EXHIBIT 10.58
CONFORMED AS EXECUTED
FIRST AMENDMENT TO
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AMENDED AND RESTATED US PLEDGE AGREEMENT
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FIRST AMENDMENT TO AMENDED AND RESTATED US PLEDGE AGREEMENT (this
"Amendment"), dated as of December 22, 2003, 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"), THE BANK OF NEW YORK, as
trustee (together with any successor trustee, the "Additional Senior Secured
Notes Trustee") for its benefit and for the benefit of the holders from time to
time of the Additional Senior Secured Notes (as defined in the US Pledge
Agreement (after giving effect to this Amendment) referred to below), and MORGAN
STANLEY & CO., INCORPORATED, as Collateral Agent and Pledgee for the benefit of
the Secured Creditors (as defined in the US Pledge Agreement). All capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings provided such terms in the US Pledge Agreement (after giving effect to
this Amendment).
WITNESSETH:
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WHEREAS, Holdings, the US Borrowers and the Pledgee entered into an
Amended and Restated US Pledge Agreement, dated as of November 14, 2000, and
amended and restated as of April 9, 2003 (as amended, modified or supplemented
to, but not including, the date hereof, the "US Pledge Agreement"), which was
acknowledged and agreed to by the Senior Secured Notes Trustee;
WHEREAS, pursuant to the Fifth Amendment to the Bank Credit Agreement
(the "Fifth Amendment to the Bank Credit Agreement"), dated as of December 15,
2003, the Bank Lender Creditors (which constitute the Required Secured Creditors
determined before giving effect to this Amendment) have authorized the Pledgee
to enter into an amendment to the US Pledge Agreement in the form of this
Amendment to, inter alia and for the avoidance of doubt, to clarify that the
Collateral of the US Borrowers (other than the Additional Senior Secured Notes
Excluded Collateral) pledged under the US Pledge Agreement also secure the
obligations of the US Borrowers in respect of the Note Credit Documents; and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto agree as follows;
NOW, THEREFORE, it is agreed:
1. The last sentence of the introductory paragraph of the US
Pledge Agreement is hereby amended by inserting the word "Bank" immediately
prior to (i) the words "Credit Agreement" in each instance such words appear in
such last sentence and (ii) the words "Credit Document Obligations" appearing in
such last sentence.
2. The first recital of the US Pledge Agreement is hereby
amended by (i) deleting the text "(the "Credit Agreement")" appearing therein
and inserting the text "the
"Bank Credit Agreement")" in lieu thereof and (ii) deleting the words ""Lender
Creditors"" appearing therein and inserting the words ""Bank Lender Creditors""
in lieu thereof.
3. The second, fifth, sixth, seventh and ninth recitals of the
US Pledge Agreement (before giving effect to this Amendment) are hereby amended
by inserting the word "Bank" immediately prior to the words "Credit Agreement"
in each instance such words appear in such recitals.
4. The second, fifth and ninth recitals of the US Pledge
Agreement (before giving effect to this Amendment) are also amended by inserting
the word "Bank" immediately prior to the words "Lender Creditors" in each
instance such words appear in such recitals.
5. The third recital of the US Pledge Agreement (before giving
effect to this Amendment) is hereby amended by deleting the words "Lender
Creditors" appearing therein and inserting the text "Bank Lender Creditors, the
Note Lender Creditors" in lieu thereof.
