AMENDMENT NO. 1 TO SENIOR SECURED PRIMING SUPER-PRIORITY DEBTOR IN POSSESSION NOTE PURCHASE AGREEMENT
Exhibit 99.1
Execution Version
AMENDMENT NO. 1 TO SENIOR SECURED PRIMING SUPER-PRIORITY DEBTOR
IN POSSESSION NOTE PURCHASE AGREEMENT
IN POSSESSION NOTE PURCHASE AGREEMENT
This
First Amendment, dated as of March 10, 2011 (this “First Amendment”), is entered into by
and among Constar, Inc., a Pennsylvania corporation (the “Issuer Representative”), Constar
International Inc., a Delaware corporation (“Holdings”), BFF Inc., a Delaware corporation (“BFF”),
DT, Inc., a Delaware corporation (“DT”), Constar Foreign Holdings, Inc., a Delaware corporation
(“Constar Foreign Holdings”, and together with Issuer Representative, Holdings, BFF and DT, each an
“Issuer” and collectively, the “Issuers”), the Purchasers party hereto and Black Diamond Commercial
Finance, L.L.C., as Agent for the Purchasers (in such capacity, the “Agent”).
WHEREAS, this First Amendment amends the Senior Secured Priming Super-Priority Debtor in
Possession Note Purchase Agreement, dated as of January 14, 2011 (the “DIP Agreement”), among the
Issuers, the Purchasers from time to time party thereto, and the Agent;
WHEREAS, Borrower has requested that certain other amendments to the DIP Agreement be made;
WHEREAS, Agent and Purchasers are willing to accommodate the Issuers’ request and agree to the
amendments set forth herein on the terms and conditions set forth herein; and
WHEREAS, terms defined in the DIP Agreement (as amended hereby) and not otherwise defined
herein are used with the meaning so defined in the DIP 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. Amendment to DIP Agreement.
(a) Section 5.4(b) of the DIP Agreement is hereby amended and restated in its
entirety to read as follows:
(b) Investments by any Note Party in any other Note Party or in any Subsidiary which
is not a Note Party; provided, that: (i) such Note Party or Subsidiary, as
applicable, shall execute and deliver to any Note Party that is a payee a note
(collectively, the “Intercompany Notes”) to evidence any such intercompany
Indebtedness owing by such Note Party or such Subsidiary to such other Note Party,
that Intercompany Note shall be pledged and delivered to Agent pursuant to the
Guaranty and Security Agreement or equivalent foreign security document, as
applicable, as additional collateral security for the Obligations; (ii) each Note
Party shall accurately record all intercompany transactions on its books and
records; (iii) the aggregate amount of such intercompany Indebtedness owing by all
Foreign Subsidiaries (including without limitation Constar UK), and all Subsidiaries
which are not Note Parties, to the other Note Parties together with the
aggregate Investments by all Note Parties to any Foreign Subsidiaries and other
Subsidiaries which are not Note Parties shall not exceed $38,500,000
at any one time outstanding in the
aggregate, (iv) all such Investments made by the Note Parties in
Foreign Subsidiaries (including without limitation Constar UK), and all Subsidiaries
which are not Note Parties, shall be to fund the working capital, Capital
Expenditures and other general corporate purposes of such Foreign Subsidiaries
(including without limitation Constar UK) and Subsidiaries which are not Note
Parties, as applicable; and (v) all intercompany Indebtedness resulting from such
Investments shall be unsecured and subordinated to the Obligations pursuant to the
Master Intercompany Note or otherwise subject to such documentation as is acceptable
to the Agent.
2. Representations and Warranties. In order to induce the Agent and the Purchasers to
enter into this First Amendment, each of the Note Parties represents and warrants to the Agent and
the Purchasers (after giving effect to this First Amendment, which representations and warranties
shall survive the execution and delivery of this First Amendment), as follows:
(a) Organization; Requisite Power and Authority; Qualification. Each Note Party (a)
is a corporation, limited liability company or limited partnership, as applicable, duly organized,
validly existing and, if applicable, in good standing under the laws of the jurisdiction of its
incorporation, organization or formation, as applicable, (b) has the corporate or similar power
and authority to own its assets, carry on its business and execute, deliver, and perform its
obligations under, this First Amendment and the other Note Documents to which it is a party, (c)
has all governmental licenses, authorizations, Permits, consents and approvals to own its
assets, carry on its business and execute, deliver, and perform its obligations under, the Note
Documents to which it is a party, (d) is duly qualified as a foreign corporation, limited
liability company or limited partnership, as applicable, and licensed and, if applicable, in good
standing, under the laws of each jurisdiction where its ownership, lease or operation of Property
or the conduct of its business requires such qualification or license and (e) is in compliance
with all Requirements of Law; except, in each case referred to in the preceding clauses
(c), (d) or (e), to the extent that the failure to do so would not reasonably
be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(b) Due Authorization; Binding Obligation. The execution, delivery and performance
of this First Amendment has been duly authorized by all necessary corporate or organizational
action on the part of each Note Party that is a party thereto. This First Amendment, has been
duly executed by each of the Note Parties party thereto and when delivered by each Note Party that
is a party thereto will be the legally valid and binding obligation of such Note Party,
enforceable against such Note Party in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors’ rights generally or by equitable principles relating to enforceability.
(c) Governmental Consents. The execution, delivery and performance by, or
enforcement again, each of the Note Parties of this First Amendment and the consummation of the
transactions contemplated by this First Amendment do not and will not require the
approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority except (a) those filings required to be made with the Securities
and Exchange Commission, (b) those obtained or made on or prior to the date hereof and (c) those
of the Bankruptcy Court.
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(d) No Conflict. The execution, delivery and performance by each of the Note Parties
party to this First Amendment, and the consummation of the transactions contemplated by this First
Amendment and the other Note Documents do not and will not (a) contravene the terms of any of that
Person’s Organization Documents; (b) conflict with or result in any material breach or
contravention of, or (other than pursuant to the Collateral Documents) result in the creation of
any Lien under, any document evidencing any material Contractual Obligation to which such Person
is a party or any order, injunction, writ or decree of any Governmental Authority (including the
Bankruptcy Court) to which such Person or its Property is subject; (c) violate any Requirement of
Law in any material respect; (d) result in any default, noncompliance, suspension, revocation,
impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable
to its operations or any of its properties, other than any such default, noncompliance,
suspension, revocation, impairment, forfeiture or nonrenewal that will not have a Material Adverse
Effect or (e) require any approval of stockholders, members or partners or any approval or consent
of any Person under any Contractual Obligation of any Note Party or any of their Subsidiaries,
except for such approvals or consents which will be obtained on or before the First Amendment
Effective Date (as defined below) and disclosed in writing to the Purchasers and except for any
such approvals or consents the failure of which to obtain will not have a Material Adverse Effect.
(e) Adverse Proceedings, etc. There are no actions, suits, proceedings, claims or
disputes pending, or to the knowledge of each Note Party, threatened, at law, in equity, in
arbitration or before any Governmental Authority, individually or in the aggregate, that (a)
relate to any Note Documents or the transactions contemplated hereby or (b) if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
(f) Defaults. No Default or Event of Default exists or will exist after giving
effect to this First Amendment.
(g) Incorporation of Representations and Warranties. The representations and
warranties set forth in Article III of the DIP Agreement are true and correct in all material
respects (or, in the case of representations and warranties qualified by materiality or “Material
Adverse Effect”, in all respects) on the date hereof as if made on and as of the date hereof
(unless such representations and warranties expressly relate to an earlier date, in which case
such representations and warranties were true and correct in all material respects (or, in the
case of representations and warranties qualified by materiality or “Material Adverse Effect”, in
all respects).
3. Conditions Precedent. The effectiveness of this First Amendment shall be subject
to the satisfaction of the following conditions precedent (the date on which each such condition
has been effectively satisfied or waived, the “First Amendment Effective Date”):
(a) This Agreement, Etc. The Agent shall have received a copy of this First
Amendment, executed and delivered by each Issuer, the Agent and the Required Purchasers.
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(b) Transaction Expenses. The Agent shall have received reimbursement or payment of
all out-of-pocket expenses of the Agent (including, without limitation, the reasonable fees and
expenses of Xxxxxxxx & Xxxxx LLP, as legal counsel for the Agent) in any way relating to this
First Amendment and the other Note Documents, and all related agreements and documents, and the
transactions contemplated hereby and thereby, in each case, invoiced on or prior to the date
hereof.
(c) Representations and Warranties. The representations and warranties contained
herein shall be true and correct.
(d) No Defaults. No Default or Event of Default has occurred and is continuing.
4. Expenses. On the First Amendment Effective Date and from time to time thereafter,
the Note Parties will jointly and severally pay, within thirty days of written demand and
accompanying documentation in reasonable detail, all actual and reasonable out-of-pocket expenses
of the Agent (including, without limitation, the reasonable fees and expenses of Xxxxxxxx & Xxxxx
LLP, as legal counsel for the Agent) in connection with this First Amendment, the other Note
Documents, and all agreements and documents referred to herein or contemplated hereby, and the
perfection and maintenance of the liens on the Collateral securing the Obligations, and the
transactions contemplated hereby and thereby, in each case, in accordance with this Agreement and
otherwise in accordance with Section 9.5 of the DIP Agreement.
5. Reservation of Rights. Each of the Note Parties hereby agrees that (i) nothing in
this First Amendment shall constitute a waiver by the Agent or the Purchasers of any Default or
Event of Default or any noncompliance with the terms of the DIP Agreement or any of the other Note
Documents and (ii) nothing in this First Amendment shall constitute a forbearance of any of the
rights of the Agent or the Lenders with respect to any Default or Event of Default or any
noncompliance with the terms of the DIP Agreement or any of the other Note Documents, or otherwise.
Each of the Note Parties acknowledges and agrees that the Agent and the Lenders (i) have not
acquiesced to any noncompliance by the Note Parties with the exact terms of the DIP Agreement and
the other Note Documents relating to any Default or Event of Default, (ii) have the right to
strictly enforce the terms of the DIP Agreement and the other Note Documents, in the exercise of
their sole and absolute discretion, and (iii) reserve all rights, powers and remedies under the DIP
Agreement and the other Note Documents with respect to any Default or Event of Default and any
noncompliance with the terms of the DIP Agreement or any of the other Note Documents. In no event
shall the Purchasers’ and the Agent’s execution of this Agreement be deemed a waiver of any Default
or Event of Default or any other noncompliance with the terms of the DIP Agreement or any of the
other Note Documents that may now exist or hereafter may occur.
6. Governing Law; Waiver of Jury Trial; Other Miscellaneous Provisions. This First
Amendment shall be governed by and construed in accordance with the laws of the State of New York
and shall be subject to the waiver of jury trial and all other provisions of Sections 9.18
and 9.19 of the DIP Agreement, all of which are incorporated herein by reference as if
fully set forth herein and applicable hereto in all respects.
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7. Effect; Ratification. Each reference in the DIP Agreement to “this Agreement”,
“herein”, “hereof” and words of like import shall mean the DIP Agreement as amended hereby, and
each reference in the other Note Documents to the DIP Agreement shall mean the DIP Agreement as
amended hereby. This First Amendment shall be construed in connection with and as part of the DIP
Agreement and the other Note Documents and all terms, conditions, representations, warranties,
covenants and agreements set forth in the DIP Agreement and each other Note Document, except as
herein amended, are hereby ratified and confirmed and shall remain in full force and effect. This
First Amendment shall constitute a Note Document.
8. Reaffirmation. Each Note Party hereby (a) agrees that, notwithstanding the
effectiveness of this First Amendment, the Note Documents continue to be in full force and effect,
(b) confirms its guarantee of each Guaranty Obligation and all of its other obligations set forth
in the Guaranty and Security Agreement and in the Note Documents, and its grant of a security
interest in its assets as Collateral therefore, all as provided in the Note Documents as originally
executed and as amended hereby and (c) acknowledges that such guarantee, grant and other
obligations continue in full force and effect in respect of, and to secure, each Guaranty
Obligation under the DIP Agreement (as amended hereby) and the other Note Documents.
9. No Actions, Claims, Etc.; Release. As of the date hereof, each of the Note Parties
hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims,
demands, damages and liabilities of whatever kind or nature, in law or in equity (collectively,
“Claims”), against the Agent, the Purchasers, or the Agent’s or the Purchasers’ respective
officers, employees, representatives, agents, counsel, advisors or directors arising from any
action by such Persons, or failure of such Persons to act, under the DIP Agreement and other Note
Documents on or prior to the date hereof. In consideration of the Agent and the Purchasers
entering into this First Amendment, each Note Party hereby releases the Agent, the Purchasers, and
the Agent’s and the Purchasers’ respective officers, employees, representatives, agents, counsel,
advisors and directors (each such Person being called a “Released Party”) from any and all actions,
causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in
equity, now known or unknown, suspected or unsuspected to the extent that any of the foregoing
arises from any action or failure to act under the DIP Agreement or any other Note Document on or
prior to the date hereof except any of the foregoing arising from the gross negligence or willful
misconduct of such Released Party as determined by a court of competent jurisdiction by final and
nonappealable judgment.
10. Indemnity. (a) The Note Parties hereby agree that they shall be jointly and
severally obligated to indemnify and hold the Released Parties harmless in accordance with
Section 9.6 of the DIP Agreement.
(b) Each Note Party, on behalf of itself and its successors, assigns, and other legal
representatives, hereby absolutely, unconditionally and irrevocably, covenants and agrees with and
in favor of each Released Party that it will not xxx (at law, in equity, in any regulatory
proceeding or otherwise) any Released Party on the basis of any Claim released, remised and
discharged by the Note Parties party hereto pursuant to Section 9 of this First Amendment.
If any Note Party, or any of their successors, assigns or other legal representatives violates
the foregoing covenant, the each Note Party, for itself and its successors, assigns and legal
representatives, agrees to pay, in addition to such other damages as any Released Party may
sustain as a result of such violation, all attorneys’ fees and costs incurred by any Released Party as a
result of such violation.
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11. Counterparts. This First Amendment may be executed in any number of counterparts
and by different parties on separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of this First Amendment by facsimile electronic transmission or
by email transmission of a .pdf (or similar) file format document shall be as effective as delivery
of a manually executed counterpart of this First Amendment.
[Signature pages follow.]
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Execution Version
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above written.
| CONSTAR, INC. |
||||
| By: | /s/ J. Xxxx Xxxxxxx | |||
| Name: | J. Xxxx Xxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| CONSTAR INTERNATIONAL INC. |
||||
| By: | /s/ J. Xxxx Xxxxxxx | |||
| Name: | J. Xxxx Xxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| BFF INC. |
||||
| By: | /s/ J. Xxxx Xxxxxxx | |||
| Name: | J. Xxxx Xxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| DT, INC. |
||||
| By: | /s/ J. Xxxx Xxxxxxx | |||
| Name: | J. Xxxx Xxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| CONSTAR FOREIGN HOLDINGS, INC. |
||||
| By: | /s/ J. Xxxx Xxxxxxx | |||
| Name: | J. Xxxx Xxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| BLACK DIAMOND COMMERCIAL FINANCE, L.L.C., as Agent |
||||
| By: | /s/ X. Xxxxxxxxxxx | |||
| Name: | X. Xxxxxxxxxxx | |||
| Title: | Duly Authorized Signatory | |||
| BLACK DIAMOND CLO 2005-2 LTD., as Purchaser By: Black Diamond CLO 2005-2 Adviser, L.L.C., as its Collateral Manager |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Managing Principal | |||
| BLACK DIAMOND CLO 2006-1 LTD., as Purchaser By: Black Diamond CLO 2006-1 Adviser, L.L.C., as its Collateral Manager |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Managing Principal | |||
| BDC Finance, L.L.C., as Purchaser By: BDCM Fund Adviser, L.L.C., as its Investment Manager |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Managing Principal | |||
