of Amendment.
The
Administrative Agent shall have received counterparts of this Amendment,
which
collectively shall have been duly executed on behalf of the Company, each
of the
Guarantors, the Term B Lenders and the Required Lenders.
(b) Officer’s
Certificate.
The
Administrative Agent shall have received a certificate executed by a Responsible
Officer of the Company as of the Third Amendment Effective Date, in form
and
substance satisfactory to the Administrative Agent, stating that (i) each
Credit
Party is in compliance with all existing material financial obligations,
(ii)
all governmental, shareholder and third party consents and approvals, if
any,
with respect to the Credit Documents and the transactions contemplated thereby
have been obtained, (iii) no action, suit, investigation or proceeding is
pending or threatened in any court or
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before
any arbitrator or governmental instrumentality that purports to affect any
Credit Party or any transaction contemplated by the Credit Documents, if
such
action, suit, investigation or proceeding would reasonably be expected to
have a
Material Adverse Effect, and (iv) (A) no Default or Event of Default exists
and
(B) all representations and warranties contained herein and in the other
Credit
Documents are true and correct in all material respects (except those that
expressly relate to an earlier date, in which case such representations and
warranties are true and correct in all material respects as of such earlier
date).
(c) Fees
and Expenses.
The
payment
by
the Company to the Agents (or their Affiliates) of all fees and expenses
relating to this Amendment and the Existing Credit Agreement which are due
and
payable on the Third Amendment Effective Date, including, without limitation,
payment by the Company on
the
date hereof of all out-of-pocket costs and expenses of the Agents in connection
with the preparation, execution and delivery of this Amendment, including
without limitation the fees and expenses of Xxxxx & Xxx Xxxxx PLLC, special
counsel to the Agents.
5. Construction.
This
Amendment is a Credit Document executed pursuant to the Existing Credit
Agreement and shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with the terms and provisions of the
Existing Credit Agreement as amended hereby.
6. Counterparts.
This
Amendment may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
7. GOVERNING
LAW.
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
8. Binding
Effect.
This
Amendment, the Existing Credit Agreement as amended hereby and the other
Credit
Documents embody the entire agreement between the parties and supersede all
prior agreements and understandings, if any, relating to the subject matter
hereof. These Credit Documents represent the final agreement between the
parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements of the parties. Except as expressly modified and amended
in this
Amendment, all the terms, provisions and conditions of the Credit Documents
shall remain unchanged and shall continue in full force and effect.
9. Severability.
If any
provision of this Amendment is determined to be illegal, invalid or
unenforceable, such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be construed without
giving effect to the illegal, invalid or unenforceable provisions.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF,
each of
the parties hereto has caused a counterpart of this Amendment
to
be
duly executed and delivered as of the date first above written.
COMPANY: HERCULES
INCORPORATED
By:
/s/
S.
C. Shears
Name: S.
C.
Shears
Title: Vice
President and Treasurer
GUARANTORS:
AQUALON
COMPANY,
a
Delaware general partnership
EAST
BAY REALTY SERVICES, INC.,
a
Delaware corporation
HERCULES
COUNTRY CLUB, INC.,
a
Delaware corporation
HERCULES
CREDIT, INC.,
a
Delaware corporation
HERCULES
EURO HOLDINGS, LLC,
a
Delaware limited liability company
HERCULES
FINANCE COMPANY,
a
Delaware general partnership
HERCULES
FLAVOR, INC.,
a
Delaware corporation
HERCULES
HYDROCARBON HOLDINGS, INC.,
a
Delaware corporation
HERCULES
INTERNATIONAL LIMITED, LLC,
a
Delaware limited liability company
HERCULES
PAPER HOLDINGS, INC.,
a
Delaware corporation
HERCULES
SHARED SERVICES CORPORATION,
a
Delaware corporation
WSP,
INC.,
a
Delaware corporation
ATHENS
HOLDINGS, INC.,
a
Delaware corporation
XXXXXXXXX
HOLDINGS INC.,
a
Delaware corporation
FIBERVISIONS
INCORPORATED,
a
Delaware corporation
FIBERVISIONS,
L.P.,
a
Delaware limited partnership
FIBERVISIONS
PRODUCTS, INC.,
a
Georgia
corporation
FIBERVISIONS
DELAWARE CORPORATION, (formerly
known as FiberVisions, L.L.C.),
a
Delaware corporation
By: /s/
S.
C. Shears
Name: S.
C.
Shears
Title: Vice
President and Treasurer
for
each
of the foregoing Guarantors
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ADMINISTRATIVE
AGENT
|
AND
LENDER:
|
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH (formerly
known as Credit Suisse First Boston, acting through its Cayman
Islands
Branch), in its capacity as Administrative Agent, Collateral Agent
and
Lender
|
By: /s/
Xxxxx Xxxxx
Name: Xxxxx
Xxxxx
Title: Managing
Director
By: /s/
Xxxx X. Xxxxx
Name: Xxxx
X.
Xxxxx
Title: Managing
Director
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LENDERS: WACHOVIA
BANK, NATIONAL ASSOCIATION
By: /s/
C.
Xxxxxxx Xxxxxx
Name C.
Xxxxxxx Xxxxxx
Title: Managing
Director
