EXHIBIT 10.3
FIRST AMENDMENT TO CREDIT
AGREEMENT
FIRST AMENDMENT (this “ Amendment ”), dated
as of October 15, 2009, to the Credit Agreement, dated as of
February 28, 2008 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”), among SOLUTIA INC., a Delaware
corporation (“ Borrower ”), the lending
institutions party thereto (the “ Lenders ”),
CITIBANK, N.A., as administrative agent for the Lenders (in such
capacity, the “ Administrative Agent ”), and the
other parties party thereto as agents. Capitalized terms
used herein without definition shall have the meanings ascribed to
them in the Credit Agreement.
RECITALS
A. Borrower,
the Administrative Agent, the Lenders and other parties thereto are
party to the Credit Agreement.
B. Borrower
has requested that certain amendments be made to the Credit
Agreement as set forth herein.
C. The
Lenders signatory to an acknowledgement and consent in the form
attached hereto as Annex A (a “ Lender Consent Letter
”) and the Administrative Agent have consented to this
Amendment on the terms and subject to the conditions set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants herein contained, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as
follows:
1. Amendments to
Credit Agreement . As of the First Amendment
Effective Date (as defined below) and subject to the satisfaction
of the conditions set forth in Section 2 hereof, the Credit
Agreement shall be amended as set forth below:
(a) Amendments to
Section 1.01 – Defined Terms . Section 1.01 of
the Credit Agreement is hereby amended by adding the following
definitions to Section 1.01, which shall be inserted in the proper
alphabetical order.
“ Acceptable Discount ” has
the meaning assigned to such term in Section
9.04(b)(ii)(B).
“ Acceptance Date ” has the
meaning assigned to such term in Section 9.04(b)(ii)(A).
“ Alternate First Lien Collateral
” has the meaning assigned to such term in Section
6.02(xxxi).
“ Applicable Discount ” has
the meaning assigned to such term in Section
9.04(b)(ii)(B).
“ Discount Range ” has the
meaning assigned to such term in Section 9.04(b)(ii)(A).
“ FAS 5 ” means the Statement
of Financial Accounting Standards No. 5 of The Financial Accounting
Standards Board.
“ First Amendment ” means
that certain First Amendment to Credit Agreement dated as of
October 15, 2009.
“ First Amendment Effective Date
” means October 15, 2009.
“ First Lien Obligations ”
means the Obligations and the Permitted Other Debt Obligations
(other than any Permitted Other Debt Obligations that are unsecured
or secured by a Lien ranking junior to the Lien securing the
Obligations), collectively.
“ Lender Participation Notice
” has the meaning assigned to such term in Section
9.04(b)(ii)(B).
“ Offered Loans ” has the
meaning assigned to such term in Section 9.04(b)(ii)(B).
“ Permitted Loan Purchase ”
has the meaning assigned to such term in Section
9.04(b)(ii)(A).
“ Permitted Loan Purchase Amount
” has the meaning assigned to such term in Section
9.04(b)(ii)(A).
“ Permitted Loan Purchase Notice
” has the meaning assigned to such term in Section
9.04(b)(ii)(C).
“ Permitted Other Debt ”
shall mean senior secured or unsecured notes or loans (which in
either case, if secured, may either have the same lien priority as
the Obligations or may be secured by a Lien ranking junior to the
Lien securing the Obligations), in either case issued by the
Borrower or a Subsidiary Guarantor, (a) the terms of which do not
provide for any scheduled repayment, mandatory redemption,
mandatory prepayment or sinking fund obligations prior to, at the
time of incurrence, the Maturity Date (other than customary offers
to repurchase or mandatory prepayment provisions, as applicable,
upon a change of control, asset sale, debt issuance, sale of the
company, excess cash flow or casualty or condemnation event and
customary acceleration rights after an event of default and
scheduled amortization payments not in excess of 1% of the original
principal amount of any such notes or loans constituting Permitted
Other Debt during any Fiscal Year; provided that (i) in the
case of any mandatory prepayment or offer to repurchase any such
Indebtedness relating to excess cash flow, the Borrower shall first
prepay the Loans in the amount required under Section 2.04(b)(iv)
prior to making any such prepayment of or offer to repurchase any
such other Indebtedness, and (ii) in the case of any mandatory
prepayment of or offer to repurchase any such Indebtedness, the
obligations of the Borrower (if any) to repay or prepay the Loans
in accordance with the terms hereof (including, without limitation,
as required pursuant to Section 2.04) arising from such change of
control, asset sale, debt issuance, sale of the company, excess
cash flow or casualty or condemnation event shall be satisfied to
the fullest extent required hereunder), (b) the covenants, events
of default and other terms of which (other than interest, fees,
discount and other pricing and economic provisions and redemption
or prepayment provisions and call protection and prepayment
premiums), taken as a whole, are not more restrictive to the
Borrower and its Restricted Subsidiaries than those herein, (c) of
which no Subsidiary of the Borrower (other than a Subsidiary
Guarantor) is an obligor, (d) if secured, are not secured by any
assets other than the Collateral or the Alternate First Lien
Collateral and (e) the Borrower shall deliver a certificate of an
Authorized Officer of the Borrower to the Administrative Agent at
least five Business Days (or such shorter period as the
Administrative Agent may reasonably agree) prior to the incurrence
of such Indebtedness, together with a reasonably detailed
description of the material terms and conditions of such
Indebtedness or drafts of the documentation relating thereto,
stating that the Borrower has determined in good faith that such
terms and conditions satisfy the foregoing requirements.
“ Permitted Other Debt Documents
” shall mean any document or instrument (including any
guarantee, security agreement or mortgage) issued or executed and
delivered with respect to any Permitted Other Debt by any Loan
Party.
“ Permitted Other Debt Obligations
” shall mean, if any Permitted Other Debt is issued, all
advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Permitted Other Debt
Document, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired and whether or
not evidenced by any note, guaranty or other instrument or for the
payment of money, including all fees and interest (including
interest accruing after the maturity of such Permitted Other Debt
and interest accruing (or that would accrue but for the
commencement of any bankruptcy, insolvency, reorganization or like
proceeding) after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding). Without limiting the generality of the
foregoing, the Permitted Other Debt Obligations of the applicable
Loan Parties under the Permitted Other Debt Documents include the
obligation (including guarantee obligations) to pay principal,
interest, fees, premiums, charges, expenses, attorneys’ fees
and disbursements and other sums chargeable to any such Loan Party
under any Permitted Other Debt Document.
“ Permitted Other Debt Secured
Parties ” shall mean the holders from time to time of
secured Permitted Other Debt Obligations, and any representative on
their behalf.
“ Permitted Purchase Option Notice
” has the meaning assigned to such term in Section
9.04(b)(ii)(A).
“ Qualified Unrestricted Subsidiary
” means any Unrestricted Subsidiary designated as a
“Qualified Unrestricted Subsidiary” pursuant to a
certificate of an Authorized Officer of the Borrower delivered to
the Administrative Agent and otherwise in compliance with Section
5.18; provided that there shall be no more than one
Qualified Unrestricted Subsidiary.
“ Qualifying Loans ” has the
meaning assigned to such term in Section 9.04(b)(ii)(C).
“ Senior Notes ” means the
senior notes to be issued by the Borrower on or around the First
Amendment Effective Date, which such notes shall comply with the
definition of Permitted Other Debt (other than clause (b) of that
definition, unless such notes are secured) but shall be either
unsecured or secured by Liens ranking junior to the Liens securing
the Obligations.
“ Senior Notes Documents ”
means (i) an indenture, dated on or around the First Amendment
Effective Date, among the Borrower, certain subsidiaries of the
Borrower and the trustee named therein, and (ii) each other
document and instrument executed in respect thereto, which
provisions of such indenture, documents and instruments shall
comply with the definition of Permitted Other Debt (other than
clause (b) of that definition, unless the notes issued thereunder
are secured) but shall be either unsecured or secured by Liens
ranking junior to the Liens securing the Obligations.
“ Senior Notes Secured Parties
” shall mean (i) the holders from time to time of secured
Senior Notes, (ii) the holders from time to time of any secured
Indebtedness permitted pursuant to Section 6.01(xxv)(y) and (iii)
any representative on behalf of any such holders.
“ Specified Businesses ”
means the businesses described on Schedule 1.01(e)
.
“ Transferred Liability ”
means, in connection with any sale, transfer or other disposition
of assets by the Borrower or its Restricted Subsidiaries, any
liability (i) that would be recorded on a balance sheet of the
Borrower or its Restricted Subsidiaries in accordance with GAAP or
identified under FAS 5, (ii) that is related to the assets sold,
transferred or otherwise disposed of by the Borrower or its
Restricted Subsidiaries, (iii) that is (x) expressly assumed by the
purchaser or transferee of such assets or (y) expunged by the
holder of such liability, and (iv) with respect to which the
Borrower and its Restricted Subsidiaries are fully and
unconditionally released upon consummation of such sale, transfer
or other disposition.
(b) The definition of
“ Asset Sale Prepayment Event ” in Section 1.01
of the Credit Agreement is hereby amended by (x) replacing the
parenthetical in clause (a) with the parenthetical “(other
than Sections 6.05 (viii), 6.05 (xii) and 6.05 (xvii)
thereof)” and (y) amending clause (b) in its entirety to read
as: “Asset Sales permitted by Section 9.22;
and”.
(c) The definition of
“ Consolidated EBITDA ” in Section 1.01 of the
Credit Agreement is hereby amended by:
(i) amending clause
(j) to read in its entirety as follows:
“for purposes of calculations pursuant to
Section 6.12 and 6.13 only, one-time cash charges associated with
plant closures and other restructuring charges, in all cases, (i)
not exceeding $15.0 million for any Test Period ending on or prior
to the First Amendment Effective Date and (ii) not exceeding $75.0
million in the aggregate from the First Amendment Effective Date to
the Maturity Date (excluding any such charges pursuant to the
Transactions); provided that such cash and other
restructuring charges pursuant to this clause (j) shall in no event
exceed $75.0 million for any Test Period, and”
(ii) inserting the
phrase “, but including any gains or income associated with
cancellation or extinguishment of Loans (including any gains,
income or loss from Permitted Loan Purchases)” immediately
following the phrase “(y) the amount attributable to minority
interests” set forth in the parenthetical located in clause
(i) following the reference to “ minus ”
contained therein; and
(iii) inserting the
following at the end of such definition:
“For the avoidance of doubt, Consolidated
EBITDA shall not be increased or decreased as a result of any gains
or income or losses associated with cancellation or extinguishment
of Loans (including any gains, income or loss from Permitted Loan
Purchases).”
(d) The definition of
“ Consolidated Interest Expense ” in Section
1.01 of the Credit Agreement is hereby amended by adding the words
“issuance of Equity Interests or Equity Rights” after
the words “Permitted Acquisitions” in the last
paragraph thereof.
(e) The definition of
“ Excess Cash Flow ” in Section 1.01 of the
Credit Agreement is hereby amended by:
(i) amending clause
(a)(iii) by adding the following at the end thereof:
“ provided that any impact of any
change in the valuation of currency and any one-time change in
working capital arising directly from Permitted Acquisitions or
from Asset Sales permitted pursuant to Section 6.05(viii), (xii) or
(xvii) completed by the
Borrower and
its Restricted Subsidiaries during such Excess Cash Flow Period
shall, in each case, be excluded from the calculation of working
capital;”;
(ii) amending
clauses (a)(v) by deleting the word “and” at the end of
such clause and inserting the following new clause
(a)(vii):
“(vii) to
the extent that cash payments in respect of contributions to
Pension Plans, any Foreign Plan, other post-employment benefits and
any payments made with respect to Environmental Liability during
any Excess Cash Flow Period are less than the amount of expenses
for such items subtracted in determining Consolidated EBITDA for
such Excess Cash Flow Period, the excess of such expenses over the
amount of such cash payments;”
(ii) amending clause
(b)(v) by adding the following at the end thereof:
“ provided that any impact of any
change in the valuation of currency and any one-time change in
working capital arising directly from Permitted Acquisitions or
from Asset Sales permitted pursuant to Section 6.05(viii), (xii) or
(xvii) completed by the Borrower and its Restricted Subsidiaries
during such Excess Cash Flow Period shall, in each case, be
excluded from the calculation of working
capital;”;
(iii) amending clause
(b)(vii) by replacing the parenthetical “(other than the
Loans)” with the parenthetical “(other than the Loans
and any Indebtedness pursuant to Sections 6.01(xiv), 6.01(xxiv) or
6.01(xxv));
(iv) deleting the word
“and” at the end of clause (b)(ix), replacing the
period at the end of clause (b)(x) with a “; and” and
inserting the following new clause (b)(xi):
“(xi) to
the extent not deducted as an expense in determining Consolidated
EBITDA and to the extent made from internally generated funds of
the Borrower and its Restricted Subsidiaries (including any cash
and Cash Equivalents actually received by the Borrower or any of
its Restricted Subsidiaries as a return on Investments), any
contribution to any Pension Plan, any Foreign Plan, or other
post-employment benefits and any payments made with respect to any
Environmental Liability during such Excess Cash Flow
Period.”
(v) inserting the
following at the end of such definition:
“For the avoidance of doubt, Excess Cash
Flow shall not be reduced by any Permitted Loan Purchase or the
amount of any cash consideration paid in connection
therewith.”
(f) The definition of
“ Loans ” in Section 1.01 of the Credit
Agreement is hereby amended in its entirety with the
following:
““ Loans ” means the
loans made pursuant to Section 2.01(a).”
(g) The definition of
“ Net Proceeds ” in Section 1.01 of the Credit
Agreement is hereby amended by adding the following parenthetical
after the words “Indebtedness for borrowed money” in
clause (b)(iii):
“(other than any Indebtedness pursuant to
Sections 6.01(xiv), 6.01(xxiv) or 6.01(xxv))”.
(h) The definition of
“ Permitted Acquisition ” in Section 1.01 of the
Credit Agreement is hereby amended by:
(i) amending clause
(d)(iv) by deleting the words “, and to be tested based on a
ratio 50 basis points tighter than the applicable ratio for such
Test Period set forth in Section 6.13” therefrom.
(ii) amending
clause (e) by adding the following words at the beginning
thereof:
“in the case of any acquisition or series
of related acquisitions where the Acquisition Consideration is
greater than $10.0 million in the aggregate,”
(i) The definition of
“ Permitted Guarantor Factoring Transactions ”
in Section 1.01 of the Credit Agreement is hereby amended by
replacing the words “$15.0 million” with the words
“$30.0 million”.
(j) The definition of
“ Pro Forma Basis ” in Section 1.01 of the
Credit Agreement is hereby amended by:
(i) adding the
following words immediately after the words “Asset
Sale” the first time they appear in clause
(ii): “or designation of a Subsidiary as an
Unrestricted Subsidiary (or of an Unrestricted Subsidiary as a
Restricted Subsidiary) pursuant to Section 5.18”;
(ii) adding the
following parenthetical immediately after the word
“Investment” where the term Investment appears in
clause (ii)(a)(i): “(including an Investment
resulting from an Unrestricted Subsidiary being designated as a
Restricted Subsidiary pursuant to Section 5.18)”;
and
(iii) adding
the following words immediately after the words “Restricted
Subsidiaries” in clause (ii)(a)(ii): “, or in the case
of the designation of a Subsidiary as an Unrestricted Subsidiary
pursuant to Section 5.18.”
(k) The definition of
“ Senior Debt Repayments ” in Section 1.01 of
the Credit Agreement is hereby amended by inserting the phrase
“; provided , however , Senior Debt Payments
shall not include any Permitted Loan Purchases” immediately
prior to the period at the end thereof.
(l) Amendment to
Section 2.04 – Optional and Mandatory Prepayments of Loans;
Repayments of Loans . Clause (b)(i) of Section 2.04
of the Credit Agreement is hereby amended in its entirety with the
following:
“(b) (i) If
the Borrower or any of its Restricted Subsidiaries shall incur any
Indebtedness (other than as permitted by Section 6.01(i) through
(xxiii) and 6.01(xxvi), and any Permitted Refinancing permitted
hereunder of Indebtedness permitted by Section 6.01(xxiv) or (xxv))
(each, a “ Debt Incurrence ”), 100% of the Net
Proceeds thereof shall be applied within three Business Days after
receipt thereof toward the prepayment of the Loans in accordance
with Section 2.04(d) below; provided that in the case of
Indebtedness constituting the Senior Notes, the Borrower shall not
be required to apply more than an aggregate amount equal to the
greater of (i) $200.0 million and (ii)
the amount
which is $100.0 million less than the aggregate original principal
amount of the Senior Notes, in each case to the prepayment of the
principal amount of the Loans in accordance with Section 2.04(d)
below; provided further , that in the case of
Indebtedness constituting the Senior Notes or Permitted Other Debt
incurred pursuant to Section 6.01(xxiv) or Section 6.01(xxv), as
applicable, such prepayment shall be accompanied by a fee or
prepayment premium, as applicable, equal to (x) 2.00% of the
principal amount prepaid or repaid if such prepayment occurs on or
after the first anniversary of the Effective Date but prior to the
second anniversary of the Effective Date or (y) 1.00% of the
principal amount prepaid or repaid if such prepayment occurs on or
after the second anniversary of the Effective Date but prior to the
third anniversary of the Effective Date.”
(m) Amendment to
Section 5.01 – Financial Information, Reports, Notices,
etc . Clause (a) of Section 5.01 of the Credit
Agreement is hereby amended by inserting the following language
between “(a “ Compliance Certificate
”)” and “containing” and replacing the same
with the following:
“(i) setting forth the aggregate principal
amount of all Permitted Loan Purchases made during the applicable
fiscal period and (ii);”
(n) Amendment to
Section 6.01 – Indebtedness .
(i) Clause (xii) of
Section 6.01 of the Credit Agreement is hereby amended in its
entirety as follows:
“(xii) Indebtedness
of any Non-U.S. Restricted Subsidiary that is a Non-Guarantor
Restricted Subsidiary, and Guarantees by any Non-U.S. Restricted
Subsidiary that is a Non-Guarantor Restricted Subsidiary in respect
of such Indebtedness; provided that (A) no Default shall have
occurred and be continuing or would immediately result there-from
and (B) the aggregate principal amount of all such Indebtedness
shall not exceed an aggregate of $75.0 million at any one time
outstanding;”
(ii) Clause (xiv) of
Section 6.01 of the Credit Agreement is hereby amended in its
entirety with the following
“(xiv) Indebtedness
of the Borrower and the Subsidiary Guarantors (other than the
Senior Notes) in an aggregate principal amount not to exceed $300.0
million at any one time outstanding that is either (x) unsecured or
(y) secured by a Lien ranking junior to the Lien securing the
Obligations; provided that, in each case, (A) such
Indebtedness will not mature prior to the date that is one year
following the Maturity Date, (B) the terms of such Indebtedness do
not provide for any scheduled repayment, mandatory redemption,
mandatory prepayment or sinking fund obligations prior to the date
that is one year following the Maturity Date (other than customary
offers to repurchase or mandatory prepayment provisions, as
applicable, upon a change of control, asset sale, debt issuance,
sale of the company, excess cash flow or casualty or condemnation
event and customary acceleration rights after an event of default
and scheduled amortization payments not in excess of 1% of the
original principal amount of any such Indebtedness during any
Fiscal Year; provided that (i) in the case of any mandatory
prepayment or offer to repurchase any such Indebtedness relating to
excess cash flow, the Borrower shall first prepay the Loans in the
amount required under Section 2.04(b)(iv) prior to making any such
prepayment of or offer to repurchase any such other Indebtedness,
and (ii) in the case of any mandatory prepayment of or offer to
repurchase any such
Indebtedness, the obligations of the
Borrower (if any) to repay or prepay the Loans in accordance with
the terms hereof (including, without limitation, as required
pursuant to Section 2.04) arising from such change of control,
asset sale, debt issuance, sale of the company, excess cash flow or
casualty or condemnation event shall be satisfied to the fullest
extent required hereunder), (C) after giving effect to the
incurrence of such Indebtedness on a Pro Forma Basis, the Net
Interest Expense Coverage Ratio shall be not less than 2.0:1.0 as
of the most recent Test Period (assuming that such incurrence of
Indebtedness, and each other incurrence of Indebtedness under this
Section 6.01 consummated since the first day of such Test Period,
and the application of the proceeds thereof, had occurred on the
first day of such Test Period) and the Borrower shall have
delivered to the Administrative Agent a certificate of a Financial
Officer of the Borrower to such effect setting forth in reasonable
detail the computations necessary to determine such compliance
(together with a reasonably detailed description of the material
terms and conditions of such Indebtedness or drafts of the
documentation relating thereto), (D) no Default shall have occurred
and be continuing or would immediately result therefrom, (E)
immediately after giving effect thereto, the Borrower and its
Restricted Subsidiaries are in compliance, on a Pro Forma Basis
after giving effect to the incurrence of such Indebtedness (and any
other Indebtedness incurred since the last day of the immediately
preceding Test Period), and the application of the proceeds
thereof, with the covenants set forth in Section 6.12 and 6.13
recomputed as at the date of the last ended Test Period, as if all
such Indebtedness was incurred on the first day of the immediately
preceding Test Period, and (F) except in the case of Guarantees by
Excluded Non-U.S. Restricted Subsidiaries of such Indebtedness of
Non-U.S. Restricted Subsidiaries, no Restricted Subsidiary shall
Guarantee any such Indebtedness unless such Restricted Subsidiary
is also a Subsidiary Guarantor under this Agreement and the other
Loan Documents; provided further that in the case of
Indebtedness that is secured pursuant to clause (y) above, (A) the
covenants, events of default and other terms of such Indebtedness
(other than interest, fees, discount and other pricing and economic
provisions and redemption or prepayment provisions and call
protection and prepayment premiums), taken as a whole, shall not be
more restrictive to the Borrower and its Restricted Subsidiaries
than those herein, (B) no Subsidiary of the Borrower (other than a
Subsidiary Guarantor) shall be an obligor in respect of such
Indebtedness, (C) such Indebtedness shall not be secured by any
assets other than the Collateral or the Alternate First Lien
Collateral, and (D) not less than five Business Days prior to the
incurrence of such Indebtedness, the Borrower shall have delivered
a certificate of an Authorized Officer of the Borrower to the
Administrative Agent, together with a reasonably detailed
description of the material terms and conditions of such
Indebtedness or drafts of the documentation relating thereto,
stating that the Borrower has determined in good faith that such
terms and conditions satisfy the foregoing
requirements;”
(iii) Section 6.01 of
the Credit Agreement is hereby amended by deleting the word
“and” at the end of clause (xxii) thereof, replacing
the period at the end of clause (xxiii) with a semicolon and
inserting the following new clauses (xxiv), (xxv) and
(xxvi):
“(xxiv) Indebtedness
of the Borrower and the Subsidiary Guarantors in respect of (x)
Permitted Other Debt issued or incurred for cash to the extent that
the Net Proceeds therefrom are applied to the prepayment of the
Loans in accordance with Section 2.04(b)(i) and the payment of
accrued interest thereon and any prepayment premium set forth in
Section 2.04(b)(i); provided that, (A) no Default shall have
occurred and be continuing or would immediately result therefrom,
and (B) immediately after giving effect thereto, the Borrower and
its Restricted Subsidiaries are in compliance, on a Pro
Forma Basis
after giving effect to the incurrence of such Indebtedness (and any
other Indebtedness incurred since the last day of the immediately
preceding Test Period), and the application of the proceeds
thereof, with the covenants set forth in Section 6.12 and 6.13
recomputed as at the date of the last ended Test Period, as if all
such Indebtedness was incurred on the first day of the immediately
preceding Test Period and (y) any Permitted Refinancing of any
Indebtedness specified in subclause (x) above; provided that
such Indebtedness pursuant to this Section 6.01(xxiv) otherwise
complies with the definition of Permitted Other Debt;
(xxv) Indebtedness
of the Borrower and the Subsidiary Guarantors in respect of (x) the
Senior Notes to the extent that the Net Proceeds therefrom are
applied to the prepayment of the Loans in accordance with, and to
the extent required by, Section 2.04(b)(i), and the payment of
accrued interest thereon and the prepayment premium set forth in
Section 2.04(b)(i); provided that, (A) no Default shall have
occurred and be continuing or would immediately result therefrom,
and (B) immediately after giving effect thereto, the Borrower and
its Restricted Subsidiaries are in compliance, on a Pro Forma Basis
after giving effect to the incurrence of such Indebtedness (and any
other Indebtedness incurred since the last day of the immediately
preceding Test Period), and the application of the proceeds
thereof, with the covenants set forth in Section 6.12 and 6.13
recomputed as at the date of the last ended Test Period, as if all
such Indebtedness was incurred on the first day of the immediately
preceding Test Period and (y) any Permitted Refinancing of such
Senior Notes specified in subclause (x) above; provided that
such Indebtedness pursuant to this Section 6.01(xxv) otherwise
complies with the definition of Permitted Other Debt (other than
clause (b) of that definition, unless such Senior Notes are
secured), but shall be either unsecured or secured by Liens ranking
junior to the Lien securing the Obligations; and
(xxvi) intercompany
notes evidencing obligations relating to Investments made pursuant
to Section 6.04(xxiii) or asset transfers made pursuant to Section
6.05(xviii); provided that (A) such intercompany notes are pledged
pursuant to the Pledge Agreement in accordance with Section 5.11
and (B) the obligations of any obligor evidenced by such
intercompany notes shall be subordinated to the Obligations on
terms reasonably satisfactory to the Administrative
Agent.”
(o) Amendment to
Section 6.02 – Liens .
(i) Clause (xvi) of
Section 6.02 of the Credit Agreement is hereby amended by deleting
the words “in the ordinary course of business of the Borrower
and its Restricted Subsidiaries”.
(ii) Section 6.02 of
the Credit Agreement is hereby amended by deleting the word
“and” at the end of clause (xxix) thereof, replacing
the period at the end of clause (xxx) with “; and” and
inserting the following new clauses (xxxi), (xxxii), (xxxiii) and
(xxxiv):
“(xxxi) Liens
securing Indebtedness permitted to be incurred under Section
6.01(xxiv); provided that (A) in the case of Liens
sec
