<PAGE>
EXHIBIT 4
Conformed Copy
REVOLVING CREDIT AGREEMENT
dated as of
July 5, 2000
among
ARCH CHEMICALS, INC.,
ARCH CHEMICALS UK HOLDINGS LIMITED,
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
---------------------------
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
<PAGE>
TABLE OF CONTENTS
<TABLE>
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ARTICLE I
Definitions
<S> <C> <C>
SECTION 1.01 Defined Terms............................................................................1
SECTION 1.02 Classification of Loans and Borrowings..................................................26
SECTION 1.03 Terms Generally.........................................................................26
SECTION 1.04 Accounting Terms; GAAP..................................................................27
SECTION 1.05 Exchange Rates..........................................................................27
SECTION 1.06 Redenomination of Sterling..............................................................27
ARTICLE II
The Credits
SECTION 2.01 Commitments.............................................................................28
SECTION 2.02 Loans and Borrowings....................................................................28
SECTION 2.03 Requests for Revolving Borrowings.......................................................29
SECTION 2.04 Competitive Bid Procedure...............................................................30
SECTION 2.05 [not used]..............................................................................33
SECTION 2.06 [not used]..............................................................................33
SECTION 2.07 Funding of Borrowings...................................................................33
SECTION 2.08 Interest Elections......................................................................33
SECTION 2.09 Termination and Reduction of Commitments................................................35
SECTION 2.10 Repayment of Loans; Evidence of Debt....................................................36
SECTION 2.11 Prepayment of Loans.....................................................................37
SECTION 2.12 Fees....................................................................................39
SECTION 2.13 Interest................................................................................40
SECTION 2.14 Alternate Rate of Interest..............................................................41
SECTION 2.15 Increased Costs.........................................................................41
SECTION 2.16 Break Funding Payments..................................................................43
SECTION 2.17 Taxes...................................................................................43
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.............................45
SECTION 2.19 Mitigation Obligations; Replacement of Lenders..........................................46
ARTICLE III
Representations and Warranties
SECTION 3.01 Organization; Powers....................................................................47
SECTION 3.02 Authorization; Enforceability...........................................................48
SECTION 3.03 Governmental Approvals; No Conflicts....................................................48
SECTION 3.04 Financial Condition; No Material Adverse Change.........................................48
SECTION 3.05 Properties..............................................................................49
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
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<S> <C> <C>
SECTION 3.06 Litigation and Environmental Matters....................................................50
SECTION 3.07 Compliance with Laws and Agreements.....................................................50
SECTION 3.08 Investment and Holding Company Status...................................................50
SECTION 3.09 Taxes...................................................................................50
SECTION 3.10 ERISA...................................................................................51
SECTION 3.11 Disclosure..............................................................................51
SECTION 3.12 Scheduled Indebtedness and Scheduled Liens..............................................51
SECTION 3.14 Federal Regulations.....................................................................52
SECTION 3.15 Labor Matters...........................................................................52
SECTION 3.16 Options.................................................................................52
SECTION 3.17 Insurance...............................................................................52
ARTICLE IV
Conditions
SECTION 4.01 Announcement Date and Effectiveness of Commitments......................................52
SECTION 4.02 Conditions to Closing...................................................................55
SECTION 4.03 Conditions to Offer Borrowings..........................................................56
SECTION 4.04 Conditions to Other Borrowings..........................................................57
ARTICLE V
Covenants
SECTION 5.01 Financial Statements; Ratings Change and Other Information..............................57
SECTION 5.02 Notices of Material Events..............................................................59
SECTION 5.03 Existence; Conduct of Business..........................................................60
SECTION 5.04 Payment of Obligations..................................................................60
SECTION 5.05 Maintenance of Properties; Insurance....................................................60
SECTION 5.06 Books and Records; Inspection Rights....................................................61
SECTION 5.07 Compliance with Laws....................................................................61
SECTION 5.08 Use of Proceeds.........................................................................61
SECTION 5.09 Environmental Laws......................................................................62
SECTION 5.10 Offer...................................................................................62
SECTION 5.11 Refinancing.............................................................................63
SECTION 5.12 Ratings Process.........................................................................64
SECTION 5.13 Financial Assistance....................................................................64
SECTION 5.14 Syndication Process.....................................................................64
</TABLE>
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<TABLE>
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ARTICLE VI
Negative Covenants
<S> <C> <C>
SECTION 6.01 Indebtedness............................................................................65
SECTION 6.02 Liens...................................................................................65
SECTION 6.03 Fundamental Changes.....................................................................66
SECTION 6.04 Hedging Agreements......................................................................67
SECTION 6.05 Restricted Payments.....................................................................67
SECTION 6.06 Transactions with Affiliates............................................................67
SECTION 6.07 Disposition of Property.................................................................67
SECTION 6.08 Payments and Modifications of Certain Debt Instruments..................................68
SECTION 6.09 Sales and Leasebacks....................................................................68
SECTION 6.10 Changes in Fiscal Periods...............................................................69
SECTION 6.11 Lines of Business.......................................................................69
SECTION 6.12 Financial Covenants.....................................................................69
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01 Notices.................................................................................75
SECTION 9.02 Waivers; Amendments.....................................................................76
SECTION 9.03 Expenses; Indemnity; Damage Waiver......................................................77
SECTION 9.04 Successors and Assigns..................................................................78
SECTION 9.05 Survival................................................................................81
SECTION 9.06 Counterparts; Integration; Effectiveness................................................81
SECTION 9.07 Severability............................................................................82
SECTION 9.08 Right of Setoff.........................................................................82
SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process..............................82
SECTION 9.10 WAIVER OF JURY TRIAL....................................................................83
SECTION 9.11 Headings................................................................................83
SECTION 9.12 Confidentiality.........................................................................83
SECTION 9.13 Interest Rate Limitation................................................................84
SECTION 9.14 Judgment Currency.......................................................................84
</TABLE>
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<TABLE>
<CAPTION>
SCHEDULES
---------
<S> <C> <C>
Schedule 2.01 - Commitments...................................................................85
Schedule 3.06 - Disclosed Matters.............................................................86
Schedule 3.12(a) - Scheduled Indebtedness........................................................87
Schedule 3.12(b) - Scheduled Liens...............................................................88
Schedule 6.01 - Existing Indebtedness.........................................................90
Schedule 6.02 - Existing Liens................................................................91
Schedule 7 - Additional Costs..............................................................84
EXHIBITS
--------
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Notes
Exhibit C - Form of Opinions of Borrower's US, UK and General Counsel
Exhibit D - Press Release
</TABLE>
iv
<PAGE>
CREDIT AGREEMENT dated as of July 5, 2000, among ARCH CHEMICALS, INC.,
a Virginia corporation ("Arch" or the "Borrower"), ARCH CHEMICALS UK HOLDINGS
LIMITED, a company incorporated under the laws of England and Wales with company
number 3984684 ("Newco") and an indirect wholly-owned subsidiary of Arch, the
LENDERS party hereto and THE CHASE MANHATTAN BANK, as Administrative Agent.
WHEREAS, the Borrower intends to (i) acquire through Newco (the
"Acquisition") the whole of the ordinary share capital (whether in issue or
falling to be allotted) not already owned by Newco of Hickson International PLC,
a public limited company incorporated under the laws of England and Wales with
company number 499821 (the "Target") whether pursuant to the Offer (as
hereinafter defined), through open market purchases made in accordance with
applicable law or pursuant to the provisions of Section 428 et seq. of the U.K.
Companies Act of 1985, together with any options therefor; and (ii) refinance,
in connection with the Acquisition, certain of the Target's existing indebted
ness;
WHEREAS, the Borrower desires to establish an eighteen-month revolving
credit facility in the amount of $225,000,000 as provided herein;
WHEREAS, the proceeds of the Loans made on or after the Closing Date
are to be used to (i) finance the Acquisition, (ii) consummate the Refinancing,
(iii) finance part of the working capital and general corporate needs of the
Target and its subsidiaries and (iv) pay fees and expenses related to the
Acquisition and Refinancing;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acceptance Condition" means the condition of the Offer relating to the
minimum level of acceptances of the Offer as set forth in the Announcement.
"Accounts Receivable" means presently existing and hereafter arising or
acquired accounts receivable, notes, drafts, acceptances, general intangibles,
choses in action and other forms of obligations and receivables relating in any
way to inventory or arising from the sale
<PAGE>
of inventory or the rendering of services or howsoever otherwise arising, and
assets relating thereto, including all collateral securing such accounts
receivable, all contracts and all Guarantees or other obligations in respect of
such accounts receivable, proceeds of such accounts receivable and all other
assets that are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving accounts receivable, and including the right to payment
of any interest or finance charges, sales tax, returned checks or late charges
or other obligations with respect thereto and all proceeds of insurance with
respect thereto, and all books, customer lists, ledgers, records and files
(whether written or stored electronically) relating to any of the foregoing.
"Acquisition" has the meaning assigned to such term in the recitals to
this Agreement.
"Additional Cost" means, in relation to any period, a percentage
calculated for such period at an annual rate determined in accordance with
Schedule 7.
"Adjusted LIBO Rate" means, (i) with respect to any Eurocurrency
Borrowing other than one referred to in (ii) immediately below, for any Interest
Period, an interest rate per annum (rounded, if necessary, to the nearest 1/16
of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate; and (ii) with respect to any Eurocurrency Borrowing
denominated in an Alternative Currency and advanced by a Lender required to
comply with the relevant requirements of the Bank of England and the Financial
Services Authority of the United Kingdom, for any Interest Period, an interest
rate per annum (rounded, if necessary, to the nearest 1/16 of 1%) equal to the
aggregate of (a) the LIBO Rate for such Interest Period and (b) the Additional
Cost.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agent" means the Administrative Agent.
"Alternate Base Rate" means, for any day, a rate per annum 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%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the
Base CD Rate or the Federal Funds Effective Rate shall be effective from and
including the effective date of such
2
<PAGE>
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"Alternative Currency" means Euros and Sterling.
"Alternative Currency Borrowing" means a Borrowing comprised of
Alternative Currency Loans.
"Alternative Currency Equivalent" means on any date of determination,
with respect to any amount denominated in dollars, the equivalent in the
Alternative Currency of such amount, determined by the Administrative Agent
pursuant to Section 1.05 using the applicable Exchange Rate with respect to the
Alternative Currency at the time in effect.
"Alternative Currency Loan" means any Loan denominated in an
Alternative Currency. Each Alternative Currency Loan must be a Eurocurrency
Loan.
"Announcement" means the public announcement of the Offer by the
issuance of the Press Release.
"Announcement Date" means the date of the Announcement.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, with respect to any ABR Loan, or Eurocurrency
Revolving Loan, or with respect to the facility fees payable hereunder, as the
case may be, for any day (i) prior to a Ratings Event, the applicable rate per
annum set forth below:
<TABLE>
<CAPTION>
==================================================================================================
Consolidated Leverage
---------------------
Ratio ABR Spread Eurocurrency Spread Facility Fee Rate
----- ---------- ------------------- -----------------
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
less than or equal to 0.5 0.000% 0.425 % 0.200 %
--------------------------------------------------------------------------------------------------
greater than 0.5 and less than 1.5 0.000% 0.525 % 0.225 %
--------------------------------------------------------------------------------------------------
greater than 1.5 and less than 2.5 0.000% 0.625 % 0.250 %
--------------------------------------------------------------------------------------------------
greater than 2.5 and less than 3.0 0.000% 0.950 % 0.300 %
--------------------------------------------------------------------------------------------------
greater than 3.0 0.150% 1.150% 0.350%
==================================================================================================
</TABLE>
provided that, for purposes of the foregoing, changes in the Applicable Rate
resulting from changes in the Consolidated Leverage Ratio shall become effective
on the date (the "Adjust-
3
<PAGE>
ment Date") on which financial statements are delivered to the Lenders pursuant
to Section 5.01 (but in any event, not later than the 45th day after the end of
each of the first three quarterly periods of each fiscal year or the 90th day
after the end of each fiscal year, as the case may be) and shall remain in
effect until the next change to be effected pursuant to this paragraph. If any
financial statements referred to above are not delivered within the time periods
specified above, then, until such financial statements are delivered, the
Consolidated Leverage Ratio as at the end of the fiscal period that would have
been covered thereby shall for the purposes of this definition be deemed to be
greater than 3.0 to 1.0. In addition, at any time prior to the receipt of the
first financial statements to be delivered pursuant to Section 5.01(a), the
Consolidated Leverage Ratio shall for the purposes of this definition be deemed
to be greater than 2.5 and less than or equal to 3.0 to 1.0, and at all times
while an Event of Default shall have occurred and be continuing, the
Consolidated Leverage Ratio shall for the purposes of this definition be deemed
to be greater than 3.0 to 1.0. Each determination of the Consolidated Leverage
Ratio pursuant to this pricing grid shall be made with respect to (or, in the
case of Consolidated Total Debt, as at the end of) the period of four
consecutive fiscal quarters of the Borrower ending at the end of the period
covered by the relevant financial statements; and
(ii) at all times on and after a Ratings Event, the applicable rate per annum
set forth below:
================================================================================
Senior Unsecured
Debt Rating ABR Spread Eurocurrency Spread Facility Fee Rate
----------- ---------- ------------------- -----------------
--------------------------------------------------------------------------------
greater than BBB+/Baa1 0.000% 0.325% 0.175%
--------------------------------------------------------------------------------
BBB+/Baa1 0.000% 0.425% 0.200%
--------------------------------------------------------------------------------
BBB/Baa2 0.000% 0.525% 0.225%
--------------------------------------------------------------------------------
BBB-/Baa3 0.000% 0.625% 0.250%
--------------------------------------------------------------------------------
BB+/Ba1 0.000% 0.950% 0.300%
--------------------------------------------------------------------------------
less than BB+/Ba1 0.150% 1.150% 0.350%
================================================================================
; provided, that, for purposes of the foregoing, (i) if either Moody's or S&P
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then the
Applicable Rate shall be determined based on the rating for the Index Debt by
the other such agency, (ii) if the ratings established or deemed to have been
established by Moody's and S&P for the Index Debt shall fall within different
categories, the Applicable Rate shall be based on the higher of the two ratings
unless one of the two ratings is two or more categories lower than the other, in
which case the Applicable Rate shall be determined by reference to the category
next below that of the higher of the two ratings, (iii) if the ratings
established or deemed to have been established by Moody's and S&P for the Index
Debt shall be changed (other than as a result of a change in the rating system
of Moody's or S&P), such change shall be effective as of the date on which it is
first
4
<PAGE>
announced by the applicable rating agency, irrespective of when notice of such
change shall have been furnished by the Borrower to the Administrative Agent
and the Lenders pursuant to Section 5.01(f) hereof or otherwise and (iv) if at
any time after a Ratings Event, neither Moody's or S&P shall have in effect a
rating for the Index Debt, then the Applicable Rate shall be determined on the
basis of the table set forth in clause (i) above. Each change in the Applicable
Rate shall apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the
next such change. If the rating system of Moody's or S&P shall change, or if
either such rating agency shall cease to be in the business of rating corporate
debt obligations, the Borrower and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Rate shall be determined by reference to
the rating most recently in effect prior to such change or cessation.
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the Payment
Obligation Date to but excluding the earlier of the Maturity Date and the
termination of the Commitments.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrowing" means (a) Revolving Loans of the same Type, made, converted
or continued on the same date and, in the case of Eurocurrency Loans, as to
which a single Interest Period is in effect or (b) a Competitive Loan or group
of Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect.
5
<PAGE>
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurocurrency
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in the relevant currency in the London interbank market;
provided that when used in connection with a Loan denominated in Euro, the term
"Business Day" shall also exclude (i) any day when banks are not open in
Frankfurt am Main, Germany (or such principal financial center or centers in
such Participating Member State or States as the Administrative Agent may from
time to time nominate for this purpose) and (ii) any day on which the Trans-
European Automated Real-Time Gross Settlement Express Transfer (TARGET) payment
system is not open for the settlement of payments in Euro.
"Calculation Date" means, in respect of a Eurocurrency Loan denominated
in an Alternative Currency, (a) the date falling two Business Days (or such
other period as is customary in the relevant foreign exchange market for
delivery on the date of the relevant Borrowing) prior to the date of each
Borrowing, (b) the date falling two Business Days (or such other period as is
customary in the relevant foreign exchange market for delivery on the date of
the relevant conversion or continuation) prior to the date of conversion or
continuation of any Borrowing pursuant to Section 2.08 or (c) such additional
dates as Administrative Agent or the Required Lenders shall reasonably specify.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" of any Person means any capital stock or other equity
interests of such Person, regardless of class or designation, and all warrants,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Certain Funds Period" means the period commencing on the Announcement
Date and ending on the earliest to occur of:
(a) the date on which the Offer lapses (having not been declared
unconditional in all respects) or is withdrawn or is referred as provided for in
paragraphs (b) or (c) of Appendix I of the Press Release;
6
<PAGE>
(b) the date falling 15 days after the date on which the Offer is
finally closed in accordance with the Code;
(c) August 15, 2000 if the Announcement Date has not by then occurred;
and
(d) the date falling four months after the Announcement Date.
"Certain Funds Committed Amount" means the Dollar Equivalent of GBP
101,000,000 or such lesser amount which when aggregated with all other Offer
Borrowings previously advanced equals GBP101,000,000. It is hereby acknowledged
and agreed for the avoidance of doubt, notwithstanding anything herein to the
contrary, that no provision of this Agreement relating to the Certain Funds
Committed Amount (including without limitation Sections 2.01(c), 2.09(b)(iii)
and the final two paragraphs of Article VII) is intended to or shall increase
the Commitments.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 51% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated; or (c) the
acquisition of direct or indirect Control of the Borrower by any Person or
group.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Govern mental Authority made or
issued after the date of this Agreement.
"City Code" means the City Code on Takeovers and Mergers applicable to
the Offer on the date the Offer is made.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
"Clean-up Period" means the period commencing on the Closing Date and
ending on the date that is 180 days thereafter.
"Closing" means the satisfaction of all of the conditions specified in
Section 4.02.
7
<PAGE>
"Closing Date" means the date on which the Closing occurs and the
initial Loans are made by way of Offer Borrowings.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans hereunder, expressed as an amount representing
the maximum aggregate amount of such Lender's Revolving Credit Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.09 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender's Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Commitment, as
applicable. The initial aggregate amount of the Lenders' Commitments is
$225,000,000.
"Companies Act" means the Companies Act of 1985, as in force in the
United Kingdom, as amended from time to time.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan
in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Compulsory Acquisition" means the compulsory acquisition procedure
under Part XIIIA of the Companies Act.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum
of (a) income tax expense, (b) interest expense, amortization or writeoff of
debt discount with respect to Indebtedness (including the Loans), (c)
depreciation and amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs, (e) any
extraordinary expenses or losses (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for such
period, losses on sales of assets outside of the ordinary course of business),
and (f) any other non-cash charges, and minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (a)
interest income, (b) any extraordinary income or gains (including, whether or
not
8
<PAGE>
otherwise includable as a separate item in the statement of such Consolidated
Net Income for such period, gains on the sales of assets outside of the ordinary
course of business) and (c) any other non-cash income, all as determined on a
consolidated basis. For the purposes of calculating Consolidated EBITDA for any
Reference Period pursuant to any determination of the Consolidated Leverage
Ratio or Consolidated Interest Coverage Ratio, if during such Reference Period
the Borrower or any Subsidiary shall have made a Permitted Acquisition or
refinanced any Indebtedness, Consolidated EBITDA for such Reference Period shall
be calculated after giving pro forma effect thereto and any Indebtedness
incurred, assumed or refinanced in connection therewith as if such Permitted
Acquisition or refinancing occurred and such Indebtedness had been incurred,
assumed or refinanced on the first day of such Reference Period.
"Consolidated Interest Coverage Ratio" means for any period, the ratio
of (a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense
for such period; provided that interest on an aggregate principal amount of the
Louisiana IDB not to exceed $1,000,000 shall for all purposes of calculating the
Consolidated Interest Coverage Ratio be excluded from Consolidated Interest
Expense.
"Consolidated Interest Expense" means, for any period, total interest
expense (including that attributable to capitalized lease obligations) of the
Borrower and its Subsidiaries for such period with respect to all outstanding
Indebtedness of the Borrower and its Subsidiaries (including all commission,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under Hedging Agreements in respect
of such Indebtedness to the extent such net costs are allocable to such period
in accordance with GAAP). For the purposes of calculating Consolidated Interest
Expense for any Reference Period pursuant to any determination of the
Consolidated Interest Coverage Ratio, if during such Reference Period the
Borrower or any Subsidiary shall have made a Permitted Acquisition or refinanced
any Indebted ness, Consolidated Interest Expense for such Reference Period shall
be calculated after giving pro forma effect thereto and any Indebtedness
incurred, assumed or refinanced in connection therewith as if such Permitted
Acquisition or refinancing occurred and such Indebtedness had been incurred,
assumed or refinanced on the first day of such Reference Period.
"Consolidated Leverage Ratio" means, as at the last day of any period,
the ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA
for such period; provided that the Louisiana IDB in an aggregate principal
amount not to exceed $1,000,000 shall for all purposes of calculating the
Consolidated Leverage Ratio be excluded from Consolidated Total Debt.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or
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consolidated with the Borrower or any of its Subsidiaries, (b) the income (or
deficit) of any Person (other than a Subsidiary of the Borrower) in which the
Borrower or any of its Subsidiaries has an ownership interest, except to the
extent that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions and (c) the
undistributed earnings of any Subsidiary of the Borrower to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or any law applicable to such Subsidiary.
"Consolidated Total Debt" means, at any date, the aggregate principal
amount of all Indebtedness of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation" means, 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.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Con trolled" have meanings correlative thereto.
"Credit Events" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of Loans and the use of the proceeds
thereof.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environ mental matters disclosed in Schedule 3.06.
"Disposition" means with respect to any property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition thereof.
The terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollar Borrowing" means a Borrowing comprised of Dollar Loans.
"Dollar Equivalent" means, on any Calculation Date, with respect to any
amount denominated in any currency other than dollars, the equivalent in dollars
of such amount, determined by Administrative Agent pursuant to Section 1.05
using the applicable Exchange Rate with respect to such currency at the time in
effect.
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"Dollar Loan" means any Loan denominated in dollars.
"Dollar Revolving Loan" means a Revolving Loan denominated in dollars.
"Dollars" or "dollars" or "$" refers to lawful money of the United
States of America.
"EC Treaty" means the Treaty establishing the European Community
(signed in Rome on March 25, 1957), as amended by the Treaty on European Union
(signed Maastricht on February 7, 1992).
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Claim" means any notice of violation, claim, suit,
demand, abatement order or other order or direction (conditional or otherwise)
by any Governmental Authority or any Person for any damage, including personal
injury (including sickness, disease or death), tangible or intangible property
damage, contribution, indemnity, indirect or consequential damages, damage to
the environment, nuisance, pollution, contamination or other adverse effects on
the environment, human health, or natural resources, or for fines, penalties,
restrictions or injunctive relief resulting from or based upon (a) the
occurrence or existence of a Release or substantial threat of a material Release
(whether sudden or non-sudden or accidental or non-accidental) of, or exposure
to, any Hazardous Materials in, into or onto the environment at, in, by, from or
related to any real estate owned, leased or operated at any time by Borrower or
any of its Subsidiaries (the "Premises"), (b) the use, handling, generation,
transportation, storage, treatment or disposal of Hazardous Materials in
connection with the operation of any Premises, or (c) the violation, or alleged
violation, of any Environmental Law connected with Borrower's operations or any
Premises.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the Release or threatened Release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
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"Environmental Lien" means a Lien in favor of any Governmental
Authority for (i) any liability under Environmental Laws or regulations, or (ii)
damages arising from, or costs incurred by such Governmental Authority in
response to, a Release or threatened Release of Hazardous Materials into the
environment.
"Environmental Permits" means all permits, licenses, certificates,
registrations and approvals of Governmental Authorities required by
Environmental Laws and necessary for the business of Borrower or a Subsidiary
of Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived), (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived, (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan, (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan,
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan, (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan, or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Euro" and "(U)" mean the lawful currency of the member states (as such
term is used in Council Regulation (EC) No. 974/98) of the European Union that
adopt the single currency in accordance with the EC Treaty.
"Eurocurrency", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
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"Event of Default" has the meaning assigned to such term in Article
VII.
"Exchange Rate" means, on any day, with respect to any currency other
than dollars (for purposes of determining the Dollar Equivalent) or any
Alternative Currency (for purposes of determining the Alternative Currency
Equivalent with respect to dollars or an Alternative Currency, as the case may
be), the rate at which such currency may be exchanged into dollars or another
Alternative Currency, as the case may be, as set forth at approximately 11:00
a.m., New York City time, on such date (for spot delivery) on the applicable
Bloomberg Key Cross Currency Rates Page. In the event that any such rate does
not appear on any Bloomberg Key Cross Currency Rates Page, the Exchange Rate
shall be determined by reference to such other publicly available service for
displaying exchange rates selected by Administrative Agent for such purpose, or,
at the discretion of Administrative Agent, such Exchange Rate shall instead be
the arithmetic average of the spot rates of exchange of Administrative Agent in
the market where its foreign currency exchange operations in respect of such
currency are then being conducted, at or about 10:00 a.m., local time, on such
date for the purchase of dollars or the applicable Alternative Currency as the
case may be, for delivery two Business Days (or such other period as is
customary in the relevant market) later; provided that, if at the time of any
such determination, for any reason, no such spot rate is being quoted,
Administrative Agent may use any other reasonable method it deems appropriate to
determine such rate, and such determination shall be presumed correct absent
manifest error.
"Excluded Borrowings" means, for the purposes of Section 2.11(d)(ii)
indebtedness not exceeding $250,000,000 in aggregate in respect of:
(a) the Existing Revolving Facilities;
(b) bank facilities similar in terms to the Existing Revolving
Facilities whether or not syndicated;
(c) uncommitted short term lines of credit and bank overdraft
facilities;
(d) commercial paper; and
(e) Permitted Accounts Receivable Securitizations.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the
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Borrower is located and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.19(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender's failure to comply
with Section 2.17(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.17(a).
"Existing Revolving Facilities" means the Five-Year Facility and the
364 Day Facility.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) 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 that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Five-Year Facility" means the Credit Agreement so entitled dated as of
January 27, 1999 among Olin Corporation, the Borrower, the lenders and agents
from time to time party thereto and The Chase Manhattan Bank, as administrative
agent, as the same may be amended, restated, modified or otherwise supplemented
from time to time.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurocurrency Competitive Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United
States of America.
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"Governmental Authority" means the government of the United States of
America, the United Kingdom or any other nation or any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature, in each case to the extent
regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such
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Person as an account party in respect of letters of credit and letters of
guaranty and (j) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing in accordance with Section 2.08.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period and (c) with
respect to any Fixed Rate Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration (unless
otherwise specified in the applicable Competitive Bid Request), each day prior
to the last day of such Interest Period that occurs at intervals of 90 days'
duration after the first day of such Interest Period, and any other dates that
are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurocurrency Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than 7 days or more
than 180 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurocurrency Borrowing only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurocurrency Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in
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the last calendar month of such Interest Period) shall end on the last Business
Day of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and, in the case of a Revolving Borrowing, thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"Lead Arranger" means Chase Securities Inc.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in dollars or the relevant Alternative
Currency in the London interbank market) at approximately 11:00 a.m., London
time, on the Quotation Day for such Interest Period, as the rate for deposits in
dollars or the relevant Alternative Currency (as applicable) with a maturity
comparable to such Interest Period. In the event that such rate is not available
at such time for any reason, then the "LIBO Rate" with respect to such
Eurocurrency Borrowing for such Interest Period shall be the rate (rounded, if
necessary, to the nearest 1/16 of 1%) at which dollar deposits of $5,000,000 or,
as applicable, deposits in the relevant Alternative Currency of an Alternative
Currency Equivalent of $5,000,000, and for a maturity comparable to such
Interest Period are offered by the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, on the Quotation Day for such Interest
Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means, collectively, this Agreement and all other
agreements, instruments and documents executed in connection herewith and
therewith, in each case as the same may be amended, restated, modified or
otherwise supplemented from time to time.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
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"Loan Party" mean each of the Borrower and Newco and "Loan Parties"
means the Borrower and Newco collectively.
"Louisiana IDB" means the Industrial Development Board of the Parish of
Calcasieu Inc. (Louisiana) 6% Industrial Development Revenue Bonds (Olin
Corporation Project) due March 1, 2008.
"Margin" means, with respect to any Competitive Loan bearing interest
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, property or financial condition, of the Borrower
and its Subsidiaries taken as a whole or (b) the validity or enforceability of
any of the Loan Documents or the rights or remedies of the Lenders or the
Administrative Agent thereunder.
"Material Indebtedness" means Indebtedness (other than the Loans), or
obligations in respect of one or more Hedging Agreements, of any one or more of
the Borrower and its Subsidiaries in an aggregate principal amount exceeding
$5,000,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of the Borrower or any Subsidiary in respect of any
Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
"Maturity Date" means the date which falls eighteen calendar months
after the Closing Date.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Proceeds" means the gross proceeds received by or on behalf of the
Borrower or any of its Subsidiaries in respect of any Target Asset Sale
Prepayment Event, less the sum of, without duplication, (i) all taxes (other
than income taxes) payable by the Borrower or any of its Subsidiaries in
connection with such Target Asset Sale Prepayment Event and the Borrower's good
faith estimate of income taxes payable in connection therewith, (ii) the amount
of any reserves established in accordance with GAAP against any liabilities
associated with the asset Disposed of; provided that any subsequent reduction
in such reserves (other than in connection with the payment of any such
liability) shall be deemed to be Net Proceeds of a Target Asset Sale Prepayment
Event occurring on the date of
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such reduction, (iii) the amount of any Indebtedness secured by the asset
Disposed of and required to be, and in fact, repaid with the proceeds of such
Disposition and (iv) reasonable and customary fees, commissions and expenses and
other costs paid by the Borrower or any of its Subsidiaries in connection with
such Disposition.
"Newco" has the meaning ascribed to such term in the Preamble to this
Agreement.
"Offer" means the recommended cash offer for the Shares described in
the Offer Documents.
"Offer Borrowings" means each Borrowing used or to be used by the
Borrower to fund the purchase by Newco of Shares pursuant to acceptances of the
Offer.
"Offer Document" means the document to be delivered to the shareholders
of Target containing the recommended cash offer for the Shares.
"Other Borrowings" means all Borrowings other than Offer Borrowings,
being Borrowings to fund (i) the purchase by Newco of Shares under Part XIIIA of
the Compa nies Act, (ii) the Refinancing, (iii) the working capital and general
corporate needs of the Target and its subsidiaries,(iv) fees and expenses
related to the Acquisition and Refinancing and (v) the refinancing of
indebtedness incurred and used to repay Scheduled Indebtedness and fees and
expenses referred to in (iv) above.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Outstanding Approvals" means all authorizations from Governmental
Authorities the obtaining of which are conditions in the Offer.
"Panel" means the U.K. Panel on Takeovers and Mergers.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Payment Obligation Date" means the date which is two Business Days
prior to the date on which Newco is first obligated to pay for any of the Shares
acquired pursuant to acceptance of the Offer.
"Permitted Accounts Receivable Securitization" means one or more
receivables financing programs providing for (i) the sale or contribution of
Accounts Receivable by the
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Borrower or its Subsidiaries to a Receivables Subsidiary in a transaction or
series of transactions purporting to be sales (and treated as sales for GAAP
purposes), and (ii) the sale, transfer, conveyance, lien or pledge of, or
granting a security interest in, such Accounts Receivables by such Receivables
Subsidiary to any other Person, in each case, without recourse to the Borrower
and its Subsidiaries (other than the Receivables Subsidiaries).
"Permitted Acquisition" means the acquisition of Target pursuant to the
Offer and any acquisition by the Borrower or any of its Subsidiaries of all of
the capital stock of, or all or a substantial part of the assets of, or of a
business unit (including a complete product line) or division of, any Person;
provided that (a) the Administrative Agent shall have been given at least five
Business Days' advance written notice of such acquisition, (b) the Borrower
shall be in compliance, on a pro forma basis after giving effect to such
acquisition, with the covenants contained in Section 6.12, in each case
recomputed as at the last day of the most recently ended Reference Period of the
Borrower for which the relevant information is available as if such acquisition
had occurred on the first day of each relevant period for testing such
compliance, (c) no Default or Event of Default shall have occurred and be
continuing, or would occur after giving effect to such acquisition, (d)
substantially all of such property acquired shall constitute assets of the type
historically used in the business conducted by the Borrower on the date hereof
or reasonable extensions thereof, and (e) any such acquisition for consideration
in excess of $10,000,000 shall have been approved by the board of directors or
comparable governing body of the relevant Person.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, and to secure letters of credit in respect
thereof, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and
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(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Press Release" means the United Kingdom press release of Newco, dated
as of the Announcement Date in the form previously approved by the
Administrative Agent and by which the Offer is or is to be announced.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Quotation Day" means, with respect to any Eurocurrency Borrowing and
any Interest Period, the date on which it is market practice in the relevant
interbank market for prime banks to give quotations for deposits in the currency
of such Borrowing for delivery on the first day of such Interest Period. If such
quotations would normally be given by prime banks on more than one day, the
Quotation Day will be the last of such days.
"Ratings Event" the date upon which the Borrower's Index Debt shall
have been rated by either S&P or Moody's.
"Receivables Subsidiary" means any special purpose, bankruptcy remote
wholly-owned subsidiary of the Borrower formed for the sole and exclusive
purpose of engaging in activities in connection with the financing of Accounts
Receivable in connection with and pursuant to a Permitted Accounts Receivable
Securitization.
"Reference Period" means any period of four consecutive fiscal
quarters.
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"Refinancing" means (x) the initial transactions providing for the
downstreaming of money following the Closing Date to Target and its Subsidiaries
with respect to the repayment of Scheduled Indebtedness of Target and its
Subsidiaries and (y) the refinancing of Scheduled Indebtedness following the
Closing Date.
"Register" has the meaning set forth in Section 9.04.
"Regulations" means all Regulations of the Board as in effect from time
to time.
"Regulation U" means Regulation U of the Board as in effect from time
to time.
"Regulation X" means Regulation X of the Board as in effect from time
to time.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" means release, spill, emission, leaking, pumping, pouring,
emptying, dumping, injection, deposit, disposal, discharge, dispersal, escape,
leaching, or migration into the indoor or outdoor environment or into or out of
any property of Borrower or its Subsidiaries, or at any other location to which
Borrower or any Subsidiary has transported or arranged for the transportation of
any Hazardous Materials, including the movement of Hazardous Materials through
or in the air, soil, surface water, ground water or property of Borrower or its
Subsidiaries or at any other location, including any location to which Borrower
or any Subsidiary has transported or arranged for the transportation of any
Hazardous Materials.
"Remedial Action" means actions required to (i) clean up, remove, treat
or in any other way address Hazardous Materials in the indoor or outdoor
environment, (ii) prevent or minimize the Release or substantial threat of a
material Release of Hazardous Materials so they do not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
environment, or (iii) perform pre-remedial or post- remedial studies and
investigations and post-remedial monitoring and care.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing at least 51% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time; provided
that, for purposes of declaring the Loans to be due and payable pursuant to
Article VII, and for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be included in their respective Revolving
Credit Exposures in determining the Required Lenders.
"Responsible Officer" means the chief executive officer, president any
vice-president or any Financial Officer of the Borrower.
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"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of the Borrower
or any option, warrant or other right to acquire any such shares of capital
stock of the Borrower.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum at such time of (a) the aggregate outstanding principal amount of
all such Lender's Dollar Revolving Loans plus (b) the Dollar Equivalent of the
aggregate outstanding principal amount of all such Lender's Alternative Currency
Loans.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's Ratings Group.
"Scheduled Indebtedness" has the meaning ascribed to such term in
Section 3.12(a).
"Scheduled Liens" has the meaning ascribed to such term in Section
3.12(b).
"Shares" means the outstanding share capital of Target.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three months and
(b) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Sterling" or "GBP" means pounds sterling in lawful currency of the
United Kingdom.
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"Subordinated Indebtedness" means all Indebtedness of the Borrower for
money borrowed of which all payments thereunder are subordinate and junior in
right of payment to the prior payment in full in cash of all obligations now or
hereafter existing under this Agreement and the Existing Revolving Facility.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower (including without
limitation, Newco, and following completion of the Acquisition, Target and each
of its subsidiaries).
"Target" has the meaning assigned to that term in the recitals to this
Agreement.
"Target Asset Sale Prepayment Event" means, in any fiscal year of the
Borrower, any Target Disposition pursuant to Section 6.07(g) the fair market
value of which singly, or when aggregated with all Target Dispositions by the
Borrower and any of its Subsidiaries during such fiscal year, exceeds
$5,000,000.
"Target Disposition" shall mean any Disposition by the Borrower or any
of its Subsidiaries of any of the assets, whether now owned or hereafter
acquired, of the Target or its subsidiaries other than (i) such Dispositions
that are Dispositions described in clauses (a), (b), (c), and (d) of Section
6.07 and (ii) any such Dispositions of property or assets, the fair market value
of which singly or in a series of related transactions does not exceed
$1,000,000.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"364 Day Facility" means the Credit Agreement so entitled dated as of
January 27, 1999 among Olin Corporation, the Borrower, the lenders and agents
from time to time party thereto and The Chase Manhattan Bank, as administrative
agent, as the same may be amended, restated, extended, modified or otherwise
supplemented from time to time.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such
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day is not a Business Day, the next preceding Business Day) by the Board through
the public information telephone line of the 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 is not 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 is
not a Business Day, on the next preceding Business Day) by the Administrative
Agent from three negotiable certificate of deposit dealers of recognized
standing selected by it.
"Transactions" shall mean and include each of the Offer, the Credit
Events occurring on the Closing Date, the Refinancing and the Acquisition.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is deter mined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a
Fixed Rate.
"UK GAAP" means generally accepted accounting principles in the United
Kingdom.
"Whitewash Procedure" means the procedure to be undertaken pursuant to
the Companies Act in order to make use of the private company exemption to
prohibitions against financial assistance thereunder.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
Borrowing"). Eurocurrency Loans or Borrowings may be Alternative Currency Loans
or Borrowings or Dollar Loans or Borrowings.
SECTION 1.03 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to
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any agreement, instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not
to any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05 Exchange Rates. On each Calculation Date, the
Administrative Agent shall determine the Exchange Rate as of such Calculation
Date to be used for calculating relevant Dollar Equivalent and Alternative
Currency Equivalent amounts. The Exchange Rates so determined shall become
effective on such Calculation Date shall remain effective until the next
succeeding Calculation Date and shall for all purposes of this Agreement (other
than any provision expressly requiring the use of a current Ex change Rate) be
the Exchange Rates employed in converting any amounts between the applicable
currencies.
SECTION 1.06 Redenomination of Sterling. (a) Each obligation of any
party to this Agreement to make a payment denominated in the national currency
unit of any member state of the European Union that adopts the Euro as its
lawful currency after the date hereof shall be redenominated into Euro at the
time of such adoption (in accordance with the applicable UK legislation and EC
Treaty). If, in relation to the currency of any such member state, the basis of
accrual of interest expressed in this Agreement in respect of that currency
shall be inconsistent with any convention or practice in the London Interbank
Market for the basis of accrual of interest in respect of the Euro, such
expressed basis shall be replaced by such convention or practice with that if
any Borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with respect to such
Borrowing, at the end of the then current Interest Period.
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(b) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Union and any relevant market conventions or practices
relating to the Euro.
ARTICLE II
The Credits
SECTION 2.01 Commitments. Subject to the terms and conditions set forth
herein and, in particular during the Certain Funds Period, the penultimate
paragraph of Article VII, each Lender agrees to make Revolving Loans to the
Borrower in Dollars or an Alternative Currency from time to time during the
Availability Period in an aggregate principal amount that will not result in (a)
such Lender's Revolving Credit Exposure exceeding such Lender's Commitment or
(b) the sum of the total Revolving Credit Exposures plus the aggregate principal
amount of outstanding Competitive Loans exceeding the total Commitments or (c)
in the case only of Loans constituting Other Borrowings during the Certain Funds
Period, the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans plus the Certain Funds
Committed Amount exceeding the total Commitments. Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Revolving Loans.
SECTION 2.02 Loans and Borrowings.
(a) Each Revolving Loan shall be made as part of a Borrowing consisting
of Revolving Loans made by the Lenders ratably in accordance with their
respective Commitments. Each Competitive Loan shall be made in accordance with
the procedures set forth in Section 2.04. The failure of any Lender to make any
Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments and Competitive Bids of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may
request in accordance herewith, and (ii) each Competitive Borrowing shall be
comprised entirely of Eurocurrency Loans or Fixed Rate Loans as the Borrower may
request in accordance herewith. Each Lender at its option may make any
Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
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(c) At the commencement of each Interest Period for any Eurocurrency
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 (or the Alternative Currency Equivalent thereof)
and not less than $5,000,000 (or the Alternative Currency Equivalent thereof).
Each Competitive Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 (or in the case of Eurocurrency Competitive Borrowings
denominated in an Alternative Currency, the Alternative Currency Equivalent
thereof) and not less than $5,000,000 (or in the case of Eurocurrency
Competitive Borrowings denominated in an Alternative Currency, the Alternative
Currency Equivalent thereof). Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
than a total of ten Eurocurrency Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03 Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurocurrency Borrowing denominated in Dollars,
not later than 11:00 a.m., New York City time, and in the case of a Eurocurrency
Borrowing denominated in an Alternative Currency, not later than 9:30 a.m., New
York City time, in each case three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing whether such Borrowing
is to be a Dollar Borrowing or an Alternative Currency Borrowing, the
initial Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
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If no election as to the Type of Revolving Borrowing is specified, then
the requested Revolving Borrowing shall be an ABR Borrowing. If no currency is
specified with respect to any requested Eurocurrency Revolving Borrowing, then
the Borrowing shall be a Dollar Borrowing. If no Interest Period is specified
with respect to any requested Eurocurrency Revolving Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04 Competitive Bid Procedure.
(a) Subject to the terms and conditions set forth herein, from time to
time during the Availability Period the Borrower may request Competitive Bids
and may (but shall not have any obligation to) accept Competitive Bids and
borrow Competitive Loans; provided that (i) the sum of the total Revolving
Credit Exposures plus the aggregate principal amount of outstanding Competitive
Loans at any time shall not exceed the total Commitments and (ii) during the
Certain Funds Period, the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans plus the Certain
Funds Committed Amount shall not exceed the total Commitments. To request
Competitive Bids, the Borrower shall notify the Administrative Agent of such
request by telephone, in the case of a Eurocurrency Borrowing denominated in
Dollars, not later than 11:00 a.m., New York City time, or in the case of a
Eurocurrency Borrowing denominated in an Alternative Currency, not later than
9:30 a.m., New York City time, in each case four Business Days before the date
of the proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before the date of the
proposed Borrowing; provided that the Borrower may submit up to (but not more
than) three Competitive Bid Requests on the same day, but a Competitive Bid
Request shall not be made within five Business Days after the date of any
previous Competitive Bid Request, unless any and all such previous Competitive
Bid Requests shall have been withdrawn or all Competitive Bids received in
response thereto rejected. Each such telephonic Competitive Bid Request shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Competitive Bid Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Competitive Bid
Request shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurocurrency Borrowing or a
Fixed Rate Borrowing;
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(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.07.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurocurrency Competitive Borrowing, not later than
9:30 a.m., New York City time, three Business Days before the proposed date of
such Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later
than 9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 (or, in the case of a
Eurocurrency Competitive Borrowing denominated in an Alternative Currency, the
Alternative Currency Equivalent thereof) and an integral multiple of $1,000,000
(or, in the case of a Eurocurrency Competitive Borrowing denominated in an
Alternative Currency, the Alternative Currency Equivalent thereof) and which may
equal the entire principal amount of the Competitive Borrowing requested by the
Borrower) of the Competitive Loan or Loans that the Lender is willing to make,
(ii) the Competitive Bid Rate or Rates at which the Lender is prepared to make
such Loan or Loans (expressed as a percentage rate per annum in the form of a
decimal to no more than four decimal places) and (iii) the Interest Period
applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower may
accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurocurrency Competitive
Borrowing, not later than 10:30 a.m., New York City time, three Business Days
before the date of the proposed Competitive Borrowing, and in the case of a
Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the
proposed date
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of the Competitive Borrowing; provided that (i) the failure of the Borrower to
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
the Borrower shall not accept a Competitive Bid made at a particular Competitive
Bid Rate if the Borrower rejects a Competitive Bid made at a lower Competitive
Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, the Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 (or, in the case of a Eurocurrency Competitive Borrowing
denominated in an Alternative Currency, the Alternative Currency Equivalent
thereof) and an integral multiple of $1,000,000 (or, in the case of a
Eurocurrency Competitive Borrowing denominated in an Alternative Currency, the
Alternative Currency Equivalent thereof); provided further that if a Competitive
Loan must be in an amount less than $5,000,000 (or, in the case of a
Eurocurrency Competitive Borrowing denominated in an Alternative Currency, the
Alternative Currency Equivalent thereof) because of the provisions of clause
(iv) above, such Competitive Loan may be for a minimum of $1,000,000 (or, in the
case of a Eurocurrency Competitive Borrowing denominated in an Alternative
Currency, the Alternative Currency Equivalent thereof) or any integral multiple
thereof, and in calculating the pro rata allocation of acceptances of portions
of multiple Competitive Bids at a particular Competitive Bid Rate pursuant to
clause (iv) the amounts shall be rounded to integral multiples of $1,000,000
(or, in the case of a Eurocurrency Competitive Borrowing denominated in an
Alternative Currency, the Alternative Currency Equivalent thereof) in a manner
determined by the Borrower. A notice given by the Borrower pursuant to this
paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if so,
the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid
in its capacity as a Lender, it shall submit such Competitive Bid directly to
the Borrower at least one quarter of an hour earlier than the time by which the
other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
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SECTION 2.05 [not used].
SECTION 2.06 [not used].
SECTION 2.07 Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 12:00
noon, New York City time to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
or, in respect of Offer Borrowings, to the extent so directed by the Borrower in
writing in the applicable Borrowing Request or Competitive Bid Request, of
Newco, in each case maintained (unless otherwise approved by the Administrative
Agent) with the Administrative Agent and designated by the Borrower in the
applicable Borrowing Request or Competitive Bid Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.08 Interest Elections.
(a) Each Revolving Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurocurrency Revolving
Borrowing, shall have an initial Interest Period as specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a Eurocurrency
Revolving Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
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and the Loans comprising each such portion shall be considered a separate
Borrowing. This Section shall not apply to Competitive Borrowings which may not
be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurocurrency Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing in the case of a
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Dollar Loan and the 30-day LIBO Rate for Alternative Currency Loans.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrower, then, so long as an Event of Default
is continuing (i) no outstanding Revolving Borrowing may be converted to or
continued as a Eurocurrency Borrowing and (ii) unless repaid, each Eurocurrency
Revolving Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.09 Termination and Reduction of Commitments.
(a) Unless previously terminated in accordance with the provisions of
this Agreement, the Commitments shall terminate on the earlier to occur of (i)
the Maturity Date, (ii) the date on which the Offer lapses (having not been
declared unconditional in all respects) or is withdrawn, or is referred as
provided in paragraphs (b) or (c) of Appendix I of the Press Release and (iii)
August 15, 2000 if the Offer has not by then been announced.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $5,000,000 and not less
than $10,000,000, (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.11, the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans would exceed the
total Commitments and (iii) during the Certain Funds Period, the Borrower shall
not terminate or reduce the Commitments below the sum of the aggregate principal
amount of then outstanding Other Borrowings and the Certain Funds Committed
Amount. The Commitments shall be permanently reduced in the amount of any
prepayment of the Loans in accordance with Section 2.11(d).
(c) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
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SECTION 2.10 Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan on the Maturity Date and (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Competitive Loan on the last day of the Interest Period
applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the 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) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) in the form
set out in Exhibit B hereto. Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times (including after assignment
pursuant to Section 9.04) be represented by one or more promissory notes in such
form payable to the order of the payee named therein (or, if such promissory
note is a registered note, to such payee and its registered assigns).
SECTION 2.11 Prepayment of Loans.
(a) The Borrower shall have the right at any time and from time to time
to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section; provided that the Borrower shall
not have the right to prepay any Competitive Loan without the prior consent of
the Lender thereof.
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(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.09, then such notice
of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.09. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.13 and any payment required under
Section 2.16.
(c) The Borrower shall on the date, if any, specified in Section
6.07(f) repay Loans in the amounts and otherwise in all respects as provided in
such Section.
(d) The Borrower shall prepay the Loans in the amounts and under the
circumstances set forth below, all such prepayments to be applied as more
specifically provided in subsection (b) above:
(i) Prepayments and Reductions from Target Asset Sale Net Proceeds.
Within five Business Days following receipt by the Borrower or a
Subsidiary of the Net Proceeds in respect of any Target Asset Sale
Prepayment Event, the Borrower shall prepay the Loans in an amount equal
to such Net Proceeds except where and to the extent that:
(A) the Borrower is obligated under the express terms of Section
6.07(f) of each of the Existing Revolving Facilities to apply
such Net Proceeds or portion thereof (the "Repayable Amount")
in prepayment thereunder, in which case the Borrower shall
within five Business Days following receipt (i) prepay
hereunder any portion of such Net Proceeds in respect of which
it is not so obligated and (ii) apply the Repayable Amount in
prepayment of the Existing Revolving Facilities. The Borrower
undertakes to use best efforts as soon as possible and in any
event no more than 10 Business Days following such prepayment
to reborrow an amount equal to the Repayable Amount and apply
such proceeds in pre payment hereunder; or
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(B) the upstreaming of such Net Proceeds by the Target or any
subsidiary of the Target as the case may be, whether by
dividend, intercompany loan or otherwise, is prohibited by UK
law. In the event that such prohibition arises by virtue of
section 151 of the Companies Act, the Borrower will to the
extent possible and as soon as possible, procure the compliance
by all relevant Subsidiaries with the Whitewash Procedure to
permit such prepayment.
(ii) Prepayments and Reductions Due to Issuance of Debt. Within five
Business Days following receipt by the Borrower or a Subsidiary of the
cash proceeds (any such proceeds, net of underwriting discounts and
commissions, arranger fees and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses, being
"Net Debt Proceeds") from the issuance of debt securities and all
borrowings (except and to the extent of Excluded Borrowings and except
Indebtedness to the Borrower or any Subsidiary) of the Borrower or such
Subsidiary after the Closing Date the Borrower shall prepay the Loans in
an aggregate amount equal to 100% of such Net Debt Proceeds;
(iii) Prepayments and Reductions Due to Issuance of Equity Securities.
Within five Business Days following receipt by the Borrower or a
Subsidiary of the cash proceeds (any such proceeds, net of underwriting
discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses, being
"Net Equity Securities Proceeds") from the issuance of equity securities
of the Borrower or such Subsidiary after the Closing Date other than (i)
to the Borrower or any of its Subsidiaries (including, for avoidance of
doubt, Target and its Subsidiaries) and (ii) issuances to directors,
officers or employees or otherwise in connection with employee benefit
arrangements, including any hybrid equity securities, the Borrower shall
prepay the Loans in an aggregate amount equal to 100% of such Net Equity
Securities Proceeds; and
(iv) Prepayments Due to Currency Fluctuations. If on any Calculation
Date the aggregate outstanding Dollar Equivalent of all Loans exceeds the
applicable Commitment due to currency fluctuations by more than 5% of the
Revolving Loan Commitments, the Administrative Agent shall give notice
thereof to the Borrower and the Borrower shall on the date falling two
Business Days thereafter prepay such Loans to the extent necessary so that
after giving effect to such prepayment, the aggregate exposure for all
Loans shall not exceed the Commitment. Further, if on any Calculation
Date the sum of (i) the aggregate outstanding Dollar Equivalent of all
Loans and (ii) the Certain Funds Committed Amount, exceeds the total
Commitments due to currency fluctuations by more than 5% of outstanding
Other Borrowings, the Administrative Agent shall give notice thereof to
the Borrower and the Borrower shall on or before the date falling ten
Business Days thereafter prepay such Loans to the
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extent necessary so that after giving effect to such prepayment the sum of
(i) and (ii) above shall not exceed the Commitments.
SECTION 2.12 Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee, which shall accrue at the Applicable Rate
on the daily amount of the Commitment of such Lender (whether used or unused),
as reduced in accordance with Section 2.09(b) hereof, during the period from and
including the date hereof (or, if later, the date on which such Lender is
committed hereunder) to but excluding the date on which such Commitment
terminates; provided that, if such Lender continues to have any Revolving Credit
Exposure after its Commitment terminates, then such facility fee shall continue
to accrue on the daily amount of such Lender's Revolving Credit Exposure from
and including the date on which its Commitment terminates to but excluding the
date on which such Lender ceases to have any Revolving Credit Exposure. Accrued
facility fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the date on which the Commitments
terminate shall be payable on demand. All facility fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees to the Lenders. Fees paid shall not be refundable
under any circumstances.
SECTION 2.13 Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest at the
Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest (i) in the case of a Eurocurrency Revolving Loan, at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate, or (ii) in the case of a Eurocurrency Competitive Loan, at the LIBO Rate
for the Interest Period in effect for such Borrowing plus (or minus, as
applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
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(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (d) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurocurrency Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate or Eurocurrency
Loans denominated in Sterling shall be computed on the basis of a year of 365
days (or 366 days in a leap year), and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall
be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.14 Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or, in
the case of a Eurocurrency Competitive Loan, the Lender that is required to make
such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
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then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurocurrency Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Borrower for a Eurocurrency Competitive Borrowing shall be
ineffective; provided that (A) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by the Borrower for Eurocurrency
Competitive Borrowings may be made to Lenders that are not affected thereby and
(B) if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.15 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement, Eurocurrency Loans or Fixed Rate Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
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(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.16 Break Funding Payments. In the event of (a) the payment of
any principal of any Eurocurrency Loan or Fixed Rate Loan other than on the last
day of an Interest Period applicable thereto (including as a result of an Event
of Default), (b) the conversion of any Eurocurrency Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(b) and is revoked in accordance there with), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Bid to
make such Loan, or (e) the assignment of any Eurocurrency Loan or Fixed Rate
Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by the Borrower pursuant to Section 2.19, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurocurrency Loan, such loss, cost
or expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for deposits in dollars or the relevant Alternative
Currency of a comparable
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amount and period from other banks in the Eurocurrency market. A certificate of
any Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.17 Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent or Lender (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. The
Administrative Agent and each Lender will, at the Borrower's expense, cooperate
in good faith with the Borrower in any contest as to whether or not such
Indemnified Taxes, Other Taxes, penalties, interest or expenses were correctly
or legally imposed or asserted in the event such Indemnified Taxes, Other Taxes,
penalties, interest or expenses were in the good faith judgment of the
Administrative Agent or such Lender, as the case may be, not legal or not
correctly asserted. If in connection with such contest such Indemnified Taxes,
Other Taxes, penalties, interest or expenses are refunded to the Administrative
Agent or such Lender, the Administrative Agent or such Lender will pay such
refund to the Borrower to the extent the Administrative Agent or such Lender,
determines in its sole discretion that such refund is attributable to any
Indemnified Taxes, Other Taxes, penalties, interest or expenses paid by the
Borrower and to the extent the Borrower has previously indemnified the
Administrative Agent or such Lender therefor pursuant to this Section 2.17, net
of expenses and without interest except any interest (net of taxes) included in
such refund. The Borrower shall return such refund (together with
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any taxes, penalties or other charges) in the event the Administrative Agent or
such Lender is required to repay such refund. Notwithstanding the foregoing,
nothing in this Section 2.17 shall be construed to (i) entitle the Borrower or
any other Persons to any information determined by the Administrative Agent or
any Lender, in each case, in its sole discretion, to be confidential or
proprietary information of the Administrative Agent any Lender, to any tax or
financial information of the Administrative Agent or any Lender or to inspect or
review any books and records of the Administrative Agent or any Lender, or (ii)
interfere with the rights of the Administrative Agent, or any Lender to conduct
its fiscal or tax affairs in such matter as it deems fit.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-
-------------------------------------------------------
offs.
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(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or of amounts payable under
Section 2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon, New York City
time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at 270
Park Avenue, New York, New York, except that payments pursuant to Sections 2.15,
2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon
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shall be payable for the period of such extension. All payments hereunder shall
be made in dollars, except for payments of principal and interest in respect of
Alternative Currency Loans, which shall be made in the relevant Alternative
Currency.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied towards payment of interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counter
claim or otherwise, obtain payment in respect of any principal of or interest on
any of its Revolving Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving Loans then due and
accrued interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
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(e) If any Lender shall fail to make any payment required to be made by
it pursuant to Section 2.07(b) or 2.18(d), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.19 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other than Competitive
Loans), accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to
Section 2.17, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
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ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01 Organization; Powers.
(a) Each of the Borrower and its Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and as proposed to be conducted, to enter into the Loan Documents
to which it is a party and to carry out the transactions contemplated thereby
and, except where the failure to do so, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, is qualified
to do business in, and is in good standing in, every jurisdiction where such
qualification is required.
(b) (other than as may result from the entry into of the Loan
Documents, the Offer Documents and the documents ancillary thereto) prior to
the date of this Agreement, Newco has not undertaken any trading or incurred any
material liabilities of any nature whatsoever whether actual or contingent other
than liabilities for professional fees and any liability which would arise if
Newco were wound up.
SECTION 3.02 Authorization; Enforceability. The Transactions affecting
the Loan Parties are within each Loan Party's corporate powers and have been
duly authorized by all necessary corporate and, if required, stockholder
action. This Agreement and each of the Loan Documents has been duly executed and
delivered by each Loan Party and constitutes a legal, valid and binding
obligation of such Loan Party, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03 Governmental Approvals; No Conflicts. The Transactions
affecting the Loan Parties (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except (i) such as have been obtained or made and are in full force and effect
and, (ii) in respect only of the period from the date hereof to the Closing Date
but not thereafter, the Outstanding Approvals, (b) will not violate any
Contractual Obligation or applicable law or regulation or the charter, by-laws
or other organizational documents of any Loan Party or any of its subsidiaries
or any order of any Governmental Authority, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon any Loan
Party or any of its subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by any Loan Party or any of its
subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of any Loan Party or any of its subsidiaries.
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SECTION 3.04 Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders:
(i) its consolidated balance sheet and statements of income, and cash
flows (x) as of and for the fiscal years ended December 31, 1999 and
December 31, 1998, reported on and audited by KPMG LLP, independent public
accountants, and (y) as of and for the three-month period ended March 31,
2000 certified by its chief financial officer; and
(ii) the Target's (x) consolidated balance sheet, profit and loss
account, statement of total recognized gains and losses and cash flow
statement as of and for the fiscal years ended December 31, 1999 and
December 31, 1998, reported on and audited by PricewaterhouseCoopers,
independent public accoun tants, and (y) summary financial information as
of and for the four-month period ended April 30, 2000 as provided to the
Agent by the Borrower pursuant to Section 4.01(l).
All of the foregoing financial statements delivered pursuant to clause
(a)(i) above present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and its
consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in
sub-clause (i)(y) above.
(b) All financial statements delivered pursuant to clause (a) above,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP in the case of (a)(i) and UK GAAP in the case of (a)(ii)
applied consistently throughout the periods involved. The Borrower and its
Subsidiaries and the Target and its subsidiaries do not have any material
Guarantee obligations, contingent liabilities and liabilities for Taxes, or any
long-term leases or unusual forward or long-term commitments, including any
interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that are not reflected in the most recent
financial statements referred to in this Section 3.04.
(c) Since December 31, 1999, (but in the case of the Target only (and
not, for the avoidance of doubt, the Borrower or its Subsidiaries) to the
knowledge of the Borrower having made all due enquiry), there has been no event,
development or circumstance that has had or could reasonably be expected to have
a Material Adverse Effect on each of the Target and its subsidiaries, or the
Borrower and its Subsidiaries.
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SECTION 3.05 Properties.
(a) Each of the Borrower and its Subsidiaries has good title to, or
valid leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06 Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) the reasonably anticipated outcome of which would, individually
or in the aggregate, result in a Material Adverse Effect (other than the
Disclosed Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any Environmental Permit, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any
Environmental Claim or (iv) knows of any basis for any Environ mental Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or could reasonably be expected to result in, a Material Adverse
Effect.
SECTION 3.07 Compliance with Laws and Agreements. Each of the Borrower
and its Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.08 Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
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SECTION 3.09 Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $10,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $10,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11 Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Offer Document nor any of the other
reports, financial statements, certificates or other information furnished by or
on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the Transactions and the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION 3.12 Scheduled Indebtedness and Scheduled Liens.
(a) Schedule 3.12(a) sets out all the indebtedness for borrowed money
of the Target and its subsidiaries as of a recent date of which the Borrower,
having made all due enquiry is, at the date hereof, aware (the "Scheduled
Indebtedness").
(b) Schedule 3.12(b) sets out all the Liens (other than Permitted
Encumbrances) of the Target and its subsidiaries securing the Scheduled
Indebtedness of which the Borrower having made all due enquiry is, at the date
hereof, aware.
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SECTION 3.13 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 that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 3.14 Federal Regulations. No part of the proceeds of any Loans
will be used for "buying" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect that would cause the Loans to be in violation of the
provisions of the 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 Form FR G-3 or Form FR U-1, as applicable, referred to in
Regulation U.
SECTION 3.15 Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, there are no strikes
or other labor disputes against any Loan Party or any of its Subsidiaries
pending or, to the knowledge of the Borrower, threatened.
SECTION 3.16 Options. There are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than (i) stock
options granted to employees or directors and directors' qualifying shares and
(ii) customary shareholders rights plans in effect from time to time) of any
nature relating to any Capital Stock of the Borrower or any Subsidiary, except
as created by the Loan Documents.
SECTION 3.17 Insurance. Each Loan Party has for itself and its
Subsidiaries insurance from financially sound and reputable insurers or
maintains with such insurers valid and collectible insurance with respect to
their respective assets and businesses which is required to be obtained and
maintained by it pursuant to Section 5.05 hereof.
ARTICLE IV
Conditions
SECTION 4.01 Announcement Date and Effectiveness of Commitments. The
obligations of the Lenders to make Revolving Loans to the Borrower shall not
become effective until the date on which each of the following conditions is
satisfied or waived in accordance with Section 9.02 (and the Administrative
Agent's written confirmation (which confirmation shall be given promptly
following satisfaction of the final condition) that the following conditions are
satisfied shall be conclusive evidence thereof for purposes of this Section 4.01
but shall not deny Administrative Agent or the Lenders of the exercise of any
remedies, which exercise shall not be inconsistent with the confirmation to be
given for the purposes of compliance with Rule 24.7 of the City Code):
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(a) The Administrative Agent shall have received all of the following,
each of which shall be originals unless otherwise specified, each properly
executed by each party thereto, each dated no more than four Business Days prior
to the Announcement Date and each in form and substance reasonably satisfactory
to Administrative Agent and its legal counsel (unless otherwise provided, or, in
the case of the date of any of the following, unless Administrative Agent
otherwise agrees or directs):
(i) at least one executed counterpart of this Agreement, together with
arrangements satisfactory to Administrative Agent for additional executed
counter parts, sufficient in number for distribution to the Lenders and
the Borrower together with all Exhibits thereto;
(ii) Administrative Agent shall have received (x) a certificate as to
the good standing of the Borrower as of a recent date, from the State
Corporation Commission of the Commonwealth of Virginia; (y) a certificate
of the Secretary of each Loan Party dated the Announcement Date and
certifying (A) that attached thereto is a true and complete copy of the
articles or certificate of incorporation, the by-laws or memorandum and
articles of association and other organizational documents of such Loan
Party as in effect on the Announcement Date and at all times since the
date of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the
board of directors or a Committee of the board of directors of such Loan
Party, as applicable, authorizing the execution, delivery and performance
of the Loan Documents to which such person is a party (including in the
case of the Borrower, the borrowings hereunder), and that such resolutions
have not been modified, rescinded or amended and are in full force and
effect, (C) that the certificate or articles of incorporation of the
Borrower have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
clause (x) above, and (D) as to the incumbency and specimen signature of
each officer authorized, to the extent applicable, to act with respect to
the Loan Documents and each of the other documents related thereto; and
(z) a certificate of another officer as to the incumbency and specimen
signature of the Secretary executing the certificate pursuant to clause
(y) above.
(b) Administrative Agent shall have received, on behalf of itself and
the Lenders, a favorable written opinion of each of (i) Cravath, Swaine & Moore,
special United States counsel for the Loan Parties, substantially to the effect
set forth in Exhibit C, (ii) Hunton and Williams special Virginia counsel of the
Borrower to the effect set forth in Exhibit C, (iii) Herbert Smith, special
United Kingdom counsel for the Loan Parties, substantially to the effect set
forth in Exhibit C and (iv) the General Counsel for the Borrower to the effect
set forth in Exhibit C.
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(c) The Administrative Agent's and Lead Arranger's fees payable and
other amounts due and payable prior to the Announcement Date shall have been
paid.
(d) Except as set forth on Schedule 3.06, no material action, suit,
proceeding or investigation shall be pending against the Borrower; no law,
regulation, judgment or court order shall be applicable that constrains,
prevents or imposes materially adverse conditions upon the Offer or the making
of the Loans; and the Borrower shall have received all governmental and material
third party approvals and consents necessary in connection with the Transactions
(other than the Outstanding Approvals) and all such approvals and consents shall
be in full force and effect.
(e) No circumstance or event shall have occurred that constitutes a
Material Adverse Effect since December 31, 1999.
(f) The reasonable costs and expenses of Administrative Agent in
connection with the preparation of the Loan Documents payable pursuant to
Section 9.03 and for which invoices have been presented shall have been paid.
(g) The representations and warranties of the Borrower contained in
Article III shall be true and correct in all material respects.
(h) The Administrative Agent shall have received satisfactory evidence
that the Offer has been recommended by the board of directors of Target.
(i) The Administrative Agent shall have received copies, certified as
being true and complete copies by an authorized officer of the Borrower, of the
Press Release (in sufficient quantity for each Lender).
(j) The Administrative Agent shall have received evidence that the
resolutions of the board of directors of the Borrower and Newco necessary to
launch the Offer have been obtained.
(k) There shall not have occurred any Default or Event of Default.
(l) The Administrative Agent shall have received, in each case
satisfactory to the Required Lenders and the Administrative Agent, (i)
historical audited financial statements of the Borrower and the Target, (ii)
unaudited interim consolidated financial statements of the Borrower for the
three-month period ended March 31, 2000, (iii) summary financial information of
the Target for the four-month period ended April 30, 2000, (iv) 1999 year end
pro forma consolidated EBITDA and other summary accounts (including sales and
operating income) of the Borrower after giving effect to the Acquisition and (v)
four-year projections of the Borrower after giving effect to the Acquisition.
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(m) The Administrative Agent shall have received, and the
Administrative Agent and the Required Lenders shall be satisfied with such
financial, business and other information regarding the Target and its
Subsidiaries relating to the Transactions as it shall have reasonably requested,
including, without limitation, all matters related to insurance, ERISA, labor,
intellectual property, taxes and environmental liabilities relating to the
Target and its subsidiaries.
(n) The Administrative Agent and the Required Lenders shall be
satisfied as to arrangements to repay all Scheduled Indebtedness with the
proceeds of the initial Loans constituting Other Borrowings and to terminate all
Scheduled Liens, if any, except as otherwise agreed by the Administrative Agent
(on the instructions of the Required Lenders) and except if repayment of such
indebtedness of Target or its subsidiaries is prohibited by applicable law or
binding contractual terms, in which case, commercially reasonable efforts will
be taken to repay such indebtedness as promptly as practicable.
(o) The Administrative Agent shall have received evidence,
satisfactory to it and the Required Lenders, that any actions of the
shareholders of the Borrower required to implement the Offer have been taken or
confirmation from the Borrower that no such action is required.
SECTION 4.02 Conditions to Closing. The obligations of the Lenders to
make the initial Revolving Borrowing on the Closing Date is subject to the
Announcement Date having occurred, and the satisfaction of the following
conditions precedent (unless all of the Lenders, in their sole and absolute
discretion, shall agree otherwise) on or before the date which is the last day
of the Certain Funds Period:
(a) The Administrative Agent shall have received a copy, certified as
being a true and complete copy by an authorized officer of the Borrower, of the
Offer Document reflecting the terms of the Press Release.
(b) Administrative Agent shall have received a copy of the
announcement that the Offer has been declared or become unconditional in all
respects together with an Officer's Certificate that no condition to the Offer
has been waived except to the extent permitted hereunder.
(c) All fees and other amounts due and payable by the Borrower under
the Loan Documents prior to the Closing Date (including pursuant to any fee
letter signed by Borrower and including all expenses in respect of which
invoices have been presented) shall have been paid in full.
(d) To the extent requested at least 3 Business Days prior to the
Closing Date, notes in the form of Exhibit B executed by the Borrower in favor
of any requesting
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Lender with respect to Revolving Loans, each in a principal amount equal to that
Lender's Commitment.
(e) The condition in the Offer relating to the obtaining of all
Outstanding Approvals necessary in connection with the Offer shall have been
satisfied (or waived with the consent of the Required Lenders).
SECTION 4.03 Conditions to Offer Borrowings.
The obligation of each Lender to make any Revolving Loan consisting of
any Offer Borrowing is subject to (i) the Announcement Date and the Closing Date
having occurred (or having occurred simultaneously therewith), (ii) the Certain
Funds Period not having ended and to (iii) the following conditions precedent,
each of which shall be satisfied prior to the making of any Offer Borrowing
(unless all the Lenders, in their sole and absolute discretion, shall agree
otherwise):
(a) Prior to or contemporaneously with such Offer Borrowing, Newco
shall have received acceptances for or acquired and/or agreed to acquire,
whether pursuant to the Offer or otherwise, Shares carrying in aggregate at
least equal to a percentage of the voting rights of Target set out in a letter
of even date herewith from the Administrative Agent to the Borrower.
(b) No Default or Event of Default pursuant to subsections (a), (b),
(d), (h), (i) or (j) of Article VII shall have occurred and be continuing in
respect of the Borrower or Newco.
(c) Newco shall not (without the consent of the Required Lenders) have
waived any of the material conditions or varied any of the material terms of the
Offer (other than those as required by the City Code) as set forth in the
Announcement, other than any waiver of the Acceptance Condition (but not below
the agreed percentage referred to in (a) above) or an extension of the time for
acceptance of the Offer (but not later than the last day of the Certain Funds
Period, without the consent of the Required Lenders) or any waiver of the
conditions referred to in Section 4.02(e) with the consent of the Required
Lenders.
(d) The price payable per share of Shares acquired pursuant to the
Offer shall not, without the consent of the Required Lenders, have been
increased above a price per share set out in a letter of even date herewith from
the Administrative Agent to the Borrower.
SECTION 4.04 Conditions to Other Borrowings. The obligation of each
Lender to make a Revolving Loan consisting of any Other Borrowing, is subject to
the Announcement Date and the Closing Date having occurred and to the
satisfaction of the following conditions:
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(a) The representations and warranties of the Borrower set forth in
Article III of this Agreement shall be true and correct on and as of the date of
such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing no Default shall have occurred and be continuing.
(c) All Scheduled Indebtedness shall have been repaid in full and all
Scheduled Liens securing Scheduled Indebtedness being repaid released or shall
be repaid and released in full with the proceeds of the initial Loans
constituting Other Borrowings, except if (i) otherwise agreed by the
Administrative Agent following a review by it and/or its counsel of the
documentation evidencing such indebtedness and the commitments hereunder are
reduced by an amount equal to the debt not repaid or (ii) repayment of such
indebtedness of Target or its subsidiaries is prohibited by applicable law or
binding contractual terms, in which case, commercially reasonable efforts will
be taken to repay such indebtedness as promptly as practicable.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
ARTICLE V
Covenants
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01 Financial Statements; Ratings Change and Other
Information. The Borrower will furnish to the Administrative Agent and each
Lender:
(a) within 90 days after the end of each fiscal year of the Borrower
its audited consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on by KPMG LLP or other independent public accountants of
recognized national standing (without a "going concern" or like qualification or
exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance sheet and
related statements of
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operations, and cash flows as of the end of and for such fiscal quarter and the
then elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of (or, in
the case of the balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly in all material
respects the financial condition and results of operations of the Borrower and
its consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements under (i)
clause (a) or (b) above, a certificate of a Financial Officer of the Borrower
(A) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (B) setting forth reasonably detailed calculations
demonstrating compliance with Section 6.12(a) and (b), and (C) stating whether
any change in GAAP or in the application thereof has occurred since the date of
the audited financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate and (ii) clause (a) above, a
certificate of a Responsible Officer of the Borrower containing a list of
Subsidiaries of the Borrower as of such date, along with a list of each new
Subsidiary acquired or formed, and each Subsidiary dissolved or liquidated,
since the last such certification;
(d) concurrently with any delivery of financial statements under clause
(a) above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may
be limited to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be;
(f) promptly after Moody's or S&P shall have announced a change in the
rating established or deemed to have been established for the Index Debt,
written notice of such rating change; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement, as
the Administrative Agent or any Lender may reasonably request.
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SECTION 5.02 Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any of its Subsidiaries, the reasonably anticipated outcome of which
would result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower and its Subsidiaries in an aggregate amount exceeding
$10,000,000;
(d) the commencement of, or any material development in, any action,
suit, proceeding or investigation affecting the Borrower or any of its
Subsidiaries or any of their respective properties before any arbitrator or
Governmental Authority, in which the amount of any claim, damage, penalty or
fine asserted against the Borrower or its Subsidiaries that the Borrower
reasonably determines is not covered by insurance is $15,000,000 or more;
(e) the occurrence of one or more of the following, to the extent that
any of the following, if adversely determined, could reasonably be expected to
result in liability of the Borrower or any of its Subsidiaries in excess of
$7,500,000 or a fine or penalty in excess of $2,500,000: (i) written notice,
claim or request for information to the effect that the Borrower or any of its
Subsidiaries is or may be liable in any material respect to any Person as a
result of the presence of or the Release or substantial threat of a material
Release of any Hazardous Materials into the environment; (ii) written notice
that the Borrower or any of its Subsidiaries is subject to investigation by any
Governmental Authority evaluating whether any Remedial Action is needed to
respond to the presence or to the Release or substantial threat of a material
Release of any Hazardous Materials into the environment; (iii) written notice
that any property, whether owned or leased by, or operated on behalf of, the
Borrower or any of its Subsidiaries is subject to a material Environmental Lien;
(iv) written notice of violation to the Borrower or any of its Subsidiaries of
any Environmental Laws or Environmental Permits; or (v) commencement or written
threat of any judicial or administrative proceeding alleging a violation of any
Environmental Laws or Environmental Permits;
(f) upon written request by Administrative Agent, a report providing an
update of the status of each environmental, health or safety compliance, hazard
or liability issue identified in any notice or report required pursuant to
clause (e) above and any other environmental, health and safety compliance
obligation, remedial obligation or liability that could reasonably be expected
to have a Material Adverse Effect (all such notices shall
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describe in reasonable detail the nature of the claim, investigation, condition,
occurrence or Remedial Action and the Borrower's or such Subsidiary's response
thereto); and
(g) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03 Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.03.
SECTION 5.04 Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05 Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
SECTION 5.06 Books and Records; Inspection Rights. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as reason
ably requested.
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SECTION 5.07 Compliance with Laws. The Borrower will, and will cause
each of its Subsidiaries to, comply with all Contractual Obligations and laws,
rules, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.08 Use of Proceeds. The proceeds of the Loans will be used
only:
(a) to refinance the Indebtedness of the Target set forth on Schedule
5.08 (the "Scheduled Indebtedness");
(b) for the financing of the Offer and the purchase of Shares pursuant
to the Compulsory Acquisition;
(c) to meet part of the working capital and general corporate
requirements of the Target and its subsidiaries following the Acquisition;
(d) to pay fees, expenses and transaction costs in connection with the
Acquisition and Refinancing (and their financing); and
(e) to refinance Indebtedness incurred and used by the Borrower to
refinance Scheduled Indebtedness and to pay fees, expenses and transaction costs
in connection with the Transactions.
No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations U and X.
The Borrower will contribute the proceeds of all Offer Borrowings to its direct
subsidiary Arch Chemicals Holdings, Inc., being the direct parent of Newco, and
will cause Arch Chemicals Holdings, Inc. to contribute or loan all such proceeds
to Newco. Newco undertakes to use the proceeds of all Offer Borrowings so loaned
or contributed to it to pay for the purchase of Shares pursuant to the Offer.
SECTION 5.09 Environmental Laws. The Borrower will, and will cause each
of its Subsidiaries to (a) comply in all material respects with, and ensure
compliance in all material respects by all tenants and subtenants, if any, with,
all applicable Environ mental Laws, and obtain and comply in all material
respects with and maintain, and ensure that all tenants and subtenants obtain
and comply in all material respects with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws and (b) conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required under
Environ mental Laws and promptly comply in all material respects with all lawful
orders and directives of the Governmental Authorities regarding Environmental
Laws.
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SECTION 5.10 Offer.
(a) Promptly upon the occurrence of any lapse or withdrawal of the
Offer or the end of the Certain Funds Period or the date the Offer is finally
closed in accordance with the Code, the Borrower will give notice to the
Administrative Agent (who shall notify the Lenders) that the same has occurred.
(b) Promptly upon satisfaction of the condition specified in Section
429 (1) or (2) of the Companies Act for giving a notice under that Section in
respect of any Shares and the Offer becoming or being declared unconditional in
all respects, the Borrower shall if it is entitled to do so cause Newco to (a)
implement the procedures set out in Section 429 et seq. of the Companies Act to
acquire any outstanding Shares and (b) use all commercially reasonable endeavors
to acquire 100 per cent of the Shares as promptly as practicable.
(c) The Borrower and Newco covenant and agree that without the prior
written agreement of the Administrative Agent (which agreement shall, in the
case of (i) below, not be unreasonably withheld or delayed and in the case of
(ii) below be on the instructions of the Required Lenders) neither the Borrower
nor Newco will (i) issue or cause to be issued (or permit any other Affiliate of
the Borrower to issue) any press release or other written public statement, the
relevant portion of the text of which has not been previously approved by the
Administrative Agent (which such approval shall not be unreasonably withheld or
delayed), which makes reference to this Agreement or to some or all of the
Lenders in relation to this Agreement unless the public statement is required by
applicable law, governmental authority, the City Code or any stock exchange or
is in connection with any judicial proceeding concerning this Agreement (in
which case the Borrower shall notify the Administrative Agent and the Lenders as
soon as practicable upon becoming aware that the public statement is required)
(provided that the Administrative Agent and the Lenders acknowledge that,
pursuant to the City Code, (X) a summary of the principal terms of this
Agreement will be disclosed in the Offer Document, and (Y) this Agreement will
be available for public inspection while the Offer remains open for acceptance
and that a copy of this Agreement and any amendments thereto and summary
descriptions thereof may be filed with the Securities and Exchange Commission)
or (ii) take or permit to be taken any step as a result of which the offer price
stated in the Offer Document is, or may be required to be, increased beyond the
level set out in a letter of even date herewith from the Administrative Agent to
the Borrower; or
(d) Each of the Borrower and Newco covenants and agrees that, in
respect of the Offer, it will comply with the City Code (subject to any
applicable waivers by the Panel), the Financial Services Act 1986, the Companies
Act and all other applicable laws.
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(e) Unless to do so would be a breach of any other provision of this
Section 5.10, Newco covenants and agrees that it will keep the Administrative
Agent informed as to the status and progress of the Offer and, in particular,
will from time to time and promptly on request give to the Administrative Agent
reasonable details as to the current level of acceptances of the Offer
(including a copy of every certificate concerning the number of acceptances
delivered by the receiving banker in respect of the Offer to Newco, the
Borrower, or their respective advisers pursuant to the City Code) and such other
matters relevant to the Offer as the Administrative Agent may reasonably
request.
(f) Newco covenants and agrees, in any event, to give notice to lapse
the Offer in the event that 120 days after Announcement Date the Offer has not
been declared wholly unconditional as to acceptances, unless the Required
Lenders agree in their absolute discretion to extend such period.
(g) Newco covenants and agrees to procure that, as soon as legally and
practically possible after the date the Offer becomes or is declared
unconditional in all respects the Target shall be removed from the Official List
of the London Stock Exchange Limited and re-registered as a private company.
SECTION 5.11 Refinancing of Scheduled Indebtedness and Release of
Scheduled Liens.
The Borrower shall, and shall cause its Subsidiaries (including Newco
and Target and its subsidiaries) to (i) repay on the Closing Date all Scheduled
Indebtedness which is required to be repaid on such date to prevent a default
occurring under the terms of the agreements evidencing such Scheduled
Indebtedness and (ii) to procure the release of the Scheduled Liens related
thereto. If any Scheduled Indebtedness is not repaid on the Closing Date, the
Borrower shall use, and shall cause its Subsidiaries (including Newco and Target
and its subsidiaries) to use, commercially reasonable efforts to repay such
Scheduled Indebtedness and to procure the release of all remaining Scheduled
Liens as promptly as practicable but in no event later than 120 days after the
Closing Date, except and to the extent (i) otherwise agreed by the Required
Lenders and the Administrative Agent following a review by them and/or their
counsel of documentation evidencing such indebtedness and the Commitments under
the Facility are reduced by an amount equal to the debt not repaid or (ii)
repayment of such indebtedness of Target and its subsidiaries is prohibited by
applicable law or binding contractual terms, in which case commercially
reasonable efforts will be used to repay such indebtedness as promptly as
practicable, provided in either case that the provisions of Sections 6.01 and
6.02 are complied with.
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SECTION 5.12 Ratings Process.
The Borrower shall use all commercially reasonable efforts to procure
the occurrence of a Ratings Event as soon as practicable after the date hereof
and in any event no later than June 30, 2001.
SECTION 5.13 Financial Assistance.
Any Subsidiaries of the Borrower to which Section 151 et seq. Companies
Act applies shall at all times comply with the provisions thereof (including,
where appropriate, by following the Whitewash Procedure) and nothing contained
in this Agreement shall require any Subsidiaries to violate the provisions
thereof.
SECTION 5.14 Syndication Process.
After the Announcement Date, the Borrower shall cooperate in all such
respects as may reasonably be requested by the Lead Arranger (or by the
Administrative Agent on behalf of the Lead Arranger) in connection with the
syndication of the commitments under this Agreement, including the provision of
information for inclusion in written materials furnished to respective syndicate
members and the participation in meetings with respective syndicate members.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full,
the Borrower covenants and agrees with the Lenders that:
SECTION 6.01 Indebtedness. The Borrower will not permit any Subsidiary
to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in Schedule
6.01 and extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof;
(b) Indebtedness to the Borrower or any other Subsidiary;
(c) Guarantees of Indebtedness of the Borrower or any other Subsidiary;
(d) Indebtedness incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease Obligations
and any
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Indebtedness assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof; provided that such
Indebtedness is incurred prior to or within 90 days after such acquisition or
the completion of such construction or improvement;
(e) Indebtedness as an account party in respect of trade letters of
credit;
(f) Indebtedness of Receivables Subsidiaries arising pursuant to
Permitted Accounts Receivable Securitizations in an aggregate principal amount
not to exceed $100,000,000; and
(g) other Indebtedness in an aggregate principal amount not exceeding
$50,000,000 at any time outstanding.
SECTION 6.02 Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Subsidiary
set forth in Schedule 6.02; provided that (i) such Lien shall not apply to any
other property or asset of the Borrower or any Subsidiary and (ii) such Lien
shall secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary or existing on any property or asset
of any Person that becomes a Subsidiary after the date hereof prior to the time
such Person becomes a Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case may be and extensions,
renewals and replacements thereof that do not increase the outstanding principal
amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Subsidiary; provided that (i) such security interests
secure Indebtedness permitted by clause (d) of Section 6.01, (ii) such security
interests and the Indebtedness secured thereby are incurred prior to or within
90 days after such acquisition or the completion
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of such construction or improvement, (iii) the Indebtedness secured thereby
does not exceed 80% of the cost of acquiring, constructing or improving such
fixed or capital assets and (iv) such security interests shall not apply to any
other property or assets of the Borrower or any Subsidiary;
(e) Liens on Accounts Receivable and other assets of any Receivables
Subsidiary arising in connection with any Permitted Accounts Receivable
Securitization; and
(f) Liens securing other Indebtedness of the Borrower and its
subsidiaries not expressly permitted by clauses (a) through (e) above; provided
that the aggregate amount of Indebtedness secured by Liens permitted by this
clause (f) does not at any time exceed $30,000,000 in the aggregate.
SECTION 6.03 Fundamental Changes. The Borrower will not, and will not
permit any Subsidiary to, merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it, or sell, transfer,
lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of its assets, or all or substantially
all of the stock of any of its Subsidiaries (in each case, whether now owned or
hereafter acquired), or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Person may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any Person
other than the Borrower may merge into any Subsidiary in a transaction in which
the surviving entity is a Subsidiary, (iii) any Subsidiary may sell, transfer,
lease or otherwise dispose of its assets to the Borrower or to another
Subsidiary, and the Borrower may sell, transfer, lease or other wise dispose of
its assets to any Subsidiary, (iv) Dispositions otherwise permitted by Section
6.07 shall be permitted and (v) any Subsidiary may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and is not materially disadvantageous to the
Lenders.
SECTION 6.04 Hedging Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
SECTION 6.05 Restricted Payments. The Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment; provided that the Borrower and
its Subsidiaries may make any Restricted Payment which, together with all other
Restricted Payments made by all Persons pursuant to this proviso since the date
hereof would not exceed the sum of (x) $65,000,000 plus (y) 50% of the
cumulative Consolidated Net Income of the Borrower for the period (taken as one
accounting period) since the date hereof through the last day of the fiscal
quarter for which
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financial statements have been delivered pursuant to Section 5.01(a), and
provided further that (i) the Borrower may declare and pay dividends with
respect to its capital stock payable solely in additional shares of its common
stock, (ii) Subsidiaries may declare and pay dividends ratably with respect to
their capital stock, (iii) the Borrower may make Restricted Payments pursuant to
and in accordance with stock option plans or other benefit plans for management
or employees of the Borrower and its Subsidiaries and (iv) the Distribution
shall be permitted, so long as the Borrower Closing shall have previously
occurred.
SECTION 6.06 Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or other wise engage in any other transactions with, any of its
Affiliates except (a) at prices and on terms and conditions not less favorable
to the Borrower or such Subsidiary than could be obtained on an arm's-length
basis from unrelated third parties, (b) transactions between or among the
Borrower and its Subsidiaries not involving any other Affiliate and (c) any
Restricted Payment permitted by Section 6.05.
SECTION 6.07 Disposition of Property. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly dispose of any of
its property, whether now owned or hereafter acquired, or, in the case of any
Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any
Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary
course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 6.03;
(d) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any Subsidiary;
(e) sales of Accounts Receivable pursuant to a Permitted Accounts
Receivable Securitization; provided that the aggregate principal amount of such
financings shall not at any time exceed $100,000,000;
(f) any other Dispositions (except for Target Dispositions) by such
Persons of property for cash or cash equivalents or other readily marketable
publicly traded securities at not less than its fair market value or for other
property of an equal or greater value than the property Disposed of (including,
without limitation, joint venture interests, seller's notes or other
securities), as determined in good faith by the board of directors of the
Borrower or a duly authorized committee thereof at the time of such Disposition;
and
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(g) Target Dispositions to the extent permitted under the Existing
Revolving Facilities, provided that on each occasion that a Target Asset Sale
Prepayment Event occurs, the Borrower will on the date of such Target Asset Sale
Prepayment Event comply with the provisions of Section 2.11(d)(i).
SECTION 6.08 Payments and Modifications of Certain Debt Instruments.
The Borrower will not, and will not permit any of its Subsidiaries to, directly
or indirectly, (a) make or offer to make any optional payment, prepayment,
repurchase or redemption of or otherwise optionally defease or segregate funds
with respect to any Subordinated Indebtedness (other than interest payments
expressly required by the terms thereof), (b) amend, modify, waive or otherwise
change, or consent or agree to any amendment, modification, waiver or other
change to, any of the terms of any other Subordinated Indebtedness (other than
any such amendment, modification, waiver or other change that (i) would extend
the maturity or reduce the amount of any payment of principal thereof or reduce
the rate or extend any date for payment of interest thereon and (ii) does not
involve the payment of a consent fee or that otherwise would not adversely
affect the interests of the Lenders in any manner).
SECTION 6.09 Sales and Leasebacks. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any arrangement providing for the
leasing to the Borrower, or any of its Subsidiaries of real or personal property
that has been or is to be (a) sold or transferred by the Borrower or any of its
Subsidiaries or (b) constructed or acquired by a third party in anticipation of
a program of leasing to the Borrower, or any of its Subsidiaries (any such
transaction, a "Sale-Leaseback"); provided that Sale- Leasebacks by all such
Persons of property having a fair market value not to exceed $50,000,000 in the
aggregate since the date hereof shall be permitted.
SECTION 6.10 Changes in Fiscal Periods. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly permit the fiscal
year of the Borrower to end on a day other than December 31.
SECTION 6.11 Lines of Business. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly enter into any
business, either directly or through any Subsidiary, except for those businesses
in which the Borrower and its Subsidiaries are engaged on the date of this
Agreement or that are reasonably related thereto.
SECTION 6.12 Financial Covenants.
(a) Consolidated Leverage Ratio. The Borrower will not permit the
Consolidated Leverage Ratio as at the last day of any period of four consecutive
fiscal quarters of the Borrower to exceed 3.5:1.0.
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(b) Consolidated Interest Coverage Ratio. The Borrower will not permit
the Consolidated Interest Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower to be less than 3.0:1.0.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and
as the same shall become due and payable, whether at the due date thereof or at
a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of five
Business Days;
(c) any representation or warranty (other than those specified in
clause (d) of this Article (to the extent they relate to the Borrower and
Newco)) made or deemed made by or on behalf of the Borrower or any Subsidiary in
or in connection with this Agreement or any amendment or modification hereof or
waiver hereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or any
amendment or modification hereof or waiver hereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Sections 5.08, 5.10 (other than 5.10(c)(i),
5.10(e) and 5.10(g)), 6.01, 6.02, 6.03, 6.05, 6.06 or 6.07, or any of the
representations and warranties in Sections 3.01, 3.02 and 3.03 (as they relate
to the Borrower and Newco) shall prove to be incorrect in any material respect
when made or deemed made;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clause (a), (b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the Administrative
Agent to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable;
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(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary (or prior to completion of the
Acquisition, the Target or any material subsidiary of the Target) or its debts,
or of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary (or prior to
completion of the Acquisition, the Target or any material subsidiary of the
Target) or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary (or prior to completion of the
Acquisition, the Target or any material subsidiary of the Target) shall (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any Subsidiary
(or prior to completion of the Acquisition, the Target or any material
subsidiary of the Target) or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary (or prior to completion of the
Acquisition, the Target or any material subsidiary of the Target) shall become
unable, admit in writing its inability or fail generally to pay its debts as
they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 60 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Borrower or any Subsidiary to enforce any such
judgment;
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(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower; provided, that
notwithstanding any other provision of the Loan Documents, during the Certain
Funds Period, the Administrative Agent and the Lenders (or any of them or any
other party) shall not be entitled to (i) terminate or reduce the Commitments
below the sum of the Certain Funds Committed Amount and the aggregate principal
amount of then outstanding Other Borrowings, (ii) rescind this Agreement nor,
(iii) declare the Loans due and payable (or due and payable on demand) or
accelerate any principal amounts outstanding hereunder howsoever described, in
whole or in part arising on the basis of an Event of Default unless an Event of
Default described in subsection (a), (b), (d), (h), (i) or (j) in respect of the
Borrower or Newco shall have occurred and be continuing.
Notwithstanding anything to the contrary in the preceding paragraph,
during the Clean-up Period, neither the Administrative Agent nor any Lender may
(i) terminate or reduce the Commitments, (ii) rescind this Agreement or (iii)
declare the Loans to be due and payable (or due and payable on demand) or
accelerate any principal amounts outstanding hereunder, howsoever described, as
a result solely of one or more Defaults or Events of Defaults described in
paragraphs (c), (d), (e) or (f) of this Article VII; provided that the event or
circumstance giving rise to such Default or Event of Default, or the result of
such Potential Event of Default or Events of Default, (i) directly relates to
Target or any of its subsidiaries (or any of their businesses, assets or
liabilities), (ii) is capable of being cured or remedied during the Clean-up
Period and (iii) arose prior to the Closing Date; provided, further, that the
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Administrative Agent and the Lenders shall be entitled to exercise any and all
rights and remedies granted to them hereunder and under the Loan Documents with
respect to an occurrence or continuation of any such Default or Event of Default
after the expiration of the Clean-up Period.
ARTICLE VIII
The Administrative Agent
In order to expedite the transactions contemplated by this Agreement,
each of the Lenders hereby irrevocably appoints the Administrative Agent as its
agent and authorizes the Administrative Agent to take such actions on its behalf
and to exercise such powers as are delegated to the Administrative Agent by the
terms hereof, together with such actions and powers as are reasonably incidental
thereto.
Each bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and each such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as the Administrative Agent or any of its Affiliates in any capacity and (d) the
Administrative Agent will upon becoming aware of the occurrence of a Default
give notice of such Default to each Lender. The Administrative Agent shall not
be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agree-
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ment, (ii) the contents of any certificate, report or other document delivered
hereunder or in connection here with, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein, (iv)
the validity, enforceability, effectiveness or genuineness of this Agreement or
any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as the Administrative
Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents
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and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while it was acting as the Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon any Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges 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 from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) If to the Borrower or Newco, at:
501 Merritt 7
P.O. Box 5204
Norwalk, Connecticut 06856-5204
Tel: 203-229-3881
Fax: 203-229-3162
Attention: Treasurer
with a copy to:
501 Merritt 7
P.O. Box 5204
Norwalk, Connecticut 06856-5204
Tel: 203-229-2683
Fax: 203-229-3292
Attention: Secretary
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(b) if to the Administrative Agent, to:
The Chase Manhattan Bank
Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention of Tanya Mitchell
(Telecopy No. 212-552-5777)
with a copy to:
The Chase Manhattan Bank
270 Park Avenue
New York 10017
Attention of Lawrence Palumbo and Leland A. Harrs
(Telecopy No. 212-270-7939 and 212-270-7935);
(c) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02 Waivers; Amendments.
(a) No failure or delay by the Administrative Agent or any Lender in
exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into
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by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, or (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender.
SECTION 9.03 Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and (ii) all
out-of-pocket expenses incurred by the Administrative Agent or any Lender,
including the fees, charges and disbursements of counsel for the Administrative
Agent or such Lender, in connection with the enforcement or protection of its
rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any actual or alleged presence or Release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the
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foregoing, whether based on contract, tort or any other theory and regardless of
whether any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to
be paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby except that, the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
in the case of an assignment to a Lender or an Affiliate of a Lender, each of
the Borrower and the Administrative Agent must give their prior written consent
to such assignment (which consent shall in any case not be unreasonably
withheld; it being understood that it is not unreasonable to withhold consent
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with respect to any proposed assignment to any financial institution having net
capital and surplus of less than $1,000,000,000 or senior, unsecured, long-term
indebtedness for borrowed money with a credit rating of less than A-), (ii)
except in the case of an assignment to a Lender or an Affiliate of a Lender or
an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $10,000,000 and after giving effect thereto, the assigning Lender
must have Commitments and Loans aggregating at least $5,000,000, unless each of
the Borrower and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause (iii) shall not apply to rights in respect of outstanding Competitive
Loans, (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default under
clause (h) or (i) of Article VII has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section. By executing and
delivering an Assignment and Acceptance, the assigning Lender thereunder and the
assignee thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (1) such assigning Lender warrants that it
is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim and that its Commitment, and the outstanding
balances of its Loans, in each case without giving effect to assignments thereof
which have not become effective, are as set forth in such Assignment and
Acceptance, (2) except as set forth in (1) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the financial condition of
the Borrower or any of its Subsidiaries or the performance or observance by the
Borrower or any of its Subsidiaries of any of its obligations under this
Agreement, any Loan
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Document or any other instrument or document furnished pursuant hereto, (3) such
assignee represents and warrants that it is legally authorized to enter into
such Assignment and Acceptance; (4) such assignee confirms that it has received
a copy of this Agreement, together with copies of the most recent financial
statements referred to in Section 3.04 or delivered pursuant to Section 5.01 and
such other documents and information as it has been deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (5) such assignee will independently and without reliance upon any
Administrative Agent, such assigning Lender 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 decisions in taking or not taking action under
this Agreement; (6) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent by the terms
hereof, together with such powers as are reasonably incidental thereto, and (7)
such assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a 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 pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent and the other Lenders shall
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continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.17 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as
though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05 Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions
78
<PAGE>
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06 Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of
79
<PAGE>
New York sitting in New York County and of the United States District Court of
the Southern District of New York, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement against the Borrower or its
properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
80
<PAGE>
SECTION 9.12 Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "Information" means
all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.13 Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
81
<PAGE>
SECTION 9.14 Judgment Currency.
(a) If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in one currency into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the first currency
with such other currency in the city in which it normally conducts its foreign
exchange operation for the first currency on the Business Day preceding the day
on which final judgment is given.
(b) The obligation of the Borrower in respect of any sum due from it to
any Lender hereunder shall, notwithstanding any judgment in currency (the
"Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, the Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to the Borrower such excess.
82
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
ARCH CHEMICALS, INC.
By: /s/ W. Paul Bush
-------------------------------
Name: W. Paul Bush
Title: Treasurer
ARCH CHEMICALS UK HOLDINGS LIMITED
By: /s/ W. Paul Bush
-------------------------------
Name: W. Paul Bush
Title: Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
By: /s/ Lawrence Palumbo, Jr.
-------------------------------
Name: Lawrence Palumbo, Jr.
Title: Vice President
83
<PAGE>
Schedule 2.01
Commitments
Lender Commitment
The Chase Manhattan Bank $225,000,000
------------
Total $225,000,000
84
<PAGE>
Schedule 3.06
Disclosed Matters
No matters other than those matters heretofore disclosed in the Borrower's
Report on Form 10-K for the year ended December 31, 1999 and its Quarterly
Report on Form 10-Q for the quarter ended March 31, 2000.
85
<PAGE>
Schedule 3.12(a)
Scheduled Indebtedness of Target and its subsidiaries
---------------------------------------------------------------------------
(000's)
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Revolving Credit Facility GBP 40,706
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Singaporean Dollar Loan GBP 1,422
---------------------------------------------------------------------------
86
<PAGE>
Schedule 3.12(b)
Scheduled Existing Liens of Target and its subsidiaries
As detailed in a letter similarly entitled from the Borrower to the
Administrative Agent, which letter the Borrower hereby undertakes to deliver in
form satisfactory to the Administrative Agent as soon as possible following the
Announcement Date and in any event no later than the earlier to occur of (i) the
Closing Date and (ii) the date falling one calendar month hereafter.
87
<PAGE>
Schedule 6.01
Existing Indebtedness of Arch and its Subsidiaries
----------------------------------------------------------------------
$ millions
----------------------------------------------------------------------
Five-Year Revolving Credit Facility 125
----------------------------------------------------------------------
364-Day Revolving Credit Facility 15
----------------------------------------------------------------------
Other borrowings 3.4
----------------------------------------------------------------------
Standby Letter of Credit 1.2
----------------------------------------------------------------------
Total 144.6
----------------------------------------------------------------------
88
<PAGE>
Schedule 6.02
Existing Liens of Arch and its Subsidiaries
Liens in connection with the Louisiana IDB.
89
<PAGE>
Schedule 7
Calculation of Additional Cost
1. The Additional Cost shall be calculated by the Administrative Agent in
respect of each period for which it falls to be calculated relating to an
Alternative Currency Loan in accordance with the following formulae:
In relation to Eurocurrency Loans denominated in Sterling:
CL + S(L-Z) = 0.01F
--------------------- = per cent. per annum
100 - (C+S)
In relation to Eurocurrency Loans denominated in an Alternative Currency:
0.01F
Y ----------- = per cent. per annum
100
Where:
C = The amount required to be held as a non-interest bearing cash ratio
deposit with the Bank of England expressed as a percentage of an
eligible institution's eligible liabilities (above any stated
minimum).
F = The amount of Sterling per (pound)1,000,000 of the fee base of an
authorised institution payable to the Financial Services Authority
per annum (disregarding any minimum fee payable under the Fees
Regulations).
L = The rate of interest per annum at which Sterling deposits of an
amount comparable to the Loan are offered by the Administrative Agent
to leading banks in the London Interbank Market at or about 11.00
a.m. on the date of calculation for a period comparable to the period
for which the Additional Cost is to be calculated.
S = The amount required to be placed as special deposits with the Bank
of England, expressed as a percentage of an eligible institution's
eligible liabilities (above any stated minimum).
Y = The fraction of foreign currency liabilities taken into account
under the Fees Regulations in calculating the fee base (disregarding
any offset for claims on non-resident offices).
Z = The lower of L and the rate of interest per annum paid by the Bank
of England on special deposits at or about 11.00 a.m. on the date of
calculation.
2. For the purposes of calculating the Additional Cost:
90
<PAGE>
(a) C, L, S and Z are included in the formula as numbers and not as
percent ages, e.g. if C = 0.15 per cent. and L = 7 per cent. CL is
calculated as 0.15 x 7;
(b) the formula is applied on the first day of each period for which it
falls to be calculated (and the result shall apply for the duration
of such period);
(c) each amount is rounded up to the nearest four decimal places; and
(d) if the formula produces a negative percentage, the percentage shall
be taken as zero.
3. If alternative or additional financial requirements are imposed by the
Bank of England, the Financial Services Authority or any other United
Kingdom governmental authority or agency which in the Administrative
Agent's opinion (after consultation with the Lenders) make the formulae
(or either of them) no longer appropriate, the Administrative Agent shall
be entitled by notice to the Borrower to stipulate such other formulae as
shall be suitable to apply in substitution for the formulae. Any such
formulae so stipulated shall take effect in accordance with the terms of
such notice.
4. In this Schedule 7:
"authorised" and "institution" have the meanings given to those terms in
the Banking Act 1987;
"Bank of England Act" means the Bank of England Act 1998;
"eligible institution" has the meaning given to that term in schedule 2 to
the Bank of England Act;
"eligible liabilities" has the meaning given to that term in the Cash
Ratio Deposits (Eligible Liabilities) Order 1998 or the applicable
substitute order made under the Bank of England Act as in force on the
date of application of the formula;
"fee base" has the meaning given to that term in the Fees Regulations;
"Fees Regulations" means the Banking Supervision (Fees) Regulations 1998
or the applicable substitute regulations made under the Bank of England
Act as are in force on the date of application of the formula; and
"special deposits" has the meaning given to that term by the Bank of
England on the date of application of the formula.
91
<PAGE>
EXHIBIT A
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of [_________],
2000 (as amended and in effect on the date hereof, the "Credit Agreement"),
among Arch Chemicals, Inc., Newco, the Lenders named therein and The Chase
Manhattan Bank, as Administrative Agent for the Lenders. Terms defined in the
Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns,
without recourse, to the Assignee named on the reverse hereof, and the Assignee
hereby purchases and assumes, without recourse, from the Assignor, effective as
of the Assignment Date set forth on the reverse hereof, the interests set forth
on the reverse hereof (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth on the reverse hereof in the Commitment of the Assignor on
the Assignment Date and Competitive Loans and Revolving Loans owing to the
Assignor which are outstanding on the Assignment Date, but excluding accrued
interest and fees to and excluding the Assignment Date. The Assignee hereby
acknowledges receipt of a copy of the Credit Agreement. From and after the
Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the Assigned Interest,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent of the Assigned Interest, relinquish its rights and be
released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.17(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee
payable to the Administrative Agent pursuant to Section 9.04(b) of the Credit
Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
A-1
<PAGE>
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
<TABLE>
<CAPTION>
==========================================================================================
Principal Amount Percentage Assigned of
Assigned (and identifying Facility/Commitment (set
information as to forth, to at least 8 decimals,
Facility individual Competitive as a percentage of the Facility
Loans and the aggregate
Commitments of all Lenders
thereunder)
------------------------------------------------------------------------------------------
<S> <C> <C>
Commitment Assigned: $ %
------------------------------------------------------------------------------------------
Revolving Loans:
------------------------------------------------------------------------------------------
Competitive Loans:
==========================================================================================
</TABLE>
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor] , as Assignor
By:
------------------------------
Name:
Title:
[Name of Assignee] , as Assignee
By:
------------------------------
Name:
Title:
A-2
<PAGE>
The undersigned hereby consent to the within assignment:
[Name of Borrower], The Chase Manhattan Bank, as Administrative Agent,
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
A-3
<PAGE>
EXHIBIT B
FORM OF REVOLVING CREDIT NOTE
ARCH CHEMICALS, INC.
PROMISSORY NOTE DUE [1]
$[2] New York, New York
[3]
FOR VALUE RECEIVED, the undersigned, Arch Chemicals, Inc., a
Virginia corporation (the "Company"), hereby unconditionally promises to pay to
the order of [4] (the "Lender") on the Maturity Date at the office of The Chase
Manhattan Bank ("Chase"), as Administrative Agent, at 270 Park Avenue, New York,
New York 10017, in immediately available funds, the principal amount of [5]
($[2]) or, if less, the aggregate unpaid principal amount of all Revolving Loans
made by the Lender to the Company pursuant to the Credit Agreement hereinafter
referred to, (in lawful money of the United States of America or the equivalent
thereof in an Alternative Currency, in respect of Alternative Currency Loans,
calculated in accordance with the terms of the Credit Agreement as defined
below) and to pay interest at such office, in like money, from the date hereof
on the unpaid principal amount of such Revolving Loans from time to time
outstanding at the rates and on the dates specified in the Credit Agreement.
All payments of principal and interest in respect of this Revolving Credit Note
are to be made in the currency in which they were borrowed.
The Lender is authorized to record, on the schedules annexed hereto
and made a part hereof or on other appropriate records of the Lender, the date,
the Type and the amount of each Revolving Loan made by the Lender, each
continuation thereof, each conversion of all or a portion thereof to a Revolving
Loan of another Type, the date and amount of each payment or prepayment of
principal thereof, and, in the case of Eurocurrency Loans, the length of each
Interest Period with respect thereto. Any such recordation shall constitute
prima facie evidence of the accuracy of the information so recorded, provided
that the failure of the Lender to make any such recordation (or any error
in such recordation) shall not affect the obligations of the Company hereunder
or under the Credit Agreement in respect of the Revolving Loans.
----------------------
1 Due date is 18 months from the Closing Date.
2 Insert amount of applicable Lender's Commitment in numbers in Dollars.
3 Dated as of Closing Date.
4 Insert applicable Lender's name in capital letters.
5 Insert amount of applicable Lender's Revolving Loan Commitment in words.
B-1
<PAGE>
This Revolving Credit Note is issued pursuant to the Revolving Credit
Agreement dated as of _____, 2000 (as the same may be amended, supplemented or
other wise modified from time to time, the "Credit Agreement") among the
Company, the Lenders party thereto and Chase, as administrative agent for the
Lenders, and is a Loan Document. Capitalized terms used herein without
definition have the meanings assigned to them in the Credit Agreement.
This Revolving Credit Note is subject to mandatory and optional
prepayment as provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid in respect
of this Revolving Credit Note shall become, or may be declared to be,
immediately due and payable in the manner, subject to the limitations, upon the
conditions and with the effect provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Revolving
Credit Note, whether maker, principal, surety, guarantor, endorser or otherwise,
hereby waive presentment, demand, protest and all other notices of any kind.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
ARCH CHEMICALS, INC.
By:
-------------------------
Name:
Title:
B-2
<PAGE>
<TABLE>
<CAPTION>
Schedule 1 to
Revolving Credit Note
EUROCURRENCY LOANS
DOLLAR LOANS
Amount
of Euro- Amount
Currency Loan Interest of Euro-
Made or Period and currency
Converted Eurocurrency Loans
from Rate with Converted
ABR Respect to ABR Notation
Date Loans Thereto Loans Made By
------ ----- ------------- -------
<S> <C> <C> <C> <C>
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
------ --------- ------------- ------------- ------------
</TABLE>
B-3
<PAGE>
<TABLE>
<CAPTION>
EUROCURRENCY LOANS
ALTERNATIVE CURRENCY LOANS
Interest
Amount Period and
and Currency Eurocurrency
of Euro- Rate with
Currency Respect Notation
Date Loan Made Thereto Made By
------ ----------- ------- --------
<S> <C> <C> <C>
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
------- ------------ ----------- ----------
</TABLE>
B-4
<PAGE>
<TABLE>
<CAPTION>
Schedule 2 to
Revolving Credit Note
ABR LOANS
Amount of Amount of
ABR ABR
Loan Made Loans
or Converted Converted
from Eurocurrency to Eurocurrency ABR Notation
Date Loans Loans Margin Made By
------- ------------ ----------- ---------- ----------
<S> <C> <C> <C> <C>
------- ------------ ----------- ---------- ----------
------- ------------ ----------- ---------- ----------
------- ------------ ----------- ---------- ----------
------- ------------ ----------- ---------- ----------
------- ------------ ----------- ---------- ----------
------- ------------ ----------- ---------- ----------
------- ------------ ----------- ---------- ----------
------- ------------ ----------- ---------- ----------
------- ------------ ----------- ---------- ----------
------- ------------ ----------- ---------- ----------
------- ------------ ----------- ---------- ----------
------- ------------ ----------- ---------- ----------
------- ------------ ----------- ---------- ----------
------- ------------ ----------- ---------- ----------
</TABLE>
B-5
<PAGE>
EXHIBIT B
FORM OF COMPETITIVE BID NOTE
ARCH CHEMICALS, INC.
PROMISSORY NOTE
$______ New York, New York
as of __________, 200_
FOR VALUE RECEIVED, the undersigned, Arch Chemicals, Inc., a Virginia
corporation (the "Company"), hereby unconditionally promises to pay to the order
of [insert name of Lender] (the "Lender") at the office of The Chase Manhattan
Bank ("Chase"), as Administrative Agent, at 270 Park Avenue, New York, New York
10017, in immediately available funds, the principal amount of __________ or, if
less, the aggregate unpaid principal amount of all Competitive Loans made by the
Lender to the Company pursuant to the Credit Agreement hereinafter referred to,
(in lawful money of the United States of America or the equivalent thereof in an
Alternative Currency, in respect of Alternative Currency Loans, calculated in
accordance with terms of the Credit Agreement as defined below) on such date or
dates as is required by said Credit Agreement and to pay interest at such
office, in like money, from the date hereof on the unpaid principal amount of
such Competitive Loans from time to time outstanding at the rates and on the
dates specified in the Credit Agreement. All payments of principal and interest
in respect of this Competitive Bid Note are to be made in the currency in which
they were borrowed.
The Lender is authorized to record, on the schedules annexed hereto
and made a part hereof or on other appropriate records of the Lender, the date,
the Type and the amount of each Competitive Loan made by the Lender, each
continuation thereof, each conversion of all or a portion thereof to a
Competitive Loan of another Type, the date and amount of each payment or
prepayment of principal thereof, and, in the case of Eurocurrency Loans, the
length of each Interest Period with respect thereto. Any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded,
provided that the failure of the Lender to make any such recordation (or any
error in such recordation) shall not affect the obligations of the Company
hereunder or under the Credit Agreement in respect of the Competitive Loans.
This Competitive Bid Note is issued pursuant to the Revolving Credit
Agreement dated as of _____, 2000 (as the same may be amended, supplemented or
otherwise modified from time to time, the "Credit Agreement") among the Company,
the Lenders and agents party thereto and Chase, as administrative agent for the
Lenders, and is a Loan Document. Capitalized terms used herein without
definition have the meanings assigned to them in the Credit Agreement.
This Competitive Bid Note may not be prepaid without the prior
written consent of the Lender.
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid in respect
of this Competitive Bid Note shall become, or may be declared to be, immediately
due and payable in the manner, subject to the limitations, upon the conditions
and with the effect provided in the Credit Agreement.
B-6
<PAGE>
All parties now and hereafter liable with respect to this Competitive
Bid Note, whether maker, principal, surety, guarantor, endorser or otherwise,
hereby waive presentment, demand, protest and all other notices of any kind.
THIS COMPETITIVE BID NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
ARCH CHEMICALS, INC.
By: ______________________
Name:
Title:
B-7
<PAGE>
EXHIBIT C
OPINIONS OF COUNSEL FOR THE BORROWER
Cravath, Swaine & Moore
Hunton and Williams
Herbert Smith
General Counsel
C-1
<PAGE>
Friday, July 21, 2000
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit Agreement dated as of July
5, 2000 (as amended and in effect on the date hereof, the "Credit Agreement"),
among Arch Chemicals, Inc., Arch Chemicals UK Holdings Limited, the Lenders
named therein and The Chase Manhattan Bank, as Administrative Agent for the
Lenders. Terms defined in the Credit Agreement are used herein with the same
meanings.
The Assignor named on the reverse hereof hereby sells and assigns,
without recourse, to the Assignee named on the reverse hereof, and the Assignee
hereby purchases and assumes, without recourse, from the Assignor, effective as
of the Assignment Date set forth on the reverse hereof, the interests set forth
on the reverse hereof (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth on the reverse hereof in the Commitment of the Assignor on
the Assignment Date and Competitive Loans and Revolving Loans owing to the
Assignor which are outstanding on the Assignment Date, but excluding accrued
interest and fees to and excluding the Assignment Date. The Assignee hereby
acknowledges receipt of a copy of the Credit Agreement. From and after the
Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the Assigned Interest,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent of the Assigned Interest, relinquish its rights and be
released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.17(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. No fee shall be payable to the Administrative
Agent pursuant to Section 9.04(b) of the Credit Agreement.
<PAGE>
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York .
<TABLE>
<CAPTION>
<S> <C>
Date of Assignment: July 21, 2000
Legal Name of Assignor: The Chase Manhattan Bank
Legal Name of Assignee: Wachovia Bank, N.A.
Assignee's Address for Notices: 191 Peach Tree Street, MC 370, Atlanta 30303
Effective Date of Assignment
("Assignment Date"): July 21, 2000
</TABLE>
<TABLE>
<S> <C> <C>
Principal Amount Assigned Percentage Assigned of
(and identifying Facility/Commitment (set
information as to forth, to at least 8
Facility individual Competitive decimals, as a percentage of
-------- Loans) ----------- the Facility and the
----- aggregate Commitments of all
Lenders thereunder)
Commitment Assigned: $75,000,000 0.33333333%
Revolving Loans: NIL NIL
Competitive Loans: NIL NIL
================================================================================
</TABLE>
The terms set forth above and on the reverse side hereof are hereby agreed to:
The Chase Manhattan Bank, as Assignor
By: /s/ Lawrence Palumbo, Jr.
______________________________
Name: Lawrence Palumbo, Jr.
Title: Vice President
Wachovia Bank, N.A. as Assignee
By: /s/ Jane C. Deaver
______________________________
Name: Jane C. Deaver
Title: SVP
2
<PAGE>
The undersigned hereby consent to the within assignment:
Arch Chemicals, Inc.
By: /s/ W. Paul Bush
_________________________
Name: W. Paul Bush
Title: Treasurer
Arch Chemicals UK Holdings Limited
By: /s/ W. Paul Bush
____________________________
Name: W. Paul Bush
Title: Treasurer
The Chase Manhattan Bank, as Administrative Agent
By: /s/ Lawrence Palumbo, Jr.
___________________________
Name: Lawrence Palumbo, Jr.
Title: Vice President
3
<PAGE>
Friday July 21, 2000
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of July 5, 2000 (as
amended and in effect on the date hereof, the "Credit Agreement"), among Arch
Chemicals, Inc., Arch Chemicals UK Holdings Limited ("Newco"), the Lenders named
therein and The Chase Manhattan Bank, as Administrative Agent for the Lenders.
Terms defined in the Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns,
without recourse, to the Assignee named on the reverse hereof, and the Assignee
hereby purchases and assumes, without recourse, from the Assignor, effective as
of the Assignment Date set forth on the reverse hereof, the interests set forth
on the reverse hereof (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth on the reverse hereof in the Commitment of the Assignor on
the Assignment Date and Competitive Loans and Revolving Loans owing to the
Assignor which are outstanding on the Assignment Date, but excluding accrued
interest and fees to and excluding the Assignment Date. The Assignee hereby
acknowledges receipt of a copy of the Credit Agreement. From and after the
Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the Assigned Interest,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent of the Assigned Interest, relinquish its rights and be
released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.17(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. No fee shall be payable to the Administrative
Agent pursuant to Section 9.04(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
<PAGE>
Date of Assignment: July 21, 2000
Legal Name of Assignor: The Chase Manhattan Bank
Legal Name of Assignee: Bank of America, N.A.
Assignee's Address for Notices: 335 Madison Avenue 5th Floor,
New York, NY 10017
Attention: Eileen Higgins
Fax: (212) 503 7260
AND by mail to:
Credit Services, 101 N. Tryon St
NC1-001-15-05
Charlotte, NC 28255
Attention: Jeff Pacetti
Effective Date of Assignment
("Assignment Date"): July 21, 2000
<TABLE>
<S> <C> <C>
Principal Amount Assigned Percentage Assigned of
(and identifying Facility/Commitment (set
information as to forth, to at least 8
Facility individual Competitive decimals, as a percentage of
Loans) ----------- the Facility and the
----- aggregate Commitments of all
Lenders thereunder)
----------
Commitment Assigned: $75,000,000 0.33333333%
Revolving Loans: NIL NIL
Competitive Loans: NIL NIL
================================================================================
</TABLE>
The terms set forth above and on the reverse side hereof are hereby agreed to:
The Chase Manhattan Bank, as Assignor
By: /s/ Lawrence Palumbo, Jr.
______________________________
Name: Lawrence Palumbo, Jr.
Title: Vice President
2
<PAGE>
Bank of America, N.A. as Assignee
By: /s/ Eileen C. Higgins
______________________________
Name: Eileen C. Higgins
Title: Vice President
The undersigned hereby consent to the within assignment:
Arch Chemicals, Inc.
By: /s/ W. Paul Bush
_________________________
Name: W. Paul Bush
Title: Treasurer
Arch Chemicals UK Holdings Limited
By: /s/ W. Paul Bush
____________________________
Name: W. Paul Bush
Title: Treasurer
The Chase Manhattan Bank, as Administrative Agent
By: /s/ Lawrence Palumbo, Jr.
___________________________
Name: Lawrence Palumbo, Jr.
Title: Vice President
3
