exv10w4






Exhibit 10.4




EXECUTION COPY




FIRST AMENDMENT

TO FIRST LIEN CREDIT AND GUARANTY AGREEMENT




     THIS FIRST AMENDMENT TO FIRST LIEN CREDIT AND GUARANTY AGREEMENT (this “Amendment”) is
dated as of July 1, 2008 and is entered into by and among AZ CHEM US INC., a Delaware
corporation (the “U.S. Borrower”), ARIZONA CHEMICAL AB, a limited liability company
organized under the laws of Sweden (“European Borrower”), GOLDMAN SACHS CREDIT PARTNERS L.P.
(“GSCP”), as Administrative Agent (“Administrative Agent”), acting with the consent of the
Requisite Lenders and, for purposes of Section IV hereof, the GUARANTORS listed on the
signature pages hereto, and is made with reference to that certain FIRST LIEN CREDIT AND
GUARANTY AGREEMENT dated as of February 28, 2007 (as amended through the date hereof, the
“Credit Agreement”; as it may be further amended, supplemented, restated or otherwise
modified from time to time in accordance with its terms) by and among the Borrowers, ARIZONA
CHEM SWEDEN HOLDINGS AB, a limited liability company organized under the laws of Sweden, the
subsidiaries of Holdings named therein, the Lenders, the Administrative Agent, the
Collateral Agent and the other Agents named therein. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Credit Agreement after
giving effect to this Amendment.



RECITALS




     WHEREAS, the Credit Parties have requested that Requisite Lenders agree to amend
certain provisions of the Credit Agreement as provided for herein in order to accommodate a
new pooling and cash management system to be provided to the European Borrower and its
Subsidiaries (the “Cash Management Implementation”); and



     WHEREAS, subject to certain conditions, Requisite Lenders are willing to agree to such
amendments relating to the Credit Agreement.



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and
covenants herein contained, the parties hereto agree as follows:



SECTION I. AMENDMENTS TO CREDIT AGREEMENT





	1.1	 	Amendments to Section 1: Definitions. Section 1.1 of the Credit Agreement is hereby amended by
deleting the following definitions in their entirety and replacing them with the following
definitions:






     “Beneficiary” means any Secured Party.




     “Obligations” means all obligations of every nature of each
Credit Party under any Credit Document or Hedge Agreement from time
to time owed to the Secured Parties, whether for principal, interest
(including interest which, but for the filing of a petition in
bankruptcy with respect to such Credit Party, would



 









 







have accrued on any such obligation, whether or not a claim is allowed
against such Credit Party for such interest in the related bankruptcy
proceeding), reimbursement of amounts drawn under Letters of Credit,
payments for early termination of Hedge Agreements, fees, expenses,
indemnification or otherwise and up to $20,000,000 of obligations in respect
of overdrafts, bank guarantees, commercial and purchase card obligations,
treasury, depository or cash management services (including, without
limitation, netting and pooling arrangements) or automated clearing house
transfers of funds arrangements and related liabilities owed to the Secured
Parties (provided that such obligations of ABN AMRO Bank N.V. or any of its
Affiliates shall not be included in this definition to the extent such
obligations exceed $4,000,000).




     “Obligations of the European Borrower” means (i) all obligations
of every nature of the European Borrower under any Credit Document or
Hedge Agreement from time to time owed to the Secured Parties,
whether for principal, interest (including interest which, but for
the filing of a petition in bankruptcy with respect to the European
Borrower, would have accrued on any such obligation, whether or not a
claim is allowed against the European Borrower for such interest in
the related bankruptcy proceeding), reimbursement of amounts drawn
under Letters of Credit, payments for early termination of Hedge
Agreements, fees, expenses, indemnification or otherwise, (ii) up to
$10,000,000 of obligations of the European Borrower and its
Subsidiaries in respect of overdrafts, bank guarantees, commercial
and purchase card obligations, treasury, depository or cash
management services (including, without limitation, netting and
pooling arrangements), or automated clearing house transfers of funds
arrangements and related liabilities owed to the Secured Parties
(provided that such obligations of ABN AMRO Bank N.V. or any of its
Affiliates shall not be included in this definition to the extent
such obligations exceed $4,000,000) and (iii) all obligations and
liabilities of each Guarantor with respect to the foregoing and under
any Credit Document or Hedge Agreement, in each case whether on
account of guarantee obligations, reimbursement obligations, fees,
indemnities, costs,
expenses or otherwise (including, without limitation, all fees
and disbursements of counsel to the Credit Parties that are required
to be paid by such guarantor pursuant to the terms of any Credit
Document).




     “Obligations of the U.S. Borrower” means (i) all obligations of
every nature of the U.S. Borrower under any Credit Document or Hedge
Agreement from time to time owed to the Secured Parties, whether for
principal, interest (including interest



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which, but for the filing of a petition in bankruptcy with respect to the
U.S. Borrower, would have accrued on any such obligation, whether or not a
claim is allowed against the U.S. Borrower for such interest in the related
bankruptcy proceeding), reimbursement of amounts drawn under Letters of
Credit, payments for early termination of Hedge Agreements, fees, expenses,
indemnification or otherwise, (ii) up to $10,000,000 of the U.S. Borrower
and the U.S. Guarantors of obligations in respect of overdrafts, bank
guarantees, commercial and purchase card obligations, treasury, depository
or cash management services (including, without limitation, netting and
pooling arrangements), or automated clearing house transfers of funds
arrangements and related liabilities owed to the Secured Parties (provided
that such obligations of ABN AMRO Bank N.V. or any of its Affiliates shall
not be included in this definition to the extent such obligations exceed
$4,000,000) and (iii) all obligations and liabilities of the U.S. Borrower
and each U.S. Guarantor with respect to the foregoing and under any Credit
Document or Hedge Agreement, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all fees and disbursements of
counsel to the Credit Parties that are required to be paid by such guarantor
pursuant to the terms of any Credit Document).




     “Secured Parties” means (i) the Agents, the Lenders, Affiliates
of the Lenders, and the Lender Counterparties and shall include,
without limitation, all former Agents, Lenders, Affiliates of the
Lenders and Lender Counterparties to the extent that any Obligations
owing to such Persons were incurred while such Persons were Agents,
Lenders, Affiliates of the Lenders or Lender Counterparties and such
Obligations have not been paid or satisfied in full and (ii) ABN
AMRO Bank N.V. or any of its Affiliates.




	1.2	 	Amendments to Section 7.1 of the Credit Agreement. Section 7.1 of the Credit
Agreement is hereby amended by deleting it in its entirety and replacing it with the following:






     Subject to the provisions of Section 7.2, (i) the U.S.
Guarantors jointly and severally hereby irrevocably and
unconditionally guaranty to the Administrative Agent for the ratable
benefit of the Beneficiaries the due and punctual payment in full of
all Obligations of the U.S. Borrower, (ii) the Guarantors jointly
and severally hereby irrevocably and unconditionally guaranty to the
Administrative Agent for the ratable benefit of the Beneficiaries
the due and punctual payment in full of all Obligations of the
European Borrower and (iii) the European



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Borrower hereby irrevocably and unconditionally guaranties to the
Administrative Agent for the ratable benefit of the Beneficiaries the due
and punctual payment in full of all Obligations of the European Borrower
owing by its Subsidiaries, when the same shall become due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §
362(a) or any equivalent provision in any applicable jurisdiction) (each, a
“Guaranteed Obligation”, and collectively, the “Guaranteed Obligations”).



SECTION II. CONDITIONS TO EFFECTIVENESS




     This Amendment shall become effective as of the date hereof only upon the satisfaction
of all of the following conditions precedent (the date of satisfaction of such conditions
being referred to herein as the “First Amendment Effective Date”):



     A. Execution. The Administrative Agent shall have received (i) a counterpart
signature page of this Amendment duly executed by each of the Credit Parties and (ii) the
consent and authorization from the Requisite Lenders to execute this Amendment on their
behalf.



     B. Expenses. The Administrative Agent and the Syndication Agent shall have
received, to the extent invoiced, reimbursement or other payment of all out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder or any other Credit
Document.



     C. Necessary Consents. Each Credit Party shall have obtained all material consents
necessary or advisable in connection with the transactions contemplated by this Amendment.



     D. Other Documents. The Administrative Agent and Lenders shall have received such
other documents, information or agreements regarding Credit Parties as the Administrative
Agent may reasonably request.



SECTION III. REPRESENTATIONS AND WARRANTIES




     In order to induce Lenders to enter into this Amendment and to amend the Credit
Agreement in the manner provided herein, each Credit Party which is a party hereto
represents and warrants to each Lender that the following statements are true and correct in
all material respects:



     A. Corporate Power and Authority. Each Credit Party, which is party hereto, has
all requisite power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit Agreement as
amended by this Amendment (the “Amended Agreement”) and the other Credit Documents.



     B. Authorization of Agreements. The execution and delivery of this Amendment and
the performance of the Amended Agreement and the other Credit Documents have been duly
authorized by all necessary action on the part of each Credit Party that is a party thereto.



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     C. No Conflict. The execution and delivery by each Credit Party of this Amendment
and the performance by each Credit Party of the Amended Agreement and the other Credit
Documents do not and will not (i) violate (A) any provision of any law, statute, rule or
regulation, or of the certificate or articles of incorporation or partnership agreement,
other constitutive documents or by-laws of Holdings, the Borrowers or any Credit Party or
(B) any applicable order of any court or any rule, regulation or order of any Governmental
Authority, (ii) be in conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a default under any Contractual Obligation of the
applicable Credit Party, where any such conflict, violation, breach or default referred to
in clause (i) or (ii) of this Section III.C., individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect, (iii) except as permitted under
the Amended Agreement, result in or require the creation or imposition of any Lien upon any
of the properties or assets of each Credit Party (other than any Liens created under any of
the Credit Documents in favor of the Administrative Agent on behalf of Lenders), or (iv)
require any approval of stockholders or partners or any approval or consent of any Person
under any Contractual Obligation of each Credit Party, except for such approvals or consents
which will be obtained on or before the First Amendment Effective Date and except for any
such approvals or consents the failure of which to obtain will not have a Material Adverse
Effect.



     D. Governmental Consents. No action, consent or approval of, registration or
filing with or any other action by any Governmental Authority is or will be required in
connection with the execution and delivery by each Credit Party
of this Amendment and the performance by the Borrowers and Holdings of the Amended
Agreement and the other Credit Documents, except for such actions, consents and approvals
the failure to obtain or make which could not reasonably be expected to result in a Material
Adverse Effect or which have been obtained and are in full force and effect.



     E. Binding Obligation. This Amendment and the Amended Agreement have been duly
executed and delivered by each of the Credit Parties party thereto and each constitutes a
legal, valid and binding obligation of such Credit Party to the extent a party thereto,
enforceable against such Credit Party in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting creditors’ rights generally and except as enforceability may be limited by general
principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).



     F. Incorporation of Representations and Warranties from Credit Agreement. The
representations and warranties contained in Section 4 of the Amended Agreement are and will
be true and correct in all material respects (provided that if any representation or
warranty is by its terms qualified by concepts of materiality, such representation shall be
true and correct in all respects) on and as of the First Amendment Effective Date to the
same extent as though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were true and
correct in all material respects on and as of such earlier date.



     G. Absence of Default. No event has occurred and is continuing or will result from
the consummation of the transactions contemplated by this Amendment that would constitute an
Event of Default or a Default.



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SECTION IV. ACKNOWLEDGMENT AND CONSENT




     Each Guarantor hereby acknowledges that it has reviewed the terms and provisions of the
Credit Agreement and this Amendment and consents to the amendment of the Credit Agreement
effected pursuant to this Amendment. Each Guarantor hereby confirms that each Credit
Document to which it is a party or otherwise bound and all Collateral encumbered thereby
will continue to guarantee or secure, as the case may be, to the fullest extent possible in
accordance with the Credit Documents the payment and performance of all “Obligations” under
each of the Credit Documents to which it is a party (in each case as such terms are defined
in the applicable Credit Document).



     Each Guarantor acknowledges and agrees that any of the Credit Documents to which it is
a party or otherwise bound shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be
impaired or limited by the execution or effectiveness of this Amendment. Each
Guarantor represents and warrants that all representations and warranties contained in the
Amended Agreement and the Credit Documents to which it is a party or otherwise bound are
true and correct in all material respects (provided that if any representation or warranty
is by its terms qualified by concepts of materiality, such representation shall be true and
correct in all respects) on and as of the First Amendment Effective Date to the same extent
as though made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true and correct
in all material respects on and as of such earlier date.



     Each Guarantor acknowledges and agrees that (i) notwithstanding the conditions to
effectiveness set forth in this Amendment, such Guarantor is not required by the terms of
the Credit Agreement or any other Credit Document to consent to the amendments to the Credit
Agreement effected pursuant to this Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Credit Document shall be deemed to require the consent of such
Guarantor to any future amendments to the Credit Agreement.



