EXECUTION COPY
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CREDIT AGREEMENT
among
THE GENERAL CHEMICAL GROUP INC.,
The Several Lenders
from Time to Time Parties Hereto,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Documentation Agent
THE BANK OF NOVA SCOTIA,
as Syndication Agent
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of June 15, 1998
CHASE SECURITIES INC., as Arranger
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS .................................................. 1
1.1 Defined Terms ............................................... 1
1.2 Other Definitional Provisions ............................... 24
SECTION 2. AMOUNT AND TERMS 0F COMMITMENTS .............................. 24
2.1 Revolving Credit Commitments ................................ 24
2.2 Procedure for Revolving Credit Borrowing .................... 25
2.3 Term Loan Commitments ....................................... 25
2.4 Procedure for Term Loan Borrowing ........................... 26
2.5 Repayment of Term Loans ..................................... 26
2.6 Repayment of Loans; Evidence of Debt ........................ 27
2.7 Commitment Fee .............................................. 28
2.8 Optional Termination or Reduction of Revolving Credit
Commitments .............................................. 28
2.9 Optional Prepayments; Mandatory Prepayments and Commitment
Reductions ............................................... 29
2.10 Conversion and Continuation Options ......................... 32
2.11 Minimum Amounts of Tranches ................................. 33
2.12 Interest Rates and Payment Dates ............................ 33
2.13 Computation of Interest and Fees ............................ 33
2.14 Inability to Determine Interest Rate ........................ 34
2.15 Pro Rata Treatment and Payments ............................. 34
2.16 Illegality .................................................. 35
2.17 Requirements of Law ......................................... 35
2.18 Taxes ....................................................... 37
2.19 Indemnity ................................................... 39
2.20 Change of Lending Office .................................... 39
2.21 Replacement of Lenders under Certain Circumstances .......... 39
SECTION 3. LETTERS 0F CREDIT ............................................ 40
3.1. L/C Commitment .............................................. 40
3.2. Procedure for Issuance of Letters of Credit ................. 40
3.3. Fees, Commissions and Other Charges ......................... 41
3.4. L/C Participations .......................................... 41
3.5. Reimbursement Obligation of the Borrower .................... 42
3.6. Obligations Absolute ........................................ 43
3.7. Letter of Credit Payments ................................... 43
3.8. Application ................................................. 43
SECTION 4. REPRESENTATIONS AND WARRANTIES ............................... 43
4.1 Financial Condition ......................................... 44
4.2 No Change ................................................... 44
4.3 Corporate Existence; Compliance with Law .................... 44
4.4 Corporate Power; Authorization; Enforceable Obligations ..... 45
4.5 No Legal Bar ................................................ 45
4.6 No Material Litigation ...................................... 45
4.7 No Default .................................................. 46
4.8 Ownership of Property; Liens ................................ 46
4.9 Intellectual Property ....................................... 46
4.10 Taxes ....................................................... 46
4.11 Federal Regulations ......................................... 46
4.12 ERISA ....................................................... 47
4.13 Investment Company Act; Other Regulations ................... 47
4.14 Subsidiaries ................................................ 47
4.15 Purpose of Loans ............................................ 47
4.16 Environmental Matters ....................................... 47
4.17 Soda Ash Partners ........................................... 49
4.18 Solvency .................................................... 49
4.19 Labor Matters ............................................... 49
4.20 Accuracy of Information, etc ................................ 49
4.21 Security Documents .......................................... 50
4.22 Year 2000 ................................................... 50
SECTION 5. CONDITIONS PRECEDENT ......................................... 50
5.1 Conditions to Initial Extensions of Credit .................. 50
5.2 Conditions to Each Extension of Credit ...................... 52
SECTION 6. AFFIRMATIVE COVENANTS ........................................ 53
6.1 Financial Statements ........................................ 53
6.2 Certificates; Other Information ............................. 54
6.3 Payment of Obligations
6.4 Conduct of Business and Maintenance of Existence ............ 55
6.5 Maintenance of Property; Insurance .......................... 55
6.6 Inspection of Property; Books and Records; Discussions ...... 55
6.7 Notices ..................................................... 56
6.8 Environmental Laws .......................................... 56
6.9 Further Assurances .......................................... 57
6.10 Additional Collateral ....................................... 57
6.11 Existing Subordinated Notes ................................. 58
SECTION 7. NEGATIVE COVENANTS APPLICABLE TO ALL
COMMITMENTS AND LOANS OTHER THAN TRANCHE B
TERM LOAN COMMITMENTS AND TRANCHE B LOANS ................ 58
7.1 Financial Condition Covenants ............................... 59
7.2 Limitation on Indebtedness .................................. 59
7.3 Limitation on Liens ......................................... 61
7.4 Limitation on Guarantee Obligations ......................... 62
7.5 Limitation on Fundamental Changes ........................... 62
7.6 Limitation on Sale of Assets ................................ 63
7.7 Reserved .................................................... 63
7.8 Limitation on Restricted Payments ........................... 63
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7.9 Limitation on Capital Expenditures .......................... 65
7.10 Limitation on Investments, Loans and Advances ............... 65
7.11 Limitations on Optional Payments and Modifications of
Agreements ............................................... 67
7.12 Limitation on Transactions with Affiliates .................. 67
7.13 Limitation on Sales and Leasebacks .......................... 67
7.14 Limitation on Changes in Fiscal Year ........................ 68
7.15 Limitation on Negative Pledge Clauses ....................... 68
7.16 Limitation on Lines of Business ............................. 68
7.17 Limitation on Optional Payments and Modifications of
Tranche B Term Loans ..................................... 68
SECTION 8. COVENANTS APPLICABLE TO TRANCHE B TERM LOAN
COMMITMENTS AND TRANCHE B TERM LOANS ..................... 68
SECTION 9. EVENTS 0F DEFAULT ............................................ 69
9.1 Certain Bankruptcy Events ................................... 69
9.2 Other Events of Default Applicable to the Tranche A
Commitments, Revolving Credit Commitments and
Amounts Owing Thereunder ................................. 70
9.3 Certain Events of Default Applicable to Tranche B Term
Loan Commitments and Amounts Owing Thereunder ............ 72
9.4 Certain Provisions Applicable to Letters of Credit .......... 74
9.5 Certain Waivers ............................................. 75
SECTION 10. THE ADMINISTRATIVE AGENT .................................... 75
10.1 Appointment ................................................. 75
10.2 Delegation of Duties ........................................ 75
10.3 Exculpatory Provisions ...................................... 75
10.4 Reliance by Administrative Agent ............................ 76
10.5 Notice of Default ........................................... 76
10.6 Non-Reliance on Administrative Agent and Other Lenders ...... 77
10.7 Indemnification ............................................. 77
10.8 Administrative Agent in Its Individual Capacity ............. 78
10.9 Successor Administrative Agent .............................. 78
10.10 Documentation Agent and Syndication Agent ................... 78
SECTION 11. MISCELLANEOUS ............................................... 78
11.1 Amendments and Waivers ...................................... 78
11.2 Notices ..................................................... 81
11.3 No Waiver; Cumulative Remedies .............................. 82
11.4 Survival of Representations and Warranties .................. 82
11.5 Payment of Expenses and Taxes ............................... 82
11.6 Successors and Assigns; Participations and Assignments ...... 83
11.7 Adjustments; Set-off ........................................ 86
11.9 Severability ................................................ 87
11.10 Integration ................................................. 87
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11.11 GOVERNING LAW ............................................... 87
11.12 Submission To Jurisdiction; Waivers ......................... 87
11.13 Acknowledgements ............................................ 88
11.14 WAIVERS OF JURY TRIAL ....................................... 88
11.15 Confidentiality ............................................. 88
ANNEX A PRICING GRID
ANNEX B COVENANTS APPLICABLE TO TRANCHE B TERM LOAN FACILITY
SCHEDULES
Schedule I Lenders, Commitments and Addresses
Schedule II Subsidiaries of the Borrower
Schedule III Outstanding Indebtedness; Existing Liens
EXHIBITS
Exhibit A-1 Form of Opinion of Xxxxxxx, Procter & Xxxx LLP
Exhibit A-2 Form of Opinion of General Counsel of GenChem
Exhibit B Form of Compliance Certificate
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Confidentiality Agreement
Exhibit E Form of Guarantee and Pledge Agreement
Exhibit F-1 Form of Revolving Credit Note
Exhibit F-2 Form of Term Note
Exhibit G Form of Prepayment Option Notice
Exhibit H Form of Exemption Certificate
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CREDIT AGREEMENT, dated as of June 15, 1998, among THE GENERAL
CHEMICAL GROUP INC., a Delaware corporation (the "Borrower"), the several banks
and other financial institutions from time to time parties to this Agreement
(the "Lenders"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
documentation agent for the Lenders (the "Documentation Agent"), THE BANK OF
NOVA SCOTIA, as syndication agent for the Lenders (the "Syndication Agent") and
THE CHASE MANHATTAN BANK, a New York banking corporation, as administrative
agent for the Lenders under the Revolving Credit Facility, the Tranche A Term
Loan Facility and the Tranche B Term Loan Facility (in such capacity, the
"Administrative Agent").
RECITALS
WHEREAS, the Borrower has requested that the Lenders make available
to the Borrower a $300,000,000 six-year revolving credit facility (as
hereinafter defined, the "Revolving Credit Facility"), a $100,000,000 six-year
term loan facility (as hereinafter defined, the "Tranche A Term Loan Facility")
and a $200,000,000 eight-year term loan facility (as hereinafter defined, the
"Tranche B Term Loan Facility"), the proceeds of which will be used by the
Borrower to finance working capital and general corporate purposes, including
financing permitted acquisitions and permitted investments and funding the
Refinancing (as hereinafter defined); and
WHEREAS, the Lenders are willing to make available the Revolving
Credit Facility, the Tranche A Term Loan Facility and Tranche B Term Loan
Facility pursuant to this Agreement upon the terms and conditions hereinafter
set forth;
NOW THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by Chase as its prime rate in
effect at its principal office in New York City (the Prime Rate not being
intended to be the lowest rate of interest charged by Chase in connection
with extensions of credit to debtors); "Base CD Rate" shall mean the sum
of (a) the product of (i) the Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and the denominator of which is
one minus the C/D Reserve Percentage and (b) the C/D Assessment Rate;
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in
effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board through the public information
telephone line of the
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Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate
shall not be so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day (or,
if such day shall not be a Business Day, on the next preceding Business
Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it; and
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Base
CD Rate or the Federal Funds Effective Rate, or both, for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms thereof, the ABR shall
be determined without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the ABR due
to a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Adjustment Date": as defined in the Pricing Grid.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, whether or not
exercised, directly or indirectly, to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise
or through the direct or indirect ownership of 10% or more of any class of
Capital Stock of such Person.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender's Term Loans and
(ii) the amount of such Lender's Revolving Credit Commitment then in
effect or, if the Revolving Credit Commitments
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have been terminated, the amount of such Lender's Revolving Extensions of
Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such
time.
"AGI": The Andover Group, Inc., a Delaware corporation.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Applicable Margin": for each Type of Loan, the rate per annum set
forth under the relevant column heading below:
Base Rate Eurodollar
Loans Loans
--------- ----------
Revolving Credit Loans 0 % 0.75%
Tranche A Term Loans 0 % 0.75%
Tranche B Term Loans 0.50% 1.75%
provided, that on and after the first Adjustment Date after December 31,
1998, the Applicable Margin will be determined pursuant to the Pricing
Grid.
"Application": an application, in such form as the relevant Issuing
Bank may specify from time to time, requesting such Issuing Bank to open a
Letter of Credit.
"Approved Fund": with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans which is
managed or advised by the same investment advisor as such Lender or by an
affiliate of such investment advisor.
"Asset Sale": (i) the sale, lease, conveyance or other disposition
of any assets or rights (including, without limitation, by way of a sale
and leaseback) other than sales of inventory in the ordinary course of
business consistent with past practices and other than obsolete assets,
and (ii) the issue or sale by the Borrower or any of its Subsidiaries of
Equity Interests of any of the Borrower's Subsidiaries, in the case of
either clause (i) or (ii), whether in a single transaction or a series of
related transactions (a) that have a fair market value in excess of
$2,000,000 or (b) for net proceeds in excess of $2,000,000.
Notwithstanding the foregoing, the following items shall not be deemed to
be Asset Sales: (i) a transfer of assets by the Borrower to a Wholly Owned
Subsidiary or by a Wholly Owned Subsidiary to the Borrower or to another
Wholly Owned Subsidiary, (ii) an issuance of Equity Interests by a Wholly
Owned Subsidiary to the Borrower or to another Wholly Owned Subsidiary,
(iii) a Restricted Payment that is permitted by subsection 7.8, (iv)
exchanges, swaps and
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similar transactions involving like-kind or similar assets in an aggregate
principal amount not to exceed $20,000,000 in any twelve-month period, and
(v) a lien that is permitted under subsection 7.3.
"Assignee": as defined in subsection 11.6(c).
"Available Revolving Credit Commitment": as to any Revolving Credit
Lender at any time, an amount equal to the excess, if any, of (a) such
Lender's Revolving Credit Commitment then in effect over (b) such Lender's
Revolving Extensions of Credit then outstanding.
"Basic Lender": a Revolving Credit Lender or a Tranche A Term Loan
Lender; collectively, the "Basic Lenders".
"Board": the Board of Governors of the Federal Reserve System and
any successor thereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.2, 2.4 or 3.2 as a date on which the Borrower requests the
Lenders to make Loans hereunder or an Issuing Bank to issue a Letter of
Credit hereunder.
"Business": as defined in subsection 4.16.
"Business Day": (i) for all purposes other than as covered by clause
(ii) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to
close and (ii) with respect to notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (i) and which is also a day
for trading by and between banks in Dollar deposits in the interbank
eurodollar market.
"Capital Expenditures": as defined in subsection 7.9.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cash": money, currency or a credit balance in a deposit account, in
each case which is free of Liens (except Liens in favor of the
Administrative Agent and Liens consisting of bankers' set-off rights).
"Cash Equivalents": (i) any evidence of Indebtedness with a maturity
of two years or less issued or directly and fully guaranteed or insured by
the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America
is pledged in support thereof); (ii) certificates of
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deposit or acceptances with a maturity of one year or less of any Lender
or any financial institution that is a member of the Federal Reserve
System having combined capital and surplus and undivided profits of not
less than $500,000,000; (iii) master notes, loan participations and
commercial paper with a maturity of two years or less issued by any Lender
or any corporation (except an Affiliate or Subsidiary of the Borrower)
organized under the laws of any State of the United States or the District
of Columbia and rated at least A-1 by S&P or at least P-1 by Xxxxx'x; (iv)
repurchase agreements and reverse repurchase agreements relating to
marketable direct obligations issued or unconditionally guaranteed by the
United States Government or issued by any agency thereof and backed by the
full faith and credit of the United States of America, in each case
maturing within one year from the date of acquisition; provided that the
terms of such agreements comply with the guidelines set forth in the
Federal Financial Agreements of Depository Institutions With Securities
Dealers and Others, as adopted by the Comptroller of the Currency on
October 31, 1985; (v) time deposits of foreign banks having a combined
capital and surplus of not less than $500,000,000; (vi) repurchase
agreements with nationally recognized securities dealers having total
capital funds in excess of $100,000,000; provided that the terms of such
agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions With Securities Dealers and Others,
as adopted by the Comptroller of the Currency on October 31, 1985; and
(vii) institutional money market funds investing principally in
obligations permitted in clauses (i)-(vi) above.
"Cash Flow Coverage Ratio": as at the last day of any fiscal quarter
of the Borrower, the ratio of (a) Consolidated Cash Flow for the period of
four fiscal quarters ending on such day to (b) Consolidated Interest
Expense for the period of four fiscal quarters ending on such day.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the
annual assessment rate in effect on such day which is payable by a member
of the Bank Insurance Fund classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. 'SS' 327.3(d) (or any
successor provision) to the Federal Deposit Insurance Corporation (or any
successor) for such Corporation's (or such successor's) insuring time
deposits at offices of such institution in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan,
that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of
the Board) in respect of new non-personal time deposits in Dollars of
$100,000 or more having a maturity of 30 days or more.
"Change in Control": (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act), other than one or more
Permitted Holders in the aggregate or an ESOP, is or becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of more than 35% of the total voting power of the
Voting Stock of the Borrower at any time that the Permitted Holders in
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the aggregate "beneficially own" (as so defined), directly or indirectly,
in the aggregate a lesser percentage of the total voting power of the
Voting Stock of the Borrower than such other person and do not have the
right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the
Borrower (for the purposes of this clause (i), such other person shall be
deemed to beneficially own any Voting Stock of a specified corporation
held by a parent corporation, if such other person beneficially owns (as
so defined), directly or indirectly, more than 35% of the total voting
power of the Voting Stock of such parent corporation and the Permitted
Holders in the aggregate beneficially own (as so defined), directly or
indirectly, in the aggregate a lesser percentage of the total voting power
of the Voting Stock of such parent corporation and do not have the right
or ability by voting power, contract or otherwise to elect or designate
for election a majority of the board of directors of such parent
corporation); (ii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors of
the Borrower (together with any new directors whose election by such Board
of Directors or whose nomination for election by the shareholders of the
Borrower was approved by either (A) a vote of 66-2/3% of the directors of
the Borrower then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved or (B) in the event of the death of all the members
of the Board of Directors of the Borrower, a vote of Permitted Holders who
beneficially own, directly or indirectly, a majority in the aggregate of
the total voting power of the Voting Stock of the Borrower) cease for any
reason to constitute a majority of the Board of Directors of the Borrower
then in office; or (iii) for purposes of clause (j) of subsection 9.2, the
occurrence of a "change of control" (however denominated) under and as
defined in any credit agreement, indenture or similar agreement to which
the Borrower or any of its Subsidiaries is a party providing for
commitments of credit in excess of $10,000,000.
"Chase": The Chase Manhattan Bank.
"Closing Date": the date on which the conditions precedent set forth
in subsection 5.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all assets of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security
Document.
"Commitment": as to any Lender, the sum of the Tranche A Term Loan
Commitment, the Tranche B Term Loan Commitment and the Revolving Credit
Commitment of such Lender.
"Commitment Fee Rate": 1/4 of 1% per annum; provided, that on and
after the first Adjustment Date after December 31, 1998, the Commitment
Fee Rate will be determined pursuant to the Pricing Grid.
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"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414(b) or
(c) of the Code.
"Compliance Certificate": a certificate substantially in the form of
Exhibit B.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated April 1998 prepared in connection with the Facilities.
"Consolidated Adjusted Net Income": for any period, Consolidated Net
Income for such period adjusted by excluding (i) any net extraordinary
gains or losses, (ii) any net gains or losses in respect of sales of
Capital Stock or dispositions of assets out of the ordinary course of
business, (iii) any net income of any Person accrued during any period
during which such Person was not a Subsidiary of the Borrower, except to
the extent of dividends or other distributions actually paid to the
Borrower or any Subsidiary out of such net income and except to the extent
utilized in determining pro forma compliance for Permitted Acquisitions,
(iv) the amortization of deferred financing costs and (v) non-cash gains
or losses resulting from fluctuations in currency exchange rates.
"Consolidated Cash Flow": for any period, the aggregate of (i)
Consolidated Net Income for such period plus (ii) Consolidated Interest
Expense deducted in computing such Consolidated Net Income plus (iii)
Consolidated Tax Expense deducted in computing such Consolidated Net
Income plus (iv) Consolidated Non-Cash Charges deducted in computing such
Consolidated Net Income minus (v) the net gain incurred in the retirement
of Indebtedness plus (vi) the net loss incurred in the retirement of
Indebtedness minus (vii) Consolidated Non-Cash Gains included in computing
such Consolidated Net Income minus (viii) cash gains from sales of assets
(other than inventory) to the extent included in computing such
Consolidated Net Income plus (ix) cash losses from sales of assets (other
than inventory) to the extent deducted in computing such Consolidated Net
Income (x) solely for purposes of subsection 7.8(a) the aggregate amount
of principal payments of the Loans scheduled to come due during such
period.
"Consolidated Interest Expense": for any period, the aggregate of
the interest expense of the Borrower and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, including
amortization of original issue discount and the interest portion of any
deferred payment obligations, excluding, in the case of the Borrower, any
interest expense reflected on the Borrower's financial statements which is
attributable to Indebtedness of the Borrower and is so reflected solely as
a result of "push-down" accounting treatment.
"Consolidated Net Income": for any period, net income of the
Borrower and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
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"Consolidated Net Worth": as of the date of determination, all items
which in accordance with GAAP would be included under shareholders' equity
on a consolidated balance sheet of the Borrower and its Subsidiaries at
such date.
"Consolidated Non-Cash Charges": for any period, the aggregate
depreciation, amortization and other non-cash expenses of the Borrower and
its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Non-Cash Gains": for any period, the aggregate
non-cash revenue items of the Borrower and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Tax Expense": for any period, the aggregate of the
U.S. federal, state and local income tax expense and foreign tax expense
of the Borrower and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Total Indebtedness": as of the date of determination,
all Indebtedness and Guarantee Obligations of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CSI": Chase Securities Inc., the arranger of the Facilities.
"Currency Agreement": with respect to any Person, any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement designed to protect such Person or any of its Subsidiaries
against fluctuations in currency values.
"Default": any of the events specified in Section 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Designated Issuer": Chase Manhattan Bank Delaware, a Delaware
banking corporation, in its individual capacity.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Domestic Subsidiary": any Subsidiary organized under the laws of
the United States or any jurisdiction therein or thereof.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of
9
any Governmental Authority or other Requirements of Law (including common
law) regulating, relating to or imposing liability or standards of
conduct concerning protection of human health or the environment, as now
or may at any time hereafter be in effect.
"Equity Interests": Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ESOP": an employee stock ownership plan for the benefit of the
Borrower's or a Subsidiary's employees.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum equal
to the rate at which Chase is offered Dollar deposits at or about 10:00
A.M., New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar
and foreign currency and exchange options in respect of its Eurodollar
Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loan to be outstanding during
such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on
the same date and end on
10
the same later date (whether or not such Loans shall originally have been
made on the same day).
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Existing Credit Agreements": the collective reference to (i) the
Revolving Credit Agreement dated as of September 15, 1993, as amended (the
"Existing Revolving Credit Agreement"), among GenChem, the lenders party
thereto and Chase (as successor to Chemical Bank), as administrative
agent, (ii) the Term Loan Agreement dated as of August 4, 1994, as
amended, among GenChem, the lenders party thereto and Chase (as successor
to Chemical Bank), as administrative agent, and (iii) the Credit Agreement
dated as of April 30, 1997, as amended, between the Borrower and Bank of
America National Trust and Savings Association.
"Existing Subordinated Indenture": the Indenture dated as of August
15, 1993 between the Borrower and Continental Bank, National Association,
as trustee, pursuant to which the Existing Subordinated Notes were issued,
as in effect on the date hereof.
"Existing Subordinated Notes": the $100,000,000 in aggregate
principal amount of 9-1/4% Senior Subordinated Notes Due 2003 issued by
the Borrower, as in effect on the date hereof.
"Facility": each of (a) the Tranche A Term Loan Commitments and the
Tranche A Term Loans made thereunder (the "Tranche A Term Loan Facility"),
(b) the Tranche B Term Loan Commitments and the Tranche B Term Loans made
thereunder (the "Tranche B Term Loan Facility"), and (c) the Revolving
Credit Commitments and the extensions of credit made thereunder (the
"Revolving Credit Facility").
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Foreign Subsidiary": any Subsidiary other than a Domestic
Subsidiary.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"GC Canada": General Chemical Canada Ltd., a Canadian corporation
and a Subsidiary of the Borrower.
11
"GC Canada Senior Notes": the 9.09% Senior Notes of GC Canada due
May 20, 1999 in the original principal amount of $52,000,000, as the same
may be amended, modified, supplemented, replaced or refinanced from time
to time.
"GC Canada Working Capital Facility": the Credit Agreement, dated as
of June 22, 1992, between GC Canada and The Toronto-Dominion Bank, as the
same may be amended, modified, supplemented, replaced or refinanced from
time to time.
"GenChem": General Chemical Corporation, a Delaware corporation.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity (including the National
Association of Insurance Commissioners) exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government.
"Guarantee and Pledge Agreement": the Guarantee and Pledge Agreement
to be executed and delivered by the Borrower and each Subsidiary
Guarantor, substantially in the form of Exhibit E, as the same may be
amended, supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the
stated or determinable amount of the primary obligation in respect of
which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of such
12
Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Hazardous Materials": any hazardous materials, hazardous wastes,
hazardous constituents or hazardous or toxic substances defined or
regulated as such in or under any Environmental Law, and including,
without limitation, petroleum products (including crude oil or any
fraction thereof), asbestos in friable form, polychiorinated biphenyls,
and urea formaldehyde insulation.
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced
by a note, bond, debenture or similar instrument, (c) the face amount of
all letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (d) all obligations of such
Person under Financing Leases, (e) all obligations of such Person in
respect of acceptances issued or created for the account of such Person
and (f) the lesser of (i) all liabilities secured by any Lien on any
property owned by such Person when such Person has not assumed or
otherwise become liable for the payment thereof and (ii) the fair market
value of any such property; provided that Indebtedness shall not be deemed
to include any indebtedness which has been "economically defeased" or
"in-substance defeased" within the meaning of and in accordance with
Standard No. 76 of the Financial Accounting Standards Board.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan having an Interest Period longer than three months, each
day which is three months, or a whole multiple thereof, after the first
day of such Interest Period and the last day of such Interest Period, (d)
as to any Loan (other than any Revolving Credit Loan that is an ABR Loan),
the date on which such Loan is convened into another Type of Loan or on
which any repayment or prepayment is made in respect thereof and (e) as to
any Revolving Credit Loan, the Revolving Credit Termination Date or such
earlier date as the Commitments shall terminate as provided herein.
"Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one,
13
two, three or six months thereafter, as selected by the Borrower in
its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan
and ending one, two, three or six months thereafter, as selected by
the Borrower by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of then current
Interest Period with respect thereto;
provided that, each of the foregoing provisions relating to Interest
Periods is subject to the following:
(1) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month
in which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Revolving Credit Termination Date or beyond the date final payment
is due on the Tranche A Term Loans or the Tranche B Term Loans, as
the case may be, shall end on the Revolving Credit Termination Date
or such due date, as applicable;
(3) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(4) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Interest Rate Protection Obligations": the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly
or indirectly, such Person is entitled to receive from time to time
periodic payments calculated by applying either a floating or a fixed rate
of interest on a stated notional amount in exchange for periodic payments
made by such Person calculated by applying a fixed or a floating rate of
interest on the same notional amount and shall include without limitation,
interest rate swaps, caps, floors, collars and similar agreements.
"Investment": as defined in subsection 7.10.
"Issuing Bank": Chase or any Affiliate thereof, including the
Designated Issuer, or any successor thereto, each in its capacity as
issuer of any Letter of Credit.
14
"L/C Commitment": $50,000,000, as such amount may be reduced from
time to time in accordance with this Agreement.
"L/C Fee Payment Date": the last day of each March, June, September
and December.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit which have not then been reimbursed pursuant to subsection
3.5(a).
"Letters of Credit": as defined in subsection 3.1(a).
"Leverage Ratio": as at the last day of any fiscal quarter of the
Borrower, the ratio of (a) Consolidated Total Indebtedness as at such day
to (b) Consolidated Cash Flow for the period of four fiscal quarters
ending on such day.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any Financing Lease having substantially the same economic
effect as any of the foregoing).
"Loan Documents": the collective reference to this Agreement, the
Notes, the Applications and the Security Documents.
"Loan Parties": the Borrower and each of its Subsidiaries party to a
Loan Document.
"Loans": any loan made by any Lender pursuant to this Agreement.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the
Term Loans or the Total Revolving Extensions of Credit, as the case may
be, outstanding under such Facility (or, in the case of the Revolving
Credit Facility, prior to any termination of the Revolving Credit
Commitments, the holders of more than 50% of the Total Revolving Credit
Commitments).
"Majority Revolving Credit Facility Lenders": the Majority Facility
Lenders in respect of the Revolving Credit Facility.
"Management Agreement": the Management Agreement dated as of January
1, 1995 between the Borrower and Xxxxxx Associates Inc., as such agreement
may be amended, supplemented or otherwise modified or replaced from time
to time in accordance with subsection 7.11.
15
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole, other
than events, developments or circumstances disclosed in the 1997 10-K or
the Confidential Information Memorandum, or (b) the validity or
enforceability of this Agreement, any of the Notes, any Application or any
of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder. The Lenders
acknowledge that the 1997 10-K and the Confidential Information Memorandum
make certain disclosures (the "Disclosed Matters") relating to the
Borrower and its Subsidiaries and that the Disclosed Matters, in and of
themselves, as reported in the 1997 10-K and the Confidential Information
Memorandum, do not constitute a Material Adverse Effect. The Lenders
reserve their rights, however, with respect to any material adverse
development or event that occurs (or as to which the Lenders obtain
knowledge) with respect to the Disclosed Matters after the Closing Date.
"Material Foreign Subsidiary": any Material Subsidiary organized
under the laws of any jurisdiction (other than the United States or any
jurisdiction therein).
"Material Subsidiary": at any date of determination, any Subsidiary
of the Borrower (i) the gross revenues of which aggregated at least 5% of
the aggregate gross revenues of the Borrower and its Subsidiaries for the
most recent period of twelve consecutive months ending prior to such date
or (ii) the book value of the assets of which aggregated at least 10% of
the aggregate book value of the assets of the Borrower and its
Subsidiaries as at the last day of the most recently ended fiscal month of
the Borrower.
"Moody's": Xxxxx'x Investors Services, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 400l(a)(3) of ERISA.
"Net Cash Proceeds": (a) when used in respect of any Asset Sale or
Recovery Event by or with respect to the Borrower or any of its
Subsidiaries, the gross proceeds received by such Person in Cash and Cash
Equivalents (including payment in respect of deferred payment obligations
but only when received in the form of Cash and Cash Equivalents), from
such Asset Sale or Recovery Event less (i) all legal, accounting, title,
recording and transfer tax expenses, commissions and other customary fees
and expenses incurred, and all other federal, state and local taxes
assessed, in connection therewith, (ii) the principal amount of, premium,
if any, and interest on, any Indebtedness (other than the Loans and L/C
Obligations) which is secured by the assets which are the subject of such
Asset Sale or Recovery Event and which is required to be repaid in
connection with such Asset Sale or Recovery Event and (iii) amounts to be
provided by such Person as a reserve, in accordance with GAAP, against any
liabilities associated with any such Asset Sale or Recovery Event and
retained by such Person after such Asset Sale or Recovery Event,
including, without limitation, pension and other post-employment benefit
liabilities and liabilities related
16
to environmental matters or against any indemnification obligations
associated with such Asset Sale or Recovery Event, and (b) when used in
respect of the incurrence of Indebtedness by the Borrower or any of its
Subsidiaries, the gross proceeds received by such Person in Cash and Cash
Equivalents from such incurrence less all legal expenses, commissions and
other fees and expenses incurred or to be incurred in connection
therewith.
"NHO Canada": NHO Canada Holding, Inc., a Delaware corporation.
"1997 10-K": the Borrower's annual report on Form 10-K filed with
the Securities and Exchange Commission for its fiscal year ended December
31, 1997.
"Non-Excluded Taxes": as defined in subsection 2.18.
"Notes": the collective reference to any promissory notes evidencing
the Loans.
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender (or, in the case of
Interest Rate Protection Agreements, any affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any other Loan Document, the Letters of
Credit, any Interest Rate Protection Agreement entered into with any
Lender or any affiliate of any Lender or any other document made,
delivered or given in connection herewith or therewith, whether on account
of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender that
are required to be paid by the Borrower pursuant hereto) or otherwise.
"Participant": as defined in subsection 11.6(b).
"Participating Bank": any Revolving Credit Lender (other than the
Issuing Bank) with respect to its participating interest in each Letter of
Credit; provided that each Revolving Credit Lender (including the Issuing
Bank, if a Lender) shall be deemed to be a Participating Bank with respect
to any Letter of Credit issued by the Designated Issuer.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
17
"Permitted Acquisition": any acquisition made pursuant to subsection
7.10(g).
"Permitted Designee": with respect to any Permitted Holder (i) a
spouse or a child (in the case of an individual) of such Permitted Holder,
(ii) any trust for the benefit of such Permitted Holder or a spouse or
child of such Permitted Holder, (iii) in the event of the death or
incompetence of such Permitted Holder, such Permitted Holder's estate,
heirs, executor, administrator, committee or other court appointed
representative, (iv) any foundation or not for profit organization
established by a Permitted Holder or (v) any Person so long as a Permitted
Holder is the "beneficial owner" (as defined in clause (i) of the
definition of "Change in Control") of at least 51% of the Voting Stock of
such Person.
"Permitted Holders": Xxxx X. Xxxxxxx, Xxxx X. Xxxxxxxx, Xxxxxxx X.
Xxxxxxx and their Permitted Designees.
"Permitted Investments": Investments permitted by subsection 7.10.
"Permitted Subordinated Indebtedness": unsecured Indebtedness of the
Borrower which (i) is subordinated in right of payment to all Obligations
of the Borrower on terms reasonably satisfactory to the Required Lenders
(and, if such Indebtedness is guaranteed by any Subsidiary of the
Borrower, such guarantee is subordinated in right of payment to all
obligations of such Subsidiary under the Loan Documents on terms
reasonably satisfactory to the Required Lenders), (ii) contains covenants
and events of default which, taken as a whole, are substantially similar
to those applicable to the Tranche B Term Loan Facility under this
Agreement or are otherwise reasonably satisfactory to the Required Lenders
and (iii) has no scheduled or mandatory payments in respect of principal
(whether by scheduled amortization, redemption, purchase or otherwise)
prior to June 30, 2006.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledged Stock": as defined in the Guarantee and Pledge Agreement.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Productive Assets": assets (including Capital Stock of a Person
that directly or indirectly owns assets) of a kind used or usable in the
Borrower's business, or related to such business, as conducted on the date
of the relevant Asset Sale or Recovery Event.
18
"Pro Forma Balance Sheet": as defined in subsection 4.1(b).
"Properties": as defined in subsection 4.16.
"Qualifying ESOP Purchases": at any time, an amount equal to the
aggregate Net Cash Proceeds theretofore received by the Borrower from the
issuance or sale of shares of its Capital Stock (excluding Redeemable
Stock) to an ESOP after April 1, 1998; provided that if such ESOP issues
any Indebtedness for which the Borrower or any of its Subsidiaries has a
Guarantee Obligation or is otherwise liable, such aggregate Net Cash
Proceeds shall be counted only to the extent of any increase in the
Consolidated Net Worth of the Borrower theretofore resulting from
principal repayments made by such ESOP with respect to Indebtedness issued
by it to finance the purchase of such shares.
"Recovery Event": any settlement of or payment in excess of $500,000
in any transaction or series of related transactions in respect of any
property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Borrower or any of its Subsidiaries.
"Redeemable Stock": any class or series of Capital Stock that (i) by
its terms or otherwise is required to be redeemed prior to June 30, 2006,
(ii) is redeemable at the option of the holder thereof at any time prior
to June 30, 2006 or (iii) is exchangeable into any Capital Stock described
in clause (i) or (ii) above.
"Refinancing": the collective reference to (i) the execution and
delivery of this Agreement and the making of the initial Loans hereunder,
(ii) the repayment in full and cancellation of the Existing Credit
Agreements with the proceeds of a portion of the initial Loans hereunder
and (iii) the cash collateralization of the Existing Subordinated Notes
with the proceeds of a portion of the initial Loans hereunder and the
delivery of an irrevocable notice of redemption by the Borrower to the
trustee under the Existing Subordinated Indenture requiring the redemption
of the Existing Subordinated Notes on or prior to August 31, 1998.
"Refinancing Indebtedness": as defined in subsection 7.2(o).
"Register": as defined in subsection 11.6(d).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Xxxxxx Ireland Credit Facility": as defined in subsection 7.2(f).
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Banks pursuant to subsection 3.5(a) for amounts
drawn under Letters of Credit.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event the aggregate Net Cash Proceeds received by the Borrower or any of
its Subsidiaries in
19
connection therewith which are not applied to prepay the Term Loans or
reduce the Revolving Credit Commitments pursuant to subsection 2.9(d) as a
result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect of
which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer stating that no Event of Default has occurred and is continuing
and that the Borrower (directly or indirectly through a Subsidiary)
intends and expects to use all or a specified portion of the Net Cash
Proceeds of an Asset Sale or Recovery Event to acquire Productive Assets.
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire
Productive Assets.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring one year after such
Reinvestment Event and (b) the date on which the Borrower shall have
determined not to acquire Productive Assets with all or any portion of the
relevant Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b)
of ERISA, other than those events as to which the thirty day notice period
is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
'SS' 2615.
"Required Basic Lenders": at any time, Revolving Credit Lenders and
Tranche A Term Loan Lenders the Total Credit Percentages (calculated for
this purpose without giving effect to any outstanding Tranche B Term
Loans) of which aggregate more than 50%.
"Required Lenders": at any time, Lenders the Total Credit
Percentages of which aggregate more than 50%.
"Required Release Lenders": at any time (i) Required Basic Lenders
and (ii) Tranche B Term Loan Lenders the Tranche B Term Loan Percentages
of which aggregate more than 50%.
"Required Tranche B Term Loan Lenders": at any time, Tranche B Term
Loan Lenders the Tranche B Term Loan Percentages of which aggregate more
than 50%.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents
of such Person, and any law,
20
treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer": the chief executive officer, the president or
any vice president of the Borrower or GenChem or, with respect to
financial matters, the chief financial officer of the Borrower or GenChem.
"Restricted Investment": any Investment other than those permitted
by clauses (a) - (i) of subsection 7.10.
"Restricted Payment": as defined in subsection 7.8.
"Revolving Credit Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Credit Loans and participate in
Letters of Credit, in an aggregate principal and/or face amount not to
exceed the amount set forth under the heading "Revolving Credit
Commitment" opposite such Lender's name on Schedule I, as the same may be
changed from time to time pursuant to the terms hereof.
"Revolving Credit Commitment Period": the period from and including
the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Lender": each Lender which has a Revolving Credit
Commitment or which is the holder of Revolving Credit Loans.
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Percentage": as to any Revolving Credit Lender at
any time, the percentage which such Lender's Revolving Credit Commitment
then constitutes of the Total Revolving Credit Commitments (or, at any
time after the Revolving Credit Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such
Lender's Revolving Credit Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Credit Loans then
outstanding).
"Revolving Credit Termination Date": June 15, 2004.
"Revolving Extensions of Credit": as to any Revolving Credit Lender
at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding
and (b) such Lender's Revolving Credit Percentage of the L/C Obligations
then outstanding.
"Richmond Litigation": all suits, claims and other litigation
arising out of the explosion on July 26, 1993 at the Borrower's Richmond,
California plant which led to the release of sulfur trioxide into the
atmosphere.
"Sandco": Sandco Automotive Ltd., an Ontario corporation.
21
"Sandco Credit Facility": the Credit Facility dated as of February
6, 1998 in the original principal amount of C$l0,000,000 by and between
Sandco and The Bank of Nova Scotia, as the same may be amended, modified,
supplemented, replaced or refinanced from time to time.
"Security Documents": the collective reference to the Guarantee and
Pledge Agreement and all other documents or instruments hereafter
delivered to or for the benefit of the Administrative Agent and the
Lenders granting a Lien on any asset or assets of any Person to secure the
obligations and liabilities of the Borrower hereunder, under the Notes
and/or under any of the other Loan Documents or to secure any guarantee of
any such obligations and liabilities.
"Senior Leverage Ratio": as at the last day of any fiscal quarter of
the Borrower, the ratio of (a) Consolidated Total Indebtedness less the
amount of Permitted Subordinated Indebtedness as at such day to (b)
Consolidated Cash Flow for the period of four fiscal quarters ending on
such day.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Soda Ash Parent Agreement": the Amended and Restated Parent
Guaranty and Transfer Agreement dated June 30, 1992 and executed by New
Hampshire Oak, Inc., ACI International Limited and TOSOH America, Inc., as
the same may be amended, modified or supplemented from time to time.
"Soda Ash Partners": General Chemical (Soda Ash) Partners, a
Delaware general partnership.
"Soda Ash Partnership Agreement": the Second Amended and Restated
Partnership Agreement of General Chemical (Soda Ash) Partners, dated June
30, 1992 and executed by the Borrower, AGI and TOSOH, setting forth the
respective rights and duties of the general partners of Soda Ash Partners,
as such agreement may be amended, supplemented, replaced or otherwise
modified from time to time in accordance with subsection 7.11.
"Solvent": when used with respect to any Person, means that, as of
any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the
amount of all "liabilities of such Person, contingent or otherwise", as of
such date, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the
insolvency of debtors, (b) the present fair saleable value of the assets
of such Person will, as of such date, be greater than the amount that will
be required to pay the liability of such Person on its debts as such debts
become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they
mature. For purposes of this definition, (i) "debt" means liability on a
"claim",
22
and (ii) "claim" means any (x) right to payment, whether or not such a
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured or (y) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to
an equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.
"S&P": Standard & Poor's Ratings Services Group, a division of The
XxXxxx-Xxxx Companies, Inc.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of the
Borrower, which shall include, without limitation, Soda Ash Partners.
"Subsidiary Guarantor": each Domestic Subsidiary of the Borrower
other than (i) Soda Ash Partners and (ii) any Domestic Subsidiary less
than 80% of the common Equity Interests of which is owned by the Borrower
or its other Subsidiaries.
"Term Loan Lenders": the collective reference to the Tranche A Term
Loan Lenders and the Tranche B Term Loan Lenders.
"Term Loans": the collective reference to the Tranche A Term Loans
and Tranche B Term Loans.
"TOSOH": TOSOH Wyoming, Inc., a Delaware corporation.
"Total Credit Percentage": as to any Lender at any time, the
percentage of the aggregate Revolving Credit Commitments, outstanding
Tranche A Term Loans and outstanding Tranche B Term Loans then constituted
by its Revolving Credit Commitment, outstanding Tranche A Term Loans and
outstanding Tranche B Term Loans (or, if the Revolving Credit Commitments
have terminated or expired, the percentage of the aggregate outstanding
Revolving Credit Loans, outstanding Term Loans and interests in the
outstanding L/C Obligations then constituted by its outstanding Revolving
Credit Loans, outstanding Term Loans and interests in outstanding L/C
Obligations).
"Total Revolving Credit Commitments": at any time, the aggregate
amount of the Revolving Credit Commitments then in effect. The original
amount of the Total Revolving Credit Commitments is $300,000,000.
23
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders outstanding at such time.
"Tranche A Term Loan": as defined in Section 2.3(a).
"Tranche A Term Loan Commitment": as to any Lender, the obligation
of such Lender, if any, to make a Tranche A Term Loan to the Borrower
hereunder in a principal amount not to exceed the amount set forth under
the heading "Tranche A Term Loan Commitment" opposite such Lender's name
on Schedule I. The original aggregate amount of the Tranche A Term Loan
Commitments is $100,000,000.
"Tranche A Term Loan Lender": each Lender which has a Tranche A Term
Loan Commitment or is the holder of a Tranche A Term Loan.
"Tranche A Term Loan Percentage": as to Tranche A Term Loan Lender
at any time, the percentage which such Lender's Tranche A Term Loan
Commitment then constitutes of the aggregate Tranche A Term Loan
Commitments (or, at any time after the Closing Date, the percentage which
the aggregate principal amount of such Lender's Tranche A Term Loans then
outstanding constitutes of the aggregate principal amount of the Tranche A
Term Loans then outstanding).
"Tranche B Term Loan": as defined in Section 2.3(b).
"Tranche B Term Loan Commitment": as to any Lender, the obligation
of such Lender, if any, to make a Tranche B Term Loan to the Borrower
hereunder in a principal amount not to exceed the amount set forth under
the heading "Tranche B Term Loan Commitment" opposite such Lender's name
on Schedule I thereto. The original aggregate amount of the Tranche B Term
Loan Commitments is $200,000,000.
"Tranche B Term Loan Lender": each Lender which has a Tranche B Term
Loan Commitment or which is the holder of a Tranche B Term Loan.
"Tranche B Term Loan Percentage": as to any Lender at any time, the
percentage which such Lender's Tranche B Term Loan Commitment then
constitutes of the aggregate Tranche B Term Loan Commitments (or, at any
time after the Closing Date, the percentage which the aggregate principal
amount of such Lender's Tranche B Term Loans then outstanding constitutes
of the aggregate principal amount of the Tranche B Term Loans then
outstanding); provided, that solely for purposes of calculating the amount
of each installment of Tranche B Term Loans (other than the last
installment) payable to a Tranche B Term Loan Lender pursuant to Section
2.5%, such Term Loan Lender's Tranche B Term Loan Percentage shall be
calculated without giving effect to any portion of any prior mandatory or
optional prepayment attributable to such Term Loan Lender's Tranche B Term
Loans which shall have been declined by such Term Loan Lender (or, in the
case of any Term Loan Lender
24
which shall have acquired its Tranche B Term Loans by assignment from
another Person, by such other Person).
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"Voting Stock": Capital Stock of a Person normally entitled to vote
in the election of directors (or other persons exercising similar
functions) of such Person.
"Wholly Owned Subsidiary": of any Person, a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests
of which (other than directors' qualifying shares) shall at the time be
owned by such Person or by one or more Wholly Owned Subsidiaries of such
Person and one or more Wholly Owned Subsidiaries of such Person.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes and the other Loan Documents or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in the Notes and the other Loan Documents,
and any certificate or other document made or delivered pursuant hereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding which,
25
when added to such Lender's Revolving Credit Percentage of then outstanding L/C
Obligations, does not exceed the amount of such Lender's Revolving Credit
Commitment. During the Revolving Credit Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 2.2 and 2.10, provided that no Loan shall be made as a Eurodollar
Loan after the day that is one month prior to the Revolving Credit Termination
Date.
2.2 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, (a) three Business
Days prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans or (b) one Business
Day prior to the requested Borrowing Date, otherwise), specifying (i) the amount
to be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing
is to be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the amounts of such
Type of Loan and the lengths of the initial Interest Periods therefor. Each
borrowing under the Revolving Credit Commitments shall be in an amount equal to
(x) in the case of ABR Loans, $1,000,000 or a whole multiple thereof (or, if
then Available Revolving Credit Commitments are less than $1,000,000, such
lesser amount) and (y) in the case of Eurodollar Loans, $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from
the Borrower, the Administrative Agent shall promptly notify each Lender
thereof. Each Revolving Credit Lender will make the amount of its pro rata share
of each borrowing available to the Administrative Agent for the account of the
Borrower at the office of the Administrative Agent specified in subsection 11.2
prior to 11:00 A.M., New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Revolving Credit Lenders and in like funds as received by the Administrative
Agent.
2.3 Term Loan Commitments. Subject to the terms and conditions
hereof (a) each Tranche A Term Loan Lender severally agrees to make a term loan
(a "Tranche A Term Loan") to the Borrower on the Closing Date in an amount not
to exceed the amount of the Tranche A Term Loan Commitment of such Lender and
(1) each Tranche B Term Loan Lender severally agrees to make a term loan (a
"Tranche B Term Loan") to the Borrower on the Closing Date in an amount not to
exceed the amount of the Tranche B Term Loan Commitment of such Lender. The
Tranche A Term Loans and Tranche B Term Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with subsections 2.4 and 2.10.
26
2.4 Procedure for Term Loan Borrowing. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, one Business Day
prior to the anticipated Closing Date) requesting that the Term Loan Lenders
make the Term Loans on the Closing Date and specifying the amount to be
borrowed. Upon receipt of such notice the Administrative Agent shall promptly
notify each Term Loan Lender thereof. Not later than 12:00 Noon, New York City
time, on the Closing Date each Term Loan Lender shall make available to the
Administrative Agent at the office of the Administrative Agent specified in
subsection 11.2 an amount in immediately available funds equal to the Term Loan
or Term Loans to be made by such Lender. The Administrative Agent shall credit
to the account of the Borrower on the books of such office the aggregate of the
amounts made available to the Administrative Agent by the Term Loan Lenders in
immediately available funds.
2.5 Repayment of Term Loans. (a) The Tranche A Term Loan of each
Tranche A Lender shall mature in consecutive quarterly installments on the dates
set forth below, each of which shall be in an amount equal to such Lender's
Tranche A Term Loan Percentage multiplied by the amount set forth below opposite
such installment:
Installment Principal Amount
----------- ----------------
March 31, 2000 $1,250,000
June 30, 2000 $1,250,000
September 30, 2000 $1,250,000
December 31, 2000 $1,250,000
March 31, 2001 $1,250,000
June 30, 2001 $1,250,000
September 30, 2001 $3,125,000
December 31, 2001 $3,125,000
March 31, 2002 $3,125,000
June 30, 2002 $3,125,000
September 30, 2002 $7,500,000
December 31, 2002 $7,500,000
March 31, 2003 $7,500,000
June 30, 2003 $7,500,000
September 30, 2003 $12,500,000
December 31, 2003 $12,500,000
March 31, 2004 $12,500,000
June 15, 2004 $12,500,000
(b) The Tranche B Term Loan of each Tranche B Lender shall mature in
consecutive quarterly installments on the dates set forth below, each of which
shall be in an amount equal to such Lender's Tranche B Term Loan Percentage
multiplied by the amount set forth below opposite such installment:
27
Installment Principal Amount
----------- ----------------
September 30, 1998 $500,000
December 31, 1998 $500,000
March 31, 1999 $500,000
June 30, 1999 $500,000
September 30, 1999 $500,000
December 31, 1999 $500,000
March 31, 2000 $500,000
June 30, 2000 $500,000
September 30, 2000 $500,000
December 31, 2000 $500,000
March 31, 2001 $500,000
June 30, 2001 $500,000
September 30, 2001 $500,000
December 31, 2001 $500,000
March 31, 2002 $500,000
June 30, 2002 $500,000
September 30, 2002 $500,000
December 31, 2002 $500,000
March 31, 2003 $500,000
June 30, 2003 $500,000
September 30, 2003 $500,000
December 31, 2003 $500,000
March 31, 2004 $500,000
June 30, 2004 $500,000
September 30, 2004 $500,000
December 31, 2004 $500,000
March 31, 2005 $500,000
June 30, 2005 $500,000
September 30, 2005 $46,500,000
December 31, 2005 $46,500,000
March 31, 2006 $46,500,000
June 15, 2006 $46,500,000
2.6 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
the appropriate Revolving Credit Lender or Term Loan Lender, as the case may be,
(i) the then unpaid principal amount of each Revolving Credit Loan of such
Revolving Credit Lender on the Revolving Credit Termination Date (or such
earlier date on which the Loans become due and payable pursuant to Section 9)
and (ii) the principal amount of each Term Loan of such Term Loan Lender in
installments according to the amortization schedule set forth in subsection 2.5
(or on such earlier date on which the Loans become due and payable pursuant to
Section 9). The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Loans from time to time outstanding from the date hereof
until payment in full thereof at the rates per annum, and on the dates, set
forth in subsection 2.12.
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(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall
maintain the Register pursuant to subsection 11.6(d), and a subaccount therein
for each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and any Note evidencing such Loan, the Type thereof and each Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) both the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.6(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however that the failure
of any Lender or the Administrative Agent to maintain the Register or any such
account, or any error therein, shall not in any manner affect the obligation of
the Borrower to repay (with applicable interest) the Loans made to such Borrower
by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing any Term Loans or
Revolving Credit Loans, as the case may be, of such Lender, substantially in the
forms of Exhibit F-1 or F-2, respectively, with appropriate insertions as to
date and principal amount.
2.7 Commitment Fee. (a) Subject to subsection 2.15(b)(ii), the
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee for the period from and including the first day of the
Revolving Credit Commitment Period to the Revolving Credit Termination Date,
computed at the Commitment Fee Rate on and after the Closing Date, on the
average daily amount of the Available Revolving Credit Commitment of such Lender
during the period for which payment is made, payable quarterly in arrears on the
last day of each March, June, September and December and on the Revolving Credit
Termination Date or such earlier date as the Revolving Credit Commitments shall
terminate as provided herein, commencing on the first of such dates to occur
after the Closing Date.
(b) The Borrower agrees to pay to the Administrative Agent, the
Syndication Agent and the Documentation Agent the fees in the amounts and on the
dates from time to time agreed to in writing by the Borrower and the
Administrative Agent, Syndication Agent and Documentation Agent, respectively.
2.8 Optional Termination or Reduction of Revolving Credit
Commitments. The Borrower shall have the right, upon not less than five Business
Days' notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time,
29
to reduce the amount of the Revolving Credit Commitments, provided that no such
termination or reduction shall be permitted if, after giving effect thereto and
to any prepayments of the Revolving Credit Loans made on the effective date
thereof, the aggregate principal amount of the Revolving Credit Loans then
outstanding, when added to then outstanding L/C Obligations, would exceed the
Revolving Credit Commitments then in effect. Any such partial reduction shall be
in an amount equal to $1,000,000 or a whole multiple thereof and shall reduce
permanently the Revolving Credit Commitments then in effect.
2.9 Optional Prepayments; Mandatory Prepayments and Commitment
Reductions. (a) The Borrower may on the last day of any Interest Period with
respect thereto, in the case of Eurodollar Loans, or at any time and from time
to time, in the case of ABR Loans, prepay the Loans, in whole or in part,
without premium (except, in the case of Tranche B Term Loans, as set forth below
in the last sentence of this paragraph (a)) or penalty, upon at least three
Business Days' irrevocable notice in the case of Eurodollar Loans, and upon at
least one Business Day's irrevocable notice in the case of ABR Loans, to the
Administrative Agent, specifying the date and amount of prepayment and whether
the prepayment is of (i) Term Loans, Revolving Credit Loans or a combination
thereof and (ii) Eurodollar Loans, ABR Loans or a combination thereof, and, if
of a combination thereof, the amount allocable to each. Upon receipt of any such
notice the Administrative Agent shall promptly notify each affected Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with any amounts
payable pursuant to subsection 2.19 and, in the case of prepayments of the Term
Loans only, accrued interest to such date on the amount prepaid. Optional
prepayment of the Tranche B Term Loans shall be accompanied by a ratable
prepayment of the Tranche A Term Loans (based on the respective outstanding
principal amounts thereof) until the Tranche A Term Loans are paid in full and
then by a ratable reduction in the Revolving Credit Commitments (based on the
respective outstanding principal amounts of the Tranche B Term Loans and the
aggregate amount of the Revolving Credit Commitments). Partial prepayments of
the Term Loans shall be applied pro rata to the respective installments of
principal thereof; provided however that Revolving Credit Loans and Tranche A
Term Loans may be prepaid without prepayment of Tranche B Term Loans. Partial
prepayments shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof. Optional prepayments of the Tranche B Term Loans under this
subsection 2.9(a) shall be accompanied by a prepayment premium on the principal
amount prepaid equal to (A) 3% to the first anniversary of the Closing Date, (B)
2% thereafter to the second anniversary of the Closing Date and (c) 1%
thereafter to the third anniversary of the Closing Date.
(b) If, at any time during the Revolving Credit Commitment Period,
the aggregate Revolving Credit Extensions of Credit exceed the aggregate
Revolving Credit Commitments then in effect, the Borrower shall, without notice
or demand, immediately repay the Revolving Credit Loans in an aggregate
principal amount equal to such excess, together with interest accrued to the
date of such payment or prepayment and any amounts payable under subsection
2.19. To the extent that after giving effect to any prepayment of the Revolving
Credit Loans required by the preceding sentence, the aggregate Revolving Credit
Extensions of Credit exceed the aggregate Revolving Credit Commitments then in
effect, the
30
Borrower shall, without notice or demand, immediately cash collateralize the
then outstanding L/C Obligations in an amount equal to such excess in accordance
with paragraph (h) below.
(c) If any Indebtedness shall be incurred by the Borrower or any of
its Subsidiaries (other than Indebtedness permitted to be incurred under
subsection 7.2 as in effect on the Closing Date, including Indebtedness the
proceeds of which are used to finance Permitted Acquisitions), an amount equal
to 100% of the Net Cash Proceeds thereof shall be applied on the date of such
issuance or incurrence toward the prepayment of the Term Loans and the reduction
of the Revolving Credit Commitments as set forth in subsection 2.9(g) and
subject to subsection 2.9(f).
(d) If on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Sale or Recovery Event then (i) unless
a Reinvestment Notice shall be delivered in respect thereof, such Net Cash
Proceeds shall be applied on such date toward the prepayment of the Term Loans
and the reduction of the Revolving Credit Commitments as set forth in subsection
2.9(g) and subject to subsection 2.9(f) or (ii) if a Reinvestment Notice has
been delivered in respect thereof, on each Reinvestment Prepayment Date, an
amount equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied toward the prepayment of the Term Loans and
the reduction of the Revolving Credit Commitments as set forth in subsection
2.9(g). Notwithstanding the foregoing, all Net Cash Proceeds in excess of
$50,000,000 received in any fiscal year shall be applied toward the prepayment
of the Term Loans and the reduction of the Revolving Credit Commitments as set
forth in subsection 2.9(g).
(e) On the date of any Change in Control the Borrower shall prepay
the Tranche B Term Loans, subject to subsection 2.9(f). Each such prepayment
pursuant to this paragraph (e) shall be accompanied by a prepayment premium of
1% on the principal amount prepaid.
(f) Notwithstanding anything to the contrary in this subsection 2.9,
so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan
Lender may, at its option, decline the portion of any mandatory payment
applicable to the Tranche B Term Loans of such Lender; accordingly, with respect
to the amount of any mandatory prepayment described in this subsection 2.9 that
is allocated to Tranche B Term Loans (such amounts, the "Tranche B Prepayment
Amount") at any time when Tranche A Term Loans remain outstanding, the Borrower
will in the case of any mandatory prepayment required to be made pursuant to
this subsection 2.9, in lieu of applying such amount to the prepayment of
Tranche B Term Loans, as provided in subsection 2.9(g), on the date specified in
this subsection 2.9 for such prepayment, give the Administrative Agent
telephonic notice (promptly confirmed in writing) requesting that the
Administrative Agent prepare and provide to each Tranche B Lender a notice
(each, a "Prepayment Option Notice") as described below. As promptly as
practicable after receiving such notice from the Borrower, the Administrative
Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice,
which shall be in the form of Exhibit G, and shall include an offer by the
Borrower to prepay on the date (each a "Prepayment Date") that is 10 Business
Days after the date of the Prepayment Option Notice the Tranche B Term Loans of
such Lender by an amount equal to the portion of the Tranche
31
B Prepayment Amount indicated in such Lender's Prepayment Option Notice as being
applicable to such Lender's Tranche B Term Loans. On the Prepayment Date (i) the
Borrower shall pay to the Administrative Agent the aggregate amount necessary to
prepay that portion of the outstanding Tranche B Term Loans in respect of which
Tranche B Term Loan Lenders have accepted prepayment as described above (such
Lenders, the "Accepting Lenders"), and such amount shall be applied to reduce
the Tranche B Prepayment Amounts with respect to each Accepting Lender, (ii)
subject to the following clause (iii), the Borrower shall pay to the
Administrative Agent an amount equal to the portion of the Tranche B Prepayment
Amount not accepted by the Accepting Lenders, and such amount shall be applied
to the prepayment of the Tranche A Term Loans and the Tranche B Term Loans held
by Tranche B Term Loan Lenders who are Accepting Lenders (ratably based on the
respective outstanding principal amounts thereof), and (iii) if the prepayment
giving rise to a Prepayment Option Notice is a result of a Change in Control,
the Borrower shall be entitled to retain the remaining portion of the Tranche B
Prepayment Amount not accepted by the Accepting Lenders.
(g) Amounts to be applied in connection with prepayments and
Revolving Credit Commitment reductions made pursuant to this subsection 2.9
shall be applied, first to the prepayment of the Term Loans and, second, to
reduce permanently the Revolving Credit Commitments. Any such reduction of the
Revolving Credit Commitments shall be accompanied by prepayment of the Revolving
Credit Loans to the extent, if any, that the Total Revolving Extensions of
Credit exceed the amount of the Total Revolving Credit Commitments as so
reduced, provided that if the aggregate principal amount of Revolving Credit
Loans then outstanding is less than the amount of such excess (because L/C
Obligations constitute a portion thereof), the Borrower shall, to the extent of
the balance of such excess, replace outstanding Letters of Credit and/or deposit
an amount in cash in a cash collateral account established with the
Administrative Agent for the benefit of the Lenders in accordance with paragraph
(h) below. The application of any prepayment pursuant to this subsection shall
be made first to ABR Loans and second to Eurodollar Loans. Each prepayment of
the Loans under this subsection 2.9 (except in the case of Revolving Credit
Loans that are ABR Loans) shall be accompanied by accrued interest to the date
of such prepayment on the amount prepaid.
(h) The cash collateralization of L/C Obligations shall be
accomplished by the Borrower depositing an amount equal to such L/C Obligations
in a cash collateral account opened by the Administrative Agent. This account
shall bear interest which shall, so long as no Event of Default has occurred and
is continuing, be payable to the Borrower (and, if an Event of Default shall
have occurred, such interest shall remain in such account until such Event of
Default ceases to exist or the Administrative Agent has applied such interest to
payment of the Obligations). The Borrower shall have no right to withdraw any
amount from such cash collateral account; provided that, so long as no Default
or Event of Default has occurred and is continuing or would result therefrom,
the Administrative Agent shall, from time to time, release an amount of cash
collateral equal to the excess of all cash collateral then on deposit in such
cash collateral account over the then outstanding L/C Obligations and accrued
interest thereon. The Borrower hereby grants to the Administrative Agent, for
the benefit of the Issuing Banks and the Participating Banks, a security
interest in such cash
32
collateral (in whatever form) and the proceeds thereof to secure all such L/C
Obligations. Amounts held in such cash collateral account shall be applied by
the Administrative Agent to the payment of such L/C Obligations. The Borrower
shall execute and deliver to the Administrative Agent, for the account of the
Issuing Banks and the Participating Banks, such further documents and
instruments as the Administrative Agent may reasonably request to evidence the
creation and perfection of such security interest in such cash collateral
account.
(i) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Term Loans shall be made pro rata
according to the respective outstanding principal amounts of the Term Loans then
held by the Term Loan Lenders (except as otherwise provided in paragraph (f)
above). The amount of each principal prepayment of the Term Loans shall be
applied to reduce the then remaining installments of the Tranche A Term Loans
and Tranche B Term Loans, as the case may be, pro rata based upon the then
remaining principal amount thereof. Amounts prepaid on account of the Term Loans
may not be reborrowed.
2.10 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of such election. Any such notice of conversion to Eurodollar Loans shall
specify the length of the initial Interest Period or Interest Periods therefor.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each affected Lender thereof. All or any part of outstanding Eurodollar Loans
and ABR Loans may be converted as provided herein, provided that (i) no Loan may
be converted into a Eurodollar Loan under a particular Facility when any Event
of Default has occurred and is continuing and the Administrative Agent has or
the Majority Facility Lenders under such Facility have determined not to permit
such conversions and (ii) no Loan under a particular Facility may be converted
into a Eurodollar Loan after the date that is one month prior to the final
scheduled termination or maturity date of such Facility.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of then current Interest Period with respect thereto by the Borrower
giving notice to the Administrative Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in subsection 1.1, of the
length of the next Interest Period to be applicable to such Loans, provided that
no Eurodollar Loan under a particular Facility may be continued as such (i) when
any Event of Default has occurred and is continuing and the Administrative Agent
has or the Majority Facility Lenders under such Facility have determined not to
permit such continuations or (ii) after the date that is one month prior to the
final scheduled termination or maturity date of such Facility and provided,
further, that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically converted to
ABR Loans on the last day of such then expiring Interest Period.
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2.11 Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof.
2.12 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin.
(c) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any commitment fee or other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum which is (x) in the case of overdue principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (y), to the extent permitted by applicable law, in the
case of overdue interest, commitment fee or other amount, the rate described in
paragraph (b) for the applicable Facility (or, if there is no applicable
Facility, for the Revolving Credit Facility) of this subsection plus 2%, in each
case from the date of such non-payment until such amount is paid in full (as
well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
2.13 Computation of Interest and Fees. (a) Commitment fees,
commissions and interest shall be calculated on the basis of a 360-day year for
the actual days elapsed, except that, with respect to ABR Loans the rate of
interest on which is calculated on the basis of the Prime Rate, interest thereon
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the affected Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the affected Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 2.12(a).
34
2.14 Inability to Determine Interest Rate. If prior to the first
day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as ABR Loans,
(y) any Loans under the relevant Facility that were to have been converted on
the first day of such Interest Period to Eurodollar Loans under the relevant
Facility shall be converted to or continued as ABR Loans and (z) any outstanding
Eurodollar Loans under the relevant Facility shall be converted, on the first
day of such Interest Period, to ABR Loans. Until such notice has been withdrawn
by the Administrative Agent, no further Eurodollar Loans under the relevant
Facility shall be made or continued as such, nor shall the Borrower have the
right to convert Loans under the relevant Facility to Eurodollar Loans.
2.15 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee hereunder and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Tranche A Term Loan
Percentages, Tranche B Term Loan Percentages or Revolving Credit Commitment
Percentages, as the case may be, of the relevant Lenders. Each payment (other
than prepayments) on account of principal of and interest on the Loans, each
payment in respect of fees payable hereunder and each payment in respect of
Reimbursement Obligations shall be applied to the amounts of such obligations
owing to the Lenders pro rata according to the respective amounts then due and
owing to the Lenders, except to the extent otherwise required by clause (ii) of
subsection 2.15(b), by subsection 2.18 or by subsection 2.21. All payments
(including prepayments) to be made by the Borrower hereunder, whether on account
of principal, interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders, at
the Administrative Agent's office specified in subsection 11.2, in Dollars and
in immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at then applicable rate during such
35
extension. If any payment on a Eurodollar Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension of
any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender (any such Lender, a
"Non-Funding Lender") within three Business Days of such Borrowing Date, (i) the
Administrative Agent shall also be entitled to recover such amount with interest
thereon at the rate per annum applicable to ABR Loans under the relevant
Facility, on demand, from the Borrower, (ii) the commitment fee of such
Non-Funding Lender referred to in subsection 2.7 shall not accrue during the
period commencing on such Borrowing Date and ending on the date on which such
Non-Funding Lender makes available to the Administrative Agent its share of such
borrowing and (iii) the Borrower shall have the right to replace such
Non-Funding Lender in accordance with subsection 2.21.
2.16 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert ABR Loans to Eurodollar Loans shall forthwith be cancelled; provided
that any request by the Borrower pursuant to subsection 2.2, 2.4 or 2.10 for a
Eurodollar Loan shall, as to such Lender, be deemed to be a request for an ABR
Loan, and (b) such Lender's Loans then outstanding as Eurodollar Loans, if any,
shall be converted automatically to ABR Loans on the respective last days of
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs on
a day which is not the last day of then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 2.19.
2.17 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any
36
Lender with any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority made subsequent to the
date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any Application or any
Eurodollar Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded Taxes covered by
subsection 2.18 and taxes on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender reasonably deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans or issuing or
participating in Letters of Credit or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, the Borrower shall promptly pay such
Lender, within 15 days after receipt by the Borrower of a certificate referred
to in the second succeeding sentence, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
subsection, it shall promptly notify the Borrower, through the Administrative
Agent, of the event by reason of which it has become so entitled. A certificate
as to any additional amounts payable pursuant to this subsection submitted by
such Lender, through the Administrative Agent, to the Borrower shall be
conclusive in the absence of manifest error. This covenant shall survive for one
hundred eighty (180) days after the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount reasonably
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the Borrower (with a copy to the Administrative Agent) of a
written request therefor, the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction.
37
2.18 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes or franchise taxes imposed in lieu of net
income taxes imposed on the Administrative Agent or any Lender as a result of a
present or former connection between the Administrative Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
Notes, provided, however, that the Borrower shall not be required to increase
any such amounts payable to any Lender that is not organized under the laws of
the United States of America or a state thereof if such Lender fails to comply
with the requirements of paragraph (b) of this subsection. Each Lender shall
promptly notify the Borrower of a change in such Lender's tax status that would
require the Borrower to withhold and/or pay any amounts under this paragraph
(a). Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative Agent for its
own account or for the account of such Lender, as the case may be, a certified
copy of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence within 30 days of
written request therefor by the Administrative Agent or such Lender, the
Borrower shall indemnify the Administrative Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(X) (i) before the first payment date after it becomes a party to
this Agreement (or, in the case of a Participant, before the first payment
date after it becomes a Participant) deliver to the Borrower and the
Administrative Agent (A) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, or successor applicable form,
as the case may be, and (B) an Internal Revenue Service Form W-8 or W-9,
or successor applicable form, as the case may be;
38
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and file such forms
or certifications as may reasonably be requested by the Borrower or the
Administrative Agent; and
(Y) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, (i) represent to the
Borrower (for the benefit of the Borrower and the Administrative Agent)
that it is not a bank within the meaning of Section 881(c)(3)(A) of the
Code, (ii) agree to furnish to the Borrower on or before the date of any
payment by the Borrower, with a copy to the Administrative Agent, (A) a
certificate substantially in the form of Exhibit H (any such certificate
a "U.S. Tax Compliance Certificate") and (B) two accurate and complete
original signed copies of Internal Revenue Service Form W-8, or successor
applicable form certifying to such Lender's legal entitlement at the date
of such certificate to an exemption from U.S. withholding tax under the
provisions of Section 881(c) of the Code with respect to payments to be
made under this Agreement and any Notes (and to deliver to the Borrower
and the Administrative Agent two further copies of such form on or before
the date it expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recently provided form, and, if
necessary, obtain any extensions of time reasonably requested by the
Borrower or the Administrative Agent for filing and completing such
forms), and (iii) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower (for the
benefit of the Borrower and the Administrative Agent) such other forms as
may be reasonably required in order to establish the legal entitlement of
such Lender to an exemption from withholding with respect to payments
under this Agreement and any Notes;
unless in the case of forms delivered pursuant to subparagraph (X)(ii) or (iii)
or (Y), an event (including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender so advises the Borrower and the Administrative
Agent. Such Lender shall certify (i) in the case of a Form 1001 or 4224, that it
is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (ii) in the case of a
Form W-8 or W-9, that it is entitled to an exemption from United States backup
withholding tax. Each Person that shall become a Lender or a Participant
pursuant to subsection 11.6 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms and statements required
pursuant to this subsection, provided that in the case of a Participant such
Participant shall furnish all such required forms and statements to the Lender
from which the related participation shall have been purchased.
39
(c) If a Lender or the Administrative Agent shall become aware in
its sole and good faith judgment that it is entitled to receive a refund in
respect of Non-Excluded Taxes as to which it has received additional amounts
from the Borrower pursuant to subsection 2.18(a), it shall promptly notify the
Borrower of the availability of such refund and within 30 days after receipt of
a request by the Borrower, apply for such refund at the Borrower's expense. If
any Lender or the Administrative Agent receives a refund in respect of
Non-Excluded Taxes as to which it has received additional amounts from the
Borrower pursuant to subsection 2.18(a), it shall promptly repay such refund to
the Borrower, provided, however, that if any Lender or the Administrative Agent
receives a refund which it must subsequently return to the applicable taxing
authority after the Borrower has already been repaid, the Borrower agrees to
promptly return the amount of such repayment to the Lender or Administrative
Agent.
2.19 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any reasonably foreseeable loss or expense which
such Lender may sustain or incur caused by (a) default by the Borrower in making
a borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a payment or prepayment of
Eurodollar Loans on a day which is not the last day of an Interest Period with
respect thereto. Such indemnification shall include an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period (or, in the case of a failure
to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank eurodollar market. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.20 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.17 or 2.18(a)
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this subsection shall
affect or postpone any of the obligations of any Borrower or the rights of any
Lender pursuant to Section 2.17 or 2.18(a).
2.21 Replacement of Lenders under Certain Circumstances. The
Borrower shall be permitted to replace any Lender which (a) requests
reimbursement for amounts owing pursuant to Section 2.17 or 2.18 or (b) defaults
in its obligation to make Loans hereunder,
40
with a replacement financial institution; provided that (i) such replacement
does not conflict with any Requirement of Law, (ii) no Event of Default shall
have occurred and be continuing at the time of such replacement, (iii) prior to
any such replacement, such Lender shall have taken no action under subsection
2.20 so as to eliminate the continued need for payment of amounts owing pursuant
to Section 2.17 or 2.18, (iv) the replacement financial institution shall
purchase, at par, all Loans and other amounts owing to such replaced Lender on
or prior to the date of replacement, (v) the Borrower shall be liable to such
replaced Lender under subsection 2.19 if any Eurodollar Loan owing to such
replaced Lender shall be purchased other than on the last day of the Interest
Period relating thereto, (vi) the replacement financial institution, if not
already a Lender, shall be reasonably satisfactory to the Administrative Agent,
(vii) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of subsection 11.6 (provided that the Borrower
shall be obligated to pay the registration and processing fee referred to
therein), (viii) until such time as such replacement shall be consummated, the
Borrower shall pay all additional amounts (if any) required pursuant to
subsection 2.17 or 2.18, as the case may be, and (ix) any such replacement shall
not be deemed to be a waiver of any rights which the Borrower, the
Administrative Agent or any other Lender shall have against the replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1. L/C Commitment. (a) Subject to the terms and conditions hereof,
each Issuing Bank, in reliance on the agreements of the Lenders set forth in
subsection 3.4(a), agrees to issue letters of credit ("Letters of Credit") for
the account of the Borrower on any Business Day during the Revolving Credit
Commitment Period in such form as may be approved from time to time by such
Issuing Bank; provided that neither Issuing Bank shall have any obligation to
issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the aggregate Available
Revolving Credit Commitments would be less than zero.
(b) Each Letter of Credit shall be denominated in Dollars and shall
expire no later than the earlier of (i) 365 days after its date of issuance and
(ii) five Business Days prior to the Revolving Credit Termination Date.
(c) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(d) Neither Issuing Bank shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Bank or any Participating Bank to exceed any limits imposed by, any
applicable Requirement of Law.
(e) Letters of credit issued under the Existing Revolving Credit
Agreement shall be deemed to be Letters of Credit issued under this Agreement on
the Closing Date.
3.2. Procedure for Issuance of Letters of Credit. The Borrower may
from time to time request that an Issuing Bank issue a Letter of Credit by
delivering to such Issuing
41
Bank at its address for notices specified herein an Application therefor,
completed to the satisfaction of such Issuing Bank, and such other certificates,
documents and other papers and information as such Issuing Bank may reasonably
request. Upon receipt of any Application, such Issuing Bank will process such
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall an Issuing Bank be required to issue any Letter of Credit
earlier than three Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed by such Issuing Bank and the
Borrower. The Issuing Bank shall furnish a copy of such Letter of Credit to the
Borrower and to each Participating Bank promptly following the issuance thereof.
3.3. Fees, Commissions and Other Charges. (a) The Borrower will pay
a fee on all outstanding Letters of Credit at a per annum rate equal to the
Applicable Margin then in effect with respect to Eurodollar Loans under the
Revolving Credit Facility, shared ratably among the Revolving Credit Lenders and
payable quarterly in arrears on each L/C Fee Payment Date after the issuance
date. In addition, the Borrower shall pay to the Issuing Lender for its own
account a fronting fee of 1/10 of 1% per annum, payable quarterly in arrears on
each L/C Fee Payment Date after the Issuance Date.
(b) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse each Issuing Bank for such normal and customary costs and
expenses as are incurred or charged by such Issuing Bank in issuing, effecting
payment under, amending or otherwise administering any Letter of Credit;
provided that such costs and expenses are not paid by the Borrower under
subsections 2.19, 3.5 and/or 11.5 of this Agreement.
3.4. L/C Participations. (a) Each Issuing Bank irrevocably agrees to
grant and hereby grants to each Participating Bank, and, to induce the Issuing
Banks to issue Letters of Credit hereunder, each Participating Bank irrevocably
agrees to accept and purchase and hereby accepts and purchases from each Issuing
Bank, on the terms and conditions hereinafter stated, for such Participating
Bank's own account and risk an undivided interest equal to such Participating
Bank's Revolving Credit Percentage in the relevant Issuing Bank's obligations
and rights under each Letter of Credit issued by it hereunder and the amount of
each draft paid by such Issuing Bank thereunder. Each Participating Bank
unconditionally and irrevocably agrees with each Issuing Bank that, if a draft
is paid under any Letter of Credit for which such Issuing Bank is not reimbursed
in full by the Borrower in accordance with the terms of this Agreement, such
Participating Bank shall pay to such Issuing Bank upon demand at such Issuing
Bank's address for notices specified herein an amount equal to such
Participating Bank's Revolving Credit Percentage of the amount of such draft, or
any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any Participating Bank to
an Issuing Bank pursuant to paragraph 3.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Bank under any Letter of Credit is
paid to such Issuing Bank after the date such payment is due, such Participating
Bank shall pay to such Issuing Bank on demand
42
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal funds rate, as quoted by such Issuing Bank, during the period from and
including the date such payment is required to the date on which such payment is
immediately available to such Issuing Bank, times (iii) a fraction the numerator
of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of an Issuing Bank submitted to any
Participating Bank with respect to any amounts owing under this subsection shall
be conclusive in the absence of manifest error.
(c) Whenever, at any time after an Issuing Bank has made payment
under any Letter of Credit and has received from any Participating Bank its pro
rata share of such payment in accordance with subsection 3.4(a), the Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by such Issuing Bank), or any payment of interest on account thereof, such
Issuing Bank will distribute to such Participating Bank its pro rata share
thereof; provided, however, that in the event that any such payment received by
an Issuing Bank shall be required to be returned by such Issuing Bank, such
Participating Bank shall return to such Issuing Bank the portion thereof
previously distributed by such Issuing Bank to it.
3.5. Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse each Issuing Bank on each date on which such Issuing Bank
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by such Issuing Bank for the amount of (i) such draft
so paid and (ii) any stamp taxes, fees, charges or other costs or expenses
incurred by such Issuing Bank in connection with such payment. Each such payment
shall be made to such Issuing Bank at its address for notices specified herein
in lawful money of the United States of America and in immediately available
funds.
(b) Subject to paragraph (c) immediately below, interest shall be
payable on any and all amounts remaining unpaid by the Borrower under this
subsection from the date such amounts become payable (whether at stated
maturity, by acceleration or otherwise) until payment in full at the rate which
would be payable on any outstanding ABR Loans under the Revolving Credit
Facility which were then overdue.
(c) So long as each of the conditions precedent specified in
subsection 5.2 is satisfied at such time, each drawing under any Letter of
Credit shall constitute a request by the Borrower to the Administrative Agent
for a borrowing pursuant to subsection 2.2 of ABR Loans under the Revolving
Credit Facility in an amount equal to the lesser of (i) the then aggregate
Available Revolving Credit Commitments and (ii) the amount of such drawing. The
Borrowing Date with respect to such borrowing shall be the date of such drawing.
Each Revolving Credit Lender will make the amount of its pro rata share of such
borrowing available to the Administrative Agent at its office specified in
subsection 11.2 by the close of business on such Borrowing Date (if such Lender
receives notice of such borrowing in sufficient time to fund its portion of such
borrowing on such Date, and otherwise on the next Business Day) in funds
immediately available to the Administrative Agent. Such funds will then be made
available by the Administrative Agent to the relevant Issuing Bank in
satisfaction of the Borrower's obligation to reimburse such Issuing Bank
pursuant to clause
43
(a) above. All ABR Loans deemed to be made pursuant to this paragraph (c) shall
constitute Revolving Credit Loans for all purposes of this Agreement.
3.6. Obligations Absolute. (a) The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against any Issuing Bank or any beneficiary of a
Letter of Credit.
(b) The Borrower also agrees with each Issuing Bank that such
Issuing Bank shall not be responsible for, and the Borrower's Reimbursement
Obligations under subsection 3.5(a) shall not be affected by, among other
things, (i) the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or (ii) any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or (iii) any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee.
(c) Neither Issuing Bank shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions caused by the Issuing Bank's gross negligence or willful
misconduct.
(d) The Borrower agrees that any action taken or omitted by an
Issuing Bank under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of such Issuing Bank to the Borrower.
3.7. Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the relevant Issuing Bank shall promptly
notify the Borrower of the date and amount thereof. The responsibility of any
Issuing Bank to the Borrower in connection with any draft presented for payment
under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
3.8. Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to the Administrative Agent
and each Lender that:
44
4.1 Financial Condition. (a) The consolidated balance sheets of the
Borrower and its consolidated Subsidiaries as at December 31, 1997 and December
31, 1996 and the related consolidated statements of operations, changes in
equity (deficit) and cash flows for the fiscal years ended on such dates,
reported on by Deloitte & Touche LLP, copies of which have heretofore been
furnished to each Lender, present fairly in all material respects the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such dates, and the consolidated results of their operations
and their changes in equity (deficit) and consolidated cash flows for the fiscal
years then ended. The unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at March 31, 1998 and the related unaudited
consolidated statements of operations, changes in equity (deficit) and cash
flows for the three-month period ended on such date, certified by a Responsible
Officer, copies of which have heretofore been furnished to each Lender, present
fairly in all material respects the consolidated financial condition of the
Borrower and its consolidated Subsidiaries as at such date, and the consolidated
results of their operations, their changes in equity (deficit) and their
consolidated cash flows for the three-month period then ended (subject to normal
year-end audit adjustments).
(b) The consolidated pro forma balance sheet of the Borrower and its
consolidated Subsidiaries as of March 31, 1998 (the "Pro Forma Balance Sheet"),
certified by a Responsible Officer, a copy of which has heretofore been
furnished to each Lender, presents fairly in all material respects the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as of March 31, 1998 after giving effect to the Refinancing.
(c) All financial statements referred to in the preceding paragraphs
(a) and (b), including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants or Responsible Officer, as the
case may be, and as disclosed therein and, in the case of unaudited financial
statements, except for ordinary year end audit adjustments and the absence of
footnotes thereto). Neither the Borrower nor any of its consolidated
Subsidiaries had, at the date of the Pro Forma Balance Sheet and after giving
effect to the Refinancing, any material Guarantee Obligation, contingent
liability or liability for taxes, or any long-term lease or unusual forward or
long-term commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction, except as reflected in the Pro
Forma Balance Sheet or in the notes thereto. Except as disclosed in the 1997
10-K or the Confidential Information Memorandum, during the period from December
31, 1997 to and including the date hereof there has been no sale, transfer or
other disposition by the Borrower or any of its consolidated Subsidiaries of any
material part of its business or property and no purchase or other acquisition
of any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of the Borrower and
its consolidated Subsidiaries at December 31, 1997.
4.2 No Change. Since December 31, 1997 there has been no development
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of the Borrower
and its Subsidiaries (other than any non-Domestic Subsidiary which is not a
Material Foreign
45
Subsidiary) (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has the power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation, if
applicable, and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification except to the extent that the failure to be so
qualified and in good standing could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the power and authority, and the legal right, to make, deliver
and perform the Loan Documents to which it is a party and (in the case of the
Borrower) to borrow hereunder and have the Letters of Credit issued for its
account and has taken all necessary action (in the case of the Borrower) to
authorize the borrowings and the issuance of the Letters of Credit for its
account on the terms and conditions of this Agreement and the Applications and
(in the case of each Loan Party) to authorize the execution, delivery and
performance of the Loan Documents to which it is a party. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of the Loan Documents. This Agreement has been, and each other
Loan Document will be, duly executed and delivered on behalf of the Loan Parties
party thereto. This Agreement constitutes, and each other Loan Document when
executed and delivered will constitute, a legal, valid and binding obligation of
the Loan Parties party thereto enforceable against such Loan Parties in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of the
Loan Documents, the borrowings hereunder and the use of the proceeds thereof,
after giving effect to the Refinancing, will not violate any Requirement of Law
or material Contractual Obligation of the Borrower or of any of its Subsidiaries
(other than the Existing Subordinated Indenture, subject to the actions
described in subsection 5.1(j) being taken) and will not result in, or require,
the creation or imposition of any Lien on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or Contractual
Obligation.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or (b) which could reasonably be expected to
have a Material Adverse Effect. Notwithstanding the foregoing sentence, the
Lenders acknowledge that the 1997 10-K and the Confidential Information
Memorandum make certain
46
disclosure with respect to litigation, investigation and proceedings (the
"Disclosed Litigation") by and against the Borrower and its Subsidiaries and
that the items of Disclosed Litigation, in and of themselves, as reported in the
1997 10-K and the Confidential Information Memorandum, do not constitute a
Material Adverse Effect. The Lenders reserve their rights, however, with respect
to any material adverse development or event that occurs (or as to which the
Lenders obtain knowledge) with respect to the Disclosed Litigation after the
Closing Date.
4.7 No Default. Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has good record and insurable title in fee simple to, or a valid
leasehold interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material property, and none of their
respective property is subject to any Lien except as permitted by subsection
7.3.
4.9 Intellectual Property. The Borrower and each of its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the "Intellectual
Property"). No claim has been asserted and is pending by any Person challenging
or questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Borrower know of
any valid basis for any such claim other than those claims which could not
reasonably be expected to have a Material Adverse Effect. The use of such
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of any Person, except for such claims and infringements that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
4.10 Taxes. Each of the Borrower and its Subsidiaries has filed or
caused to be filed all tax returns which, to the knowledge of the Borrower, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than those not yet delinquent and those the amount
or validity of which are currently being contested in good faith by appropriate
proceedings diligently conducted and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower or its
Subsidiaries, as the case may be); no tax Lien has been filed, and, to the
knowledge of the Borrower, no claim is being asserted, with respect to any such
tax, fee or other charge.
4.11 Federal Regulations. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U or for any purpose which
violates the provisions of the
47
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
U-1 referred to in Regulation U.
4.12 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred and is continuing on the date on which this representation
is made or deemed made with respect to any Single Employer Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen and remains in effect against the
assets of the Borrower or any Commonly Controlled Entity, as of each date on
which this representation is made or deemed made. The present value of all
accrued benefits under each Single Employer Plan (based on those assumptions
used to fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits by an amount in
excess of $25,000,000. Neither the Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in Reorganization or Insolvent.
Notwithstanding the foregoing, there shall be no breach of the representations
set forth in this subsection 4.12 unless the amount of any liability of the
Borrower or any Commonly Controlled Entity which arises or which could
reasonably be expected to arise in connection with the matters giving rise to
such breach, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
4.13 Investment Company Act; Other Regulations. The Borrower is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
4.14 Subsidiaries. Schedule II sets forth all the Subsidiaries of
the Borrower at the date hereof.
4.15 Purpose of Loans. The proceeds of the Revolving Credit Loans
and Letters of Credit shall be used by the Borrower for working capital and
general corporate purposes of the Borrower, including financing Permitted
Acquisitions and Permitted Investments. The proceeds of the Term Loans shall be
used by Borrower to fund in full the Refinancing and to pay fees and expenses in
connection therewith and the remainder of such proceeds shall be used for
general corporate purposes.
4.16 Environmental Matters. (a) To the best knowledge of the
Borrower, the facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries
48
(the "Properties") do not contain any Hazardous Materials in amounts or
concentrations which constitute or constituted a violation of any Environmental
Law except in either case insofar as such violations in the aggregate could not
reasonably be expected to have a Material Adverse Effect.
(b) To the best knowledge of the Borrower, the Properties and all
operations at the Properties are in compliance with all applicable Environmental
Laws except for instances of noncompliance that individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect, and there is
no contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the business operated by the
Borrower or any of its Subsidiaries (the "Business") which in the aggregate
could reasonably be expected to have a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries has received
any written notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does the Borrower have knowledge that any such notice will be received or is
being threatened except insofar as such notice or threatened notice, or any
aggregation thereof, does not involve a matter or matters that could reasonably
be expected to have a Material Adverse Effect.
(d) To the best knowledge of the Borrower, no Hazardous Materials
have been transported or disposed of from the Properties in violation of any
Environmental Law, nor have any Hazardous Materials been generated, treated,
stored or disposed of at, on or under any of the Properties in violation of any
applicable Environmental Law except insofar as any such violation or liability
referred to in this paragraph, or any aggregation thereof, could not reasonably
be expected to have a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be named as
a party with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business except insofar
as such proceeding, action, decree, order or other requirement, or any
aggregation thereof, could not reasonably be expected to have a Material Adverse
Effect.
(f) To the best knowledge of the Borrower, there has been no release
or threat of release of Hazardous Materials at or from the Properties, or
arising from or related to the operations of the Borrower or any Subsidiary in
connection with the Properties or otherwise in connection with the Business, in
violation of or in amounts or in a manner that could reasonably give rise to
liability under Environmental Laws except insofar as any such violation or
liability referred to in this paragraph, or any aggregation thereof, could not
reasonably be expected to have a Material Adverse Effect.
49
(g) Notwithstanding the foregoing provisions of this subsection
4.16, the Lenders acknowledge that the 1997 10-K and the Confidential
Information Memorandum make certain disclosure with respect to environmental
matters (the "Disclosed Environmental Matters") relating to the Borrower and its
Subsidiaries and that the items of Disclosed Environmental Matters, in and of
themselves, as reported in the 1997 10-K and the Confidential Information
Memorandum, do not constitute a Material Adverse Effect. The Lenders reserve
their rights, however, with respect to any material adverse development or event
that occurs (or as to which the Lenders obtain knowledge) with respect to the
Disclosed Environmental Matters after the Closing Date.
4.17 Soda Ash Partners. Except as set forth in the Soda Ash
Partnership Agreement and the Soda Ash Parent Agreement, there are no
outstanding subscriptions, warrants, calls, options, rights (including
unsatisfied preemptive rights), commitments or agreements to which Soda Ash
Partners or its Affiliates are bound that permit or entitle any Person to
purchase or otherwise receive from or to be issued any partnership interest in
Soda Ash Partners or any security or obligation of any kind convertible into any
shares of partnership capital of Soda Ash Partners, nor is Soda Ash Partners
subject to any obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any shares of its partnership capital.
4.18 Solvency. The Borrower, individually and together with its
Subsidiaries, is Solvent.
4.19 Labor Matters. There are no strikes or other labor disputes
against the Borrower or any of its Subsidiaries pending or, to the knowledge of
the Borrower, threatened that in the aggregate could reasonably be expected to
have a Material Adverse Effect. Hours worked by and payment made to employees of
the Borrower and its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Requirement of Law dealing with such
matters that in the aggregate could reasonably be expected to have a Material
Adverse Effect. All payments due from the Borrower or any of its Subsidiaries on
account of employee health and welfare insurance that in the aggregate could
reasonably be expected to have a Material Adverse Effect if not paid have been
paid or accrued as a liability on the books of the Borrower or the relevant
Subsidiary.
4.20 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
to the Administrative Agent or the Lenders or any of them, by or on behalf of
any Loan Party for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished (or, in the case of the
Confidential Information Memorandum, as of the date of this Agreement), any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained herein or therein not
misleading. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions
believed by management of the Borrower to be reasonable at the time made, it
being recognized by the Lenders that such financial information as it relates to
50
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. There is no fact known
to any Loan Party that could reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Confidential Information Memorandum or in any other documents,
certificates and statements furnished to the Administrative Agent and the
Lenders for use in connection with the transactions contemplated hereby and by
the other Loan Documents.
4.21 Security Documents. The Guarantee and Pledge Agreement is
effective to create in favor of the Administrative Agent, for the benefit of the
Lenders, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. In the case of the Pledged Stock
described in the Guarantee and Pledge Agreement, when stock certificates
representing such Pledged Stock are delivered to the Administrative Agent, and
in the case of the other Collateral described in the Guarantee and Pledge
Agreement, when financing statements in appropriate form are filed in the
offices specified in the Guarantee and Pledge Agreement, the Guarantee and
Pledge Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
Collateral and the proceeds thereof, as security for the Obligations (as defined
in the Guarantee and Pledge Agreement), in each case prior and superior in right
to any other Person.
4.22 Year 2000. Any reprogramming required to permit the proper
functioning, in and following the year 2000, of (i) the Borrower's and its
Subsidiaries' computer systems and (ii) equipment containing embedded microchips
(including systems and equipment supplied by others) and the testing of all such
systems and equipment, as so reprogrammed, are expected by the Borrower to be
completed by April 1, 1999. The cost to the Borrower of such reprogramming and
testing and of the reasonably foreseeable consequences of year 2000 to the
Borrower (including, without limitation, reprogramming errors) will not result
in a Default or a Material Adverse Effect. Except for such of the reprogramming
referred to in the preceding sentence as may be necessary, the computer and
management information systems of the Borrower and its Subsidiaries are and,
with ordinary course upgrading and maintenance, will continue for the term of
this Agreement to be able to interpret dates after December 31, 1999.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extensions of Credit. The effectiveness of
this Agreement is subject to the satisfaction of the following conditions
precedent:
(a) Loan Documents. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of the
Borrower, (ii) the Guarantee and Pledge Agreement, executed and delivered
by a duly authorized officer of each Loan Party, and (iii) for the account
of each relevant Lender, Notes
51
conforming to the requirements hereof and executed by a duly authorized
officer of the Borrower.
(b) Related Agreements. The Administrative Agent shall have
received, with a copy for each Lender, true and correct copies, certified
as to authenticity by the Borrower, of the Soda Ash Partnership Agreement,
the Management Agreement and such other documents or instruments as may be
reasonably requested by the Administrative Agent, including, without
limitation, a copy of any debt instrument, security agreement or other
material contract to which the Borrower or its Subsidiaries may be a
party.
(c) Corporate Proceedings of each Loan Party. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy of
the resolutions (or comparable authorizing document), in form and
substance satisfactory to the Administrative Agent, of the Board of
Directors (or comparable governing body) of each Loan Party authorizing
(i) the execution, delivery and performance of the Loan Documents to which
it is a party, and (ii) the granting by it of the Liens created pursuant
to the Security Documents, certified by the Secretary or an Assistant
Secretary of such Loan Party as of the Closing Date, which certificate
shall be in form and substance satisfactory to the Administrative Agent
and shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded.
(d) Loan Party Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate of
each Loan Party, dated the Closing Date, as to the incumbency and
signature of the officers of such Loan Party executing any Loan Document
satisfactory in form and substance to the Administrative Agent, executed
by the President or any Vice President and the Secretary or any Assistant
Secretary of such Loan Party.
(e) Fees. The Administrative Agent, the Syndicate Agent, the
Documentation Agent and the Lenders shall have received all fees to be
received from, or reimbursed to them by, the Borrower on the Closing Date.
(f) Legal Opinions. The Administrative Agent shall have received,
with a counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Xxxxxxx, Procter & Xxxx LLP,
special counsel to the Borrower and the other Loan Parties,
substantially in the form of Exhibit A-1; and
(ii) the executed legal opinion of Xxxxxxx X. Xxxxxx, General
Counsel of GenChem, substantially in the form of Exhibit A-2.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
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(g) Actions to Perfect Liens. The Administrative Agent shall have
received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other actions, including, without
limitation, the filing of duly executed financing statements on form
UCC-1, the payment of all applicable filing and recording fees and
expenses and the delivery of stock certificates, necessary or, in the
opinion of the Administrative Agent, desirable to perfect the Liens
created by the Security Documents shall have been completed.
(h) Lien Searches. The Administrative Agent shall have received the
results of a recent search by a Person satisfactory to the Administrative
Agent of the Uniform Commercial Code, judgment and tax lien filings which
may have been filed with respect to personal property of the Borrower and
its Subsidiaries, and such search shall reveal no Liens other than Liens
permitted by subsection 7.3 or otherwise satisfactory to the Lenders.
(i) Existing Credit Agreements. The Existing Credit Agreements shall
be repaid in full and terminated with the net proceeds of the Term Loans,
and all documents necessary to terminate all liens securing the Existing
Credit Agreements shall have been delivered to the Administrative Agent.
(j) Existing Subordinated Notes. The Administrative Agent shall be
reasonably satisfied that the Existing Subordinated Notes will be redeemed
in full on or prior to August 31, 1998, and the Borrower shall have
deposited with the trustee under the Existing Subordinated Indenture an
amount of cash or cash equivalents equal to the amount required to redeem
the Existing Subordinated Notes in full on or prior to August 31, 1998.
(k) Financial Statements. The Lenders shall have received the
audited and unaudited consolidated financial statements of the Borrower
referred to in subsection 4.1.
(l) Pro Forma Balance Sheet. The Lenders shall have received the Pro
Forma Balance Sheet, which shall be satisfactory to the Lenders.
(m) Solvency. The Administrative Agent shall have received a
certificate from the chief financial officer of the Borrower, in form and
substance satisfactory to the Lenders, as to the Solvency of the Borrower
after giving effect to the Refinancing and the other transactions
contemplated hereby.
(n) Business Plan. The Lenders shall have received a detailed
business plan for each fiscal year from 1998 through and including 2002
and a written analysis of the business and prospects of the Borrower and
its Subsidiaries, all in form and substance reasonably satisfactory to the
Lenders.
53
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender and each Issuing Bank to make any extension of credit requested to be
made by it on any date (including, without limitation, its initial extension of
credit) is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower and the other Loan Parties in or pursuant
to the Loan Documents shall be true and correct in all material respects
on and as of such date as if made on and as of such date (except for
changes permitted by this Agreement).
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing by the Borrower hereunder, each issuance of a Letter of Credit
hereunder and the effectiveness of this Agreement under subsection 5.1, shall
constitute a representation and warranty by the Borrower as of the date of such
extension of credit or such initial effectiveness under subsection 5.1, as the
case may be, that the conditions contained in this subsection 5.2 have been
satisfied. No event shall be deemed an extension of credit unless such event
results in an increase in the total principal amount of Loans outstanding or in
the total face amount of Letters of Credit outstanding.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain
in effect, any Note or any Letter of Credit remains outstanding and unpaid or
any other amount is owing to any Lender or the Administrative Agent hereunder,
the Borrower shall and (except in the case of delivery of financial information,
reports and notices) shall cause each of its Subsidiaries to (it being agreed
that the Tranche B Term Loan Facility shall only be entitled to the benefits of
subsections 6.1, 6.2(a) and clause (iii) of subsection 6.2(b), 6.4, 6.5, 6.8,
6.9, 6.10 and 6.11 (collectively, the "Shared Affirmative Covenants") and shall
not be entitled to the benefits of or any rights under any other provisions of
this Section 6):
6.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and the consolidated balance sheet of
GenChem as at the end of such year and the related consolidated statements
of operations, changes in equity (deficit) and cash flows for such year,
setting forth in each case in compare form the figures for the previous
year, and, in the case of the Borrower, reported on, without a "going
concern" or like qualification or exception, or qualification arising out
of the scope of the audit, by Deloitte & Touche LLP or other independent
certified public accountants of nationally recognized standing; and
54
(b) as soon as available, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries and the unaudited consolidated
balance sheet of GenChem as at the end of such quarter and the related
unaudited consolidated statements of operations, changes in equity
(deficit) and cash flows for such quarter and the portion of the fiscal
year through the end of such quarter, setting forth in each case in
compare form the figures for the previous year, certified by a Responsible
Officer as being fairly stated in all material respects (subject to normal
year-end audit adjustments) and as having been prepared in accordance with
GAAP applied consistently throughout the periods reflected therein and
with prior periods (except as approved by such officer and disclosed
therein).
All such financial statements shall present fairly in all material respects the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at the applicable dates, and the consolidated results of their
operations, their changes in equity (deficit) and their consolidated cash flows
for the periods reflected therein, and shall be prepared in reasonable detail
and in accordance with GAAP applied consistently throughout the periods
reflected therein and with prior periods (except as approved by such accountants
or officer, as the case may be, and disclosed therein).
6.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor such accountants
obtained no knowledge of any Default or Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and 6.1(b), a Compliance Certificate,
executed by a Responsible Officer, (i) demonstrating compliance with the
covenants contained in subsections 7.1, 7.2(k), 7.2(n), 7.2(p), 7.6, 7.8,
7.9, 7.10(g), 7.10(i) and 7.11(a), (ii) setting forth calculations of the
Cash Flow Coverage Ratio, the Leverage Ratio and the Senior Leverage Ratio
as of the last day of the most recent fiscal quarter covered by such
financial statements and (iii) stating that, to the best of such
Responsible Officer's knowledge, the Borrower during such period has
observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and in the other
Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate;
(c) within five days after the same are filed, copies of all
financial statements and reports which the Borrower may make to, or file
with, the Securities and Exchange Commission or any successor or analogous
Governmental Authority; and promptly, all press releases and other written
statements made available generally by
55
the Borrower or any of its Subsidiaries to the public concerning
material developments in the business of the Borrower or any of its
Subsidiaries;
(d) promptly upon receipt thereof, copies of all reports submitted
to the Borrower by its independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of the Borrower or GenChem made by such accountants, including,
without limitation, the comment letter submitted by such accountants to
management in connection with their annual audit; and the Borrower agrees
to obtain such a letter in connection with each of its annual audits; and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
diligently conducted and reserves in conformity with GAAP with respect thereto
have been provided on the books of the Borrower or its Subsidiaries, as the case
may be.
6.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business primarily of the same general types as now conducted by it
and preserve, renew and keep in full force and effect its corporate existence;
and take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business, except as
otherwise permitted pursuant to subsection 7.5, and comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to
maintain such rights, privileges and franchises and to comply with Contractual
Obligations and Requirements of Law could not, in the aggregate, be reasonably
expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. Keep all material property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance (to
the extent available at commercially reasonable rates) on all its property in at
least such amounts and against at least such risks as are usually insured
against in the same general area by companies engaged in the same or a similar
business; and furnish to each Lender, upon written request, full information as
to the insurance carried.
6.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender upon reasonable prior notice and at reasonable
times to visit and inspect any of its properties and examine and make abstracts
from any of its books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and
56
other condition of the Borrower and its Subsidiaries with officers and employees
of the Borrower and its Subsidiaries and with its independent certified public
accountants (each Lender will, in accordance with subsection 11.15, maintain the
confidentiality of all information obtained by it pursuant to this subsection
6.6).
6.7 Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any default or event of default under any Contractual Obligation
of the Borrower or any of its Subsidiaries which if not cured could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation, investigation or proceeding affecting the
Borrower or any of its Subsidiaries (i) which is reasonably likely to
involve a payment of $10,000,000 or more not covered by insurance, (ii) in
which injunctive or similar relief reasonably likely to have a Material
Adverse Effect is reasonably likely to be obtained or (iii) which if not
cured or if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i)
the occurrence or expected occurrence of any Reportable Event with respect
to any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal
from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or the Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Plan; and
(e) any development or event which could reasonably be expected to
have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
6.8 Environmental Laws. (a) Comply with, and ensure compliance by
all tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply with and maintain, and ensure that all tenants and subtenants
obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, except for such instances of noncompliance that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
57
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, except for instances in which the obligation to comply or to conduct such
investigations, studies, sampling, testing or remedial actions is being
contested in good faith before a court or administrative body of competent
jurisdiction or in which the failure to so comply or to conduct such activities
in the aggregate could not reasonably be expected to have a Material Adverse
Effect.
6.9 Further Assurances. At any time and from time to time, upon the
Administrative Agent's request and at the expense of the Borrower, promptly and
duly execute and deliver or cause to be executed and delivered any and all
further instruments and documents and take such further action as the
Administrative Agent may reasonably request to effect the purpose of the
Security Documents, including, without limitation, the filing of any financing
or continuation statements under the Uniform Commercial Code in effect in any
jurisdiction.
6.10 Additional Collateral. (a) With respect to any new Subsidiary
(other than a Foreign Subsidiary) created or acquired after the Closing Date
(which, for the purposes of this paragraph, shall include any existing
Subsidiary that ceases to be a Foreign Subsidiary), by the Borrower or any of
its Subsidiaries, promptly (i) execute and deliver to the Administrative Agent
such amendments to the Guarantee and Pledge Agreement as the Administrative
Agent deems necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest in the
Capital Stock of such new Subsidiary which is owned by the Borrower or any of
its Subsidiaries, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a
party to the Guarantee and Pledge Agreement and (B) to take such actions
necessary or advisable to grant to the Administrative Agent for the benefit of
the Lenders a perfected first priority security interest in the Collateral
described in the Guarantee and Pledge Agreement with respect to such new
Subsidiary, including, without limitation, the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Pledge Agreement or by law or as may be requested by the Administrative
Agent, and (iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be substantially in the forms attached hereto as Exhibits
A-1 and A-2.
(b) With respect to any new Foreign Subsidiary created or acquired
after the Closing Date by the Borrower or any of its Subsidiary Guarantors,
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Guarantee and Pledge Agreement as the Administrative Agent deems necessary
or advisable in order to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest in the Capital Stock
of such new Foreign Subsidiary which is owned by the Borrower or any of its
Subsidiaries (provided that in no event shall more than 65% of the total
outstanding Capital Stock of any such new Subsidiary be required to be so
pledged), (ii) deliver to the
58
Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers, in blank, executed and delivered by a duly authorized
officer of the Borrower or such Subsidiary, as the case may be, and take such
other action as may be necessary or, in the opinion of the Administrative Agent,
desirable to perfect the Lien of the Administrative Agent thereon, and (iii) if
requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(c) With respect to any new Capital Stock created or acquired after
the Closing Date by the Borrower or any of its Subsidiaries in connection with a
transaction described in the last sentence of subsection 7.6, promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee
and Pledge Agreement as the Administrative Agent deems necessary or advisable in
order to grant to the Administrative Agent, for the benefit of the Lenders, a
perfected first priority security interest in such Capital Stock (provided that
in no event shall more than 65% of the total outstanding Capital Stock of any
new Subsidiary be required to be so pledged if such Subsidiary is a Foreign
Subsidiary), (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, and take such other action as may be necessary
or, in the opinion of the Administrative Agent, desirable to perfect the Lien of
the Administrative Agent thereon, and (iii) if requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
6.11 Existing Subordinated Notes. Cause the Existing Subordinated
Notes to be redeemed in full on or prior to August 31, 1998 and notify the
Administrative Agent of such redemption promptly following the occurrence
thereof.
SECTION 7. NEGATIVE COVENANTS APPLICABLE TO ALL COMMITMENTS AND
LOANS OTHER THAN TRANCHE B TERM LOAN COMMITMENTS AND
TRANCHE B LOANS
The Borrower hereby agrees that, so long as the Revolving Credit
Commitments and the Tranche A Term Loan Commitments remain in effect, any
Revolving Credit Loans, Tranche A Term Loans, any Letter of Credit or
Reimbursement Obligations remains outstanding and unpaid or any other amount is
owing to any Lender or the Administrative Agent hereunder (other than Tranche B
Term Loans) the Borrower shall not, and (except with respect to subsection 7.1)
shall not permit any of its Subsidiaries to, directly or indirectly; provided,
however, that the Tranche B Term Loan Lenders shall not have the benefits of the
covenants contained in Section 7, and such covenants shall not apply to Tranche
B Term Loans:
59
7.1 Financial Condition Covenants.
(a) Senior Leverage Ratio. Permit the Senior Leverage Ratio as at
the last day of any fiscal quarter of the Borrower to be greater than
3.75:1:00.
(b) Leverage Ratio. Permit the Leverage Ratio as at the last day of
any fiscal quarter of the Borrower to be greater than 5.00:1.00.
(c) Cash Flow Coverage Ratio. Permit the Cash Flow Coverage Ratio as
at the last day of any fiscal quarter of the Borrower to be less than
2.50:1.00.
7.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement;
(b) Indebtedness of GenChem under the Existing Subordinated Notes
prior to August 31, 1998 until redemption in full thereof;
(c) Indebtedness of GC Canada under the GC Canada Working Capital
Facility in an aggregate principal amount not to exceed C$15,000,000;
(d) Indebtedness of GC Canada under the GC Canada Senior Notes in an
aggregate principal amount not to exceed $52,000,000;
(e) Indebtedness of up to C$l0,000,000 at any time of Sandco under
the Sandco Credit Facility;
(f) Indebtedness of up to $10,000,000 of Xxxxxx Ireland to fund
Xxxxxx Ireland (the "Xxxxxx Ireland Credit Facility");
(g) Indebtedness of the Borrower to any Subsidiary and of any wholly
owned Subsidiary to the Borrower or any other Subsidiary; provided that
any such Indebtedness of a wholly owned Subsidiary to the Borrower shall
be evidenced by a non-negotiable senior promissory note having terms
reasonably satisfactory to the Administrative Agent;
(h) Indebtedness of a Person which becomes a Subsidiary after the
date hereof, provided that (i) such Indebtedness existed at the time such
corporation became a Subsidiary and was not created in anticipation
thereof and (ii) immediately after giving effect to the acquisition of
such Person by the Borrower, no Default or Event of Default shall have
occurred and be continuing;
(i) (i) Interest Rate Protection Obligations of the Borrower entered
into to hedge actual interest rate exposure and not for speculative
purposes to the extent that the notional principal amount thereof does not
exceed the amount of Indebtedness
60
being hedged, (ii) Interest Rate Protection Obligations of GC Canada
entered into to hedge actual interest rate exposure under the GC Canada
Senior Notes and not for speculative purposes to the extent that the
notional principal amount thereof does not exceed the amount of
Indebtedness being hedged and (iii) Guarantee Obligations by Subsidiaries
of the Borrower in respect of the Borrower's obligations described in the
preceding clause (i) as long as the aggregate amount of such Guarantee
Obligations (as measured by the relevant swap termination values) does not
exceed $5,000,000;
(j) Indebtedness under Currency Agreements; provided that in the
case of Currency Agreements which relate to Indebtedness, such Currency
Agreements do not increase the Indebtedness of the Borrower outstanding
other than as a result of fluctuations in foreign currency exchange rates
or by reason of fees, indemnities and compensation payable thereunder;
(k) Indebtedness of the Borrower or any of its Subsidiaries (other
than such Indebtedness permitted by subsection 7.2(p)) incurred to finance
the acquisition of fixed or capital assets (whether pursuant to a loan, a
Financing Lease or otherwise) in an aggregate principal amount not
exceeding as to the Borrower and its Subsidiaries $30,000,000 at any time
outstanding;
(l) Indebtedness of the Borrower or any of its Subsidiaries at any
time outstanding incurred in the ordinary course of business in respect of
reclamation bonds, performance bonds, letters of credit and surety bonds
provided by the Borrower or any of its Subsidiaries required by and in
compliance with the applicable statutes or laws of the relevant
jurisdiction;
(m) Indebtedness outstanding on the date hereof and listed on
Schedule III;
(n) Indebtedness of the Borrower or any of its Subsidiaries in an
aggregate principal amount not to exceed $20,000,000 at any time
outstanding;
(o) any Indebtedness ("Refinancing Indebtedness") incurred in
connection with the extension, renewal, substitution, refinancing or
replacement (collectively, a "Refinancing Transaction") of any
Indebtedness referred to in clauses (c) through (m) above and clause (p)
below; provided that (i) such Refinancing Transaction does not result in
an increase in the aggregate principal amount of the Indebtedness being
extended, renewed, substituted, refinanced or replaced, or an increase in
amortization payments payable by the Borrower or its Subsidiaries at any
time prior to June 30, 2006, (ii) such Refinancing Indebtedness contains
terms which, taken as a whole, are substantially similar to the terms of
the Indebtedness being extended, renewed, substituted, refinanced or
replaced and (iii) the only obligors on the applicable Refinancing
Indebtedness are the obligors on the Indebtedness being refinanced unless
otherwise permitted by subsections 7.2 and 7.4; and
(p) other Indebtedness of Subsidiaries of the Borrower as long as,
at the time of the incurrence of such Indebtedness, the Borrower delivers
to the Administrative
61
Agent a certificate from its chief financial officer demonstrating that
it would be in compliance with subsection 7.1 for the most recent period
for which a Compliance Certificate has been delivered pursuant to
subsection 6.2(b) after giving effect to the incurrence of such
Indebtedness (and the application of the proceeds thereof including the
effects of acquired businesses and assets) and recalculating the Senior
Leverage Ratio as if such Indebtedness had been incurred on the first day
of such period and remained outstanding during such period.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings diligently conducted, provided that
adequate reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which secure amounts not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings
diligently conducted or which do not exceed $1,000,000 in the aggregate at
any time;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which exist on
the date hereof or which, in the aggregate, are not substantial in amount
and which do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct
of the business of the Borrower or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule III,
provided that no such Lien is spread to cover any additional property
after the Closing Date and that the amount of Indebtedness secured thereby
is not increased;
(g) Liens securing Indebtedness of the Borrower and its Subsidiaries
permitted by subsection 7.2(k) incurred in the ordinary course of business
to finance the acquisition of fixed or capital assets, provided that (i)
such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at any
time encumber any property other than the property financed
62
by such Indebtedness, (iii) the amount of Indebtedness secured thereby is
not increased and (iv) the principal amount of Indebtedness secured by
any such Lien shall at no time exceed 80% of the fair value (as
determined in good faith by the Borrower and evidenced by a certificate
of a Responsible Officer) of such property at the time it was acquired;
(h) Liens on the property or assets of a corporation which becomes a
Subsidiary after the date hereof securing Indebtedness permitted by
subsection 7.2(h), provided that (i) such Liens existed at the time such
corporation became a Subsidiary and were not created in anticipation
thereof (ii) any such Lien is not spread to cover any property or assets
of such corporation after the time such corporation becomes a Subsidiary
(except after-acquired property to the extent such Lien includes
after-acquired property) and (iii) the amount of Indebtedness secured
thereby is not increased;
(i) (i) Liens on the assets of GC Canada and its Subsidiaries which
secure obligations of GC Canada under the GC Canada Working Capital
Facility, (ii) Liens on the assets of Sandco and its Subsidiaries which
secure obligations of Sandco under the Sandco Credit Facility and (iii)
Liens on the assets of Xxxxxx Ireland and its Subsidiaries which secure
obligations of Xxxxxx Ireland under the Xxxxxx Ireland Credit Facility;
(j) Liens created pursuant to the Security Documents;
(k) Liens securing Refinancing Indebtedness permitted by subsection
7.2(o) provided that (i) such Liens cover only the property securing the
Indebtedness being refinanced and (ii) the principal amount of
Indebtedness secured thereby is not increased; and
(l) other Liens (other than on property constituting Collateral)
securing up to $15,000,000 of obligations.
7.4 Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation, unless such obligation would be
permitted to be incurred as Indebtedness of such Person pursuant to subsection
7.2.
7.5 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any one or more
wholly owned Domestic Subsidiaries of the Borrower (provided that the
wholly owned Domestic Subsidiary or Subsidiaries shall be the continuing
or surviving corporation);
63
(b) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to the Borrower or any other wholly owned Subsidiary of the
Borrower; and
(c) in order to consummate an acquisition permitted by subsection
7.10(g), the Borrower or a Subsidiary may be merged with the acquired
company as long as the surviving company is (i) the Borrower (if the
Borrower consummates any such transaction) or (ii) otherwise, a Subsidiary
of the Borrower.
7.6 Limitation on Sale of Assets. Consummate an Asset Sale unless
(i) the Borrower (or applicable Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (as determined in good faith by the Borrower and evidenced by a
certificate of a Responsible Officer) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor received by the Borrower or such Subsidiary is in the form of cash;
provided that the amount of (x) any liabilities (as shown on the Borrower's or
such Subsidiary's most recent balance sheet) of the Borrower or any Subsidiary
(other than contingent liabilities and liabilities that are by their terms
subordinated to the Obligations or any guarantee thereof) that are assumed by
the transferee of any such assets pursuant to a customary novation agreement
that releases the Borrower or such Subsidiary from further liability and (y) any
securities, notes or other obligations received by the Borrower or any such
Subsidiary from such transferee that are converted by the Borrower or such
Subsidiary into cash (to the extent of the cash received) within 90 days
following such receipt, shall be deemed to be cash for purposes of this
provision. Notwithstanding the preceding clause (ii), the Borrower and its
Subsidiaries may consummate one or more Asset Sales by making contributions of
assets to joint ventures in exchange for consideration consisting of Capital
Stock of such joint ventures engaged in businesses described in subsection 7.16
as long as (a) such Capital Stock is pledged to the Lenders in accordance with
subsection 6.10(c) and (b) such contributions are permitted by subsection 7.10.
7.7 Reserved.
7.8 Limitation on Restricted Payments. (a)(i) Declare or pay any
dividend or make any distribution on, or purchase, redeem or otherwise acquire
or retire for value, or make or permit any of its Subsidiaries to declare or pay
any dividend or make any distribution on or payment on account of the purchase,
redemption, defeasance or other acquisition or retirement for value of, any
Capital Stock of the Borrower or of any Affiliate of the Borrower (other than a
wholly owned Subsidiary of the Borrower), other than through the issuance solely
of the Borrower's own Capital Stock (other than Redeemable Stock) or (ii) make
any principal payment on, or redeem, repurchase or defease, or otherwise acquire
or retire for value, or permit any of its Subsidiaries to, directly or
indirectly, make any principal payment on, or redeem, repurchase or defease, or
otherwise acquire or retire for value, prior to any scheduled principal payment,
scheduled sinking fund payment or scheduled maturity, any Indebtedness or
Guarantee Obligations which are subordinated to the Obligations (or, if
applicable, any guarantee thereof) (other than as permitted by subsection 7.11),
(iii) make, or permit any of its Subsidiaries to make, any Restricted Investment
or (iv) make or commit to
64
make Capital Expenditures in excess of those permitted by clause (a) of
subsection 7.9 (such payments or any other actions described in clauses (i),
(ii), (iii) and (iv) are collectively referred to as "Restricted Payments")
unless at the time of and after giving effect to the proposed Restricted
Payment, (A) no Default or Event of Default (including, without limitation, any
Default or Event of Default under subsection 7.1(c)) shall have occurred and be
continuing; and (B) the aggregate amount of all Restricted Payments made after
the date of this Agreement shall not exceed the sum of (1) (a) the aggregate Net
Cash Proceeds received by the Borrower from the issuance or sale (other than to
a Subsidiary or an ESOP) after April 1, 1998 of shares of its Capital Stock
(excluding Redeemable Stock) plus (b) the aggregate Net Cash Proceeds received
by the Borrower from the issuance or sale (other than to a Subsidiary or an
ESOP) after the Closing Date of shares of its Capital Stock, plus (2) the
aggregate net proceeds received by the Borrower from the issuance or sale (other
than to a Subsidiary or an ESOP) after April 1, 1998 of any debt securities or
Redeemable Stock that have been converted into or exchanged for Capital Stock
(excluding Redeemable Stock) of the Borrower, plus (3) Qualifying ESOP
Purchases, plus (4) the lesser of (X) 50% of the Consolidated Adjusted Net
Income (or, in the case of a deficit Consolidated Adjusted Net Income, minus
100% of such deficit) of the Borrower accrued on a cumulative basis for the
period commencing on April 1, 1998 to the last day of the fiscal quarter
immediately preceding the date of the proposed Restricted Payment and (Y) 50% of
the Consolidated Cash Flow (or, in the case of a deficit Consolidated Cash Flow,
minus 100% of such deficit Consolidated Cash Flow) of the Borrower accrued on a
cumulative basis for the period commencing on April 1, 1998 to the last day of
the fiscal quarter immediately preceding the date of the proposed Restricted
Payment plus (5) $50,000,000.
For purposes of this subsection 7.8, the "net proceeds" from the
issuance of shares of Capital Stock of the Borrower issued upon conversion or
exchange of debt securities or Redeemable Stock shall be deemed to be the net
book value of such debt securities or Redeemable Stock at the date of conversion
(plus the additional amount required to be paid upon such conversion, if any)
less any cash payment made by the Borrower on account of fractional shares. For
purposes of this paragraph, the "net book value" of a security shall be the
amount received by the Borrower on the issuance of such security, as adjusted in
accordance with GAAP on the books of the Borrower to the date of conversion or
exchange. The foregoing shall not be interpreted to limit the authority of the
Board of Directors of the Borrower, as set forth above, to determine the value
of other securities of the Borrower or other property received as net proceeds.
(b) Notwithstanding anything in subsection 7.8(a) to the contrary,
the following shall not be included in the calculation of the aggregate amount
of Restricted Payments made after the date of this Agreement: (1) the
redemption, repurchase or other acquisition or retirement of any shares of any
class of Capital Stock of the Borrower or of any Subsidiary of the Borrower in
exchange for (including any such exchange pursuant to the exercise of a
conversion right or privilege in connection with which cash is paid in lieu of
the issuance of fractional shares or scrip), or out of the proceeds of a
substantially concurrent issue and sale (other than to a Subsidiary or an ESOP)
of, other shares of Capital Stock (other than Redeemable Stock) of the Borrower;
(2) to the extent otherwise permitted pursuant to this Agreement, the purchase
or redemption of subordinated Indebtedness made in exchange
65
for, or out of the proceeds of a substantially concurrent issue and sale (other
than to a Subsidiary or an ESOP) of, other subordinated Indebtedness which
(A) is subordinated to the Loans and all other obligations of the Borrower
hereunder to at least the same extent as the subordinated Indebtedness being
purchased or redeemed and (B) does not require any increase in amortization
payments payable by the Borrower at any time prior to June 30, 2006; (3)
payments by Soda Ash Partners to the general partners of Soda Ash Partners under
the terms of the Soda Ash Partnership Agreement; (4) payments by the Borrower
pursuant to and in accordance with the Management Agreement; provided, however,
that no such payments by the Borrower may be made pursuant to and in accordance
with the Management Agreement if a Default or Event of Default shall have
occurred and be continuing; (5) payments by the Borrower pursuant to its equity
incentive plans to the extent such payments are reflected as expenses in the
calculation of Consolidated Net Income; (6) the payment of any dividend by a
Subsidiary of the Borrower to the holders of its common Equity Interests on a
pro rata basis; (7) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Borrower or any Subsidiary
of the Borrower held by any member of the Borrower's (or any of its
Subsidiaries') management, consultants or advisors pursuant to any management
equity subscription agreement or stock option agreement in effect as of the
Closing Date; provided that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests shall not exceed $1,000,000 in
any twelve-month period and no Default or Event of Default shall have occurred
and be continuing immediately after such transaction; and (8) payments of any
amounts to an ESOP or other stock plan for employees in an amount not to exceed
$1,000,000. Solely for purposes of any calculation that is required to be made
pursuant to this covenant within 60 days after the declaration of a dividend or
other distribution in respect of Capital Stock by the Borrower or any of its
Subsidiaries, such dividend or other distribution in respect of Capital Stock
shall be deemed to be paid at the date of declaration, and the subsequent
payment of such dividend or other distribution in respect of Capital Stock
during such 60-day period shall not be treated as an additional Restricted
Payment; provided that no such dividend may be paid or distribution made if a
Default or an Event of Default has occurred and is continuing or would result
therefrom.
7.9 Limitation on Capital Expenditures. Make or commit to make (by
way of the acquisition of securities of a Person or otherwise) any expenditure
in respect of the purchase or other acquisition of fixed or capital assets
(excluding any such asset acquired in connection with normal replacement and
maintenance programs properly charged to current operations) ("Capital
Expenditures") except for expenditures in the ordinary course of business not
exceeding, in the aggregate for the Borrower and its Subsidiaries (a)
$80,000,000 during any fiscal year of the Borrower (plus, beginning with the
1999 fiscal year, the excess, if any, of $80,000,000 over the amount of Capital
Expenditures made in the preceding fiscal year) plus (b) in any fiscal year of
the Borrower the amount of additional Capital Expenditures which the Borrower
and its Subsidiaries are permitted to make and commit to make pursuant to
subsection 7.8.
7.10 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes,
66
debentures or other securities of or any assets constituting a business unit of,
or make any other investment in, any Person (each of the foregoing an
"Investment"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash and Cash Equivalents;
(c) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business;
(d) (i) Investments of the Borrower and its Subsidiaries in
Subsidiaries of the Borrower as such investments are in effect on the date
hereof and (ii) loans and advances by Subsidiaries of the Borrower to the
Borrower;
(e) additional Investments by the Borrower or by its Subsidiaries in
wholly owned existing Subsidiaries of the Borrower;
(f) Investments in the Capital Stock or the assets of Soda Ash
Partners; provided that at the time of the making of such Investment no
Default or Event of Default shall have occurred and be continuing or shall
result therefrom;
(g) Investments consisting of the acquisition of all or
substantially all of the assets of, or Capital Stock of, a Person or
division or line of business of a Person if immediately after giving
effect thereto (i) no Default or Event of Default shall have occurred and
be continuing or would result therefrom, (ii) the Borrower shall be in
compliance, on a pro forma basis after giving effect to such acquisition,
with the covenants contained in subsection 7.1 recomputed as at the last
day of the most recently ended fiscal quarter of the Borrower as if such
acquisition had occurred on the first day of each relevant period for
testing such compliance, and the Borrower shall have delivered to the
Administrative Agent, a certificate of its chief financial officer to such
effect accompanied by all relevant financial information for such
acquisition and (iii) if such acquisition is of assets other than Capital
Stock, the acquiring Person shall be a Grantor under the Guarantee and
Pledge Agreement; provided that no acquisition may be made of the Capital
Stock of any public company unless the Board of Directors (or other
governing body) of such company approves such acquisition at the time it
is commenced;
(h) Capital Expenditures made pursuant to and in accordance with
subsection 7.9;
(i) additional Investments not to exceed $50,000,000 in the
aggregate if immediately after giving effect thereto (i) no Default or
Event of Default shall have occurred and be continuing or would result
therefrom, and (ii) the Borrower shall be in compliance on a pro forma
basis after giving effect to such Investment, with the covenants contained
in subsection 7.1 recomputed as at the last day of the most recently ended
fiscal quarter of the Borrower as if such Investment had occurred on
67
the first day of each relevant period for testing such compliance, and the
Borrower shall have delivered to the Administrative Agent, a certificate
of its chief financial officer to such effect accompanied by all relevant
financial information for such acquisition; provided that no acquisition
may be made of the Capital Stock of any public company unless the Board of
Directors (or other governing body) of such company approves such
acquisition at the time it is commenced; and
(j) Restricted Investments made in accordance with subsection 7.8.
7.11 Limitations on Optional Payments and Modifications of
Agreements. Subject to subsection 7.17 (a) make any optional payment or
prepayment on or redemption, defeasance or purchase of any Indebtedness (other
than, as part of the Refinancing, the Existing Subordinated Indenture) or
Guarantee Obligations, in each case, which are subordinated to the Obligations
(or, if applicable, any guarantee thereof), except, so long as no Default or
Event of Default has occurred and is continuing or would result therefrom (i) in
connection with the extension, renewal, substitution, refinancing or replacement
of any such Indebtedness with Refinancing Indebtedness (as defined in and to the
extent permitted by subsection 7.2(o)) and (ii) as permitted by subsection 7.8,
(b) amend, modify or change, or consent or agree to any amendment, modification
or change to, any of the terms of any Indebtedness which is subordinated to any
of the Obligations (or any guarantee thereof) in any material respect or in any
way that is materially adverse to the interests of the Lenders or the Borrower,
(c) amend, modify or change, or consent to any amendment, modification or change
to (i) any of the terms of the Soda Ash Partnership Agreement that is materially
adverse to the interests of the Lenders or the Borrower or the Management
Agreement in any material respect or in any way that is in the aggregate
materially adverse to the interests of the Lenders or the Borrower or (ii) any
of the terms of the Security Documents. The Borrower shall provide the
Administrative Agent and each Lender with prior written notice of (i) any
payment, prepayment, redemption, defeasance or purchase of any Indebtedness or
Guarantee Obligation pursuant to clause (a) above and (ii) any amendment,
modification or change to any of the terms of any Indebtedness of the Borrower
and its Subsidiaries or of any agreement referred to in clause (c) above.
7.12 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Borrower's or such Subsidiary's business and (c) upon
fair and reasonable terms in the aggregate no less favorable to the Borrower or
such Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate; provided that the
Borrower may enter into the Management Agreement and renewals, modifications,
replacements or amendments of such agreement permitted by subsection 7.11.
7.13 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such
68
Person on the security of such property or rental obligations of the Borrower or
such Subsidiary.
7.14 Limitation on Changes in Fiscal Year. Permit the fiscal year of
the Borrower to end on a day other than December 31, unless this Agreement shall
have been amended as necessary to restore the parties hereto as nearly as
possible to their respective positions prior to such change in fiscal year.
7.15 Limitation on Negative Pledge Clauses. Enter into with any
Person any agreement, other than (a) this Agreement and (b) any industrial
revenue bonds, purchase money mortgages or Financing Leases permitted by this
Agreement (in which cases, any prohibition or limitation shall only be effective
against the assets financed thereby), which prohibits or limits the ability of
the Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired.
7.16 Limitation on Lines of Business. Enter into any significant
business, either directly or through any Subsidiary, except for those businesses
which are primarily of the same general types as those in which the Borrower
and its Subsidiaries are engaged on the date of this Agreement or which are
related or complementary thereto.
7.17 Limitation on Optional Payments and Modifications of Tranche B
Term Loans. (a) Make any optional payment or prepayment of the Tranche B Term
Loans (other than scheduled payments of principal and interest or as part of an
optional prepayment of the Term Loans pursuant to the provisions of this
Agreement) or (b) consent to any amendment, modification or change to this
Agreement or any other Loan Document to the extent relating to the Tranche B
Term Loan Facility which adversely affects the Revolving Credit Lender or the
Tranche A Term Loan Lender.
SECTION 8. COVENANTS APPLICABLE TO TRANCHE B TERM LOAN COMMITMENTS AND
TRANCHE B TERM LOANS
The Borrower hereby agrees that, until payment in full of all
Tranche B Loans and any other amount then due and owing on account of the
Tranche B Loans to any Tranche B Lender or the Administrative Agent hereunder or
under any Tranche B Term Note:
(a) The covenants contained in Annex B (the "Covenants") (together
with the definitions of such terms as may be used therein) are hereby
deemed to be incorporated herein by reference.
(b) The Borrower shall, and shall cause its Restricted Subsidiaries
(as defined in Annex B) to, observe and perform the Covenants, as such
Covenants may be amended, supplemented or otherwise modified from time to
time with the consent of the Required Tranche B Term Loan Lenders.
69
SECTION 9. EVENTS OF DEFAULT
9.1 Certain Bankruptcy Events. If any of the following events shall
occur and be continuing:
(a) (i) The Borrower or any of its Domestic Subsidiaries or Material
Foreign Subsidiaries shall commence any case, proceeding or other action
(A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it,
or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or the Borrower or any of its Domestic Subsidiaries or Material
Foreign Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Borrower or
any of its Domestic Subsidiaries or Material Foreign Subsidiaries any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any of its Domestic Subsidiaries or Material
Foreign Subsidiaries any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the
entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any of its Domestic Subsidiaries or
Material Foreign Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or
any of its Domestic Subsidiaries or Material Foreign Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due;
then, and in any such event:
(A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (a) of this subsection 9.1 with respect to the Borrower,
automatically the Revolving Credit Commitments shall immediately terminate and
the Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable; and
(B) if such event is any other Event of Default specified in this
subsection 9.1, any or all of the following actions may be taken: (i) with the
consent of the Required Basic Lenders, the Administrative Agent may, or upon the
request of the Required Basic Lenders, the Administrative Agent shall, by notice
to the Borrower declare the Revolving Credit
70
Commitments and/or the Tranche A Term Loan Commitments to be terminated
forthwith, whereupon the Revolving Credit Commitments and/or the Tranche A Term
Loan Commitments (as the case may be) shall immediately terminate; (ii) with the
consent of the Required Basic Lenders, the Administrative Agent may, or upon the
request of the Required Basic Lenders, the Administrative Agent shall, by notice
to the Borrower, declare the Revolving Credit Loans and/or the Tranche A Loans
hereunder (with accrued interest thereon) and all other amounts owing on account
thereof under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become due and payable;
(iii) with the consent of the Required Tranche B Term Loan Lenders, the
Administrative Agent may, or upon the request of the Required Tranche B Term
Loan Lenders, the Administrative Agent shall, by notice to the Borrower declare
the Tranche B Term Loan Commitments to be terminated forthwith, whereupon the
Tranche B Term Loan Commitments shall immediately terminate; and (iv) with the
consent of the Required Tranche B Term Loan Lenders, the Administrative Agent
may, or upon the request of the Required Tranche B Term Loan Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Tranche B
Loans (with accrued interest thereon) and all other amounts owing on account
thereof under this Agreement to be due and payable forthwith, whereupon the same
shall immediately become due and payable.
9.2 Other Events of Default Applicable to the Tranche A Commitments.
Revolving Credit Commitments and Amounts Owing Thereunder. If any of the
following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Revolving
Credit Loan or Tranche A Term Loan, or any Reimbursement Obligation when
due in accordance with the terms thereof; or the Borrower shall fail to
pay any interest on any Revolving Credit Loan or Tranche A Term Loan, or
any other amount payable on account thereof hereunder (other than the
Tranche B Term Loans and interest thereon), within three Business Days
after any such interest or other amount becomes due in accordance with the
terms thereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document or
which is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this
Agreement or any such other Loan Document shall prove to have been
incorrect or misleading in any material respect on or as of the date made
or deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in subsection 6.11 or
Section 7 or 8 hereof, or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan
71
Document (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of 30
days after written notice to the Borrower by the Administrative Agent; or
(e) The Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the
Revolving Credit Loans, the Tranche A Term Loans and the Reimbursement
Obligations) or in the payment of any Guarantee Obligation, aggregating
$10,000,000 or more, beyond the period of grace (not to exceed 30 days),
if any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition following
any applicable grace periods relating to any Indebtedness or Guarantee
Obligation referred to in clause (i) immediately above or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders
of any Indebtedness referred to in clause (i) immediately above or
beneficiary or beneficiaries of such Guarantee Obligation referred to in
clause (i) immediately above (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice, lapse of time or both if required, such Indebtedness to
become due prior to its stated maturity or such Guarantee Obligation to
become payable, provided, however, that if the default described in this
clause (ii) is cured, the Event of Default under this clause (ii) shall be
simultaneously cured; or
(f) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other similar event or condition shall occur or exist
with respect to a Plan; and in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or
(g) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(to the extent not paid or covered by insurance less any applicable and
customary retention or deductible) of
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$10,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from
the entry thereof; or
(h) (i) Any of the Security Documents shall cease, for any reason,
to be in full force and effect (other than pursuant to the terms hereof or
thereof), or the Borrower or any other Loan Party which is a party to any
of the Security Documents shall so assert or (ii) the Lien created by any
of the Security Documents shall cease to be enforceable and of the same
effect and priority purported to be created thereby;
(i) any guarantee under the Guarantee and Pledge Agreement shall
cease for any reason to be in full force and effect (other than pursuant
to the terms hereof or thereof) or any Loan Party shall so assert in
writing; or
(j) a Change in Control shall have occurred; or
(k) the Borrower shall cease to beneficially own 100% of each class
of Capital Stock of GenChem, free of Liens (except for Liens created
pursuant to the Security Documents);
then, and in any such event, either or both of the following actions may be
taken: (i) with the consent of the Required Basic Lenders, the Administrative
Agent may, or upon the request of the Required Basic Lenders, the Administrative
Agent shall, by notice to the Borrower, declare the Revolving Credit Commitments
and/or the Tranche A Term Loan Commitments to be terminated forthwith, whereupon
the Revolving Credit Commitments and/or the Tranche A Term Loan Commitments
shall immediately terminate; and (ii) with the consent of the Required Basic
Lenders, the Administrative Agent may, or upon the request of the Required Basic
Lenders, the Administrative Agent shall, by notice to the Borrower, declare the
Loans (other than the Tranche B Term Loans) hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
then outstanding Letters of Credit shall have presented the documents required
thereunder) and the Notes (other than the Tranche B Term Loans and accrued
interest thereon) to be due and payable forthwith, whereupon the same shall
immediately become due and payable.
9.3 Certain Events of Default Applicable to Tranche B Term Loan
Commitments and Amounts Owing Thereunder. If any of the following events shall
occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Tranche B
Term Loan when due in accordance with the terms hereof; or the Borrower
shall fail to pay any interest on any Tranche B Term Loan, or any other
amount payable on account thereof hereunder, within three Business Days
after any such interest or other amount becomes due in accordance with the
terms hereof; or
(b) Any representation or warranty made or deemed made on or prior
to the Closing Date by the Borrower or any other Loan Party herein or in
any other Loan
73
Document or which is contained in any certificate, document or financial
or other statement furnished by it on or prior to the Closing Date under
or in connection with this Agreement or any such other Loan Document shall
prove to have been incorrect in any material respect on or as of the date
made or deemed made; or
(c) The Borrower shall default in the observance or performance of
any agreement contained in subsection 6.1, subsection 6.2(a), clause (iii)
of subsection 6.2(b), subsection 6.4, 6.5, 6.8, 6.9 or 6.10, and such
default shall continue unremedied for a period of 60 days after written
notice to the Borrower by the Administrative Agent; or
(d) The Borrower or any other Loan Party shall default in the
observance of performance of any agreement contained in subsection 6.11,
8.1, 8.2 or 8.3 (as incorporated by Section 8);
(e) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in Section 8 (other
than as set forth in paragraph (d) above) and such default shall continue
unremedied for 60 days after written notice to the Borrower by the
Administrative Agent; or
(f) The Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the
Tranche B Term Loans) or in the payment of any Guarantee Obligation (other
than in respect of the Tranche B Term Loans), aggregating $10,000,000 or
more, beyond the period of grace (not to exceed 30 days), if any, provided
in the instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance
of any other agreement or condition following any applicable grace period
relating to any Indebtedness or Guarantee Obligation referred to in clause
(i) above or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice or lapse of time if required, such
Indebtedness to become due and payable prior to its stated maturity or
such Guarantee Obligation to become payable, provided, however, that if
the default described in this clause (ii) is cured, the Event of Default
under this clause (ii) shall be simultaneously cured; provided, however,
that no Default or Event of Default shall exist under this paragraph
unless in the case of clause (ii) above only, (x) such default or other
event or condition shall have continued for a period of 60 days or (y) the
holder or holders of such Indebtedness or beneficiary or beneficiaries of
such Guarantee Obligation (or a trustee or administrative agent on behalf
of such holder or holders or beneficiary or beneficiaries) shall have
caused such Indebtedness to become due prior to its stated maturity or
such Guarantee Obligation to become payable; or
74
(g) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(to the extent not paid or covered by insurance less any applicable and
customary retention or deductible) of $10,000,000 or more and all such
judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 60 days from the entry thereof; or
(h) (i) Any of the Security Documents shall cease for any reason to
be in full force and effect (other than pursuant to the terms hereof or
thereof), or the Borrower or any other Loan Party which is a party to any
of the Security Documents shall so assert, or (ii) the Lien created by any
of the Security Documents shall cease to be enforceable and of the same
effect as to perfection and priority purported to be created thereby, and
such failure of such Lien to be perfected and enforceable with such
priority shall have continued unremedied for a period of perfection and 20
days; or
(i) Any guarantee under the Guarantee and Pledge Agreement shall
cease for any reason to be in full force and effect (other than pursuant
to the terms hereof or thereof) or any Loan Party shall so assert in
writing;
then, and in any such event, either or both of the following actions may be
taken: (i) with the consent of the Required Tranche B Term Loan Lenders, the
Administrative Agent may, or upon the request of the Required Tranche B Term
Loan Lenders, the Administrative Agent shall, by notice to the Borrower, declare
the Tranche B Term Loan Commitments to be terminated forthwith, whereupon the
Tranche B Term Loan Commitments shall immediately terminate; and (ii) with the
consent of the Required Tranche B Term Loan Lenders, the Administrative Agent
may, or upon the request of the Required Tranche B Term Loan Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Tranche B
Term Loans to be due and payable forthwith, whereupon the same shall immediately
become due and payable.
9.4 Certain Provisions Applicable to Letters of Credit. With respect
to all Letters of Credit with respect to which presentment for honor shall not
have occurred at the time of an acceleration pursuant to subsection 9.1 or
subsection 9.2, the Borrower shall at such time deposit in a cash collateral
account opened by the Administrative Agent an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit. The Borrower hereby
grants to the Administrative Agent, for the benefit of the Issuing Banks and the
Participating Banks, a security interest in such cash collateral to secure all
obligations of the Borrower in respect of such Letters of Credit under this
Agreement and the other Loan Documents. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay other obligations of the Borrower hereunder and under
the Notes. After all such Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied and all
other obligations of the Borrower hereunder and under the Notes shall have been
paid in full, the balance, if any, in such cash collateral account shall be
returned to the Borrower. The Borrower shall execute and deliver to the
Administrative Agent, for the account of the Issuing Banks and the Participating
Banks,
75
such further documents and instruments as the Administrative Agent may request
to evidence the creation and perfection of such security interest in such cash
collateral account.
9.5 Certain Waivers. Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT
10.1 Appointment. Each Lender hereby irrevocably designates and
appoints Chase as the Administrative Agent of such Lender under this Agreement
and the other Loan Documents, and each such Lender irrevocably authorizes Chase,
as the Administrative Agent for such Lender, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein and in the other Loan Documents, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. The Designated Issuer in its capacity as such shall be
entitled to the same rights under this Section 10 as accrue to the
Administrative Agent as if it were named in place of the Administrative Agent,
provided that the Term Loan Lenders shall not be required to indemnify the
Designated Issuer in connection with any Letter of Credit issued by it.
10.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither the Administrative 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 or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or the Notes or any
other Loan Document or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any
76
of the agreements contained in, or conditions of, this Agreement or any other
Loan Document, or to inspect the properties, books or records of the Borrower.
10.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation 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 (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Basic Lenders, the Required
Tranche B Lenders or the Required Lenders as it deems appropriate or it shall
first be indemnified to its satisfaction by the Basic Lenders, the Tranche B
Term Loan Lenders or the Required Lenders as it deems appropriate against any
and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the Notes and the other Loan Documents if acting in accordance with a
request of the Basic Lenders, the Tranche B Term Loan Lenders or the Required
Lenders as it deems appropriate, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
10.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
promptly give notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default or Event of Default, or any
Acceleration of any amounts due hereunder, as shall be reasonably directed by
the Required Basic Lenders, the Required Tranche B Term Loan Lenders or the
Required Lenders (depending upon whether such Default, Event of Default or
Acceleration relates to Basic Lenders, the Tranche B Term Loan Lenders or both);
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default,
Event of Default or Acceleration as it shall deem advisable in the best
interests of the relevant Lenders. To the extent that, as a result of the
exercise by it of any remedies with respect to any Collateral, the
Administrative Agent shall receive or realize any amounts, it shall distribute
such amounts ratably among the Lenders by reference to the aggregate amounts
accrued and unpaid that are outstanding under the Agreement and the other Loan
Documents and owing to the respective Lenders (after deducting and applying any
amounts then owing to the Administrative Agent or on account of expenses of the
Administrative Agent previously paid by any Lender), and if the portion to be so
distributed to any Lenders
77
shall exceed the sum then due and payable to such Lenders, such excess shall be
held by the Administrative Agent in a collateral account for such Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereafter taken, including any review of the affairs of any
Loan Party, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower. Each Lender acknowledges and agrees to
comply with the provisions of subsection 11.6 applicable to such Lender. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrower which
may come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower and the other
Loan Parties to do so), ratably according to their respective Total Credit
Percentages in effect on the date on which indemnification is sought under this
subsection (or, if indemnification is sought after the date upon which the
Revolving Credit Commitments shall have terminated and the Loans shall have been
paid in full, ratably in accordance with their Total Credit Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. The obligations to indemnify the Issuing
Lender shall be ratable
78
among the Revolving Credit Lenders in accordance with their respective Revolving
Credit Commitments (or, if the Revolving Credit Commitments have been
terminated, the outstanding principal amount of their respective Revolving
Credit Loans and L/C Obligations and their respective participating interests in
the outstanding Letters of Credit). The agreements in this subsection shall
survive the payment of the Loans and all other amounts payable hereunder.
10.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower and the other
Loan Parties as though the Administrative Agent were not the Administrative
Agent hereunder and under the other Loan Documents. With respect to its Loans
made or renewed by it and any Note issued to it and with respect to any Letter
of Credit issued or participated in by it, the Administrative Agent shall have
the same rights and powers under this Agreement and the other Loan Documents as
any Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Borrower (such approval not to be unreasonable withheld),
whereupon such successor agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loan. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this subsection shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
10. 10 Documentation Agent and Syndication Agent. Neither the
Documentation Agent nor the Syndication Agent shall have any rights or
obligations under the Loan Documents in their capacities as such.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement or any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower
and the other Loan Parties written amendments, supplements or modifications
hereto and to the other Loan Documents for the purpose of adding any provisions
to this Agreement or the other Loan Documents or changing in any
79
manner the rights of the Lenders or of the Borrower and the other Loan Parties
hereunder or thereunder or (b) waive, on such terms and conditions as the
Required Lenders or the Administrative Agent, as the case may be, may specify in
such instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification
shall:
(i)(x) reduce the amount or extend the scheduled date of maturity of
any Revolving Credit Loan or any Reimbursement Obligation or of any
scheduled installment thereof, or (y) reduce the stated rate of any
interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount or (z) extend the expiration date
of any Lender's Revolving Credit Commitment, in each case, without the
written consent of each Lender directly affected thereby,
(ii) amend, modify or waive any provision of subsection 10.5 or this
subsection 11.1 or reduce the percentage specified in the definition of
Required Lenders or of Required Release Lenders, or consent to the
assignment or transfer by any Loan Party of any of its rights and
obligations under this Agreement and the other Loan Documents (other than
pursuant to subsection 7.5), in each case, without the written consent of
all the Lenders,
(iii) (a) release any significant Loan Party from its obligations
under the Guarantee and Pledge Agreement or release all or substantially
all of the Collateral, in either case without the consent of each Lender;
or (b) release any other Loan Party from its obligations under the
Guarantee and Pledge Agreement or release less than substantially all of
the Collateral without the written consent of the Required Release
Lenders; in each case in clauses (a) and (b) except as expressly permitted
hereby or by the Guarantee and Pledge Agreement,
(iv) amend, modify or waive any provision of (x) subsection 2.3 (to
the extent such subsection 2.3 relates to the Tranche A Term Loans) or
2.5(a) without the written consent of Tranche A Term Loan Lenders, the
Tranche A Term Loan Percentages of which aggregate more than 50% (unless
such amendment, modification or waiver extends the scheduled final
maturity of the Tranche A Term Loans, in which case the written consent of
each Tranche A Term Loan Lender is required), or (y) subsection 2.3 (to
the extent such subsection 2.3 relates to the Tranche B Term Loans) or
2.5(b) without the written consent of the Required Tranche B Term Loan
Lenders (unless such amendment, modification or waiver extends the
scheduled final maturity of the Tranche B Term Loans, in which case the
written consent of each Tranche B Term Loan Lender is required),
(v) amend, modify or waive any provision of subsection 2.1, 2.2,
2.8, 2.9(g) or 2.9(h) without the written consent of the Revolving Credit
Lenders, the Revolving Credit Commitment Percentages of which aggregate
more than 50%,
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(vi) amend, modify or waive any provision of Section 10 without the
written consent of the then Administrative Agent and, if affected thereby,
the Designated Issuer,
(vii) amend, modify or waive any prepayment required by subsection
2.9(c), 2.9(d) or 2.9(e) without the written consent of Tranche A Term
Loan Lenders and Tranche B Term Loan Lenders having in the aggregate more
than 50% of the sum of the outstanding Term Loans,
(viii) amend, modify or waive the order of application of
prepayments specified in subsection 2.9(g) or 2.9(i) without the written
consent of (w) in the case of subsection 2.9(g), Revolving Credit Lenders
the Revolving Credit Commitment Percentages of which aggregate more than
50%, (x) Tranche A Term Loan Lenders the Tranche A Term Loan Percentages
of which aggregate more than 50%, and (y) the Required Tranche B Term Loan
Lenders,
(ix) amend, modify or waive the provisions of Section 3, any Letter
of Credit or any L/C Obligation without the written consent of each
relevant Issuing Lender and Revolving Credit Lenders the Revolving Credit
Commitment Percentages of which aggregate more than 50%,
(x) (A) amend, modify or waive any provision of subsection 5.2 or
Section 4 (after the Closing Date only), 6 (other than the Shared
Affirmative Covenants) or 7 (or any definitions incorporated by reference)
or subsection 9.2 or any definitions to the extent used therein or (B)
waive any Default or Event of Default under subsection 9.2 or any
consequences of such Default or Event of Default, in each case, without
the written consent of the Required Basic Lenders (it being agreed that
the consent of the Required Lenders shall not be required for any such
amendment, modification or waiver),
(xi) (A) amend, modify or waive any provision of Section 8 (or any
of the covenants or definitions incorporated therein by reference) or
subsection 9.3 or any definitions to the extent used therein or (B) waive
any Default or Event of Default under subsection 9.3 or any consequences
of such Default or Event of Default, in each case, without the written
consent of the Required Tranche B Term Loan Lenders (it being agreed that
the consent of the Required Lenders shall not be required for any such
amendment, modification or waiver),
(xii) reduce the percentage specified in the definition of Required
Tranche B Term Loan Lenders without the written consent of all of the
Tranche B Term Loan Lenders,
(xiii) amend, modify or waive any provision of any Security Document
that provides for the ratable sharing by the Lenders of the proceeds of
any realization on the Collateral to provide for a non-ratable sharing
thereof, without the written consent of (w) Revolving Credit Lenders the
Revolving Credit Commitment Percentages of
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which aggregate more than 50%, (x) Tranche A Term Loan Lenders the Tranche
A Term Loan Percentages of which aggregate more than 50% and (y) the
Required Tranche B Term Loan Lenders, or
(xiv) amend the definition of "Required Basic Lenders" without the
written consent of all the Basic Lenders, or
(xv) amend the first two sentences of subsection 2.15(a) without the
written consent of each Lender adversely affected thereby.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Administrative Agent and all future holders of the Notes. In the
case of any waiver, the Borrower, the Lenders and the Administrative Agent shall
be restored to their former position and rights hereunder and under the
outstanding Notes and any other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or four days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received (provided it is also mailed), addressed as follows in the case of the
Borrower and the Administrative Agent, and as set forth in Schedule I in the
case of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Notes
and the Term Notes:
The Borrower: The General Chemical Group Inc.
00 Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
General Chemical Corporation
00 Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
The Administrative Agent: The Chase Manhattan Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxx
Telecopy: (000) 000-0000
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with a copy to: The Chase Manhattan Bank
c/o The Loan and Agency Services Group
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Telecopy: (000) 000-0000
The Issuing Banks: Chase Manhattan Bank Delaware
0000 Xxxxx Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
The Chase Manhattan Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxx
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent,
the Issuing Banks or the Lenders pursuant to subsection 2.2, 2.4, 2.8, 2.9, 2.10
or 3.2 shall not be effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
extensions of credit hereunder.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
or reimburse the Administrative Agent and the Issuing Banks for all their
reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and the Issuing Banks in the amounts agreed to with such
counsel, (b) to pay or reimburse each Lender, the Issuing Banks and the
Administrative Agent for all
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their reasonable out-of-pocket costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the other
Loan Documents and any such other documents, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, to the
Issuing Banks and to the several Lenders, (c) to pay, indemnify, and hold each
Lender, the Issuing Banks and the Administrative Agent harmless from, any and
all recording and filing fees and any and all liabilities with respect to, or
resulting directly from any delay not caused by the Administrative Agent or the
Lenders in paying, stamp, excise and other documentary taxes, if any, which may
be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, indemnify, and hold each Lender, the
Issuing Banks and the Administrative Agent and each of their officers,
directors, employees and agents harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, out-of-pocket expenses or disbursements of any kind or nature whatsoever
incurred in connection with the execution, delivery, enforcement, performance
and administration of this Agreement, the other Loan Documents and any such
other documents, including, without limitation, any of the foregoing relating to
the violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower, any of its Subsidiaries or any of
the Properties (all the foregoing in this clause (d), collectively, the
"indemnified liabilities"), provided, that the Borrower shall have no obligation
hereunder to the Administrative Agent, any Issuing Bank, any Lender with respect
to indemnified liabilities arising from (i) the gross negligence or willful
misconduct of the Administrative Agent, such Issuing Bank or any such Lender
(ii) legal proceedings commenced against the Administrative Agent, any Issuing
Bank or any such Lender by any security holder or creditor thereof arising out
of and based upon rights afforded any such security holder or creditor solely in
its capacity as such or (iii) legal proceedings commenced against the
Administrative Agent, any Issuing Bank or any Lender by the Borrower or any
Affiliate, in which the Borrower or such Affiliate is the prevailing party
(unless the Administrative Agent, Issuing Bank or such Lender is also a
prevailing party, in which case the indemnification obligations of the Borrower
hereunder shall be adjusted to reflect the relative recoveries and faults of the
parties to such litigation). The Borrower shall have no obligation under this
subsection 11.5 for the consequential damages of the Administrative Agent, any
Issuing Bank any Lender. The agreements in this subsection shall survive
repayment of the Loans, and all other amounts payable hereunder.
11.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Issuing Banks, the Administrative Agent, all future holders of
the Loans and their respective successors and assigns, except that the Borrower
may not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Revolving Credit Commitment or L/C
Commitment of such Lender or any other interest of
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such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Note for
all purposes under this Agreement and the other Loan Documents, and the Borrower
and the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents; provided that such Bank shall reserve
solely unto itself, and shall not grant to any Participant, any part or all of
its right to agree to the amendment, modification or waiver of any of the terms
of this Agreement or other Loan Document or any document related thereto, except
for any such amendment, modification or waiver that would reduce the principal
of, or interest on the Loans, participating interests in the Letters of Credit
or any fees payable hereunder, in each case subject to such participation, or
postpone the date of the final maturity of, or any scheduled date fixed for
payment of interest on, the Loans or any Reimbursement Obligation, in each case
to the extent subject to such participation. The Borrower agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall, to the maximum extent permitted by applicable law, be
deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement or any Note, provided that, in purchasing such participating interest,
such Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in subsection 11.7(a) as fully as if it were a
Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of subsections 2.17, 2.18 and 2.19 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it were a Lender; provided that, in the case of subsection 2.18, such
Participant shall have complied with the requirements of said subsection as if
it were a Lender and provided, further, that no Participant shall be entitled to
receive any greater amount pursuant to any such subsection than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
(c) Any Lender may, in accordance with applicable law, at any time
and from time to time assign to any Lender or any Affiliate thereof or to an
Approved Fund, or, with the consent of the Borrower, the Issuing Banks (in the
case of assignments under the Revolving Credit Commitments) and the
Administrative Agent (which in each case shall not be unreasonably withheld), to
an additional bank, fund (as long as such fund invests in bank loans) or other
financial institution (an "Assignee") all or any part of its rights and
obligations under this Agreement pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit C, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender or
an Affiliate thereof or an Approved Fund, by the Borrower, the Issuing Banks (in
the case of assignments under the Revolving Credit Commitments) and the
Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register. Any such assignment by any Lender to
any Person which is not then a Lender or an Affiliate thereof or an Approved
Fund shall be in a minimum aggregate
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amount equal to at least $5,000,000 (or, if less, all of a Lender's interest
under this Agreement), unless otherwise agreed by the Borrower and the
Administrative Agent. Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Revolving Credit Commitment and/or
Loans as set forth therein, and (y) the assigning Lender thereunder shall, to
the extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such assigning Lender shall cease to be a
party hereto). Notwithstanding any provision of this subsection to the contrary,
the consent of the Borrower to an assignment shall not be required at any time
when an Event of Default under subsection 9.1 or paragraph (a) of subsection 9.2
or paragraph (a) of subsection 9.3 shall have occurred and be continuing.
(d) The Administrative Agent shall maintain at its address referred
to in subsection 11.2 a copy of each Assignment and Acceptance delivered to it
and a register (the "Register") for the recordation of the names and addresses
of the Lenders and the Commitment of, and principal amount of the Loans owing
to, each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loans and any Notes evidencing such
Loans recorded therein for all purposes of this Agreement. Any assignment of any
Loan, whether or not evidenced by a Note, shall be effective only upon
appropriate entries with respect thereto being made in the Register (and each
Note shall expressly so provide). Any assignment or transfer of all or part of a
Loan evidenced by a Note shall be registered on the Register only upon surrender
for registration of assignment or transfer of the Note evidencing such Loan,
accompanied by a duly executed Assignment and Acceptance; thereupon one or more
new Notes in the same aggregate principal amount shall be issued to the
designated Assignee, and the old Notes shall be returned by the Administrative
Agent to the Borrower marked "cancelled". The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof or an Approved Fund, by the Borrower, the
Issuing Banks (in the case of assignments under the Revolving Credit
Commitments) and the Administrative Agent) together with payment to the
Administrative Agent of a registration and processing fee of $3,500 (which the
fee shall not be payable in connection with an assignment by a Lender to an
Affiliate thereof), the Administrative Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) on the effective date determined pursuant
thereto record the information contained therein in the Register and give notice
of such acceptance and recordation to the Lenders, the Issuing Banks and the
Borrower. On or prior to such effective date, the Borrower, at its own expense,
upon request, shall execute and deliver to the Administrative Agent (in exchange
for the Notes of the assigning Lender) new Notes to the order of such Assignee
in an amount equal to the Revolving Credit Commitment and/or applicable Term
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Loans, as the case may be, assumed or acquired by it pursuant to such Assignment
and Acceptance and, if the assigning Lender has retained a Revolving Credit
Commitment and/or Term Loans, as the case may be, upon request, new Notes to the
order of the assigning Lender in an amount equal to the Revolving Credit
Commitment and/or applicable Term Loans, as the case may be, retained by it
hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be
in the form of the Notes replaced thereby.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of subsection 11.15, any and all financial information
in such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
11.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement provides for payments to be allocated to a particular Lender or to the
Lenders under a particular Facility, if any Lender (a "Benefitted Lender") shall
at any time receive any payment of all or part of the Obligations owing to it,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in subsection 9.1, or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Obligations, such Benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Obligations, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however, that
if all or any portion of such excess payment or benefits is thereafter recovered
from such Benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower.
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Each Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
11.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceabiity 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.
11.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent, the Issuing
Banks and the Lenders with respect to the subject matter hereof, and there are
no promises, undertakings, representations or warranties by the Administrative
Agent, the Issuing Banks or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
11.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially
88
similar form of mail), postage prepaid, to the Borrower at its address set
forth in subsection 11.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential
damages; provided that any such waiver shall not apply with respect to
claims arising from the gross negligence or willful misconduct of the
Administrative Agent, any Issuing Bank or any Lender.
11.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
11.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT,
THE ISSUING BANKS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
THE NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.15 Confidentiality. Each Lender agrees to keep confidential all
non-public information provided to it by the Borrower pursuant to this Agreement
that is designated by the Borrower in writing as confidential; provided that
nothing herein shall prevent any Lender from disclosing any such information (i)
to the Administrative Agent or any other Lender, (ii) to any Transferee which
executes a Confidentiality Agreement substantially in the form of Exhibit D
hereto, (iii) to its employees, directors, agents, attorneys, accountants and
other professional advisors, (iv) upon the request or demand of any Governmental
Authority (including, without limitation, the National Association of Insurance
Commissioners) having jurisdiction over such Lender, (v) in response to any
order of any court or other
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Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (vi) which has been publicly disclosed other than in breach
by such Lender of this Agreement, (vii) in connection with the exercise of any
remedy hereunder, (viii) in connection with periodic regulatory examinations,
(ix) in connection with any litigation to which such Lender may be a party, (x)
to any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty (A) has
been approved in writing by the Borrower and (B) agrees in a writing enforceable
by the Borrower to be bound by the provisions of this subsection 11.15) and (xi)
if, prior to such information having been so provided or obtained, such
information was already in the Administrative Agent's or a Lender's possession
on a nonconfidential basis without a duty of confidentiality to the Borrower
being violated.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
THE GENERAL CHEMICAL GROUP INC.
By:
------------------------------------
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent, as an
Issuing Bank and as a Lender
By:
------------------------------------
Title:
CHASE MANHATTAN BANK DELAWARE,
as an Issuing Bank
By:
------------------------------------
Title:
BANK OF AMERICA NT & SA, as
Documentation Agent and as a
Lender
By:
------------------------------------
Title:
THE BANK OF NOVA SCOTIA, as
Syndication Agent and as a
Lender
By:
------------------------------------
Title:
