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Exhibit 10.29
FOURTH AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of July 17, 2001, is entered into by and among HERCULES
INCORPORATED, a Delaware corporation (the "Company"), BETZDEARBORN CANADA, INC.,
an Ontario corporation (the "Canadian Borrower"), certain subsidiaries of the
Company identified on the signature pages hereto (the "Subsidiary Guarantors"),
the several banks and other financial institutions identified on the signature
pages hereto, BANK OF AMERICA, N.A., as administrative agent (the
"Administrative Agent") and BANK OF AMERICA CANADA, as Canadian administrative
agent (the "Canadian Administrative Agent"). Except as otherwise defined in this
Amendment, terms defined in the Credit Agreement referred to below (as amended
by this Amendment) are used herein as defined therein.
RECITALS
A. The Company, the Canadian Borrower, the Subsidiary Guarantors party
thereto, the Lenders party thereto, the Administrative Agent and the Canadian
Administrative Agent entered into that certain Amended and Restated Credit
Agreement dated as of April 19, 1999 (as amended by that First Amendment to
Amended and Restated Credit Agreement dated as of March 31, 2000, as amended by
that Second Amendment to Amended and Restated Credit Agreement dated as of July
26, 2000 and as further amended by that Third Amendment to Amended and Restated
Credit Agreement dated as of November 14, 2000, and as may be further amended,
restated, modified or supplemented from time to time, the "Credit Agreement").
B. The Company has requested certain modifications to the 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:
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I. AMENDMENTS TO CREDIT AGREEMENT
Subject to the satisfaction of the conditions precedent set forth in
Section 5 in Article II hereof, from and after the Fourth Amendment Effective
Date (as defined below), the Credit Agreement in the following respects:
1. Section 5.2(d)(i) of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
(i) Leverage Ratio. It will not permit, as of the last day of any
fiscal quarter, the Leverage Ratio to exceed the ratio set forth below
for the applicable period:
Period Maximum Leverage Ratio
Closing Date through March 31, 1999 5.0 to 1.0
April 1, 1999 through September 30, 1999 4.5 to 1.0
October 1, 1999 through March 31, 2000 3.5 to 1.0
April 1, 2000 through June 30, 2000 3.75 to 1.0
July 1, 2000 through September 30, 2000 3.5 to 1.0
October 1, 2000 through June 30, 2001 4.75 to 1.0
July 1, 2001 through September 30, 2001 5.25 to 1.0
October 1, 2001 through December 31, 2001 5.00 to 1.0
January 1, 2002 through March 31, 2002 4.75 to 1.0
April 1, 2002 through June 30, 2002 4.50 to 1.0
July 1, 2002 and thereafter 4.25 to 1.0
2. Section 5.2(d)(iii) of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
(iii) Interest Coverage Ratio. It will not permit, as of the last day
of any fiscal quarter, the Interest Coverage Ratio to be less
than the ratio set forth below for the applicable period:
Minimum Interest
Period Coverage Ratio
Closing Date through September 30, 1999 2.5 to 1.0
October 1, 1999 through September 30, 2000 3.0 to 1.0
October 1, 2000 through June 30, 2001 1.75 to 1.0
July 1, 2001 through September 30, 2001 1.65 to 1.0
October 1, 2001 through December 31, 2001 1.75 to 1.0
January 1, 2002 and thereafter 2.00 to 1.0
3. The definition of "Asset Disposition" in Section 7 of the Credit
Agreement is hereby deleted in its entirety and the following
substituted therefor:
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"Asset Disposition": the disposition of any or all of the
assets (including without limitation the Capital Stock of a
Subsidiary) of the Company or any of its Subsidiaries whether by
sale, lease, transfer or otherwise (including a disposition
pursuant to any casualty or condemnation event, but excluding a
disposition pursuant to a Permitted Receivables Financing). The
term "Asset Disposition" shall not include (i) the sale of
inventory in the ordinary course of business, (ii) the sale or
disposition of machinery and equipment no longer used or useful
in the conduct of such Person's business, (iii) any Equity
Issuance by the Company, (iv) intercompany transfers from a
Credit Party or a wholly-owned Subsidiary of a Credit Party to a
Credit Party, (v) intercompany transfers from any wholly-owned
Subsidiary of a Credit Party (which Subsidiary is not itself a
Credit Party or a First Tier Foreign Subsidiary) to any
wholly-owned Subsidiary of a Credit Party; or (vi) intercompany
transfers from a First Tier Foreign Subsidiary to another First
Tier Foreign Subsidiary as long as the Company can demonstrate
pursuant to documentation reasonably satisfactory to the
Collateral Agent that the Collateral Agent's security interest in
the Pledged Stock of such First Tier Foreign Subsidiary receiving
the assets is as perfected as the Collateral Agent's security
interest in the prior First Tier Foreign Subsidiary.
