Ex. 4.1 AMENDMENT NO. 1 TO THE SENIOR SECURED TERM FACILITY CREDIT AGREEMENT
Ex. 4.1
AMENDMENT
NO. 1 TO THE
Dated as of September 27,
2010
AMENDMENT NO. 1 TO THE SENIOR SECURED
TERM FACILITY CREDIT AGREEMENT (this “Amendment”) among
Chemtura Corporation, a Delaware corporation (the “Borrower”), the
banks, financial institutions and other institutional lenders party hereto and
Bank of America, N.A., as Administrative Agent (the “Administrative
Agent”) for the Lenders (defined below).
PRELIMINARY
STATEMENTS:
(1) The
Borrower, the banks, financial institutions and other institutional lenders
party thereto (the “Lenders”) and the
Administrative Agent have entered into the Senior Secured Term Facility Credit
Agreement dated as of August 27, 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 amended by inserting the following new
definition in the appropriate alphabetical position:
Chemtura
Term Loan Amendment No. 1
“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 March
18, 2009 (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.
(b) Section
1.01 of the Credit Agreement is hereby amended by deleting, in the definition of
“Excess Cash Flow,” the reference to “Section 2.03” therein and substituting
therefor “Section 2.05(b)”.
(c) Section
1.01 of the Credit Agreement is hereby amended by deleting the reference to “or
(xviii)” in the definition of “Net Cash Proceeds” and substituting therefor “,
(xviii), (xix), (xx) or (xxi)”.
(d) Clause
(i) of Section 5.02(e) of the Credit Agreement is hereby amended by adding
immediately after the reference to “Restricted Payments made on” contained
therein the phrase “or after”.
(e)
Clause (viii) of Section 5.02(e) of the Credit Agreement is hereby amended
in full to read as follows:
“(viii)
the payment of any dividend by a Subsidiary of the Borrower to the holders of
its Equity Interests (on a pro rata basis, subject to any preferential
arrangements in existence at the time of, and not entered into in contemplation
of, such dividend);”.
(f) Clause
(iv)(B) of Section 5.02(g) of the Credit Agreement is hereby amended in full to
read as follows:
“(B)
(other than Guarantee Obligations) by any Non-Loan Party to or in any Loan Party
or”.
(g) Clause
(xiv) of Section 5.02(h) of the Credit Agreement is hereby amended by adding
immediately after the reference to “dispositions of cash” contained therein the
phrase “or property”.
(h) Clause
(xvii)(y) of Section 5.02(h) of the Credit Agreement is hereby amended by adding
after the reference to “the PMC Settlement” contained therein the phrase “, and
dispositions in accordance with the Plan”.
Chemtura
Term Loan Amendment No. 1
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(i) Section
5.02(h) of the Credit Agreement is hereby amended by deleting “and” immediately
prior to clause (xviii) therein and adding immediately prior to the “.” at the
end of such clause (xviii) the following:
“; (xix)
netting by the Borrower or any Subsidiary of intercompany loans, advances and
accounts receivable (and interest receivable on such loans, advances and
receivables) that are held by the Borrower or such Subsidiary, as applicable,
against intercompany loans, advances and accounts payable (and interest payable
with respect to such loans, advances and payables) owed by the Borrower or such
Subsidiary, as applicable, and dispositions thereof to accomplish such netting,
and dispositions of intercompany loans, advances, accounts receivable and
accounts payable (and of interest receivable on, and interest payable with
respect to, such loans, advances, receivables and payables) in accordance with
the Plan and/or the Disclosure Statement; (xx) Restricted Payments made in
accordance with Section 5.02(e); and (xxi) dispositions of cash or Cash
Equivalents in the ordinary course in any transaction otherwise permitted
hereunder”.
(j) Section
5.02(j) of the Credit Agreement is hereby amended by (i) deleting the
reference in clause (w) of the second proviso to “prepaying” and
substituting therefor the phrase “paying, prepaying, redeeming, acquiring,
cancelling or retiring (or netting against intercompany loans, advances and
accounts receivable (and interest receivables on such loans, advances and
receivables))”, (ii) inserting in clause (x) of the second proviso,
immediately prior to the reference to “prepayment”, the phrase “payment,” and
(iii) deleting “and” immediately prior to clause (2) of the second proviso and
adding immediately prior to clause (z) the following:
“and (3)
any prepayment or redemption or acquisition for value or any cancellation or
other retirement of Debt or obligations in accordance with the Plan and/or the
Disclosure Statement”.
(k)
Section 5.02(l) of the Credit Agreement is hereby amended by deleting the
reference to “except (i) for mergers or consolidation” contained therein and
substituting therefor the phrase “or permit any of its Subsidiaries to merge
into or consolidate with any Person or permit any Person to merge into it,
except (i) for mergers or consolidations”.
(l) Clause
(iv)(B)(1)(y) of Section 5.02(o) of the Credit Agreement is hereby amended by
inserting the phrase “or in the case of clause (vi), the assets of Foreign
Subsidiaries” immediately after the phrase “relate solely to the assets that are
the subject of such Liens”.
SECTION
2. Conditions to Effectiveness.
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 and the Required Lenders
or, as to any such Required Lenders, advice satisfactory to the Administrative
Agent that such Required Lender has executed this Amendment, (ii) on the
Effective Date, the Borrower shall have certified to the Administrative Agent
that the representations and warranties set forth in Section 3 are true and
(iii) the Bankruptcy Court shall have approved the terms of this
Amendment.
(b) This
Amendment is subject to the provisions of Section 9.01 of the Credit
Agreement.
Chemtura
Term Loan Amendment No. 1
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SECTION
3. Representations and
Warranties. The Borrower 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, as specifically amended by this Amendment, is and shall
continue to be in full force and effect and is 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.
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 9.04 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.
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Loan Amendment No. 1
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Term Loan Amendment No. 1
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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.
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CHEMTURA
CORPORATION
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By:
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
Executive Vice President
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Chemtura
Term Loan Amendment No. 1
SIGNATURE
PAGE TO AMENDMENT NO. 1 TO THE SENIOR SECURED TERM FACILITY CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG CHEMTURA CORPORATION,
THE VARIOUS LENDERS PARTY THERETO AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE
AGENT
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Accepted
and agreed:
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BANK
OF AMERICA, N.A.,
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as
Administrative Agent and as a Lender
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By:
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Name:
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Title:
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Chemtura
Term Loan Amendment No. 1
SIGNATURE
PAGE TO AMENDMENT NO. 1 TO THE SENIOR SECURED TERM FACILITY CREDIT
AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG CHEMTURA CORPORATION,
THE VARIOUS LENDERS PARTY THERETO AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE
AGENT
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Accepted
and agreed:
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_______________________________________,
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as
a Lender
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By:
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Name:
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Title:
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Chemtura
Term Loan Amendment No. 1