AMENDED AND RESTATED CREDIT AGREEMENT
Ex.
10.1
AMENDMENT
NO. 1 TO THE
AMENDED
AND RESTATED CREDIT AGREEMENT
Dated as
of July 27, 2010
AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED CREDIT AGREEMENT (this “Amendment”) among
Chemtura Corporation, a Delaware corporation (the “Borrower”), the
guarantors party thereto (the “Guarantors”), the
banks, financial institutions and other institutional lenders party to the
Credit Agreement referred to below (collectively, the “Lenders”) and
Citibank, N.A., as administrative agent (the “Administrative
Agent”) for the Lenders.
PRELIMINARY
STATEMENTS:
(1) The
Borrower, the Guarantors, the Lenders and the Administrative Agent have entered
into the Amended and Restated Senior Secured Superpriority Debtor-in-Possession
Credit Agreement dated as of February 3, 2010 (as heretofore amended or
otherwise modified, the “Credit
Agreement”). Capitalized terms not otherwise defined in this
Amendment have the same meanings as specified in the Credit
Agreement.
(2) The
Borrower has requested that the Lenders amend certain provisions of the Credit
Agreement. The Lenders party hereto are, on the terms and conditions
stated below, willing to grant the request of the Borrower.
SECTION
1. Amendments to the Credit
Agreement. The
Credit Agreement is, effective as of the date hereof and subject to the
satisfaction of the applicable conditions precedent set forth in Section 2
of this Amendment, hereby amended as follows:
(a) Section
1.01 of the Credit Agreement is hereby further amended by inserting the
following new definitions in the appropriate alphabetical position:
“Canadian Debtor”
means Chemtura Canada Co./Cie, a company organized under the laws of Ontario,
Canada.
“CFH” means Crompton
Financial Holdings.
“Conyers Fire
Settlement” means the settlement of certain claims against Bio-Lab, Inc.
(“BioLab”) and
GLCC relating to a fire that occurred at BioLab’s Plant 14 finished goods
warehouse in Conyers, Georgia on May 25 and May 26, 2004, pursuant to which
settlement such claims against the Borrower and its Subsidiaries will be
dismissed and released in consideration of BioLab and GLCC establishing, in an
escrow account with Citibank or another escrow agent mutually agreed upon by the
parties, a $7,000,000 settlement fund for the payment of such claims in
accordance with a settlement agreement that is approved by the Bankruptcy
Court.
“GLCC” has the meaning
specified in the definition of “PMC Settlement”.
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“PMC Settlement” means
the settlement of certain claims relating to the asset purchase agreement (the
“PMC APA”)
entered into by the Borrower and PMC Biogenix, Inc. (“PMC”) prior to the
Petition Date, pursuant to which the Borrower sold its oleochemicals business
and certain related assets to PMC, pursuant to which settlement (i) the
value of a subordinated unsecured promissory note in the original principal
amount of $10,000,000 owed by PMC to the Borrower shall be fixed (the “PMC Note Value”);
(ii) the amount of PMC’s claim for amounts due and owing by Great Lakes
Chemical Corporation (“GLCC”) to PMC in
connection with certain products sold and delivered on various dates prior to
the Petition Date by PMC to GLCC (the “GLCC Trade
Receivables”) shall be fixed at $7,782; (iii) the amount of PMC’s
claim for amounts due and owing by the Borrower to PMC in connection with
certain products sold and delivered on various dates prior to the Petition Date
by PMC to the Borrower (the “Chemtura Trade
Receivables”) shall be fixed; (iv) the amount of the Borrower’s
claims for amounts due and owing by PMC to the Borrower in connection with the
parties’ ongoing business relationship (the “Chemtura Trade
Payables”) shall be fixed; (v) PMC’s claims against the Borrower
specified in the proof of claim (No. 392) filed in the Cases on account of
alleged breaches of representations and warranties under the PMC APA, for
rejection of the PMC APA and for prepetition and postpetition interest allegedly
arising from the PMC APA shall be deemed an allowed unsecured claim in the
amount of $5,500,000 (the “Initial PMC Allowed Chemtura
Claim”); (vi) the PMC APA shall be deemed rejected under and
pursuant to section 365(a) of the Bankruptcy Code; (vii) the amount of the
Initial PMC Allowed Chemtura Claim shall be set off against the PMC Note Value,
resulting in a net obligation of PMC to the Borrower of $3,209,810 for which PMC
shall issue a new subordinated unsecured promissory note in like principal
amount; (viii) the amount of the GLCC Trade Receivables shall be allowed as
a general unsecured claim against GLCC; (ix) the amount of the Chemtura
Trade Receivables shall be set off against the amount of the Chemtura Trade
Payables, resulting in net obligation of the Borrower to PMC of $70,777.26, to
be allowed against the Borrower as an administrative expense priority claim;
(x) the subordinated secured promissory note in the original principal
amount of $5,000,000 owed by PMC to the Borrower as of the Petition Date shall
remain in full force and effect; and (xi) PMC and the Borrower shall
execute a mutual release.
“Xxxxxxxxx Sale” means
the sale of all or substantially all of the assets of the businesses of the
Borrower and its Subsidiaries known as the “global natural sodium sulfonates
business” and the “oxidized petroleum jelly business” (collectively, the “Sulfonates
Business”), to Xxxxxxxxx Holding, LLC or one or more of its subsidiaries
or affiliates (“Xxxxxxxxx”) on
substantially the terms set forth in the Asset Purchase Agreement dated as of
June 29, 2010 by and between Xxxxxxxxx, the Borrower and Chemtura Netherlands
B.V. as attached to the motion (as may be amended, supplemented, and modified
from time to time) filed in the Bankruptcy Court on June 30, 2010, for
consideration of (i) approximately $5 million in cash, subject to
adjustment in accordance with the terms of the purchase agreement relating to
the Xxxxxxxxx Sale, (ii) assumption by Xxxxxxxxx of substantially all
obligations arising from or related to the Sulfonates Business (except that
Xxxxxxxxx shall not in any event assume or be liable for indebtedness for
borrowed money, actual or threatened claims by third parties (other than
warranty claims), or environmental liabilities (other than environmental
liabilities relating to the remediation of or violations of environmental law at
certain facilities specified in the purchase agreement relating to the Xxxxxxxxx
Sale)), and (iii) a mutual release by Xxxxxxxxx and the Borrower on the
terms set forth in the purchase agreement relating to the Xxxxxxxxx
Sale.
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(b) Section
1.01 of the Credit Agreement is hereby further amended by deleting the reference
to “or (xviii)” in the definition of “Net Cash Proceeds” and substituting
therefor “, (xviii), (xix) or (xx)”.
(c) Section
2.06(b)(i) is hereby amended by deleting “and” immediately prior to clause (D)
therein and adding immediately prior to the “.” at the end of such clause (D)
the following:
“ and (E)
in the case of Extraordinary Receipts Proceeds on account of the claims subject
to the Conyers Fire Settlement, no such Extraordinary Receipts Proceeds shall be
required to be applied to any prepayment hereunder to the extent that such
Extraordinary Receipts Proceeds shall be used to pay or reimburse the Loan
Parties and their Subsidiaries for funding the settlement fund described in the
definition of “Conyers Fire Settlement” and/or for legal fees and expenses
incurred in connection therewith”.
(d) Section
5.01(m) of the Credit Agreement is hereby amended to add immediately prior to
the “.” at the end thereof the following proviso:
“; and
provided further, that
notwithstanding anything in the Loan Documents to the contrary, Canadian Debtor
shall not be required to become a Guarantor or provide or maintain a Lien on any
of its assets as security for any of the Obligations”.
(e) Section
5.02(g) of the Credit Agreement is hereby amended by deleting the “and”
immediately preceding clause (xvi) thereof, and adding immediately prior to the
“.” at the end of such Section the following new
clause (xvii):
“; and
(xvii) Investments by any Loan Party to Canadian Debtor consisting of
intercompany advances not to exceed $30,000,000 in the aggregate at any time
outstanding, provided that a portion of such advances shall be applied to repay
in full the intercompany obligations owed by Canadian Debtor to
CFH”.
(f) Section
5.02(h) of the Credit Agreement is hereby amended by deleting the “and”
immediately preceding clause (xviii) thereof, and adding immediately prior to
the “.” at the end of such Section the following new clauses (xix), (xx)
and (xxi):
“; (xix)
sales or dispositions pursuant to the Xxxxxxxxx Sale, so long as the same is
approved by an order of the Bankruptcy Court that is not stayed, reversed or
vacated at the time of such sale or disposition; (xx) dispositions pursuant
to the PMC Settlement, so long as the same is approved by an order of the
Bankruptcy Court that is not stayed, reversed or vacated at the time of such
disposition; and (xxi) dispositions pursuant to the Conyers Fire Settlement, so
long as the same is approved by an order of the Bankruptcy Court that is not
stayed, reversed or vacated at the time of such disposition”.
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(g) Clause (u)
of the proviso to Section 5.02(j) of the Credit Agreement is hereby amended in
full to read as follows:
“(u) the
Borrower may make any payment or prepayment or redemption or acquisition for
value or any cancellation or other retirement of Pre-Petition Debt or other
pre-Petition Date obligations of the Borrower or any Guarantor not to exceed in
the aggregate $10,000,000, and the Canadian Debtor may pay intercompany
obligations owed by it to CFH, to the extent permitted under
Section 5.02(g)(xvii),”.
(h) Clause (v)
of the proviso to Section 5.02(j) of the Credit Agreement is hereby amended in
full to read as follows:
“(v)
nothing in this Section 5.02(j) shall be construed to prohibit (1) the
Borrower from paying antitrust fines and related obligations in an aggregate
amount not to exceed the amount of “Anti Trust Payments” set forth in the DIP
Budget (as defined in the Existing DIP Agreement) delivered prior to June 24,
2009, (2) the issuance of any Letter of Credit to support any Pre-Petition Debt
or other pre-Petition Date obligations of the Borrower or any Guarantor (and the
drawing or reimbursement of any such Letter of Credit), to the extent the
issuance of such Letter of Credit is otherwise permitted under this Agreement,
(3) the Lyondell Property Purchase, (4) the Xxxxxxxxx Sale, so long as the
same is approved by an order of the Bankruptcy Court that is not stayed,
reversed or vacated at such time, (5) the PMC Settlement, so long as the
same is approved by an order of the Bankruptcy Court that is not stayed,
reversed or vacated at such time, and (6) the Conyers Settlement, so long as the
same is approved by an order of the Bankruptcy Court that is not stayed,
reversed or vacated at such time,”.
(i) Section
6.01(s) of the Credit Agreement is hereby amended by inserting immediately after
the reference to “Cases” the phrase “(other than Canadian Debtor’s
Case)”.
(j) Section
6.01(v) of the Credit Agreement is hereby amended by inserting immediately prior
to the “;” at the end thereof, the following proviso:
“; provided, however, that the
commencement by Canadian Debtor of a Case under chapter 11 of the
Bankruptcy Code and a recognition proceeding in Canada under the Companies’
Creditors Arrangement Act shall not be an Event of Default under this
Section 6.01”.
SECTION
2. Conditions to
Effectiveness.
(a) This
Amendment shall become effective as of the date first above written (the “Effective Date”)
when, and only when (i) the Administrative Agent shall have received
counterparts of this Amendment executed by the Borrower, each Guarantor and the
Lenders or, as to any such Lenders, advice satisfactory to the Administrative
Agent that such Lender has executed this Amendment, (ii) the Borrower shall have
paid to the Administrative Agent, for the account of each Lender that has duly
executed and delivered to the Administrative Agent a counterpart of this
Amendment by no later than 5:00 PM, New York time, July 21, 2010, an amendment
fee equal to 0.05% of the aggregate principal amount of Term Advances held by
each such Lender, (iii) the Borrower shall have paid to CGMI such other fees
related to this Amendment as shall have been previously agreed by the Borrower
and CGMI, (iv) the Bankruptcy Court shall have approved the terms of this
Amendment, including, without limitation, the payment of all fees and expenses
described herein and (v) on the Effective Date, the representations and
warranties set forth in Section 3 shall be true.
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(b) This
Amendment is subject to the provisions of Section 10.01 of the Credit
Agreement.
SECTION
3. Representations and
Warranties. Each Loan Party represents and warrants as
follows:
(a) the
representations and warranties contained in each Loan Document are true and
correct in all material respects (provided that each representation and warranty
that is qualified as to “materiality”, “Material Adverse Effect” or similar
language is true and correct in all respects) on and as of the Effective Date,
immediately before and immediately after giving effect to this Amendment, as
though made on and as of the Effective Date, other than any such representations
or warranties that, by their terms, refer to a specific date, in which case such
representations or warranties were true and correct in all material respects
(provided that each such representation and warranty that is qualified as to
“materiality”, “Material Adverse Effect” or similar language was true and
correct in all respects) as of such specific date; and
(b) on
the Effective Date, immediately before and immediately after giving effect to
this Amendment, no Default has occurred and is continuing.
SECTION
4. Reference to and Effect on
the Credit Agreement and the Loan Documents. (a) On
and after the effectiveness of this Amendment, each reference in the Credit
Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as further amended by this
Amendment.
(b) The
Credit Agreement (including, without limitation, the Guaranty of each Guarantor
set forth therein), the Notes and each of the other Loan Documents, as
specifically amended by this Amendment, are and shall continue to be in full
force and effect and are hereby in all respects ratified and
confirmed.
(c) The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
any Lender or the Administrative Agent under the Credit Agreement or any other
Loan Document, nor constitute a waiver of any provision of the Credit Agreement
or any other Loan Document.
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SECTION
5. Costs and
Expenses. The
Borrower agrees to pay within 10 Business Days of demand all reasonable costs
and expenses of the Administrative Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder in
accordance with the terms of Section 10.04 of the Credit Agreement.
SECTION
6. Execution in
Counterparts. This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute but one and
the same agreement. Delivery of an executed counterpart of a
signature page to this Amendment by telecopier shall be effective as delivery of
a manually executed counterpart of this Amendment.
SECTION
7. Governing
Law. This
Amendment shall be governed by, and construed in accordance with, the laws of
the State of New York.
[Remainder of Page Intentionally Left
Blank]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
| CHEMTURA CORPORATION | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
A
& M CLEANING PRODUCTS, LLC
AQUA
CLEAR INDUSTRIES, LLC
ASCK,
INC.
ASEPSIS,
INC.
BIOLAB
TEXTILE ADDITIVES, LLC
BIO-LAB,
INC.
CNK
CHEMICAL REALTY CORPORATION
CROMPTON
COLORS INCORPORATED
CROMPTON
HOLDING CORPORATION
XXXXXXXX
XXXXXXXX, INC.
GREAT
LAKES CHEMICAL CORPORATION
GREAT
LAKES CHEMICAL GLOBAL, INC.
GT
SEED TREATMENT, INC.
HOMECARE
LABS, INC.
ISCI,
INC.
LAUREL
INDUSTRIES HOLDINGS, INC.
KEM
MANUFACTURING CORPORATION
MONOCHEM,
INC.
NAUGATUCK
TREATMENT COMPANY
RECREATIONAL
WATER PRODUCTS, INC.
UNIROYAL
CHEMICAL COMPANY LIMITED (DELAWARE)
XXXXX
CITY ROAD LLC
WRL
OF INDIANA, INC.
|
|||
| By: | |||
| Name: | |||
| Title: | |||
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|
SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG
CHEMTURA CORPORATION, THE GUARANTORS PARTY THERETO, THE VARIOUS LENDERS
PARTY THERETO AND CITIBANK. N.A., AS ADMINISTRATIVE
AGENT
|
|||
|
BIOLAB
COMPANY STORE, LLC
|
|||
| By: | |||
| Name: | |||
| Title: | |||
|
BIOLAB
FRANCHISE COMPANY, LLC
|
|||
| By: | |||
| Name: | |||
| Title: | |||
| GLCC LAUREL, LLC | |||
| By: | |||
| Name: | |||
| Title: | |||
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|
SIGNATURE
PAGE TO AMENDMENT NO. 1
TO
THE AMENDED AND RESTATED CREDIT
AGREEMENT,
DATED AS OF THE
DATE
FIRST WRITTEN ABOVE,
AMONG
CHEMTURA
CORPORATION,
THE GUARANTORS
PARTY
THERETO, THE VARIOUS
LENDERS
PARTY THERETO AND
CITIBANK.
N.A., AS
ADMINISTRATIVE
AGENT
Accepted
and agreed:
CITIBANK,
N.A.,
as
Administrative Agent and as a Lender
By:
_______________________
Name:
Title:
|
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SIGNATURE
PAGE TO AMENDMENT
NO. 1
TO THE AMENDED AND
RESTATED
CREDIT AGREEMENT,
DATED AS
OF THE DATE FIRST
WRITTEN
ABOVE, AMONG
CHEMTURA
CORPORATION, THE
GUARANTORS
PARTY THERETO, THE
VARIOUS
LENDERS PARTY THERETO
AND
CITIBANK. N.A., AS
ADMINISTRATIVE
AGENT
Accepted
and agreed:
_________________________,
as a
Lender
By:
______________________
Name:
Title:
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