OCR Document


EXECUTION COPY




















	 	
     FIFTH AMENDMENT and WAIVER dated as of October 17, 2003,

(this   "Amendment") 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 "Five-Year 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 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 Five-Year Credit Agreement;



                      WHEREAS, pursuant to the Five-Year 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 Five-Year Credit Agreement be modified

and waived in the manner provided in this Amendment;



                      WHEREAS, the Banks whose signatures appear below, constituting the Required Banks, hereby agree to amend the Five-Year Credit Agreement, which amendment shall become effective upon satisfaction of the conditions precedent 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:


                      SECTION I. Defined Terms. Capitalized terms used but not defined herein have the meanings assigned to them in the Five-Year Credit Agreement.



                      SECTION 2. Amendment ofthe Five-Year Credit Agreement. Pursuant to Section 11.05 of the Five-Year Credit Agreement, effective as of the Amendment No.5 Effective Date (as defined in Section 5), the parties hereto amend the Five-Year Credit Agreement as follows:


                       (a) Amendment of Section 1.01. The following definition is added to Section 1.01 in its appropriate alphabetical location:



                      "'Amendment No.5 Termination Date' means the first to occur of November 30, 2003, and any date on which there 

  shall occur or come to the attention of the Administrative Agent or any
  Bank any Default or Event of Default."


                      
  (b) Limited Amendment of Section 5.07(b). (i) Section 5.07(b)
  is hereby amended by adding at the end thereof the following: 



                      "Notwithstanding the foregoing, no Default shall exist under this Section 5.07(b) during the period commencing 

  on September 30, 2003, and ending on the Amendment No.5 Termination Date,
  as a result of the Interest Coverage Ratio for the four-

  fiscal quarter period ending on September 30, 2003, being less than 2.75 to
  1.00 so long as such ratio is not less than 2.50 to 1.00." 





2



                       (ii) On the Amendment No.5 Termination Date, the amendment provided for in paragraph (a) of this Section 2 shall 

  expire and be of no further force or effect and Section 5.07(b) shall be as
  in effect immediately prior to this Amendment, and the Banks 

shall have all rights and remedies to which they would have been entitled had this Amendment never become effective.


                       (c) Amendment of Section 5.17. Section 5.17 is hereby amended to read as follows:


                      "SECTION 5.17. Payment a/Other indebtedness. Neither the Company nor any Borrower will, nor will any of them permit any Subsidiary to, make or agree to payor make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of the principal of or interest on any indebtedness for borrowed money, or with respect to any securities or other financial instruments, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, defeasance, cancellation or termination of any such indebtedness, except (a) payment of indebtedness created under the Loan Documents, (b) payments of regularly scheduled interest datory principal payments as and when due in respect of any such indebtedness and ( c) payments of 

secured indebtedness that becomes due as a result of any voluntary sale or transfer permitted by this Agreement of the property or assets 

securing such indebtedness."

                       (d) Amendment of Section 6.0 l(b ). Section 6.0 I (b) is hereby amended to read as follows:

                      "(b) the Company or any other Borrower shall fail to observe or perform any applicable covenant contained in Sections 5.07, 5.08, 

5.09, 5.10, 5.12, 5.13, 5.15, 5.16, 5.17, and 5.18."

                      SECTION 3. Waiver. (a) The Banks hereby waive, solely for the period commencing on September 30, 2003 and ending on the Amendment No.5 Termination Date, any Event of Default existing exclusively under Section 5.07(b) of the Five-Year Credit

 Agreement that would not have existed had the amendment provided for in Section 2(b) been effective.


                      SECTION 4. 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 Five-Year 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 Five-Year Credit Agreement, as amended by this

Amendment;


                       (b) After giving effect to the amendments and waivers provided for in Sections 2 and 3, no Default or Event of Default has 

occurred and is continuing; and


                       (c) This Amendment, when duly executed and delivered by the Company to the Syndication Agent, shall constitute a legal,

valid and binding obligation of the Company enforceable against the Company in accordance with its terms.


                      SECTION 5. Conditions to Effectiveness. This Amendment shall become effective on the date (the "Amendment No.5

 Effective Date") on which each of the following conditions has been satisfied:


                       (a) 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; and



 
3





                       (b) The Administrative Agent and the Syndication Agent shall have received payment of all fees and expenses, included to the extent invoiced, reimbursement or payment of all out-ofpocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Company under the Five. Y ear Credit Agreement.


                      SECTION 9. Effect of Amendment. (a) On and after the Amendment No.5 Effective Date, each reference in the Five-Year Credit Agreement to "this Agreement", "hereunder", "herein", or words of like import shall mean and be a reference to the Five-Year 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 Five-Year 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 Five- Year 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 Five-Year 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 Five-Year 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
  10. 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 II. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND

GOVERNED BY THE LAW OF THE STATE OF NEW YORK.



                      SECTION 12. 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 13. 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 LLP.



4



 
                      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.


UNIROYAL CHEMICAL COMPANY, INC

Formerly known as

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),

      individually and or Syndication  Agent,


                           By


                              Name:

                              Title:


 

                              Name:

                              Title:


                              270 Park Avenue

                              New York, NY 10017




SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF


 
          BANK OF AMERICA, N.A.,


                           By


                              Name:

                              Title:


                              335 Madison Avenue

                              New York, NY 10017


 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF


 
             DEUTSCHE BANK AG NEW YORK BRANCH



                  By


                              Name:

                              Title:


 

                              Name:

                              Title:


                              31 W. 52nd Street

                              New York, NY 10019


 

 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF



 

 

 
                 MELLON BANK, N.A.,


                           By


                              Name:

                              Title:


                              One Mellon Bank Center

                              Pittsburgh, PA 15258


 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF


 

 
                 ABN AMRO BANK N.V.,


                           By


                              Name:

                              Title:


 

 

                           By


                              Name:

                              Title:


 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF


 
                  BANK HAPOALIM B.M.


                           By


                              Name:

                              Title:


                              Address:


 

 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF

    THE BANK OF NEW YORK,


                           By


                              Name:

                              Title:


                              Address:


 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF

                WACHOVIA BANK, N.A 



                             By


                              Name:

                              Title:


 

 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF


 
                FLEET NATIONAL BANK,


                           By


                              Name:

                              Title:


 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF



 

 
               FORTIS (USA) FINANCE LLC,


                           By


                              Name:

                              Title:

                            By


                              Name:

                              Title:


                              Address:


 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF


 
                BANK OF TOKYO-MITSUBISHI TRUST

                         COMPANY,


                           By


                              Name:

                              Title:


 

 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF



 

 
                   WestLB AG (f/k/a/. WESTDEUTSCHE LANDESBANK, Girozentrale), New York Br. 


                           By


                              Name:

                              Title:


 

 

                           By


                              Name:

                              Title:


 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF


 
                         THE BANK OF NOVA SCOTIA,


                           By


                              Name:

                              Title:


                              Address:


 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF


 

 
                         BNP PARIBAS,


                           By


                              Name:

                              Title:


 

 

                           By


                              Name:

                              Title:


 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF


 
                         BANCA NAZIONALE DEL LAVORO S.p.A NEW

                         YORK BRANCH,


                           By


                              Name:

                              Title:


                           By


                              Name:

                              Title:


 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF


 

 

 

 
                         Banca INTESA NEW YORK BRANCH,


                           By


                              Name:

                              Title:


                              Name:

                              Title:


 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF


 
                  Banca Monte dei Paschi di Siena S.p.A. 


                           By


                              Name:

                              Title:


 

                           By


                              Name:

                              Title:


 



SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF


 

 
               PEOPLE'S BANK,


                           By


                              Name:

                              Title:




SIGNATURE PAGE TO THE CROMPTON CORPORATION

       FIFTH AMENDMENT AND WAIVER DATED AS OF

         OCTOBER 17, 2003 TO THE FIVE-- YEAR CREDIT

       AGREEMENT DATED AS OF OCTOBER 28, 1999 AS

              AMENDED THROUGH THE DATE HEREOF


 
               HIBERNIA NATIONAL BANK,


                           By


                              Name:

                              Title: