UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): October 28, 2008
TRONOX INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
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| Delaware
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001-32669
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20-2868245 |
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| (State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.) |
211 N. Robinson, Suite 300
Oklahoma City, Oklahoma 73102
(Address of Principal Executive Offices, including Zip Code)
(405) 775-5000
(Registrant’s telephone number, including area code)
Check the appropriate box below if this Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
Waiver and Amendment to Credit Agreement
On October 28, 2008, Tronox Incorporated (the “Company”) and its subsidiary Tronox Worldwide
LLC (the “Borrower”) entered into a Waiver and Amendment to Credit Agreement (the “Waiver and
Amendment”) with certain lenders under the Credit Agreement, dated as of November 28, 2005, among
the Company, the Borrower, the lenders from time to time parties thereto, Lehman Brothers Inc. and
Credit Suisse, as joint lead arrangers and joint bookrunners, ABN Amro Bank N.V., as syndication
agent, JPMorgan Chase Bank, N.A. and Citicorp USA, Inc., as co-documentation agents, and Lehman
Commercial Paper Inc., as administrative agent, as amended by the First Amendment dated as of
March 12, 2007, the Second Amendment to the Credit Agreement and First Amendment to Guarantee and
Collateral Agreement dated as of February 8, 2008, and the Third Amendment to the Credit Agreement
and Second Amendment to Guarantee and Collateral Agreement dated as of July 17, 2008 (as amended,
the “Credit Agreement”).
Pursuant to the Waiver and Amendment, lenders holding a majority of the aggregate principal
amount of loans under the Credit Agreement agreed to waive (the “Waiver”) certain defaults and
events of default that may have occurred due to the Borrower’s (i) failure to comply for the period
of four consecutive fiscal quarters ending September 30, 2008 with Section 7.1(a) of the Credit
Agreement, which requires maintenance of a maximum Consolidated Total Leverage Ratio, and Section
7.1(b) of the Credit Agreement, which requires maintenance of a minimum Consolidated Interest
Coverage Ratio, and (ii) submission of the Borrowing Notice on September 30, 2008, or receipt of
any proceeds in respect thereof, at a time when any default or event of default referred to in
clause (i) above had occurred and was continuing. The Waiver shall expire upon the earlier to
occur of (i) November 25, 2008 and (ii) the occurrence of any event of default (other than any
default waived pursuant to the Waiver and Amendment) and delivery by any of the lenders of a notice
to the Borrower, while such event of default is continuing, stating that the Waiver is being
terminated (the “Waiver Period”). In addition, no lender shall be required to make any Loan or
issue any Letter of Credit during the Waiver Period, with the exception of Letters of Credit in an
aggregate amount not to exceed $2,000,000 at any time outstanding; provided, that the
issuance of any such Letter of Credit shall be subject to the condition that the issuing lender in
respect thereof shall receive cash collateral therefor in an amount equal to 105% of the amount of
such Letter of Credit, in addition to the other applicable conditions under the Credit Agreement.
The Company and the Borrower also waived, released and discharged the lenders from all claims which
the Company and the Borrower may have arising out of any lender’s failure to fund under the
Borrowing Notice submitted by the Borrower on September 30, 2008. Capitalized terms used in this
paragraph but not defined herein have the meaning ascribed to them in the Credit Agreement.
In connection with the Waiver and Amendment, the Company paid certain of the consenting
lenders a fee of 0.50% of the sum of such lender’s aggregate principal amount of the outstanding
term loan and the revolving credit commitment. The Borrower also agreed to pay all fees and
expenses incurred by certain lenders in connection with this Waiver and Amendment and other
documents being executed and delivered in connection herewith.
This description of the Waiver and Amendment is qualified in its entirety by the copy thereof
attached as Exhibit 99.1 hereto and which is incorporated by reference herein.
There is no assurance that the Company will not be in default under the Credit Agreement in
the future. If the Company were to be in default under the Credit Agreement, its ability to borrow
under the Credit Agreement would be impaired and the lenders could declare a default which could
ultimately cause all amounts due under the Credit Agreement to become immediately due and payable.
A copy of the Credit Agreement was filed as Exhibit 10.6 of the Company’s current report on
Form 8-K, filed with the Securities and Exchange Commission (“SEC”) on December 7, 2005. A copy of
the first amendment thereto was filed as Exhibit 10.19 of the Company’s Annual Report on Form 10-K
filed with the SEC on March 16, 2007. A copy of the second amendment thereto was filed as
Exhibit 99.1 of the Company’s current report on Form 8-K, filed with the SEC on February 13, 2008.
A copy of the third amendment thereto was filed as Exhibit 99.1 of the Company’s current report on
Form 8-K, filed with the SEC on July 21, 2008.
Amendment to and Waiver of Receivables Sale Agreement
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On October 28, 2008, Tronox Funding LLC (the “Seller”) and the Borrower entered into the Third
Amendment to and Waiver of Receivables Sale Agreement (“Amendment No. 3”) to the Receivables Sale
Agreement (the “Sale Agreement”) with The Royal Bank of Scotland plc and Amsterdam Funding
Corporation, dated as of September 26, 2007.
Pursuant to Amendment No.3, the Agent and the Purchasers under the Sale Agreement agreed to
waive (the “Sale Agreement Waiver”) certain defaults and events of default. The Waiver takes
effect on the date of Amendment No. 3 and shall expire on November 25, 2008 (the “Sale Agreement
Waiver Period”). During the Sale Agreement Waiver Period, the Seller shall not have the right to
request Incremental Purchases, and the Purchasers shall not be obligated to honor any such request
for Incremental Purchases, under the Sale Agreement. Unless and until a Waiver Termination (as
defined in Amendment No. 3) occurs, the Purchasers will permit Reinvestment Purchases to continue
and will not exercise any other rights or remedies it may have as a result of the occurrence of any
Existing Termination Event (as defined in Amendment No. 3). In addition, the parties agreed to
amend (1) Section 3.4 of the Sale Agreement thereby (i) authorizing the Agent to give notice at
any time (rather than only after the occurrence of a Termination Event (as defined in the Sale
Agreement)) to all Lock-Box Banks that it is exercising its rights under the Lock-Box Letters, and
(ii) eliminating the requirement that the Agent give prompt notice to the Seller upon exercising
the foregoing rights, (2) clause (a) of Section 3.5 of the Sale Agreement thereby (i) authorizing
the Agent at any time (rather than only after the occurrence of a Termination Event) to direct the
Obligors and the Lock-Box Banks to make all payments on the Receivables directly to the Agent, and
(ii) requiring the Agent to give prompt notice to the Seller of any such direction to the Obligors
and Lock-Box Banks. Capitalized terms used in this paragraph but not defined herein have the
meaning ascribed to them in the Sale Agreement.
As consideration for Amendment No. 3, the Company paid a fee of $382,500. The Seller also
agreed to pay all fees and expenses incurred by the Agent and its counsel in connection with this
Amendment No. 3 and other documents being executed and delivered in connection herewith, and all
invoiced fees and expenses of counsel to the Agent with respect to the facilities subject to the
Sale Agreement.
The description of Amendment No. 3 is qualified in its entirety by the copy thereof attached
as Exhibit 99.2 hereto and which is incorporated by reference herein.
There is no assurance that a Termination Event (as defined in the Sale Agreement) will not
occur under the Sale Agreement in the future. The occurrence of a Termination Event in the future
would adversely affect the rights of the Seller under the Sale Agreement.
A copy of the Sale Agreement was filed as Exhibit 10.1 of the Company’s current report on Form
8-K, filed with the SEC on October 2, 2007. A copy of the First Amendment to and Waiver of
Receivables Sale Agreement was filed as Exhibit 99.1 of the Company’s current report on Form 8-K,
filed with the SEC on August 4, 2008. A copy of the Second Amendment to and Waiver of Receivables
Sale Agreement was filed as Exhibit 99.1 of the Company’s current report on Form 8-K, filed with
the SEC on September 24, 2008.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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99.1 |
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Waiver and Amendment to Credit Agreement, dated October 28, 2008 |
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99.2 |
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Third Amendment to and Waiver of Receivables Sale Agreement, dated October 28, 2008 |
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