6. The US Pledge Agreement is hereby further amended by
inserting the following new recitals immediately following the first recital
contained therein:
"WHEREAS, the US Borrowers and The Bank of New York, as trustee
(together with any successor trustee, the "Additional Senior Secured Notes
Trustee"), have entered into an Indenture, dated as of December 22, 2003
(as amended, modified, extended, renewed, replaced, restated, supplemented
or refinanced from time to time, and including any agreement extending the
maturity of, or refinancing or restructuring (including, but not limited
to, the inclusion of additional borrowers or guarantors thereunder or any
increase in the amount borrowed thereunder) all or any portion of the
indebtedness under such Indenture or any successor agreement whether or not
with the same trustee, representative, agent, lenders, holders or group of
lenders or holders, the "Note Credit Agreement" and, together with the Bank
Credit Agreement, collectively, the "Credit Agreement"), providing for (i)
the issuance by the US Borrowers of their 8% Senior Secured Notes due
December 15, 2009 (the "Additional Senior Secured Notes") to the holders
thereof from time to time (such holders, the "Additional Senior Secured
Noteholders" and, together with the Additional Senior Secured Notes
Trustee, the "Note Lender Creditors"; and the Note Lender Creditors and the
Bank Lender Creditors are collectively the "Lender Creditors") and (ii) the
guaranty by any future US Credit Party that is a Subsidiary Guarantor of
the US Borrowers' obligations under the Note Credit Agreement and the
Additional Senior Secured Notes (each such guaranty, together with the Note
Credit Agreement and the Additional Senior Secured Notes, are herein called
the "Note Credit Documents");
WHEREAS, a portion of the proceeds from the issuance of the Additional
Senior Secured Notes have been applied to repay in full all remaining
outstanding Term Loans under the Bank Credit Agreement and such issuance is
otherwise permitted by the Bank Credit Agreement and the Senior Secured
Note Indenture (as defined below), and, accordingly for the avoidance of
doubt, the Note Credit Agreement constitutes a part of the "Credit
Agreement" and "First Lien Obligations" for the purposes of (and as defined
in) this Agreement (before and after giving effect to this Amendment, and
until such
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time, if any, as the indebtedness under the Note Credit Agreement is
reclassified in accordance with the terms thereof) but does not constitute
a part of the Bank Credit Agreement for the purposes of this Agreement;".
7. Section 1 of the US Pledge Agreement is hereby amended by
(i) inserting the parenthetical "(which term Credit Documents, for purposes of
this clause (i) only, for the avoidance of doubt, also includes all Note Credit
Documents)" immediately after the words "and the other Credit Documents"
appearing in clause (i) of such Section 1 and (ii) deleting the last
parenthetical statement appearing in such clause (i) and inserting the following
new parenthetical statement in lieu thereof:
"(all such obligations, indebtedness and liabilities under this clause
(i), except to the extent consisting of Other Obligations, being herein
collectively called the "Credit Document Obligations", and all such
obligations, indebtedness, and liabilities under this clause (i), except to
the extent consisting of Other Obligations and obligations, indebtedness or
liabilities with respect to the Note Credit Documents, being herein
collectively called the "Bank Credit Document Obligations")".
8. Section 2(a) of the US Pledge Agreement is hereby amended
by inserting the word "Bank" immediately prior to the words "Credit Agreement"
appearing therein.
9. The definition of "Event of Default" appearing in Section
2(b) of the US Pledge Agreement is hereby amended by inserting the word "Bank"
immediately prior to (i) the words "Credit Agreement" appearing in clause (iii)
of such definition and (ii) the words "Credit Document Obligations" appearing in
clause (ii) of such definition.
10. The definition of "Secured Debt Agreements" appearing in
Section 2(b) of the US Pledge Agreement is hereby amended by inserting the
following new parenthetical immediately after the words "Credit Documents"
appearing therein:
"(which term Credit Documents, for purposes of this definition only,
also shall include all Note Credit Documents)".
11. Section 2(b) of the US Pledge Agreement is hereby further amended
by inserting the following new definitions in the proper alphabetical order:
"Additional Senior Secured Noteholders" shall have the meaning
provided in the recitals to this Agreement.
"Additional Senior Secured Notes" shall have the meaning provided in
the recitals to this Agreement.
"Additional Senior Secured Notes Excluded Collateral" shall have the
meaning set forth in the US Security Agreement.
"Additional Senior Secured Notes Trustee" shall have the meaning
provided in the recitals to this Agreement.
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"Bank Credit Agreement" shall have the meaning provided in the
recitals to this Agreement.
"Bank Credit Document Obligations" shall have the meaning set forth in
Section 1 hereof.
"Bank Lender Creditors" shall have the meaning provided in the
recitals to this Agreement.
"Intercreditor Agreement" shall mean the Intercreditor Agreement,
dated as of December 22, 2003, among the Additional Senior Secured Notes
Trustee, the Administrative Agent, the Pledgee and the Overdraft Creditors,
and acknowledged and agreed to by the US Credit Parties from time to time
party thereto, as amended, modified, restated, supplemented or replaced
from time to time in accordance with the terms thereof, including, without
limitation, any intercreditor or similar agreement with respect to any
refinancing, replacement or restructuring (including, without limitation,
any such agreement increasing the amount of indebtedness referred to
therein or adding additional parties thereto) with respect to all or any
portion of the indebtedness referenced in such agreement.
