EXHIBIT 10.2
AMENDMENT NO. 2 TO
CREDIT AGREEMENT
AMENDMENT NO. 2, dated as of May 20, 2009 (this “
Amendment ”), among ASHLAND INC., a Kentucky
corporation (the “ Borrower ”), BANK OF AMERICA,
N.A., as Administrative Agent, and the Required Lenders listed on
the signature pages hereto, to the Credit Agreement dated as of
November 13, 2008, as amended as of April 17, 2009 (the
“ Credit Agreement ”) among the Borrower, each
lender from time to time party thereto (collectively, the “
Lenders ” and individually, a “ Lender
”), BANK OF AMERICA, N.A., as Administrative Agent, and THE
BANK OF NOVA SCOTIA, as Syndication Agent. Capitalized
terms used and not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement.
WHEREAS, Section 10.01 of the Credit Agreement permits the Credit
Agreement to be amended from time to time;
NOW, THEREFORE, in consideration of the premises and covenants
contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as
follows:
Section
1.
Amendments .
Upon and subject to the date as of which this Amendment becomes
effective (the “ Amendment No. 2 Effective Date
”), the Credit Agreement is amended as follows:
(a) The
definition of “Consolidated EBITDA” in the Credit Agreement is hereby
amended by:
(i) replacing
clause (viii) thereto with the following: “(viii)
restructuring and integration charges not to exceed $80,000,000 in
the aggregate during the three fiscal year period ending September
30, 2011 (and such amounts may be included pursuant to this clause
(b) in the calculation of Consolidated EBITDA for any Measurement
Period after September 30, 2011 that includes one or more quarters
prior to September 30, 2011 in which such charges were
incurred),”; and
(ii) adding
the following immediately prior to the comma in clause (ix)
thereof: “and non-cash equity compensation
expense”.
(b) Section
7.12 of the Credit Agreement is hereby amended by replacing the
second line in the table with the following:
|
Fiscal Year
|
Amount
|
|
2010
|
$250,000,000
|
Section
2.
Representations and Warranties .
Borrower represents and warrants to the Lenders as of the date
hereof and the Amendment No. 2 Effective Date that:
(a) The
execution, delivery and performance by each Loan Party of this
Amendment have been duly authorized by all necessary corporate or
other organizational action, and do not and will not (a) contravene
the terms of any of such Person’s Organization Documents; (b)
conflict with or result in any breach or contravention of, or the
creation of any Lien under, or require any payment to be made under
(i) any Contractual Obligation to which such Person is a party or
binding upon Such Person or the properties of such Person or any of
its Subsidiaries or (ii) any order, injunction, writ or decree of
any Governmental Authority or any arbitral award to which such
Person or its property is subject; or (c) violate any Law.
(b) Before
and after giving effect to this Amendment, the representations and
warranties of the Borrower and each other Loan Party contained in
the Credit Agreement or any other Loan Document shall be true and
correct on and as of the Amendment No. 2 Effective Date, except to
the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date, and
except that the representations and warranties contained in Section
5.05(a) and (b) of the Credit Agreement shall be deemed to refer to
the most recent statements furnished pursuant to Section 6.01(a)
and (b), respectively, of the Credit Agreement; provided
that any representation a
