Ex. 10.1
AMENDMENT NO. 2 TO
THE
CREDIT AGREEMENT
Dated as of
July 13, 2009
AMENDMENT NO. 2 TO THE CREDIT
AGREEMENT (this “
Amendment ”) among Chemtura Corporation, a Delaware
corporation (the “ Borrower ”), the guarantors
party thereto (the “ Guarantors ”), the banks,
financial institutions and other institutional lenders party to the
Credit Agreement referred to below (collectively, the “
Lenders ”) and Citibank, N.A., as administrative agent
(the “ Administrative Agent ”) for the
Lenders.
PRELIMINARY STATEMENTS:
(1) The
Borrower, the Guarantors, the Lenders and the Administrative Agent
have entered into the Senior Secured Superpriority
Debtor-in-Possession Credit Agreement dated as of March 18, 2009
(as heretofore amended or otherwise modified, the “ Credit
Agreement ”). Capitalized terms not otherwise
defined in this Amendment have the same meanings as specified in
the Credit Agreement.
(2) The
Borrower has requested that the Lenders amend certain provisions of
the Credit Agreement. The Lenders party hereto are, on
the terms and conditions stated below, willing to grant the request
of the Borrower.
SECTION 1. Extension of Stated
Maturity Date . The Credit Agreement is, effective
as of the date hereof and subject to the satisfaction of the
applicable conditions precedent set forth in Section 3 of this
Amendment, hereby amended as follows:
(a) The following new provisos are
hereby added prior to the “.” at the end of the
definition of “Applicable Margin” contained in Section
1.01 of the Credit Agreement:
“;
provided that upon the initial Stated Maturity Date, if the
Fifteen Month Extension Option shall have become effective, the
Applicable Margin for each Facility for each Type of Advances shall
be increased by 1% per annum; and provided further
that upon June 22, 2010, if the Eighteen Month Extension
Option shall have become effective, the Applicable Margin for each
Facility for each Type of Advances shall be further increased by
another 1% per annum.”
(b) The definition of “Letter
of Credit Expiration Date” contained in Section 1.01 of the
Credit Agreement is hereby amended in full to read as
follows:
“ Letter of Credit Expiration Date
” means as of any date of determination, the day that is 5
Business Days prior to the Stated Maturity Date then in effect;
provided , however , that (i) at such time as
the Borrower shall have provided notice of its intention to
exercise the Fifteen Month Extension Option and each of the
conditions set forth in Sections 2.22(c), (d), (f), (g) and (h)
shall be satisfied on and as of a date selected by the Borrower
within the 30 days preceding the initial Stated Maturity Date as if
each reference in such Sections to the initial Stated Maturity Date
were a reference to such selected date, the Letter of Credit
Expiration Date shall be extended without need for any further
action to the fifth Business Day prior to June 22, 2010 and (ii) at
such time as the Borrower shall have provided notice of its
intention to exercise the Eighteen Month Extension Option and each
of the conditions set forth in Sections 2.23(c), (d), (e), (g), (h)
and (i) shall be satisfied on and as of a date selected by the
Borrower within the 30 days preceding June 22, 2010 as if each
reference in such Sections to June 22, 2010 were a reference to
such selected date, the Letter of Credit Expiration Date shall be
extended without need for any further action to the fifth Business
Day prior to September 22, 2010.
(c) The definition of “Stated
Maturity Date” contained in Section 1.01 of the Credit
Agreement is hereby amended in full to read as follows:
“ Stated Maturity Date ”
means March 22, 2010; provided that upon the effectiveness
of the Fifteen Month Extension Option, the Stated Maturity Date
shall be extended to June 22, 2010; and provided
further that upon the effectiveness of the Eighteen Month
Extension Option, the Stated Maturity Date shall be extended to
September 22, 2010. As of any date of determination,
Stated Maturity Date shall mean the Stated Maturity Date then in
effect (as it may have been extended as set forth in the preceding
sentence).
(d) The
following new definitions are hereby added to Section 1.01 of the
Credit Agreement in appropriate alphabetical order:
“ Eighteen Month Extension Option
” has the meaning specified in Section 2.23.
“ Fifteen Month Extension Option
” has the meaning specified in Section 2.22.
“ Specified Foreign Facilities
” means the three credit facilities provided by Citibank or
any of its Affiliates to the Foreign Subsidiaries or operations of
the Company located in each of Brazil, India and the United Kingdom
that are, in each case, outstanding and in effect on June 24,
2009.
(e) Section
2.03 of the Credit Agreement is hereby amended by adding the
following new subsection (j) immediately following Section
2.03(i):
“(j)
Failure of Extension of Stated Maturity Date
. Notwithstanding anything to the contrary contained
herein, in the event that the Letter of Credit Expiration Date
shall have been extended beyond the then effective Stated Maturity
Date pursuant to clause (i) or (ii) of the proviso to the
definition of “Letter of Credit Expiration Date”
contained in Section 1.01, and an amount equal to 105% of the
aggregate Available Amount of all Letters of Credit then
outstanding shall be on deposit in the L/C Cash Collateral Account
pursuant to Section 2.06(b)(iii), if such Stated Maturity Date
shall not be extended under Section 2.22 or 2.23, as applicable,
then each Non-rollup Revolving Credit Lender’s obligation to
reimburse the applicable Issuing Bank for amounts drawn under
Non-rollup Letters of Credit, as contemplated by any provision
under this Section 2.03 or any Loan Document, shall automatically
cease on such Stated Maturity Date.”
(f) Section
2.06(b)(iii) is hereby amended by adding at the end thereof the
following:
“In
addition, if the Letter of Credit Expiration Date shall be extended
pursuant to clause (i) or (ii) of the proviso to the definition of
“Letter of Credit Expiration Date” contained in Section
1.01, the Borrower shall, no later than 5 Business Days prior to
the then effective Stated Maturity Date, deposit with the
Administrative Agent in the L/C Cash Collateral Account an amount
equal to 105% of the aggregate Available Amount of all Letters of
Credit then outstanding, which amount shall be refunded to the
Borrower on the date that the Stated Maturity Date shall be
extended under Section 2.22 or 2.23, as applicable, after such
extension of the Letter of Credit Expiration Date; provided
, that, the Borrower shall not be required to deposit such amount
(or, as applicable, shall be refunded any such amount so deposited)
if on a date that occurs after the Letter of Credit Expiration Date
shall have been so extended prior to the then effective Stated
Maturity Date, all of the conditions set forth in Section 2.22 or
2.23, as applicable, shall have been satisfied (as if each
reference in such Sections to the initial Stated Maturity Date or
June 22, 2010, as applicable, were a reference to such date),
including, without limitation the payment of fees required under
Section 2.22(b) or 2.23(b).”
(g) Section
2.21 of the Credit Agreement is hereby amended by adding the
following new subsection (j) immediately following Section
2.21(i):
“(j)
Failure of Extension of Stated Maturity Date
. Notwithstanding anything to the contrary contained
herein, in the event that the Letter of Credit Expiration Date
shall have been extended beyond the then effective Stated Maturity
Date pursuant to clause (i) or (ii) of the proviso to the
definition of “Letter of Credit Expiration Date”
contained in Section 1.01, and an amount equal to 105% of the
aggregate Available Amount of all Letters of Credit then
outstanding shall be on deposit in the L/C Cash Collateral Account
pursuant to Section 2.06(b)(iii), if such Stated Maturity Date
shall not be extended under Section 2.22 or 2.23, as applicable,
then each Rollup Revolving Credit Lender’s obligation to
reimburse the applicable Issuing Bank for amounts drawn under
Rollup Letters of Credit, as contemplated by any provision under
this Section 2.21 or any Loan Document, shall automatically cease
on such Stated Maturity Date.”
(h) The
following new Sections 2.22 and 2.23 are hereby added to Article II
of the Credit Agreement immediately following Section 2.21
thereof:
“Section 2.22. Fifteen
Month Facility Option . The Borrower may extend the
Stated Maturity Date from March 22, 2010 to June 22, 2010 (the
“ Fifteen Month Extension Option ”) subject to,
and the Stated Maturity Date shall be so extended without need for
further action upon satisfaction of, the following conditions
precedent:
(a) the
Borrower shall provide written notice to the Administrative Agent
at least thirty (30) days, and not more than sixty (60) days, prior
to March 22, 2010 of its intention to exercise the Fifteen Month
Extension Option;
(b) the
Borrower shall pay a fee to the Administrative Agent on or before
the initial Stated Maturity Date for the account of the Lenders
equal to 1% of the outstanding principal balance of the Term
Advances plus the then aggregate amount of Non-rollup Revolving
Credit Commitments and Rollup Revolving Credit
Commitments;
(c) as
of the initial Stated Maturity Date, the representations and
warranties contained in each Loan Document shall be correct in all
material respects (provided that any representation and warranty
that is qualified as to “materiality”, “Material
Adverse Effect” or similar language shall be true and correct
in all respects) on and as of such date, immediately before and
immediately after giving effect to such extension, as though made
on and as of such date, other than any such representations or
warranties that, by their terms, refer to a specific date other
than the date of such extension, in which case such representations
or warranties were true and correct in all material respects
(provided that any representation and warranty that is qualified as
to “materiality”, “Material Adverse Effect”
or similar language were true and correct in all respects) as of
such specific date;
(d) as
of the initial Stated Maturity Date, no material adverse change
shall have occurred (since the Final Term Advance Date) with
respect to the business, operations, financial condition, future
prospects or expected funding capacity or liquidity of the Borrower
and its Subsidiaries, taken as a whole;
(e) the
Loan Parties shall have filed with the Bankruptcy Court a
Reorganization Plan providing for the full repayment of the
Advances in cash upon the consummation thereof;
(f) as
of the initial Stated Maturity Date, the Availability shall not be
less than $30,000,000;
(g) the
Loan Parties shall have provided to the Administrative Agent
certified copies of resolutions of the boards of directors of the
Loan Parties duly approving the increase in the Applicable Margin
as a result of the effectiveness of the Fifteen Month Extension
Option, in form and substance reasonably satisfactory to the
Administrative Agent;
(h) no
Default or Event of Default shall have occurred and be continuing
as of the initial Stated Maturity Date; and
(i) the
Borrower shall have provided to the Administrative Agent no later
than September 30, 2009, a business plan prepared by management of
the Borrower, in form reasonably satisfactory to the Administrative
Agent and in any event with sufficient information and details to
enable the Administrative Agent to establish the minimum amount of
Consolidated EBITDA of the Borrower and its Subsidiaries under
Section 5.04(a) for each of the respective twelve-month periods
ending as at the last day of March, 2010, April, 2010, May, 2010,
June, 2010, July, 2010 and August, 2010, and the Borrower shall not
have unreasonably withheld or delayed consent with respect to an
amendment of Section 5.04(a) made pursuant to clause (iii) of the
last proviso of Section 10.01.
The Administrative Agent will notify the
Borrower and the Lenders upon the effectiveness of the Fifteen
Month Extension Option (provided, that such notice shall not be
required in order for the Fifteen Month Extension Option
to
