EXHIBIT 4(a)
EXECUTION COPY
AMENDED, RESTATED AND NOVATED
JUNIOR INTERCREDITOR AGREEMENT
AMENDED, RESTATED AND NOVATED JUNIOR INTERCREDITOR
AGREEMENT (this "Agreement") dated as of October 8, 2003 among SOLUTIA INC.,
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a Delaware corporation (the "Company"); SOLUTIA BUSINESS ENTERPRISES, INC.,
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a corporation duly organized and validly existing under the laws of the
State of New York ("Solutia New York"); each of the subsidiaries of the
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Company identified under the caption "SUBSIDIARY GUARANTORS" on the
signature pages hereto (individually, a "Subsidiary Guarantor" and,
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collectively, the "Subsidiary Guarantors" and, together with the Company and
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Solutia New York, the "Securing Parties"); ABLECO FINANCE LLC, as Collateral
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Agent for the Senior Secured Parties referred to below (in such capacity,
together with its successors and assigns in such capacity, the "Collateral
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Agent"); and HSBC BANK USA, a banking corporation duly organized and validly
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existing under the laws of the State of New York, as trustee under the 2009
Notes Indenture referred to below (in such capacity, together with its
successors in such capacity, the "Trustee").
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RECITALS
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A. The Company, CPFilms Inc., Monchem, Inc., Monchem
International, Inc., Solutia Systems, Inc., Citibank, N.A., as collateral
agent (the "Existing Collateral Agent"), and the Trustee have previously
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entered into a Junior Intercreditor Agreement dated as of July 25, 2002 (the
"Existing Junior Intercreditor Agreement"). The parties wish hereby to
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amend, restate and novate the Existing Junior Intercreditor Agreement on the
terms and conditions hereof.
B. The Company, Solutia New York, the Subsidiary
Guarantors, certain lenders (the "Solutia Lenders"), Wells Fargo Foothill,
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Inc., as administrative agent (in such capacity, together with its
successors and assigns, the "Solutia Administrative Agent"), Congress
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Financial Corporation (Central), as documentation agent (in such capacity,
together with its successors and assigns, the "Solutia Documentation Agent")
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and the Collateral Agent are parties to a Financing Agreement dated as of
the date hereof (as modified and supplemented and in effect from time to
time, the "Solutia Credit Agreement"), providing, subject to the terms and
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conditions thereof, for extensions of credit (by means of loans and letters
of credit) to be made by said lenders to the Company and the other borrowers
referred to therein in an aggregate principal or face amount not exceeding
$350,000,000.
C. The Company is also party to an Indenture dated as of
July 9, 2002 (as modified and supplemented by the Supplemental Indenture,
the Second Supplemental Indenture and the Third Supplemental Indenture, and
as further modified and supplemented and in effect from time to time, the
"2009 Notes Indenture") among the Company, SOI Funding Corp. and HSBC Bank
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USA, as trustee, pursuant to which SOI Funding Corp. has issued its 11.25%
Senior Secured Notes due 2009 (the "2009 Notes"), in an aggregate principal
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amount of $223,000,000
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as of July 9, 2002, and which 2009 Notes have been assumed by the Company
pursuant to a Supplemental Indenture thereto, and guaranteed by Solutia New
York and the Subsidiary Guarantors as provided in Section 10.01 thereof.
D. Pursuant to the Senior Security Documents (as defined
below), the Securing Parties have granted to the Collateral Agent liens on
substantially all of the property of the Securing Parties as collateral
security for the obligations of the Securing Parties under the Solutia
Credit Agreement and all other documents related thereto.
E. In connection with the foregoing, the parties hereto
wish to provide for the subordination of the liens granted pursuant to the
Junior Security Documents (as defined below) in favor of the Trustee to the
liens granted to the Collateral Agent pursuant to the Senior Security
Documents.
NOW THEREFORE, the parties hereby agree that the Existing
Junior Intercreditor Agreement is hereby amended, restated and novated in
its entirety as follows:
Section 1. Definitions, Etc.
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(a) Defined Terms. As used in this Agreement, the
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following terms have the meanings specified below:
"Advance" means a "Loan" (as defined in the Solutia Credit
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Agreement).
"Collateral" means, collectively, the assets of the
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Securing Parties subject to the Liens of the Junior Security
Documents.
"Domestic Subsidiary" means any Subsidiary of the Company
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organized under the laws of a State of the United States of
America.
"Existing Note Indentures" means, collectively, the
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indenture and/or the fiscal agency agreement, as applicable,
pursuant to which the following notes or debentures of the Company
or Solutia Europe, as applicable, have been issued: 7.375%
debentures due 2027, 6.72% debentures due 2037 and 6.25% euro notes
due 2005, as in effect on the date hereof and without giving effect
to any modifications or supplements after the date hereof.
"GAAP" means the generally accepted accounting principles
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in the United States of America.
"Junior Secured Obligations" has the meaning ascribed
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thereto in the Junior Security Agreement.
"Junior Security Agreement" means the Amended, Restated
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and Novated Junior Security Agreement dated as of the date hereof
among the Securing Parties, the Collateral Agent, and the Trustee,
as the same shall be modified and supplemented and in effect from
time to time.
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"Junior Security Documents" means (a) this Agreement,
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(b) the Junior Security Agreement, (c) the Amended, Restated and
Novated Junior Charge Over Shares Agreement dated as of the date
hereof between Monchem International, Inc. ("MII"), Solchem
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Netherlands C.V. ("Solutia Netherlands"), the Company, the
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Collateral Agent and the Trustee, (d) the Amended, Restated and
Novated Junior Pledge Agreement dated as of the date hereof between
MII, Solutia Investments, LLC ("Solutia Investments") Solutia
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Europe SA/NV, the Collateral Agent and the Trustee, (e) the Junior
Deed of Disclosed Pledge of Limited Partnership Interests and
Limited Partnership Assets, dated as of the date hereof, among MII,
Solutia Netherlands, the Company and the Collateral Agent and (f)
each other security agreement, pledge agreement, mortgage, deed of
trust, assignment agreement and other instrument (including any
Uniform Commercial Code financing statements) executed pursuant to
Section 3 or Section 5 of the Junior Security Agreement, as the
same shall be modified and supplemented and in effect from time to
time.
"Lender Obligations" means, collectively, all
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"Obligations" under and as defined in the Solutia Credit Agreement.
"Lien" means any lien, security interest or other charge
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or encumbrance of any kind, or any other type of preferential
arrangement, including the lien or retained security title of a
conditional vendor and any mortgage, easement, right of way or
other encumbrance on title to real property.
"Majority Solutia Lenders" means the "Required Lenders"
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under and as defined in the Solutia Credit Agreement.
"Person" means any individual, corporation (including a
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business trust), company, voluntary association, partnership,
limited liability company, joint venture, trust, unincorporated
organization or governmental authority or other entity of whatever
nature.
"Senior Guaranty Agreement" means, collectively, the
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guaranty set forth in Article XI of the Solutia Credit Agreement
and each other guaranty made by a Subsidiary Guarantor in favor of
one or more of the Senior Secured Parties, as the same shall be
modified and supplemented and in effect from time to time.
"Senior Payment Date" means the date on which all of the
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Lender Obligations have been paid in full in cash or otherwise
satisfied in a manner acceptable to the Senior Secured Parties and
letters of credit issued under the Solutia Credit Agreement have
expired or terminated or been cash collateralized in the manner
required by the Senior Credit Agreement and the "Revolving Credit
Commitments" under and as defined in the Solutia Credit Agreement
have been terminated.
"Senior Secured Obligations" means, collectively, (a) in
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the case of the Company or Solutia New York, the Lender
Obligations, (b) in the case of the Subsidiary Guarantors, the
obligations of the Subsidiary Guarantors in respect of the
Guaranteed Obligations (as defined in the Solutia Credit Agreement)
and (c) in the case of all
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Securing Parties, all present and future obligations of the Securing
Parties to the Senior Secured Parties, or any of them, under the
Senior Security Documents.
"Senior Secured Parties" means, collectively, the
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Collateral Agent, the Solutia Lenders, the Solutia Documentation
Agent, the Solutia Administrative Agent and any other Person which
has received the benefit of a lien on the Senior Collateral
pursuant to the Senior Security Documents.
"Senior Pledge Agreement" means the Pledge and Security
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Agreement dated the date hereof made by the Securing Parties in
favor of the Collateral Agent, for the benefit of the Senior
Secured Parties, as the same shall be amended, restated, modified
or supplemented and in effect from time to time.
"Senior Security Agreement" means the Security Agreement
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dated the date hereof made by the Securing Parties in favor of the
Collateral Agent, for the benefit of the Solutia Secured Parties,
as the same shall be amended, restated, modified or supplemented
and in effect from time to time.
"Senior Security Documents" means, collectively, (a) the
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Senior Security Agreement, (b) the Senior Pledge Agreement, (c) the
Charge Over Shares, dated as of the date hereof, among MII, the
Company, Solutia Netherlands and the Collateral Agent, (d) the
Share Pledge Agreement, dated as of the date hereof, among MII,
Solutia Investments and the Collateral Agent, on behalf of Senior
Secured Parties, (e) the Senior Deed of Disclosed Pledge of Limited
Partnership Interests and Limited Partnership Assets, dated as of
the date hereof, among MII, Solutia Netherlands, the Company and
the Collateral Agent and (f) any other pledge agreements, security
agreements, assignment agreements, mortgages, deeds of trust or
other instruments providing for collateral security for the Lender
Obligations from time to time executed, as the same shall be
amended, restated, modified or supplemented and in effect from time
to time.
"Subsidiary" has the meaning assigned to such term in the
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Existing Note Indentures, in each case as in effect on the date
hereof and without giving effect to any modifications or
supplements after the date hereof.
"2009 Noteholders" means each Person from time to time
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holding any of the 2009 Notes under the 2009 Notes Indenture.
(b) Terms Generally. The definitions of terms herein shall
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apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires
otherwise (i) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (ii) any reference herein to
any Person shall be construed to include such Person's
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successors and assigns, (iii) the words "herein", "hereof" and "hereunder",
and words of similar import, shall be construed to refer to this Agreement
in its entirety and not to any particular provision hereof, (iv) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules
to, this Agreement and (v) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
Section 2. Priority of Liens. It is the intent of the
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parties that the Liens created pursuant to the Junior Security Documents in
favor of the Trustee shall be junior and subject in all respects to the
Liens created pursuant to the Senior Security Documents. Accordingly,
anything herein or in any of the other Junior Security Documents, the 2009
Notes Indenture or any other agreement or instrument between any of the
Securing Parties and the Trustee or any of the 2009 Noteholders to the
contrary notwithstanding, the Trustee, on behalf of itself and each of the
2009 Noteholders, hereby agrees for the benefit of the Collateral Agent and
the Senior Secured Parties that, notwithstanding the order or time of
attachment, or the order, time or manner of perfection, or the order or time
of filing or recording of the Liens or other method of perfecting the Liens
created by the Junior Security Documents, to the extent such Lien in favor
of any of the Senior Secured Parties is valid and enforceable, the Liens
created pursuant to the Junior Security Documents shall be subordinate to
the Liens created pursuant to the Senior Security Documents (the "Senior
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Collateral").
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The Collateral Agent and the Senior Secured Parties may
release their Liens against all or any portion of the Collateral at any time
but are not entitled to release or affect the Liens of the Trustee which
shall thereafter continue to be valid and enforceable (as first priority
Liens) in and to such released Collateral unless the conditions in Section 3
hereof are met, at which time the Liens of the Trustee shall be released. If
(i) the Collateral Agent and the Senior Secured Parties have released all or
a portion of their Liens, (ii) the conditions for an automatic release of
the Liens of the Junior Secured Parties (as defined in the Junior Security
Agreement) securing the Junior Secured Obligations against the Senior
Collateral set forth in Section 3 shall not have been satisfied and (iii) at
any later time such Liens in favor of the Collateral Agent and the Senior
Secured Parties are reinstated or re-granted, the Collateral Agent shall,
subject to the applicable provisions of the 2009 Notes Indenture and the
Junior Security Documents, be entitled to (and at the request of the
Company, shall) subordinate the Liens of the Trustee and the 2009
Noteholders under the Junior Security Documents to such reinstated Liens in
favor of the Collateral Agent and the Senior Secured Parties, such
subordination to be on the same terms and subject to the same conditions as
provided in the first paragraph of this Section 2.
The Trustee, on behalf of itself and each 2009 Noteholder,
hereby waives any requirement on the part of the Collateral Agent or the
Senior Secured Parties in respect of marshalling of assets upon any exercise
of remedies by the Collateral Agent or the Senior Secured Parties and any
requirement that the Collateral Agent or any Senior Secured Party exercise
remedies with respect to collateral security for the Senior Secured
Obligations in any particular order or any particular manner.
Section 3. Release of Liens and Guarantees. The Liens of
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the Junior Secured Parties securing the Junior Secured Obligations against
the Senior Collateral will be released
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automatically (and without any action or consent by the Trustee or the 2009
Noteholders) at such time, if (1) the Lien of the Collateral Agent against
the Senior Collateral has been released and (2) all the Lender Obligations
are unsecured and the revolving facility thereunder (x) is in a minimum
amount of $50,000,000 and (y) has a tenor of no less than 364 days. In
addition, the Liens of the Junior Secured Parties securing the Junior
Secured Obligations against any particular item of Senior Collateral will be
released automatically (and without any action or consent by the Trustee or
the 2009 Noteholders) at such time as such item is sold or otherwise
disposed of and the proceeds thereof applied to the Senior Secured
Obligations to the extent required by the Solutia Credit Agreement or,
alternatively, paid over to the Trustee for application to the Junior
Secured Obligations. In either such event, the Trustee shall execute and
deliver such documents, and do such other acts and things, as may be
reasonably requested by the Company to confirm such release.
Section 4. Limitation on Rights and Remedies.
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Notwithstanding anything to the contrary herein, in the other Junior
Security Documents or in the 2009 Notes Indenture, the Trustee shall not be
entitled to exercise (whether upon its own initiative or at the direction of
any one or more of the 2009 Noteholders) any rights or remedies in respect
of the Liens under the Junior Security Documents, or to enforce any of the
Junior Security Documents, until the Senior Payment Date; provided that
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nothing herein shall prevent the 2009 Noteholders or the Trustee from
declaring an "Event of Default" under the 2009 Notes Indenture, accelerating
the Junior Secured Obligations, bringing suit thereon, filing proofs of
claims or otherwise exercising rights or remedies under the 2009 Notes
Indenture or the Junior Security Documents other than exercising rights or
remedies in respect of their Liens under the Junior Security Documents.
Section 5. Notice of Senior Payment Date. The Collateral
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Agent shall promptly notify the Trustee of the occurrence of the Senior
Payment Date.
Section 6. Miscellaneous
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6.01. Notices, Etc. All notices and other communications
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provided for hereunder shall be in writing, telecopied or
delivered:
(a) if to any of the Securing Parties, care of Solutia
Inc., 575 Maryville Centre Drive, St. Louis, Missouri 63141,
Attention: Vice President and Treasurer, telephone number (314)
674-8250, telecopier number (314) 674-6755, with a copy in care of
Solutia Inc., 575 Maryville Centre Drive, St. Louis, Missouri
63141, Attention: General Counsel, telephone number (314) 674-2126,
telecopier number (314) 674-2721;
(b) if to the Collateral Agent, at its address at Ableco
Finance LLC, 299 Park Avenue, 23rd Floor, New York, New York 10171,
Attention: Kevin Genda, telephone number (212) 891-2117, telecopier
number (212) 891-1541; and
(c) if to the Trustee, at its address at HSBC Bank USA,
452 Fifth Avenue, New York, New York 10018 (if mailed) or 10 East
40th Street, 14th Floor, New York, New York 10016 (if delivered),
Attention: Issuer Services, telephone number (212) 525-1351,
telecopier number (212) 525-1300.
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or, as to each party, at such other address as shall be designated by such
party in a written notice to the other parties. All such notices and
communications shall, when delivered or telecopied, be effective when
delivered or transmitted by telecopier, respectively.
6.02. Waivers. No failure on the part of the Collateral
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Agent to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power
or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies herein are
cumulative and are not exclusive of any remedies provided by law.
6.03. Amendments, Etc. Except as otherwise herein
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expressly provided, the terms of this Agreement and the other Junior
Security Documents may be waived, altered or amended only by an instrument
in writing duly executed by each Securing Party and the Trustee, with the
consent of the Collateral Agent (prior to the Senior Payment Date only) and
(if and to the extent required by the 2009 Notes Indenture) the holders of
the percentage of the principal amount of the 2009 Notes required by the
2009 Notes Indenture; provided that (i) no such amendment shall adversely
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affect the relative rights of any Senior Secured Party or 2009 Noteholder as
against any other Senior Secured Party or 2009 Noteholder without the prior
written consent of such first Senior Secured Party or 2009 Noteholder, and
(ii) any amendment or waiver (other than an amendment or a waiver releasing
any Collateral) of any provision of any Senior Security Document not
inconsistent with clause (i) above shall, at the written election of the
Company delivered to the Trustee (and without the action by any other
party), be deemed to be an amendment or a waiver of the corresponding
provision, if any, of the Junior Security Agreement or other Junior Security
Document with the same effect as if such amendment or waiver of such
provision had been agreed to in writing in compliance with this Section
6.03. Any such amendment or waiver shall be binding upon the Collateral
Agent (to the extent it has consented thereto), the Trustee, each Senior
Secured Party (to the extent the Collateral Agent has consented thereto),
each 2009 Noteholder and each Securing Party.
6.04. Governing Law. This Agreement shall be governed by,
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and construed in accordance with, the law of the State of New York.
6.05. Jurisdiction. Each party hereto hereby irrevocably
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and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any Junior Security Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in any such New
York State court or, to the extent permitted by law, in such federal court.
Each party hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement or any other Junior Security Document shall affect any right that
any party may otherwise have to bring any action or proceeding relating to
this Agreement or any other Junior Security Document in the courts of any
jurisdiction.
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6.06. Successors and Assigns. This Agreement shall be
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binding upon and inure to the benefit of the respective successors and
assigns of each of the parties hereto (provided that no Securing Party shall
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assign or transfer its rights or obligations hereunder without the prior
written consent of the Collateral Agent and the Trustee).
6.07. Counterparts. This Agreement may be executed in any
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number of counterparts, all of which taken together shall constitute one and
the same instrument and any of the parties hereto may execute this Agreement
by signing any such counterpart. Delivery of an executed counterpart of this
Agreement by facsimile or other electronic transmission shall constitute
valid delivery of an executed counterpart hereof.
6.08. Severability. If any provision hereof is invalid and
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unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (a) the other provisions hereof shall remain in full force and effect
in such jurisdiction and (b) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
6.09. Captions. The captions and section headings
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appearing herein are included solely for convenience of reference and are
not intended to affect the interpretation of any provision of this
Agreement.
6.10. Additional Subsidiary Guarantors. Pursuant to
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Section 4.19 of the 2009 Notes Indenture, any Subsidiary of the Company that
becomes a Subsidiary Guarantor thereunder after the date hereof, shall
become a "Subsidiary Guarantor" under this Agreement, and shall grant liens
on all property owned by it that constitutes Collateral under the Junior
Security Documents, by executing and delivering to the Collateral Agent and
the Trustee a Guarantee Assumption Agreement in the form of Exhibit A
hereto. Accordingly, upon the execution and delivery of any such Guarantee
Assumption Agreement by any such Subsidiary, such new Subsidiary shall
automatically and immediately, and without any further action on the part of
any Person, become a "Subsidiary Guarantor" and a "Securing Party" for all
purposes of this Agreement.
6.11. Termination. This Agreement may be terminated by the
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Company, the Collateral Agent and the Trustee upon a new senior credit
facility being entered into by the Company which is a "Credit Facility"
under and as defined in the 2009 Notes Indenture, but is not the Solutia
Credit Agreement (as defined hereunder), provided that substantially
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contemporaneously therewith a replacement of this Agreement and the Junior
Security Agreement are entered into on substantially the same terms hereof
and thereof, which new agreements shall reflect the new parties thereto (and
shall be on terms not any less favorable to the Trustee and the 2009
Noteholders than the terms hereof and thereof); provided, that the Trustee
shall be entitled to receive (a) written instructions directing it to
terminate this Agreement and (b) such other documents as it may reasonably
request or require evidencing that the terms of such new agreements are not
any less favorable to the Trustee and the 2009 Noteholders than the terms
hereof and thereof; provided further that nothing herein shall require the
Collateral Agent to deliver any such instructions or directions.
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6.12. Novation. The parties agree that Ableco Finance LLC
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shall hereby become the "Collateral Agent" hereunder (with all the rights
and obligations thereof) and that henceforth the Existing Collateral Agent
shall cease to be a party hereto and shall have no further rights or
obligations hereunder. Subject to such agreement, the Existing Collateral
Agent consents to the terms hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amended, Restated and Novated Junior Intercreditor Agreement to be duly
executed as of the day and year first above written.
SOLUTIA INC.
By: /s/ Kevin Wilson
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Name: C. Kevin Wilson
Title: Vice President and Treasurer
Solutia Inc.
SOLUTIA BUSINESS ENTERPRISES, INC.
By: /s/ Kevin Wilson
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Name: C. Kevin Wilson
Title: President
SUBSIDIARY GUARANTORS
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CPFILMS INC.
By: /s/ Kevin Wilson
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Name: C. Kevin Wilson
Title: Vice President
MONCHEM, INC.
By: /s/ Kevin Wilson
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Name: C. Kevin Wilson
Title: President
Monchem, Inc.
MONCHEM INTERNATIONAL, INC.
By: /s/ Kevin Wilson
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Name: C. Kevin Wilson
Title: President
Monchem International, Inc.
SOLUTIA SYSTEMS, INC.
By: /s/ Kevin Wilson
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Name: C. Kevin Wilson
Title: President
Solutia Systems, Inc.
Signature Page to
Junior Intercreditor Agreement
SOLUTIA INVESTMENTS, LLC
By: /s/ Kevin Wilson
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Name: C. Kevin Wilson
Title: President
COLLATERAL AGENT
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ABLECO FINANCE LLC, as Collateral Agent
By: /s/ Kevin Genda
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Name: Kevin Genda
Title: Senior Vice President and
Chief Credit Officer
TRUSTEE
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HSBC BANK USA, as Trustee
By: /s/ Harriet Drandoff
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Name: Harriet Drandoff
Title: Vice President
The undersigned is executing this Agreement
solely for purposes of Section 6.12 hereof:
CITIBANK, N.A., as Existing Collateral Agent
By: /s/ James N. Simpson
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Name: James N. Simpson
Title: Vice President
Citibank, N.A.
Signature Page to
Junior Intercreditor Agreement