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Exhibit 10-A
FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Agreement"), dated as of March 31, 2000, is entered into 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"),
BANK OF AMERICA, N.A., as Administrative Agent (the "Administrative Agent") for
and on behalf of the Lenders and BANK OF AMERICA CANADA, as Canadian
administrative agent (the "Canadian Administrative Agent"). Terms used but not
otherwise defined herein shall have the meanings provided in the Credit
Agreement described below.
RECITALS
A. The Company, the Canadian Borrower, the Subsidiary Guarantors, the
financial institutions party thereto (the "Lenders"), the Administrative Agent
and the Canadian Administrative Agent entered into that certain Credit Agreement
dated as of April 19, 1999 (the "Credit Agreement").
B. The Company has requested certain modifications to the Credit
Agreement.
C. Such modifications require the consent of the Required Lenders (as
defined in the Credit Agreement).
D. The Required Lenders have consented to the requested modifications
on the terms and conditions set forth herein and have authorized the
Administrative Agent to enter into this Amendment on their behalf to give effect
to this Amendment.
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:
1. Amendment to Subsection 2.17. Subsection 2.17 of the Credit
Agreement is hereby amended as follows:
(a) Subsection 2.17(a) is amended by adding the following new
paragraph to the end thereof:
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On the First Amendment Effective Date and in
accordance with the borrowing procedures set forth in
subsection (b) below, the Company shall convert some or all of
that portion of the Tranche A Term Loan then denominated in
Euros to Term Loans denominated in U.S. Dollars by requesting
a readvance in U.S. Dollars of such portion of the Tranche A
Term Loan and, upon receipt of such readvance, immediately
repaying to the Administrative Agent such portion of the
Tranche A Term Loan designated for conversion in Euros. The
Term Loans converted on the First Amendment Effective Date
pursuant to the preceding sentence shall continue to
constitute a portion of the Tranche A Term Loan.
(b) Subsection 2.17(b) is amended by adding the following new
paragraph to the end thereof, immediately preceding subsection 2.17(c):
The conversion of a portion of the Tranche A Term
Loan on the First Amendment Effective Date is subject to the
following procedures: The Company shall submit an appropriate
notice of borrowing, substantially in the form of Exhibit G,
to the Administrative Agent not later than 11:00 A.M.
(Charlotte, North Carolina time) on the third Business Day
prior to the First Amendment Effective Date with respect to
the portion of the Tranche A Term Loan to be redenominated in
U.S. Dollars, which notice of borrowing shall be irrevocable
and shall specify (i) that a readvance in U.S. Dollars of a
portion of the Tranche A Term Loan is requested on the First
Amendment Effective Date, (ii) the amount in Euros of such
requested readvance (the "Conversion Readvance Amount") and
(iii) the requested Interest Period(s) for the Eurodollar
Loans comprising the Term Loans made in connection with such
readvance. The Administrative Agent will notify the Tranche A
Converting Lenders of such readvance request and will, by no
later than the second Business Day prior to the First
Amendment Effective Date, notify each Tranche A Converting
Lender of the amount of U.S. Dollars to be funded by such
Tranche A Converting Lender on the First Amendment Effective
Date in order to effectuate such readvance (each such amount a
"Tranche A Conversion Amount"). The amount of U.S. Dollars to
be funded by each Tranche A Converting Lender shall be
determined based on the Administrative Agent's spot rate of
exchange two Business Days prior to the First Amendment
Effective Date. Each Tranche A Converting Lender shall make
its Tranche A Conversion Amount available to the
Administrative Agent for the account of the Company at the
office of the Administrative Agent specified in Section 9.2,
or at such other address as the Administrative Agent may
specify to the Tranche A Converting Lenders and the Company,
by 11:00 a.m. (Charlotte, North Carolina time) on the First
Amendment Effective Date, in U.S. Dollars, and in funds
immediately available to the Administrative Agent. Upon
confirmation by the Administrative Agent of its receipt of a
Tranche A Converting Lender's Tranche A Conversion Amount in
U.S. Dollars, the Administrative Agent will, on the First
Amendment Effective Date, distribute to the Company such
Lender's Tranche A Conversion Amount in U.S. Dollars. On the
First Amendment Effective Date and immediately upon its
receipt of the respective Tranche A
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Conversion Amounts referred to above, the Company shall pay to
the Administrative Agent, for the pro rata benefit of the
Tranche A Converting Lenders in Euros, the Conversion
Readvance Amount; provided, however, that if the
Administrative Agent has not made available to the Company any
Lender's Tranche A Conversion Amount in U.S. Dollars on the
First Amendment Effective Date, then the Company may withhold
from the amount otherwise payable to the Administrative Agent
pursuant to this sentence such Lender's pro rata portion of
the Conversion Readvance Amount until such time as such
Lender's Tranche A Conversion Amount has been made available
to the Company.
(c) Subsection 2.17 (d) is amended by deleting subclause (i)
thereof and replacing it in its entirety with the following:
(i) The principal amount of the Tranche A Term Loan
shall be repaid on each of the Principal Amortization Payment
Dates set forth below with a quarterly payment on each such
date equal to an amount in U.S. Dollars equal to that portion
of the Tranche A Term Loan denominated in U.S. Dollars as of
the First Amendment Effective Date (as expressed in U.S.
Dollars) multiplied by the percentage set forth below
corresponding to the relevant Principal Amortization Payment
Date:
2. Amendments to Section 7. Section 7 of the Credit Agreement is hereby
amended by adding the following new
definitions to Section 7:
"Conversion Readvance Amount" has the meaning set forth in
subsection 2.17(b).
"First Amendment Effective Date" means March 31, 2000.
"Tranche A Conversion Amount" has the meaning set forth in
subsection 2.17(b).
"Tranche A Converting Lender" means each Lender identified on
Schedule I as having a Commitment to make Term Loans redenominated in
U.S. Dollars under the Tranche A Term Loan, in its capacity as a Lender
of such Term Loans, and each Lender that purchases an assignment of
such a Commitment or such Loans in accordance with the terms of this
Agreement.
3. Amendment to Schedule I to Credit Agreement. Schedule I to the
Credit Agreement is hereby deleted in its entirety and replaced with Schedule I
as set forth in Annex I attached hereto.
4. Representations and Warranties. Each of the Credit Parties
represents and warrants to the Lenders, the Administrative Agent and the
Canadian Administrative Agent as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Agreement.
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(b) This Agreement 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.
(c) 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 Agreement.
(d) The execution and delivery of this Agreement 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.
(e) 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' execution and delivery of this Agreement.
(f) 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.
(g) Subsequent to the execution and delivery of this Agreement
and after giving effect hereto, no unwaived event has occurred and is
continuing which constitutes a Default or an Event of Default.
5. Liens. Each Credit Party affirms the liens and security interests,
if any, created and granted by it in the Credit Documents (including, but not
limited to, the Pledge Agreement) and agrees that this Agreement shall in no
manner adversely affect or impair such liens and security interests.
6. Effect of Amendment. Except as expressly modified and amended in
this Agreement, 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.
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7. Expenses. The Company agrees to pay all reasonable costs and
expenses incurred in connection with the preparation, execution and delivery of
this Agreement, including the reasonable fees and expenses of the Agent's legal
counsel.
8. Condition Precedent. The effectiveness of this Agreement is subject
to receipt by the Agent of executed counterparts (or other evidence of
execution, including facsimile signatures, satisfactory to the Agent) of this
Agreement, which collectively shall have been duly executed on behalf of each of
the Borrowers, the Subsidiary Guarantors and the Required Lenders (as evidenced
by consent letters).
9. Counterparts. This Agreement 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.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
11. ENTIRETY. THIS AGREEMENT, 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.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Credit Agreement, 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: /s/ G. MacKenzie
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Name: George MacKenzie
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Title: Executive Vice President and Chief
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Executive Officer
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CANADIAN
BORROWER: BETZDEARBORN CANADA, INC.,
an Ontario corporation
By: /s/ G. MacKenzie
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Name: George MacKenzie
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Title: Treasurer
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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
DRC, LTD.,
a Delaware corporation
BL TECHNOLOGIES, INC.,
a Delaware corporation
BLI HOLDINGS, INC.,
a Delaware corporation
By: /s/ S. C. Shears
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Name: Stuart C. Shears
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Title: Vice President and Treasurer
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ADMINISTRATIVE
AGENT: BANK OF AMERICA, N. A.,
for and on behalf of the Lenders
in its capacity as Agent
By: /s/ David Noda
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Name: David Noda
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Title: Managing Director
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CANADIAN
ADMINISTRATIVE AGENT: BANK OF AMERICA CANADA,
As Canadian Administrative Agent
By: /s/ R. J. Hall
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Name: Richard J. Hall
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Title: Vice President
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