SECTION V. MISCELLANEOUS




     A. Reference
to and Effect on the Credit Agreement and the Other Credit
Documents.




     (i) On and after the First Amendment Effective Date, each reference in the
Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of
like import referring to the Credit Agreement, and each reference in the other
Credit Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like
import referring to the Credit Agreement shall mean and be a reference to the Credit
Agreement as amended by this Amendment.




     (ii) Except as specifically amended by this Amendment, the Credit Agreement
and the other Credit Documents shall remain in full force and effect and are hereby
ratified and confirmed.




     (iii) The execution, delivery and performance of this Amendment shall not
constitute a waiver of any provision of, or operate as a waiver of any right,



6









 







power or remedy of any Agent or Lender under, the Credit Agreement or any of the other
Credit Documents.



     B. Headings. Section and Subsection headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this Amendment for any
other purpose or be given any substantive effect.



     C. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.



     D. Counterparts. This Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages are physically
attached to the same document.



     E. Waiver. The Borrowers and each other Credit Party hereby waive, release, remise
and forever discharge Administrative Agent, Lenders and each other Indemnitee from any and
all claims, suits, actions, investigations, proceedings or demands arising out of or in
connection with the Credit Agreement (collectively, “Claims”), whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute or common law
of any kind or character, known or unknown, which the Borrowers or any other Credit Party
ever had, now has or might hereafter have against Administrative Agent or Lenders which
relates, directly or indirectly, to any acts or omissions of Administrative Agent, Lenders
or any other Indemnitee on or prior to the date hereof.



[Remainder of this page intentionally left blank.]





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     IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.



	 	 	 	 	 
	BORROWERS:  	AZ CHEM US INC.

 	 
	 	By:  	/s/ Gerald C. Marterer
 	 
	 	 	Name:  	Gerald C. Marterer 	 
	 	 	Title:  	President/CEO 	 
	 
	 	ARIZONA CHEMICAL AB

 	 
	 	By:  	/s/ Gerald C. Marterer
 	 
	 	 	Name:  	Gerald C. Marterer 	 
	 	 	Title:  	Chairman 	 
	 
	GUARANTORS:  	THE U.S. GUARANTORS:



AZ CHEM US HOLDINGS INC.

 	 
	 	By:  	/s/ Gerald C. Marterer
 	 
	 	 	Name:  	Gerald C. Marterer 	 
	 	 	Title:  	President/CEO 	 
	 
	 	ARIZONA CHEMICAL COMPANY, LLC

 	 
	 	By:  	/s/ Gerald C. Marterer
 	 
	 	 	Name:  	Gerald C. Marterer 	 
	 	 	Title:  	President/CEO 	 
	 
	 	ARIZONA ARBORIS, INC.

 	 
	 	By:  	/s/ Gerald C. Marterer
 	 
	 	 	Name:  	Gerald C. Marterer 	 
	 	 	Title:  	President/CEO 	 



 









 







	 	 	 	 	 
	 	THE NON-U.S. GUARANTORS:



Sweden:

ARIZONA CHEM SWEDEN HOLDINGS AB

 	 
	 	By:  	/s/ Gerald C. Marterer
 	 
	 	 	Name:  	Gerald C. Marterer  	 
	 	 	Title:  	Chairman 	 
	 
	 	ARIZONA CHEM SWEDEN FINANCE AB

 	 
	 	By:  	/s/ Gerald C. Marterer
 	 
	 	 	Name:  	Gerald C. Marterer  	 
	 	 	Title:  	Chairman 	 
	 
	 	ARIZONA CHEM SWEDEN FINANCE KB

 	 
	 	By:  	/s/ Gerald C. Marterer
 	 
	 	 	Name:  	Gerald C. Marterer  	 
	 	 	Title:  	Chairman Arizona Chemical AB

(General Partner) 	 
	 
	 	Finland:

ARIZONA CHEMICAL OY

 	 
	 	By:  	 	 
	 	 	Name:  	Juhani Tuovinen  	 
	 	 	Title:  	Chairman 	 
	 
	 	Luxembourg:

AZ CHEM LUXEMBOURG FINANCE S.À.R.L.

 	 
	 	By:  	 	 
	 	 	Name:  	Gianpiero Lenza  	 
	 	 	Title:  	President 	 
	 




 









 





	 	 	 	 	 
	 	THE NON-U.S. GUARANTORS:



Sweden:

ARIZONA CHEM SWEDEN HOLDINGS AB

 	 
	 	By:  	 	 
	 	 	Name:  	Gerald C. Marterer  	 
	 	 	Title:  	Chairman 	 
	 
	 	ARIZONA CHEM SWEDEN FINANCE AB

 	 
	 	By:  	 	 
	 	 	Name:  	Gerald C. Marterer  	 
	 	 	Title:  	Chairman 	 
	 
	 	ARIZONA CHEM SWEDEN FINANCE KB

 	 
	 	By:  	 	 
	 	 	Name:  	Gerald C. Marterer  	 
	 	 	Title:  	Chairman Arizona Chemical AB

(General Partner) 	 
	 
	 	Finland:

ARIZONA CHEMICAL OY

 	 
	 	By:  	/s/ Juhani Tuovinen
 	 
	 	 	Name:  	Juhani Tuovinen  	 
	 	 	Title:  	Chairman 	 
	 
	 	Luxembourg:

AZ CHEM LUXEMBOURG FINANCE S.À.R.L.

 	 
	 	By:  	 	 
	 	 	Name:  	Gianpiero Lenza  	 
	 	 	Title:  	President 	 
	 




 









 





	 	 	 	 	 
	 	THE NON-U.S. GUARANTORS:



Sweden:

ARIZONA CHEM SWEDEN HOLDINGS AB

 	 
	 	By:  	 	 
	 	 	Name:  	Gerald C. Marterer  	 
	 	 	Title:  	Chairman 	 
	 
	 	ARIZONA CHEM SWEDEN FINANCE AB

 	 
	 	By:  	 	 
	 	 	Name:  	Gerald C. Marterer  	 
	 	 	Title:  	Chairman 	 
	 
	 	ARIZONA CHEM SWEDEN FINANCE KB

 	 
	 	By:  	 	 
	 	 	Name:  	Gerald C. Marterer  	 
	 	 	Title:  	Chairman Arizona Chemical AB

(General Partner) 	 
	 
	 	Finland:

ARIZONA CHEMICAL OY

 	 
	 	By:  	 	 
	 	 	Name:  	Juhani Tuovinen  	 
	 	 	Title:  	Chairman 	 
	 
	 	Luxembourg:

AZ CHEM LUXEMBOURG FINANCE S.À.R.L.

 	 
	 	By:  	/s/ Gianpiero Lenza
 	 
	 	 	Name:  	Gianpiero Lenza  	 
	 	 	Title:  	President 	 
	 




 











 





	 	 	 	 	 
	 	The Netherlands:

ARIZONA CHEMICAL B.V.

 	 
	 	By:  	/s/ Juhani Tuovinen
 	 
	 	 	Name:  	Juhani Tuovinen  	 
	 	 	Title:  	Managing Director 	 
	 
	 	ARIZONA CHEMICAL FINANCE B.V.

 	 
	 	By:  	
 	 
	 	 	Name:  	Glenda K. Haynes 	 
	 	 	Title:  	Director 	 



 









 







	 	 	 	 	 
	 	The Netherlands: 

ARIZONA CHEMICAL B.V.

 	 
	 	By:  	
 	 
	 	 	Name:  	Juhani Tuovinen  	 
	 	 	Title:  	Managing Director 	 
	 
	 	ARIZONA CHEMICAL FINANCE B.V.

 	 
	 	By:  	/s/ Glenda K. Haynes
 	 
	 	 	Name:  	Glenda K. Haynes  	 
	 	 	Title:  	Director 	 



 









 







	 	 	 	 	 
	 	United Kingdom:

AZ CHEM UK LIMITED

 	 
	 	By:  	/s/ Graeme Wilson
 	 
	 	 	Name:  	Graeme Wilson  	 
	 	 	Title:  	Director 	 
	 
	 	ARIZONA CHEMICAL LTD.

 	 
	 	By:  	/s/ Graeme Wilson
 	 
	 	 	Name:  	Graeme Wilson  	 
	 	 	Title:  	Director 	 



 









 







	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

As Administrative Agent

 	 
	 	By:  	/s/ Robert W. Schatzman
 	 
	 	 	Robert W. Schatzman

Authorized Signatory