Exhibit 10.3
EXECUTION COPY
FOURTH AMENDMENT TO CREDIT AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT (this Amendment), dated as of June 22, 2009, is entered into by and among Huntsman International LLC, a Delaware limited liability company (the Borrower), Deutsche Bank AG New York Branch and Credit Suisse, Cayman Islands Branch, in their capacities as lenders, and Deutsche Bank AG New York Branch, as Administrative Agent (the Administrative Agent) for the Lenders. Terms used herein and not otherwise defined herein shall have the same meanings as specified in the Credit Agreement (as defined below).
RECITALS:
NOW, THEREFORE, in consideration of the Recitals herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Applicable Base Rate Margin means at any date, (i) with respect to Revolving Loans denominated in Dollars, the applicable percentage set forth in the following table under the column Applicable Base Rate Margin for Revolving Loans opposite the Most Recent Leverage Ratio as of such date, (ii) with respect to Term C Dollar Loans, 1.25% and (iii) with respect to Term B Dollar Loans, the applicable percentage set forth under the column Applicable Base Rate Margin for Term B Dollar Loans opposite the Most Recent Senior Secured Leverage Ratio as of such date:
Most Recent |
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Applicable Base Rate |
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Less than or equal to 2.00 to 1 |
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0.25 |
% |
Greater than 2.00 to 1 but less than or equal to 2.50 to 1 |
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0.50 |
% |
Greater than 2.50 to 1 |
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0.75 |
% |
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Most Recent |
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Applicable Base Rate |
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Less than or equal to 2.25 to 1 |
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0.50 |
% |
Greater than 2.25 to 1 |
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0.75 |
% |
Applicable Eurocurrency Margin means at any date, (i) with respect to Term B Dollar Loans, the applicable percentage set forth in the following table under the column Applicable Eurocurrency Margin for Term B Dollar Loans opposite the Most Recent Senior Secured Leverage Ratio on such date, (ii) with respect to Term C Dollar Loans, 2.25% and (iii) with respect to Revolving Loans, the applicable percentage set forth in the following table under the column Applicable Eurocurrency Margin for Revolving Loans opposite the Most Recent Leverage Ratio on such date:
Most
Recent |
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Applicable |
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Less than or equal to 2.00 to 1 |
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1.25 |
% |
Greater than 2.00 to 1 but less than or equal to 2.50 to 1 |
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1.50 |
% |
Greater than 2.50 to 1 |
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1.75 |
% |
Most Recent |
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Applicable Eurocurrency |
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Less than or equal to 2.25 to 1 |
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1.50 |
% |
Greater than 2.25 to 1 |
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1.75 |
% |
Interest Payment Date means (i) as to any Base Rate Loan, each Quarterly Payment Date to occur while such Loan is outstanding, (ii) as to any Eurocurrency Loan having an Interest Period of three months or less, the last day of the Interest Period applicable thereto and (iii) as to any Eurocurrency Loan having an Interest Period longer than three months, each three (3) month anniversary of the first day of the Interest Period applicable thereto and the last day of the Interest Period applicable thereto; provided, however, that, in addition to the foregoing, each of (A) the Revolver Termination Date, (B) the Term B Loan Maturity Date and (C) the Term C Loan
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Maturity Date shall be deemed to be an Interest Payment Date with respect to any interest which is then accrued hereunder for such Loan.
Term Note and Term Notes means the Term C Dollar Notes that evidence the Term C Dollar Loans and the notes provided for in Section 2.2 that evidence indebtedness under the Term Facilities, collectively.
Determination Date has the meaning assigned to that term in Section 12.23.
Fourth Amendment means the Fourth Amendment to this Agreement dated as of June 22, 2009.
Fourth Amendment Effective Date has the meaning assigned to that term in the Fourth Amendment.
Minimum Floor Amount has the meaning assigned to that term in Section 12.23.
Refinanced Facility Debt has the meaning assigned to that term in Section 12.23(a).
