AMENDMENT NO. 3 TO CREDIT AND GUARANTY AGREEMENT
EXHIBIT
10.1
AMENDMENT NO. 3 TO CREDIT AND GUARANTY AGREEMENT
AMENDMENT
NO. 3 TO CREDIT AND GUARANTY AGREEMENT (this
“Amendment”), dated as of
February 16, 2006, among Kraton Polymers LLC, a Delaware limited
liability company (“Company”), each of the Guarantors listed on the signature pages hereto, the Lenders party hereto, and UBS AG,
Stamford Branch (“UBS”), as administrative agent and
collateral agent (“Agent”).
RECITALS
WHEREAS, Company, the Guarantors, the Lenders, Xxxxxxx Xxxxx Credit Partners L.P. and
UBS Securities LLC, as Lead Arrangers, and UBS, as Agent, entered into the Credit and Guaranty
Agreement dated as of December 23, 2003 (as amended pursuant to that certain Amendment No. 1 to
Credit and Guaranty Agreement dated as of March 4, 2004 and that certain Amendment No. 2 to Credit
and Guaranty Agreement dated as of October 21, 2004, and as further amended, restated supplemented
or otherwise modified from time to time, the “Credit
Agreement”);
WHEREAS,
Company failed to deliver its Financial Plan no later than 30 days after the
beginning of Company’s 2006 Fiscal Year as required by Section 5.1(h) of the Credit Agreement;
and
WHEREAS,
Company acknowledges that its failure to comply with Section 5.1(h) of the Credit
Agreement constitutes a Default and has requested that Agent and the Requisite Lenders waive such
Default;
WHEREAS, Company has also requested that it be given until March 15, 2006 to comply with
Section 5.1(h) of the Credit Agreement with respect to its 2006 Financial Plan;
WHEREAS,
Agent and the Requisite Lenders have agreed to waive the Default arising from
Company’s failure to comply with the requirements of Section 5.1(h) and have agreed to extend the
delivery date required under Section 5.1(h) until March 15, 2006, all upon the terms and subject to
the conditions as herein set forth;
WHEREAS,
Company, the Guarantors, the Requisite Lenders and Agent have agreed to amend and
waive certain provisions of the Credit Agreement, in each case, as provided herein.
NOW,
THEREFORE, in consideration of the premises made hereunder, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1.
Definitions. Unless otherwise expressly defined herein, all
capitalized terms used herein and defined in the Credit Agreement shall be used herein as so
defined.
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Section 2.
Waiver of Default under Section 5. 1(h) (Financial Plan). Agent
and the Requisite Lenders hereby waive the Default under Section 5.1(h) that occurred as a result
of Company’s failure to deliver its Financial Plan no later than 30 days after the beginning of its
2006 Fiscal Year.
Section 3. Extension of Delivery Date under Section 5.1(h). Solely with respect
to the Fiscal Year of Company that commenced on January 1, 2006, Agent and the Requisite Lenders
agree to extend the delivery date under Section 5.1(h) to March 15, 2006. Company agrees to deliver
the Financial Plan required under Section 5.1(h) no later than March 15, 2006 and acknowledges that
any failure to do so will constitute an Event of Default.
Section 4. Conditions Precedent. This Amendment shall become effective upon
satisfaction of each of the following conditions precedent:
(a) Agent shall have received all of the following, in form and substance
satisfactory to Agent:
(i) Amendment Documents. This Amendment and each other
instrument, document or certificate required by Agent, duly executed and delivered by Company, the
Guarantors, the Requisite Lenders and any other Person in connection with this Amendment;
(ii) Forecasts for Fiscal Year 2006. (i) A forecasted
consolidated
balance sheet and forecasted consolidated statements of income and cash flows of Company and its
Subsidiaries for the 2006 Fiscal Year, together with a pro forma Compliance Certificate for such
Fiscal Year and an explanation of the assumptions on which such forecasts are based and (ii)
forecasted consolidated statements of income and cash flows of Company and its Subsidiaries for
each Fiscal Quarter of such Fiscal Year; and
(iii) Additional Information. Such additional documents, instruments and
information as Agent may reasonably request to effect the transactions contemplated hereby.
(b) After giving effect to this Amendment, the representations and warranties
contained herein and in the Credit Documents shall be true and correct in all material
respects as of the date hereof as if made on the date hereof (except for those which by their terms
specifically refer to an earlier date, in which case such representations and warranties shall
have been true and correct in all material respects as of such earlier date).
(c) All corporate proceedings taken in connection with the execution and
delivery of this Amendment and all other agreements, documents and instruments executed
and/or delivered pursuant thereto, and all legal matters incident thereto, shall be
reasonably satisfactory to Agent.
(d) No Default or Event of Default shall have occurred and be continuing after
giving effect to this Amendment.
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Section 5. Representations and Warranties. Company hereby
represents and warrants to Agent and the Lenders that, as of the date hereof and
after giving effect to this Amendment, (a) all representations and warranties set
forth in the Credit Agreement and in any other Credit Document are true and correct
in all material respects as if made again on and as of such date (except those, if
any, which by their terms specifically relate only to an earlier date, in which case
such representations and warranties shall have been true and correct in all material
respects as of such earlier date), (b) no Default or Event of Default has occurred
and is continuing, and (c) the Credit Agreement (as amended by this Amendment), and
all other Credit Documents are and remain legal, valid, binding and enforceable
obligations in accordance with the terms thereof except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors’ rights generally or by equitable principles (regardless of
whether enforcement is sought in equity or at law).
Section 6. Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Credit Agreement
shall survive the execution and delivery of this Amendment, and no investigation by
Agent or the Lenders shall affect the representations and warranties or the right of
Agent and the Lenders to rely upon them. If any representation or warranty made in
this Agreement is false in any material respect as of the date made or deemed made,
then such shall constitute an Event of Default under the Credit Agreement.
Section 7. Certain Waivers. Each of Company and each Guarantor hereby
agrees that neither Agent nor any Lender shall be liable under a claim of, and hereby waives
any claim against Agent and the Lenders based on, lender liability (including, but not limited to,
liability for breach of the implied covenant of good faith and fair dealing, fraud,
negligence, conversion, misrepresentation, duress, control and interference, infliction of emotional
distress and defamation and breach of fiduciary duties) as a result of the waivers and amendments
contained in Sections 2 and 3 above and any discussions or actions taken or not taken by Agent
or the Lenders on or before the date hereof or the discussions conducted in connection
therewith, or any course of action taken by Agent or any Lender in response thereto or arising therefrom;
provided, that the foregoing waiver shall not include the waiver of any claims which
are based on the gross negligence or willful misconduct of Agent or any Lender or any of their
respective agents. This Section 7 shall survive the execution and delivery of this Amendment and the
other
Credit Documents and the termination of the Credit Agreement.
Section 8. Reference to Agreement. Each of the Credit Documents,
including the Credit Agreement, and any and all other agreements, documents or instruments now or
hereafter executed and/or delivered pursuant to the terms hereof or pursuant to the terms of the
Credit Agreement as amended hereby, are hereby amended so that any reference in such Credit
Documents to the Credit Agreement, whether direct or indirect, shall mean a reference to the
Credit Agreement as amended hereby. This Amendment shall constitute a Credit Document
under the Credit Agreement.
Section 9. Costs and Expenses. Company shall pay on demand all reasonable
costs and expenses of Agent and the Lead Arrangers (including the reasonable fees, costs and
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expenses of counsel to Agent) incurred in connection with the preparation, execution and
delivery of this Amendment.
Section 10. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section 11. Execution. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
Section 12. Limited Effect. This Amendment relates only to the specific matters
expressly covered herein, shall not be considered to be a waiver of any rights or remedies any
Lender may have under the Credit Agreement or under any other Credit Document, and shall not be
considered to create a course of dealing or to otherwise obligate in any respect any Lender to
execute similar or other amendments or grant any waivers under the same or similar or other
circumstances in the future.
Section 13. Ratification by Guarantors. Each of the Guarantors acknowledges that
its consent to this Amendment is not required, but each of the undersigned nevertheless does hereby
agree and consent to this Amendment and to the documents and agreements referred to herein. Each of
the Guarantors agrees and acknowledges that (i) notwithstanding the effectiveness of this
Amendment, such Guarantor’s Guaranty shall remain in full force and effect without modification
thereto and (ii) nothing herein shall in any way limit any of the terms or provisions of such
Guarantor’s Guaranty or any other Credit Document executed by such Guarantor (as the same may be
amended from time to time), all of which are hereby ratified, confirmed and affirmed in all
respects. Each of the Guarantors hereby agrees and acknowledges that no other agreement,
instrument, consent or document shall be required to give effect to this Section 13. Each of the
Guarantors hereby further acknowledges that Company, Agent and any Lender may from time to time
enter into any further amendments, modifications, terminations and/or waivers of any provisions of
the Credit Documents without notice to or consent from such Guarantor and without affecting the
validity or enforceability of such Guarantor’s Guaranty or giving rise to any reduction,
limitation, impairment, discharge or termination of such Guarantor’s Guaranty.
[signature pages follow]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above written.
KRATON POLYMERS LLC |
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By: | /s/ Xxxxx Xxxx | |||
Name: | Xxxxx Xxxx | |||
Title: | VP and CFO | |||
GUARANTORS: POLYMER HOLDINGS LLC ELASTOMERS HOLDINGS LLC KRATON POLYMERS U.S. LLC KRATON POLYMERS CAPITAL CORPORATION |
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By: | /s/ Xxxxxx X. Writer | |||
Name: | Xxxxxx X. Writer | |||
Title: | Vice President | |||
AGENT: UBS AG, STAMFORD BRANCH |
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By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: |
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above written.
KRATON POLYMERS LLC |
||||
By: | ||||
Name: | ||||
Title: | ||||
GUARANTORS: POLYMER HOLDINGS LLC ELASTOMERS HOLDINGS LLC KRATON POLYMERS U.S. LLC KRATON POLYMERS CAPITAL CORPORATION |
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By: | ||||
Name: | ||||
Title: | ||||
AGENT: UBS AG, STAMFORD BRANCH |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Director | |||
By: | /s/ Xxxx X. Xxxx | |||
Name: | Xxxx X. Xxxx | |||
Title: | Associate Director | |||