FIRST AMENDMENT
FIRST AMENDMENT, dated as of April 7, 1997 (this "AMENDMENT"), to
the Credit Agreement, dated as of October 8, 1996 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among Astor
Corporation, a Delaware corporation (the "BORROWER"), the several lenders from
time to time parties thereto (the "LENDERS") and The Chase Manhattan Bank, as
administrative agent for the Lenders thereunder (in such capacity, the
"ADMINISTRATIVE AGENT").
W I T N E S S E T H
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make, and have made, certain Loans to the Borrower; and
WHEREAS, the Borrower has requested that the Lenders amend, and
the Lenders have agreed to amend, certain of the provisions of the Credit
Agreement, upon the terms and subject to the conditions set forth below;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINED TERMS. As used herein, terms defined in this
Amendment or in the Credit Agreement are used herein as so defined.
2. AMENDMENT OF SUBSECTION 1.1 (DEFINED TERMS). As used in
this Amendment, the following terms shall have the following meanings:
"ASTOR PURCHASING CARD PROGRAM": the Chase Visa Purchasing Card
Program established for the Borrower by Chase (USA), pursuant to which
Chase (USA) shall issue Chase Visa Purchasing Cards to employees and
other accounts of the Borrower, in an aggregate amount not to exceed
$500,000 (including, without limitation, purchases made in foreign
currencies and converted into U.S. dollars in accordance with the
Purchasing Card Agreement) at any one time outstanding, including,
principal, interest and fees and other charges payable in connection
therewith.
"CHASE (USA)": The Chase Manhattan Bank (USA).
"PURCHASING CARD AGREEMENT": the Chase Visa Purchasing Card
Agreement, dated as of February 5, 0000, xxxxxxx Xxxxx (XXX) and the
Borrower, relating to the Astor Purchasing Card Program.
3. ASTOR PURCHASING CARD PROGRAM COMMITMENTS AND OUTSTANDING
AMOUNTS. The parties hereto agree that of the Revolving Credit Commitment of
Chase (which is as of the date
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hereof in the aggregate principal amount of $6,000,000), $500,000 shall be
allocated to commitments of Chase (USA) (the "PURCHASING CARD COMMITMENTS"),
under, and in the form of amounts outstanding from time to time (the "PURCHASING
CARD AMOUNTS") pursuant to, the Astor Purchasing Card Program and shall be
maintained and extended by Chase (USA) on the terms set forth in the Purchasing
Card Agreement. Other than as set forth in this Amendment, the Purchasing Card
Commitments shall be treated for all purposes (including, without limitation,
with respect to the definition of Majority Lenders) as Revolving Credit
Commitments of Chase (USA) and the Purchasing Card Amounts shall be treated as
Revolving Credit Loans of Chase (USA) under the Credit Agreement and (i) any
mandatory reduction of the Revolving Credit Commitments pursuant to subsection
4.4 of the Credit Agreement and any mandatory prepayments of the Revolving
Credit Loans as a result thereof and (ii) any payments required to be made by
the Borrower pursuant to the terms of the Credit Agreement (without giving
effect to the Purchasing Card Agreement) upon the occurrence and during the
continuance of an Event of Default, in each case shall be applied PRO RATA to
the Revolving Credit Commitments and outstanding Revolving Credit Loans of each
Lender (it being understood that this shall include the Purchasing Card
Commitments and the Purchasing Card Amounts of Chase (USA)) in accordance with
the terms of the Credit Agreement (notwithstanding any conflicting provisions of
the Purchasing Card Agreement). Other than as expressly set forth in this
Amendment, the terms of the Purchasing Card Agreement, including, without
limitation Sections 9(b) and 9(c) thereof, shall apply to the Purchasing Card
Commitments and Purchasing Card Amounts and such terms shall, with respect to
such commitments and amounts, be incorporated by reference into, and treated as
an amendment to, the Credit Agreement, and Chase (USA) shall be treated as a
Lender with respect to such commitments and amounts. It is further understood
and agreed that (i) the interest rate payable with respect to the Purchasing
Card Amounts shall be as set forth in the Purchasing Card Agreement, (ii) any
suspension in the Revolving Credit Commitments pursuant to the terms of the
Credit Agreement, upon the occurrence of a Default or Event of Default or
otherwise shall suspend the Purchasing Card Commitments of Chase (USA), (iii) no
commitment fees shall be payable pursuant to subsection 4.1(a) of the Credit
Agreement on the portion of the Revolving Credit Commitment constituted by the
Purchasing Card Commitments, (iv) subject to paragraph 7 of this Amendment, the
amounts of any optional reductions of Revolving Credit Commitments or optional
prepayments of Revolving Credit Loans pursuant to subsections 4.2 or 4.3 of the
Credit Agreement shall be applied last to the Purchasing Card Commitments and
Purchasing Card Amounts, as the case may be and (v) at any time, the Borrowing
Base then available for extensions of new Revolving Credit Loans (other than the
Purchasing Card Amounts) shall be determined as if the full amount of the
Purchasing Card Commitments were then outstanding.
4. REVOLVING CREDIT COMMITMENTS AND REVOLVING CREDIT LOANS.
For the purposes of the amount of Revolving Credit Loans which may be extended
pursuant to Section 2 of the Credit
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Agreement (after giving effect to the allocation to Chase (USA) of $500,000 of
Revolving Credit Commitments pursuant to this Amendment and the Purchasing Card
Agreement), the Revolving Credit Commitments of Chase set forth on Schedule 1.1
of the Credit Agreement on the date hereof shall be treated as $5,500,000.
