and
as Guarantors,
as Lead Arranger,Bookrunner and Syndication Agent,
Administrative Agent and Collateral Agent
Page | ||||
SECTION 1. DEFINITIONS AND INTERPRETATION | 2 | |||
1.1. Definitions | 2 | |||
1.2. Accounting Terms | 30 | |||
1.3. Interpretation, etc. | 30 | |||
SECTION 2. LOANS | 31 | |||
2.1. Term Loans | 31 | |||
2.2. Reserved | 31 | |||
2.3. [Reserved.] | 31 | |||
2.4. [Reserved.] | 31 | |||
2.5. Pro Rata Shares; Availability of Funds | 31 | |||
2.6. Use of Proceeds | 32 | |||
2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes | 32 | |||
2.8. Interest on Loans | 33 | |||
2.9. Conversion/Continuation | 34 | |||
2.10. Default Interest | 35 | |||
2.11. Fees; Call Protection | 35 | |||
2.12. Repayment | 35 | |||
2.13. Voluntary Prepayments | 35 | |||
2.14. Mandatory Prepayments | 36 | |||
2.15. Application of Prepayments | 38 | |||
2.16. General Provisions Regarding Payments | 38 | |||
2.17. Ratable Sharing | 40 | |||
2.18. Making or Maintaining Eurodollar Rate Loans | 40 | |||
2.19. Increased Costs; Capital Adequacy | 42 | |||
2.20. Taxes; Withholding, etc | 43 | |||
2.21. Obligation to Mitigate | 47 | |||
2.22. [Reserved.] | 47 | |||
2.23. Removal or Replacement of a Lender | 47 | |||
2.24. Incremental Facilities | 48 | |||
SECTION 3. CONDITIONS PRECEDENT | 49 | |||
3.1. Closing Date | 49 | |||
3.2. Conditions to Each Credit Extension | 52 | |||
SECTION 4. REPRESENTATIONS AND WARRANTIES | 53 | |||
4.1. Organization; Requisite Power and Authority; Qualification | 53 | |||
4.2. Equity Interests and Ownership | 53 | |||
4.3. Due Authorization | 53 | |||
4.4. No Conflict | 54 | |||
4.5. Governmental Consents | 54 | |||
4.6. Binding Obligation | 54 |
ii
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4.7. Historical Financial Statements | 54 | |||
4.8. Projections | 55 | |||
4.9. No Material Adverse Change | 55 | |||
4.10. Adverse Proceedings, etc | 55 | |||
4.11. Payment of Taxes | 55 | |||
4.12. Properties | 55 | |||
4.13. Environmental Matters | 56 | |||
4.14. No Defaults | 56 | |||
4.15. Material Contracts | 57 | |||
4.16. Governmental Regulation | 57 | |||
4.17. Margin Stock | 57 | |||
4.18. Employee Matters | 57 | |||
4.19. Employee Benefit Plans | 57 | |||
4.20. Solvency | 59 | |||
4.21. Compliance with Statutes, etc | 59 | |||
4.22. Disclosure | 59 | |||
4.23. Patriot Act | 59 | |||
SECTION 5. AFFIRMATIVE COVENANTS | 60 | |||
5.1. Financial Statements and Other Reports | 60 | |||
5.2. Existence | 63 | |||
5.3. Payment of Taxes and Claims | 64 | |||
5.4. Maintenance of Properties | 64 | |||
5.5. Insurance | 64 | |||
5.6. Books and Records; Inspections | 65 | |||
5.7. Lenders Meetings | 65 | |||
5.8. Compliance with Laws | 65 | |||
5.9. Environmental | 65 | |||
5.10. Subsidiaries | 66 | |||
5.11. Additional Material Real Estate Assets | 67 | |||
5.12. Interest Rate Protection | 69 | |||
5.13. Further Assurances | 69 | |||
5.14. Miscellaneous Covenants | 69 | |||
5.15. Certain Post-Closing Obligations | 70 | |||
SECTION 6. NEGATIVE COVENANTS | 70 | |||
6.1. Indebtedness | 70 | |||
6.2. Liens | 72 | |||
6.3. No Further Negative Pledges | 74 | |||
6.4. Restricted Junior Payments | 74 | |||
6.5. Restrictions on Subsidiary Distributions | 75 | |||
6.6. Investments | 75 | |||
6.7. Financial Covenant | 77 | |||
6.8. Fundamental Changes; Disposition of Assets; Acquisitions | 78 | |||
6.9. Disposal of Subsidiary Interests | 79 | |||
6.10. Sales and Lease-Backs | 80 |
iii
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6.11. Transactions with Shareholders and Affiliates | 80 | |||
6.12. Conduct of Business | 80 | |||
6.13. Permitted Activities of Holding Companies | 80 | |||
6.14. Amendments or Waivers of Organizational Documents and Certain Related Agreements | 81 | |||
6.15. Amendments or Waivers of with respect to First Lien Credit Agreement | 81 | |||
6.16. Fiscal Year | 81 | |||
SECTION 7. GUARANTY | 81 | |||
7.1. Guaranty of the Obligations | 81 | |||
7.2. Contribution by Guarantors | 81 | |||
7.3. Payment by Guarantors | 82 | |||
7.4. Liability of Guarantors Absolute | 82 | |||
7.5. Waivers by Guarantors | 84 | |||
7.6. Guarantors’ Rights of Subrogation, Contribution, etc | 85 | |||
7.7. Subordination of Other Obligations | 86 | |||
7.8. Continuing Guaranty | 86 | |||
7.9. Authority of Guarantors or Borrower | 86 | |||
7.10. Financial Condition of Borrower | 86 | |||
7.11. Bankruptcy, etc. | 86 | |||
7.12. Discharge of Guaranty Upon Sale of Guarantor | 87 | |||
SECTION 8. EVENTS OF DEFAULT | 87 | |||
8.1. Events of Default | 87 | |||
