EXHIBIT 10.53
CONFORMED AS EXECUTED
FIFTH AMENDMENT
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FIFTH AMENDMENT (this "Amendment"), dated as of December 15, 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"), RESOLUTION
EUROPE B.V. (formerly known as 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 to the Credit Agreement referred to below (each, a "Lender" and,
collectively, the "Lenders"), and XXXXXX XXXXXXX 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.
WITNESSETH:
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WHEREAS, Holdings, the Borrowers, the Lenders and the Administrative
Agent are parties to a Credit Agreement, dated as of November 14, 2000 (as
amended, modified or supplemented to, but not including, the date hereof, the
"Credit Agreement"); and
WHEREAS, subject to the terms and conditions of this Amendment,
Holdings, the Borrowers, the Lenders and the Administrative Agent agree as
follows;
NOW, THEREFORE, it is agreed:
1. Section 1.01(c) of the Credit Agreement is hereby amended by (i)
inserting the text "the lesser of (A) the Borrowing Base at such time (based on
the Borrowing Base Certificate last delivered) and (B)" immediately following
the text "then outstanding, equals" appearing in clause (vii) thereof, and (ii)
inserting the text "the lesser of (A) the Borrowing Base at such time (based on
the Borrowing Base Certificate last delivered) and (B)" immediately following
the text" "then outstanding, an amount equal to" appearing in clause (viii)
hereof.
2. Section 1.01(d) of the Credit Agreement is hereby amended by (i)
inserting the text "the lesser of (A) the Borrowing Base at such time (based on
the Borrowing Base Certificate last delivered) and (B)" immediately following
the text "an amount equal to" appearing in clause (vi) thereof, (ii) inserting
the text "the lesser of (A) the Borrowing Base at such time (based on the
Borrowing Base Certificate last delivered) and (B)" immediately following the
text "at any time outstanding" appearing in clause (vii) thereof, and (iii)
inserting the text "the lesser of (A) the Borrowing Base at such time (based on
the Borrowing Base Certificate last delivered) and (B)" immediately following
the text" "then outstanding, an amount equal to" appearing in clause (viii)
hereof.
3. Section 1.01(e) of the Credit Agreement is hereby amended by
inserting the text "the Borrowing Base or" immediately following the words "the
amount of" appearing in clause (v) of the second sentence thereof.
4. Section 1.03(a) of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (vi) of the second
sentence thereof and (ii) deleting the period appearing at the end of clause
(vii) of the second sentence thereof and inserting the following new clause
(viii) at the end of such second sentence:
", and (viii) the Borrowing Base at such time (based on the Borrowing
Base Certificate last delivered)."
5. Section 1.03(b) of the Credit Agreement is hereby amended by
inserting the following new clause (w) immediately before clause (x) appearing
in the second sentence thereof:
"(w) the Borrowing Base at such time (based on the Borrowing Base
Certificate last delivered),".
6. Section 2.01(c) of the Credit Agreement is hereby amended by
inserting the words "an amount equal to the lesser of (A) the Borrowing Base at
such time (based on the Borrowing Base Certificate last delivered) and (B)"
immediately before the words "the Total Revolving Loan Commitment at such time"
appearing in clause (i) thereof.
7. Section 4.02(a)(i) of the Credit Agreement is hereby amended by
inserting the words "the lesser of (x) the Borrowing Base at such time (based on
the Borrowing Base Certificate last delivered) and (y)" immediately before the
words "the Total Revolving Loan Commitment as then in effect" in each place such
words appear therein.
8. Section 4.02(a)(ii) of the Credit Agreement is hereby amended by
inserting the text "the lesser of (x) the Borrowing Base at such time (based on
the Borrowing Base Certificate last delivered and (y)" immediately before the
text "the Dutch Borrower Revolving Loan Sublimit" appearing therein.
9. Section 4.02(e) of the Credit Agreement is hereby amended by (i)
inserting the text "and Additional Senior Secured Notes" immediately following
the words "except with respect to the Net Cash Proceeds from the issuance of
Senior Secured Notes" appearing in clause (i) of the first sentence thereof,
(ii) deleting the word "and" appearing immediately prior to clause (ii) of the
first sentence thereof, and (iii) inserting the following new clause (iii)
immediately following such clause (ii):
", and (iii) on each date on which Holdings or any of its Subsidiaries
receives any cash proceeds from the issuance of any Additional Senior
Secured Notes, an amount equal to 100% of the Net Cash Proceeds from such
issuance shall be applied as a mandatory repayment in accordance with the
requirements of Sections 4.02(i) and (j)".
10. Section 4.02(h) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
4.02(h) in lieu thereof:
"(h) [Intentionally Omitted]."
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11. Section 4.02(i) of the Credit Agreement is hereby amended by
inserting the following proviso at the end of the first sentence thereof:
"; provided, however, after all outstanding Term Loans have been
repaid in full with the Net Cash Proceeds received from the issuance of the
Additional Senior Secured Notes as provided in clause (i) above, any
remaining Net Cash Proceeds from such issuance shall not be required to be
applied as provided in clause (ii) above but instead shall be used on the
date of receipt thereof as a mandatory prepayment of outstanding Revolving
Loans (without a corresponding reduction to the Total Revolving Loan
Commitment)".
12. Section 7.27 of the Credit Agreement is hereby amended by
inserting the following new clause (c) at the end thereof:
"(c) The Additional Senior Secured Note Documents also constitute part
of the "Credit Agreement" and "Designated Senior Debt" for purposes of (and
as defined in) the Senior Subordinated Note Indenture, and the Additional
Senior Secured Notes may properly be issued in reliance on clauses (2)
and/or (16) of the definition of "Permitted Indebtedness" contained in the
Senior Subordinated Note Indenture (in each case until such time, if any,
as the Indebtedness in respect of the Additional Senior Secured Note
Documents may be reclassified in reliance on another provision of, and
otherwise permitted by, the Senior Subordinated Note Indenture)."
13. Section 7 of the Credit Agreement is hereby further amended by
inserting the following new Sections 7.28 and 7.29 at the end thereof:
"7.28 Senior Secured Note Indenture. (a) This Agreement and the other
Credit Documents constitute part of the "Credit Agreement" and "First
Priority Lien Obligations" for purposes of (and as defined in) the Senior
Secured Note Indenture.
(b) The Additional Senior Secured Note Documents also constitute part
of the "Credit Agreement" and "First Priority Lien Obligations" for
purposes of (and as defined in) the Senior Secured Note Indenture, and the
Additional Senior Secured Notes may properly be issued in reliance on
clauses (2) and/or (16) of the definition of "Permitted Indebtedness"
contained in the Senior Secured Note Indenture (in each case until such
time, if any, as the Indebtedness in respect of the Additional Senior
Secured Note Documents may be reclassified in reliance on another provision
of, and otherwise permitted by, the Senior Secured Note Indenture).
7.29 Intercreditor Agreement. The provisions of the Intercreditor
Agreement, and the amendments to the respective Security Documents
contemplated by the Fifth Amendment, in each case (i) are enforceable
against the Credit Parties party thereto and the holders of the Additional
Senior Secured Notes and the Additional Senior Secured Notes Trustee and
(ii) do not violate or conflict with, or result in any breach of, any of
the terms, covenants, conditions or provisions of, or constitute a default
under, any of the Senior Subordinated Note Documents, the Senior Secured
Note Documents, the
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Additional Senior Secured Note Documents or the respective Security
Documents, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at
law)."
14. Section 8.01(e) of the Credit Agreement is hereby amended by (i)
deleting the reference "(I)" appearing therein, (ii) deleting the text "Sections
9.10 and 9.11" appearing in existing sub-clause (I)(x)(A) thereof and inserting
the text "Section 9.11" in lieu thereof, (iii) deleting the text ", and"
appearing at the end of existing clause (I) thereof and (iv) deleting clause
(II) thereof in its entirety.
15. Section 8.01(k) of the Credit Agreement is hereby amended by
inserting the text ", the Additional Senior Secured Notes" immediately after the
words "the Senior Secured Notes" appearing therein.
16. Section 8.01 of the Credit Agreement is hereby further amended by
inserting the following new clause (l) at the end thereof:
"(l) Borrowing Base Certificate. (i) On the Fifth Amendment Effective
Date and (ii) not later than 3:00 P.M. (New York time) on the 35th day
after the last day of each calendar month ended thereafter (although the
first subsequent Borrowing Base Certificate shall be delivered not later
than 3:00 P.M. (New York time) on the 35/th/ day after the last day of the
calendar month ended immediately prior to the Fifth Amendment Effective
Date), a borrowing base certificate in the form of Exhibit O (each, a
"Borrowing Base Certificate"), which shall be prepared (A) as of October
31, 2003 in the case of the initial Borrowing Base Certificate (or, in the
event that the Fifth Amendment Effective Date occurs on or after December
30, 2003, as of the last day of the then most recent calendar month ended
at least 30 days prior to the Fifth Amendment Effective Date) and (B) as of
the last day of the second preceding calendar month in the case of each
subsequent monthly Borrowing Base Certificate."
17. Section 8.14(a) of the Credit Agreement is hereby deleted in its
entirety and the following new Section 8.14(a) is inserted in lieu thereof:
8.14 Permitted Acquisitions. (a) Subject to the provisions of this
Section 8.14 and the requirements contained in the definition of Permitted
Acquisition, RPP USA and its Wholly Owned Subsidiaries may from time to
time effect Permitted Acquisitions, so long as (in each case except to the
extent the Required Lenders otherwise specifically agree in writing in the
case of a specific Permitted Acquisition): (i) no Default or Event of
Default shall be in existence at the time of the consummation of the
proposed Permitted Acquisition or immediately after giving effect thereto;
(ii) RPP USA shall have given the Administrative Agent and the Lenders at
least 5 Business Days' prior written notice of any Permitted Acquisition;
(iii) calculations are made by RPP USA demonstrating that the Adjusted Bank
Leverage Ratio on the last day of the relevant Calculation Period would not
be greater than the Maximum Permitted Acquisition Bank Leverage Ratio at
such time, calculated on a Pro Forma Basis as if the respective Permitted
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Acquisition (as well as all other Permitted Acquisitions theretofore
consummated after the first day of such Calculation Period) had occurred on
the first day of such Calculation Period; (iv) the Maximum Permitted
Consideration payable in connection with the proposed Permitted Acquisition
does not exceed $50,000,000; (vii) all representations and warranties
contained herein and in the other Credit Documents shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Permitted Acquisition (both before and after giving effect thereto), unless
stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date; (v) RPP USA provides to the
Administrative Agent and the Lenders as soon as available but not later
than 5 Business Days after the execution thereof, a copy of any executed
purchase agreement or similar agreement with respect to such Permitted
Acquisition; (vi) after giving effect to such Permitted Acquisition and the
payment of all post-closing purchase price adjustments required (in the
good faith determination of RPP USA) in connection with such Permitted
Acquisition (and all other Permitted Acquisitions for which such purchase
price adjustments may be required to be made) and all capital expenditures
(and the financing thereof) reasonably anticipated by RPP USA to be made in
the business acquired pursuant to such Permitted Acquisition within the
90-day period (such period for any Permitted Acquisition, a "Post-Closing
Period") following such Permitted Acquisition (and in the businesses
acquired pursuant to all other Permitted Acquisitions with Post-Closing
Periods ended during the Post-Closing Period of such Permitted
Acquisition), the Total Unutilized Revolving Loan Commitment shall equal or
exceed $25,000,000; and (vii) RPP USA shall have delivered to the
Administrative Agent an officer's certificate executed by an Authorized
Officer of RPP USA, certifying to the best of such officer's knowledge,
compliance with the requirements of preceding clauses (i) through (vi),
inclusive, and containing the calculations required by the preceding clause
(iii), (iv) and (vi); provided, however, that so long as (x) the Maximum
Permitted Consideration payable in connection with the proposed Permitted
Acquisition does not exceed $7,500,000 and (y) the Maximum Permitted
Consideration paid in connection with the proposed Permitted Acquisition,
when combined with the Maximum Permitted Consideration paid in connection
with all other Permitted Acquisitions consummated in the same fiscal
quarter as such proposed Permitted Acquisition, does not exceed
$15,000,000, RPP USA shall not be required to comply with clauses (ii) and
(v) above in connection with such Permitted Acquisition and the officer's
certificate otherwise required to be delivered pursuant to clause (vii)
above shall instead be delivered to the Administrative Agent within 45 days
following the end of the fiscal quarter in which such Permitted Acquisition
is consummated."
18. Section 9.04 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (o) thereof, (ii)
deleting the period appearing at the end of clause (p) thereof and inserting the
text "; and" in lieu thereof and (iii) inserting the following new clause (q)
immediately after clause (p) thereof:
"(q) Indebtedness of the US Borrowers and any other US Credit Party
that is a Subsidiary Guarantor incurred under the Additional Senior Secured
Notes and the other Additional Senior Secured Note Documents in an
aggregate principal amount expected to equal $125,000,000 (but not to
exceed $150,000,000) (as reduced by any repayment of
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principal thereof), which Indebtedness may be secured by the Collateral
owned by the US Borrowers and the other US Credit Parties that are
Subsidiary Guarantors on a pari passu basis with the other First Lien
Obligations pursuant to the applicable Security Documents; provided,
however, (x) the Additional Senior Secured Notes shall not be secured by
(i) any Mortgaged Property or (ii) any capital stock or other securities of
any Subsidiary owned by a US Credit Party to the extent the aggregate
principal amount, par value, book value as carried by such US Credit Party
or the market value, whichever is the greatest, of any such capital stock
or other securities of any such Subsidiary is equal to or greater than 20%
of the aggregate outstanding principal amount Additional Senior Secured
Notes, and (y) the rights and benefits of the holders of the Additional
Senior Secured Notes and the Additional Senior Secured Notes Trustee in
respect of the Collateral and the applicable Security Documents also shall
be subject to the terms and provisions of the Intercreditor Agreement which
shall provide, inter alia, that the rights, benefits and privileges of the
First Lien Creditors (other than the holders of the Additional Senior
Secured Notes and the Additional Senior Secured Notes Trustee) in respect
of the Collateral and the applicable Security Documents vis a vis the
rights of the holders of the Additional Senior Secured Notes and the
Additional Senior Secured Notes Trustee in respect of the Collateral and
the applicable Security Documents shall be substantially similar to the
rights, benefits and privileges of such First Lien Creditors in respect of
the Collateral and the applicable Security Documents vis a vis the rights
of the Second Lien Creditors (as defined in the applicable Security
Documents) in respect of the Collateral and the applicable Security
Documents as set forth in the respective Security Documents, including,
without limitation, as to application of proceeds of the Collateral
(including with respect to application of such proceeds to post-petition
interest accruing on such First Lien Obligations at the applicable contract
rate, whether or not a claim for post-petition interest is allowed under
applicable law), voting rights, control of the Collateral and waivers of
certain rights in respect of the Collateral."
19. Section 9.08 of the Credit Agreement is hereby amended by
deleting the text following the semicolon appearing at the end thereof in its
entirety and inserting the following new text in lieu thereof:
"it being understood and agreed, however, to the extent that the Senior
Secured Note Documents or the Additional Senior Secured Note Documents
constitute part of the "Credit Agreement" for purposes of the Senior
Subordinated Note Indenture, the Senior Secured Note Documents and/or the
Additional Senior Secured Note Documents, as the case may be, also may
constitute "Designated Senior Debt" as defined in the Senior Subordinated
Note Indenture, provided that at all times prior to such time as when the
Total Commitment and all Letters of Credit have been terminated and all
Notes and outstanding Loans, together with interest, Fees and other
Obligations incurred hereunder have been paid in full in cash in accordance
with the terms hereof, no holder of a Senior Secured Note or an Additional
Senior Secured Note nor the respective trustee in respect thereof may give
(and the terms of each of the Senior Secured Note Indenture and the
Additional Senior Secured Note Indenture shall expressly provide that no
such Person may give) any "Default Notice" pursuant to Section 10.2(b) or
12.2(b) of the Senior Subordinated Note Indenture commencing, a "Payment
Blockage Period" thereunder."
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20. Section 9.10 of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
9.10 in lieu thereof:
"9.10 [Intentionally Omitted]."
21. Sub-clause (y) of the proviso to Section 9.12(ii) of the Credit
Agreement is hereby amended by inserting the text "and the aggregate principal
amount of all Additional Senior Secured Notes purchased pursuant to clause (x)
of this Section 9.12" immediately following the text ", when added to the
aggregate principal amount of all Senior Secured Notes purchased pursuant to
clause (ix) of this Section 9.12" appearing therein.
22. Section 9.12(vi) of the Credit Agreement is hereby amended by
inserting the text ", any Additional Senior Secured Note Document (other than
any amendment or modification to any Security Document made in accordance with
the terms hereof and thereof)" immediately after the text "any Holdings PIK
Junior Subordinated Note" appearing therein.
23. Section 9.12(ix) of the Credit Agreement is hereby amended by
inserting the text "and the aggregate principal amount of all Additional Senior
Secured Notes purchased pursuant to clause (x) of this Section 9.12" immediately
following the text ", when added to the aggregate principal amount of all Senior
Subordinated Notes purchased pursuant to clause (ii) of this Section 9.12"
appearing in the proviso thereof.
24. Section 9.12 of the Credit Agreement is hereby further amended by
(i) deleting the word "and" appearing at the end of clause (viii) thereof, (ii)
deleting the period appearing at the end of clause (x) thereof and inserting the
text "; and" in lieu thereof and (iii) inserting the following new clause (x)
immediately after clause (ix) thereof:
"(x) make (or give any notice in respect of) any voluntary or optional
payment or prepayment on or redemption, repurchase or acquisition for value
of (including, without limitation, by way of depositing with the trustee
with respect thereto or any other Person money or securities before due for
the purpose of paying when due), or any prepayment or redemption as a
result of any asset sale, excess cash flow recapture, change of control or
similar event of, any Additional Senior Secured Note (except, in the case
of the Additional Senior Secured Notes, through the issuance of Exchange
Additional Senior Secured Notes as contemplated in the definition of
Additional Senior Secured Notes and consistent with the requirements of the
definition of Exchange Additional Senior Secured Notes), provided that, so
long as no Default or Event of Default then exists or would result
therefrom, the US Borrowers may repurchase the Additional Senior Secured
Notes on the open market in an aggregate principal amount for all purchases
made pursuant to this proviso not to exceed, when added to the aggregate
principal amount of all Senior Subordinated Notes purchased pursuant to
clause (ii) of this Section 9.12 and the aggregate principal amount of all
Senior Secured Notes purchased pursuant to clause (ix) of this Section
9.12, $37,500,000 so long as the Adjusted Total Leverage Ratio is less than
4.00:1.00 on the last day of the Test Period most recently ended prior to
the consummation of the respective repurchase (as set forth in the
officer's certificate most recently delivered pursuant to Section
8.01(e))."
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25. Section 9.13(c) of the Credit Agreement is hereby amended by
deleting clause (iv) thereof in its entirety and inserting the following new
clause (iv) in lieu thereof:
"(iv) calculations are made by RPP USA of the Adjusted Bank Leverage
Ratio for the Calculation Period most recently ended prior to the date of
the respective issuance of Disqualified Preferred Stock, on a Pro Forma
Basis after giving effect to the respective issuance of Disqualified
Preferred Stock, and such calculations shall show that the Adjusted Bank
Leverage Ratio would have been no greater than (x) 2.25:1.00 on the last
day of any fiscal quarter of RPP USA ending on or prior to December 31,
2005 or (y) 2.00:1.00 on the last day of any fiscal quarter of RPP USA
ending thereafter, in either case as if such issuance of Disqualified
Preferred Stock had been consummated on the first day of the respective
Calculation Period, and".
26. Section 9.14 of the Credit Agreement is hereby amended by (i)
inserting the text ", the Additional Senior Secured Note Documents" immediately
following the words "the Senior Subordinated Note Documents" appearing in clause
(xii) thereof and (ii) inserting the text ", the Additional Senior Secured
Notes" immediately following the words "the Senior Subordinated Notes" appearing
in the parenthetical appearing at the end of clause (xiv) thereof.
27. The definition of "Change of Control Event" appearing in Section
11 of the Credit Agreement is hereby amended by inserting the text "any
Additional Senior Secured Note Document," immediately after the text "Senior
Subordinated Note Document," appearing in each of clauses (I)(e) and (II)(c)
thereof.
28. The definition of "Consolidated Net Income" appearing in Section
11 of the Credit Agreement is hereby amended by (i) deleting the word "and"
appearing at the end of clause (A)(v) of said definition and inserting a comma
in lieu thereof and (ii) inserting the following new clause (vii) immediately
before the word "minus" appearing at the end of clause (A)(vi) thereof:
"and (vii) any non-recurring cash and non-cash transaction expenses
incurred in connection with the issuance of the Additional Senior Secured
Notes."
29. The definition of "Credit Documents" appearing in Section 11 of
the Credit Agreement is hereby amended by inserting the text ", the
Intercreditor Agreement" immediately following the words "each Guaranty"
appearing therein.
30. The definition of "Documents" appearing in Section 11 of the
Credit Agreement is hereby amended by (i) deleting the word "and" appearing at
the end of clause (vi) thereof and (ii) inserting the text ", and (viii) on and
after the delivery and execution thereof, the Additional Senior Secured Note
Documents" at the end thereof.
31. The definition of "Dutch Borrower Revolving Loan Sublimit"
appearing in Section 11 of the Credit Agreement is hereby restated in its
entirety as follows:
"Dutch Borrower Revolver Loan Sublimit" shall mean the lesser of (x)
(euro)75,000,000 and (y) the Total Revolving Loan Commitment as then in
effect.
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32. The definition of "L/C Supportable Indebtedness" appearing in
Section 11 of the Credit Agreement is hereby amended by (i) deleting the word
"and" appearing immediately after the text "(o)" appearing therein and inserting
a comma in lieu thereof and (ii) inserting the text "and (q)" at the end
thereof.
33. The definition of "Maximum Permitted Acquisition Bank Leverage
Ratio" appearing in Section 11 of the Credit Agreement is hereby restated in its
entirety as follows:
"Maximum Permitted Acquisition Bank Leverage Ratio" shall mean (x)
2.00:1:00 on the last day of any fiscal quarter of RPP USA ending on or
prior to December 31, 2005 and (y) 1.75:1.00 on the last day of any fiscal
quarter of RPP USA ending thereafter. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this
Agreement, (i) all calculations of compliance with this definition shall be
made on a Pro Forma Basis and (ii) in no event shall the Adjusted Bank
Leverage Ratio be greater than the Maximum Permitted Acquisition Bank
Leverage Ratio upon the consummation of, and after giving effect on a Pro
Forma Basis to, any Permitted Acquisition.".
34. The definition of "Pro Forma Basis" appearing in Section 11 of
the Credit Agreement is hereby amended by (i) deleting the parenthetical "(and
thereafter in the case of projections pursuant to Section 8.14(a)(iv)" each
place appearing in clause (i) thereof, (ii) deleting the proviso appearing at
the end of clause (ii) thereof, and (iii) deleting the text "for purposes of
Section 9.09 and 9.10 and," appearing in clause (x) of the last paragraph
thereof.
35. The definition of "Unrestricted Subsidiary" appearing in Section
11 of the Credit Agreement is hereby amended by deleting clauses (iv) and (v)
appearing in the third proviso thereof in their entirety and inserting the
following new clauses (iv) and (v) in lieu thereof:
"(iv) calculations are made by RPP USA of the Adjusted Bank Leverage
Ratio for the relevant Calculation Period, on a Pro Forma Basis as if the
respective Subsidiary Redesignation (as well as all other Subsidiary
Redesignations theretofore consummated after the first day of such
Calculation Period) had occurred on the first day of such Calculation
Period, and such calculations shall show that the Adjusted Bank Leverage
Ratio would have been no greater than (x) 2.25:1.00 on the last day of any
fiscal quarter of RPP USA ending on or prior to December 31, 2005 or (y)
2.00:1.00 on the last day of any fiscal quarter of RPP USA ending
thereafter, in either case as if the Subsidiary Redesignation had occurred
on the first day of such Calculation Period, (v) based on good faith
projections prepared by RPP USA for the period from the date of the
respective Subsidiary Redesignation to the date which is one year
thereafter, on a Pro Forma Basis, the Adjusted Bank Leverage Ratio shall
have been no greater than (x) 2.25:1.00 for any period ending on or prior
to December 31, 2005 or (y) 2.00:1.00 for any period ending thereafter".
36. Section 11 of the Credit Agreement is hereby further amended by
inserting the following new definitions in the proper alphabetical order:
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"Additional Senior Secured Note Documents" shall mean the Additional
Senior Secured Notes, the Additional Senior Secured Note Indenture and all
other documents executed and delivered with respect to the Additional
Senior Secured Notes or the Additional Senior Secured Note Indenture, each
of which shall be in form and substance reasonably satisfactory to the
Administrative Agent and, in each case, as the same may be amended,
modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"Additional Senior Secured Note Indenture" shall mean the indenture
entered into in connection with the issuance of the Additional Senior
Secured Notes among the US Borrowers, the US Credit Parties which are
Subsidiary Guarantors and the Additional Senior Secured Notes Trustee, as
the same may be amended, modified or supplemented from time to time in
accordance with the requirements hereof and thereof.
"Additional Senior Secured Notes" shall mean one or more series of the
US Borrowers' senior first secured notes or loans due no earlier than 2008,
issued or made on or after the Fifth Amendment Effective Date pursuant to
the Additional Senior Secured Note Indenture, as the same may be amended,
modified or supplemented from time to time in accordance with the terms
hereof and thereof. As used herein, the term "Additional Senior Secured
Notes" shall include any Exchange Additional Senior Secured Notes issued
pursuant to the Additional Senior Secured Note Indenture in exchange for
theretofore outstanding Additional Senior Secured Notes, as contemplated by
the definition of Exchange Additional Senior Secured Notes.
"Additional Senior Secured Notes Trustee" shall mean the trustee from
time to time under the Additional Senior Secured Notes Indenture.
"Borrowing Base" shall mean, at any time, an amount determined from
the Borrowing Base Certificate most recently delivered pursuant to Section
8.01(l) to be equal to the sum of (I) 85% of the net book value of the
accounts receivable of the US Credit Parties, (II) 65% of the net book
value of the inventory of the US Credit Parties, and (III) 20% of the net
book value of the plant, property and equipment of the US Credit Parties,
in each case as such amounts would be required to be calculated for the US
Credit Parties in accordance with GAAP, subject to normal year-end audit
adjustments and the absence of footnotes.
"Borrowing Base Certificate" shall have the meaning provided in
Section 8.01(l).
"Exchange Additional Senior Secured Notes" shall mean Additional
Senior Secured Notes which are substantially identical securities to the
Additional Senior Secured Notes initially issued under Section 9.04(q),
which Exchange Additional Senior Secured Notes shall be issued pursuant to
a registered exchange offer or private exchange offer for the Additional
Senior Secured Notes and pursuant to the Additional Senior Secured Note
Indenture. In no event will the issuance of any Exchange Additional Senior
Secured Notes increase the aggregate principal amount of Additional Senior
Secured Notes then outstanding or otherwise result in an increase in an
interest rate applicable to the Additional Senior Secured Notes.
-10-
"Fifth Amendment" shall mean the Fifth Amendment, dated as of December
15, 2003, to this Agreement.
"Fifth Amendment Effective Date" shall have the meaning provided in
the Fifth Amendment.
"First Lien Creditors" shall have the meaning provided in the
applicable Security Documents.
"First Lien Obligations" shall have the meaning provided in the
applicable Security Documents.
"Intercreditor Agreement" shall mean the Intercreditor Agreement to be
executed by and among the Administrative Agent, the Collateral Agent, the
Overdraft Creditors and the Additional Senior Secured Notes Trustee, as
amended, modified or supplemented from time to time in accordance with the
terms thereof and hereof.
"Overdraft Creditors" shall have the meaning provided in the
applicable Security Documents.
37. Section 11 of the Credit Agreement is hereby further amended by
deleting the following definitions in their entirety: "Adjusted Consolidated
Working Capital", Adjusted Excess Cash Flow", "Applicable Excess Cash Flow
Percentage", "Consolidated Current Assets", "Consolidated Current Liabilities",
"Excess Cash Flow", "Excess Cash Flow Payment Date" and "Excess Cash Flow
Payment Period".
38. Section 15.07(c) is hereby amended by deleting the parenthetical
"(excluding Section 9.10)" appearing therein.
39. The Credit Agreement is hereby further amended by deleting
Exhibits A and C thereto and inserting new Exhibits A and C thereto in the forms
of Exhibits A and C attached hereto, respectively.
40. Section 1.07 of Annex A to Exhibit N of the Credit Agreement is
hereby amended by (x) deleting the word "and" appearing at the end of clause
(ii) of said Section, (y) deleting the period appearing at the end of clause
(iii) therein and (z) inserting the following new clauses (iv) and (v) at the
end of clause (iii) thereof:
"(iv) of the Company under, or in respect of, the Senior Secured Notes
(as defined in the Credit Agreement) and the Senior Secured Note Documents
(as defined in the Credit Agreement) to which the Company is a party and
(v) of the Company under, or in respect of, the Additional Senior Secured
Notes (as defined in the Credit Agreement) and the Additional Senior
Secured Note Documents (as defined in the Credit Agreement) to which the
Company is a party."
41. The Credit Agreement is hereby further amended by inserting as
Exhibit O thereto the form of Exhibit O attached hereto.
-11-
42. In the event that an Event of Default may have arisen solely as a
result of the issuance of the Additional Senior Secured Notes (as defined in
Section 36 of this Amendment) prior to the repayment in full of all Term Loans,
the Required Lenders (as determined below) hereby waive such Event of Default.
43. The Lenders hereby agree that Holdings, the US Borrowers, the
other US Credit Parties that are Subsidiary Guarantors, the Administrative Agent
(on behalf of the Lenders) and the Collateral Agent (on behalf of the Lenders)
shall be permitted to (and are hereby authorized to) enter into (x) amendments
to (or amend and restate) the respective Security Documents to clarify that a
security interest shall be granted in favor of the holders of the Additional
Senior Secured Notes and the Additional Senior Secured Notes Trustee in that
portion of the Collateral otherwise permitted by Section 9.04(q) of the Credit
Agreement (as amended hereby) and (y) the Intercreditor Agreement, in each case
on terms and conditions satisfactory to the Administrative Agent and otherwise
consistent with the terms of the Credit Agreement (as amended hereby).
44. The Required Lenders hereby agree that, in furtherance of the
agreements set forth in Section 43 of this Amendment, the Collateral Agent shall
be permitted to (and is hereby authorized to) terminate (i) that certain Pledge
of Shares, dated November 14, 2000, among RPP USA, the Dutch Parent, the Dutch
Borrower, Resolution Research Nederland B.V. and the Collateral Agent and (ii)
that certain Pledge of Shares, dated as of April 9, 2003, among the US
Borrowers, the Dutch Parent, the Collateral Agent and Deutsche Bank Trust
Company Americas, as trustee for the holders of the Senior Secured Notes so long
as immediately after such termination the respective parties to each such pledge
of shares reenter into replacement pledges of shares on substantially similar
terms, with the pledge of shares securing the Obligations and the obligations
under the Additional Senior Secured Notes to be entered into prior to the pledge
of shares securing the obligations under the Senior Secured Notes.
45. This Amendment shall become effective as of the date set forth
above on the date (the "Fifth Amendment Effective Date") when (a) Holdings, each
Borrower and the Required Lenders (determined immediately after giving effect to
the repayment in full of the outstanding Term Loans as contemplated by clause
(b)(i) below) 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)
the following additional conditions have been satisfied:
(i) the first issuance of the Additional Senior Secured Notes
resulting in Net Cash Proceeds sufficient to repay (and the Net Cash
Proceeds of which are concurrently used to repay) all outstanding Term
Loans in full shall have occurred;
(ii) the Administrative Agent shall have received from O'Melveny &
Xxxxx LLP, special counsel to the Credit Parties, an opinion addressed to
each Agent, the Collateral Agent and each of the Lenders and dated the
Fifth Amendment Effective Date, in form and substance reasonably
satisfactory to the Administrative Agent;
(iii) the US Borrowers shall have paid (or concurrently with the first
issuance of the Additional Senior Secured Notes shall pay) to the
Administrative Agent all fees,
-12-
costs and expenses (including, without limitation, the reasonable legal
fees and expenses of White & Case LLP) payable to the Administrative Agent
to the extent then due; and
(iv) the Borrower shall have paid (or concurrently with the first
issuance of the Additional Senior Secured Notes shall pay) to each Lender
which shall have executed and delivered a counterpart hereof (including by
way of facsimile transmission) to the Administrative Agent at the Notice
Office on or prior to 5:00 P.M. (New York time) on December 15, 2003 (or,
if the Required Lenders (as determined above) have not executed this
Amendment by such time and date, on the Fifth Amendment Effective Date), an
amendment fee equal to the product of (x) 0.125% multiplied by (y) such
Lender's Revolving Loan Commitment on such date.
46. 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 Fifth Amendment Effective Date, immediately after
giving effect to this Amendment, and (ii) on the Fifth Amendment Effective Date,
immediately 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).
47. 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, Lenders and the
Administrative Agent.
48. 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.
49. From and after the Fifth 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.
50. 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.
* * *
-13-
CONFORMED AS EXECUTED
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/ Xxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President and General
Counsel
RESOLUTION PERFORMANCE PRODUCTS LLC
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President and General
Counsel
RPP CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Title: Vice President and General
Counsel
RESOLUTION EUROPE B.V. (formerly known
as Resolution Nederland B.V.)
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Director
XXXXXX XXXXXXX SENIOR FUNDING INC.,
Individually and as Administrative
Agent
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: Managing Director
SIGNATURE PAGE TO THE FIFTH
AMENDMENT, DATED AS OF DECEMBER 15,
2003, TO THE CREDIT AGREEMENT, DATED
AS OF NOVEMBER 14, 2000, AMONG
RESOLUTION PERFORMANCE PRODUCTS INC.,
A DELAWARE CORPORATION, RESOLUTION
PERFORMANCE PRODUCTS LLC, A DELAWARE
LIMITED LIABILITY COMPANY, RPP
CAPITAL CORPORATION, A DELAWARE
CORPORATION, RESOLUTION EUROPE B.V.
(FORMERLY KNOWN AS RESOLUTION
NEDERLAND B.V.) THE VARIOUS LENDERS
PARTY THERETO, XXXXXXX XXXXX XXXXXX
INC., AS SYNDICATION AGENT, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK,
AS DOCUMENTATION AGENT, AND XXXXXX
XXXXXXX SENIOR FUNDING, INC., AS
ADMINISTRATIVE AGENT, LEAD ARRANGER
AND SOLE BOOK MANAGER
NAME OF INSTITUTION:
JPMORGAN CHASE BANK
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Title: Managing Director
-2-
SIGNATURE PAGE TO THE FIFTH
AMENDMENT, DATED AS OF DECEMBER 15,
2003, TO THE CREDIT AGREEMENT, DATED
AS OF NOVEMBER 14, 2000, AMONG
RESOLUTION PERFORMANCE PRODUCTS INC.,
A DELAWARE CORPORATION, RESOLUTION
PERFORMANCE PRODUCTS LLC, A DELAWARE
LIMITED LIABILITY COMPANY, RPP
CAPITAL CORPORATION, A DELAWARE
CORPORATION, RESOLUTION EUROPE B.V.
(FORMERLY KNOWN AS RESOLUTION
NEDERLAND B.V.) THE VARIOUS LENDERS
PARTY THERETO, XXXXXXX XXXXX BARNEY
INC., AS SYNDICATION AGENT, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK,
AS DOCUMENTATION AGENT, AND XXXXXX
XXXXXXX SENIOR FUNDING, INC., AS
ADMINISTRATIVE AGENT, LEAD ARRANGER
AND SOLE BOOK MANAGER
NAME OF INSTITUTION:
CITICORP USA INC.
By: /s/ F.R. Xxxx
-------------------------------------
Title: Vice President
-3-
SIGNATURE PAGE TO THE FIFTH
AMENDMENT, DATED AS OF DECEMBER 15,
2003, TO THE CREDIT AGREEMENT, DATED
AS OF NOVEMBER 14, 2000, AMONG
RESOLUTION PERFORMANCE PRODUCTS INC.,
A DELAWARE CORPORATION, RESOLUTION
PERFORMANCE PRODUCTS LLC, A DELAWARE
LIMITED LIABILITY COMPANY, RPP
CAPITAL CORPORATION, A DELAWARE
CORPORATION, RESOLUTION EUROPE B.V.
(FORMERLY KNOWN AS RESOLUTION
NEDERLAND B.V.) THE VARIOUS LENDERS
PARTY THERETO, XXXXXXX XXXXX XXXXXX
INC., AS SYNDICATION AGENT, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK,
AS DOCUMENTATION AGENT, AND XXXXXX
XXXXXXX SENIOR FUNDING, INC., AS
ADMINISTRATIVE AGENT, LEAD ARRANGER
AND SOLE BOOK MANAGER
NAME OF INSTITUTION:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxxxxxx
-------------------------------------
Title: Manager-Operations
-4-
SIGNATURE PAGE TO THE FIFTH
AMENDMENT, DATED AS OF DECEMBER 15,
2003, TO THE CREDIT AGREEMENT, DATED
AS OF NOVEMBER 14, 2000, AMONG
RESOLUTION PERFORMANCE PRODUCTS INC.,
A DELAWARE CORPORATION, RESOLUTION
PERFORMANCE PRODUCTS LLC, A DELAWARE
LIMITED LIABILITY COMPANY, RPP
CAPITAL CORPORATION, A DELAWARE
CORPORATION, RESOLUTION EUROPE B.V.
(FORMERLY KNOWN AS RESOLUTION
NEDERLAND B.V.) THE VARIOUS LENDERS
PARTY THERETO, XXXXXXX XXXXX BARNEY
INC., AS SYNDICATION AGENT, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK,
AS DOCUMENTATION AGENT, AND XXXXXX
XXXXXXX SENIOR FUNDING, INC., AS
ADMINISTRATIVE AGENT, LEAD ARRANGER
AND SOLE BOOK MANAGER
NAME OF INSTITUTION:
IKB CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Title: President
-5-
SIGNATURE PAGE TO THE FIFTH
AMENDMENT, DATED AS OF DECEMBER 15,
2003, TO THE CREDIT AGREEMENT, DATED
AS OF NOVEMBER 14, 2000, AMONG
RESOLUTION PERFORMANCE PRODUCTS INC.,
A DELAWARE CORPORATION, RESOLUTION
PERFORMANCE PRODUCTS LLC, A DELAWARE
LIMITED LIABILITY COMPANY, RPP
CAPITAL CORPORATION, A DELAWARE
CORPORATION, RESOLUTION EUROPE B.V.
(FORMERLY KNOWN AS RESOLUTION
NEDERLAND B.V.) THE VARIOUS LENDERS
PARTY THERETO, XXXXXXX XXXXX XXXXXX
INC., AS SYNDICATION AGENT, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK,
AS DOCUMENTATION AGENT, AND XXXXXX
XXXXXXX SENIOR FUNDING, INC., AS
ADMINISTRATIVE AGENT, LEAD ARRANGER
AND SOLE BOOK MANAGER
NAME OF INSTITUTION:
KZH SOLEIL LLC
By: /s/ Hi Hua
-------------------------------------
Title: Authorized Agent
-6-
SIGNATURE PAGE TO THE FIFTH
AMENDMENT, DATED AS OF DECEMBER 15,
2003, TO THE CREDIT AGREEMENT, DATED
AS OF NOVEMBER 14, 2000, AMONG
RESOLUTION PERFORMANCE PRODUCTS INC.,
A DELAWARE CORPORATION, RESOLUTION
PERFORMANCE PRODUCTS LLC, A DELAWARE
LIMITED LIABILITY COMPANY, RPP
CAPITAL CORPORATION, A DELAWARE
CORPORATION, RESOLUTION EUROPE B.V.
(FORMERLY KNOWN AS RESOLUTION
NEDERLAND B.V.) THE VARIOUS LENDERS
PARTY THERETO, XXXXXXX XXXXX XXXXXX
INC., AS SYNDICATION AGENT, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK,
AS DOCUMENTATION AGENT, AND XXXXXX
XXXXXXX SENIOR FUNDING, INC., AS
ADMINISTRATIVE AGENT, LEAD ARRANGER
AND SOLE BOOK MANAGER
NAME OF INSTITUTION:
KZH SOLEIL-2 LLC
By: /s/ Hi Hua
-------------------------------------
Title: Authorized Agent
-7-
SIGNATURE PAGE TO THE FIFTH
AMENDMENT, DATED AS OF DECEMBER 15,
2003, TO THE CREDIT AGREEMENT, DATED
AS OF NOVEMBER 14, 2000, AMONG
RESOLUTION PERFORMANCE PRODUCTS INC.,
A DELAWARE CORPORATION, RESOLUTION
PERFORMANCE PRODUCTS LLC, A DELAWARE
LIMITED LIABILITY COMPANY, RPP
CAPITAL CORPORATION, A DELAWARE
CORPORATION, RESOLUTION EUROPE B.V.
(FORMERLY KNOWN AS RESOLUTION
NEDERLAND B.V.) THE VARIOUS LENDERS
PARTY THERETO, XXXXXXX XXXXX XXXXXX
INC., AS SYNDICATION AGENT, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK,
AS DOCUMENTATION AGENT, AND XXXXXX
XXXXXXX SENIOR FUNDING, INC., AS
ADMINISTRATIVE AGENT, LEAD ARRANGER
AND SOLE BOOK MANAGER
NAME OF INSTITUTION:
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.,
its General Parter
By: Oak Hill Securities MGP, Inc., its
General Partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Title: Authorized Signatory
-8-
SIGNATURE PAGE TO THE FIFTH
AMENDMENT, DATED AS OF DECEMBER 15,
2003, TO THE CREDIT AGREEMENT, DATED
AS OF NOVEMBER 14, 2000, AMONG
RESOLUTION PERFORMANCE PRODUCTS INC.,
A DELAWARE CORPORATION, RESOLUTION
PERFORMANCE PRODUCTS LLC, A DELAWARE
LIMITED LIABILITY COMPANY, RPP
CAPITAL CORPORATION, A DELAWARE
CORPORATION, RESOLUTION EUROPE B.V.
