UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C.
20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF
THE SECURITIES EXCHANGE ACT OF
1934
Date of
report (Date of earliest event reported): April 1, 2010
LSB INDUSTRIES, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
1-7677
|
73-1015226
|
||
|
(State
or other jurisdiction
of
incorporation)
|
(Commission
File
Number)
|
(IRS
Employer
Identification
No.)
|
||
|
16 South Pennsylvania Avenue,
Oklahoma City, Oklahoma
(Address of principal executive offices) |
73107
(Zip
Code) |
|||
Registrant's telephone number,
including area code (405) 235-4546
Not applicable
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Section
8 – Other Events
Item
8.01. Other Events
On April
1, 2010, LSB Industries, Inc. (the “Company”) completed the realignment of
certain of its direct and indirect wholly-owned entities. The
realignment is intended to, among other things, (a) align the ownership of the
subsidiaries of the Company by business group, (b) simplify the Company’s
corporate structure, (c) improve the effective management of the Company’s lines
of business, (d) facilitate the reporting responsibilities of the Company and
its businesses, and (e) optimize the corporate structure of the Company and its
subsidiaries for tax purposes. The Company’s significant
subsidiaries immediately following this realignment are as set forth in Exhibit
99.1 to this report, which is incorporated herein.
Section
9 – Financial Statements and Exhibits
Item
9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit Description
|
|
99.1
|
Revised
list of all significant
Subsidiaries of the Company, including the state of incorporation or
organization of each and the names under which such subsidiaries do
business.
|
|
|
99.2
|
Realignment
Agreement, dated March 18, 2010, between LSB Industries, Inc.,
Consolidated Industries Corp., Prime Financial Corporation, Northwest
Capital Corporation, ThermaClime, Inc., LSB Holdings, Inc., Summit Machine
Tool Inc. Corp., Summit Machine Tool Manufacturing Corp., Summit Machinery
Company, Hercules Energy Mfg. Corporation, LSB Chemical Corp., El Dorado
Chemical Company, Chemex I Corp., DSN Corporation, The Climate Control
Group, Inc., and Chemex II Corp. Certain exhibits
listed in this document have been omitted. A copy of such exhibits will be
provided to the Securities and Exchange Commission upon
request.
|
|
|
99.3
|
Consent,
Joinder and Second Amendment, dated as of April 1, 2010, by and among LSB
Industries, Inc., ThermaClime, Inc., each of the Subsidiaries of
ThermaClime identified on the signature pages thereof, the lenders
identified on the signature pages thereof, Wells Fargo Capital finance,
Inc., as the arranger and administrative agent, and Consolidated
Industries Corp.
|
|
|
99.4
|
Amendment
and Waiver to the Term Loan, dated April 1, 2010, by and among
ThermaClime, Inc., Cherokee Nitrogen Holdings, Inc., Northwest Financial
Corporation, Chemex I Corp., Chemex II Corp., Cherokee Nitrogen
Company, ClimaCool Corp., ClimateCraft, Inc., Climate Master,
Inc., DSN Corporation, El Dorado Chemical Company, International
Environmental Corporation, Koax Corp., LSB Chemical Corp., The Climate
Control Group, Inc., Trison Construction, Inc., ThermaClime
Technologies, Inc., XpediAir, Inc., LSB Industries, Inc., each lender
party thereto, Banc of America Leasing & Capital, LLC, as
Administrative Agent and as Collateral Agent, Bank of Utah, as Payment
Agent, and Consolidated Industries
Corp.
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Company has duly
caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
Dated: April
7, 2010
LSB
INDUSTRIES, INC.
By: /s/Tony M. Shelby
Tony M.
Shelby,
Executive
Vice President and
Chief
Financial Officer
LSB
INDUSTRIES, INC.
SUBSIDIARY
LISTING
Revised
April 1, 2010
LSB INDUSTRIES, INC.
(Direct subsidiaries in bold
italics)
|
Consolidated Industries
Corp.
|
|
|
|
Summit
Machine Tool Manufacturing L.L.C. (f/k/a Summit Machine
Tool Manufacturing
Corp.)
|
|
LSB-Europa
Limited
|
|
|
ClimateCraft
Technologies, Inc.
|
|
|
Cherokee
Nitrogen Holdings, Inc.
|
|
|
Pryor
Chemical Company
|
|
Chemical
Transport L.L.C.
|
|
|
ThermaClime,
L.L.C. (f/k/a ThermaClime, Inc.)
|
|
|
The
Climate Control Group, Inc.
|
|
|
XpediAir,
Inc.
|
|
International
Environmental Corporation
|
|
|
Climate
Master, Inc.
|
|
|
ClimateCraft,
Inc.
|
|
|
ThermaClime
Technologies, Inc.
|
|
|
CEPOLK
Holdings, Inc.
|
|
|
ClimaCool
Corp.
|
|
|
TRISON
Construction, Inc.
|
|
|
Koax
Corp.
|
|
|
LSB
Chemical Corp.
|
|
|
Northwest
Financial Corporation
|
|
|
El
Dorado Chemical Company
|
|
|
Chemex
I Corp.
|
|
|
Cherokee
Nitrogen Company
|
|
|
El
Dorado Nitric Company
|
|
|
El
Dorado Acid, L.L.C. (General Partner of El Dorado Nitrogen,
L.P.)
|
|
|
El
Dorado Nitrogen, L.P. (1% ownership)
|
|
|
El
Dorado Acid II, L.L.C. (Limited Partner of El Dorado
Nitrogen, L.P.)
|
|
|
El
Dorado Nitrogen, L.P. (99% ownership)
|
|
|
Prime Financial L.L.C. (f/k/a
Prime Financial
Corporation)
|
|
Prime
Holdings Corporation
|
|
Note: All subsidiaries are Oklahoma corporations except for Climate
Master, Inc., which is a Delaware corporation.
Exhibit
99.2
REALIGNMENT
AGREEMENT
(LSB
INDUSTRIES, INC.)
THIS
REALIGNMENT AGREEMENT (the “Agreement”) is executed this 18th day of March,
2010 by and among LSB INDUSTRIES, INC., a Delaware corporation (“LSB”),
CONSOLIDATED INDUSTRIES CORP., an Oklahoma corporation (“CIC”), PRIME FINANCIAL
CORPORATION, an Oklahoma corporation (“PFC”), NORTHWEST CAPITAL CORPORATION, an
Oklahoma corporation (“NWC”), THERMACLIME, INC., an Oklahoma corporation
(“TCI”), LSB HOLDINGS, INC., an Oklahoma corporation (“LSB Holdings”), SUMMIT
MACHINE TOOL INC. CORP., an Oklahoma corporation (“SMTI”), SUMMIT MACHINE TOOL
MANUFACTURING CORP., an Oklahoma corporation, (“SMTM”), SUMMIT MACHINERY
COMPANY, an Oklahoma corporation (“SMC”), HERCULES ENERGY MFG. CORPORATION, an
Oklahoma corporation (“HEC”), LSB CHEMICAL CORP., an Oklahoma corporation (“LSB
Chemical”), EL DORADO CHEMICAL COMPANY, an Oklahoma corporation (“EDC”), CHEMEX
I CORP., an Oklahoma corporation (“Chemex I”), DSN CORPORATION, an Oklahoma
corporation (“DSN”), THE CLIMATE CONTROL GROUP, INC., an Oklahoma corporation
(“TCCG”) and CHEMEX II CORP., an Oklahoma corporation (“Chemex
II”). CIC, PFC, NWC, TCI, LSB Holdings, SMTI, SMTM, SMC, HEC, LSB
Chemical, EDC, TCCG, Chemex I, DSN and Chemex II are collectively, the
“Subsidiaries”). In consideration of the premises and mutual
covenants herein contained, the parties hereto hereby agree as
follows:
1.
Ownership and
Background. LSB owns all of the issued and outstanding capital
stock of PFC, LSB Holdings, SMTM and HEC and 95% of the capital stock of TCI and
CIC, a newly formed subsidiary of LSB and PFC. PFC owns 5% of the
issued and outstanding capital stock of TCI and CIC and all of the issued and
outstanding capital stock of NWC. SMTM owns all of the issued and
outstanding capital stock of SMC. LSB Holdings owns all of the issued
and outstanding capital stock of SMTI. TCI owns all of the issued and
outstanding capital stock of LSB Chemical and TCCG. LSB Chemical owns
all of the issued and outstanding capital stock of DSN, EDC and Chemex II, and
EDC owns all of the issued and outstanding capital stock of Chemex
I. In accordance with the terms and conditions of this Agreement and
following management’s comprehensive review of the organizational structure of
LSB and the Subsidiaries, LSB and the Subsidiaries desire to convert certain
corporate Subsidiaries into limited liability companies, transfer ownership of
various Subsidiaries to other direct or indirect subsidiaries of LSB, merge
certain Subsidiaries into other direct or indirect subsidiaries of LSB, and form
new direct or indirect subsidiaries of LSB to realign LSB’s direct and indirect
wholly-owned entities so that following such transactions, LSB’s corporate
structure, as currently reflected in Chart 1, will be substantially as reflected
in Chart 2 attached hereto (collectively, the “Realignment”). The
Realignment is intended to (a) align the ownership of the subsidiaries of LSB by
business group, (b) simplify LSB’s corporate structure, (c) improve the
effective management of LSB’s diverse lines of business, (d) facilitate the
corporate governance and reporting responsibilities of LSB and its businesses,
and (e) optimize the corporate structure of LSB and its subsidiaries for tax
purposes.
2.
Realignment. The
Realignment and the transactions described below will be effective as of April
1, 2010, and will be conducted through a series of transactions, in the order
and as described below. The terms of such transactions are set forth
in the documents and agreements attached as exhibits to this Agreement, which
are hereby incorporated into this Agreement by reference.
|
a.
|
LSB
and PFC shall transfer to CIC all of LSB’s and PFC’s right, title and
interest in the shares of capital stock of TCI in exchange for 9,000
shares of common stock of CIC. The transfers of TCI stock shall
be evidenced by the Stock Assignments and Powers of Attorney to be
executed by LSB and PFC in the forms attached hereto as Exhibits “A-1” and
“A-2”. After such transfers, LSB will continue to own
95% of the capital stock of CIC, and PFC will continue to own 5% of the
stock in CIC.
|
|
b.
|
TCI
shall convert from an Oklahoma corporation to an Oklahoma limited
liability company (“LLC”) to be known as ThermaClime, L.L.C. (“TCL”), with
such conversion effective pursuant to the filing of the Articles of
Conversion with the Oklahoma Secretary of State in substantially in the
form of Exhibit
“B”. Pursuant to the conversion, the issued and
outstanding capital stock of TCI held by CIC, representing all of the
capital stock of TCI, shall be converted into membership interests of TCL
so that 100% of the membership interests of TCL shall continue to be owned
by CIC.
|
|
c.
|
PFC
shall convert from an Oklahoma corporation to an Oklahoma LLC to be known
as Prime Financial L.L.C. (“PFL”), with such conversion effective pursuant
to the filing of the Articles of Conversion with the Oklahoma Secretary of
State in substantially the form of Exhibit
“C”. Pursuant to the conversion, the issued and
outstanding capital stock of PFC held by LSB, representing all of the
capital stock of PFC, shall be converted into membership interests of PFL
so that 100% of the membership interests of PFL shall continue to be owned
by LSB.
|
|
d.
|
LSB
shall cause PFL to distribute to LSB all of PFL’s right, title and
interest in the shares of capital stock of CIC, as evidenced by the Stock
Assignment and Power of Attorney to be executed by PFL in substantially
the form attached hereto as Exhibit
“D”.
|
|
e.
|
LSB
shall contribute to CIC all of LSB’s right, title and interest in the
shares of capital stock of Climate Craft Technologies, Inc., an Oklahoma
corporation, HEC, SMTM and LSB Holdings, as evidenced by the Stock
Assignments and Powers of Attorney to be executed by LSB in substantially
the forms attached hereto as Exhibits “E-1”, “E-2”,
“E-3”, “E-4” and “E-5”.
|
|
f.
|
LSB
shall cause PFL to merge with NWC, with PFL as the survivor of such
merger, with such merger effective pursuant to the filing of the Articles
of Merger with the Oklahoma Secretary of State in substantially the form
of Exhibit
“F”.
|
|
g.
|
CIC
shall form Chemical Transport L.L.C., an Oklahoma limited liability
company (“CTL”), with CIC owning 100% of the initial outstanding
membership interests in CTL,
|
2
|
|
with
such formation effective pursuant to the filing of the Articles of
Organization with the Oklahoma Secretary of State in substantially the
form of Exhibit
“G”.
|
|
h.
|
LSB
shall cause PFL to transfer to CTL certain railcars indentified on Exhibit “H”
attached hereto and the real estate located at 244 Dison Road, El Dorado,
Arkansas owned by PFL. This transfer shall be completed by the
distribution of such assets by PFL to LSB followed by a capital
contribution of such assets by LSB to CIC, and CIC shall thereafter make a
capital contribution of such assets to
CTL.
|
|
i.
|
SMC
shall merge with and into SMTM, with SMTM as the survivor of such merger,
with such merger effective pursuant to the filing of the Certificate of
Merger with the Oklahoma Secretary of State in substantially the form of
Exhibit
“I”.
|
|
j.
|
SMTM
shall convert from an Oklahoma corporation to an Oklahoma limited
liability company, to be known as Summit Machine Tool Manufacturing L.L.C.
(“SMTL”), with such conversion effective pursuant to the filing of the
Articles of Conversion with the Oklahoma Secretary of State in
substantially the form of Exhibit
“J”. Pursuant to the conversion, the issued and
outstanding capital stock of SMTM held by CIC, representing all of the
issued and outstanding capital stock of SMTM, shall be converted into
membership interests of SMTL so that 100% of the membership interests of
SMTL shall continue to be owned by
CIC.
|
|
k.
|
LSB
shall cause SMTL to distribute to CIC all of SMTL’s right, title and
interest in the shares of capital stock of Pryor Chemical Company, an
Oklahoma corporation, as evidenced by the Stock Assignment and Power of
Attorney to be executed by SMTL in substantially the form attached hereto
as Exhibit
“K”.
|
|
l.
|
SMTI
shall merge with and into LSB Holdings, with LSB Holdings as the survivor
of such merger, with such merger effective pursuant to the filing of the
Certificate of Merger with the Oklahoma Secretary of State in
substantially the form of Exhibit
“L”.
|
|
m.
|
LSB
Holdings shall merge with and into CIC, with CIC as the survivor of such
merger, with such merger effective pursuant to the filing of the
Certificate of Merger with the Oklahoma Secretary of State in
substantially the form of Exhibit
“M”.
|
|
n.
|
CIC
shall cause TCL to contribute to LSB Chemical all of TCL’s right, title
and interest in the shares of capital stock of Cherokee Nitrogen Company,
an Oklahoma corporation and Northwest Financial Corporation, an Oklahoma
corporation, as evidenced by the Stock Assignments and Powers of Attorney
to be executed by TCL in substantially the forms attached hereto as Exhibits “N-1” and
“N-2”.
|
|
o.
|
DSN
shall merge with and into EDC, with EDC as the survivor of such merger,
with such merger effective pursuant to the filing of the Certificate of
Merger with the Oklahoma Secretary of State in substantially the form of
Exhibit
“O”.
|
3
|
p.
|
LSB
Chemical shall contribute to EDC all of LSB Chemical’s right, title and
interest in the shares of capital stock of Chemex II, as evidenced by the
Stock Assignment and Power of Attorney to be executed by LSB Chemical in
substantially the form attached hereto as Exhibit
“P-1”. EDC shall then contribute to Chemex I all of
EDC’s right, title and interest in the shares of capital stock of Chemex
II, thereby making Chemex II a direct subsidiary of Chemex I, as evidenced
by the Stock Assignment and Power of Attorney to be executed by EDC in
substantially the form attached hereto as Exhibit
“P-2”.
|
|
q.
|
Chemex
II shall merge with and into Chemex I, with Chemex I as the survivor of
such merger, with such merger effective pursuant to the filing of the
Certificate of Merger with the Oklahoma Secretary of State in
substantially the form of Exhibit
“Q”.
|
|
r.
|
CIC
shall cause TCL to contribute to TCCG all of TCL’s right, title and
interest in the shares of capital stock of Trison Construction, Inc., an
Oklahoma corporation, ClimaCool Corp., an Oklahoma corporation, CEPOLK
Holdings, Inc., an Oklahoma corporation, XpediAir, Inc., an Oklahoma
corporation, ClimateCraft, Inc., an Oklahoma corporation, Koax Corp., an
Oklahoma corporation, International Environmental Corporation, an Oklahoma
corporation, Climate Master, Inc., a Delaware corporation, ThermaClime
Technologies, Inc., an Oklahoma corporation, as evidenced by the Stock
Assignments and Powers of Attorney to be executed by TCL in substantially
the forms attached hereto as Exhibits “R-1”, “R-2”,
“R-3”, “R-4”, “R-5”, “R-6”, “R-7”, “R-8”, “R-9” and
“R-10”.
|
|
s.
|
HEC
shall merge with and into CIC, with CIC as the survivor of such merger,
with such merger effective pursuant to the filing of the Certificate of
Merger with the Oklahoma Secretary of State in substantially the form of
Exhibit
“S”.
|
Notwithstanding
the prior execution and delivery of the foregoing documents, each such document
will be effective only upon the receipt of all necessary approvals, waivers or
consents of any lender or governmental authority. The foregoing documents
will be subject to such modifications, amendments and changes as agreed by LSB,
each party to such amendment, modification, or change, and each party to this
Agreement that is materially adversely affected by such amendment, modification,
or change, if any.
3. Further
Assurances. LSB and each of the Subsidiaries agree to execute
and deliver and to cause the execution, delivery and as applicable, filing with
appropriate governmental authorities, of such additional assignments,
certificates, agreements and other instruments as are necessary and appropriate
to effect the transactions contemplated by the Realignment.
4. Compliance With
Code. Each of the transactions described in this Agreement is
intended to be a tax free reorganization, contribution, or other exchange
pursuant to the applicable provisions of the Internal Revenue Code of 1986, as
amended (the “Code”), and shall be interpreted in accordance with such
provisions of the Code. LSB and each Subsidiary agrees to execute and
deliver any and all documents or statements complying with the requirements of
the
4
Code
regarding the tax-free exchanges and transfers intended by the transactions
contemplated by the Realignment.
5. Binding
Effect. This Agreement will inure to the benefit of and be
binding upon the respective heirs, legal representatives, successors, and
assigns of the parties hereto.
6. Governing
Law. This Agreement shall be construed and enforced in
accordance with the laws of the state of Oklahoma.
7. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
LSB
INDUSTRIES, INC., a Delaware corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
CONSOLIDATED
INDUSTRIES CORP.,
an
Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
PRIME
FINANCIAL CORPORATION,
an
Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
5
NORTHWEST
CAPITAL CORPORATION,
an
Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
THERMACLIME,
INC.,
an
Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
LSB
HOLDINGS, INC.,
an
Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
SUMMIT
MACHINE TOOL INC. CORP.,
an
Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
6
SUMMIT
MACHINE TOOL MANUFACTURING CORP.,
an
Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
SUMMIT
MACHINERY COMPANY,
an
Oklahoma corporation
By: /s/ Jack E. Golsen
Name:
Jack E. Golsen
Title:
Chairman
HERCULES
ENERGY MFG. CORPORATION,
an
Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
LSB
CHEMICAL CORP.,
an
Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
EL DORADO
CHEMICAL COMPANY,
an
Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
CHEMEX I
CORP., an Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
DSN
CORPORATION, an Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
THE
CLIMATE CONTROL GROUP, INC.,
an
Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
8
CHEMEX II
CORP., an Oklahoma corporation
By: /s/ Jack E. Golsen
Name: Jack E. Golsen
Title: Chairman
9
Exhibit
99.3
CONSENT,
JOINDER AND SECOND AMENDMENT
TO
THE AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
CONSENT,
JOINDER AND SECOND AMENDMENT, dated as of April 1, 2010 (this "Amendment"), to the
Amended and Restated Loan and Security Agreement dated as of November 5, 2007
(as amended prior to the date hereof, the "Loan Agreement"), by and among
(i) LSB INDUSTRIES, INC., a Delaware corporation (the "Parent"),
THERMACLIME, INC., an Oklahoma corporation formerly known as ClimaChem, Inc.
("ThermaClime"), and
each of the Subsidiaries of ThermaClime identified on the signature pages
thereof (such Subsidiaries, together with ThermaClime, each a "Borrower", and
collectively, the "Borrowers"), (ii) the
lenders identified on the signature pages thereof (each a "Lender" and
collectively the "Lenders"), (iii)
WELLS FARGO CAPITAL FINANCE, INC., a California corporation formerly known as
Wells Fargo Foothill, Inc., as the arranger and administrative agent for the
Lenders (the "Agent") and (iv)
Consolidated Industries Corp., an Oklahoma corporation ("Consolidated
Industries").
WHEREAS,
the Parent and the Borrowers desire to realign their corporate structure for
various business and tax purposes (the "Realignment"), as
fully described in the documents attached hereto as Exhibit A (the "Realignment
Steps");
WHEREAS,
upon completion of the realignment described in the Realignment Steps,
Consolidated Industries will be either the direct or indirect parent of each
Borrower;
WHEREAS,
Consolidated Industries intends to and, upon the effectiveness of this
Amendment, will become a Guarantor and a Loan Party under the Loan
Agreement;
WHEREAS,
such realignment requires various amendments to the Loan Agreement and consents
or waivers by the Lenders;
WHEREAS,
the Borrowers, Consolidated Industries, the Parent, the Guarantors, the Lenders,
and the Agent desire to enter into this Amendment so as to amend the Loan
Agreement and other Loan Documents; and
WHEREAS,
the Lenders are willing to grant such limited consents and waivers set forth
herein subject to the terms and conditions hereof.
NOW
THEREFORE, in consideration of the premises and other good and valuable
consideration, the parties hereto hereby agree as follows:
1. Capitalized
Terms. All capitalized terms used in this Amendment
(including, without limitation, in the recitals hereto) and not otherwise
defined shall have their respective meanings set forth in the Loan
Agreement.
2. ThermaClime.
Effective upon the conversion of ThermaClime to a limited liability company, the
definition of "ThermaClime" in the introductory paragraph of the Loan Agreement
and of each other Loan Document wherein it appears is hereby amended and
restated in its entirety to read as follows:
"THERMACLIME, L.L.C., an Oklahoma
limited liability company ("ThermaClime")"
3. New
Definitions. Section 1.1 of the Loan Agreement is hereby
amended by adding the following defined terms in proper alphabetical
order:
""Consolidated
Industries" means Consolidated Industries Corp., an Oklahoma
corporation."
""Second Amendment"
means that certain Consent, Joinder and Second Amendment to the Amended and
Restated Loan and Security Agreement, dated as of April 1, 2010, among the
Parent, Consolidated Holdings, the Borrowers, the Lenders and the
Agent."
