Exhibit 10.1
CALGON CARBON
CORPORATION,
as Borrower
THE LENDING INSTITUTIONS NAMED
HEREIN,
as Lenders
NATIONAL CITY BANK OF
PENNSYLVANIA
as a Lender, the Swing Line
Lender and
as Administrative
Agent
AMENDMENT NO. 2 AND
WAIVER
dated as of
August 8, 2005
to
CREDIT AGREEMENT
dated as of
February 18, 2004
EXECUTION VERSION
AMENDMENT NO. 2 AND WAIVER TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 2 AND WAIVER
TO CREDIT AGREEMENT, dated as of August 8, 2005 (this
“Amendment and Waiver” ), among the
following:
(i) CALGON CARBON
CORPORATION, a Delaware corporation (herein, together with its
successors and assigns, “Borrower”
);
(ii) the lending institutions
signatory hereto (herein, together with its or their successors and
assigns, each a “Lender” and
collectively, the “Lenders” ),
and
(iii) NATIONAL CITY BANK OF
PENNSYLVANIA , a national banking association, as a Lender, the
Swing Line Lender, as the lead arranger and book manager and as the
Administrative Agent (in such capacity, the
“Administrative Agent” ).
PRELIMINARY STATEMENTS:
A. Borrower, the Lenders, the Swing
Lender and the Administrative Agent entered into the Credit
Agreement, dated as of February 18, 2004, as amended by Amendment
No. 1, dated as of March 31, 2005 (as the same may from time to
time be further amended, restated, amended and restated or
otherwise modified, the “Credit
Agreement,” with the terms defined therein, or the
definitions of which are incorporated therein, being used herein as
so defined).
B. The parties hereto desire to
amend certain terms and provisions of the Credit Agreement, as more
fully set forth below.
NOW, THEREFORE, the parties hereby
agree as follows:
1. WAIVER.
1.1 Borrower has informed the
Administrative Agent and the Lenders that it was not in compliance
with the Interest Coverage Ratio requirement of Section 10.9 of the
Credit Agreement for the period ending June 30, 2005 (the
“Existing Default” ). Borrower has
requested that the Administrative Agent and the Lenders waive the
Existing Default, and the Administrative Agent and the Required
Lenders have agreed to waive and, effective as of the Amendment
Effective Date (as defined in Section 5 of this Amendment and
Waiver), waive the Existing Default upon the terms and conditions
contained herein.
2. AMENDMENTS. Effective on and as
of the Amendment Effective Date:
2.1 The following definitions shall
be added to Section 1.1 of the Credit Agreement in the appropriate
alphabetical order:
“Capital
Distributions” shall mean a payment made, liability incurred or
other consideration given as a dividend, return of capital or other
distribution in respect of the Borrower’s capital stock or
other equity interest, excluding dividends or distributions made
solely in the form of capital stock of the Borrower.
1
“Fixed Charge Coverage
Ratio” shall
mean, for any Testing Period, the ratio of (i) Consolidated EBITDA
for such Testing Period to (ii) the sum of (without duplication) of
(a) Consolidated Interest Expense, plus (b) scheduled
repayments of the principal of Indebtedness described in
subsections (i), (ii), (iii), (vii) and (viii) of the definition of
“Indebtedness,” plus (c) Consolidated
Capital Expenditures (to the extent paid in cash),
plus (d) the aggregate amount of Capital
Distributions made by the Borrower, if any, plus (e)
Consolidated Income Tax Expense (to the extent paid in cash and net
of refunds and credits), in each case, for such Testing
Period.
2.2 The definition of
“Interest Coverage Ratio” contained in Section 1.1 of
the Credit Agreement shall be deleted in its entirety.
2.3 Section 10.2(f) of the Credit
Agreement shall be deleted in its entirety and replaced with the
following:
(f) [Reserved.]
2.4 Section 10.9 of the Credit
Agreement shall be amended and restated in its entirety to read as
follows:
10.9 Fixed Charge Coverage
Ratio. The Borrower will
not at any time permit its Fixed Charge Coverage Ratio to be less
than 1.10 to 1.00 for any Testing Period.
3. REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to the Lenders, the Swing Line
Lender and the Administrative Agent as follows:
3.1 Authorization and Validity of
Amendment and Waiver, etc . This Amendment and Waiver has been
duly authorized by all necessary corporate action on the part of
Borrower, has been duly executed and delivered by a duly authorized
officer of Borrower and constitutes the valid and binding agreement
of Borrower, enforceable against Borrower in accordance with its
terms, subject to applicable bankruptcy and insolvency
laws.
3.2 Representations and
Warranties . The representations and warranties of Borrower
contained in the Credit Agreement or in the other Credit Documents
are true and correct in all material respects on and as of the date
hereof as though made on and as of the date hereof, except to the
extent that such representations and warranties expressly relate to
an earlier specified date, in which case such representations and
warranties are hereby reaffirmed as true and correct in all
material respects as of the date when made.
3.3 No Event of Default .
After giving effect to this Amendment and Waiver, no condition or
event has occurred or exists which constitutes or which, after
notice or lapse of time or both, would constitute a Default or an
Event of Default.
3.4 No Claims . Neither
Borrower nor any Subsidiary has any claim or offset against, or
defense or counterclaim to, any of Borrower’s or any
Subsidiary’s obligations or liabilities under the Credit
Agreement or any other Credit Document.
3.5 Compliance . Borrower is
in full compliance with all covenants and agreements contained in
the Credit Agreement, as amended hereby, and the other Credit
Documents to which it is a party; and without limitation of the
foregoing, each Subsidiary of Borrower which, as of the date
hereof, is required to be a Subsidiary Guarantor, has on or prior
to the date hereof, become a Subsidiary Guarantor under the
Subsidiary Guaranty.
2
4. RATIFICATIONS. Except
a