4. The definition of "Consolidated Net Worth" in Section 7 of the
Credit Agreement is hereby deleted in its entirety and the
following substituted therefor:
"Consolidated Net Worth": as of the end of the most recently
ended calendar month, the sum of (i) all items that would be
included under stockholders' equity on a consolidated balance
sheet of the Company and its Consolidated Subsidiaries plus (ii)
insurance reserves. Consolidated Net Worth shall be determined in
accordance with generally accepted accounting principles
substantially the same as those used by the Company in preparing
the financial statements referred to in subsection 1.2 and on a
consolidated basis substantially the same as that used by the
Company in preparing such financial statements; provided,
however, that neither (A) foreign currency translation
adjustments under Financial Accounting Standards Board Statement
No. 52, "Foreign Currency Translation" (B) items reported in
comprehensive income and accumulated other comprehensive income
under Financial Accounting Standards Board Statement No. 130
(including but not limited to gains or losses for derivatives
designated as a hedge of exposure to variable cash flows of
forecasted transactions and derivatives designated as a hedge of
foreign currency exposure of a net investment in a foreign
operation) nor (C) items and charges related to the impairment of
goodwill in connection with the Acquisition to the extent, in the
amount and only for so long as required by generally accepted
accounting principles, shall in any case be taken into account in
calculating Consolidated Net Worth.
5. The definition of Consolidated EBITDA in Section 7 of the Credit
Agreement is hereby deleted in its entirety and the following
substituted therefor:
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"Consolidated EBITDA": for any fiscal period, (i)
Consolidated Net Income for such period, plus (ii) Consolidated
Interest Expense for such period, plus (iii) to the extent
deducted in computing such Consolidated Net Income, the sum of
(a) taxes, (b) depreciation, (c) amortization, (d) any non-cash
charges, (e) for the fiscal quarter ended June 30, 2001 through
the fiscal quarter ended June 30, 2002 only, any non-recurring
cash charges associated with the restructuring of the Company and
its Subsidiaries initiated on or after April 1, 2001 in an
aggregate amount not to exceed $50,000,000 and (f) any
extraordinary, unusual or non-recurring cash losses or cash
charges incurred in connection with (x) the Acquisition in an
amount not to exceed $170 million after taxes in the aggregate
for all such add-backs pursuant to this subclause (x) and (y) the
settlement prior to the Closing Date of certain litigation in an
amount not to exceed $63 million after taxes in the aggregate for
all such add-backs pursuant to this subclause (y), minus (iv) any
extraordinary gains and noncash gains.
II. MISCELLANEOUS
1. Representations and Warranties. Each of the Credit Parties represents
and warrants to the Lenders, the Administrative Agent and the Canadian
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 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.
(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 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,
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relinquished and released in consideration of the Required Lenders'
execution and delivery of this Amendment.
(vi) The representations and warranties of the Credit Parties set
forth in Section 1 of the Credit Agreement are true and correct as of the
date hereof (except those that expressly relate to an 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 which constitutes a Default or an Event of Default.
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 Pledge Agreement, 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 the Credit Agreement are hereby amended so that any
reference to the Credit Agreement shall mean a reference to the Credit Agreement
as amended hereby.
4. Expenses. The Company agrees to pay all reasonable costs and expenses
incurred in connection with the preparation, execution and delivery of this
Amendment, including the reasonable fees and expenses of the Administrative
Agent's legal counsel.
5. Conditions Precedent. This Amendment shall become effective on the day
(the "Fourth Amendment Effective Date") on which each of the following
conditions precedent has been satisfied:
(a) the Administrative Agent shall have received counterparts of this
Amendment, duly executed and delivered by each of the Credit Parties, the
Required Lenders and by the Administrative Agent and the Canadian
Administrative Agent.
(b) the Administrative Agent shall have received from a Responsible
Officer of the Company a certificate to the effect that as of the date
hereof and as of the Fourth Amendment Effective Date all representations
and warranties made by the Company and each other Credit Party in this
Amendment and each other Credit Document are true and correct in all
material respects;
(c) no Default or Event of Default shall have occurred and be
continuing; and
(d) each Lender party to the Credit Agreement who executes this
Amendment on or before 5:00 P.M. Eastern Standard Time on July 11, 2001
(provided this
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Amendment is approved by the Required Lenders) shall have received an
amendment fee equal to 0.10% of the sum of each Lender's Commitment
Percentage.
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 Amendment shall be governed by and construed in
accordance with the laws of the State of North Carolina.
8. ENTIRETY. THIS AMENDMENT, THE CREDIT AGREEMENT 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment, to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
THE COMPANY: HERCULES INCORPORATED,
a Delaware corporation
By:
_________________________________________
Name:
_______________________________________
Title:
_______________________________________
CANADIAN
BORROWER: BETZDEARBORN CANADA, INC.,
an Ontario corporation
By:
_________________________________________
Name:
_______________________________________
Title:
______________________________________
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OTHER SUBSIDIARY
GUARANTORS:
HERCULES CREDIT, INC.,
a Delaware corporation
HERCULES FLAVOR, INC.,
a Delaware corporation
WSP, INC.,
a Delaware corporation
AQUALON COMPANY,
a Delaware partnership
HERCULES FINANCE COMPANY,
a Delaware partnership
FIBERVISIONS, L.L.C.,
a Delaware limited liability
company
FIBERVISIONS INCORPORATED,
a Delaware corporation
FIBERVISIONS PRODUCTS, INC.,
a Georgia corporation
HERCULES INTERNATIONAL LIMITED,
a Delaware corporation
BETZDEARBORN INC.,
a Pennsylvania corporation
BETZDEARBORN EUROPE, INC.,
a Delaware corporation
D R C LTD.,
a Delaware corporation
BL TECHNOLOGIES, INC.,
a Delaware corporation
BLI HOLDINGS CORP.,
a Delaware corporation
HERCULES SHARED SERVICES CORPORATION,
a Delaware corporation
BETZDEARBORN INTERNATIONAL, INC.,
a Pennsylvania corporation
ATHENS HOLDINGS, INC.,
a Delaware corporation
BETZDEARBORN CHINA, LTD.,
a Delaware corporation
BL CHEMICALS INC.,
a Delaware corporation
CHEMICAL TECHNOLOGIES INDIA, LTD.,
a Delaware corporation
[signature pages continue]
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COVINGTON HOLDINGS, INC.,
a Delaware corporation
EAST BAY REALTY SERVICES, INC.,
a Delaware corporation
FIBERVISIONS, L.P.,
a Delaware partnership
HERCULES CHEMICAL CORPORATION,
a Delaware corporation
HERCULES COUNTRY CLUB, INC.,
a Delaware corporation
HERCULES EURO HOLDINGS, LLC,
a Delaware limited liability
company
HERCULES INTERNATIONAL LIMITED, L.L.C.,
a Delaware limited liability
company
HERCULES INVESTMENTS, L.L.C.,
a Delaware limited liability
company
HISPAN CORPORATION,
a Delaware corporation
By:
_________________________________
Name:
_______________________________
Title:
______________________________
for each of the foregoing
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ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A.,
in its capacity as Administrative Agent and
as a Lender
By:_________________________________________
Name:_______________________________________
Title:______________________________________
CANADIAN BANK OF AMERICA CANADA,
ADMINISTRATIVE AGENT: as Canadian Administrative Agent
By:_________________________________________
Name:_______________________________________
Title:______________________________________
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LENDERS: ____________________________________________
[NAME OF LENDER]
By:_________________________________________
Name:_______________________________________
Title:______________________________________
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TRANCHE D
LENDER: ______________________________
By:_________________________________________
Name:_______________________________________
Title:______________________________________