CONSENT NUMBER 6 AND SECOND AMENDMENT
CONSENT NUMBER 6 AND SECOND AMENDMENT, dated as of Decmeber 12,
1996 (this "Amendment"), to the Credit Agreement, dated as June 29, 1994 (the
"Credit Agreement"), among Pneumo Abex Corporation (as successor by merger to
Mafco Worldwide Corporation; the "Company"), the financial institutions from
time to time parties thereto (the "Banks") and The Chase Manhattan Bank (as
successor by merger to The Chase Manhattan Bank, N.A.), as agent (in such
capacity, the "Agent").
WITNESSETH:
WHEREAS, the Company is a party to the Credit Agreement;
WHEREAS, Power Control Technologies Inc., the indirect parent of
the Company ("PCT"), intends to organize EVD holdings Inc., a Delaware
corporation ("US Holdings"), as a new Subsidiary and to cause EVD Holdings
Inc. to organize EVD Holdings France S.A., a French societe anonyme ("French
Holdings"), as a new Subsidiary;
WHEREAS, following such organization, PCT will contribute all of
the issued and outstanding capital stock of US Holdings to the Company and
French Holdings intends to acquire all of the issued and outstanding capital
stock of Extraits Vegetaux et Derives, S.A. (the "Intercompany Transfer") for
aggregate consideration of French Francs 157,500,000, a portion of which shall
be paid with available cash and the remainder of which shall be paid with a
promissory note of French Holdings (the "Intercompany Loan");
WHEREAS, the Company has requested that the Agent and the Banks
agree to amend certain provisions of the Credit Agreement and otherwise grant
certain consents in order to permit such transactions and certain other
transactions, as more fully described herein;
WHEREAS, the Agent and the Banks are willing to agree to such
amendments and to grant such consents, but only upon the terms, and subject to
the conditions, set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Company, the Banks and the Agent hereby agree
as follows:
1. Definitions. All terms defined in the Credit Agreement shall
have such defined meanings when used herein unless otherwise defined herein.
2. Amendment of Section 8.07. Section 8.07 of the Credit
Agreement hereby is amended by:
(a) deleting the word "and" which appears at the end of clause (g) thereof;
(b) deleting the period which appears at the end of clause (h) thereof
substituting therefor a semi-colon followed by the word "and"; and
(c) inserting therein the following new clause (i) thereof:
(i) Indebtedness of EVD Holdings France S.A. to the
Company in consideration for the purchase by EVD Holdings
France S.A. from the Company of all of the issued and
outstanding capital stock of Extraits Vegetaux et Derives, S.
A.
3. Amendment of Section 8.08. Section 8.08 of the credit
Agreement hereby is amended by:
(a) deleting the word "and" which appears at the end of clause (k) thereof;
(b) deleting the period which appears at the end of clause (l) thereof and
substituting therefor a semi-colon followed by the word "and"; and
(c) inserting therein the following new clause (m) thereof:
(m) Investments not to exceed French Francs 157,500,000
by EVD Holdings France S.A. in capital stock of Extraits
Vegetaux et Derives, S. A.
4. Amendment of Section 8.11. Section 8.11 of the Credit
Agreement hereby is amended by inserting the following therein immediately
before the period at the end thereof:
provided that the Company and its Subsidiaries may make
up to $500,000 in the aggregate of additional Consolidated
Capital Expenditures in Extraits Vegetaux et Derives, S. A.
during the 1997 fiscal year of the Company
5. Consent to Intercompany Transactions. The Agent and the Banks
hereby (i) consent to the consummation of the Intercompany Transfer and the
Intercompany Loan and (ii) waive compliance with the provisions of Sections
8.05, 8.07, 8.08 and 8.15 of the Credit Agreement to the extent and only to
the extent necessary to permit the Intercompany Transfer and the Intercomany
Loan.
6. Consent to Release. (a) The Banks hereby consent that the
Agent may release its security interest in the capital stock of Extraits
Vegetaux et Derives, S. A. and hereby acknowledge and agree that such release
shall become effective, without any further consent or instrument, upon the
effectiveness of this Amendment. In furtherance of the foregoing, the Banks
hereby authorize and instruct the Agent to execute and deliver to the Company
and its Subsidiaries such instruments, documents and agreements as may be
required to evidence such release.
(b) The Banks hereby consent that the Company shall not be
required to pledge (or to cause US Holdings to pledge) any of the capital
stock of French Holdings to secure the obligations of the Company under the
Credit Agreement; provided that, on or prior to February 28, 1997, (i) US
Holdings shall have executed and delivered to the Agent a guarantee, in form
and substance reasonably satisfactory to the Agent, of the obligations of the
Company under the Credit Agreement, (ii) US Holdings shall have granted to the
Agent a first priority, perfected security interest in all of its material
assets (other than the capital stock of French Holdings) and (iii) the Company
shall have granted to the Administrative Agent, for the benefit of the Banks,
a first priority, perfected security interest in all of the issued and
outstanding capital stock of US Holdings.
7. Additional Event of Default. The Company hereby agrees that
it shall be an Event of Default for the purposes under the Credit Agreement
and the other Basic Documents if all principal, interest and other amounts
owing in respect of the Tranche A Term Loans and Tranche B Term Loans shall
not have been paid in full on or prior to December 31, 1996.
8. Conditions to Effectiveness. This Amendment shall become
effective on and as of the date that the Agent shall have received
counterparts of this Amendment, duly executed by the Company and the Majority
Banks.
9. Representations and Warranties. The Company, as of the date
hereof and after giving effect to the consents and waivers contained herein,
hereby confirms, reaffirms and restates the representations and warranties
made by it in Section 7 of the Credit Agreement and otherwise in the Credit
Documents to which it is a party; provided that each reference to the Credit
Agreement therein shall be deemed to be a reference to the Credit Agreement
after giving effect to this Amendment.
10. Reference to and Effect on the Credit Documents; Limited
Effect. On and after the date hereof and the satisfaction of the conditions
contained in Section 9 of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the other Credit
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as modified hereby. The execution, delivery and effectiveness
of this Agreement shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any Bank or the Agent under any of the
Credit Documents nor constitute a waiver or amendment of any provisions of any
of the Credit Documents. Except as expressly modified herein, all of the
provisions and covenants of the Credit Agreement and the other Credit
Documents are and shall continue to remain in full force and effect in
accordance with the terms thereof and are hereby in all respects ratified and
confirmed.
11. Counterparts. This Amendment may be executed by one or more
of the parties hereto in any number of separate counterparts (which may
include counterparts delivered by facsimile transmission) and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Any executed
counterpart delivered by facsimile transmission shall
be effective as for all purposes hereof.
12. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
PNEUMO ABEX CORPORATION (as successor by
merger to Mafco Worldwide Corporation)
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title:. Vice President
THE CHASE MANHATTAN BANK (as successor by
merger to The Chase Manhattan Bank, N.A.),
as Agent and as a Bank
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By: /s/
---------------------------------------
Name:
Title:
RELEASE
RELEASE, dated as of December 20, 1996, made by The Chase
Manhattan Bank (as successor by merger to the Chase Manhattan Bank, N. A.), as
agent (in such capacity, the "Agent") pursuant to the Credit Agreement
described below, in favor of MAFCO INTERNATIONAL INC., a Delaware corporation
(the "Pledgor") and EXTRAITS VEGETEAUX ET DERIVES, S.A., a French societe
anonyme (the "Issuer"). Unless otherwise defined herein, capitalized terms
which are used herein and are defined in the Credit Agreement are used herein
as therein defined.
WITNESSETH:
WHEREAS, the Agent is a party to the Credit Agreement, dated as
of June 29, 1994 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Pneumo Abex Corporation (as successor by
merger to Mafco Worldwide Corporation; the "Company"), the banks and other
financial institutions parties thereto and the Agent;
WHEREAS, pursuant to the Credit Agreement, the Pledgor, which is
a wholly owned Subsidiary of the Company, granted to the Agent a security
interest in certain of the capital stock of the Issuer (the "Pledged Shares");
NOW, THEREFORE, in consideration of the premises:
1. Release of Security Interests in Pledged Shares. The Agent
does hereby release its security interest in the Pledged Shares, with such
release being made without representation, warranty or recourse, express or
implied.
2. Continuing Effect of Basic Documents. Except as expressly
terminated and release hereby, the terms and provisions of the Credit
Agreement and each of the documents executed and delivered in connection
therewith (including, without limitation, each of the Security Documents)
shall remain in full force and effect and are hereby ratified and confirmed.
3. GOVERNING LAW. THIS RELEASE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the Agent has caused this Release to be duly
executed and delivered in New York, New York by its proper and duly authorized
officer as of the day and year first above written.
THE CHASE MANHATTAN BANK, as Agent
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
