Exhibit 10.43
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT
AGREEMENT
AND AMENDED AND RESTATED
PLEDGE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT AND AMENDED AND RESTATED PLEDGE
AGREEMENT (this “
Amendment ”), dated as of January 30, 2009, is
made by and among KMG CHEMICALS, INC. , a Texas corporation,
KMG-BERNUTH, INC. , a Delaware corporation, and KMG
ELECTRONIC CHEMICALS, INC. , a Texas corporation (hereinafter
collectively referred to as “ Borrowers ”), and
WACHOVIA BANK, N.A. , a national banking association, as
Agent (the “ Agent ”) and as Collateral Agent
(the “ Collateral Agent ”), those lenders
executing this Amendment as Lenders, and such other lenders
(collectively, the “ Lenders ”) as may become a
party to the Credit Agreement (hereinafter defined).
R E C I T A
L S :
A.
Borrowers, Agent, Collateral Agent and Lenders have entered into
that certain Amended and Restated Credit Agreement dated as of
December 31, 2007 (as amended hereby, the “
Agreement ”).
B.
Borrowers have requested that Agent, Collateral Agent and Lenders
modify certain definitions and terms of the Agreement and the
Pledge Agreement (as defined in the Agreement) , and Lenders
have agreed to the same upon the terms and conditions set forth in
this Amendment.
NOW, THEREFORE, in consideration of
the premises herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01
Definitions Above . As used herein, the terms
“Agent,” “Agreement,”
“Amendment,” “Borrowers,” “Collateral
Agent,” and “Lenders” and “Pledge
Agreement” shall have the meanings as set forth
above.
Section 1.02
Definitions in Agreement . Capitalized terms used in
this Amendment, to the extent not otherwise defined herein, shall
have the same meanings as set forth in the Agreement.
ARTICLE II
AMENDMENTS TO
AGREEMENT
Section 2.01
Defined Terms . Section 1.2 of the
Agreement is hereby amended as follows:
(a)
The term “ EBIDA ” is amended to read in full as
follows:
“ EBIDA ”
means, with respect to an applicable Person for the applicable
period, Net Income, plus the sum of (without duplication) Interest
Expense, Amortization Expense, Depreciation Expense, Extraordinary
Expense and all other non-cash charges, all determined in
accordance with Generally Accepted Accounting
Principles.
(b)
The term “ EBITDA ” is amended to read in full
as follows:
“ EBITDA ” means,
with respect to an applicable Person for the applicable period, Net
Income, plus the sum of (without duplication) Interest Expense,
Income Tax Expense, Amortization Expense, Depreciation Expense,
Extraordinary Expense and all other non-cash charges, all
determined in accordance with Generally Accepted Accounting
Principles.
(c)
The term “ Extraordinary Expense ” is hereby
added to read in full as follows:
“ Extraordinary Expense
” means any extraordinary, unusual or non-recurring expenses
or losses (including, whether or not otherwise includable as a
separate item in the statement of Net Income for such period,
non-cash losses on sales of assets outside of the Ordinary Course
of Business) which shall have been approved by Agent, minus, to the
extent included in the statement of such Net Income for such
period, the amount of any Extraordinary Receipts (including,
whether or not otherwise includable as a separate item in the
statement of Net Income for such period, receipts on sales of
assets outside of the Ordinary Course of Business) which shall have
been approved by Agent.
(d)
The term “ Without Notice ” is hereby amended to
read in full as follows:
“ Without Notice
” means without demand of performance or other demand,
advertisement, or notice of any kind to or upon the applicable
Person, including without limitation notice of default or of intent
to accelerate the maturity of any promissory note or other
instrument, notice of acceleration, notice of nonpayment,
presentment, protest or notice of dishonor except as may be
required under applicable Laws which cannot be waived or by express
provision of any Loan Document.
Section 2.02
Amendment to Section 6.10 .
Section 6.10 of the Agreement is hereby amended to read
in full as follows:
6.10 Interest .
It is the intention of the parties hereto to conform strictly to
applicable usury laws now in force. Accordingly, if the
transactions contemplated hereby would be usurious under applicable
law, then, in that event, notwithstanding anything to the contrary
in the Notes, this Agreement or in any other Loan Document or
agreement entered into in connection with or as security
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for the Notes, it is agreed as
follows: (i) the aggregate of all consideration which
constitutes interest under applicable law that is contracted for,
charged or received under the Notes, this Agreement or under any of
the other aforesaid Loan Documents or agreements or otherwise in
connection with the Notes shall under no circumstances exceed the
maximum amount of interest permitted by applicable law, and any
excess shall be credited on the Notes by the holder thereof (or, if
the Notes shall have been paid in full, refunded to Borrowers);
(ii) determination of the rate of interest for determining
whether the loans hereunder are usurious shall be made by
amortizing, prorating, allocating and spreading, during the full
stated term of such loans, all interest at any time contracted for,
charged or received from Borrowers or on their behalf in
connection with such loans, and any excess shall be canceled,
credited or refunded as set forth in (i) herein; and
(iii) in the event that the maturity of the Notes is
accelerated by reason of an election of the holder thereof
resulting from any Default or Event of Default under this Agreement
or otherwise, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest may
never include more than the maximum amount permitted by applicable
law, and excess interest, if any, provided for in this Agreement or
otherwise shall be canceled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall be
credited on the Notes (or, if the Notes shall have been paid in
full, refunded to Borrowers).
Section 2.03
Amendment to Section 10.3 .
Section 10.3 of the Agreement is hereby amended by
restating Subsection (A)(3) to read in full as
follows:
(3) A ratio of Funded Debt to
EBITDA of not more than (i) from the date of this Agreement
through January 31, 2009, 3.5 to 1.0, (ii) from
February 1, 2009 through April 30, 2009, 3.25 to 1.0, and
(iii) thereafter, 3.0 to 1.0.
Section 2.04
Amendment to Section 14.1 .
Section 14.1 of the Agreement is hereby amended as
follows:
(a)
The addresses in Subsection (B), If to Wachovia (whether as
Lender, Agent, or Collateral Agent) are hereby amended to read
in full as follows:
Wachovia Bank, N.A.
(If by mail)
Mail Code VA7628
P.O. Box 13327
Roanoke, Virginia 24040
(If by delivery)
Mail Code VA7628
10 South Jefferson Street
Roanoke, Virginia 24011
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With a copy to:
Wachovia Bank, N.A.
2800 Post Oak Blvd.,
Suite 3400
Houston, Texas 77056
Attn: Dianne
Felker, Senior Vice President
With a copy to:
Winstead PC
1100 JPMorgan Chase Tower
600 Travis Street
Houston, Texas
77002
Attn: Nelson
R. Block
(b)
The addresses in Subsection (C), If to Lenders (other than
Wachovia) are hereby amended to delete the portion “
and with a copy to Agent ” as set forth therein, and
substitute the following:
and with a copy to
Agent :
Wachovia Bank, N.A.
(If by mail)
Mail Code VA7628
P.O. Box 13327
Roanoke, Virginia 24040
(If by delivery)
Mail Code VA7628
10 South Jefferson Street
Roanoke, Virginia 24011
With a copy to:
Wachovia Bank, N.A.
2800 Post Oak Blvd.,
Suite 3400
Houston, Texas 77056
Attn: &nb
