UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE TO
(RULE 14d-100)
Tender
Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1) of
the
Securities Exchange Act of 1934
(Amendment
No. 1)
AIRGAS,
INC.
(Name
of Subject Company)
AIR
PRODUCTS DISTRIBUTION, INC.
(Offeror)
AIR
PRODUCTS AND CHEMICALS, INC.
(Parent
of Offeror)
(Names
of Filing Persons)
COMMON
STOCK, $0.01 PAR VALUE
(Title
of Class of Securities)
009363102
(Cusip
Number of Class of Securities)
John
D. Stanley, Esq.
Senior
Vice President and General Counsel
Air
Products and Chemicals, Inc.
7201
Hamilton Boulevard
Allentown,
PA 18195-1501
(610) 481-4911
(Name,
Address and Telephone Number of Person Authorized to Receive
Notices
and
Communications on Behalf of Filing Persons)
Copies
to:
James
C. Woolery, Esq.
Cravath,
Swaine & Moore
Worldwide
Plaza
825
Eighth Avenue
New
York, New York 10019-7475
(212) 474-1000
CALCULATION
OF FILING FEE
|
Transaction
Valuation*
|
Amount
of Filing Fee**
|
|||||
| $ 4,963,777,380.00 | $ 353,917.33 | |||||
|
*
|
Estimated
for purposes of calculating the amount of filing fee only. Transaction
value derived by multiplying 82,729,623 (number of shares of common stock
of subject company (which represents the number of shares issued and
outstanding as of February 3, 2010, as reported in the subject
company’s Quarterly Report on Form 10-Q filed on February 8,
2010)) by $60.00 (the purchase price per share offered by
Offeror).
|
|
| ** |
The
filing fee was calculated in accordance with Rule 0-11 under the
Securities Exchange Act of 1934 and Fee Rate Advisory #4 for fiscal year
2010, issued December 17, 2009, by multiplying the transaction value
by .00007130.
|
|
þ
|
Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
|
Amount
Previously Paid:
|
$ 353,917.33
|
Filing
Party:
|
Air Products Distribution, Inc./Air Products and Chemicals, Inc. |
|
|
|||
|
Form
or Registration No.:
|
Schedule
TO
|
Date
Filed:
|
February
11, 2010
|
|
o
|
Check
the box if the filing relates solely to preliminary communications made
before the commencement of a tender
offer.
|
Check the
appropriate boxes below to designate any transactions to which the statement
relates:
þ third-party
tender offer subject to Rule 14d-1.
o issuer
tender offer subject to Rule 13e-4.
o going-private
transaction subject to Rule 13e-3.
o amendment to
Schedule 13D under Rule 13d-2.
Check the
following box if the filing is a final amendment reporting the results of the
tender offer. o
If
applicable, check the appropriate box(es) below to designate the appropriate
rule provision(s) relied upon:
o Rule 13e-4(i)
(Cross-Border Issuer Tender Offer)
o Rule 14d-1(d)
(Cross-Border Third-Party Tender Offer)
This
Amendment No. 1 to the Tender Offer Statement on Schedule TO amends and
supplements the Tender Offer Statement on Schedule TO filed with the
Securities and Exchange Commission on February 11, 2010 (together with any
amendments and supplements thereto, the “Schedule TO”) by Air Products and
Chemicals, Inc., a Delaware corporation (“Air Products”), and Air Products
Distribution, Inc. (the “Purchaser”), a Delaware corporation and a wholly owned
subsidiary of Air Products. The Schedule TO relates to the offer
by the Purchaser to purchase all outstanding shares of common stock, par value
$0.01 per share (together with the associated preferred stock purchase rights,
the “Shares”), of Airgas, Inc., a Delaware corporation (“Airgas”), at $60.00 per
Share, net to the seller in cash, without interest and less any required
withholding taxes, upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated February 11, 2010 (together with any amendments
and supplements thereto, the “Offer to Purchase”), and in the related Letter of
Transmittal (which, together with any amendments and supplements thereto,
collectively constitute the “Offer”).
Item
4
Item 4 of
the Schedule TO is hereby amended and supplemented as follows:
(1) The
Purchaser shall make all determinations regarding the matters referred to in the
Impairment Condition in its reasonable judgment.
(2) The
Purchaser shall not assert a failure of the condition to the Offer relating to
Airgas’s declaration or payment of dividends (set forth in clause (e) of
paragraph (vi) of Section 14 of the Offer to Purchase) solely as a result of the
declaration and payment by Airgas of the dividend of $0.22 per share
of Common Stock declared on January 28, 2010 and payable on March 31, 2010 to
Airgas stockholders of record as of March 15, 2010.
(3) In
the event that the Purchaser makes any change in the offer price or other terms
of the Offer, including the number or type of securities offered to be
purchased, it will inform Airgas’s stockholders of this development and extend
the expiration date of the Offer, in each case to the extent required by
applicable law.
(4) In
the Schedule 14D-9 filed by Airgas with the SEC on February 22, 2010, Airgas
reported that the Airgas Board had unanimously resolved that the Distribution
Date under the Rights Agreement will be deferred until the earlier of (i) the
close of business on the tenth calendar day after the Stock Acquisition Date (as
defined above) and (ii) such date as may be determined by the Airgas
Board. Unless the Distribution Date occurs, a tender of shares of
Common Stock will include a tender of the associated Rights. If the
Distribution Date does occur, Airgas stockholders will need to tender one Right
with each share of Common Stock tendered in order for such share to be validly
tendered in the Offer. The Purchaser will not pay any additional
consideration for the tender of a Right.
Item
5
Item 5 of
the Schedule TO is hereby amended and supplemented as follows:
On March
1, 2010, Lawrence S. Smith, a member of Air Products’ board of
directors, contacted John van Roden, a member of the Airgas Board, by telephone
to reiterate Air Products’ invitation to
meet to discuss the Offer. Mr. van Roden declined to engage with Mr.
Smith on the matter.
Item
7
Item 7 of
the Schedule TO is hereby amended and supplemented as follows:
On March 3, 2010, Air Products entered
into an amended and restated commitment letter (the “Amended and Restated
Commitment Letter”) with JPMorgan Chase Bank, N.A. and J.P. Morgan Securities
Inc. with respect to the Acquisition Facility and letters of accession (the
“Accession Letters”) with The Royal Bank of Scotland plc and RBS Securities
Inc., Deutsche Bank AG Cayman Island Branch and Deutsche Bank Securities Inc.,
BNP Paribas and BNP Paribas Securities Corp., HSBC Securities (USA) Inc. and
HSBC Bank USA, N.A. and The Bank of Tokyo-Mitsubishi UFJ, Ltd. pursuant to which
such banks joined the Amended and Restated Commitment Letter as
parties. Pursuant to the Amended and Restated Commitment Letter and
these Accession Letters, JPMorgan Chase Bank, N.A., The Royal Bank of Scotland
plc, Deutsche Bank AG Cayman Island Branch, BNP Paribas, HSBC Bank USA, N.A. and
The Bank of Tokyo-Mitsubishi UFJ, Ltd. have committed to provide the Acquisition
Facility to Air Products in an aggregate amount of up to $6.724
billion. The Amended and Restated Commitment Letter replaces JPMorgan
Chase Bank, N.A.’s original commitment letter with respect to the Acquisition
Facility (the “Original Commitment Letter”). The terms and conditions
of the Amended and Restated Commitment Letter with respect to the Acquisition
Facility remain substantially the same as pursuant to the Original Commitment
Letter and as described in the Offer to Purchase. Copies of the
Amended and Restated Commitment Letter and the Accession Letters are filed
as an exhibit to this Schedule TO.
No alternative financing arrangements
are in place at this time.
1
Item
11
Item 11
of the Schedule TO is hereby amended and supplemented as follows:
(1) On
February 22, 2010, Airgas filed a Solicitation/Recommendation Statement on
Schedule 14D-9 with the SEC, reporting that the board of directors of Airgas
unanimously recommends that Airgas’s stockholders reject the Offer and not
tender their Shares pursuant to the Offer.
(2) On
February 11, 2010, Air Products filed an amended complaint that included
additional facts relevant to Air Products’ claims and that
added a new cause of action seeking a declaration that Cravath is not
disqualified from advising and representing Air Products in connection with the
proposed transaction or any litigation relating to the proposed
transaction. On February 15, 2010, Air Products filed an Application
for a Determination that Cravath, Swaine & Moore LLP May Continue to Serve
as its Counsel and Appear in this Case on Behalf of Air Products. On
March 5, 2010, after considering relevant submissions from both parties, the
Delaware Court of Chancery granted Cravath’s application and
declared that Cravath may continue to serve as Air Products' counsel.
(3) On
February 12, 2010, the Pennsylvania Action was removed to the United States
District Court for the Eastern District of Pennsylvania, captioned as Airgas,
Inc. v. Cravath, Swaine & Moore LLP, Civil Action No. 10-612 (the “Federal
Action”). On February 22, 2010 the federal court granted Cravath’s
motion to stay the Federal Action in order to allow the Delaware court to
determine whether Cravath is disqualified from representing Air Products in the
Delaware Action. The federal court has scheduled a status and
scheduling conference for June 23, 2010.
(4) On
February 9, 2010, an Airgas stockholder commenced a putative class action
lawsuit against Airgas and the members of the Airgas Board in the Court of
Chancery in the State of Delaware. In the action, captioned
Montgomery County Employees’ Retirement Fund v. Peter McCausland, et al., Civil
Action No. 5259 (the “Montgomery Stockholder Class Action”), the plaintiff
alleges, among other things, that the Airgas Board violated its fiduciary duties
to Airgas stockholders by refusing to consider Air Products’
overtures. On behalf of all Airgas stockholders, the plaintiff seeks
relief that includes, among other things, an order directing the Airgas Board to
evaluate alternatives to maximize value and enjoining the members of the Airgas
Board “from taking any further action designed to frustrate any potential
transaction that would maximize shareholder value”.
On February 9, 2010, an Airgas
stockholder commenced a putative class action lawsuit against the members of the
Airgas Board in the Court of Chancery in the State of Delaware. In
the action, captioned Policemen’s Annuity and Benefit Fund of Chicago v. Peter
McCausland, et al., Civil Action No. 5263 (the “Chicago Policemen’s Stockholder
Class Action”), the plaintiff alleges that the Airgas Board violated its
fiduciary duties to Airgas stockholders by, among other things, failing to
discuss Air Products’ offer with Air Products. On behalf of all
Airgas stockholders, the plaintiff seeks relief that includes, among other
things, an order declaring that the Airgas directors breached their fiduciary
duties and requiring the Airgas directors to form a special committee of
independent directors to consider and negotiate Air Products’ proposal, and
other potential proposals, in good faith.
On February 9, 2010, an Airgas
stockholder commenced a putative class action lawsuit against the members of the
Airgas Board in the Court of Chancery in the State of Delaware. In
the action, captioned City of Pontiac General Employees’ Retirement System and
City of Pontiac Policemen’s & Firemen’s Retirement System v. Peter
McCausland, et al., Civil Action No. 5262 (the “Pontiac Stockholder Class
Action”), the plaintiff alleges, among other things, that the Airgas Board has
breached its fiduciary duties. On behalf of all Airgas stockholders,
the plaintiff seeks, among other things, an order declaring that the Airgas
directors breached their fiduciary duties and enjoining the Airgas Board from
refusing to respond in good faith to acquisition offers that would maximize
value and from taking further defensive measures that would render completing
the acquisition more burdensome or expensive for a potential
acquirer.
On February 10, 2010, an Airgas
stockholder commenced a putative class action lawsuit against Airgas and the
members of the Airgas Board in the Court of Chancery in the State of
Delaware. In the action, captioned Louisiana Municipal Police
Employees’ Retirement System v. Airgas, Inc., et al., Civil Action No. 5264 (the
“Louisiana Stockholder Class Action”), the plaintiff alleges, among other
things, that the Airgas Board violated its fiduciary duties to Airgas
stockholders by failing to consider Air Products’ proposals and failing to form
a special committee to evaluate the transaction. On behalf of all
Airgas stockholders, the plaintiff seeks relief that includes, among other
things, a declaration that the Airgas directors breached their fiduciary duties
and an injunction to prevent the Airgas directors “from placing their own
interests ahead of the interests of [Airgas] and its shareholders” or initiating
defensive measures that would inhibit the Board’s ability to maximize
value.
On February 16, 2010, an Airgas
stockholder commenced a putative class action lawsuit against the members of the
Airgas Board in the Court of Chancery in the State of Delaware. In
the action, captioned Plumbers’ Union Local No. 12 Pension Fund
v. W. Thacher Brown, et al., Civil Action No. 5271 (the “Plumbers’
Stockholder Class Action”), the plaintiff alleges, among other things, that the
Airgas Board violated its fiduciary duties to Airgas stockholders by
“disenfranchising” Airgas’s stockholders and failing to consider Air Products’
proposals. On behalf of all Airgas stockholders, the plaintiff seeks
relief that includes, among other things, an order declaring that the Airgas
directors breached their fiduciary duties and directing the Airgas directors “to
refrain from advancing their own interests at the expense of Airgas or its
shareholders” and invalidating or directing Airgas to redeem the
Rights.
2
On February 23, 2010, an Airgas
stockholder commenced a putative class action lawsuit against Airgas and the
members of the Airgas Board in the Court of Chancery in the State of
Delaware. In the action, captioned Steven L. Berzner v. Peter
McCausland, et al., Civil Action No. 5282 (the “ Berzner Stockholder Class
Action”), the plaintiff alleges, among other things, that the Airgas Board
violated its fiduciary duties to Airgas stockholders. On behalf of
all Airgas stockholders, the plaintiff seeks relief that includes, among other
things, an order directing the Airgas directors to fulfill their fiduciary
duties by undertaking an evaluation of alternatives to maximize value for
Airgas’s stockholders and enjoining them “from taking any further action
designed to frustrate any potential transaction that would maximize shareholder
value”.
On March 2, 2010, the Delaware court
consolidated these seven stockholder class actions into one action, captioned In
re Airgas, Inc. Stockholder Litigation, Civil Action No. 5256. On
March 3, 2010, co-lead plaintiffs Montgomery County Employees’ Retirement Fund,
City of Pontiac General Employees’ Retirement System, City of Pontiac Police
& Fire Retirement System, Policemen’s Annuity and Benefit Fund of Chicago,
and Plumbers Union Local No. 12 Pension Fund, filed a Verified Amended Class
Action Complaint in the action. Co-lead plaintiffs seek an order
directing the Airgas directors to fulfill their fiduciary duties by undertaking
an appropriate evaluation of alternatives to maximize value for Airgas’s
stockholders, and enjoining them “from taking any further action designed to
frustrate any potential transaction that would maximize shareholder
value”. On March
4, 2010, the co-lead plaintiffs in the consolidated action filed a motion to
expedite the proceedings in that action.
Item 12. Exhibits.
Item
12 of the Schedule
TO is hereby amended and supplemented as follows:
(a)(5)(iii) Text
of message from John McGlade, dated February 12, 2010 (incorporated by reference
to the Schedule 14A filed with the SEC by Air Products and Chemicals, Inc. and
Air Products Distribution, Inc. on February 12, 2010).
(a)(5)(iv) Transcript
of John McGlade and Paul Huck’s presentation at the Barclays 2nd Annual
Industrial Select Conference, dated February 17, 2010 (incorporated by reference
to the Schedule 14A filed with the SEC by Air Products and Chemicals, Inc. and
Air Products Distribution, Inc. on February 18, 2010).
(a)(5)(v) Text
of press release issued by Air Products, dated February 22, 2010 (incorporated
by reference to the Schedule 14A filed with the SEC by Air Products and
Chemicals, Inc. and Air Products Distribution, Inc. on February 22,
2010).
(a)(5)(vi) Presentation
of Paul Huck at the Morgan Stanley Global Basic Materials Conference, dated
February 25, 2010 (incorporated by reference to the Schedule 14A filed with
the SEC by Air Products and Chemicals, Inc. and Air Products Distribution, Inc.
on February 25, 2010).
(a)(5)(vii) Transcript
of Paul Huck’s presentation at the Morgan Stanley Global Basic Materials
Conference, dated February 25, 2010 (incorporated by reference to the
Schedule 14A filed with the SEC by Air Products and Chemicals, Inc. and Air
Products Distribution, Inc. on March 2, 2010).
(a)(5)(viii) Text
of message from John McGlade, dated March 5, 2010 (incorporated by reference to
the Schedule 14A filed with the SEC by Air Products and Chemicals, Inc. and Air
Products Distribution, Inc. on March 5, 2010).
(a)(5)(ix)
Text of press release issued by Air Products, dated March 5, 2010 (incorporated
by reference to the Schedule 14A filed with the SEC by Air Products and
Chemicals, Inc. and Air Products Distribution, Inc. on March 5,
2010).
(b)(2) Amended
and Restated Commitment Letter dated March 3, 2010 among Air Products and
Chemicals, Inc., JPMorgan Chase Bank, N.A. and J.P. Morgan Securities
Inc.
(b)(3) Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., The Royal
Bank of Scotland plc and RBS Securities Inc.
(b)(4) Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., Deutsche Bank
AG Cayman Island Branch and Deutsche Bank Securities Inc.
(b)(5) Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., BNP Paribas
and BNP Paribas Securities Corp.
(b)(6) Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., HSBC
Securities (USA) Inc. and HSBC Bank USA, N.A.
(b)(7) Accession
Letter dated March 3, 2010 between Air Products and Chemicals, Inc. and The Bank
of Tokyo-Mitsubishi UFJ, Ltd.
3
SIGNATURE
After due inquiry and to the best of
my knowledge and belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated: March
5, 2010
| AIR PRODUCTS AND CHEMICALS, INC. | |||
|
|
By:
|
/s/ John D. Stanley | |
| Name: John D. Stanley | |||
| Title: Senior Vice President and General Counsel | |||
| AIR PRODUCTS DISTRIBUTION, INC. | |||
|
|
By:
|
/s/ John D. Stanley | |
| Name: John D. Stanley | |||
| Title: Secretary | |||
4
EXHIBIT INDEX
|
Index
No.
|
||
|
(a)(1)(i)
|
Offer
to Purchase dated February 11, 2010.*
|
|
|
(a)(1)(ii)
|
Form
of Letter of Transmittal.*
|
|
|
(a)(1)(iii)
|
Form
of Notice of Guaranteed Delivery.*
|
|
|
(a)(1)(iv)
|
Form
of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.*
|
|
|
(a)(1)(v)
|
Form
of Letter to Clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.*
|
|
|
(a)(1)(vi)
|
Guidelines
for Certification of Taxpayer Identification Number on Substitute
Form W-9.*
|
|
|
(a)(1)(vii)
|
Form
of summary advertisement dated February 11, 2010.*
|
|
|
(a)(5)(i)
|
Text
of press release issued by Air Products, dated February 5,
2010.*
|
|
|
(a)(5)(ii)
|
Text
of press release issued by Air Products, dated February 11,
2010.*
|
|
|
(a)(5)(iii)
|
Text
of message from John McGlade, dated February 12, 2010 (incorporated by
reference to the Schedule 14A filed with the SEC by Air Products and
Chemicals, Inc. and Air Products Distribution, Inc. on February 12,
2010).
|
|
|
(a)(5)(iv)
|
Transcript
of John McGlade and Paul Huck’s presentation at the Barclays 2nd Annual
Industrial Select Conference, dated February 17, 2010 (incorporated by
reference to the Schedule 14A filed with the SEC by Air Products and
Chemicals, Inc. and Air Products Distribution, Inc. on February 18,
2010).
|
|
|
(a)(5)(v)
|
Text
of press release issued by Air Products, dated February 22, 2010
(incorporated by reference to the Schedule 14A filed with the SEC by Air
Products and Chemicals, Inc. and Air Products Distribution, Inc. on
February 22, 2010).
|
|
|
(a)(5)(vi)
|
Presentation
of Paul Huck at the Morgan Stanley Global Basic Materials Conference,
dated February 25, 2010 (incorporated by reference to the Schedule 14A
filed with the SEC by Air Products and Chemicals, Inc. and Air Products
Distribution, Inc. on February 25, 2010).
|
|
|
(a)(5)(vii)
|
Transcript
of Paul Huck’s presentation at the Morgan Stanley Global Basic Materials
Conference, dated February 25, 2010 (incorporated by reference to the
Schedule 14A filed with the SEC by Air Products and Chemicals, Inc. and
Air Products Distribution, Inc. on March 2, 2010).
|
|
|
(a)(5)(viii)
|
Text
of message from John McGlade, dated March 5, 2010 (incorporated by
reference to the Schedule 14A filed with the SEC by Air Products and
Chemicals, Inc. and Air Products Distribution, Inc. on March 5,
2010).
|
|
| (a)(5)(ix) |
Text
of press release issued by Air Products, dated March 5, 2010 (incorporated
by reference to the Schedule 14A filed with the SEC by Air Products and
Chemicals, Inc. and Air Products Distribution, Inc. on March 5,
2010).
|
|
|
(b)(1)
|
Commitment
letter described in Section 10, “Source and Amount of Funds” of the
Offer to Purchase.*
|
|
|
(b)(2)
|
Amended
and Restated Commitment Letter dated March 3, 2010 among Air Products and
Chemicals, Inc., JPMorgan Chase Bank, N.A. and J.P. Morgan Securities
Inc.
|
|
|
(b)(3)
|
Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., The
Royal Bank of Scotland plc and RBS Securities Inc.
|
|
|
(b)(4)
|
Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc.,
Deutsche Bank AG Cayman Island Branch and Deutsche Bank Securities
Inc.
|
|
|
(b)(5)
|
Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., BNP
Paribas and BNP Paribas Securities Corp.
|
|
|
(b)(6)
|
Accession
Letter dated March 3, 2010 among Air Products and Chemicals, Inc., HSBC
Securities (USA) Inc. and HSBC Bank USA, N.A.
|
|
|
(b)(7)
|
Accession
Letter dated March 3, 2010 between Air Products and Chemicals, Inc. and
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
|
|
|
(d)
|
Not
applicable.
|
|
|
(g)
|
Not
applicable.
|
|
|
(h)
|
Not
applicable.
|
|
*
|
Previously
filed
|
Exhibit
(b)(2)
J.P.
MORGAN SECURITIES INC.
JPMORGAN
CHASE BANK, N.A.
270 Park
Avenue
New York,
New York 10017
March 3, 2010
Amended and Restated
Commitment Letter
Air
Products and Chemicals, Inc.
7201
Hamilton Boulevard
Allentown,
PA 18195-1501
Attention: Paul
E. Huck
Senior Vice President and Chief
Financial Officer
Ladies
and Gentlemen:
In connection with the Credit
Facility (as defined below) to be provided to Air Products and Chemicals, Inc.,
a Delaware corporation (“Aspen” or “you”), on the terms
and subject to the conditions set forth herein, this letter agreement sets forth
the understanding of the parties hereto regarding the participation in respect
thereof of JPMorgan Chase Bank, N.A. (“JPMorgan Chase
Bank”), J.P. Morgan Securities Inc., (“JPMorgan”) and each
other bank or other financial institution that becomes a party hereto as an
“Additional Initial
Lender” or a “Joint Lead Arranger”
pursuant to an accession letter in the form attached as Exhibit C hereto (each,
an “Accession
Letter”). In this letter agreement, JPMorgan Chase Bank and
the Additional Initial Lenders are collectively referred to as the “Initial Lenders”,
JPMorgan and the Joint Lead Arrangers are collectively referred to as the “Arrangers”, and the
Initial Lenders and the Arrangers are collectively referred to as the “Commitment
Parties”. This letter agreement, together with Exhibits A, B
and C hereto (and the Annexes attached to such Exhibits) and each Accession
Letter, are collectively referred to herein as this “Commitment
Letter”. This letter agreement amends and restates the
Commitment Letter, dated February 4, 2010 (the “Original Commitment
Letter”), among Aspen, JPMorgan and JPMorgan Chase Bank with respect to
the Credit Facility. Capitalized terms used but not defined herein
are used with the meanings assigned to them in Exhibits A and B hereto (such
exhibits, collectively, the “Term
Sheets”).
You have informed the Commitment
Parties that (a) you have commenced, through a newly formed subsidiary (“Offerco”), a tender
offer (the “Offer”) for all of
the common stock of a company previously identified to the Commitment Parties as
Flashback (“Flashback”), (b) as
promptly as practicable following a successful consummation of the Offer, you
intend to effect a merger (the “Merger”) of Offerco
with Flashback, with the surviving corporation of the Merger being a wholly
owned subsidiary of Aspen, and (c) in connection with the Offer and the Merger,
you intend to assist Flashback in effecting such timely prepayments and offers
for outstanding indebtedness of Flashback as are required under the terms
thereof as a consequence of the Offer or the Merger (the “Flashback
Refinancing” and, together with the Offer and the Merger, the “Transactions”). In
order to finance the Transactions, you have requested that (a) JPMorgan agree to
structure, arrange and syndicate a senior unsecured term credit facility in the
principal amount of $6,724,000,000 (the “Credit Facility”),
(b) JPMorgan Chase Bank commit to provide the entire amount of the Credit
Facility, subject to the reductions as provided for herein, (c) each Additional
Initial Lender, upon becoming a party hereto pursuant to an Accession Letter,
commit to provide that portion of the Credit Facility as is specified with
respect to such Additional Initial Lender in such Accession Letter and (d)
JPMorgan Chase Bank agree to serve as administrative agent for the Credit
Facility.
JPMorgan
Chase Bank is pleased to advise you of its commitment to provide the entire
principal amount of the Credit Facility, subject to the reductions provided for
herein, upon the terms and subject to the conditions expressly set forth in this
Commitment Letter. Each Additional Initial Lender, upon execution and
delivery by the parties thereto of an Accession Letter, will have committed to
provide a portion of the Credit Facility specified in such Accession Letter,
upon the terms and subject to the conditions expressly set forth in this
Commitment Letter. Upon effectiveness of any such commitment of an Additional
Initial Lender that becomes a party hereto on the date hereof, the commitment in
respect of the Credit Facility of JPMorgan Chase Bank will be reduced by the
amount of such commitment of such Additional Initial Lender in accordance with
the Additional Initial Lender Fee Letter (as defined below). Upon the
effectiveness of any commitment in respect of the Credit Facility of any other
Lender (as defined below), which commitment shall be evidenced as set forth
below, the commitments of JPMorgan Chase Bank and the Additional Initial Lenders
in respect of the Credit Facility shall be reduced in the aggregate by the
amount of such commitment of such other Lender in accordance with the Additional
Initial Lender Fee Letter. The commitments in respect of the Credit
Facility of the Initial Lenders are several and not joint. For
purposes of this Commitment Letter, the term “Additional Initial Lender
Commitment” of any Additional Initial Lender shall mean, at any time, the
amount of the commitment in respect of the Credit Facility of such Additional
Initial Lender as set forth in the Accession Letter pursuant to which such
Additional Initial Lender became a party thereto, as such commitment may be
reduced as set forth herein or as otherwise set forth in Exhibit A
hereto.
It is agreed that JPMorgan will act
as a joint lead arranger and sole bookrunner for the Credit Facility (in such
capacity, the “Bookrunner”), and
that JPMorgan Chase Bank will act as the sole administrative agent for the
Credit Facility, in each case upon the terms and subject to the conditions
expressly set forth in this Commitment Letter. Each of JPMorgan and
JPMorgan Chase Bank will, in such capacities, perform the duties and exercise
the authority customarily performed and exercised by it in such
roles. You agree that no other agents, co-agents or arrangers will be
appointed, no other titles will be awarded and no compensation (other than that
expressly contemplated by this Commitment Letter and the Fee Letters referred to
below) will be paid in connection with the Credit Facility unless you and the
Bookrunner shall so agree.
It is acknowledged that the
Bookrunner has commenced, in consultation with you, the syndication of the
Credit Facility to a group of banks and other financial institutions that will
become Additional Initial Lenders and the Joint Lead Arrangers pursuant to the
Accession Letters and, as soon as practical after the date hereof, intends to
commence the syndication of the Credit Facility to other banks and other
financial institutions that will provide commitments, to be evidenced pursuant
to the Credit Facility Documentation or such other written documentation as you
and the Bookrunner shall otherwise agree, to provide a portion of the Credit
Facility (such syndication of the Credit Facility is referred to as the “Syndication”; and
each such bank or other financial institution so committing during the
Syndication being referred to as a “Lender”). You
acknowledge that the Bookrunner shall, in consultation with you, determine when
the Syndication has been completed. The Additional Initial Lenders,
the Joint Lead Arrangers and the other banks and other financial institutions
identified and selected to act as the Lenders shall be subject to your prior
written consent (such consent not to be unreasonably withheld). The
Bookrunner will, in consultation with you and subject to your consent and
consultation rights set forth above, manage the Syndication, including
determining any title of agent or similar designations or roles awarded to any
Lender (or any affiliate thereof), the acceptance of the commitments, the
amounts offered and the compensation provided to each Lender from the amounts to
be paid to the Bookrunner or its affiliates pursuant to the terms of the
Bookrunner Fee Letter (as defined below) (it being understood that no Lender
shall be entitled to greater economics with respect to the Credit Facility than
any of the Joint Lead Arrangers or Additional Initial Lenders). The
Bookrunner will determine the final commitment allocations for the Syndication,
which final commitment allocations shall be subject to your prior written
consent (such consent not to be unreasonably withheld). To assist
with the Syndication, you agree to use commercially reasonable efforts to
execute and deliver definitive documentation with respect to the Credit Facility
consistent with the terms set forth herein and in the Term Sheets (the “Credit Facility
Documentation”), substantially concurrently with, or promptly following,
the completion of the Syndication; provided that the
terms of the Credit Facility Documentation shall appropriately reflect that you
may learn information with respect to Flashback and its subsidiaries after the
date of execution and delivery thereof. Notwithstanding anything in
this Commitment Letter to the contrary, the terms of the Credit Facility
Documentation shall be negotiated by the parties hereto in good faith not to be
in a form such that the Credit Facility is not available on the Effective Date
if the conditions precedent expressly set forth in the eleventh paragraph hereof
and in the Term Sheets are satisfied.
2
You agree
to actively assist the Bookrunner in completing the Syndication in a manner
satisfactory to the Bookrunner as soon as is practicable. Such
assistance shall include (a) your using commercially reasonable efforts to
ensure that the syndication efforts benefit from your existing lending
relationships, (b) direct contact between your senior management and advisors
and the proposed Lenders (including, as reasonably requested, direct contact
with individuals proposed), (c) your assistance in the preparation of a
customary confidential information memorandum and other materials as
contemplated below to be used in connection with the Syndication (collectively,
the “Confidential Information
Memorandum”), including using commercially reasonable efforts to assist
in the completion of the Confidential Information Memorandum as soon as
reasonably practicable following the date hereof, and (d) the hosting, with the
Bookrunner, of one or more meetings and conference calls with prospective
Lenders at times and locations mutually agreed upon. It is understood
that information available to you with respect to Flashback and its subsidiaries
may be limited to information made publicly available by Flashback, and you
shall not be deemed to be in breach of your agreements set forth above, or any
other obligations to provide information or assist with respect to the
Syndication, on account of such limitation.
The Bookrunner will not have any
responsibility other than to arrange and syndicate the Credit Facility as set
forth herein, and in no event shall the Bookrunner or any other Arranger be
subject to any fiduciary or other implied duties. To assist the
Bookrunner in the Syndication, you will promptly prepare and provide all
customary information with respect to you and, to the extent available to you,
Flashback, and with respect to the Transactions and the other transactions
contemplated hereby, including all financial information and projections (the
“Projections”), that the
Bookrunner may reasonably request in connection with the preparation of the
Confidential Information Memorandum and otherwise in connection with the
arrangement and syndication of the Credit Facility. At the
Bookrunner’s request, you agree to assist in the preparation of a version of the
Confidential Information Memorandum and other information consisting exclusively
of information and documentation that either is publicly available or is not
material with respect to you and your affiliates and any of your or their
respective securities (or, to the best of your knowledge, with respect to
Flashback and its affiliates and any of its or their respective securities) for
purposes of United States federal and state securities laws (all such
information and documentation being “Public Lender
Information”). Any information and documentation that is not
Public Lender Information is referred to herein as “Private Lender
Information”. You further agree that each document to be
disseminated by the Bookrunner to any Lender in connection with the Credit
Facility will, at the request of the Bookrunner, be identified by you as either
(a) containing Private Lender Information or (b) containing solely Public Lender
Information, it being understood that such identification shall be made, insofar
as such document contains information relating to Flashback and its
subsidiaries, to the best of your knowledge. You acknowledge and
agree that the following documents may be distributed to “public side” Lenders
(i.e., Lenders that do not wish to receive material non-public information with
respect to you, Flashback, your or its affiliates or your, its or their
securities): (i) drafts and final versions of the Credit Facility
Documentation, (ii) administrative materials prepared by the Bookrunner for
prospective Lenders (such as a lender meeting invitation, bank allocation, if
any, and funding and closing memoranda) and (iii) notification of changes in the
terms of the Credit Facility. You also agree to promptly deliver to
the Commitment Parties copies of appropriate drafts and final versions of all
amendments, modifications, waivers and consents to or in respect of the
documents related to the Offer furnished to the Commitment Parties prior to the
date hereof and appropriate drafts and final versions of all other material
documents relating to the Transactions as may be prepared and signed following
the date hereof, and in the case of each such draft to afford the Bookrunner an
opportunity, reasonable under the circumstances, to comment on provisions
thereof material to the interests of the Commitment Parties and the
Lenders.
3
If any Initial Lender becomes a
Defaulting Lender (as defined below), you may, at your sole expense and effort,
upon notice to such Initial Lender and the Bookrunner, require such Initial
Lender to assign and delegate, without recourse, all of its interests, rights
and obligations under this Commitment Letter to an assignee selected by you in
consultation with the Bookrunner (a “Replacement Lender”), that shall
assume such obligations (which assignee may be another Initial Lender, if such
other Initial Lender accepts such assignment). The Bookrunner agrees
to use its commercially reasonable efforts to assist Aspen in identifying a
Replacement Lender and effecting any such assignment and delegation (it being
understood that such efforts shall not be deemed to require the Bookrunner to
cause any of its affiliates to agree to become the Replacement
Lender). It is understood and agreed that any such assignment and
delegation shall not reduce or otherwise affect the commitments in respect of
the Credit Facility of the other Initial Lenders. For purposes of the
foregoing, “Defaulting Lender”
shall mean any Initial Lender that (a) is (or is controlled by any person or
entity that is) insolvent or becomes subject to a bankruptcy, insolvency,
receivership, conservatorship or other similar proceeding, (b) has (or is
controlled by any person or entity that has) become a “defaulting” lender
generally in credit agreements to which it is a party (other than actions taken
in good faith to exercise or preserve its rights and remedies as lender) or (c)
refuses to execute (after reasonable written notice to such Initial Lender) or,
in your reasonable judgment following consultation with the applicable Initial
Lender and the Bookrunner, materially delays in executing the Credit Facility
Documentation. Notwithstanding the foregoing, no Lender shall be a
Defaulting Lender solely by virtue of the ownership or acquisition of any equity
interest in such Lender or a parent company thereof by a governmental authority
or an instrumentality thereof.
The fees related to the Credit Facility
payable to the Additional Initial Lenders and the Joint Lead Arrangers are as
set forth on the Additional Initial Lender Fee and Side Letter, dated March 3,
2010, among JPMorgan Chase Bank, JPMorgan and the Additional Initial Lenders (as
amended, restated or otherwise modified from time to time, the “Additional Initial Lender Fee
Letter”), and the fees payable to JPMorgan and JPMorgan Chase Bank are as
set forth in the Fee Letter, dated as of February 4, 2010, among JPMorgan,
JPMorgan Chase Bank and you (as amended as of the date hereof and as amended,
restated or otherwise modified from time to time, the “Bookrunner Fee Letter”, and together
with the Additional Initial Lender Fee Letter, the “Fee Letters”). It is agreed
that (a) no other fees shall be payable to any Additional Initial Lender or
Joint Lead Arranger, in each case in its capacity as such, other than as set
forth in the Additional Initial Lender Fee Letter and (b) in no event shall fees
(expressed as percentages) paid or payable in respect of the Credit Facility to
any Additional Initial Lender or Joint Lead Arranger be less than the fees
(expressed as percentages) paid or payable in respect thereof to any other
Additional Initial Lender (or any other Lender) or any other Joint Lead
Arranger, in each case other than JPMorgan, JPMorgan Chase Bank and their
affiliates. You agree that, once paid, the fees or any part thereof
payable by you hereunder shall not be refundable under any circumstances (except
as expressly provided in the Fee Letters), regardless of whether the
transactions or borrowings contemplated hereunder are consummated.
You hereby represent and warrant that
(a) all written information and all oral communications made in Lender meetings
and due diligence sessions held in connection with the Syndication, taken as a
whole, other than the Projections provided to the Commitment Parties and
information of a general economic or industry nature (the “Information”), that has been or will
be made available to the Commitment Parties by you or any of your
representatives (with respect to information relating to Flashback and its
affiliates, in each case to the best of your knowledge) is or will be, when
furnished, complete and correct in all material respects and does not or will
not, when furnished, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained
therein not materially misleading in light of the circumstances under which such
statements are made and (b) the Projections that have been or will be made
available to the Commitment Parties by you or any of your representatives have
been or will be prepared in good faith based upon assumptions believed by you to
be reasonable at the time made and at the time the related Projections are made
available to the Commitment Parties (it being understood that (i) the
Projections and your assumptions with respect thereto, in each case insofar as
they relate to Flashback and its affiliates, would be based on information
available to you with respect to Flashback and its subsidiaries and that such
information may be limited, (ii) the Projections are subject to significant
uncertainties, (iii) the variances between actual results and projected results
may be material and (iv) no assurances can be given that any projections will be
realized). You understand that in arranging and syndicating the
Credit Facility the Arrangers may use and rely on the Information and
Projections without independent verification thereof.
4
The commitments of the Initial
Lenders pursuant hereto and the agreements of the Commitment Parties
to perform the services described herein are subject to (a) (i) there not having
occurred any event, change, occurrence or circumstance that, individually or in
the aggregate, has had or would reasonably be expected to have a material
adverse effect on the business, operation, property or financial condition of
Aspen and its subsidiaries, taken as a whole, since September 30, 2009 and (ii)
no change having occurred or being threatened (or any development having
occurred or being threatened that involves a prospective change) in the
business, assets, liabilities, financial condition, capitalization, operations,
results of operations or prospects of Flashback or any of its affiliates
that, in the Borrower’s judgment, is or may be materially adverse to Flashback
or any of its affiliates, (b) satisfaction of the Bookrunner that there shall be
no competing offering, placement or arrangement of any debt securities or bank
financing by or on behalf of Aspen or any of its subsidiaries or, during any
period when you control Flashback, Flashback or any of its subsidiaries, that
could reasonably be expected to materially impair the Syndication, other than
any amendment, refinancing or re-syndication of Aspen’s existing revolving
credit facility (including any increase therein as mutually agreed) effected in
coordination with the Arrangers, (c) compliance by you in all material respects
with your agreements hereunder to provide information and otherwise assist in
respect of the Syndication, other than to the extent noncompliance therewith has
not materially impeded the Syndication, and (d) the other conditions expressly
set forth in the Term Sheet.
You agree to indemnify and hold
harmless each of the Commitment Parties, its affiliates and their respective
officers, directors, employees, advisors and agents (each, an “indemnified person”) from and against
any and all losses, claims, damages and liabilities to which any such
indemnified person may become subject arising out of or in connection with this
Commitment Letter, the Fee Letters, the Credit Facility, the use of the proceeds
thereof, the Transactions or any claim, litigation, investigation or proceeding
relating to any of the foregoing, regardless of whether any indemnified person
is a party thereto, and to reimburse each indemnified person upon demand for any
reasonable out-of-pocket legal expenses (but only for one firm of counsel for
all the Commitment Parties; provided that if, in the reasonable opinion of the
relevant Commitment Party, representation of all of the Commitment Parties by
one firm of counsel would be inappropriate due to the existence of an actual or
potential conflict of interest, you shall reimburse the reasonable out-of-pocket
legal expenses of no more than such number of additional firms of counsel for
the Commitment Parties as is necessary to avoid such actual or potential
conflict of interest) or other expenses, in each case, incurred in connection
with investigating or defending any of the foregoing, provided that the foregoing indemnity
and reimbursement will not, as to any indemnified person, apply to losses,
claims, damages, liabilities or related expenses (i) to the extent they are
found by a final, non-appealable judgment of a court to arise from the willful
misconduct or gross negligence of such indemnified person or any of its
affiliates or its or their respective officers, directors, employees, advisors
or agents, (ii) to the extent they are found by a final, non-appealable judgment
of a court to have resulted from a breach of the obligations of such indemnified
person under this Commitment Letter or the Credit Facility Documentation and
(iii) arising out of or in connection with any claim, litigation, investigation
or proceeding that does not involve an act or omission of you or any of your
affiliates and that is brought by an indemnified person against any other
indemnified person. You also agree to reimburse JPMorgan and JPMorgan
Chase Bank and their affiliates on demand for all reasonable out-of-pocket
expenses (including due diligence expenses, syndication expenses, travel
expenses and fees, charges and disbursements of counsel (but not more than one
firm of counsel (other than regulatory counsel))) incurred in connection with
the Credit Facility and any related documentation (including this Commitment
Letter, the Fee Letters and the Credit Facility Documentation) or the
administration, amendment, modification or waiver thereof. No
indemnified person shall be liable for any damages arising from the use by
unauthorized persons of Information or other materials sent through electronic,
telecommunications or other information transmission systems that are
intercepted by such persons or for any special, indirect, consequential or
punitive damages in connection with this Commitment Letter, the Credit Facility
or the Transactions.
5
You
acknowledge that the Commitment Parties and their affiliates (collectively
referred to as the “Covered
Parties”) may be providing debt financing, equity capital or other
services (including financial advisory services) to other companies in respect
of which you may have conflicting interests. The Covered Parties will
not use confidential information obtained from you or your representatives by
virtue of the Transactions or their other relationships with you in connection
with the performance by them of services for other companies, and the Commitment
Parties will not furnish any such information to other companies. You
also acknowledge that the Covered Parties have no obligation to use in
connection with the Transactions, or to furnish to you, confidential information
obtained from other companies.
Each of the Covered Parties may have
economic interests that conflict with yours. You agree that each of
the Covered Parties will act under this Commitment Letter as an independent
contractor and that nothing in this Commitment Letter, the Fee Letters or
otherwise in connection with the Credit Facility will be deemed to create an
advisory, fiduciary or agency relationship or fiduciary or other implied duty
between any Covered Party and you, Flashback or any of their respective
equityholders or affiliates. You acknowledge and agree that the
transactions contemplated by this Commitment Letter and the Fee Letters
(including the exercise of rights and remedies hereunder and thereunder) are
arm’s-length commercial transactions between each Covered Party, on the one
hand, and you, on the other, and in connection therewith and with the process
leading thereto, (a) no Covered Party has assumed (i) an advisory
responsibility in favor of you with respect to the financing transactions
contemplated hereby or (ii) a fiduciary responsibility in favor of you with
respect to the transactions contemplated hereby or, in each case, with respect
to the exercise of rights or remedies with respect thereto or the process
leading thereto (irrespective of whether any Covered Party has advised, is
currently advising or will advise you on other matters) or any other obligation
of any Covered Party except the obligations expressly set forth in this
Commitment Letter and the Fee Letters and (b) each Covered Party is
acting solely as a principal and not as the agent or fiduciary of or any other
person. You acknowledge and agree that you have consulted your own
legal and financial advisors to the extent you deemed appropriate, that you are
responsible for making your own independent judgment with respect to such
transactions and the process leading thereto and that no Covered Party provides
accounting, tax or legal advice.
In addition, please note that JPMorgan
has been retained by you as its financial advisor, (in such capacity, the “Financial Advisor”) in connection with
the Offer and the Merger. You agree not to assert any claim based on
any actual or potential conflicts of interest that might be asserted to arise or
result from, on the one hand, the engagement of the Financial Advisor and, on
the other hand, any Covered Party arranging or providing or contemplating
arranging or providing financing as contemplated herein.
This Commitment Letter shall not be
assignable by (a) you without the prior written consent of each Commitment Party
or (b) by any Commitment Party without the prior written consent of the
Bookrunner and you (and any purported assignment without such consent shall be
null and void), is intended to be solely for the benefit of the parties hereto
and is not intended to confer any benefits upon, or create any rights in favor
of, any person other than the parties hereto and any indemnified persons (it
being agreed that each Additional Initial Lender reserves the right in its sole
discretion at any time to assign and delegate all or a portion of its commitment
in respect of the Credit Facility hereunder, and to allocate all or a portion of
its fees payable in connection therewith, to one or more of its affiliates,
provided that no such assignment
or delegation shall relieve such Additional Initial Lender of any of its
obligations hereunder or under the Credit Facility Documentation, including of
any obligation in respect of its commitment in respect of the Credit Facility,
in the event such affiliate shall fail to perform such obligation in accordance
with the terms hereof or the Credit Facility Documentation, as
applicable). The Commitment Parties agree, as between themselves and
without affecting the rights of Aspen hereunder, that notwithstanding anything
to the contrary in the Term Sheets and the Credit Facility Documentation, all
assignments, participations and other transfers of commitments or loans in
respect of the Credit Facility by any Commitment Party or any of its affiliates
or branches (other than to affiliates as set forth above) shall be made in
accordance with the procedures set forth in the Additional Initial Lender Fee
Letter. This Commitment Letter may not be amended or any term or provision
hereof waived or modified except by an instrument in writing signed by each of
the parties hereto (including for the avoidance of doubt, each Additional
Initial Lender and Joint Lead Arranger that shall have become a party hereto
pursuant to an Accession Letter), and any term or provision hereof may be
amended or waived only by a written agreement executed and delivered by all such
parties hereto.
6
This Commitment Letter may be executed
in any number of counterparts, each of which shall be an original, and all of
which, when taken together, shall constitute one agreement. Delivery
of an executed signature page of this Commitment Letter by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof. This Commitment Letter and the Fee Letters are the only
agreements that have been entered into among the parties hereto with respect to
the Credit Facility (except for the Original Commitment Letter, which is amended
and restated entirely to be in the form hereof (except that the indemnification
provisions therein shall survive), and certain confidentiality and exclusivity
agreements) and sets forth the entire understanding of the parties hereto with
respect thereto (excluding the matters covered by such confidentiality and
exclusivity agreements).
This Commitment Letter shall be
governed by, and construed in accordance with, the laws of the State of New
York. Any right to trial by jury with
respect to any action or proceeding arising in connection with or as a result of
this Commitment Letter or the Fee Letters or any arrangement or other matter
referred to herein or therein is hereby waived by the parties
hereto.
Each
party hereto irrevocably and unconditionally submits to the exclusive
jurisdiction of any state or federal court sitting in the Borough of Manhattan
in New York City over any suit, action or proceeding arising out of or relating
to this Commitment Letter or the Fee Letters. Service of any process,
summons, notice or document by registered mail addressed to any party hereto
shall be effective service of process against such person for any suit, action
or proceeding brought in any such court. Each party hereto
irrevocably and unconditionally waives any objection to the laying of venue of
any such suit, action or proceeding brought in any such court and any claim that
any such suit, action or proceeding has been brought in an inconvenient
forum. A final judgment in any such suit, action or proceeding
brought in any such court may be enforced in any other courts to whose
jurisdiction any party hereto is or may be subject, by suit upon
judgment.
This Commitment Letter is delivered to
you on the understanding, and subject to your agreement, that neither this
Commitment Letter nor the Fee Letters nor any of their terms or substance shall
be disclosed, directly or indirectly, to any other person (including, without
limitation, other potential providers or arrangers of financing) except
(a) to your directors, officers, employees, agents and advisors and (in the
case of the Commitment Letter (but not the Fee Letters or the terms or substance
thereof)), on a confidential basis, those of Flashback who are directly involved
in the consideration of the Transactions or (b) (i) as may be compelled in a
judicial or administrative proceeding, (ii) as otherwise required by law or
regulation or requested by any United States or foreign governmental or
regulatory authority having jurisdiction over Aspen, Flashback or their
respective subsidiaries, (iii) without limiting clause (ii) above, in the case
of the Commitment Letter (but not the Fee Letters or the terms and substance
thereof) as you may determine is necessary or advisable to comply with your
obligations under securities and other applicable laws and regulations and (iv)
in the case of the Term Sheets and their terms and substance, to any rating
agency in connection with the Transactions (in each such case pursuant to clause
(b), you agree to inform the Arrangers promptly thereof except to the extent
prohibited by applicable law). Notwithstanding anything to the contrary in this
Commitment Letter, neither you nor any third party may disclose, circulate or
refer to publicly (including in any public filings with the SEC, press release
or otherwise) the Fee Letters or any of the contents thereof without the prior
written consent of JPMorgan (not to be unreasonably withheld) except as provided
in clause (b) of the preceding sentence.
7
The Commitment Parties shall use all
nonpublic information received by them in connection with the Transactions
solely for purposes that are the subject of this Commitment Letter and the
transactions contemplated hereby and shall treat confidentially all such
information; provided, however, that nothing herein shall
prevent any Commitment Party from disclosing any such information (a) to any
Lenders or participants or prospective Lenders or participants and any direct or
indirect contractual counterparties to any swap or derivative transaction
relating to you or your obligations under the Credit Facility (collectively,
“Specified Counterparties”),
provided that any such
disclosure shall be made subject to the acknowledgment and acceptance by such
Lender or prospective Lender or participant or prospective participant or
Specified Counterparty that such information is being disseminated on a
confidential basis in accordance with the standard syndication process of
JPMorgan or customary market standards for dissemination of such types of
information, (b) in any legal, judicial, administrative proceeding or other
process or otherwise as required by applicable law or regulations (in which case
such Commitment Party shall promptly notify you, in advance, to the extent
permitted by law), (c) upon the request or demand of any regulatory authority
having jurisdiction over such Commitment Party or its affiliates (in which case
such Commitment Party shall, except with respect to any audit or examination
conducted by bank accountants or any governmental bank regulatory authority
exercising examination or regulatory authority, promptly notify you, in advance,
to the extent lawfully permitted to do so), (d) to the employees, legal counsel,
independent auditors, professionals and other experts or agents of such
Commitment Party (collectively, “Representatives”) who are informed of
the confidential nature of such information, (e) to any of its affiliates solely
in connection with the Transactions (provided that such information shall be
provided on confidential basis, and such Commitment Party shall be responsible
for its affiliates’ compliance with this paragraph), (f) to the extent any such
information becomes publicly available other than by reason of disclosure by
such Commitment Party, its affiliates or Representatives in breach of this
Commitment Letter and (g) for purposes of establishing a “due diligence” or
other similar defense. The obligations of the Commitment Parties
under this paragraph shall remain in effect until the earlier of (i) one year
from the date of termination of the commitments and agreements of the Commitment
Parties hereunder and (ii) the date the Credit Facility Documentation becomes
effective, at which time any confidentiality undertaking in the Credit Facility
Documentation shall supersede the provisions of this paragraph.
Each of the Commitment Parties hereby
notifies you that, pursuant to the requirements of the USA Patriot Act, Title
III of Pub. L. 107-56 (signed into law on October 26, 2001) (the “Patriot Act”), it is required to
obtain, verify and record information that identifies the Borrower (as defined
in the Term Sheet), which information includes names and addresses and other
information that will allow such Commitment Party to identify the Borrower in
accordance with the Patriot Act.
The compensation, reimbursement,
indemnification, syndication and confidentiality provisions contained herein and
the market flex provisions contained in the Bookrunner Fee Letter, and any other
provision herein which by its terms expressly survives the termination of this
Commitment Letter shall remain in full force and effect regardless of whether
the Credit Facility Documentation shall be executed and delivered and
notwithstanding the termination of this Commitment Letter or the commitments and
agreements of any Commitment Party hereunder; provided that your obligations under
this Commitment Letter (but not the Fee Letters), other than your obligations
with respect to indemnification, confidentiality and syndication, shall
automatically terminate and be superseded by the provisions of the Credit
Facility Documentation upon the effectiveness thereof, and you shall
automatically be released from all liability in connection therewith at such
time. The commitments and agreements hereunder may be terminated in
whole or in part by you at any time subject to the provisions of the preceding
sentence.
8
Subject to the immediately preceding
paragraph, the commitments and agreements of the Commitment Parties under this
Commitment Letter shall automatically terminate upon the earliest to occur of
(a) the Effective Date, (b) the consummation of the Merger, (c) the execution
and delivery of the Credit Facility Documentation and the effectiveness thereof,
(d) the termination or abandonment by you of the Offer and (e) February 4, 2011,
unless, in the case of this clause (e), each Commitment Party shall, in its sole
discretion, agree to an extension.
If the foregoing correctly sets forth
the agreement between us and you, please indicate your acceptance of the terms
hereof and of the Term Sheets by returning to us executed counterparts of this
letter agreement by no later than 5:00 p.m., New York City time, on March 5,
2010.
[Remainder
of Page Intentionally Left Blank]
9
We are
pleased to have been given the opportunity to assist you in connection with this
important financing.
|
Very
truly yours,
|
||
|
J.P.
MORGAN SECURITIES INC.
|
||
|
By:
|
/s/
Lisa Kopff
|
|
| Name: |
Lisa
Kopff
|
|
| Title: |
Executive
Director
|
|
|
JPMORGAN
CHASE BANK, N.A.,
|
||
|
By:
|
/s/
Stacey Haimes
|
|
| Name: |
Stacey
L. Haimes
|
|
| Title: |
Executive
Director
|
|
|
Accepted
and agreed to as of
the
date first written above by:
|
||
|
AIR
PRODUCTS AND CHEMICALS, INC.
|
||
|
By:
|
/s/
George G. Bitto
|
|
| Name: |
George
G. Bitto
|
|
| Title: |
Vice
President and Treasurer
|
|
[Signature
page to Amended and Restated Committment Letter]
Exhibit
A
SENIOR
TERM CREDIT FACILITY
Summary
of Terms and Conditions
March
2010
_______________________
Set forth below is a summary of the
terms and conditions for the Credit Facility. Capitalized terms used
but not defined in this Exhibit A shall have the meanings set forth in the
Amended and Restated Commitment Letter to which this Exhibit A is attached (the
“Commitment
Letter”) and in the other Exhibits attached thereto.
|
I.
|
PARTIES
|
|
Borrower:
|
Air
Products and Chemicals, Inc., a Delaware corporation (the “Borrower”).
|
|
|
|
||
|
Joint
Lead Arranger and
Sole Bookrunner:
|
J.P.
Morgan Securities Inc. (in such capacity, the “Bookrunner”).
|
|
|
Administrative
Agent:
|
JPMorgan
Chase Bank, N.A. (“JPMorgan Chase
Bank” and, in such
capacity, the “Administrative
Agent”).
|
|
|
Lenders:
|
A
syndicate of financial institutions, including JPMorgan Chase Bank,
arranged by the Bookrunner and subject to prior written consent of the
Borrower (not to be unreasonably withheld) (collectively, the “Lenders”).
|
|
II.
|
CREDIT
FACILITY
|
|
Type
and Amount:
|
One-year
term credit facility (the “Credit
Facility”; the commitments thereunder, the “Commitments”)
in the amount of $6.724 billion or such lesser amount as shall be
determined by the Borrower (the loans thereunder, the “Loans”),
subject to reductions as set forth under the heading “Mandatory
Prepayments and Commitment Reductions”.
|
|
|
Availability:
|
The
Loans shall be made in one or more drawings commencing on the date of the
consummation of the Offer (the “Effective
Date”) (which date shall be no later than the one-year anniversary
of the Execution Date (as defined below)) and ending on the date of the
consummation of the Merger. Repayments and prepayments of the
Loans may not be reborrowed.
|
Exhibit
A-1
|
Maturity
and Amortization:
|
The
Loans will mature, and be repayable in full, on the date that is one year
after the Effective Date (the “Maturity
Date”). The Loans will not be subject to any scheduled
amortization.
|
|
|
Use
of Proceeds:
|
The
proceeds of the Loans shall be used to finance payments made to the
equityholders of Flashback pursuant to the Offer and in connection with
the Merger, to effect the Flashback Refinancing, to pay fees and expenses
in connection with the Transactions and for working capital and other
general corporate purposes of the Borrower and its
subsidiaries.
|
|
III.
|
CERTAIN
PAYMENT PROVISIONS
|
|
Fees
and Interest Rates:
|
As
set forth on Annex I.
|
|
|
Optional
Prepayments:
|
The
Loans may be optionally prepaid in an aggregate principal amount of $5.0
million or a multiple of $1.0 million in excess thereof at the option of
the Borrower at any time upon same day (or, in the case of a prepayment of
Eurodollar Loans (as defined in Annex I), three days’ prior)
notice. Optional prepayments of the Loans may not be
reborrowed.
|
|
|
|
||
|
Mandatory
Prepayments and Commitment
Reductions:
|
The
following amounts shall be applied to prepay the Loans (and, after the
date of the Original Commitment Letter (the “Execution
Date”) but prior to the Effective Date, to reduce the Commitments),
subject to exceptions and thresholds set forth below or otherwise
customary for similar investment-grade financings:
|
|
|
|
||
|
(a)
100% of the net cash proceeds of any issuance of equity on or after the
Execution Date by the Borrower;
|
||
|
|
(b)
100% of the net cash proceeds of any incurrence of indebtedness for
borrowed money on or after the Execution Date by the Borrower or any of
its subsidiaries (other than Flashback and its subsidiaries, except to the
extent that the Borrower is capable of directing the net cash proceeds of
any such indebtedness incurred after the Effective Date for use in
connection with the Offer, the Merger or the Flashback Refinancing) under
any debt securities or any loan, credit or similar facility, other than
(i) any refinancing of the existing revolving credit facility of the
Borrower or any other existing indebtedness of the Borrower or any of its
subsidiaries (including Flashback and its subsidiaries), (ii) any debt
securities or any loan, credit or similar facilities entered into for
working capital purposes or otherwise in the ordinary course of business
and (iii) any commercial paper or securitization facilities entered into
in the ordinary course of business;
|
Exhibit
A-2
|
|
(c)
100% of the net cash proceeds of any non-ordinary course sale or other
disposition on or after the Execution Date by the Borrower or any of its
subsidiaries (other than Flashback and its subsidiaries, except to the
extent that the Borrower is capable of directing the net cash proceeds of
any such sale or other disposition consummated after the Effective Date
for use in connection with the Offer, the Merger or the Flashback
Refinancing) of any assets (including any such assets sold or agreed to be
sold in order to secure regulatory approval for the consummation of the
Offer or the Merger). A “non-ordinary course sale or other disposition”
shall mean any sale or other disposition of assets in one transaction or
series of related transactions for net cash proceeds of $100 million or
more, except in connection with securitization facilities and as may be
agreed.
|
|
|
Mandatory
prepayments of the Loans may not be
reborrowed.
|
|
IV.
|
CERTAIN
CONDITIONS
|
|
Initial
Conditions:
|
The
Credit Facility shall be available on the Effective Date subject to (a)
the satisfaction of the conditions set forth in Exhibit B and (b) the
satisfaction of the conditions referred to below.
|
|
|
On-Going
Conditions:
|
The
making of each Loan (including the Loans made on the Effective Date) shall
be conditioned upon (a) the accuracy in all material respects of all
representations and warranties in the Credit Facility Documentation (other
than the material adverse change and litigation representations and
warranties, which shall be made only on, and effective only with respect
to Loans made on, the Effective Date), and (b) there being no default or
event of default in existence at the time of, or after giving effect to
the making of, such extension of
credit.
|
|
V.
|
CERTAIN
DOCUMENTATION MATTERS
|
|
Credit
Facility Documentation:
|
The
definitive documentation for the Credit Facility (the “Credit Facility
Documentation”) shall contain the following representations,
warranties, covenants and events of default, in each case, applicable to
the Borrower and its subsidiaries and subject to exceptions, baskets and
materiality qualifiers set forth below or otherwise customary for similar
investment grade financings. Notwithstanding anything set forth
herein to the contrary, for so long as any securities of Flashback
constitute “margin stock” within the meaning of Regulation U, the
restrictions on liens and other covenants or agreements set forth in the
Credit Facility Documentation shall not apply to such securities to the
extent the value of such securities exceeds 25% of the total value of all
assets subject to such covenants and
agreements.
|
Exhibit
A-3
|
Representations
and Warranties:
|
Financial
statements (including, if provided, the pro forma financial statements
contemplated by Exhibit B of the Commitment Letter); as of the Effective
Date, no material adverse change with respect to the Borrower and its
subsidiaries or Flashback and its subsidiaries; litigation; due
organization; consents and approvals (including with respect to the
Transactions); corporate power, authorization and enforceability; ERISA;
no conflict; no default; payment of taxes; Investment Company Act;
environmental compliance; use of proceeds (including compliance with
margin regulations); and accuracy of disclosure.
For
purposes of the foregoing, (a) the representation and warranty made with
respect to material adverse change with respect to the Borrower and its
subsidiaries and Flashback and its subsidiaries will be consistent with
the absence of material adverse change condition precedent set forth in
the eleventh paragraph of the Commitment Letter and (b) the
representations and warranty with respect to accuracy of disclosure will
be consistent with the provisions of the tenth paragraph of the Commitment
Letter.
|
|
|
|
||
|
Affirmative
Covenants:
|
Delivery
of annual audited consolidated financial statements and quarterly
unaudited consolidated financial statements; delivery of certificates,
notices and other information; payment of taxes; preservation of
existence; maintenance of properties and insurance coverage; compliance
with laws (including ERISA and environmental laws); inspection rights; and
keeping of records and books of account.
|
|
|
Financial
Covenant:
|
Maximum
consolidated ratio of consolidated indebtedness (in the amount that would
be reflected on a balance sheet prepared on a consolidated basis in
accordance with GAAP) to consolidated EBITDA, with the level to be agreed,
to be tested quarterly commencing with the first full fiscal quarter
ending after the Effective Date.
|
|
|
Negative
Covenants:
|
Restrictions
on: liens; subsidiary indebtedness (including guarantees of indebtedness,
unless the Credit Facility shall be equally and ratably guaranteed); and
fundamental changes.
|
|
|
Events
of Default:
|
Failure
to pay any principal when due; failure to pay any interest or fees payable
within five business days of the date when due; breach of covenants
(subject, in the case of all affirmative covenants other than with respect
to delivery of default notices and the use of proceeds, to a 20-day grace
period after receipt of written notice thereof from the Administrative
Agent), any representation or warranty inaccurate in any material respect
when made (subject to a 20-day grace period where correctable);
non-payment or acceleration in respect of material debt; final
non-appealable material judgments; insolvency and bankruptcy events; and
change of control (to be defined).
|
Exhibit
A-4
|
Voting:
|
Amendments
and waivers with respect to the Credit Facility Documentation shall
require the approval of Lenders holding more than 50% of the aggregate
amount of the Loans and unused Commitments, except that (a) the consent of
each Lender directly and adversely affected thereby shall be required with
respect to (i) reductions in the amount of principal owed to such Lender,
(ii) extensions of the scheduled date of maturity of any Loan, (iii)
reductions in the rate of interest or any fee or extensions of any due
date thereof and (iv) increases in the amount or extensions of the expiry
date of any Lender’s Commitment and (b) the consent of 100% of the Lenders
shall be required with respect to modifications to any of the voting
requirements.
The
Credit Facility Documentation will contain customary provisions (a) with
respect to defaulting Lenders (including, without limitation, the non-pro
rata removal or replacement of any Lender that has (or is controlled by
any person or entity that has) been deemed insolvent or become subject to
a bankruptcy, insolvency, receivership, conservatorship or other similar
proceedings, or has otherwise become a “defaulting” lender generally in
credit agreements to which it is a party, and (b) for replacing
non-consenting Lenders in connection with amendments and waivers requiring
the consent of all Lenders or of all Lenders directly affected thereby so
long as Lenders holding more than 50% of the aggregate amount of the Loans
and unused Commitments shall have consented
thereto.
|
|
|
|
||
|
Assignments
and Participations:
|
The
Lenders shall be permitted to assign their Loans and Commitments with the
consent (other than in the case of assignments of Loans to Lenders,
affiliates of Lenders and approved funds) of the Borrower and the
Administrative Agent (each such consent not to be unreasonably withheld or
delayed).
|
|
|
In
addition, the Lenders shall be permitted to sell participations in their
Loans and Commitments. Participants shall have the same
benefits as the Lenders with respect to yield protection and increased
cost provisions. Voting rights of participants shall be limited
to those matters with respect to which the affirmative vote of the Lender
from which it purchased its participation would be required as described
under “Voting” above. Pledges of Loans in accordance with
applicable law shall be permitted without
restriction. Promissory notes shall be issued only upon
request.
|
||
|
Yield
Protection:
|
The
Credit Facility Documentation shall contain customary provisions (a)
protecting the Lenders against increased costs or loss of yield resulting
from changes in reserve, tax, capital adequacy and other requirements of
law and from the imposition of or changes in withholding or other taxes
and (b) indemnifying the Lenders for “breakage costs” incurred in
connection with, among other things, any prepayment of a Eurodollar Loan
on a day other than the last day of an interest period with respect
thereto.
|
Exhibit
A-5
|
Expenses
and Indemnification:
|
The
Borrower shall pay (a) all reasonable out-of-pocket expenses of the
Administrative Agent and the Bookrunner associated with the syndication of
the Credit Facility and the preparation, execution, delivery and
administration of the Credit Facility Documentation and any amendment or
waiver with respect thereto (including the reasonable fees, disbursements
and other charges of counsel (but only one firm of counsel) to the
Administrative Agent and the Bookrunner); and (b) all reasonable
out-of-pocket expenses of the Administrative Agent and the Lenders
(including the fees, disbursements and other charges of counsel (but only
one firm of counsel) to the Administrative Agent and the Lenders) in
connection with the enforcement of the Credit Facility
Documentation.
|
|
|
The
Administrative Agent, the Arrangers and the Lenders (and their affiliates
and their respective officers, directors, employees, advisors and agents)
will have no liability for, and will be indemnified and held harmless
against, any loss, liability, cost or expense incurred in respect of the
financing contemplated hereby or the use or the proposed use of proceeds
thereof (except to the extent they are found by a final, non-appealable
judgment of a court to arise from the gross negligence or willful
misconduct of the relevant indemnified party or any of its affiliates or
their respective officers, directors, employees, advisors or
agents).
|
||
|
Governing
Law and Forum:
|
State
of New York.
|
|
|
|
||
|
Counsel
to the Administrative Agent
and
the Bookrunner:
|
Simpson
Thacher & Bartlett LLP.
|
Exhibit
A-6
Annex
I
INTEREST AND CERTAIN
FEES
|
Interest
Rate Options:
|
The
Borrower may elect that the Loans bear interest at a rate per annum equal
to (a) the ABR plus the
Applicable Amount or (b) the Eurodollar Rate plus the
Applicable Amount.
As
used herein:
|
|
|
|
|
|
“ABR” means the highest of (a)
the rate of interest publicly announced by JPMorgan Chase Bank as its
prime rate in effect at its principal office in New York City (the “Prime Rate”), (b) the federal
funds effective rate from time to time plus 0.5% and (c) the Eurodollar
Rate for a one month interest period plus 1.0%.
|
|
|
“Applicable Amount” has the
meaning set forth in Annex I-A.
|
|
|
“Eurodollar Rate” means the rate
(adjusted for any statutory reserve requirements for eurocurrency
liabilities) for eurodollar deposits for a period equal to one, two, three
or six months (as selected by the Borrower) appearing on the Reuters
Screen LIBOR01 Page.
|
|
Interest
Payment Dates:
|
In
the case of Loans bearing interest based upon the ABR (“ABR Loans”),
quarterly in arrears.
In
the case of Loans bearing interest based upon the Eurodollar Rate (“Eurodollar Loans”), on the last
day of each relevant interest period and, in the case of any interest
period longer than three months, on each successive date three months
after the first day of such interest period.
|
|
|
|
|
Commitment
Fees:
|
The
Borrower shall pay a commitment fee, payable quarterly in arrears, from
the Effective Date until the termination or expiration of the Commitments,
calculated at the rate per annum based upon the grid set forth in Annex
I-A on the average daily unused amount of the
Commitments.
|
|
Duration
Fees:
|
The
Borrower shall pay duration fees on the aggregate principal amount of the
outstanding Loans in such amounts and on such dates as are set forth on
Annex I-B.
|
|
Default
Rate:
|
At
any time when the Borrower is in default in the payment of any amount of
principal due under the Credit Facility, such amount shall bear interest
at 2% above the rate otherwise applicable thereto. Overdue
interest, fees and other amounts shall bear interest at 2% above the rate
applicable to ABR Loans.
|
|
Rate
and Fee Basis:
|
All
per annum rates shall be calculated on the basis of a year of 360 days (or
365/366 days, in the case of ABR Loans the interest rate payable on which
is then based on the Prime Rate) for actual days
elapsed.
|
Exhibit
A-7
Annex
I-A
PRICING
GRID
“Applicable Amount”
means the percentage per annum set forth below under the applicable type of loan
opposite the Public Debt Ratings in effect at the time:
|
Public
Debt Ratings
|
Applicable
Amount
|
Commitment
Fee
|
|
|
Eurodollar
Loan
|
ABR
Loan
|
||
|
≥
A- or A3
|
1.75%
|
0.75%
|
0.25%
|
|
=
BBB+ or Baa1
|
2.00%
|
1.00%
|
0.30%
|
|
=
BBB or Baa2
|
2.25%
|
1.25%
|
0.375%
|
|
=
BBB- or Baa3
|
2.75%
|
1.75%
|
0.50%
|
|
<
BBB- or Baa3
|
3.50%
|
2.50%
|
0.75%
|
The
Applicable Amount with respect to the Loans will increase by an additional 50
basis points as of the last day of each 90-day period after the Effective
Date.
For
purposes of the foregoing, (a) if the ratings established or deemed to have
been established by Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc. (“S&P”), and
Moody’s Investors Service, Inc. (“Moody’s”) for such
debt shall be changed (other than as a result of a change in the rating system
of S&P or Moody’s), such change shall be effective as of the date on which
it is first announced by the applicable rating agency; (b) if the ratings
established or deemed to have been established by S&P and Moody’s for such
debt shall fall within different levels, the Applicable Amount shall be based on
the higher of the two ratings unless one of the two ratings is two or more
levels lower than the other, in which case the Applicable Amount shall be
determined by reference to the level next below that of the higher of the two
ratings; and (c) if either S&P or Moody’s shall not have in effect a
rating for such debt (other than by reason of the circumstances referred to in
the last sentence of this paragraph), then such rating agency shall be deemed to
have established a rating below BBB- or Baa3, as applicable. Each
change in the Applicable Amount shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of
S&P or Moody’s shall change, the Borrower and the Lenders shall negotiate in
good faith to amend this paragraph to reflect such changed rating system and,
pending the effectiveness of any such amendment, the Applicable Amount shall be
determined by reference to the rating most recently in effect prior to such
change.
“Public Debt Ratings”
means, as of any date, the rating that has been most recently announced by
either S&P or Moody’s, as the case may be, for any class of non-credit
enhanced long-term senior unsecured debt issued by the Borrower.
Exhibit
A-8
Annex I-B
BRIDGE
FACILITY DURATION FEES
The Borrower shall pay a duration fee
for the ratable benefit of the Lenders under the Credit Facility on the dates
set forth below, equal to the Applicable Duration Fee Percentage of the
aggregate principal amount of Loans outstanding as of such date:
| Days after the Effective Date |
90
days
|
180
days
|
270
days
|
|
Applicable
Duration Fee Percentage
|
0.75%
|
1.25%
|
1.75%
|
Exhibit
A-9
Exhibit
B
CONDITIONS
PRECEDENT
The availability of the Credit Facility
shall be subject to the satisfaction of the following conditions, in addition to
the conditions expressly set forth in the Commitment Letter and the Term Sheets
attached as Exhibit A thereto. Capitalized terms used but not defined
herein have the meanings given in the Commitment Letter and Exhibit A
thereto.
1. The Borrower shall have
executed and delivered definitive documentation with respect to the Credit
Facility, which documentation shall be reasonably acceptable to the Arrangers as
consistent with the terms set forth in the Term Sheets.
2. (a) The Offer shall have
been consummated substantially concurrently with the initial funding of the
Credit Facility in accordance with the terms of the definitive documents
relating to the Offer (collectively, the “Offer Documents”),
which Offer Documents shall in any event be reasonably acceptable to the
Arrangers; (b) to the extent the Merger Agreement and any related documentation
(collectively, the “Merger Documents”)
have been executed and delivered prior to the Effective Date, the same shall be
reasonably acceptable to the Arrangers; (c) the Borrower shall have delivered to
the Arrangers copies of all amendments, modifications, waivers and consents
under the Offer Documents and, if applicable, the Merger Documents; (d) without
the prior written consent of the Arrangers, there shall have been no amendment,
modification, waiver or consent of any term or provision of the Offer Documents
or, if applicable, the Merger Documents to the extent that such amendment,
modification, waiver or consent would be materially adverse to the interests of
the Arrangers or the Lenders; and (e) after giving effect to the consummation of
the Offer on the Effective Date, the Borrower shall own a majority of the shares
of common stock of Flashback on a fully diluted basis and, if the Merger
Agreement has been executed and delivered, there shall be no reason known to the
Borrower as to why the Merger is not likely to be consummated in accordance with
the Merger Agreement.
3. The Lenders, the
Administrative Agent and the Arrangers shall have received all fees and expenses
required to be paid by the Borrower on or before the Effective Date pursuant to
the Commitment Letter, the Bookrunner Fee Letter or the Credit Facility
Documentation to the extent invoiced prior to the Effective Date.
4. As of the Effective Date,
no default or event of default shall have occurred and be continuing, or shall
occur as a result of the consummation of the Offer and the Merger and the
financings thereof, under the Borrower’s Revolving Credit Agreement, dated as of
May 23, 2006, or any refinancing or replacement thereof.
5. The Borrower shall on the
Effective Date, and taking into account the Transactions, have (a) an unsecured
long-term obligations rating of at least “Baa3” (with stable (or better)
outlook) from Moody’s and (ii) a long-term issuer credit rating of at least
“BBB-” (with stable (or better) outlook) from S&P, which ratings and
outlooks shall have been reaffirmed within seven days prior to funding (to the
extent the Effective Date is more than 60 days after the original date of
receipt of such ratings).
6. The Administrative Agent
shall have received such legal opinions, certificates (including a chief
financial officer’s solvency certificate), documents and other instruments and
information as are customary for transactions of this type as it may reasonably
request. The Administrative Agent and the Lenders shall have received all
information reasonably requested by them, reasonably in advance of the Effective
Date, under PATRIOT Act and related compliance laws, which requested information
shall have been received by them at least five business days prior to the
Effective Date.
Exhibit
B-1
7. The Lenders shall have
received (a) audited consolidated financial statements of the Borrower for
the three most recent fiscal years ended at least 90 days prior to the Effective
Date, (b) unaudited consolidated financial statements of the Borrower for
each interim quarterly period ended after the latest fiscal year referred to in
clause (a) above and at least 45 days prior to the Effective Date, and
unaudited consolidated financial statements for the same period of the prior
fiscal year, (c) to the extent available to the Borrower, pursuant to the
Merger Agreement, if applicable, or otherwise, such audited or unaudited
consolidated financial statements of Flashback, to the extent necessary to
comply with Regulation S-X of the Securities Act of 1933, as amended
(“Regulation
S-X”), in a registered offering and (d) all other financial statements
for completed or pending acquisitions as are available to the Borrower and may
be required under Regulation S-X in a registered offering.
8. The Lenders shall have
received a pro forma consolidated balance sheet of the Borrower as at the end of
the most recent fiscal year ended at least 90 days prior to the Effective Date
and a pro forma statement of operations for each of (a) the most recent fiscal
year of the Borrower ended at least 90 days prior to the Effective Date and (b)
the most recent interim quarterly period of the Borrower ending at least 45 days
prior to the Effective Date, in each case adjusted to give effect to the
consummation of the Transactions and the financings contemplated hereby as if
such transactions had occurred on such date or on the first day of such period,
as applicable. To the extent practicable, such pro forma financial
statements shall be prepared in accordance with Regulation S-X, but it is
acknowledged that to the extent the Borrower is limited as to information
relating to Flashback and its subsidiaries, such preparation may not be
practicable.
Exhibit
B-2
Exhibit
C
FORM
OF ACCESSION LETTER
March 3,
2010
7201
Hamilton Boulevard
Allentown,
PA 18195-1501
Attention: Paul
E. Huck
Senior Vice President and Chief
Financial Officer
Accession
Letter
Ladies
and Gentlemen:
Reference is made to the Amended and
Restated Commitment Letter, dated March 3, 2010 (such letter, including the
exhibits thereto, and as amended, restated or otherwise modified from time to
time, the “Commitment
Letter”), initially among Air Products and Chemicals, Inc., J.P. Morgan
Securities Inc. and JPMorgan Chase Bank, N.A. Terms used but not defined in this
Accession Letter have the meanings assigned to them in the Commitment
Letter.
[______________] is pleased to advise
you of its commitment to provide $[_________________] of the aggregate principal
amount of the Credit Facility, upon the terms and subject to the conditions
expressly set forth in the Commitment Letter, subject to the reductions of such
commitments as set forth in the third paragraph of the Commitment
Letter.
It is agreed that [________] will act
as a joint lead arranger and syndication agent in respect of the Credit
Facility.
[__________] [Each of [ ]
and [ ]] acknowledges receipt of a copy of the Commitment Letter and
agrees, by its execution and delivery of this Accession Letter, to become a
party to the Commitment Letter as an “Additional Initial
Lender” and a “Joint Lead
Arranger”[, respectively,] for all purposes of the Commitment Letter and
to undertake and be bound by all the terms and conditions thereof and shall be
entitled to all of the exculpations, rights and benefits thereof.
[Remainder
of Page Intentionally Left Blank]
1
|
Very
truly yours,
|
|
|
[PLEASE
INSERT
INSTITUTION’S NAME]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
[Signature
Page to Joint Lead Arranger Accession Letter]
|
Accepted
and agreed to as of
the
date first written above by:
|
||
|
AIR
PRODUCTS AND CHEMICALS, INC.
|
||
|
By:
|
|
|
| Name: |
|
|
| Title: |
|
|
Exhibit
(b)(3)
March 3,
2010
7201
Hamilton Boulevard
Allentown,
PA 18195-1501
Attention: Paul
E. Huck
Senior Vice President and Chief
Financial Officer
Accession
Letter
Ladies
and Gentlemen:
Reference is made to the Amended and
Restated Commitment Letter, dated March 3, 2010 (such letter, including the
exhibits thereto, and as amended, restated or otherwise modified from time to
time, the “Commitment
Letter”), initially among Air Products and Chemicals, Inc., J.P. Morgan
Securities Inc. and JPMorgan Chase Bank, N.A. Terms used but not defined in this
Accession Letter have the meanings assigned to them in the Commitment
Letter.
The Royal Bank of Scotland plc is
pleased to advise you of its commitment to provide $1,025,000,000 of the
aggregate principal amount of the Credit Facility, upon the terms and subject to
the conditions expressly set forth in the Commitment Letter, subject to the
reductions of such commitments as set forth in the third paragraph of the
Commitment Letter.
It is agreed that RBS Securities Inc.
will act as a joint lead arranger and syndication agent in respect of the Credit
Facility.
Each of The Royal Bank of Scotland
plc and RBS Securities Inc. acknowledges receipt of a copy of the Commitment
Letter and agrees, by its execution and delivery of this Accession Letter, to
become a party to the Commitment Letter as an “Additional Initial
Lender” and a “Joint Lead Arranger”,
respectively, for all purposes of the Commitment Letter and to undertake and be
bound by all the terms and conditions thereof and shall be entitled to all of
the exculpations, rights and benefits thereof.
[Remainder
of Page Intentionally Left Blank]
1
|
Very truly
yours,
|
|||
|
THE
ROYAL BANK OF SCOTLAND PLC
|
|||
|
|
By:
|
/s/ Belinda Tucker | |
| Name: Belinda Tucker | |||
| Title: Senior Vice President | |||
|
RBS
SECURITIES INC.
|
|||
|
|
By:
|
/s/ Peter Klein | |
| Name: Peter Klein | |||
| Title: Managing Director | |||
[Signature Page to Joint Lead
Arranger Accession Letter]
Accepted
and agreed to as of
the date
first written above by:
AIR
PRODUCTS AND CHEMICALS, INC.
By: /s/ George G.
Bitto
Name: George
G. Bitto
Title: Vice
President and Treasurer
[Signature Page to Joint Lead
Arranger Accession Letter]
Exhibit
(b)(4)
March 3,
2010
7201
Hamilton Boulevard
Allentown,
PA 18195-1501
Attention: Paul
E. Huck
Senior
Vice President and Chief Financial Officer
Accession
Letter
Ladies
and Gentlemen:
Reference
is made to the Amended and Restated Commitment Letter, dated March 3, 2010 (such
letter, including the exhibits thereto, and as amended, restated or otherwise
modified from time to time, the “Commitment Letter”),
initially among Air Products and Chemicals, Inc., J.P. Morgan Securities Inc.
and JPMorgan Chase Bank, N.A. Terms used but not defined in this Accession
Letter have the meanings assigned to them in the Commitment Letter.
Deutsche
Bank Cayman Island branch is pleased to advise you of its commitment to provide
$1,008,600,000 of the aggregate principal amount of the Credit Facility, upon
the terms and subject to the conditions expressly set forth in the Commitment
Letter, subject to the reductions of such commitments as set forth in the third
paragraph of the Commitment Letter.
It is
agreed that Deutsche Bank Securities Inc. will act as a joint lead arranger and
syndication agent in respect of the Credit Facility.
Each of
Deutsche Bank Cayman Island branch and Deutsche Bank Securities Inc.
acknowledges receipt of a copy of the Commitment Letter and agrees, by its
execution and delivery of this Accession Letter, to become a party to the
Commitment Letter as an “Additional Initial
Lender” and a “Joint Lead Arranger”,
respectively, for all purposes of the Commitment Letter and to undertake and be
bound by all the terms and conditions thereof and shall be entitled to all of
the exculpations, rights and benefits thereof.
[Remainder
of Page Intentionally Left Blank]
|
Very
truly yours,
|
|
|
DEUTSCHE
BANK AG CAYMAN ISLANDS BRANCH
|
|
|
By:
|
/s/
Heidi Sandquist
|
|
Name:
Heidi Sandquist
|
|
|
Title:
Director
|
|
|
By:
|
/s/
Ming K Chu
|
|
Name:
Ming K Chu
|
|
|
Title:
Vice President
|
|
|
DEUTSCHE
BANK SECURITIES INC.
|
|
|
By:
|
/s/
Heidi Sandquist
|
|
Name:
Heidi Sandquist
|
|
|
Title:
Director
|
|
| By: | /s/ Ming K Chu |
|
Name:
Ming K Chu
|
|
|
Title:
Vice President
|
|
[Signature Page to Joint Lead Arranger Accession
Letter]
|
Accepted
and agreed to as of
the
date first written above by:
|
|
|
AIR
PRODUCTS AND CHEMICALS, INC.
|
|
|
By:
|
/s/
George G. Bitto
|
|
Name:
George G. Bitto
|
|
|
Title:
Vice President and Treasurer
|
|
[Signature Page to Joint Lead
Arranger Accession Letter]
Exhibit
(b)(5)
March 3,
2010
7201
Hamilton Boulevard
Allentown,
PA 18195-1501
Attention: Paul
E. Huck
Senior Vice President and Chief
Financial Officer
Accession
Letter
Ladies
and Gentlemen:
Reference is made to the Amended and
Restated Commitment Letter, dated March 3, 2010 (such letter, including the
exhibits thereto, and as amended, restated or otherwise modified from time to
time, the “Commitment
Letter”), initially among Air Products and Chemicals, Inc., J.P. Morgan
Securities Inc. and JPMorgan Chase Bank, N.A. Terms used but not defined in this
Accession Letter have the meanings assigned to them in the Commitment
Letter.
BNP Paribas is pleased to advise you
of its commitment to provide $1,025,000,000 of the aggregate principal amount of
the Credit Facility, upon the terms and subject to the conditions expressly set
forth in the Commitment Letter, subject to the reductions of such commitments as
set forth in the third paragraph of the Commitment Letter.
It is agreed that BNP Paribas
Securities Corp. will act as a joint lead arranger and syndication agent in
respect of the Credit Facility.
Each of BNP Paribas and BNP Paribas
Securities Corp. acknowledges receipt of a copy of the Commitment Letter and
agrees, by its execution and delivery of this Accession Letter, to become a
party to the Commitment Letter as an “Additional Initial
Lender” and a “Joint Lead Arranger”,
respectively, for all purposes of the Commitment Letter and to undertake and be
bound by all the terms and conditions thereof and shall be entitled to all of
the exculpations, rights and benefits thereof.
[Remainder
of Page Intentionally Left Blank]
1
|
Very
truly yours,
|
|||
|
BNP
PARIBAS,
as
Additional Initial Lender
|
|||
|
|
By:
|
/s/ Simone Vinocour | |
| Name: Simone Vinocour | |||
| Title: Director | |||
|
|
By:
|
/s/ Renaud-Franck Falce | |
| Name: Renaud-Franck Falce | |||
| Title: Managing Director | |||
|
BNP
PARIBAS SECURITIES CORP.,
as
Joint Lead Arranger
|
|||
|
|
By:
|
/s/ Renaud-Franck Falce | |
| Name: Renaud-Franck Falce | |||
| Title: Managing Director | |||
[Signature Page to Joint Lead
Arranger Accession Letter]
Accepted
and agreed to as of
the date
first written above by:
AIR
PRODUCTS AND CHEMICALS, INC.
By: /s/ George G.
Bitto
Name: George G. Bitto
Title: Vice
President and Treasurer
[Signature Page to Joint Lead
Arranger Accession Letter]
Exhibit
(b)(6)
March 3,
2010
7201
Hamilton Boulevard
Allentown,
PA 18195-1501
Attention: Paul
E. Huck
Senior Vice President and Chief
Financial Officer
Accession
Letter
Ladies
and Gentlemen:
Reference is made to the Amended and
Restated Commitment Letter, dated March 3, 2010 (such letter, including the
exhibits thereto, and as amended, restated or otherwise modified from time to
time, the “Commitment
Letter”), initially among Air Products and Chemicals, Inc., J.P. Morgan
Securities Inc. and JPMorgan Chase Bank, N.A. Terms used but not defined in this
Accession Letter have the meanings assigned to them in the Commitment
Letter.
HSBC Bank USA, N.A. is pleased to
advise you of its commitment to provide $1,025,000,000 of the aggregate
principal amount of the Credit Facility, upon the terms and subject to the
conditions expressly set forth in the Commitment Letter, subject to the
reductions of such commitments as set forth in the third paragraph of the
Commitment Letter.
It is agreed that HSBC Securities
(USA) Inc. will act as a joint lead arranger and syndication agent in respect of
the Credit Facility.
Each of HSBC Bank USA, N.A. and HSBC
Securities (USA) Inc. acknowledges receipt of a copy of the Commitment Letter
and agrees, by its execution and delivery of this Accession Letter, to become a
party to the Commitment Letter as an “Additional Initial
Lender” and a “Joint Lead Arranger”,
respectively, for all purposes of the Commitment Letter and to undertake and be
bound by all the terms and conditions thereof and shall be entitled to all of
the exculpations, rights and benefits thereof.
[Remainder
of Page Intentionally Left Blank]
1
|
Very
truly yours,
|
|||
|
HSBC
SECURITIES (USA) INC.
|
|||
|
|
By:
|
/s/ Richard A. Jackson | |
| Name: Richard A. Jackson | |||
| Title:
Managing Director
Leveraged
& Acquisition Finance
|
|||
|
HSBC
BANK USA, N.A.
|
|||
|
|
By:
|
/s/ David Mandell | |
| Name: David Mandell | |||
| Title: Managing Director | |||
[Signature Page to Joint Lead
Arranger Accession Letter]
Accepted
and agreed to as of
the date
first written above by:
AIR
PRODUCTS AND CHEMICALS, INC.
By: /s/ George G.
Bitto
Name: George
G. Bitto
Title: Vice
President and Treasurer
[Signature Page to Joint Lead
Arranger Accession Letter]
Exhibit
(b)(7)
March 3,
2010
7201
Hamilton Boulevard
Allentown,
PA 18195-1501
Attention: Paul
E. Huck
Senior Vice President and Chief
Financial Officer
Accession
Letter
Ladies
and Gentlemen:
Reference is made to the Amended and
Restated Commitment Letter, dated March 3, 2010 (such letter, including the
exhibits thereto, and as amended, restated or otherwise modified from time to
time, the “Commitment
Letter”), initially among Air Products and Chemicals, Inc., J.P. Morgan
Securities Inc. and JPMorgan Chase Bank, N.A. Terms used but not defined in this
Accession Letter have the meanings assigned to them in the Commitment
Letter.
The Bank of Tokyo-Mitsubishi UFJ,
Ltd. is pleased to advise you of its commitment to provide $1,025,000,000 of the
aggregate principal amount of the Credit Facility, upon the terms and subject to
the conditions expressly set forth in the Commitment Letter, subject to the
reductions of such commitments as set forth in the third paragraph of the
Commitment Letter.
It is agreed that The Bank of
Tokyo-Mitsubishi UFJ, Ltd. will act as a joint lead arranger and syndication
agent in respect of the Credit Facility.
The Bank of Tokyo-Mitsubishi UFJ,
Ltd. acknowledges receipt of a copy of the Commitment Letter and agrees, by its
execution and delivery of this Accession Letter, to become a party to the
Commitment Letter as an “Additional Initial
Lender” and a “Joint Lead Arranger”
for all purposes of the Commitment Letter and to undertake and be bound by all
the terms and conditions thereof and shall be entitled to all of the
exculpations, rights and benefits thereof.
[Remainder
of Page Intentionally Left Blank]
1
|
Very
truly yours,
|
|||
|
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD.
|
|||
|
|
By:
|
/s/ Jerry Fall | |
| Name: Jerry Fall | |||
| Title: Authorized Signatory | |||
|
|
By:
|
/s/ Jeffrey Millar | |
| Name: Jeffrey Millar | |||
| Title: Authorized Signatory | |||
[Signature Page to Joint Lead
Arranger Accession Letter]
Accepted
and agreed to as of
the date
first written above by:
AIR
PRODUCTS AND CHEMICALS, INC.
By: /s/ George G.
Bitto
Name: George
G. Bitto
Title: Vice
President and Treasurer
[Signature Page to Joint Lead
Arranger Accession Letter]