Exhibit 10.13
EXECUTION VERSION
AMENDMENT No. 1 dated as of
October 5, 2009 (this “ Amendment
”), to the Second Lien Credit Agreement dated as of
June 15, 2007 as amended, supplemented or otherwise modified
(the “Credit Agreement ”), among STR
ACQUISITION INC., a Delaware corporation which substantially
simultaneously with the execution thereof merged with and into
SPECIALIZED TECHNOLOGY RESOURCES, INC., a Delaware corporation (the
“ Borrower ”), STR HOLDINGS LLC, a
Delaware limited liability company (“ Existing
Holdings ”), the Lenders (as defined in the
Credit Agreement), and CREDIT SUISSE, as administrative agent (in
such capacity, the “ Administrative Agent
”) and as collateral agent (in such capacity the
“Collateral Agent” ) for the
Lenders.
WHEREAS the Borrower and Existing
Holdings have informed the Administrative Agent that they intend to
cause New Holdings (as defined below) to effect an initial public
offering pursuant to which New Holdings’ common Equity
Interests will be offered and sold.
WHEREAS the Borrower and the Lenders
have agreed to permit (a) the formation of a Delaware limited
liability company that will elect to be treated as a corporation
for Federal income tax purposes, as a direct, wholly owned
subsidiary of the Borrower (“ New Holdings
”) and a Delaware corporation, as a direct, wholly owned
subsidiary of New Holdings (“ Merger Sub
”), (b) the merger of Merger Sub with and into the
Borrower with the Borrower surviving and Existing Holdings
receiving all of the Equity Interests in New Holdings, (c) the
transfer from Existing Holdings to New Holdings of any and all
Obligations of Existing Holdings under the Loan Documents as
contemplated by, and in accordance with, Section 4 of this
Amendment, (d) the liquidation of Existing Holdings, and
(e) the conversion of New Holdings to a Delaware corporation
pursuant to the filing of a certificate of conversion with the
Secretary of State of Delaware (collectively, the “ IPO
Restructuring Transactions ”).
WHEREAS the Borrower, the
Administrative Agent and the Required Lenders have agreed, on the
terms and subject to the conditions set forth herein, to amend the
Credit Agreement in the manner set forth herein.
NOW, THEREFORE, Existing Holdings,
the Borrower, the Required Lenders, and the Administrative Agent
hereby agree as follows:
SECTION 1.
Defined Terms
.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Credit
Agreement.
SECTION 2.
Amendments
. (a)
The definition of the term “Qualified Public
Offering” set forth in Section 1.01 of the Credit
Agreement is hereby amended by replacing the reference to
“$50,000,000” therein with a reference to
“$25,000,000”.
(b)
Section 1.01 of the Credit Agreement is amended to add
definitions of the following terms in appropriate alphabetical
order:
“ Agreement
” shall mean this Credit Agreement as modified, supplemented,
amended, restated (including any amendment and restatement hereof),
extended or renewed from time to time.
“ Amendment
No. 1 ” shall mean Amendment No. 1 dated as
of October 5, 2009, to this Agreement.
“ IPO Restructuring
Transactions ” shall have the meaning ascribed
thereto in Amendment No. 1.
(c)
Section 6.05 of the Credit Agreement is hereby amended,
effective upon the Effective Date (as defined below), by deleting
in its entirety existing clause (v) thereof and renumbering
existing clause (u) as new clause (v), existing clause
(v) currently reads as follows:
“(v) Holdings may
merge, liquidate, reorganize or otherwise be restructured into a
newly-formed Loan Party in a transaction the purpose of which is to
re-organize Holdings as a corporation; provided that
(1) such transaction (or series of transactions) does not
result in a material increase in the Tax obligations payable in
cash (on a consolidated basis) for Holdings, the Borrower, each
Subsidiary of the Borrower and the holders of Equity Interests in
Holdings and (2) immediately following such transaction,
Holdings is in compliance with all requirements of the Guarantee
and Collateral Agreement and has satisfied its obligations under
Section 5.11 (including the execution of any further
documents, financing statements, agreements and instruments, and
the taking of all other actions, that may be reasonably requested
by the Required Lenders, the Administrative Agent or the Collateral
Agent).”
(d) A new Section 9.19 is
hereby added to the Credit Agreement that reads in its entirety as
follows:
“SECTION 9.19.
Holdings . New Holdings (as defined in Amendment
No. 1) shall be deemed to be a successor in interest to
Existing Holdings (as defined in Amendment No. 1) and all
references in this Agreement to “Holdings” (other than
(a) in the preamble and (b) in the definitions of the
terms “Acquisition”, “Equity Contribution”,
“Fee Letter” and “Transactions”) shall be
deemed to be references to New Holdings and Existing
Holdings. Notwithstanding anything to the contrary in this
Agreement, the Borrower and Holdings shall be permitted to engage
in any one or more of the IPO Restructuring Transactions, whether
or not contemporaneous (although the Borrower and Holdings
ex
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