Exhibit 4.7
FIRST AMENDMENT dated as of December 21, 2001, (this
"Amendment") to the AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT dated as of October 28, 1999, as amended and
restated in the form of the Amended and Restated Credit
Agreement as of September 24, 2001 (as amended, restated,
Supplemented or otherwise modified from time to time, the
"364-Day 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 (formerly known
as THE CHASE MANHATTAN BANK) ("JPMORGAN"), 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 BANC ALEX. BROWN INC. (formerly known as DEUTSCHE
BANK SECURITIES 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 364
Day Credit Agreement;
WHEREAS, pursuant to the 364-Day Credit
Agreement, the Banks have made and agreed to make certain
loans to the Borrowers; and
WHEREAS, the Company has requested that certain
provisions of the 364-Day Credit Agreement, the 364-Day
Subsidiary Guarantee Agreement and the 364-Day Indemnity,
Subrogation and Contribution Agreement be modified in the
manner provided in this Amendment;
WHEREAS, the Banks whose signatures appear
below, constituting the Required Banks, hereby agree to
amend the 364-Day Credit Agreement, which amendment shall
become effective upon satisfaction of the conditions
precedent set forth herein, the 364-Day Subsidiary
Guarantee Agreement and the 364-Day Indemnity, Subrogation
and Contribution Agreement;
WHEREAS, the Banks whose signatures appear
below, constituting the Required Banks, desire to appoint
Citicorp USA, Inc., as Administrative Agent and as
Collateral Agent , and the Loan Parties desire to consent
to such appointments;
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:
SECTION 1. Defined Terms. Capitalized terms
used but not defined herein have the meanings assigned to
them in the 364-Day Credit Agreement and the Security
Agreement.
SECTION 2. Amendment of Section 1.01. (a)
Section 1.01 of the 364-Day Credit Agreement is hereby
amended by inserting the following defined terms in their
correct alphabetical order:
"Amendment and Restatement" means the Amended
and Restated Credit Agreement dated as of September 24,
2001, among the Company; the Eligible Subsidiaries
referred to therein; the Banks referred to therein;
JPMorgan, as Syndication Agent; the Administrative Agent;
and the CoDocumentation Agents, amending and restating the
Original Credit Agreement.
"Amendment No. 1" means the First Amendment
dated as of December 21, 2001, to this Agreement.
"Amendment No. 1 Effective Date" means the date
on which Amendment No. 1 became effective.
"CNTA Baskets" means the baskets under the
Indentures equal to 10% of Consolidated Net Tangible
Assets under which obligations and Indebtedness (as
defined in the Indentures) not otherwise permitted by
Section 3.3 of the Crompton Indenture and Section 1008 of
the Witco Indenture are permitted to be secured and sale
and leaseback transactions not otherwise permitted by
Section 3.4 of the Crompton Indenture and Section 1009 of
the Witco Indenture are permitted to be entered into
without the ratable securing of the Company's obligations
under the Indentures.
"Collateral" has the meaning set forth in the
Security Agreement.
"Collateral Agent" means Citicorp USA, Inc., in
its capacity as collateral agent for the Banks.
"Collateral Release" has the meaning set forth in Section
11.12.
"Collateral Requirement" means, at any time,
that (a) the Security Agreement (or a supplement thereto)
shall have been duly executed and delivered by the Company
and by each of the Designated Subsidiaries existing at
such time, (b) each Grantor shall have executed and
delivered to the Collateral Agent (i) an appropriate UCC
financing statement, identifying the Collateral of such
Grantor subject to the Lien of the Security Agreement and
naming the Collateral Agent as secured party, for filing
in the central filing office of the jurisdiction of
organization of such Grantor and (ii) any other financing
statements or continuation statements required under
applicable law or requested by the Collateral Agent to
ensure that the Security Agreement creates a valid and
perfected security interest in all the Collateral in which
a security interest can be perfected under the Uniform
Commercial Code as in effect in each applicable
jurisdiction; provided, that no fixture filings shall be
required with respect to any portion of the Collateral
constituting fixtures.
"Consolidated Net Tangible Assets" means the
total consolidated assets of the Company and its
Subsidiaries (as such term is defined in the Indentures),
less (a) current liabilities of the Company and its
Subsidiaries; (b) all depreciation and valuation reserves
and all other reserves (except (x) reserves for
contingencies which have not been allocated to any
particular purpose, and (y) deferred credits, including
deferred federal and foreign income taxes and deferred
investment tax credits) of the Company and its
Subsidiaries; (c) the net book amount of all intangible
assets of the Company and its Subsidiaries, including the
unamortized portions of such items as goodwill,
trademarks, trade names, patents and debt discount and
expense less debt premium; and (d) appropriate adjustments
on account of minority interests of other Persons holding
stock in the Subsidiaries.
"Crompton Indenture" means the Indenture dated
as of March 1, 2000, between the Company (then known as CK
Witco Corporation) and Citibank, N.A., as trustee.
"Crompton Indenture Obligations" means the
obligations of the Company under the Crompton Indenture.
"Designated Subsidiaries" means all Domestic
Subsidiaries of the Company other than Domestic
Subsidiaries that, taken together, (a) have assets with an
aggregate book value equal to less than 15% of the
aggregate book value of the total assets of the Company
and the Domestic Subsidiaries and (b) have revenues for
the most recently ended fiscal quarter equal to less than
15% of the total revenues of the Company and the Domestic
Subsidiaries for such fiscal quarter.
"Documentation Agent" means Bank of America,
N.A., in its capacity as documentation agent for the Banks
hereunder, and its successors in such capacity.
"Equity Interest" means shares of capital stock,
partnership interests, membership interests in a limited
liability company, beneficial interests in a trust or
other equity ownership interests in a Person.
"Financial Officer" of any Person shall mean the
chief financial officer, the treasurer or the principal
accounting officer of such Person.
"Grantors" means the Company and the Subsidiary
Grantors.
"Indentures" means the Crompton Indenture and
the Witco Indenture.
"Obligations" has the meaning set forth in the
Security Agreement.
"Original Credit Agreement" means the 364-Day
Credit Agreement, dated as of October 28, 1999, among the
Company (then known as CK Witco Corporation), the Eligible
Subsidiaries referred to therein, the Banks parties
thereto, The Chase Manhattan Bank, as Syndication Agent,
Citibank, N.A., as Administrative Agent, and the Co-
Documentation Agents named therein, as amended by the
First Amendment thereto, dated as of October 26, 2000.
"Perfection Certificate" means a certificate in
the form of Exhibit N or any other form approved by the
Collateral Agent.
"Release Date" has the meaning set forth in
Section 11.12 hereof.
"Release Conditions" has the meaning set forth
in Section 11.12 hereof.
"Secured Parties" means the Administrative
Agent, the Collateral Agent, each Bank, the Issuing Bank
and each other person to which any of the Obligations is
owed.
"Security Agreement" means a Security Agreement
substantially in the form of Exhibit M hereto.
"Security Documents" means the Security
Agreement, the Subsidiary Guarantee Agreement and the
Indemnity, Subrogation and Contribution Agreement.
"Subsidiary Grantors" has the meaning set forth
in the Security Agreement.
"Type", when used in reference to any Loan or
Borrowing, refers to whether the rate of interest on such
Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted London Interbank
Offered Rate, the Adjusted CD Rate or the Base Rate.
"Witco Indenture" means the Indenture dated as
of February 1, 1996, between the Company (then known as
Witco Corporation) and The Chase Manhattan Bank, as
trustee.
(b) Section 1.01 of the 364-Day Credit
Agreement is hereby further amended by deleting the
definitions of "Administrative Agent", "Agents", "Co-
Documentation Agents", "Five-Year Credit Agreement",
"Fixed Rate Loans", "Loan Documents", "Loan Parties" and
"Money Market LIBOR Loan" in their entirety and replacing
them as follows:
"Administrative Agent" means Citicorp USA, Inc.,
in its capacity as administrative agent for the Banks
hereunder, and its successors in such capacity.
"Agents" means the Administrative Agent, the
Syndication Agent, the Collateral Agent and the
Documentation Agent, and "Agent" means any of the
foregoing.
"Five-Year Credit Agreement" means the Five-Year
Credit Agreement dated as of October 28, 1999 (as amended,
restated, supplemented or otherwise modified from time to
time) among the Company, the Eligible Subsidiaries named
therein, Citicorp USA, Inc. (as successor to Citibank,
N.A. in its capacity as Administrative Agent), as
administrative agent, the banks named therein, JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank),
as syndication agent, and Bank of America, N.A. and
Deutsche Bank Alex. Brown Inc. (formerly known as Deutsche
Bank Securities Inc.), as co-documentation agents.
"Fixed Rate Loans" means CD Loans or Euro-Dollar
Loans or Money Market Loans (excluding Money Market LIBOR
Loans bearing interest at the rate applicable to Base Rate
Loans pursuant to Section 8.01) or any combination of the
foregoing.
"Loan Documents" means this Agreement and the
Security Documents.
"Loan Parties" means the Company, the other
Borrowers, the Subsidiary Guarantors and the Subsidiary
Grantors.
"Money Market LIBOR Loan" means a loan to be
made by a Bank pursuant to a LIBOR Auction (including such
a loan bearing interest at the rate applicable to Base
Rate Loans pursuant to Section 8.01).
(c) Each reference in the 364-Day Credit
Agreement and the Exhibits thereto to Bank of America,
N.A. and Deutsche Banc Alex. Brown Inc. (formerly known as
Deutsche Bank Securities Inc.) is hereby replaced with a
reference to Bank of America, N.A.
(d) Each reference to "Co-Documentation Agents"
in the 364-Day Credit Agreement is hereby replaced with a
reference to "Documentation Agent".
SECTION 3. Amendment of Article 2. (a) Section
2.02 of the 364-Day Credit Agreement is hereby amended by
deleting the word "and" prior to clause (iv) thereof,
deleting the "." at the end of clause (iv) thereof and
replacing it with ", and" and inserting immediately
following clause (iv) thereof the following:
"(v) executed by an assistant treasurer or a
Financial Officer.";
(b) Section 2.03(b) of the 364-Day Credit
Agreement is hereby amended by inserting immediately
following the words "Exhibit E hereto" the following:
"and executed by an assistant treasurer or a
Financial Officer.";
(c) Section 2.06 of the 364-Day Credit
Agreement is hereby amended to read as follows:
"SECTION 2.06. Maturity of Loans. Each
Committed Loan included in any Borrowing shall
mature, and the principal amount thereof shall be due
and payable, on the Termination Date. In the case of
any Committed Loan that is a Euro-Dollar Loan, CD
Loan or Base Rate Loan, upon the expiration of any
Interest Period applicable thereto, the Borrower may
continue such Loan as a Loan of the same Type or
convert the Loan into a Loan of a different Type, in
each case in accordance with the notice requirements
set forth in Section 2.02 and subject to the minimum
principal amount requirements set forth in Section
2.01; provided, that, no Loan may be continued or
converted with an Interest Period ending after the
Termination Date. If the Borrower shall not have
given timely notice to continue or convert any Loan,
such Loan shall automatically be converted into or
continued as a Base Rate Loan with an Interest Period
of 30 days' duration. Each Money Market LIBOR Loan
and Money Market Absolute Rate Loan shall mature, and
the principal amount thereof shall be due and
payable, on the expiration of the Interest Period
applicable thereto.";
(d) Section 2.07(a) of the 364-Day Credit
Agreement is hereby amended to read as follows:
"(a) Each Base Rate Loan shall bear interest on
the outstanding principal amount thereof, for each
day from the date such Loan is made until it becomes
due, at a rate per annum equal to the sum of the Base
Rate Margin for such day plus the Base Rate for such
day. Such interest shall be payable for each
Interest Period on the last day thereof. Any overdue
principal of or interest on any Base Rate Loan shall
bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus
the rate otherwise applicable to Base Rate Loans for
such day.";
(e) Section 2.07(e) is hereby amended by
replacing the last sentence thereof with:
"Any overdue principal of or interest on any
Money Market Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the
sum of 2% plus the rate applicable to Base Rate Loans for
such day.";
(f) Section 2.11(a) of the 364-Day Credit
Agreement is hereby amended by inserting the words "rate
applicable to" prior to the words "Base Rate" and
inserting the word "Loans" immediately after the words
"Base Rate" in the parenthetical thereto;
(g) Section 2.11(f) of the 364-Day Credit
Agreement is hereby amended to read as follows:
"(f) In the event and on each occasion that the
Company or any Subsidiary shall complete any Asset
Sale, the Company shall (i) promptly deliver to the
Administrative Agent a certificate executed by a
Financial Officer of the Company describing the
assets sold and setting forth the aggregate amount of
Net Cash Proceeds received or to be received and the
calculation thereof, and (ii) if the Required
Leverage Ratio is greater than 3.50 to 1.00, not
later than the third Business Day following any
receipt by the Company or any Subsidiary of Net Cash
Proceeds with respect to such Asset Sale, ratably
prepay Loans and loans outstanding under the Five-
Year Credit Agreement in accordance with the
outstandings thereunder in an amount equal to 100% of
such Net Cash Proceeds.";
(h) Section 2.18(a) of the 364-Day Credit
Agreement is hereby amended by inserting immediately
following the words "Issuing Bank" in the first sentence
the following:
"and signed by an assistant treasurer or a
Financial Officer"; and
SECTION 4. Amendment of Article 4. (a) Section
4.02 of the 364-Day Credit Agreement is hereby amended by
adding immediately prior to the period at the end thereof
the following words:
", except Liens created under the Loan
Documents";
(b) Section 4.09 of the 364-Day Credit
Agreement is hereby amended by deleting the words
"the Company's Material Subsidiaries" and inserting
"each Loan Party" in their place;
(c) Section 4.10 of the 364-Day Credit
Agreement is hereby amended by deleting the words
"The Company" therein and replacing them with the
following "Each of the Loan Parties"; and
(d) Article 4 of the 364-Day Credit
Agreement is hereby amended by adding the following
Sections at the end of that Article:
"SECTION 4.13. Collateral; Security
Agreement. (a) The Collateral is not subject to any
Liens other than Liens permitted by Section 5.08. On
the Amendment No. 1 Effective Date, the aggregate
amount of the Debt and other obligations (other than
the Obligations) secured by Liens on the Collateral
does not exceed $50,000,000, none of which has used
any portion of the CNTA Baskets.
(b) The Security Agreement, when executed
and delivered by the parties thereto, will be
effective to create in favor of the Collateral Agent,
for the ratable benefit of the Secured Parties,
legal, valid and enforceable security interests in
the Collateral (as defined in the Security
Agreement), and upon the filing of the financing
statements referred to in the definition of
"Collateral Requirement", such security interests
will constitute fully perfected security interests in
all right, title and interest of each Grantor in such
Collateral, in each case prior and superior to the
rights of any other Person other than Liens permitted
under Section 5.08 of each of this Agreement and the
Five-Year Credit Agreement. On the Amendment No. 1
Effective Date and at all times thereafter when any
Bank has any Commitment or LC Exposure hereunder or
any LC Disbursement remains unreimbursed or any of
the Obligations remains unpaid, the Collateral
Requirement will have been satisfied.
SECTION 4.14. CNTA Basket. The CNTA
Baskets are fully available on the Amendment No. 1
Effective Date to permit the securing of the
Obligations as and to the extent provided in the
Security Agreement."
SECTION 5. Amendment of Article 5. (a)
Section 5.01(c) of the 364-Day Credit Agreement is hereby
amended by deleting the word "and" prior to clause (ii),
replacing it with a comma and inserting immediately before
the semicolon at the end thereof the following:
"and (iii) setting forth a calculation in
reasonable detail of Consolidated Net Tangible Assets
and of the CNTA Baskets as of the date of the balance
sheet included in such financial statements";
(b) Section 5.07(a) of the 364-Day Credit
Agreement is deleted in its entirety and replaced with the
following:
"(a) The Company will not permit the Leverage
Ratio at any time during any period beginning on a
date set forth below and ending on a date immediately
preceding the date listed immediately below such
beginning date (if any) to be in excess of the ratio
set forth below opposite such initial date:
Date Ratio
October 1, 2001 5.25 to 1.00
October 1, 2002 4.75 to 1.00
January 1, 2003 4.00 to 1.00
January 1, 2004 3.50 to 1.00
provided, if the Company and the Subsidiaries have
received at least $100,000,000 in Net Cash Proceeds
from Asset Sales after the Amendment No. 1 Effective
Date, the Leverage Ratio required to be maintained at
any time thereafter shall be the greater of (i) 3.50
to 1.00 and (ii) the appropriate covenant level as
set forth above minus 0.25 for each $100,000,000
increment above the initial $100,000,000 in Net Cash
Proceeds received from Asset Sales after the
Amendment No. 1 Effective Date.";
(c) Section 5.07(b) of the 364-Day Credit
Agreement is hereby amended by deleting it in its entirety
and replacing it with the following:
"(b) The Company will not permit the
Interest Coverage Ratio for any four-fiscal quarter
period ending on or after any date set forth below
and prior to the date listed immediately below such
beginning date (if any) to be less than the ratio set
forth below opposite such initial date:
Date Ratio
December 31, 2001 2.50 to 1.00
December 31, 2002 2.75 to 1.00
December 31, 2003 3.00 to 1.00";
(d) Section 5.07 of the 364-Day Credit
Agreement is hereby amended by the insertion at the end
thereof of the following new paragraph (c):
"(c) The Company will not permit the book
value of the Collateral (excluding any Collateral
that shall be subject to any Lien other than the Lien
of the Security Agreement) to be less at any time
than $350,000,000.";
(e) Section 5.08 of the 364-Day Credit
Agreement is hereby amended by deleting the word "or" at
the end of clause (g) thereof deleting the "." at the end
of clause (h) and adding the following language
immediately after clause (h) thereof:
"; or (i) Liens created under the Security
Agreement.";
(f) Section 5.11 of the 364-Day Credit
Agreement is hereby deleted in its entirety and replaced
with the following:
"SECTION 5.11. Additional Subsidiaries. The
Company will ensure at all times that all Designated
Subsidiaries are (or become within 30 Domestic
Business Days of being formed or acquired or becoming
Designated Subsidiaries) Subsidiary Guarantors."; and
(g) Article 5 of the 364-Day Credit Agreement
is hereby amended by adding the following sections at the
end thereof:
"SECTION 5.13. Prohibition on Guarantees
by Crompton Manufacturing Company, Inc. The Company
will not cause and will not permit Crompton
Manufacturing Company, Inc. (formerly known as
Uniroyal Manufacturing Company, Inc.) or any
successor to guarantee any Debt of the Company other
than the Obligations.
SECTION 5.14. Covenants Relating to
Collateral. (a) The Company will, and will cause
each Subsidiary Grantor to, execute, acknowledge and
deliver to the Collateral Agent any and all further
completed UCC financing statements, and take all such
further actions, as may be required under any
applicable law or reasonably requested by the
Collateral Agent or the Required Banks to ensure that
the Collateral Requirement will be and remain
satisfied at all times, all at the expense of the
Company. The Company also agrees to provide to the
Collateral Agent from time to time upon reasonable
request evidence reasonably satisfactory to the
Collateral Agent as to the perfection and priority of
the Liens created or intended to be created by the
Security Agreement.
(b) The Company will furnish to the Collateral
Agent written notice at least five business days
prior to the effectiveness of any change (i) in any Loan
Party's corporate name, (ii) in the jurisdiction of
organization of any Loan Party, (iii) in any Loan Party's
identity or corporate structure, (iv) in any Loan Party's
organizational identification number or (v) in any Loan
Party's Federal Taxpayer Identification Number. The
Company agrees not to effect or permit any change referred
to in the preceding sentence unless all filings that are
required in order for the Collateral Agent to continue at
all times following such change to have a valid, legal and
perfected security interest in all the Collateral have
been made. The Company also agrees promptly to notify the
Collateral Agent if any material portion of the Collateral
is damaged or destroyed.
(c) Each year, at the time of delivery of
annual financial statements with respect to the
preceding fiscal year pursuant to clause (a) of
Section 5.01, the Company will deliver to the
Collateral Agent a certificate executed by a
Financial Officer of the Company setting forth the
information required pursuant to the Perfection
Certificate or confirming that there has been no
change in such information since the date of the
Perfection Certificate delivered on the Amendment No.
1 Effective Date or the date of the most recent
certificate delivered pursuant to this Section.
SECTION 5.15. Use of CNTA Baskets. The
Company will not and will not permit any of its
Subsidiaries to enter into any transaction other than
the transactions provided for in this Agreement, the
Five-Year Credit Agreement and the Security Agreement
that would utilize any portion of the CNTA Baskets.
SECTION 5.16. Amendment of Indentures.
The Company will not amend either of the Indentures
in a manner adverse to the rights or interests of the
Banks."
SECTION 6. Amendment of Article 6. Section
6.01 of 364-Day Credit Agreement is hereby amended by (a)
replacing the word "or" immediately before the words "any
Material Subsidiary" with a comma and inserting the words
"or any Designated Subsidiary" immediately after the words
"any Material Subsidiary" in clause (g) thereof;
(b) replacing the word "or" immediately before
the words "any Material Subsidiary" with a comma and
inserting the words "or any Designated Subsidiary"
immediately after the words "any Material
Subsidiary", in each case, in both instances in
clause (h) thereof;
(c) replacing the word "or" immediately before
the words "any Material Subsidiary" with a comma and
inserting the words "or any Designated Subsidiary"
immediately after the words "any Material Subsidiary"
in clause (j) thereof;
(d) deleting the word "or" at the end of clause
(k) thereof, inserting the word "or" at the end of
paragraph (l) thereof and inserting the following
immediately below such paragraph (l):
"(m) at any time beginning with the
Amendment No. 1 Effective Date and prior to the
Collateral Release, any Lien purported to be created
under the Security Agreement with respect to any
portion of the Collateral shall cease to be, or shall
be asserted by any Loan Party not to be, (i) a valid,
perfected Lien on such Collateral, or (ii) a first
priority Lien (except to the extent of Liens
permitted under Section 5.08 and in existence on the
Amendment No. 2 Effective Date), in each case except
as a result of the sale, lease, transfer or other
disposition of the applicable Collateral in a
transaction permitted under the Loan Documents or
pursuant to Section 11.12".
SECTION 7. Amendment of Article 7. Section
7.05 of the 364-Day Credit Agreement is hereby amended by
inserting the following at the end thereof:
"It is understood and agreed that the
Collateral Agent shall not be responsible to any
Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of
or the perfection or priority of any lien or security
interest created or purported to be created under or
in connection with, this Agreement or any instrument
or document furnished pursuant hereto.".
SECTION 8. Amendment of Article 8. Section
8.01(c) of the 364-Day Credit Agreement is hereby amended
by inserting the words "rate applicable to" prior to the
words "Base Rate" and inserting the word "Loans"
immediately after the words "Base Rate" in clause (ii)
thereto.
SECTION 9. Amendment of Article 11. (a)
Section 11.01 of the 364-Day Credit Agreement is hereby
amended by:
(i) inserting in clause (b) immediately after
the words "Administrative Agent" the words "or the
Collateral Agent"; and
(ii) inserting the following sentence at the end
thereof: "Each notice required to be given by the
Administrative Agent or by the Required Banks under
this Agreement, other than any notice under Article 2
or Section 11.06, shall simultaneously be given to
the Collateral Agent";
(b) Section 11.03 of the 364-Day Credit
Agreement is hereby amended by inserting the following
clauses (c) and (d) thereof:
"(c) To the extent permitted by applicable law,
no Borrower shall assert, and each hereby waives, any
claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or
instrument contemplated hereby, any Loan or Letter of
Credit or the use of the proceeds thereof.
(d) All amounts due under this Section shall be
payable promptly after written demand therefor.";
(c) Section 11.04 of the 364-Day Credit
Agreement is hereby amended by
(i) deleting the title of that Section and
replacing it with "Right of Set-off; Sharing of Set
offs." and
(ii) inserting immediately prior to the
first sentence thereof the following:
"(a) If an Event of Default shall have
occurred and be continuing, each Bank and each of its
Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law,
to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any
time held and other obligations at any time owing by
such Bank or Affiliate to or for the credit or the
account of the Company or any Loan Party against any
of and all the obligations of the Borrowers now or
hereafter existing under this Agreement held by such
Bank, irrespective of whether or not such Bank shall
have made any demand under this Agreement and
although such obligations may be unmatured. The
rights of each Bank under this Section 11.04(a) are
in addition to other rights and remedies (including
other rights of setoff) which such Bank may have.
(b)";
(d) Section 11.05 of the 364-Day Credit
Agreement is amended by deleting the word "or" in front of
(vi), replacing it with a comma and inserting the
following language immediately following clause (vi)
thereof:
"or (vii) release all or substantially all the
Collateral from the Lien of the Security Agreement
without the written consent of each Bank except as
expressly provided in this Agreement or the Security
Agreement"; and
(e) Article 11 of the 364-Day Credit Agreement
is hereby amended by adding the following section at the
end thereof:
"SECTION 11.12. Release of Grantors and
Collateral. (a) Notwithstanding any contrary provision
herein or in any other Loan Document, if the Company shall
request the release under the Security Agreement of (i)
any Collateral that has been sold to any Person other than
the Company or any Subsidiary, or (ii) any Collateral of
any Subsidiary Grantor in which the Company or any
Subsidiary owns all the equity interests, which Collateral
shall have been sold to any Person other than the Company
or any Subsidiary, in either case in a transaction
permitted under the terms of the Loan Documents, and shall
deliver to the Collateral Agent a certificate to the
effect that such sale will comply with the terms of the
Loan Documents, the Collateral Agent, if satisfied that
the applicable certificate is correct, shall, without the
consent of any Bank, execute and deliver all such releases
or other instruments, and take all such further actions,
as shall be necessary to effectuate the release of such
Collateral.
(b) Notwithstanding Section 5.14 or any other
provision herein or in any other Loan Document, the
Collateral Agent is hereby authorized and directed to
release (the "Collateral Release") the Collateral and the
proceeds thereof from the Liens created by the Security
Agreement (the "Collateral Release") on a Business Day
specified by the Company (the "Release Date"), upon the
satisfaction of the following conditions precedent (the
"Release Conditions"):
(A) the Company shall have given notice to the
Collateral Agent at least 30 days prior to the
Release Date, specifying the proposed Release Date
and electing to reinstate, effective as of the
Release Date, the covenants set forth in Section 5.07
of this Agreement as in effect immediately prior to
the effectiveness of the Amendment and Restatement,
Amendment No. 1 (and on the Release Date such
covenants shall be permanently reinstated as provided
below);
(B) the Company shall have a Leverage Ratio less
than or equal to 3.50 to 1.00 as of the Release Date
and as of the last day of each of the two fiscal
quarters most recently ended prior to the Release
Date for which financial statements shall have been
delivered pursuant to Section 5.01(a) or (b) and
shall be in compliance as of the Release Date and as
of the last day of each of such two fiscal quarters
with the other covenants and agreements set forth in
this Agreement, giving effect to the reinstatement of
the covenants set forth in Section 5.07 as provided
in paragraph (A) above as if such reinstatement had
occurred prior to the last day of the earlier of such
two fiscal quarters;
(C) no Default or Event of Default shall have
occurred and be continuing as of the Release Date;
and
(D) on the Release Date, the Administrative
Agent and the Collateral Agent shall have received a
certificate, dated the Release Date and executed on
behalf of the Company by a Financial Officer thereof,
confirming the satisfaction of the Release Conditions
set forth in clauses (B) and (C) above and shall be
satisfied that the certifications contained therein
are accurate.
Any such release shall be without recourse to, or
representation or warranty by, the Collateral Agent
and shall not require the consent of any Bank.
Subject to the satisfaction of the conditions set
forth in this paragraph (b), on and after the Release
Date, the Collateral Agent shall execute and deliver
all such instruments, releases, financing statements
or other agreements, and take all such further
actions, as shall be necessary to effectuate the
release of Collateral required by this paragraph.
(c) On the Release Date, (i) Articles 2, 4 and
5 of this Agreement shall be automatically and
permanently amended by the deletion therefrom of
Sections 2.11(f), 4.13, 4.14, 5.13, 5.14 and 5.15,
and
(ii) (A) Section 4.02 and (B) Sections 5.01(c), 5.07
and 5.08 of this Agreement shall be automatically and
permanently amended so that the representations and
covenants, respectively set forth therein shall be
those in effect immediately prior to the
effectiveness of the Amendment and Restatement.
(d) Without limiting the provisions of Section
11.03, the Borrowers shall reimburse the Collateral
Agent for all costs and expenses, including
attorneys' fees and disbursements, incurred by it in
connection with any action contemplated by this
Section 11.12."
SECTION 10. Amendment of Schedules and
Exhibits. (a) The Pricing Schedule attached to the 364-
Day Credit Agreement is hereby replaced in its entirety
with the Pricing Schedule attached hereto.
(b) Exhibit K of the 364-Day Credit Agreement
is hereby amended by deleting the first sentence of
Section 19 thereof and replacing it with the following :
"Pursuant to Section 5.11 of the Credit
Agreement, the Company must ensure at all times that all
Designated Subsidiaries are (or become within 30 Domestic
Business Days of being formed or acquired or becoming
Designated Subsidiaries) Subsidiary Guarantors.".
(c) Exhibit L of the 364-Day Credit Agreement
is hereby amended by deleting the first sentence of
Section 11 thereof and replacing it with the following:
"Pursuant to Section 5.11 of the Credit
Agreement, the Company must ensure at all times that
all Designated Subsidiaries are (or become within 30
Domestic Business Days of being formed or acquired or
becoming Designated Subsidiaries) Subsidiary
Guarantors.".
(d) The 364-Day Credit Agreement is hereby
amended by adding a new Exhibit M: Form of Security
Agreement to the Five-Year Credit Agreement in the form of
Exhibit M hereto.
(e) The 364-Day Credit Agreement is hereby
amended by adding a new Exhibit N: Form of Perfection
Certificate to the Five-Year Credit Agreement in the form
of
Exhibit N hereto.
SECTION 11. Appointments; Consents. The
Required Banks hereby:
(a) appoint Citicorp USA, Inc., as Collateral
Agent for the benefit of the Secured Parties and the Loan
Parties hereby consent to such appointment;
(b) appoint Citicorp USA, Inc., as
Administrative Agent and the Loan Parties hereby consent
to such appointment;
(c) consent to the amendment of the 364-Day
Subsidiary Guarantee Agreement as provided in Section
10(b) hereof; and
(d) consent to the amendment of the 364-Day
Indemnity, Subrogation and Contribution Agreement as
provided in Section 10(c) above.
SECTION 12. Representations and Warranties.
To induce the other parties hereto to enter into this
Amendment, the Company hereby represents and warrants
that, after giving effect to this Amendment:
(a) The representations and warranties set
forth in Article 4 of the 364-Day Credit Agreement,
as amended by this Amendment, are true and correct on
and as of the date hereof, except to the extent such
representations and warranties specifically relate to
an earlier date, with all references to "this
Agreement" being deemed to refer to the 364-Day
Credit Agreement, as amended by this Amendment;
(b) No Default or Event of Default has occurred
and is continuing; and
(c) This Amendment has been duly executed and
delivered by the Company and constitutes a legal,
valid and binding obligation of the Company
enforceable against the Company in accordance with
its terms.
SECTION 13. Amendment 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 Amendment prior to
12:00 noon New York City time on December 26, 2001, a
nonrefundable amendment fee equal to 0.25% of the
aggregate amount of such Bank's Commitment, whether used
or unused, on the date hereof, payable in immediately
available funds.
SECTION 14. Conditions to Effectiveness. This
Amendment shall become effective on the date on which:
(i) the Syndication Agent shall have received
counterparts of this Amendment that, when taken
together, bear the signatures of the Company, the
Required Banks and the Syndication Agent;
(ii) the Administrative Agent shall have
received counterparts of the Security Agreement that,
when taken together, bear the signatures of the
Company, the Designated Subsidiaries and the
Collateral Agent;
(iii) the Syndication Agent shall have received
a certificate, signed by a Financial Officer of the
Company, confirming (A) the accuracy of the
representations set forth in paragraphs (a) and (b) of
Section 12 and (B) the satisfaction of the Collateral
Requirement;
(iv) the Collateral Agent shall have received a
completed Perfection Certificate dated the Amendment No. 2
Effective Date and signed by a Financial Officer of the
Company, together with all attachments contemplated
thereby;
(v) the Administrative Agent shall have received the
amendment fees payable to the Banks under Section 13;
(vi) the Syndication Agent and the Collateral Agent
shall have received written opinions of John T. Ferguson
II, Esq., General Counsel of the Company; Wachtell,
Lipton, Rosen & Katz, counsel to the Company; and such
other opinions as the Syndication Agent or the Collateral
Agent may reasonably request, each addressing such matters
as the Syndication Agent or the Collateral Agent shall
reasonably have requested and in form and substance
reasonably acceptable to the Syndication Agent or the
Collateral Agent; and
(vii) the Syndication Agent shall have received, on
behalf of the Banks, (i) a copy of the certificate or
articles of incorporation or other organizational
documents, including all amendments thereto, of each of
the Loan Parties, certified as of a recent date by the
Secretary of State (or other appropriate governmental
authority) of the state of its organization, or other
evidence reasonably satisfactory to the Syndication Agent
as to the organization of such Loan Party; (ii) a
certificate as to the good standing or subsistence, to the
extent available, of each of the Loan Parties as of a
recent date, from the appropriate Secretary of State (or
other appropriate governmental authority) or other
evidence reasonably satisfactory to the Syndication Agent
as to the good standing of such Loan Party; (iii) a
certificate of the Secretary or Assistant Secretary of
each Loan Party dated the Amendment No. 1 Effective Date
and certifying (A) that attached thereto is a true and
complete copy of the by-laws or other organizational
documents of such Loan Party as in effect on the Amendment
No. 1 Effective Date and at all times since a date prior
to the date of the resolutions described in clause (B)
below, (B) that attached thereto is a true and complete
copy of resolutions duly adopted by the Board of Directors
(or other analogous governing body) of such Loan Party
(and, if necessary, resolutions duly adopted by the
shareholders or other equity owners of such Loan Party)
authorizing the execution, delivery and performance of the
Loan Documents to which such Loan Party is or is to be a
party and, in the case of the Borrowers, the transactions
hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and
effect, (C) that the certificate or articles of
incorporation or other organizational documents of such
Loan Party have not been amended since the date of the
last amendment thereto shown on the certificate furnished
pursuant to clause (i) above, and (D) as to the incumbency
and specimen signature of each officer executing any Loan
Document or any other document delivered in connection
herewith on behalf of such Loan Party; (iv) a certificate
of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary
executing the certificate pursuant to clause (iii) above;
and (v) such other documents as the Banks, the Issuing
Bank or Cravath, Swaine & Moore, special counsel for the
Syndication Agent, may reasonably request related to the
foregoing.
SECTION 15. Effect of Amendment. (a) On and
after the Amendment No. 1 Effective Date, each reference
in the 364-Day Credit Agreement to "this Agreement",
"hereunder", "herein", or words of like import shall mean
and be a reference to the 364-Day Credit Agreement, as
amended hereby. Except as expressly set forth herein,
this Amendment shall not by implication or otherwise
limit, impair, constitute a waiver of or otherwise affect
the rights and remedies of the Banks under the 364-Day
Credit Agreement or any other Loan Documents, and shall
not alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements
contained in the 364-Day Credit Agreement or any other
Loan Documents, 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 364-Day Credit
Agreement or any other Loan Documents in similar or
different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the
364-Day Credit Agreement specifically referred to herein.
(b) 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.
SECTION 16. References in Documents Executed in
Connection with this Amendment. References to Citibank,
N.A. as Administrative Agent and/or Collateral Agent in
documents executed in connection with this Amendment will
be deemed to be references to Citicorp USA, Inc. as
Administrative Agent and/or Collateral Agent, as
applicable. References to Bank of America, N.A. and
Deutsche Banc Alex. Brown (formerly known as Deutsche Bank
Securities Inc.) as Co-Documentation Agents in documents
executed in connection with this Amendment will be deemed
to be references to Bank of America, N.A. as Documentation
Agent.
SECTION 17. Counterparts. This Amendment may
be executed by one or more parties to this Amendment 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
Amendment by facsimile transmission shall be as effective
as delivery of a manually executed counterpart hereof.
SECTION 18. APPLICABLE LAW. THIS AMENDMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
SECTION 19. 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 Amendment.
SECTION 20. Expenses. The Company shall
reimburse the Syndication Agent and the Collateral Agent
for their reasonable out-of-pocket expenses in connection
with this Amendment, including the reasonable fees,
charges and disbursements of Cravath, Swaine & Moore.
IN WITNESS WHEREOF, the Company, the Administrative
Agent and the undersigned Banks have caused this Amendment
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 Amendment.
CROMPTON MANUFACTURING COMPANY, INC.,
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),
By
Name:
Title:
270 Park Avenue
New York, NY 10017
BANK OF AMERICA, N.A.,
By
Name:
Title:
335 Madison Avenue New York, NY 10017
DEUTSCHE BANK AG NEW YORK BRANCH a/o CAYMAN ISLANDS
BRANCH,
By
Name:
Title:
Name:
Title:
31 W. 52nd Street
New York, NY 10019
MELLON BANK, N.A.,
By
Name:
Title:
One Mellon Bank Center Pittsburgh, PA 15258
ABN AMRO BANK N.V.,
By
Name:
Title:
By
Name:
Title:
500 Park Avenue
New York, NY 10022
COMMERZBANK AG
NEW YORK AND GRAND CAYMAN BRANCHES,
By
Name:
Title:
By
Name:
Title:
FOUR WINDS FUNDING CORPORATION,
as Designee,
By
Name:
Title:
By
Name:
Title:
Address:
THE BANK OF NEW YORK,
By
Name:
Title:
Address:
FIRST UNION NATIONAL BANK,
By
Name:
Title:
301 W. College Street, TW-5 Charlotte, NC 28288-
0760
FLEET NATIONAL BANK,
By
Name:
Title:
1 Federal Street
Boston, MA 02110
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
By
Name:
Title:
1251 Avenue of the Americas New York, NY 10020-
1104
THE BANK OF NOVA SCOTIA, By
Name:
Title:
Address:
BNP PARIBAS,
By
Name:
Title:
By
Name:
Title:
787 Seventh Avenue New York, NY 10019
BANCA NAZIONALE DEL LAVORO S.P.A. NEW YORK BRANCH,
By
Name:
Title:
Name:
Title:
25 West 51st Street
New York, NY 10019
SUNTRUST BANK,
By
Name:
Title:
711 Fifth Avenue, 16th Floor New York, NY 10022
INTESABCI NEW YORK BRANCH,
By
Name:
Title:
By
Name:
Title:
One William Street New York, NY 10004
ING (U.S.) CAPITAL LLC,
By
Name:
Title:
1325 Avenue of the Americas 8th Floor
New York, NY 10019
BANCA MONTE DEI PASCHI DI SIENA S.P.,
By
Name:
Title:
By
Name:
Title:
55 East 59th Street
New York, NY 10022
PEOPLE'S BANK,
By
Name:
Title:
350 Bedford Street Stamford,
CT 06901
HIBERNIA NATIONAL BANK,
By
Name:
Title:
313 Carondelet Street New
Orleans, LA 70130
PRICING SCHEDULE
Each of "Facility Fee Rate", "Euro-Dollar
Margin" and "CD Margin" means, for any day, the rate set
forth below in the row opposite such term and in the
column corresponding to the Pricing Level that applies on
such day as determined based on the ratings by Moody's and
S&P:
Pricing Level Level Level IIIBBB-
Level I$BBB/Baa2 IIBBB-/ and Ba1orBB+
Baa3 and Baa3
Facility
Fee Rate 0.125% 0.150% 0.250%
Euro-Dollar
Margin 0.875%1 1.350%1 1.750%1
CD Margin 2.125%1 2.600%1 3.000%1
Base Rate
Margin 0.150%1 0.350% 0.750%1
Pricing Level IVBB+/Bal Level V<Bal/BB+
Level
Facility
Fee Rate 0.300% 0.375%
Euro-Dollar
Margin 1.950%1 2.125%1
CD Margin 3.200%1 3.375%1
Base Rate
Margin 0.950%1 1.125%1
1 The Euro-Dollar Margin, CD Margin and Base Rate Margin
shall increase by 0.500% per annum on any day on which the
Company has a Leverage Ratio that is greater than 4.0 to
1.0.
For purposes of this Schedule, the following
terms have the following meanings:
"Moody's" means Moody's Investors Service, Inc.
"S&P" means Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
The credit ratings to be utilized for purposes of this
Schedule are those assigned to this Agreement and the Five
Year Credit Agreement and if no credit rating shall be
available for this Agreement and the Five-Year Credit
Agreement, to the senior unsecured long-term debt
securities of the Company without third-party credit
enhancement, and any rating assigned to any other debt
security of the Company shall be disregarded. The ratings
in effect for any day are those in effect at the close of
business on such day. In the case the ratings from S&P
and Moody's would indicate different Levels, the lower
Level (Level V being the lowest Level) will apply.