SECTION 9. AGENTS | 90 | |||
9.1. Appointment of Agents | 90 | |||
9.2. Powers and Duties | 91 | |||
9.3. General Immunity | 91 | |||
9.4. Agents Entitled to Act as Lender | 93 | |||
9.5. Lenders’ Representations, Warranties and Acknowledgment | 93 | |||
9.6. Right to Indemnity | 93 | |||
9.7. Successor Administrative Agent and Collateral Agent | 94 | |||
9.8. Collateral Documents and Guaranty | 95 | |||
9.9. Withholding Tax | 96 | |||
SECTION 10. MISCELLANEOUS | 96 | |||
10.1. Notices | 96 | |||
10.2. Expenses | 97 | |||
10.3. Indemnity | 98 | |||
10.4. Set-Off | 99 | |||
10.5. Amendments and Waivers | 99 | |||
10.6. Successors and Assigns; Participations | 100 | |||
10.7. Independence of Covenants | 104 | |||
10.8. Survival of Representations, Warranties and Agreements | 104 |
iv
Page | ||||
10.9. No Waiver; Remedies Cumulative | 104 | |||
10.10. Marshalling; Payments Set Aside | 104 | |||
10.11. Severability | 104 | |||
10.12. Obligations Several; Independent Nature of Lenders’ Rights | 105 | |||
10.13. Headings | 105 | |||
10.14. APPLICABLE LAW | 105 | |||
10.15. CONSENT TO JURISDICTION | 105 | |||
10.16. WAIVER OF JURY TRIAL | 105 | |||
10.17. Confidentiality | 106 | |||
10.18. Usury Savings Clause | 107 | |||
10.19. Counterparts | 107 | |||
10.20. Effectiveness | 108 | |||
10.21. Patriot Act | 108 | |||
10.22. Electronic Execution of Assignments | 108 | |||
10.23. [Reserved] | 108 | |||
10.24. Release on Payment in Full | 108 |
v
APPENDICES: | A | Commitments | ||||
B | Notice Addresses | |||||
SCHEDULES: | 4.1 | Jurisdictions of Organization and Qualification | ||||
4.2 | Equity Interests and Ownership | |||||
4.12 | Real Estate Assets | |||||
4.15 | Material Contracts | |||||
4.19 | Employee Benefit Plans | |||||
5.11 | Mortgaged Properties | |||||
6.1 | Certain Indebtedness | |||||
6.2 | Certain Liens | |||||
6.5 | Certain Restrictions on Subsidiary Distributions | |||||
6.6 | Certain Investments | |||||
6.11 | Certain Affiliate Transactions | |||||
EXHIBITS: | A-1 | Funding Notice | ||||
A-2 | Conversion/Continuation Notice | |||||
B | Note | |||||
C | Compliance Certificate | |||||
D | Assignment Agreement | |||||
E | Certificate Re Non-bank Status | |||||
F-1 | Closing Date Certificate | |||||
F-2 | Solvency Certificate | |||||
G | Counterpart Agreement | |||||
H | Landlord Personal Property Collateral Access Agreement | |||||
I | Intercompany Note | |||||
J | Joinder Agreement | |||||
K | Intercreditor Agreement |
vi
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Fiscal Quarter | Leverage Ratio | |
September 30, 2007 | 7.00:1.00 | |
December 31, 2007 | 6.75:1.00 | |
March 31, 2008 | 6.50:1.00 | |
June 30, 2008 | 6.50:1.00 | |
September 30, 2008 | 6.25:1.00 | |
December 31, 2008 | 6.25:1.00 | |
March 31, 2009 | 5.75:1.00 | |
June 30, 2009 | 5.75:1.00 | |
September 30, 2009 | 5.75:1.00 | |
December 31, 2009 | 5.75:1.00 | |
March 31, 2010 to December 31, 2010 | 4.75:1.00 | |
March 31, 2011 and thereafter | 4.75:1.00 |
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THE BORROWER: AZ CHEM US INC. | ||||
By: | /s/ Gianpiero Lenza | |||
Name: | ||||
Title: | ||||
THE GUARANTORS: AZ CHEM US HOLDINGS INC. | ||||
By: | /s/ Gianpiero Lenza | |||
Name: | ||||
Title: | ||||
ARIZONA CHEMICAL COMPANY | ||||
By: | ||||
Name: | ||||
Title: | ||||
ARIZONA ARBORIS, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
THE BORROWER: AZ CHEM US INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
THE GUARANTORS: AZ CHEM US HOLDINGS INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
ARIZONA CHEMICAL COMPANY | ||||
By: | /s/ GERALD C. MARTERER | |||
Name: | GERALD C. MARTERER | |||
Title: | PRESIDENT | |||
ARIZONA ARBORIS, INC. | ||||
By: | /s/ GERALD C. MARTERER | |||
Name: | GERALD C. MARTERER | |||
Title: | PRESIDENT | |||
GOLDMAN SACHS CREDIT PARTNERS L.P., as Syndication Agent and a Lender | ||||
By: | /s/ [illegible] | |||
Authorized Signatory | ||||
CAPITALSOURCE FINANCE LLC, as Administrative Agent and Collateral Agent | ||||
By: | /s/ Keith D. Reuben | |||
Name: | Keith D. Reuben | |||
Title: | President - Healthcare & Specialty Finance | |||
TO SECOND LIEN CREDIT AND GUARANTY AGREEMENT
Pro | ||||||||
Lender | Commitment | Rata Share | ||||||
Goldman Sachs Credit Partners L.P | $ | 125,000,000.00 | 100 | % | ||||
Total | $ | 125,000,000.00 | 100 | % |
APPENDIX A-1
TO SECOND LIEN CREDIT AND GUARANTY AGREEMENT
AZ CHEM US HOLDINGS INC.
ARIZONA CHEMICAL COMPANY
ARIZONA ARBORIS, INC.
5 Prince Gate
3rd Floor
Knightsbridge
London SW7 1QJ
Attention: Gianpiero Lenza
Facsimile: +44 207 761 1111
630 Fifth Avenue
27th Floor
New York, NY 10111
Attention: Andrew Oliver
Facsimile: (212) 218-6789
Building 100
4600 Touchton Road E., Suite 1500
Jacksonville, FL 32246
Attention: Charles E. Nelson/Glenda Haynes
Facsimile: (904) 928-8771
B-1
As Lender:
c/o Goldman, Sachs & Co.
30 Hudson Street, 17th Floor
Jersey City, NJ 07302
Attention: Pedro Ramirez and Andrew Caditz
Telecopier: (212) 428-1243
Email and for delivery of final financial statements for posting: gsd.link@gs.com
1 New York Plaza
New York, New York 10004
Attention: Elizabeth Fischer and Rob Schatzman
Telecopier: (212) 902-3000
B-2
as Administrative Agent, Collateral Agent,
4445 Willard Avenue, 12th Floor
Chevy Chase, MD 20815
Attention: Special Investments Group, Portfolio Manager
Telephone: 301-841-2700
Fax: 301-841-2340
B-3
Entity | Jurisdiction of Organization | Qualification | ||
AZ Chem US Holdings Inc. | Delaware | N/A | ||
AZ Chem US Inc. | Delaware | N/A | ||
Arizona Chemical Company | Delaware | Florida, Georgia, Louisiana, Massachusetts, New Jersey, Ohio | ||
Arizona Arboris, Inc. | Delaware | Georgia |
1
Party | Direct Subsidiary | Percentage of Share Owned | ||
AZ Chem US Holdings Inc. | AZ Chem US Inc. | 100% | ||
AZ Chem US Inc. | Arizona Chemical Company | 100% | ||
Arizona Chemical Company | Arizona Chemical Company, S. de R.L. De C.V. | 99.67% of value of Class I 100% of value of Class II | ||
Arizona Chemical Asia Limited - - Hong Kong | 100% | |||
Arizona Arboris, Inc. | 100% | |||
Arizona Arboris, Inc | Arboris, LLC | 10% | ||
Arizona Chemical Asia Limited - - Hong Kong | Arizona Chemical Asia, Ltd - Singapore | 100% |
2
1. | Arizona Chemical Company (“ACC”) — 8.367 acre parcel of land, together with the improvements thereon, in the City of Savannah, Chatham County, Georgia. There is a Master Ground Lease, dated as of July 30, 2002, between ACC and Arizona Arboris, Inc. covering a portion of the parcel owned by ACC. The premises covered by the Master Ground Lease are the subject of a Ground Lease, dated as of July 30, 2002, between Arizona Arboris, Inc. and Arboris, LLC. | |
2. | ACC — two parcels of land in the City of Savannah, Chatham County, Georgia. | |
3. | ACC — four parcels of land in the City of Port St. Joe, Gulf County, Florida. | |
4. | ACC — twenty three parcels of land in Bay County, Florida. | |
5. | ACC — a 7.03 acre parcel, a 26.9 acre parcel, a 2.319 acre parcel and a 0.8016 acre parcel, each with the improvements thereon, in the City of Valdosta, Lowndes County, Georgia. | |
6. | ACC — two parcels of land in the City of Dover, Tuscarawas County, Ohio. | |
7. | ACC — three parcels of land, together with the improvements thereon, in the Township of Goshen, Tuscarawas County, Ohio. | |
8. | ACC — a 19.77 acre parcel of land, together with the improvements thereon, in the City of Pensacola, Escambia County, Florida. | |
9. | ACC — the acidulation plant located on the Leased Premises in Savannah, Georgia. |
3
10. | ACC — In connection with the sale of ACC, prior to Closing, International Paper will be transferring to ACC (i) an approximately 12 acre parcel of land in the City of Savannah, Chatham County, Georgia and (ii) a 2.49 acre parcel of land in the City of Savannah, Chatham County, Georgia. |
1. | Office Lease Agreement between Gran Central Corp. and ACC, dated July 7, 1999, and Second Amendment thereto, dated June 5, 2000, and Third Amendment thereto, dated August 28, 2000, and Fourth Amendment thereto, dated March 3, 2004, covering space at 4600 Touchton Road East, Jacksonville, Florida. See also that certain Memorandum of Lease Commencement and Amendment Agreement, dated as of November 15, 2000, between Flagler Development Company. (fka Gran Central Corp.). | |
2. | Lease Agreement between Jacksonville Concourse, Ltd. and Union Camp Corp., covering space at 5220 Belfort Road, Jacksonville, Florida, dated March 6, 1998. On or about May 1, 1999, Union Camp Corp. was merged into IP and the aforesaid Lease Agreement was assigned by IP to ACC. By that certain Sublease, dated July 20, 2000, ACC subleased the premises covered by the aforesaid Lease Agreement to Lumbermens Mutual Casualty Company. By that certain Assignment and Assumption of Lease, dated June, 2002, Lumbermens Mutual Casualty Company assigned the aforesaid Sublease to Trinity Universal Insurance Company. | |
3. | Office Service Agreement between Brickell Avenue d/b/a/ VANTAS and ACC covering space at 1221 Brickell Avenue, Miami, Florida, dated October 13, 1999. | |
4. | Lease between Reichhold Chemicals, Inc. and ACC covering 31.51 acres of land, together with the improvements thereon, in the City of Pensacola, Escambia County, Florida, dated as of September 19, 1989. | |
5. | Marianna Warehouse Services Agreement between ACC and WJW Associates, Ltd., dated December 1, 2005, and Addendum 2 thereto, dated April 26, 2006, and Addendum 3 thereto, dated October 5, 2006. | |
6. | Lease Agreement, dated March 23, 1979, between SWF Gulf Coast, Inc. and ACC for certain parcels of land in Panama City, F1. |
4
1. | Reference Rebate Agreement within the 2006 Supply & Rebate Agreement between ACC and National Starch and Chemical Company (Buyer), dated July 17, 2006. | |
2. | Supply Agreement between ACC and Elmis Paint Corp. (“Buyer”), dated February 16, 2006. | |
3. | Americas Sales Contract and Rebate Agreement between ACC and Bostik Inc., (“Buyer”), dated June 8, 2005. | |
4. | Supply Contract between ACC and Bostik Inc. (“Buyer”), dated September 10, 2005. | |
5. | Quad Graphics Rebate Agreement between ACC and Chemical Research/Technology, dated January 18, 2006. | |
6. | Global Tackifier Resin Supply Contract & Rebate Agreement between ACC and H. B. Fuller Company (“Buyer”), dated May 15, 2005. | |
7. | Hot Melt Polyamides (HMPA) Manufacturing Agreement between ACC and H. B. Fuller (based on intellectual property obtained from H. B. Fuller by ACC for purposes of “toll” manufacture originally), dated May 2, 2005. |
5
6
City | Owner | Description | Location | State/Country | ||||
Panama City | Arizona Chemical | Panama City Plant | South End of Everett Street | FL | ||||
Dover | Arizona Chemical | Dover Plant | 875 Harger Street | OH | ||||
Savannah | Arizona Chemical | Savannah Plant | West Lathrop Avenue | GA |
7
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SECOND LIEN CREDIT AND GUARANTY AGREEMENT
Loans: | ||||
X | Base Rate Loans: | $[125,000,000] | ||
o | Eurodollar Rate Loans, with an initial Interest Period of month(s): | |||
$[ , , ] |
Date: February 28, 2007 | AZ CHEM US INC. | |||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT A-1-1
SECOND LIEN CREDIT AND GUARANTY AGREEMENT
$[ , , ] | Eurodollar Rate Loans to be continued with Interest Period of [ ] month(s) | |
$[ , , ] | Base Rate Loans to be converted to Eurodollar Rate Loans with Interest Period of [ ] month(s) | |
$[ , , ] | Eurodollar Rate Loans to be converted to Base Rate Loans |
Date:[mm/dd/yy] | AZ CHEM US INC. | |||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT A-2-1
SECOND LIEN CREDIT AND GUARANTY AGREEMENT
[2][mm/dd/yy] | New York, New York |
[1] | Lender’s Second Lien Term Loan Commitment | |
[2] | Closing Date |
EXHIBIT B-1
EXHIBIT B-2
AZ CHEM US INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT B-3
SECOND LIEN CREDIT AND GUARANTY AGREEMENT
AZ CHEM US HOLDINGS INC. | ||||
By: | ||||
Name: | ||||
Title: | Chief Financial Officer | |||
EXHIBIT C-1
COMPLIANCE CERTIFICATE
1. Consolidated Adjusted EBITDA: (i) -(ii) = | ||||||||||
(i) | (a | ) | Consolidated Net Income: | $[ , , ] | ||||||
(b | ) | Consolidated Interest Expense: | $[ , , ] | |||||||
(c | ) | provisions for taxes based on income: | $[ , , ] | |||||||
(d | ) | total depreciation expense: | $[ , , ] | |||||||
(e | ) | total amortization expense: | $[ , , ] | |||||||
(f | ) | Transaction Costs incurred and paid in the periodl: | $[ , , ] | |||||||
(g | ) | Management Fees paid or accruing in such period2: | $[ , , ] | |||||||
(h | ) | Cash severance payments in connection with plant closures3 related to the Acquisition: | $[ , , ] | |||||||
(i | ) | Cash stand alone costs incurred prior to the date that is eighteen months after the Closing Date4: | $[ , , ] | |||||||
(j | ) | Cash expenses related to third party advisors for services provided regarding acquisitions or divestitures permitted by the Credit Agreement: | $[ , , ] | |||||||
(k | ) | Cash financing charges5: | $[ , , ] | |||||||
(1 | ) | unusual and non-recurring Cash charges: | $[ , , ] | |||||||
(m | ) | Cash expenses6: | $[ , , ] |
1 | To the extent expensed and in an aggregate amount not to exceed $22,000,000. | |
2 | To the extent not added back in a prior period and in amount not to exceed $2,000,000 per Fiscal Year. | |
3 | Including partial plant closures. | |
4 | Associated with the transition of Holdings and its Subsidiaries to a stand alone basis including fees paid to the Seller for transition services, fees paid to third parties for one time transition and migration services, and other expenses which are one time in nature and specifically related to readying the business for stand alone operations in an aggregate amount not to exceed $10,000,000. | |
5 | Including fees, expenses, underwriting discounts, prepayment premiums, including amounts paid under the Credit Agreement or in connection with the incurrence of any other Indebtedness permitted by the Credit Agreement. | |
6 | Excluding severance payments and in connection with closures and consolidation of plants (including partial plant closures) in an aggregate amount not to exceed $10,000,000 per Fiscal Year. |
Exhibit C-2
(n) | one-time third party professional costs7: | $[ , , ] | ||||||
(o) | other non-Cash charges reducing Consolidated Net Income8: | $[ , , ] | ||||||
(ii) | other non-Cash gains increasing Consolidated Net Income9: | $[ , , ] | ||||||
2.Consolidated Capital Expenditures: | $[ , , ] | |||||||
3.Consolidated Interest Expense: | $[ , , ] | |||||||
4.Consolidated Current Assets: | $[ , , ] | |||||||
5.Consolidated Current Liabilities: | $[ , , ] | |||||||
6.Consolidated Excess Cash Flow:(i) -(ii) = | $[ , , ] | |||||||
(i) | (a) | Consolidated Adjusted EBITDA: | $[ , , ] | |||||
(b) | Consolidated Working Capital Adjustment: | $[ , , ] | ||||||
(ii) | (a) | scheduled repayments of Indebtedness for borrowed money10: | $[ , , ] | |||||
(b) | Consolidated Capital Expenditures11: | $[ , , ] | ||||||
(c) | Consolidated Interest Expense: | $[ , , ] | ||||||
(d) | provisions for current taxes based on income of Holdings and its Subsidiaries and payable in cash with respect to such period: | $[ , , ] | ||||||
7.Consolidated Interest Expense: | $[ , , ] | |||||||
8.Consolidated Net Income:(i) -(ii) = | $[ , , ] | |||||||
(i) | the net income (or loss) of Holdings and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP: | $[ , , ] | ||||||
(ii) | (a) | the income (or loss) of any Person | $[ , , ] |
7 | Paid in Cash in connection with plant efficiency projects in an aggregate amount not to exceed $6,000,000. | |
8 | Excluding any such non-Cash charge to the extent that it represents an accrual or reserve for potential Cash items in any future period or amortization of a prepaid Cash item that was paid in a prior period. | |
9 | Excluding any such non-Cash gain to the extent it represents the reversal of an accrual or reserve for potential Cash items in any prior period. | |
10 | Excluding repayments of Revolving Loans or Swing Line Loans (each, as defined in the First Lien Credit Agreement) except to the extent the Revolving Commitments (as defined in the First Lien Credit Agreement) are permanently reduced in connection with such repayments. | |
11 | Net of any proceeds of (y) any related financings with respect to such expenditures and (z) any sales of assets used to finance such expenditures. |
Exhibit C-3
(other than a Subsidiary of Holdings) in which any other Person | ||||||||
(other than Holdings or any of its Subsidiaries) has a joint interest, | ||||||||
except to the extent of the amount of dividends or other distributions | ||||||||
actually paid to Holdings or any of its Subsidiaries by such Person during | ||||||||
such period: | $[ , , ] | |||||||
(b) | the income (or loss) of any Person accrued prior to the date it becomes | |||||||
a Subsidiary of Holdings or is merged into or consolidated | ||||||||
with Holdings or any of its Subsidiaries or that Person's assets are | ||||||||
acquired by Holdings or any of its Subsidiaries: | $[ , , ] | |||||||
(c) | the income of any Subsidiary of Holdings to the extent that the declaration | |||||||
or payment of dividends or similar distributions by that Subsidiary of that | ||||||||
income is not at the time permitted by operation of the terms of its charter | ||||||||
or any agreement, instrument, judgment, decree, order, statute, rule or | ||||||||
governmental regulation applicable to that Subsidiary: | $[ , , ] | |||||||
(d) | any after-tax gains or losses attributable to Asset Sales or returned | |||||||
surplus assets of any Pension Plan: | $[ , , ] | |||||||
(e) | to the extent not included in clauses (ii)(a) through (d) above, any net | |||||||
extraordinary gains or net extraordinary losses: | $[ , , ] | |||||||
9.Consolidated Total Debt12: | $[ , , ] | |||||||
10.Consolidated Working Capital:(i) -(ii) = | $[ , , ] | |||||||
(i) | Consolidated Current Assets: | $[ , , ] | ||||||
(ii) | Consolidated Current Liabilities: | $[ , , ] | ||||||
11.Consolidated Working Capital Adjustment:(i) -(ii) = | $[ , , ] | |||||||
(i) | Consolidated Working Capital as of the beginning of such period: | $[ , , ] | ||||||
(ii) | Consolidated Working Capital as of the end of such period: | $[ , , ] | ||||||
12.Leverage Ratio:(i)/(ii) = | $[ , , ] |
12 | Minus up to $25,000,000 of unrestricted Cash and Cash Equivalents of any Credit Party. |
Exhibit C-4
(i) | Consolidated Total Debt | $[ , , ] | ||||||||
(ii) | Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ended: | $[ , , ] | ||||||||
Actual: | . :1:00 | |||||||||
Required: | . :1:00 | |||||||||
13.Consolidated Adjusted EBITDA | ||||||||||
Actual: | $[ , , ] | |||||||||
Required : | $[ , , ] |
Exhibit C-5
TO SECOND LIEN CREDIT AND GUARANTY AGREEMENT
1. | Assignor: | |||||
2. | Assignee: | [and is an Affiliate/Approved Fund1] | ||||
3. | Borrower: | AZ CHEM US INC., a Delaware corporation. | ||||
4. | Administrative Agent: | CAPITALSOURCE FINANCE LLC, as the administrative agent under the Credit Agreement. | ||||
5. | Credit Agreement: | The $125,000,000 Second Lien Credit and Guaranty Agreement dated as of February 28, 2007, among AZ CHEM US INC, the Lenders parties thereto, Administrative Agent, and the other agents parties thereto. | ||||
6. | Assigned Interest: | |||||
1 | Select as applicable |
EXHIBIT D-1
Aggregate Amount of | Amount of | |||||
Commitment/Loans | Commitment/Loans | Percentage Assigned of | ||||
Facility Assigned | for all Lenders | Assigned | Commitment/Loans2 | |||
3 | $ | $ | % | |||
$ | $ | % | ||||
$ | $ | % |
7. | Notice and Wire Instructions: |
Telecopier: |
Telecopier: |
Telecopier: |
Telecopier: |
2 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. | |
3 | Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g. “Term Loan Commitment”, etc.) |
EXHIBIT D-2
ASSIGNOR [NAME OF ASSIGNOR] | ||||
By: | ||||
Title: | ||||
ASSIGNEE [NAME OF ASSIGNEE] | ||||
By: | ||||
Title: | ||||
[Consented to and]4 Accepted: CAPITALSOURCE FINANCE LLC, as Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
[Consented to:]5 AZ CHEM US INC. | ||||
By: | ||||
Title: | ||||
4 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. | |
5 | To be added only if the consent of the Borrower is required by the terms of the Credit Agreement. |
EXHIBIT D-3
AND ASSUMPTION AGREEMENT
1. | Representations and Warranties. |
1.1 | Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with any Credit Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document delivered pursuant thereto, other than this Assignment (herein collectively the“Credit Documents”), or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Credit Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Credit Document. | ||
1.2 | Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and to purchase the Assigned Interest on the basis of which it has made such analysis and decision, and (v) if it is a Non-US Lender, attached to the Assignment is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (19) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at that time, continue to make its own credit decisions in taking or not taking action under the Credit Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender. |
2. | Payments. All payments with respect to the Assigned Interests shall be made on the Effective Date as follows: |
2.1 | From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. |
EXHIBIT D-4
3. | General Provisions. This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment. This Assignment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to conflict of laws principles thereof. |
EXHIBIT D-5
SECOND LIEN CREDIT AND GUARANTY AGREEMENT
[NAME OF LENDER] | ||||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT E-1
SECOND LIEN CREDIT AND GUARANTY AGREEMENT
EXHIBIT F-1-1
AZ CHEM US HOLDINGS INC. | ||||
By: | ||||
Name: | ||||
Title: | Chief Executive Officer | |||
By: | ||||
Name: | ||||
Title: | Chief Financial Officer | |||
EXHIBIT F-1-2
SECOND LIEN CREDIT AND GUARANTY AGREEMENT
By: | ||||
Name: | ||||
Title: | Chief Financial Officer | |||
EXHIBIT F-2-1
SECOND LIEN CREDIT AND GUARANTY AGREEMENT
EXHIBIT G-1
EXHIBIT G-2
[NAME OF SUBSIDIARY] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Telecopier |
Telecopier |
ACKNOWLEDGED AND ACCEPTED, as of the date above first written: CAPITALSOURCE FINANCE LLC, as Administrative Agent and Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT G-3
SECOND LIEN CREDIT AND GUARANTY AGREEMENT
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022
Attn: Marcus Dougherty, Esq.
EXHIBIT H-1
EXHIBIT H-2
EXHIBIT H-3
[NAME OF LANDLORD] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Telecopier: |
CAPITALSOURCE FINANCE LLC as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
4445 Willard Avenue, 12th Floor
Chevy Chase, MD 20815
Attention: Special Investments Group, Portfolio
Manager
Telephone: 301-841-2700
Fax: 301-841-2340
EXHIBIT H-4
LANDLORD PERSONAL PROPERTY COLLATERAL ACCESS AGREEMENT
EXHIBIT H-A-1
LANDLORD PERSONAL PROPERTY COLLATERAL ACCESS AGREEMENT
EXHIBIT H-B-1
SECOND LIEN CREDIT AND GUARANTY AGREEMENT
[February] [ ], 20[ ]
1 | No earlier than six months after the Maturity Date (as defined in the Second Lien Credit Agreement). |
[ ] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[ ] | ||||
By: | ||||
Name: | ||||
Title: | ||||
SECOND LIEN CREDIT AND GUARANTY AGREEMENT
1 | Applicable Margin. The Applicable Margin for each New Term Loan shall mean, as of any date of determination, [ ]% per annum |
EXHIBIT J-1
2. | Principal Payments. Borrower shall make [principal payments on the New Term Loans in installments] on the dates and in the amounts set forth below: |
(B) | ||||
(A) | Scheduled | |||
Payment | Repayment of | |||
Date | New Term Loans | |||
$ | ||||
$ | ||||
$ | ||||
$ | ||||
$ | ||||
$ | ||||
$ | ||||
$ | ||||
$ | ||||
$ | ||||
$ | ||||
$ | ||||
$ | ||||
$ | ||||
TOTAL | $ |
3. | Voluntary and Mandatory Prepayments. [Scheduled installments of principal of] the New Term Loans set forth above shall be reduced in connection with any voluntary or mandatory prepayments of the New Term Loans in accordance with Sections 2.12, 2.13 and 2.14 of the Credit Agreement respectively; and provided further, that the New Term Loans and all other amounts under the Credit Agreement with respect to the New Term Loans shall be paid in full no later than six months prior to the maturity of any Subordinated Indebtedness, and the final installment payable by Borrower in respect of the New Term Loans on such date shall be in an amount, if such amount is different from the amount specified above, sufficient to repay all amounts owing by Borrower under the Credit Agreement with respect to the New Term Loans. |
4. | Prepayment Fees. Borrower agrees to pay to each New Term Loan Lender the following prepayment fees, if any: [ ]. | |
[Insert other additional prepayment provisions with respect to New Term Loans] | ||
5. | Other Fees. Borrower agrees to pay each New Term Loan Lender its Pro Rata Share of an aggregate fee equal to [ , ] on [ , ]. |
EXHIBIT J-2
6. | Proposed Borrowing. This Agreement represents Borrower’s request to borrow New Term Loans from New Term Loan Lender as follows (the“Proposed Borrowing”): |
a. | Business Day of Proposed Borrowing: , | |||||||||
b. | Amount of Proposed Borrowing: $ | |||||||||
c. | Interest rate option: | o | a. | Base Rate Loan(s) | ||||||
o | b. | Eurodollar Rate Loans with an initial Interest Period of month(s) |
7. | [New Lenders. Each New Term Loan Lender acknowledges and agrees that upon its execution of this Agreement and the making of New Term Loans that such New Term Loan Lender shall become a “Lender” under, and for all purposes of, the Credit Agreement and the other Credit Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder.]1 | |
8. | Credit Agreement Governs. Except as set forth in this Agreement, New Term Loans shall otherwise be subject to the provisions of the Credit Agreement and the other Credit Documents. | |
9. | Borrower’s Certifications. By its execution of this Agreement, the undersigned officer, to the best of his or her knowledge, and Borrower hereby certify that: |
i. | The representations and warranties contained in the Credit Agreement and the other Credit Documents are tree and correct in all material respects on and as of the date hereof to the same extent as though made on and as of the date hereof, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date; | ||
ii. | No event has occurred and is continuing or would result from the consummation of the Proposed Borrowing contemplated hereby that would constitute a Default or an Event of Default; and | ||
iii. | Borrower has performed in all material respects all agreements and satisfied all conditions which the Credit Agreement provides shall be performed or satisfied by it on or before the date hereof. |
10. | Borrower Covenants. By its execution of this Agreement, Borrower hereby covenants that: |
i. | Borrower shall deliver or cause to be delivered the following legal opinions and documents: the legal opinion of [Sullivan & Cromwell LLP], together with all other legal opinions and other documents reasonably requested by Administrative Agent in connection with this Agreement; and | ||
iii. | Set forth on the attached Officers’ Certificate are the calculations (in reasonable detail) demonstrating compliance with the financial tests described in Section 6.8 of the Credit Agreement. |
11. | Eligible Assignee. By its execution of this Agreement, each New Term Loan Lender represents and warrants that it is an Eligible Assignee. |
1 | Insert bracketed language if the lending institution is not already a Lender. |
EXHIBIT J-3
12. | Notice. For purposes of the Credit Agreement, the initial notice address of each New Term Loan Lender shall be as set forth below its signature below. | |
13. | Non-US Lenders. For each New Term Loan Lender that is a Non-US Lender, delivered herewith to Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such New Term Loan Lender may be required to deliver to Administrative Agent pursuant to subsection 2.20(d) of the Credit Agreement. | |
14. | Recordation of the New Loans. Upon execution and delivery hereof, Administrative Agent will record the New Term Loans made by New Term Loan Lenders in the Register. | |
15. | Amendment, Modification and Waiver. This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto. | |
16. | Entire Agreement. This Agreement, the Credit Agreement and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof. | |
17. | GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. | |
18. | Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable. | |
19. | Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. |
EXHIBIT J-4
[NAME OF LENDER] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Notice Address: Attention: Telephone: Facsimile: | ||||
AZ CHEM US INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
AZ CHEM US HOLDINGS INC | ||||
By: | ||||
Name: | ||||
Title: | ||||
[NAME OF SUBSIDIARY] | ||||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT J-5
Consented to by: CAPITALSOURCE FINANCE LLC as Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT J-6
TO JOINDER AGREEMENT
Name of Lender | Type of Commitment | Amount | ||
[ ] | New Term Loan Commitment | $ | ||
Total: $ |
EXHIBIT J-7
SECOND LIEN CREDIT AND GUARANTY AGREEMENT
EXHIBIT K-1
EXHIBIT K-2
EXHIBIT K-3
EXHIBIT K-4
EXHIBIT K-5
EXHIBIT K-6
EXHIBIT K-7
EXHIBIT K-8
EXHIBIT K-9
EXHIBIT K-10
EXHIBIT K-11
EXHIBIT K-12
EXHIBIT K-13
EXHIBIT K-14
EXHIBIT K-15
EXHIBIT K-16
EXHIBIT K-17
EXHIBIT K-18
EXHIBIT K-19
EXHIBIT K-20
EXHIBIT K-21
EXHIBIT K-22
EXHIBIT K-23
EXHIBIT K-24
EXHIBIT K-25
EXHIBIT K-26
EXHIBIT K-27
EXHIBIT K-28
EXHIBIT K-29
EXHIBIT K-30
EXHIBIT K-31
EXHIBIT K-32
EXHIBIT K-33
EXHIBIT K-34
First Lien Collateral Agent | ||||
GOLDMAN SACHS CREDIT PARTNERS L.P., as First Lien Collateral Agent, | ||||
By: | ||||
Authorized Signatory | ||||
Second Lien Collateral Agent | ||||
CAPITALSOURCE FINANCE LLC, as Second Lien Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
AZ CHEM US INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
1 New York Plaza
New York, NY 10004
Attention: Elizabeth Fischer and Rob Schatzman
Telecopier: (212) 902-3000
4445 Willard Avenue, 12th Floor
Chevy Chase, MD 20815
Attention: Special Investments Group, Portfolio Manager
Telephone: 301-841-2700
Fax: 301-841-2340
5 Prince Gate
3rd Floor
Knightsbridge
London SW7 1QJ
Attention: Gianpiero Lenza
Facsimile: +44 207 761 1111
630 Fifth Avenue
27th Floor
New York, NY 10111
Attention: Andrew Oliver
Facsimile: (212) 218-6789
Building 100
4600 Touchton Road E., Suite 1500
Jacksonville, FL 32246
Attention: Charles E. Nelson/Glenda Haynes
Facsimile: (904) 928-8771
A-1