EXHIBIT 4.8
RESTATED INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
RESTATED INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT dated as of
July 25, 2002 between SOLUTIA INC., a Delaware corporation (the "COMPANY"); each
of the subsidiaries of the Company identified under the caption "SUBSIDIARY
GUARANTORS" on the signature pages hereto or that become "Subsidiary Guarantors"
hereunder pursuant to Section 6.09 after the date hereof (individually, a
"SUBSIDIARY GUARANTOR" and, collectively, the "SUBSIDIARY GUARANTORS" and,
together with the Company, the "SECURING PARTIES"); CITIBANK, N.A., as
administrative agent under the Solutia Credit Agreement referred to below, BANK
OF AMERICA, N.A., as administrative agent under the Astaris Credit Agreement
referred to below, CITIBANK, N.A., as agent for the purchasers under the Co-gen
Participation Agreement referred to below, and CITIBANK, N.A., as collateral
agent for the Secured Parties referred to below (in such capacity, together with
its successors in such capacity, the "COLLATERAL AGENT").
The Company, certain lenders (the "SOLUTIA LENDERS") and Citibank,
N.A., as administrative agent (in such capacity, together with its successors in
such capacity, the "SOLUTIA ADMINISTRATIVE AGENT") are parties to a Second
Amended and Restated Credit Agreement dated as of July 25, 2002 (as modified and
supplemented and in effect from time to time, the "SOLUTIA CREDIT AGREEMENT"),
providing, subject to the terms and conditions thereof, for extensions of credit
(by means of loans and letters of credit) to be made by said lenders to the
Company and the other borrowers referred to therein in an aggregate principal or
face amount not exceeding $600,000,000. In addition, the Company may from time
to time be obligated to various of the Solutia Lenders (or their affiliates) in
respect of one or more hedging agreements permitted under Section 6.02(g)(v) of
the Solutia Credit Agreement.
Astaris LLC, a limited liability company organized under the laws of
Delaware ("ASTARIS"), certain lenders (the "ASTARIS LENDERS") and Bank of
America, N.A., as administrative agent (in such capacity, together with its
successors in such capacity, the "ASTARIS ADMINISTRATIVE AGENT"), are parties to
a Credit Agreement dated as of September 14, 2000 (as modified and supplemented
and in effect from time to time, the "ASTARIS CREDIT AGREEMENT"), providing,
subject to the terms and conditions thereof, for loans to be made by said
lenders to Astaris in an aggregate principal amount not exceeding $275,000,000.
The obligations of Astaris under the Astaris Credit Agreement have been
partially guaranteed by the Company pursuant to a Guaranty Agreement dated as of
September 14, 2000 (as modified and supplemented and in effect from time to
time, the "ASTARIS GUARANTY AGREEMENT") by the Company in favor of Astaris LLC
and in favor of the Astaris Lenders and the Astaris Administrative Agent.
The Company, State Street Bank and Trust Company, as trustee (in such
capacity, together with its successors in such capacity, the "CO-GEN TRUSTEE"),
certain financial institutions named as purchasers therein (collectively, the
"CO-GEN PURCHASERS") and Citibank, N.A., as agent for the Co-gen Purchasers (in
such capacity, together with its successors in such capacity, the "CO-GEN
AGENT"), are parties to an Amended and Restated Participation Agreement dated as
of April 24, 1998 (as modified and supplemented and in effect from time to time,
the "CO-GEN PARTICIPATION AGREEMENT"), providing, subject to the terms and
conditions thereof, for loans and investments to be made by the Co-gen
Purchasers to the Co-gen Trustee in an aggregate principal amount not exceeding
$33,000,000. The obligations of the Co-gen Trustee under the
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Co-gen Participation Agreement have been guaranteed by the Company pursuant to
an Amended and Restated Instrument Guaranty dated as of April 24, 1998 (as
modified and supplemented and in effect from time to time, the "CO-GEN GUARANTY
AGREEMENT") by the Company in favor of the Co-gen Trustee and the Co-gen
Purchasers. In addition, the Co-gen Trustee, as lessor, and the Company, as
lessee, are party to an Amended and Restated Lease dated as of April 24, 1998
(as modified and supplemented and in effect from time to time, the "CO-GEN
LEASE") pursuant to which the Company agrees to make certain rent payments to
the Co-gen Trustee in consideration of the lease of the co-generation facility
referred to therein, which rent payments service the loans and investments made
by the Co-gen Purchasers.
In addition, certain of the Solutia Lenders may have issued letters of
credit for the account of the Company or a Subsidiary, or may in the future
issue letters of credit for the account of the Company, which are or will be
identified in this Agreement as "Designated Letters of Credit" (as hereinafter
defined). It is contemplated that, in connection herewith, such Solutia Lenders
will execute and deliver a Letter of Credit Override Agreement providing for
certain common terms to be applicable to such letters of credit.
In connection with the transactions described above, the Company, the
Subsidiary Guarantors, the Administrative Agents, the Co-gen Agent and the
Collateral Agent, have entered into an Intercreditor and Collateral Agency
Agreement dated as of November 15, 2001 (the "EXISTING NON-SHARING INTERCREDITOR
AGREEMENT").
To induce the Solutia Lenders to enter into the Solutia Credit
Agreement as described above and to continue to extend credit under the Solutia
Credit Agreement, to induce the Astaris Lenders to enter into an Amendment No. 3
to the Astaris Credit Agreement and to continue to extend credit under the
Astaris Credit Agreement, to induce the Co-gen Purchasers to continue to extend
credit and make investments under the Co-gen Participation Agreement and to
induce the Solutia Lenders to extend credit in respect of Designated Letters of
Credit and hedging agreements, the Subsidiary Guarantors are continuing
(pursuant to the Non-Sharing Security and Guarantee Agreement referred to
herein) to guarantee the obligations of the Company under the Solutia Credit
Agreement and the Astaris Guaranty Agreement, the Co-gen Guaranty Agreement, the
Co-gen Lease and in respect of the Designated Letters of Credit and the Hedging
Obligations (as hereinafter defined), and the Securing Parties are similarly
continuing (pursuant to the Non-Sharing Security and Guarantee Agreement) their
liens on certain of their properties as collateral security for, INTER ALIA,
such obligations, and granting new liens on certain other of their properties as
collateral security for, INTER ALIA, such obligations.
In connection with the foregoing, the parties hereto wish to reconfirm
the appointment of the Collateral Agent by the Administrative Agents, and the
Solutia Lenders and the Astaris Lenders, as applicable, for whom they act, and
by the Co-gen Agent and the Co-gen Purchasers for whom it acts, and for certain
other matters relating to the collateral security for the obligations of the
Securing Parties under the Credit Documents (as hereinafter defined), in each
case pursuant to the Existing Non-Sharing Intercreditor Agreement and, in that
connection, to amend and restate the Existing Non-Sharing Intercreditor
Agreement in its entirety. Accordingly, the parties hereto agree that the
Existing Non-Sharing Intercreditor Agreement shall be amended and restated as
follows:
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Section 1. DEFINITIONS. As used in this Agreement, the following terms
have the meanings specified below:
"ADMINISTRATIVE AGENTS" means, collectively, the Solutia
Administrative Agent, together with its successors in such capacity, and the
Astaris Administrative Agent, together with its successors in such capacity.
"COLLATERAL" means, collectively, the assets of the Securing Parties
that have been subjected to the Liens of the Non-Sharing Security Documents.
"CREDIT AGREEMENTS " means, collectively, the Solutia Credit Agreement
and the Astaris Credit Agreement.
"CREDIT DOCUMENTS" means, collectively, the Solutia Credit Agreement,
the Astaris Guaranty Agreement, the Co-gen Guaranty Agreement, the Co-gen Lease,
the Co-gen Participation Agreement, any agreement pursuant to which a Designated
Letter of Credit shall have been issued and the Security Documents.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"DESIGNATED LETTER OF CREDIT" means, collectively, (a) each letter of
credit issued by a Solutia Lender for the account of the Company or a Subsidiary
that is identified in Schedule I hereto and (b) each letter of credit for the
account of the Company hereafter designated by the Company as a "Designated
Letter of Credit" for purposes hereof pursuant to a Designation Letter in the
form of Schedule II hereto delivered to the Collateral Agent in accordance with
Section 3.
"DESIGNATED LETTER OF CREDIT OBLIGATIONS" has the meaning ascribed
thereto in the Non-Sharing Security and Guarantee Agreement.
"EVENT OF DEFAULT" means any "Event of Default" under the Solutia
Credit Agreement, any default in the payment by the Company of any obligation
under the Astaris Guaranty Agreement, any default in payment by the Company of
any obligation under the Co-gen Lease or the Co-gen Guaranty Agreement and any
default by the Company in respect of any of its payment obligations under any
Designated Letter of Credit.
"EXISTING NOTE INDENTURES" means, collectively, the indenture and/or
the fiscal agency agreement, as applicable, pursuant to which the following
notes or debentures of the Company or Solutia Europe S.A./N.V., as applicable,
have been issued: 6.50% notes due 2002, 7.375% debentures due 2027, 6.72%
debentures due 2037 and 6.25% euro notes due 2005, as in effect on the date
hereof and without giving effect to any modifications or supplements after the
date hereof.
"HEDGING OBLIGATIONS" has the meaning ascribed thereto in the
Non-Sharing Security and Guarantee Agreement.
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"JUNIOR SECURITY DOCUMENTS" means, collectively, (i) the Junior
Intercreditor Agreement substantially in the form of Exhibit M to the Solutia
Credit Agreement between the Company, each of the Subsidiary Guarantors, the
Collateral Agent and HSBC Bank USA, as trustee under the 2009 Notes Indenture
referred to therein and (ii) and the Junior Security Agreement substantially in
the form of Exhibit N to the Solutia Credit Agreement between the Company, each
of the Subsidiary Guarantors, the Collateral Agent and HSBC Bank USA, as trustee
under said 2009 Notes Indenture.
"LENDERS" means, collectively, the Solutia Lenders and the Astaris
Lenders.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including the lien or retained security title of a conditional vendor and any
mortgage, easement, right of way or other encumbrance on title to real property.
"MAJORITY SOLUTIA LENDERS" means the Majority Lenders under and as
defined in the Solutia Credit Agreement.
"MAKE-WHOLE OBLIGATIONS" has the meaning ascribed thereto in the
Non-Sharing Security and Guarantee Agreement.
"NON-SHARING MORTGAGES" means, collectively, one or more instruments
of Mortgage, Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing executed by any Securing Party in favor of the Collateral Agent for the
benefit of the Secured Parties (or in favor a trustee for the benefit of the
Collateral Agent and the Secured Parties) and covering the facilities of the
Company located in Decatur, Alabama, Indian Orchard, Massachusetts, Trenton,
Michigan, Greenwood, South Carolina and Alvin, Texas, in each case as the same
shall be modified and supplemented and in effect from time to time.
"NON-SHARING SECURITY DOCUMENTS" means, collectively, this Agreement,
the Non-Sharing Security and Guarantee Agreement, each Non-Sharing Mortgage, and
any other pledge agreements, security agreements, assignment agreements,
mortgages, deeds of trust or other instruments providing for collateral security
from time to time executed by any Securing Party in favor of the Collateral
Agent.
"NON-SHARING SECURITY AND GUARANTEE AGREEMENT" means the Restated
Security and Guarantee Agreement dated as of July [___], 2002 between the
Securing Parties and the Collateral Agent, as the same shall be modified and
supplemented and in effect from time to time.
"PERSON" means any individual, corporation (including a business
trust), company, voluntary association, partnership, limited liability company,
joint venture, trust, unincorporated organization or governmental authority or
other entity of whatever nature.
"RELEVANT SHARING PERCENTAGE" means, at any time, the percentage
corresponding to the fraction (a) the numerator of which shall be each of the
following respectively (i) in the case of any Solutia Lender, the Solutia Credit
Agreement Obligations then held by such Solutia
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Lender, (ii) in the case of any Astaris Lender, the Make-Whole Obligations then
held by such Astaris Lender that are due and payable, (iii) in the case of any
Co-gen Purchaser, the Synthetic Lease Obligations then held by such Co-gen
Purchaser, (iv) in the case of any issuer of Designated Letters of Credit,
Designated Letter of Credit Obligations then held by such issuer, (v) in the
case of any holder of Hedging Obligations, the Hedging Obligations then held by
such holder that are due and payable or (vi) in the case of any Term Loan
Facility Lender, the Term Loan Facility Obligations then held by such Term Loan
Facility Lender and (b) the denominator of which shall be the sum of (i) the
then-outstanding Solutia Credit Agreement Obligations, (ii) the then-outstanding
Make-Whole Obligations then due and payable, (iii) the then-outstanding
Synthetic Lease Obligations, (iv) the then-outstanding Designated Letter of
Credit Obligations, (v) the then-outstanding Hedging Obligations then due and
payable and (vi) the then-outstanding Term Loan Facility Obligations.
"SECURED PARTIES" means, collectively, the Collateral Agent, the
Co-gen Agent, the Co-gen Purchasers, the Solutia Lenders, the Astaris Lenders,
the Administrative Agents and the Term Loan Facility Lenders (and, in respect of
any Hedging Obligations, any affiliate of a Solutia Lender that shall have
entered into the respective hedging agreement giving rise to such Hedging
Obligations).
"SECURED OBLIGATIONS" has the meaning ascribed thereto in the
Non-Sharing Security and Guarantee Agreement.
"SECURITY DOCUMENTS" means, collectively, the Non-Sharing Security
Documents and the Sharing Security Documents under and as defined in the Sharing
Intercreditor Agreement.
"SHARING INTERCREDITOR AGREEMENT" means the Intercreditor and
Collateral Trust Agreement dated as of July [___], 2002 between the Company,
CPFilms Inc., Administrative Agents, the Co-gen Agent, the Collateral Agent and
HSBC Bank USA, as Collateral Trustee being executed and delivered by the parties
concurrently herewith, as the same shall be modified and supplemented and in
effect from time to time.
"SOLUTIA CREDIT AGREEMENT OBLIGATIONS" has the meaning ascribed
thereto in the Non-Sharing Security and Guarantee Agreement.
"SYNTHETIC LEASE OBLIGATIONS" has the meaning ascribed thereto in the
Non-Sharing Security and Guarantee Agreement.
"TERM LOAN FACILITY LENDER" has the meaning ascribed thereto in the
Non-Sharing Security and Guarantee Agreement.
"TERM LOAN FACILITY OBLIGATIONS" has the meaning ascribed thereto in
the Non-Sharing Security and Guarantee Agreement.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
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Section 2. THE COLLATERAL AGENT.
2.01. APPOINTMENT AND DUTIES OF THE COLLATERAL AGENT.
(a) APPOINTMENT. Each Administrative Agent, on behalf of itself and
each of the Solutia Lenders and the Astaris Lenders, as applicable, for whom it
acts, and the Co-gen Agent, on behalf of itself and each Co-gen Purchaser, as
applicable, for whom it acts, hereby appoints, and continues the prior
appointment of, Citibank, N.A. to act as Collateral Agent hereunder and under
the other Security Documents, and hereby continues to authorize the Collateral
Agent to execute, deliver and perform, on behalf of each of the Secured Parties,
each Security Document to which the Collateral Agent is or is intended to be a
party and to take such actions on behalf of the Secured Parties under the
provisions of the Security Documents and to exercise such powers and perform
such duties as are expressly delegated to the Collateral Agent by the terms of
each Security Document, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
any Security Document, the Collateral Agent shall not have any duties or
responsibilities, except those expressly set forth herein and in the other
Security Documents. Each Secured Party shall be bound by all of the agreements
of the Collateral Agent contained herein and in the other Security Documents.
(b) COPIES OF DOCUMENTS TO BE FURNISHED TO SECURED PARTIES. The
Collateral Agent will forward to each Secured Party at its last address on the
records of the Collateral Agent promptly after the Collateral Agent's receipt
thereof a copy of each document furnished to the Collateral Agent under any
Security Document that relates to such Secured Party. The Collateral Agent will
forward to each Secured Party promptly upon such Secured Party's reasonable
request therefor a copy of any other document furnished to the Collateral Agent
under the Security Documents.
2.02. RIGHTS OF COLLATERAL AGENT.
(a) PERFORMANCE OF DUTIES THROUGH AGENTS. The Collateral Agent may
perform any of its duties under the Security Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties.
(b) ABSENCE OF LIABILITY. Neither the Collateral Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it under or
in connection with this Agreement or any other Security Document (except for its
gross negligence, willful misconduct or bad faith or breach of its obligations
hereunder or under any other Non-Sharing Security Document), or (ii) responsible
in any manner to any Secured Party for any recitals, statements, representations
or warranties made by any Securing Party or any representative thereof or any
other Person contained in any Security Document or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Collateral Agent under or in connection with, any Security Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
the Collateral or any Security Document or for any failure of any Securing Party
to perform its obligations thereunder. Except as expressly provided herein or in
any other Security Document, the Collateral Agent shall not be under any
obligation to any Secured Party to ascertain or to inquire as to the observance
or performance of any of the agreements contained
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in, or conditions of, any Security Document or to inspect the properties, books
or records of any Securing Party.
(c) RELIANCE, ETC. The Collateral Agent shall be entitled to rely, and
shall be fully protected in relying, upon any instruction, direction, order,
request, note, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document reasonably believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel, independent accountants and other
experts. In connection with any request of any Secured Party, the Collateral
Agent shall be fully protected in relying on a certificate of such Secured
Party, that the Collateral Agent reasonably believes is authentic and that sets
forth and certifies the principal amount of the Secured Obligations held by such
Secured Party as of the date of such certificate, which certificate shall state
that the individual signing such certificate is an authorized representative of
such Secured Party and is authorized to direct the Collateral Agent under this
Agreement and shall state specifically the Security Document and provision
thereof pursuant to which the Collateral Agent is being directed to act.
The Collateral Agent shall be fully justified in failing or refusing
to take any action hereunder or under any other Security Document (i) if such
action would, in the reasonable opinion of the Collateral Agent, be contrary to
law or the terms of the Security Documents, (ii) if such action is not
specifically provided for herein or in any other Security Document, or it shall
not have received any such advice or concurrence of the Secured Parties as it
deems appropriate, or (iii) if, in connection with the taking of any such action
that would constitute an exercise of remedies under any Security Document, it
shall not first be indemnified to its reasonable satisfaction by the Secured
Parties against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action, or refraining from
taking any action. The Collateral Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or under any other Security
Document in accordance with the instructions of the Majority Solutia Lenders,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all of the Secured Parties.
(d) EFFECT OF AMBIGUOUS PROVISIONS. If, with respect to a proposed
action to be taken by it, the Collateral Agent shall determine in good faith
that the provisions of any Security Document relating to the functions or
responsibilities of the Collateral Agent are or may be ambiguous or
inconsistent, the Collateral Agent shall notify the respective Secured Party
affected thereby, identifying the proposed action and the provisions that it
considers are or may be ambiguous or inconsistent, and may decline to perform
such function or responsibility unless it has received the written confirmation
from such Secured Party, or from the other Secured Parties, concurring in the
circumstances that the action proposed to be taken by the Collateral Agent is
consistent with the terms of such Security Document or is otherwise appropriate.
The Collateral Agent shall be fully protected in acting or refraining from
acting upon the confirmation of the Secured Parties in this respect, and such
confirmation shall be binding upon all of the Secured Parties.
(e) NOTICE OF DEFAULTS, ETC. The Collateral Agent shall not be deemed
to have actual, constructive, direct or indirect knowledge or notice of the
occurrence of any Default or Event of Default unless and until the Collateral
Agent has received notice or a certificate from a
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Secured Party or the Company stating that a Default or Event of Default has
occurred. The Collateral Agent shall not have any obligation whatsoever either
prior to or after receiving such notice or certificate to inquire whether a
Default or Event of Default has in fact occurred and shall be entitled to rely
conclusively, and shall be fully protected in so relying, on any notice or
certificate so furnished to it. No provision of any Security Document shall
require the Collateral Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties under any
Security Document or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it. In the
event that the Collateral Agent receives such a notice of the occurrence of any
Default or Event of Default, the Collateral Agent shall promptly give notice
thereof to the Secured Parties. The Collateral Agent shall take such action with
respect to such Default or Event of Default as requested by the Secured Parties,
and as otherwise provided herein.
(f) NO REQUIREMENT TO EXERCISE RIGHTS. Except as otherwise
specifically provided hereby, the Collateral Agent need not exercise any rights,
powers or remedies under this Agreement or any of the other Security Documents,
give any consent under any of the Security Documents or release any Lien or
guarantee, unless it shall have been directed to do so in writing by, or, as
applicable, shall have received the written consent to the relevant action of,
the Majority Solutia Lenders.
(g) PERFECTION, ETC. Except for actions expressly required hereunder
(excluding circumstances in which the Collateral Agent has the ability but not
an affirmative duty to act), nothing in this Agreement or any other Security
Document shall be interpreted as giving the Collateral Agent responsibility for
or any duty concerning the validity, perfection, priority or enforceability of
any lien or security interest in any Collateral or giving the Collateral Agent
any obligation to take any action to procure or maintain such validity,
perfection, priority or enforceability.
2.03. INDEMNIFICATION AND FEES OF THE COLLATERAL AGENT.
(a) INDEMNIFICATION. The Securing Parties jointly and severally agree
to indemnify and hold harmless the Collateral Agent and its directors, officers,
employees, agents and advisors from and against any and all claims, losses,
liabilities, obligations, damages and expenses (including reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against the
Collateral Agent or any such Person (hereinafter the "INDEMNIFICATION AMOUNT")
arising out of, related to or in connection with (i) this Agreement or any other
Security Document (including the enforcement of any Security Document) or (ii)
any refund or adjustment of any amount paid or payable to the Collateral Agent
under or in respect of any Security Document or any Collateral, or any interest
thereon, which may be ordered or otherwise required by any Person, except to the
extent such claims, losses, liabilities, damages and expenses are found by a
court of competent jurisdiction to have resulted from such Person's gross
negligence or willful misconduct. If the Securing Parties fail to pay on demand
the Indemnification Amount, interest will accrue thereon at a rate per annum
equal to that specified in Section 2.07(b) of the Solutia Credit Agreement from
the scheduled date for payment thereof until the actual date of payment and such
interest shall be added to the Indemnification Amount.
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(b) EXPENSES. The Securing Parties jointly and severally agree to pay
upon demand to the Collateral Agent the amount of any and all reasonable
out-of-pocket expenses, including the reasonable fees and expenses of its
counsel (and any local counsel) and of any experts and agents, which the
Collateral Agent may incur in connection with (i) the administration of this
Agreement and the other Security Documents, (ii) the custody or preservation of,
or the sale of, collection from, or other realization upon, any of the
Collateral, (iii) the exercise or enforcement (whether through negotiations,
legal proceedings or otherwise) of any of the rights of the Collateral Agent
under the Security Documents or (iv) the failure by any Securing Party or any
other Person (other than the Collateral Agent) to perform or observe any of the
provisions of the Security Documents.
2.04. RESIGNATION OR REMOVAL OF THE COLLATERAL AGENT. The Collateral
Agent may resign upon not less than 30 days' prior written notice to the
Company, each Administrative Agent and the Co-gen Agent and may be removed at
any time with or without cause by the Majority Solutia Lenders or by the Company
with the prior written consent of the Majority Solutia Lenders, with any such
resignation or removal to become effective only upon the appointment of a
successor Collateral Agent under this Section 2.04. If the Collateral Agent
shall resign or be removed, then the Majority Solutia Lenders shall (and if no
such successor shall have been appointed within 60 days of the Collateral
Agent's resignation or removal, the Collateral Agent may) appoint a successor
agent for the Secured Parties, which successor agent shall be a bank or trust
company organized under the laws of the United States of America or a State
thereof and that has a combined capital and surplus of at least $500,000,000,
whereupon such successor agent shall succeed to the rights, powers and duties of
the "Collateral Agent" and the term "Collateral Agent" shall mean such successor
agent effective upon its appointment, and the former Collateral Agent's rights,
powers and duties as Collateral Agent shall be terminated, without any other or
further act or deed on the part of such former Collateral Agent (except that the
resigning Collateral Agent shall deliver all Collateral then in its possession
to the successor Collateral Agent) or any of the other Secured Parties. After
any retiring Collateral Agent's resignation or removal hereunder, the provisions
of this Agreement shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Collateral Agent.
2.05. INFORMATION AS TO SECURED PARTIES. The Company will at such
other times as shall be requested by the Collateral Agent, supply a list in form
and detail satisfactory to the Collateral Agent setting forth the principal of
and interest on the Secured Obligations held by each Secured Party as at a date
specified in such request. The Collateral Agent shall provide any such list to
any Secured Party upon request. The Collateral Agent shall be entitled to rely
upon such information, and such information shall be conclusive and binding for
all purposes of this Agreement, except to the extent the Collateral Agent shall
have been notified by a Secured Party that such information as set forth on any
such list is inaccurate.
2.06. JUNIOR SECURITY DOCUMENTS. Each Administrative Agent, on behalf
of itself and each of the Solutia Lenders and the Astaris Lenders, as
applicable, for whom it acts, and the Co-gen Agent, on behalf of itself and each
Co-gen Purchaser, as applicable, for whom it acts, hereby authorizes the
Collateral Agent to execute and deliver the Junior Security Documents upon
request by the Company.
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Section 3. DESIGNATION OF LETTERS OF CREDIT. As contemplated by the
definition of "Designated Letter of Credit" in Section 1, in the event that any
Solutia Lender shall after the date hereof issue any letter of credit for
account of the Company, the Company may, at the time of such issuance (but not
in any event later than 5 Business Days after such issuance) designate such
letter of credit as a "Designated Letter of Credit" hereunder by furnishing to
the Collateral Agent a Designation Letter in duplicate, in substantially the
form of Schedule II hereto, duly completed and executed by the Company, PROVIDED
that the Company may not designate any letter of credit pursuant to this
sentence if, after giving effect thereto, the sum of (i) the then aggregate
outstanding face amounts of all Designated Letters of Credit (including such
letter of credit) and (ii) the then aggregate outstanding principal amount of
all unreimbursed drawings under any letters of credit that at any time
constituted "Designated Letters of Credit" shall exceed $50,087,599. Upon
delivery of a Designation Letter with respect to a letter of credit, and
acceptance of such Designation Letter by the Collateral Agent, such letter of
credit shall become a "Designated Letter of Credit" under and for all purposes
of this Agreement and the other Security Documents.
Section 4. REPRESENTATIONS AND WARRANTIES. Each Securing Party
represents and warrants to the Secured Parties that:
(a) INCORPORATION; GOOD STANDING. Such Securing Party has been duly
organized, is validly existing and in good standing as a corporation or
other applicable entity under the laws of the jurisdiction of its
organization, is duly qualified to transact business and is in good
standing in each state where any Collateral is located except where failure
to be so qualified would not have a Material Adverse Effect (as defined in
the Solutia Credit Agreement).
(b) CORPORATE AUTHORITY; NO BREACH. The execution, delivery and
performance by such Securing Party of this Agreement and the other Security
Documents to which it is a party, and the other transactions contemplated
hereby and thereby, are within such Securing Party's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) such Securing Party's charter or bylaws or (ii) law or any
contractual restriction binding on or affecting such Securing Party.
(c) NO CONSENTS OR APPROVALS. No authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required for the due execution,
delivery and performance by the such Securing Party of this Agreement or
the other Security Documents to which it is a party, other than those
authorizations, approvals, notices, filings and actions that have been
obtained, filed or taken on or before the date hereof by such Securing
Party or the Company. No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the transactions contemplated
thereby, except for (i) filings and recordings in respect of the Security
Documents and (ii) the authorizations, approvals, actions, notices and
filings (x) the failure to obtain would not have a Material Adverse Effect
or (y) which have been duly obtained, taken, given or made and are in full
force and effect.
NON-SHARING INTERCREDITOR AGREEMENT
- 11 -
(d) ENFORCEABLE OBLIGATIONS, ETC. This Agreement has been, and each of
the other Security Documents to which it is a party when delivered
hereunder will have been, duly executed and delivered by such Securing
Party. This Agreement is, and each of the other Security Documents to which
it is a party when delivered hereunder will be, the legal, valid and
binding obligation of such Securing Party enforceable against such Securing
Party in accordance with their respective terms.
Section 5. APPLICATIONS
5.01. APPLICATION OF PREPAYMENTS. As more fully provided in Section
2.10(h) of the Solutia Credit Agreement, optional and mandatory prepayments
and/or reduction of Commitments (as defined in the Solutia Credit Agreement)
described in subsections (e), (f) and (g) of Section 2.10 of the Solutia Credit
Agreement are to be applied as follows:
FIRST, to the prepayment of the Term Advances (as defined in the
Solutia Credit Agreement) and the Co-gen Instruments (as therein defined),
and to the provision of cover for the Designated Letters of Credit as
provided in Section 5.04 of the Non-Sharing Security and Guarantee
Agreement, in each case ratably in accordance with the respective principal
amounts thereof outstanding at the time of such prepayment (such
outstanding amount, in the case of the Designated Letters of Credit, to be
deemed to be equal to the Designated Letter of Credit Exposure (as defined
in the Solutia Credit Agreement) at such time), and
SECOND, after the payment in full of the Term Advances and the Co-gen
Instruments, and the provision of full cover for the Designated Letters of
Credit in an aggregate amount equal to the Designated Letter of Credit
Exposure at such time, to first, prepay Revolving Credit Advances and
second, provide cover for Letter of Credit Exposures as specified in
subsection (i) of Section 2.10 of the Solutia Credit Agreement and, to the
extent such prepayments are being made pursuant to subsection (e) or (f) of
said Section 2.10 and result from (x) a Disposition (as therein defined) of
any property constituting collateral security under any of the Security
Documents or (y) a Casualty Event (as therein defined) affecting any such
collateral security, the Revolving Credit Commitments (as therein defined)
shall be automatically reduced by the amount of such prepayment.
Notwithstanding any other provision herein or in the Solutia Credit
Agreement to the contrary, (1) if any amounts are due and payable under the
Solutia Credit Agreement, the Astaris Guaranty Agreement, the Co-gen
Participation Agreement, the Co-gen Guaranty Agreement, the Co-gen Lease or any
Hedging Agreements (as defined in the Solutia Credit Agreement), or in respect
of any Designated Letters of Credit, at the time of a Disposition or upon any
Capital Markets Transaction (as therein defined) then prepayments in accordance
with subsections (e), (f) and (g) of Section 2.10 of the Solutia Credit
Agreement are to be shared ratably by the Secured Parties in accordance with
their respective Relevant Prepayment Percentages (as therein defined) and the
Commitments shall be reduced only by the amount of prepayments allocable to the
Solutia Credit Agreement and (2) any Net Cash Proceeds received pursuant to
subsection (e) or (f) of said Section 2.10 which constitutes collateral under
the Co-gen Participation Agreement or the Co-gen Lease shall be applied first to
reduce the amounts
NON-SHARING INTERCREDITOR AGREEMENT
- 12 -
outstanding under the Co-gen Instruments and thereafter to the repayment of the
Advances as described above.
In the event that at the time of any prepayment required to be applied
to the Term Advances there shall be any Revolving Credit Advances outstanding,
any Term Lender shall have the right to refuse all or any portion of any
optional or mandatory prepayment pursuant to Section 2.10(a), (b), (e), (f) or
(g) of the Solutia Credit Agreement, and any amount so refused will be applied
to prepay the Revolving Credit Advances, but in each case without reduction of
any of the Revolving Credit Commitments.
Anything in this Agreement to the contrary notwithstanding, to the
extent that any Net Cash Proceeds (as defined in the Solutia Credit Agreement)
of any property subject to the Lien of the Shared Security Documents shall be
received by the Company at a time when any Triggering Event (as defined in the
Sharing Intercreditor Agreement) shall have occurred and be continuing, such Net
Cash Proceeds shall be retained by, or remitted to, the Collateral Trustee for
application to the Sharing Obligations (as so defined) in accordance with the
requirements of Section 4.01 of the Sharing Intercreditor Agreement and shall
not be applied to the Advances under the Solutia Credit Agreement or the Co-gen
Instruments, or as cover for Designated Letters of Credit, as would otherwise be
required under subsection (h) of Section 2.10 of the Solutia Credit Agreement.
5.02. APPLICATION OF PROCEEDS OF COLLATERAL. Except as otherwise
expressly provided herein or in any other Security Document, the proceeds of any
collection, sale or other realization pursuant to any of the Security Documents
of all or any part of the Collateral shall be applied by the Collateral Agent:
FIRST, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Collateral Agent and the reasonable fees and expenses of
its agents and counsel, and all expenses incurred and advances made by the
Collateral Agent in connection therewith;
SECOND, to the payment of the Secured Obligations then due and
payable, in each case equally and ratably (but subject, in the case of the
Solutia Credit Agreement Obligations under and as defined in the Sharing
Intercreditor Agreement, to the provisions of Section 5.03); and
FINALLY, after application as provided in clauses "FIRST" and "SECOND"
above, to the payment to the respective Securing Parties, or their
respective successors or assigns, or as a court of competent jurisdiction
may direct, of any surplus then remaining.
5.03. CERTAIN SPECIAL ALLOCATIONS. Each Secured Party, by accepting
the benefits of the Non-Sharing Mortgages, hereby acknowledges that the
Non-Sharing Mortgages may, in certain circumstances, provide security for the
Secured Obligations on a basis other than in accordance with the Relevant
Sharing Percentages of the Secured Parties. Each Secured Party, by accepting the
benefits of the Non-Sharing Mortgages, nevertheless agrees that it is the intent
of the Secured Parties that any proceeds of any collection, sale or other
realization under the Non-Sharing Mortgages be shared among the Secured Parties
ratably in accordance with their
NON-SHARING INTERCREDITOR AGREEMENT
- 13 -
Relevant Sharing Percentages. Accordingly, notwithstanding the provisions of
Section 5.02, any payments under clause SECOND of said Section 5.02 representing
proceeds of any collection, sale or other realization under the Non-Sharing
Mortgages shall be paid by the Collateral Agent to the Secured Parties ratably
in accordance with their Relevant Sharing Percentages, with the portion of such
payments made in respect of any Secured Obligations held by any Secured Party in
excess of such Secured Party's Relevant Sharing Percentage of the Secured
Obligations held by it (and accordingly remitted to the other Secured Parties
under this Section 5.03) constituting a purchase of participations by such
Secured Party of participations in the Secured Obligations held by each other
Secured Party.
Section 6. MISCELLANEOUS.
6.01. NOTICES, ETC. All notices and other communications provided for
hereunder shall be in writing, telecopied or delivered:
(a) if to any of the Securing Parties, care of Solutia Inc., 000
Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Vice
President and Treasurer, telephone number (000) 000-0000, telecopier number
(000) 000-0000, with a copy in care of Solutia Inc., 000 Xxxxxxxxx Xxxxxx
Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: General Counsel, telephone
number (000) 000-0000, telecopier number (000) 000-0000,
(b) if to the Solutia Administrative Agent, at its address at
Citibank, N.A., Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx Xxxxx (or his successor), telephone number (302)
894-6059, telecopier number (000) 000-0000;
(c) if to the Astaris Administrative Agent, at its address at Bank of
America, N.A., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xx. Xxxxx Xxxxxx and Xx. Xxxxxx Xxxxx, telephone number (704)
388-6483, telecopier number (000) 000-0000;
(d) if to the Co-gen Agent, at its address at Citibank, N.A., Bank
Loan Syndications, Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx Xxxxxxx, telephone number (000) 000-0000, telecopier
number (000) 000-0000; and
(e) if to the Collateral Agent, at its address at Citibank, N.A., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxxx,
telephone number (000) 000-0000, telecopier number (000) 000-0000.
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall, when delivered or telecopied, be effective when delivered or transmitted
by telecopier, respectively.
6.02. WAIVERS. No failure on the part of the Collateral Agent or any
other Secured Party to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral
Agent, any Lender, or any Co-gen Purchaser of any right,
NON-SHARING INTERCREDITOR AGREEMENT
- 14 -
power or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies herein are cumulative
and are not exclusive of any remedies provided by law.
6.03. AMENDMENTS, ETC. Except as otherwise provided in any Security
Document, the terms of this Agreement and the other Security Documents may be
waived, altered or amended only by an instrument in writing duly executed by
each Securing Party and the Collateral Agent, with the consent of the Majority
Solutia Lenders, PROVIDED that
(a) no such amendment shall adversely affect the relative rights of
any Secured Party as against any other Secured Party without the prior
written consent of such first Secured Party,
(b) without the prior written consent of each of the Solutia Lenders,
the Collateral Agent shall not release all or substantially all of the
collateral under the Non-Sharing Security Documents or release all or
substantially all of the Subsidiary Guarantors from their guarantee
obligations under Section 2 of the Non-Sharing Security and Guarantee
Agreement; PROVIDED that if any amounts are due and payable under the
Astaris Guaranty Agreement, the Co-gen Guaranty Agreement, the Co-gen
Lease, any Designated Letter of Credit, or any Hedging Agreement at the
time of any such proposed release then the prior written consent of a
majority in interest of the Astaris Lenders, the Co-gen Purchasers, the
issuers of the Designated Letters of Credit and the holders of any Hedging
Obligations, whichever of such obligations are then due and payable, will
also be required to release all or substantially all of the collateral
under the Non-Sharing Security Documents,
(c) the Collateral Agent is authorized to release (and shall release)
any Collateral that is either the subject of a disposition permitted under
the Solutia Credit Agreement or to which the Majority Solutia Lenders shall
have consented (and, in that connection, the Collateral Agent shall issue
any direction to the Collateral Trustee under Section 7.02 of the Sharing
Intercreditor Agreement as shall be required to effect any release of
Shared Property under and as defined therein), and
(d) the Collateral Agent is authorized to release (and shall release)
any Subsidiary Guarantor from any of its guarantee obligations under
Section 2 of the Non-Sharing Security and Guarantee Agreement to the extent
such Subsidiary is the subject of a disposition permitted under the Solutia
Credit Agreement or to which the Majority Solutia Lenders shall have
consented and upon such release, the Collateral Agent is authorized to
release (and shall release) any collateral security granted by such
Subsidiary Guarantor under the Non-Sharing Security and Guarantee
Agreement.
Any such amendment or waiver shall be binding upon the Collateral Agent, each
Secured Party and each Securing Party.
6.04. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of each Securing
Party, the Collateral Agent and each Secured Party (PROVIDED that no Securing
Party shall assign or transfer its rights
NON-SHARING INTERCREDITOR AGREEMENT
- 15 -
or obligations hereunder without the prior written consent of the Collateral
Agent, each Administrative Agent and the Co-gen Agent).
6.05. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
6.06. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
6.07. JURISDICTION. Each of the Securing Parties hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or any
Non-Sharing Security Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted by
law, in such federal court. Each of the Securing Parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Non-Sharing Security
Document shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or any other Non-Sharing
Security Document in the courts of any jurisdiction.
6.08. CAPTIONS. The captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
6.09. ADDITIONAL SUBSIDIARY GUARANTORS. As contemplated by Section
6.01(l) of the Solutia Credit Agreement, new Domestic Subsidiaries of the
Company formed or acquired by the Company after the date hereof, and any
Domestic Subsidiary that ceases to be an "Immaterial Subsidiary" (as defined in
the Solutia Credit Agreement), are required to become a "Subsidiary Guarantor"
under this Agreement, by executing and delivering to the Collateral Agent and
Collateral Trustee (as defined in the Solutia Credit Agreement) a Guarantee
Assumption Agreement in the form of Exhibit J to the Solutia Credit Agreement.
Accordingly, upon the execution and delivery of any such Guarantee Assumption
Agreement by any such Subsidiary, such new Subsidiary shall automatically and
immediately, and without any further action on the part of any Person, become a
"Subsidiary Guarantor" and a "Securing Party" for all purposes of this
Agreement.
NON-SHARING INTERCREDITOR AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Restated
Intercreditor and Collateral Agency Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
SOLUTIA INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Treasurer
SUBSIDIARY GUARANTORS
CPFILMS INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: Attorney-in-Fact
MONCHEM, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: President
MONCHEM INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: President
NON-SHARING INTERCREDITOR AGREEMENT
- 2 -
SOLUTIA SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: President
ADMINISTRATIVE AGENTS
CITIBANK, N.A., as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
CO-GEN AGENT
CITIBANK, N.A., as Agent for the Co-gen
Purchasers
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
NON-SHARING INTERCREDITOR AGREEMENT
- 3 -
COLLATERAL AGENT
CITIBANK, N.A., as Collateral Agent
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
NON-SHARING INTERCREDITOR AGREEMENT
SCHEDULE I
DESIGNATED LETTERS OF CREDIT
SOLUTIA INC. & CONSOLIDATED SUBSIDIARIES
STANDBY LETTERS OF CREDIT
BANK ISSUED ON BEHALF OF AMOUNT L/C NUMBER EXPIRES
----------------------------------------------------------------------------------------------
Citibank Solutia Inc. $ 8,000,000 NY-00928-30030824 00-Xxx-00
Xxxxxxxx Solutia Inc. $ 3,875 NY-00928-30027436 11-Feb-03
Citibank Solutia Inc. $ 6,620 NY-00928-30028536 30-Sep-02
Citibank Solutia Inc. $ 7,824 NY-00928-30025958 30-Sep-04
----------------------------------------------------------------------------------------------
SUB-TOTAL CITIBANK $ 8,018,319
----------------------------------------------------------------------------------------------
Chase Manhattan Bank Solutia Inc. $ 750,000 P-392986 31-Aug-02
Chase Manhattan Bank Solutia Inc. $ 480,000 P-392987 31-Aug-02
Chase Manhattan Bank Solutia Inc. $ 2,000,000 P-393627 31-Aug-02
Chase Manhattan Bank Solutia Inc. $ 6,000,000 P-393629 31-Aug-02
Chase Manhattan Bank Solutia Inc. $ 227,105 P-395392 31-Aug-02
Chase Manhattan Bank Solutia Inc. $ 750,000 P-349116 31-Dec-02
Chase Manhattan Bank Solutia Inc. $ 2,938,000 P-200112 30-Apr-03
Chase Manhattan Bank Solutia Inc. $ 2,107,000 P-200113 30-Apr-03
Chase Manhattan Bank Solutia Inc. $ 768,000 P-200114 30-Apr-03
Chase Manhattan Bank Solutia Inc. $ 852,000 P-200233 30-Apr-03
Chase Manhattan Bank Solutia Inc. $ 7,953,791 P-204020 31-Aug-02
Chase Manhattan Bank Solutia Inc. $ 3,177,062 P-204012 31-Aug-02
Chase Manhattan Bank Solutia Inc. $ 121,583 P-205878 15-Oct-02
----------------------------------------------------------------------------------------------
SUB-TOTAL CHASE $28,124,541
----------------------------------------------------------------------------------------------
HSBC Solutia Inc. $ 6,382,000 SDCMTN541972 30-Apr-03
HSBC Solutia UK Limited $ 24,517 102/13339798a 28-Feb-07
HSBC Solutia UK Limited $ 630,659 102/146377b 01-Jun-08
HSBC Solutia UK Limited $ 313,060 8852279 open
----------------------------------------------------------------------------------------------
SUB-TOTAL HSBC $ 7,350,236
----------------------------------------------------------------------------------------------
BANK BENEFICIARY PURPOSE
-------------------------------------------------------------------------------------------------------------
Citibank Xxxxxx Indemnity Insurance Company Pollution Insurance
Citibank Gas Authority of India (XXXX) Fin. Assurance
Citibank Gas Authority of India (XXXX) Fin. Assurance
Citibank Gas Authority of India (XXXX) Fin. Assurance
-------------------------------------------------------------------------------------------------------------
SUB-TOTAL CITIBANK
-------------------------------------------------------------------------------------------------------------
Chase Manhattan Bank Texas Department of Health Fin. Assur. - Choc Bayou
Chase Manhattan Bank Massachusetts Dept. of Environmental Fin. Assur. - Indian Orchard
Protect.
Chase Manhattan Bank New Jersey Dept. of Environmental Protection Fin. Assur. - Delaware River
Chase Manhattan Bank Florida Dept. of Environmental Regulation Fin. Assur. - Pensacola
Chase Manhattan Bank Florida Dept. of Environmental Regulation Fin. Assur. - Pensacola
Chase Manhattan Bank Texas Natural Res. Conservation Commission Fin. Assur. - Choc Bayou
Chase Manhattan Bank New Jersey Dept. of Environmental Protection Fin. Assur. - Delaware River
Chase Manhattan Bank Georgia Dept. of Natural Resources Fin. Assur. - Xxxxxxx
Xxxxx Manhattan Bank Alabama Dept. of Environmental Management Fin. Assur. - Anniston
Chase Manhattan Bank Illinois Environmental Protection Agency Fin. Assur.- Krummrich
Chase Manhattan Bank CIGNA Insurance Company Liability - General/Product/Automobile
Chase Manhattan Bank Pacific Employers Insurance Co. (CIGNA) Workers Comp - All but MO, WV, MA
Chase Manhattan Bank Xxxxxxx Landfill Remedial Action Fin. Assur. - Environmental Cleanup
-------------------------------------------------------------------------------------------------------------
SUB-TOTAL CHASE
-------------------------------------------------------------------------------------------------------------
HSBC Florida Dept. of Environmental Protection Financial Assurance - Pensacola
HSBC Environment Agency for GBP15,550 Fin. Assurance
HSBC HM Customs for GBP400,000 Fin. Assur. - Duties
HSBC HM Customs for GBP200,000 Fin. Assur. - Duties
-------------------------------------------------------------------------------------------------------------
SUB-TOTAL HSBC
-------------------------------------------------------------------------------------------------------------
NON-SHARING INTERCREDITOR AGREEMENT
- 2 -
Sumitomo Mitsui Solutia Inc. $ 158,819 X/XXX-000000 00-Xxx-00
Xxxxxxxx Mitsui Solutia Inc. $ 5,000,000 LG/MIS/NY-431752 14-Aug-02
------------------------------------------------------------------------------------------
SUB-TOTAL SUMITOMO $ 5,158,819
------------------------------------------------------------------------------------------
KBC Solutia Europe S.A/N.V. $ 594,873 0000000000 01-Mar-08
KBC Solutia Europe S.A/N.V. $ 199,738 0000000000 open
KBC Solutia Europe S.A/N.V. $ 74,905 3019723274 open
KBC Solutia Europe S.A/N.V. $ 117,851 500322874 open
KBC Solutia Europe S.A/N.V. $ 21,870 3190826729 open
KBC Solutia Europe S.A/N.V. $ 249,688 3196014411 open
KBC Solutia Europe S.A/N.V. $ 27,167 3196625309 open
KBC Solutia Europe S.A/N.V. $ 4,200 3267502296 25-Sep-02
KBC Solutia Europe S.A/N.V. $ 38,562 3267521801 01-Nov-02
KBC Solutia Europe S.A/N.V. $ 74,402 3267592630 10-Sep-02
KBC Solutia Europe S.A/N.V. $ 2,242 3267575957 15-Sep-02
KBC Solutia Europe S.A/N.V. $ 1,873 3196573371 31-Mar-04
KBC Solutia Europe S.A/N.V. $ 2,996 3196573977 31-Oct-06
KBC Solutia Europe S.A/N.V. $ 1,311 3196574078 28-Apr-04
KBC Solutia Europe S.A/N.V. $ 2,097 3196574381 14-Apr-04
KBC Solutia Europe S.A/N.V. $ 1,873 3196719982 30-Sep-07
KBC Solutia Europe S.A/N.V. $ 7,491 500068957 31-May-10
KBC Solutia Europe S.A/N.V. $ 4,344 500095532 14-Dec-10
KBC Solutia Europe S.A/N.V. $ 2,696 500166260 30-Sep-10
KBC Solutia Europe S.A/N.V. $ 5,506 500305494 01-Apr-11
------------------------------------------------------------------------------------------
SUB-TOTAL KBC $ 1,435,685
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
GRAND TOTAL $50,087,599
------------------------------------------------------------------------------------------
Sumitomo Mitsui Tennessee Dept. of Environment and Conserv. Fin. Assur. - Columbia, TN Plant
Sumitomo Mitsui Ferro Corporation Pursuant to Asset Purchase Agreement
-------------------------------------------------------------------------------------------------------------
SUB-TOTAL SUMITOMO
-------------------------------------------------------------------------------------------------------------
KBC OVAM for BEF23,837,000 Fin. Assur. - Ghent
KBC Douane Gent for BEF8,000,000 Fin. Assur. - Duties
KBC Douane Gent for BEF3,000,000 Fin. Assur. - Duties
KBC Douane Gent for EUR117,000 Fin. Assur. - Duties
KBC Betz Dearborn Fin. Assurance
KBC TVA Luxembourg for BEF10,000,000 Fin. Assur. - VAT
KBC Emirate BL Oil & Gas Fin. Assurance
KBC Misr Pour La Rayonne Fin. Assurance
KBC Lungi Xxxxxx for DEM74,880 Fin. Assurance
KBC Kirishinefteorgsintez Fin. Assurance
KBC Messrs Misr Polyester Co. Fin. Assurance
KBC J. Lousse / Annbritt Aspholi for BEF75,000 Fin. Assurance
KBC Xxx Xxxxx / Kabir for BEF120,000 Fin. Assurance
KBC Biernaux / Xxxx for BEF52,500 Fin. Assurance
KBC De Poorter / Xxxxxx - Xxxxx for BEF84,000 Fin. Assurance
KBC De Coninck / Xxxxxx for BEF75,000 Fin. Assurance
KBC MR. & MME Xxxxxx-Xxxxx for BEF300,000 Fin. Assurance
KBC TIESA for BEF174,000 Fin. Assurance
KBC Xxxxxx-Xxxxxxx for BEF108,000 Fin. Assurance
KBC Grass-Chardon / Xxxxxxx for EUR5,466 Fin. Assurance
-------------------------------------------------------------------------------------------------------------
SUB-TOTAL KBC
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
GRAND TOTAL
-------------------------------------------------------------------------------------------------------------
NON-SHARING INTERCREDITOR AGREEMENT
SCHEDULE II
[Form of Designation Letter]
____________ __, ____
Citibank, N.A., as Collateral
Agent for the Secured Parties
referred to below
0 Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Ladies and Gentlemen:
We refer to the Restated
Intercreditor and Collateral Agency Agreement
(the "NON-SHARING INTERCREDITOR AGREEMENT") dated as of July [___], 2002 between
Solutia Inc. (the "COMPANY"), each of the Subsidiaries of the Company identified
under the caption "SUBSIDIARY GUARANTORS" on the signature pages thereto,
Citibank, N.A., as administrative agent under the Solutia Credit Agreement
referred to therein, Bank of America, as administrative agent under the Astaris
Credit Agreement referred to therein, Citibank, N.A., as agent for the
purchasers under the Co-gen Participation Agreement referred to therein and
Citibank, N.A., as collateral agent (in such capacity, together with its
successors in such capacity, the "COLLATERAL AGENT"). Terms defined in the
Non-Sharing Intercreditor Agreement are used herein as defined therein.
The undersigned is delivering this Designation Letter pursuant to
Section 3 of the Non-Sharing Intercreditor Agreement and hereby designates
[identify letter of credit by (i) issuing bank, (ii) date of issuance, (iii)
amount and (iv) letter of credit number] (the "DESIGNATED LETTER OF CREDIT"), as
a "Designated Letter of Credit" under and for all purposes of the Non-Sharing
Intercreditor Agreement and the other Security Documents.
In that connection, the Company hereby certifies that the sum of (i)
the aggregate face amounts of all Designated Letters of Credit (including such
letter of credit) outstanding on the date hereof and (ii) the then aggregate
principal amount of all unreimbursed drawings under any letters of credit that
at any time constituted "Designated Letters of Credit" outstanding on the date
hereof do not exceed $50,087,599.
Very truly yours,
SOLUTIA INC.
By:
-----------------------------------------
NON-SHARING INTERCREDITOR AGREEMENT
- 2 -
Name:
Title:
ACCEPTED:
CITIBANK, N.A., as Collateral Agent
By:
--------------------------------
Name:
Title:
NON-SHARING INTERCREDITOR AGREEMENT
- 3 -
NON-SHARING INTERCREDITOR AGREEMENT
