Exhibit 10.1
Execution
Version
LIMITED WAIVER AND AMENDMENT TO
CREDIT AGREEMENT
This LIMITED WAIVER AND AMENDMENT TO
CREDIT AGREEMENT, dated as of September 22, 2009 (this “
Waiver and Amendment ”), is entered into by MOMENTIVE
PERFORMANCE MATERIALS HOLDINGS INC., a Delaware corporation
(“ Holdings ”), MOMENTIVE PERFORMANCE MATERIALS
INC., a Delaware corporation (“ Intermediate Holdings
”), MOMENTIVE PERFORMANCE MATERIALS USA INC., a Delaware
corporation (the “ U.S. Borrower ”), MOMENTIVE
PERFORMANCE MATERIALS GMBH (formerly known as BLITZ 06-103 GMBH), a
company organized under the laws of Germany (the “ German
Borrower ” and, together with the U.S. Borrower, the
“ Borrowers ”), each Subsidiary Loan Party party
hereto, the Lenders signatory hereto (the “ Consenting
Lenders ”), and JPMORGAN CHASE BANK, N.A., as
administrative agent (in such capacity, the “
Administrative Agent ”).
W I T N E S S E T H:
WHEREAS, Holdings, Intermediate
Holdings, the Borrowers, the Administrative Agent, the Lenders and
the other parties thereto have entered into that certain Credit
Agreement dated as of December 4, 2006 (as amended,
supplemented, waived or otherwise modified from time to time, the
“ Credit Agreement ”);
WHEREAS, the Borrowers have
requested that the Revolving Facility Lenders agree to amend and
waive certain provisions of the Credit Agreement as set forth
herein;
WHEREAS, the Consenting Lenders,
constituting at least the Majority Lenders under the Revolving
Credit Facility, are willing to amend and waive certain provisions
of the Credit Agreement on the terms and subject to the conditions
set forth herein; and
NOW, THEREFORE, in consideration of
the mutual execution hereof and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
1. Defined Terms .
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Credit Agreement.
2. Amendments . The Credit
Agreement is hereby amended, effective as of the Waiver and
Amendment Effective Date (as defined below), as follows:
(a) Section 1.01 of the Credit
Agreement is hereby amended by adding the following new definitions
in proper alphabetical sequence:
“ Limited Waiver and
Amendment ” shall mean that certain Limited Waiver and
Amendment to Credit Agreement, dated as of September 22, 2009,
among Holdings, Intermediate Holdings, the Borrowers, each
Subsidiary Loan Party party thereto, the Administrative Agent and
the Lenders party thereto.
“ Waiver and Amendment
Effective Date ” shall mean the date on which the Limited
Waiver and Amendment becomes effective in accordance with its
terms.
(b) Section 1.01 of the Credit
Agreement is hereby amended by adding at the end of the definition
of “Pricing Grid” the following:
“Notwithstanding the foregoing
or anything else in this Agreement or any other Loan Document, on
and after the Waiver and Amendment Effective Date, the Applicable
Margin with respect to Revolving Facility Loans and Swingline Loans
shall for all purposes be the otherwise Applicable Margin from time
to time with respect to Revolving Facility Loans and Swingline
Loans plus an additional 1.25% per annum.”
3. Limited Waiver .
(a) On the terms and subject to the conditions set forth
herein (including, without limitation, the conditions set forth in
Section 4(b) hereof) and in reliance on the representations
and warranties set forth herein, the Consenting Lenders,
constituting the Majority Lenders under the Revolving Credit
Facility, hereby permanently (unless revoked pursuant to
Section 4(b) hereof) waive compliance by Intermediate Holdings
and its Subsidiaries with the Senior Secured Leverage Ratio test
set forth in Section 6.11 of the Credit Agreement with respect
to the fiscal quarters ending September 27, 2009 and
December 31, 2009 (the “ Waiver
”).
(b) The Waiver is effective solely
for the purposes set forth herein and shall be limited precisely as
written and shall not in any event be deemed, except as expressly
provided herein, (i) to be a waiver or modification of any
term or condition of the Credit Agreement or any other Loan
Document or (ii) to prejudice any right or remedy that the
Administrative Agent or the Lenders may have at any time under or
in connection with the Credit Agreement and the other Loan
Documents.
4. Effectiveness .
(a) This Waiver and Amendment will become effective on the
date (the “ Waiver and Amendment Effective Date
”) on which the following conditions are first
satisfied:
(i) Execution and delivery of this
Waiver and Amendment, and receipt by the Administrative Agent of
counterparts of this Waiver and Amendment (or photocopies thereof
sent by fax, pdf or other electronic means, each of which shall be
enforceable with the same effect as a signed original) executed and
delivered by, Holdings, Intermediate Holdings, the U.S. Borrower,
the German Borrower, each domestic Subsidiary Loan Party, each
foreign Subsidiary Loan Party as to which a signature can
reasonably be obtained by September 22, 2009, and the Majority
Lenders under the Revolving Credit Facility.
(ii) Receipt by the Administrative
Agent in immediately available funds, for the pro rata benefit of
each Revolving Facility Lender that has executed and delivered a
counterpart signature page approving this Waiver and Amendment not
later than 12:00 p.m., New York City time, on September 22,
2009, of a cash fee in an amount equal to 0.25% of each such
Lender’s aggregate Revolving Facility Commitment as of
September 22, 2009.
(iii) Receipt by the Administrative
Agent in immediately available funds, to the extent invoiced at
least one day prior to the otherwise applicable Waiver and
Amendment Effective Date, of payment of all reasonable
out-of-pocket expenses, including the fees and expenses of counsel,
incurred by the Administrative Agent in connection with this Waiver
and Amendment.
(iv)(i) Each of the representations
and warranties made by Holdings, Intermediate Holdings, each of the
Borrowers, and each Subsidiary Loan Party in Section 5 below
shall be true and correct in all material respects on and as of the
Waiver and Amendment Effective Date as if made on and as of such
date, except to the extent that such representations and warranties
refer to an earlier date, in which case they were true in all
material respects as of such earlier date and (ii) both before
and after giving effect this Waiver and Amendment, no Default or
Event of Default shall have occurred and be continuing.
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(b) Notwithstanding anything
contained herein or in any other Loan Document, the continuing
effectiveness of the Waiver shall be subject to the following
condition (it being understood and agreed that, in the event the
following condition shall at any time fail to be satisfied, the
Waiver shall immediately and automatically be revoked and shall no
longer be effective for any purpose whatsoever and each of
Intermediate Holdings and its Subsidiaries, including each
Borrower, shall be required to comply with the Financial
Performance Covenant set forth in Section 6.11 of the Credit
Agreement with respect to the fiscal quarters ending
September 27, 2009 and December 31, 2009): from and after
the Waiver and Amendment Effective Date and until the delivery of
the financial statements and related certificate for the fiscal
quarter ending March 28, 2010 required by Sections 5.04(c) and
(d) of the Credit Agreement, each of Holdings, Intermediate
Holdings and each Borrower shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly and whether or not
permitted by the Credit Agreement or any other Loan Document,
(i) make any Restricted Payment, other than Restricted
Payments expressly permitted under Sections 6.06(a),
(b) (other than clause (iv) thereof to the extent such
Restricted Payment is for the purpose of directly or indirectly
funding any payment restricted pursuant to the immediately
following clause (ii) of this paragraph 4(b)), (c), (d), (f),
(g), and (i) of the Credit Agreement as such clauses exist as
of the Waiver and Amendment Effective Date or (ii) make any
payment, whether in cash, property, securities or a combination
thereof, pursuant to Sections 6.07(b)(v) (to the extent such
payment is made directly or indirectly to the Fund or any Fund
Affiliate), (ix), (xi) (to the extent such payment is made
directly or indirectly to the Fund or any Fund Affiliate),
(xii) (other than the payment of reasonable out-of-pocket
costs and indemnities to the Fund or any Fund Affiliate thereunder
in the ordinary course of business) or (xiv) of the Credit
Agreement or pursuant to any other clause in Section 6.07(b)
of the Credit Agreement if such clause is amended, waived or
otherwise modified after the Waiver and Amendment Effective Date so
as to allow such a payment to be made to the Fund or any Fund
Affiliate that was not permitted under such clause as of the Waiver
and Amendment Effective Date. For the avoidance of doubt, the
preceding condition shall not restrict payments expressly permitted
under Sections 6.07(b)(iv) of the Credit Agreement as such clause
exists as of the Waiver and Amendment Effective Date.
5. Representation and
Warranties . Each of Holdings, Intermediate Holdings, each
Borrower, and each Subsidiary Loan Party hereby represents and
warrants to the Administrative Agent and each Lender
that:
(a) Authorization; No
Conflicts . The execution, delivery and performance by each of
the Loan Parties of this Waiver and Amendment (a) has been
duly authorized by all corporate, stockholder, partnership or
limited liability company action required to be obtained by such
Loan Parties and (b) will not (i) violate (A) any
provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive
documents (including any partnership, limited liability company or
operating agreements) or by-laws of any such Loan Party,
(B) any applicable order of any court or any rule, regulation
or order of any Governmental Authority or (C) any provision of
any indenture, certificate of designation for preferred stock,
agreement or other instrument to which any such Loan Party is a
party of by which any of them or any of their property is or may be
bound, (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a
default under, give rise to a right of or result in any
cancellation or acceleration of any right of obligation (including
any payment) or to a loss of a material benefit under any such
indenture, certificate of designation for preferred stock,
agreement or other instrument, where any such conflict, violation,
breach or default referred to in clause (i) or (ii) of
this clause (b), would reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect or (iii) result
in the creation of imposition of any Lien upon or with respect to
any property or assets now owned or hereafter acquired by any such
Loan Party, other than Permitted Liens.
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(b) Enforceability . This
Waiver and Amendment has been duly executed and delivered by each
Loan Party that is party hereto and thereto and constitutes a
legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms, subject to
(i) the effects of bankruptcy, insolvency, moratorium,
reorganization, fraudulent conveyance or other similar laws
affecting creditor’s rights generally, (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity of law) and (iii) implied
covenants of good faith and fair dealing. Neither the execution,
delivery or performance of this Waiver and Amendment, nor the
performance of the transactions contemplated hereby, will adversely
affect the validity, perfection or priority of the Administrative
Agent’s Lien on any of the Collateral or its ability to
realize thereon.
(c) Approvals. No action,
consent or approval of, registration or filing with or any other
action by any Governmental Authority or third party is or will be
required in connection with the execution, delivery or performance
by each Loan Party of this Waiver and Amendment or the consummation
of the transactions contemplated hereby, except for such actions,
consents and approvals as have been made or obtained and are in
full force and effect.
(d) Incorporation of
Representations and Warranties from the Credit Agreement . Each
of the representations and warranties made by Holdings,
Intermediate Holdings and each of the Borrowers in Article III of
the Credit Agreement are true in all material respects on and as of
the date hereof as if made on and as of such date, except to the
extent that such representations and warranties refer to an earlier
date, in which case they were true in all material respects as of
such earlier date.
(e) No Default . Both before
and after giving effect to this Waiver and Amendment, no Default or
Event of Default has occurred and is continuing.
6. Acknowledgement and
Consent . Each Loan Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this
Waiver and Amendment and consents to the waiver and amendment
effected pursuant to this Waiver and Amendment. Each Loan Party
hereby confirms that each Loan Document to which it is a party or
otherwise bound and all Collateral encumbered thereby will continue
to guarantee or secure, as the case may be, to the fullest extent
possible in accordance with the Loan Documents the payment and
performance of all “Obligations” under each of the Loan
Documents to which it is a party (in each case as such terms are
defined in the applicable Loan Document). Each Loan Party
acknowledges and agrees that, except as expressly set forth herein,
each of the Loan Documents to which it is a party or otherwise
bound shall continue in full force and effect and that, except as
expressly set forth herein, all of its obligations thereunder shall
be valid and enforceable and shall not be impaired or limited by
the execution or effectiveness of this Waiver and Amendment. Each
Loan Party (other than Holdings, Intermediate Holdings and the
Borrowers) acknowledges and agrees that (i) notwithstanding
the conditions to effectiveness set forth in this Waiver and
Amendment, such Loan Party is not required by the terms of the
Credit Agreement or any other Loan Document to consent to the
waiver and amendment effected through this Waiver and Amendment and
(ii) nothing in the Credit Agreement, this Waiver and
Amendment or any other Loan Document shall be deemed to require the
consent of such Loan Party to any future amendments or waivers to
the Credit Agreement.
7. Foreign Subsidiary Loan
Parties . Each of Intermediate Holdings and each of the
Borrowers hereby covenants and agrees that any foreign Subsidiary
Loan Party that has not executed the Waiver and Amendment as of the
Waiver and Amendment Effective Date shall execute and deliver to
the Administrative Agent a counterpart signature page, in the form
and manner set forth under Section 4(a) hereof, approving this
Waiver and Amendment as soon as reasonably practicable and in any
event not later than 5:00 p.m., New York City time, on
October 15, 2009 (unless the Administrative Agent agrees to
extend or waive such date in its sole discretion).
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8. Continuing Effect of the
Credit Agreement .
(a) This Wai