(FORMERLY KNOWN AS RESOLUTION
NEDERLAND B.V.) THE VARIOUS LENDERS
PARTY THERETO, XXXXXXX XXXXX BARNEY
INC., AS SYNDICATION AGENT, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK,
AS DOCUMENTATION AGENT, AND XXXXXX
XXXXXXX SENIOR FUNDING, INC., AS
ADMINISTRATIVE AGENT, LEAD ARRANGER
AND SOLE BOOK MANAGER
NAME OF INSTITUTION:
OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II
L.P., its General Parter
By: Oak Hill Securities MGP II, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Title: Authorized Signatory
-9-
SIGNATURE PAGE TO THE FIFTH
AMENDMENT, DATED AS OF DECEMBER 15,
2003, TO THE CREDIT AGREEMENT, DATED
AS OF NOVEMBER 14, 2000, AMONG
RESOLUTION PERFORMANCE PRODUCTS INC.,
A DELAWARE CORPORATION, RESOLUTION
PERFORMANCE PRODUCTS LLC, A DELAWARE
LIMITED LIABILITY COMPANY, RPP
CAPITAL CORPORATION, A DELAWARE
CORPORATION, RESOLUTION EUROPE B.V.
(FORMERLY KNOWN AS RESOLUTION
NEDERLAND B.V.) THE VARIOUS LENDERS
PARTY THERETO, XXXXXXX XXXXX BARNEY
INC., AS SYNDICATION AGENT, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK,
AS DOCUMENTATION AGENT, AND XXXXXX
XXXXXXX SENIOR FUNDING, INC., AS
ADMINISTRATIVE AGENT, LEAD ARRANGER
AND SOLE BOOK MANAGER
NAME OF INSTITUTION:
TEXTRON FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
-10-
CONFORMED AS EXECUTED
EXHIBIT A
FORM OF NOTICE OF BORROWING
---------------------------
[Date]
Xxxxxx Xxxxxxx Senior Funding, Inc.,
as Administrative Agent (the
"Administrative Agent") for the
Lenders party to the Credit Agreement
referred to below
[Specify Notice Office]/1/
Attention:
with a copy to:
Ladies and Gentlemen:
The undersigned, [Resolution Performance Products LLC and RPP Capital
Corporation] [Resolution Europe B.V. (f/k/a/ Resolution Nederland B.V.)]
refer[s] to the Credit Agreement, dated as of November 14, 2000 (as amended,
restated, modified and/or supplemented from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among Resolution Performance Products Inc., Resolution Performance Products LLC,
RPP Capital Corporation, Resolution Europe B.V. (f/k/a/ Resolution Nederland
B.V.), certain lending institutions from time to time party thereto (the
"Lenders"), Xxxxxxx Xxxxx Barney Inc., as Syndication Agent, Xxxxxx Guaranty
Trust Company of New York, as Documentation Agent, and you, as Administrative
Agent for such Lenders, and hereby give[s] you notice, irrevocably, pursuant to
Section 1.03(a) of the Credit Agreement, that the undersigned hereby requests a
Borrowing under the Credit Agreement, and in that connection sets forth below
the information relating to such Borrowing (the "Proposed Borrowing") as
required by Section 1.03(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ________, ____./2/
(ii) The aggregate principal amount of the Proposed Borrowing is
_________./3/
----------
/1/ Refer to definition of Notice Office in the Credit Agreement for the proper
specifications.
/2/ Shall be a Business Day, in the case of (x) the US Borrowers, at least one
Business Day in the case of Base Rate Loans (or same day in the case of
Swingline Loans) and at least three Business Days in the case of Eurodollar
Loans or Euro Revolving Loans (as the case may be), in each case, after the date
hereof, and (y) the Dutch Borrower, at least three Business Days in the case of
Euro Rate Loans and one Business Day in the case of Base Rate Loans (or same day
in the case of Swingline Loans), in each case, after the date hereof; provided
that (in each case) any such notice shall be deemed to have been given on a
certain day only if given before 12:00 Noon (Local time).
(iii) The Loans to be made pursuant to the Proposed Borrowing shall
be made to the [US Borrowers] [Dutch Borrower] and shall consist of [A Euro
Term Loans] [B Term Loans] [Dollar Revolving Loans] [Euro Revolving Loans]
[Dollar Swingline Loans][Euro Swingline Loans)]./4/
[(iv) The Dollar Loans to be made pursuant to the Proposed Borrowing
shall be initially maintained as [Base Rate Loans] [Eurodollar Loans]].
[(v) The initial Interest Period for the Proposed Borrowing is
__________ month(s).]/5/
[(vi) Attached hereto as Annex I is the officer's certificate
required to be delivered to the Administrative Agent pursuant to Section
8.14 of the Credit Agreement.]
[(vii) The aggregate principal amount of [Revolving Loans] [Swingline
Loans] incurred pursuant to the Proposed Borrowing and utilized to finance,
in whole or in part, the respective Permitted Acquisition is
[$][(euro)]____.
[(viii) The Total Unutilized Revolving Loan Commitment, after giving
effect to Proposed Borrowing, is $ _________________.]/6/
The undersigned hereby certifies that the following statements are true on the
date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and
correct in all material respects,
--------------------------------------------------------------------------------
/3/ Shall be stated in the Approved Currency of the US Borrowers or the Dutch
Borrower, as the case may be.
/4/ B Term Loans are only available to the US Borrowers. A Euro Term Loans are
only available to the Dutch Borrower. Dollar Revolving Loans, Euro Revolving
Loans and Dollar Swingline Loans are available to the US Borrowers. Dollar
Revolving Loans, Euro Revolving Loans, Dollar Swingline Loans and Euro Swingline
Loans are available to the Dutch Borrower.
/5/ To be included for a Proposed Borrowing of Euro Rate Loans (other than Euro
Swingline Loans), provided that unless the Administrative Agent has otherwise
determined in its sole discretion or has determined that the Syndication Date
has occurred, prior to the 90th day following the Initial Borrowing Date, all
Euro Rate Loans (other than Euro Swingline Loans) must initially be subject to
an Interest Period of one week which begins and ends on the same day and
thereafter, be subject to an Interest Period of one month which begins and ends
on the same day.
/6/ To be included for a Proposed Borrowing of Revolving Loans or Swingline
Loans, the proceeds of which will be utilized to finance, in whole or in part,
the purchase price of a Permitted Acquisition, provided that clause (vi) is to
be included for a Proposed Borrowing only to the extent required by Section
1.03(vii).
-2-
before and after giving effect to the Proposed Borrowing and to the
application of the proceeds thereof, as though made on such date, unless
stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date; and
(B) no Default or Event of Default has occurred and is continuing, or
would result from such Proposed Borrowing or from the application of the
proceeds thereof.
(C) the sum of (I) the aggregate outstanding Principal Amount of all
Revolving Loans and Swingline Loans on the date of the Proposed Borrowing
and after giving effect thereto and (II) the Letter of Credit Outstandings
on the date of the Proposed Borrowing will be $_______; and
(D) the Borrowing Base on the date of the Proposed Borrowing (based
on the Borrowing Base Certificate last delivered) will be $_______.
Very truly yours,
[RESOLUTION PERFORMANCE PRODUCTS LLC
RPP CAPITAL CORPORATION
By:
-------------------------------------
Name:
Title:]/7/
[RESOLUTION NEDERLAND B.V.
By:
-------------------------------------
Name:
Title:]/8/
----------
/7/ To be included for a Proposed Borrowing by the US Borrowers.
/8/ To be included for a Proposed Borrowing by the Dutch Borrower.
-3-
EXHIBIT C
FORM OF LETTER OF CREDIT REQUEST
--------------------------------
Dated /(1)/
Xxxxxx Xxxxxxx Senior Funding, Inc. ("MSSF"), as
Administrative Agent, under the Credit Agreement, dated
as of November 14, 2000 (as amended, modified, restated
and/or supplemented from time to time, the "Credit
Agreement"), among RESOLUTION PERFORMANCE PRODUCTS
INC., RESOLUTION PERFORMANCE PRODUCTS LLC, RPP CAPITAL
CORPORATION, RESOLUTION EUROPE B.V. (f/k/a Resolution
Nederland B.V.), the lending institutions from time to
time party thereto, Xxxxxxx Xxxxx Barney Inc., as
Syndication Agent, Xxxxxx Guaranty Trust Company of New
York, as Documentation Agent, and MSSF, as Lead
Arranger, sole Book Manager and Administrative Agent
0000 Xxxxxxxx, 00/xx/ Xxxxx Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Letter of Credit Issuer: /(2)/
[Address]
Attention:
Ladies and Gentlemen:
Pursuant to Section 2.02 of the Credit Agreement, we hereby request that
the Letter of Credit Issuer referred to above issue a [Trade] [Standby]
Letter of Credit for the account of the undersigned on /(3)/ (the "Date of
Issuance"), which [Trade] [Standby] Letter of Credit shall be denominated
in [Dollars] [Euros] and shall be in the aggregate Stated Amount of /(4)/.
----------
/(1)/ Date of Letter of Credit Request.
/(2)/ [Insert Name and Address of Letter of Credit Issuer]
/(3)/ Date of Issuance which shall be (x) a Business Day and (y) at least 3
Business Days after the date hereof (or such earlier date as is acceptable
to the respective Letter of Credit Issuer in any given case).
/(4)/ Aggregate initial Stated Amount of Letter of Credit which should not be
less than $100,000 (or the Dollar Equivalent thereof in the case of a
Letter of Credit denominated in Euros) or such lesser amount as is
acceptable to the respective Letter of Credit Issuer. No more than the
Dollars Equivalent of $25,000,000 of Letters of Credit in the aggregate
may be denominated in Euros.)
Exhibit C
Page 2
For purposes of this Letter of Credit Request, unless otherwise defined herein,
all capitalized terms used herein which are defined in the Credit Agreement
shall have the respective meaning provided therein.
The beneficiary of the requested Letter of Credit will be /(5)/, and such Letter
of Credit will be in support of /(6)/ and will have a stated expiration date of
/(7)/ .
We hereby certify that:
(A) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be
true and correct in all material respects on the Date of
Issuance, both before and after giving effect to the
issuance of the Letter of Credit requested hereby, unless
stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and
correct in all material respects as of such earlier date;
and
(B) no Default or Event of Default has occurred and is
continuing nor, after giving effect to the issuance of the
Letter of Credit requested hereby, would such a Default or
Event of Default occur.
(C) the sum of (I) the aggregate outstanding Principal Amount of
all Revolving Loans and Swingline Loans on the Date of
Issuance will be $________ and (II) the aggregate Letter of
Credit Outstandings on the Date of Issuance and after giving
effect to the Letter of Credit requested hereby will be
$_______; and
----------
/(5)/ Insert name and address of beneficiary.
/(6)/ Insert a description of L/C Supportable Indebtedness (in the case of
Standby Letters of Credit) and insert description of permitted trade
obligations (in the case of Trade Letters of Credit).
/(7)/ Insert the last date upon which drafts may be presented which may not be
later than (i) in the case of Standby Letters of Credit, the earlier of
(x) one year after the date of issuance and (y) the tenth Business Day
preceding the Revolving Loan Maturity Date, and (ii) in the case of Trade
Letters of Credit, (x) 180 days after the date of issuance and (y) 30 days
prior to the Revolving Loan Maturity Date.
-2-
Exhibit C
Page 3
(D) the Borrowing Base on the Date of Issuance (based on the
Borrowing Base Certificate last delivered) will be
$________.
Copies of all documentation with respect to the supported transaction are
attached hereto.
RESOLUTION PERFORMANCE PRODUCTS LLC
By:
-------------------------------------
Name:
Title:
RPP CAPITAL CORPORATION
By:
-------------------------------------
Name:
Title:
-3-
EXHIBIT O
---------
BORROWING BASE CERTIFICATE
--------------------------
To: Xxxxxx Xxxxxxx Senior Funding, Inc.,
as Administrative Agent, and each Lender party
to the Credit Agreement referred to below
This Borrowing Base Certificate (this "Certificate") is delivered pursuant
to the reporting requirements of Section 8.01(l) of the Credit Agreement, dated
as of November 14, 2000 (as amended, modified and/or supplemented from time to
time, the "Credit Agreement"), among Resolution Performance Products Inc.,
Resolution Performance Products LLC ("RPP USA"), RPP Capital Corporation,
Resolution Europe B.V. (f/k/a Resolution Nederland B.V.), the lending
institutions from time to time party thereto (the "Lenders"), Xxxxxxx Xxxxx
Barney Inc., as Syndication Agent, Xxxxxx Guaranty Trust Company of New York, as
Documentation Agent, and Xxxxxx Xxxxxxx Senior Funding, Inc., as Administrative
Agent for the Lenders. Terms used in this Certificate have the meanings set
forth for such terms in the Credit Agreement unless otherwise defined herein.
The following calculations determine the components of the Borrowing Base,
in each case as such components would be calculated for the US Credit Parties in
accordance with GAAP, subject to normal year-end audit adjustments and the
absence of footnotes. RPP USA hereby certifies as follows:
The Borrowing Base as of [insert date] is the sum of:
1. Eighty-five percent (85%) of the net book value of
the accounts receivable of the US Credit Parties; $___________
2. Sixty-five percent (65%) of the net book value of
the inventory of the US Credit Parties; and $___________
3. Twenty percent (20%) of the net book value of the
plant, property and equipment of the US
Credit Parties
Total: $___________
RPP USA hereby represents and warrants that this Certificate is a correct
statement regarding the status of the accounts receivable, the inventory and the
property, plant and equipment of the US Credit Parties comprising the Borrowing
Base, and the amounts set forth herein and therein are in compliance with the
provisions of the Credit Agreement and GAAP, subject to normal year-end audit
adjustments and the absence of footnotes.
Exhibit O
Page 2
This Certificate is executed on __________ __, ____ by the __________ of
RPP USA. The undersigned hereby certifies that each and every matter contained
herein or attached hereto is derived from the books and records of the US Credit
Parties and is true and correct in all material respects.
Date:____________________
RESOLUTION PERFORMANCE PRODUCTS LLC
By:
-------------------------------------
Name:
Title:
-2-