Scheduled Term C Dollar Repayments means, with respect to the principal payments on the Term C Dollar Loans for each date set forth below, that percentage of the aggregate outstanding principal amount of Term C Dollar Loans on the Fourth Amendment Effective Date set forth opposite thereto:
Scheduled Term C Dollar Repayments
Date |
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Principal Payment |
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March 31, 2010 |
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1% of the aggregate principal amount as of the Fourth Amendment Effective Date |
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March 31, 2011 |
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1% of the aggregate principal amount as of the Fourth Amendment Effective Date |
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March 31, 2012 |
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1% of the aggregate principal amount as of the Fourth Amendment Effective Date |
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March 31, 2013 |
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1% of the aggregate principal amount as of the Fourth Amendment Effective Date |
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Date |
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Principal Payment |
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March 31, 2014 |
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1% of the aggregate principal amount as of the Fourth Amendment Effective Date |
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March 31, 2015 |
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1% of the aggregate principal amount as of the Fourth Amendment Effective Date |
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March 31, 2016 |
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1% of the aggregate principal amount as of the Fourth Amendment Effective Date |
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Term C Loan Maturity Date |
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100% of the aggregate principal amount of Term C Dollar Loans outstanding on the Term C Loan Maturity Date. |
Term C Dollar Commitment means, with respect to any Term C Dollar Lender signatory to the Fourth Amendment, the principal amount set forth opposite such Lenders name on Schedule 1.1(a) hereto under the caption Amount of Term C Dollar Commitment, as such commitment may be adjusted from time to time pursuant to this Agreement or increased pursuant to Section 2.1(a)(ii), and Term C Dollar Commitments means such commitments collectively, which commitments equal $500,000,000 in the aggregate on the Fourth Amendment Effective Date.
Term C Dollar Facility means the credit facility under this Agreement evidenced by the Term C Dollar Commitments and the Term C Dollar Loans.
Term C Dollar Lender means any Lender which has a Term C Dollar Commitment or has made (or a portion thereof) a Term C Dollar Loan.
Term C Dollar Loan and Term C Dollar Loans have the meanings assigned to those terms in Section 2.1(d).
(d) Term C Loans. Subject to the terms and conditions hereof and in the Fourth Amendment, each Term C Dollar Lender agrees to make a loan in Dollars (the Term C Dollar Loans) to the Borrower on the Fourth Amendment Effective Date in the aggregate principal amount of such Lenders Term C Dollar Commitment. No amount of a Term C Dollar Loan which is repaid or prepaid by the Borrower may be reborrowed hereunder. The Term C Dollar Loans shall be denominated in Dollars, shall be maintained as and/or converted into Base Rate Loans or Eurocurrency Loans or a combination thereof,
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provided, that all Term C Dollar Loans made by the Term C Dollar Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Term C Dollar Loans of the same Type.
Payments to be made pursuant to this Section 4.4(b) with respect to Term C Dollar Loans shall be paid in Dollars.
Each Term C Dollar Lender agrees that upon the earlier to occur of (x) the Term B Loan Maturity Date and (y) the date that all Term B Dollar Loans are prepaid or repaid in full (for any reason) (such earlier date, the Determination Date):
(a) Without limitation of any of the terms of the Loan Documents or any provisions thereof, the Borrower shall have the right in its sole discretion at any time to refinance or replace all of the Facilities outstanding immediately prior to the Determination Date under this Agreement (other than the Term C Dollar Facility) (collectively, the Refinanced Facility Debt) pursuant to separate credit documentation. In connection therewith:
(i) all collateral, guarantees and other credit support that secures, guarantees or otherwise supports the Term C Dollar Facility pursuant to the Loan Documents (including, without limitation, the Security Documents) shall be available (on a pari passu basis in payment and lien priority, and in any event on the same basis as the Facilities are afforded under the Loan Documents as of the Fourth Amendment Effective Date) to secure, guarantee or otherwise support any and all such Refinanced Facility Debt, together with any other senior secured indebtedness of the Borrower (including, without limitation, one or more
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revolving and/or term credit facilities), in an aggregate principal amount not to exceed the greater of (A) the principal amount of Refinanced Facility Debt outstanding on the Determination Date (or its equivalent in any other currency) and (B) $2,100,000,000 (or its equivalent in any other currency) (such greater amount, the Minimum Floor Amount), as the Minimum Floor Amount may be reduced after the Determination Date pursuant to the last sentence of the definition of Permitted Refinancing Indebtedness; and
(ii) the Loan Documents shall be amended and other documents and agreements will be entered into (such amendments, documents and agreements solely requiring the signatures of the Administrative Agent and the Borrower to be effective) in order to effectuate the foregoing and to make any necessary conforming changes.
(b) Notwithstanding anything to the contrary contained in Section 4.4(c)(i), no prepayment of proceeds from a Recovery Event shall be required pursuant to such Section to the extent that (x) no Event of Default or Unmatured Event of Default then exists and (y) the Borrower delivers a certificate to the Administrative Agent on or prior to such date stating that an amount equal to the proceeds of such Recovery Event is expected to be used to purchase assets used or to be used in the businesses referred to in Section 8.9 within 360 days following the date of receipt of such proceeds (which certificate shall set forth the estimates of the proceeds to be so expended); provided that (1) if all or any portion of such proceeds not so applied to such prepayment are not so used (or contractually committed to be used) within such 360 day period as provided above, such remaining portion shall be applied on the last day of the period or such earlier date as the Borrower is obligated to make an offer to purchase Senior Secured Notes (2010) due to such Recovery Event as a mandatory repayment of principal of outstanding Loans as provided in Section 4.4(c)(i) and (2) if all or any portion of such proceeds result from a Recovery Event involving Collateral owned by the Borrower or a Domestic Subsidiary (other than the Capital Stock of a Foreign Subsidiary), then such proceeds shall be required to be reinvested in assets located in the United States constituting Collateral (to the extent not used to repay Loans pursuant to Section 4.4(c)(i)).
(c) Article IX shall no longer apply for any purpose under this Agreement (including, without limitation, for the purposes of Section 2.1(a)(ii), Section 7.2(b), Section 8.7(j) and Section 8.7(m)).
(d) Permitted Refinancing Indebtedness shall mean, with respect to any Indebtedness, any Indebtedness refinancing, extending, renewing or refunding such Indebtedness; provided, however, that any such refinancing Indebtedness shall (i) be issued by the same obligor as the Indebtedness being so refinanced (or by Huntsman Corporation or a Parent Company) and be on terms, taken as a whole, not more restrictive than the terms of the documents governing the Indebtedness being so refinanced; (ii) if the Indebtedness being so refinanced is subordinated to the Obligations, be subordinated to the Obligations on substantially the same terms (or on terms at least as favorable to the Lenders) as Indebtedness being so refinanced; (iii) be in a principal amount (as
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determined as of the date of the incurrence of such refinancing Indebtedness in accordance with GAAP) not exceeding the principal amount of the Indebtedness being refinanced on such date plus any call premiums, prepayment fees, costs and expenses paid in connection with such refinancing; (iv) not have a Weighted Average Life to Maturity less than the Indebtedness being refinanced; (v) if the Indebtedness being refinanced is Public Notes, be unsecured Indebtedness maturing no earlier than the then latest Term Maturity Date; and (vi) be upon terms and subject to documentation which is in form and substance reasonably satisfactory in all material respects to the Administrative Agent. Notwithstanding clauses (ii) and (v) above, after the Determination Date, any such Indebtedness refinancing, extending, renewing or refunding the Senior Subordinated Notes (2013), the Senior Subordinated Notes (2014), the Senior Subordinated Notes (2015), any similar senior subordinated notes, any senior unsecured notes and any senior secured notes may be senior second-lien notes, senior unsecured notes and, to the extent capacity exists pursuant to the Minimum Floor Amount, senior first-lien secured notes (provided that the Minimum Floor Amount shall be reduced after the Determination Date by the aggregate principal amount of any senior first-lien secured Indebtedness incurred pursuant to this sentence, unless such Permitted Refinancing Indebtedness refinances, extends, renews or refunds senior first-lien secured Indebtedness).
Term C Dollar Lender |
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Amount
of Term C Dollar |
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Deutsche Bank AG New York Branch |
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$ |
250,000,000 |
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Credit Suisse, Cayman Islands Branch |
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$ |
250,000,000 |
|
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Each Term C Loan Lender hereby agrees that by the funding of its Term C Loans, such Person approves of and consents to each of the matters set forth in Section 3 which must be approved by, or which must be satisfactory to, the Term C Loan Lenders.
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Except as specifically amended above, the Credit Agreement, and the other Loan Documents and all other Ancillary Documents shall remain in full force and effect and are hereby ratified and confirmed.
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 the Term C Loan Lenders or the Administrative Agent under the Credit Agreement, the Loan Documents or the Ancillary Documents.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their duly authorized officers as of the day and year first above written.
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HUNTSMAN INTERNATIONAL LLC |
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By: |
/s/ J. Kimo Esplin |
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Name: J. Kimo Esplin |
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Title: Executive Vice President and Chief Financial Officer |
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DEUTSCHE BANK AG NEW YORK |
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By: |
/s/ David M. Waill |
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Name: David M. Waill |
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Title: Managing Director |
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By: |
/s/ Evelyn Thierry |
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Name: Evelyn Thierry |
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Title: Vice President |
Signature Page to Huntsman International LLC
Fourth Amendment to Credit Agreement
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DEUTSCHE BANK AG NEW YORK |
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BRANCH, as a Term C Loan Lender |
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By: |
/s/ David M. Waill |
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Name: David M. Waill |
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Title: Managing Director |
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By: |
/s/ Evelyn Thierry |
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Name: Evelyn Thierry |
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Title: Vice President |
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CREDIT SUISSE, CAYMAN ISLANDS |
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BRANCH, as a Term C Loan Lender |
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By: |
/s/ Robert Hetu |
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Name: Robert Hetu |
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Title: Managing Director |
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By: |
/s/ James Moran |
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Name: James Moran |
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Title: Managing Director |
Signature Page to Huntsman International LLC
Fourth Amendment to Credit Agreement
2
EXHIBIT A TO
FOURTH AMENDMENT TO THE
HUNTSMAN INTERNATIONAL LLC
CREDIT AGREEMENT
HUNTSMAN INTERNATIONAL LLC
OFFICERS CERTIFICATE
Re: Fourth Amendment to Credit Agreement dated as of June 22, 2009, among Huntsman International LLC, a Delaware limited liability company (the Borrower), Deutsche Bank AG New York Branch and Credit Suisse, Cayman Islands Branch, as lenders, and Deutsche Bank AG New York Branch, as Administrative Agent (the Administrative Agent) for the Lenders (the Fourth Amendment)
This Certificate is being delivered pursuant to Section 3.2(a) of the Fourth Amendment, with each capitalized term not defined herein having the meaning ascribed to it in the Fourth Amendment.
I, the undersigned, a Responsible Officer of the Borrower, do hereby certify on behalf of the Borrower, in my capacity as an officer of the Borrower and not in my individual capacity, that:
1. After giving effect to the Fourth Amendment, the representations and warranties set forth in Article VI of the Credit Agreement and in other Loan Documents are true and correct in all material respects as of the date hereof, except to the extent such representations and warranties are expressly made as of a specific date, in which event such representations and warranties are true and correct in all material respects as of such specified date.
2. After giving effect to the Fourth Amendment, no Event of Default or Unmatured Event of Default has occurred and is continuing or would occur as a result of the incurrence of the Term C Dollar Loans or the use of proceeds therefrom.
3. The conditions of Section 3 of the Fourth Amendment have been fully satisfied or waived (except that no opinion is expressed as to the Administrative Agents or Term C Loan Lenders satisfaction with any document, instrument or other matter).
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date first written above.
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HUNTSMAN INTERNATIONAL LLC |
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By: |
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Name: |
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Title: |
2
EXHIBIT B TO
FOURTH AMENDMENT TO THE
HUNTSMAN INTERNATIONAL LLC
CREDIT AGREEMENT
FORM OF
TERM C DOLLAR NOTE
$ |
New York, New York |
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June 23, 2009 |
FOR VALUE RECEIVED, the undersigned, Huntsman International LLC, a Delaware limited liability company (Borrower), hereby unconditionally promises to pay to the order of or its registered assigns (the Lender) at the office of , located at , in lawful money of the United States of America and in immediately available funds, the principal amount of (a) TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000), or, if less, (b) the aggregate unpaid principal amount of the Term C Dollar Loan made by the Lender to Borrower pursuant to Section 2.1(d) of the Credit Agreement hereinafter referred to. The principal amount of the Term C Dollar Loans evidenced hereby shall be payable in the amounts and at the times set forth in the Credit Agreement, including, without limitation, such Lenders Term C Dollar Loan Pro Rata Share of the amounts specified in the definition of Scheduled Term C Dollar Repayments, with any then outstanding principal amount of the Term C Dollar Loan evidenced hereby being payable on the Term C Loan Maturity Date. Borrower further agrees to pay interest in like money at such office on the unpaid principal amount hereof from time to time outstanding at the applicable interest rate per annum determined as provided in, and payable as specified in, Articles III and IV of the Credit Agreement.
The holder of this Term C Dollar Note is authorized to record the date, Type and amount of the Term C Dollar Loan made by the Lender pursuant to Section 2.1 of the Credit Agreement, each conversion thereof, the date of each interest rate continuation pursuant to Section 2.6 of the Credit Agreement and the principal amount subject thereto, the date and amount of each payment or prepayment of principal hereof, and in the case of each Eurocurrency Loan, the length of the Interest Period with respect thereto on the records of the Lender, and any such recordation shall (in the absence of manifest error) constitute prima facie evidence of the accuracy of the information endorsed; provided, however, that the failure to make any such endorsement shall not affect the obligations of Borrower in respect of the Term C Dollar Loan.
This Term C Dollar Note is one of the notes referred to in Section 3.2(b) of the Fourth Amendment to Credit Agreement dated as of June 22, 2009 (the Fourth Amendment), among Borrower, Deutsche Bank AG New York Branch, as Administrative Agent for the Lenders and Deutsche Bank AG New York Branch and Credit Suisse, Cayman Islands Branch, as lenders, and is subject to the provisions of the Fourth Amendment and of the Credit Agreement dated as of August 16, 2005 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement), among Borrower, Deutsche Bank AG New York Branch,
as Administrative Agent for the Lenders, and the financial institutions signatory thereto, and is subject to the provisions thereof, and is subject to optional and mandatory prepayment in whole or in part as provided therein. Terms defined in the Credit Agreement are used herein with their defined meanings unless otherwise defined herein.
Upon the occurrence and during the continuance of any one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Term C Dollar Note may become, or may be declared to be, immediately due and payable, all as provided therein. All parties now and hereafter liable with respect to this Term C Dollar Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind. THIS TERM C DOLLAR NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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HUNTSMAN INTERNATIONAL LLC |
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By: |
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Name: |
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Title: |
2
EXHIBIT C TO
FOURTH AMENDMENT TO THE
HUNTSMAN INTERNATIONAL LLC
CREDIT AGREEMENT
FORM OF
COMPLIANCE CERTIFICATE
The undersigned, a Responsible Financial Officer of Huntsman International LLC, a Delaware limited liability company (Borrower), does hereby certify that:
1. This Certificate is furnished pursuant to Section 2.1(a)(ii)(A) of that certain Credit Agreement dated as of August 16, 2005 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement), among Borrower, Deutsche Bank AG New York Branch, as Administrative Agent for the Lenders, and the financial institutions signatory thereto and pursuant to Section 3.2(f) of that certain Fourth Amendment to Credit Agreement dated as of June 22, 2009 among Borrower, Deutsche Bank AG New York Branch, as Administrative Agent of the Lenders, and Deutsche Bank AG New York Branch and Credit Suisse, Cayman Islands Branch, as lenders (the Fourth Amendment). Unless otherwise defined herein, capitalized terms used in this Certificate have the meanings assigned to those terms in the Credit Agreement.
2. The following is a true and correct computation of the Secured Leverage Ratio found in Section 9.1 of the Credit Agreement for the period of four full Fiscal Quarters immediately preceding the incurrence of the Term C Dollar Loans pursuant to the Fourth Amendment, giving pro forma effect to such incurrence:
Pro forma for the Period Ended March 31, 2009
($ Millions)
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Actual Q1 2009 |
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Pro forma Adjustments |
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Pro Forma Q1 2009 |
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Consolidated Debt that is secured |
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1,735 |
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9A |
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1,744 |
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Consolidated EBITDA |
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610 |
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610 |
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Actual |
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2.85 |
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2.86 |
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Covenant |
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3.75 |
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3.75 |
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A Proforma Adjustments to Debt as follows: |
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- Additional Term Loans (Term Loan C) |
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500 |
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- Redemption of 11.625% Sr. Secured Notes (principal) |
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(296 |
) |
- Cash (net of $8.6mm of est. call premiums) |
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(195 |
) |
- Net |
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9 |
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[signature page follows]
Witness my hand this day of June, 2009.
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HUNTSMAN INTERNATIONAL LLC |
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By: |
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Name: |
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Title: |
2
EXHIBIT D TO
FOURTH AMENDMENT TO THE
HUNTSMAN INTERNATIONAL LLC
CREDIT AGREEMENT
FORM OF
LEGAL OPINION
OF VINSON & ELKINS LLP
See attached.