AMENDMENT AND WAIVER TO THE TERM LOAN AGREEMENT
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:
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(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);
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(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,
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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 ▇▇▇.
(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
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that it
will not ▇▇▇ (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
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(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
▇▇▇▇▇ 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
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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 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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
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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.
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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.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their respective officers thereunto duly authorized as of the date first written
above.
LOAN
PARTIES:
THERMACLIME,
INC.,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
CHEROKEE
NITROGEN HOLDINGS, INC.,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
NORTHWEST
FINANCIAL CORPORATION,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
CHEMEX I
CORP.,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
CHEMEX II
CORP.,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
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CHEROKEE
NITROGEN COMPANY,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
CLIMACOOL
CORP.,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
CLIMATECRAFT,
INC.,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
CLIMATE
MASTER, INC.,
a
Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
DSN
CORPORATION,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
EL DORADO
CHEMICAL COMPANY,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
- 12
-
INTERNATIONAL
ENVIRONMENTAL CORPORATION,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
KOAX
CORP.,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
LSB
CHEMICAL CORP.,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
THE
CLIMATE CONTROL GROUP, INC.,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
TRISON
CONSTRUCTION, INC.,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
THERMACLIME
TECHNOLOGIES, INC.,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
- 13
-
XPEDIAIR,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
LSB
INDUSTRIES, INC.,
a
Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
CONSOLIDATED
INDUSTRIES CORP.,
an
Oklahoma corporation,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
- 14
-
AGENTS:
BANC OF
AMERICA LEASING & CAPITAL, LLC,
not in
its individual capacity but solely as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇.
▇▇▇▇▇
Title:
Vice
President
BANC OF
AMERICA LEASING & CAPITAL, LLC,
not in
its individual capacity but solely as Collateral Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇.
▇▇▇▇▇
Title:
Vice
President
BANK OF
UTAH,
not in
its individual capacity but solely as Payment Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title:
Vice
President
- 15
-
REQUIRED
LENDERS:
BANC OF
AMERICA LEASING & CAPITAL, LLC,
as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇ ▇.
▇▇▇▇▇
Title:
Vice
President
GE
BUSINESS FINANCIAL SERVICES INC.,
formerly
known as ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital,
a
Division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services, Inc.,
as a
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title:
______________________
FIFTH
THIRD BANK, as a Lender
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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.
|
▇▇▇▇▇
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
EL DORADO
CHEMICAL COMPANY,
an
Oklahoma corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President
- 25
-
Exhibit
C
Wire
Instructions
Bank of
Utah
ABA No.
▇▇▇-▇▇▇-▇▇▇
Account
No. ▇▇▇▇▇▇▇▇
Credit:
Bank of Utah - Corporate Trust
Ref:
ThermaClime 8000099