Exhibit 10.1
AMENDMENT NO. 4 TO FINANCING AGREEMENT AND WAIVER
THIS AMENDMENT NO. 4 TO FINANCING AGREEMENT AND WAIVER, dated as of
March 17, 2006 (this "Amendment"), by and among Solutia Inc., as a debtor
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and debtor-in-possession, a Delaware corporation (the "Parent"), and Solutia
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Business Enterprises, Inc., as a debtor and debtor-in-possession, a New York
corporation, ("Solutia Business" and together with the Parent, each a
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"Borrower" and collectively, the "Borrowers"), each subsidiary of the Parent
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listed as a "Guarantor" on the signature pages hereto, each as a debtor and
debtor-in-possession (each a "Guarantor" and collectively, the
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"Guarantors"), the lenders from time to time party hereto (each a "Lender"
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and collectively, the "Lenders"), the issuers from time to time party hereto
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(each an "Issuer" and collectively, the "Issuers"), Citicorp USA, Inc.
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("CUSA"), as collateral agent for the Lenders (in such capacity, the
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"Collateral Agent"), CUSA, as administrative agent for the Lenders (in such
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capacity, the "Administrative Agent"), and CUSA and Wells Fargo Foothill,
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LLC, as co-documentation agents for the Lenders, (in such capacity, the
"Documentation Agent" and together with the Collateral Agent and the
-------------------
Administrative Agent, each an "Agent" and collectively, the "Agents").
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RECITALS:
WHEREAS, the Borrowers, the Guarantors, the Lenders, the Issuers,
and the Agents have heretofore entered into that certain Financing
Agreement, dated as of January 16, 2004, as amended by that certain
Amendment No. 1 to Financing Agreement and Waiver, dated as of March 1,
2004, that certain Amendment No. 2 to Financing Agreement and Waiver (the
"Second Amendment"), dated as of July 20, 2004, and that certain Amendment
----------------
No. 3 to Financing Agreement and Waiver, dated as of June 1, 2005 (the
"Third Amendment") (as so amended, the "Financing Agreement");
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WHEREAS, the Financing Agreement consists of (a) a multiple draw
Term Loan A in the aggregate principal amount of $50,000,000 which loan was
available to be drawn from time to time following the Facility Effective
Date and was drawn in full prior to the date hereof, (b) a single draw Term
Loan B in the aggregate principal amount of $300,000,000 which loan was
drawn in full on the Facility Effective Date, and (c) a revolving credit
facility in an aggregate principal amount not to exceed $175,000,000 at any
time outstanding, which revolving credit facility includes a letter of
credit subfacility for the issuance of letters of credit;
WHEREAS, (i) the Borrowers and the Guarantors have asked (a) the
Lenders to make additional post-petition loans and advances to the Borrowers
consisting of an additional single draw Term Loan B in the aggregate
principal amount of $300,000,000 which loan shall be drawn in full on the
Fourth Amendment Effective Date (as defined herein), (b) the existing Term
Loan A Lenders to convert the Term Loan A Loans to Term Loan B Loans, and
(c) the Lenders to amend the Financing Agreement in certain other respects,
as hereinafter provided, and (ii) the New Term Loan B Lenders (as defined in
Section 2.01, below) have severally, and not jointly, agreed to extend the
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New Term B Loans, the Term Loan A Lenders have agreed to convert their Term
Loan A
Loans to Term Loan B Loans and the Lenders have agreed to make such other
amendments subject to the terms and conditions hereinafter set forth;
WHEREAS, the Borrowers, the Guarantors, the Lenders, the Issuers
and the Agents now desire to amend the Financing Agreement in certain
respects, as hereinafter provided; and
NOW, THEREFORE, in consideration of the premises set forth above,
the terms and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Unless otherwise defined or the
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context otherwise requires, terms for which meanings are provided
in the Financing Agreement shall have such meanings when used in
this Amendment.
ARTICLE II
AMENDMENTS
Section 2.01 Amendments to Section 1.01 of the Financing
-------------------------------------------
Agreement.
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(a) Section 1.01 of the Financing Agreement is hereby
amended by deleting the words "and $25,000,000 for the period commencing
January 1, 2006, and ending upon the scheduled Final Maturity Date,"
appearing in clause (c)(ii) of the definition of "Consolidated Net Income"
and inserting in lieu thereof the words "$55,000,000 in 2006, and
$20,000,000 for the period commencing January 1, 2007, and ending upon the
scheduled Final Maturity Date,".
(b) Section 1.01 of the Financing Agreement is hereby
amended by inserting at the end of the definition of "Extraordinary
Receipts" the following text:
"; and provided, further, that 'Extraordinary Receipts' shall not
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include distributions or dividends received by any Loan Party or
Subsidiary in the ordinary course of business (other than
distributions and dividends of the proceeds of or amounts otherwise
received in connection with the sale of all or any material portion
of the assets of the entity paying the dividend or distribution)".
(c) Section 1.01 of the Financing Agreement is hereby
amended by deleting the text "June 19, 2006," appearing in the definition of
"Final Maturity Date" and inserting in lieu thereof the text "March 31,
2007,".
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(d) Section 1.01 of the Financing Agreement is hereby
amended by inserting the text "each of the Supplemental Bankruptcy Court
Orders," immediately following the text "Bankruptcy Court Orders" appearing
in the definition of "Loan Documents".
(e) Section 1.01 of the Financing Agreement is hereby
amended by (i) deleting the word "and" at the end of clause (k) of the
definition of "Permitted Indebtedness", (ii) deleting the "." at the end of
clause (l) of such definition and inserting in lieu thereof the text ";
and", and (iii) adding the following text at the end of such definition:
"(m) Indebtedness incurred solely for the purpose of refinancing
the Euro Notes; provided, that such refinancing (i) shall not have
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a shorter weighted average life or earlier maturity date than the
Euro Notes, (ii) shall not have a higher interest rate than the
Euro Notes, (iii) shall not be secured by a Lien on any asset of
any Loan Party other than assets currently securing the Euro Notes
and (iv) shall otherwise be on terms and conditions that, when
taken as a whole, are at least as favorable to, and no more
restrictive upon, Parent and its Subsidiaries as the Euro Notes;
and
"(n) Indebtedness of any direct or indirect Foreign Subsidiary to
any Loan Party incurred with respect to the China Expansion in an
aggregate principal amount outstanding at any time not exceeding
(when combined with equity investments made in reliance on Section
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8.02(e)(xvii)) $25,000,000; provided, that the incurrence of any
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such Indebtedness shall be subject to applicable approvals of the
Bankruptcy Court; and provided, further, that, after giving effect
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thereto, Availability shall be greater than or equal to
$50,000,000."
(f) Section 1.01 of the Financing Agreement is hereby
amended by (i) deleting the word "and" at the end of clause (m) of the
definition of "Permitted Liens", (ii) deleting the "." at the end of clause
(n) of such definition and inserting in lieu thereof the text "; and", and
(iii) adding the following text at the end of such definition:
"(o) Liens on the Maryville Property to secure obligations incurred
in connection with the Maryville Restructuring; and
"(p) Liens in favor of the PBGC that are (A) junior to the liens
and claims of the of the Collateral Agent for the benefit of the
Agents and the Lenders and "silent" through the Final Maturity
Date, and (B) junior to the liens securing the Borrowers' exit
financing facility and "silent" through the term of such facility,
in each case pursuant to an intercreditor agreement on terms
satisfactory to the Administrative Agent (or, in the case of the
exit financing facility, on terms satisfactory to the
administrative agent under such facility)."
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(g) Section 1.01 of the Financing Agreement is hereby
amended by deleting the phrase "clauses (b), (c), (i), and (j)" appearing in
the definition of "Permitted Priority Liens" and inserting in lieu thereof
the phrase "clauses (b), (c), (i), (j), and (p)".
(h) Section 1.01 of the Financing Agreement is hereby
amended by amending and restating the definition of "Required Term A/B
Lenders" in its entirety as follows:
"'Required Term A/B Lenders' means (x) prior to the Fourth
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Amendment Effective Date, (i) the Term Loan A Lenders whose Pro
Rata Share (as defined under clause (b) of such definition) of the
Term Loan A Commitments aggregate at least 51% and (ii) the Term
Loan B Lenders whose Pro Rata Share (as defined under clause (c) of
such definition) of the Term Loan B Commitments aggregate at least
51%, and (y) on and after the Fourth Amendment Effective Date, the
Term Loan B Lenders whose Pro Rata Share (as defined under clause
(c) of such definition) of the Term Loan B Commitments aggregate at
least 51%."
(i) Section 1.01 of the Financing Agreement is hereby
amended by amending and restating the definition of "Supermajority Consent"
in its entirety as follows:
"'Supermajority Consent' means (x) prior to the Fourth Amendment
---------------------
Effective Date, the consent of each of (i) the Revolving Loan
Lenders whose Pro Rata Shares (as defined under clause (a) of such
definition) of the Revolving Credit Commitments aggregate at least
66.667%, (ii) the Term Loan A Lenders whose Pro Rata Share (as
defined under clause (b) of such definition) of the Term Loan A
Commitments aggregate at least 66.667% and (iii) the Term Loan B
Lenders whose Pro Rata Share (as defined under clause (c) of such
definition) of the Term Loan B Commitments aggregate at least
66.667%, and (y) on and after the Fourth Amendment Effective Date,
the consent of each of (i) the Revolving Loan Lenders whose Pro
Rata Shares (as defined under clause (a) of such definition) of the
Revolving Credit Commitments aggregate at least 66.667%, and (ii)
the Term Loan B Lenders whose Pro Rata Share (as defined under
clause (c) of such definition) of the Term Loan B Commitments
aggregate at least 66.667%."
(j) Section 1.01 of the Financing Agreement is hereby
amended by amending and restating the definition of "Term Loan A" in its
entirety as follows:
"'Term Loan A' means, collectively, the loans made by the Term Loan
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A Lenders to the Borrowers pursuant to Section 2.01(a)(ii) prior to
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the Fourth Amendment Effective Date, which loans were converted in
their entirety to Converted Term Loan B Loans on the Fourth
Amendment Effective Date pursuant to Section 2.01(a)(ii) on such
-------------------
date."
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(k) Section 1.01 of the Financing Agreement is hereby
amended by amending and restating the definition of "Term Loan B" in its
entirety as follows:
"Term Loan B" means, collectively, the loans made by the Term Loan
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B Lenders to the Borrowers on the Facility Effective Date and the
Fourth Amendment Effective Date pursuant to Section 2.01(a)(iii)
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and shall include in all events, each Original Term Loan B, each
Converted Term Loan B and each New Term Loan B."
(l) Section 1.01 of the Financing Agreement is hereby
amended by amending and restating the definition of "Term Loan B Commitment"
in its entirety as follows:
"'Term Loan B Commitment' means with respect to each Term Loan B
----------------------
Lender, the commitment of such Lender to make a Term Loan B to the
Borrowers (or, in the case of a Converted Term Loan B Lender, to
convert its Term Loan A Loans to Term Loan B Loans pursuant to
Section 2.01(a)(ii)) in the amounts and on the dates set forth
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opposite such Lender's name in Schedule 1.01(A), as such amount may
----------------
be terminated or reduced from time to time in accordance with the
terms of this Agreement."
(m) Section 1.01 of the Financing Agreement is hereby
amended by adding the following text immediately prior to the period at the
end of the definition of "Termination Event": " and that no Termination
Event shall be deemed to have occurred with respect to the Solutia Inc.
Employees' Pension Plan as a result of an application for a minimum funding
waiver under Section 412(d) of the Code or Section 303 of ERISA or as a
result of any failure to make required contributions for which a funding
waiver has been applied for and not denied".
(n) Section 1.01 of the Financing Agreement is hereby
amended by inserting the following definitions in the proper alphabetical
position:
"'China Expansion' means the construction of a SAFLEX(R) PVB
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interlayer plant in Suzhou, China."
"'Converted Term Loan B' means, collectively, the loans originally
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made to the Borrowers as Term Loan A Loans under this Agreement
pursuant to Section 2.01(a)(ii) and converted to Term Loan B Loans
-------------------
hereunder on the Fourth Amendment Effective Date pursuant to the
terms of the Fourth Amendment and such Section 2.01(a)(ii)."
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"'Converted Term Loan B Lenders' means, collectively, each of the
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Term Loan B Lenders that held all or any portion of the unpaid
principal amount of the Term Loan A on the Fourth Amendment
Effective Date."
"'Fourth Amendment' means that certain Fourth Amendment to
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Financing Agreement, dated as of March 17, 2006, by and among the
Borrowers,
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the Guarantors party thereto, the Lenders and Issuers party thereto,
and the Agents, as amended, supplemented, or otherwise modified from
time to time."
"'Fourth Amendment Effective Date' means the date upon which the
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Fourth Amendment becomes effective pursuant to Section 4.01
thereof."
"'Maryville Property' means Parent's principal headquarters located
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at 575 Maryville Centre Drive, St. Louis, Missouri, including both
the land and the building thereon."
"'Maryville Restructuring' means the restructuring of the financing
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arrangement entered into by and between Solutia and United Missouri
Bank & Trust, N.A. on August 26, 1999 to finance the acquisition
and construction of the Maryville Property."
"'New Term Loan B' means, collectively, the loans made by certain
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of the Term Loan B Lenders to the Borrowers on the Fourth Amendment
Effective Date pursuant to Section 2.01(a)(iii)."
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"'New Term Loan B Lenders' means, collectively, each of the Term
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Loan B Lenders which had a Term Loan B Commitment to make a New
Term Loan B on the Fourth Amendment Effective Date."
"'Original Term Loan B' means, collectively, the loans made by
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certain of the Term Loan B Lenders to the Borrowers on the Facility
Effective Date under this Agreement as originally executed on
January 16, 2004 pursuant to Section 2.01(a)(iii)."
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"'Original Term Loan B Lenders' means, collectively and as the
----------------------------
context requires, each of the Term Loan B Lenders which had a Term
Loan B Commitment to make an Original Term Loan B (or a Term Loan B
Lender that held all or any portion of the unpaid principal amount
of the Original Term Loan B on the Fourth Amendment Effective
Date)."
"'Supplemental Bankruptcy Court Orders' means the collective
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reference to the orders of the Bankruptcy Court entered on (i) July
20, 2004 approving the Second Amendment (as defined in the Fourth
Amendment), (ii) on July 25, 2005 approving the Third Amendment (as
defined in the Fourth Amendment) and (ii) March 14, 2006
approving the Fourth Amendment.
Section 2.02 Amendments to Section 2.01 of the Financing
-------------------------------------------
Agreement.
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(a) Section 2.01(a) of the Financing Agreement is hereby
amended by inserting the following text at the end of clause (ii) thereof:
6
"; provided, that, effective immediately upon the Fourth Amendment
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Effective Date and notwithstanding anything in this Agreement to
the contrary, (A) the Term Loan A Commitment of each Term Loan A
Lender shall automatically and permanently be reduced to zero, and
(B) all Term Loan A Loans outstanding at such time shall
automatically be converted to Term Loan B Loans and shall be
subject to, and be entitled to, all of the terms, conditions and
benefits afforded to Term Loan B Loans hereunder (and, for
avoidance of doubt, the outstanding principal amount of Term Loan A
Loans shall be deemed to be zero for all purposes hereof) and each
Term Loan A Lender shall automatically be and become a Converted
Term Loan B Lender to the full extent of its holdings of the
Converted Term Loan B Loans hereunder."
(b) Section 2.01(a) of the Financing Agreement is hereby
further amended by amending and restating clause (iii) thereof in its
entirety as follows:
"(iii) (A) each Original Term Loan B Lender is the holder of
Original Term Loan B Loans made to the Borrowers on the Facility
Effective Date in an aggregate principal amount equal to the Term
Loan B Commitment relating to the Original Term Loan B Loans set
forth opposite such Lender's name in Schedule 1.01(A), and (B) each
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New Term Loan B Lender severally agrees to make a New Term Loan B
to the Borrowers on the Fourth Amendment Effective Date in an
aggregate principal amount not to exceed the amount of such
Lender's Term Loan B Commitment as of such date relating to the
New Term Loan B Loans set forth opposite such Lender's name in
Schedule 1.01(A)."
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(c) Section 2.01(b) of the Financing Agreement is hereby
amended by amending and restating clause (iii) thereof in its entirety as
follows:
"(iii) (A) the aggregate principal amount of the Original Term Loan
B made on the Facility Effective Date shall not exceed the Total
Term Loan B Commitment identified on Schedule 1.01(A) as relating
to the Original Term Loan B Loans, and (B) the aggregate principal
amount of the New Term Loan B made on the Fourth Amendment
Effective Date shall not exceed the Total Term Loan B Commitment
identified on Schedule 1.01(A) as relating to the New Term Loan B
Loans;".
Section 2.03 Amendments to Section 2.02 of the Financing
-------------------------------------------
Agreement.
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(a) Section 2.02(a) of the Financing Agreement is hereby
amended by amending and restating clause (i) of the third sentence thereof
as follows: "(i) the principal amount of the proposed Loan, which, in the
case of the Original Term Loan B, shall fully utilize the Total Term Loan B
Commitment identified on Schedule 1.01(A) as relating to the Original Term
----------------
Loans on the Facility Effective Date, and which, in the case of the New Term
Loan B, shall fully utilize the Total Term Loan B Commitment
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identified on Schedule 1.01(A) as relating to the New Term Loan B Loans on
----------------
the Fourth Amendment Effective Date,".
(b) Section 2.02(a) of the Financing Agreement is hereby
further amended by amending and restating clause (iii) of the third sentence
thereof as follows: "the proposed borrowing date, which must be a Business
Day, with respect to the Revolving Loans, must be on or after the Facility
Effective Date, in the case of the Original Term Loan B, must be the
Facility Effective Date, and in the case of the New Term Loan B, must be the
Fourth Amendment Effective Date,".
Section 2.04 Amendments to Section 2.03 of the Financing
-------------------------------------------
Agreement. Section 2.03(a) of the Financing Agreement is amended by
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amending and restating clause (i) thereof in its entirety as follows:
"[intentionally omitted]."
Section 2.05 Amendments to Section 2.04 of the Financing
-------------------------------------------
Agreement. Section 2.04(a)(ii) of the Financing Agreement is hereby
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amended by deleting the text "4.25%" contained therein and
inserting in lieu thereof the text "3.50%".
Section 2.06 Amendments to Section 2.05 of the Financing
-------------------------------------------
Agreement.
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(a) Section 2.05(a)(i)(B) of the Financing Agreement is
hereby amended and restated in its entirety as follows:
"(B)(1) the Total Term Loan B Commitment identified on Schedule
1.01(A) as relating to the Original Term Loan B Loans shall
terminate on the Facility Effective Date, and (2) the Total Term
Loan B Commitment identified on Schedule 1.01(A) as relating to the
Converted Term Loan B Loans or the New Term Loan B Loans shall
terminate on the Fourth Amendment Effective Date."
(b) Section 2.05(a)(iv) of the Financing Agreement is
amended by amending and restating such clause in its entirety as follows:
"[intentionally omitted]."
(c) Section 2.05(c)(iii) of the Financing Agreement is
hereby amended by deleting the figure "$10,000,000" in the first place such
figure appears therein and inserting in lieu thereof the figure
"$20,000,000".
(d) Section 2.05(c)(iv) of the Financing Agreement is
hereby amended by deleting the phrase "Section 2.05(c)(vii)(B)" contained
-----------------------
therein and inserting in lieu thereof the phrase "Sections 2.05(c)(vii)(B)
------------------------
and (C)".
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(e) Section 2.05(c)(vii) of the Financing Agreement is
hereby amended by deleting the figure "$17,500,000" in each place such
figure appears in clause (B) thereof and inserting in lieu thereof the
figure "$30,000,000".
(f) Section 2.05(c)(vii) of the Financing Agreement is
hereby further amended by inserting at the end of clause (B) thereof the
following text:
"; and (C) the Borrowers shall not be required to make a prepayment
under clause (iv) of this Section 2.05(c) in connection with the
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lesser of (i) $25,000,000 in the aggregate (for each of (A) and (B)
below), and
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(ii) 50% individually (for each of (A) and (B) below), of (A) any
Extraordinary Receipts received with respect to Item 1 on
Schedule 2.05 and (B) any Extraordinary Receipts received with
respect to Item 2 on Schedule 2.05.
(g) Section 2.05(d)(i) of the Financing Agreement is
hereby amended by inserting the words "of a Loan Party" immediately
following the word "Inventory" in each place it appears in such Section.
(h) Section 2.05(d)(ii) of the Financing Agreement is
hereby amended by amending and restating clause (B) thereof in its entirety
as follows: "(B) the remaining proceeds shall be applied first, to the Term
Loan B until paid in full, and second, to the Revolving Loans until paid in
full".
(i) Section 2.05(d)(iii) of the Financing Agreement is
hereby amended by amending and restating such clause in its entirety as
follows:
"(iii) the proceeds from any prepayment event set forth in clause
(iii) of Section 2.05(c) (other than with respect to Dispositions
---------------
described in clauses (i) or (ii) of this Section 2.05(d)), clause
---------------
(iv) of Section 2.05(c) (other than proceeds from any insurance
---------------
policy or condemnation award with respect to Inventory of a Loan
Party) or clause (v) of Section 2.05(c) shall be applied first, to
---------------
the Term Loan B until paid in full, and, second, to the Revolving
Loans until paid in full."
Section 2.07 Amendments to Section 5.04 of the Financing
-------------------------------------------
Agreement. Section 5.04(c) of the Financing Agreement is hereby
---------
amended by deleting the text "the Term Loan A or" each time it
appears in such Section.
Section 2.08 Amendments to Section 7.01 of the Financing
-------------------------------------------
Agreement.
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(a) Section 7.01(i) of the Financing Agreement is hereby
amended and restated in its entirety as follows:
"(i) ERISA. Except as set forth on Schedule 7.01(i), (i) each
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Employee Plan is in compliance in all material respects with ERISA
and the Internal Revenue Code, (ii) no Termination Event has
occurred on or prior to the Facility Effective Date nor is
reasonably expected to result in a Material Adverse Effect after
the Facility Effective Date with respect to any Employee Plan,
(iii) the most recent annual report (Form 5500 Series) with respect
to each Employee Plan, including any required Schedule B (Actuarial
Information) thereto, copies of which have been filed with the
Internal Revenue Service and delivered to the Administrative Agent
and the Collateral Agent, is complete and correct in all material
respects and fairly presents the funding status of such Employee
Plan, and since the date of such report there has been no material
adverse change in such
9
funding status, (iv) copies of each agreement entered into with the
PBGC, the U.S. Department of Labor or the Internal Revenue Service
with respect to any Employee Plan have been delivered to the
Administrative Agent and the Collateral Agent, (v) no Employee Plan
had an accumulated or waived funding deficiency or permitted
decrease which would create a deficiency in its funding standard
account or has applied for an extension of any amortization period
within the meaning of Section 412 of the Internal Revenue Code at
any time during the previous 60 months. Except as set forth on
Schedule 7.01(i), no Loan Party or any of its ERISA Affiliates has
----------------
incurred any withdrawal liability in excess of $1,000,000 under
ERISA with respect to any Multiemployer Plan, or is aware of any
facts indicating that it or any of its ERISA Affiliates may in the
future incur any such withdrawal liability. No Loan Party or any of
its ERISA Affiliates or any fiduciary of any Employee Plan has (A)
engaged in a nonexempt prohibited transaction described in Sections
406 of ERISA or 4975 of the Internal Revenue Code, (B) failed to
pay any required installment or other payment required under
Section 412 of the Internal Revenue Code on or before the due date
for such required installment or payment (other than the failure to
make any contribution for which a minimum funding waiver has been
applied for and not denied) (C) engaged in a transaction within the
meaning of Section 4069 of ERISA or (D) incurred any liability to
the PBGC which remains outstanding other than the payment of
premiums or the provision of security pursuant to a minimum funding
waiver and there are no premium payments which have become due
which are unpaid. Except as set forth on Schedule 7.01(i), there
----------------
are no pending or, to the best knowledge of any Loan Party,
threatened claims, actions, proceedings or lawsuits (other than
claims for benefits in the normal course) asserted or instituted
against (x) any Employee Plan or its assets, (y) any fiduciary with
respect to any Employee Plan, or (z) any Loan Party or any of its
ERISA Affiliates with respect to any Employee Plan, except for
claims, actions, proceedings or lawsuits asserted or instituted
which could not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. Except as set
forth on Schedule 7.01(i) and except as required by Section 4980B
----------------
of the Internal Revenue Code, no Loan Party or any of its ERISA
Affiliates maintains an employee welfare benefit plan (as defined
in Section 3(1) of ERISA) which provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or
former employee of any Loan Party or any of its ERISA Affiliates or
coverage after a participant's termination of employment."
(b) Section 7.01(bb) of the Financing Agreement is hereby
amended by amending and restating the first sentence thereof in its entirety
as follows:
"There is no location at which any Loan Party has any Collateral
(except for Inventory in transit) with an aggregate Book Value in
excess of $500,000 other than (i) those locations listed on
Schedule 7.01(bb), (ii)
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any other locations identified in writing by the Administrative
Borrower to the Collateral Agent (and, with respect to Inventory,
the Administrative Agent) from time to time, and (iii) those
locations set forth on audit reports prepared by or delivered to
the Collateral Agent or the Administrative Agent in connection with
audits of the Borrowers conducted pursuant to or in connection with
the Loan Documents from time to time."
(c) Section 7.01(dd) of the Financing Agreement is hereby
amended by inserting the text "and each of the Supplemental Bankruptcy Court
Orders" immediately following the text "Bankruptcy Court Order" in such
Section.
Section 2.09 Amendments to Section 8.02 of the Financing
-------------------------------------------
Agreement.
---------
(a) Section 8.02(a) of the Financing Agreement is hereby
amended by inserting the following text at the end of such Section: ", and
Liens described in clause (p) of the definition of Permitted Liens".
(b) Section 8.02(c) of the Financing Agreement is hereby
amended by deleting the text "(or agree to do any of the foregoing)" in each
place such text appears in such Section and inserting in lieu thereof the
text "(or agree to do any of the foregoing, except to the extent that the
consummation of the Loan Parties' plan of reorganization is a condition to
each Loan Party's obligations under any such agreement)".
(c) Section 8.02(c)(iv) of the Financing Agreement is
hereby amended and restated in its entirety as follows:
"any Subsidiary that is not a Significant Subsidiary (determined
without regard to the consolidated earnings test contained in such
definition) nor a Loan Party may wind-up its business and
operations, liquidate or dissolve so long as (A) no other provision
of this Agreement would be violated thereby, and (B) no Default or
Event of Default shall have occurred and be continuing either
before or after giving effect to such transaction;"
(d) Section 8.02(e) of the Financing Agreement is hereby
amended by (i) deleting the text "and" appearing at the end of Section
8.02(e)(xv), (ii) replacing the ".", appearing the end of Section
8.02(e)(xvi) with the following text: "; and" and inserting the following
text as a new Section 8.02(e)(xvii) and restated in its entirety as follows:
"(xvii) loans by any Loan Party to any direct or indirect Foreign
Subsidiary permitted under clause (n) of the definition of
"Permitted Indebtedness" and other investments by any Loan Party in
any direct or indirect Foreign Subsidiary in respect of the China
Expansion in an aggregate amount outstanding at any time not
exceeding $25,000,000, provided that such loans or equity
--------
investments shall be subject to
11
applicable approvals of the Bankruptcy Court; and provided,
--------
further, that, after giving effect thereto, Availability shall be
-------
greater than or equal to $50,000,000;"
(e) Section 8.02(g) of the Financing Agreement is hereby
amended by deleting the words "and $95,000,000 for the period commencing
January 1, 2006, and ending upon the scheduled Final Maturity Date "
appearing therein and inserting in lieu thereof the words "$130,000,000 in
Fiscal Year 2006, and $45,000,000 for the period commencing January 1, 2007,
and ending upon the scheduled Final Maturity Date."
(f) Section 8.02(m)(iii)(A) of the Financing Agreement is
hereby amended and restated by inserting the following text: "and item 1 on
Part V" immediately following text: "Part II" appearing therein.
(g) Section 8.02(p) of the Financing Agreement is hereby
amended by (i) adding the following text to the beginning of clause (iii)
thereof "except pursuant to a settlement as entered into pursuant to Section
1114 of the Bankruptcy Code", and (ii) inserting the following text at the
end of clause (v) thereof: "(other than the failure to make any contribution
for which a minimum funding waiver has been applied for and not denied)".
(h) Section 8.02(s) of the Financing Agreement is hereby
amended by inserting the following text as a new clause (v):
"(v) Notwithstanding anything to the contrary in this Agreement,
the Loan Parties shall be permitted to grant in favor of the PBGC
of (i) a superpriority administrative expense claim pursuant to
Section 364(c)(1) of the Bankruptcy Code (the "PBGC Superpriority
------------------
Claim") with priority over any and all administrative expenses of
-----
the kind specified in section 503(b) or 507(b) of the Bankruptcy
Code with the exception of the superpriority administrative expense
claims granted to the Lenders (as defined in the Supplemental
Bankruptcy Court Orders) and to UST/Clerk Fees and the Carve-Out
Expenses (the "Senior Superpriority Claims"), it being understood
---------------------------
that the Senior Superpriority Claims will be senior in all respects
to the PBGC Superpriority Claim."
Section 2.10 Amendments to Section 8.03 of the Financing
-------------------------------------------
Agreement.
---------
(a) Section 8.03(a) of the Financing Agreement is hereby
amended by deleting the following text from the table appearing therein:
"March 31, 2006 $132,000,000
April 30, 2006 $133,000,000
May 31, 2006 $134,000,000"
and inserting in lieu thereof the following text:
12
"March 31, 2006 $120,800,000
April 30, 2006 $124,300,000
May 31, 2006 $127,000,000
June 30, 2006 $125,400,000
July 31, 2006 $124,400,000
August 31, 2006 $134,700,000
September 30, 2006 $135,800,000
October 31, 2006 $148,900,000
November 30, 2006 $151,900,000
December 31, 2006 $157,500,000
January 31, 2007 $153,000,000
February 28, 2007 $151,100,000"
(b) Section 8.03(a) of the of the Financing Agreement is
hereby further amended by inserting the following text at the end of such
Section:
"In calculating the Consolidated EBITDA for purposes of this
Section 8.03(a) (but not for purposes of Schedule 8.03 or for any
---------------
other purpose), the results of the business described in Item 3 on
Part II of Schedule 8.02(c)(i) shall be disregarded."
Section 2.11 Amendments to Section 10.01 of the Financing
--------------------------------------------
Agreement.
---------
(a) Sections 10.01(i), (l) and (o) of the Financing
Agreement is hereby amended by inserting the phrase "or any Supplemental
Bankruptcy Court Order" immediately following the phrase "Bankruptcy Court
Order" in each place it appears in such Section.
(b) Section 10.01 of the Financing Agreement is hereby
further amended by inserting the following text at the end of clause (cc) of
such Section: ", or any agreement, instrument or other document evidencing
or otherwise related to any indebtedness incurred to refinance any portion
thereof."
Section 2.12 Amendments to Schedule 1.01(A) of the
-------------------------------------
Financing Agreement. Schedule 1.01(A) of the Financing Agreement is
-------------------
hereby amended as set forth in Exhibit A hereto.
---------
Section 2.13 Amendments to Schedule 7.01(i) of the
-------------------------------------
Financing Agreement. Schedule 7.01(i) of the Financing Agreement is
-------------------
hereby amended as set forth in Exhibit B hereto.
---------
Section 2.14 Amendments to Schedule 8.02(c)(i) of the
----------------------------------------
Financing Agreement. Schedule 8.02(c)(i) of the Financing Agreement
-------------------
is hereby amended as set forth in Exhibit C hereto.
---------
13
Section 2.15 Amendments to Schedule 8.03 of the Financing
--------------------------------------------
Agreement. Schedule 8.03 of the Financing Agreement is hereby
---------
amended as set forth in Exhibit D hereto.
---------
Section 2.16 New Schedule 2.05 of the Financing Agreement.
--------------------------------------------
The Schedules to the Financing Agreement are amended and restated
to add the new Schedule 2.05 set forth on Exhibit E hereto.
---------
Section 2.17 Limited Waiver with respect to Section
--------------------------------------
7.01(i) of the Financing Agreement. The Lenders hereby waive any
----------------------------------
Default or Event of Default arising under the Financing Agreement
and any other Loan Document solely as a result of any
representation or warranty contained in Section 7.01(i) of the
Financing Agreement being incorrect in any material respect when
made or deemed made prior to the Fourth Amendment Effective Date
due to the existence of litigation, proceedings, claims or matters
set forth on Exhibit F hereto. Such waiver does not constitute a
---------
waiver of any non-compliance with Section 7.01(i) of the Financing
Agreement as amended hereby, any waiver of such Section after the
Fourth Amendment Effective Date, any other provision of the
Financing Agreement or any other Loan Document or a waiver of any
other Default or Event of Default that may exist under the
Financing Agreement or an acquiescence thereof.
Section 2.18 Limited Waiver with respect to Section
--------------------------------------
7.01(bb) of the Financing Agreement. The Lenders hereby waive any
-----------------------------------
Default or Event of Default arising under the Financing Agreement
and any other Loan Document solely as a result of any
representation or warranty contained in Section 7.01(bb) of the
Financing Agreement being incorrect in any material respect when
made or deemed made prior to the Fourth Amendment Effective Date
due to (a) one or more Loan Parties having Collateral with an
aggregate Book Value in excess of $500,000 at locations not listed
on Schedule 7.01(bb) to the Financing Agreement and identified in
writing to the Collateral Agent and the Administrative Agent in
writing but not approved in writing by the Collateral Agent and the
Administrative Agent, or (b) Schedule 7.01(bb) to the Financing
Agreement not containing a true, correct and complete list, as of
the Facility Effective Date, of the legal names and addresses of
each warehouse at which Collateral of each Loan Party was stored.
Such waiver does not constitute a waiver of any non-compliance with
Section 7.01(bb) of the Financing Agreement as amended hereby, any
waiver of such Section after the Fourth Amendment Effective Date,
any other provision of the Financing Agreement or any other Loan
Document or a waiver of any other Default or Event of Default that
may exist under the Financing Agreement or an acquiescence thereof.
Section 2.19 Limited Waiver with respect to Section
--------------------------------------
8.01(l) of the Financing Agreement. The Lenders hereby waive any
----------------------------------
Default or Event of Default arising under the Financing Agreement
and any other Loan Document solely as a result of any failure by
the Loan Parties to comply with the provisions of Section 8.01(l)
of the Financing Agreement to the extent that the Loan Parties
failed to give the Collateral Agent not less than ten (10) Business
Days' prior written notice of any change in the location of any
Collateral with a book value in excess of
14
$2,000,000 prior to the Fourth Amendment Effective Date; provided,
--------
that the foregoing waiver shall only apply to the extent that the
Loan Parties gave the Collateral Agent written notice of such
change in location prior to the Fourth Amendment Effective Date.
Such waiver does not constitute a waiver of Section 8.01(l) of the
Financing Agreement for any other purpose or a waiver of any other
provision of the Financing Agreement or any other Loan Document or
any waiver of any other Default or Event of Default that may exist
under the Financing Agreement or an acquiescence therein.
Section 2.20 Limited Waiver of Section 8.02(c) of the
----------------------------------------
Financing Agreement. The Lenders hereby waive compliance by the
-------------------
Loan Parties with the provisions of Section 8.02(c) of the
Financing Agreement to the extent that such Section would prohibit
the sale of the assets identified on Exhibit G to this Amendment;
---------
provided, that each of the foregoing sales shall be for at least
--------
fair market value and for cash and the Borrowers shall comply with
Section 2.05(c) of the Financing Agreement in respect of each such
asset sale and provided further that no such asset sale shall be
permitted unless no Default or Event of Default shall have occurred
and be continuing before and after giving effect to such
transaction. Such waiver does not constitute a waiver of Section
8.02(c) of the Financing Agreement for any other purpose or a
waiver of any other provision of the Financing Agreement or any
other Loan Document or any waiver of any other Default or Event of
Default that may exist under the Financing Agreement or an
acquiescence therein.
Section 2.21 Consent to Release of Lien on Maryville
---------------------------------------
Property. The Lenders hereby consent to the release of the
--------
Collateral Agent's Liens on the Maryville Property effective
contemporaneously with the closing of the Maryville Restructuring.
ARTICLE III
SECURITY AND ADMINISTRATIVE PRIORITY
Section 3.01 Reaffirmation of Grant of Lien and Security
-------------------------------------------
Interest.
--------
(a) As security for the full and timely payment and
performance of all of the Obligations each of the Loan Parties after giving
effect to this Amendment, each of the Loan Parties confirms and reaffirms
its assignment, pledge and grant to the Collateral Agent, for the benefit of
the Lenders, of the security interest in and to and Lien on all of the
Collateral set forth in Section 4.01 of the Financing Agreement on the terms
and subject to the provisions of the Loan Documents.
(b) Upon entry of the Supplemental Bankruptcy Court Order
relating to this Amendment, the Liens and security interests in favor of the
Collateral Agent referred to in Section 3.01(a) shall continue to be valid
---------------
and perfected Liens and security interests in the Collateral, prior to all
other Liens and security interests in the Collateral, other than for the
Permitted Priority Liens.
15
Section 3.02 Administrative Priority. Subject to the
-----------------------
Bankruptcy Court Order and the Supplemental Bankruptcy Court
Orders, each of the Borrowers and Guarantors agrees for itself that
the Obligations of such Person shall constitute allowed
administrative expenses in the Chapter 11 Cases, having priority
over all administrative expenses of and unsecured claims against
such Person now existing or hereafter arising, of any kind or
nature whatsoever, including, without limitation, all
administrative expenses of the kind specified in, or arising or
ordered under, Sections 105, 326, 328, 503(b), 506(c), 507(a),
507(b), 546(c), 1113 and 1114 of the Bankruptcy Code, subject only
to the prior payment of expenses to the extent set forth in clause
"first" of the definition of the term "Agreed Administrative
Expense Priorities".
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions to Effectiveness of this
-----------------------------------
Amendment. This Amendment shall be effective as of the date hereof,
---------
upon the satisfaction (or waiver) of the conditions precedent that:
(a) Bankruptcy Court Order. (i) The Administrative Agent,
----------------------
the Collateral Agent and the Lenders shall have received a final,
non-appealable order of the Bankruptcy Court approving this Amendment and
the terms and conditions hereof, which order shall be in form and substance
satisfactory to the Administrative Agent in its sole discretion and shall
have been entered by the Bankruptcy Court, (ii) the Administrative Agent
shall have received a true and complete copy of such order, and (iii) such
order shall be in full force and effect and shall not have been reversed,
modified, amended, stayed or vacated absent prior written consent of the
Administrative Agent.
(b) Fees and Expenses. The Borrowers shall have paid all
-----------------
costs, fees and expenses referred to in Section 5.05 and the Fee Letter
dated February 23, 2006 (the "Fourth Amendment Fee Letter"), to the extent
---------------------------
due on or prior to the date hereof, and all costs and expenses (including,
without limitation, legal fees and disbursements, filing fees, documentary,
stamp and filing taxes (subject to Section 2.08 of the Financing Agreement))
of the Administrative Agent, the Collateral Agent and each Lender incurred
in connection with this Amendment and the transactions, documents and
agreements contemplated hereby.
(c) Representations and Warranties. As of the date hereof,
------------------------------
both before (but after giving effect to the limited waivers set forth in
Article II above) and after giving effect to this Amendment, all of the
representations and warranties contained in the Financing Agreement and in
each other Loan Document shall be true and correct in all material respects
as though made on the date hereof, except to the extent such representation
and warranty expressly relates to a specific prior date in which case such
representation and warranty shall be true and correct in all material
respects as of such date (and by its execution hereof, the Borrowers shall
be deemed to have represented and warranted such).
16
(d) No Default. As of the date hereof, both before and
----------
after giving effect to this Amendment, no Default (other than Defaults that
would, upon effectiveness of this Amendment, be waived pursuant to Article
II above) shall have occurred and be continuing (and by its execution
hereof, the Borrowers shall be deemed to have represented and warranted
such).
(e) Legality. The making of the Term Loan B Loans on the
--------
Fourth Amendment Effective Date as contemplated by this Amendment shall not
contravene any law, rule or regulation applicable to any Agent or any
Lender.
(f) Delivery of Documents. The Administrative Agent and
---------------------
the Collateral Agent shall have received on or before the Fourth Amendment
Effective Date (or in the case of clause (ii) below the Loan Parties shall
have used their commercially reasonable efforts to cause such delivery) the
following, each in form and substance reasonably satisfactory to each of the
Administrative Agent and the Collateral Agent and, unless indicated
otherwise, dated on or as of the Fourth Amendment Effective Date:
(i) executed counterparts of this Amendment, duly executed
by each of the Lenders, the Borrowers, each Guarantor, the
Documentation Agent, the Administrative Agent, the Collateral
Agent and the Issuer;
(ii) with respect to each Principal Property (including,
without limitation, each Additional Principal Property, but
excluding the Krummrich Property), (A) if such Principal Property
is located in a state that assesses mortgage taxes, a notice of
order of the Bankruptcy Court referenced in subsection (a) above
(together with a certified copy of said order), in recordable form,
(B) if such Principal Property is located in a state that does not
assess mortgage taxes, an amendment to the Mortgage for such
property, duly executed by the applicable Loan Party and in
recordable form, (C) a modification endorsement to the title policy
for such property and (D) a date-down endorsement to the title
policy for such property (which date-down endorsement may be
combined with the modification endorsement into a single
endorsement) or, in cases where such endorsement cannot be obtained
at a reasonable cost, an updated title search and/or a date-down
letter from the title insurance company, in each case indicating no
Liens other than Permitted Liens;
(iii) a copy of the resolutions of each Loan Party,
certified as of the Fourth Amendment Effective Date by a Secretary
or an Assistant Secretary thereof, authorizing (A) the borrowings
and other transactions contemplated by the Financing Agreement as
amended hereby and the other Loan Documents delivered in connection
herewith to which such Loan Party is or will be a party, and (B)
the execution, delivery and performance by such Loan Party of this
Amendment and each other Loan Document to which such Loan Party is
or will be a party and the execution
17
and delivery of the other documents to be delivered by such Person
in connection herewith and therewith;
(iv) a certificate of a Secretary or an Assistant Secretary
of each Loan Party, certifying the names and true signatures of the
representatives of such Loan Party authorized to sign each Loan
Document to which such Loan Party is or will be a party and the
other documents to be executed and delivered by such Loan Party in
connection herewith and therewith, together with evidence of the
incumbency of such authorized officers;
(v) to the extent required by the Collateral Agent, a
certificate of the appropriate official(s) of the state or other
applicable jurisdiction of organization of each Loan Party
certifying as to the subsistence in good standing of, and the
payment of taxes by, such Loan Party in such states and certified
as of a recent date not more than 30 days prior to the Fourth
Amendment Effective Date, together, if requested by the Collateral
Agent, with confirmation by telephone or telecopy (where available)
on the Fourth Amendment Effective Date from such official(s) as to
such matters;
(vi) a copy of the charter and by-laws, limited liability
company agreement, operating agreement, agreement of limited
partnership or other organizational document of each Loan Party,
together with all amendments thereto, certified as of the Fourth
Amendment Effective Date by a Secretary or an Assistant Secretary
of such Loan Party;
(vii) an opinion of Kirkland & Ellis LLP, counsel to the
Loan Parties, in form and substance reasonably satisfactory to the
Administrative Agent;
(viii) a certificate of an Authorized Officer of each Loan
Party, certifying as to the matters set forth in clauses (c) and
-----------
(d) of this Section 4.01;
--- ------------
(ix) a certificate of a Secretary or an Assistant Secretary
of the Administrative Borrower, certifying the names and true
signatures of the persons that are authorized to provide Notices of
Borrowing and all other notices under the Financing Agreement and
the other Loan Documents;
(x) the Loan Parties' draft 2005 audited financial statements;
(xi) a Notice of Borrowing in respect of the New Term Loan B
Loan delivered at least three Business Days prior to the Fourth
18
Amendment Effective Date and otherwise conforming to the
requirements of Section 2.02 of the Financing Agreement; and
(xii) such other agreements, instruments, approvals,
opinions and other documents, each satisfactory to the
Administrative Agent in form and substance, as the Administrative
Agent may reasonably request.
(g) Priority. The Collateral Agent shall be satisfied that
--------
it has been granted, and after giving effect to this Amendment continues to
hold, for the benefit of the Lenders, a perfected, first priority Lien on,
and security interest in, all of the Collateral described in Section
4.01(a)(i) of the Financing Agreement, subject only to Permitted Priority
Liens.
(h) Approvals. All consents, authorizations and approvals
---------
of, and filings and registrations with, and all other actions in respect of,
any Governmental Authority or other Person required in connection with the
making of the Loans shall have been obtained and shall be in full force and
effect.
Section 4.02 Post-Closing Deliveries. The Administrative
-----------------------
Agent and the Collateral Agent shall have received on or before the
date which is sixty (60) days following the Fourth Amendment
Effective Date (or, in the case of any as such time period may be
extended by the Administrative Agent) such amendments,
confirmations or other agreements as the Administrative Agent or
Collateral Agent may reasonably require with respect to (A) any
Pledge Agreement to provide or confirm that the Liens granted
thereunder secure all of the Obligations after giving effect to
this Amendment or (B) any other Loan Document to continue the
effectiveness thereof with respect to the Financing Agreement as
amended hereby, each in form and substance reasonably satisfactory
to each of the Administrative Agent and the Collateral Agent.
ARTICLE V
MISCELLANEOUS
Section 5.01 Effect; Ratification. The amendments, waivers
--------------------
and consents set forth herein are effective solely for the purposes
set forth herein and shall be limited precisely as written, and
shall not be deemed to (i) be a consent to, or acknowledgment of,
any amendment, waiver or modification of any other term or
condition of the Financing Agreement or of any other instrument or
agreement referred to herein or therein or (ii) prejudice any right
or remedy which the Agents or any other party may now have or may
have in the future under or in connection with the Financing
Agreement as amended hereby or any other instrument or agreement
referred to therein. This Amendment shall be construed in
connection with and as part of the Financing Agreement, and all
terms, conditions, representations, warranties, covenants and
agreements set forth in the Financing Agreement, each other Loan
Document and each other instrument or agreement
19
referred to therein, except as herein amended, are hereby ratified and
confirmed and shall remain in full force and effect.
Section 5.02 Acknowledgement. Each of the Borrowers and
---------------
Guarantors hereby acknowledges and agrees that as of the Fourth
Amendment Effective Date and immediately after giving effect to
this Amendment, the making of the New Term Loan B Loans and the
other transactions contemplated hereby the Borrowers and Guarantors
are and continue to be indebted to the Lenders under the Financing
Agreement (as amended hereby) in the principal amount of
$703,500,000, which principal amount consists of $53,500,000 of
outstanding Revolving Loans, $300,000,000 of outstanding Original
Term Loan B Loans, $50,000,000 of outstanding Converted Term Loan B
Loans and $300,000,000 of outstanding New Term Loan B Loans and
remain liable for reimbursement obligations under Letters of Credit
outstanding on the date hereof with an aggregate undrawn face
amount equal to $93,729,949.
Section 5.03 Due Authorization; Authority; No Conflicts;
-------------------------------------------
Enforceability. The execution, delivery and performance by each
--------------
Loan Party of this Amendment (i) have been duly authorized by all
necessary action, (ii) do not and will not contravene its charter
or by-laws, its limited liability company or operating agreement or
its certificate of partnership or partnership agreement, as
applicable, or any applicable law or any contractual restriction
binding on or otherwise affecting it or any of its properties
(other than conflicts, breaches and defaults, the enforcement of
which will be stayed by virtue of the filing of the Chapter 11
Cases), or any order or decree of any court or Governmental
Authority (including, without limitation, any order entered in the
Chapter 11 Cases), (iii) do not and will not result in or require
the creation of any Lien upon or with respect to any of its
material properties, and (iv) do not and will not result in any
material default, noncompliance, suspension, revocation,
impairment, forfeiture or nonrenewal of any material permit,
license, authorization or approval applicable to its operations or
any of its properties. Other than the order referred to in Section
-------
4.01(a) hereof, no authorization or approval or other action by,
-------
and no notice to or filing with, any Governmental Authority,
including the Bankruptcy Court, is required in connection with the
due execution, delivery and performance by any Loan Party of this
Amendment. This Amendment, when delivered hereunder, is or will be,
duly and validly executed and delivered by each of the Loan Parties
which is a party hereto and each of this Amendment and the
Financing Agreement as amended hereby constitutes the legal, valid
and binding obligation of each of the Loan Parties which is a party
hereto or thereto, enforceable in accordance with the terms hereof
or thereof and subject to the entry of, and the terms of, the
Bankruptcy Court order referred to in Section 4.01(a) hereof.
---------------
Section 5.04 No Novation. Neither this Amendment nor the
-----------
replacement of the terms of the Financing Agreement by the terms of
this Amendment shall extinguish the obligations for the payment of
money outstanding under the Financing Agreement or discharge or
release the Lien or priority of any security agreement, any pledge
agreement or any other security therefor. Nothing herein contained
shall be construed as a substitution or novation of the Obligations
outstanding under the Financing Agreement or instruments securing
the same,
20
which shall remain in full force and effect, except as modified
hereby. Nothing expressed or implied in this Amendment or any other
document contemplated hereby or thereby shall be construed as a
release or other discharge of the Borrowers or any other Loan Party
under any Loan Document from any of its obligations and liabilities
thereunder. Each of the Financing Agreement and the other Loan
Documents shall remain in full force and effect, until and except
as modified hereby or in connection herewith. This Amendment, the
Fourth Amendment Fee Letter and each document, instrument and
agreement required to be delivered pursuant to Section 4.01(f)(ii)
-------------------
hereof are Loan Documents executed pursuant to the Financing
Agreement and shall be construed, administered and applied in
accordance with the terms and provisions thereof.
Section 5.05 Costs, Fees and Expenses. The Borrowers jointly
------------------------
and severally agree to reimburse the Agents and the Lenders upon
demand in accordance with Section 13.04 of the Financing Agreement
for all reasonable costs, fees and expenses (including the
reasonable fees and expenses of counsel to the Agents and the
Lenders) incurred in connection with the preparation, execution,
delivery and filing or recordation of this Amendment and other
documents contemplated hereby.
Section 5.06 Counterparts. This Amendment may be executed
------------
in any number of counterparts and by different parties hereto in
separate counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one and
the same agreement. Delivery of an executed counterpart of this
Amendment by telecopier or a .PDF by electronic mail shall be
equally as effective as delivery of an original executed
counterpart of this Amendment. Any party delivering an executed
counterpart of this Amendment by telecopier also shall deliver an
original executed counterpart of this Amendment but the failure to
deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment.
Section 5.07 Severability. Any provision of this Amendment
------------
which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 5.08 CHOICE OF LAW. THIS AMENDMENT SHALL BE
-------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE
STATE OF NEW YORK EXCEPT AS GOVERNED BY THE BANKRUPTCY CODE.
Section 5.09 No Party Deemed Drafter. Each of the parties
-----------------------
hereto agrees that no party hereto shall be deemed to be the
drafter of this Amendment.
21
Section 5.10 Ratification of Guaranty. Each Guarantor
------------------------
hereby consents to this Amendment and hereby confirms and agrees
that (a) notwithstanding the effectiveness of this Amendment, the
Guaranty is, and shall continue to be, in full force and effect and
is hereby ratified and confirmed in all respects, except that, on
and after the effectiveness of this Amendment, each reference in
the Guaranty to the "Agreement", "thereunder", "thereof" or words
of like import referring to the Financing Agreement shall mean and
be a reference to the Financing Agreement as amended by this
Amendment, and (b) the Loan Documents to which it is a party and
all of the Collateral described therein do, and shall continue to,
secure the payment of all of the Obligations secured thereby.
(Signature Page Follows)
22
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
BORROWERS:
---------
SOLUTIA INC., as a debtor and a debtor-in-
possession
By: /s/ James A. Tichenor
--------------------------------------------
Name: James A. Tichenor
Title: Assistant Treasurer
SOLUTIA BUSINESS ENTERPRISES, INC., as
a debtor and a debtor-in-possession
By: /s/ James A. Tichenor
-------------------------------------------
Name: James A. Tichenor
Title: Vice President & Treasurer
GUARANTORS:
----------
AXIO RESEARCH CORPORATION, as a debtor
and a debtor-in-possession
By: /s/ James A. Tichenor
--------------------------------------------
Name: James A. Tichenor
Title: Vice President & Treasurer
23
BEAMER ROAD MANAGEMENT COMPANY, as a
debtor and a debtor-in-possession
By: /s/ James A. Tichenor
-------------------------------------------
Name: James A. Tichenor
Title: Vice President & Treasurer
CPFILMS INC., as a debtor and a debtor-
in-possession
By: /s/ James A. Tichenor
-------------------------------------------
Name: James A. Tichenor
Title: Vice President & Assistant Treasurer
MONCHEM, INC., as a debtor and a debtor-in-
possession
By: /s/ James A. Tichenor
-------------------------------------------
Name: James A. Tichenor
Title: Vice President & Treasurer
MONCHEM INTERNATIONAL, INC., as a debtor and a
debtor-in-possession
By: /s/ James A. Tichenor
--------------------------------------------
Name: James A. Tichenor
Title: Vice President & Treasurer
SOLUTIA GREATER CHINA, INC., as a debtor and a
debtor-in-possession
By: /s/ James A. Tichenor
--------------------------------------------
Name: James A. Tichenor
Title: Vice President & Treasurer
24
SOLUTIA INTER-AMERICA, INC., as a debtor and
a debtor-in-possession
By: /s/ James A. Tichenor
-------------------------------------------
Name: James A. Tichenor
Title: Vice President & Treasurer
SOLUTIA INTERNATIONAL HOLDING, LLC, as a debtor
and a debtor-in-possession
By: /s/ James A. Tichenor
-------------------------------------------
Name: James A. Tichenor
Title: Vice President & Treasurer
SOLUTIA INVESTMENTS, LLC, as a debtor and a
debtor-in-possession
By: /s/ James A. Tichenor
-------------------------------------------
Name: James A. Tichenor
Title: Vice President & Treasurer
SOLUTIA MANAGEMENT COMPANY, INC., as a debtor
and a debtor-in-possession
\
By: /s/ James A. Tichenor
-------------------------------------------
Name: James A. Tichenor
Title: Vice President & Treasurer
SOLUTIA OVERSEAS, INC., as a debtor and a
debtor-in-possession
By: /s/ James A. Tichenor
------------------------------------------
Name: James A. Tichenor
Title: Vice President & Treasurer
25
SOLUTIA SYSTEMS, INC., as a debtor and a
debtor-in-possession
By: /s/ James A. Tichenor
-------------------------------------------
Name: James A. Tichenor
Title: Vice President & Treasurer
SOLUTIA TAIWAN, INC., as a debtor and a
debtor-in-possession
By: /s/ James A. Tichenor
-------------------------------------------
Name: James A. Tichenor
Title: Vice President & Treasurer
26
ADMINISTRATIVE AGENT, COLLATERAL AGENT,
---------------------------------------
CO-DOCUMENTATION AGENT AND A LENDER:
-----------------------------------
CITICORP USA, INC., for itself as the
Administrative Agent, the Collateral Agent,
a Co-Documentation Agent and a Lender
By: /s/ David Jaffee
-------------------------------------------
Name: David Jaffee
Title: Director/Vice President
27
CO-DOCUMENTATION AGENT AND A LENDER:
-----------------------------------
WELLS FARGO FOOTHILL, LLC, for itself as a
Co-Documentation Agent and a Lender
By: /s/ Yelena Kravchuk
--------------------------------------------
Name: Yelena Kravchuk
Title: AVP
28
ISSUER:
------
CITIBANK, N.A., as an Issuer and a Lender
By: /s/ David Jaffee
-------------------------------------------
Name: David Jaffee
Title: Director/Vice President
29
LENDER:
------
Citigroup Financial Products Inc.,
----------------------------------
as a Lender
By: /s/ Gregory W. Frenzel
--------------------------------------------
Name: Gregory W. Frenzel
Title: Managing Director
30
LENDER:
-------
Baverische Hypo- und Vereinsbank AG,
------------------------------------
New York Branch
---------------
as a Lender
By: /s/ Miriam Trautmann
-------------------------------------------
Name: Miriam Trautmann
Title: Associate Director
By: /s/ Salvatore Esposito
-------------------------------------------
Name: Salvatore Esposito
Title: Managing Director
31
LENDER:
-------
UBS AG, Stemford Branch
------------------------------------
as a Lender
By: /s/ Anthony N. Joseph
-------------------------------------------
Name: Anthony N. Joseph
Title: Director
Banking Products Services, US
By: /s/ Toba Lumbantobing
-------------------------------------------
Name: Toba Lumbantobing
Title: Associate Director
Banking Products Services, US
32
LENDER:
-------
GREYWOLF LOAN PARTICIPATION LLC,
as a Lender
By: Greywolf Capital Management LP,
its manager
By: /s/ William Troy
-------------------------------------------
Name: William Troy
Title: Partner
33
VELOCITY CLO, LTD.
By: TCW Advisors, Inc.,
its Collateral Manager
By: /s/ G. Wayne Hosang
-------------------------------------------
Name: G. WAYNE HOSANG
Title: VICE PRESIDENT
By: /s/ Jonathan R. Insull
-------------------------------------------
Name: JONATHAN R. INSULL
Title: MANAGING DIRECTOR
34
CELEBRITY CLO, LIMITED
By: TCW Advisors, Inc.,
as Agent
By: /s/ G. Wayne Hosang
-------------------------------------------
Name: G. WAYNE HOSANG
Title: VICE PRESIDENT
By: /s/ Jonathan R. Insull
-------------------------------------------
Name: JONATHAN R. INSULL
Title: MANAGING DIRECTOR
35
DARIEN LOAN FUNDING COMPANY
By: TCW Advisors as its Interim
Interim Collateral Manager
By: /s/ G. Wayne Hosang
-------------------------------------------
Name: G. WAYNE HOSANG
Title: VICE PRESIDENT
By: /s/ Jonathan R. Insull
-------------------------------------------
Name: JONATHAN R. INSULL
Title: MANAGING DIRECTOR
36
LOAN FUNDING I LLC,
a wholly owned subsidiary of Citibank, N.A.
By: TCW Advisors, Inc.,
as Portfolio Manager of Loan Funding I LLC
By: /s/ G. Wayne Hosang
-------------------------------------------
Name: G. WAYNE HOSANG
Title: VICE PRESIDENT
By: /s/ Jonathan R. Insull
-------------------------------------------
Name: JONATHAN R. INSULL
Title: MANAGING DIRECTOR
37
TCW Senior Secured Loan Fund, LP
By: TCW Advisors, Inc., as its Investment
Advisor
By: /s/ G. Wayne Hosang
-------------------------------------------
Name: G. WAYNE HOSANG
Title: VICE PRESIDENT
By: /s/ Jonathan R. Insull
-------------------------------------------
Name: JONATHAN R. INSULL
Title: MANAGING DIRECTOR
38
TCW SELECT LOAN FUND, LIMITED
By: TCW Advisors, Inc., as its
Collateral Manager
By: /s/ G. Wayne Hosang
-------------------------------------------
Name: G. WAYNE HOSANG
Title: VICE PRESIDENT
By: /s/ Jonathan R. Insull
-------------------------------------------
Name: JONATHAN R. INSULL
Title: MANAGING DIRECTOR
39
LENDER:
-------
CDL Loan Funding LLC
------------------------------------
as a Lender
By: /s/ Jason Trala
-------------------------------------------
Name: JASON TRALA
Title: Attorney-in-Fact
40
LENDER:
-------
Citibank N.A.
------------------------------------
as a Lender
By: /s/ Jason Trala
-------------------------------------------
Name: JASON TRALA
Title: Attorney-in-Fact
41
LENDER:
-------
Satellite Senior Income Fund, LLC
By: Satellite Asset Management L.P.
Its Manager
By: /s/ Simon Raykher
-------------------------------------------
Name: Simon Raykher
Title: General Counsel
42
LENDER:
-------
Satellite Senior Income Fund II, LLC
By: Satellite Asset Management L.P.
Its Manager
By: /s/ Simon Raykher
-------------------------------------------
Name: Simon Raykher
Title: General Counsel
43
LENDER:
-------
Highland Legacy Limited
By: Highland Capital Management, L.P.,
As Collateral Manager
By: Strand Advisors, Inc., Its General Partner
as a Lender
By: /s/ Chad Schramek
-------------------------------------------
Name: Chad Schramek
Title: Assistant Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
44
LENDER:
-------
Restoration Funding CLO, LTD
By: Highland Capital Management, L.P.,
As Collateral Manager
By: Strand Advisors, Inc., Its General Partner
as a Lender
By: /s/ Chad Schramek
-------------------------------------------
Name: Chad Schramek
Title: Assistant Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
45
LENDER:
-------
Highland Loan Funding V Ltd.
By: Highland Capital Management, L.P.,
As Collateral Manager
By: Strand Advisors, Inc., Its General Partner
as a Lender
By: /s/ Chad Schramek
-------------------------------------------
Name: Chad Schramek
Title: Assistant Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
46
LENDER:
-------
Pam Capital Funding L.P.
By: Highland Capital Management, L.P.,
As Collateral Manager
By: Strand Advisors, Inc., Its General Partner
as a Lender
By: /s/ Chad Schramek
-------------------------------------------
Name: Chad Schramek
Title: Assistant Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
47
ROCKVIEW
LENDER:
------
ROCKVIEW TRADING, LTD
-----------------------------------------------
as a Lender
By: /s/ David Muschel
-------------------------------------------
Name: DAVID MUSCHEL
Title: MANAGER
48
GUGGENHEIM
LENDER:
------
GPC XLI, LLC
-----------------------------------------------
as a Lender
By: /s/ David Muschel
-------------------------------------------
Name: DAVID MUSCHEL
Title: MANAGER
49
LENDER:
-------
WatchTower CLO IPLC
By: Citadel Limited Partnership, Collateral Manager
By: Citadel Investment Group, L.L.C.,
Its General Partner
as a Lender
By: /s/ Erica L. Tarpey
-------------------------------------------
Name: ERICA L. TARPEY
Title: Authorized Signatory
50
LENDER:
-------
Oppenheimer Senior Floating Rate Fund,
as a Lender
By: /s/ Lisa Chaffee
-------------------------------------------
Name: LISA CHAFFEE
Title: AVP
51
LENDER:
-------
Quattro Fund, Ltd.,
-------------------
as a Lender
By: /s/ Andrew Kaplan
-------------------------------------------
Name: Andrew Kaplan
Title: Principal
52
LENDER:
-------
Quattro Distressed Opportunities Fund, L.P.,
--------------------------------------------
as a Lender
By: /s/ Andrew Kaplan
-------------------------------------------
Name: Andrew Kaplan
Title: Principal
53
LENDER:
-------
Quattro Multi-Strategy Fund, Ltd.,
---------------------------------
as a Lender
By: /s/ Andrew Kaplan
-------------------------------------------
Name: Andrew Kaplan
Title: Principal
54
LENDER:
-------
LOAN FUNDING XIII for itself or as agent
for Corporate Funding XIII,
as a Lender
By: /s/ Aaron A. Meyer
-------------------------------------------
Name: Aaron A. Meyer
Title: Principal
Silvermine Capital Management, LLC
263 Treaser Blvd.
10th Floor
Stamford, CT 06901
(T) 203 399-3020
(F) 203 399-3002
55
LENDER:
-------
DKR Wolf Point Holding Fund Ltd,
-------------------------------
as a Lender
By: /s/ Barbara Burger
-------------------------------------------
Name: Barbara Burger
Title: Director
56
LENDER:
-------
SMBC DIP Limited
-----------------------------------------------
as a Lender
By: /s/ Susumu Ogawa
-------------------------------------------
Name: Susumu Ogawa
Title: Director
57
LENDER:
-------
Highland Credit ops CDO Ltd,
-----------------------------------------------
as a Lender
By: /s/ Darrin Britt
-------------------------------------------
Name: Darrin Britt
Title: Attorney-in-Fact
58
LENDER:
-------
Foothill Income Trust II, L.P.,
-----------------------------------------------
as a Lender
by FIT II GP, LLC, Its Gen Partner
By: /s/ Sean Dixon
-------------------------------------------
Name: SEAN DIXON
Title: MANAGING MEMBER
59