WAIVER NO. 2 dated as of March 26, 2004, (this
"Waiver") to the FIVE-YEAR CREDIT AGREEMENT dated as
of October 28, 1999, as amended through the date hereof (as it may
be further amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among CROMPTON
CORPORATION (formerly known as CK Witco Corporation) (the
"Company"); the Eligible Subsidiaries referred to therein; the
BANKS referred to therein; JPMORGAN CHASE BANK, as
Syndication Agent; CITICORP USA, INC. (as successor to
Citibank, N.A. in its capacity as Administrative Agent), as
Administrative Agent; and BANK OF AMERICA, N.A. and
DEUTSCHE BANK SECURITIES INC. (formerly known as
DEUTSCHE BANC ALEX. BROWN INC.), as Co-
Documentation Agents.
WHEREAS, the Company, the Eligible Subsidiaries, the Banks, the Co-
Documentation Agents, the Syndication Agent and the Administrative Agent are parties
to the Credit Agreement;
WHEREAS, pursuant to the Credit Agreement, the Banks have made and
agreed to make certain loans to the Borrowers; and
WHEREAS, the Company has requested, and the Banks whose signatures
appear below, constituting the Required Banks, have agreed that certain provisions of the
Credit Agreement be waived in the manner and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto hereby agree as follows:
- Defined Terms. Capitalized terms used but not
defined herein have the meanings assigned to them in the Credit Agreement. - Waiver. The Required Banks hereby (a) waive
the provisions of Section 5.09 of the Credit Agreement to the extent, and
only to the extent, necessary to permit the sale by the Company of the
Equity Interests held by it in Gustafson LLC, a Delaware limited liability
company, and Gustafson Partnership, a general partnership formed under the
laws of the Province of Ontario, Canada, (collectively, the "Gustafson
Equity Interests") for cash in an aggregate amount at least equal to
$100,000,000 (the "Proposed Sale") and (b) acknowledge and agree that the
Proposed Sale shall not be deemed to utilize the basket set forth in clause
(C) of Section 5.09 for sales, leases and transfers of the assets of the
Company and its Subsidiaries;provided that the foregoing waiver shall be
effective only if (i) the date the Proposed Sale is consummated shall be on
or prior to June 30, 2004, and (ii) the Company shall prepay Loans in an
amount equal to 100% of the Net Cash Proceeds of the Proposed Sale as
required by Section 2.11(f) of the Credit Agreement. - Collateral Release. The Banks hereby
acknowledge and agree that, in accordance with the provisions of the
Security Agreement, upon the completion of the sale of the Gustafson
Equity Interests, any security interest held by the Collateral Agent for the
benefit of the Secured Parties in the Equity Interests which are sold or
otherwise transferred in such sale will, subject to the application of the
proceeds of such sale as provided in Section 2 hereof, terminate without
further action on the part of the Company, the Collateral Agent or any other
party. - Waiver Fee. The Company agrees to pay to
the Administrative Agent, for the account of each Bank that shall have
executed and delivered to the Syndication Agent a counterpart of this
Waiver prior to 5:00 p.m., New York City time, on March 26, 2004, a
nonrefundable waiver fee (the "Waiver Fee") equal to .05% of the aggregate
amount of such Bank's Commitment, whether used or unused, on the date
hereof, payable in immediately available funds. - Representations and Warranties. To induce the
other parties hereto to enter into this Waiver, the Company hereby
represents and warrants that: - The representations and warranties set forth in Article 4 of the Credit
Agreement are true and correct on and as of the date hereof, except (i) to the extent such
representations and warranties specifically relate to an earlier date and (ii) with respect to
Section 4.04(b) of the Credit Agreement, as to any matter which has heretofore been
disclosed in writing by the Company to the Banks; - No Default or Event of Default has occurred and is continuing;
- This Waiver shall, when duly executed and delivered by the Company
and upon satisfaction of the conditions to effectiveness of this Waiver set forth in Section
6 below, constitute a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms.
- Conditions to Effectiveness. This Waiver shall
become effective on the date on which each of the following conditions has
been satisfied: - The Syndication Agent shall have received counterparts of this Waiver
that, when taken together, bear the signatures of the Company and the Required Banks. - The Administrative Agent shall have received payment of the Waiver
Fee.
- Effect of Waiver. Except as expressly set
forth herein, this Waiver shall not by implication or otherwise limit, impair,
constitute a waiver of or otherwise affect the rights and remedies of the
Banks under the Credit Agreement or any other Loan Document (except to
the extent Section 3 hereof constitutes a release of all Liens, if any, on the
Gustafson Equity Interests pursuant to the Security Agreement), and 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 Loan Document, all of which are ratified and affirmed in all
respects and shall continue in full force and effect. Nothing herein shall be
deemed to entitle the Company to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other
Loan Document in similar or different circumstances. This Waiver shall
apply and be effective only with respect to the provisions of the Credit
Agreement specifically referred to herein. - Nothing herein will be deemed to reduce the obligations of any
Subsidiary Guarantor under the Subsidiary Guarantee Agreement, which shall remain in
full force and effect.
- Counterparts. This Waiver may be executed
by one or more parties to this Waiver in any number of separate
counterparts, each of which shall constitute an original, but all of which
when taken together shall constitute but one contract. Delivery of an
executed counterpart of a signature page of this Waiver by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart hereof. - APPLICABLE LAW. THIS WAIVER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK. - Headings. Section headings used herein are
for convenience of reference only, are not part of, and are not to be taken
into consideration in interpreting, this Waiver. - Expenses. The Company shall reimburse the
Syndication Agent and the Collateral Agent for their reasonable out-of-
pocket expenses in connection with this Waiver, including the reasonable
fees, charges and disbursements of Cravath, Swaine & Moore LLP.
IN WITNESS WHEREOF, the Company, the Administrative Agent and
the undersigned Banks have caused this Waiver to be duly executed by their duly
authorized officers, all as of the date first above written.
CROMPTON CORPORATION,
By
Name:
Title:
By
Name:
Title:
Each of the Subsidiary Guarantors hereby
acknowledges receipt of, and consents to the terms
of, this Waiver.
UNIROYAL CHEMICAL COMPANY, INC.
(D/B/A
CROMPTON MANUFACTURING COMPANY,
INC.),
By
Name:
Title:
By
Name:
Title:
CROMPTON INTERNATIONAL CORPORATION,
By
Name:
Title:
By
Name:
Title:
CITICORP USA, INC., individually, as
Administrative Agent and as Collateral Agent,
By
Name:
Title:
JPMORGAN CHASE BANK (formerly known as
THE CHASE MANHATTAN BANK), individually
and as Syndication Agent,
By
Name:
Title:
Name:
Title:
270 Park Avenue
New York, NY 10017
Signature Page to the Crompton
corporation WAIVER dated as of
MARCH 26, 2004 to the FIVE-YEAR Credit
Agreement dated as of October 28,
1999, as amended through the date
hereof
Name of Institution:__________________________________
By
Name:
Title:
