Exhibit 4.3
FIRST AMENDMENT
FIRST AMENDMENT, dated as of February 17, 1998 (this
"Amendment"), to the Credit Agreement, dated as of May 16, 1997 (the "Credit
Agreement"), among X. X. Xxxxx & Co.-Xxxx., a Connecticut corporation (the
"Company"), X. X. Xxxxx & Co., a Delaware corporation and sole shareholder of
the Company ("Grace Delaware"), Grace Specialty Chemicals, Inc., a Delaware
corporation ("New Grace"), the several banks from time to time parties to the
Credit Agreement (the "Banks"), and The Chase Manhattan Bank, a New York banking
corporation, as administrative agent for the Banks thereunder (in such capacity,
the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, New Grace is wholly-owned by Grace Delaware and
pursuant to this Amendment will become a party to the Credit Agreement and a
guarantor under Section 12 of the Credit Agreement to the same extent Grace
Delaware is a guarantor, and will upon completion of the Packaging Transaction
(as hereinafter defined) replace Grace Delaware as guarantor;
WHEREAS, in connection with the Packaging Transaction (as
hereinafter defined) (i) New Grace will become the sole shareholder of the
Company, (ii) the Company will transfer its packaging business to another
subsidiary of Grace Delaware and (iii) Grace Delaware will spin off New Grace
(together with the Company) to Grace Delaware's shareholders;
WHEREAS, the Company has requested the Banks to, among other
things, consent to the Packaging Transaction on the terms and subject to the
conditions set forth herein;
NOW THEREFORE, in consideration of the premises herein
contained and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
ARTICLE II.
CREDIT AGREEMENT AMENDMENTS
2.1 Definitions. (a) Subsection 1.1 of the Credit Agreement is
hereby amended by deleting the definition of "Loan Parties" in its entirety and
by adding the following new definitions to such subsection in correct
alphabetical order:
`Cryovac': Cryovac, Inc., a Delaware corporation and
subsidiary of the Company, together with its subsidiaries.
`Grace Delaware': X.X. Xxxxx & Co., a Delaware corporation and
sole shareholder of the Company.
`Loan Parties': the collective reference to the Company, the
other Borrowers, Grace Delaware and New Grace.
`New Grace': Grace Specialty Chemicals, Inc., a Delaware
corporation.
`Packaging Transaction': the transaction in which all of the
following steps occur: (a) the Company will transfer its packaging
business to Cryovac, (b) Grace Delaware and Cryovac will enter into
new bank borrowings of approximately $1,200,000,000 and the proceeds
will be transferred to the Company, (c) the Company will distribute
the stock of Cryovac to Grace Delaware, (d) Grace Delaware will
contribute the stock of the Company to New Grace, and (e) Grace
Delaware will distribute to its public shareholders the stock of New
Grace.
`Parent': Grace Delaware, until such time as Grace Delaware in
connection with the Packaging Transaction no longer directly or
indirectly owns all of the stock of the Company, and thereafter, New
Grace, except that for purposes of Section 12, the term Parent shall
include New Grace and, until the Release Date, Grace Delaware.
`Release Date': the date on which the Administrative Agent
executes the release contemplated by subsection 13.16.
2.2 Miscellaneous. Section 13 of the Credit Agreement is
hereby amended by adding the following new paragraph to the end of such Section:
"13.16 Release of Grace Delaware. Promptly after the
completion of the Packaging Transaction, the Administrative Agent,
on behalf of the Administrative Agent and the Banks, shall, upon
receipt of the written request of the Parent or Grace Delaware,
execute an acknowledgment that Grace Delaware is released from all
its obligations under this Agreement (including, without limitation,
its obligations under the Parent Guarantee) provided that the
Administrative Agent shall have received a certificate dated the
date of such request executed by a Responsible Officer of each of
New Grace and the Company to the effect that (a) each of the
representations and warranties made by each of the Loan Parties
(other than Grace Delaware) in or
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pursuant to Sections 6.1, 6.2, 6.3, 6.5, 6.9, 6.10, 6.11, 6.12 and
6.13 of this Agreement is true and correct in all material respects
as of the date of such certificate as if made on and as of such date
and (b) no Default or Event of Default has occurred and is
continuing on the date of such certificate after giving effect to
the Packaging Transaction."
ARTICLE III.
CREDIT AGREEMENT WAIVERS
3.1 Waiver of Covenants. The Banks and the Administrative
Agent hereby waive compliance by the Loan Parties with the provisions of
subsection 9.1, 9.2, 9.3 and 9.4 of the Credit Agreement, solely insofar as the
steps taken in connection with the Packaging Transaction might otherwise be
deemed to result in a breach of any of the covenants contained in those
subsections; provided that the Banks and the Administrative Agent shall only
waive compliance by the Loan Parties with the provisions of subsection 9.1 of
the Credit Agreement with respect to the fiscal quarter ending March 31, 1998
and only then if such subsection would be breached because step (b) of the
Packaging Transaction would have occurred in the fiscal quarter ending March
31,1998 and step (e) of the Packaging Transaction would have occurred in the
fiscal quarter ending June 30, 1998.
3.2 Waiver of Certain Defaults. The Banks and the
Administrative Agent hereby agree that the waivers contained in Section 3.1 of
this Amendment shall have effect for purposes of Section 8.2(b), Section 10(c)
and Section 10(d) of the Credit Agreement, and hereby waive application of the
provisions of Section 10(i) of the Credit Agreement solely insofar as the steps
taken in connection with the Packaging Transaction might otherwise be deemed to
result in a default under Section 10(i).
ARTICLE IV.
MISCELLANEOUS
4.1 Effectiveness. This Amendment shall become effective on
the condition that (a) the Administrative Agent shall have received counterparts
hereof, duly executed and delivered by the Company, Grace Delaware, New Grace
and the Banks, (b) the Administrative Agent shall have received a legal opinion
of counsel to the Company, Grace Delaware and New Grace in form and substance
acceptable to the Administrative Agent, and (c) no Default or Event of Default
shall have occurred and be continuing on the date hereof after giving effect to
this Amendment. The date on which all of the above conditions are met shall be
the date of effectiveness of this Amendment (the "Effective Date").
4.2 New Grace. By signing this Amendment, all of the parties
hereto hereby: (i) acknowledge that as of the Effective Date, New Grace will be
a party to the Credit Agreement, as modified hereby, and, as such, will be bound
by the terms and provisions thereof as if an original party thereto, and (ii)
acknowledge and agree that, commencing with the Effective Date, Grace Delaware
and New Grace will be jointly and severally bound as guarantors under Section 12
of the Credit Agreement, until Grace Delaware is released in accordance with
Section 13.16 of the Credit Agreement.
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4.3 Continuing Effect of Credit Agreement. This Amendment
shall not constitute an amendment, consent or waiver of any other provision of
the Credit Agreement not expressly referred to herein and, except as provided
herein, shall not be construed as an amendment, consent or waiver to any further
or future action on the part of the Loan Parties that would require a consent or
waiver of the Administrative Agent and/or any of the Banks. Except as expressly
consented to and waived hereby, the provisions of the Credit Agreement are and
shall remain in full force and effect.
4.4 Counterparts. This Amendment may be executed by one or
more of the parties to this Amendment on any number of separate counterparts,
and all of such counterparts taken together shall be deemed to constitute one
and the same instrument. In addition, this Amendment may be delivered by
facsimile transmission of the relevant signature pages thereof.
4.5 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.6 Expenses. The Company agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation and execution of this Amendment,
including, without limitation, the fees and disbursements of counsel to the
Administrative Agent.
4.7 Section Headings. The section headings used in this
Amendment are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
4.8 Severability. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, in any such case so long
as the economic or legal substance of the transactions provided for herein is
not affected in any manner adverse to any party.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in New York, New York by their
proper and duly authorized officers as of the day and year first above written.
X. X. XXXXX & CO.-XXXX.
By: /s/
Title:
X. X. XXXXX & CO.
By: /s/
Title:
GRACE SPECIALTY CHEMICALS, INC.
By: /s/
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and as
a Bank
By: /s/
Title:
NATIONSBANK, N.A. (SOUTH)
By: /s/
Title:
ABN AMRO BANK N.V., NEW YORK
BRANCH
By: /s/
Title:
By: /s/
Title:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/
Title:
BANK OF NEW YORK
By: /s/
Title:
THE BANK OF NOVA SCOTIA
By: /s/
Title:
BARCLAYS BANK PLC
By: /s/
Title:
CITIBANK, N.A.
By: /s/
Title:
COMMERZBANK AG, ATLANTA
AGENCY
By: /s/
Title:
By: /s/
Title:
CREDIT LYONNAIS ATLANTA
AGENCY
By: /s/
Title:
CREDIT SUISSE FIRST BOSTON
By: /s/
Title:
By: /s/
Title:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By: /s/
Title:
By: /s/
Title:
FIRST UNION NATIONAL BANK OF
FLORIDA
By: /s/
Title:
MARINE MIDLAND BANK
By: /s/
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/
Title:
UNION BANK OF SWITZERLAND
-NEW YORK
By: /s/
Title:
By: /s/
Title:
