First Amendment to Amended and Restated Term Loan Credit Agreement, dated as of August 6, 2020, by and among CPG International LLC, The AZEK Company Inc., Jefferies Finance LLC, as administrative and collateral agent and the Lenders party thereto
FIRST AMENDMENT TO AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT, dated as of August 6, 2020 (this Amendment), among CPG International LLC, a Delaware limited liability company (the Borrower), The AZEK Company Inc., a Delaware corporation (Successor Holdings), as successor-in-interest to CPG Newco LLC, a Delaware limited liability company (Predecessor Holdings), the Lenders party hereto and Jefferies Finance LLC, as administrative agent (the Administrative Agent) which shall amend that certain Amended and Restated Term Loan Credit Agreement, dated as of June 18, 2018, among the Borrower, Predecessor Holdings, the several lenders from time to time party thereto (the Lenders), and the Administrative Agent (as in effect on the date hereof, the Credit Agreement).
W I T N E S S E T H:
WHEREAS, on June 11, 2020, Predecessor Holdings completed an initial public offering of its class A common stock (the IPO), and upon the completion of the IPO, Predecessor Holdings converted into a Delaware corporation and changed its name to The AZEK Company Inc., and thereafter Successor Holdings succeeded to all of the property and assets of Predecessor Holdings and succeeded to all of the debts and obligations of Predecessor Holdings, including all obligations of Predecessor Holdings under the Credit Agreement;
WHEREAS, following the completion of the IPO, Successor Holdings has become a reporting company under the Securities Exchange Act of 1934, as amended, and is obligated to file periodic reports and current reports with the SEC;
WHEREAS, in accordance with Section 9.08 of the Credit Agreement, the Borrower, the Required Lenders and the Administrative Agent have agreed to amend the Credit Agreement as described under Section 2 to reflect the status of Successor Holdings as a public company.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement after giving effect to the Amendments (as defined below) (the Amended Credit Agreement).
SECTION 2. Amendments. The following sections or portions of the Credit Agreement are hereby amended as set forth in the following amendments and restatements thereof (the Amendments):
(a) The definition of Change of Control in Section 1.01 is hereby amended by (i) replacing paragraph (b) in its entirety with [reserved]; or and (ii) deleting from paragraph (c) the phrase at any time upon or after the consummation of a Qualified IPO, and the phrase or any underwriter participating in a Qualified IPO of such definition.
(b) Each of the definitions of Available Amount (but only clause (b) thereof), Consolidated Capital Expenditures (other than clauses (d) and (k) thereof), Consolidated Depreciation and Amortization Expense, Consolidated EBITDA, Consolidated Interest Expense, Consolidated Maintenance Capital Expenditures, Consolidated Net Income (except the last two references to the Borrower in clause (e)), Consolidated Total Assets, Consolidated Total Debt, Current
Assets, Current Liabilities, Excess Cash Flow (other than clauses (h) and (m) thereof), First Lien Leverage Ratio, Fixed Charge Coverage Ratio, Immaterial Subsidiary, Net Cash Proceeds (but only part of clause (a) preceding subclause (i) thereof), Unrestricted Cash and Unrestricted Subsidiary (but only the second proviso of the first sentence thereof) is hereby amended by replacing (i) the words the Borrower with Holdings and (ii) the words other Restricted Subsidiary or other Restricted Subsidiaries with Restricted Subsidiary or Restricted Subsidiaries.
(c) The following defined terms in Section 1.01 are hereby amended and restated to read in their entirety as follows:
Parent Entity shall mean any direct or indirect parent of the Borrower, including Holdings.
Qualified IPO shall mean the initial public offering of the Equity Interests of Holdings that occurred on June 11, 2020.
(d) Article V shall be amended by adding the reference 5.04 immediately after Sections 5.01(a), in the last parenthetical in the first paragraph thereof.
(e) Section 5.04 shall be amended as follows:
Paragraph (a) is hereby amended and restated to read in its entirety as follows:
As soon as available, and in any event not later than five Business Days after the date by which Holdings is required to file its annual report on Form 10-K with the SEC (after giving effect to any permitted extensions or, if such financial statements are not required to be filed with the SEC, not later than 90 days after the end of such fiscal year), (i) a consolidated balance sheet and related statements of operations, cash flows and owners equity showing the financial position of Holdings and its Subsidiaries as of the close of such fiscal year and the consolidated results of its operations during such year (the Annual Financial Statements); provided that if Holdings includes the financial results of any person that is not a Restricted Subsidiary in such Annual Financial Statements, Holdings shall also provide a supplement showing consolidating information for Holdings and the Restricted Subsidiaries; (ii) a narrative discussion of managements discussion and analysis of results; and (iii) setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners equity shall be audited by Holdings independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified as to scope of audit or as to the status of Holdings or its Subsidiaries as a going concern other than any such qualification or exception that is solely with respect to, or resulting solely from, an upcoming maturity date under the Credit Facilities or any other Material Indebtedness occurring within one year from the time such report is delivered or any prospective default of any financial covenant) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP;
Paragraph (b) is hereby amended and restated to read in its entirety as follows:
As soon as available, and in any event not later than five Business Days after the date by which Holdings is required to file its quarterly report on Form 10-Q with the SEC (after giving effect to any permitted extensions or, if such financial statements are not required to be filed with the SEC, not later than 45 days after the end of such fiscal quarter), (i) a consolidated balance sheet and
related statements of operations and cash flows showing (x) the financial position of Holdings and its Subsidiaries as of the close of such fiscal quarter and the consolidated and consolidating results of its operations during such fiscal quarter and (y) the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (the Quarterly Financial Statements and, together with the Annual Financial Statements, the Required Financial Statements); provided that if Holdings includes the financial results of any person that is not a Restricted Subsidiary in such Quarterly Financial Statements, Holdings shall also provide a supplement showing consolidating information for Holdings and the Restricted Subsidiaries; and (ii) a narrative discussion of managements discussion and analysis of results, certified by a Responsible Officer of Holdings on behalf of Holdings as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes).
Paragraph (c) is hereby replaced in its entirety with [Reserved];.
Paragraphs (e), (g) and (h) are hereby amended by replacing the words the Borrower with Holdings.
The proviso and the last paragraph at the end of Section 5.04 is hereby amended and restated to read in its entirety as follows:
provided that documents required to be delivered pursuant to paragraphs (a), (b) and (d) shall be deemed to have been delivered on the earlier of the date on which (A) Holdings posts such documents or provides a link thereto on Holdings website, with notification to the Administrative Agent of the posting of such documents and (B) such documents are filed with the SEC; provided, further, if requested by the Administrative Agent in writing, Holdings shall also provide such documents by electronic mail to the Administrative Agent.
SECTION 3. Conditions to Effectiveness of the Amendments. This Amendment shall become effective on the date on which the following conditions precedent have been satisfied or waived (the date on which such conditions shall have been so satisfied or waived, the First Amendment Effective Date):
(a) the Administrative Agent shall have received the Amendment duly executed and delivered by Holdings, the Borrower, the Required Lenders and the Administrative Agent; and
(b) immediately before and after giving effect to the Amendments, the representations and warranties set forth in Section 4 shall be true and correct on and as of the First Amendment Effective Date.
The Administrative Agent shall notify the Borrower and the Lenders of the First Amendment Effective Date, and such notice shall be conclusive and binding.
SECTION 4. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, the Borrower represents and warrants to each of the Lenders and the Administrative Agent that, as of the First Amendment Effective Date and after giving effect to this Amendment:
(a) The Borrower (i) is a limited liability company duly organized, validly existing and in good standing (or in any foreign jurisdiction where an equivalent status exists, enjoys the equivalent status under the laws of such foreign jurisdiction of organization) under the laws of the jurisdiction of its organization and (ii) has the power and authority to execute, deliver and perform its obligations under this Amendment.
(b) This Amendment has been duly authorized, executed and delivered by the Borrower and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.
(c) After giving effect to this Amendment and the transactions contemplated hereby on First Amendment Effective Date, no Default or Event of Default has occurred and is continuing on the First Amendment Effective Date.
SECTION 5. Effect on the Loan Documents. (a) This Amendment shall not extinguish the Term Loans outstanding under the Credit Agreement and nothing herein contained shall be construed as a substitution or novation of the Term Loans outstanding under the Credit Agreement, which shall remain outstanding after the First Amendment Effective Date, as modified hereby. Except as specifically amended herein, all Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. The Borrower hereby agrees, with respect to each Loan Document to which it is a party, that all of its obligations, liabilities and indebtedness under such Loan Document shall remain in full force and effect on a continuous basis after giving effect to this Amendment, the Amendments, and all of the Liens and security interests created and arising under such Loan Document remain in full force and effect on a continuous basis, and the perfected status and priority of each such Lien and security interest continues in full force and effect on a continuous basis, unimpaired, uninterrupted and undischarged, after giving effect to this this Amendment, the Amendments, as collateral security for its obligations, liabilities and indebtedness under the Credit Agreement and the other Loan Documents.
(b) Upon the First Amendment Effective Date, each reference in the Credit Agreement to this Amendment, herein, hereto, hereunder, hereof, or in the other Loan Documents to the Credit Agreement, or, in each case, words of like import shall mean and be a reference to the Amended Credit Agreement; and each reference to Holdings shall mean and be a reference to Successor Holdings, as successor-in-interest to Predecessor Holdings.
(c) Except as expressly set forth in this Amendment, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
(d) The Borrower and the other parties hereto acknowledge and agree that this Amendment shall constitute a Loan Document.
SECTION 6. Expenses. The Borrower agrees to pay or reimburse the Administrative Agent and the Lenders for all of their reasonable, documented and invoiced out-of-pocket costs and expenses incurred in connection with this Amendment, any other documents prepared in connection herewith and the transactions contemplated hereby, including, the reasonable, documented and invoiced fees, charges and disbursements of counsel to the Administrative Agent, all in accordance with and subject to Section 9.05 of the Credit Agreement.
SECTION 7. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 8. Amendments; Execution in Counterparts. This Amendment may not be amended nor may any provision hereof be waived except pursuant to a writing signed by the Borrower, the Administrative Agent and the Required Lenders in accordance with Section 9.08 of the Credit Agreement. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Amendment by email or facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
|THE AZEK COMPANY, as Holdings|
|Name: Paul Kardish|
|Title: Senior Vice President & Chief Legal Officer|
|CPG INTERNATIONAL LLC, as the Borrower|
|Name: Paul Kardish|
|Title: Chief Legal Officer|
[First Amendment Signature Page]
|JEFFERIES FINANCE LLC, as Administrative Agent|
|Name: Paul Chisholm|
|Title: Managing Director|
[First Amendment Signature Page]
[Lender signature pages intentionally omitted]
[First Amendment Signature Page]