Exhibit
10.9


 


EXECUTION VERSION


 


AMENDMENT No. 1 dated as of October 5, 2009
(this “Amendment”), to the
First 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 expect the IPO Restructuring Transactions,
other than clauses (d) and (e) described in the definition thereof, will
occur substantially contemporaneously).”


 


SECTION 3.  Waiver.  Effective
as of the Effective Date (as defined below), the Lenders, the Administrative
Agent and the Collateral Agent waive any non-compliance under the Credit
Agreement that may arise solely to the extent necessary to give effect to the
IPO Restructuring Transactions, other than compliance with the procedures and
obligations set forth in Sections 5.06 and 5.11 of the Credit Agreement and Section 4
of this Amendment.


 


SECTION 4.  Release and Transfer of Obligations.  Upon
written notification by the Borrower, Existing Holdings shall be released of
any and all Obligations arising 


 


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under the Loan Documents; provided that
on or prior to such time (i) New Holdings shall have executed and delivered
to the Collateral Agent a counterpart of the First Lien Guarantee and
Collateral Agreement and any and all such other documents as the Collateral
Agent may reasonably request, (ii) New Holdings shall have pledged to the
Collateral Agent 100% of the Equity Interests in the Borrower, (iii) Existing
Holdings shall have assigned to New Holdings and New Holdings shall have
assumed from Existing Holdings any and all Obligations of Existing Holdings
arising under the Loan Documents pursuant to an assignment and assumption
agreement or other instrument satisfactory to the Collateral Agent; and (iv) New
Holdings, Existing Holdings, and the Borrower shall have executed any and all
further documents, financing statements, agreements and instruments, and taken
all further action (including filing Uniform Commercial Code and other
financing statements, mortgages and deeds of trust) that may be required under
applicable law, or that the Required Lenders, the Administrative Agent or the
Collateral Agent may reasonably request, in order to effectuate the transactions
contemplated by clause (i) through and including clause (iii) of this
proviso.


 


SECTION 5.  Amendment Fee.   The Borrower agrees to pay on the Effective
Date to the Administrative Agent, for the account of each Lender that executes
and delivers a counterpart of this Amendment to the Administrative Agent (or
its counsel) on or prior to October 5, 2009 at 12:00 p.m., New York
City time (each such Lender a “Consenting Lender”), an amendment fee (collectively, the
“Amendment Fees”)
in an amount equal to 0.25% of the aggregate amount of Term Loans, Revolving
Loans, L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments
and Term Loan Commitments of such Consenting Lender.


 


SECTION 6.  Conditions to Effectiveness; Counterparts;
Amendments.  This Amendment shall
become binding on the parties and irrevocable as of the date set forth above on
the date on which (a) copies hereof that, when taken together, bear the
signatures of Existing Holdings, the Borrower and the Required Lenders, shall
have been received by the Administrative Agent, (b) the representations
and warranties set forth in Article III of the Credit Agreement shall be
true and correct in all material respects with the same effect as though made
on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date, in which case they are true and
correct in all material respects as of such earlier date (c) no Default or
Event of Default shall have occurred and be continuing, (d) the
Administrative Agent and Lenders shall have received payment of the Amendment
Fees, and (e) the Administrative Agent and Lenders shall have received all
fees and other amounts due and payable pursuant to that certain fee letter
dated as of September 29, 2009, relating to this Amendment, and payment of all out-of-pocket
expenses, including the reasonable and documented fees, charges and
disbursements of Cravath, Swaine & Moore LLP, counsel for the
Administrative Agent and the Collateral Agent, to the extent invoiced and required
to be paid or reimbursed to it by the Borrower under Section 9.05 of the
Credit Agreement (the “Effective Date”).  This Amendment may not be
amended nor may any provision hereof be waived except pursuant to a writing
signed by Existing Holdings, the Borrower, the Administrative Agent and the
Required Lenders.  This Amendment may be
executed in any number of counterparts, each of which shall constitute an
original but all of which when taken together shall constitute a single
contract.  Delivery of an executed
counterpart of a signature page of this Amendment by telecopy shall be
effective as delivery of a manually executed counterpart of this Amendment.


 


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SECTION 7.  Representations and Warranties.  To induce the other parties hereto to enter
into this Amendment, each of Existing Holdings and the Borrower represents and
warrants to each of the Lenders and the Administrative Agent that, after giving
effect to this Amendment, (a) the representations and warranties set forth
in Article III of the Credit Agreement are true and correct in all
material respects on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date, in which case
they are true and correct in all material respects as of such earlier date, and
(b) no Default or Event of Default has occurred and is continuing.


 


SECTION 8.  Notices.  All notices hereunder shall be given in
accordance with the provisions of Section 9.01 of the Credit Agreement.


 


SECTION 9.  Loan Document Pursuant to Credit Agreement.  This Amendment shall
constitute a “Loan Document” for all purposes of the Credit Agreement and the
other Loan Documents and shall (unless otherwise expressly indicated therein)
be construed, administered and applied in accordance with all of the terms and
provisions of the Credit Agreement, as amended hereby.  On and after the date hereof, any reference
to the Credit Agreement contained in the Loan Documents shall mean the Credit
Agreement as modified hereby.


 


SECTION 10.  Full Force and Effect; Limited Amendment. 
Except as expressly set forth herein, this Amendment (a) shall not
by implication or otherwise limit, impair, constitute a waiver of, or otherwise
affect the rights and remedies of the Lenders, the Administrative Agent, Existing
Holdings or the Borrower under the Credit Agreement or any other Loan Document
and (b) shall not alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respects and shall continue in full force and effect.  Nothing herein shall be deemed to entitle Existing
Holdings or the Borrower to a consent to, or a waiver, amendment, modification
or other change of, any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan Document in
similar or different circumstances.


 


SECTION 11.  Headings.  The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.


 


SECTION 12.  Applicable Law Waiver of Jury Trial.  (A) THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


 


(B) EACH PARTY
HERETO HEREBY AGREES AS SET FORTH IN SECTION 9.11 OF THE FIRST LIEN CREDIT
AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN.


 


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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their duly authorized officers, all as of the date and year first
above written.


 


 


	
   

  	
  STR
  HOLDINGS LLC

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/
  Barry A. Morris

  
	
   

  	
   

  	
  Name:

  	
  Barry
  A. Morris

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  



 


 


[Amendment No. 1 to First Lien Credit Agreement]


 

















 


	
   

  	
  CREDIT
  SUISSE, CAYMAN ISLANDS BRANCH, individually and as Administrative Agent and
  Collateral Agent,

  
	
   

  	
   

  
	
   

  	
  by 

  	
   

  
	
   

  	
   

  	
  /s/
  Rianka Mohan

  
	
   

  	
   

  	
  Name:

  	
  Rianka
  Mohan

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by 

  	
   

  
	
   

  	
   

  	
  /s/
  Vipul Dhadda

  
	
   

  	
   

  	
  Name:

  	
  Vipul
  Dhadda

  
	
   

  	
   

  	
  Title:

  	
  Associate

  



 


 


[Amendment No. 1 to First Lien Credit Agreement]