SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit
99.1
SECOND
AMENDMENT TO CREDIT AGREEMENT
SECOND
AMENDMENT TO CREDIT AGREEMENT dated as of May 29, 2007 (this “Second
Amendment”),
among
CALGON CARBON CORPORATION, a corporation organized under the laws of the State
of Delaware (the “Company”),
CALGON CARBON INVESTMENTS INC., a corporation organized under the laws of the
State of Delaware (“Calgon
Investments”),
CHEMVIRON CARBON LIMITED, a private company limited by shares organized under
the laws of England and Wales with company number 02208285 (“Chemviron”),
WATERLINK (UK) HOLDINGS LIMITED, a private company limited by shares organized
under the laws of England and Wales with company number 03181974 (“Waterlink”),
SUTCLIFFE XXXXXXXX LIMITED, a private company limited by shares organized under
the laws of England and Wales with company number 029081113 (“Sutcliffe”),
LAKELAND PROCESSING LIMITED, a private company limited by shares organized
under
the laws of England and Wales with company number 02926645 (“Lakeland”),
CHARCOAL CLOTH (INTERNATIONAL) LIMITED, a private company limited by shares
organized under the laws of England and Wales with company number 02743909
(“Charcoal
International”),
BSC
COLUMBUS, LLC, a limited liability company organized under the laws of the
State
of Delaware (“BSC”),
and
CCC COLUMBUS LLC, a limited liability company organized under the laws of the
State of Delaware (“Columbus”),
the
Lenders party hereto, X.X. XXXXXX EUROPE LIMITED, as the European Administrative
Agent, JPMORGAN CHASE BANK, N.A., as the US Administrative Agent, and X.X.
XXXXXX SECURITIES, INC., as Sole Bookrunner and Sole Lead Arranger.
WHEREAS,
the Loan Parties are party to a Credit Agreement dated as of August 18, 2006,
as
amended, with the Lenders party thereto (the “Lenders”)
and
the Administrative Agents party thereto (as amended and modified by this Second
Amendment and as the same may be further amended, modified, supplemented or
restated from time to time, the “Credit
Agreement”);
and
WHEREAS,
the Loan Parties, the Administrative Agents and the Lenders have agreed to
amend
and waive certain provisions of the Credit Agreement, all as more fully set
forth below.
NOW,
THEREFORE, in consideration of the foregoing and the agreements contained
herein, the parties hereby agree as follows:
1. Capitalized
Terms.
Capitalized
terms used herein which are defined in the Existing Credit Agreement have the
same meanings herein as therein, except to the extent that such meanings are
amended hereby.
2. Amendments
to Credit Agreement.
Subject
to the terms and conditions set forth herein and in reliance on the
representations set forth in Section 4 hereof, the Loan Parties, the Lenders
and
the Administrative Agents agree that the Credit Agreement be, and it is hereby
is, amended, as follows:
(a) Section
2.05(c) is hereby amended by adding the following at the end of the first
sentence of such section:
“;
provided
that
notwithstanding the foregoing, the US Borrowing Representative, the UK Borrowing
Representative and the Belgian Borrowing Representative may request the issuance
of standby Letters of Credit having expiration dates that are more than one
year
but not more than three (3) years after the date of issuance thereof (such
standby Letters of Credit being referred to herein as “Extended
Expiry Standby Letters of Credit”)
provided
that (a)
the aggregate LC Exposure with respect to all Extended Expiry Standby Letters
of
Credit shall not exceed $3,000,000 and (b) notwithstanding the provisions of
Section 2.05(j), (k) and (l), upon the earlier of (x) the date that is thirty
(30) Business Days prior to the Maturity Date or (y) the occurrence and
during the continuance of an Event of Default, the Company shall deposit cash
collateral (A) into the US LC Collateral Account in an amount equal to 115%
of
the aggregate US LC Exposure as of such date with respect to all outstanding
Extended Expiry Standby Letters of Credit, (B) into the UK LC Collateral Account
in an amount equal to 115% of the UK LC Exposure as of such date with respect
to
all outstanding Extended Expiry Standby Letters of Credit and (C) into the
Belgian LC Collateral Account in an amount equal to 115% of the Belgian LC
Exposure as of such date with respect to all outstanding Extended Expiry Standby
Letters of Credit.”
(b) Section
6.08(a)(iii) is amended by deleting clause (C) in its entirety and replacing
such clause with the following new clause (C):
“(C) in
connection with (I) the repurchase, redemption, retirement or other acquisition
of outstanding shares
of its
common stock or (II) the conversion of Convertible Notes solely
as
a result of the satisfaction of the conditions under clause (i) or clause (ii)
of Section 12.01 of the Convertible Note Indenture permitting conversion of
the
Convertible Notes, provided
that the
aggregate
amount of cash paid after the Effective Date in the case of subclauses (I)
and
(II) of this clause (C) shall not exceed $10,000,000;”
(c) Section
6.08(b) is amended by deleting the word “and” at the end of clause (iii) and
adding the word “and” and the following new clause (v) after clause
(iv):
“(v) cash
payments in respect of the conversion of Convertible Notes solely
as
a result of the satisfaction of the conditions under clause (i) or clause (ii)
of Section 12.01 of the Convertible Note Indenture permitting conversion of
the Convertible Notes to the extent permitted to be paid under Section
6.08(a)(iii)(C) of this Agreement.”
(d) Section
7.01 is amended by deleting clauses (g) and (u) of Section 7.01 in their
entirety and replacing such clauses with the following new clauses (g) and
(u):
“(g) any
event
of condition occurs that results in any Material Indebtedness becoming due
prior
to its scheduled maturity or that enables or permits (with or without the giving
of notice, the lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided
that (i)
this clause (g) shall not apply to secured Indebtedness that becomes due as
a
result of the voluntary sale or transfer of the property or assets securing
such
Indebtedness, and (ii) an “Event of Default” shall not be deemed to have
occurred under this clause (g) solely as a result of the satisfaction of the
conditions under clause (i) or clause (ii) of Section 12.01 of the Convertible
Note Indenture permitting conversion of the Convertible Notes unless any holder
or holders of Convertible Notes shall have exercised the right to cause any
Convertible Notes to be converted into cash and common stock of the Company
in
accordance with the terms of the Convertible Note Indenture with cash payments
in excess of the amount permitted to be paid under Section 6.08(a)(iii)(C)
of
this Agreement;”
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“(u) the
occurrence of (i) any “Fundamental Change” (as such term is defined in the
Convertible Note Indenture) or (ii) the occurrence of any other event which
permits the holders of the Convertible Notes to require the Company to redeem
any of the Convertible Notes; provided
that an
“Event of Default” shall not be deemed to have occurred under this subclause
(ii) of this clause (u) solely as a result of the satisfaction of the conditions
under clause (i) or clause (ii) of Section 12.01 of the Convertible Note
Indenture permitting conversion of the Convertible Notes unless any holder
or
holders of Convertible Notes shall have exercised the right to cause any
Convertible Notes to be converted into cash and common stock of the Company
in
accordance with the terms of the Convertible Note Indenture with cash payments
in excess of the amount permitted to be paid under Section 6.08(a)(iii)(C)
of
this Agreement;”
3. Waivers.
Pursuant
to Sections 5.01(b), 5.01(c) and 5.01(d) of the Credit Agreement, the Company
was required to furnish to the Administrative Agent and each Lender monthly
financial statements for the months of March and April 2007, quarterly financial
statements for the quarter ended March 31, 2007, and a Compliance Certificate
with respect to the period ended March 31, 2007. As of the date of this Second
Amendment, the Company has failed to deliver such financial statements and
Compliance Certificate, and such failures constitute Events of Default under
Section 7.01 of the Credit Agreement. Effective upon the satisfaction of the
conditions set forth in Section 5 below, by their execution of this Second
Amendment below, the Administrative Agent and the Required Lenders hereby waive
such Events of Default provided that the Company delivers such monthly and
quarterly financial certificates and such Compliance Certificate to the
Administrative Agent and each Lender on or prior to
June 8, 2007.
4. No
Default; Representations and Warranties, etc.
Each
of
the Loan Parties represents and warrants to the Lenders and the Administrative
Agents that as of the date hereof and after giving effect to the amendments
set
forth herein (a) the representations of the Loan Parties contained in Article
III of the Credit Agreement are true and correct in all material respects as
of
the date hereof as if made on such date (except to extent that such
representations and warranties expressly relate to an earlier date, in which
case they shall be true and correct in all material respects as of such date);
(b) the Loan Parties are in compliance in all material respects with all of
the
terms and provisions set forth in the Credit Agreement and the other Loan
Documents to be observed or performed by them thereunder; (c) no Default shall
have occurred and be continuing; and (d) the execution, delivery and performance
by the Loan Parties of this Second Amendment (i) have been duly authorized
by
all necessary corporate and, if required, shareholder action on the part of
the
Loan Parties, (ii) will not violate any applicable material law or regulation
or
the organizational documents of any Loan Party, (iii) will not violate or result
in a default under any material indenture, agreement or other instrument binding
on any Loan Party or any of its assets and (iv) do not require any consent,
waiver or approval of or by any Person (other than the Administrative Agents
and
the Lenders) which has not been obtained.
5. Effective
Date.
Upon
receipt by the Administrative
Agents from each party hereto of either (i) a counterpart of this Second
Amendment signed on behalf of such party or (ii) written evidence reasonably
satisfactory to the Administrative Agents (which may include telecopy
transmission of an executed signature page to this Second Amendment) that such
party has signed a counterpart of this Second Amendment, the amendments and
waivers set forth in this Second Amendment shall be deemed to be effective
as of
the date of this Second Amendment, except that the amendments sets forth in
Sections 2(b), 2(c) and 2(d) of this Second Amendment shall be deemed to be
effective as of August 18, 2006, the original Effective Date of the Credit
Agreement.
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6. Confirmation
of Guarantee and Collateral Documents.
Each
Loan Guarantor hereby confirms that the obligations of the Borrowers under
the
Credit Agreement shall be entitled to the benefits of the guarantee set forth
in
Article X of the Credit Agreement, and each Loan Party hereby confirms that
the
Obligations under the Credit Agreement, and in respect of its guarantee under
Article X of the Credit Agreement (in the case of the Loan Guarantors), shall
be
entitled to the benefits of the collateral security provided by the Collateral
Documents.
Each
Affiliate or Subsidiary of any Loan Party that is a party to any Other
Collateral Documents hereby confirms that the Obligations under the Credit
Agreement shall be entitled to the benefits of the collateral security provided
by the Other Collateral Documents.
7. Miscellaneous.
(a) The
Loan
Parties, the Lenders and the Administrative Agents hereby ratify and confirm
the
terms and provisions of the Credit Agreement and the other Loan Documents and
agree that, except to the extent specifically amended hereby, the Credit
Agreement, the other Loan Documents and all related documents shall remain
in
full force and effect. Nothing contained herein shall constitute a n amendment
or waiver of any provision of the Loan Documents, except such waivers and
amendments as are expressly set forth herein.
(b) The
Loan
Parties jointly and severally agree to pay all reasonable out-of-pocket costs
and expenses incurred by JPMorgan Chase Bank, N.A. and its respective Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Agent), in connection with the preparation of this Second
Amendment.
(c) This
Second Amendment may be executed in any number of counterparts (including by
way
of facsimile transmission), each of which, when executed and delivered, shall
be
an original, but all counterparts shall together constitute one
instrument.
(d) This
Second Amendment shall be governed by the laws of the State of New York and
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
[Signature
Pages Follow]
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IN
WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be
duly
executed by their respective authorized officers as of the day and year first
above written.
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BORROWERS:
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By:
/s/ Xxxxx X.
Xxxx
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Name:
Xxxxx X. Xxxx
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Title:
Senior Vice President
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CALGON
CARBON INVESTMENTS, INC.
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By:
/s/ Xxxxx X.
Xxxx
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Name:
Xxxxx X. Xxxx
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Title:
Senior Vice President
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BSC
COLUMBUS, LLC
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By:
/s/ Xxxxx X.
Xxxx
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Name:
Xxxxx X. Xxxx
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Title:
Senior Vice President
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CCC
COLUMBUS, LLC
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By:
/s/ Xxxxx X.
Xxxx
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Name:
Xxxxx X. Xxxx
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Title:
Senior Vice President
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EXECUTED
AND DELIVERED as a Deed by
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CHEMVIRON
CARBON LIMITED acting by:
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Director:
/s/
C.H.S. (Kees)
Majoor
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Director/secretary:
/s/ Xxxxx X.
Xxxx
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EXECUTED
AND DELIVERED as a Deed by WATERLINK (UK) HOLDINGS LIMITED acting
by:
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Director:
/s/
C.H.S. (Kees)
Majoor
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Director/secretary:
/s/ Xxxxx X.
Xxxx
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EXECUTED
AND DELIVERED as a Deed by
SUTCLIFFE
XXXXXXXX LIMITED acting by:
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Director:
/s/
C.H.S. (Kees)
Majoor
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Director/secretary:
/s/ Xxxxx X.
Xxxx
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EXECUTED
AND DELIVERED as a Deed
by
LAKELAND
PROCESSING LIMITED acting by:
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Director:
/s/
C.H.S. (Kees)
Majoor
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Director/secretary:
/s/ Xxxxx X.
Xxxx
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EXECUTED
AND DELIVERED as a Deed by
CHARCOAL
CLOTH (INTERNATIONAL)
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LIMITED
acting by:
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Director:
/s/
C.H.S. (Kees)
Majoor
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Director/secretary:
/s/ Xxxxx X.
Xxxx
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ADMINISTRATIVE
AGENTS AND LENDERS:
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JPMORGAN
CHASE BANK, N.A., as
US Administrative
Agent and as a Lender
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By:
/s/
Xxxxx
XxXxxxx
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Name:
Xxxxx XxXxxxx
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Title:
Vice President
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X.X.
XXXXXX EUROPE LIMITED, as European Administrative
Agent
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By:
/s/
Xxx
Xxxxx
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Name:
Xxx Xxxxx
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Title:
Senior Vice President
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CITIZENS
BANK OF PENNSYLVANIA,
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as a Lender
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By:
/s/
Xxxx X.
Xxxxxxx
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Name:
Xxxx X. Xxxxxxx
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Title:
Vice Pr esident
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