Exhibit 10.3C
EXECUTION COPY
CONSENT AND WAIVER
TO
CONSTAR INTERNATIONAL
INC.’S
CREDIT AGREEMENT
CONSENT AND WAIVER, dated as of
March 30, 2009 (this “ Consent and Waiver
”), by and among Constar International Inc. (the “
Borrower ”), Citicorp USA, Inc., as agent for the
Lenders and Issuers (in such capacity the “ Agent
”) and as a Lender, the other Lenders party to the Credit
Agreement (as defined below) and each of the Guarantors listed on
the signature pages hereof.
W I T
N E S
S E T
H :
W HEREAS , on
December 30, 2008, each of the Borrower and the Guarantors
filed a voluntary petition for relief under chapter 11 of title 11
of the United States Code with the United States Bankruptcy Court
for the District of Delaware and the chapter 11 cases of the
Borrower and Guarantors are currently being jointly administered by
such court (the “ Chapter 11 Cases ”);
and
W HEREAS ,
the Borrower, the Guarantors, the Agent, the Lenders and the
Issuers, among others, are party to that certain Senior Secured
Super-Priority Debtor in Possession and Exit Credit Agreement,
dated as of December 31, 2008 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”; capitalized terms used
herein and not otherwise defined herein shall have the meanings
ascribed to them in Credit Agreement); and
W HEREAS ,
the Borrower agreed, pursuant to Section 6.1(c) of the
Credit Agreement, to deliver to the Agent, within 90 days of the
end of each Fiscal Year, audited Consolidated Financial Statements
certified “without qualification as to the scope of the audit
or as to the Borrower being a going concern by the Borrower’s
Accountants” (the “ Specified Covenant ”);
and
W HEREAS ,
the Borrower has requested that the Agent and the Requisite Lenders
waive the Specified Covenant with respect to the Fiscal Year ended
December 31, 2008 to the extent set forth herein;
and
W HEREAS ,
the Lenders party hereto (constituting the Requisite Lenders) and
the Agent agree, subject to the limitations and conditions set
forth herein, to waive the Specified Covenant with respect to
the Fiscal Year ended December 31, 2008 to the extent set
forth herein;
N OW ,
T HEREFORE , in consideration of the premises and the
covenants and obligations contained herein the parties hereto agree
as follows:
Section 1. Consent and
Waiver
Effective as of the Waiver Effective
Date (as defined below), the Lenders and the Agent waive the
Specified Covenant with respect to the Fiscal Year ended
December 31 2008; provided that the Borrower delivers
to the Agent, by March 31, 2009, audited
Consolidated
C ONSENT AND W AIVER TO C
REDIT A GREEMENT
C ONSTAR INTERNATIONAL I NC
.
Financial Statements for the Fiscal
Year ended December 31 2008 certified “without
qualification as to the scope of the audit or as to the Borrower
being a going concern by the Borrower’s Accountants”,
other than any qualification arising solely as a result of the
pendency of the Chapter 11 Cases.
Section 2. Conditions
Precedent to the Effectiveness of this Consent and
Waiver
This Consent and Waiver shall become
effective when, and only when (the “ Waiver Effective
Date ”) (i) the Agent shall have received this
Consent and Waiver, duly executed by the Borrower, the Guarantors,
the Agent and the Requisite Lenders and (ii) the Agent shall
have received payment of all fees due in respect of this Consent
and Waiver.
Section 3.
Representations and Warranties
The Borrower hereby certifies that
the following statements are true on the date hereof after giving
effect to this Consent and Waiver:
(a) Representations and
Warranties. Each of the representations and warranties
contained in Article IV (Representations and
Warranties) of the Credit Agreement, the other Loan Documents
or in any certificate, document or financial or other statement
furnished at any time under or in connection therewith are true and
correct in all material respects on and as of the date hereof and
the Waiver Effective Date, in each case as if made on and as of
such date and except to the extent that such representations and
warranties specifically relate to a specific date, in which case
such representations and warranties shall be true and correct in
all material respects as of such specific date; provided ,
however , that references therein to the “ Credit
Agreement ” shall be deemed to refer to the Credit
Agreement as supplemented by this Consent and Waiver (if
applicable); and
(b) No Default or Event of
Default . After giving effect to the Wavier Effective Date, no
Default or Event of Default shall have occurred and be
continuing.
Section 4.
Covenant
The Borrower agrees to cause Constar
International U.K. Limited to amend the Debenture, dated as of
December 31, 2008, between Constar International U.K. Limited,
as Chargor, and Citibank, N.A., London Branch, as Security Trustee,
to replace the definition of “Material Contracts”
therein with the following definition:
““ Material
Contracts ” means:
(a) the Sale and Purchase Agreement dated
1 December 2004 between the Chargor and Britvic Soft Drinks
Limited in relation to the Britvic Huddersfield plant
(closures);
(b) the Sale and Purchase Agreement dated
1 S
