AMENDMENT NO. 1 AND WAIVER
Exhibit 10.24
AMENDMENT NO. 1 AND WAIVER
TO
AMENDMENT
NO. 1 AND WAIVER, dated as of February 26, 2019 (this “Amendment”), to the Revolving Syndicated Facility Agreement, dated as of September 22, 2017
(as amended, supplemented or restated prior to the date hereof and including this Amendment, the “Credit Agreement”), by, among others, Tronox US Holdings Inc., a Delaware corporation, and certain of its Subsidiaries and Affiliates party thereto, as U.S. Borrowers and Guarantors (collectively, the “Current U.S. Borrowers”), Tronox Limited (ACN 153 348 111), an Australian public limited company incorporated in the Commonwealth of
Australia, and certain of its Subsidiaries party thereto, as Australian Borrowers and Guarantors (collectively, the “Current Australian Borrowers”), Tronox Pigments (Holland) B.V., private company with limited liability under Dutch law (besloten vennootschap met beperkte aansprakelijkheid), having its official seat (statutaire zetel) in Rozenburg, Zuid-Holland, the Netherlands, having its registered office address at Professor
Gerbrandyweg 2 (3197 KK) Botlek Rotterdam, the Netherlands, registered with the Dutch trade register of the chamber of commerce under number 24179173, and certain of its Affiliates party thereto, as Dutch Borrowers and Guarantors (collectively,
the “Current Dutch Borrowers”; and together with the Current U.S.
Borrowers and the Current Australian Borrowers and any Additional Co-Borrowers who become party thereto, collectively, the “Borrowers” and each, a “Borrower”), the Subsidiary Guarantors party thereto, the Lenders, Xxxxx Fargo Bank, National Association, as issuing bank, as swingline lender, as administrative agent (the “Administrative Agent”) for the Lenders and as collateral agent for the Secured Parties and as Australian security trustee.
Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
WHEREAS, pursuant to Section
10.02(b) of the Credit Agreement, the Credit Agreement may be amended, and Events of Default thereunder waived, in a writing signed by the Borrowers, the Administrative Agent and the Required Lenders; and
WHERAS, the Borrowers wish to amend certain provisions of the Credit Agreement on the terms set forth
herein, and the Administrative Agent and the Lenders constituting the Required Lenders under the Credit Agreement agree, pursuant to Section 10.02(b) of the
Credit Agreement, to such amendments and to the waiver set forth herein.
NOW, THEREFORE, in consideration of the premises 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. Amendment to Section 1.01. Section 1.01 of the Credit Agreement is
hereby amended by:
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deleting the following entities from the definition of “Unrestricted Subsidiary”: Tronox Sands LLP, Tronox Sands UK Holdings Limited, Tronox Sands Investment
Funding Limited and Tronox UK Finance Limited;
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| (b) |
adding the words “(other than, for purposes of Section 6.04, the Intercompany Loans)” after the words “any Indebtedness” in the definition of “Subordinated
Indebtedness”;
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| (c) |
adding the words “, and Tronox Sands LLP, Tronox Sands UK Holdings Limited, Tronox Sands Investment Funding Limited and Tronox UK Finance Limited shall
constitute Restricted Subsidiaries” to the end of the definition of “Restricted Subsidiary”; and
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| (d) |
inserting the new defined term in the proper alphabetical order:
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“Intercompany Loans”
means (a) that certain Intercompany Loan, dated as of June 2012, between Tronox UK Finance Limited, as the lender, and Tronox Mineral Sands (Pty) Ltd., as the borrower, in the approximate principal amount of ZAR 5,080 million, and (b) that certain
Intercompany Loan, dated as of June 2012, between Tronox UK Finance Limited, as the lender, and Tronox KZN Sands (Pty) Ltd., as the borrower, in the approximate principal amount of ZAR 777 million.
Section 2. Amendment to Schedule 6.01(i). Schedule 6.01(i) to the Credit Agreement is hereby amended, with effect as of the Closing Date, by adding new items 14 and 15 below immediately after paragraph 13 on such schedule:
“14. Intercompany Loan, dated as of June 2012, between Tronox UK Finance Limited,
as the lender, and Tronox Mineral Sands (Pty) Ltd., as the borrower, in the approximate principal amount of ZAR 5,080 million.
15. Intercompany Loan, dated as of June 2012, between Tronox UK Finance Limited,
as the lender, and Tronox KZN Sands (Pty) Ltd., as the borrower, in the approximate principal amount of ZAR 777 million.”
Section 3. Limited Waiver. Subject to the conditions set forth below, and in
reliance on the representations, warranties, covenants and other agreements contained herein, the Required Lenders hereby waive, with effect as of the Closing Date, any Event of Default that may have occurred and be continuing as a result of or in
relation to the Borrowers’ omission on Schedule 6.01(i) to the Credit Agreement as of the Closing Date to include the Intercompany Loans (as defined in the Credit Agreement).
Section 4. Representations and Warranties, No Default. Each Loan Party hereby
represents and warrants that as of the Amendment No. 1 Effective Date and after giving effect to the amendments set forth in this Amendment, (i) this Amendment has been duly authorized, executed and delivered by such Loan Party and constitutes,
when executed and delivered by such Loan Party, a legal, valid and binding obligation of such Loan Party, enforceable against it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability, (ii) such Loan Party has the requisite power and authority to execute, deliver and perform its obligations under this Amendment and each
other agreement or instrument contemplated hereby to which it is a party, and (iii) no Default or Event of Default exists and is continuing.
Section 5. Effectiveness. This Amendment shall become effective on the date
(such date, the “Amendment No. 1 Effective Date”) that the following conditions have been waived or satisfied:
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The Administrative Agent shall have received executed signature pages hereto from the Borrowers, the other Loan Parties, the Administrative Agent and the
Lenders constituting the Required Lenders;
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| (b) |
The Administrative Agent shall have received a true and complete copy of Amendment No. 1 to First Lien Term Loan Credit Agreement dated and in full force and
effect on or about the date of this Amendment; and
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| (c) |
The representations and warranties set forth in Section 4 of this Amendment shall be true and correct on and as of the Amendment No. 1 Effective Date.
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Section 6. Post-Amendment No. 1 Effective Date Covenant. On or prior to the
date that is 90 days after the Amendment No. 1 Effective Date (unless otherwise extended by the Administrative Agent in its sole discretion), if the Intercompany Loans have not otherwise been repaid in full, the Administrative Agent shall have
received a true and complete copy of (a) Debtor Accession Deeds executed by Tronox Mineral Sands (Proprietary) Ltd, Tronox KZN Sands Pty Ltd (each as Acceding Debtors) and the Collateral Agent, and (b) a Creditor Accession Undertaking executed by
Tronox UK Finance Limited (as Acceding Intra-Group Lender) and the Collateral Agent, in each case under the Intercompany Intercreditor Agreement (as referenced in Paragraph 4 of Schedule 5.14 to the Credit Agreement as of the Closing Date).
Section 7. Counterparts. This Amendment may be executed in counterparts (and
by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment
by facsimile or other electronic means shall be effective as delivery of an original counterpart of this Amendment.
Section 8. Governing Law; Waiver of Jury Trial, Etc..
THE PROVISIONS OF SECTIONS 10.09 AND 10.10 OF THE CREDIT AGREEMENT SHALL APPLY TO
THIS AMENDMENT MUTATIS MUTANDIS.
Section 9. Headings. Section headings used herein are for convenience of
reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.
Section 10. Effect of Amendment. The waiver expressly included in Section 3 is a limited waiver and shall not be deemed or otherwise construed to constitute a waiver of any other Default or Event of Default or a consent to any
other future breach of the Credit Agreement or any of the other Loan Documents. The Lenders hereby reserve their rights under the Loan Documents and applicable law in respect of such other Defaults or Events of Default and other future breaches.
Except as expressly set forth herein, this Amendment (i) shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent or any other Agent, in each
case under the Credit Agreement or any other Loan Document, and (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of
either such agreement or any other Loan Document or be construed as a novation thereof. Each and every term, condition, obligation, covenant and agreement contained in the Credit Agreement as amended hereby, or any other Loan Document as amended
hereby, is hereby ratified and re-affirmed in all respects and shall continue in full force and effect. This Amendment shall constitute a Loan Document for purposes of the Credit Agreement and from and after the Amendment No. 1 Effective Date, all
references to the Credit Agreement in any Loan Document and all references in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, shall, unless expressly provided otherwise,
refer to the Credit Agreement as amended by this Amendment.
Section 11. Acknowledgement and Affirmation. Each Loan Party party hereto
expressly acknowledges that (a) all of its obligations under the Security Documents and the other Loan Documents to which it is a party are hereby reaffirmed and remain in full force and effect on a continuous basis and (ii) its grant of security
interests pursuant to the Security Documents is hereby reaffirmed and remains in full force and effect after giving effect to this Amendment.
Section 12. No Novation. By its execution of this Amendment, each of the
parties hereto acknowledges and agrees that the terms of this Amendment do not constitute a novation of, but rather a supplement to, the terms of the pre-existing indebtedness and related agreements as evidenced by the Credit Agreement.
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the day and year first above written.
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U.S.
BORROWERS:
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TRONOX INCORPORATED
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TRONOX LLC
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TRONOX PIGMENTS LLC
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TRONOX FINANCE LLC
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By:
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/s/ Xxxxxxx Xxxxxxx
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Name:
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Xxxxxxx Xxxxxxx
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Title:
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Vice President and Chief Financial Officer
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TRONOX US HOLDINGS INC.
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By:
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/s/ Xxxxxxx Xxxxxxx
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Name:
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Xxxxxxx Xxxxxxx
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Title:
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Chief Financial Officer
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[Signature Page to Amendment No. 1 and Waiver to Revolving Syndicated Facility Agreement]
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SIGNED,
SEALED and DELIVERED by
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)
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Xxxxxx X.
Xxxxxxxx
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)
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as attorney
for
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)
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TRONOX PIGMENTS
PTY LIMITED
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)
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(ACN 052 533
829)
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)
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under power
of attorney dated 22 February, 2019
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)
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)
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in the
presence of:
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)
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)
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/s/ Xxxxx X.
Xxxxxxxxxxxxxx
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)
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Signature of
witness
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)
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)
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Xxxxx X.
Xxxxxxxxxxxxxx
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Name of
witness (block letters)
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/s/ Xxxxxx X. Xxxxxxxx
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By executing this agreement the attorney states that the attorney has received no notice of revocation of the power
of attorney
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[Signature Page to Amendment No. 1 and Waiver to Revolving Syndicated Facility Agreement]
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AUSTRALIAN
BORROWERS
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)
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)
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SIGNED, SEALED
and DELIVERED by
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)
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Xxxxxx X. Xxxxxxxx
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)
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as attorney for
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)
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TRONOX AUSTRALIA HOLDINGS PTY
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)
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LIMITED (ACN 155 254 274)
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)
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TRONOX AUSTRALIA PIGMENTS HOLDINGS PTY LIMITED
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)
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TRONOX GLOBAL HOLDINGS PTY LIMITED
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)
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(ACN 154 691 826)
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)
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TRONOX LIMITED (ACN 153 348 111)
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)
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TRONOX PIGMENTS AUSTRALIA HOLDINGS
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)
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PTY LIMITED (ACN 155 235 304)
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TRONOX PIGMENTS AUSTRALIA PTY LIMITED
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(ACN 155 254 336)
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TRONOX SANDS HOLDINGS PTY LIMITED
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(ACN 154 709 332)
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TRONOX HOLDINGS (AUSTRALIA) PTY LTD
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(ACN 071 040 750)
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TRONOX AUSTRALIA PTY LTD
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(ACN 009 084 851)
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TIO2 CORPORATION PTY LTD
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(ACN 009 124 181)
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YALGOO MINERALS PTY. LTD.
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(ACN 008 948 383)
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TIFIC PTY. LTD. (ACN 009 123 451)
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TRONOX MINERAL SALES PTY LTD
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/s/ Xxxxxx X. Xxxxxxxx
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(ACN 009 344 094)
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By executing this agreement the attorney states that the attorney has received no notice of revocation of the power
of attorney
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TRONOX MANAGEMENT PTY LTD
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(ACN 009 343 364)
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TRONOX WESTERN AUSTRALIA PTY LTD
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(ACN 009 331 195)
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TRONOX WORLDWIDE PTY LIMITED
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(ACN 158 561 061)
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under power of attorney dated 15 September, 2017
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in the presence of:
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/s/ Xxxxx X. Xxxxxxxxxxxxxx
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Signature of witness
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Xxxxx X. Xxxxxxxxxxxxxx
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Name of witness (block letters)
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[Signature Page to Amendment No. 1 and Waiver to Revolving Syndicated Facility Agreement]
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GUARANTORS:
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TRONOX INTERNATIONAL FINANCE LLP
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx X. Xxxx
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Title:
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Representative Board Member of Tronox Limited
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TRONOX UK LIMITED
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx X. Xxxx
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Title:
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Director
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TRONOX UK HOLDINGS LIMITED
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx X. Xxxx
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Title:
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Director
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TRONOX FINANCE PLC
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx X. Xxxx
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Title:
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Director
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TRONOX INTERNATIONAL HOLDINGS GMBH
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx X. Xxxx
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Title:
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Chairman of the Management Board
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[Signature Page to Amendment No. 1 and Waiver to Revolving Syndicated Facility Agreement]
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx X. Xxxx
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Title:
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Director A
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By:
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/s/ Xxxxxxx Xxxxxx Xxxxxx
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Name:
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Xxxxxxx Xxxxxx Xxxxxx
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Title:
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Director B
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TRONOX WORLDWIDE PTY LIMITED, acting as Managing Partner of TRONOX HOLDINGS EUROPE C.V.
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx X. Xxxx
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Title:
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Director
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TRONOX PIGMENTS (NETHERLANDS) B.V.
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx X. Xxxx
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Title:
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Director
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TRONOX PIGMENTS (HOLLAND) B.V.
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx X. Xxxx
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Title:
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Director
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[Signature Page to Amendment No. 1 and Waiver to Revolving Syndicated Facility Agreement]
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as Lender
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By:
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/s/ Xxxxxx Xxxx
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Name:
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Xxxxxx Xxxx
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Title:
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Authorized Signatory
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By:
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/s/ Xxxxx Xxxxxxx
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Name:
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Xxxxx Xxxxxxx
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Title:
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Authorized Signatory
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[Signature Page to Amendment No. 1 and Waiver to Revolving Syndicated Facility Agreement]
CITIBANK, N.A.,
as Lender
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By:
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/s/Xxxxxxxx Xxxx
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Name:
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Xxxxxxxx Xxxx
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Title:
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Vice President and Director
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[Signature Page to Amendment No. 1 and Waiver to Revolving Syndicated Facility Agreement]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Lender, Administrative Agent and Collateral Agent
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By:
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/s/ Xxxxx Xxxxxxxxx
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Name:
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Xxxxx Xxxxxxxxx
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Title:
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Vice President
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[Signature Page to Amendment No. 1 and Waiver to Revolving Syndicated Facility Agreement]
Bank of America, N.A.,
as Lender
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By:
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/s/ Xxxxxxx X. Xxxxxxxx
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Name:
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Xxxxxxx X. Xxxxxxxx | |
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Title:
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Sr. Vice President | |
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[Signature Page to Amendment No. 1 and Waiver to Revolving Syndicated Facility Agreement]
BARCLAYS BANK PLC,
as Lender
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By:
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/s/ Xxxxx Xxxxxxxxx
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Name:
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Xxxxx Xxxxxxxxx
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Title:
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Assistant Vice President
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[Signature Page to Amendment No. 1 and Waiver to Revolving Syndicated Facility Agreement]
ROYAL BANK OF CANADA,
as Lender
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By:
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/s/ Xxxxx Xxxxxx
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Name:
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Xxxxx Xxxxxx
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Title:
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Authorized Signatory
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[Signature Page to Amendment No. 1 and Waiver to Revolving Syndicated Facility Agreement]
