EXHIBIT 99.1
Execution Version
WAIVER TO
CREDIT AGREEMENT
This WAIVER TO CREDIT AGREEMENT (this
“ Waiver ”), dated as of June 27,
2008, is by and among TRONOX INCORPORATED, a Delaware corporation
(“ Holdings ”), TRONOX WORLDWIDE LLC, a
Delaware limited liability company (the “
Borrower ”) and LEHMAN COMMERCIAL PAPER INC.,
as administrative agent (in such capacity, the “
Administrative Agent ”) under that certain
Credit Agreement (as defined below).
WHEREAS, Holdings, Borrower, the
several banks and other financial institutions or entities from
time to time parties thereto (the “ Lenders
”), Lehman Brothers Inc. and Credit Suisse, as joint lead
arrangers and joint bookrunners, ABN Amro Bank N.V., as syndication
agent, JPMorgan Chase Bank, N.A. and Citicorp USA, Inc., as
co-documentation agents, and the Administrative Agent are parties
to that certain Credit Agreement dated as of November 28,
2005, as amended by First Amendment dated as of March 12,
2007, and as further amended by Second Amendment to Credit
Agreement and First Amendment to Guarantee and Collateral Agreement
dated as of February 8, 2008, (as heretofore amended, restated
or otherwise modified and in effect of the date hereof, the “
Credit Agreement ”);
WHEREAS, Borrower has failed to
comply with the covenants contained in Section 7.2(b)(iv) and
Section 6.7(a) of the Credit Agreement, which non-compliance
has resulted in a Default or an Event of Default;
WHEREAS, on the terms and subject to
the conditions contained herein, the Lenders are willing to waive
such Default or Event of Default in accordance with
Section 10.1 of the Credit Agreement;
WHEREAS, Borrower has requested that
the Lenders waive compliance with Section 7.1(a) of the Credit
Agreement with respect to the period of four consecutive fiscal
quarters ending June 30, 2008 and waive compliance with
Section 7.2(b)(iv) of the Credit Agreement during the Waiver
Period (as defined herein);
WHEREAS, on the terms and subject to
the conditions contained herein, the Lenders are willing to waive
compliance with Section 7.1(a) for the period indicated in
accordance with Section 10.1 of the Credit Agreement;
and
WHEREAS, in connection herewith, the
Loan Parties are requesting that the Administrative Agent and the
Lenders enter into a Third Amendment to Credit Agreement and Second
Amendment to Guarantee and Collateral Agreement (the “
Third Amendment ”);
NOW, THEREFORE, in consideration of
the foregoing recitals, the mutual covenants and agreements set
forth herein 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 in this Waiver shall have
the meanings ascribed to such terms in the Credit Agreement.
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2. Waiver of Defaults and
Events of Defaults . Subject to satisfaction of the conditions
set forth below, the Administrative Agent and the Lenders hereby
waive:
(a) any
Default or Event of Default that may occur or has occurred as a
result of Borrower’s failure to comply with
Section 7.1(a) for the period of four consecutive fiscal
quarters ending June 30, 2008; provided , that such
waiver shall expire upon the earlier to occur of: (i) the
effective date of the Third Amendment (as determined by the Third
Amendment) and (ii) July 31, 2008 (the period from the
date hereof until such date, the “ Waiver
Period ”);
(b) any
Default or Event of Default that may occur or has occurred as a
result of Borrower’s failure to comply with
Section 7.2(b)(iv) prior to or as of the date hereof and any
related Default or Event of Default that may have occurred as a
result of Borrower’s failure to comply with Section 6.7(a)
with respect to the Default or Event of Default under
Section 7.2(b)(iv); and
(c) any
Default or Event of Default that may occur as a result of
Borrower’s failure to comply with Section 7.2(b)(iv)
during the Waiver Period;
provided , that Borrower and Holdings hereby acknowledge and
agree that prior to expiration of the Waiver Period, (i) the
aggregate principal amount of all Revolving Credit Loans, together
with the aggregate face amount of all Letters of Credit then
outstanding, shall not exceed $178,000,000, (ii) Borrower
shall not submit any Borrowing Notice for, no shall any Lender be
required to make, Revolving Credit Loans which, together with the
aggregate principal amount of then outstanding Revolving Credit
Loans and Letters of Credit, would exceed such amount,
(iii) they will not permit any Foreign Subsidiary to incur
additional Indebtedness to Borrower or any Subsidiary Guarantor
that in the aggregate, together with any outstanding Indebtedness
to any Borrower or any Subsidiary Guarantor existing at the time of
such incurrence, would cause the aggregate Indebtedness of the
Foreign Subsidiaries to the Borrower and any Subsidiary Guarantors
to exceed in aggregate the sum of (A) the Foreign Subsidiary
Debt Amount plus (B) $15,000,000 and (iv) any Net Cash
Proceeds received by Holdings, Borrower or any of its subsidiaries
from any Asset Sale shall not be subject to clause (i) of the
proviso in Section 2.12(b) of the Credit Agreement and 100% of
any such Net Cash Proceeds equal to or in excess of $100,000
received during the Waiver Period shall be applied toward the
prepayment of the Term Loans as set forth in Section 2.12(d)
of the Credit Agreement.
3. Representations and
Warranties . Each of Holdings and Borrower jointly and
severally represents and warrants as of the date hereof to the
Administrative Agent and each Lender that:
(a) Each
of Holdings and Borrower (i) has the power and authority, and
the legal right, to make, deliver and perform this Waiver and
(ii) has taken all necessary corporate or other action to
authorize the execution, delivery and performance of this
Waiver;
(b) No
consent or authorization of, filing with, notice to, permit from or
other act by or in respect of, any Governmental Authority and no
consent or authorization of, filing with, notice to or other act by
or in respect of any other Person is required in connection with
the execution, delivery, performance, validity or enforceability of
this Waiver;
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