Exhibit 10.1
AMENDMENT NO. 5 TO FINANCING AGREEMENT AND WAIVER
THIS AMENDMENT NO. 5 TO FINANCING AGREEMENT AND WAIVER, dated as of
January 25, 2007 (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 "Guarantors"),
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the lenders from time to time party hereto (each a "Lender" and collectively,
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the "Lenders"), the issuers from time to time party hereto (each an "Issuer"
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and collectively, the "Issuers"), Citicorp USA, Inc. ("CUSA"), as collateral
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agent for the Lenders (in such capacity, the "Collateral Agent"), CUSA, as
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administrative agent for the Lenders (in such capacity, the "Administrative
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Agent"), and CUSA and Wells Fargo Foothill, LLC, as co-documentation agents
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for the Lenders (in such capacity, the "Documentation Agent" and together with
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the Collateral Agent and the Administrative Agent, each an "Agent" and
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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"),
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dated as of July 20, 2004, that certain Amendment No. 3 to Financing Agreement
and Waiver, dated as of June 1, 2005 (the "Third Amendment"), and that certain
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Amendment No. 4 to Financing Agreement and Waiver, dated as of March 17, 2006
(the "Fourth Amendment") (as so amended, the "Financing Agreement");
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WHEREAS, the Financing Agreement consists of (a) a Term Loan B in the
aggregate principal amount of $650,000,000, which loan has heretofore been
drawn in full, and (b) 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 $325,000,000, which loan shall be drawn in full on the Fifth
Amendment Effective Date (as defined herein), (b) the Lenders to increase the
Revolving Credit Commitment in the aggregate principal amount of $75,000,000,
which commitment shall be available from and after the Fifth Amendment
Effective Date, and (c) the Lenders to amend the Financing Agreement in
certain other respects, as hereinafter provided, and (ii) the Additional New
Term Loan B Lenders (as defined in Section 2.01, below) have severally, and
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not jointly, agreed to extend the Additional New Term B Loans, the New
Revolving Loan Lenders (as defined in Section 2.01, below) have severally, and
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not jointly, agreed to extend the
New Revolving Credit Commitments, 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 the Recitals to the Financing
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Agreement. The recitals to the Financing Agreement are hereby amended by
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(i) deleting the text "and" appearing at the end of the first recital,
(ii) deleting the second recital and inserting the following three new
recitals after the first recital:
"WHEREAS, (i) the Borrowers and the Guarantors have asked the Lenders to
make post-petition loans and advances to the Borrowers consisting of (a)
a multiple draw term loan A in the aggregate principal amount of
$50,000,000, which loan was drawn in full during the period between the
Facility Effective Date (as defined below) and the Fourth Amendment
Effective Date (as defined below), (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 will include a letter of
credit subfacility for the issuance of letters of credit and (ii) the
Lenders severally, and not jointly, agreed to extend such credit to the
Borrowers.
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WHEREAS, on the Fourth Amendment Effective Date, among other amendments,
the Borrowers and the Guarantors asked the Lenders to make additional
post-petition loans and advances to the Borrowers consisting of an
increase in term loan B of $300,000,000, and to convert the fully funded
term loan A into an additional new $50,000,000 portion of term loan B,
and the Lenders severally, and not jointly, agreed to extend such credit
to the Borrowers subject to the terms and conditions set forth in the
Fourth Amendment (as defined below) in accordance with their commitments
as set forth from time to time in this Agreement (including the Fourth
Amendment); and
WHEREAS, on the Fifth Amendment Effective Date (as defined below), among
other amendments, the Borrowers and the Guarantors have asked the Lenders
to make additional post-petition loans and advances to the Borrowers
consisting of an increase in term loan B of $325,000,000, and an increase
in the revolving credit facility of $75,000,000 in aggregate principal
amount at any time outstanding, and the Lenders have severally, and not
jointly, agreed to extend such credit to the Borrowers subject to the
terms and conditions set forth in the Fifth Amendment (as defined below)
in accordance with their commitments as set forth in this Agreement
(including the Fifth Amendment)."
Section 2.02 Amendments to Section 1.01 of the Financing
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Agreement.
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(a) Section 1.01 of the Financing Agreement is hereby
amended by deleting the first sentence of definition of "Borrowing Base" and
inserting the following sentence in lieu thereof:
""Borrowing Base" means, at any time, the difference between (i) the sum
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of (A) up to 85% of the value of the Net Amount of Eligible Accounts at
such time less the amount, if any, of the Dilution Reserve plus (B) the
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sum (without duplication) of up to (x) 85% of the Net Orderly Liquidation
Value of the Eligible Inventory constituting finished goods at such time
plus (y) 85% of the Net Orderly Liquidation Value of the Eligible
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Inventory constituting raw materials at such time plus (z) 85% of the Net
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Orderly Liquidation Value of the Eligible Inventory constituting the
Designated Chemicals at such time and (ii) such reserves as the
Administrative Agent may deem appropriate in the exercise of its business
judgment made in good faith and exercised reasonably based upon the
lending practices of the Administrative Agent consistent with the general
practices in the commercial finance industry (it being understood that
such reserves shall include, but not be limited to, (x) reserves for the
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administrative expenses referred to in clause "first" of the definition
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of "Agreed Administrative Expense Priority", (y) reserves with respect to
Banking Services Obligations and (z) reserves with respect to Hedging
Obligations)."
(b) Section 1.01 of the Financing Agreement is hereby
amended by deleting the words "and $20,000,000 for the period commencing
January 1, 2007, 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 "and (x) if the Flexsys Acquisition shall have been
consummated, $40,000,000 in 2007 and $25,000,000 for the period commencing
January 1, 2008, and ending upon the scheduled Final Maturity Date, or (y) if
the Flexsys Acquisition shall not have been consummated, $20,000,000 in 2007
and $12,500,000 for the period commencing January 1, 2008, and ending upon the
scheduled Final Maturity Date,".
(c) Section 1.01 of the Financing Agreement is hereby
amended by amending and restating clause (iv) of the definition of "Eligible
Accounts" in its entirety as follows:
"(iv) such Account is unconditionally payable in Dollars within 90 days
from the invoice date (or a later date if such Account is supported by
credit insurance or a letter of credit, in each case acceptable to the
Administrative Agent) and is not evidenced by a promissory note, chattel
paper or any other instrument or other document;"
(d) Section 1.01 of the Financing Agreement is hereby
amended by amending and restating clause (v) of the definition of "Eligible
Accounts" in its entirety as follows:
"(v) no more than 60 days have elapsed from the invoice due date (unless
such Account is supported by credit insurance or a letter of credit, in
each case acceptable to the Administrative Agent) and no more than 90
days have elapsed from the invoice date with respect to such Account
(unless such Account is supported by credit insurance or a letter of
credit, in each case acceptable to the Administrative Agent);"
(e) Section 1.01 of the Financing Agreement is hereby
amended by amending and restating clause (x) of the definition of "Eligible
Accounts" in its entirety as follows:
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"(x) not more than 50% of the aggregate amount of all Accounts of the
Account Debtor with respect to such Account have remained unpaid 60 days
past the invoice due date (unless such Account is supported by credit
insurance or a letter of credit, in each case acceptable to the
Administrative Agent) or 90 days past the invoice date (unless such
Account is supported by credit insurance or a letter of credit, in each
case acceptable to the Administrative Agent) or are otherwise not
Eligible Accounts;"
(f) Section 1.01 of the Financing Agreement is hereby
amended by deleting the text "March 31, 2007," appearing in the definition of
"Final Maturity Date" and inserting in lieu thereof the text "March 31,
2008,".
(g) Section 1.01 of the Financing Agreement is hereby
amended by deleting the figure "$10,000,000" appearing in clause (c) of the
definition of "Permitted Indebtedness" and inserting in lieu thereof the
figure "$20,000,000".
(h) Section 1.01 of the Financing Agreement is hereby
amended by (i) deleting the word "and" appearing at the end of clause (m) of
the definition of "Permitted Indebtedness" therein, (ii) deleting the period
appearing at the end of clause (n) of such definition and inserting the text
"; and" in lieu thereof, and (iii) inserting the following new clauses (o),
(p), and (q) at the end thereof:
"(o) after the Flexsys Acquisition, Indebtedness of Flexsys and their
Subsidiaries owed to Persons who are not Affiliates of Flexsys in an
aggregate amount not exceeding $375,000,000 in principal amount at any
time outstanding (which limit shall be reduced, on a dollar-for-dollar
basis, by Loans borrowed hereunder to finance, directly or indirectly,
the Flexsys Acquisition, including, without limitation, all amounts
constituting capital contributions to Flexsys or intercompany loans to
Flexsys from any Loan Party in respect of such acquisition or the initial
financing of the Flexsys Business, that are funded, directly or
indirectly, by Loans borrowed hereunder, without duplication);
"(p) indemnification obligations of the Loan Parties and their
Subsidiaries under the purchase agreement and any related documents with
respect to the Flexsys Acquisition; and
"(q) guaranties by any Subsidiaries of Flexsys of Indebtedness of Flexsys
to the extent such Indebtedness being guaranteed is permitted hereunder."
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(i) Section 1.01 of the Financing Agreement is hereby
amended by inserting at the end of clause (A) of the proviso to clause (e) of
the definition of "Permitted Liens" the following text:
"(provided that equipment which is attached or affixed to any such leased
property in the ordinary course of business may become subject to such
Lien to the extent so provided by the documentation evidencing or
creating such Lien, or by applicable law)".
(j) Section 1.01 of the Financing Agreement is hereby
amended by (i) deleting the word "and" appearing at the end of clause (o) of
the definition of "Permitted Liens" therein, (ii) deleting the period
appearing at the end of clause (p) of such definition and inserting the text
"; and" in lieu thereof, and (iii) inserting the following new clauses (q) and
(r) at the end thereof:
"(q) Liens in favor of the 1997 Trustee with respect to the 1997
Indenture that are junior to the Liens securing the Obligations; and
(r) after the Flexsys Acquisition, Liens on assets of Flexsys and their
Subsidiaries securing Indebtedness of Flexsys and their Subsidiaries
permitted by clause (o) of the definition of Permitted Indebtedness."
(k) Section 1.01 of the Financing Agreement is hereby
amended by deleting the phrase "clauses (b), (c), (i), (j), and (p)" appearing
in the definition of "Permitted Priority Liens" and inserting in lieu thereof
the phrase "clauses (b), (c), (i), (j), (p), and (q)".
(l) Section 1.01 of the Financing Agreement is hereby
amended by inserting after the words "the amount set forth opposite such
Lender's name in Schedule 1.01(A)" appearing in the definition of "Revolving
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Credit Commitment" the words "(including, as of the Fifth Amendment Effective
Date, such schedule as amended by the Fifth Amendment)".
(m) Section 1.01 of the Financing Agreement is hereby
amended by amending and restating the definition of "Supplemental Bankruptcy
Court Orders" in its entirety as follows:
"'Supplemental Bankruptcy Court Orders' means the collective reference to
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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
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Fourth Amendment), (iii) March 14, 2006 approving the Fourth Amendment,
and (iv) January 23, 2007, approving the Fifth Amendment."
(n) 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 B
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Lenders to the Borrowers on the Facility Effective Date, the Fourth
Amendment Effective Date and the Fifth Amendment Effective Date pursuant
to Section 2.01(a)(iii), and shall include in all events, each Original
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Term Loan B, each Converted Term Loan B, each New Term Loan B, and each
Additional New Term Loan B."
(o) 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,
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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
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amounts and on the dates set forth opposite such Lender's name in
Schedule 1.01(A), in each case as such amount may be terminated or
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reduced from time to time in accordance with the terms of this
Agreement."
(p) Section 1.01 of the Financing Agreement is hereby
amended by inserting the following definitions in the proper alphabetical
position:
"'Additional New 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 Fifth
Amendment Effective Date pursuant to Section 2.01(a)(iii)."
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"'Additional New Term Loan B Lenders' means, collectively, each of the
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Term Loan B Lenders which had a Term Loan B Commitment to make an
Additional New Term Loan B on the Fifth Amendment Effective Date."
"'Fifth Amendment' means that certain Fifth Amendment to Financing
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Agreement, dated as of January 25, 2007, by and among the Borrowers, the
Guarantors party thereto, the Lenders and Issuers party thereto, and the
7
Agents, as amended, supplemented, or otherwise modified from time to
time."
"'Fifth Amendment Effective Date' means the date upon which the Fifth
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Amendment becomes effective pursuant to Section 4.01 thereof."
"'Flexsys' means, collectively, (a) Flexsys Holding B.V., a Dutch
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besloten vennootschap, (b) Flexsys America LP, a Delaware limited
partnership, and (c) Flexsys Rubber Chemicals Ltd., a company registered
in England and Wales."
"'Flexsys Acquisition' has the meaning specified therefor on Schedule
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8.03(c)(i)."
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"'Flexsys Business' has the meaning specified therefor on Schedule
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8.03(c)(i)."
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"'Flexsys Credit Agreement' means that certain Loan Agreement dated
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February 14, 2003, among Flexsys Holding B.V., the borrowers and
guarantors party thereto, Commerzbank Aktiengesellschaft and KBC Bank NV
as mandated lead arrangers, the financial institutions party thereto from
time to time as lenders, and KBC Bank NV as agent, as amended, restated,
supplemented, otherwise modified, replaced, or refinanced from time to
time."
"'Net Orderly Liquidation Value' means the orderly liquidation value (net
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of costs and expenses incurred in connection with liquidation) of
inventory or equipment as set forth in the most recent appraisal (in
scope, form and substance acceptable to the Administrative Agent and
conducted by an independent appraiser acceptable to the Administrative
Agent) of such inventory or equipment."
(q) Section 1.01 of the Financing Agreement is hereby
amended by deleting in its entirety the definition of "Field Survey and
Audit".
Section 2.03 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 amending and restating clause (ii) thereof in its entirety as
follows:
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"(ii) Upon the Fourth Amendment Effective Date, (A) the Term Loan A
Commitment of each Term Loan A Lender was automatically and permanently
reduced to zero, and (B) all Term Loan A Loans outstanding at such time
were automatically converted to Term Loan B Loans and at such time became
subject to, and were 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 became zero
for all purposes hereof) and each Term Loan A Lender automatically became
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
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) to this Agreement as of the Facility
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Effective Date, (B) each New Term Loan B Lender is the holder of a New
Term Loan B made to the Borrowers on the Fourth Amendment Effective Date
in an aggregate principal amount equal to the Term Loan B Commitment
relating to the New Term Loan B Loans set forth opposite such Lender's
name in Schedule 1.01(A) to this Agreement as of the Fourth Amendment
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Effective Date, (C) each Converted Term Loan B Lender is the holder of a
Converted Term Loan B made to the Borrowers as a Term Loan A on or prior
to the Fourth Amendment Effective Date, and converted to a Term Loan B on
the Fourth Amendment Effective Date (as set forth in clause (ii) above),
in an aggregate principal amount equal to the Term Loan B Commitment
relating to the Converted Term Loan B Loans set forth opposite such
Lender's name in Schedule 1.01(A) to this Agreement as of the Fourth
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Amendment Effective Date, and (D) each Additional New Term Loan B Lender
severally agrees to make an Additional New Term Loan B to the Borrowers
on the Fifth 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 Additional 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:
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"(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, (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, and (C) the aggregate principal amount of
the Additional New Term Loan B made on the Fifth Amendment Effective Date
shall not exceed the Total Term Loan B Commitment identified on Schedule
1.01(A) as relating to the Additional New Term Loan B Loans;".
Section 2.04 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, (A) 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
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Loans on the Facility Effective Date, (B) in the case of the New Term Loan B,
shall fully utilize the Total Term Loan B Commitment identified on Schedule
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1.01(A) as relating to the New Term Loan B Loans on the Fourth Amendment
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Effective Date, and (C) in the case of the Additional New Term Loan B, shall
fully utilize the Total Term Loan B Commitment identified on Schedule 1.01(A)
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as relating to the Additional New Term Loan B Loans on the Fifth 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, (A) with respect to the Revolving Loans, must be on or after the Facility
Effective Date, (B) in the case of the Original Term Loan B, must be the
Facility Effective Date, (C) in the case of the New Term Loan B, must be the
Fourth Amendment Effective Date, and (D) in the case of the Additional New
Term Loan B, must be the Fifth Amendment Effective Date,".
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 "3.50%" contained therein and inserting in
lieu thereof the text "3.00%".
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, (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, and (3) the Total Term Loan B Commitment identified on Schedule
1.01(A) as relating to the Additional New Term Loan B Loans shall
terminate on the Fifth Amendment Effective Date."
(b) Section 2.05(b)(ii) of the Financing Agreement is hereby
amended by inserting "(or three (3) Business Days' prior written notice with
respect to the Flexsys Financing Prepayment)" immediately following "written
notice" appearing therein.
(c) Section 2.05(c)(iii) of the Financing Agreement is
hereby amended by deleting the first sentence thereof and inserting the
following sentence in lieu thereof:
"Immediately upon any Disposition by any Loan Party or its Subsidiaries
(other than (w) a Disposition of accounts receivable pursuant to Section
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8.02(c)(i)(J) by a Subsidiary that is not a Loan Party, (x) a Disposition
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of assets of Solutia Europe or any of its Subsidiaries or Flexsys or any
of their Subsidiaries, (y) a Disposition of assets pursuant to Sections
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8.02(c)(i)(D), (E), or (L), or (z) a Disposition of assets pursuant to
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Section 8.02(c)(i)(K) of not more than $5,000,000 in the aggregate), the
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Borrowers shall prepay the outstanding principal amount of the Loans in
an amount equal to 100% of the Net Cash Proceeds received by such Person
in connection with such Disposition, after giving effect to amounts
permitted to be reinvested pursuant to Section 2.05(c)(vii)(A) and
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amounts not required to be prepaid pursuant to the limitation contained
in Section 2.05(c)(vii)(B); provided, however, that so long as no Default
----------------------- -------- -------
or Event of Default has occurred and is continuing on the date such
Person receives such Net Cash Proceeds, (A) with respect to the first
$40,000,000 (after giving effect to Section 2.05(c)(vii)) of Net Cash
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Proceeds received in respect of Dispositions pursuant to Section
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8.02(c)(i)(F) of assets listed on Part III of Schedule 8.02(c)(i), no
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prepayment shall be required, and (B) with respect to the next
$10,000,000 (after giving effect to Section 2.05(c)(vii)) of Net Cash
---------------------
Proceeds received in respect of Dispositions pursuant to Section
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8.02(c)(i)(F) of assets listed on Part III of Schedule 8.02(c)(i), the
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Borrowers shall prepay the outstanding principal amount of
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the Loans in an amount equal to 50% of the Net Cash Proceeds received by
such Person in connection with such Disposition; provided, further,
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however, that with respect to the Disposition listed in Item 5 of Exhibit
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G to the Fourth Amendment, such prepayment shall be made as soon as
practical (and in any event within twenty (20) days) rather than
immediately."
(d) Section 2.05(c)(iv) of the Financing Agreement is hereby
amended by deleting the parenthetical contained in the first sentence of such
Section and replacing it with the following text: "(other than by Solutia
Europe or any of its Subsidiaries or Flexsys or any of their Subsidiaries)."
(e) Section 2.05(c)(v) of the Financing Agreement is hereby
amended and restated in its entirety as follows:
"(v) If the Flexsys Acquisition has not occurred by the date set forth on
Schedule 2.05(c)(v), the Borrowers shall, on the first Business Day
following such date set forth on Schedule 2.05(c)(v), prepay the
outstanding Term Loan B in an aggregate principal amount equal to the
amount by which the sum of (a) the total Term Loan B Loans outstanding as
of the Fifth Amendment Effective Date (after giving effect to the Loans
made on such date) and (b) the total Revolving Credit Commitments as of
the Fifth Amendment Effective Date exceeds $1,075,000,000; to the extent
that the Borrowers shall not, in their sole reasonable discretion, have
made such Flexsys Financing Agreement in such amount on a voluntary basis
on an earlier date in accordance with the terms of Section
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2.05(b)(ii)."(1)
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(f) Section 2.05(c)(vii) of the Financing Agreement is
hereby amended by amending and restating clause (B) of such Section in its
entirety as follows:
"(B) the Borrowers shall not be required to make a prepayment under
clause (iii) or (iv) of this Section 2.05(c) (except in the event that
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prepayment would otherwise be required by another provision of this
Agreement, including clause (vi) of this Section 2.05(c), in which event
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prepayment shall be made in accordance with such other provision), unless
the aggregate amount of Net Cash Proceeds (excluding (I) Net Cash
Proceeds received from (x) a Disposition of assets of Solutia Europe or
any of its Subsidiaries or Flexsys or any of their Subsidiaries, (y) a
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<FN>
(1) NOTE: Amount to be adjusted if facility amount is less than $1,225,000,000
on Fifth Amendment Effective Date.
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Disposition of assets pursuant to Sections 8.02(c)(i)(D), (E), or (L), or
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(z) a Disposition of assets pursuant to Section 8.02(c)(i)(K) of not more
---------------------
than $5,000,0000 in the aggregate and (II) Net Cash Proceeds reinvested
in accordance with Section 2.05(c)(vii)(A)) received as a result of the
------------------------
events described in such Sections exceeds $35,000,000 and any such
required prepayment under such Sections shall be limited to such Net Cash
Proceeds and Extraordinary Receipts, net of any reasonable expenses
incurred in connection with such Extraordinary Receipts, exceeding
$35,000,000; and"
(g) Section 2.05(d)(iii) of the Financing Agreement is
hereby amended and restated 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)) or 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) shall be applied first,
to the Term Loan B until paid in full, and, second, to the Revolving
Loans until paid in full, and the proceeds from any prepayment event set
forth in clause (v) of Section 2.05(c) shall be applied to the Term Loan
B until paid in full."
Section 2.07 Amendment to Section 7.01 of the Financing
------------------------------------------
Agreement.
----------
(a) Section 7.01(e) of the Financing Agreement is hereby
amended by amending and restating the fourth sentence thereof in its entirety
as follows:
"Except as set forth on Schedule 7.01(e), there are no outstanding debt
----------------
or equity securities of the Parent or any of its Subsidiaries (other than
Flexsys and their Subsidiaries) and no outstanding obligations of the
Parent or any of its Subsidiaries convertible into or exchangeable for,
or warrants, options or other rights for the purchase or acquisition from
the Parent or any of its Subsidiaries, or other obligations of any
Subsidiary to issue, directly or indirectly, any shares of Capital Stock
of any Subsidiary of the Parent."
(b) Section 7.01(t) of the Financing Agreement is hereby
amended by inserting the following text at the end of such section:
13
"To the extent that the sum of (a) the total Term Loan B Loans
outstanding as of the Fifth Amendment Effective Date (after giving effect
to the Loans made on such date) and (b) the total Revolving Credit
Commitments as of the Fifth Amendment Effective Date exceeds
$1,075,000,000, the proceeds of Loans constituting such excess shall be
used solely for the purpose of directly or indirectly funding (in part)
the acquisition of the Flexsys Business, including, without limitation,
the acquisition of the existing equity in, and/or the assets of, Flexsys
and its affiliates and other related assets that comprise the Flexsys
Business, or the intercompany loan thereof to Flexsys or another direct
or indirect subsidiary for acquisition of the existing equity and/or
assets of the Flexsys Business."
Section 2.08 Amendments to Section 8.01 of the Financing
-------------------------------------------
Agreement.
----------
(a) Section 8.01(a)(iii) of the Financing Agreement is
hereby amended by inserting the following text at the end of such Section:
"provided, however, that Flexsys and their Subsidiaries shall not be
-------- -------
required to be included in the first two sets of financial statements
required to be delivered pursuant to this Section 8.01(a)(iii) following
--------------------
the consummation of the Flexsys Acquisition; provided, further, however,
-------- -------
that, concurrently with the third set of financial statements required to
be delivered pursuant to this Section 8.01(a)(iii) following the
--------------------
consummation of the Flexsys Acquisition, the Loan Parties shall also
deliver financial statements for the period covered by the financial
statements described in the immediately preceding proviso that did not
include Flexsys and their Subsidiaries, which financial statements shall
include Flexsys and their Subsidiaries;"
(b) Section 8.01(a)(xvi) of the Financing Agreement is
hereby amended by inserting the following text at the end of such Section:
"provided, however, that Flexsys and their Subsidiaries shall not be
-------- -------
required to be included in the first thirteen updated 13 week cash flow
projections required to be delivered pursuant to this Section
-------
8.01(a)(xvi) following the consummation of the Flexsys Acquisition;"
------------
(c) Section 8.01(b) of the Financing Agreement is hereby
amended by inserting the following text at the end thereof after Section
8.01(b)(ii):
14
"(iii) The foregoing clauses (i) and (ii) of this Section 8.01(b) shall
---------------
not apply to Flexsys and their Subsidiaries, provided, that, each Loan
-------- ----
Party that directly owns Capital Stock of Flexsys shall in any event
promptly, and in any event within ten (10) Business Days after the
Flexsys Acquisition, execute and deliver (A) a Pledge Agreement together
with (x) certificates evidencing (1) in the case such Subsidiary is a
directly owned Domestic Subsidiary, all of the Capital Stock of such
Subsidiary and (2) in the case such Subsidiary is a directly owned
Foreign Subsidiary, all of the non-voting Capital Stock and 65% of the
voting Capital Stock of such Subsidiary, (y) undated stock powers
executed in blank with signature guaranteed, and (z) such opinion of
counsel and such approving certificate of such Subsidiary as the
Collateral Agent may reasonably request in respect of complying with any
legend on any such certificate or any other matter relating to such
shares, and (B) such other agreements, instruments, approvals, legal
opinions or other documents reasonably requested by the Collateral Agent
in order to create, perfect, establish the first priority of or otherwise
protect any Lien purported to be covered by such Pledge Agreement."
(d) Section 8.01(h) of the Financing Agreement is hereby
amended by inserting the following text at the end of such Section:
"The foregoing provisions of this Section 8.01(h) shall not be applicable
with respect to Flexsys and their Subsidiaries; provided, however, that
-------- -------
with respect to Flexsys and their Subsidiaries, (i) the Loan Parties
shall in any event maintain or cause to be maintained insurance in such
amounts and covering such risks as is required by any Governmental
Authority having jurisdiction with respect thereto or as is carried
generally in accordance with sound business practice by companies in
similar businesses similarly situated and in any event in amount,
adequacy and scope reasonably satisfactory to the Collateral Agent, (ii)
all such certificates of insurance shall provide for not less than 30
days' prior written notice to the Collateral Agent of the exercise of any
right of cancellation, and (iii) if the Loan Parties fail to maintain or
cause to be maintained such insurance, the Collateral Agent may arrange
for such insurance, but at the Borrowers' expense and without any
responsibility on the Collateral Agent's part for obtaining the
insurance, the solvency of the insurance companies, the adequacy of the
coverage, or the collection of claims."
(e) Section 8.01(k) of the Financing Agreement is hereby
amended by inserting the following text immediately following the word
"Subsidiaries" contained in clause (ii) of the first sentence of such Section:
"(other than the property of Flexsys and their Subsidiaries)".
15
(f) Section 8.01(m) of the Financing Agreement is hereby
amended by inserting the following text immediately following the word
"Subsidiaries" contained in the first sentence of such Section: "(other than
Flexsys and their Subsidiaries)".
Section 2.09 Amendments to Section 8.02 of the Financing
-------------------------------------------
Agreement.
---------
(a) Section 8.02(c)(i)(J) of the Financing Agreement is
hereby amended by (i) deleting the figure "$5,000,000" appearing in clause (I)
thereof and inserting in lieu thereof the figure "$10,000,000", (ii) deleting
the figure "$2,000,000" appearing in clause (II) thereof and inserting in lieu
thereof the figure "$4,000,000", and (iii) deleting the figure "$5,000,000"
appearing in clause (III) thereof and inserting in lieu thereof the figure
"$10,000,000".
(b) Section 8.02(c)(i) of the Financing Agreement is hereby
amended by (i) deleting the word "and" appearing at the end of clause (K)
thereof, and (ii) inserting at the end of clause (L) thereof the following:
"and (M) sell up to $10,000,000 of equipment for at least fair market value
and for cash in connection with sale and leaseback transactions;".
(c) Section 8.02(c)(vi) of the Financing Agreement is hereby
amended and restated in its entirety as follows:
"(vi) any Loan Party and its Subsidiaries may, subject to approval of the
Bankruptcy Court (as required), so long as Consolidated EBITDA of the
Parent and its Subsidiaries at the end of the most recently completed
twelve month period is at least (A) $185,000,000 ($285,000,000 upon or
after the Flexsys Acquisition), for any such period ending on or before
June 30, 2007, or (B) $210,000,000 ($310,000,000 upon or after the
Flexsys Acquisition), for any such period ending thereafter, purchase or
otherwise acquire all or substantially all of the assets and/or 100% of
the Capital Stock of entities having an aggregate value, together with
investments in joint ventures made pursuant to Section 8.02(e)(xix), of
--------------------
not more than $15,000,000;"
(d) Section 8.02(c) of the Financing Agreement is hereby
further amended by (i) deleting the word "and" appearing at the end of clause
(viii) thereof, (ii) replacing the period at the end of clause (ix) thereof
with a semi-colon, and (iii) inserting at the end of clause (ix) thereof the
following:
16
"(x) any of Flexsys and their respective Subsidiaries may sell, lease, or
otherwise dispose of its property or assets so long as (A) the Flexsys
Credit Agreement is in effect and such sale, lease, or disposition is
permitted under the Flexsys Credit Agreement (it being agreed that if at
such time no Flexsys Credit Agreement shall be in effect then the other
provisions of this Section 8.02(c) shall govern the sale, lease, or
disposition of property or assets by Flexsys and their Subsidiaries), (B)
any such transaction or series of related transaction shall not
constitute a sale, lease, or other disposition of all or substantially
all of the assets of Flexsys and their Subsidiaries, taken as a whole,
(C) no other provision of this Agreement would be violated thereby, and
(D) no Default or Event of Default shall have occurred and be continuing
either before or after giving effect to such transaction; and
"(xi) any of Flexsys and their respective Subsidiaries may 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."
(e) Section 8.02(d) of the Financing Agreement is hereby
amended and restated in its entirety as follows:
"(d) Change in Nature of Business. Make, or permit any of its
----------------------------
Subsidiaries to make, any change in the nature of its business as
described in Section 7.01(l) (or, solely in the case of Flexsys and their
---------------
Subsidiaries, as in effect immediately upon the consummation of the
Flexsys Acquisition), other than changes permitted by Section
-------
8.02(c)(vii)(z)."
---------------
(f) Section 8.02(e) of the Financing Agreement is hereby
amended by (i) deleting the word "and" appearing at the end of clause (xvi)
thereof, and (ii) inserting at the end of clause (xvii) thereof the following:
"(xviii) investments by a Loan Party or any Subsidiary thereof in all or
substantially all of the assets of, or 100% of the Capital Stock of, an entity
to the extent permitted by Section 8.02(c)(vi); (xix) so long as Consolidated
-------------------
EBITDA of the Parent and its Subsidiaries at the end of the most recently
completed twelve month period is at least (A) $185,000,000 ($285,000,000 upon
or after the Flexsys Acquisition), for any such period ending on or before
June 30, 2007, or (B) $210,000,000 ($310,000,000 upon or after the Flexsys
Acquisition), for any such period ending thereafter, investments by a Loan
Party or any Subsidiary thereof in joint ventures in an aggregate amount,
together with purchases and/or acquisitions made pursuant to Section
-------
8.02(c)(vi), of not more than $15,000,000; (xx) Investments constituting part
- -----------
of the Flexsys Acquisition; and (xxi) investments by any Loan Party in Flexsys
Holdings BV to acquire 100% of Flexsys America Co., provided, such investments
shall not exceed $3,000,000 in the aggregate."
17
(g) Section 8.02(f) of the Financing Agreement is hereby
amended by (i) inserting "(w) any sale and leaseback of equipment permitted by
Section 8.02(c)(i)(M)" immediately before clause (x) of such Section and (ii)
deleting the figure "$10,000,000" appearing therein and inserting in lieu
thereof the figure "$30,000,000".
(h) Section 8.02(g) of the Financing Agreement is hereby
amended by deleting 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 " appearing therein and inserting the following
text in lieu thereof:
"$130,000,000 in Fiscal Year 2006 and $150,000,000 in Fiscal Year 2007
(provided that, if the acquisition of the Flexsys Business is consummated
during or before Fiscal Year 2007, such amount shall be automatically
increased to $180,000,000 for Fiscal Year 2007 upon such consummation)
and $40,000,000 for the period commencing January 1, 2008, and ending
upon the scheduled Final Maturity Date (provided that, if the acquisition
of the Flexsys Business is consummated during or before such period, such
amount shall be automatically increased to $50,000,000 for such period
upon such consummation)"
(i) Section 8.02(k) of the Financing Agreement is hereby
amended (i) deleting the word "or" appearing at the end of clause (E) thereof,
(ii) deleting the period appearing at the end of clause (F) thereof and
inserting the text "; or" in lieu thereof, and (iii) inserting at the end
thereof the following new clause (G): "(G) after the Flexsys Acquisition,
restrictions on the ability of Flexsys or their Subsidiaries to comply with
this Section 8.02(k) pursuant to documentation related to Indebtedness
---------------
permitted by clause (o) of the definition of Permitted Indebtedness."
(j) Section 8.02(l) of the Financing Agreement is hereby
amended by inserting the following text at the end of such Section:
"Notwithstanding the foregoing, Flexsys or any Subsidiary of Flexsys may
issue or sell, or enter into any agreement or arrangement for the
issuance and sale of, shares of its Capital Stock to any Loan Party or to
Flexsys or any Subsidiary of Flexsys provided that such shares are
pledged to the Collateral Agent in accordance with Section 8.02(b) and
---------------
that no such issuance or sale shall have the effect of diminishing the
aggregate value of the Collateral or the Collateral Agent's rights
therein."
(k) Section 8.02(m) of the Financing Agreement is hereby
amended by (i) deleting the period appearing at the end thereof and (ii)
inserting the following text "(other than payments of accrued and unpaid
interest)." in lieu thereof.
18
(l) Section 8.02(p) of the Financing Agreement is hereby
amended by amending and restating clause (iii) of such Section in its entirety
as follows: "(iii) except pursuant to a settlement as entered into pursuant to
Section 1114 of the Bankruptcy Code adopt or permit any ERISA Affiliate to
adopt any employee welfare benefit plan (other than upon consummation of the
Flexsys Acquisition, any employee welfare benefit plans of Flexsys and their
Subsidiaries) within the meaning of Section 3(1) of ERISA which provides
benefits to employees after termination of employment other than as required
by Section 601 of ERISA or applicable law;".
(m) Section 8.02(t) of the Financing Agreement is hereby
amended by (i) deleting the word "and" appearing at the end of clause (xiv)
thereof, (ii) deleting the period appearing at the end of clause (xv) thereof,
and (iii) inserting in lieu of such period the following: "; and (xvi) in
respect of the Specified Mechanic Lien and the claims underlying such Lien".
(n) Section 8.02 of the Financing Agreement is hereby
further amended by inserting the following text at the end thereof after
Section 8.02(t):
"Notwithstanding the foregoing, from and after the Flexsys Acquisition,
this Section 8.02 (except Sections 8.02(a), (b), (c), (d), (g), (h), (i),
(j), (k), (l), (m), (n), (p), (q), and (s)) shall not apply to, or
restrict, Flexsys and their Subsidiaries."
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 at the end of the table appearing
therein:
"January 31, 2007 $153,000,000
February 28, 2007 $151,100,000"
and inserting the following text in lieu thereof:
"January 31, 2007 $160,000,000
February 28, 2007 $160,000,000
March 31, 2007 $163,900,000
April 30, 2007 $172,700,000
May 31, 2007 $175,200,000
June 30, 2007 $176,000,000
July 31, 2007 $175,400,000
August 31, 2007 $174,500,000
September 30, 2007 $179,200,000
19
October 31, 2007 $186,200,000
November 30, 2007 $194,100,000
December 31, 2007 $206,000,000
January 31, 2008 $209,500,000
February 28, 2008 $215,900,000
March 31, 2008 $219,100,000
provided, however, that after the Flexsys Acquisition, this Section 8.02(a)
- -------- ------- ---------------
shall refer, for periods ending upon or after the date thereof, to the amounts
set forth below:
January 31, 2007 $244,100,000
February 28, 2007 $247,300,000
March 31, 2007 $253,600,000
April 30, 2007 $259,900,000
May 31, 2007 $260,000,000
June 30, 2007 $258,300,000
July 31, 2007 $255,300,000
August 31, 2007 $252,000,000
September 30, 2007 $254,200,000
October 31, 2007 $258,800,000
November 30, 2007 $264,200,000
December 31, 2007 $273,600,000
January 31, 2008 $276,400,000
February 28, 2008 $282,100,000
March 31, 2008 $284,600,000"
(b) Section 8.03(a) 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), the results of the business described in Item 5 of Exhibit G to
-------
the Fourth Amendment shall be disregarded."
(c) Section 8.03(b) 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(b), the results of the business described in Item 5 of Exhibit G to
the Fourth Amendment shall be disregarded."
Section 2.11 Amendments to Section 9.05(c) of the Financing
----------------------------------------------
Agreement.
---------
20
(a) Section 9.05(c)(iii) of the Financing Agreement is
hereby amended by deleting the figure "$2,000,000" appearing in clause (A) of
the proviso thereto and inserting in lieu thereof the figure "$5,000,000".
(b) Section 9.05(c)(iv) of the Financing Agreement is hereby
amended by deleting the figure "$15,000,000" appearing in clause (A) of the
proviso thereto and inserting in lieu thereof the figure "$25,000,000".
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 Amendment to Schedule 7.01(i) of the Financing
----------------------------------------------
Agreement. Schedule 7.01(i) is amendment to add thereto the following
---------
item: "Upon the consummation of the Flexsys Acquisition, employee welfare
benefit plans of Flexsys and their Subsidiaries".
Section 2.14 New Schedule 2.05(c)(v). Exhibit B to this
----------------------- ---------
Amendment is hereby inserted and incorporated into the Financing
Agreement as Schedule 2.05(c)(v) thereto.
Section 2.15 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.
---------
Section 2.16 Amendments to Schedule 8.02(e) of the Financing
-----------------------------------------------
Agreement. Schedule 8.02(e) of the Financing Agreement is hereby amended
---------
as set forth in Exhibit D hereto.
---------
Section 2.17 Amendments to Schedule 8.03 of the Financing
--------------------------------------------
Agreement. Schedule 8.03 of the Financing Agreement is hereby amended as
---------
set forth in Exhibit E hereto.
---------
Section 2.18 Limited Waiver of Section 2.05(c) of the
----------------------------------------
Financing Agreement. The Lenders hereby waive compliance by the Loan
-------------------
Parties with the provisions of Section 2.05(c) of the Financing Agreement
to the extent that such Section would require a mandatory prepayment in
respect of sales of accounts receivable pursuant to Section 8.02(c)(i)(J)
of the Financing Agreement by Subsidiaries of the Borrowers who are not
Loan Parties. Such waiver does not constitute a waiver of Section 2.05(c)
of the Financing Agreement as amended hereby, any waiver for any other
purpose, or a waiver of such Section 2.05(c) after
21
the Fifth Amendment Effective Date, or 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 2.19 Limited Waiver with respect to Section
--------------------------------------
7.01(b)(ii) of the Financing Agreement. The Lenders hereby waive any
--------------------------------------
Default or Event of Default arising under the Financing Agreement solely
as a result of the representation and warranty made or deemed made
pursuant to Section 7.01(b)(ii) of the Financing Agreement being
incorrect in any material respect due to the pledge of the Capital Stock
of Flexsys Holding B.V. and Flexsys America LP by the Loan Parties having
contravened restrictions contained in the organizational documents of, or
joint venture agreements or other agreements related to, such entities;
provided that the Loan Parties hereby agree to amend or cause the
--------
amendment of the organizational documents of, and joint venture
agreements and other agreements related to, Flexsys Holding B.V. and
Flexsys America LP to eliminate all such restrictions of the type to
which this waiver relates as soon as practicable but in any event not
later than the earlier to occur of (a) 60 days following the consummation
of the Flexsys Acquisition and (b) 60 days following the date on which a
mandatory prepayment is required to be made pursuant to Section
2.05(c)(v) of the Financing Agreement. If the Loan Parties fail to comply
with the covenant set forth in the proviso to the immediately preceding
sentence, then the limited waiver set forth in this Section 2.19 shall
immediately terminate and be of no further force and effect.
Section 2.20 Limited Waiver with respect to Section 8.02(a)
----------------------------------------------
of the Financing Agreement. The Lenders hereby waive any Default or Event
--------------------------
of Default arising under Section 8.02(a) the Financing Agreement solely
as a result of any Liens in favor of the 1997 Trustee with respect to the
1997 Indenture that are junior to the liens and claims of the Collateral
Agent for the benefit of the Agents and the Lenders. Such waiver does not
constitute a waiver of Section 8.02(a) of the Financing Agreement after
giving effect to the definition of "Permitted Liens" as amended hereby,
any waiver 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 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 F to this Amendment; provided, that the foregoing
---------
sale 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 such asset sale (it being understood and agreed that,
22
notwithstanding any provision to the contrary contained in Section
2.05(c) or (d) of the Financing Agreement, the Net Cash Proceeds thereof
shall be applied 100% (and without giving effect to any otherwise
applicable exceptions or exclusions otherwise available to the Loan
Parties (except to the extent contained in the definition of Net Cash
Proceeds)) as follows: first, to the Term Loan B until paid in full, and
second, to the Revolving Loans until paid in full); provided, further,
-------- -------
that such asset sale shall not 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 2.22 Limited Waiver of Section 4.02 of Fourth
----------------------------------------
Amendment. The Lenders hereby waive any Default or Event of Default
---------
arising as a result of the failure by the Loan Parties to comply with
Section 4.02 to the Fourth Amendment and hereby waive compliance by the
Loan Parties with the provisions of Section 4.02 of the Fourth Amendment,
in each case solely with respect to delivery of the Belgian Pledge
Agreement; provided that the Loan Parties hereby agree to use their
--------
commercially reasonable efforts to deliver such Belgian Pledge Agreement
as soon as reasonably practicable.
Section 2.23 Consent to Subordination, Non-Disturbance and
---------------------------------------------
Attornment Agreements. The Lenders hereby consent to the execution and
---------------------
delivery by the Administrative Agent, upon the request of the
Administrative Borrower, of one or more subordination, non-disturbance
and attornment (or similar) agreements with regard to leaseholds on real
property owned or leased by any Loan Party, any such agreement to be in a
form acceptable to the Administrative Agent.
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.
23
(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.
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 Amended and
Restated Fee Letter, dated as of January 2, 2007 (the "Fifth Amendment Fee
-------------------
Letter"), among the Borrowers and Citigroup Global Markets Inc., 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
24
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).
(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 Additional Term Loan B Loans
--------
and any Revolving Loans to be made on the Fifth 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 Fifth 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 Fifth 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
25
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 Fifth 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
and delivery of the other documents to be delivered by such Person in
connection herewith and therewith;
(iv) either (A) 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 or (B) a certificate of a Secretary or an Assistant
Secretary of each Loan Party certifying that no changes have occurred
with respect to the identity 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, and the incumbency of
such authorized officers, in each case since the date of the certificate
of the type described in the foregoing clause (A) delivered in connection
with the Fourth Amendment;
(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 Fifth Amendment Effective Date, together, if
requested by the
26
Collateral Agent, with confirmation by telephone or telecopy (where
available) on the Fifth Amendment Effective Date from such official(s) as
to such matters;
(vi) either (A) 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 Fifth Amendment
Effective Date by a Secretary or an Assistant Secretary of such Loan
Party or (B) a certificate of a Secretary or an Assistant Secretary of
each Loan Party certifying that the charter and by-laws, limited
liability company agreement, operating agreement, agreement of limited
partnership or other organizational document of each Loan Party attached
to the certificate of the type described in the foregoing clause (A)
delivered in connection with the Fourth Amendment have not been amended,
modified, or repealed and continue to be in full force and effect on the
Fifth Amendment Effective Date;
(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) either (A) 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 or (B) a certificate of a Secretary or an Assistant
Secretary of the Administrative Borrower certifying that no changes have
occurred with respect to the identity of the persons that are authorized
to provide Notices of Borrowing and all other notices under the Financing
Agreement and the other Loan Documents since the date of the certificate
of the type described in the foregoing clause (A) delivered in connection
with the Fourth Amendment;
(x) the Loan Parties' month-end and year-to-date unaudited
financial statements as of November 30, 2006; and
27
(xi) a Notice of Borrowing in respect of the Additional New
Term Loan B Loan delivered at least three Business Days prior to the
Fifth Amendment Effective Date and otherwise conforming to the
requirements of Section 2.02 of the Financing Agreement.
(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.
(i) Pledge Agreements; Other Loan Documents. 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 referred to therein, except as herein amended,
are hereby ratified and confirmed and shall remain in full force and
effect.
28
Section 5.02 Acknowledgement. Each of the Borrowers and
---------------
Guarantors hereby acknowledges and agrees that as of the Fifth Amendment
Effective Date and immediately after giving effect to this Amendment, the
making of the Additional New Term Loan B Loans, the increase in the
Revolving Credit Commitment, 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 $975,000,000, which principal amount consists of $0
of outstanding Revolving Loans, $300,000,000 of outstanding Original Term
Loan B Loans, $50,000,000 of outstanding Converted Term Loan B Loans,
$300,000,000 of outstanding New Term Loan B Loans, and $325,000,000 of
outstanding Additional New Term Loan B Loans, and remain liable for
reimbursement obligations under Letters of Credit outstanding on the date
hereof with an aggregated undrawn face amount equal to $71,128,855.
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
29
herein contained shall be construed as a substitution or novation of the
Obligations outstanding under the Financing Agreement or instruments
securing the same, 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 Fifth 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
30
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.
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)
31
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
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 & 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
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
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
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 Jaffe
---------------
Name: David Jaffe
Title: Director/Vice President
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 Dravchuk
Title: AVP
ISSUER:
- ------
CITIBANK, N.A., as an Issuer and a Lender
- ---------------
By: /s/ Christine M. Kanicki
------------------------
Name: Christine M. Kanicki
Title: Attorney - In - Fact
LENDER:
- ------
CDL Loan Funding, LLC, as a Lender
- ----------------------------------
By: /s/ Anthony Severino
--------------------
Name: Anthony Severino
Title: Authorized Signatory
LENDER:
- ------
Field Point III Ltd., as a Lender
- ---------------------------------
By: /s/ Richard Petrilli
--------------------
Name: Richard Petrilli
Title: Authorized Signature
LENDER:
- ------
Field Point IV Ltd.,
- --------------------
as a Lender
By: /s/ Richard Petrilli
--------------------
Name: Richard Petrilli
Title: Authorized Signature
LENDER:
- ------
Canyon Capital CLO 2006-1 Ltd.,
- -------------------------------
as a Lender
By: /s/ Michael Leyland
-------------------
Name: Michael Leyland
Title: Authorized Signatory
By: Canyon Capital Advisors LLC
a Delaware limited liability company, its Collateral Manager
LENDER:
- ------
GK Debt Opportunity Fund, LLC,
- -----------------------------
as a Lender
By: GK Capital, LLC as Investment Manager
By: /s/ Michael J. Gelbat
---------------------
Name: Michael J. Gelbat
Title: Managing Member
LENDER:
- ------
BABSON CLO LTD 2003-I
BABSON CLO LTD 2004-II
BABSON CLO LTD 2005-I
BABSON CLO LTD 2005-II
SUFFIELD CLO LIMITED
By: Babson Capital, LLC as Collateral Manager
- ----------------------------------------------
By: /s/ Anthony J. Sciacca
----------------------
Name: Anthony J. Sciacca
Title: Managing Director
BILL & MELINDA GATES FOUNDATION
By: Babson Capital Management LLC as Investment Adviser
By: /s/ Anthony J. Sciacca
----------------------
Name: Michael Leyland
Title: Managing Director
LENDER
- ------
WB Loan Funding 3, LLC
- ----------------------
as a Lender
By: /s/ Diana M. Himes
------------------
Name: Diana M. Himes
Title: Associate
LENDER
- ------
DKR Wolf Point Holding Fund Ltd,
- --------------------------------
as a Lender
By: /s/ Kenneth Schlemmel
---------------------
Name: Kenneth Schlemmel
Title: Managing Partner
LENDER
- ------
Highland Credit Strategies Fund,
- --------------------------------
as a Lender
By: /s/ M. Jason Blackburn
----------------------
Name: M. Jason Blackburn
Title: Treasurer
LENDER
- ------
Highland Floating Rate Advantage Fund,
- --------------------------------------
as a Lender
By: /s/ M. Jason Blackburn
----------------------
Name: M. Jason Blackburn
Title: Treasurer
LENDER
- ------
Rockwall CDO LTD
- ----------------
By: Highland Capital Management, L.P.
- --------------------------------------
as Collateral Manager
- ---------------------
By: Strand Advisors, Inc., Its General Partner,
- ------------------------------------------------
as a Lender
By: /s/ Brian Lohrding
------------------
Name: Brian Lohrding
Title: Treasurer
Strand Advisers, Inc.
General Partner of Highland Capital Management, L.P.
LENDER
- ------
Red River CLO Ltd.
- ------------------
By: Highland Capital Management, L.P.
- --------------------------------------
as Collateral Manager
- ---------------------
By: Strand Advisors, Inc., Its General Partner,
- ------------------------------------------------
as a Lender
By: /s/ Brian Lohrding
------------------
Name: Brian Lohrding
Title: Treasurer
Strand Advisers, Inc.
General Partner of Highland Capital Management, L.P.
LENDER
- ------
Grayson CLO, Ltd.
- -----------------
By: Highland Capital Management, L.P.
- --------------------------------------
as Collateral Manager
- ---------------------
By: Strand Advisors, Inc., Its General Partner,
- ------------------------------------------------
as a Lender
By: /s/ Brian Lohrding
------------------
Name: Brian Lohrding
Title: Treasurer
Strand Advisers, Inc.
General Partner of Highland Capital Management, L.P.
LENDER
- ------
Eastland CLO, LTD
- -----------------
By: Highland Capital Management, L.P.
- --------------------------------------
as Collateral Manager
- ---------------------
By: Strand Advisors, Inc., Its General Partner,
- ------------------------------------------------
as a Lender
By: /s/ Brian Lohrding
------------------
Name: Brian Lohrding
Title: Treasurer
Strand Advisers, Inc.
General Partner of Highland Capital Management, L.P.
LENDER
- ------
Brentwood CDO LTD
- -----------------
By: Highland Capital Management, L.P.
- --------------------------------------
as Collateral Manager
- ---------------------
By: Strand Advisors, Inc., Its General Partner,
- ------------------------------------------------
as a Lender
By: /s/ Brian Lohrding
------------------
Name: Brian Lohrding
Title: Treasurer
Strand Advisers, Inc.
General Partner of Highland Capital Management, L.P.
LENDER
- ------
Rockwall CDO II LTD
- -------------------
By: Highland Capital Management, L.P.
- --------------------------------------
as Collateral Manager
- ---------------------
By: Strand Advisors, Inc., Its General Partner,
- ------------------------------------------------
as a Lender
By: /s/ Brian Lohrding
------------------
Name: Brian Lohrding
Title: Treasurer
Strand Advisers, Inc.
General Partner of Highland Capital Management, L.P.
LENDER
- ------
Highland Credit Opportunities CDO Ltd.
- --------------------------------------
By: Highland Capital Management, L.P.
- -------------------------------------
as Collateral Manager
- ---------------------
By: Strand Advisors, Inc., Its General Partner,
- ------------------------------------------------
as a Lender
By: /s/ Brian Lohrding
-----------------
Name: Brian Lohrding
Title: Treasurer
Strand Advisers, Inc.
General Partner of Highland Capital Management, L.P.
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/ Brian Lohrding
------------------
Name: Brian Lohrding
Title: Treasurer
Strand Advisers, Inc.
General Partner of Highland Capital Management, L.P.
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/ Brian Lohrding
------------------
Name: Brian Lohrding
Title: Treasurer
Strand Advisers, Inc.
General Partner of Highland Capital Management, L.P.
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/ Brian Lohrding
------------------
Name: Brian Lohrding
Title: Treasurer
Strand Advisers, Inc.
General Partner of Highland Capital Management, L.P.
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/ Brian Lohrding
------------------
Name: Brian Lohrding
Title: Treasurer
Strand Advisers, Inc.
General Partner of Highland Capital Management, L.P.
LENDER
- ------
CSAM Funding I
- --------------
Credit Suisse Asset Management Syndicated Loan Fund
- ---------------------------------------------------
Madison Pam Funding III, Ltd.
- -----------------------------
as a Lender
By: /s/ David H. Lerner
-------------------
Name: David H. Lerner
Title: Authorized Signatory
LENDER
- ------
Bayerische Hypo und Vereinsbank, AG
- -----------------------------------
New York Branch (as a lender)
- -----------------------------
By: /s/ Michael D. Novellino
------------------------
Name: Michael D. Novellino
Title: Director
By: /s/ LoriAnn Curnyn
------------------
Name: LoriAnn Curnyn
Title: Managing Director
LENDER
- ------
Carlyle Capital Investment Limited,
- -----------------------------------
as a Lender
By: /s/ Mark Alter
--------------
Name: Mark Alter
Title: Managing Director
LENDER
- ------
Carlyle Loan Investment Limited,
- --------------------------------
as a Lender
By: /s/ Mark Alter
--------------
Name: Mark Alter
Title: Managing Director
LENDER
- ------
Foothill Income Trust II, L.P.
- ------------------------------
By FIT II GP, LLC, Its Gen Partner,
- -----------------------------------
as a Lender
By: /s/ Sean Dixon
--------------
Name: Sean Dixon
Title: Managing Member
LENDER
- ------
Quattro Special Situations, LLC,
- --------------------------------
as a Lender
By: /s/ Sherri Andrews
------------------
Name: Sherri Andrews
Title: Portfolio Manager
LENDER
- ------
Quattro Distressed Opportunities Fund, LP,
- ------------------------------------------
as a Lender
By: /s/ Sherri Andrews
------------------
Name: Sherri Andrews
Title: Portfolio Manager
LENDER
- ------
Quattro Fund, Ltd,
- ------------------
as a Lender
By: /s/ Sherri Andrews
------------------
Name: Sherri Andrews
Title: Portfolio Manager
LENDER
- ------
Quattro Multi-Strategy Master Fund, LP,
- ---------------------------------------
as a Lender
By: /s/ Sherri Andrews
------------------
Name: Sherri Andrews
Title: Portfolio Manager
LENDER
- ------
Distressed Securities & Special Situations -1,
- ----------------------------------------------
a Series of Underlying Funds Trust,
- -----------------------------------
as a Lender
By: /s/ Sherri Andrews
------------------
Name: Sherri Andrews
Title: Portfolio Manager
LENDER
- ------
Oak Hill Credit Opportunities Financing, Ltd.,
- ---------------------------------------------
as a Lender
By: /s/ Scott D. Krase
------------------
Name: Scott D. Krase
Title: Authorized Person
LENDER
- ------
Cypress Point Trading LLC,
- --------------------------
as a Lender
By: /s/ M. Christina Higgins
------------------------
Name: M. Christina Higgins
Title: Assistant Vice President
LENDER
- ------
Waterville Funding LLC,
- -----------------------
as a Lender
By: /s/ M. Christina Higgins
------------------------
Name: M. Christina Higgins
Title: Assistant Vice President
LENDER
- ------
WatchTower CLO I PLC
- --------------------
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
LENDER
- ------
BLT I LLC,
- ----------
as a Lender
By: /s/ Robert Healey
-----------------
Name: Robert Healey
Title: Authorized Signatory
LENDER
- ------
Credit Suisse Capital LLC,
- --------------------------
as a Lender
By: /s/ Robert Healey
-----------------
Name: Robert Healey
Title: Authorized Signatory
LENDER
- ------
The Assets Management Committee of the
- --------------------------------------
Coca-Cola Company Master Retirement
- -----------------------------------
Trust, By: Pyramis Global Advisors Trust
- ----------------------------------------
Company, As Investment Manager Under
- ------------------------------------
Power of Attorney,
- ------------------
as a Lender
By: /s/ Geoffrey Johnson
--------------------
Name: Geoffrey Johnson
Title: Vice President
LENDER
- ------
Fidelity Central Investment Portfolios LLC:
- -------------------------------------------
Fidelity Floating Rate Central Investment Portfolio,
- ----------------------------------------------------
as a Lender
By: /s/ John H.Costello
-------------------
Name: John H. Costello
Title: Assistant Treasurer
LENDER
- ------
Fidelity Puritan Trust; Fidelity Puritan Fund,
- ----------------------------------------------
as a Lender
By: /s/ John H.Costello
-------------------
Name: John H. Costello
Title: Assistant Treasurer
LENDER
- ------
SMBC DIP LIMITED,
- -----------------
as a Lender
By: /s/ Kenji Fukuda
----------------
Name: Kenji Fukuda
Title: Treasurer
LENDER
- ------
Sankaty Advisors, LLC as Collateral
- -----------------------------------
Manager for Prospect Funding I, LLC
- -----------------------------------
as Term Lender,
- ---------------
as a Lender
By: /s/ Alan K. Halfenger
---------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
LENDER
- ------
Sankaty High Yield Partners II, L.P.,
- -------------------------------------
as a Lender
By: /s/ Alan K. Halfenger
---------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
LENDER
- ------
Sankaty High Yield Partners III, L.P.,
- --------------------------------------
as a Lender
By: /s/ Alan K. Halfenger
---------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
LENDER
- ------
Vitesse CLO Ltd.
- ----------------
By: TCW Advisors as its Portfolio Manager,
- -------------------------------------------
as a Lender
By: /s/ Stephen Suo
---------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
-------------------
Name: G. Wayne Hosang
Title: Vice President
LENDER
- ------
Celerity CLO Ltd.
- -----------------
By: TCW Advisors as Agent,
- ---------------------------
as a Lender
By: /s/ Stephen Suo
---------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
-------------------
Name: G. Wayne Hosang
Title: Vice President
LENDER
- ------
First 2004-I CLO, Ltd.
- ----------------------
By: TCW Advisors as its Collateral Manager,
- --------------------------------------------
as a Lender
By: /s/ Stephen Suo
---------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
-------------------
Name: G. Wayne Hosang
Title: Vice President
LENDER
- ------
First 2004-II CLO, Ltd.
- -----------------------
By: TCW Advisors, Inc., its Collateral Manager,
- ------------------------------------------------
as a Lender
By: /s/ Stephen Suo
---------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
-------------------
Name: G. Wayne Hosang
Title: Vice President
LENDER
- ------
Loan Funding I, LLC,
- --------------------
a wholly owned subsidiary of Citibank, N.A.
- -------------------------------------------
By: TCW Advisors, Inc., as Portfolio Manager
- ---------------------------------------------
of Loan Funding I LLC,
- ----------------------
as a Lender
By: /s/ Stephen Suo
---------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
-------------------
Name: G. Wayne Hosang
Title: Vice President
LENDER
- ------
TCW Select Loan Fund, Limited
- -----------------------------
By: TCW Advisors, Inc., as its Collateral Manager,
- ---------------------------------------------------
as a Lender
By: /s/ Stephen Suo
---------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
-------------------
Name: G. Wayne Hosang
Title: Vice President
LENDER
- ------
TCW Senior Secured Loan Fund, Limited
- -------------------------------------
By: TCW Advisors, Inc., as its Investment Advisor,
- ---------------------------------------------------
as a Lender
By: /s/ Stephen Suo
---------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
-------------------
Name: G. Wayne Hosang
Title: Vice President
LENDER
- ------
Velocity CLO, Ltd.
- ------------------
By: TCW Advisors, Inc., its Collateral Manager,
- ------------------------------------------------
as a Lender
By: /s/ Stephen Suo
---------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
-------------------
Name: G. Wayne Hosang
Title: Vice President
LENDER
- ------
Grand Central Asset Trust, DBF Series,
- --------------------------------------
as a Lender
By: /s/ Janet Haack
----------------
Name: Janet Haack
Title: As Attorney In Fact
LENDER
- ------
Grand Central Asset Trust, BDC Series,
- --------------------------------------
as a Lender
By: /s/ Janet Haack
---------------
Name: Janet Haack
Title: As Attorney In Fact
LENDER
- ------
Boldwater CBNA Loan Funding LLC,
- --------------------------------
as a Lender
By: /s/ Janet Haack
---------------
Name: Janet Haack
Title: As Attorney In Fact
LENDER
- ------
Hibiscus CBNA Loan Funding LLC, for itself or as agent
- ------------------------------------------------------
for Hibiscus CFPI Loan Funding LLC
- ----------------------------------
as a Lender
By: /s/ Janet Haack
---------------
Name: Janet Haack
Title: As Attorney In Fact
LENDER
- ------
Grand Central Asset Trust, PFD Series,
- --------------------------------------
as a Lender
By: /s/ Janet Haack
---------------
Name: Janet Haack
Title: As Attorney In Fact
LENDER
- ------
SOL Loan Funding LLC,
- ---------------------
as a Lender
By: /s/ Janet Haack
---------------
Name: Janet Haack
Title: As Attorney In Fact
LENDER
- ------
WB Loan Funding 3, LLC,
- -----------------------
as a Lender
By: /s/ Diane M. Himes
------------------
Name: Diane M. Himes
Title: Associate
LENDER
- ------
Jay Street Market Value CLO I, Ltd.,
- ------------------------------------
as a Lender
By: DiMaio Ahmad Capital LLC, as Manager
- -----------------------------------------
By: /s/ Paul Travers
----------------
Name: Paul Travers
Title: Managing Director
LENDER
- ------
Seneca Capital,
- ---------------
as a Lender
By: /s/ Bruce Rubin
---------------
Name: Bruce Rubin
Title: Chief Operating Officer
LENDER
- ------
Sun America Life Insurance Companies,
- -------------------------------------
as a Lender
By: /s/ Leslie Pruett
-----------------
Name: Leslie Pruett
Title: Vice President
LENDER
- -------
Eaton Vance Senior Income Trust
- -------------------------------
By: Eaton Vance Management as Investment Advisor.
- --------------------------------------------------
as a Lender
By: /s/ Michael B. Botthof
----------------------
Name: Michael B. Botthof
Title: Vice President
LENDER
- ------
Eaton Vance Institutional Senior Loan Fund
- ------------------------------------------
By: Eaton Vance Management as Investment Advisor.
- --------------------------------------------------
as a Lender
By: /s/ Michael B. Botthof
----------------------
Name: Michael B. Botthof
Title: Vice President
LENDER
- ------
Grayson & Co.
- -------------
By: Boston Management and Research, as Investment Advisor,
- -----------------------------------------------------------
as a Lender
By: /s/ Michael B. Botthof
----------------------
Name: Michael B. Botthof
Title: Vice President
LENDER
- ------
Eaton Vance
- -----------
Limited Duration Income Fund
- ----------------------------
By: Eaton Vance Management as
- ------------------------------
Investment Advisor,
- -------------------
as a Lender
By: /s/ Michael B. Botthof
----------------------
Name: Michael B. Botthof
Title: Vice President
LENDER:
- -------
Eaton Vance Senior Floating-Rate Trust
BY: Eaton Vance Management,
As Investment Advisor,
- -----------------------------
as a Lender
By: /s/ Michael B. Botthof
----------------------
Name: Michael B. Botthof
Title: Vice President
LENDER:
- -------
Eaton Vance Floating-Rate
Income Trust
By: Eaton Vance Management,
As Investment Advisor,
- -----------------------------
as a Lender
By: /s/ Michael B. Botthof
----------------------
Name: Michael B. Botthof
Title: Vice President
LENDER:
- -------
Eaton Vance Credit
Opportunities Fund
By: Eaton Vance Management,
As Investment Advisor,
- -----------------------------
as a Lender
By: /s/ Michael B. Botthof
----------------------
Name: Michael B. Botthof
Title: Vice President
LENDER:
- -------
Sandelman Finance 2006-1, Ltd.,
- -------------------------------
as a Lender
By: /s/ Brad L. Jenkins
-------------------
Name: Brad L. Jenkins
Title: Collateral Administrator
LENDER:
- -------
Satellite Senior Income Fund II, LLC
By Satellite Asset Management, L.P.
Its Investment Manager,
By: /s/ Simon Raykher
-----------------
Name: Simon Raykher
Title: General Counsel
LENDER:
- -------
Loan Funding XIII LLC
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 Tresser Blvd.
10th Floor
Stamford, CT 06901
(T) 203-399-3020
LENDER:
- -------
CANNINGTON Funding Ltd.
By: Silvermine Capital Management, LLC
as Investment Manager,
- -----------------------------
as a Lender
By: /s/ Aaron A. Meyer
------------------
Name: Aaron A. Meyer
Title: Principal
Silvermine Capital Management, LLC
263 Tresser Blvd.
10th Floor
Stamford, CT 06901
(T) 203 399-3020
(F) 203 399-3002
LENDER:
- -------
COMSTOCK FUNDING LTD.
By: Silvermine Capital Management, LLC
as Investment Manager,
- -----------------------------
as a Lender
By: /s/ Aaron A. Meyer
------------------
Name: Aaron A. Meyer
Title: Principal
Silvermine Capital Management, LLC
263 Tresser Blvd.
10th Floor
Stamford, CT 06901
(T) 203 399-3020
(F) 203 399-3002
LENDER:
- -------
Halcyon Structural Asset Management CLO I Ltd.,
- -----------------------------------------------
as a Lender
By: /s/ James W. Sykes
------------------
Name: James W. Sykes
Title: Managing Principal
LENDER:
- -------
Centurion CDO II, Ltd.
By: RiverSource Investments,
LLC as Collateral Manager,
- ---------------------------------
as a Lender
By: /s/ Robin C. Stancil
--------------------
Name: Robin C. Stancil
Title: Director of Operations
LENDER:
- -------
Centurion CDO VI, Ltd.
By: RiverSource Investments,
LLC as Collateral Manager,
- ---------------------------------
as a Lender
By: /s/ Robin C. Stancil
--------------------
Name: Robin C. Stancil
Title: Director of Operations
LENDER:
- -------
Centurion CDO VII, Ltd.
By: RiverSource Investments,
LLC as Collateral Manager,
- ---------------------------------
as a Lender
By: /s/ Robin C. Stancil
--------------------
Name: Robin C. Stancil
Title: Director of Operations
LENDER:
- -------
Cent CDO 12 Limited
By: RiverSource Investments,
LLC as Collateral Manager,
- ---------------------------------
as a Lender
By: /s/ Robin C. Stancil
--------------------
Name: Robin C. Stancil
Title: Director of Operations
LENDER:
- -------
RiverSource Bond Series, Inc. -
RiverSource Floating Rate Fund,
- -------------------------------
as a Lender
By: /s/ Robin C. Stancil
--------------------
Name: Robin C. Stancil
Title: Director of Operations
LENDER:
Deutsche Bank AG London,
- ------------------------
as a Lender
By: /s/ Karim Soitti
----------------
Name: Karim Soitti
Title: Portfolio Manager
LENDER:
- -------
Guggenheim Portfolio Company XII, LLC,
- -------------------------------------
as a Lender
By: /s/ Bruce Rubin
---------------
Name: Bruce Rubin
Title: Chief Operating Officer for
Investment Advisor
LENDER:
Citigroup Financial Products, Inc.,
- ----------------------------------
as a Lender
By: /s/ Gregory W. Frenzel
----------------------
Name: Gregory W. Frenzel
Title: Managing Director
LENDER:
- -------
Apollo Value Investment Fund, L.P.
By Apollo Value Management, L.P.,
- ---------------------------------
as Manager
By: /s/ Patricia M. Navis
---------------------
Name: Patricia M. Navis
Title: Vice President
LENDER:
Apollo Value Investment Offshore Fund, Ltd.
By Apollo Value Management, L.P,
- --------------------------------
as Manager
By: /s/ Patricia M. Navis
---------------------
Name: Patricia M. Navis
Title: Vice President
LENDER:
- ------
Marathon Financing I, B.V.,
- ---------------------------
as a Lender
By: /s/ Louis T. Hanover
--------------------
Name: Louis T. Hanover
Title: Authorized Signatory
LENDER:
- -------
Granite Ventures I Ltd.
By: Stone Tower Debt Advisors LLC,
as its collateral Manager
By: /s/ Michael W. Delpercio
------------------------
Name: Michael W. Delpercio
Title: Authorized Signatory
LENDER:
- -------
Granite Ventures II Ltd.
By: Stone Tower Debt Advisors LLC,
as its collateral Manager
By: /s/ Michael W. Delpercio
------------------------
Name: Michael W. Delpercio
Title: Authorized Signatory
LENDER:
- -------
Granite Ventures III Ltd.
By: Stone Tower Debt Advisors LLC,
as its collateral Manager
By: /s/ Michael W. Delpercio
------------------------
Name: Michael W. Delpercio
Title: Authorized Signatory
LENDER:
- -------
Stone Tower CDO Ltd.
By: Stone Tower Debt Advisors LLC,
as its collateral Manager
By: /s/ Michael W. Delpercio
------------------------
Name: Michael W. Delpercio
Title: Authorized Signatory
LENDER:
- -------
Stone Tower CLO VI Ltd.
By: Stone Tower Debt Advisors LLC,
as its collateral Manager
By: /s/ Michael W. Delpercio
------------------------
Name: Michael W. Delpercio
Title: Authorized Signatory
LENDER:
- -------
Stone Tower CLO V Ltd.
By: Stone Tower Debt Advisors LLC,
as its collateral Manager
By: /s/ Michael W. Delpercio
------------------------
Name: Michael W. Delpercio
Title: Authorized Signatory
LENDER:
- -------
Stone Tower CDO II Ltd.
By: Stone Tower Debt Advisors LLC,
as its collateral Manager
By: /s/ Michael W. Delpercio
------------------------
Name: Michael W. Delpercio
Title: Authorized Signatory
LENDER:
- -------
Stone Tower Credit Funding I Ltd.
By: Stone Tower Fund Management LLC,
as its collateral Manager
By: /s/ Michael W. Delpercio
------------------------
Name: Michael W. Delpercio
Title: Authorized Signatory
LENDER:
- -------
Rockview Trading, Ltd.,
- -----------------------
as a Lender
By: /s/ Kevin Schweitzer
--------------------
Name: Kevin Schweitzer
Title: Portfolio Manager
LENDER:
- -------
GPC XLI LLC,
- -----------
as a Lender
By: /s/ Kevin Schweitzer
--------------------
Name: Kevin Schweitzer
Title: Portfolio Manager
LENDER:
- -------
Southpaw Credit Opportunity Master
Fund LP,
- --------
as a Lender
By: /s/ Kevin Wyman
---------------
Name: Kevin Wyman
Title: Managing Member of General Partner
Southpaw GP LLC
LENDER:
- -------
GSO Special Situations Overseas Fund, Ltd. ,
- ------------------------------------------
as a Lender
By: GSO Capital Partners LP, its investment
advisor
By: /s/ George Fan
--------------
Name: George Fan
Title: Managing Director
LENDER:
- -------
GSO Special Situations Overseas Benefit
Plan Fund, Ltd.,
- ----------------
as a Lender
By: GSO Capital Partners LP, its investment
advisor
By: /s/ George Fan
--------------
Name: George Fan
Title: Managing Director
LENDER:
- -------
Latigo Master Fund, Ltd.,
- -------------------------
as a Lender
By: /s/ Stephen Blautner
--------------------
Name: Stephen Blautner
Title: Authorized Signatory
LENDER:
- -------
VS CBNA Loan Funding, LLC,
- --------------------------
as a Lender
By: /s/ Stephen Gloria
------------------
Name: Stephen Gloria
Title: Officer