"Note Credit Agreement" shall have the meaning provided in the
recitals to this Agreement.
"Note Credit Documents" shall have the meaning provided in the recital
to this Agreement.
"Note Lender Creditors" shall have the meaning provided in the
recitals to this Agreement.
12. Section 3.1(a) of the US Pledge Agreement is hereby amended
by inserting the word "Bank" immediately prior to the words "Credit Agreement"
appearing therein.
13. The last paragraph of Section 3.1 of the US Pledge
Agreement is hereby amended by (i) inserting the word "Bank" immediately prior
to the words "Credit Agreement" appearing in clause (x) thereof, (ii) inserting
the text "(A)" immediately following the text "(z)" appearing therein, (iii)
deleting the period at the end of clause (z) thereof and inserting the text ",
and" in lieu thereof and (iv) inserting the following new clause (B) at the end
of clause (z) thereof:
"(B)(I) the Note Lender Creditors shall not have a security interest in,
and the grant of security interests pursuant to this Section 3.1 for the
benefit of the Note Lender Creditors shall not extend to, any Additional
Senior Secured Notes Excluded Collateral, and with respect to the Note
Lender Creditors the "Collateral" shall not include the Additional Senior
Secured Notes Excluded Collateral, and (II) the Liens, rights, remedies and
benefits of the Note Lender Creditors in respect of the Collateral and this
Agreement are also expressly subject to all of the terms, provisions and
conditions of the Intercreditor Agreement."
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14. Section 5 of the US Pledge Agreement is hereby amended by
inserting the word "Bank" immediately prior to the words "Credit Agreement"
appearing therein.
15. Section 11 of the US Pledge Agreement is hereby amended by
(i) inserting the word "Bank" immediately prior to the words "Credit Agreement"
appearing in the last sentence thereof and (ii) inserting the words "and
Additional Senior Secured Notes" immediately following the words "outstanding
Senior Secured Notes" appearing in the last sentence thereof.
16. Section 19(a) of the US Pledge Agreement is hereby amended
by deleting the proviso appearing in such Section in its entirety and inserting
the following new proviso in lieu thereof:
"; provided, however, at such time as (x) all Bank Credit Document
Obligations have been paid in full in cash in accordance with the terms
thereof and all Commitments and Letters of Credit under the Bank Credit
Agreement have been terminated or (y) each of the Bank Lender Creditors,
the Other Creditors and the Overdraft Creditors have released their Liens
on all of the Collateral then, in either case, this Agreement and the
security interests created hereby shall terminate (provided that all
indemnities set forth herein (including, without limitation, in Section 11
hereof) and in Section 6 of Annex N to the US Security Agreement shall
survive such termination) unless, in the case of preceding clause (x), any
Event of Default under either the Note Credit Agreement or the Senior
Secured Note Indenture exists as of the date on which the Bank Credit
Document Obligations are repaid in full and terminated as described in such
clause (x), in which case the security interests created under this
Agreement in favor of the Note Lender Creditors and the Second Lien
Creditors will not be released except to the extent the Collateral or any
portion thereof was disposed of in order to repay the First Lien
Obligations (although the security interests created in favor of the Note
Lender Creditors and the Second Lien Creditors will be released when such
Event of Default and all other Events of Default under the Note Credit
Agreement and the Senior Secured Note Indenture cease to exist)."
17. Section 19 of the US Pledge Agreement is hereby further amended
by inserting the following new clause (f) at the end thereof:
"(f) Without limiting the foregoing provisions of this Section 19, to
the extent applicable following the qualification of the Note Credit
Agreement under the Trust Indenture Act (but only insofar as this Agreement
applies to the Note Lender Creditors), (i) the Pledgors shall comply with
Section 314(d) of the Trust Indenture Act in connection with the release of
property or Liens hereunder and (ii) the parties hereto agree that if any
amendments to this Agreement or any other Security Document are required in
order to comply with the provisions of the Trust Indenture Act, such
parties shall cooperate and act in good faith to effect such amendments as
promptly as practicable."
18. Section 20(b) of the US Pledge Agreement is hereby amended
by (i) inserting the word "Bank" immediately before the words "Lender Creditor"
and "Credit Agreement" in each instance such words appear in clause (iii)
thereof, (ii) inserting the text ";
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and" at the end of clause (vi) of such Section and (iii) inserting the following
new clause (vii) immediately following clause (vi) of such Section:
"(vii) if to the Additional Senior Secured Notes Trustee or any other
Note Lender Creditor, at:
The Bank of New York
101 Barclay Street - 8W
New York, NY 10286
Attention: Corporate Trust Division
Telephone No.: (212) 815-4799
Telecopier No.: (212) 815-5707
19. Section 27 of the US Pledge Agreement is hereby amended by
(i) inserting the text "(a)" immediately before the word "It" appearing at the
beginning of said Section, (ii) inserting the text "(b)" immediately before the
beginning of the third sentence thereof and (iii) inserting the following new
clause (c) at the end thereof:
"(c) To the extent not otherwise provided in a guaranty given by a
Pledgor in respect of the First Lien Obligations in favor of the Note
Lender Creditors only, each Pledgor, other than Holdings, RPP USA, US
Finance Corp. and any other Subsidiary of Holdings that is not also a
Subsidiary of RPP USA (collectively, the "note lien pledgors"), the
Additional Senior Secured Notes Trustee and each other Note Lender Creditor
hereby confirm that it is the intention of all such Persons that the grant
of the security interest hereunder by the note lien pledgors with respect
to such First Lien Obligations only and such First Lien Obligations of each
such note lien pledgor hereunder does not constitute a fraudulent transfer
or conveyance for purposes of any bankruptcy law (as hereinafter defined),
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar foreign, federal or state law to the extent applicable to
this Agreement and such First Lien Obligations only of the note lien
pledgors hereunder. To effectuate the foregoing intention, the Additional
Senior Secured Notes Trustee, the other Note Lender Creditors and the note
lien pledgors hereby irrevocably agree that the First Lien Obligations of
the note lien pledgors hereunder in favor of the Note Lender Creditors
only, at any time shall be limited to the maximum amount (after taking into
account any guaranty of the other First Lien Obligations by the note lien
pledgors) as will result in such First Lien Obligations of the note lien
pledgors hereunder in favor of the Note Lender Creditors only, not
constituting a fraudulent transfer or conveyance. For purposes hereof,
"bankruptcy law" means any proceeding of the type referred to in Section
6.1(vi) or (vii) of the Note Credit Agreement or title 11, U.S. Code, or
any similar foreign, federal or state law for the relief of debtors."
20. By accepting the benefits of the US Pledge Agreement, the
Additional Senior Secured Notes Trustee and the other Note Lender Creditors
expressly acknowledge and agree to all of the terms and conditions of the US
Pledge Agreement (as amended by this Amendment).
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21. This Amendment shall become effective as of the date (the
"First Amendment Effective Date") when (i) Holdings, the US Borrowers, the
Pledgee and the Additional Senior Secured Notes Trustee shall have executed and
delivered (including via facsimile) a counterpart hereof to the Pledgee and (ii)
the Fifth Amendment to the Bank Credit Agreement shall have become effective in
accordance with its terms.
22. 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, the Pledgee,
the Overdraft Creditors, the Senior Secured Notes Trustee and the Additional
Senior Secured Notes Trustee.
23. 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.
24. From and after the First Amendment Effective Date, all
references in the US Pledge Agreement and each of the other Credit Documents to
the US Pledge Agreement shall be deemed to be references to the US Pledge
Agreement as modified hereby.
25. This Amendment is limited as specified and shall not
constitute a modification, acceptance or amendment of any other provision of the
US Pledge Agreement or any other Credit Document.
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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.,
as a Pledgor
By: /s/ Mark S. Antonvich
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Title: Vice President and General
Counsel
RESOLUTION PERFORMANCE PRODUCTS LLC,
as a Pledgor
By: /s/ Mark S. Antonvich
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Title: Vice President and General
Counsel
RPP CAPITAL CORPORATION,
as a Pledgor
By: /s/ Mark S. Antonvich
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Title: Vice President and General
Counsel
MORGAN STANLEY & CO., INCORPORATED,
as Collateral Agent and Pledgee
By: /s/ Michael Hart
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Title: Managing Director
THE BANK OF NEW YORK,
as the Additional Senior Secured
Notes Trustee on its own behalf and
on behalf of the Additional Senior
Secured Noteholders
By: /s/ Timothy J. Shea
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Title: Assistant Treasurer