FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.2
FOURTH
AMENDMENT
TO
AMENDED
AND RESTATED CREDIT AGREEMENT
THIS
FOURTH AMENDMENT
TO AMENDED AND RESTATED
CREDIT AGREEMENT (this
“Amendment”), dated as of July 11, 2007, 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, that certain Third
Amendment to Amended and Restated Credit Agreement dated as of March 2, 2006
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 the Required Lenders.
D. 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 Fourth Amendment Effective Date (as defined below), the Existing Credit
Agreement is hereby amended in the following respects:
1. Section
5.1(l) of the Existing Credit Agreement is hereby amended by deleting the first
parenthetical therein in its entirety and replacing it with the
following:
“(other
than a Receivables Financing
SPC, a Preferred Stock SPC or the R&D Joint Venture or as otherwise agreed
to by the Administrative Agent)”
2. Section
5.2(b)(iii) of the Existing Credit Agreement is hereby amended by (i) inserting
“or” immediately prior to the reference to clause (B), (ii) deleting “or”
immediately prior to the reference to clause (C), (iii) deleting clause (C)
in
its entirety and (iv) replacing clause (C) with the following:
“and
except (C) so long as no Default
or Event of Default then exists or would result therefrom, any other sale,
lease
or disposition of assets as long as (x) 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 and (y) the Company uses the
Net Cash Proceeds thereof to make Eligible Reinvestments or prepay the Loans
in
accordance with Section 2.6(b)(iii) hereof.”
3. Section
5.2(d)(iii) of the Existing Credit Agreement is hereby amended by deleting
the
reference to “$100,000,000” set forth in the grid contained therein and
replacing it with a reference to “$150,000,000”.
4. Section
5.2(f)(viii) of the Existing Credit Agreement is hereby amended by deleting
the
reference to “$50,000,000” set forth therein and replacing it with a reference
to “$150,000,000”.
5. Section
5.2(j)(ii) of the Existing Credit Agreement is hereby amended by deleting clause
(ii) in its entirety and replacing it with the following:
“(ii)
the Company may make cash
dividends on the Company’s common stock and/or repurchase shares of its common
stock, in an aggregate amount not to exceed $100,000,000 in any fiscal year
of
the Company”
6. Section
7 of the Existing Credit Agreement is hereby amended by inserting the following
definition in the appropriate alphabetical order:
“R&D
Joint Venture”: H2H
Innovations, LLC, a joint venture organized as a Delaware limited liability
company and created for purposes of research and development, in which the
Company owns a 51% interest.”
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7. The
Schedules to the Existing Credit Agreement are hereby amended by replacing
each
of Schedule 1.13 and Schedule 1.19 with the corresponding Schedule attached
hereto as Exhibit A and Exhibit B, respectively.
II. MISCELLANEOUS
1. Representations
and Warranties. Each of the Credit Parties represents and
warrants to the Lenders and the Administrative Agent as follows:
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(i)
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It
has taken all necessary action to authorize the execution, delivery
and
performance of this Amendment.
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(ii)
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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.
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(iii)
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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 Fourth Amendment Effective
Date).
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(iv)
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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.
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(v)
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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)
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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.
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(vii)
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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.
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2. Reaffirmations. 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 “Fourth 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 and the Required
Lenders.
(b) Fees
and Expenses. The payment by the Company to the Agents (or their
Affiliates) of (i) an amendment fee for the benefit of each Lender who delivers
to the Agent a signature page to this Amendment on or before 5:00 p.m. Eastern
time on July 10, 2007 equal to 5.0 basis points on such Lender’s Revolving
Commitment and such Lender’s portion of the outstanding principal amount of the
Term B Loan and (ii) all other fees and expenses relating to this Amendment
and
the Existing Credit Agreement which are due and payable on the Fourth 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.
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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,
a
Delaware corporation
By:
/s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx X. Xxxxxx
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Title:
Vice President and Treasurer
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GUARANTORS:
AQUALON COMPANY,
a
Delaware general
partnership
EAST
BAY REALTY SERVICES,
INC.,
a
Delaware corporation
HERCULES
COUNTRY CLUB,
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
WSP,
INC.,
a
Delaware corporation
By:
/s/ Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Authorized
Representative
for
each of the foregoing
Guarantors
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ADMINISTRATIVE
AGENT
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AND
LENDER:
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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
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By:
/s/ Xxxxxx
Xxxxxxxx
Name:
Xxxxxx Xxxxxxxx
Title:
Director
By:
/s/ Xxxxxxx
Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
Associate
LENDERS: WACHOVIA
BANK, NATIONAL ASSOCIATION
By:
/s/ C. Xxxxxxx
Xxxxxx
Name:
C.
Xxxxxxx Xxxxxx
Title:
Managing Director
____________________________________
[Name
of Institution or
Fund]
By:
Name:
Title:
