EXHIBIT 10.1
FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment"), dated as of November 5,
2001, among RESOLUTION PERFORMANCE PRODUCTS INC., a Delaware corporation
("Holdings"), RESOLUTION PERFORMANCE PRODUCTS, LLC, a Delaware limited liability
company ("RPP USA"), RPP CAPITAL CORPORATION, a Delaware corporation ("US
Finance Corp." and, together with RPP USA, the "US Borrowers" and each, a "US
Borrower"), RESOLUTION NEDERLAND B.V., a company organized under the laws of The
Netherlands (the "Dutch Borrower" and, together with the US Borrowers, the
"Borrowers" and each, a "Borrower"), the lenders from time to time party hereto
(each, a "Lender" and, collectively, the "Lenders"), and MORGAN STANLEY SENIOR
FUNDING, INC., as Administrative Agent (in such capacity, the "Administrative
Agent"). All capitalized terms used herein and not otherwise defined herein
shall have the respective meanings provided such terms in the Credit Agreement
referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Holdings, the Borrowers, the Lenders and the Agents
are parties to a Credit Agreement, dated as of November 14, 2000 (the "Credit
Agreement");
WHEREAS, the parties hereto wish to amend certain provisions
of the Credit Agreement in each case as herein provided; and
WHEREAS, subject to the terms and conditions of this
Amendment, the parties hereto agree as follows;
NOW, THEREFORE, it is agreed:
1. Section 9.04(g) of the Credit Agreement is hereby
restated in its entirety as follows:
"(g) unsecured Indebtedness of the US Borrowers and any other
US Credit Party that is a Subsidiary Guarantor incurred under the
Senior Subordinated Notes and the other Senior Subordinated Note
Documents (x) issued on the Initial Borrowing Date in an aggregate
principal amount not to exceed $200,000,000 less the amount of any
repayments of principal thereof after the Initial Borrowing Date and
(y) issued thereafter in an aggregate principal amount not to exceed
$75,000,000 (for this purpose, exclusive of any premium or notional
interest paid on such Senior Subordinated Notes by the purchasers
thereof) less the amount of any repayments of principal thereof after
the date of the issuance thereof, provided that, in the case of any
such Indebtedness incurred under clause (y) above, 100% of the Net Cash
Proceeds (for this purpose, inclusive of all premiums and notional
interest paid on such Senior Subordinated Notes by the purchasers
thereof) therefrom shall, notwithstanding the Applicable Prepayment
Percentage and anything to the contrary contained in the last sentence
of Section 4.02(e), be applied as a mandatory repayment of Term Loans
on the date of such incurrence in accordance with the requirements of
Sections 4.02(i) and (j)."
2. Section 9.09 of the Credit Agreement is hereby amended by
deleting the table appearing therein in its entirety and inserting the
following new table in lieu thereof:
"Fiscal Quarter Ending Ratio
---------------------- -----
September 30, 2001 1.60:1.0
December 31, 2001 1.60:1.0
March 31, 2002 1.60:1.0
June 30, 2002 1.60:1.0
September 30, 2002 1.60:1.0
December 31, 2002 1.60:1.0
March 31, 2003 1.60:1.0
June 30, 2003 1.60:1.0
September 30, 2003 1.60:1.0
December 31, 2003 1.65:1.0
March 31, 2004 1.65:1.0
June 30, 2004 1.65:1.0
September 30, 2004 1.65:1.0
December 31, 2004 1.65:1.0
March 31, 2005 1.70:1.0
June 30, 2005 1.70:1.0
September 30, 2005 1.70:1.0
December 31, 2005 1.70:1.0
March 31, 2006 1.90:1.0
June 30, 2006 1.90:1.0
September 30, 2006 1.90:1.0
December 31, 2006 2.00:1.0
March 31, 2007 2.00:1.0
June 30, 2007 2.00:1.0
September 30, 2007 2.00:1.0
December 31, 2007 2.00:1.0
March 31, 2008 2.00:1.0
Thereafter 2.25:1.0"
3. Section 9.10 of the Credit Agreement is hereby amended by
deleting the table appearing therein in its entirety and inserting the following
new table in lieu thereof:
"Fiscal Quarter Ending Ratio
---------------------- -----
September 30, 2001 5.75:1.0
December 31, 2001 5.75:1.0
March 31, 2002 5.75:1.0
June 30, 2002 5.75:1.0
September 30, 2002 5.75:1.0
December 31, 2002 5.75:1.0
March 31, 2003 5.75:1.0
June 30, 2003 5.75:1.0
September 30, 2003 5.75:1.0
December 31, 2003 5.50:1.0
March 31, 2004 5.50:1.0
June 30, 2004 5.50:1.0
September 30, 2004 5.50:1.0
December 31, 2004 5.25:1.0
March 31, 2005 5.20:1.0
June 30, 2005 5.15:1.0
September 30, 2005 5.10:1.0
December 31, 2005 5.00:1.0
March 31, 2006 4.95:1.0
June 30, 2006 4.90:1.0
September 30, 2006 4.85:1.0
December 31, 2006 4.75:1.0
March 31, 2007 4.50:1.0
June 30, 2007 4.50:1.0
September 30, 2007 4.50:1.0
December 31, 2007 4.50:1.0
March 31, 2008 4.50:1.0
Thereafter 4.50:1.0"
4. The definitions of "Senior Subordinated Notes" and
"Exchange Senior Subordinated Notes" appearing in Section 11 of the Credit
Agreement are hereby restated in their entirety as follows:
"Senior Subordinated Notes" shall mean each of (i) the US
Borrowers' 13.50% Senior Subordinated Notes due 2010 issued on the
Initial Borrowing Date pursuant to the Senior Subordinated Note
Indenture, as in effect on the Initial Borrowing Date and as the same
may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof, and (ii) any such Senior
Subordinated Notes issued thereafter in accordance with Section
9.04(g)(y) and having terms and conditions identical to the Senior
Subordinated Notes issued in the Initial Borrowing Date. As used
herein, the term "Senior Subordinated Notes" shall include any Exchange
Senior Subordinated Notes issued pursuant to the Senior Subordinated
Notes Indenture in exchange for theretofore outstanding Senior
Subordinated Notes, as contemplated by the Offering Memorandum and the
definition of Exchange Senior Subordinated Notes.
"Exchange Senior Subordinated Notes" shall mean Senior
Subordinated Notes which are substantially identical securities to the
Senior Subordinated Notes issued on the Initial Borrowing Date or
thereafter in accordance with Section 9.04(g)(y), as the case may be,
which Exchange Senior Subordinated Notes shall be issued pursuant to a
registered exchange offer or private exchange offer for the Senior
Subordinated Notes and pursuant to the Senior Subordinated Notes
Indenture. In no event will the issuance of any Exchange Senior
Subordinated Notes increase the aggregate principal amount of Senior
Subordinated Notes then outstanding or otherwise result in an increase
in an interest rate applicable to the Senior Subordinated Notes.
5. (a) Sections 1, 4 and 9 of this Amendment shall become
effective as of the date first above written (the "First Amendment Effective
Date") on the date when Holdings, each Borrower and the Required Lenders shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by way of facsimile transmission) the same
to the Administrative Agent at the Notice Office and (b) Sections 2 and 3 of
this Amendment shall become effective as of the date when (i) the conditions set
forth in preceding clause (a) have been satisfied and (ii) the US Borrowers
shall have issued Senior Subordinated Notes pursuant to Section 9.04(g)(y) of
the Credit Agreement in an aggregate principal amount of at least $70,000,000.
6. In order to induce the Lenders to enter into this
Amendment, Holdings and each Borrower hereby represent and warrant that (i) no
Default or Event of Default exists on the First Amendment Effective Date, both
before and after giving effect to this Amendment, and (ii) on the First
Amendment Effective Date, both before and after giving effect to this Amendment,
all representations and warranties contained in the Credit Agreement and in the
other Credit Documents are true and correct in all material respects (it being
understood that any representation or warranty made as of a specific date shall
be true and correct in all material respects as of such specific date).
7. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be delivered to Holdings, the US Borrowers and the
Administrative Agent.
8. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
9. From and after the First Amendment Effective Date, all
references in the Credit Agreement and each of the other Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
modified hereby.
10. This Amendment is limited as specified and shall not
constitute a modification, acceptance or amendment of any other provision of the
Credit Agreement or any other Credit Document.
* * *
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
RESOLUTION PERFORMANCE PRODUCTS INC.
By: /s/ Marvin O. Schlanger
------------------------------------
Name: Marvin O. Schlanger
Title: Chairman
RESOLUTION PERFORMANCE PRODUCTS LLC
By: /s/ Marvin O. Schlanger
-----------------------------------
Name: Marvin O. Schlanger
Title: Chairman
RPP CAPITAL CORPORATION
By: /s/ Marvin O. Schlanger
----------------------------------
Name: Marvin O. Schlanger
Title: Chairman
RESOLUTION NEDERLAND B.V.
By: /s/ Marvin O. Schlanger
---------------------------------
Name: Marvin O. Schlanger
Title: Chairman
MORGAN STANLEY SENIOR FUNDING INC.,
Individually and as Administrative Agent
By: /s/ Henry F. D'Alessandro
--------------------------------
Name: Henry F. D'Alessandro
Title: Executive Director
MORGAN STANLEY & CO. INCORPORATED,
as Collateral Agent
By: /s/ Henry F. D'Alessandro
------------------------------
Name: Henry F. D'Alessandro
Title: Executive Director
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Peter A. Dedousis
-----------------------------
Name: Peter A. Dedousis
Title: Managing Director
CITICORP USA, INC.
By: /s/ Mark R. Floyd
-----------------------------
Name: Mark R. Floyd
Title: Vice President
CITIBANK, NA.
By: /s/ Mark R. Floyd
-----------------------------
Name: Mark R. Floyd
Title: Vice President
TEXTRON FINANCIAL CORPORATION
By: /s/ Matthew J. Colgan
-----------------------------
Name: Matthew J. Colgan
Title: Director
FIRST UNION INSTITUTIONAL DEBT MANAGEMENT, INC.
By: /s/ William A. Hayes
-----------------------------
Name: William A. Hayes
Title: Director
STANFIELD ARBITRAGE CDO, LTD.
By: Stanfield Capital Partners LLC as its Collateral
Manager
By: /s/ Christopher A. Bondy
-----------------------------
Name: Christopher A. Bondy
Title: Partner
WINDSOR LOAN FUNDING, LIMITED
By: Stanfield Capital Partners LLC as its Investment
Manger
By: /s/ Christopher A. Bondy
-----------------------------
Name: Christopher A. Bondy
Title: Partner
STANFIELD CLO, LTD.
By: Stanfield Capital Partners LLC as its Collateral
Manager
By: /s/ Christopher A. Bondy
-----------------------------
Name: Christopher A. Bondy
Title: Partner
STANFIELD/RMF TRANSATLANTIC CDO, LTD.
By: Stanfield Capital Partners LLC as its Collateral
Manager
By: /s/ Christopher A. Bondy
-----------------------------
Name: Christopher A. Bondy
Title: Partner
AMMC CDO II, LIMITED
By: American Money Management Corp., as
Collateral Manager
By: /s/ David P. Meyer
-----------------------------
Name: David P. Meyer
Title: Vice President
AG CAPITAL FUNDING PARTNERS, L.P.
By: Angelo, Gordon & Co., L.P.,as Investment Advisor
By: /s/ John W. Fraser
-----------------------------
Name: John W. Fraser
Title: Managing Director
NORTHWOODS CAPITAL, LIMITED
By: Angelo, Gordon & Co., L.P.,as Collateral Manager
By: /s/ John W. Fraser
-----------------------------
Name: John W. Fraser
Title: Managing Director
NORTHWOODS CAPITAL II, LIMITED
By: Angelo, Gordon & Co., L.P.,as Collateral Manager
By: /s/ John W. Fraser
-----------------------------
Name: John W. Fraser
Title: Managing Director
NORTHWOODS CAPITAL III, LIMITED
By: Angelo, Gordon & Co., L.P.,as Collateral Manager
By: /s/ John W. Fraser
-----------------------------
Name: John W. Fraser
Title: Managing Director
IKB CAPITAL CORPORATION
By: /s/ David Snyder
-----------------------------
Name: David Snyder
Title: President
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
By: /s/ F. Lienhard
-----------------------------
Name: F. Lienhard
Title: Manager
By: /s/ Diane C. Faureau
-----------------------------
Name: Diane C. Faureau
Title: Vice President
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: ARES Management II, L.P.
Its: General Partner
By: /s/ David A. Sachs
-----------------------------
Name: David A. Sachs
Title: Vice President
ARES III CLO LTD.
By: ARES CLO Management, LLC
Its: Investment Manager
By: /s/ David A. Sachs
-----------------------------
Name: David A. Sachs
Title: Vice President
ARES IV CLO LTD.
By: ARES CLO Management IV, L.P.
Its: Investment Manager
By: ARES CLO GP IV, LLC
It: Managing Member
By: /s/ David A. Sachs
-----------------------------
Name: David A. Sachs
Title: Vice President
SIERRA CLO-I
By: /s/ John M. Casparian
----------------------------
Name: John M. Casparian
Title: Chief Operating
Officer Centre
Pacific LLC,
Manager
BARCLAYS BANK PLC
ACTING FOR AND ON OF BEHALF OF JUBILEE CDO I B.V.
By: /s/ D. Forbes Nixon
----------------------------
Name: D. Forbes Nixon
Title: Director
DUCHESS I CDO S.A.
By: /s/ David Wilmont
----------------------------
Name: David Wilmont
Title: Director
Duke Street
Capital Debt
Management on
behalf of Duchess
I CDO S.A.
EUROCREDIT CDO I B.V.
By: /s/ Sara Halbard
----------------------------
Name: Sara Halbard
Title: Portfolio Manager
EUROCREDIT CDO II B.V.
By: /s/ Sara Halbard
----------------------------
Name: Sara Halbard
Title: Portfolio Manager
PROMUS I, B.V.
By: /s/ Andrew C. Phillips
----------------------------
Name: Andrew C. Phillips
Title: Power of Attorney
HARBOURMASTER LOAN CORPORATION B.V.
By: /s/ TMF Management B.V.
----------------------------
Name: TMF Management B.V.
Title: Managing Director
THE BANK OF NOVA SCOTIA
By: /s/ M.D. Smith
----------------------------
Name: M.D. Smith
Title: Agent
STEIN ROE & FARNHAM CLO I LTD.
By: Stein Roe & Farnham Incorporated, as Portfolio
Manager
[Insert Name of Institution]
By: /s/ James R. Fellows
----------------------------
Name: James R. Fellows
Title: Sr. Vice President
& Portfolio Manager
LIBERTY - STEIN ROE ADVISOR FLOATING RATE ADVANTAGE
FUND
By: Stein Roe & Farnham Incorporated, as Advis
[Insert Name of Institution]
By: /s/ James R. Fellows
----------------------------
Name: James R. Fellows
Title: Sr. Vice President
& Portfolio Manager
STEIN ROE & FARNHAM INCORPORATED, AS AGENT FOR
KEYPORT LIFE INSURANCE COMPANY
[Insert Name of Institution]
By: /s/ James R. Fellows
----------------------------
Name: James R. Fellows
Title: Sr. Vice President
& Portfolio Manager
STEIN ROE FLOATING RATE LIMITED LIABILITY COMPANY
[Insert Name of Institution]
By: /s/ James R. Fellows
------------------------------
Name: James R. Fellows
Title: Senior Vice President
Stein Roe & Farnham
Incorporated, as Advisor to
the Stein Roe Floating Rate
Limited Liability Company
SRF TRADING, INC.
By: /s/ Diana L. Mushill
----------------------------
Name: Diana L. Mushill
Title: Assistant Vice
President
SRF 2000 LLC
By: /s/ Diana L. Mushill
----------------------------
Name: Diana L. Mushill
Title: Assistant Vice
President
BAVARIA TRR CORPORATION
By: /s/ Lori Rezza
----------------------------
Name: Lori Rezza
Title: Vice President
FIDELITY ADVISOR SERIES II: FIDELITY ADVISOR FLOATING
RATE HIGH INCOME FUND
By: /s/ John H. Costello
----------------------------
Name: John H. Costello
Title: Assistant Treasurer
KZH ING-1 LLC
By: /s/ Susan Lee
----------------------------
Name: Susan Lee
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ Susan Lee
----------------------------
Name: Susan Lee
Title: Authorized Agent
KZH ING-3 LLC
By: /s/ Susan Lee
----------------------------
Name: Susan Lee
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By: /s/ Susan Lee
----------------------------
Name: Susan Lee
Title: Authorized Agent
KZH SOLEIL LLC
By: /s/ Susan Lee
----------------------------
Name: Susan Lee
Title: Authorized Agent
OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II, L.P.
its General Partner
By: Oak Hill Securities MEP II, Inc., its General
Partner
By: /s/ Scott D. Krase
----------------------------
Name: Scott D. Krase
Title: Vice President