""Second Amendment Effective
Date" means the date that all of the conditions set forth in Section 18 of the Second Amendment shall be satisfied (or
waived by the Agent in its sole discretion)."
4. Amended
Definitions. The following definitions in Section 1.1 of the
Loan Agreement are hereby amended and restated in their entirely to read as
follows:
""Guaranties" means,
collectively, (i) the guaranties made by Parent and Consolidated Industries
contained in Section 18 hereof and (ii) those certain general continuing
guaranties executed and delivered by Guarantors (other than Parent and
Consolidated Industries) in favor of Agent, for the benefit of the Lender Group,
in form and substance satisfactory to Agent."
""Guarantors" means (i)
the Parent, (ii) Consolidated Industries, (iii) each of ThermaClime's
Subsidiaries extant as of the Closing Date (other than EDN, DSN, and their
respective Subsidiaries) that are not Borrowers, and (iv)
Cherokee."
5. Section
6.3(g). Section 6.3(g) of the Loan Agreement is hereby amended
and restated in its entirety to read as follows:
"(g) as
soon as available, but no later than Wednesday of each week, a report listing
(i) all cash distributions and advances made by EDN to any Borrower and
Guarantor (other than Parent, Consolidated Industries and Cherokee) during the
preceding week and (ii) all cash distributions and advances made by any
Borrower and Guarantor (other than Parent, Consolidated Industries and Cherokee)
to EDN during the preceding week, and"
6. Section
7.1(h). Section 7.1(h) of the Loan Agreement is hereby amended
and restated in its entirety to read as follows:
"(h) Indebtedness
owing by any Borrower to any Subsidiary of Parent that is not also a Subsidiary
of ThermaClime, provided that the aggregate principal amount of such
Indebtedness shall not exceed $500,000 at any time, except as set forth in
Section 7.1(f);"
2
7. Section
7.11(a). Section 7.11(a) of the Loan Agreement is hereby
amended and restated in its entirety to read as follows:
"(a) ThermaClime
may make distributions and pay dividends to Consolidated Industries or to
Parent, in repayment of the costs and expenses incurred by Parent that are
directly allocable to the Borrowers for Parent's provision of the Services (as
defined in the Services Agreement) on behalf of the Borrowers pursuant to the
Services Agreement;"
8. Section
7.11(b). Section 7.11(b) of the Loan Agreement is hereby
amended and restated in its entirety to read as follows:
"(b) each
Borrower may make distributions and pay dividends to any Guarantor (other than
Parent, Consolidated Industries and Cherokee), and each Guarantor may make
distributions and pay dividends to any Borrower or Guarantor (other than Parent,
Consolidated Industries and Cherokee);"
9. Section
7.11(c). Section 7.11(c) of the Loan Agreement is hereby
amended and restated in its entirety to read as follows:
"(c) so
long as no Default or Event of Default has occurred and is continuing or would
result therefrom, (i) ThermaClime may make distributions and pay dividends to
Consolidated Industries or to Parent, in respect of the management fees payable
by ThermaClime to Parent in accordance with the Management Agreement, provided
that the aggregate amount of all such payments made by Borrowers pursuant to
this clause (c)(i) shall not exceed $2,500,000 during any fiscal year of
ThermaClime or the maximum management fees payable to Parent each calendar
quarter under the Management Agreement, and (ii) ThermaClime may make
distributions and pay dividends to Consolidated Industries or to Parent, in an
aggregate amount not to exceed, during each fiscal year, the sum of (A) 50%
of the actual consolidated net income of the Borrowers for such fiscal year
determined in accordance with GAAP, plus (B) the amounts paid to Parent and
Consolidated Industries during such fiscal year in accordance with Section
7.11(d);"
10. Section
7.11(d). Section 7.11(d) of the Loan Agreement is hereby
amended and restated in its entirety to read as follows:
"(d) so
long as Agent has not exercised any of its rights or remedies following an Event
of Default, ThermaClime may make distributions and pay dividends to Consolidated
Industries or to Parent, in an aggregate amount not to exceed, during each
fiscal year, the consolidated income tax liability of the Borrowers for such
fiscal year calculated as if each of the Borrowers was a separate consolidated
taxpayer;"
11. Section
7.11(e). Section 7.11(e) of the Loan Agreement is hereby
amended and restated in its entirety to read as follows:
"(e) each
Borrower may make distributions and pay dividends to any Subsidiary of
Consolidated Industries that is not also a Subsidiary of ThermaClime, provided
that the aggregate amount of such distributions and dividends shall not exceed
$100,000 during each fiscal year; and "
3
12. Section
8.7. Section 8.7 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"8.7 If
a notice of Lien (other than (a) a Permitted Lien, (b) Liens on any property or
assets of the Parent or Consolidated Industries and (c) Liens on any property or
assets of Cherokee that are subordinate to the Agent's Liens), levy or
assessment securing or otherwise with respect to Indebtedness or an obligation
for the payment of money in an aggregate amount in excess of $100,000 is filed
of record with respect to any Borrower's, any Guarantor's or any of its
Subsidiaries' assets by the United States, or any department, agency, or
instrumentality thereof, or by any state, county, municipal, or governmental
agency, or if any taxes or debts owing at any time hereafter to any one or more
of such entities becomes a Lien (other than (a) a Permitted Lien, (b)
Liens on any property or assets of the Parent or Consolidated Industries and (c)
Liens on any property or assets of Cherokee that are subordinate to the Agent's
Liens), whether choate or otherwise, upon any Borrower's, any Guarantor's or any
of its Subsidiaries' assets and the same is not paid on the payment date
thereof;"
13. Section
8.8. Section 8.8 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"8.8 If
a judgment or other claim for an amount in excess of $100,000 becomes a Lien
(other than (a) Liens on any property or assets of the Parent or Consolidated
Industries and (b) Liens on any property or assets of Cherokee that are
subordinate to the Agent's Liens) or encumbrance upon any material portion of
any Borrower's, any Guarantor's or any of its Subsidiaries' properties or
assets;"
14. Section
8.9. Section 8.9 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"8.9 If
there is a default in any material agreement to which any Borrower, any
Guarantor (other than the Parent, Consolidated Industries and Cherokee) or any
of its Subsidiaries is a party and such default (a)(i) occurs at the final
maturity of the obligations thereunder, or (ii) results in a right by the other
party thereto, irrespective of whether exercised, to accelerate the maturity of
the applicable Borrower's, Guarantor's or its Subsidiaries' obligations
thereunder, to terminate such agreement, or to refuse to renew such agreement
pursuant to an automatic renewal right therein, and (b) involves
Indebtedness or an obligation for the payment of money in an aggregate amount in
excess of $100,000;"
15. Section
8.10. Section 8.10 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"8.10 If
any Borrower, any Guarantor (other than the Parent, Consolidated Industries and
Cherokee) or any of its Subsidiaries makes any payment on account of
Indebtedness that has been contractually subordinated in right of payment to the
payment of the Obligations, except to the extent such payment is permitted by
the terms of the subordination provisions applicable to such
Indebtedness;"
16. Guaranty. Section
18 of the Loan Agreement is hereby amended and restated in its entirety to read
as set forth in Schedule 2 to this Amendment.
4
17. Consent to
Realignment.
(a) As of the
Second Amendment Effective Date, the Lenders and the Agent hereby consent to the
Realignment, provided that (i) the Realignment is consummated in accordance with
the steps set forth in the Realignment Steps, without any material deviation
therefrom, and (ii) within 5 Business Days after the consummation of the
Realignment, the Borrowers shall have delivered to the Agent the documents set
forth in Schedule 1 hereto, each in form and substance acceptable to the
Agent.
(b) The
consents and waivers in this Section 17 shall be
effective only in the specific instances and for the specific purposes set forth
herein and do not allow for any other or further departure from the terms and
conditions of the Loan Agreement or any other Loan Document, which terms and
conditions shall remain in full force and effect.
18. Conditions
Precedent. The effectiveness of this Amendment is subject to
the fulfillment, in a manner satisfactory to the Agent, of each of the following
conditions precedent (the first date upon which all such conditions shall have
been satisfied being herein called the "Second Amendment Effective
Date"):
(a) Representations
and Warranties; No Event of Default. The representations and
warranties contained herein, in Section 5 of the Loan Agreement and in each
other Loan Document and certificate or other writing delivered to the Agent or
any Lender pursuant hereto on or prior to the Second Amendment Effective Date
(as updated prior to the date hereof in accordance with the Loan Agreement)
shall be correct in all material respects on and as of the Second Amendment
Effective Date as though made on and as of such date, except to the extent that
such representations and warranties (or any schedules related thereto) expressly
relate solely to an earlier date (in which case such representations and
warranties shall be true and correct in all material respects on and as of such
date); and after giving effect to the amendments, consents and waivers set forth
herein, no Default or Event of Default shall have occurred and be continuing on
the Second Amendment Effective Date or would result from this Amendment becoming
effective in accordance with its terms.
(b) Delivery
of Documents. The Agent shall have received on or before the Second
Amendment Effective Date the following, each in form and substance satisfactory
to the Agent and, unless indicated otherwise, dated the Second Amendment
Effective Date:
(i) counterparts
of this Amendment duly executed by the Borrowers, the Agent and the Lenders;
and
(ii) such
other agreements, instruments, approvals, opinions and other documents as the
Agent may reasonably request from the Borrowers.
(c) Agent
shall have received, for the benefit of the Lenders, an amendment fee in the
amount of $10,000 in immediately available funds, which shall be fully earned
when payable and nonrefundable.
5
19. Representations and
Warranties. Each Borrower, and only with respect to parts (b)
and (c) below, Parent and Consolidated Industries, hereby represents and
warrants to the Agent and the Lenders as follows:
(a) Representations
and Warranties; No Event of Default. The representations and
warranties herein, in Section 5 of the Loan Agreement (as updated prior to the
date hereof in accordance with the Loan Agreement) and in each other Loan
Document and certificate or other writing delivered to the Agent or any Lender
pursuant hereto on or prior to the Second Amendment Effective Date are correct
in all material respects on and as of the Second Amendment Effective Date as
though made on and as of such date, except to the extent that such
representations and warranties (or any schedules related thereto) expressly
relate solely to an earlier date (in which case such representations and
warranties are true and correct in all material respects on and as of such
date); and after giving effect to the amendments, consents and waivers set forth
herein, no Default or Event of Default has occurred and is continuing on the
Second Amendment Effective Date or would result from this Amendment becoming
effective in accordance with its terms.
(b) Organization,
Good Standing, Etc. Parent, Consolidated Industries and each Borrower
(i) is a corporation duly organized, validly existing and in good standing
under the laws of the state of its organization, (ii) has all requisite
power and authority to execute, deliver and perform this Amendment and the other
Loan Documents to which it is a party being executed in connection with this
Amendment, and to perform its respective obligations under the Loan Agreement,
as amended hereby, and (iii) is duly qualified to do business and is in
good standing in each jurisdiction in which the character of the properties
owned or leased by it or in which the transaction of its business makes such
qualification necessary except where the failure to be so qualified reasonably
could not be expected to have a Material Adverse Change.
(c) Authorization,
Etc. The execution, delivery and performance by each Borrower, Parent
and Consolidated Industries of this Amendment, and the performance by each
Borrower, Parent and Consolidated Industries of the Loan Agreement and the other
Loan Documents to which it is a party, each as amended hereby, (i) have
been duly authorized by all necessary action on the part of such Borrower,
Parent or Consolidated Industries, (ii) do not and will not contravene such
Borrower's, Parent's or Consolidated Industries' charter or by-laws, any
applicable law or any material contractual restriction binding on it or any of
its properties, (iii) do not and will not result in or require the creation
of any Lien (other than pursuant to any Loan Document) upon or with respect to
any of its properties, and (iv) do not and will not result in any
suspension, revocation, impairment, forfeiture or nonrenewal of any permit,
license, authorization or approval applicable to its operations or any of its
properties.
20. Joinder of Consolidated
Industries. By its execution of this Agreement, Consolidated
Industries hereby (i) confirms that, as of the Second Amendment Effective Date,
each representation and warranty made by it and contained in this Amendment or
in the Loan Agreement is true and correct in all material respects as they
relate to Consolidated Industries as of the effective date of this Amendment,
(ii) agrees that from and after the Second Amendment Effective Date it shall be
a "Guarantor" within the meaning of, and subject to, the Loan Agreement and each
other Loan Document as if it were a signatory thereto and shall be bound by
6
all of
the provisions thereof and (iii) agrees that it shall comply with and be subject
to all the terms, conditions, covenants, agreements and obligations set forth
therein. Consolidated Industries hereby agrees that each reference to
a "Guarantor" or "Guarantors" in the Loan Agreement or any other Loan Document
shall include Consolidated Industries, except as provided
therein. Consolidated Industries acknowledges that it has received a
copy of the Loan Agreement and the other Loan Documents and that it has read and
understands the terms thereof.
21. Reaffirmation, Confirmation,
and Acknowledgement. Except as expressly amended by this
Amendment, each of the Parent, Consolidated Industries, and each Borrower hereby
expressly confirms and agrees that the remaining terms, conditions, and
provisions of the Loan Agreement and the other Loan Documents shall be and
remain in full force and effect. Each of the Parent, Consolidated
Industries, and each Borrower hereby reaffirms and confirms its respective
obligations under the Loan Agreement and the other Loan Documents as amended by
this Amendment. Each of the Parent and Consolidated Industries hereby
expressly confirms and agrees that the Guaranty made by it under Section 18 of
the Loan Agreement as amended by this Amendment is, and shall continue to be, in
full force and effect, and is hereby ratified and confirmed in all
respects. The execution, delivery, and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any power, remedy, or right of the Agent or any Lender, or constitute a waiver
of any provision of, or any past or future noncompliance with, any of the Loan
Documents or any other documents, instruments, and agreements executed or
delivered in connection therewith, and shall not operate as a consent to any
further or other matter under the Loan Documents. Each of the Parent,
Consolidated Industries, and each Borrower expressly agrees and understands that
by entering into and performing its obligations hereunder, this Amendment,
including the amendment made to Section 18 of the Loan Agreement, shall not
constitute a novation, and shall in no way adversely affect or impair the
priority of Liens of the Agent on the Collateral or Parent's obligations under
Section 18.
22. Miscellaneous.
(a) Continued
Effectiveness of the Loan Agreement. Except as otherwise expressly
provided herein, the Loan Agreement and the other Loan Documents are, and shall
continue to be, in full force and effect and are hereby ratified and confirmed
in all respects, except that on and after the Second Amendment Effective Date
(i) all references in the Loan Agreement to "this Agreement", "hereto",
"hereof", "hereunder" or words of like import referring to the Loan Agreement
shall mean the Loan Agreement as amended by this Amendment, and (ii) all
references in the other Loan Documents to which any Borrower is a party to the
"Loan Agreement", "thereto", "thereof", "thereunder" or words of like import
referring to the Loan Agreement shall mean the Loan Agreement as amended by this
Amendment. Except as expressly provided herein, the execution,
delivery and effectiveness of this Amendment shall not operate as an amendment,
modification or waiver of any right, power or remedy of the Lender under the
Loan Agreement or any other Loan Document, nor constitute an amendment of any
provision of the Loan Agreement or any other Loan Document.
(b) Counterparts. This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be
7
deemed to
be an original, but all of which taken together shall constitute one and the
same agreement.
(c) Headings. Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose.
(d) Governing
Law. This Amendment shall be governed by, and construed in accordance
with, the law of the State of New York.
(e) Costs and
Expenses. The Borrowers jointly and severally agree to pay on demand
all reasonable fees, costs and expenses of the Agent and each Lender in
connection with the preparation, execution and delivery of this Amendment and
the other related agreements, instruments and documents.
(f) Amendment
as Loan Document. Each Borrower hereby acknowledges and agrees that
this Amendment constitutes a "Loan Document" under the Loan
Agreement. Accordingly, it shall be an Event of Default under the
Loan Agreement (i) if any representation or warranty made by a Borrower under or
in connection with this Amendment shall have been untrue, false or misleading in
any material respect when made or (ii) if Borrowers fail to perform, keep, or
observe any term, provision, condition, covenant, or agreement contained in this
Amendment.
(g) Waiver of
Jury Trial. EACH BORROWER, THE AGENT AND THE LENDERS HEREBY
IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS AMENDMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
[THE
REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
8
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered as of the date first above written.
Parent:
LSB
INDUSTRIES, INC.,
an
Delaware corporation
By: /s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
Consolidated
Industries:
CONSOLIDATED INDUSTRIES CORP.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
Borrowers:
THERMACLIME,
INC.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
CHEROKEE NITROGEN COMPANY,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
CLIMATE
MASTER, INC.,
a
Delaware corporation
By: /s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
CLIMATECRAFT,
INC.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
CLIMACOOL,
CORP.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
INTERNATIONAL ENVIRONMENTAL
CORPORATION, an Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
THERMACLIME
TECHNOLOGIES, INC.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
KOAX CORP., an Oklahoma
corporation
By: /s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
LSB
CHEMICAL CORP.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
XPEDIAIR, INC., an Oklahoma
corporation.
By: s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
EL
DORADO CHEMICAL COMPANY,
an
Oklahoma corporation
By: s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
CHEMEX I CORP., an Oklahoma
corporation
By: s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
TRISON
CONSTRUCTION, INC.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
CHEMEX
II CORP.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M. Shelby
Title:
Vice President
Agent and
Lender:
WELLS FARGO CAPITAL FINANCE, INC.,
a
California corporation, as Agent and Lender
By: /s/ Matt Mouledous
Name:
Matt
Mouledous
Title:
Vice
President
EXHIBIT
A
Realignment
Steps
SCHEDULE
1
Required
Documents
1. Certificates
of conversion of ThermaClime to a limited liability company.
2. Affirmation
of ThermaClime, L.L.C.
SCHEDULE
2
18. GUARANTY
18.1 Guaranty;
Limitation of Liability. Each of the Parent and Consolidated
Industries hereby, unconditionally and irrevocably, guarantees the punctual
payment when due, whether at stated maturity, by acceleration or otherwise, of
all Obligations of the Borrowers now or hereafter existing under any Loan
Document, whether for principal, interest (including, without limitation, all
interest that accrues after the commencement of any case, proceeding or other
action relating to bankruptcy, insolvency or reorganization of any Borrower),
fees, expenses or otherwise (such obligations, to the extent not paid by the
Borrowers, being the "Guaranteed Obligations"), and agrees to pay any and
all expenses (including reasonable counsel fees and expenses) incurred by the
Agents and the Lenders in enforcing any rights under the guaranty set forth in
this Section
18. Without limiting the generality of the foregoing, the
Parent's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by the Borrowers to the Agents and the
Lenders under any Loan Document but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving any Borrower.
18.2 Guaranty
Absolute. Each of the Parent and Consolidated Industries
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Loan Documents, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of the Agents or the Lenders with respect thereto. The
obligations of the Parent and Consolidated Industries under this Section 18 are
independent of the Guaranteed Obligations, and a separate action or actions may
be brought and prosecuted against Parent and Consolidated Industries to enforce
such obligations, irrespective of whether any action is brought against the
Borrowers or whether the Borrowers are joined in any such action or
actions. The liability of the Parent and Consolidated Industries
under this Section
18 shall be irrevocable, absolute and unconditional irrespective of, and
each of Parent and Consolidated Industries hereby irrevocably waives any
defenses it may now or hereafter have in any way relating to, any or all of the
following:
(a) any
lack of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;
(b) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations, or any other amendment or waiver of or any
consent to departure from any Loan Document, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to the Borrowers or otherwise;
(c) any
taking, exchange, release or non-perfection of any Collateral, or any taking,
release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Guaranteed Obligations;
(d) any
change, restructuring or termination of the corporate, limited liability company
or partnership structure or existence of any Borrower;
or
(e) any
other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by the Agents or the
Lenders that might otherwise constitute a defense available to, or a discharge
of, Parent, Consolidated Industries, any Borrower or any other guarantor or
surety.
This
Section 18
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment of any of the Guaranteed Obligations is rescinded or must
otherwise be returned by a Lender or any other Person upon the insolvency,
bankruptcy or reorganization of any Borrower or otherwise, all as though such
payment had not been made.
18.3. Waiver. Each
of Parent and Consolidated Industries hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Section 18 and any
requirement that the Agents or the Lenders exhaust any right or take any action
against the Borrowers or any other Person or any collateral. Each of
Parent and Consolidated Industries acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated herein and that
the waiver set forth in this Section 18.3 is
knowingly made in contemplation of such benefits. Each of Parent and
Consolidated Industries hereby waives any right to revoke this Section 18, and
acknowledges that this Section 18 is
continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
18.4. Continuing
Guaranty; Assignments. This Section 18 is a
continuing guaranty and shall (a) remain in full force and effect until the
later of (i) the cash payment in full of the Guaranteed Obligations (other than
indemnification obligations as to which no claim has been made) and all other
amounts payable under this Section 18 and (ii)
the Maturity Date, (b) be binding upon Parent and Consolidated Industries, and
their successors and assigns and (c) inure to the benefit of and be
enforceable by the Agents and the Lenders and their successors, pledgees,
transferees and assigns. Without limiting the generality of the
foregoing clause (c), any Lender may pledge, assign or otherwise transfer all or
any portion of its rights and obligations under this Agreement (including,
without limitation, all or any portion of its Commitments and the Advances owing
to it) to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted such Lender herein or
otherwise, in each case as provided in Section 14.1.
18.5. Subrogation. Neither
Parent nor Consolidated Industries will exercise any rights that they may now or
hereafter acquire against any Borrower or any other insider guarantor that arise
from the existence, payment, performance or enforcement of Parent's or
Consolidated Industries' obligations under this Section 18,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Agents and the Lenders against any Borrower or any other
insider guarantor or any collateral, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from any Borrower or any other insider
guarantor, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security solely on account of
such
claim, remedy or right, unless and until all of the Guaranteed Obligations and
all other amounts payable under this Section 18 shall have
been paid in full in cash and the Maturity Date shall have
occurred. If any amount shall be paid to Parent or Consolidated
Industries in violation of the immediately preceding sentence at any time prior
to the later of the payment in full in cash of the Guaranteed Obligations and
all other amounts payable under this Section 18 and the
Maturity Date, such amount shall be held in trust for the benefit of the Agents
and the Lenders and shall forthwith be paid to the Agents and the Lenders to be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Section
18, whether matured or unmatured, in accordance with the terms of this
Agreement, or to be held as collateral for any Guaranteed Obligations or other
amounts payable under this Section 18 thereafter
arising. If (i) Parent or Consolidated Industries shall make
payment to the Agents and the Lenders of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Section 18 shall be
paid in full in cash and (iii) the Maturity Date shall have occurred, the
Agents and the Lenders will, at Parent's or Consolidated Industries' request and
expense, execute and deliver to Parent or Consolidated Industries appropriate
documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to Parent or Consolidated Industries of an
interest in the Guaranteed Obligations resulting from such payment by Parent or
Consolidated Industries.
Exhibit
99.4
AMENDMENT AND WAIVER TO THE
TERM LOAN AGREEMENT
This
AMENDMENT AND WAIVER TO THE TERM LOAN AGREEMENT (this “Amendment”) is made as of
April 1, 2010, by and among ThermaClime, Inc., an Oklahoma corporation (“TCI”), Cherokee Nitrogen
Holdings, Inc., an Oklahoma corporation, Northwest Financial Corporation, an
Oklahoma corporation (“NFC”), Chemex I Corp., an
Oklahoma corporation, Chemex II Corp., an Oklahoma corporation, Cherokee
Nitrogen Company, an Oklahoma corporation, ClimaCool Corp., an Oklahoma
corporation, ClimateCraft, Inc., an Oklahoma corporation, Climate Master, Inc.,
a Delaware corporation, DSN Corporation, an Oklahoma corporation (“DSN”), El Dorado Chemical
Company, an Oklahoma corporation (“EDCC”), International
Environmental Corporation, an Oklahoma corporation, Koax Corp., an Oklahoma
corporation, LSB Chemical Corp., an Oklahoma corporation, The Climate Control
Group, Inc., an Oklahoma corporation, Trison Construction, Inc., an Oklahoma
corporation, ThermaClime Technologies, Inc., an Oklahoma corporation, XpediAir,
Inc., an Oklahoma corporation (each of the foregoing, a “Borrower”, and, collectively,
the “Borrowers”), LSB
Industries, Inc., a Delaware Corporation (the “Parent”), each lender party
hereto (collectively, the “Lenders”), Banc of America
Leasing & Capital, LLC, not in its individual capacity, but solely as
Administrative Agent and as Collateral Agent, Bank of Utah, not in its
individual capacity but solely as Payment Agent, and Consolidated Industries
Corp., an Oklahoma corporation (“Consolidated
Industries”).
RECITALS
WHEREAS,
the Borrowers, Parent, Lenders, Administrative Agent, Collateral Agent, and
Payment Agent have entered into that certain Term Loan Agreement, dated as of
November 2, 2007, as amended (the “Loan
Agreement”);
WHEREAS,
the Parent and the Borrowers desire to realign their corporate structure for
various business and tax purposes, as fully described in that certain statement
of facts attached hereto as Exhibit A (the “Statement of
Facts”);
WHEREAS,
upon completion of the realignment described in the Statement of Facts,
Consolidated Industries will be either the direct or indirect parent of each
Borrower;
WHEREAS,
Consolidated Industries intends to and, upon the effectiveness of this
Amendment, will become a Guarantor and a Loan Party under the Loan
Agreement;
WHEREAS,
such realignment requires various amendments to the Loan Agreement and consents
or waivers by the Lenders;
WHEREAS,
the Borrowers, Consolidated Industries, the Parent, the Lenders, the
Administrative Agent, the Collateral Agent, and the Payment Agent desire to
enter into this Amendment so as to amend the Loan Agreement and other Loan
Documents; and
WHEREAS,
the Lenders are willing to grant such limited consents and waivers set forth
herein subject to the terms and conditions hereof.
NOW,
THEREFORE, in consideration of the mutual covenants and undertakings contained
herein, and for other 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.
(a) Definitions. Capitalized
terms used, but not otherwise defined herein, have the meanings given to them in
the Loan Agreement.
(b) General
Interpretation. The general interpretive provisions of Section
1.02 of the Loan Agreement are hereby incorporated by reference into this
Amendment.
SECTION
2. Amendments to
the Loan Documents. As of the date hereof or, solely in the
case of the subsection (a) below, the date on which TCI is converted into an
Oklahoma limited liability company, the Loan Agreement is hereby amended as
follows:
(a) The
definition of “ThermaClime” in the introductory paragraph of the Loan Agreement
and of each other Loan Document wherein it appears is hereby amended and
restated in its entirety to read as follows:
THERMACLIME,
L.L.C., an Oklahoma limited liability company (“ThermaClime”).
(b) The
following definition is hereby added to Section 1.01 of the Loan Agreement in
the correct alphabetical order:
“Consolidated
Industries” means Consolidated Industries Corp., an Oklahoma
corporation.
(c) The
definition of “Guarantor” in Section 1.01 of the Loan Agreement is hereby
amended and restated in its entirety to read as follows:
“Guarantors” means,
collectively, Parent, Consolidated Industries, and each subsidiary of
ThermaClime that shall be required to execute and deliver a guaranty or guaranty
supplement pursuant to Section 6.12; provided that in no
event shall Excluded Subsidiaries be Guarantors.
(d) The
definition of “Guaranty” in Section 1.01 of the Loan Agreement is hereby amended
and restated in its entirety to read as follows:
“Guaranty” means,
collectively, the Guaranty made by each of Parent and Consolidated Industries
under Article X
in favor of the Secured Parties, together with each other guaranty and guaranty
supplement delivered pursuant to Section
6.12.
(e) Section
7.02(g) of the Loan Agreement is hereby amended and restated in its entirety to
read as follows:
- 2
- -
(g) Indebtedness
owing by any Borrower or any Subsidiary of any Borrower to any Subsidiary of
Parent that is not also a Subsidiary of ThermaClime, provided that the aggregate
principal amount of such Indebtedness shall not exceed $500,000 at any time,
except as provided in Section 7.02(d);
(f) Section
7.06(a) of the Loan Agreement is hereby amended and restated in its entirety to
read as follows:
(a) any
Borrower may make Restricted Payments to another Borrower or issue Equity
Interests to another Borrower or to Parent or Consolidated Industries if no
Change of Control would result therefrom;
(g) Section
7.06(b) of the Loan Agreement is hereby amended and restated in its entirety to
read as follows:
(b) ThermaClime
may make distributions and pay dividends to Parent or, if so directed by Parent,
to Consolidated Industries in repayment of the costs and expenses incurred by
Parent or that are directly allocable to the Borrowers for Parent’s provision of
the Services (as defined in the Services Agreement) on behalf of the Borrowers
pursuant to the Services Agreement;
(h) Section
7.06(c) of the Loan Agreement is hereby amended and restated in its entirety to
read as follows:
(c) each
Borrower may make distributions and pay dividends to any Guarantor (other than
Parent or Consolidated Industries), and each Guarantor may make distributions
and pay dividends to any Borrower or Guarantor (other than Parent or
Consolidated Industries); provided, however,
that Consolidated Industries may make distributions and pay dividends to Parent,
and Parent may make distributions to Consolidated Industries;
(i) Section
7.06(d) of the Loan Agreement is hereby amended and restated in its entirety to
read as follows:
(d) so
long as no Default or Event of Default has occurred and is continuing or would
result therefrom, (i) ThermaClime may make distributions and pay dividends to
Parent or, if so directed by Parent, to Consolidated Industries in respect of
the management fees payable by ThermaClime to Parent in accordance with the
Management Agreement, provided that the
aggregate amount of all such payments made by ThermaClime pursuant to this
clause (d)(i) shall not exceed $2,500,000 during any fiscal year of ThermaClime
or the maximum management fees payable to Parent each calendar quarter under the
Management Agreement, and (ii) ThermaClime may make distributions and pay
dividends to Parent or, if so directed by Parent, to Consolidated Industries in
an aggregate amount not to exceed, during each fiscal year, the sum of (A) 50%
of the actual consolidated net income of the Borrowers for such fiscal year
determined in accordance with GAAP, plus (B) the amounts paid to Parent and
Consolidated Industries during such fiscal year in accordance with Section
7.06(e);
- 3
- -
(j) Section
7.06(e) of the Loan Agreement is hereby amended and restated in its entirety to
read as follows:
(e) so
long as a Secured Party has not exercised any of its rights or remedies
following an Event of Default, ThermaClime may make distributions and pay
dividends to Parent or, if so directed by Parent, to Consolidated Industries in
an aggregate amount not to exceed, during each fiscal year, the consolidated
income tax liability of the Borrowers for such fiscal year calculated as if each
of the Borrowers was a separate consolidated taxpayer;
(k) Section
7.06(f) of the Loan Agreement is hereby amended and restated in its entirety to
read as follows:
(f) each
Borrower may make distributions and pay dividends to any Subsidiary of Parent
that is not also a Subsidiary of ThermaClime or that is a Subsidiary of
ThermaClime but is not a Borrower or Guarantor, provided that the
aggregate amount of such distributions and dividends shall not exceed $100,000
during each fiscal year; provided, however, that the
foregoing limitation on the amount of distributions and dividends made or paid
under this Section 7.06(f) will not apply to distributions made or dividends
paid to Consolidated Industries to the extent permitted pursuant to Sections
7.06(a), (b), (d), and (e); and
(l) Article
X of the Loan Agreement is hereby amended and restated in its entirety to read
as set forth in Schedule 1 to this Amendment.
(m) Schedule
5.13 to the Loan Agreement is hereby amended and restated in its entirety to
read as set forth in Schedule 2 to this Amendment.
(n) Schedule
7.03 to the Loan Agreement is hereby amended by amending and restating clause 13
thereof in its entirety to read as follows:
13. Consolidated
Industries Corp., a subsidiary of LSB Industries, Inc., is indebted to CCC in
the principal amount of $2,705,594.
SECTION
3. Limited
Consents or Waivers. As of the date hereof, the Lenders agree
to grant the Borrowers and the Parent the following limited consents or waivers
relating to the Loan Agreement, pursuant to the terms and conditions set forth
herein:
(a) The
Lender’s hereby consent to the conversion of TCI into ThermaClime, L.L.C.,
according to the facts and in the manner fully set forth in the Statement of
Facts, and waive any violation of Section 7.12 of the Loan Agreement that
results directly and solely therefrom; provided, however,
that nothing herein shall be deemed a waiver with respect to any other or future
failure of the Parent, Consolidated Industries, or any Borrower to comply fully
with any of the provisions of the Loan Agreement or the other Loan
Documents.
(b) The
Lenders hereby consent to the merger of DSN into EDCC, according to the facts
and in the manner fully set forth in the Statement of Facts, and waive any
violation of Section 7.15 of the Loan Agreement that results directly and solely
thereform; provided,
- 4
- -
however, that nothing
herein shall be deemed a waiver with respect to any other or future failure of
the Parent, Consolidated Industries, or any Borrower to comply fully with any of
the provisions of the Loan Agreement or the other Loan Documents.
(c) The
Lenders hereby consent to each of the Changes of Control fully described in the
Statement of Facts, and waive any default under Section 8.01(k) of the Loan
Agreement that results directly and solely therefrom; provided, however,
that nothing herein shall be deemed a waiver with respect to any other or future
failure of the Parent, Consolidated Industries, or any Borrower to comply fully
with any of the provisions of the Loan Agreement or the other Loan
Documents.
(d) The
Lenders hereby consent to that certain First Amendment to Ground Lease Agreement
and Termination of Ground Sublease Agreement, dated as of April 1, 2010, by and
between NFC and EDCC, in substantially the form attached hereto as Exhibit
B.
SECTION
4. Release;
Covenant Not to Sue.
(a) Each
of the Parent, Consolidated Industries, and each Borrower hereby absolutely and
unconditionally releases and forever discharges the Administrative Agent, the
Collateral Agent, the Payment Agent, and each Lender, and any and all
participants, parents, subsidiaries, affiliates, insurers, indemnitors,
successors, and assigns thereof, together with all of the present and former
directors, officers, agents, attorneys, and employees of any of the foregoing
(each, a “Released
Party”), from any and all claims, demands, or causes of action of any
kind, nature, or description, whether arising at law or in equity or upon
contract or tort or under any state or federal law or otherwise, which the
Parent, Consolidated Industries, or any Borrower has had, now has, or has made
claim to have against any such Person for or by reason of any act, omission,
matter, cause, or thing whatsoever arising from the beginning of time to and
including the date of this Amendment, whether such claims, demands, or causes of
action are matured or unmatured or known or unknown. It is the
intention of the Parent, Consolidated Industries, and each Borrower in providing
this release that the same will be effective as a bar to each and every claim,
demand, and cause of action specified, and, in furtherance of this intention, it
waives and relinquishes, to the extent permitted by applicable law, all rights
and benefits under any provision of any applicable law that may provide that a
general release does not extend to claims that the Person giving the release
does not know or suspect to exist in its favor at the time of executing the
release, which if known by it might have materially affected its settlement with
the recipient of the release. Each of the Parent, Consolidated
Industries, and each Borrower acknowledges that it may hereafter discover facts
different from or in addition to those now known or believed to be true with
respect to such claims, demands, or causes of action, and agrees that this
instrument shall be and remain effective in all respects, notwithstanding any
such differences or additional facts. Each of the Parent,
Consolidated Industries, and each Borrower understands, acknowledges, and agrees
that the release set forth above may be pleaded as a full and complete defense,
and may be used as a basis for an injunction against any action, suit, or other
proceeding that may be instituted, prosecuted, or attempted in breach of the
provisions of such release.
(b) Each
of the Parent, Consolidated Industries, and each Borrower, on behalf of itself
and its successors, assigns, and other legal representatives, hereby absolutely,
unconditionally, and irrevocably covenants and agrees with and in favor of each
Released Party
- 5
- -
that it
will not sue (at law, in equity, in any regulatory proceeding, or otherwise) any
Released Party on the basis of any claim released, remised, or discharged by the
Parent, Consolidated Industries, or any Borrower pursuant to the above stated
release. If any of the Parent, Consolidated Industries, any Borrower,
or any of their successors, assigns, or other legal representatives violates the
foregoing covenant, such Person, for itself and its successors, assigns, and
legal representatives, agrees to pay, in addition to such other damages as any
Released Party may sustain because of such violations, all attorneys’ fees and
other costs incurred by such Released Party because of such
violation.
SECTION
5. Representations and
Warranties. Consolidated Industries hereby represents and
warrants that the representations and warranties set forth in Sections 5.01,
5,02, 5.03 (other than Sections 5.03(b) and (c)), 5.04, 5.06, 5.07, 5.11, 5.12,
5.13, 5.15, and 5.16 of the Loan Agreement are, with respect to itself, true and
correct in all material respects as of the date of this
Amendment. Furthermore, each of the Parent, Consolidated Industries,
and each Borrower hereby represents and warrants as follows:
(a) after
giving effect to the amendments, consents, and waivers set forth herein, any
amendments, consents, and waivers duly entered into or given, as applicable,
prior to the date hereof in accordance with the provisions of the Loan
Agreement, and any notices required to be given under the Loan Agreement so as
to update any schedules thereto that were given prior to the date hereof, each
of the representations and warranties made by it as set forth in Article V of
the Loan Agreement are true and correct in all material respects as of the date
of this Amendment, it being understood and agreed that any representation or
warranty that, by its terms, is made as of a specified date will be required to
be true and correct in all material respects only as of such specified
date;
(b) after
giving effect to the amendments, consents, and waivers set forth herein, no
Event of Default exists or has occurred that has not been duly cured or waived
in accordance with the provisions of each applicable Loan Document;
(c) this
Amendment has been duly authorized by all necessary corporate proceedings of,
and duly executed and delivered by the Parent, Consolidated Industries, and each
Borrower;
(d) the
Loan Agreement, as amended by this Amendment, is a legal, valid, and binding
obligation of the Parent, Consolidated Industries, and each Borrower,
respectively, enforceable against each such Person in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, other similar laws affecting creditors’ rights generally,
or general principles of equity, regardless of whether the application of such
principles is considered in a proceeding in equity or at law;
(e) except
in connection with the corporate filings necessary to accomplish the conversion
of TCI into an Oklahoma limited liability company known as “ThermaClime, L.L.C.”
and the merger of DSN into EDCC as set forth in Section 3 of this Amendment, no
further consent, approval authorization, order, registration, or qualification
with any governmental authority is required for, and the absence of which would
not adversely affect, the valid execution and delivery or performance by the
Parent, Consolidated Industries, or any Borrower of this Amendment or the Loan
Agreement, as amended by this Amendment; and
- 6
- -
(f) the
execution, delivery, and performance by the Parent, Consolidated Industries, and
each Borrower of this Amendment and any documents related to the realignment
described in Exhibit A (i) do not or, when executed, will not contravene or
cause the Parent, Consolidated Industries, or any Borrower to be in default
under (A) any provision of such Person’s articles or certificate of
incorporation, bylaws, or other organizational documents, (B) any contractual
restriction contained in any material indenture, loan, or credit agreement,
lease, mortgage, security agreement, bond, note, or other agreement or
instrument binding on or affecting the Parent, Consolidated Industries, or any
Borrower or the property of any such Person, including that certain Amended and
Restated Loan and Security Agreement, dated as of November 5, 2007, as amended
(the “WFF Loan
Agreement”), by and among the Parent, TCI, certain subsidiaries of TCI
party thereto, the persons party thereto, from time to time, as lenders, and
Wells Fargo Foothill, and any Material Contract, or (C) any law, rule,
regulation, order, license requirement, writ, judgment, award, injunction, or
decree applicable to or binding on the Parent, Consolidated Industries, or any
Borrower or the property of such Person, and (ii), when executed, will not
result in the creation or imposition of any Lien upon the property of the
Parent, Consolidated Industries, or any Borrower or any Subsidiary of any
Borrower other than those in favor of the Administrative Agent or any other
Beneficiary.
SECTION
6. Conditions
Precedent. This Amendment shall become effective upon the
satisfaction or waiver of the following conditions precedent:
(a) the
receipt by the Payment Agent of (i) this Amendment, duly executed by the parties
hereto, (ii) a fully executed copy of the amendment to the WFF Loan Agreement,
dated as of April 1, 2010, along with evidence that any conditions precedent to
the effectiveness of such amendment have been satisfied or duly waived, (iii)
such other documents, instruments, certificates, fees, expenses, and agreements
that the Administrative Agent, the Collateral Agent, or the Payment Agent may
reasonably request in connection with the transactions contemplated by this
Amendment, including the joinder described in Section 6(b);
(b) Consolidated
Industries will have executed a joinder to the Intercompany Loan Subordination
Agreement through which the Intercompany Loan Subordination Agreement shall
become a legal, valid, and binding obligation of Consolidated
Industries;
(c) Consolidated
Industries will have furnished to the Payment Agent a description of its real
and personal properties, in detail satisfactory to the Payment
Agent;
(d) the
Payment Agent’s receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) or, in the case of any document or
certification issued by a Governmental Authority and required pursuant to clause
(i) below, certified copies, unless otherwise specified, each properly executed
by a Responsible Officer of the relevant Loan Party (except with respect to
documents and certificates issued by a Governmental Authority), each dated the
date hereof (or, in the case of government certificates, a recent date before or
on the date hereof), and each in form and substance satisfactory to each Agent
and each Lender:
(i) such
documents and certifications as the Payment Agent may reasonably require to
evidence that each of Consolidated Industries and ThermaClime, L.L.C., is duly
organized or formed, validly existing, in good standing, and qualified to engage
in business in each jurisdiction where its ownership, lease, or operation of
properties or the
- 7
- -
conduct
of its business requires such qualification, except to the extent that failure
to do so could not reasonably be expected to have a Material Adverse Effect;
and
(ii) a
legal opinion of the general counsel to the Parent, in form and substance
satisfactory to each Agent and each Lender, as to this Amendment and the
realignment described in the Statement of Facts;
(e) the
payment of the Amendment Fee and all Amendment Costs (each as defined in Section
7 hereof); and
(f) the
representations and warranties contained herein shall be true and correct in all
material respects as of the date of this Amendment, it being understood and
agreed that any representation or warranty that, by its terms, is made as of a
specified date will be required to be true and correct in all material respects
only as of such specified date.
SECTION
7. Fees and
Costs.
(a) In
order to induce the Lenders to enter into and execute this Amendment, the
Borrowers hereby agree to pay, concurrently with the execution of this
Amendment, an amendment fee in the amount of $25,000 (the “Amendment Fee”) to the
Administrative Agent, for the benefit of the Lenders, pursuant to the wire
instructions attached as Exhibit C hereto. Promptly upon receipt of
the Amendment Fee, the Administrative Agent shall disburse a portion of such fee
to each Lender in an amount equal to each such Lender’s ratable share thereof,
which share equals the product of (x) the Amendment Fee and (y) the quotient of
(i) the amount of the outstanding Obligations owing to such Lender and (ii) the
aggregate amount of the outstanding Obligations owing to all of the Lenders
under the Loan Documents. Notwithstanding the foregoing, nothing in
this paragraph shall (i) require any Lender or Agent to enter into any amendment
or waiver, or (ii) affect any lender’s ability to require a fee in connection
with any amendment or waiver not covered by this Amendment. The
Amendment Fee shall be paid in immediately available funds, and shall be fully
earned when payable and nonrefundable.
(b) The
Borrowers agree to reimburse the Agents and the Lenders, or pay directly to the
extent not previously paid, promptly following demand for their costs and
expenses incurred in connection with this Amendment, including, the fees and
expenses of Sonnenschein Nath & Rosenthal LLP in connection with the
preparation and execution of this Amendment (the “Amendment
Costs”).
SECTION
8. Reaffirmation, Confirmation,
and Acknowledgement. Except as expressly amended by this
Amendment, each of the Parent, Consolidated Industries, and each Borrower hereby
expressly confirms and agrees that the remaining terms, conditions, and
provisions of the Loan Agreement and the other Loan Documents shall be and
remain in full force and effect. Each of the Parent, Consolidated
Industries, and each Borrower hereby reaffirms and confirms its respective
obligations under the Loan Agreement and the other Loan Documents as amended by
this Amendment. The Parent hereby expressly confirms and agrees that
the Guaranty made by it under Article X of the Loan Agreement as amended by this
Amendment in favor of the Secured Parties is, and shall continue to be, in full
force and effect, and is hereby ratified and confirmed in all
respects. Although the Administrative Agent has informed the Parent,
Consolidated Industries, and each Borrower of the matters set forth in this
Amendment, and the
- 8
- -
Parent,
Consolidated Industries, and each Borrower have each acknowledged the same, each
of the Parent, Consolidated Industries and each Borrower understands and agrees
that the Administrative Agent has no duty under the Loan Agreement (including to
the Parent or Consolidated Industries under Article X thereof) or any other
agreement with the Parent, Consolidated Industries, or any Borrower to so notify
the Parent, Consolidated Industries, or any Borrower or to seek an
acknowledgment, and nothing contained herein is intended to or shall create such
a duty as to any advances or transactions hereafter. The execution,
delivery, and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any power, remedy, or right of any Agent
or any Lender, or constitute a waiver of any provision of, or any past or future
noncompliance with, any of the Loan Documents or any other documents,
instruments, and agreements executed or delivered in connection therewith, and
shall not operate as a consent to any further or other matter under the Loan
Documents. Each of the Parent, Consolidated Industries, and each
Borrower expressly agrees and understands that by entering into and performing
its obligations hereunder, this Amendment, including the amendment made to
Article X of the Loan Agreement, shall not constitute a novation, and shall in
no way adversely affect or impair the priority of Liens of the Collateral Agent
on the Collateral or Parent’s obligations under Article X.
SECTION
9. Further
Assurances. Each of the Parent, Consolidated Industries, and
each Borrower hereby authorizes the Payment Agent to file one or more UCC
financing or continuation statements, amendments thereto, assignments thereof,
fixture filings, or other Collateral Documents that are necessary or appropriate
for the continued perfection of the Collateral Agent’s Lien on the
Collateral.
SECTION
10. Governing
Law; Jurisdiction.
(a) Governing
Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to the
conflict of laws principles thereof that would permit or require the application
of the law of any other jurisdiction.
(b) Submission to
Jurisdiction. Each of the Parent, Consolidated Industries, and
each Borrower irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the courts of the State of New
York sitting in New York County and the United States District Court for the
Southern District of New York, and any appellate court from any thereof, in any
action or proceeding arising out or relating to this Amendment or any Loan
Document, or for recognition or enforcement of any judgment; and each of the
parties hereto irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in such New York
state court or, to the fullest extent permitted by applicable law, in such
federal court. Each of the parties hereto agrees that a final
judgment in any action or proceeding shall be conclusive, and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Amendment or in any Loan Document shall affect
any right that any Agent or any Lender may have to bring any action or
proceeding relating to this Amendment or any Loan Document against any Loan
Party or its properties in the courts of any jurisdiction.
- 9
- -
SECTION
11. Counterparts. This
Amendment may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and
all such counterparts shall constitute one and the same instrument.
SECTION
12. Successors
and Assigns. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
SECTION
13. Severability. Any
provision of this Amendment held to be invalid, illegal, or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality, or unenforceability without affecting the validity,
legality, and enforceability of the remaining provisions thereof; and the
invalidity, illegality, or unenforceability of a particular provision in a
particular jurisdiction shall not affect the validity, legality, or
enforceability of such provision in any other jurisdiction.
[Signature
pages follow. The remainder of this page is intentionally left
blank.]
- 10
- -
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 written
above.
LOAN
PARTIES:
THERMACLIME,
INC.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
CHEROKEE
NITROGEN HOLDINGS, INC.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
NORTHWEST
FINANCIAL CORPORATION,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
CHEMEX I
CORP.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
CHEMEX II
CORP.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
- 11
- -
CHEROKEE
NITROGEN COMPANY,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
CLIMACOOL
CORP.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
CLIMATECRAFT,
INC.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
CLIMATE
MASTER, INC.,
a
Delaware corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
DSN
CORPORATION,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
EL DORADO
CHEMICAL COMPANY,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
- 12
- -
INTERNATIONAL
ENVIRONMENTAL CORPORATION,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
KOAX
CORP.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
LSB
CHEMICAL CORP.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
THE
CLIMATE CONTROL GROUP, INC.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
TRISON
CONSTRUCTION, INC.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
THERMACLIME
TECHNOLOGIES, INC.,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
- 13
- -
XPEDIAIR,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
LSB
INDUSTRIES, INC.,
a
Delaware corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
CONSOLIDATED
INDUSTRIES CORP.,
an
Oklahoma corporation,
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
- 14
- -
AGENTS:
BANC OF
AMERICA LEASING & CAPITAL, LLC,
not in
its individual capacity but solely as Administrative Agent
By: /s/ Sonia T. Delen
Name:
Sonia T.
Delen
Title:
Vice
President
BANC OF
AMERICA LEASING & CAPITAL, LLC,
not in
its individual capacity but solely as Collateral Agent
By: /s/ Sonia T. Delen
Name:
Sonia T.
Delen
Title:
Vice
President
BANK OF
UTAH,
not in
its individual capacity but solely as Payment Agent
By: /s/ Michael Hoggan
Name:
Michael
Hoggan
Title:
Vice
President
- 15
- -
REQUIRED
LENDERS:
BANC OF
AMERICA LEASING & CAPITAL, LLC,
as a
Lender
By: /s/ Sonia T. Delen
Name:
Sonia T.
Delen
Title:
Vice
President
GE
BUSINESS FINANCIAL SERVICES INC.,
formerly
known as Merrill Lynch Capital,
a
Division of Merrill Lynch Business Financial Services, Inc.,
as a
Lender
By: /s/ John P. Tracey
Name:
John P.
Tracey
Title:
______________________
FIFTH
THIRD BANK, as a Lender
By:
/s/ Kenneth G.
Sullivan
Name: Kenneth G. Sullivan
Title:
Vice
President
- 16
- -
Schedule
1
ARTICLE
X.
JOINT
AND SEVERAL CONTINUING GUARANTY
10.01 Guaranty. Each
of Parent and Consolidated Industries (collectively, the “Article X Guarantors”, and
each individually, an “Article
X Guarantor”) hereby absolutely and unconditionally and jointly and
severally guarantee, as a guaranty of payment and performance and not merely as
a guaranty of collection, prompt payment when due, whether at stated maturity,
by required prepayment, upon acceleration, demand, or otherwise, and at all
times thereafter, of any and all Obligations (in each case, after all applicable
grace periods, if any, provided for in the Loan Documents), whether for
principal, interest, premiums, fees, indemnities, damages, costs, expenses, or
otherwise, of the Borrowers to the Secured Parties, arising hereunder and under
the other Loan Documents (including all renewals, extensions, amendments,
refinancings, and other modifications thereof and all costs, attorneys’ fees,
and expenses incurred by the Secured Parties in connection with the collection
or enforcement thereof). The Payment Agent’s books and record showing
the amount of the Obligations shall be admissible in evidence in any action or
proceeding, and shall be binding upon each of the Article X Guarantors, and
conclusive for the purpose of establishing the amount of the Obligations absent
manifest error. This Guaranty shall not be affected by the
genuineness, validity, regularity, or enforceability of the Obligations or any
instrument or agreement evidencing any Obligations, by the existence, validity,
enforceability, perfection, non-perfection, or extent of any collateral
therefor, or by any fact or circumstance relating to the Obligations which might
otherwise constitute a defense to the obligations of any Article X Guarantor
under this Guaranty (other than Indefeasible Payment and Performance of All
Obligations), and each of the Article X Guarantors irrevocably waives any
defenses it may now have or hereafter acquire in any way relating to any or all
of the foregoing (other than Indefeasible Payment and Performance of All
Obligations).
10.02 Rights of
Lenders. Each of the Article X Guarantors consents and agrees
that the Secured Parties may, at any time and from time to time, without notice
or demand, and without affecting the enforceability or continuing effectiveness
hereof: (a) amend, extend, renew, compromise, discharge, accelerate, or
otherwise change the time for payment or the terms of the Obligations or any
part thereof; (b) take, hold, exchange, enforce, waive, release, fail to
perfect, sell, or otherwise dispose of any security for the payment of this
Guaranty or any Obligations; (c) apply such security and direct the order or
manner of sale thereof as the Collateral Agent and the Lenders in their sole
discretion may determine in accordance with the provisions of the Loan
Documents; and (d) release or substitute any Article X Guarantor, one or more of
any endorsers or any other guarantors of any of the
Obligations. Without limiting the generality of the foregoing, each
of the Article X Guarantors consents to the taking of, or failure to take, any
action which might in any manner or to any extent vary the risks of any Article
X Guarantor under this Guaranty, or which, but for this provision, might operate
as a discharge of any Article X Guarantor.
10.03 Certain
Waivers. Each of the Article X Guarantors waives (a) any
defense arising by reason of any disability or other defense of any Borrower or
the other Article X Guarantor or any other guarantor, or the cessation from any
cause whatsoever (including any act or omission of any Secured Party) of the
liability of any Borrower, other than Indefeasible Payment and
Performance
of All Obligations; (b) any defense based on any claim that obligations of any
of the Article X Guarantors exceed or are more burdensome than those of the
Borrowers; (c) the benefit of any statute of limitations affecting any Article X
Guarantor’s liability hereunder; (d) any right to proceed against any Borrower
or the other Article X Guarantor, proceed against or exhaust any security for
the Obligations, or pursue any other remedy in the power of any Secured Party
whatsoever until such time as Indefeasible Payment and Performance of All
Obligations; (e) any benefit of and any right to participate in any security now
or hereafter held by any Secured Party until such time as Indefeasible Payment
and Performance of All Obligations; and (f) to the fullest extent permitted by
law, any and all other defenses or benefits that may be derived from or afforded
by applicable law limiting the liability of or exonerating guarantors or
sureties (other than Indefeasible Payment and Performance of All
Obligations). Each of the Article X Guarantors expressly waives all
setoffs and counterclaims and all presentments, demands for payment or
performance, notices of nonpayment or nonperformance, protests, notices of
protests, notices of dishonor, and all other notices or demands of any kind or
nature whatsoever with respect to the Obligations, and all notices of acceptance
of this Guaranty or of the existence, creation, or incurrence of new or
additional Obligations.
10.04 Obligations
Independent. The obligations of each of the Article X
Guarantors hereunder are those of primary obligor, and not merely as surety, and
are independent of the Obligations and the obligations of the other Article X
Guarantor or of any other guarantor, and a separate action may be brought
against the Article X Guarantors to enforce this Guaranty whether or not any
Borrower or any other person or entity is joined as a party or against either
Article X Guarantor to enforce this Guaranty whether or not any such action is
brought against the other Article X Guarantor.
10.05 Subrogation. Neither
Article X Guarantor shall exercise any right of subrogation, contribution,
indemnity, reimbursement, or similar rights with respect to any payments it
makes under this Guaranty until all of the Obligations and any amounts payable
under this Guaranty have been indefeasibly paid and performed in
full. If any amounts are paid to any Article X Guarantor in violation
of the foregoing limitation, then such amounts shall be held in trust for the
benefit of the Secured Parties, and shall forthwith be paid to the Secured
Parties to reduce the amount of the Obligations, whether matured or
unmatured.
10.06 Termination;
Reinstatement. This Guaranty is a continuing and irrevocable
guaranty of all Obligations now or hereafter existing and shall remain in full
force and effect until Indefeasible Payment and Performance of All Obligations
has occurred. Notwithstanding the foregoing, this Guaranty shall
continue in full force and effect or be revived, as the case may be, if any
payment by or on behalf of any Borrower or any Article X Guarantor is made, or
any of the Secured Parties exercises its right of setoff, in respect of the
Obligations and such payment or the proceeds of such setoff or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set
aside, or required (including pursuant to any settlement entered into by any of
the Secured Parties in their discretion) to be repaid to a trustee, assignee,
receiver, or any other party, in connection with any case or proceeding under
any Debtor Relief Laws or otherwise, all as if such payment had not been made or
such setoff had not occurred and whether or not the Secured Parties are in
possession of or have released this Guaranty or any of the Article X Guarantors
hereunder and regardless of any prior revocation, rescission, termination, or
reduction. The obligations of each of the Article X Guarantors under
this paragraph shall survive termination of this Guaranty.
- 18
- -
10.07 Subordination. Each
of the Article X Guarantors hereby subordinates the payment of all obligations
and indebtedness of the Borrowers owing to such Article X Guarantor, whether now
existing or hereafter arising, relating to any obligation of the Borrowers to
any Article X Guarantor as subrogee of the Secured Parties or resulting from any
Article X Guarantor’s performance under this Guaranty, to the Indefeasible
Payment and Performance of All Obligations. If the Secured Parties so
request, any such obligation or indebtedness of any Borrower to any Article X
Guarantor shall be enforced and performance received by such Article X
Guarantor, as the case may be, as trustee for the Secured Parties, and the
proceeds thereof shall be paid over to the Secured Parties on account of the
Obligations, but without reducing or affecting in any manner the liability of
each of the Article X Guarantors under this Guaranty.
10.08 Stay of
Acceleration. If acceleration of the time for payment of any
of the Obligations is stayed, in connection with any case or proceeding
commenced by or against any of the Article X Guarantors, or any Borrower under
any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be
payable, jointly and severally, by each of the Article X Guarantors immediately
upon demand by the Secured Parties.
10.09 Condition of
Borrowers. Each of the Article X Guarantors acknowledges and
agrees that it is jointly and severally responsible for, and has adequate means
of, obtaining from the Borrowers, the other Article X Guarantor, and any other
guarantor such information concerning the financial condition, business, and
operations of the Borrowers, the other Article X Guarantor, and any such other
guarantor as such Article X Guarantor requires, and that none of the Secured
Parties has any duty, and neither of the Article X Guarantors is relying on the
Secured Parties at any time, to disclose to it any information relating to the
business, operations, or financial condition of any Borrower, the other Article
X Guarantor, or any other guarantor (each of the Article X Guarantors waiving
any duty on the part of the Secured Parties to disclose such information and any
defense relating to the failure to provide the same).
10.10 Joint and Several
Liability. Each of the Article X Guarantors hereby
acknowledges and agrees that the Article X Guarantors are jointly and severally
liable to the Secured Parties for all representations, warranties, covenants,
obligations, and liabilities of each Article X Guarantor under this
Guaranty. Each of the Article X Guarantors hereby further
acknowledges and agrees that the Secured Parties shall have no obligation to
proceed against one Article X Guarantor before proceeding against the other
Article X Guarantor or to proceed against them together, and that the failure to
proceed against one Article X Guarantor will not affect the other Article X
Guarantor’s obligations under this Guaranty, including the prompt payment in
full of any and all Obligations.
- 19
- -
Schedule
2
SCHEDULE
5.13
(Revised
as of April 1, 2010)
SUBSIDIARIES
Part (a) – Subsidiaries of
Parent
|
1.
|
Consolidated
Industries Corp., a Guarantor
|
|
2.
|
Chemical
Transport L.L.C.
|
|
3.
|
ThermaClime,
L.L.C., a Borrower
|
|
4.
|
Northwest
Financial Corporation, a Borrower
|
|
5.
|
LSB
Chemical Corp., a Borrower
|
|
6.
|
El
Dorado Chemical Company, a Borrower
|
|
7.
|
Chemex
I Corp., a Borrower
|
|
8.
|
El
Dorado Nitric Company
|
|
9.
|
El
Dorado Acid, L.L.C.
|
|
10.
|
El
Dorado Acid II, L.L.C.
|
|
11.
|
El
Dorado Nitrogen, L.P.
|
|
12.
|
XpediAir,
Inc., a Borrower
|
|
13.
|
International
Environmental Corporation, a
Borrower
|
|
14.
|
Climate
Master, Inc., a Borrower
|
|
15.
|
The
Climate Control Group, Inc., a
Borrower
|
|
16.
|
ClimateCraft,
Inc., a Borrower
|
|
17.
|
ThermaClime
Technologies, Inc., a Borrower
|
|
18.
|
CEPOLK
Holdings, Inc.
|
|
19.
|
ClimaCool
Corp., a Borrower
|
|
20.
|
Trison
Construction, Inc., a Borrower
|
|
21.
|
Koax
Corp., a Borrower
|
|
22.
|
Cherokee
Nitrogen Company, a Borrower
|
|
23.
|
Prime
Financial L.L.C.
|
|
24.
|
Prime
Holdings Corporation
|
|
25.
|
LSB-Europa
Limited
|
|
26.
|
Cherokee
Nitrogen Holdings, Inc., a Borrower
|
|
27.
|
ClimateCraft
Technologies, Inc.
|
|
28.
|
Summit
Machine Tool Manufacturing L.L.C.
|
|
29.
|
Pryor
Chemical Company
|
Part (b) - Equity
Investments of Parent
|
1.
|
CEPOLK
Holdings, Inc., a subsidiary of The Climate Control Group, Inc., is the
sole limited partner of, and owns a fifty percent (50%) interest in,
CEPOLK Limited Partnership.
|
|
2.
|
Summit
Machine Tool Manufacturing L.L.C., a subsidiary of Consolidated Industries
Corp., owns a 50% of the value of KAC Acquisition Company, an Oklahoma
corporation, the value of which is de
minimis.
|
Part (c) – Outstanding
Equity Interest in Each of the Borrowers
|
1.
|
ThermaClime, L.L.C.
(“TCL”). The membership interest of TCL is owned 100% by
Consolidated Industries Corp.
(“CIC”).
|
|
2.
|
Northwest Financial
Corporation (“NWF”). The total authorized capital stock
of NWF is 100 shares of common stock. The total outstanding
shares of capital stock is 54 which is owned 100% by
LSBCC.
|
|
3.
|
LSB Chemical Corp.
(“LSBCC”). The total authorized capital stock of LSBCC
is 50 shares of common stock. The total outstanding shares of
capital stock is 50 which is owned 100% by
TCL.
|
|
4.
|
El Dorado Chemical
Company (“EDC”). The total authorized capital stock of
EDC is 25,000 shares of common stock. The total outstanding
shares of capital stock is 1,000 which is owned 100% by
LSBCC.
|
|
5.
|
Chemex I Corp.
(“Chemex I). The total authorized capital stock of
Chemex I is 10,000 shares of common stock. The total
outstanding shares of capital stock is 1,000 which is owned 100% by
EDC.
|
|
6.
|
XpediAir, Inc.
(“XPA”). The total authorized capital stock of XPA is
500,000 shares of common stock. The total outstanding shares of
capital stock is 10,000 which is owned 100% by
CCG.
|
|
7.
|
International
Environmental Corporation (“IEC”). The total authorized
capital stock of IEC is 300 shares of common stock. The total
outstanding shares of capital stock is 300 which is owned 100% by
CCG.
|
|
8.
|
Climate Master, Inc.
(“CLM”). The total authorized capital stock of CLM is
1,000 shares of common stock. The total outstanding shares of
capital stock is 1,000 which is owned 100% by
CCG.
|
|
9.
|
The Climate Control
Group, Inc. (“CCG”). The total authorized capital stock
of CCG is 100,000 shares of common stock. The total outstanding
shares of capital stock is 10,000 which is owned 100% by
TCL.
|
|
10.
|
ClimateCraft, Inc.
(“CLC”). The total authorized capital stock of CLC is
1,000, of which 900 shares are Class A voting common stock and 100 shares
are Class B non-voting common stock. The total outstanding
shares of both classes of common stock combined is 1,000 which is owned
100% by CCG.
|
|
11.
|
ThermaClime
Technologies, Inc. (“TTI”). The total authorized capital
stock of TTI is 500,000 shares of common stock. The total
outstanding shares of capital stock is 10,000 which is owned 100% by
CCG.
|
- 21
- -
|
12.
|
ClimaCool Corp.
(“CCC”). The total authorized capital stock of CCC is
50,000 shares of common stock. The total outstanding shares of
capital stock is 1,000 which is owned 100% by
CCG.
|
|
13.
|
Trison Construction,
Inc. (“Trison”). The total authorized capital stock of
Trison is 500,000 shares of common stock. The total outstanding
shares of capital stock is 10,000 which is owned 100% by
CCG.
|
|
14.
|
Koax Corp.
(“Koax”). The total authorized capital stock of Koax is
50 shares of common stock. The total outstanding shares of
capital stock is 50 which is owned 100% by
CCG.
|
|
15.
|
Cherokee Nitrogen
Company (“CNC”). The total authorized capital stock of
CNC is 500,000 shares of common stock. The total outstanding
shares of capital stock is 10,000 which is owned 100% by
LSBCC.
|
|
16.
|
Cherokee Nitrogen
Holdings, Inc. (“CNH”). The total authorized capital
stock of CNH is 500,000 shares of common stock. The total
outstanding shares of capital stock is 10,000 which is owned 100% by
CIC.
|
- 22
- -
Exhibit
A
Statement of
Facts
[See
attached document titled, “LSB Industries, Inc. and Subsidiaries
Realignment”.]
Exhibit
B
FIRST AMENDMENT TO GROUND
LEASE AGREEMENT AND
TERMINATION OF GROUND
SUBLEASE AGREEMENT
This
First Amendment to Ground Lease Agreement and Termination of Ground Sublease
Agreement (the “Amendment”) is dated as of
the 1st day of April, 2010 (the “Effective Date”), and is
entered into by and between Northwest Financial Corporation, an Oklahoma
corporation (“NWF”),
and El Dorado Chemical Company, an Oklahoma corporation (“EDC”).
W I T N E S S E T
H:
WHEREAS,
NWF, as Landlord, and DSN Corporation, an Oklahoma corporation (“DSN”), as Tenant, entered
into a Ground Lease Agreement dated as of April 15, 2003 (“Ground Lease”);
WHEREAS,
DSN, as sublessor, and EDC, as sublessee, entered into a Ground Sublease
Agreement dated as of April 15, 2003 (“Ground
Sublease”);
WHEREAS,
on the Effective Date, as part of a subsidiary realignment plan of the parties’
parent company, DSN and EDC formally merged, with EDC being the surviving
corporation (“Merger”);
WHEREAS,
as a result of the Merger, with sublessor and sublessee under the Ground
Sublease now the same legal entity, NWF desires that EDC document the
termination of the Ground Sublease as of the Effective Date; and
WHEREAS,
as a result of the Merger, with EDC having by operation of law replaced DSN as
the tenant under the Ground Lease, NWF and EDC desire to amend the Ground Lease
so as to reflect EDC as the tenant under the Ground Lease in place of
DSN.
NOW,
THEREFORE, in consideration of the mutual promises and agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1) The
recitals are incorporated into this Amendment by reference.
2. All
capitalized terms used herein shall have the same meaning as defined in the
Agreement, unless otherwise defined in this Amendment.
3. The
Ground Sublease is hereby terminated and shall be of no force or effect from and
after the Effective Date.
4. The
Ground Lease is hereby amended by deleting “DSN Corporation” as the tenant under
the Ground Lease and substituting and inserting “El Dorado Chemical Company” as
the tenant under the Ground Lease.
5. EDC
hereby expressly assumes all of the obligations of DSN under the Ground
Lease.
6. As
amended by this Amendment, all of the covenants, agreements, terms, provisions
and conditions of the Ground Lease continue in full force and effect, and both
parties ratify and confirm all covenants, agreements, terms, provisions and
conditions of the Ground Lease.
7. This
instrument shall be binding upon and shall inure to the benefit of the parties
hereto and their respective, permitted successors and assigns.
IN
WITNESS WHEREOF, NWF and EDC have each caused this Amendment to be duly executed
effective as of the date first above written.
NORTHWEST
FINANCIAL CORPORATION,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
EL DORADO
CHEMICAL COMPANY,
an
Oklahoma corporation
By: /s/ Tony M. Shelby
Name:
Tony M.
Shelby
Title: Vice President
- 25
- -
Exhibit
C
Wire
Instructions
Bank of
Utah
ABA No.
124-300-107
Account
No. 01020296
Credit:
Bank of Utah - Corporate Trust
Ref:
ThermaClime 8000099