FIRST AMENDMENT TO THE AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit 4.9
FIRST
AMENDMENT
TO
THE AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
FIRST
AMENDMENT, dated as of November 24, 2009 (the "Amendment"), to the Amended and
Restated Loan and Security Agreement dated as of November 5, 2007 (the "Loan
Agreement"), by and among (i) LSB INDUSTRIES, INC., a Delaware corporation
(the "Parent"), THERMACLIME, INC., an Oklahoma corporation formerly known as
ClimaChem, Inc. ("ThermaClime"), and each of the Subsidiaries of ThermaClime
identified on the signature pages thereof (such Subsidiaries, together with
ThermaClime, each a "Borrower", and collectively, the "Borrowers"), (ii) the
lenders identified on the signature pages thereof (each a "Lender" and
collectively the "Lenders") and (iii) XXXXX FARGO FOOTHILL, INC., a California
corporation formerly known as Foothill Capital Corporation, as the arranger and
administrative agent for the Lenders (the "Agent").
WHEREAS,
the Borrowers desire to amend certain reporting requirements in the Loan
Agreement.
NOW
THEREFORE, in consideration of the premises and other good and valuable
consideration, the parties hereto hereby agree as follows:
1. Capitalized
Terms. All capitalized terms used in this Amendment (including,
without limitation, in the recitals hereto) and not otherwise defined shall have
their respective meanings set forth in the Loan Agreement.
2. Definitions. Section
1.1 of the Loan Agreement is hereby amended by adding the following defined
terms in proper alphabetical order:
""First Amendment"
means that certain First Amendment to the Amended and Restated Loan and Security
Agreement, dated as of November 24, 2009, among the Borrowers, the Lenders and
the Agent."
""First Amendment Effective
Date" means the date that all of the conditions set forth in Section 6 of
the First Amendment shall be satisfied (or waived by the Agent in its sole
discretion)."
3. Cash
Management. Section 2.7(b) of the Loan Agreement is hereby amended
and restated in its entirety to read as follows:
"(b) On
the Closing Date, each Cash Management Bank shall establish and maintain Cash
Management Agreements with Agent and Borrowers in form and substance acceptable
to Agent, provided that such Cash Management Agreements may not be implemented
until 30 days after the Closing Date. Each such Cash Management
Agreement shall provide, among other things, that (i) all items of payment
deposited in such Cash Management Account and proceeds thereof are held by such
Cash Management Bank as agent or bailee-in-possession for Agent, (ii) the Cash
Management Bank has no rights of setoff or recoupment or any other claim against
the applicable Cash Management Account, other than for payment of its service
fees and other charges directly related to the administration of such Cash
Management Account and for returned
checks or
other items of payment, and (iii) it immediately will forward by daily sweep all
amounts in the applicable Cash Management Account to the Agent's Account; provided, that, from
and after the First Amendment Effective Date, the requirement set forth in this
clause (iii) shall not be required so long as (A) no Event of Default has
occurred and is continuing after the First Amendment Effective Date and (B)
Excess Availability is $30,000,000 or greater at all times after the First
Amendment Effective Date, and if the conditions set forth in clauses (A) and (B)
are satisfied, Agent shall direct the Cash Management Bank to forward all
amounts in the Cash Management Account to Borrowers' Account in accordance with
the wire instructions set forth on Schedule 2.7(b) hereto."
4. Reporting.
(a) The chart
in Section 6.2 of the Loan Agreement is hereby amended and restated in its
entirety to read as follows:
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"If
Excess Availability falls below $30,000,000 at any time after the First
Amendment Effective Date, Daily; otherwise such documents are not
required
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(a)
a sales journal, collection journal, and credit register since the last
such schedule and a calculation of the Borrowing Base of Borrowers on
an individual and a combined basis, and
(b)
notice of all returns, disputes, or claims.
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Monthly,
provided, that, if Excess
Availability falls below $30,000,000 at any time after the First Amendment
Effective Date, Weekly
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(c)
Inventory reports specifying each Borrower's cost and the wholesale market
value of its Inventory, with additional detail showing additions to and
deletions from the Inventory.
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Monthly (not
later than the 15th day
of
each month)
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(d)
a detailed calculation of the Borrowing Base of Borrowers, on an
individual and a combined basis, (including, in each case, detail
regarding those Accounts that are not Eligible Accounts),
(e)
a detailed aging, by total, of the Accounts, together with a
reconciliation to the detailed calculation of the Borrowing Base
previously provided to Agent, (f)
a summary aging, by vendor, of Borrowers' accounts payable and
any book overdraft, and
(g)
a calculation of Dilution for the prior month.
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Quarterly
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(h)
a detailed list of each Borrower's customers with outstanding account
balances, and
(i)
a report regarding each Borrower's accrued, but unpaid, ad valorem
taxes,
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Upon
request by Agent
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(j)
copies of invoices in connection with the Accounts, credit memos,
remittance advices, deposit slips, shipping and delivery documents in
connection with the Accounts and, for Inventory and Equipment acquired by
Borrowers, purchase orders and invoices, and
(k)
such other reports as to the Collateral, or the financial condition of
Borrowers as Agent may request."
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5. Schedule
2.7(b). The Loan Agreement is hereby amended by adding Schedule
2.7(b), as set forth in Annex I hereto.
6. Conditions
Precedent. The effectiveness of this Amendment is subject to the
fulfillment, in a manner satisfactory to the Agent, of each of the following
conditions precedent (the first date upon which all such conditions shall have
been satisfied being herein called the "First Amendment Effective
Date"):
(a) Representations
and Warranties; No Event of Default. The representations and
warranties contained herein, in Section 5 of the Loan Agreement and in each
other Loan Document and certificate or other writing delivered to the Agent or
any Lender pursuant hereto on or prior to the First Amendment Effective Date
shall be correct in all material respects on and as of the First Amendment
Effective Date as though made on and as of such date, except to the extent that
such representations and warranties (or any schedules related thereto) expressly
relate solely to an earlier date (in which case such representations and
warranties shall be true and correct in all material respects on and as of such
date); and no Default or Event of Default shall have occurred and be continuing
on the First Amendment Effective Date or would result from this Amendment
becoming effective in accordance with its terms.
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(b) Delivery
of Documents. The Agent shall have received on or before the First
Amendment Effective Date the following, each in form and substance satisfactory
to the Agent and, unless indicated otherwise, dated the First Amendment
Effective Date:
(i) counterparts
of this Amendment duly executed by the Borrowers, the Agent and the Lenders;
and
(ii) such
other agreements, instruments, approvals, opinions and other documents as the
Agent may reasonably request from the Borrowers.
7. Representations
and Warranties. Each Borrower hereby represents and warrants to the
Agent and the Lenders as follows:
(a) Representations
and Warranties; No Event of Default. The representations and
warranties herein, in Section 5 of the Loan Agreement and in each other Loan
Document and certificate or other writing delivered to the Agent or any Lender
pursuant hereto on or prior to the First Amendment Effective Date are correct in
all material respects on and as of the First Amendment Effective Date as though
made on and as of such date, except to the extent that such representations and
warranties (or any schedules related thereto) expressly relate solely to an
earlier date (in which case such representations and warranties are true and
correct in all material respects on and as of such date); and no Default or
Event of Default has occurred and is continuing on the First Amendment Effective
Date or would result from this Amendment becoming effective in accordance with
its terms.
(b) Organization,
Good Standing, Etc. Each Borrower (i) is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its organization, (ii) has all requisite power and authority to execute,
deliver and perform this Amendment and the other Loan Documents to which it is a
party being executed in connection with this Amendment, and to perform the Loan
Agreement, as amended hereby, and (iii) is duly qualified to do business
and is in good standing in each jurisdiction in which the character of the
properties owned or leased by it or in which the transaction of its business
makes such qualification necessary except where the failure to be so qualified
reasonably could not be expected to have a Material Adverse Change.
(c) Authorization,
Etc. The execution, delivery and performance by each Borrower of this
Amendment, and the performance by each Borrower of the Loan Agreement, as
amended hereby, (i) have been duly authorized by all necessary action on
the part of such Borrower, (ii) do not and will not contravene such
Borrower's charter or by-laws, any applicable law or any material contractual
restriction binding on or otherwise affecting it or any of its properties,
(iii) do not and will not result in or require the creation of any Lien
(other than pursuant to any Loan Document) upon or with respect to any of its
properties, and (iv) do not and will not result in any suspension,
revocation, impairment, forfeiture or nonrenewal of any permit, license,
authorization or approval applicable to its operations or any of its
properties.
8. Miscellaneous.
(a) Continued
Effectiveness of the Loan Agreement. Except as otherwise expressly
provided herein, the Loan Agreement and the other Loan Documents are, and shall
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continue
to be, in full force and effect and are hereby ratified and confirmed in all
respects, except that on and after the First Amendment Effective Date (i) all
references in the Loan Agreement to "this Agreement", "hereto", "hereof",
"hereunder" or words of like import referring to the Loan Agreement shall mean
the Loan Agreement as amended by this Amendment, and (ii) all references in
the other Loan Documents to which any Borrower is a party to the "Loan
Agreement", "thereto", "thereof", "thereunder" or words of like import referring
to the Loan Agreement shall mean the Loan Agreement as amended by this
Amendment. Except as expressly provided herein, the execution,
delivery and effectiveness of this Amendment shall not operate as an amendment
of any right, power or remedy of the Lender under the Loan Agreement or any
other Loan Document, nor constitute an amendment of any provision of the Loan
Agreement or any other Loan Document.
(b) Counterparts. This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement.
(c) Headings. Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose.
(d) Governing
Law. This Amendment shall be governed by, and construed in accordance
with, the law of the State of New York.
(e) Costs and
Expenses. The Borrowers jointly and severally agree to pay on demand
all reasonable fees, costs and expenses of the Agent and each Lender in
connection with the preparation, execution and delivery of this Amendment and
the other related agreements, instruments and documents.
(f) Amendment
as Loan Document. Each Borrower hereby acknowledges and agrees that
this Amendment constitutes a "Loan Document" under the Loan
Agreement. Accordingly, it shall be an Event of Default under the
Loan Agreement (i) if any representation or warranty made by a Borrower under or
in connection with this Amendment shall have been untrue, false or misleading in
any material respect when made or (ii) if Borrowers fail to perform, keep, or
observe any term, provision, condition, covenant, or agreement contained in this
Amendment.
(g) Waiver of
Jury Trial. EACH BORROWER, THE AGENT AND THE LENDERS HEREBY
IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS AMENDMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
[THE
REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered as of the date first above written.
Parent:
LSB
INDUSTRIES, INC.,
an
Delaware corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
Borrowers:
THERMACLIME,
INC.,
an
Oklahoma corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
CHEROKEE NITROGEN COMPANY,
an
Oklahoma corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
CLIMATE
MASTER, INC.,
a
Delaware corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
CLIMATECRAFT,
INC.,
an
Oklahoma corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
CLIMACOOL,
CORP.,
an
Oklahoma corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
INTERNATIONAL ENVIRONMENTAL
CORPORATION,
an
Oklahoma corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
THERMACLIME
TECHNOLOGIES, INC.,
an
Oklahoma corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
KOAX CORP.,
an
Oklahoma corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
LSB
CHEMICAL CORP.,
an
Oklahoma corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
XPEDIAIR, INC.,
an
Oklahoma corporation.
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
EL
DORADO CHEMICAL COMPANY,
an
Oklahoma corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
CHEMEX I CORP.,
an
Oklahoma corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
TRISON
CONSTRUCTION, INC.,
an
Oklahoma corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
CHEMEX
II CORP.,
an
Oklahoma corporation
By: /s/
Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Vice President
Agent and
Lender:
XXXXX FARGO FOOTHILL, INC., a
California
corporation, as Agent and as a Lender
By: /s/
Name:
Title:
Lender:
WACHOVIA BANK, NATIONAL ASSOCIATION
(as
successor in interest to Congress Financial Corporation
(Southwest))
By: /s/
Name:
Title:
ANNEX I
Schedule
2.7(b)
ABA
000000000
Account:
BNF GLA111569 WCF
Account
Name: Xxxxx Fargo Securities
FFC:
12797791, Thermaclime Inc