5. MODIFICATION OF SUBSECTION 4.10. Notwithstanding subsection
4.10 of the Credit Agreement to the contrary, neither Chase (USA) nor Chase (in
its capacity as Administrative Agent or Lender) shall be obligated to share any
payments with respect to the Astor Purchasing Card Program with any of the
Lenders and such payments shall not be made by the Borrower PRO RATA among the
Lenders.
6. PARI PASSU ON COLLATERAL. It is understood by the parties
hereto that the Purchasing Card Amounts owing to Chase (USA) shall be secured by
the Collateral on a PARI PASSU basis with the other Loans outstanding from time
to time under the Credit Agreement.
7. TERMINATION OF ASTOR PURCHASING CARD PROGRAM. Unless
otherwise agreed between the Borrower, Chase and Chase (USA), upon the
termination of the Credit Agreement, whether upon maturity of the Loans
thereunder or earlier termination thereof, the Astor Purchasing Card Program and
the Purchasing Card Agreement shall terminate and all amounts payable pursuant
to the Purchasing Card Agreement shall become immediately due and payable to
Chase (USA). It is further agreed that upon a termination of the Astor
Purchasing Card Program for a reason other than an Event of Default under the
Credit Agreement or a default under the Purchasing Card Agreement, so long as
all amounts then due and owing with respect to the Astor Purchasing Card Program
have been paid in full to Chase (USA), the amount of Chase's Revolving Credit
Commitment available for extensions of Revolving Credit Loans shall be restored
to $6,000,000 (less the principal amount of any Revolving Credit Loans or
Letters of Credit then outstanding and less any reductions (or plus any
increases) in the Revolving Credit Commitments after the date hereof) and shall
be made in accordance with the terms of the Credit Agreement as if this
Amendment had not been entered into. At such time, the commitment fees payable
pursuant to subsection 4.1(a) of the Credit Agreement and previously suspended
pursuant to paragraph 3 above shall be reinstated.
8. REPRESENTATIONS AND WARRANTIES. On and as of the date
hereof after giving effect to this Amendment, the Borrower hereby represents and
warrants to the Lenders that:
(a) Each of its representations and warranties contained in
Section 5 of the Credit Agreement or in any certificate, document or
financial or other statement furnished at any time under or in
connection therewith are true and correct in all material respects on
and as of such date as if made on and as of such date, except to the
extent that such representations and warranties specifically relate
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to an earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier
date; PROVIDED that the references to the Credit Agreement therein
shall be deemed to include this Amendment;
(b) No Default or Event of Default has occurred and is
continuing; and
(c) The obligations under the Purchasing Card Agreement
constitute "Senior Debt" as defined in the indenture relating to the
Subordinated Notes and shall be entitled to be secured by the
Collateral pursuant to the terms of the Security Documents without
violating the terms of the Subordinated Notes.
9. CONDITIONS PRECEDENT. This Amendment shall be effective
upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received this Amendment
duly executed and delivered by the Borrower and each of the Lenders.
(b) The reasonable costs and expenses of the Administrative
Agent in connection with this Amendment, including without limitation,
legal fees and expenses, shall have been paid by the Borrower.
(c) The Administrative Agent shall have received, with a
counterpart for each Lender, the executed legal opinion of Xxxxxx,
Xxxx & Xxxxxxxx, counsel to the Borrower, dated the date hereof and in
form and substance satisfactory to the Administrative Agent.
(d) Chase (USA) shall have received a copy of the Purchasing
Card Agreement duly executed by the Borrower and all conditions
precedent to the effectiveness of the Purchasing Card Agreement shall
have been satisfied and the Borrower shall be in compliance with all
its agreements and obligations thereunder and all of its
representations and warranties thereunder shall be true and correct.
10. CONTINUING EFFECT; NO OTHER AMENDMENTS. Except as expressly
stated herein, all of the terms and provisions of the Credit Agreement are and
shall remain in full force and effect. The amendments contained herein shall not
constitute an amendment of any other provision of the Credit Agreement or for
any purpose except as expressly set forth herein.
11. GOVERNING LAW; COUNTERPARTS. (a) THIS AMENDMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) This Amendment may be executed in any number of
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counterparts, all of which counterparts, taken together, shall constitute one
and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
ASTOR CORPORATION
By:________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and as
a Lender
By:________________________________
Name:
Title:
BHF-BANK AKTIENGESELLSCHAFT
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By:________________________________
Name:
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By:_______________________________
Name:
Title:
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XXXXXX FINANCIAL, INC.
By:________________________________
Name:
Title:
IBJ XXXXXXXX BANK & TRUST COMPANY
By:________________________________
Name:
Title:
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The undersigned understands and agrees to the contents of this Amendment and
authorizes and appoints The Chase Manhattan Bank ("CHASE") as its agent to take
any and all actions on its behalf in connection with the Credit Agreement (for
this purpose, not including the Purchasing Card Agreement) and agrees that any
action or authorization by Chase in its capacity as a Lender under the Credit
Agreement shall constitute an action or authorization by the undersigned in
connection with its interests under the Credit Agreement (for this purpose, not
including the Purchasing Card Agreement).
THE CHASE MANHATTAN BANK (USA)
By:________________________________
Name:
Title:
