SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10-1
SECOND
AMENDMENT
TO
AMENDED
AND RESTATED CREDIT AGREEMENT
THIS
SECOND AMENDMENT
TO AMENDED AND RESTATED
CREDIT AGREEMENT (this
“Amendment”), dated as of June 29, 2005, 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, 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 and of all of the
Lenders with a Revolving Commitment (the “Revolving
Lenders”).
D. The
Required Lenders and the Revolving 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 Second Amendment Effective Date (as defined below), the Existing Credit
Agreement is hereby amended in the following respects:
1. Section
5.2(k)(ii)(B)(I)(2) of the Existing Credit Agreement is hereby amended by
deleting the reference therein to “$100,000,000” and replacing it with a
reference to “$150,000,000”.
2. The
definition of “Applicable Margin” in Section 7.1 of the Existing Credit
Agreement is hereby amended by replacing the pricing grid relating to Revolving
Loans and Revolving Commitments in clause (i) of such definition in its entirety
with the following:
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Pricing
Level
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Leverage
Ratio
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Applicable
Margin for Commitment Fees
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Revolving
Loans
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Applicable
Margin for Eurodollar Loans
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Applicable
Margin for ABR Loans
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I
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>
3.75x
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.375%
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1.50%
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0.50%
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II
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>
3.25x and < 3.75x
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.325%
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1.25%
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0.25%
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III
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<
3.25x
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.300%
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1.00%
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0.00%
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3. The
definition of “Applicable Margin” in Section 7.1 of the Existing Credit
Agreement is hereby further amended by deleting the “and” before clause (b) in
the proviso in the last paragraph of such definition and inserting the following
as a new clause (c) in such proviso:
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“(c)
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the
Applicable Margin for Revolving Loans and the Commitment Fee as of
the
Second Amendment Effective Date shall be based on Pricing Level II
of the
pricing grid set forth in clause (i) above and shall remain at such
level
until the first Rate Calculation Date subsequent to the Second Amendment
Effective Date (as defined in the Second Amendment hereto), and,
thereafter, the Pricing Level shall be determined by the then current
Leverage Ratio”
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4. The
definition of “Asset Disposition” in Section 7.1 of the Existing Credit
Agreement is hereby amended by deleting the reference to “$25,000” in clause
(ii) therein and replacing it with a reference to “$250,000”.
5. 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)(e) and replacing it with a “,” and inserting the following as a new clause
(iii)(f):
“(f)
cash restructuring charges taken
by the Company in the fiscal year ended December 31, 2005 not to exceed
$20,000,000 in the aggregate”
6. The
definition of “Indebtedness” in Section 7.1 of the Existing Credit Agreement is
hereby amended by adding the following proviso at the end of clause (vii) of
such definition:
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“;
provided
that the component
of such amount represented by contingent obligations only (i.e., rather than
actual liabilities on the balance sheet) shall be reduced Dollar for Dollar
by
the amount of unrestricted cash on the consolidated balance sheet of the Company
and its Subsidiaries,”
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 Second 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 Loan 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. Liens. 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 “Second 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 Required Lenders
and each of the Revolving Lenders.
(b) Officer’s
Certificate. The Administrative Agent shall have received a
certificate executed by a Responsible Officer of the Company as of the Second
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 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).
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(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 Second Amendment Effective
Date, including, without limitation, payment by the Company (i) 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, and (ii) of the other respective fees set forth in the engagement
letter executed by and among the Company and the Agents in connection with
this
Amendment.
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/
Xxxxx X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Chief Financial Officer
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,
L.L.C.,
a
Delaware limited liability
company
By:
/s/ Xxxxx X. Xxxxxx
Name:
Xxxxx 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/ Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
Managing Director
By: /s/
Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
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:
