<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 8, 1999
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GEO SPECIALTY CHEMICALS, INC.
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(Exact Name of Registrant as Specified in Its Charter)
OHIO 333-70011 34-1708689
- ---------------------- ------------- ---------------
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
28601 CHAGRIN BOULEVARD, SUITE 210
CLEVELAND, OHIO 44122
--------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
216-464-5564
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(Registrant's Telephone Number, Including Area Code)
N/A
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(Former Name or Former Address, if Changed Since Last Report)
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<PAGE> 2
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On September 8, 1999, GEO acquired, through its newly-formed and
wholly-owned French subsidiary GEO Holdings (Europe) SARL, a gallium extraction
and purification business from Rhodia Chimie S.A. ("Rhodia") for the French
franc equivalent of approximately US $23,300,000, less the amount of debt for
borrowed money of the acquired business. The purchase price is subject to a
post-closing adjustment based on the change in equity of the business from
December 31, 1998 until September 1, 1999. The acquired business provides
various grades of gallium to the semi-conductor market for applications in
optoelectronics (light emitting diodes) systems and telecommunications. The
purchase price of the acquired business was arrived at through arms-length
negotiations between GEO and Rhodia.
The acquisition was structured as a purchase of the shares of a French
subsidiary of Rhodia, named Rhod Six S.A., which owns both the French operating
assets of a gallium purification business located in Salindres, France and the
shares of a German corporation, named Ingal Stade GmbH, with gallium extraction
operations in Stade, Germany. The name of Rhod Six S.A. was changed on the date
of the closing to GEO Gallium S.A. The management team of GEO Gallium S.A. will
be headquartered in Paris, France.
The source of the funds used to purchase the acquired business was
GEO's existing senior revolving credit facility, with various financial
institutions and Bankers Trust Company, as the administrative agent, which was
amended on September 3, 1999 in order to facilitate the acquisition. The funds
obtained by GEO from its senior revolving credit facility were advanced to GEO
Holdings (Europe) SARL through a number of inter-company transactions.
As part of the acquisition, GEO was also granted a three year option to
acquire an Australian subsidiary of Rhodia, named Rhodia Pinjarra Pty Ltd.,
which owns a currently dormant gallium extraction facility near Pinjarra,
Australia. The exercise price under the option is the French franc
equivalent of approximately US $1,600,000. The exercise price is subject to a
post-closing adjustment based on the change in equity of the Australian
business from December 31, 1998 until the closing of the purchase of the
shares.
ITEM 5. OTHER EVENTS.
In connection with the consummation of the acquisition described above,
GEO entered into an amended and restated credit agreement with its existing
senior lenders, which includes various financial institutions and Bankers Trust
Company, as the administrative agent, increasing the availability under its
senior revolving credit facility from $25.0 million to $45.0 million. GEO's
ability to draw funds under the senior revolving credit facility is subject to,
in addition to the restrictions contained in the amended and restated credit
agreement, a number of restrictions contained in the indenture governing GEO's
currently outstanding $120.0 million in aggregate principal amount of 10 1/8%
Senior Subordinated Notes due 2008. The obligations of GEO under the senior
revolving credit facility remain secured by a first priority security interest
on all
<PAGE> 3
tangible and intangible assets of GEO, including GEO's ownership interests in
its subsidiaries. In addition, the senior revolving credit facility remains
senior in right of payment to GEO's outstanding Senior Subordinated Notes.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a)-(b) Financial statements and pro forma financial information will
be filed, pursuant to the provisions of Item 7(a)(4), in an amendment to this
Current Report on Form 8-K filed within 60 days after the date that this filing
was required to be made.
(c) The following are filed as exhibits to this Current Report on Form
8-K:
2.1 Stock Purchase Agreement, dated August 6, 1999, by
and between GEO Specialty Chemicals, Inc. and Rhodia
Chimie S.A.
10.1 Credit Agreement, dated March 25, 1997 and amended
and restated as of July 31, 1998 and further amended
and restated as of September 3, 1999, by and among
GEO Specialty Chemicals, Inc., various financial
institutions and Bankers Trust Company, as the
administrative agent
The schedules and exhibits attached to the Stock Purchase Agreement
have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Copies of these
schedules and/or exhibits will be provided to the Securities and Exchange
Commission upon request.
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GEO SPECIALTY CHEMICALS, INC.
Date: September 23, 1999 By: /s/ William P. Eckman
--------------------------------
William P. Eckman, Executive Vice
President and Chief Financial Officer
<PAGE> 5
EXHIBIT INDEX
Exhibit
Number Exhibit Description
- ------ -------------------
2.1 Stock Purchase Agreement, dated August 6, 1999, by and between
GEO Specialty Chemicals, Inc. and Rhodia Chimie S.A.
10.1 Credit Agreement, dated March 25, 1997 and amended and
restated as of July 31, 1998 and further amended and restated
as of September 3, 1999, by and among GEO Specialty Chemicals,
Inc., various financial institutions and Bankers Trust
Company, as the administrative agent
<PAGE> 1
Exhibit 2.1
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STOCK PURCHASE AGREEMENT
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BETWEEN
RHODIA CHIMIE S.A.
(TRANSFEROR)
AND
X
(BUYER)
AND
GEO SPECIALTY CHEMICALS, INC.
(GEO)
<PAGE> 2
STOCK PURCHASE AGREEMENT
------------------------
This STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made as of this 6th day of
August 1999, by and between:
Rhodia Chimie, a French ("societe anonyme") with a capital of FRF 2,883,675,200,
having its registered office at 25, quai Paul Doumer, 92408 Courbevoie, France,
recorded in the Register of Companies of Nanterre under No. 642 014 526 RCS
Nanterre, represented by Mr. Pierre-Louis Rosset duly authorized ("TRANSFEROR")
Party of the first part
AND
GEO Specialty Chemicals, Inc., an Ohio corporation with principal offices at
28601 Chagrin Boulevard, Suite 210, Cleveland, OH 44122, U.S.A. ("GEO"),
represented by Mr. George Ahearn, Chairman of the Board of Directors.
Party of the second part.
RECITALS
--------
WHEREAS:
1. The Transferor owns and operates a complete and autonomous branch of
activity for the extraction, purification, marketing and sale of gallium
which is conducted at two different sites: (i) in France at the Salindres
site in the Gard region where the Transferor operates a gallium
purification unit ("SALINDRES SITE"), and (ii) in Germany through Ingal
Stade GmbH, a German corporation with a capital of DM 50,000 with its
registered office at Johann-Rathje-Koser Strasse, 21683 Stade ("INGAL
STADE") whose entire share capital (the "INGAL STADE SHARES") is, on the
date of this Agreement, held by Rhodia Deutschland GmbH, a German entity
with its registered office at Rhodia Deutschland, Engesser Strasse 8, 79108
Freiburg, (collectively, the "GALLIUM BUSINESS"). (Detailed corporate
information regarding Ingal Stade can be found in APPENDIX 8.1.1.(b)(ii)).
2. As part of the Transferor's strategy to divest non-core units and
concentrate on its strategic specialty chemicals activities, the Transferor
wishes to sell the Gallium Business.
3. GEO wishes to purchase the Gallium Business incorporated in an independent
and immediately operational company, and the parties desire to avoid the
complex administrative and legal formalities associated with the creation
of a new company, the transfer of personnel and dispersed assets.
<PAGE> 3
4. GEO wishes to purchase the Gallium Business through a French holding
company that GEO intends to create before the Transfer Date (the "BUYER"
shall hereinafter refer to the entity (as between the French holding
company to be created by GEO or GEO) actually purchasing the shares
pursuant to this Agreement).
5. On the date hereof, the Transferor, together with the Nominee Shareholders,
own one-hundred percent of the shares forming the issued and outstanding
capital of Rhod Six, a French societe anonyme with a capital of FRF 250
000, with its registered office at 25, quai Paul Doumer, 92408 Courbevoie
recorded in the Register of Companies of Nanterre under No. 423 113 349 RCS
Nanterre (hereinafter referred to as the "COMPANY").
6. The parties agreed that prior to the completion of the transactions
contemplated herein, the Transferor would transfer or cause the transfer of
the Gallium Business to the Company through (i) a Contribution Agreement in
the form of APPENDIX A hereto pursuant to Article 387 of the Companies Act
of July 24, 1966 by a private deed, and (ii) the sale of the Ingal Stade
Shares by Rhodia Deutschland GmbH to the Company.
7. In consideration of the contribution of the Gallium Business to the
Company, the Company shall increase its share capital by FRF 129,997,203
from FRF 250,000 to FRF 130,150,000 by issuing to the Transferor 1,299,000
fully paid-up new shares of FRF 100, accompanied by a total call premium of
FRF 97,203.94.
8. GEO desires to purchase through the Buyer or directly if the Buyer is not
constituted on or before the Transfer Date all of the issued and
outstanding shares of the Company, and the Transferor desires to sell such
shares, all upon the terms and conditions hereinafter set forth.
<PAGE> 4
NOW THEREFORE IT HAS BEEN AGREED AS FOLLOWS :
- ---------------------------------------------
ARTICLE 1
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DEFINITIONS
-----------
"ACQUIRING PERSON" shall have the meaning set forth in SECTION 10.1(g)(v)(D).
"AGREEMENT" shall mean this stock purchase agreement.
"BENEFICIARY" shall have the meaning set forth in SECTION 9.4(a).
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or a bank
holiday in France, Germany or the U.S.A.
"BUYER" shall mean have the meaning ascribed to it in Recital 4 herein.
"CLOSING" shall have the meaning set forth in SECTION 3.1 and shall occur on the
Transfer Date.
"COMPANIES" shall mean the Company and Ingal Stade.
"COMPANY" shall have the meaning set forth in recital 4 above.
"COMPANY'S INDEBTEDNESS" shall mean the indebtedness of the Company towards
Rhodia S.A. as a result of the purchase of the Ingal Stade Shares and shall be
equal to four million, one hundred sixty-seven five hundred French Francs (FRF
4,167,500).
"COMPETING ACTIVITY" shall have the meaning set forth in SECTION 10.1(g)(v)(A).
"COMPETING BUSINESS" shall have the meaning set forth in SECTION 10.1(g)(v)(A).
"CONTAMINANT" shall mean a substance whose Release is regulated by, or forms the
basis of, liability under any Environmental Laws (including, without limitation,
any Hazardous Material).
"CONTRIBUTION" shall mean the partial asset contribution ("apport partiel
d'actif") by the Transferor to the Company of the gallium activity conducted at
the Salindres Site, pursuant to Article 387 of the Companies Act of July 24,
1966, representing all of the assets and liabilities appearing on the Reference
Position (except the Ingal Stade Shares).
"CONTRIBUTION AGREEMENT" shall mean the private deed that was executed on August
2, 1999 in Courbevoie between the Transferor and the Company by which the
Transferor shall perform the Contribution, a copy of which is attached hereto as
APPENDIX A.
"CONTRIBUTION INDEBTEDNESS" shall mean the indebtedness of the Company towards
the Transferor as a result of the Contribution and shall be equal to zero.
<PAGE> 5
"CONTROL POSITION" shall mean the balance sheet of the Company as at the close
of business on September 1, 1999, prepared in accordance with U.S. GAAP
consistently applied in accordance with past practice, and certified by the
Transferor's auditors (PriceWaterhouseCoopers) (which shall exclude the effect
of the payments provided for in SECTION 7.3, but shall include any tax, and
levies owed by the Company (i) in respect of the period prior to September 1,
1999 and (ii) as a result of the sale of the Shares; it being understood and
agreed between the parties that all taxes on profits made by the French Gallium
Business from January 1, 1999 to September 1, 1999 will be paid directly by the
Transferor).
"DIRECT CLAIM" shall have the meaning set forth in SECTION 9.4(d).
"DISPUTED ITEMS" shall have the meaning set forth in SECTION 4.3(a).
"DRAFTS" shall have the meaning set forth in SECTION 8.1.1(i).
"ENCUMBRANCES" shall have the meaning set forth in SECTION 8.1.1(b)(i).
"ENVIRONMENTAL ASSESSMENT" shall mean the environmental studies included in
APPENDIX 8.1.1.(q)(i) hereto, identifying the nature, extent and degree of soil
and groundwater contamination existing in, on or under the Sites on the dates of
such assessments.
"ENVIRONMENTAL INDEMNIFIABLE LOSSES" shall mean any and all damages, costs,
claims, losses, liabilities, obligations, fines, judgments and expenses
(including reasonable legal and consulting fees but excluding consequential
damages ("dommages indirects et/ou pertes d'exploitations") arising as a result
of a Remedial Action.
"ENVIRONMENTAL LAW" shall mean all any laws, statutes, directives, regulations,
notices, judgments, decrees or orders including applicable E.U. Directives from
any competent government entity having force of law applicable on the date
hereof in France and Germany relating to pollution, contamination or protection
of the environment or to the storage, labeling, handling, release, treatment,
manufacture, processing, deposit, transportation or disposal of substances.
"EXPERT" shall have the meaning set forth in SECTION 4.3(a).
"FINAL CONTROL POSITION" shall have the meaning set forth in SECTION 4.3(b)
hereof.
"FINAL GROUP CONTROL POSITIONS" shall mean the Final Control Position and the
Final IS Control Position.
"FINAL IS CONTROL POSITION" shall have the meaning set forth in SECTION 6.3(b)
hereof.
"FINAL IS NET BOOK VALUE" shall have the meaning set forth in SECTION 6.3(b)
hereof.
"FINAL NET BOOK VALUE" shall have the meaning set forth in SECTION 4.3(b)
hereof.
"FORCE MAJEURE" shall mean have the meaning ascribed to it in the Related
Agreements.
"U.S. GAAP" shall mean generally accepted accounting principles in the United
States of
<PAGE> 6
America consistently applied and followed in the preparation of the Reference
Position.
"GALLIUM BUSINESS" shall have the meaning ascribed to it in Recital 1.
"GEO" shall mean GEO Specialty Chemicals, Inc., an Ohio corporation with
principal offices at 28601 Chagrin Boulevard, Suite 210, Cleveland, OH 44122,
U.S.A.
"GEO GROUP" shall mean GEO, the Buyer and any company in which GEO directly or
indirectly owns more than 50% of the capital or voting rights.
"GERMAN GAAP" shall mean generally accepted accounting principles in Germany
consistently applied and followed in the preparation of the IS Reference
Position.
"GROUP CONTROL POSITIONS" shall mean the Control Position and the IS Control
Position.
"GROUP REFERENCE POSITIONS" shall mean the Reference Position and the IS
Reference Position.
"HAZARDOUS MATERIALS" shall mean all pollutants, contaminants, waste, chemical
or other material or substances regulated as explosive, flammable, toxic,
radioactive, corrosive, reactive or otherwise hazardous substances pursuant to
any Environmental Laws.
"INDEBTEDNESS FOR BORROWED MONEY" shall mean financial debt (other than trade
payables) for borrowed money of the Company and Ingal Stade, whether short or
long term, including amounts due in respect of capital leases, loans by members
of the Rhodia Group, banks and other financial institutions, and accrued
interest, prepayment penalties, and other amounts payable in respect of such
indebtedness.
"INDEMNITOR" shall have the meaning set forth in SECTION 9.4(a).
"INGAL STADE" shall mean Ingal Stade GmbH, a German corporation with a capital
of DM 50,000, with its registered office at Johann-Rathje-Koser Strasse, 21683
Stade.
"INGAL STADE SHARES" shall mean one-hundred percent (100%) of the issued and
outstanding share capital of Ingal Stade.
"INTELLECTUAL PROPERTY RIGHTS AND PATENT RIGHTS shall have the meaning set forth
in SECTION 8.1.1(f)(i).
"IS CONTROL POSITION" shall mean the balance sheet of Ingal Stade as at the
close of business on September 1, 1999 prepared in accordance with German GAAP,
consistently applied in accordance with past practice and certified by the
Transferor's auditors (PriceWaterhouseCoopers) which shall include any tax,
levies or duties to be borne by Ingal Stade (i) in respect of the period prior
to September 1, 1999 and (ii) as a result of the sale of the Ingal Stade
Shares.
"IS INDEBTEDNESS" shall mean the indebtedness of Ingal Stade towards Rhodia
Deutschland set forth in the "cash pool "line item and any other Indebtedness
for Borrowed Money of Ingal Stade.
<PAGE> 7
"IS 1998 NET BOOK VALUE" shall mean the sum of the following balance sheet items
computed as at December 31, 1998 on the basis of the IS Reference Position:
- - subscribed capital: DM 50,000 (FRF 167,500)
- - profit-loss: DM 88,564 (FRF 296,692)
"IS NET BOOK VALUE" shall mean the sum of the following balance sheet items
computed as at the close of business on September 1, 1999, on the basis of the
IS Control Position:
- - subscribed capital: DM 50,000 (FRF 167,500)
- - profit-loss
"IS REFERENCE POSITION" shall mean the balance sheet of Ingal Stade as at
December 31, 1998 prepared in accordance with German GAAP consistently applied
in accordance with past practice and certified by the Transferor's auditors
(PriceWaterhouseCoopers). A copy of the IS Reference Position is attached hereto
as APPENDIX B.
"LEASE(S)" shall have the meaning set forth in SECTION 8.1.1(p)(iii).
"LEASED REAL PROPERTY" shall have the meaning set forth in SECTION
8.1.1(p)(iii).
"LOSSES" shall have the meaning set forth in SECTION 9.1(a).
"MATERIAL ADVERSE CHANGE" or "MATERIAL ADVERSE EFFECT" shall mean any material
adverse change or changes in the assets, liabilities, financial condition or
results of operations of the Gallium Business taken as a whole which for the
purpose hereof, shall be deemed not to comprise a change or changes that result
from general market, economic or political conditions or other conditions
affecting the gallium industry generally. References to "material" appearing
elsewhere in this Agreement shall not be so construed.
"MATERIAL CONTRACTS" shall mean all contracts material to the operation of the
Gallium Business as currently being conducted (whether written or oral) in force
on the date hereof or on the Transfer Date of the Companies or the Transferor,
in the latter case, relating to the Gallium Business, including but not limited
to, each of the following contracts and commitments to which either of the
Companies is a party or is bound or which relate to the Gallium Business:
(a) contracts with any sales agent, representative or distributor;
(b) contracts that (i) entail the expenditure of more than FRF 500,000 (five
hundred thousand French Francs) in any year or (ii) have a term of more
than six (6) months and cannot be terminated earlier by the Companies on
notice of thirty (30) days or less;
(c) contracts and arrangements for employment or consulting services;
(d) contracts to sell or supply products or to perform services in connection
with the Gallium Business involving in any one case obligations or payments
of FRF 500,000 (five hundred thousand French Francs) or more;
(e) contracts and arrangements providing for any severance, change-of-control
or stay-in-place payment, whether or not, as a result of the transactions
contemplated by this Agreement;
<PAGE> 8
(f) contracts limiting the right of either of the Companies to compete or do
business in any territory;
(g) contracts or arrangements for financing, granting an interest in any asset
of the Companies or undertaking or guarantying the indebtedness or
obligations of a third party;
(h) contracts with a governmental entity;
(i) barter contracts or contracts or arrangements for consignment; and
(j) contracts which have been concluded between either of the Companies and the
Transferor or one of its affiliates.
"NET BOOK VALUE" shall mean the "equity" line item computed as at the close of
business on September 1, 1999 on the basis of the Control Position.
"1998 NET BOOK VALUE " shall mean the "equity" line item computed as at December
31, 1998 on the basis of the Reference Position (including the projection for
Kazakh stock).
"NEW CONTAMINANT" shall mean a Contaminant which has not been used prior to the
Transfer Date in connection with the Gallium Business.
"NOMINEE SHAREHOLDERS" shall mean Rhodia Participations, Rhodia Investissement,
Rhodia Finance, Rhodia Services, Compagnie Industrielle et Miniere and Mme.
Laure du Manoir.
"PERMITS" shall have the meaning set forth in SECTION 8.1.1(m)(ii).
"PINJARRA" shall mean Rhodia Pinjarra PTY Ltd., an Australian company with its
registered offices located at Lot 1, Napier Road, Pinjarra, Western Australia
6Z08.
"PLAN" shall have the meaning set forth in SECTION 9.5(d).
"PURCHASE OPTION AGREEMENT" shall mean the agreement to be entered into on the
Transfer Date between the Transferor, the Buyer and GEO containing an option to
purchase the issued and outstanding shares of Pinjarra.
"REFERENCE DATE IS INDEBTEDNESS" shall mean the actual amount of the IS
Indebtedness as of December 31, 1998 equal to nine million one-hundred, sixty
thousand three hundred and sixty (FRF 9,160,360) French Francs.
"REFERENCE POSITION" shall mean the balance sheet ("Comptes retraites") of the
Company as at December 31, 1998 prepared in accordance with U.S. GAAP, as if the
Contribution and the purchase of the Ingal Stade Shares, had occurred on that
date, except that any and all taxes, levies or duties owed by the Company and
incurred or arising by virtue of the Contribution or the transfer of the Ingal
Stade Shares shall not be reflected in the Reference Position but shall be
included in the Control Position. A copy of the Reference Position is attached
hereto at APPENDIX C.
<PAGE> 9
"RELATED AGREEMENTS" shall have the meaning set forth in SECTION 10.3(e) hereof.
"RELEASE" shall mean any spill, emission, leaking, pumping, injection, deposit
or discharge of any Contaminant, in onto or through the environment (including
ambient air, surface water, groundwater or surface or subsurface soil).
"REMEDIAL ACTION" shall mean the removal, cure, containment, neutralization, or
remediation of any Release required:
(i) by a written final and irrevocable order from an administrative or
judicial authority;
(ii) by Environmental Laws; or
(iii) in the event of a proven material and imminent hazard.
"RHODIA GROUP" shall mean the Transferor, the direct or indirect owner of the
Transferor, and any company in which the Transferor (or the direct or indirect
owner of the Transferor) directly or indirectly owns more than 50% of the
capital or voting rights and which it controls within the meaning of Article
355.1 of the Companies Act of 24 July 1966.
"RHODIA INC." shall mean a company whose head office is located at 259
Prospect Plains Road, Cranbury, New Jersey 08512, United States of America.
"RHODIA INC. INVENTORIES" shall mean the gallium inventories owned by Rhodia
Inc. in the amount of FRF 1,2 million to be purchased by GEO on the Transfer
Date.
"SALINDRES SITE" shall mean the Transferor's gallium purification site in the
Gard region (France).
"SHARES" shall have the meaning set forth in SECTION 2.1 HEREOF.
"SITES" shall mean the Salindres Site and the Ingal Stade gallium extraction
facilities.
"THIRD PARTY CLAIM" shall have the meaning set forth in SECTION 9.4(a).
"THRESHOLD" shall have the meaning set forth in SECTION 9.3(c).
"TO THE TRANSFEROR'S KNOWLEDGE" shall mean the knowledge of any of Ms. Sylvie
Marchal, Mr. Daniel Bajolet, Mr. Serge Perineau and the two plant managers at
the Sites
"TRANSFER DATE" shall have the meaning set forth in SECTION 3.1 HEREOF.
"TRANSFER DATE IS INDEBTEDNESS" shall mean the amount of the IS Indebtedness as
at September 1, 1999 as reflected in the Final IS Control Position.
<PAGE> 10
"TRANSFER PRICE" shall have the meaning set forth at SECTION 5.1(a) HEREOF
"TRANSFEROR" shall mean Rhodia Chimie S.A., a societe anonyme organized under
the laws of France with a corporate capital of FRF 2,883,675,200, whose head
office is located at 25 quai Paul Doumer, 92408 Courbevoie Cedex, registered
with the Registry of Commerce and Companies of Nanterre under No. 642 014 526
RCS Nanterre.
ARTICLE 2
---------
TRANSFER OF SHARES/RHODIA INC. INVENTORIES
------------------------------------------
2.1. Subject to the terms and conditions of this Agreement, the Transferor
hereby agrees to transfer, or cause to be transferred on the Transfer
Date (as defined in ARTICLE 3 below), subject to all ordinary and de-jure
warranties as well as the warranties stipulated herein, to the Buyer,
which accepts, one-hundred percent (100%) of the outstanding and issued
shares constituting the entire share capital of the Company (after the
Contribution and the increase in share capital described in Recitals 5, 6
and 7 and the transfer of the Ingal Stade Shares) (the "SHARES"), with a
nominal value of FRF 100 each and (ii) the Rhodia Inc. Inventories.
2.2. On the date of this Agreement, the Shares are held by the Transferor and
the Nominee Shareholders, as described below :
<TABLE>
<CAPTION>
NUMBER OF SHARES
<S> <C>
- - Rhodia Chimie 1
- - Rhodia Participations 2,494
- - Rhodia Investissement 1
- - Rhodia Services 1
- - Rhodia Finance 1
- - Compagnie Industrielle et Miniere 1
- - Madame Laure du Manoir 1
-----
i.e. Total equal to total Shares outstanding 2,500
</TABLE>
2.3. Subject to the terms and conditions hereof, the Buyer agrees, and GEO
agrees to cause the Buyer to purchase (i) the Shares from the Transferor,
and (ii) the Rhodia Inc. Inventories from Rhodia Inc. on the Transfer
Date.
ARTICLE 3
---------
COMPLETION OF TRANSFER
----------------------
3.1 TRANSFER
The transfer of the Shares (including all right and title thereto free of
all Encumbrances), and of the Rhodia Inc. Inventories, shall be completed
on September 8, 1999 the
<PAGE> 11
"TRANSFER DATE"), by the simultaneous delivery by each of the Transferor
and the Buyer of the following documents to the registered office of the
Transferor at 25 quai Paul Doumer, 92408 Courbevoie Cedex, ("CLOSING") :
(a) BY THE TRANSFEROR:
(i) Share transfer orders ("ordres de mouvement") providing for the
transfer of the Shares (including the shares issued in connection
with the increase in share capital of the Company pursuant to the
Contribution) to Buyer and the notarial deed providing for the
transfer of the Ingal Stade Shares from Rhodia Deutschland to the
Company.
(ii) The Company's share transfer registers and share accounts and the
equivalent documents or records applicable to Ingal Stade.
(iii) The records of resolutions and the attendance registers of the
Company's Board of Directors and General Shareholders Meetings
together with the corporate books of Ingal Stade.
(iv) Letters of resignation of the directors and corporate
representatives of the Company and Ingal Stade.
(v) Each of the Related Agreements duly executed by the appropriate
member of the Rhodia Group.
(vi) An invoice in the amount of one million two hundred thousand
French Francs (FRF 1,200,000) for the Rhodia Inc. Inventories.
(b) BY THE BUYER:
(i) Payment of the Transfer Price (as defined below) to the
Transferor.
(ii) Repayment by the Buyer, on behalf of the Company and Ingal Stade
respectively, of the Company's Indebtedness, the Contribution
Indebtedness, and the Reference Date IS Indebtedness.
(iii) Each of the Related Agreements duly executed.
(iv) Payment to Rhodia Inc. of one million two hundred thousand French
Francs (FRF 1,200,000) for the Rhodia Inc. Inventories.
3.2 TITLE TO SHARES/SUBROGATION
The Buyer shall own and have all rights and full enjoyment (jouissance)
to the Shares with effect from the Transfer Date.
With effect from the Transfer Date, the Buyer shall be subrogated in all
of the Transferor's rights in connection with the Shares.
<PAGE> 12
3.3 TRANSFER OF MANAGEMENT
The Buyer shall manage the Companies with effect from the Transfer Date.
ARTICLE 4
---------
ADJUSTMENT ON CONTRIBUTION
--------------------------
REFERENCE POSITION
Attached hereto as APPENDIX C is a copy of the Reference Position.
4.2 CONTROL POSITION
As soon as practicable and, in any event, not later than forty-five (45)
days after the Transfer Date, the Transferor shall deliver to the Buyer
(i) the Control Position and (ii) the Net Book Value and will, upon
request, deliver to the Buyer the work papers of the Transferor and the
work papers of the Transferor's accountants generated in the preparation
of such statement.
4.3 DETERMINATION OF THE ADJUSTMENT
(a) After delivery to the Buyer of the Control Position and the Net Book
Value, the Buyer shall have thirty (30) days to review such documents.
Unless the Buyer notifies the Transferor in writing within the thirty
(30) days period of any good faith objection to the Control Position or
the Net Book Value specifying in reasonable detail the items and amounts
subject to such objection ("DISPUTED ITEMS"), the Control Position and
the Net Book Value shall be conclusive and binding on the parties. If
within the thirty (30) day period the Buyer notifies the Transferor in
writing of any such objection, then the Buyer and the Transferor shall
use reasonable efforts for twenty (20) days to resolve in good faith
their differences and agree upon any adjustments to the Control Position
and/or the Net Book Value. Any Disputed Items which are not resolved by
the mutual agreement of the Buyer and the Transferor within such twenty
(20) days shall be submitted for resolution to the Paris office of Arthur
Andersen or if Arthur Andersen refuses its mission, Ernst & Young or to
their German offices as Arthur Andersen or Ernst & Young, as the case may
be, deem necessary ("EXPERT"). If the Expert refuses its mission, either
party shall be entitled within ten (10) Business Days to request the
designation of an Expert by the President of the Court of Commerce of
Paris. The Transferor and the Buyer shall instruct the Expert to limit
its examination to the unresolved Disputed Items affecting the Control
Position and/or the Net Book Value, and to use its best efforts to make
its determination thereon within twenty (20) days after referral to it of
the matters in dispute. The resolution of any such previously unresolved
Disputed Items by such Expert shall be made in writing in English
delivered to the Buyer and the Transferor (which writing shall set forth
the rules and reasoning applied) and the Control Position and the Net
Book Value as so determined shall be final, conclusive and binding upon
the Transferor and the Buyer in accordance with Articles 1592 et seq. of
the French Civil Code. The fees and expenses charged by the Expert with
respect to Disputed Items shall be shared equally between the Buyer and
the Transferor.
<PAGE> 13
(b) The Net Book Value to which the Buyer does not object or to which the
Transferor and the Buyer agree, or as otherwise conclusively determined
by the Expert shall be referred to herein as the "FINAL NET BOOK VALUE".
The Control Position to which the Buyer does not object, or to which the
Transferor and the Buyer agree or as otherwise conclusively determined by
the Expert shall be referred to herein as the "FINAL CONTROL POSITION".
(c) Agreement between the parties on the Control Position or, failing
agreement between the parties, the determination of the Control Position
by the Expert, shall entail full and final discharge (quitus) of the
Transferor's directors and the Company's directors for their management
during the period from the Company's incorporation date to the Transfer
Date. This agreement shall relate only to the directors of the Transferor
and the Company in their individual capacity and shall not affect any
right the Buyer may have against the Transferor as a corporate entity.
4.4 ADJUSTMENT
(a) If the Final Net Book Value is higher than the 1998 Net Book Value, the
amount of the excess shall be due and payable by the Company to the
Transferor pursuant to the current account mechanism, (compte courant)
set forth in the Contribution Agreement.
(b) If the Final Net Book Value is lower than the 1998 Net Book Value, the
amount of the difference shall be due and payable by the Transferor to
the Company pursuant to the current account mechanism set forth in the
Contribution Agreement.
(c) It is agreed that the current account adjustments above shall not affect
determination of the Transfer Price in any way and shall merely amount to
adjustment within the framework of the Contribution.
(d) All payments to be made under this SECTION 4.4 shall be made with ten
(10) days of the determination of the Final Control Position and the
Final Net Book Value.
ARTICLE 5
---------
TRANSFER PRICE - PRICE OF RHODIA INC. INVENTORIES
-------------------------------------------------
5.1. TRANSFER PRICE - PRICE OF RHODIA INC. INVENTORIES
(a) The Buyer shall pay the transfer price of the Shares to the Transferor
(the "TRANSFER PRICE") which shall be equal to one hundred forty three
million five hundred seventy five thousand and sixty three French Francs
(FRF 143,575,063), less the amount of the Company's Indebtedness, the
Contribution Indebtedness, the IS Reference Date Indebtedness and any
other Indebtedness for Borrowed Money disclosed in the written notice to
be given by the Transferor to the Buyer pursuant to Section 7.1 (i.e the
Transfer Price shall, assuming no Indebtedness for Borrowed Money other
than those described in this sentence, be equal to one hundred and thirty
million, two hundred and forty seven thousand and two hundred and three
French Francs (FRF 130,247,203), subject to the adjustment set forth in
Article 6 below. The Transfer Price shall be paid as follows:
<PAGE> 14
(i) one hundred and ten million, four hundred and seventy two
thousand, one hundred and forty French Francs (FRF 110,472,140) on
the Transfer Date; and
(ii) nineteen million, seven hundred and seventy five thousand and
sixty three French Francs (FRF 19,775,063) on the date of payment
of the adjustment as set forth in Section 6.4 (c) below.
(b) GEO shall pay the price for the Rhodia Inc. Inventories in the amount of
one million two hundred thousand French Francs (FRF 1,200,000) to Rhodia
Inc. on the Transfer Date. The Transferor shall cause Rhodia Inc. to
permit GEO or the Buyer to inspect and assess the value of the Rhodia,
Inc. Inventories in the five Business Days prior to the Transfer Date.
5.2. METHOD OF MAKING PAYMENT
All cash payments under this Agreement shall be made to the receiving
party by depositing, by bank wire transfer, the required amount in
immediately available funds in an account designated by the receiving
party for such purpose.
5.3. LATE PAYMENT-TAXES
(a) In the event any of the parties do not pay an amount due under this
Agreement at its due date, the party to whom such amount is due shall
automatically charge late-payment interest on such amount, without
notice, without prejudice to all its other rights and remedies. Said
interest shall accrue from its due date to its actual payment date at a
rate equal to the arithmetic average of the weighted average rates
published daily by the Banque de France during the period concerned, plus
5 %. The charging of late-payment interest, which shall be due
immediately on demand, does not imply agreement to deferral of payment or
waiver of any right accruing to the non-defaulting party under this
Agreement.
(b) The Buyer shall pay all duties, taxes and levies in relation to the
transfer of the Shares not exceeding twenty thousand French Francs (FRF
20,000).
ARTICLE 6
---------
TRANSFER PRICE ADJUSTMENT
-------------------------
6.1 IS REFERENCE POSITION
Attached hereto as APPENDIX B is a copy of the IS Reference Position.
6.2 CONTROL POSITIONS
As soon as practicable, and in any event, not later than forty five (45)
days after the Transfer Date, the Transferor shall deliver to the Buyer
(i) the IS Control Position, (ii) the IS Net Book Value, and will, upon
request, deliver to the Buyer the work papers of the Transferor or, if
the Transferor's accountants agree, the work papers of the Transferor's
accountants generated in the preparation of such statements.
<PAGE> 15
6.3. DETERMINATION OF ADJUSTMENTS
(a) After delivery to the Buyer of the IS Control Position and the IS Net
Book Value, the Buyer shall have thirty (30) days to review such
documents. The Buyer shall be entitled to conduct an audit of the kazakh
stock to ensure its quality and quantity and to ensure that it is validly
reflected in the Control Position. Unless the Buyer notifies the
Transferor in writing within the thirty (30) day period of any good faith
objection to the IS Control Position, and/or the IS Net Book Value
specifying in reasonable detail the Disputed Items, the IS Control
Position and/or the IS Net Book Value shall be conclusive and binding on
the Buyer and the Transferor. If within the thirty (30) day period the
Buyer notifies the Transferor in writing of any such objection, then the
Buyer and the Transferor shall use reasonable efforts for twenty (20)
days after the expiration of the thirty (30) day period to resolve in
good faith their differences and agree upon any adjustments to the IS
Control Position and the IS Net Book Value. Any Disputed Items which are
not resolved by the mutual agreement of the Buyer and the Transferor
within such twenty (20) Business Day period shall be submitted for
resolution to the Expert. The Transferor and the Buyer shall instruct the
Expert to limit its examination to the unresolved Disputed Items
affecting the IS Control Position and the IS Net Book Value and to use
its best efforts to make its determination thereon within twenty (20)
Business Days after the date that the dispute is referred to it. The
resolution of any such previously unresolved Disputed Items by such
Expert shall be made in writing in English delivered to the Buyer and the
Transferor (which writing shall set forth the rules and reasoning
applied) and the IS Control Position and the IS Net Book Value as
determined shall be final, conclusive and binding upon the Transferor and
the Buyer in accordance with Articles 1592 et seq. of the French Civil
Code. The fees and expenses charged by the Expert with respect to
Disputed Items shall be shared equally between the Buyer and the
Transferor.
(b) The IS Net Book Value to which the Buyer does not object or to which the
Transferor and the Buyer agree, or as otherwise conclusively determined
by the Expert shall be referred to herein as the "FINAL IS NET BOOK
VALUE". The IS Control Position to which the Buyer does not object or to
which the Transferor and the Buyer agree, or as otherwise conclusively
determined by the Expert shall be referred to herein as the "FINAL IS
CONTROL POSITION".
6.4 ADJUSTMENTS
(a) If the Final IS Net Book Value is higher than the IS 1998 Net Book Value,
the amount of the excess shall be due and payable by the Buyer to the
Transferor.
(b) If the Final IS Net Book Value is lower than the IS 1998 Net Book Value,
the amount of the difference shall be due and payable by the Transferor
to the Buyer.
(c) All payments to be made under this SECTION 6.4 shall be made within ten
(10) days of the determination of the Final IS Control Position.
(d) No action by the Buyer in connection with the acceptance or determination
of the Final Control Position, the Final IS Control Position, the Final
Net Book Value and Final IS Net Book Value shall be deemed to be a waiver
by Buyer of any claim Buyer may have
<PAGE> 16
that any of the representations or warranties contained in SECTION 8.1.1
is or was untrue or misleading or has been breached. In no event shall
any upward or downward movement in the level of the Final Net Book Value
or Final IS Net Book Value be counted twice in the adjustment mechanisms
contained in ARTICLES 4 OR 6 and neither GEO, nor the Buyer or Rhodia
shall be entitled to double recovery pursuant to (i) the adjustment
mechanism under ARTICLES 4 AND 6 and (ii) the indemnification mechanism
under ARTICLE 9.
(e) The parties acknowledge and agree that the Transfer Price adjustment
shall not be based on the balance sheet used for the Contribution.
ARTICLE 7
---------
LOAN REPAYMENT
--------------
7.1 ESTIMATED INDEBTEDNESS
Not later than three (3) Business Days before the Transfer Date, the
Transferor shall provide the Buyer with written confirmation that there
is no and, as of the Transfer Date, there will be no Indebtedness for
Borrowed Money other than the Company's Indebtedness, the Contribution
Indebtedness and the Reference Date IS Indebtedness to the extent that
any such Indebtedness for Borrowed Money does exist, it shall be deducted
from the Transfer Price.
7.2 PAYMENT ON TRANSFER DATE
On the Transfer Date, the Buyer shall refinance and cause the Company and
Ingal Stade to reimburse to the Transferor and Rhodia Deutschland
respectively, the Company's Indebtedness, the Contribution Indebtedness
and the Reference Date IS Indebtedness.
7.3 ADJUSTMENT
Within ten (10) days following the determination of the Final IS Control
Position the following adjustments shall be made:
(a) If the Transfer Date IS Indebtedness is higher than the Reference Date IS
Indebtedness, the Transferor shall repay the amount of the excess to the
Buyer, and the Buyer shall cause Ingal Stade to repay Rhodia Deutschland
such amount.
(b) If the Transfer Date IS Indebtedness is lower than the Reference Date IS
Indebtedness, the Transferor shall cause Rhodia Deutschland to pay to
Ingal Stade the amount of the difference and the Buyer shall pay to the
Transferor such amount.
<PAGE> 17
ARTICLE 8
---------
WARRANTIES AND REPRESENTATIONS
------------------------------
8.1. WARRANTIES AND REPRESENTATIONS
8.1.1. WARRANTIES AND REPRESENTATIONS OF THE TRANSFEROR
The Transferor accepts vis-a-vis the Buyer that any breach of these
warranties and representations shall be sanctioned in accordance with
ARTICLE 9 of this Agreement. The Transferor represents and warrants to
the Buyer as follows on the date hereof and as of the Transfer Date
(unless otherwise specified herein).
(a) INCORPORATION OF THE COMPANIES
(i) The Companies are duly incorporated and validly existing under the
laws of their respective jurisdictions, and the Company and Ingal
Stade operate in accordance with their Articles of Association or
applicable charter documents and in all material respects in
accordance with applicable laws and regulations and have done so
since the date of their incorporation.
(ii) The books and registers of the Companies reflect all of the
resolutions adopted by the Boards of Directors and General
Meetings of the Companies and have been regularly kept and are up
to date. All decisions adopted by the Companies' management bodies
have been validly taken and are duly recorded in the said
registers in accordance with the applicable laws.
(iii) Transfers of shares or other securities that represent the capital
or voting rights of the Companies made by or in favor of the
Transferor or the Companies or its or their predecessors were
regularly made and are perfectly valid and give the companies
holding the said shares or securities full and unencumbered
ownership, as evidenced inter alia by the regularly kept and
up-to-date share transfer registers (or any equivalent document
under the laws applicable to Ingal Stade), the corporate decisions
and the Articles of Association or applicable charter documents of
the Companies.
(iv) The certificates of incorporation and good standing ("Kbis"
extracts from the Register of Companies or equivalent registers
for Ingal Stade) listing current corporate information about the
Company and Ingal Stade, as appended in APPENDIX 8.1.1.(a)(iv),
record the latest changes at the date of this Agreement.
(v) The current directors (or their equivalents under applicable law)
of the Companies are listed in APPENDIX 8.1.1.(a)(v).
<PAGE> 18
(b) CAPITAL AND SHARES OF THE COMPANIES
(i) The capital of the Companies has been issued validly and legally
and is fully paid up. All shares in the Companies are free of any
lien, charge, encumbrance, pledge, security interest, claim,
option, right of preemption or other type of interest of a third
party ("ENCUMBRANCES").
(ii) The amount of capital of each of the Companies, the number of
securities issued by them and their shareholders on the date
hereof and as applicable on the Transfer Date is set forth in
APPENDIX 8.1.1.(b)(ii).
(iii) Each of the securities issued by each of the Companies gives, by
class, the same voting rights at the General Meetings of the
shareholders of the company concerned and the same rights to
corporate profits.
(iv) The Companies have not issued any debt or equity securities other
than those described in APPENDIX 8.1.1.(b)(ii). In particular, the
Companies have not issued any security giving its holder a right
to a share in their capital or voting rights by exchange,
repayment or conversion, and the Companies have no commitments by
virtue of which they can be obliged to create, issue or convert
any security of any kind.
(v) Except as set forth in APPENDIX 8.1.1.(b)(v), the Companies have
no subsidiary or interest in any other company, association,
grouping or entity of any kind whatsoever and have not invested in
any other company or grouping by virtue of which they may have any
liability whether limited, unlimited, joint and/or several.
(c) SHARE TRANSFER
(i) The Transferor is the owner of the Shares to be sold by it and has
the right to sell them. As of the Closing, the Company will be the
owner of the Ingal Stade Shares, free of all Encumbrances.
(ii) The Transferor has the unreserved right, power and capacity to
transfer the Shares to the Buyer. Rhodia Deutschland has the
unreserved right, power, and capacity to transfer the Ingal Stade
shares to the Company.
(iii) The transactions contemplated herein (including the Contribution
and the transfer of the Ingal Stade Shares by Rhodia Deutschland
to the Company), shall be carried out in accordance with
applicable laws and regulations and shall validly (i) transfer the
full title to the Shares to the Buyer, (ii) effect the
Contribution and (iii) transfer the full title to the Ingal Stade
Shares to the Company, in each case free from all Encumbrances.
(iv) Neither the Transferor nor any other person benefits directly or
indirectly from any option, preference right or similar right to
securities issued by the Companies.
(v) No provision in the Articles of Association or applicable charter
documents of the
<PAGE> 19
Companies or Rhodia Deutschland prevents transfer of the Shares by
the Transferor to the Buyer or the Ingal Stade Shares by Rhodia
Deutschland to the Company. As a result, on the Transfer Date, the
Buyer shall acquire sole ownership of the Shares and the Company
shall acquire sole ownership of the Ingal Stade Shares by virtue
of said transfers.
(vi) The execution and delivery of this Agreement and the performance
by the Transferor, the Company and Rhodia Deutschland of the
transactions contemplated hereby (including the Contribution and
the sale of the Ingal Stade Shares by Rhodia Deutschland to the
Company) have been duly authorized by all necessary corporate
action on the part of each applicable entity. This Agreement has
been duly executed and delivered by the Transferor, and assuming
the due authorization and execution by GEO, this Agreement
constitutes a valid and binding agreement of the Transferor,
enforceable against it in accordance with the terms hereof.
(vii) Neither the execution of this Agreement by the Transferor nor the
performance by the Transferor, the Company and Rhodia Deutschland
of the transactions contemplated herein (including the
Contribution and the sale of the Ingal Stade Shares by Rhodia
Deutschland to the Company) (A) will violate or conflict with any
of the provisions of the Articles of Association of the Transferor
or of the constitutive documents of the Companies or Rhodia
Deutschland, or (B), except as set forth in APPENDIX
8.1.1.(c)(vii), will violate or constitute a default under, or be
the grounds for termination of, any contract, agreement, mortgage
or other instrument to which the Transferor (with respect to the
Gallium Business) or any of the Companies or Rhodia Deutschland
(in relation to the latter with respect to the Gallium Business)
is a party or by which any of their respective assets or
properties are bound or any law or any order, judgment or ruling
of any governmental authority applicable to the Transferor (with
respect to the Gallium Business), the Companies or Rhodia
Deutschland (in relation to the latter with respect to the Gallium
Business) or (C) will result in the creation of any Encumbrance
upon any of the assets or properties of the Companies, except in
the case of the Transferor to the extent that would not prohibit
or in any way interfere with the ability of the Transferor to
perform any of its obligations hereunder.
(D) FINANCIAL STATEMENTS; NO UNDISCLOSED LIABILITIES, ENTIRE BUSINESS
Except as set forth in APPENDIX 8.1.1.(d):
(i) The Reference Position was prepared in accordance with U.S. GAAP
and the IS Reference Position (and their annexes including the
profit and loss accounts of the business of the Company and Ingal
Stade for the year ending December 31, 1998) attached hereto as
Appendix 8.1.1.(d) were prepared in accordance with German GAAP,
consistently applied, and give a true and fair view (image fidele
et sincere) of the assets, liabilities, financial position and the
results of operations of the Companies and the Gallium Business at
the dates and for the periods indicated.
(ii) Neither the Company nor Ingal Stade have any liability or loss
contingency, fixed or contingent, whether or not required by U.S.
GAAP or German GAAP, respectively, to be disclosed in financial
statements, other than liabilities or loss
<PAGE> 20
contingencies reflected or adequately reserved against in the
Group Reference Positions.
(iii) The assets owned or leased by the Companies on the Transfer Date
and the services, assets and properties to be provided by the
Rhodia Group and others pursuant to the Related Agreements
constitute collectively all of the assets, properties and rights
necessary to conduct the Gallium Business as conducted by the
Rhodia Group up to the date of this Agreement and will constitute
as of the Transfer Date all assets, properties and rights
necessary to conduct the Gallium Business as conducted on the
Transfer Date.
(e) DISPUTES
(i) Except as set forth in APPENDIX 8.1.1.(e)(i), there is no action,
suit or judicial, administrative or arbitration proceedings
(whether for tax or other reasons) currently pending against the
Companies or with an impact on the Companies' assets and
businesses, in which the Companies are parties, and to the
Transferor's Knowledge, there are no grounds for any such action,
suit, proceedings, enquiry, verification or claim as of the
Transfer Date.
(ii) The Companies have complied in all material respects with laws,
regulations and instructions applicable to their activities,
including, but not limited to laws and regulations with respect to
job-related safety, environmental protection, and competition
matters (including under Articles 85 and 86 of the Treaty of Rome
or other similar national laws).
(iii) The Companies have duly filed all mandatory tax and social
security returns and have paid or adequately provisioned or will
pay or adequately provision all taxes, levies and social security
contributions due thus far and up until the Transfer Date in
either the Group Reference Positions or the Group Control
Positions. The Companies are not currently subject (and have not
been subject for the last 3 years) to any audit by the tax
authorities or social security agencies or any similar
organization. The Companies have filed in a timely manner all
returns required for all taxes, levies, duties and tax,
tax-related and social security charges to which they are subject,
and all taxes, levies, duties and tax, tax-related and social
security charges owed by the Companies have been fully paid in a
timely manner in adequate amounts and in accordance with
applicable laws and regulations. Except as disclosed in APPENDIX
8.1.1.(e)(iii), neither of the Companies is party to a tax
consolidation structure that includes companies other than the
Companies.
(f) INTELLECTUAL PROPERTY RIGHTS AND PATENT RIGHTS
(i) Subject to the provisions in APPENDIX 8.1.1.(f)(iv), the Companies
(following the Contribution) will fully own the names, models,
trademarks, logos, copyrights and derivative rights and, in
general, all intellectual property rights, patent rights and
know-how used to carry on the Gallium Business as currently
conducted, including all trademarks, logos, designs and models not
actually used but registered for precautionary reasons
(hereinafter referred to as the "INTELLECTUAL PROPERTY RIGHTS AND
PATENT RIGHTS"), the Intellectual Property Rights and Patent
Rights owned by
<PAGE> 21
the Companies are listed in APPENDIX 8.1.1.(f)(i).
(ii) Except as set forth in APPENDIX 8.1.1.(f)(ii), the Intellectual
Property Rights and Patent Rights have been registered, renewed
and protected in the name of the Companies by which they are held,
enabling said Companies to exercise validly their Intellectual
Property Rights and Patent Rights in those countries where they
carry on their activities. All royalties have been paid on their
due dates or, properly provisioned in the Group Reference
Positions or will be properly provisioned in the Final Group
Control Positions.
(iii) Except as set forth in APPENDIX 8.1.1.(f)(ii) the Intellectual
Property Rights and Patent Rights registrations have been
regularly made or concluded, are valid, enforceable against third
parties and in compliance, in all material respects with the
applicable laws and regulations.
(iv) Copies of the license or other agreements under which the
Companies have been granted the right to use Intellectual Property
Rights or Patent Rights not owned by them can be found in APPENDIX
8.1.1.(f)(iv). Said agreements are valid, enforceable against
third parties, in compliance with the applicable laws and
regulations.
(v) Subject to the provisions in APPENDIX 8.1.1.(f)(v), the Companies
have not directly or indirectly signed any agreement with third
parties concerning the use or acquisition by such third party of
one or more of the Intellectual Property Rights and Patent Rights.
(vi) Subject to the provisions in APPENDIX 8.1.1.(f)(vi), no judicial
action or other claim with respect to the Intellectual Property
Rights and Patent Rights has been brought or made against the
Companies in the countries where these rights have been registered
and/or used.
(vii) To the Transferor's Knowledge, none of the Intellectual Property
Rights and Patent Rights owned by the Companies is subject to any
type of counterfeiting or infringement on the part of any third
party.
(g) CONTRACTS
APPENDIX 8.1.1.(g) identifies all of the Material Contracts. Each of the
Material Contracts is in full force and effect and constitutes a valid
and binding obligation of the Transferor or the applicable Company and,
to the Transferor's Knowledge, the other party thereto. None of the
Companies or the Transferor in respect of the Gallium Business, where
relevant, is in material breach or material default under any of the
Material Contracts, and to the Transferor's Knowledge, no event has
occurred and no condition or state of fact exists which, with the passage
of time or the giving of notice or both, would constitute such a default
or breach. The Transferor has delivered to the Buyer true, correct and
complete copies of each of the Material Contracts or, in the case of any
oral Material Contract, true, correct and complete descriptions of the
material terms thereof.
<PAGE> 22
(h) EMPLOYMENT CONTRACTS
(i) APPENDIX 8.1.1.(h)(i) includes a list of all employees of the
Gallium Business who will, by virtue of the Contribution, become
employees of the Company and all employees of Ingal Stade,
including the name, current position, age and total gross annual
compensation (including any variable remuneration) of each
employee. APPENDIX 8.1.1.(h)(i) also describes:
(a) all agreements governing loans granted by the Transferor to
the employees of the Gallium Business or by the Companies
to any employee (including the amounts concerned);
(b) all agreements governing any material debts of the
Transferor to the employees of the Gallium Business or the
Companies to any employee (including the amounts
concerned); and
(c) the characteristic features, if any, of each employment
contract (notably non competition clauses, severance,
welfare, medical benefit, benefits in kind, bonuses, profit
sharing, savings plan, commissions, layoff compensations,
insurance, retirement liabilities and post retirement
pension benefit,, etc.).
There is no former employee or other person of the Gallium
Business who could claim a priority right to being hired or
reinstated in the Company or Ingal Stade, subject to the
stipulations in APPENDIX 8.1.1.(h)(i).
(ii) Subject to the stipulations in APPENDIX 8.1.1.(h)(ii), the
Companies' employees are not entitled to any special benefit in
addition to those provided by laws, regulations and customs
applicable to employees, including any applicable collective
bargaining agreements.
(iii) Employment contracts signed with the Companies' employees have
been signed in accordance with the applicable laws and regulations
and any applicable collective bargaining agreements.
(iv) There is no pension fund system for the Companies' employees
(except as stipulated in APPENDIX 8.1.1.(h)(ii), and the Companies
do not and shall not owe their employees any money under such
systems and the Companies do not have any retirement system other
than that resulting from the applicable laws or the applicable
collective bargaining agreements listed in APPENDIX 8.1.1.(h)(ii).
(v) The Companies have not signed any individual or collective
contract in relation to layoffs, life insurance or
welfare-benefits other than those described in APPENDIX
8.1.1.(h)(ii).
(vi) No employee of the Companies is being laid off or has reported
plans to resign (except as stipulated in APPENDIX 8.1.1.(h)(vi)).
(vii) There are no collective bargaining agreements other than those
mentioned in the APPENDIX 8.1.1.(h)(ii).
<PAGE> 23
(i) DISTRIBUTION AGREEMENTS SIGNED WITH COMPANIES OF THE RHODIA GROUP
APPENDIX D contains the drafts (the "DRAFTS") of the distribution
agreements that will govern the relationships between the Companies and
certain companies owned by the Rhodia Group. The Drafts contain economic
terms which are not worse (for the Gallium Business) than those in force
in relation to the Gallium Business prior to the date hereof, it being
understood and agreed that the legal structure of the distribution
agreement is different than the one in force prior to the Transfer Date
as set forth in Appendix 8.1.1.(i).
It is expressly agreed that the agreements between the members of the
Rhodia Group and the Transferor relating to the Gallium Business or the
Companies shall be replaced (without any termination or indemnity payment
being due from the Company other than payments provided in the Drafts and
Related Agreements ) by agreements to be entered into on the terms of the
Drafts on the Transfer Date. By agreement, the Buyer and the companies of
the Rhodia Group may nevertheless amend an existing agreement already in
force at the Transfer Date.
(j) SECURITY INTERESTS, GUARANTEES
Neither the Transferor (in relation to the Gallium Business) nor the
Companies have granted or are bound by any security interest, pledge or
guarantee whatsoever in favor of any third party or related party.
(k) BANKRUPTCY - COURT-ORDERED LIQUIDATION
Neither of the Companies is unable to pay its debts. No court has ordered
either of the Companies to undergo reorganization or to go into
liquidation (or any equivalent decision under the laws applicable to
them). Similarly, neither of them has been subjected to a conciliation
procedure within the meaning of Article 33 of the Act of 1 March 1984 or
any equivalent procedure under the laws applicable to them.
(l) INSURANCE
(i) All assets owned or operated by the Companies or by the Transferor
(in relation to the Gallium Business), their operating risks,
their civil liability and their business liability are covered by
valid insurance policies listed in APPENDIX 8.1.1.(l)(i).
(ii) The Companies are duly insured against the consequences of the
acts of their employees and agents and the employees and agents of
the Transferor relating to the Gallium Business and against the
risks attached to their businesses.
(iii) The Transferor and/or the Companies have paid all premiums and
made all other payments due under these policies, have not
materially violated any provision of these policies and have
accomplished all formalities necessary to claim their rights to
indemnification for all insured losses incurred or likely to be
incurred.
(iv) The Companies have performed all their obligations, notably all
obligations to file
<PAGE> 24
declarations, vis-a-vis their insurance companies and have taken
all steps necessary to be indemnified under optimum conditions
pursuant to the terms of the insurance policies listed in APPENDIX
8.1.1.(l)(i)(a) for all insured losses incurred or are likely to
be incurred.
(m) COMPLIANCE WITH REGULATIONS
(i) The Transferor (in relation to the Gallium Business) and the
Companies are now and have been in compliance in all material
respects with applicable laws and regulations and to the
Transferor's Knowledge there is no event that could result in a
notification of non-compliance by a governmental authority or
other person or entity.
(ii) Subject to the provisions in APPENDIX 8.1.1.(m)(ii)(a) the
Transferor (in relation to the Gallium Business) and the Company
and Ingal Stade have obtained all material authorizations,
permits, licenses, classifications or other approvals required by
applicable laws and regulations to carry on their activities as
currently conducted (hereinafter the "PERMITS") and have filed the
declarations and notifications required to carry on their
activities as currently conducted, including all Permits required
to operate their existing businesses. All of the Permits are
listed in APPENDIX 8.1.1.(m)(ii)(b).
(n) BANKS
APPENDIX 8.1.1.(n) contains the name of each bank at which the Companies
have an account or credit facility, the numbers of the bank accounts and
the names of the persons currently authorized to use said accounts and
credit facilities. The Companies have the free disposal of any sums on
said bank accounts.
(o) ASSETS
(i) The Transferor in relation to the Gallium Business and the
Companies are the sole owners of all movable and real properties
reflected in the Group Reference Positions as being owned by them.
(ii) All assets owned by the Companies will be reflected in the Final
Group Control Positions. All movable assets owned by the Companies
and the Rhodia Inc. Inventories are in good working order and
repair and well maintained, subject to ordinary wear and tear, and
do not have any material defect that may affect their sale,
operation, exploitation or use in the ordinary course of business,
in accordance with past practice. The assets owned by the
Companies are free from any Encumbrances, except as stipulated in
APPENDIX 8.1.1.(o)(ii)(a). APPENDIX 8.1.1(o)(ii)(b) sets forth a
summary list by category of the Rhodia Inc. Inventories as of the
date hereof. Rhodia Inc. Inventories has and will at the Closing
have good title to all of the Rhodia Inc. Inventories, free and
clear of Encumbrances. The Rhodia Inc. Inventories are of
appropriate quality, quantity and mix to be sold in the ordinary
course of business. None of the Rhodia Inc. Inventories are
subject to any write-down or write-off. The price to be paid by
GEO for the Rhodia Inc. Inventories properly represents the lower
of cost or net realizable value for the
<PAGE> 25
Rhodia, Inc. Inventories.
(iii) Except as set forth in APPENDIX 8.1.1.(o)(iii), the Transferor (in
relation to the Gallium Business) and the Companies have filed all
statements and/or effected all registrations and publications in
accordance with the laws and regulations applicable to all assets
owned by them.
(iv) Except as provided in APPENDIX 8.1.1.(o)(iv), the fixed assets
owned by the Transferor (in relation to the Gallium Business) and
by the Companies are structurally sound and in normal working
condition for the purpose for which they are intended, with no
material defects, subject to routine maintenance and repairs,
provided wear and tear is excepted.
(v) A list of all fixed assets owned by the Companies can be found in
APPENDIX 8.1.1.(o)(v). The Companies are duly entitled to occupy
the buildings listed in APPENDIX 8.1.1.(o)(v).
(vi) The buildings in which the Transferor (in relation to the Gallium
Business) and the Companies carry on their businesses have been
constructed in all material respects in compliance with all legal
and regulatory standards and/or authorizations in force at the
time of their construction (notably those with respect to town
planning, construction, environmental protection and respect for
the rights of third parties in general).
(vii) The assets owned by the Companies are not currently encumbered by
any lien or right of third parties other than those granted and
discharged in the ordinary course of business or those disclosed
in APPENDIX 8.1.1.(o)(ii).
(viii) The assets owned and/or leased by the Companies include all assets
used to conduct the Gallium Business in all material respects in
accordance with past practice.
(p) LEASES
(i) The leases and/or finance leases held by the Transferor (in
relation to the Gallium Business) and the Companies are in force
and are not subject to disputes with third parties and the
corresponding rights have not been pledged in favor of third
parties.
(ii) There is no fact or dispute with an owner or third party, or
contractual provision capable of limiting or affecting the
Companies' full and entire enjoyment of the premises for which the
Companies hold a lease.
(iii) The Transferor (in relation to the Gallium Business) and/or the
Companies are tenants under those leases of real property
(individually, a "LEASE" and collectively, the "LEASES") described
on APPENDIX 8.1.1.(p)(iii), which Leases pertain to the real
property described on APPENDIX 8.1.1.(p)(iii) (the "LEASED REAL
PROPERTY"). At the Transfer Date, neither of the Companies will
lease any other real property. To the Transferor's Knowledge no
condition exists with respect to the Leases that, with the passage
of time or giving of notice, or both, would constitute a default
by the Transferor, the Company or Ingal Stade under the Leases.
<PAGE> 26
(iv) The Company is in exclusive possession of the Leased Real
Property. None of the material structures on the Leased Real
Property encroaches upon real property of another person or entity
and, no structure of any other person or entity encroaches upon
any of the Leased Real Property.
(v) The Leased Real Property is contiguous to and has direct vehicular
and pedestrian access to public roads or otherwise has direct
vehicular and pedestrian access to public roads by valid and
subsisting easements, providing access to such roads for entry to
and exit from all plants, buildings and structures thereon, and
further except as set forth in the Related Agreements, has access
to all appropriate public utilities, in each case to the extent
necessary for the conduct of the Gallium Business (including
parking requirements).
(q) ENVIRONMENT, SAFETY, HEALTH
(i) The Companies are in compliance in all material respects with the
environmental regulations applicable in the countries where they
carry on their activities, notably those with respect to water
pollution, safety, health, noise, air, and except as stipulated
hereinafter in APPENDIX 8.1.1.(q)(i).
(ii) To the Transferor's knowledge, neither the Transferor nor the
Companies have taken any action which may result in the closing of
the Salindres Site or Ingal Stade Site or which may have a
Material Adverse Effect.
(iii) All buildings, machines and equipment used by the Transferor in
relation to the Gallium Business, the Company and Ingal Stade for
their activities are in compliance in all material respects with
the applicable environmental laws and regulations, except as
provided in Appendix 8.1.1.(q)(i).
(r) ORDINARY COURSE OF BUSINESS SINCE DECEMBER 31, 1998
Since December 31, 1998, except as set forth in APPENDIX 8.1.1.(r),
neither the Transferor (in relation to the Gallium Business) nor the
Companies have (other than in relation to the Contribution, all related
transactions to the Contribution, the purchase of the Ingal Stade shares,
the sale of the Rhodia Inc. Inventories, and the Related Agreements):
(i) declared or paid any dividend or other distribution in kind in
respect of the Shares;
(ii) been the subject of any merger, partial spin-off, increase or
decrease in capital, issuance of any securities which may give any
right to share capital;
(iii) acquired, sold or transferred material assets except in the
ordinary course of business;
(iv) suffered any material damage or destruction;
(v) sold, assigned, or granted rights under any Intellectual Property
Right or Patent Right;
<PAGE> 27
(vi) failed to undertake any material planned capital expenditures
except in the ordinary course of business;
(vii) granted or extended any power of attorney or acted as guarantor,
surety or indemnitor except in the ordinary course of business;
(viii) written down any inventory or written off any receivable except in
the ordinary course of business.
(ix) increased the rate or terms of compensation payable or to become
payable by any Company to any director, officer, or employee or
increased the rate or terms of any bonus, severance payment right,
pension, or other employee benefit plan covering any director,
officer, or employee except in the ordinary course of business and
consistent with past practice.
(x) made any change in any method of accounting or accounting
principle or practice; or
(xi) agreed or otherwise committed, whether in writing or otherwise, to
do any of the foregoing.
(s) NO BROKER
The Transferor does not know of any broker, finder or financial advisor
acting or who has acted on its behalf, or of any person, firm or
corporation entitled to receive any brokerage or finder's or financial
advisory fee from the Transferor or the Companies in connection with the
transactions contemplated by this Agreement.
(t) DISCLOSURE
To the Transferor's Knowledge, no representation or warranty by the
Transferor contained in this Agreement as qualified by the APPENDICES
hereto, and no information or statement contained in any Appendix
furnished to the Buyer and GEO pursuant to the provisions hereof,
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make such statements herein or
therein not misleading in light of the circumstances under which they
were made.
8.1.2 WARRANTIES AND REPRESENTATIONS OF GEO AND THE BUYER
GEO and the Buyer accept vis-a-vis the Transferor that any breach of these
warranties and representations shall be sanctioned in accordance with ARTICLE 9
of this Agreement. GEO and the Buyer represent and warrant to the Transferor as
follows on the date hereof and as of the Transfer Date (unless otherwise
specified herein).
(a) CORPORATE STATUS
The Buyer will be a corporation duly organized and validly existing and
will have all requisite corporate power to own its properties and carry
on its business. A copy of the
<PAGE> 28
Buyer's Articles of Association and certificate of incorporation true and
correct as of the Transfer Date will be attached hereto as APPENDIX
8.1.2.(a). GEO is an Ohio corporation duly organized and validly existing
and has all requisite corporate power to own its properties and carry on
its business as now being conducted, except to the extent that would not
prohibit or in any way interfere with the ability of GEO to perform its
obligations hereunder.
(b) NO BROKER
Neither GEO nor the Buyer knows of any broker, finder or financial
advisor acting or who has acted in either or on both of their behalf, or
of any person, firm or corporation entitled to receive any brokerage or
finder's or financial advisory fee from any party in connection with the
transactions contemplated by this Agreement.
(c) RESTRICTIONS
The consummation of the transactions contemplated hereby will not result
in a breach of, or give rise to a right of termination of, any agreement,
permit or authorization to which the Buyer or GEO (or any company of the
GEO Group) is subject or a party, or violate any of the provisions of the
charter documents of the Buyer or GEO (or any company of the GEO Group)
except to the extent that would not prohibit or in any way interfere with
the ability of GEO or the Buyer to perform any of their obligations
hereunder.
(d) NO LAWSUITS; CONSENTS.
There is no lawsuit, arbitration or proceeding pending or, to the
knowledge of the Buyer and GEO, threatened against the Buyer or GEO (or
any company of its group) which might prevent the consummation of any of
the transactions contemplated by this Agreement, and no approval or
authorization of any governmental entity or of any third party on the
part of the Buyer or GEO (or any company of its group) is required in
connection with the execution, delivery and performance of this
Agreement, the Related Agreements and the other documents contemplated
hereby and thereby.
(e) EXECUTION AND EFFECT OF AGREEMENT
(i) GEO and the Buyer have the full corporate power and authority to
enter into this Agreement, the Related Agreements, and the other
documents contemplated hereby. The execution and delivery of this
Agreement, and other documents contemplated hereby and the
consummation of the transactions contemplated hereby have been
duly authorized by the necessary corporate bodies of GEO and the
Buyer. This Agreement has been duly executed and delivered by GEO
and the Buyer, and assuming the due authorization and execution by
the Transferor, this Agreement constitutes a valid and binding
obligation of GEO and the Buyer, enforceable against GEO and the
Buyer in accordance with its terms.
(ii) Neither the execution of this Agreement by GEO and the Buyer nor
the performance by GEO and the Buyer of the transactions
contemplated herein (A) will violate or conflict with any of the
provisions of the Articles of Association of GEO or the Buyer, or
(B) will violate or constitute a default under, or be the
<PAGE> 29
grounds for termination of, any contract, agreement, mortgage or
other instrument to which GEO or the Buyer is a party or by which
any of their respective assets or properties are bound or any law
or any order, judgment or ruling of any governmental authority
applicable to GEO or the Buyer or any of their respective assets
or properties, except to the extent that would not prohibit or in
any way interfere with the ability of either GEO and/or the Buyer
to perform any of their obligations hereunder.
(f) FINANCIAL CAPACITY
GEO has and as at the Transfer Date the Buyer will have the requisite
financial capacity to pay the Transfer Price, the price of the Rhodia
Inc. Inventories, the Company's Indebtedness, the Contribution
Indebtedness and the IS Indebtedness pursuant to this Agreement.
8.1.3 ACCESS TO DOCUMENTS AND MANAGEMENT
GEO acknowledges for itself and the Buyer that during the due diligence
process which commenced on May 21, 1999, they enjoyed full and complete
access to the documents listed in APPENDIX 8.1.2.(g). GEO also
acknowledges that it has had the opportunity to conduct site visits of
the Sites and that it has met with key employees of the Companies.
Except to the extent disclosed in the Appendices hereto, this
acknowledgement shall not be deemed a general disclosure of the contents
of the information referenced in APPENDIX 8.1.2.(g), or be deemed a
waiver by the Buyer or GEO of any claim that it may have hereunder that
any of the representations or warranties given by the Transferor is or
was untrue or misleading, has been breached, or has not been adequately
disclosed against in an Appendix to this Agreement.
ARTICLE 9
---------
INDEMNIFICATION
---------------
9.1 INDEMNIFICATION OBLIGATIONS
(a) Subject to the terms and conditions of this Agreement and of SECTIONS
9.2, 9.3. and 9.4 below, the Transferor shall indemnify the Buyer for any
loss, cost, liability, obligations, claim, fines, judgements or expense
(including costs and expenses of litigation and reasonable consulting and
legal fees but excluding any and all incidental or consequential damages
"dommages indirects et/ou pertes d'exploitation") (all of which are
referred to as "LOSSES") that may be incurred by the Buyer as a result of
(i) the incorrectness or breach of any of the representations or
warranties made by the Transferor in this Agreement, (ii) the breach of
any of the covenants or agreements made by the Transferor in this
Agreement, or (iii) any of the assets contributed pursuant to the
Contribution Agreement being subject to a mortgage (hypotheque) or a
pledge (nantissement).
<PAGE> 30
(b) Subject to the terms and conditions of this Agreement and of SECTIONS
9.2, 9.3. and 9.4, the Buyer shall indemnify the Transferor for any
Losses that may be incurred by the Transferor as a result of (i) the
incorrectness or breach of any of the representations or warranties made
by GEO and/or the Buyer in this Agreement, or (ii) the breach of any of
the covenants or agreements made by GEO and/or the Buyer in this
Agreement.
(c) Subject to the terms and conditions of this Agreement and of SECTIONS
9.2, 9.3 and 9.4 herein, the Transferor shall indemnify the Buyer, the
Company or Ingal Stade from and against any and all Environmental
Indemnifiable Losses suffered or incurred by the Buyer, the Company, or
Ingal Stade, to the extent the Release(s) relate solely to activities
conducted at any of the Sites prior to the Transfer Date. The Buyer
agrees to indemnify the Transferor from and against any and all
Environmental Indemnifiable Losses suffered or incurred by the Transferor
to the extent the Release(s) relate solely to activities conducted at any
of the Sites after the Transfer Date.
(d) To the extent the Release(s) relate to activities conducted at either of
the Sites both prior to and after the Transfer Date, responsibility for
such Environmental Indemnifiable Losses shall be allocated between the
Transferor and the Buyer, the Transferor bearing responsibility for
Environmental Indemnifiable Losses attributable to Contaminants in
existence as at the Transfer Date and the Buyer bearing responsibility
for Environmental Indemnifiable Losses attributable to Contaminants
released subsequent to such date as well as New Contaminants, PROVIDED,
HOWEVER, that the Buyer shall bear the costs of any additional
Environmental Indemnifiable Losses resulting from (i) a change in
Environmental Law after the Transfer Date, and (ii) a change in the use
of raw materials, industrial procedures or processes and/or activities by
the Companies at any of the Sites after the Transfer Date.
(e) The allocation of responsibility between the Buyer and the Transferor
shall be determined on the basis of the third party Environmental
Assessments set forth in APPENDIX 8.1.1.(q)(i) hereto establishing the
level and nature of contamination of the Sites and the usage of Sites as
of the 1995 for the Company and 1994 for Ingal Stade. The allocation of
responsibility between the Buyer and the Transferor shall also be made on
the basis of any and all information provided by the Buyer to the
Transferor in accordance with the terms of SECTION 9.5 hereof and other
information available to the parties. Any dispute regarding the
allocation of responsibility herein that cannot be resolved by good faith
negotiation among the parties shall be submitted to such independent
environmental consulting group as may be mutually agreed between the
Buyer and the Transferor. In the event no agreement can be reached
between the Buyer and the Transferor within a fifteen (15) Business Day
period, either party shall be entitled to request the designation of an
environmental consulting group by the President of the Commercial Court
of Nanterre. Such consulting group shall make a determination as to the
appropriate allocation of responsibility for Remedial Action, based upon
its evaluation of the respective responsibilities of the parties with
regard to the relevant Releases that are subject of the Remedial Action,
taking the Environmental Assessment and any and all information provided
by the Buyer to the Transferor, in accordance with SECTION 9.5 hereof and
other relevant information, into consideration. The fees and expenses of
such consulting group shall be shared equally by the parties. The
decision of such consulting group shall be final, conclusive and binding
upon the Transferor and the Buyer in accordance with Articles 1592 and
2044 et seq. of the French Civil Code. In the event the consulting
<PAGE> 31
group cannot allocate the responsibility between the Buyer and the
Transferor, the dispute shall be submitted to French courts pursuant to
ARTICLE 16 hereof.
9.2 SURVIVAL OF INDEMNIFICATION
(a) The representations and warranties of the Transferor that are contained
in this Agreement shall survive the Transfer Date as follows:
(i) the representations and warranties entitled "Financial Statements,
No Undisclosed Liabilities, Entire Business" set forth in SECTION
8.1.1.(d) shall survive the Transfer Date for a twelve (12) month
period; provided, however, that claims in respect of assets not
reflected in the Group Reference Positions shall be made only
within a period of six (6) months following the Transfer Date;
(ii) the representations and warranties entitled "Capital and Shares of
the Companies", "Share Transfer" set forth at SECTIONS 8.1.1.(b)
and 8.1.1.(c) hereof, shall survive the Transfer Date for an
indefinite term;
(iii) the representations and warranties made under SECTION
8.1.1.(e)(iii) pertaining to tax matters shall survive the
Transfer Date until the expiration of the applicable statute of
limitations (in France or Germany, as the case may be);
(iv) the indemnity obligations of the Transferor pertaining to the
Release of Contaminants not related to the conduct of the Gallium
Business as set forth at SECTION 9.1(c) shall survive the Transfer
Date for a period of forty (40) years;
(v) the indemnity obligations pertaining to the Release of
Contaminants related to the conduct of the Gallium Business as set
forth at SECTION 9.1(c) AND (d) shall survive the Transfer Date
for a period of ten (10) years.
(vi) the remainder of the representations and warranties shall survive
the Transfer Date for a period of twenty-four (24) months.
(b) The representations and warranties of Buyer that are contained in this
Agreement shall survive the Transfer Date until the expiration of the
applicable statute of limitations.
(c) Except when another time period is specified herein, all of the
covenants in this Agreement will survive until they have been performed
in full. Once notice of a claim has been properly served, that claim
will survive until it has been agreed between the parties or finally
determined by a competent authority as specified herein.
9.3 LIMITATIONS ON INDEMNIFICATION
(a) The maximum aggregate indemnification liability of the Transferor under
this Agreement shall be as follows:
(i) sixty million French Francs (FRF 60,000,000) in the aggregate for
(a) all breaches of representations and warranties pursuant to
this Agreement, and (b) Remedial Actions or Environmental
Indemnifiable Losses pertaining to the Release of
<PAGE> 32
Contaminants related to the conduct of the Gallium Business prior
to the Transfer Date; provided, however, that in no event shall
the Transferor's liability under this Agreement for Remedial
Actions or Environmental Indemnifiable Losses pertaining to the
Release of Contaminants related to the Gallium Business exceed the
following maximum amounts:
<TABLE>
<S> <C> <C> <C>
Year 1 FRF 60 million
Year 2 FRF 54 million
Year 3 FRF 48 million
Year 4 FRF 42 million
Year 5 FRF 36 million
Year 6 FRF 30 million
Year 7 FRF 24 million
Year 8 FRF 18 million
Year 9 FRF 12 million
Year 10 FRF 6 million
Year 11 FRF 0
</TABLE>
(ii) unlimited for Environmental Indemnifiable Losses pertaining to the
Release, prior to the Transfer Date, of Contaminants not related
to the Gallium Business; provided, however, that in the event the
Environmental Indemnifiable Loss results from a spill, an
accident, a permanent or temporary cessation (other than a
cessation of the Gallium Business brought about as a direct result
of the Transferor's or its affiliates actions hereunder or under
any of the Related Agreements) of the Gallium Business or any
material change in the conduct of the Gallium Business, after the
Transfer Date, the Transferor's liability pursuant to this clause
(ii), shall be limited to sixty million French Francs (FRF
60,000,000).
(b) The maximum aggregate liability of GEO and the Buyer under this Agreement
shall be equal to sixty million French Francs (FRF 60,000,000).
(c) Subject to the last sentence of this Section 9.3(c), neither the Buyer or
GEO, nor the Transferor shall be entitled to indemnification for breach
of representations and warranties under SECTION 9.1 of this Agreement
unless the Losses (as defined in SECTION 9.1(a)) or, the Environmental
Indemnifiable Losses incurred by the Transferor, or the Buyer, as the
case may be, exceed two million French Francs (FRF 2,000,000) (the
"THRESHOLD") on the understanding that the unit amount of Loss (or the
aggregate Loss, when related to the same matter) to be indemnified shall
not be less than fifty thousand French Francs (FRF 50,000). If the
aggregate amount of such Losses or the Environmental Indemnifiable Losses
exceeds the threshold, the Indemnitor will be required to pay only the
amount in excess of the threshold. No threshold or minimum unit amount of
Loss shall apply in relation to any claim made by the Buyer in respect of
the Rhodia Inc. Inventories or the indemnity set forth in Section
9.1(a)(iii).
9.4 INDEMNIFICATION PROCEDURE
(a) Promptly after receipt by GEO and/or the Buyer or the Transferor, as the
case may be (in any such case, the "BENEFICIARY") and in any event within
the time periods set forth at paragraph (e) below of notice of any claim
or potential claim or the commencement of
<PAGE> 33
any action by any person that is not a party to this Agreement (a "THIRD
PARTY CLAIM"), which could give rise to a right to indemnification
pursuant to SECTION 9.1, the Beneficiary shall give the party who may
become obligated to provide indemnification hereunder (the "INDEMNITOR")
written notice describing the Third Party Claim in reasonable detail.
(b) The Indemnitor shall have the right, at its option, to participate in or,
by giving written notice to the Beneficiary to elect to assume the
defense of such Third Party Claim, at the Indemnitor's own expense and by
its own counsel. If the Indemnitor undertakes to assume the defense of
any Third Party Claim, it shall promptly notify the Beneficiary of its
intention to do so, and the Indemnitor shall not be liable for any
expenses subsequently incurred by the Beneficiary in connection with the
defense thereof; provided, that the Indemnitor has taken reasonable steps
necessary to defend diligently such Third Party Claim. If the Indemnitor
decides not to assume the defense of the Third Party Claim, the
Beneficiary may assume the defense of such Third Party Claim. The
Beneficiary shall cooperate fully with, and provide appropriate
documentation as reasonably requested by, the Indemnitor and its counsel
in the compromise of, or defense against, any such Third Party Claim. In
any event, the Beneficiary shall have the right, at its own expense, to
participate in the defense of any Third Party Claim as to which the
Indemnitor has assumed the defense and compromise.
(c) Neither party shall have the right to settle a claim without the prior
written consent of the other party, which consent shall not be
unreasonably withheld.
(d) Any claim by a Beneficiary on account of Losses that does not result from
a Third Party Claim (a "DIRECT CLAIM") shall be asserted by giving the
Indemnitor prompt written notice of the nature of such claim and the
nature of any Losses that are or may be indemnifiable hereunder (promptly
after they become known by the Beneficiary).
(e) All notices of a Third Party Claim or a Direct Claim as set forth herein
must be given within thirty (30) days of the date that such party has
actual knowledge of facts or circumstances that could reasonably be
expected to give rise to such claim, or earlier if the notification
within the thirty (30) day period would increase the Indemnitor's
liability hereunder. All notices shall be in writing and shall describe
the claims in reasonable detail, provide all necessary documentation in
the possession of the party making the claim, and estimate the amount
claimed, if one is not given. Notwithstanding the foregoing, any tax
reassessment notice shall be notified to the Indemnitor within eight (8)
Business Days of receipt. If the party notifying such claim fails to do
so within the thirty (30) day period or the eight (8) Business Day
period, as the case may be, the party notifying such claim shall not be
entitled to claim against and, as the case may be shall be liable to the
Indemnitor for any Losses resulting from any increase to the Indemnitor's
liability under such claim due to such late notification.
(f) In the event of a Third Party Claim, the Indemnitor, its representatives
or outside consultants, shall be allowed during normal business hours
reasonable access to books, documents, and documentation of the Company
or of Ingal Stade, as the case may be, which are or could be relevant to
the Third Party Claim and shall benefit from the full cooperation of the
Company's and/or Ingal Stade's employees. All reasonable expenses
incurred by such employees shall be reimbursed by the Indemnitor.
<PAGE> 34
(g) In the event a Third Party Claim is a claim by a governmental agency or
if a Direct Claim arises from a claim by a governmental agency, the
Beneficiary shall request all reasonable stays, extended delays or other
measures applicable to such claim in order to delay the payment of any
Losses (or Environmental Indemnifiable Losses) until the resolution of
such claim.
9.5 PROCEDURE FOR REMEDIAL ACTION
(a) From and after the Transfer Date, the Buyer shall inform the Transferor
in writing of:
(i) the results of all such measurements and sampling of
Contaminants on any of the Sites as may be undertaken by the
Buyer, the Company or Ingal Stade or any of their affiliates
and which the Buyer has reasonable basis to believe may give
rise to a claim for Environmental Indemnifiable Losses against
the Transferor.
(ii) any Release required to be reported to governmental entities
under Environmental Laws or which, the Buyer has reasonable
basis to believe, may give rise to a claim for Environmental
Indemnifiable Losses against the Transferor; and
(iii) any material changes in the use of raw materials and/or
industrial procedures or processes, in the activities on the
Sites, and/or the use of New Contaminants to the extent such
changes may be relevant to the allocation of responsibility
between the Buyer and the Transferor pursuant to this SECTION
9.5.
(b) Subject to the terms and conditions of SECTION 9.4 of this Agreement, if
a Third Party Claim (including from a governmental entity and whether
oral or written) is made against the Buyer with respect to a Remedial
Action to be indemnified by the Transferor pursuant to this Agreement,
the Buyer shall promptly inform the Transferor of any pending or
threatened claim or enforcement action, the nature and basis of such
claim, the estimated claim amount, and notify in advance and afford the
Transferor the opportunity to participate in any proposed meeting or
proceeding with such third party. The Buyer shall also provide to the
Transferor all relevant information and documents received from such
third party or in its possession or in the possession of the Companies.
The Transferor shall have the right to visit the Sites which are the
object of a Remedial Action and to conduct or cause to be conducted (at
its own expense and risk) environmental inspections thereof. The
Transferor shall use all reasonable efforts to reduce any intrusion upon
the Buyer's, the Company's or Ingal Stade's operations attendant to any
environmental inspection.
(c) The Transferor shall be entitled to conduct or cause an independent
consultant of its choice to conduct the Remedial Action until full
completion; it being understood and agreed between the parties that the
Buyer shall, fully cooperate with the Transferor in the performance of
the Remedial Action in order to allow the Remedial Action to be performed
at the lowest cost and in a timely manner. The Transferor shall use all
reasonable efforts not to unreasonably disrupt the Buyer's, the Company's
or Ingal Stade's operations attendant to any environmental inspection or
Remedial Action.
<PAGE> 35
(d) If the Transferor does not promptly choose to conduct the Remedial Action
itself or through an independent consultant, the Buyer and the Transferor
shall agree on the scope, nature, methodology and cost of such Remedial
Action in accordance with Environmental Laws, prior to the conduct of the
Remedial Action. To this effect, the parties shall jointly prepare a
written document describing in detail the timing, scope, nature,
methodology and cost of Remedial Actions ("PLAN"), unless the Transferor
has not used its best efforts to promptly agree on the Plan. The Plan
shall also include the name of the entity in charge of the conduct of the
Remedial Actions. Any amendment to the Plan shall be made through the
written consent of both parties. The Transferor shall not be liable for
any amendments to the Plan made without its prior written consent or for
any Remedial Action taken outside the scope of the Plan with the same
purpose as the Plan. In case of dispute regarding the Plan, the parties
shall cause an independent environmental consulting firm mutually
agreeable to them, to resolve the dispute. In the event no agreement can
be reached between the Buyer and the Transferor within a fifteen (15)
Business Day period, either party shall be entitled to request the
designation of an environmental consulting group by the President of the
Commercial Court of Nanterre. In the event the consulting group cannot
make a final determination on the Plan, the dispute shall be submitted to
the French courts pursuant to ARTICLE 16 hereof.
(e) It is understood and agreed between the parties that all Remedial Actions
shall be conducted at the lowest costs available provided that the use of
the lowest cost Remedial Action shall not unduly interfere with the
Buyer's business or the quality of work performed.
(f) The Buyer shall not take any environmental action that may materially
increase the Transferor's liability hereunder without the Transferor's
prior written approval (in particular, the Buyer shall not initiate
contact or provide information to any environmental governmental
authority with respect to any Release or Remedial Action), except (i) as
required by law, (ii) in the event of a serious emergency or (iii) where
the Transferor's consent to such action is being unreasonably withheld or
delayed.
9.6 PAYMENT
(a) All indemnification payments made under this ARTICLE 9 shall be payable
with respect to any claim concerning Losses (including Environmental
Indemnifiable Losses) upon (i) the resolution of such claim by mutual
agreement between the Transferor and the Buyer, (ii) the issuance of a
final judgement, award, order or other ruling (from which an appeal has
not been promptly lodged or which is not subject to appeal or with
respect to which the time for appeal has elapsed) by a court or arbitral
tribunal having jurisdiction over the parties and the subject matter of
such claim or to which such claim was submitted for resolution by joint
agreement between the Transferor and the Buyer (iii), the final
settlement of such claim with a third party pursuant to mutual
authorization by the Transferor and the Buyer or (iv) upon the existence
of a payment obligation of the Companies vis-a-vis the tax
administration.
(b) The amount of any indemnity payable hereunder on account of Losses or
Environmental Indemnifiable Losses shall be reduced by any insurance
proceeds received by the Beneficiary with respect thereto (subject to the
provisions of clause (f) below), and further reduced by the value of any
net tax benefit or tax savings realized by the
<PAGE> 36
Beneficiary as a result of or related to the foregoing (including without
limitation a tax deduction or loss, basis adjustment and/or shifting of
income, deductions, gains, loss and/or credits), and increased by any tax
incurred by the Beneficiary as a result of or related to the foregoing
(including without limitation any tax related to the inclusion, if
required by law, in gross income of insurance proceeds or a payment
pursuant hereto). Furthermore it is understood and agreed that neither
party shall be entitled to double recovery under this Agreement.
(c) Any indemnity payment by any party on account of Environmental
Indemnifiable Losses or related to a Direct Claim shall be understood to
constitute damages and not a reduction in the Transfer Price. Such
payment shall be made to the entity which shall have directly suffered
the damage, provided that, upon request, the payment of Losses (or
Environmental Indemnifiable Losses) by the Indemnitor with respect to a
Third Party Claim may be made directly to the third party claimant.
(d) Each party shall have the right to request the other party to take any
reasonable action or to cause any of the Companies to take any reasonable
action, to mitigate the consequences of any tax reassessment (including
actions vis-a-vis customers or suppliers to mitigate the consequences of
VAT reassessment), provided that costs incurred by the other party as a
result thereof be reimbursed by the party requesting the mitigating
actions.
(e) The parties hereby acknowledge that the provisions of this ARTICLE 9
shall be their sole and exclusive monetary remedy for any claim arising
out of this Agreement (except for SECTION 10.1.(g)) and each party hereby
waives any claim against the other not explicitly provided for herein for
indemnification, contribution or other recourse for monetary damages.
(f) The parties hereby undertake and agree on their behalf and on behalf of
their insurance companies not to initiate any action against the other
party's insurance company with respect to claims arising in connection
with this Agreement
ARTICLE 10
----------
COVENANTS
---------
10.1 COVENANTS OF THE TRANSFEROR
The Transferor hereby covenants and agrees that:
(a) BUSINESS IN ORDINARY COURSE
Between the date of this Agreement and the Transfer Date, the Transferor
shall, and shall procure that the Companies shall conduct the Gallium
Business in the ordinary course and consistent with past practice. In
addition, between the date of this Agreement and the Transfer Date except
in relation to the Contribution, or the purchase of the Ingal Stade
shares by the Company, the Transferor shall not (in relation to the
Gallium Business) and shall procure that the Companies shall not, without
the consent of the Buyer or GEO:
<PAGE> 37
(i) purchase or sell, or make any commitment to purchase or sell, any
machinery, equipment or product valued in excess of FRF 500,000
(five hundred thousand French Francs);
(ii) make any capital expenditure in excess of FRF 500,000 (five
hundred thousand French Francs);
(iii) borrow any funds or incur, assume, acquire or guarantee any
obligation or liability (contingent or otherwise) except in the
ordinary course of business and consistent with past practice;
(iv) declare or pay any dividend or other distribution with respect to
the capital stock of the Companies;
(v) purchase, redeem, issue, sell or otherwise acquire or dispose of,
either directly or indirectly, any of the capital stock or
reclassify, split up or otherwise change any of the capital stock
of the Companies or grant or enter into any options, warrants or
calls or other rights to purchase or convert any obligation into
any of the capital stock of the Companies;
(vi) sell, assign, transfer, convey, lease, pledge, encumber or
otherwise dispose of or agree to sell, assign, transfer, convey,
lease or otherwise dispose of any material portion of the assets
or properties of the Transferor (relating to the Gallium Business)
or the Companies, or any other material right except for sales of
Gallium in the ordinary course of business;
(vii) grant or extend any power of attorney or any guarantee;
(viii) increase the rate or terms of compensation payable or to become
payable by any Company to any director, officer, or employee or
increase the rate or terms of any bonus, severance payment right,
pension, or other employee benefit plan covering any director,
officer, or employee;
(ix) enter into any employment or severance agreement with any
employee, officer, or director;
(x) pay, discharge, or satisfy any claims, liabilities, liens, or
obligations (absolute, accrued, contingent, or otherwise) that
exceed FRF 500,000 (five hundred thousand French Francs) in the
aggregate other than in the ordinary course of business;
(xi) mortgage, pledge, or subject to lien or other Encumbrance any of
its property other than in the ordinary course of business;
(xii) make any change in any method of accounting or accounting
principle or practice;
(xiii) write up the value of any inventory or other assets;
(xiv) except as contemplated herein, organize any subsidiary or acquire
any capital stock of any entity or any equity interest in any
business;
<PAGE> 38
(xv) agree to do any of the foregoing.
(b) CONTRIBUTION AGREEMENT AND TRANSFER OF INGAL STADE SHARES
Prior to the Transfer Date, the Transferor shall (i) complete the
Contribution and effect the corresponding increase in share capital with
the issuance to the Transferor of the new shares in the Company, and (ii)
cause Rhodia Deutschland to complete the transfer of the Ingal Stade
Shares to the Company.
(c) SUPPLEMENTAL DISCLOSURE
Between the date hereof and the Transfer Date, the Transferor shall be
able to supplement or amend the Appendices hereto or add additional
Appendices with respect to any matter necessary to update any information
called for under this Agreement but only in respect of matters arising
after the date hereof but prior to the Transfer Date; PROVIDED, HOWEVER,
that if any such supplemental disclosure would have an adverse effect on
the Gallium Business or Ingal Stade, the Transferor and the Buyer shall
agree on the monetary amount of such loss, and the Transferor shall
indemnify the Buyer on a Franc for Franc basis the amount of such loss
but only if such amount(s) exceeds fifty thousand French Francs (FRF
50,000) in the aggregate. Following any such Appendix addition,
supplement or amendment, any related representation or warranty of the
Transferor contained in this Agreement shall be deemed to be qualified,
supplemented or amended in accordance therewith.
(d) DIRECTORS' RESIGNATIONS
The Transferor shall cause the Companies' directors to terminate their
offices as directors as of the Transfer Date.
(e) CORPORATE NAME
The Transferor shall cause the Company to change its corporate name to
GEO Gallium effective as of the Transfer Date.
(f) POWERS OF ATTORNEY
The Transferor shall cause the Companies to terminate the powers of
attorney listed in APPENDIX 10.1.(f) hereto, effective on the Transfer
Date.
(g) NON-COMPETITION
(i) For a period of seven (7) years from the Transfer Date, the
Transferor shall not and shall procure that no other member of the
Rhodia Group shall carry on any activity competing with the
activity of the Gallium Business, irrespective of the form or
capacity in which such activity would be carried on and whether
directly or indirectly (including direct or indirect interests in
other companies or entities, corporate functions or offices or the
performance of services).
<PAGE> 39
(ii) The non-competition obligation stipulated herein shall also apply
to any and all companies whatsoever, whether persons or entities,
that directly or indirectly, hold at least 50% of the Transferor's
capital or voting rights.
(iii) The non-competition obligation stipulated in the present paragraph
(g) concerns gallium compounds and shall be applicable in Taiwan,
Korea, Singapore, Japan, Israel, Australia, the United States and
Europe (including Russia).
(iv) The Transferor, for itself and on behalf of the members of the
Rhodia Group, agrees that none of them shall solicit any officer,
director or employee employed by any of the Companies.
(v) Notwithstanding the foregoing, the covenants in SECTIONS
10.1(g)(i), (ii), (iii) AND (iv) above shall in no event be
applicable to any of the following:
(A) Any direct or indirect ownership interest of the
Transferor or any member of the Rhodia Group in, but not
any active participation beyond the exercise of shareholder
or similar voting rights in the management, operation or
control of (x) any company engaged in the same activity as
the activity conducted by the Gallium Business (a
"COMPETING BUSINESS"), which derived less than ten percent
(10%) of its consolidated revenues from activities
competitive with the Gallium Business ("COMPETING
ACTIVITY") in its most recent fiscal year for which
published financial information is available, or (y) any
Competing Business, so long as such ownership interest
consists entirely of securities representing less than five
percent (5%) of the outstanding equity interests in such
Competing Business and such securities are listed for
trading on a recognized stock exchange.
(B) The acquisition or ownership, for investment purposes only,
of any publicly traded non convertible debt securities
(including commercial paper) of any Competing Business.
(C) The acquisition or ownership, for investment purposes only,
by any employee savings, retirement or similar benefit
plan, of any ownership interest in, or debt securities
(including commercial paper) of, any Competing Business;
PROVIDED that all of the investment decisions for such
benefit plan in respect thereof are made by an independent
trustee or trustees or an independent investment manager or
managers.
(D) The acquisition by the Transferor or any of its affiliates
(a "ACQUIRING PERSON"), as the case may be, in the context
of any acquisition, merger, joint venture, asset purchase,
or any other business combination, of an ownership interest
in any Competing Business which derived twenty percent
(20%) or more of its consolidated revenues from a Competing
Activity in its most recent fiscal year for which published
financial information is available, so long as the
following procedure is followed:
(i) The Acquiring Person shall use its best efforts to
promptly sell the Competing Activity to a person or
persons who are not an affiliate of
<PAGE> 40
the Transferor within one (1) year following the
closing of the acquisition of such Competing
Activity.
(ii) The Buyer shall have a right of first offer with
respect to any sale contemplated in paragraph (i)
above, in accordance with the following procedure:
(x) The Acquiring Person shall provide the Buyer
with exclusive access, for a period of thirty
(30) days from the date the Acquiring Person
initiates its selling efforts, to relevant
business and financial information with
respect to the Competing Activity and shall
negotiate exclusively with the Buyer for such
thirty (30) day period, during which the
parties shall negotiate in good faith with a
view to establishing mutually agreeable
binding terms of purchase and sale.
(y) To the extent the parties are unable to reach
such binding terms within such period, the
Acquiring Person may thereafter provide
information to and enter into negotiations
with third party bidders, PROVIDED that the
Acquiring Person shall not be entitled to
sell such Competing Activity to a party other
than the Buyer at a price lower than the
price initially offered by the Buyer.
(z) If the Acquiring Person does not sell the
Competing Activity in the time period
contemplated by paragraph (D)(i) above and
pursuant to paragraph (D)(ii) above, the
Parties shall negotiate in good faith to find
an alternative solution.
(E) Any other business arrangements with a Competing Business,
PROVIDED that such arrangements do not involve the
Competing Activity and further do not involve any ownership
interests in Competing Business which would not be
permitted under the above provisions of this SECTION
10.1(g)(v).
10.2 GEO AND THE BUYER'S COVENANTS
(a) SHAREHOLDERS' MEETING
On the Transfer Date, the Buyer shall cause the Companies to hold a
shareholders' meeting in order to (i) approve the resignation of their
directors, (ii) appoint new directors, (iii) change the registered
addresses.
(b) INSURANCE
The Buyer acknowledges and agrees that the Companies shall cease to be
covered by the Transferor's group insurance policies effective at the
time of the Closing on the Transfer Date and that the Buyer shall provide
the Companies with adequate insurance coverage for the conduct of the
Gallium Business as of that time on the Transfer Date.
<PAGE> 41
(c) "RHONE-POULENC", "RHO", "RHODIA" AND "RHONE" NAMES AND LOGOS
The Buyer acknowledges and agrees that neither the Buyer, nor the
Companies shall acquire hereunder the right to use the "Rhone-Poulenc",
"Rho", "Rhodia" and "Rhone" names and logos. As a general rule, the Buyer
shall, at its own expense, cease using all names, trademarks, graphics
and logos and all other distinctive signs belonging to the Transferor
and/or any member of the Rhodia Group or the Rhone-Poulenc group as soon
as possible in connection with the business of the Companies,
irrespective of the medium, and in any event no later than three (3)
months after the Transfer Date.
(d) REGULATORY FILINGS
Promptly after the Transfer Date, the Buyer shall (i) cause the Companies
to file a declaration with the competent environmental governmental
entities regarding the change in control of the Salindres Site and Ingal
Stade, (ii) provide to the Transferor evidence of such filing in a timely
manner and (iii) proceed to all filings and formalities required under
applicable laws to be completed after the purchase of the Shares by the
Buyer. The Transferor shall provide such assistance to the Buyer as may
be reasonably required in regard to the maters referenced in this Section
10.2(d).
(e) MAINTENANCE OF GALLIUM ACTIVITY AT SALINDRES SITE
The Buyer shall maintain the gallium activity on the Salindres Site at
current operational levels for a duration of at least five (5) years, and
shall maintain the current employment level at the Salindres Site for the
minimum five (5) year period, except (i) in the event of a material
downturn in the worldwide Gallium Business; provided, however, that in
any event during the five year period, the Buyer shall not be entitled to
transfer the conduct of the French purification activity to Germany, (ii)
in the event of a Force Majeure but solely for the duration of the Force
Majeure, (iii) in the event the Transferor were to cease its own
activities on the Salindres Site, (iv) in the event the course of
business between AOS and Ingal Stade is materially altered by AOS to the
material detriment of the Gallium Business. If after the five-year
period, the Buyer decides to cease the gallium activity on the Salindres
Site and to sell the buildings thereon (other than in connection with a
sale of the business), the Buyer shall offer to the Transferor a right of
first refusal to purchase such buildings at their net book value, and the
Buyer shall not sell the buildings at a lower price than the price
offered to the Transferor unless the Transferor declines at any lower
price also. The Buyer shall not be obligated under this clause to the
extent any employee retires, resigns or is terminated for good reason by
the Company.
(f) ACCESS TO FILES AND INFORMATION
For the purposes of ARTICLES 4 AND 6 only, the Buyer shall arrange for
the Companies to allow the representatives of the Transferor and the
audit and/or consulting firms concerned reasonable access to the
information and files of the Companies from the Transfer Date, on the
understanding that said access shall not disrupt the ordinary course of
business.
The representatives of the Transferor and the audit and consulting firms
shall keep all
<PAGE> 42
information and all documents disclosed to them in this context strictly
confidential.
(g) SOCIAL BENEFITS
The parties acknowledge that the IRP and CAVDI retirement plans will
cease to be applicable to the employees of the Company as of the Transfer
Date. However, the parties have agreed to maintain a provision for
retirement costs in relation to the IRP and CAVDI retirement plans in the
Control Position.
As a result, Buyer hereby undertakes to cause the Company to offer to its
employees a supplemental retirement plan managed by an internationally
recognized insurance policy and offering benefit and coverage globally
similar to the benefit and coverage of the IRP and CAVDI regimes and
corresponding to the provisions in the accounts of the Company.
(h) TRANSFER OF REGISTERED OFFICE
The Buyer shall cause the Company to change the address of its registered
office on the Transfer Date.
(i) GUARANTEE OF GEO
GEO irrevocably and unconditionally guarantees the due and timely
performance by the Buyer of all its obligations undertaken in this
Agreement. All obligations undertaken by the Buyer herein shall be
considered a direct and primary obligation of GEO.
10.3 MUTUAL COVENANTS
(a) CONFIDENTIALITY
Each of the parties, their representatives, employees, directors and
outside consultants shall treat the contents of this Agreement as well as
information obtained on the other party as confidential and shall refrain
from disclosing this Agreement, in whole or in part to any third party,
except as required by any laws or regulations of governmental entities
(including the Securities and Exchange Commission) or by the employees'
representatives or banks financing the transactions contemplated herein
in which case, the disclosing party shall give prior notice to the other
party, and if requested by such other party, the disclosing party shall
seek to obtain a protective order or similar protection. The Transferor
acknowledges that GEO will be required to disclose the terms of this
Agreement in connection with it obligations under the Securities Exchange
Act of 1934. The Transferor will not take any action seeking to prevent
or limit such disclosure. Any breach of this confidentiality obligation
by a representative, employee, director or outside consultant of any
party shall be considered to be a breach of such party's obligations.
(b) PUBLICITY
Subject to the matters referenced in SECTION 10.3(a), the Transferor and
the Buyer agree that, from the date hereof through the Transfer Date, no
public release or announcement concerning the transactions contemplated
hereby shall be issued by either party without the prior consent of the
other party (which consent shall not be unreasonably withheld),
<PAGE> 43
except as such release or announcement may be required by law or the
rules or regulations of any governmental entity, in which case the party
required to make the release or announcement shall allow the other party
reasonable time to comment on such release or announcement in advance of
such issuance.
(c) BEST EFFORTS
Subject to the terms and conditions of this Agreement, each party shall
use its best efforts to cause each of the conditions to Closing
applicable to it to be fulfilled.
(d) COOPERATION
Each of GEO and the Buyer and the Transferor shall furnish or cause to be
furnished after the Transfer Date, upon reasonable written notice to the
other party and its employees, counsel, auditors and representatives
access, during normal business hours, such information and assistance
relating to the Companies as is reasonably necessary for financial
reporting and accounting matters, the preparation and filing of any tax
returns, reports or forms or the defense of any tax claim or assessment
or the response to any inquiry made by the tax authorities, as well as
the preparation of any filing or submission which is necessary under any
applicable legislation, rules or regulations including the Law n(degree)
89-935 of December 29, 1989. The Transferor shall provide access to GEO
and its advisors to such material pertaining to the Gallium Business in
the Transferor's possession as may be reasonably necessary in order for
GEO to comply with the provisions of the Securities Exchange Act of 1934
and applicable rules in relation to the transactions contemplated herein.
The Transferor shall provide GEO's advisors with such co-operation as may
be reasonably requested by GEO in connection with the required
disclosures under US securities laws (which may include causing
PriceWaterHouse to conduct the necessary audit of the Gallium Business or
provide such information as may be reasonably requested to have GEO
conduct an audit of the Gallium Business); it being understood that in no
event shall Rhodia be required to give any warranty or representation to
GEO or GEO's auditors in this respect. The Buyer shall provide the
Transferor access to records kept on data processing systems in relation
to any tax reassessment or to any tax audit made by the tax authorities
and concerning the Companies. The Transferor and the Buyer shall keep
each other apprised of the status of any communication with, and any
inquiries or requests for additional information from, any governmental
entity, and shall comply promptly with any such inquiries or requests.
Each of the Transferor and the Buyer shall use its best efforts to obtain
any governmental consents required. It is understood and agreed that the
party requesting information or co-operation from the other party in
respect of this clause shall pay the other party's reasonable expense.
(e) RELATED AGREEMENTS
On the Transfer Date (immediately after the Closing), the parties
hereto shall cause the Companies and companies of the Rhodia Group, as
applicable, to enter into the following agreements:
- Services Agreement;
- Utilities Agreement;
- Research and Development Services Agreement;
<PAGE> 44
- Confidentiality Agreement;
- Purchase Option Agreement;
in the form attached hereto as APPENDIX D, (collectively, the "RELATED
AGREEMENTS"), except that it is understood and agreed between the parties
that the Buyer has not had the opportunity to review the Appendices to
the Purchase Option Agreement and therefore the Appendices have yet to be
agreed.
(f) EASEMENTS
The parties hereto acknowledge and agree that (i) in order to conduct the
Gallium Business as currently being conducted, the Company has rights of
access and Easements on the portion of the Salindres Site it does not
own, and (ii) in order to conduct their activities, the Transferor and
other members of the Rhodia Group have rights of access and Easements on
the Salindres Site owned by the Transferor in relation to the Gallium
Business (in particular for the maintenance of pipes). The parties
further acknowledge and agree that the Salindres Site is subject to legal
easements ("servitudes legales" such as "regles d'urbanisme") and these
rights of access and Easements have not been identified and precisely
listed in the Appendices hereto as of the date hereof. The parties
undertake and agree to use their best efforts to identify and formalize
these rights of access and Easements as well as any rights and Easements
necessary for the conduct of their future activities, as soon as possible
following the date hereof by way of a notarized deed. The costs of these
formalities shall be borne by the Transferor. The Transferor agrees to
grant to the Company such rights of access necessary for the proper
operation of the Gallium Business at the Salindres Site as currently
being conducted to the extent it does not unreasonably disrupt the
Transferor's activities and the other activities of third parties on the
Salindres Site. The Transferor also agrees to use its best efforts to
obtain the release of any mortgage ("hypotheque") or pledge
("nantissement") if any, existing as of the Transfer Date on the assets
contributed to the Company.
(g) PINJARRA ASSETS
The parties acknowledge and agree that none of the assets (including the
patents or other intellectual or industrial property rights) of Pinjarra
shall be transferred or acquired by the Buyer or GEO by virtue of this
Agreement. Nothing in this Agreement or in the Appendices hereto shall be
interpreted as a transfer of ownership of these assets to GEO or the
Buyer.
(h) REGISTRATIONS
The parties acknowledge and agree that as set forth in APPENDIX 8.1.1
(f)(ii) the Intellectual Property Rights and Patent Rights are not all
registered in the name of the Transferor or Ingal Stade on the date
hereof. As a result, the Transferor undertakes and agrees to promptly and
diligently proceed to all registration formalities required to register
the Intellectual Property Rights and Patent Rights in the name of the
Company or Ingal Stade and then to proceed to all formalities required in
respect of the Intellectual Property Rights and Patent Rights pursuant to
the Contribution. All relevant costs, fees and expenses shall be borne by
the Transferor.
<PAGE> 45
ARTICLE 11
----------
CONDITIONS TO CLOSING
---------------------
11.1 CONDITIONS TO OBLIGATIONS OF THE BUYER
The obligations of the Buyer to complete the purchase of the Shares on the
Transfer Date are subject to the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT
The Transferor's representations and warranties made in this Agreement
shall be true and correct in all material respects as of the date hereof
and as of the Transfer Date (except to the extent such representations
and warranties expressly relate to an earlier date, in which case they
shall have been true and correct as of such date).
(b) COMPLIANCE WITH AGREEMENT
The Transferor shall have performed and complied in all material respects
with all of its obligations under this Agreement, or shall have cured any
instance of material non-performance or non-compliance, at or before the
Transfer Date.
(c) CONTRIBUTION AGREEMENT AND TRANSFER OF INGAL STADE SHARES
The Transferor shall have (i) completed the Contribution and effected the
corresponding increase in share capital with the issuance to the
Transferor of the new shares in the Company, and (ii) Rhodia Deutschland
shall have completed the transfer of the Ingal Stade Shares to the
Company.
11.2 CONDITIONS TO OBLIGATIONS OF THE TRANSFEROR
The obligations of the Transferor to complete the sale of the Shares as of the
Transfer Date are subject to the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT
GEO and the Buyer's representations and warranties made in this Agreement
shall be true and correct in all material respects as of the date hereof
and as of the Transfer Date (except to the extent such representations
and warranties expressly relate to an earlier date, in which case they
shall have been true and correct as of such date).
(b) COMPLIANCE WITH AGREEMENT
GEO and the Buyer shall have performed and complied in all respects with
all of its obligations under this Agreement, or shall have cured any
instance of material non-performance or non-compliance, at or before the
Transfer Date.
<PAGE> 46
11.3 MUTUAL CONDITIONS
(a) CONSULTATIONS
All statutorily or contractually required consultations, including those
of employees' representatives shall have been made and statutorily or
contractually and required opinions of the employees' representatives
shall have been rendered.
(b) NO REGULATORY IMPEDIMENT
No statute, rule, regulation, executive order, decree, temporary
restraining order, preliminary or permanent injunction or other order
enacted, entered, promulgated, enforced or issued or other legal
restraint or prohibition preventing the purchase of the Shares by the
Buyer shall be in effect.
ARTICLE 12
----------
TERMINATION
-----------
12.1 TERMINATION EVENTS.
This Agreement may, by notice given prior to or at the Closing, be terminated:
(a) by either the Transferor or the Buyer upon ten (10) Business Days prior
notice to the other if a material breach of any provision of this
Agreement has been committed by the other party and such material
breach has not been cured or waived during such ten (10) Business Day
period;
(b) by the Buyer upon simple notice to the Transferor if any of the
conditions precedent in ARTICLE 11.1 has not been satisfied as of
October 1, 1999 or if satisfaction of any such condition precedent is
or becomes impossible (other than as a result of the failure of the
Buyer to comply with its obligations under this Agreement) and the
Buyer has not waived such condition precedent on or before the Closing;
(c) by the Transferor upon simple notice to the Buyer if any of the
conditions precedent in ARTICLE 11.2 has not been satisfied as of
October 1, 1999 or if satisfaction of any such condition precedent is
or becomes impossible (other than as a result of the failure of the
Transferor to comply with its obligations under this Agreement) and the
Transferor has not waived such condition precedent on or before the
Transfer Date;
(d) by either party upon simple notice if the Closing has not occurred on
or before November 1, 1999, or such later date as the parties may agree
upon; provided the terminating party is not in material breach of its
obligations hereunder;
(e) by mutual written consent of the Buyer and the Transferor.
12.2 EFFECT OF TERMINATION.
<PAGE> 47
Unless termination of this Agreement is due to the breach of a party's
obligations hereunder, neither party shall be liable to the other regarding this
Agreement or the fact that this Agreement was not consummated, in particular,
but without limitation if termination is a result of any governmental or
regulatory impediment.
ARTICLE 13
----------
MISCELLANEOUS
-------------
(a) COSTS/EXPENSES
Each of the parties shall bear the cost of all expenses incurred by it
prior to execution of this Agreement, notably the fees and costs of its
own lawyers, accountants and other consultants.
(b) APPENDICES/ENTIRE AGREEMENT
The Appendices are an integral part of this Agreement. A disclosure made
in any Appendix to this Agreement by a party hereto shall only be deemed
to have been made by such party in other Appendices in which a disclosure
would be applicable if such disclosure is not materially misleading and
provided that such party shall have attempted in good faith to identify
the representation and warranty to which such disclosure relates. The
provisions in this Agreement and the Appendices shall constitute the
entire agreement between the parties in respect of its purpose and shall
replace and cancel all prior warranties, representations, negotiations,
oral or written communications, acceptances, understandings or agreements
between the parties with respect to the provisions governed by or
provided for in this Agreement. Representations and warranties shall only
be disclosed against if the relevant representation and warranty
references an Appendix (except where an Appendix says "None").
(c) MODIFICATION
This Agreement can only be modified by a written amendment signed by the
parties. In particular, tolerance or failure to act by either party shall
not be construed as a waiver of its rights under this Agreement.
(d) SEVERABILITY
Should one of the Articles or Sections of this Agreement turn out to be
null and void or unenforceable (except for a condition to closing of the
Buyer which has not been satisfied):
(i) the validity and enforceability of the other Articles or Sections
shall in no way be affected and none of the parties shall be
entitled to claim damages solely because of said nullity or
unenforceability.
(ii) the parties shall negotiate in good faith in order to replace the
Article or Section concerned by one or more valid and enforceable
Articles or Sections whose tenor reflects the common intention of
the parties as closely as possible or, if no such
<PAGE> 48
common intention can be determined, the intention of the party the
void or unenforceable Article or Section was supposed to protect.
(e) INTERPRETATION
In this Agreement, except if the context of the Article or Section
concerned or its wording shows that another interpretation is necessary :
(i) words used in the singular shall include the plural and
vice-versa;
(ii) references to any document (including this Agreement) shall be
deemed references to such document as amended, reiterated,
completed, modified or replaced at any time;
(iii) references to this Agreement shall be deemed references to this
Agreement, to the Appendices, which are an integral part of this
Agreement and have the same contractual force;
(iv) the titles of the Articles and Sections are for convenience only
and must be ignored in interpreting the Agreement;
(v) references to any of the parties to this Agreement include its
successors and beneficiaries;
(vi) references to a law or laws include reference to all international
treaties, constitutional provisions, decrees, ordinances,
regulations and rules resulting from a senior text (such as a
ruling) or judgement and the term "legal" shall be interpreted in
a similar way;
(vii) reference to a law shall be references to such law as amended,
completed, modified, replaced or interpreted at any time;
(viii) references to a judgement are references to any decision,
injunction, order, judgement, ruling, sentence or award by any
court or arbitrator;
(ix) references to a person are references to any natural or legal
person or any other entity, organization or subsidiary whatsoever,
whether or not it is considered a legal person.
(f) All modifications, claims, affidavits, demands, notices, summons and
other communications by virtue of this Agreement shall be sent in English
in writing and shall be deemed to have been given if sent by registered
letter with notice of receipt or by fax or telex confirmed by registered
letter with notice of receipt to the following addresses:
If the Transferor is the recipient:
Attn: Chief Financial Officer and General Counsel, Rhodia
Address: 25, quai Paul Doumer - 92408 Courbevoie Cedex, FRANCE
Telex: 610500F RHON - Fax: 33-1-47-68-13-32
The date of receipt of the notice or communication shall be the date of
receipt of the
<PAGE> 49
registered letter with notice of receipt.
With copy to:
Attn: Wesley R. Johnson, Jr., Jones, Day, Reavis & Pogue
Address: 120 rue du Faubourg Saint Honore - 75008 Paris, FRANCE
Fax: 33-1-56-59-39-38
The date of receipt of the notice or communication shall be the date of
receipt of the registered letter with notice of receipt.
If the Buyer is the recipient:
Attn:
Address:
Fax
The date of receipt of the notice or communication shall be the date of
receipt of the registered letter with notice of receipt.
If GEO is the recipient:
Attn: Chief Executive Officer, GEO Specialty Chemicals, Inc.
Address: 28601 Chagrin Boulevard, Suite 210, Cleveland, OH 44122, U.S.A.
Fax: 1-216-765-1307
The date of receipt of the notice or communication shall be the date of
receipt of the registered letter with notice of receipt.
With copy to:
Attn: Craig R. Martahus and Stuart Welburn, Thompson, Hine & Flory LLP
Address: 3900 Key Center, 127 Public Square, Cleveland, OH 44114-1216,
U.S.A.
Fax: 1-216-566-5800
The date of receipt of the notice or communication shall be the date of
receipt of the registered letter with notice of receipt.
(g) CURRENCY CHANGES
All payments and valuations pursuant to this Agreement shall be made in
French Francs. Upon the institution of any currency change (including
application of the EURO currency), the new currency shall replace the
French Francs herein in accordance with applicable laws and regulations.
(H) FURTHER ASSURANCES
The parties agree (i) to furnish upon request to each other such further
information, (ii) to execute and deliver to each other such other
documents, and (iii) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying out the interest
of this Agreement.
<PAGE> 50
ARTICLE 14
----------
ASSIGNMENT
----------
The rights and obligations under this Agreement may not be assigned or delegated
by any party hereto, in whole or in part, to any third party without the prior
written consent of the other party; provided, however, that the Transferor or
GEO and/or the Buyer may assign this Agreement to a company of the Rhodia Group
or the GEO Group, respectively. Notwithstanding the foregoing, the benefit of
this Agreement shall automatically be transferred to any company or companies
which are successors to the rights of the parties, by way of an acquisition,
merger, partial asset contribution, dissolution and transfer of the business.
The company or companies coming into the rights of the parties shall substitute
the parties for all obligations incumbent on the parties to this Agreement. The
Transferor has no present intention to assign this Agreement.
ARTICLE 15
----------
REGISTRATION
------------
This Agreement shall be registered and the duties charged in application of
Article 726.1 of the General Tax Code shall be paid by the Buyer.
ARTICLE 16
----------
GOVERNING LAW - DISPUTES
------------------------
This Agreement shall be governed by French law. All disputes arising out of, or
in connection with, the present Agreement shall be finally settled by the
Commercial Court of Nanterre; provided, however, that if such claim is brought
by the Transferor, the Transferor shall pay the translation costs of documents
required to be translated from French to English. If the claim is brought by the
Buyer, and the Buyer desires a translation of documents which are in the French
language, the Buyer shall bear all translation costs.
<PAGE> 51
ARTICLE 17
----------
ELECTION OF DOMICILE
--------------------
For the purpose of this Agreement and its sequels, each of the parties elects
domicile at its respective registered office.
Done in Courbevoie,
This 6th day of August, 1999
In 3 original copies, one for each of the parties
RHODIA CHIMIE S.A. GEO SPECIALTY CHEMICALS, INC.
/s/ Pierre-Louis Rosset /s/ George P. Ahearn
- ----------------------- ------------------------
By: Pierre-Louis Rosset By: George P. Ahearn
Title: Mergers and Acquisitions Title: President
Manager
<PAGE> 1
Exhibit 10.1
================================================================================
CREDIT AGREEMENT
among
GEO SPECIALTY CHEMICALS, INC.,
VARIOUS LENDING INSTITUTIONS,
and
BANKERS TRUST COMPANY,
As Administrative Agent
------------------------------------
Dated as of March 25, 1997
and
Amended and Restated as of July 31, 1998
and
Further Amended and Restated as of September 3, 1999
------------------------------------
$45,000,000
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 1. Amount and Terms of Credit.............................................................................1
1.01 Commitments........................................................................................1
1.02 Minimum Borrowing Amounts, etc.....................................................................3
1.03 Notice of Borrowing................................................................................3
1.04 Disbursement of Funds..............................................................................4
1.05 Notes..............................................................................................5
1.06 Conversions........................................................................................5
1.07 Pro Rata Borrowings................................................................................6
1.08 Interest...........................................................................................6
1.09 Interest Periods...................................................................................7
1.10 Increased Costs, Illegality, etc...................................................................8
1.11 Compensation; Breakage............................................................................10
1.12 Change of Lending Office..........................................................................10
1.13 Replacement of Banks..............................................................................10
SECTION 2. Letters of Credit.....................................................................................11
2.01 Letters of Credit.................................................................................11
2.02 Minimum Stated Amount.............................................................................13
2.03 Letter of Credit Requests; Notices of Issuance; Reports...........................................13
2.04 Agreement to Repay Letter of Credit Drawings......................................................13
2.05 Letter of Credit Participations...................................................................14
2.06 Increased Costs...................................................................................16
SECTION 3. Fees; Commitments.....................................................................................17
3.01 Fees .............................................................................................17
3.02 Voluntary Reduction of Commitments................................................................18
3.03 Mandatory Adjustments of Commitments, etc.........................................................18
SECTION 4. Payments..............................................................................................19
4.01 Voluntary Prepayments.............................................................................19
4.02 Mandatory Prepayments.............................................................................20
4.03 Method and Place of Payment.......................................................................21
4.04 Net Payments......................................................................................22
SECTION 5. Conditions Precedent to the Restatement Effective Date and to all Credit Events.......................24
5.01 Execution of Agreement............................................................................24
</TABLE>
(i)
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<TABLE>
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5.02 No Default; Representations and Warranties..........................................................24
5.03 Officers Certificate................................................................................24
5.04 Opinions of Counsel.................................................................................24
5.05 Corporate Proceedings...............................................................................24
5.06 Plans; Existing Indebtedness Agreements; Shareholders Agreements;
Management Agreements; Employment Agreements; Collective Bargaining
Agreements; Tax Sharing Agreements ...............................................................25
5.07 Adverse Change, etc.................................................................................26
5.08 Litigation..........................................................................................26
5.09 Approvals...........................................................................................26
5.10 Consummation of the Acquisition.....................................................................26
5.11 Subsidiary Guaranty.................................................................................27
5.12 Security Documents Acknowledgment...................................................................27
5.13 New Mortgages.......................................................................................28
5.14 Mortgage Amendments; Title Insurance Endorsements...................................................28
5.15 Solvency............................................................................................29
5.16 Insurance Policies..................................................................................29
5.17 Fees ...............................................................................................29
5.18 Notice of Borrowing; Letter of Credit Request.......................................................29
5.19 Projections.........................................................................................29
5.20 Repayment of Existing Loans and Other Obligations Under Existing Credit
Agreement; Existing Indebtedness .................................................................30
5.21 Environmental Reports...............................................................................30
SECTION 6. Representations, Warranties and Agreements..............................................................30
6.01 Corporate Status....................................................................................31
6.02 Corporate Power and Authority.......................................................................31
6.03 No Violation........................................................................................31
6.04 Litigation..........................................................................................31
6.05 Use of Proceeds; Margin Regulations.................................................................31
6.06 Governmental Approvals..............................................................................32
6.07 Investment Company Act..............................................................................32
6.08 Public Utility Holding Company Act..................................................................32
6.09 True and Complete Disclosure........................................................................32
6.10 Financial Condition; Financial Statements...........................................................32
6.11 Security Interests..................................................................................33
6.12 Representations and Warranties in Documents.........................................................34
6.13 Consummation of Transaction.........................................................................34
6.14 Tax Returns and Payments............................................................................34
6.15 Compliance with ERISA...............................................................................34
6.16 Subsidiaries; Subsidiary Restrictions...............................................................35
6.17 Patents, etc........................................................................................35
6.18 Pollution and Other Regulations.....................................................................36
6.19 Properties..........................................................................................36
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<CAPTION>
Page
<S> <C>
6.20 Labor Relations.....................................................................................37
6.21 Existing Indebtedness...............................................................................37
6.22 Capitalization......................................................................................37
6.23 Senior Subordinated Notes...........................................................................37
6.24 Addressing the Year 2000 Problem....................................................................38
SECTION 7. Affirmative Covenants....................................................................................38
7.01 Information Covenants...............................................................................38
7.02 Books, Records and Inspections; Bank Meetings.......................................................40
7.03 Maintenance of Property; Insurance..................................................................41
7.04 Payment of Taxes....................................................................................41
7.05 Corporate Franchises................................................................................41
7.06 Compliance with Statutes, etc.......................................................................42
7.07 ERISA...............................................................................................42
7.08 Good Repair.........................................................................................43
7.09 End of Fiscal Years; Fiscal Quarters................................................................43
7.10 Use of Proceeds.....................................................................................43
7.11 Additional Security; Further Assurances.............................................................43
7.12 Year 2000 Compatibility.............................................................................44
SECTION 8. Negative Covenants......................................................................................44
8.01 Changes in Business.................................................................................44
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc..............................................45
8.03 Liens...............................................................................................47
8.04 Indebtedness........................................................................................49
8.05 Capital Expenditures................................................................................50
8.06 Advances, Investments and Loans.....................................................................50
8.07 Prepayments of Indebtedness; Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements, etc. .......................................................51
8.08 Dividends, etc......................................................................................52
8.09 Transactions with Affiliates........................................................................53
8.10 Interest Coverage Ratio.............................................................................53
8.11 Leverage Ratio......................................................................................54
8.12 Issuance of Stock...................................................................................54
8.13 Limitation on Creation of Subsidiaries..............................................................54
SECTION 9. Events of Default.......................................................................................55
9.01 Payments............................................................................................55
9.02 Representations, etc................................................................................55
9.03 Covenants...........................................................................................55
9.04 Default Under Other Agreements......................................................................55
9.05 Bankruptcy, etc.....................................................................................56
9.06 ERISA...............................................................................................56
</TABLE>
(iii)
<PAGE> 5
<TABLE>
<CAPTION>
Page
<S> <C>
9.07 Security Documents..................................................................................57
9.08 Subsidiary Guaranty.................................................................................57
9.09 Judgments...........................................................................................57
9.10 Change of Control...................................................................................57
SECTION 10. Definitions............................................................................................58
SECTION 11. The Administrative Agent...............................................................................79
11.01 Appointment.........................................................................................79
11.02 Nature of Duties....................................................................................79
11.03 Lack of Reliance on the Administrative Agent........................................................79
11.04 Certain Rights of the Administrative Agent..........................................................80
11.05 Reliance............................................................................................80
11.06 Indemnification.....................................................................................80
11.07 The Administrative Agent in Its Individual Capacity.................................................80
11.08 Holders.............................................................................................81
11.09 Resignation by the Administrative Agent.............................................................81
SECTION 12. Miscellaneous..........................................................................................81
12.01 Payment of Expenses, etc............................................................................81
12.02 Right of Setoff.....................................................................................82
12.03 Notices.............................................................................................83
12.04 Assignments; Participations; Etc....................................................................83
12.05 No Waiver; Remedies Cumulative......................................................................85
12.06 Payments Pro Rata...................................................................................86
12.07 Calculations; Computations..........................................................................86
12.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial..............................87
12.09 Counterparts........................................................................................87
12.10 Effectiveness.......................................................................................87
12.11 Headings Descriptive................................................................................88
12.12 Amendment or Waiver.................................................................................88
12.13 Survival............................................................................................89
12.14 Domicile of Loans...................................................................................89
12.15 Confidentiality.....................................................................................89
12.16 Register............................................................................................90
12.17 Limitation on Additional Amounts, Etc...............................................................90
12.18 Additions of New Banks; Termination of Commitments of Non-Continuing
Banks; Surrender of Notes ........................................................................91
</TABLE>
(iv)
<PAGE> 6
ANNEX I -- Commitments
ANNEX II -- Bank Addresses
ANNEX III -- Existing Letters of Credit
ANNEX IV -- Plans
ANNEX V -- Subsidiaries
ANNEX VI -- Intellectual Property Matters
ANNEX VII -- Environmental Matters
ANNEX VIII -- Real Property
ANNEX IX -- Existing Indebtedness
ANNEX X -- Securities
ANNEX XI -- Insurance
ANNEX XII -- Existing Liens
EXHIBIT A -- Form of Notice of Borrowing
EXHIBIT B-1 -- Form of Revolving Note
EXHIBIT B-2 -- Form of Swingline Note
EXHIBIT C -- Form of Letter of Credit Request
EXHIBIT D -- Form of 4.04(b)(ii) Certificate
EXHIBIT E -- Form of Opinion of Thompson Hine & Flory LLP
EXHIBIT F -- Form of Officer's Certificate
EXHIBIT G -- Form of Subsidiary Guaranty Acknowledgment
EXHIBIT H -- Form of Security Documents Acknowledgment
EXHIBIT I -- Form of Assignment Agreement
(i)
<PAGE> 7
CREDIT AGREEMENT, dated as of March 25, 1997 and amended and
restated as of July 31, 1998 and further amended and restated as of September 3,
1999, among GEO SPECIALTY CHEMICALS, INC., an Ohio corporation (the "Borrower"),
the lending institutions party hereto from time to time (each a "Bank" and,
collectively, the "Banks"), and BANKERS TRUST COMPANY, as administrative agent
(the "Administrative Agent"). Unless otherwise defined herein, all capitalized
terms used herein and defined in Section 10 are used herein as so defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Existing Banks and Bankers Trust
Company, as administrative agent thereunder, are party to a credit agreement,
dated as of March 25, 1997 and amended and restated as of July 31, 1998 (as
further amended, modified or supplemented to, but not including, the Restatement
Effective Date, the "Existing Credit Agreement"); and
WHEREAS, the Borrower has requested that the Existing Credit
Agreement be amended and restated in its entirety, and the Banks and the
Administrative Agent are willing to amend and restate the same, upon the terms
and conditions set forth herein;
NOW, THEREFORE, the parties hereto agree that, on the
Restatement Effective Date, the Existing Credit Agreement shall be, and hereby
is, amended and restated in its entirety as follows:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 COMMITMENTS. MERGEFORMAT (a) Subject to and upon the
terms and conditions set forth herein, each Bank severally agrees, at any time
and from time to time on and after the Restatement Effective Date and prior to
the Maturity Date, to make a revolving loan or revolving loans (each, a
"Revolving Loan" and, collectively, the "Revolving Loans") to the Borrower,
which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate
Loans or Eurodollar Loans, PROVIDED that except as otherwise specifically
provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing
shall at all times be of the same Type, (ii) may be repaid and reborrowed in
accordance with the provisions hereof, (iii) shall not exceed for any Bank at
any time outstanding that aggregate principal amount which, when added to the
product of (x) such Bank's Adjusted RC Percentage and (y) the sum of (I) the
aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid
Drawings which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time and
(II) the aggregate principal amount of all Swingline Loans (exclusive of
Swingline Loans which are repaid with the proceeds of, and simultaneously with
the incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Revolving Loan Commitment of such Bank at such time and
(iv) shall not exceed for all Banks at any time outstanding that aggregate
principal amount which, when added to (x) the amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and
<PAGE> 8
simultaneously with the incurrence of, the respective incurrence of Revolving
Loans) at such time and (y) the aggregate principal amount of all Swingline
Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving
Loans) then outstanding, equals the Adjusted Total Revolving Loan Commitment at
such time.
(b) Subject to and upon the terms and conditions set forth
herein, the Swingline Bank in its individual capacity agrees to make at any time
and from time to time on and after the Restatement Effective Date and prior to
the Swingline Expiry Date, a revolving loan or revolving loans to the Borrower
(each a "Swingline Loan," and, collectively, the "Swingline Loans"), which
Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be
repaid and reborrowed in accordance with the provisions hereof, (iii) shall not
exceed in aggregate principal amount at any time outstanding, when combined with
the aggregate principal amount of all Revolving Loans made by Non-Defaulting
Banks then outstanding and the Letter of Credit Outstandings (exclusive of
Unpaid Drawings which are repaid with the proceeds of, and simultaneously with
the incurrence of, the respective incurrence of Swingline Loans) at such time,
an amount equal to the Adjusted Total Revolving Loan Commitment then in effect
(after giving effect to any reductions to the Adjusted Total Revolving Loan
Commitment on such date) and (iv) shall not exceed in aggregate principal amount
at any time outstanding the Maximum Swingline Amount. The Swingline Bank will
not make a Swingline Loan after it has received written notice from the Required
Banks that one or more of the applicable conditions to Credit Events specified
in Section 5 are not then satisfied.
(c) On any Business Day, the Swingline Bank may, in its sole
discretion, give notice to the Banks that its outstanding Swingline Loans shall
be funded with a Borrowing of Revolving Loans (PROVIDED that each such notice
shall be deemed to have been automatically given upon the occurrence of an Event
of Default under Section 9.05 or upon the exercise of any of the remedies
provided in the last paragraph of Section 9), in which case a Borrowing of
Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all
Banks PRO RATA based on each Bank's Adjusted RC Percentage, and the proceeds
thereof shall be applied directly to repay the Swingline Bank for such
outstanding Swingline Loans. Each Bank hereby irrevocably agrees to make Base
Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing
in the amount and in the manner specified in the preceding sentence and on the
date specified in writing by the Swingline Bank notwithstanding (i) that the
amount of the Mandatory Borrowing may not comply with the Minimum Borrowing
Amount otherwise required hereunder, (ii) whether any conditions specified in
Section 5 are then satisfied, (iii) whether a Default or an Event of Default has
occurred and is continuing, (iv) the date of such Mandatory Borrowing and (v)
any reduction in the Total Revolving Loan Commitment or the Adjusted Total
Revolving Loan Commitment after any such Swingline Loans were made. In the event
that any Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code in respect of the Borrower), each Bank
(other than the Swingline Bank) hereby agrees that it shall forthwith purchase
from the Swingline Bank (without recourse or warranty) such assignment of the
outstanding Swingline Loans as shall be necessary to cause
-2-
<PAGE> 9
the Banks to share in such Swingline Loans ratably based upon their respective
Adjusted RC Percentages, PROVIDED that (x) all interest payable on the Swingline
Loans shall be for the account of the Swingline Bank until the date the
respective assignment is purchased and, to the extent attributable to the
purchased assignment, shall be payable to the Bank purchasing same from and
after such date of purchase and (y) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing Bank shall be
required to pay the Swingline Bank interest on the principal amount of
participation purchased for each day from and including the day upon which the
Mandatory Borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at the overnight Federal Funds Effective Rate
for the first three days and at the rate otherwise applicable to Revolving Loans
maintained as Base Rate Loans hereunder for each day thereafter.
1.02 MINIMUM BORROWING AMOUNTS, ETC. The aggregate principal
amount of each Borrowing of Revolving Loans shall not be less than the Minimum
Borrowing Amount and, if greater, shall be in integral multiples of $100,000.
The aggregate principal amount of each Borrowing of Swingline Loans shall not be
less than $100,000 and, if greater, shall be in integral multiples of $100,000.
More than one Borrowing may be incurred on any day, PROVIDED that at no time
shall there be outstanding more than six Borrowings of Eurodollar Loans.
1.03 NOTICE OF BORROWING. (a) Whenever the Borrower desires to
incur Revolving Loans (excluding Borrowings of Revolving Loans incurred pursuant
to a Mandatory Borrowing), the Borrower shall give the Administrative Agent at
its Notice Office, prior to 11:00 A.M. (New York time), at least three Business
Days' prior written notice (or telephonic notice promptly confirmed in writing)
of each Borrowing of Eurodollar Loans to be made hereunder and, except as
provided in Section 1.03(c), at least one Business Day's prior written notice
(or telephonic notice promptly confirmed in writing) of each Borrowing of Base
Rate Loans to be made hereunder. Each such Notice of Borrowing shall be in the
form of Exhibit A and shall be irrevocable and shall specify (i) that such
Borrowing is to consist of Revolving Loans, (ii) the aggregate principal amount
of the Revolving Loans to be made pursuant to such Borrowing, (iii) the date of
Borrowing (which shall be a Business Day) and (iv) whether the respective
Borrowing shall consist of Base Rate Loans or (to the extent permitted)
Eurodollar Loans and, if Eurodollar Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall promptly give each Bank
written notice (or telephonic notice on that day promptly confirmed in writing)
of each proposed Borrowing, of such Bank's proportionate share thereof and of
the other matters covered by the Notice of Borrowing.
(b)(i) Whenever the Borrower desires to incur a Borrowing of
Swingline Loans hereunder, the Borrower shall give the Swingline Bank prior to
12:00 Noon (New York time) on the day such Swingline Loan is to be made, written
notice (or telephonic notice promptly confirmed in writing) of each Swingline
Loan to be made hereunder. Each such Notice of Borrowing shall be irrevocable
and shall specify in each case (x) that such Borrowing is to consist of a
Swingline Loan, (y) the date of Borrowing (which shall be a Business Day) and
(z) the aggregate principal amount of the Swingline Loan to be made pursuant to
such Borrowing.
-3-
<PAGE> 10
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(c), with the Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of Mandatory Borrowings as set
forth in such Section 1.01(c).
(c) In the case of a Notice of Borrowing given by the Borrower
with respect to Eurodollar Loans which has been deemed rescinded pursuant to
clause (x) of the last sentence of Section 1.10(a), the Borrower shall be
permitted to deliver a substitute Notice of Borrowing providing for (x) an equal
aggregate amount of Base Rate Loans and (y) notwithstanding the one Business Day
notice period otherwise required by Section 1.03(a), a Borrowing on the date
originally set forth in the rescinded Notice of Borrowing.
(d) Without in any way limiting the obligation of the Borrower
to confirm in writing any telephonic notice of any Borrowing of Loans, the
Administrative Agent or the Swingline Bank, as the case may be, may act without
liability upon the basis of telephonic notice of such Borrowing, believed by the
Administrative Agent or the Swingline Bank, as the case may be, in good faith to
be from the President or the Chief Financial Officer of the Borrower (or any
other officer of the Borrower designated in writing to the Administrative Agent
and the Swingline Bank by the President or the Chief Financial Officer as being
authorized to give such notices under this Agreement) prior to receipt of
written confirmation. In each such case, the Borrower hereby waives the right to
dispute the Administrative Agent's and the Swingline Bank's record of the terms
of such telephonic notice of such Borrowing of Loans.
1.04 DISBURSEMENT OF FUNDS. (a) No later than 12:00 Noon (New
York time) on the date specified in each Notice of Borrowing, each Bank will
make available its PRO RATA share of each Borrowing requested to be made on such
date in the manner provided below, PROVIDED that all Swingline Loans shall be
made available by the Swingline Bank no later than 3:00 P.M. (New York time) on
the date so requested. All such amounts shall be made available to the
Administrative Agent in U.S. dollars and immediately available funds at the
Payment Office and the Administrative Agent promptly will make available to the
Borrower by depositing to its account at the Payment Office the aggregate of the
amounts so made available in the type of funds received. Unless the
Administrative Agent shall have been notified by any Bank prior to the date of
Borrowing that such Bank does not intend to make available to the Administrative
Agent its portion of the Borrowing or Borrowings to be made on such date, the
Administrative Agent may assume that such Bank has made such amount available to
the Administrative Agent on such date of Borrowing, and the Administrative
Agent, in reliance upon such assumption, may (in its sole discretion and without
any obligation to do so) make available to the Borrower a corresponding amount.
If such corresponding amount is not in fact made available to the Administrative
Agent by such Bank and the Administrative Agent has made available same to the
Borrower, the Administrative Agent shall be entitled to recover such
corresponding amount from such Bank. If such Bank does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover on demand from such Bank
or the Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the
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Administrative Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (x) if paid
by such Bank, the overnight Federal Funds Effective Rate or (y) if paid by the
Borrower, the then applicable rate of interest, calculated in accordance with
Section 1.08, for the respective Revolving Loans.
(b) Nothing herein shall be deemed to relieve any Bank from
its obligation to fulfill its commitments hereunder or to prejudice any rights
which the Borrower may have against any Bank as a result of any default by such
Bank hereunder.
1.05 NOTES. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans shall be evidenced (i) if Revolving Loans, by a
promissory note duly executed and delivered by the Borrower substantially in the
form of Exhibit B-1, with blanks appropriately completed in conformity herewith
(each, a "Revolving Note" and, collectively, the "Revolving Notes") and (ii) if
Swingline Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-2, with blanks appropriately
completed in conformity herewith (the "Swingline Note").
(b) The Revolving Note issued to each Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be dated
the Restatement Effective Date (or, in the case of any Revolving Note issued
after the Restatement Effective Date, be dated the date of the issuance
thereof), (iii) be in a stated principal amount equal to the Revolving Loan
Commitment of such Bank and be payable in the principal amount of the Revolving
Loans evidenced thereby from time to time, (iv) mature on the Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in respect
of the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01 and
mandatory repayment as provided in Section 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(c) The Swingline Note issued to the Swingline Bank shall (i)
be executed by the Borrower, (ii) be payable to the order of the Swingline Bank
and be dated the Restatement Effective Date (or, in the case of any Swingline
Note issued after the Restatement Effective Date, be dated the date of the
issuance thereof), (iii) be in a stated principal amount equal to the Maximum
Swingline Amount and be payable in the principal amount of the outstanding
Swingline Loans evidenced thereby from time to time, (iv) mature on the
Swingline Expiry Date, (v) bear interest as provided in the appropriate clause
of Section 1.08 in respect of the Base Rate Loans evidenced thereby and (vi) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) Each Bank will note on its internal records the amount of
each Revolving Loan made by it and each payment in respect thereof and will,
prior to any transfer of its Revolving Note, endorse on the reverse side thereof
the outstanding principal amount of Revolving Loans evidenced thereby. Such
notation shall be conclusive absent manifest error, although the failure to make
any such notation shall not affect the Borrower's obligations in respect of such
Revolving Loans.
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<PAGE> 12
1.06 CONVERSIONS. The Borrower shall have the option to
convert on any Business Day occurring on or after the Restatement Effective
Date, all or a portion at least equal to the applicable Minimum Borrowing Amount
of the outstanding principal amount of Revolving Loans made pursuant to one or
more Borrowings (it being understood that Swingline Loans will at all times be
maintained as Base Rate Loans) of one or more Types of Revolving Loans into a
Borrowing or Borrowings of another Type of Revolving Loan, PROVIDED that (i)
except as otherwise provided in Section 1.10(b), Eurodollar Loans may be
converted into Base Rate Loans only on the last day of an Interest Period
applicable thereto and no partial conversion of a Borrowing of Eurodollar Loans
shall reduce the outstanding principal amount of the Eurodollar Loans made
pursuant to such Borrowing to less than the Minimum Borrowing Amount, (ii) Base
Rate Loans may not be converted into Eurodollar Loans if a violation of Section
9.01 or 9.05 or an Event of Default is in existence on the date of the
conversion and the Administrative Agent or the Required Banks have determined
that such conversion at such time would be disadvantageous to the Banks and
(iii) Borrowings of Eurodollar Loans resulting from this Section 1.06 shall be
limited in number as provided in Section 1.02. Each such conversion shall be
effected by the Borrower giving the Administrative Agent at its Notice Office,
prior to 11:00 A.M. (New York time), at least three Business Days' (or two
Business Days', in the case of a conversion into Base Rate Loans) prior written
notice (or telephonic notice promptly confirmed in writing) (each a "Notice of
Conversion") specifying the Revolving Loans to be so converted, the Type of
Loans to be converted into and, if to be converted into a Borrowing of
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Bank prompt notice of any such proposed
conversion affecting any of its Revolving Loans.
1.07 PRO RATA BORROWINGS. All Borrowings of Revolving Loans
under this Agreement shall be incurred from the Banks PRO RATA on the basis of
their Revolving Loan Commitments. It is understood that no Bank shall be
responsible for any default by any other Bank in its obligation to make
Revolving Loans hereunder and that each Bank shall be obligated to make the
Revolving Loans provided to be made by it hereunder, regardless of the failure
of any other Bank to fulfill its commitments hereunder.
1.08 INTEREST. (a) The unpaid principal amount of each Base
Rate Loan shall bear interest from the date of the Borrowing thereof until the
earlier of (i) the maturity (whether by acceleration or otherwise) of such Base
Rate Loan and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan
pursuant to Section 1.06 at a rate per annum which shall at all times be the
Base Rate Margin plus the Base Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall
bear interest from the date of the Borrowing thereof until the earlier of (i)
the maturity (whether by acceleration or otherwise) of such Eurodollar Loan and
(ii) the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to
Section 1.06 or 1.09, as applicable, at a rate per annum which shall at all
times be the Eurodollar Margin plus the relevant Eurodollar Rate.
(c) All overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall bear interest at a rate per annum equal to the greater of (x) 2%
per annum in excess of the rate otherwise applicable to
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<PAGE> 13
Base Rate Loans from time to time and (y) the rate which is 2% in excess of the
rate borne by such Loans at the time such payment becomes due, in each case with
such interest to be payable on demand.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period of
longer than three months, every three months after the first day of such
Interest Period and (iii) in respect of each Loan, on any prepayment or
conversion (other than the prepayment and conversion of Revolving Loans that are
maintained as Base Rate Loans) (on the amount prepaid or converted), at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Administrative Agent, upon determining the interest
rate for any Borrowing of Eurodollar Loans for any Interest Period, shall
promptly notify the Borrower and the Banks thereof.
1.09 INTEREST PERIODS. (a) At the time the Borrower gives a
Notice of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, a Borrowing of Eurodollar Loans (in the case of the initial
Interest Period applicable thereto) or prior to 11:00 A.M. (New York time) on
the third Business Day prior to the expiration of an Interest Period applicable
to a Borrowing of Eurodollar Loans, the Borrower shall have the right to elect,
by giving the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing), the Interest Period applicable to such Borrowing, which
Interest Period shall, at the option of the Borrower, be a one, two, three, six
or, if available to all Banks, twelve month period. Notwithstanding anything to
the contrary contained above:
(i) all Eurodollar Loans comprising a single Borrowing shall
at all times have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of
Eurodollar Loans shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing of Base Rate
Loans) and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding
Interest Period expires;
(iii) if any Interest Period begins on a day for which there
is no numerically corresponding day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day, PROVIDED that
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<PAGE> 14
if any Interest Period would otherwise expire on a day which is not a
Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) no Interest Period shall extend beyond the Maturity Date;
and
(vi) no Interest Period may be elected at any time when a
violation of Section 9.01 or 9.05 or an Event of Default is then in
existence and the Administrative Agent or the Required Banks have
determined that such an election at such time would be disadvantageous
to the Banks.
(b) If upon the expiration of any Interest Period, the
Borrower has failed to (or may not) elect a new Interest Period to be applicable
to the respective Borrowing of Eurodollar Loans as provided above, the Borrower
shall be deemed to have elected to convert such Borrowing into a Borrowing of
Base Rate Loans effective as of the expiration date of such current Interest
Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that
(x) in the case of clause (i) below, the Administrative Agent or (y) in the case
of clauses (ii) and (iii) below, any Bank shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any
Interest Period that, by reason of any changes arising after the date
of this Agreement affecting the interbank Eurodollar market, adequate
and fair means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder in an
amount which such Bank deems material with respect to any Eurodollar
Loans (other than any increased cost or reduction in the amount
received or receivable resulting from the imposition of or a change in
the rate of Taxes or other similar charges) because of (x) any change
since the Restatement Effective Date in any applicable law,
governmental rule, regulation, guideline or order (whether or not
having the force of law) or in the interpretation or administration
thereof and including the introduction of any new law or governmental
rule, regulation, guideline or order (such as, for example, but not
limited to, a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent
included in the computation of the Eurodollar Rate) and/or (y) other
circumstances occurring after the Restatement Effective Date adversely
affecting the interbank Eurodollar market or the position of such Bank
in such market; or
(iii) at any time after the Restatement Effective Date, that
the making or continuance of any Eurodollar Loan has become unlawful
by compliance by such Bank in good faith with any law, governmental
rule, regulation, guideline or order (or would conflict with any such
governmental rule, regulation, guideline or order not having the force
of
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<PAGE> 15
law but with which such Bank customarily complies even though the
failure to comply therewith would not be unlawful);
then, and in any such event, such Bank (or the Administrative Agent in the case
of clause (i) above) shall (x) on such date and (y) within ten Business Days of
the date on which such event no longer exists give notice (by telephone
confirmed in writing) to the Borrower and to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Banks). Thereafter (x) in the case of clause (i) above,
Eurodollar Loans shall no longer be available until such time as the
Administrative Agent notifies the Borrower and the Banks that the circumstances
giving rise to such notice by the Administrative Agent no longer exist, and any
Notice of Borrowing or Notice of Conversion given by the Borrower with respect
to Eurodollar Loans which have not yet been incurred shall be deemed rescinded
by the Borrower, (y) in the case of clause (ii) above, the Borrower shall,
subject to the provisions of Section 12.17 (to the extent applicable), pay to
such Bank, upon written demand therefor, such additional amounts (in the form of
an increased rate of, or a different method of calculating, interest or
otherwise as such Bank in its sole discretion shall determine) as shall be
required to compensate such Bank for such increased costs or reductions in
amounts receivable hereunder (a written notice as to the additional amounts owed
to such Bank, showing the basis for the calculation thereof, which basis shall
be reasonable, submitted to the Borrower by such Bank shall, absent manifest
error, be final and conclusive and binding upon all parties hereto) and (z) in
the case of clause (iii) above, the Borrower shall take one of the actions
specified in Section 1.10(b) as promptly as possible and, in any event, within
the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii), the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same date
that the Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or
(iii), or (ii) if the affected Eurodollar Loan is then outstanding, upon at
least three Business Days' notice to the Administrative Agent, require the
affected Bank to convert each such Eurodollar Loan into a Base Rate Loan,
PROVIDED that if more than one Bank is so affected at any time, then all
affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that after the
Restatement Effective Date, the adoption or effectiveness of any applicable law,
rule or regulation regarding capital adequacy, or any change therein, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged by relevant authority with
the interpretation or administration thereof, or compliance by such Bank (or any
corporation controlling such Bank) with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing by
an amount reasonably deemed by such Bank to be material the rate of return on
such Bank's (or such controlling corporation's) capital or assets as a
consequence of its commitments or obligations hereunder to a level below that
which such Bank (or such
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<PAGE> 16
controlling corporation) could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Bank's (or
such controlling corporation's) policies with respect to capital adequacy), then
from time to time, within 15 days after written demand by such Bank (with a copy
to the Administrative Agent and accompanied by the notice described in the last
sentence of this Section 1.10(c)), the Borrower shall, subject to the provisions
of Section 12.17 (to the extent applicable), pay to such Bank such additional
amount or amounts as will compensate such Bank (or such controlling corporation)
for such reduction. Each Bank, upon determining in good faith that any
additional amounts will be payable pursuant to this Section 1.10(c), will give
prompt written notice thereof to the Borrower, which notice shall set forth in
reasonable detail the basis of the calculation of such additional amounts, which
basis shall be reasonable, although the failure to give any such notice shall
not release or diminish any of the Borrower's obligations to pay additional
amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such
notice.
1.11 COMPENSATION; BREAKAGE. The Borrower shall, subject to
the provisions of Section 12.17 (to the extent applicable), compensate each
Bank, upon its written request (which request shall set forth the reasonably
detailed basis for requesting and the method of calculating such compensation),
for all reasonable losses, expenses and liabilities (including, without
limitation, any loss, expense or liability incurred by reason of the liquidation
or reemployment of deposits or other funds required by such Bank to fund its
Eurodollar Loans but excluding in any event the loss of anticipated profits)
which such Bank may sustain: (i) if for any reason (other than a default by such
Bank or the Administrative Agent) a Borrowing of Eurodollar Loans does not occur
on a date specified therefor in a Notice of Borrowing or Notice of Conversion
(whether or not withdrawn by the Borrower or deemed withdrawn pursuant to
Section 1.10(a)); (ii) if any prepayment, repayment or conversion of any of its
Eurodollar Loans occurs on a date which is not the last day of an Interest
Period applicable thereto (other than any prepayment or repayment made by the
Borrower upon the Administrative Agent's demand therefor following a Bank's
failure to make available its PRO RATA share of a Borrowing as set forth in the
last three sentences of Section 1.04(a)); (iii) if any prepayment of any of its
Eurodollar Loans is not made on any date specified in a notice of prepayment
given by the Borrower; or (iv) as a consequence of (x) any other default by the
Borrower to repay its Eurodollar Loans when required by the terms of this
Agreement or (y) an election made pursuant to Section 1.10(b).
1.12 CHANGE OF LENDING OFFICE. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.06 or 4.04 with respect to such Bank, it will, if requested by
the Borrower, use reasonable efforts (subject to overall policy considerations
of such Bank) to designate another lending office for any Loans, its Revolving
Loan Commitment or Letters of Credit, as the case may be, if affected by such
event, PROVIDED that such designation is made on such terms that such Bank and
its lending office suffer no economic, legal or regulatory disadvantage, with
the object of avoiding the consequence of the event giving rise to the operation
of any such Section. Nothing in this Section 1.12 shall affect or postpone any
of the obligations of the Borrower or the right of any Bank provided in Section
1.10, 2.06 or 4.04.
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<PAGE> 17
1.13 REPLACEMENT OF BANKS. (x) Upon the occurrence of any
event giving rise to the operation of Section 1.10(a)(ii) or (iii), Section
1.10(c), Section 2.06 or Section 4.04 with respect to any Bank which results in
such Bank charging to the Borrower increased costs in excess of those being
generally charged by the other Banks or becoming incapable of making Eurodollar
Loans, (y) if a Bank becomes a Defaulting Bank and/or (z) in the case of a
refusal by a Bank to consent to a proposed change, waiver, discharge or
termination with respect to this Agreement which has been approved by the
Required Banks as provided in Section 12.12(b), the Borrower shall have the
right, if no Default or Event of Default then exists, to replace such Bank (the
"Replaced Bank") with one or more other Eligible Transferees reasonably
acceptable to the Administrative Agent, none of whom shall constitute a
Defaulting Bank at the time of such replacement (collectively, the "Replacement
Bank" ), PROVIDED that (i) at the time of any replacement pursuant to this
Section 1.13, the Replacement Bank shall enter into one or more Assignment
Agreements pursuant to Section 12.04(b) (and with all fees payable pursuant to
said Section 12.04(b) to be paid by the Replacement Bank) pursuant to which the
Replacement Bank shall acquire the entire Revolving Loan Commitment and
outstanding Revolving Loans of, and participations in Letters of Credit by, the
Replaced Bank and, in connection therewith, shall pay to (x) the Replaced Bank
in respect thereof an amount equal to the sum of (I) an amount equal to the
principal of, and all accrued interest on, all outstanding Revolving Loans of
the Replaced Bank, (II) an amount equal to all Unpaid Drawings that have been
funded by (and not reimbursed to) such Replaced Bank, together with all then
unpaid interest with respect thereto at such time and (III) an amount equal to
all accrued, but theretofore unpaid, Fees owing to the Replaced Bank pursuant to
Section 3.01, (y the respective Letter of Credit Issuer an amount equal to such
Replaced Bank's Adjusted RC Percentage (for this purpose, determined as if the
adjustment described in clause (B) of the succeeding sentence had been made with
respect to such Replaced Bank) of any Unpaid Drawing (which at such time remains
an Unpaid Drawing) to the extent such amount was not theretofore funded by such
Replaced Bank and (z) the Swingline Bank an amount equal to such Replaced Bank's
Adjusted RC Percentage (for this purpose, determined as if the adjustment
described in clause (B) of the succeeding sentence had been made with respect to
such Replaced Bank) of any Mandatory Borrowing to the extent such amount was not
theretofore funded by such Replaced Bank and (ii) all obligations of the
Borrower owing to the Replaced Bank (other than those specifically described in
clause (i) above in respect of which the assignment purchase price has been, or
is concurrently being, paid) shall be paid in full to such Replaced Bank
concurrently with such replacement. Upon the execution of the respective
Assignment Agreements, the payment of amounts referred to in clauses (i) and
(ii) above and, if so requested by the Replacement Bank, delivery to the
Replacement Bank of the appropriate Revolving Note executed by the Borrower, (A)
the Replacement Bank shall become a Bank hereunder and the Replaced Bank shall
cease to constitute a Bank hereunder, except with respect to indemnification
provisions applicable to the Replaced Bank under this Agreement, which shall
survive as to such Replaced Bank and (B) in the case of a replacement of a
Defaulting Bank, the Adjusted RC Percentage of the Banks shall be automatically
adjusted at such time to give effect to such replacement (and to give effect to
the replacement of a Defaulting Bank with one or more Non-Defaulting Banks).
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SECTION 2. LETTERS OF CREDIT.
2.01 LETTERS OF CREDIT. (a)(i) Subject to and upon the terms
and conditions set forth herein, the Borrower may request a Letter of Credit
Issuer at any time and from time to time on or after the Restatement Effective
Date and prior to the thirtieth day prior to the Maturity Date to issue (x) for
the account of the Borrower and for the benefit of any holder (or any trustee,
agent or other similar representative for any such holders) of L/C Supportable
Obligations of the Borrower or any of its Subsidiaries, an irrevocable sight
standby letter of credit, in a form customarily used by such Letter of Credit
Issuer or in such other form as has been approved by such Letter of Credit
Issuer (each such standby letter of credit, a "Standby Letter of Credit") in
support of such L/C Supportable Obligations and (y) for the account of the
Borrower and for the benefit of sellers of goods or materials to the Borrower or
any of its Subsidiaries, an irrevocable sight commercial letter of credit in a
form customarily used by such Letter of Credit Issuer or in such other form as
has been approved by such Letter of Credit Issuer (each such commercial letter
of credit, a "Trade Letter of Credit", and each such Trade Letter of Credit and
each Standby Letter of Credit, a "Letter of Credit") in support of commercial
transactions of the Borrower and its Subsidiaries, and (ii) subject to and upon
the terms and conditions set forth herein such Letter of Credit Issuer agrees to
issue from time to time, irrevocable Letters of Credit in such form as may be
approved by such Letter of Credit Issuer and the Administrative Agent. Annex III
contains a description of all Letters of Credit (as defined in the Existing
Credit Agreement) issued by a Letter of Credit Issuer pursuant to Section 2 of
the Existing Credit Agreement which remain outstanding on the Restatement
Effective Date. Each such letter of credit, including any extension thereof
(each an "Existing Letter of Credit") shall constitute a "Letter of Credit" for
all purposes of this Agreement and shall be deemed issued for purposes of
Sections 2.04(a) and 3.01(b) and (c) on the Restatement Effective Date.
Notwithstanding the foregoing, no Letter of Credit Issuer shall be under any
obligation to issue any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or
restrain such Letter of Credit Issuer from issuing such Letter of
Credit or any requirement of law applicable to such Letter of Credit
Issuer or any request or directive (whether or not having the force of
law) from any governmental authority with jurisdiction over such Letter
of Credit Issuer shall prohibit, or request that such Letter of Credit
Issuer refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Letter of
Credit Issuer with respect to such Letter of Credit any restriction or
reserve or capital requirement (for which such Letter of Credit Issuer
is not otherwise compensated) not in effect on the date hereof, or any
unreimbursed loss, cost or expense which was not applicable, in effect
or known to such Letter of Credit Issuer as of the date hereof and
which such Letter of Credit Issuer in good faith deems material to it;
or
(ii) such Letter of Credit Issuer shall have received notice
from the Borrower or the Required Banks prior to the issuance of such
Letter of Credit of the type described in clause (iv) of Section
2.01(b).
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(b) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued, the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed either (x) $5,000,000 or (y) when added to the aggregate principal amount
of all Revolving Loans made by Non-Defaulting Banks and Swingline Loans then
outstanding, the Adjusted Total Revolving Loan Commitment at such time; (ii) (x)
each Standby Letter of Credit shall have an expiry date occurring not later than
one year after such Letter of Credit's date of issuance (although any Standby
Letter of Credit may be extendable (whether automatically or otherwise) for
successive periods of up to 12 months, but not beyond the tenth Business Day
prior to the Maturity Date), on terms acceptable to the respective Letter of
Credit Issuer and in no event shall any Standby Letter of Credit have an expiry
date occurring later than the tenth Business Day prior to the Maturity Date and
(y) each Trade Letter of Credit shall have an expiry date occurring no later
than the earlier of (a) 180 days after the issuance thereof or (b) 30 days prior
to the Maturity Date; (iii) each Letter of Credit shall be denominated in U.S.
dollars; and (iv) no Letter of Credit Issuer shall issue any Letter of Credit
after it has received written notice from the Borrower that a Default or an
Event of Default exists until such time as the Letter of Credit Issuers shall
have received written notice of (x) rescission of such notice from the party or
parties originally delivering the same or (y) waiver of such Default or Event of
Default by the Required Banks.
2.02 MINIMUM STATED AMOUNT. The initial Stated Amount of each
Letter of Credit shall be not less than $20,000 or such lesser amount acceptable
to the respective Letter of Credit Issuer.
2.03 LETTER OF CREDIT REQUESTS; NOTICES OF ISSUANCE; REPORTS.
(a) Whenever the Borrower desires that a Letter of Credit be issued, the
Borrower shall give the Administrative Agent and the respective Letter of Credit
Issuer a written request (including by way of telecopier) in the form of Exhibit
C prior to 1:00 P.M. (New York time) at least three Business Days (or such
shorter period as may be acceptable to such Letter of Credit Issuer) prior to
the proposed date (which shall be a Business Day) of issuance (each a "Letter of
Credit Request"), which Letter of Credit Request shall include any other
documents that such Letter of Credit Issuer customarily requires in connection
therewith.
(b) The respective Letter of Credit Issuer shall, promptly
after each issuance of or amendment to any Standby Letter of Credit by it, give
the Administrative Agent, each Participant and the Borrower written notice of
such issuance or amendment. Notice to the Administrative Agent and the Borrower
shall be accompanied by a copy of the issued Standby Letter of Credit or
amendment, as the case may be.
(c) Each Letter of Credit Issuer (other than BTCo) shall, by
11:00 A.M. on the first Business Day of each week, forward to the Administrative
Agent (by way of telecopier) a report listing the aggregate daily outstanding
balances for the previous week of the Trade Letters of Credit issued by such
Letter of Credit Issuer. Each month the Administrative Agent shall forward to
each Bank a report listing the daily aggregate amount available to be drawn
under all Trade Letters of Credit outstanding during the previous month.
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2.04 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The
Borrower hereby agrees to reimburse the respective Letter of Credit Issuer, by
making payment to the Administrative Agent at the Payment Office (which funds
the Administrative Agent shall promptly forward to such Letter of Credit
Issuer), for any payment or disbursement made by such Letter of Credit Issuer
under any Letter of Credit issued by it (each such amount so paid or disbursed
until reimbursed, an "Unpaid Drawing") immediately after, and in any event on
the date on which, the Borrower is notified by such Letter of Credit Issuer of
such payment or disbursement with interest on the amount so paid or disbursed by
such Letter of Credit Issuer, to the extent not reimbursed prior to 1:00 P.M.
(New York time) on the date of such payment or disbursement, from and including
the date paid or disbursed to but not including the date such Letter of Credit
Issuer is reimbursed therefor at a rate per annum which shall be the Base Rate
Margin then in effect plus the Base Rate as in effect from time to time (plus an
additional 2% per annum if not reimbursed by the third Business Day after the
date of such notice of payment or disbursement), such interest also to be
payable on demand. Each Letter of Credit Issuer shall provide the Borrower
prompt notice of any payment or disbursement made by it under any Letter of
Credit issued by it, although the failure of, or delay in, giving any such
notice shall not release or diminish the obligations of the Borrower under this
Section 2.04 (a) or under any other Section of this Agreement.
(b) The Borrower's obligation under this Section 2.04 to
reimburse the respective Letter of Credit Issuer with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower may have or have had against such Letter
of Credit Issuer, the Administrative Agent or any Bank, including, without
limitation, any defense based upon the failure of any payment under a Letter of
Credit to conform to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such payment; PROVIDED,
that the Borrower shall not be obligated to reimburse any Letter of Credit
Issuer for any wrongful payment made by such Letter of Credit Issuer under a
Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence (in either case, as determined by a court of
competent jurisdiction) on the part of such Letter of Credit Issuer.
2.05 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by any Letter of Credit Issuer of a Letter of Credit, such Letter of
Credit Issuer shall be deemed to have sold and transferred to each other Bank,
and each such Bank (each a "Participant") shall be deemed irrevocably and
unconditionally to have purchased and received from such Letter of Credit
Issuer, without recourse or warranty, an undivided interest and participation,
to the extent of such Bank's Adjusted RC Percentage, in such Letter of Credit,
each substitute letter of credit, each payment made thereunder and the
obligations of the Borrower under this Agreement with respect thereto (although
the Letter of Credit Fee shall be payable directly to the Administrative Agent
for the account of the Banks as provided in Section 3.01(b) and the Participants
shall have no right to receive any portion of any Facing Fees) and any security
therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan
Commitments or Adjusted RC Percentages of the Banks pursuant to Section 12.04(b)
or upon a Bank Default, it is hereby agreed that, with respect to all
outstanding Letters of Credit and Unpaid Drawings, there shall be
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an automatic adjustment to the participations pursuant to this Section 2.05 to
reflect the new Adjusted RC Percentages of the assigning and assignee Bank or of
all Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit,
the respective Letter of Credit Issuer shall not have any obligation relative to
the Participants other than to determine that any documents required to be
delivered under such Letter of Credit have been delivered and that they
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Letter of Credit Issuer
under or in connection with any Letter of Credit if taken or omitted in the
absence of gross negligence or willful misconduct (in either case, as determined
by a court of competent jurisdiction) shall not create for such Letter of Credit
Issuer any resulting liability.
(c) In the event that the respective Letter of Credit Issuer
makes any payment under any Letter of Credit and the Borrower shall not have
reimbursed such amount in full to such Letter of Credit Issuer pursuant to
Section 2.04(a), such Letter of Credit Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Participant of such failure, and each Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such Letter
of Credit Issuer, the amount of such Participant's Adjusted RC Percentage of
such payment in U.S. dollars and in same day funds; PROVIDED, that no
Participant shall be obligated to pay to the Administrative Agent its Adjusted
RC Percentage of such unreimbursed amount for any wrongful payment made by such
Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence (in either case,
as determined by a court of competent jurisdiction) on the part of such Letter
of Credit Issuer. If the Administrative Agent so notifies any Participant
required to fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M.
(New York time) on any Business Day, such Participant shall make available to
the Administrative Agent for the account of the respective Letter of Credit
Issuer (which funds the Administrative Agent shall promptly forward to the
Letter of Credit Issuer) such Participant's Adjusted RC Percentage of the amount
of such payment on such Business Day in same day funds. If and to the extent
such Participant shall not have so made its Adjusted RC Percentage of the amount
of such Unpaid Drawing available to the Administrative Agent for the account of
such Letter of Credit Issuer, such Participant agrees to pay to the
Administrative Agent for the account of such Letter of Credit Issuer, forthwith
on demand such amount, together with interest thereon, for each day from such
date until the date such amount is paid to the Administrative Agent for the
account of such Letter of Credit Issuer at the overnight Federal Funds Effective
Rate. The failure of any Participant to make available to the Administrative
Agent for the account of the respective Letter of Credit Issuer its Adjusted RC
Percentage of any Unpaid Drawing under any Letter of Credit shall not relieve
any other Participant of its obligation hereunder to make available to the
Administrative Agent for the account of the respective Letter of Credit Issuer
its Adjusted RC Percentage of any payment under any Letter of Credit on the date
required, as specified above, but no Participant shall be responsible for the
failure of any other Participant to make available to the Administrative Agent
for the account of such Letter of Credit Issuer such other Participant's
Adjusted RC Percentage of any such payment.
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<PAGE> 22
(d) Whenever the respective Letter of Credit Issuer receives a
payment of a reimbursement obligation as to which the Administrative Agent has
received for the account of such Letter of Credit Issuer any payments from the
Participants pursuant to clause (c) above, such Letter of Credit Issuer shall
pay to the Administrative Agent and the Administrative Agent shall promptly pay
to each Participant which has paid its Adjusted RC Percentage thereof, in U.S.
dollars and in same day funds, an amount equal to such Participant's Adjusted RC
Percentage of the principal amount thereof and interest thereon accruing at the
overnight Federal Funds Effective Rate after the purchase of the respective
participations.
(e) Upon the request of any Participant, each Issuing Bank
shall furnish to such Participant copies of any Letter of Credit issued by it
and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to
the Administrative Agent for the account of the respective Letter of Credit
Issuer with respect to Letters of Credit shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever (PROVIDED that no Participant shall be required to make payments
resulting from the Letter of Credit Issuer's gross negligence or willful
misconduct (in either case, as determined by a court of competent jurisdiction)
and shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or
other right which the Borrower or any of it Subsidiaries may
have at any time against a beneficiary named in a Letter of
Credit, any transferee of any Letter of Credit (or any Person
for whom any such transferee may be acting), the
Administrative Agent, the respective Letter of Credit Issuer,
any Bank or other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transaction between the Borrower or any of its Subsidiaries
and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for
the performance or observance of any of the terms of any of
the Credit Documents; or
(v) the occurrence of any Default or Event of
Default.
(g) To the extent the respective Letter of Credit Issuer is
not indemnified for same by the Borrower, the Participants will reimburse and
indemnify the Letter of Credit Issuer, in proportion to their respective
Adjusted RC Percentages, for and against any and all liabilities,
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<PAGE> 23
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by such Letter of Credit Issuer in performing its
respective duties in any way relating to or arising out of its issuance of
Letters of Credit; PROVIDED that no Participant shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Letter of
Credit Issuer's gross negligence or willful misconduct (in either case, as
determined by a court of competent jurisdiction).
2.06 INCREASED COSTS. If at any time after the Restatement Effective
Date, the adoption or effectiveness of any applicable law, rule or regulation,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
by relevant authority with the interpretation or administration thereof, or
compliance by the respective Letter of Credit Issuer or any Bank with any
request or directive (whether or not having the force of law) by any such
authority, central bank or comparable agency shall either (i) impose, modify or
make applicable any reserve, deposit, capital adequacy or similar requirement
against Letters of Credit issued by such Letter of Credit Issuer or such Bank's
participation therein, or (ii) shall impose on such Letter of Credit Issuer or
any Bank any other conditions affecting this Agreement, any Letter of Credit or
such Bank's participation therein; and the result of any of the foregoing is to
increase the cost to such Letter of Credit Issuer or such Bank of issuing,
maintaining or participating in any Letter of Credit, or to reduce the amount of
any sum received or receivable by such Letter of Credit Issuer or such Bank
hereunder (other than any increased cost or reduction in the amount received or
receivable resulting from the imposition of or a change in the rate of taxes or
similar charges), then, upon demand to the Borrower by such Letter of Credit
Issuer or such Bank (a copy of which notice shall be sent by such Letter of
Credit Issuer or such Bank to the Administrative Agent) and subject to the
provisions of Section 12.17 (to the extent applicable), the Borrower shall pay
to such Letter of Credit Issuer or such Bank such additional amount or amounts
as will compensate such Letter of Credit Issuer or such Bank for such increased
cost or reduction. A certificate submitted to the Borrower by the respective
Letter of Credit Issuer or such Bank, as the case may be (a copy of which
certificate shall be sent by such Letter of Credit Issuer or such Bank to the
Administrative Agent), setting forth in reasonable detail the basis for the
determination of such additional amount or amounts necessary to compensate such
Letter of Credit Issuer or such Bank as aforesaid shall be conclusive and
binding on the Borrower absent manifest error, although the failure to deliver
any such certificate shall not release or diminish any of the Borrower's
obligations to pay additional amounts pursuant to this Section 2.06 upon the
subsequent receipt thereof.
SECTION 3. FEES; COMMITMENTS.
3.01 FEES. (a) The Borrower agrees to pay to the
Administrative Agent a commitment commission ("Commitment Commission") for the
account of each Non-Defaulting Bank with a Revolving Loan Commitment for the
period from and including the Restatement Effective Date to, but not including,
the date the Total Revolving Loan Commitment has been terminated, computed at a
rate for each day equal to 1/2 of 1% per annum on the daily average of such
Bank's Unutilized Revolving Loan Commitment. Such Commitment Commission
shall be
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<PAGE> 24
due and payable in arrears on each Quarterly Payment Date of each year and on
the date upon which the Total Revolving Loan Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for
the account of each Non-Defaulting Bank PRO RATA on the basis of its Adjusted RC
Percentage, a fee in respect of each Letter of Credit (the "Letter of Credit
Fee") in an amount equal to the Eurodollar Margin then in effect on the daily
Stated Amount of such Letter of Credit. Accrued Letter of Credit Fees shall be
due and payable quarterly in arrears on each Quarterly Payment Date of each year
and on the date upon which the Total Revolving Loan Commitment is
terminated.
(c) The Borrower agrees to pay to each Letter of Credit Issuer
for its own account a fee in respect of each Letter of Credit (the "Facing Fee")
issued by such Letter of Credit Issuer computed at the rate equal to (A) in the
case of Trade Letters of Credit, 1/4 of 1% per annum on the daily Stated Amount
of such Trade Letter of Credit, PROVIDED, that in any event, the minimum amount
of the Facing Fee payable for each Trade Letter of Credit shall be $100 and (B)
in the case of Standby Letters of Credit, 1/4 of 1% per annum on the daily
Stated Amount of such Standby Letter of Credit, PROVIDED that, in any event, the
minimum amount of the Facing Fee payable in any 12-month period for each Standby
Letter of Credit shall be $500 (it being agreed that, on each anniversary of the
issuance of any Standby Letter of Credit or upon any earlier termination or
expiration of a Standby Letter of Credit, if $500 exceeds the amount of Facing
Fees theretofore paid or then accrued with respect to such Standby Letter of
Credit, in either case after the date of the issuance thereof, or if later,
after the date of the last anniversary of the issuance thereof (but excluding
any amounts paid after such anniversary with respect to periods ending on or
prior to such anniversary, including, without limitation, as a result of the
operation of this parenthetical), the amount of such excess shall be payable on
the next date upon which accrued Facing Fees are otherwise payable with respect
to Standby Letters of Credit). Accrued Facing Fees shall be due and payable
quarterly in arrears on each Quarterly Payment Date of each year and on the date
upon which the Total Revolving Loan Commitment has been terminated and such
Letter of Credit has been terminated in accordance with its terms.
(d) The Borrower agrees to pay directly to the respective
Letter of Credit Issuer upon each issuance of, payment under, and/or amendment
of, a Letter of Credit issued by such Letter of Credit such amount as shall at
the time of such issuance, payment or amendment be the administrative charge and
expenses which such Letter of Credit Issuer is customarily charging for
issuances of, payments under or amendments of, letters of credit issued by it.
(e) The Borrower agrees to pay to the Administrative Agent
such other fees as agreed to between the Borrower and the Administrative Agent,
when and as due.
(f) All computations of Fees shall be made in accordance with
Section 12.07(b).
3.02 VOLUNTARY REDUCTION OF COMMITMENTS. (a) Upon at least
three Business Days' prior written notice (or telephonic notice confirmed in
writing) to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Banks), the Borrower
shall have the right, without premium or penalty, to terminate or partially
reduce the Total Unutilized Revolving Loan Commitment, PROVIDED that (x) any
such
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<PAGE> 25
termination shall apply to proportionately and permanently reduce the
Revolving Loan Commitment of each Bank, (y) no such reduction shall reduce any
Non-Defaulting Bank's Revolving Loan Commitment to an amount that is less than
the outstanding Revolving Loans of such Bank and (z) any partial reduction
pursuant to this Section 3.02 shall be in the amount of at least $1,000,000.
(b) In the event of certain refusals by a Bank as provided in
Section 12.12(b) to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks, the Borrower may, subject to the requirements of said Section
12.12(b) and upon five Business Days' written notice to the Administrative Agent
at its Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Banks), terminate all of the Revolving Loan Commitment
of such Bank so long as all Revolving Loans, together with accrued and unpaid
interest, Fees and all other amounts, owing to such Bank are repaid concurrently
with the effectiveness of such termination (at which time Annex I shall be
deemed modified to reflect such changed amounts), and at such time such Bank
shall no longer constitute a "Bank" for purposes of this Agreement, except with
respect to indemnification provisions under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.01 and 12.06), which shall
survive as to such repaid Bank.
3.03 MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC. (a) The Total
Revolving Loan Commitment (and the Revolving Loan Commitment of each Bank) shall
terminate on October 31, 1999 unless the Restatement Effective Date has occurred
on or before such date, and in the event of such termination, this Agreement
shall be of no force or effect and the Existing Credit Agreement shall continue
to be effective, as the same may have been amended, modified or supplemented
from time to time.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Bank) shall terminate on the Maturity Date.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date on or after the Restatement
Effective Date on which the Borrower or any of its Subsidiaries receives Cash
Proceeds from any Asset Sale, the Total Revolving Loan Commitment shall be
permanently reduced on such date by an amount equal to 100% of the Net Cash
Proceeds from such Asset Sale, PROVIDED that up to an aggregate of $15,000,000
of Net Cash Proceeds received by the Borrower from Asset Sales shall not give
rise to a permanent reduction to the Total Revolving Loan Commitment pursuant to
this Section 3.03(c) to the extent the Borrower elects, as hereinafter provided,
to cause such Net Cash Proceeds to be reinvested in Reinvestment Assets (a
"Reinvestment Election"). The Borrower may exercise its Reinvestment Election
(within the parameters specified in the preceding sentence) with respect to an
Asset Sale if (x) no Default or Event of Default exists and (y) the Borrower
delivers a Reinvestment Notice to the Administrative Agent within 3 Business
Days following the date of the consummation of the respective Asset Sale, with
such Reinvestment Election being effective with respect to the Net Cash Proceeds
of such Asset Sale equal to the Anticipated Reinvestment Amount specified in
such Reinvestment Notice; PROVIDED, that on the Reinvestment Commitment
Reduction Date
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with respect to a Reinvestment Election, an amount equal to the Reinvestment
Commitment Reduction Amount, if any, for such Reinvestment Election shall be
applied to permanently reduce the Total Revolving Loan Commitment.
(d) Each reduction to the Total Revolving Loan Commitment
pursuant to this Section 3.03 shall be applied proportionately to reduce the
Revolving Loan Commitment of each Bank.
SECTION 4. PAYMENTS.
4.01 VOLUNTARY PREPAYMENTS. The Borrower shall have the right
to prepay Loans in whole or in part, without premium or penalty, from time to
time on the following terms and conditions: (i) the Borrower shall give the
Administrative Agent at the Payment Office written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay the Loans, whether such
Loans are Revolving Loans or Swingline Loans, the amount of such prepayment and
(in the case of Eurodollar Loans) the specific Borrowing or Borrowings pursuant
to which made, which notice shall be given by the Borrower at least one Business
Day prior to the date of such prepayment with respect to Base Rate Loans (other
than Swingline Loans, with respect to which notice may be given by the Borrower
on the day of prepayment) and three Business Days prior to the date of such
prepayment with respect to Eurodollar Loans, which notice shall promptly be
transmitted by the Administrative Agent to each of the Banks; (ii) (x) each
partial prepayment of any Borrowing (other than a Borrowing of Swingline Loans)
shall be in an aggregate principal amount of at least $500,000 and (y) each
partial prepayment of any Borrowing of Swingline Loans shall be in an aggregate
principal amount of at least $50,000, PROVIDED that no partial prepayment of
Eurodollar Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of the Loans outstanding pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount applicable thereto; (iii) at the
time of any prepayment of Eurodollar Loans pursuant to this Section 4.01 on any
date other than the last day of the Interest Period applicable thereto, the
Borrower shall pay the amounts required pursuant to Section 1.11; (iv) in the
event of certain refusals by a Bank as provided in Section 12.12(b) to consent
to certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Banks, the Borrower may,
upon 5 Business Days' written notice to the Administrative Agent at its Notice
Office (which notice the Administrative Agent shall promptly transmit to each of
the Banks) repay all Revolving Loans, together with accrued and unpaid interest,
Fees, and other amounts owing to such Bank in accordance with said Section
12.12(b) so long as (A) in the case of the repayment of Revolving Loans of any
Bank pursuant to this clause (iv), the Revolving Loan Commitment of such Bank is
terminated concurrently with such repayment (at which time Annex I shall be
deemed modified to reflect the changed Revolving Loan Commitments) and (B) the
consents required by Section 12.12(b) in connection with the repayment pursuant
to this clause (iv) have been obtained; and (v) each prepayment in respect of
any Revolving Loans made pursuant to a Borrowing shall be applied PRO RATA among
such Revolving Loans, PROVIDED that at the Borrower's election in connection
with any prepayment of Revolving Loans pursuant to this Section 4.01, such
prepayment shall not be applied to any Revolving Loans of a Defaulting Bank.
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4.02 MANDATORY PREPAYMENTS.
(a) (i) If on any date the sum of the aggregate outstanding
principal amount of Revolving Loans made by Non-Defaulting Banks, Swingline
Loans and the Letter of Credit Outstandings exceeds the Adjusted Total Revolving
Loan Commitment as then in effect, the Borrower shall repay on such date the
principal of Swingline Loans, and if no Swingline Loans are or remain
outstanding, Revolving Loans of Non-Defaulting Banks, in an aggregate amount
equal to such excess. If, after giving effect to the repayment of all
outstanding Swingline Loans and Revolving Loans of Non-Defaulting Banks, the
aggregate amount of Letter of Credit Outstandings exceeds the Adjusted Total
Revolving Loan Commitment, the Borrower shall pay to the Administrative Agent on
such date an amount in cash and/or Cash Equivalents equal to such excess (up to
the aggregate amount of the Letter of Credit Outstandings at such time) and the
Administrative Agent shall hold such payment as security for the obligations of
the Borrower hereunder pursuant to a cash collateral agreement to be entered
into in form and substance satisfactory to the Administrative Agent (which shall
permit certain investments in Cash Equivalents satisfactory to the
Administrative Agent, until the proceeds are applied to the secured
obligations).
(ii) If on any date the aggregate outstanding principal amount
of the Revolving Loans made by a Defaulting Bank exceeds the Revolving Loan
Commitment of such Defaulting Bank, the Borrower shall repay on such date
principal of Revolving Loans of such Defaulting Bank in an amount equal to such
excess.
(b) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, (i) all then outstanding Swingline Loans shall be
repaid in full on the Swingline Expiry Date, and (ii) all then outstanding
Revolving Loans shall be repaid in full on the Maturity Date.
(c) With respect to each repayment of Loans required by this
Section 4.02, the Borrower may designate the Types of Loans which are to be
repaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, PROVIDED that: (i) repayments of Eurodollar
Loans pursuant to this Section 4.02 may only be made on the last day of an
Interest Period applicable thereto unless all Eurodollar Loans with Interest
Periods ending on such date of required repayment and all Base Rate Loans have
been paid in full; (ii) if any prepayment of Eurodollar Loans made pursuant to
a single Borrowing shall reduce the outstanding Revolving Loans made pursuant
to such Borrowing to an amount less than the Minimum Borrowing Amount for such
Borrowing, such Borrowing shall be immediately converted into Base Rate Loans;
(iii) each prepayment of any Revolving Loans made by Non-Defaulting Banks
pursuant to a Borrowing shall be applied PRO RATA among such Revolving Loans;
and (iv) each prepayment of any Revolving Loans made by Defaulting Banks
pursuant to a Borrowing shall be applied PRO RATA among such Revolving Loans.
In the absence of a designation by the Borrower as described in the preceding
sentence, the Administrative Agent shall, subject to the above, make such
designation in its sole discretion with a view, but not obligation, to minimize
breakage costs owing under Section 1.11. Notwithstanding the foregoing
provisions of this Section 4.02(c), if at any time a mandatory or voluntary
prepayment of
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Revolving Loans pursuant to Section 4.01 or 4.02 would result, after giving
effect to the procedures set forth above, in the Borrower incurring breakage
costs under Section 1.11 as a result of Eurodollar Loans being prepaid other
than on the last day of an Interest Period applicable thereto (the "Affected
Eurodollar Loans"), then the Borrower may in its sole discretion initially
deposit a portion (up to 100%) of the amounts that otherwise would have been
paid in respect of the Affected Eurodollar Loans with the Administrative Agent
(which deposit must be equal in amount to the amount of the Affected Eurodollar
Loans not immediately prepaid) to be held as security for the obligations of the
Borrower hereunder pursuant to a cash collateral arrangement satisfactory to the
Administrative Agent and the Borrower and shall provide for investments
satisfactory to the Administrative Agent, with such cash collateral to be
directly applied upon the first occurrence (or occurrences) thereafter of the
last day of an Interest Period applicable to the relevant Eurodollar Loans (or
such earlier date or dates as shall be requested by the Borrower), to repay an
aggregate principal amount of such Affected Eurodollar Loans not initially
prepaid pursuant to this sentence. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, all amounts deposited as cash
collateral pursuant to the immediately preceding sentence shall be held for the
sole benefit of the Banks whose Eurodollar Loans would otherwise have been
immediately prepaid with the amounts deposited and upon the taking of any action
by the Administrative Agent or the Banks pursuant to the remedial provisions of
Section 9, any amounts held as cash collateral pursuant to this Section 4.02(c)
shall, subject to the requirements of applicable law, be immediately applied to
repay such Loans.
4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise
specifically provided herein, all payments under this Agreement shall be made to
the Administrative Agent for the ratable (based on their respective PRO RATA
shares) account of the Banks entitled thereto (which funds the Administrative
Agent shall promptly forward to such Banks), not later than 1:00 P.M. (New York
time) on the date when due and shall be made in immediately available funds and
in lawful money of the United States of America at the Payment Office, it being
understood that written notice by the Borrower to the Administrative Agent to
make a payment from the funds in the Borrower's account at the Payment Office
shall constitute the making of such payment to the extent of such funds held in
such account. Any payments under this Agreement which are made later than 1:00
P.M. (New York time) shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
4.04 NET PAYMENTS. (a) All payments made by the Borrower
hereunder or under any Note will be made without setoff, counterclaim or other
defense. Except as provided in Section 4.04(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income or net profits of a Bank pursuant to
the laws of the jurisdiction in which it is organized or
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managed and controlled or the jurisdiction in which the principal office or
applicable lending office of such Bank is located or any subdivision thereof or
therein) and all interest, penalties or similar liabilities with respect to such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
(all such non-excluded taxes, levies, imposts, duties, fees, assessments or
other charges being referred to collectively as "Taxes"). If any Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Taxes, and
such additional amounts, if any, as may be necessary so that every payment of
all amounts due under this Agreement or under any Note, after withholding or
deduction for or on account of any Taxes, will not be less than the amount
provided for herein or in such Note. If any amounts are payable in respect of
Taxes pursuant to the preceding sentence, the Borrower agrees to reimburse each
Bank, upon the written request of such Bank, for taxes imposed on or measured by
the net income or net profits of such Bank pursuant to the laws of the
jurisdiction in which such Bank is organized or in which the principal office or
applicable lending office of such Bank is located or under the laws of any
political subdivision or taxing authority of any such jurisdiction in which such
Bank is organized or in which the principal office or applicable lending office
of such Bank is located and for any withholding of income or similar taxes as
such Bank shall determine are payable by, or withheld from, such Bank in respect
of such amounts so paid to or on behalf of such Bank pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Bank
pursuant to this sentence. The Borrower will furnish to the Administrative Agent
within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts, or other evidence satisfactory
to such Bank, in its sole discretion, evidencing such payment by the Borrower.
The Borrower agrees to indemnify and hold harmless each Bank, and reimburse such
Bank upon its written request, for the amount of any Taxes so levied or imposed
and paid by such Bank. All amounts payable pursuant to this Section 4.04(a)
shall be subject to the provisions of Section 12.17 (to the extent applicable).
(b) Each Bank that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes agrees to deliver to the Borrower and the Administrative Agent on or
prior to the Restatement Effective Date, or in the case of a Bank that is an
assignee or transferee of an interest under this Agreement pursuant to Section
1.13 or 12.04 (unless the respective Bank was already a Bank hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Bank, (i) two accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001 (or successor forms)
certifying to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Bank is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit D (any such certificate, a "Section
4.04(b)(ii) Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8 (or successor form) certifying to
such Bank's entitlement to a complete exemption from United States withholding
tax with respect to payments of interest to be made under this Agreement and
under any Note. In addition, each Bank agrees that from time to time after the
Restatement Effective Date, when a lapse in time or change in circumstances
renders the previous certification obsolete or inaccurate in any material
respect, it will deliver to the Borrower and the Administrative Agent two new
accurate and complete original signed
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copies of Internal Revenue Service Form 4224 or 1001, or Form W-8 and a Section
4.04(b)(ii) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Bank to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower and the Administrative Agent of its inability to deliver any
such Form or Certificate, in which case such Bank shall not be required to
deliver any such Form or Certificate pursuant to this Section 4.04(b).
Notwithstanding anything to the contrary contained in Section 4.04(a), but
subject to Section 12.04(b) and the immediately succeeding sentence, (x) the
Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or similar taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from interest,
fees or other amounts payable hereunder for the account of any Bank which is not
a United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Bank has not
provided to the Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower shall
not be obligated pursuant to Section 4.04(a) to gross-up payments to be made to
a Bank in respect of income or similar taxes imposed by the United States or any
additional amounts with respect thereto if (I) such Bank is not a U.S. Person
(defined as provided above) and has not provided to the Borrower the Internal
Revenue Service Forms required to be provided to the Borrower pursuant to this
Section 4.04(b) or (II) in the case of a payment, other than interest, to a Bank
described in clause (ii) above, to the extent that such Forms do not establish a
complete exemption from withholding of such taxes. Notwithstanding anything to
the contrary contained in the preceding sentence or elsewhere in this Section
4.04 and except as set forth in Section 12.04(b), the Borrower agrees to pay
additional amounts and to indemnify each Bank in the manner set forth in Section
4.04(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any Taxes deducted or withheld by it as
described in the immediately preceding sentence as a result of any changes after
the Restatement Effective Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of such Taxes.
(c) If any Bank, in its sole opinion, determines that it has
finally and irrevocably received or been granted a refund in respect of any
Taxes paid as to which indemnification has been paid by the Borrower pursuant to
this Section, it shall promptly remit such refund (including any interest
received in respect thereof), net of all out-of-pocket costs and expenses, to
the Borrower; provided that the Borrower agrees to promptly return any such
refund (plus interest) to such Bank upon receipt of written notification from
such Bank in the event such Bank is required to repay such refund to the
relevant taxing authority. Nothing contained herein shall interfere with the
right of a Bank to arrange its tax affairs in whatever manner it thinks fit or
oblige any Bank to apply for any refund or to disclose to any party any
information relating to its tax affairs on any computations in respect thereof
(including, without limitation, its tax returns).
SECTION 5. CONDITIONS PRECEDENT TO THE RESTATEMENT EFFECTIVE
DATE AND TO ALL CREDIT EVENTS. The occurrence of the Restatement Effective Date
pursuant to Section 12.10, the obligation of the Banks to make each Loan
hereunder, and the obligation of the Letter of Credit
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Issuers to issue Letters of Credit hereunder, are each subject, at the time
thereof (except as otherwise hereinafter indicated), to the satisfaction of each
of the following conditions:
5.01 EXECUTION OF AGREEMENT. On or prior to the Restatement
Effective Date, (i) this Agreement shall have been executed and delivered as
provided in Section 12.10 and (ii) there shall have been delivered to the
Administrative Agent for the account of each Bank the appropriate Revolving Note
and, in the case of the Swingline Bank, the Swingline Note, in each case,
executed by the Borrower, and in the amount, maturity and as otherwise provided
herein.
5.02 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. On the
Restatement Effective Date and at the time of each Credit Event and also after
giving effect thereto, (i) there shall exist no Default or Event of Default and
(ii) all representations and warranties contained herein and in the other Credit
Documents in effect at such time shall be true and correct in all material
respects with the same effect as though such representations and warranties had
been made on and as of the date of such Credit Event, except to the extent that
such representations and warranties expressly relate to an earlier date, in
which case such representations and warranties will be true and correct in all
material respects as of such earlier date.
5.03 OFFICER'S CERTIFICATE. On or prior to the Restatement
Effective Date, the Administrative Agent shall have received a certificate dated
such date signed by the President or any Vice President of the Borrower stating
that all of the applicable conditions set forth in Sections 5.02, 5.07, 5.08,
5.09, 5.10 and 5.20 exist or have been satisfied as of such date.
5.04 OPINIONS OF COUNSEL. On or prior to the Restatement
Effective Date, the Administrative Agent shall have received an opinion,
addressed to the Administrative Agent and each of the Banks and dated the
Restatement Effective Date, from Thompson Hine & Flory LLP, special counsel to
the Borrower and each Subsidiary Guarantor, which opinion shall (i) cover the
matters contained in Exhibit E and (ii) be in form, scope and substance
satisfactory to the Administrative Agent and the Required Banks.
5.05 CORPORATE PROCEEDINGS. (a) On or prior to the Restatement
Effective Date, the Administrative Agent shall have received from each Credit
Party a certificate, dated the Restatement Effective Date, signed by the
President or any Vice-President of each such Credit Party in the form of Exhibit
F with appropriate insertions and deletions, together with copies of the
certificate of incorporation, the by-laws or other organizational documents of
each such Credit Party and the resolutions of each such Credit Party referred to
in such certificate and all of the foregoing shall be satisfactory to the
Administrative Agent.
(b) On or prior to the Restatement Effective Date, all
corporate and legal proceedings and all instruments and agreements in connection
with the transactions contemplated by this Agreement and the other Documents
shall be satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received all information and copies of all
certificates, documents and papers, including good standing certificates and any
other records of corporate proceedings and governmental approvals, if any, which
the Administrative Agent may have reasonably requested in connection therewith,
such documents and papers, where appropriate, to be certified by proper
corporate or governmental authorities.
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5.06 PLANS; EXISTING INDEBTEDNESS AGREEMENTS; SHAREHOLDERS'
AGREEMENTS; MANAGEMENT AGREEMENTS; EMPLOYMENT AGREEMENTS; COLLECTIVE BARGAINING
AGREEMENTS; TAX SHARING AGREEMENTS. On or prior to the Restatement Effective
Date, there shall have been delivered to the Administrative Agent copies,
certified as true and correct by an appropriate officer of the Borrower of:
(i) all Plans (and for each Plan that is
required to file I an annual report on Internal Revenue
Service Form 5500-series, a copy of the most recent such
report (including, to the extent required, the related
financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and
information), and for each Plan that is a "single-employer
plan," as defined in Section 4001(a)(15) of ERISA, the most
recently prepared actuarial valuation therefor) and any other
"employee benefit plans," as defined in Section 3(3) of ERISA,
and any other material agreements, plans or arrangements, with
or for the benefit of current or former employees of the
Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate (provided that the foregoing shall apply in the case
of any multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, only to the extent that any document described therein
is in the possession of the Borrower or any Subsidiary of the
Borrower or any ERISA Affiliate or reasonably available
thereto from the sponsor or trustee of any such plan);
(ii) all agreements evidencing or relating
to Existing Indebtedness (the "Existing Indebtedness
Agreements");
(iii) all agreements entered into by the
Borrower or any of its Subsidiaries (after giving effect to
the Transaction) governing the terms and relative rights of
its capital stock, and any agreements entered into by members
or shareholders relating to any such entity with respect to
their capital stock (including, without limitation, the GEO
Shareholders' Agreement) (collectively, the "Shareholders'
Agreements");
(iv) any material agreement with members of,
or with respect to, the management of the Borrower or any of
its Subsidiaries (collectively, the "Management Agreements");
(v) any material employment agreements
entered into by the Borrower or any of its Subsidiaries
(collectively, the "Employment Agreements");
(vi) all collective bargaining agreements
applying or relating to any employee of the Borrower or any of
its Subsidiaries (collectively, the "Collective Bargaining
Agreements"); and
(vii) all tax sharing, tax allocation and
other similar agreements entered into by the Borrower or any
of its Subsidiaries (collectively, the "Tax Sharing
Agreements");
all of which Plans, Existing Indebtedness Agreements, Shareholders' Agreements,
Management Agreements, Employment Agreements, Collective Bargaining Agreements
and Tax Sharing Agreements shall be in form and substance satisfactory to the
Administrative Agent.
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5.07 ADVERSE CHANGE, ETC. On the Restatement Effective Date,
nothing shall have occurred (and neither the Banks nor the Administrative Agent
shall have become aware of any facts or conditions not previously known) which
the Administrative Agent or the Required Banks shall determine (i) has, or is
reasonably likely to have, a material adverse effect on the rights or remedies
of the Banks or the Administrative Agent, or on the ability of the Credit
Parties to perform their obligations to them, or (ii) has, or is reasonably
likely to have, a Material Adverse Effect.
5.08 LITIGATION. On the Restatement Effective Date, there
shall be no actions, suits or proceedings pending or threatened, to the
Borrower's knowledge, (a) with respect to this Agreement or any other Document
or the Transaction or any part thereof or any other transaction contemplated
hereby or thereby) or (b) which the Administrative Agent or the Required Banks
shall determine could reasonably be expected to (i) have a Material Adverse
Effect or (ii) have a material adverse effect on the rights or remedies of the
Banks hereunder or under any other Credit Document or on the ability of any
Credit Party to perform its respective obligations to the Banks hereunder or
under any other Credit Document.
5.09 APPROVALS. On or prior to the Restatement Effective Date,
all material and necessary governmental and third party approvals in connection
with the transactions contemplated by the Documents and otherwise referred to
herein or therein shall have been obtained and remain in effect, and all
applicable waiting periods shall have expired without any action being taken by
any competent authority which restrains or prevents such transactions or
imposes, in the reasonable judgment of the Required Banks or the Administrative
Agent, materially adverse conditions upon the consummation of such transactions.
Additionally, there shall not exist any judgment, order, injunction or other
restraint prohibiting or imposing materially adverse conditions upon the
Transaction or any other transactions contemplated by this Agreement or any
other Document.
5.10 CONSUMMATION OF THE ACQUISITION. On or prior to the
Restatement Effective Date, there shall have been delivered to the Banks a true
and correct copy of the Acquisition Agreement and the other Acquisition
Documents, and all terms of the Acquisition Agreement and the other Acquisition
Documents shall be satisfactory in form and substance to the Administrative
Agent and the Required Banks. The Acquisition Agreement (and the transactions
contemplated thereby) shall have been duly approved by the board of directors
and (if required by applicable law) the stockholders of the Borrower, and all
Acquisition Documents shall have been duly executed and delivered by the parties
thereto and shall be in full force and effect. Each of the conditions precedent
to the obligation of the parties to consummate the Acquisition as set forth in
the Acquisition Documents shall have been satisfied, or waived, all to the
satisfaction of the Administrative Agent, and concurrently with the making of
Revolving Loans on the Restatement Effective Date, the Acquisition shall have
been consummated in accordance with the Acquisition Documents and all applicable
laws, rules and regulations.
5.11 SUBSIDIARY GUARANTY. On the Restatement Effective Date,
each Subsidiary Guarantor shall have duly authorized, executed and delivered an
acknowledgment to the Subsidiary Guaranty in the form of Exhibit G (the
"Subsidiary Guaranty Acknowledgment"), and
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the Subsidiary Guaranty as so modified by the Subsidiary Guaranty Acknowledgment
shall be in full force and effect.
5.12 SECURITY DOCUMENTS ACKNOWLEDGMENT. (a) On the Restatement
Effective Date, the Borrower shall have duly authorized, executed and delivered
an acknowledgment in the form of Exhibit H (such acknowledgment, as amended,
modified or supplemented from time to time, the "Security Documents
Acknowledgment") pursuant to which, among other things, (i) the Borrower shall
acknowledge and agree that the "Obligations" (as defined in each of such
Security Documents) or any similar term include all of the Obligations under
this Agreement after giving effect to the Transaction and (ii) the Borrower
shall acknowledge and agree that, after giving effect to the Transaction, each
of the Pledge Agreement and the Security Agreement, shall remain in full force
and effect in accordance with their respective terms and the Borrower shall have
taken all actions reasonably requested by the Administrative Agent (including,
without limitation, the obtaining of UCC-11's or equivalent reports and the
filing of UCC-1's or UCC-3's) in connection with the perfection and first
priority status of the Liens intended to be created and/or maintained by the
Pledge Agreement and the Security Agreement in the Pledge Agreement Collateral
and the Security Agreement Collateral.
(b) On the Restatement Effective Date,
(i) the Banks shall have received evidence
that the completion of all recordings and filings necessary
or, in the reasonable opinion of the Collateral Agent,
desirable to perfect and protect the security interests
purported to be created by the Security Agreement have been
taken;
(ii) the Collateral Agent shall have in its
possession all of the Securities which shall be either
endorsed in blank (in the case of promissory notes
constituting Securities) or accompanied by executed and
undated stock powers (in the case of capital stock
constituting Securities); and
(iii) the Banks shall have received evidence
that all other actions necessary or, in the reasonable opinion
of the Collateral Agent, desirable to perfect and protect the
first priority Lien in the Pledge Agreement Collateral and the
Security Agreement Collateral, subject only to Permitted
Encumbrances, have been taken, or arrangements therefor have
been made on a basis satisfactory to the Collateral Agent and
shall be in place.
5.13 NEW MORTGAGES. On the Restatement Effective Date, the
Borrower will, or will cause its Subsidiaries to, deliver to the Collateral
Agent (i) fully executed counterparts of deeds of trust, mortgages and similar
documents in each case in form and substance satisfactory to the Collateral
Agent (each a "New Mortgage" and, collectively, the "New Mortgages") covering
all of the Mortgaged Properties listed on Part A of Annex VIII and designated as
"New Mortgaged Properties" thereon (each a "New Mortgaged Property" and,
collectively, the "New Mortgaged Properties"), and counterparts of such New
Mortgages shall have been duly recorded or delivered to the Collateral Agent for
recording in all places to the extent necessary or, in the reasonable judgment
of the Collateral Agent, desirable, effectively to create a valid and
enforceable first priority mortgage Lien, subject only to Permitted
Encumbrances, on each such
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New Mortgaged Property in favor of the Collateral Agent (or such other trustee
as may be required or desirable under local law) for the benefit of the
Administrative Agent and the Banks, (ii) mortgage title insurance policies
issued by title insurers reasonably satisfactory to the Collateral Agent (the
"New Mortgage Policies") in amounts reasonably satisfactory to the Collateral
Agent and assuring the Collateral Agent that the New Mortgages in respect of the
New Mortgaged Properties are valid and enforceable first priority mortgage Liens
on the respective New Mortgaged Properties free and clear of all defects and
encumbrances except Permitted Encumbrances, and such New Mortgage Policies shall
be in form and substance reasonably satisfactory to the Collateral Agent and
shall include an endorsement for mechanic liens and for any other matter that
the Collateral Agent in its discretion may reasonably request and (iii) such
opinions of counsel as the Collateral Agent may reasonably request in connection
with such New Mortgages, which opinions of counsel shall be in form and
substance satisfactory to the Collateral Agent.
5.14 MORTGAGE AMENDMENTS; TITLE INSURANCE ENDORSEMENTS. (a) On
the Restatement Effective Date, the Collateral Agent shall have received:
(i) fully executed counterparts of
amendments (the "Existing Mortgage Amendments") to the
mortgages delivered pursuant to the Existing Credit Agreement
(the "Existing Mortgages") in form and substance reasonably
satisfactory to the Collateral Agent, which Existing
Mortgages, as amended, shall cover such of the Real Property
owned by the applicable Credit Party as shall be listed in
Part B of Annex VIII and designated thereon as the "Existing
Mortgaged Properties" (each an "Existing Mortgaged Property"
and collectively, the "Existing Mortgaged Properties"),
together with evidence that counterparts of the Existing
Mortgage Amendments have been delivered to the title insurance
company insuring the Liens of the Existing Mortgages for
recording in all places to the extent necessary or desirable,
in the reasonable judgment of the Collateral Agent,
effectively to maintain valid and enforceable first priority
mortgage liens on the Existing Mortgaged Properties) for the
benefit of the Secured Creditors (as therein defined); and
(ii) endorsements of the Existing Mortgage
Policies (the "Endorsements") in a form and in amounts
reasonably satisfactory to the Administrative Agent and the
Required Banks, assuring the Collateral Agent that the
Existing Mortgages, as amended by the Existing Mortgage
Amendments, are valid and enforceable first priority mortgage
liens on the Existing Mortgaged Properties, free and clear of
all defects, encumbrances and other Liens except Permitted
Encumbrances, and such Endorsements shall be in form and
substance reasonably satisfactory to the Administrative Agent
and the Required Banks.
(b) On the Restatement Effective Date, (i) the Existing
Mortgages shall remain in full force and effect, and (ii) no filings,
recordings, registrations or other actions (other than those made, obtained or
taken on or prior to the Restatement Effective Date referred to in the preceding
clause (a)) shall be necessary or, in the opinion of the Collateral Agent,
desirable to
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maintain the perfection and priority of the mortgage liens on the Existing
Mortgaged Properties granted pursuant to the Existing Mortgages.
5.15 SOLVENCY. On the Restatement Effective Date, the Borrower
shall have delivered to the Administrative Agent a solvency certificate in
respect of the Borrower and its Subsidiaries from the Chief Financial Officer of
the Borrower which shall be addressed to the Administrative Agent and each of
the Banks and dated the Restatement Effective Date, setting forth the conclusion
that, after giving effect to the Transaction, each of the Borrower and the
Borrower and its Subsidiaries taken as a whole, are not insolvent and will not
be rendered insolvent by the indebtedness incurred in connection therewith, and
will not be left with unreasonably small capital with which to engage in their
businesses and will not have incurred debts beyond their ability to pay debts as
they mature.
5.16 INSURANCE POLICIES. On or prior to the Restatement
Effective Date, the Collateral Agent shall have received evidence of insurance
complying with the requirements of Section 7.03 for the business and properties
of the Borrower and its Subsidiaries, in form and substance satisfactory to the
Administrative Agent and, naming the Collateral Agent as an additional insured
and/or loss payee, as the case may be, and stating that such insurance shall not
be cancelled or revised without 30 days' prior written notice by the insurer to
the Collateral Agent.
5.17 FEES. On or prior to the Restatement Effective Date, the
Borrower shall have paid to the Administrative Agent and the Banks all Fees and
expenses (including, without limitation, reasonable fees and expenses of
counsel) agreed upon by such parties to be paid on or prior to such date.
5.18 NOTICE OF BORROWING; LETTER OF CREDIT REQUEST. (a) Prior
to the making of each Loan (excluding Swingline Loans), the Administrative Agent
shall have received a Notice of Borrowing meeting the requirements of Section
1.03(a). Prior to the making of any Swingline Loan, the Swingline Bank shall
have received a Notice of Borrowing meeting the requirements of Section
1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
respective Letter of Credit Issuer shall have received a Letter of Credit
Request meeting the requirements of Section 2.03.
5.19 PROJECTIONS. On or prior to the Restatement Effective
Date, there shall have been delivered to the Administrative Agent detailed
projected consolidated financial statements of the Borrower and its Subsidiaries
certified by the chief financial officer of the Borrower for the period from
January 1, 1999 to December 31, 2005 (the "Projections"), which Projections (x)
shall reflect the forecasted consolidated income statements, balance sheets and
cash flow (including all relevant assumptions in connection therewith) of the
Borrower and its Subsidiaries after giving effect to the Transaction and (y)
shall be satisfactory (including, with respect to the accounting practices and
procedures to be utilized by the Borrower and its Subsidiaries following the
Transaction) in form and substance to the Administrative Agent.
5.20 REPAYMENT OF EXISTING LOANS AND OTHER OBLIGATIONS UNDER
EXISTING CREDIT AGREEMENT; EXISTING INDEBTEDNESS. (a) On or prior to the
Restatement Effective Date, the
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Borrower shall have repaid in full in cash all outstanding Existing Loans
(together with all interest in respect thereof accrued through the Restatement
Effective Date) and all other outstanding Obligations (as defined in the
Existing Credit Agreement) to the extent then due in accordance with the terms
of the Existing Credit Agreement (the "Refinancing").
(b) On the Restatement Effective Date and after giving effect
to the Transaction, neither the Borrower nor any of its Subsidiaries shall have
any preferred stock or Indebtedness outstanding except for (i) the Loans, (ii)
the Letters of Credit, (iii) the Senior Subordinated Notes and (iv) the Existing
Indebtedness.
5.21 ENVIRONMENTAL REPORTS. On or prior to the Restatement
Effective Date, there shall have been delivered to the Administrative Agent
environmental and hazardous substance analyses with respect to the properties of
the Borrower acquired (or to be acquired) in connection with Acquisition, the
results of which shall be in scope, and in form and substance satisfactory to
the Administrative Agent.
The acceptance of the benefits of each Credit Event shall
constitute a representation and warranty by the Borrower to the Administrative
Agent and each of the Banks that all of the applicable conditions specified
above exist as of that time. All of the certificates, legal opinions and other
documents and papers referred to in this Section 5, unless otherwise specified,
shall be delivered to the Administrative Agent at its Notice Office for the
account of each of the Banks and, except for the Notes, in sufficient
counterparts or copies for each of the Banks and shall be satisfactory in form
and substance to the Administrative Agent.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In
order to induce the Banks to enter into this Agreement and to make the Loans and
issue and/or participate in Letters of Credit provided for herein, the Borrower
makes the following representations and warranties to, and agreements with, the
Banks, in each case after giving effect to the Transaction, all of which shall
survive the execution and delivery of this Agreement and the making of the Loans
and the issuance and/or participation in Letters of Credit (with the making of
each Credit Event thereafter being deemed to constitute a representation and
warranty that the matters specified in this Section 6 are true and correct in
all material respects on and as of the date of each such Credit Event unless
such representation and warranty expressly indicates that it is being made as of
any specific date, in which case such representation and warranty shall be true
and correct in all material respects as of such specific date):
6.01 CORPORATE STATUS. Each of the Borrower and each of its
Subsidiaries (i) is a duly organized and validly existing corporation in good
standing under the laws of the jurisdiction of its organization and has the
corporate power and authority to own its property and assets and to transact the
business in which it is engaged and (ii) has duly qualified and is authorized to
do business and is in good standing in all jurisdictions where it is required to
be so qualified and where the failure to be so qualified could reasonably be
expected to have a Material Adverse Effect.
6.02 CORPORATE POWER AND AUTHORITY. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Documents to
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which it is a party and has taken all necessary corporate action to authorize
the execution, delivery and performance of the Documents to which it is a party.
Each Credit Party has duly executed and delivered each Document to which it is a
party and each such Document constitutes the legal, valid and binding obligation
of such Credit Party enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether enforcement
is sought in equity or at law).
6.03 NO VIOLATION. Neither the execution, delivery and/or
performance by any Credit Party of the Documents to which it is a party nor
compliance by it with the terms and provisions thereof, nor the consummation of
the transactions contemplated therein, (i) will contravene any applicable
provision of any law, statute, rule, regulation, order, writ, injunction or
decree of any court or governmental instrumentality having jurisdiction over it,
(ii) will conflict or be inconsistent with, or result in any breach of, any of
the terms, covenants, conditions or provisions of, or constitute a default
under, or (other than pursuant to the Security Documents) result in the creation
or imposition of (or the obligation to create or impose) any Lien upon any of
the property or assets of the Borrower or any of its Subsidiaries pursuant to
the terms of, any material indenture, mortgage, deed of trust, agreement or
other instrument to which the Borrower or any of its Subsidiaries is a party or
by which it or any of its material property or assets are bound or to which it
may be subject or (iii) will violate any provision of the certificate of
incorporation or by-laws (or equivalent organizational documents) of the
Borrower or any of its Subsidiaries.
6.04 LITIGATION. There are no actions, suits or proceedings
pending or, to the Borrower's knowledge, threatened with respect to the Borrower
or any of its Subsidiaries (i) that are likely to have a Material Adverse Effect
or (ii) that could reasonably be expected to have a material adverse effect on
(a) the rights or remedies of the Banks or on the ability of any Credit Party to
perform its obligations to them hereunder or under the other Credit Documents to
which it is a party or (b) the ability to consummate the Transaction.
6.05 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of
all Revolving Loans may be used (i) in amounts up to $23,000,000 on and after
the Restatement Effective Date to effect the Transaction and to pay fees and
expenses relating to the Transaction and (ii) for the general corporate and
working capital purposes of the Borrower and its Subsidiaries (including,
without limitation, for Permitted Acquisitions).
(b) The proceeds of all Swingline Loans shall be utilized for
the general corporate and working capital purposes of the Borrower and its
Subsidiaries (including, without limitation, for Permitted Acquisitions).
(c) Neither the making of any Loan hereunder, nor the use of
the proceeds thereof, will violate or be inconsistent with the provisions of
Regulation T, U or X of the Board of Governors of the Federal Reserve System and
no part of the proceeds of any Loan will be used
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to purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock.
6.06 GOVERNMENTAL APPROVALS. Except for filings and recordings
in connection with the Security Documents and the Acquisition that have been or
will be made, no material order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, any
foreign or domestic governmental or public body or authority, or any subdivision
thereof, is required to authorize or is required in connection with (i) the
execution, delivery and performance of any Document or (ii) the legality,
validity, binding effect or enforceability of any Document.
6.07 INVESTMENT COMPANY ACT. Neither the Borrower nor any of
its Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
6.08 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower
nor any of its Subsidiaries is a "holding company," or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
6.09 TRUE AND COMPLETE DISCLOSURE. All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on behalf of
the Borrower or any of its Subsidiaries in writing to the Administrative Agent
or any Bank for purposes of or in connection with this Agreement or any
transaction contemplated herein is true and accurate in all material respects on
the date as of which such information is dated or certified and not incomplete
by omitting to state any material fact necessary to make such information (taken
as a whole) not misleading at such time in light of the circumstances under
which such information was provided. There is no fact known to the Borrower
which would be reasonably likely to have a Material Adverse Effect which has not
been disclosed herein or in such other documents, certificates and statements
furnished to the Banks for use in connection with the transactions contemplated
hereby.
6.10 FINANCIAL CONDITION; FINANCIAL STATEMENTS. (a) On and as
of the Restatement Effective Date, on a PRO FORMA basis after giving effect to
the Transaction and to all Indebtedness incurred, and to be incurred, and Liens
created, and to be created, by each Credit Party in connection therewith, (x)
the sum of the assets, at a fair valuation, of the Borrower and its Subsidiaries
taken as a whole will exceed its debts, (y) the Borrower and its Subsidiaries
taken as a whole will not have incurred or intended to, or believe that they
will, incur debts beyond their ability to pay such debts as such debts mature
and (z) the Borrower and its Subsidiaries taken as a whole will not have
unreasonably small capital with which to conduct their businesses. For purposes
of this Section 6.10(a), "debt" means any liability on a claim, and "claim"
means (i) right to payment whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (ii) right to an equitable
remedy for breach of performance if such breach gives rise
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to a payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(b) The consolidated balance sheets of the Borrower as of
December 31, 1997 and December 31, 1998 and the related consolidated statements
of income and cash flows of the Borrower for the fiscal years ended as of said
dates, which have been audited by Crowe, Chizek and Company, LLP, independent
certified public accountants, who delivered unqualified audit opinions in
respect therewith present fairly the consolidated financial position of the
Borrower at the dates of said statements and the results for the period covered
thereby and have been prepared in accordance with GAAP consistently applied,
except to the extent provided in the notes to said financial statements.
(c) Since December 31, 1998, and after giving effect to the
Transaction, nothing has occurred that has had or could reasonably be expected
to have a Material Adverse Effect.
(d) The Projections and PRO FORMA financial information
contained in such materials are based on good faith estimates and assumptions
believed by such Persons to be reasonable at the time made, it being recognized
by the Banks that such Projections as to future events and PRO FORMA adjustments
are not to be viewed as facts and that actual results during the period or
periods covered by any such projections may differ from the projected results or
PRO FORMA adjustments and that such differences may be material. On the
Restatement Effective Date, the Borrower believed that the Projections were
reasonable and attainable.
(e) Except as reflected in the financial statements and the
notes thereto described in Section 6.10(b), as of the Restatement Effective Date
there were no liabilities or obligations with respect to the Borrower or any of
its Subsidiaries of a nature (whether absolute, accrued, contingent or otherwise
and whether or not due) which, either individually or in aggregate, would be
material to the Borrower and its Subsidiaries taken as a whole.
6.11 SECURITY INTERESTS. On and after the Restatement
Effective Date, each of the Security Documents create, as security for the
Obligations purported to be secured thereby, a valid and enforceable perfected
security interest in and Lien on all of the Collateral subject thereto, superior
to and prior to the rights of all third Persons and subject to no other Liens
(except (x) to the extent expressly set forth in the Security Documents, (y)
that the Collateral may be subject to the security interests evidenced by
Permitted Liens relating thereto and (z) that the Mortgaged Properties also may
be subject to Permitted Encumbrances relating thereto), in favor of the
Collateral Agent. No filings or recordings are required in order to perfect the
security interests created under any Security Document except for filings or
recordings required in connection with any such Security Document (other than
the Pledge Agreement) which shall have been made prior to the date hereof (or
are the subject of arrangements, satisfactory to the Administrative Agent, for
filing on or promptly after the date hereof).
6.12 REPRESENTATIONS AND WARRANTIES IN DOCUMENTS. All
representations and warranties of the Credit Parties and, to the best knowledge
of the Borrower, of all other Persons party thereto (except as taken into
account in the financial information described in Section 6.10), set forth in
the Documents were true and correct in all material respects as of the time such
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representations and warranties were made and shall be true and correct in all
material respects as of the Restatement Effective Date as if such
representations and warranties were made on and as of such date, unless stated
to relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier
date.
6.13 CONSUMMATION OF TRANSACTION. As of the Restatement
Effective Date, the Transaction shall have been consummated in accordance with
the terms and conditions of the Transaction Documents and all applicable laws.
All applicable waiting periods with respect thereto have or, prior to the time
when required, will have, expired without, in all such cases, any action being
taken by any competent authority which restrains, prevents, or imposes material
adverse conditions upon the consummation of the Transaction. As of the
Restatement Effective Date, there does not exist any judgment, order, or
injunction prohibiting the consummation of the Transaction, or the making of the
Loans or the performance by any Credit Party of its respective obligations under
the Documents.
6.14 TAX RETURNS AND PAYMENTS. Each of the Borrower and each
of its Subsidiaries has filed all federal income tax returns and all other
material tax returns, domestic and foreign, required to be filed by it and has
paid, all material taxes and assessments payable by it which have become due,
other than those contested in good faith and adequately disclosed and fully
provided for on the financial statements of the Borrower and its Subsidiaries in
accordance with GAAP. The Borrower and each of its Subsidiaries have paid, or
have provided adequate reserves (in the good faith judgment of the management of
the Borrower) for the payment of, all federal, state and foreign income taxes
applicable for all prior fiscal years and for the current fiscal year to date.
There is no material action, suit, proceeding, investigation, audit or claim now
pending or, to the knowledge of the Borrower or any of its Subsidiaries,
threatened by any authority regarding any taxes relating to the Borrower or any
of its Subsidiaries. Neither the Borrower nor any of its Subsidiaries has
entered into an agreement or waiver or been requested to enter into an agreement
or waiver extending any statute of limitations relating to the payment or
collection of taxes of the Borrower or any of its Subsidiaries, or is aware of
any circumstances that would cause the taxable years or other taxable periods of
the Borrower or any of its Subsidiaries not to be subject to the normally
applicable statute of limitations.
6.15 COMPLIANCE WITH ERISA. Annex IV sets forth each Plan;
each Plan (and each related trust, insurance contract or fund) is in substantial
compliance with its terms and with all applicable laws, including without
limitation ERISA and the Code; each Plan (and each related trust, if any) which
is intended to be qualified under Section 401(a) of the Code has received a
determination letter from the Internal Revenue Service to the effect that it
meets the requirements of Sections 401(a) and 501(a) of the Code; no Reportable
Event has occurred; no Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has an Unfunded
Current Liability; no Plan which is subject to Section 412 of the Code or
Section 302 of ERISA has an accumulated funding deficiency, within the meaning
of such sections of the Code or ERISA, or has applied for or received a waiver
of an accumulated funding deficiency or an extension of any amortization period,
within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA;
all contributions required to be made with respect to a Plan have been timely
made; neither the Borrower nor any Subsidiary of
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the Borrower nor any ERISA Affiliate has incurred any material liability
(including any indirect, contingent or secondary liability) to or on account of
a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or
expects to incur any such liability under any of the foregoing sections with
respect to any Plan; no condition exists which presents a material risk to the
Borrower or any Subsidiary of the Borrower or any ERISA Affiliate of incurring a
liability to or on account of a Plan pursuant to the foregoing provisions of
ERISA and the Code; no proceedings have been instituted to terminate or appoint
a trustee to administer any Plan which is subject to Title IV of ERISA; no
action, suit, proceeding, hearing, audit or investigation with respect to the
administration, operation or the investment of assets of any Plan (other than
routine claims for benefits) is pending, expected or threatened; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of the Borrower and its
Subsidiaries and its ERISA Affiliates to all Plans which are multiemployer plans
(as defined in Section 4001(a)(3) of ERISA) in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of each
such Plan ended prior to the date of the most recent Credit Event, would not
exceed $50,000; each group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) of the Borrower or any Subsidiary or any ERISA
Affiliate which covers or has covered employees or former employees of the
Borrower, any Subsidiary of the Borrower, or any ERISA Affiliate has at all
times been operated in compliance with the provisions of Part 6 of subtitle B of
Title I of ERISA and Section 4980B of the Code; no lien imposed under the Code
or ERISA on the assets of the Borrower or any Subsidiary of the Borrower or any
ERISA Affiliate exists or is likely to arise on account of any Plan; and the
Borrower and its Subsidiaries may cease contributions to or terminate any
employee benefit plan maintained by any of them without incurring any material
liability.
6.16 SUBSIDIARIES; SUBSIDIARY RESTRICTIONS. (a) Annex V lists
each Subsidiary of the Borrower (and the direct and indirect ownership interest
of the Borrower therein), in each case existing on the Restatement Effective
Date.
(b) There are no restrictions on the Borrower or any of its
Subsidiaries which prohibit or otherwise restrict the transfer of cash or other
assets from any Subsidiary of the Borrower to the Borrower, other than
prohibitions or restrictions existing under or by reason of (i) this Agreement
and the other Credit Documents, (ii) applicable law, (iii) customary
non-assignment provisions entered into in the ordinary course of business and
consistent with past practices, (iv) any restriction or encumbrance with respect
to a Subsidiary of the Borrower imposed pursuant to an agreement which has been
entered into for the sale or disposition of all or substantially all of the
capital stock or assets of such Subsidiary, so long as such sale or disposition
is permitted under this Agreement, and (v) any documents or instruments
governing the terms of any Indebtedness or other obligations secured by
Permitted Liens, PROVIDED that such prohibitions or restrictions apply only to
the assets subject to such Permitted Liens.
6.17 PATENTS, ETC. Except as set forth on Annex VI, the
Borrower and each of its Subsidiaries has the right to use all material patents,
trademarks, service marks, trade names, copyrights and licenses, free from
materially burdensome restrictions, that are used for the operation of their
businesses taken as a whole as presently conducted.
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6.18 POLLUTION AND OTHER REGULATIONS. (a) The Borrower and
each of its Subsidiaries is in compliance with all applicable Environmental Laws
governing its business for which failure to comply is likely to have a Material
Adverse Effect, and neither the Borrower nor any of its Subsidiaries is liable
for any material penalties, fines or forfeitures for failure to comply with any
of the foregoing in the manner set forth above. Except as set forth on Annex
VII, all licenses, permits, registrations or approvals required for the business
of the Borrower and each of its Subsidiaries, as conducted as of the Restatement
Effective Date, under any Environmental Law have been secured and each of the
Borrower and each of its Subsidiaries is in substantial compliance therewith,
except such licenses, permits, registrations or approvals the failure to secure
or to comply therewith is not likely to have a Material Adverse Effect. Neither
the Borrower nor any of its Subsidiaries is in any respect in noncompliance
with, breach of or default under any applicable writ, order, judgment,
injunction, or decree to which the Borrower or such Subsidiary is a party or
which would affect the ability of the Borrower or such Subsidiary to conduct its
business and no event has occurred and is continuing which, with the passage of
time or the giving of notice or both, would constitute noncompliance, breach of
or default thereunder, except in each such case, such noncompliance, breaches or
defaults as are not likely to, in the aggregate, have a Material Adverse Effect.
Except as set forth in Annex VII, there are as of the Restatement Effective Date
no Environmental Claims pending or, to the best knowledge of the Borrower,
threatened, against the Borrower or any of its Subsidiaries, or which (a)
question the validity, term or entitlement of the Borrower or any of its
Subsidiaries for any permit, license, order or registration required for the
operation of any facility which the Borrower or any of its Subsidiaries
currently operates and (b) wherein an unfavorable decision, ruling or finding
would be reasonably likely to have a Material Adverse Effect. There are no
facts, circumstances, conditions or occurrences on any Real Property at any time
owned or operated by the Borrower or any of its Subsidiaries or, to the
knowledge of the Borrower, on any property adjacent to any such Real Property
that could reasonably be expected (i) to form the basis of an Environmental
Claim against the Borrower, any of its Subsidiaries or any currently owned or
operated Real Property of the Borrower or any of its Subsidiaries, or (ii) (a)
to cause any such Real Property currently owned or operated to be subject to any
restrictions on the occupancy or use of such Real Property under any
Environmental Law or (b) to cause any such owned Real Property to be subject to
any restrictions on the ownership or transferability of such owned Real Property
under any Environmental Law, except in each such case, such Environmental Claims
or restrictions that individually or in the aggregate are not reasonably likely
to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i)
generated, used, treated or stored on, or transported to or from, any Real
Property of the Borrower or any of its Subsidiaries or (ii) released on any such
Real Property, in each case under clauses (i) and (ii) where such occurrence or
event individually or in the aggregate is reasonably likely to have a Material
Adverse Effect.
6.19 PROPERTIES. The Borrower and each of its Subsidiaries
have good title to all material properties owned by them, free and clear of all
Liens, other than (i) as referred to in the consolidated balance sheet referred
to in Section 6.10(b) or in the notes thereto or (ii) Permitted Liens. Annex
VIII contains a true and complete list of each Real Property owned or leased by
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the Borrower or any of its Subsidiaries on the Restatement Effective Date and
the type of interest therein held by the Borrower or the respective Subsidiary.
6.20 LABOR RELATIONS. Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a Material Adverse Effect. There is (i) no unfair labor
practice complaint pending against the Borrower or any Subsidiary of the
Borrower or, to the Borrower's knowledge, threatened against any of them, before
the National Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Borrower or any Subsidiary of the Borrower or, to the Borrower's
knowledge, threatened against any of them, (ii) no strike, labor dispute, work
slowdown or stoppage pending against the Borrower or any Subsidiary of the
Borrower or, to the Borrower's knowledge, threatened against any of them and
(iii) no union representation petition existing with respect to the employees of
the Borrower or any Subsidiary of the Borrower and no union organizing
activities are taking place, except with respect to any matter specified in
clause (i), (ii) or (iii) above, either individually or in the aggregate, such
as is not reasonably likely to have a Material Adverse Effect.
6.21 EXISTING INDEBTEDNESS. Annex IX sets forth a true and
complete list of all Indebtedness of the Borrower and each of its Subsidiaries
as of the Restatement Effective Date and which is to remain outstanding after
giving effect to the Transaction (excluding the Loans, the Letters of Credit and
the Senior Subordinated Notes, collectively the "Existing Indebtedness"), in
each case showing the aggregate principal amount thereof and the name of the
respective borrower (or issuer) and any other entity which directly or
indirectly guaranteed such debt.
6.22 CAPITALIZATION. On the Restatement Effective Date and
after giving effect to the Transaction and the other transactions contemplated
hereby, the authorized capital stock of the Borrower shall consist of (x) 1,035
shares of Class A Common Stock of which 135.835 shares shall be issued and
outstanding, (y) 215 shares of Class B Common Stock of which no shares shall be
issued and outstanding and (z) no shares of preferred stock. All such
outstanding shares have been duly and validly issued, are fully paid and
nonassessable and are free of preemptive rights. Except as set forth on Annex X,
neither the Borrower nor any of its Subsidiaries has outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock.
6.23 SENIOR SUBORDINATED NOTES. (a) As of the Restatement
Effective Date, the Senior Subordinated Notes have been duly authorized, issued
and delivered in accordance with applicable law and the offering memorandum
relating thereto, and such offering memorandum, as of the date of its issue,
does not contain any untrue statement of a material fact nor omit to state a
material fact necessary in order to make the statements contained therein, in
the light of the circumstances under which they were made, not misleading.
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(b) The subordination provisions contained in the Senior
Subordinated Notes and in the other Senior Subordinated Note Documents are
enforceable against the Borrower and the holders of the Senior Subordinated
Notes, and all Obligations are within the definition of "Senior Debt" and
"Designated Senior Debt" included in such subordination provisions.
6.24 ADDRESSING THE YEAR 2000 PROBLEM. All Information Systems
and Equipment are either Year 2000 Compliant, or any reprogramming, remediation,
or any other corrective action, including the internal testing of all such
Information Systems and Equipment has been completed. Further, to the extent
that such reprogramming/remediation and testing action is required, the cost
thereof, as well as the cost of the reasonably foreseeable consequences of
failure to become Year 2000 Compliant, to the Borrower and its Subsidiaries
(including, without limitation, reprogramming errors and the failure of other
systems or equipment) will not result in a Default or a Material Adverse Effect.
SECTION 7. AFFIRMATIVE COVENANTS. The Borrower covenants and
agrees that as of the Restatement Effective Date and thereafter for so long as
this Agreement is in effect and until the Total Revolving Loan Commitment has
terminated, no Letters of Credit or Notes are outstanding and the Loans and
Unpaid Drawings, together with interest, Fees and all other Obligations (other
than indemnities described in Section 12.13 hereof which are not then due and
payable) incurred her under, are paid in full:
7.01 INFORMATION COVENANTS. The Borrower will furnish to each
Bank:
(a) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the
close of each fiscal year of the Borrower, the consolidated balance sheet of the
Borrower and its Subsidiaries, as at the end of such fiscal year and the related
consolidated statements of income and retained earnings and of cash flows for
such fiscal year, in each case setting forth comparative consolidated figures
for the preceding fiscal year, and in the case of the consolidated financial
statements, examined by Crowe, Chizek and Company LLP, any "big six" independent
certified public accountants or such other independent certified public
accountants of recognized national standing acceptable to the Administrative
Agent whose opinion shall not be qualified as to the scope of audit or as to the
status of the Borrower or any of its Subsidiaries as a going concern, together
with a certificate of such accounting firm stating that in the course of its
regular audit of the business of the Borrower, which audit was conducted in
accordance with generally accepted auditing standards, such accounting firm has
obtained no knowledge of any Default or Event of Default which has occurred and
is continuing or, if in the opinion of such accounting firm such a Default or
Event of Default has occurred and is continuing, a statement as to the nature
thereof.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and
in any event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and its Subsidiaries, as at the end of such quarterly
accounting period and the related consolidated statements of income and retained
earnings and of cash flows for such quarterly accounting period and for the
elapsed portion of the fiscal year ended with the last day of such quarterly
accounting period, and in each case setting forth comparative consolidated
figures for the related periods in the prior fiscal year,
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all of which shall be certified by the chief financial officer or controller of
the Borrower, subject to changes resulting from audit and normal year-end audit
adjustments.
(c) MONTHLY REPORTS. As soon as practicable, and in any event
within 30 days after the end of each monthly accounting period of each fiscal
year of the Borrower (other than the last monthly accounting period in such
fiscal year), monthly reports in a form reasonably satisfactory to the
Administrative Agent, which shall include the consolidated balance sheet of the
Borrower and its Subsidiaries, as at the end of such monthly accounting period,
and the related consolidated statements of income and cash flow for such monthly
accounting period, setting forth (i) comparative figures to the budget prepared
in accordance with Section 7.01(d) and (ii) in the case of each monthly
accounting period commencing with September 1999, comparative figures to the
figures for the related periods in the prior fiscal year.
(d) BUDGETS; ETC. Not more than 60 days after the commencement
of each fiscal year of the Borrower, a budget of the Borrower and its
Subsidiaries in reasonable detail for each of the twelve months of such fiscal
year. Together with each delivery of consolidated financial statements pursuant
to Sections 7.01(a), (b) and (c), a comparison of the current year to date
financial results against the budgets required to be submitted pursuant to this
clause (d) shall be presented.
(e) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Sections 7.01(a) (b) and (c), a certificate
of the chief financial officer, controller or other Authorized Officer of the
Borrower to the effect that no Default or Event of Default exists or, if any
Default or Event of Default does exist, specifying the nature and extent
thereof, which certificate, in the case of the certificate delivered pursuant to
(x) Sections 7.01(a) and (b), shall set forth the calculations required to
establish whether the Borrower and its Subsidiaries were in compliance with the
provisions of Sections 8.05, 8.08(a) (but only to the extent the Borrower has
made payments of the type described in clause (ii) thereof in such fiscal
quarter or year), 8.10 and 8.11 as at the end of such fiscal quarter or year, as
the case may be and (y) Section 7.01(c), shall set forth the calculation of the
Leverage Ratio, together with the calculations required to establish such ratio;
PROVIDED that nothing contained in this clause (y) shall require any calculation
to be made on a monthly basis if such calculation is not otherwise required to
be made on a monthly basis.
(f) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any
event within three Business Days after the Borrower obtains knowledge thereof,
notice of (x) the occurrence of any event which constitutes a Default or an
Event of Default, which notice shall specify the nature thereof, the period of
existence thereof and what action the Borrower proposes to take with respect
thereto or (y) the commencement of or any significant development in any
litigation or governmental proceeding pending against the Borrower or any of its
Subsidiaries which is reasonably likely to have a Material Adverse Effect or is
reasonably likely to have a material adverse effect on the ability of the
Borrower or any other Credit Party to perform its obligations hereunder or under
any other Credit Document.
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(g) ENVIRONMENTAL MATTERS. Promptly upon, and in any event
within ten Business Days after, an officer of the Borrower or any of its
Subsidiaries obtains knowledge thereof, notice of one or more of the following
environmental matters, unless such environmental matters could not, individually
or when aggregated with all other such environmental matters, be reasonably
expected to have a Material Adverse Effect:
(i) any pending or threatened Environmental
Claim against the Borrower or any of its Subsidiaries or any
Real Property owned or operated by the Borrower or any of its
Subsidiaries;
(ii) any condition or occurrence on or
arising from any Real Property owned or operated by the
Borrower or any of its Subsidiaries that (a) results in
noncompliance by the Borrower or any of its Subsidiaries with
any applicable Environmental Law or (b) could reasonably be
expected to form the basis of an Environmental Claim against
the Borrower or any of its Subsidiaries or any such Real
Property;
(iii) any condition or occurrence on any
Real Property owned or operated by the Borrower or any of its
Subsidiaries that could reasonably be expected to cause such
Real Property to be subject to any restrictions on the
ownership, occupancy, use or transferability by the Borrower
or any of its Subsidiaries of such Real Property under any
Environmental Law; and
(iv) the taking of any removal or remedial
action in response to the actual or alleged presence of any
Hazardous Material on any Real Property owned or operated by
the Borrower or any of its Subsidiaries as required by any
Environmental Law or any governmental or other administrative
agency; PROVIDED that in any event the Borrower shall deliver
to each Bank all notices received by it or any of its
Subsidiaries from any government or governmental agency under,
or pursuant to, CERCLA.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
Borrower's or such Subsidiary's response thereto. In addition, the Borrower will
provide the Banks with copies of all material communications with any government
or governmental agency relating to Environmental Laws, all material
communications with any Person (other than its attorneys) relating to any
Environmental Claim of which notice is required to be given pursuant to this
Section 8.01(g), and such detailed reports of any such Environmental Claim as
may reasonably be requested by the Banks.
(h) AUDITORS' REPORTS. Promptly upon receipt thereof, a copy
of each final report or "management letter" submitted to the Borrower by its
independent accountants in connection with any annual, interim or special audit
made by it of the books of the Borrower.
(i) OTHER INFORMATION. From time to time, such other
information or documents (financial or otherwise) as the Administrative Agent on
its own behalf or on behalf of the Required Banks may reasonably request from
time to time.
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7.02 BOOKS, RECORDS AND INSPECTIONS; BANK MEETINGS. (a) The
Borrower will, and will cause each of its Subsidiaries to, permit, upon
reasonable notice to the chief financial officer, controller or any other
Authorized Officer of the Borrower, (x) officers and designated representatives
of the Administrative Agent or the Required Banks to visit and inspect any of
the properties or assets of the Borrower or any of its Subsidiaries in
whomsoever's possession, and to examine the books of account of the Borrower or
any of its Subsidiaries and discuss the affairs, finances and accounts of the
Borrower or of any of its Subsidiaries with, and be advised as to the same by,
its and their officers and independent accountants, all at such reasonable times
and intervals and to such reasonable extent as the Administrative Agent or the
Required Banks may desire and (y) not more than once per year (and at any time
during the occurrence of a Default or an Event of Default) the Administrative
Agent, or a third party designated by the Administrative Agent, to conduct, at
the Borrower's expense, an audit of the accounts receivable and inventories of
the Borrower and its Subsidiaries at such times as the Administrative Agent
shall reasonably require.
(b) At the request of the Administrative Agent, the Borrower
shall within 120 days after the close of each fiscal year of the Borrower hold a
meeting at a time and place selected by the Borrower and acceptable to the
Administrative Agent with all of the Banks at which meeting shall be reviewed
the financial results of the previous fiscal year and the financial condition of
the Borrower and its Subsidiaries and the budgets presented for the current
fiscal year of the Borrower and its Subsidiaries.
7.03 MAINTENANCE OF PROPERTY; INSURANCE. The Borrower will,
and will cause each of its Subsidiaries to, at all times maintain in full force
and effect insurance in such amounts, covering such risks and liabilities and
with such deductibles or self-insured retentions as are in accordance with
normal industry practice. At any time that insurance at the levels described in
Annex XI is not being maintained by the Borrower and its Subsidiaries, the
Borrower will notify the Banks in writing thereof and, if thereafter notified by
the Administrative Agent to do so, the Borrower will, and will cause each of its
Subsidiaries to, obtain insurance at such levels at least equal to those set
forth in Annex XI to the extent then generally available, or otherwise as are
acceptable to the Administrative Agent. The Borrower will, and will cause each
of its Subsidiaries to, furnish on the Restatement Effective Date and annually
thereafter to the Administrative Agent, upon its request, a summary of the
insurance carried together with certificates of insurance and other evidence of
such insurance, if any, naming the Collateral Agent as an additional insured
and/or loss payee.
7.04 PAYMENT OF TAXES. The Borrower will pay and discharge,
and will cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which material penalties attach thereto, and all lawful claims for sums that
have become due and payable which, if unpaid, might become a Lien not otherwise
permitted pursuant to Section 8.03(a) or charge upon any properties of the
Borrower or any of its Subsidiaries, PROVIDED that neither the Borrower nor any
Subsidiary of the Borrower shall be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith and by
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proper proceedings if it has maintained adequate reserves (in the good faith
judgment of the management of the Borrower) with respect thereto in accordance
with GAAP.
7.05 CORPORATE FRANCHISES. The Borrower will do, and will
cause each of its Subsidiaries to do, or cause to be done, all things necessary
to preserve and keep in full force and effect its existence, material rights and
authority, PROVIDED that any transaction permitted by Section 8.02 will not
constitute a breach of this Section 7.05.
7.06 COMPLIANCE WITH STATUTES, ETC. The Borrower will, and
will cause each of its Subsidiaries to, comply with all applicable statutes
(including, without limitation, all applicable Environmental Laws), regulations
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property except for such non-compliance which would not have a
Material Adverse Effect or would not have a material adverse effect on the
ability of any Credit Party to perform its obligations under any Credit Document
to which it is party.
7.07 ERISA. As soon as possible and, in any event, within 10
days after the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
knows or has reason to know of the occurrence of any of the following, the
Borrower will deliver to each of the Banks a certificate of the chief financial
officer of the Borrower setting forth the full details as to such occurrence and
the action, if any, which the Borrower, a Subsidiary or an ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given to or filed with or by the Borrower, the Subsidiary, the ERISA
Affiliate, the PBGC, a Plan participant or the Plan administrator with respect
thereto: that a Reportable Event has occurred; (except to the extent that the
Borrower has previously delivered to the Banks a certificate and notices (if
any) concerning such event pursuant to the next clause hereof); that a
contributing sponsor as defined in Section 4001(a)(13) of ERISA of a Plan
subject to the requirements of PBGC Regulation Section 4043.61 (without regard
to subparagraph (b)(1) thereof) and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following 30 days; that an
accumulated funding deficiency within the meaning of Section 412 of the Code or
Section 302 of ERISA has been incurred or an application may be or has been made
for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA, with respect to a Plan;
that any contribution required to be made with respect to a Plan has not been
timely made; that a Plan has been or may be terminated, reorganized, partitioned
or declared insolvent under Title IV of ERISA; that a Plan has an Unfunded
Current Liability; that proceedings may be or have been instituted to terminate
a Plan which is subject to Title IV of ERISA; that a proceeding has been
instituted pursuant to Section 515 of ERISA to collect a delinquent contribution
to a Plan; that the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate will or may incur any liability to or on account of the termination of
or withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975 or
4980 of the Code or Section 409, 502(i) or 502(l) of ERISA or with respect to a
group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2)
of the Code) under Section 4980B of the Code; or that the
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Borrower or any Subsidiary of the Borrower may incur any material liability
pursuant to any employee welfare benefit plan (as defined in Section 3(l) of
ERISA) that provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any Plan other than any Plan
subject to Title IV of ERISA and/or Section 412 of the Code. The Borrower will
deliver to the Banks (i) a complete copy of the annual report (on Internal
Revenue Service Form 5500-series) of each Plan (including, to the extent
required, the related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information) required to be
filed with the Internal Revenue Service and (ii) copies of any records,
documents or other information that must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA. In addition to any certificates
or notices delivered to the Banks pursuant to the first sentence hereof, copies
of annual reports and any records, documents and other information required to
be furnished to the PBGC, and any material notices received by the Borrower any
Subsidiary of the Borrower or any ERISA Affiliate with respect to a Plan shall
be delivered to the Banks no later than 10 days after the date such report has
been filed with the Internal Revenue Service or such records, documents and/or
information has been furnished to the PBGC or such notice has been received by
the Borrower, the Subsidiary or the ERISA Affiliate, as applicable.
7.08 GOOD REPAIR. The Borrower will, and will cause each of
its Subsidiaries to, ensure that its material properties and equipment used or
useful in its business in whomsoever's possession they may be, are kept, in all
material respects, in good repair, working order and condition, normal wear and
tear excepted, and, subject to Section 8.05, that from time to time there are
made in such properties and equipment all needful and proper repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto, to
the extent and in the manner useful or customary for companies in similar
businesses.
7.09 END OF FISCAL YEARS; FISCAL QUARTERS. The Borrower will,
for financial reporting and tax purposes, cause (i) each of its, and each of its
Subsidiaries' fiscal years to end on December 31 of each year and (ii) each of
its, and each of its Subsidiaries' fiscal quarters to end on March 31, June 30,
September 30 and December 31 of each year.
7.10 USE OF PROCEEDS. All proceeds of the Loans shall be used
as provided in Section 6.05.
7.11 ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) Within 30
days following the Restatement Effective Date, the Borrower will pledge to the
Collateral Agent, or cause to be pledged, pursuant to the Pledge Agreement (or a
comparable pledge agreement in form and substance satisfactory to the
Administrative Agent), 66-2/3% of the equity interest of GEO Holdings (Europe)
owned by the Borrower or any domestic Subsidiary of the Borrower, along with
evidence that all other actions necessary or, in the reasonable opinion of the
Administrative Agent, desirable, to perfect the security interest purported to
be created by such pledge agreement have been taken.
(b) The Borrower will, and will cause each of its Subsidiaries
to, grant to the Collateral Agent security interests and mortgages (each an
"Additional Mortgage") in such
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owned Real Property of the Borrower and its Subsidiaries acquired after the
Restatement Effective Date as may be requested from time to time by the
Administrative Agent (each such Real Property, an "Additional Mortgaged
Property"). Such Additional Mortgages shall be granted pursuant to documentation
reasonably satisfactory in form and substance to the Administrative Agent and
shall constitute valid and enforceable Liens superior to and prior to the rights
of all third Persons and subject to no other Liens except as are permitted by
Section 8.03. The Additional Mortgages or instruments related thereto shall be
duly recorded or filed in such manner and in such places as are required by law
to establish, perfect, preserve and protect the Liens in favor of the Collateral
Agent required to be granted pursuant to the Additional Mortgages and all taxes,
fees and other charges payable in connection therewith shall have been paid in
full by the Borrower.
(c) The Borrower will, and will cause each of its Subsidiaries
to, at the expense of the Borrower, make, execute, endorse, acknowledge, file
and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require. Furthermore, the
Borrower will cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be requested by the
Administrative Agent to assure themselves that this Section 7.11 has been
complied with.
(d) The Borrower agrees that each action required by clauses
(b) and (c) above in this Section 7.11 shall be completed as soon as possible,
but in no event later than 60 days after such action is requested to be taken by
the Administrative Agent or the Required Banks, PROVIDED that in no event shall
the Borrower be required to take any action, other than using its reasonable
commercial efforts without any material expenditure, to obtain consents from
third parties with respect to its compliance with such clauses (b) and (c).
(e) In the event that the Administrative Agent or the Required
Banks at any time after the Restatement Effective Date determine in its or their
good faith discretion that real estate appraisals satisfying the requirements of
FIRREA (any such appraisal a "Required Appraisal") are or were required to be
obtained, or should be obtained, in each case, in accordance with FIRREA, in
connection with the Mortgaged Properties, then, within 120 days after receiving
written notice thereof from the Administrative Agent or the Required Banks, as
the case may be, such Required Appraisal shall be delivered, at the expense of
the Borrower, to the Administrative Agent which Required Appraisal, and the
respective appraiser, shall be satisfactory to the Administrative Agent.
7.12 YEAR 2000 COMPATIBILITY. The Borrower and each of its
Subsidiaries will ensure that its Information Systems and Equipment are at all
times after January 1, 1999 Year 2000 Compliant, except insofar as the failure
to do so will not result in a Material Adverse Effect, and shall notify the
Administrative Agent and any Bank promptly upon detecting any failure of the
Information Systems and Equipment to be Year 2000 Compliant, except insofar as
such failure is not likely to result in a Material Adverse Effect. In addition,
the Borrower shall
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provide the Administrative Agent with such information about its year 2000
computer readiness (including, without limitation, information as to contingency
plans, budgets and testing results) as the Administrative Agent shall reasonably
request.
SECTION 8. NEGATIVE COVENANTS. The Borrower covenants and
agrees that as of the Restatement Effective Date and thereafter for so long as
this Agreement is in effect and until the Total Revolving Loan Commitment has
terminated, no Letters of Credit or Notes are outstanding and the Loans and
Unpaid Drawings, together with interest, Fees and all other Obligations (other
than indemnities described in Section 12.13 which are not then due and payable)
incurred hereunder, are paid in full:
8.01 CHANGES IN BUSINESS. The Borrower will not, and will not
permit any of its Subsidiaries to, materially alter the character of the
business of the Borrower and its Subsidiaries from that conducted on the
Restatement Effective Date (after giving effect to the consummation of the
Transaction), provided that this Section 8.01 shall not restrict the making of
any investment expressly permitted by Section 8.06 or the consummation of any
transaction expressly permitted by Section 8.02 (except to the extent that
8.02(m)(iii) requires that Permitted Acquisitions be made in Permitted
Businesses).
8.02 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC.
The Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs, or enter into any transaction of merger or
consolidation, or sell or otherwise dispose of all or any part of its property
or assets (other than inventory or obsolete equipment or excess equipment no
longer needed in the conduct of the business in the ordinary course of business)
or purchase, lease or otherwise acquire all or any part of the property or
assets of any Person (other than leases, purchases or other acquisitions of
inventory, materials and equipment in the ordinary course of business), or agree
to do any of the foregoing at any future time, except that the following shall
be permitted:
(a) any Wholly-Owned Subsidiary of the
Borrower may be merged or consolidated with or into, or be
liquidated into, the Borrower or a Subsidiary Guarantor that
is a Wholly-Owned Domestic Subsidiary of the Borrower (so long
as the Borrower or such Subsidiary Guarantor, as the case may
be, is the surviving corporation), or all or any part of the
business, properties or assets of any Wholly-Owned Subsidiary
of the Borrower may be conveyed, leased, sold or transferred
to the Borrower or any Subsidiary Guarantor that is a
Wholly-Owned Domestic Subsidiary of the Borrower;
(b) Consolidated Capital Expenditures to the
extent within the limitations set forth in Section 8.05;
(c) the investments, acquisitions and
transfers or dispositions of properties permitted pursuant to
Section 8.06;
(d) the Borrower and its Subsidiaries may
lease (as lessee) real or personal property in the ordinary
course of business (so long as such lease does not create a
Capitalized Lease Obligation not otherwise permitted by
Section 8.04(c));
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<PAGE> 53
(e) licenses or sublicenses by the Borrower
and its Subsidiaries of software, customer lists, trademarks,
service marks, patents, trade names and copyrights and other
intellectual property in the ordinary course of business,
PROVIDED that such licenses or sublicenses shall not
materially interfere with the business of the Borrower or any
such Subsidiary;
(f) other sales or dispositions of assets in
the ordinary course of business (other than assets disposed of
in connection with a Recovery Event) which constitute Asset
Sales, PROVIDED that (x) the aggregate Net Cash Proceeds
received from all such sales and dispositions (when added to
the fair market value of all assets received in connection
with such Asset Sales) shall not exceed $20,000,000, (y) each
such sale shall be in an amount at least equal to the fair
market value thereof (as determined in good faith by the
Borrower) and for proceeds consisting solely of (A) not less
than 80% cash and (B) seller indebtedness evidenced by
promissory notes, which promissory notes shall be pledged and
delivered to the Collateral Agent pursuant to the Pledge
Agreement and (z) the Net Cash Proceeds of any such sale are
applied to reduce the Total Revolving Loan Commitment to the
extent required by Section 3.03(c) and repay Revolving Loans
to the extent required by Section 4.02(a), and, PROVIDED
FURTHER, that the sale or disposition of the capital stock of
(i) any Subsidiary Guarantor shall be prohibited except as
otherwise permitted pursuant to Section 8.02(a) and (ii) any
other Subsidiary of the Borrower shall be prohibited unless it
is for all of the outstanding capital stock of such Subsidiary
owned by the Borrower and its Subsidiaries;
(g) other sales or dispositions of assets
(or similar transactions) in each case to the extent the
Required Banks have consented in writing thereto and subject
to such conditions as may be set forth in such consent;
(h) any Subsidiary of the Borrower
(including any Subsidiary Guarantor so long as the assets of
such Subsidiary Guarantor are transferred pursuant to Section
8.02(l)) may be liquidated into the Borrower or a Subsidiary
Guarantor that is a Wholly-Owned Domestic Subsidiary of the
Borrower;
(i) each of the Borrower and its
Subsidiaries may make sales or transfers of inventory in the
ordinary course of business and consistent with past practices
(including without limitation sales or transfers of inventory
by the Borrower to its Subsidiaries);
(j) the Acquisition shall be permitted;
(k) the Borrower and its Subsidiaries may,
in the ordinary course of business, sell, transfer or
otherwise dispose of patents, trademarks, service marks, trade
names and copyrights which, in the reasonable judgment of the
Borrower or such Subsidiary, are determined to be
uneconomical, negligible or obsolete in the conduct of its
business;
(l) any Subsidiary of the Borrower may
transfer assets to the Borrower or to a Subsidiary Guarantor
that is a Wholly-Owned Domestic Subsidiary of the Borrower so
long as the security interests granted to the Collateral Agent
pursuant to the Security
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Documents in the assets so transferred shall remain in full
force and effect and perfected to at least the same extent as
in effect immediately prior to such transfer); and
(m) the Borrower and its Wholly-Owned
Domestic Subsidiaries may acquire all or substantially all of
the assets of any Person (or all or substantially all of the
assets of a product line or division of any Person) or 100% of
the capital stock of any Person (including by purchasing the
remaining portion of the capital stock of any Person in which
the Borrower or a Wholly-Owned Domestic Subsidiary thereof
already has an ownership interest and as a result of which
such Person shall become a Wholly-Owned Domestic Subsidiary of
the Borrower) (any such acquisition permitted by this clause
(m), a "Permitted Acquisition"), so long as (i) no Default or
Event of Default then exists or would result therefrom, (ii)
each of the representations and warranties contained in
Section 6 is true and correct in all material respects both
before and after giving effect to such Permitted Acquisition,
(iii) the assets or product line acquired, or the business of
the Person whose stock is acquired, constitutes a Permitted
Business, (iv) any Liens or Indebtedness assumed or issued in
connection with such acquisition are otherwise permitted under
Section 8.03 or 8.04, as the case may be, (v) the
consideration paid by the Borrower and Subsidiaries in
connection with any Permitted Acquisition consists solely of
cash and/or common stock of the Borrower, (vi) at least 10
Business Days prior to the consummation of any Permitted
Acquisition, the Borrower shall have delivered to the
Administrative Agent and each of the Banks a certificate of
the Borrower's Chief Financial Officer (or other Authorized
Officer) certifying (and showing the calculations therefor in
reasonable detail) that the Borrower would have been in
compliance with the financial covenants set forth in Sections
8.10 and 8.11 for the applicable testing period then most
recently ended prior to the date of the consummation of such
Permitted Acquisition, in each case with such financial
covenants to be determined on a PRO FORMA basis as if such
Permitted Acquisition had been consummated on the first day of
the relevant testing period (and assuming that any
Indebtedness incurred, issued or assumed in connection
therewith had been incurred, issued or assumed on the first
day of, and had remained outstanding throughout, such testing
period) and (vii) the aggregate consideration paid in
connection with all Permitted Acquisitions consummated on or
after the Restatement Effective Date (including, without
limitation, any earn-out, non-compete or deferred compensation
arrangements and the aggregate principal amount of any
Indebtedness assumed in connection therewith) does not exceed
$10,000,000; and
(n) any sale, transfer or other disposition
of assets or property which does not constitute an Asset Sale.
To the extent the Required Banks waive the provisions of this Section 8.02 with
respect to the sale or other disposition of any Collateral, or any Collateral is
sold or otherwise disposed of as permitted by this Section 8.02, such Collateral
(unless sold to the Borrower or a Subsidiary of the Borrower) shall be sold or
otherwise disposed of free and clear of the Liens created by the Security
Documents, and the Administrative Agent and Collateral Agent shall be authorized
to take any actions deemed appropriate in order to effect the foregoing.
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8.03 LIENS. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any such Subsidiary whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with recourse
to the Borrower or any of its Subsidiaries) or assign any right to receive
income, or file or permit the filing of any financing statement under the UCC or
any other similar notice of Lien under any similar recording or notice statute;
PROVIDED that the provisions of this Section 8.03 shall not prevent the
creation, incurrence, assumption or existence of the following (with such Liens
described below being herein referred to as "Permitted Liens"):
(a) inchoate Liens for taxes, assessments or governmental charges
or rules not yet due or Liens for taxes, assessments or governmental
charges or rules being contested in good faith and by appropriate
proceedings for which adequate reserves (in the good faith judgment of
the management of the Borrower) have been established;
(b) Liens in respect of property or assets of the Borrower or any
of its Subsidiaries imposed by law which were incurred in the ordinary
course of business, such as carriers', warehousemen's and mechanics'
Liens, statutory landlord's Liens, and other similar Liens arising in
the ordinary course of business, and (x) which do not in the aggregate
materially detract from the value of such property or assets or
materially impair the use thereof in the operation of the business of
the Borrower or any such Subsidiary or (y) which are being contested
in good faith by appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the property or asset
subject to such Lien;
(c) Liens created by or pursuant to this Agreement and the other
Credit Documents;
(d) Liens existing on the Restatement Effective Date to the
extent listed on Annex XII, without giving effect to any subsequent
extensions or renewals thereof;
(e) Liens arising from judgments, decrees or attachments (or
securing of appeal bonds with respect thereto) in circumstances not
constituting an Event of Default under Section 9.09, so long as no
cash or property (other than proceeds of insurance payable by reason
of such judgments, decrees or attachments) is deposited or delivered
to secure any respective judgment or award, or any appeal bond in
respect thereof, the fair market value of which exceeds $1,500,000;
(f) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory
obligations, surety bonds (other than appeal bonds), bids, leases,
government contracts, obligations to utilities, performance and
return-of-money bonds
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and other similar obligations incurred in the ordinary course of
business (exclusive of obligations in respect of the payment for
borrowed money);
(g) leases, subleases or licenses granted to others not
interfering in any material respect with the business of the Borrower
or any of its Subsidiaries;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
(i) Liens arising from UCC financing statements regarding leases
not in violation of this Agreement;
(j) purchase money Liens securing payables arising from the
purchase by the Borrower or any of its Subsidiaries of any equipment
or goods in the normal course of business, PROVIDED that such payables
shall not constitute Indebtedness;
(k) any interest or title of a lessor under any lease permitted
by this Agreement;
(l) Liens arising pursuant to purchase money mortgages relating
to, or security interests securing Indebtedness representing, the
purchase price or financing thereof of assets acquired by the Borrower
or any of its Subsidiaries after the Restatement Effective Date and
Liens created pursuant to Capital Leases, provided that any such Liens
attach only to the assets so acquired and that all Indebtedness
secured by Liens created pursuant to this clause (l) shall not exceed
the amount permitted pursuant to Section 8.04(c) at any time
outstanding;
(m) Permitted Encumbrances; and
(n) Liens securing Indebtedness not in excess of $100,000 at any
time outstanding.
8.04 INDEBTEDNESS. The Borrower will not, and will not permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(b) Indebtedness owing by (i) any Subsidiary Guarantor to another
Subsidiary Guarantor or to the Borrower, (ii) any Subsidiary of the
Borrower that is not a Subsidiary Guarantor to another Subsidiary of
the Borrower that is not a Subsidiary Guarantor and (iii) the Borrower
to any Subsidiary Guarantor;
(c) Capitalized Lease Obligations of the Borrower and its
Subsidiaries incurred by the Borrower or any of its Subsidiaries after
the Restatement Effective Date and Indebtedness incurred pursuant to
purchase money mortgages permitted by Section
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<PAGE> 57
8.03(l), PROVIDED that the aggregate amount of Indebtedness incurred
pursuant to this clause (c) shall not exceed $5,000,000 at any time
outstanding;
(d) Existing Indebtedness, without giving effect to any
subsequent extension, renewal or refinancing thereof;
(e) Indebtedness under Interest Rate Agreements relating to
Indebtedness otherwise permitted under this Section 8.04;
(f) Indebtedness incurred pursuant to purchase money mortgage
permitted by Section 8.03(l);
(g) Contingent Obligations of the Borrower or any Subsidiary
Guarantor with respect to Indebtedness and lease obligations of the
Borrower or any Subsidiary Guarantor otherwise permitted under this
Agreement;
(h) Indebtedness of the Borrower under the Senior Subordinated
Notes in an aggregate principal amount not to exceed $120,000,000 (as
reduced by any repayments of principal thereof);
(i) the Borrower may issue up to $5,000,000 in aggregate
principal amount of subordinated promissory notes pursuant to Section
4.4(c) of the GEO Shareholders' Agreement; and
(j) Additional Indebtedness of the Borrower and its Subsidiaries
not to exceed an aggregate outstanding principal amount of $10,000,000
at any time.
8.05 CAPITAL EXPENDITURES. (a) The Borrower will not, and will
not permit any of its Subsidiaries to, incur Consolidated Capital Expenditures,
PROVIDED that the Borrower and its Subsidiaries may make Consolidated Capital
Expenditures so long as the aggregate amount of all Consolidated Capital
Expenditures does not exceed in any fiscal year of the Borrower set forth below
the respect amount set forth opposite such fiscal year below:
<TABLE>
<CAPTION>
Fiscal Year Ending Amount
------------------ ------
<S> <C>
December 31, 1999 $10,000,000
December 31, 2000 $12,500,000
December 31, 2001 $10,000,000
December 31, 2002 $10,000,000
December 31, 2003 $10,000,000
</TABLE>
(b) In the event that the maximum amount which is permitted to be
expended in respect of Consolidated Capital Expenditures during any fiscal year
of the Borrower pursuant to Sections 8.05(a), (c) and (d) (without giving effect
to this clause (b)) is not fully expended during such fiscal year, the maximum
amount which may be expended during the immediately succeeding fiscal year
pursuant to Sections 8.05(a), (c) and (d) shall be increased by such
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<PAGE> 58
unutilized amount, PROVIDED that such increase shall not exceed $1,000,000 in
any fiscal year of the Borrower.
(c) In addition to the foregoing, the amount of insurance
proceeds received by the Borrower and its Subsidiaries from any Recovery Event
may be used by the Borrower or such Subsidiary to make Consolidated Capital
Expenditures to replace or restore any properties or assets in respect of which
such proceeds were paid or to otherwise acquire productive assets usable in the
business of the Borrower.
(d) In addition to the foregoing, the Borrower and the Subsidiary
Guarantors may make Consolidated Capital Expenditures to the extent such
Consolidated Capital Expenditures also constitute the reinvestment of Net Cash
Proceeds from Asset Sales not giving rise to a reduction to the Total Revolving
Loan Commitment pursuant to Section 3.03(c).
8.06 ADVANCES, INVESTMENTS AND LOANS. The Borrower will not, and
will not permit any of its Subsidiaries to, lend money or credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any Person, except:
(a) the Borrower and its Subsidiaries may acquire and hold
receivables owing to them, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade terms;
(b) the intercompany Indebtedness described in Section 8.04(b)
shall be permitted;
(c) investments made by the Borrower in Subsidiary Guarantors
that are Wholly-Owned Subsidiaries shall be permitted;
(d) loans and advances to employees in an aggregate principal
amount not to exceed $100,000 (exclusive of amounts loaned or advanced to
employees in connection with administering the Borrower's employee relocation
program) at any time outstanding shall be permitted;
(e) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;
(f) Interest Rate Agreements permitted by Section 8.04(e) shall
be permitted;
(g) the Borrower may hold the promissory notes acquired in
accordance with Section 8.02(f);
(h) the Borrower may repurchase stock to the extent permitted by
Section 8.08(a)(ii);
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<PAGE> 59
(i) the Borrower and its Subsidiaries may make Permitted
Acquisitions;
(j) the Borrower and its Subsidiaries may invest in cash and Cash
Equivalents; and
(k) the Borrower may redeem up to 35% of the aggregate principal
amount of the Senior Subordinated Notes pursuant to Section 6(b) thereof.
8.07 PREPAYMENTS OF INDEBTEDNESS; MODIFICATIONS OF CERTIFICATE OF
INCORPORATION, BY-LAWS AND CERTAIN OTHER AGREEMENTS, ETC. (a) Other than the
redemption permitted by Section 8.06(k) the Borrower will not, and will not
permit any of its Subsidiaries to, (x) make (or give any notice in respect
thereof) any voluntary or optional payment or prepayment or redemption or
acquisition for value of (including, without limitation, by way of depositing
with the trustee with respect thereto money or securities before due for the
purpose of paying when due) or exchange or refinancing of the Senior
Subordinated Notes or any Existing Indebtedness, (y) amend, modify or change in
any manner the Senior Subordinated Notes Documents or any other agreements
(including, without limitation, the Existing Indebtedness Agreements) relating
to the Senior Subordinated Notes or to any Existing Indebtedness or (z) amend,
modify or change in any manner materially adverse to the interests of the Banks,
the Certificate of Incorporation (including, without limitation, by the filing
of any additional certificate of designation) or By-Laws of the Borrower or any
of its Subsidiaries, the terms of any of its capital stock or any agreement
entered into by the Borrower with respect to its capital stock (including,
without limitation, the Warrants and the Warrant Agreements), the "Transaction
Documents" (as defined in the Existing Credit Agreement (including, without
limitation, the GEO Shareholders' Agreement), or enter into any new agreement in
any manner materially adverse to the interests of the Banks with respect to the
capital stock of the Borrower.
(b) Other than the Obligations, the Borrower shall not designate
and shall not permit any Indebtedness to be designated as "Designated Senior
Debt" under and as defined in the Senior Subordinated Notes Documents.
8.08 DIVIDENDS, ETC. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, declare or pay any dividends (other than
dividends payable solely in capital stock of such Person) or return any capital
to its stockholders or authorize or make any other distribution, payment or
delivery of property or cash to its stockholders as such, or redeem, retire,
purchase or otherwise acquire, directly or indirectly, for a consideration, any
shares of any class of its capital stock now or hereafter outstanding (or any
warrants for or options or stock appreciation rights in respect of any of such
shares), or set aside any funds for any of the foregoing purposes, or permit
any of its Subsidiaries to purchase or otherwise acquire for consideration any
shares of any class of the capital stock of the Borrower or any other
Subsidiary, as the case may be, now or hereafter outstanding (or any options or
warrants or stock appreciation rights issued by such Person with respect to its
capital stock) (all of the foregoing "Dividends"), except that:
(i) any Subsidiary of the Borrower may pay cash dividends to the
Borrower or to a Wholly-Owned Subsidiary of the Borrower; and
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<PAGE> 60
(ii) so long as no Default or Event of Default has occurred and
is continuing or would result therefrom, the Borrower may redeem or
repurchase for cash (or in consideration of the issuance of
subordinated notes permitted to be issued by Section 8.04(i)), at fair
value, the capital stock of the Borrower (or options to purchase
capital stock) from any employee of the Borrower upon the death,
disability, retirement or other termination of such employee, PROVIDED
that all cash repurchases under this clause (ii) shall not exceed, in
the aggregate, when added to all payments made under the subordinated
notes permitted by Section 8.04(i), $1,000,000 (increased by the
amount of proceeds received by the Borrower in connection with the
issuance of capital stock to directors or employees of the Borrower
and its Subsidiaries after the Restatement Effective Date); PROVIDED
FURTHER, the Borrower may effect such repurchases without regard to
the dollar limitations set forth above solely with the proceeds of key
man life insurance obtained for the purpose of making such
repurchases.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or
restriction which prohibits or otherwise restricts (A) the ability of any
Subsidiary of the Borrower to (a) pay dividends or make other distributions or
pay any Indebtedness owed to the Borrower or any other Subsidiary of the
Borrower, (b) make loans or advances to the Borrower or any other Subsidiary of
the Borrower, or (c) transfer any of its properties or assets to the Borrower or
any other Subsidiary of the Borrower or (B) the ability of the Borrower or any
other Subsidiary of the Borrower to create, incur, assume or suffer to exist any
Lien upon its property or assets to secure the Obligations, other than
prohibitions or restrictions existing under or by reason of:
(i) this Agreement, the other Credit Documents and the other
Transaction Documents;
(ii) applicable law;
(iii) customary non-assignment provisions entered into in the
ordinary course of business and consistent with past practices;
(iv) any restriction or encumbrance with respect to a Subsidiary
of the Borrower imposed pursuant to an agreement which has been
entered into for the sale or disposition of all or substantially all
of the capital stock or assets of such Subsidiary, so long as such
sale or disposition is permitted under this Agreement; and
(v) Liens permitted under Section 8.03 and any documents or
instruments governing the terms of any Indebtedness or other
obligations secured by any such Liens, PROVIDED that such prohibitions
or restrictions apply only to the assets subject to such Liens.
8.09 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any transaction or series
of transactions after the Restatement Effective Date whether or not in the
ordinary course of business, with any Affiliate other than on terms and
conditions substantially as favorable to the Borrower or such Subsidiary as
would be
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<PAGE> 61
obtainable by the Borrower or such Subsidiary at the time in a comparable arm's
length transaction with a Person other than an Affiliate; PROVIDED that the
foregoing restrictions shall not apply to (i) Dividends permitted under Section
8.08, (ii) transactions between the Borrower and its Subsidiaries to the extent
otherwise expressly permitted under this Agreement, (iii) employment
arrangements (including arrangements made with respect to bonuses) entered into
in the ordinary course of business with members of the Board of Directors of the
Borrower and of its Subsidiaries and (iv) any Shareholders Agreements as in
effect on the Restatement Effective Date.
8.10 INTEREST COVERAGE RATIO. The Borrower will not permit the
Interest Coverage Ratio for any period of four consecutive fiscal quarters (or,
if shorter, the period beginning on the Restatement Effective Date and ended on
the last day of a fiscal quarter ended after the Restatement Effective Date), in
each case taken as one accounting period, ended on the last day of a fiscal
quarter described below to be less than the amount set forth opposite such
fiscal quarter below:
<TABLE>
<CAPTION>
Fiscal Quarter Ratio
-------------- -----
<S> <C>
September 30, 1999 1.50:1.00
December 31, 1999 1.50:1.00
March 31, 2000 1.50:1.00
June 30, 2000 1.75:1.00
September 30, 2000 1.75:1.00
December 31, 2000 1.75:1.00
March 31, 2001 1.85:1.00
June 30, 2001 1.85:1.00
September 30, 2001 1.90:1.00
December 31, 2001 2.00:1.00
March 31, 2002 2.10:1.00
June 30, 2002 2.15:1.00
September 30, 2002 2.20:1.00
December 31, 2002 2.25:1.00
March 31, 2003 2.30:1.00
June 30, 2003 2.40:1.00
</TABLE>
8.11 LEVERAGE RATIO. The Borrower will not permit the Leverage
Ratio of the Borrower at any time during a fiscal quarter of the Borrower set
forth below to be greater than the ratio set forth opposite such fiscal quarter:
<TABLE>
<CAPTION>
Fiscal Quarter Ratio
-------------- -----
<S> <C>
September 30, 1999 5.75:1.00
December 31, 1999 5.75:1.00
March 31, 2000 5.75:1.00
June 30, 2000 5.50:1.00
September 30, 2000 5.50:1.00
</TABLE>
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<PAGE> 62
<TABLE>
<CAPTION>
<S> <C>
December 31, 2000 5.50:1.00
March 31, 2001 5.25:1.00
June 30, 2001 5.15:1.00
September 30, 2001 5.00:1.00
December 31, 2001 4.90:1.00
March 31, 2002 4.80:1.00
June 30, 2002 4.60:1.00
September 30, 2002 4.40:1.00
December 30, 2002 4.30:1.00
March 31, 2003 4.15:1.00
June 30, 2003 4.00:1.00
</TABLE>
8.12 ISSUANCE OF STOCK. The Borrower will not issue any shares of
capital stock (other than issuances of common stock of the Borrower not creating
a Change of Control), and will not permit any of its Subsidiaries directly or
indirectly to issue, sell, assign, pledge or otherwise encumber or dispose of
any shares of its capital stock or other securities (or warrants, rights or
options to acquire shares or other equity securities) of such Subsidiary, except
to the extent permitted by Section 8.03, to the Borrower and/or any Subsidiary
Guarantor or to qualify directors if required by applicable law.
8.13 LIMITATION ON CREATION OF SUBSIDIARIES. The Borrower shall
not, and shall not permit any of its Subsidiaries to, establish, create or
acquire any additional Subsidiaries without the prior written consent of the
Required Banks, PROVIDED that the Borrower and its Wholly-Owned Subsidiaries
shall be permitted to establish or create Wholly-Owned Subsidiaries so long as
(i) at least 5 days' prior written notice thereof (or such lesser notice as is
acceptable to the Administrative Agent) is given to the Administrative Agent,
(ii) such new Subsidiaries shall execute and deliver such guarantees and
security documents as the Required Banks shall request (including documents
substantially similar to or amendments to each of the Pledge Agreement and the
Security Agreement), and in such forms as shall be satisfactory to them, (iii)
the holders of the capital stock of such new Subsidiaries shall execute and
deliver additional pledge agreements, in form and substance satisfactory to the
Administrative Agent and (iv) such new Subsidiaries shall execute and deliver,
or cause to be executed and delivered, all other relevant documentation of the
type described in Section 5 as such new Subsidiaries would have had to deliver
if such new Subsidiaries were Credit Parties on the Restatement Effective Date.
SECTION 9. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
9.01 PAYMENTS. The Borrower shall (i) default in the payment when
due of any principal of the Loans or (ii) default, and such default shall
continue for three or more Business Days, in the payment when due of any Unpaid
Drawing, any interest on the Loans or any Fees or any other amounts owing
hereunder or under any other Credit Document; or
9.02 REPRESENTATIONS, ETC. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any statement or certificate
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<PAGE> 63
delivered or required to be delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or deemed made;
or
9.03 COVENANTS. The Borrower or any of its Subsidiaries shall (a)
default in the due performance or observance by it of any term, covenant or
agreement contained in Sections 7.01(f)(x), 7.09 or 8, or (b) default in the due
performance or observance by it of any term, covenant or agreement (other than
those referred to in Section 9.01, 9.02 or clause (a) of this Section 9.03)
contained in this Agreement and such default shall continue unremedied for a
period of at least 30 days after notice to the defaulting party by the
Administrative Agent or the Required Banks; or
9.04 DEFAULT UNDER OTHER AGREEMENTS. (a) The Borrower or any of
its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
applicable thereto or (ii) default in the observance or performance of any
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, any such Indebtedness to become due prior to its stated maturity or (b)
any such Indebtedness of the Borrower or any of its Subsidiaries shall be
declared to be due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment, prior to the stated maturity thereof,
PROVIDED that it shall not constitute an Event of Default pursuant to this
Section 9.04 unless the principal amount of any one issue of such Indebtedness
exceeds $1,500,000 or the aggregate amount of all Indebtedness referred to in
clauses (a) and (b) above exceeds $2,500,000 at any one time; or
9.05 BANKRUPTCY, ETC. The Borrower or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against the Borrower or any of its Subsidiaries and the petition is not
controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the Borrower or any of its Subsidiaries; or the Borrower or any of its
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to the Borrower or any of its Subsidiaries; or there is
commenced against the Borrower or any of its Subsidiaries any such proceeding
which remains undismissed for a period of 60 days; or the Borrower or any of its
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; the Borrower or
any of its Subsidiaries suffers any appointment of any custodian or the like for
it or any substantial part of its property to continue undischarged or unstayed
for a period of 60 days; or the Borrower or any of its Subsidiaries makes a
general assignment for the benefit of creditors; or any corporate action is
taken by the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or
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<PAGE> 64
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan or a
Foreign Pension Plan has not been timely made, the Borrower or any Subsidiary of
the Borrower or any ERISA Affiliate has incurred or is likely to incur any
liability to or on account of a Plan under Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971
or 4975 of the Code or on account of a group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the
Code, or the Borrower or any of its Subsidiaries has incurred or is likely to
incur liabilities pursuant to one or more employee welfare benefit plans (as
defined in Section 3(1) of ERISA) that provide benefits to retired employees or
other former employees (other than as required by Section 601 of ERISA) or Plans
or Foreign Pension Plans; (b) there shall result from any such event or events
the imposition of a lien, the granting of a security interest, or a liability or
a material risk of incurring a liability; and (c) such lien, security interest
or liability, individually, and/or in the aggregate, in the opinion of the
Required Banks, has had, or could reasonably be expected to have, a material
adverse effect upon the business, operations, condition (financial or otherwise)
or prospects of the Borrower or any of its Subsidiaries; or
9.07 SECURITY DOCUMENTS. Any Security Document shall cease to be
in full force and effect or, except as expressly set forth in the Security
Agreement, shall cease to give the Collateral Agent any perfected Lien
encumbering Collateral (other than in respect of a DI MINIMIS portion of
Collateral), or shall cease to give the Collateral Agent any material rights,
powers and privileges purported to be created thereby in favor of the Collateral
Agent or any Credit Party shall default in the due performance or observance of
any term, covenant or agreement on its part to be performed or observed pursuant
to any such Security Document and such default shall continue unremedied for a
period of 30 days after notice to the Borrower by the Administrative Agent or
the Required Banks; or
9.08 SUBSIDIARY GUARANTY. The Subsidiary Guaranty or any
provision thereof shall cease to be in full force or effect, or any Subsidiary
Guarantor or any Person acting by or on behalf of any Subsidiary Guarantor shall
deny or disaffirm such guarantor's obligations under such Subsidiary Guaranty or
any Subsidiary Guarantor shall default in the due performance or observance of
any term, covenant or agreement on its part to be performed or observed pursuant
to the Subsidiary Guaranty; or
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<PAGE> 65
9.09 JUDGMENTS. One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving a liability of
$1,500,000 or more in the case of any one such judgment or decree and $2,500,000
or more in the aggregate for all such judgments and decrees for the Borrower and
its Subsidiaries (in each case, not paid or to the extent not covered by
insurance) and any such judgments or decrees shall not have been vacated,
discharged or stayed or bonded pending appeal within 60 days from the entry
thereof; or
9.10 CHANGE OF CONTROL. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Banks, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of the
Administrative Agent or any Bank to enforce its claims against the Borrower,
except as otherwise specifically provided for in this Agreement (PROVIDED that,
if an Event of Default specified in Section 9.05 shall occur with respect to the
Borrower, the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Bank shall forthwith
terminate immediately and any Commitment Commission shall forthwith become due
and payable without any other notice of any kind; (ii) declare the principal of
and any accrued interest in respect of all Loans and all Obligations owing
hereunder (including Unpaid Drawings) and thereunder to be, whereupon the same
shall become, forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower; (iii)
enforce, as Collateral Agent (or direct the Collateral Agent to enforce), any or
all of the Liens and security interests created pursuant to the Security
Documents; (iv) terminate any Letter of Credit which may be terminated in
accordance with its terms; (v) direct the Borrower to pay (and the Borrower
hereby agrees upon receipt of such notice, or upon the occurrence of any Event
of Default specified in Section 9.05 in respect of the Borrower, it will pay) to
the Collateral Agent at the Payment Office such additional amounts of cash, to
be held as security for the Borrower's reimbursement obligations in respect of
Letters of Credit then outstanding equal to the aggregate Stated Amount of all
Letters of Credit then outstanding; and (vi) apply any cash collateral held
pursuant to this Agreement to repay the Obligations.
SECTION 10. DEFINITIONS. As used herein, the following terms
shall have the meanings herein specified unless the context otherwise requires
(such meanings to be equally applicable to both the singular and plural forms of
the terms defined):
"Acquired Business" shall have the meaning provided in the
definition of Acquisition.
"Acquisition" shall mean the Borrower's or one of its
Subsidiary's acquisition of 100% of the issued and outstanding shares of Rhod
Six, a company involved in the extraction, purification, marketing and sale of
gallium (the "Acquired Business") pursuant to the terms of the Stock Purchase
Agreement, dated as of August 6, 1999, by and between Rhodia Chimie, GEO
Holdings (Europe) and the Borrower (the "Acquisition Agreement").
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<PAGE> 66
"Acquisition Agreement" shall have the meaning provided in the
definition of Acquisition.
"Acquisition Documents" shall mean the Acquisition Agreement and
all other documents entered into or delivered in connection with the Acquisition
Agreement.
"Additional Mortgage" shall have the meaning provided in Section
7.11(b).
"Additional Mortgaged Property" shall have the meaning provided
in Section 7.11(b).
"Adjusted Certificate of Deposit Rate" shall mean, on any day,
the sum (rounded to the nearest 1/100 of 1%) of (1) the rate obtained by
dividing (x) the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market as
published in the most recent Federal Reserve System publication entitled "Select
Interest Rates," published weekly on Form H.15 as of the date hereof, or if such
publication or a substitute containing the foregoing rate information shall not
be published by the Federal Reserve System for any week, the weekly average
offering rate determined by the Administrative Agent on the basis of quotations
for such certificates received by it from three certificate of deposit dealers
in New York of recognized standing or, if such quotations are unavailable, then
on the basis of other sources reasonably selected by the Administrative Agent,
by (y) a percentage equal to 100% minus the stated maximum rate of all reserve
requirements as specified in Regulation D applicable on such day to a
three-month certificate of deposit of a member bank of the Federal Reserve
System in excess of $100,000 (including, without limitation, any marginal,
emergency, supplemental, special or other reserves), plus (2) the then daily net
annual assessment rate as estimated by the Administrative Agent for determining
the current annual assessment payable by the Administrative Agent to the Federal
Deposit Insurance Corporation for insuring three-month certificates of deposit.
"Adjusted RC Percentage" shall mean (x) at a time when no Bank
Default exists, for each Bank such Bank's Revolving Percentage and (y) at a time
when a Bank Default exists (i) for each Bank that is a Defaulting Bank, zero and
(ii) for each Bank that is a Non-Defaulting Bank, the percentage determined by
dividing such Bank's Revolving Loan Commitment at such time by the Adjusted
Total Revolving Loan Commitment at such time, it being understood that all
references herein to Revolving Loan Commitments and the Adjusted Total Revolving
Loan Commitment at a time when the Total Revolving Loan Commitment or Adjusted
Total Revolving Loan Commitment, as the case may be, has been terminated shall
be references to the Revolving Loan Commitments or Adjusted Total Revolving Loan
Commitment, as the case may be, in effect immediately prior to such termination,
PROVIDED that (A) no Bank's Adjusted RC Percentage shall change upon the
occurrence of a Bank Default from that in effect immediately prior to such Bank
Default if, after giving effect to such Bank Default and any repayment of
Revolving Loans and Swingline Loans at such time pursuant to Section 4.02(A)(a)
or otherwise, the sum of (i) the aggregate outstanding principal amount of
Revolving Loans of all Non-Defaulting Banks plus (ii) the aggregate outstanding
principal amount of Swingline Loans plus (iii) the Letter of Credit
Outstandings, exceeds the Adjusted Total Revolving Loan Commitment,
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(B) the changes to the Adjusted RC Percentage that would have become effective
upon the occurrence of a Bank Default but that did not become effective as a
result of the preceding clause (A) shall become effective on the first date
after the occurrence of the relevant Bank Default on which the sum of (i) the
aggregate outstanding principal amount of the Revolving Loans of all
Non-Defaulting Banks plus (ii) the aggregate outstanding principal amount of the
Swingline Loans plus (iii) the Letter of Credit Outstandings is equal to or less
than the Adjusted Total Revolving Loan Commitment and (C) if (i) a
Non-Defaulting Bank's Adjusted RC Percentage is changed pursuant to the
preceding clause (B) and (ii) any repayment of such Bank's Revolving Loans, or
of Unpaid Drawings with respect to Letters of Credit or of Swingline Loans, that
were made during the period commencing after the date of the relevant Bank
Default and ending on the date of such change to its Adjusted RC Percentage must
be returned to any Borrower as a preferential or similar payment in any
bankruptcy or similar proceeding of such Borrower, then the change to such
Non-Defaulting Bank's Adjusted RC Percentage effected pursuant to said clause
(B) shall be reduced to that positive change, if any, as would have been made to
its Adjusted RC Percentage if (x) such repayments had not been made and (y) the
maximum change to its Adjusted RC Percentage would have resulted, in the sum of
the outstanding principal of Revolving Loans made by such Bank plus such Bank's
new Adjusted RC Percentage of the outstanding principal amount of Swingline
Loans and of Letter of Credit Outstandings equaling such Bank's Revolving Loan
Commitment at such time.
"Adjusted Total Revolving Loan Commitment" shall mean at any time
the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Banks.
"Administrative Agent" shall have the meaning provided in the
first paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.09.
"Affected Eurodollar Loans" shall have the meaning provided in
Section 4.02(c).
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power (i) to
vote 5% or more of the securities having ordinary voting power for the election
of directors of such corporation or (ii) to direct or cause the direction of the
management and policies of such corporation, whether through the ownership of
voting securities, by contract or otherwise.
"Agreement" shall mean this credit agreement, as the same may be
from time to time modified, amended and/or supplemented.
"Anticipated Reinvestment Amount" shall mean, with respect to any
Reinvestment Election, the amount specified in the Reinvestment Notice delivered
by the Borrower in connection therewith as the amount of the Net Cash Proceeds
from the related Asset Sale that the Borrower and/or the Subsidiary Guarantors
intend to use to purchase, construct or otherwise acquire Reinvestment Assets.
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"Approved Bank" shall have the meaning provided in the definition
of Cash Equivalents.
"Approved Company" shall have the meaning provided in the
definition of Cash Equivalents.
"Asset Sale" shall mean the sale, transfer or other disposition
by the Borrower or any Subsidiary of the Borrower to any Person other than the
Borrower or any Subsidiary Guarantor of any asset of the Borrower or such
Subsidiary (other than sales, transfers or other dispositions (x) in the
ordinary course of business of inventory and/or obsolete or excess equipment or
intellectual property pursuant to 8.02(e) or (k) or (y) the cash proceeds
(and/or fair market value of assets received in exchange therefor) of which do
not exceed $500,000).
"Assignment Agreement" shall have the meaning provided in Section
12.04(b).
"Authorized Officer" shall mean any senior officer of the
Borrower designated as such in writing to the Administrative Agent by the
Borrower in each case to the extent acceptable to the Administrative Agent.
"Bank" shall have the meaning provided in the first paragraph of
this Agreement.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any incurrence of
Revolving Loans (including pursuant to a Mandatory Borrowing) or to fund its
portion of any unreimbursed payment under Section 2.05(c) or (ii) a Bank having
notified the Administrative Agent and/or the Borrower that it does not intend to
comply with its obligations under Section 1.01 or under Section 2.05(c), in the
case of either (i) or (ii) as a result of the appointment of a receiver or
conservator with respect to such Bank at the direction or request of any
regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section
9.05.
"Base Rate" at any time shall mean the higher of (i) the rate
which is 1/2 of 1% in excess of the Adjusted Certificate of Deposit Rate and
(ii) the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the
rates provided in Section 1.08(a).
"Base Rate Margin" shall mean 1.25%.
"Borrower" shall have the meaning provided in the first paragraph
of this Agreement.
"Borrowing" shall mean the incurrence of (i) Swingline Loans by
the Borrower from the Swingline Bank on a given date or (ii) one Type of
Revolving Loan by the Borrower from all of the Banks on a PRO RATA basis on a
given date (or resulting from conversions on a given date), having in the case
of Eurodollar Loans the same Interest Period; PROVIDED that Base
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Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of any
related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and any day
which shall be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (i) and which is also a day for trading by and
between banks in U.S. dollar deposits in the interbank Eurodollar market.
"Capital Lease" as applied to any Person shall mean any lease of
any property (whether real, personal or mixed) by that Person as lessee which,
in conformity with GAAP, is accounted for as a capital lease on the balance
sheet of that Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean (i) securities issued or directly
and fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (PROVIDED that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) U.S. dollar denominated time
deposits, certificates of deposit and bankers' acceptances of (x) any Bank, (y)
any domestic commercial bank of recognized standing having capital and surplus
in excess of $500,000,000 or (z) any bank (or the parent company of such bank)
whose short-term commercial paper rating from Standard & Poor's Ratings Services
("S&P") is at least A-1 or the equivalent thereof or from Moody's Investors
Service, Inc. ("Moody's") is at least P-1 or the equivalent thereof (any such
bank, an "Approved Bank"), in each case with maturities of not more than six
months from the date of acquisition, (iii) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clause (i) above entered into with any bank meeting the qualifications specified
in clause (ii) above, (iv) commercial paper issued by any Bank or Approved Bank
or by the parent company of any Bank or Approved Bank and commercial paper
issued by, or guaranteed by, any industrial or financial company with a
short-term commercial paper rating of at least A-1 or the equivalent thereof by
S&P or at least P-1 or the equivalent thereof by Moody's (any such company, an
"Approved Company"), or guaranteed by any industrial company with a long term
unsecured debt rating of at least A or A2, or the equivalent of each thereof,
from S&P or Moody's, as the case may be, and in each case maturing within six
months after the date of acquisition and (v) investments in money market funds
substantially all of whose assets are comprised of securities of the type
described in clauses (i) through (iv) above.
"Cash Proceeds" shall mean, with respect to any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred payment
pursuant to a note receivable
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issued in connection with such Asset Sale, other than the portion of such
deferred payment constituting interest, but only as and when so received)
received by the Borrower and/or any Subsidiary from such Asset Sale.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601
ET SEQ.
"Change of Control" shall mean (A) (a) prior to the Borrower's
initial public offering of common stock, the Permitted Holders cease to be the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of a majority in the aggregate of the total voting power
of the Voting Stock of the Borrower, whether as a result of the issuance of
securities of the Borrower, any merger, consolidation, liquidation or
dissolution of the Borrower, any direct or indirect transfer of securities or
otherwise (for purposes of this clause (a) and clause (b) below, the Permitted
Holders shall be deemed to beneficially own any Voting Stock of a corporation
(the "specified corporation") held by any other corporation (the "parent
corporation") so long as the Permitted Holders beneficially own (as so defined),
directly or indirectly (through Wholly-Owned Subsidiaries that are not operating
businesses), in the aggregate a majority of the voting power of the Voting Stock
of the parent corporation), (b) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders,
is or becomes the beneficial owner (as defined in clause (a) above, except that
a person shall be deemed to have "beneficial ownership" of all shares that any
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 30% of the total voting power of the Voting Stock of the Borrower;
PROVIDED, that the Permitted Holders "beneficially own" (as defined in clause
(a) above), directly or indirectly, in the aggregate a lesser percentage of the
total voting power of the Voting Stock of the Borrower than such other person
and do not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of Directors of the
Borrower (for the purposes of this clause (b) such other person shall be deemed
to beneficially own any Voting Stock of a specified corporation held by a parent
corporation, if such other person "beneficially owns" (as defined in this clause
(b)), directly or indirectly, more than 30% of the voting power of the Voting
Stock of such parent corporation and the Permitted Holders "beneficially own"
(as defined in clause (a) above), directly or indirectly, in the aggregate a
lesser percentage of the voting power of the Voting Stock of such parent
corporation and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board of
Directors of such parent corporation), or (c) during any period of two
consecutive years individuals who at the beginning of such period constituted
the Board of Directors of the Borrower (together with any new directors whose
election by such Board of Directors or whose nomination for election by the
stockholders of the Borrower was approved by either (i) the Permitted Holders or
(ii) a vote of a majority of the directors of the Borrower then still in office
who were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Borrower then in office;
or (B) the occurrence of a Senior Subordinated Notes Change of Control.
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"Charter Oak" shall mean Charter Oak Partners, a Connecticut
limited partnership and Charter Oak Capital Partners, a Connecticut limited
partnership.
"Charter Oak Warrant Agreement" shall mean the Warrant Agreement,
dated as of March 25, 1997, between the Borrower and Charter Oak, as amended
through the date hereof.
"Charter Oak Warrants" shall mean the Warrants issued to Charter
Oak pursuant to the Charter Oak Warrant Agreement.
"Class A Common Stock" shall mean the Borrower's Class A voting
common stock, par value $1.00 per share.
"Class B Common Stock" shall mean the Borrower's Class B
non-voting common stock, par value $1.00 per share.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
date of this Agreement and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each
of the Security Documents.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Banks pursuant to the Security Documents.
"Collective Bargaining Agreements" shall have the meaning
provided in Section 5.06(vi).
"Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"Common Management Fund" shall mean with respect to any Person, a
fund under common control with such Person.
"Consolidated Capital Expenditures" shall mean, for any period,
the aggregate of all expenditures (whether paid in cash or accrued as
liabilities and including in all events all amounts expended or capitalized
under Capital Leases but excluding any amount representing capitalized interest)
by the Borrower and its Subsidiaries during that period that, in conformity with
GAAP, are or are required to be included in the property, plant or equipment
reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries.
"Consolidated EBIT" shall mean, for any period, (A) the sum of
the amounts for such period of (i) Consolidated Net Income, (ii) provisions for
taxes based on income, (iii) Consolidated Net Interest Expense, (iv)
amortization or write-off of deferred financing costs to the extent deducted in
determining Consolidated Net Income and (v) losses on sales of assets (excluding
sales in the
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ordinary course of business) and other extraordinary or nonrecurring losses LESS
(B) the amount for such period of gains on sales of assets (excluding sales in
the ordinary course of business) and other extraordinary or nonrecurring gains,
all as determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, the sum of the
amounts for such period of (i) Consolidated EBIT, (ii) depreciation expense for
the Borrower and its Subsidiaries, (iii) amortization expense for the Borrower
and its Subsidiaries and (iv) depletion and all other non-cash charges included
in Consolidated Net Income during such period, all as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Indebtedness" shall mean, as at any date of
determination, the aggregate amount of all Indebtedness of the Borrower and its
Subsidiaries on a consolidated basis.
"Consolidated Net Income" shall mean, for any period, the net
income (or loss) of the Borrower and its Subsidiaries on a consolidated basis
for such period taken as a single accounting period determined in conformity
with GAAP, PROVIDED that there shall be excluded (i) the income (or loss) of any
Person (other than the Borrower or its Subsidiaries) in which any other Person
(other than the Borrower or any of its Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Borrower or any of its Subsidiaries by such Person during such
period, (ii) the income (or loss) of any Person (except any Person that is a
Subsidiary of the Borrower prior to any merger or consolidation) accrued prior
to the date it becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries or that Person's
assets are acquired by the Borrower or any of its Subsidiaries, (iii) the income
of any Subsidiary of the Borrower to the extent that the declaration or payment
of dividends or similar distributions by that Subsidiary of that income is not
at the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary, (iv) , (v) compensation expense resulting from
the issuance of capital stock, stock options or stock appreciation rights issued
to former or current employees, including officers, of the Borrower or any
Subsidiary of the Borrower, or the exercise of such options or rights, in each
case to the extent the obligation (if any) associated therewith is not expected
to be settled by the payment of cash by the Borrower or any Affiliate of the
Borrower and (vi) compensation expense resulting from the repurchase of capital
stock, options and rights described in clause (v) of this definition of
Consolidated Net Income.
"Consolidated Net Indebtedness" shall mean, at any date of
determination, an amount equal to the amount of Consolidated Indebtedness at
such time less the amount of cash and Cash Equivalents held by the Borrower and
its Subsidiaries at such time.
"Consolidated Net Interest Expense" shall mean, for any period,
(A) total interest expense (including that attributable to Capital Leases in
accordance with GAAP) of the Borrower and its Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries, including, without limitation, all capitalized interest,
commitment commissions and agency fees, but excluding (x) all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs
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under Interest Rate Agreements and (y) Transaction Expenses less (B) the total
interest income of the Borrower and its Subsidiaries on a consolidated basis.
"Contingent Obligations" shall mean, as to any Person, any
obligation of such Person guaranteeing or intending to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b) to advance or
supply funds (i) for the purchase or payment of any such primary obligation or
(ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (d) otherwise to assure or hold
harmless the owner of such primary obligation against loss in respect thereof;
PROVIDED, that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Bank" shall mean each Existing Bank with a Revolving
Loan Commitment under this Agreement.
"Credit Documents" shall mean this Agreement, each of the Notes,
each of the Security Documents, the Security Documents Acknowledgment, the
Subsidiary Guaranty Acknowledgment and any other documents executed in
connection with any of the foregoing.
"Credit Event" shall mean and include the making of a Loan or the
issuance of a Letter of Credit.
"Credit Party" shall mean the Borrower and the Subsidiary
Guarantors.
"CSE Warrant Agreement" shall mean the Warrant Agreement, dated
as of March 25, 1997, as amended and restated, between the Borrower and GEO
Chemicals Limited, successor-in-interest by merger, to Chemical Specialties
Enterprises, L.P.
"CSE Warrants" shall mean the Warrants issued to GEO Chemicals
Limited, successor-in-interest by merger, to Chemical Specialties Enterprises,
L.P., pursuant to the CSE Warrant Agreement.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
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"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"Dividends" shall have the meaning provided in Section 8.08.
"Documents" shall mean, collectively, (a) the Credit Documents
and (b) the Transaction Documents.
"Eligible Transferee" shall mean and include a commercial bank,
financial institution or other "accredited investor" (as defined by Regulation D
of the Securities Act of 1933).
"Employment Agreements" shall have the meaning provided in
Section 5.06(v).
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, administrative investigations or
proceedings relating in any way to any violation of or any liability under any
Environmental Law or any permit issued, or under any approval given, under any
such Environmental Law (hereafter, "Claims"), including, without limitation, (a)
any and all Claims by governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and (b) any and all Claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials arising from alleged injury
or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code, rule of common
law or written and binding policy or guide, now or hereafter in effect and in
each case as amended, and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment,
relating to the environment, health, safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. ss. 1251 ET SEQ.; the Toxic Substances Control Act, 15 U.S.C.
ss. 7401 ET SEQ.; the Clean Air Act, 42 U.S.C. ss. 7401 ET SEQ.; the Safe
Drinking Water Act, 42 U.S.C. ss. 3808 ET SEQ.; the Oil Pollution Act of 1990,
33 U.S.C. ss. 2701 ET SEQ.; and any applicable state and local or foreign
counterparts or equivalents.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at the
date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section
3(9) of ERISA) which together with the Borrower or a Subsidiary of the Borrower
would be deemed to be a "single employer" (i) within the meaning of Section
414(b), (c), (m) or (o) of the Code or (ii) as a
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result of the Borrower or a Subsidiary of the Borrower being or having been a
general partner of such person.
"Eurodollar Loans" shall mean each Loan bearing interest at the
rates provided in Section 1.08(b).
"Eurodollar Margin" shall mean 2.25%.
"Eurodollar Rate" shall mean with respect to each Interest Period
for a Eurodollar Loan, (i) the offered quotation to first-class banks in the New
York interbank Eurodollar market by the Administrative Agent for dollar deposits
of amounts in same day funds comparable to the outstanding principal amount of
the Eurodollar Loan for which an interest rate is then being determined with
maturities comparable to the Interest Period to be applicable to such Eurodollar
Loan, determined as of 10:00 A.M. (New York time) on the date which is two
Business Days prior to the commencement of such Interest Period divided (and
rounded upward to the next whole multiple of 1/16 of 1%) by (ii) a percentage
equal to 100% minus the then stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves) applicable to any member bank of the Federal Reserve System
in respect of Eurocurrency liabilities as defined in Regulation D (or any
successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 9.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Existing Bank" shall mean each Person which was a "Bank" under,
and as defined in, the Existing Credit Agreement immediately prior to the
Restatement Effective Date.
"Existing Credit Agreement" shall have the meaning provided in
the recitals to this Agreement.
"Existing Indebtedness" shall have the meaning provided in
Section 6.21.
"Existing Indebtedness Agreements" shall have the meaning
provided in Section 5.06(ii).
"Existing Letter of Credit" shall have the meaning provided in
Section 2.01(a) of this Agreement.
"Existing Loans" shall mean all "Loans" under, and as defined in
the Existing Credit Agreement.
"Existing Mortgage" shall have the meaning provided in Section
5.14.
"Existing Mortgage Amendments" shall have the meaning provided in
Section 5.14.
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"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
Funds brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to
in, Section 3.01.
"FIRREA" shall mean Financial Institution Reform, Recovery and
Enforcement Act of 1989.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on the date of this Agreement; it being
understood and agreed that determinations in accordance with GAAP for purposes
of Section 8, including defined terms as used therein, are subject (to the
extent provided therein) to Section 12.07(a).
"GEO Holdings (Europe)" shall mean GEO Holdings (Europe), a
French societe a responsibilite limitee recorded on the Register of Companies of
Paris under No. B 424 155 232.
"GEO Shareholders' Agreement" shall mean the Amended and Restated
Shareholders Agreement, dated as of July 31, 1998, among the Borrower, Charter
Oak, GEO Chemicals, Ltd., George P. Ahearn, William P. Eckman, George W. Rapp,
Jr. and A. Elliot Archer, as amended through the date hereof.
"Hazardous Materials" shall mean (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous waste," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar meaning and regulatory effect, under any applicable Environmental Law;
and (c) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority.
"Indebtedness" of any Person shall mean, without duplication, (i)
all indebtedness of such Person for borrowed money, (ii) the deferred purchase
price of assets or services which in accordance with GAAP would be shown on the
liability side of the balance sheet of such Person, (iii) the face amount of all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person, whether
or not such indebtedness has been assumed, (v) all Capitalized Lease Obligations
of such Person, (vi) all obligations of such
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Person to pay a specified purchase price for goods or services whether or not
delivered or accepted, I.E., take-or-pay and similar obligations, (vii) all net
obligations of such Person under Interest Rate Agreements and (viii) all
Contingent Obligations of such Person, (other than Contingent Obligations
arising from the guaranty by such Person of the obligations of the Borrower
and/or its Subsidiaries to the extent such guaranteed obligations do not
constitute Indebtedness), PROVIDED that Indebtedness shall not include trade
payables, deferred revenue, taxes and accrued expenses, in each case arising in
the ordinary course of business.
"Information Systems and Equipment" shall mean all computer
hardware, firmware and software, as well as other information processing
systems, or any equipment containing embedded microchips, whether directly
owned, licensed, leased, operated or otherwise controlled by the Borrower or any
of its Subsidiaries, including through third-party service providers, and which,
in whole or in part, are used, operated, relied upon, or integral to, the
Borrower's or any of its Subsidiaries' conduct of their business.
"Interest Coverage Ratio" shall mean, for any Test Period, the
ratio of (i) Consolidated EBITDA for such Test Period to (ii) Consolidated Net
Interest Expense for such Test Period.
"Interest Period" with respect to any Eurodollar Loan shall mean
the interest period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Agreement" shall mean any interest rate swap
agreement, any interest rate cap agreement, any interest rate collar agreement
or other similar agreement or arrangement designed to hedge the position of the
Borrower or any Subsidiary with respect to interest rates.
"L/C Supportable Obligations" shall mean (i) obligations of the
Borrower or its Subsidiaries incurred in the ordinary course of business with
respect to insurance obligations and workers' compensation, surety bonds and
other similar statutory obligations (including taxes, licenses and other similar
requirements) and (ii) such other obligations of the Borrower or any of its
Subsidiaries as are permitted to exist pursuant to the terms of this Agreement.
"Leasehold" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean BTCo and any other Bank
which at the request of the Borrower and with the consent of the Administrative
Agent agrees, in such Bank's sole discretion, to become a Letter of Credit
Issuer for purposes of issuing Letters of Credit pursuant to Section 2.
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"Letter of Credit Outstandings" shall mean, at any time, the sum
of, without duplication, (i) the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings in
respect of all Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Leverage Ratio" shall mean, at any date of determination, the
ratio of (i) Consolidated Net Indebtedness on such date to (ii) Consolidated
EBITDA for the Test Period most recently ended (taken as one accounting period)
provided that in the case of a Test Period ended before the first anniversary of
the Restatement Effective Date, for purposes of the Leverage Ratio only,
Consolidated EBITDA for such Test Period shall be multiplied by a fraction the
numerator of which is 365 and the denominator of which is the number of days
actually elapsed during the respective Test Period.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement or any
lease in the nature thereof).
"Loan" shall mean each Revolving Loan and each Swingline Loan.
"Management Agreements" shall have the meaning provided in
Section 5.06(iv).
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(c).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on
the business, property, assets, liabilities, operations, condition (financial or
otherwise) or prospects of the Borrower or of the Borrower and its Subsidiaries
taken as a whole, after giving effect to the Transaction.
"Maturity Date" shall mean July 31, 2003.
"Maximum Swingline Amount" shall mean $1,000,000.
"Minimum Borrowing Amount" shall mean (i) for Revolving Loans
maintained as Base Rate Loans, $250,000 and (ii) for Revolving Loans maintained
as Eurodollar Loans, $500,000.
"Moody's" shall have the meaning provided in the definition of
Cash Equivalents.
"Mortgage" shall mean and include each New Mortgage and each
Existing Mortgage, PROVIDED that after the execution and delivery thereof, each
Additional Mortgage shall also constitute a Mortgage.
"Mortgage Policies" shall mean and include each New Mortgage
Policy and each Existing Mortgage Policy.
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"Mortgaged Properties" shall mean each of the Real Properties
listed on Annex VIII hereto and designated either as a "New Mortgage Property"
or "Existing Mortgaged Property" thereon and, after the execution and delivery
of any Additional Mortgage, shall include the respective Additional Mortgaged
Property.
"Multiemployer Plan" shall have the meaning provided in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean, with respect to any Asset Sale,
the Cash Proceeds resulting therefrom net of expenses of sale (including payment
of principal, premium and interest of other Indebtedness secured by the assets
that were the subject of the Asset Sale and required to be, and which is, repaid
under the terms thereof as a result of such Asset Sale, commissions, reasonable
costs, attorneys' fees and accountants' fees), and incremental taxes paid or
payable as a result thereof; PROVIDED that Net Cash Proceeds shall not include
cash deposited with the Administrative Agent pursuant to a cash collateral
arrangement pursuant to this Agreement.
"New Bank" shall mean each Bank on the Restatement Effective Date
which is not an Existing Bank.
"New Mortgages" shall have the meaning provided in Section 5.13.
"New Mortgage Policies" shall have the meaning provided in
Section 5.13.
"New Mortgaged Property" shall have the meaning provided in
Section 5.13.
"Non-Continuing Bank" shall mean any Existing Bank which does not
have a Revolving Loan Commitment under this Agreement.
"Non-Defaulting Bank" shall mean each Bank other than a
Defaulting Bank.
"Note" shall mean and include each Revolving Note and the
Swingline Note.
"Notice of Borrowing" shall mean any written notice of Borrowing
delivered pursuant to Section 1.03(a) or 1.03(b).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent
located at 130 Liberty Street, New York, New York or such other office as the
Administrative Agent may designate to the Borrower from time to time.
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time existing,
owing to the Administrative Agent, the Collateral Agent or any Bank pursuant to
the terms of this Agreement or any other Credit Document.
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"Participant" shall have the meaning provided in Section 2.05(a).
"Payment Office" shall mean the office of the Administrative
Agent located at 130 Liberty Street, New York, New York or such other office as
the Administrative Agent may designate to the Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall have the meaning provided in
Section 8.02(m).
"Permitted Business" shall mean any line of business in which the
Borrower and its Subsidiaries are permitted to engage under Section 8.01.
"Permitted Encumbrances" shall mean, with respect to any Real
Property subject to a Mortgage or an Additional Mortgage, such exceptions to
title as are set forth in the title insurance policy or title commitment
delivered with respect thereto, all of which exceptions must be reasonably
acceptable to the Administrative Agent.
"Permitted Holders" shall mean George P. Ahearn and William P.
Eckman and the holders of the capital stock of the Borrower on the Restatement
Effective Date (after giving effect to the Transaction).
"Permitted Liens" shall have the meaning provided in Section
8.03.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower, a Subsidiary of the Borrower or an
ERISA Affiliate, and each such plan for the five-year period immediately
following the latest date on which the Borrower, a Subsidiary of the Borrower,
or an ERISA Affiliate maintained, contributed to or had an obligation to
contribute to such plan.
"Pledge Agreement" shall mean the Amended and Restated Pledge
Agreement, dated as of May 24, 1999 (as amended, modified and supplemented from
time to time, including, without limitation, to the Restatement Effective Date),
made by the Borrower, in favor of BTCo, as Collateral Agent for the benefit of
the Secured Creditors (as defined in the Pledge Agreement).
"Pledge Agreement Collateral" shall mean all Collateral as
defined in the Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the
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lowest or best rate actually charged to any customer. BTCo may make commercial
loans or other loans at rates of interest at, above or below the Prime Lending
Rate.
"Projections" shall have the meaning set forth in Section 5.19.
"Quarterly Payment Date" shall mean the last Business Day of
March, June, September and December, occurring after the Restatement Effective
Date.
"RCRA" shall mean the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901 ET SEQ.
"Real Property" of any Person shall mean all of the right, title
and interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any of
its Subsidiaries of any cash insurance proceeds or condemnation award payable
(i) by reason of theft, loss, physical destruction or damage or any other
similar event with respect to any property or asset of the Borrower or any of
its Subsidiaries, or (ii) by reason of any condemnation, taking, seizing or
similar event with respect to any property or asset of the Borrower or any of
its Subsidiaries.
"Refinancing" shall have the meaning provided in Section 5.20.
"Register" shall have the meaning provided in Section 12.16.
"Regulation D" shall mean Regulation D of the Board of Governors
of the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof establishing reserve requirements.
"Regulation T, U and X" shall mean Regulations T, U and X of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof establishing margin requirements.
"Reinvestment Assets" shall mean any assets to be employed in the
business of the Borrower and its Subsidiaries as described in Sections 3.03(c)
and 8.02(f).
"Reinvestment Election" shall have the meaning provided in
Section 3.03(c).
"Reinvestment Commitment Reduction Amount" shall mean, with
respect to any Reinvestment Election, the amount, if any, on the Reinvestment
Commitment Reduction Date relating thereto by which (a) the Anticipated
Reinvestment Amount in respect of such Reinvestment Election exceeds (b) the
aggregate amount thereof expended by the Borrower and its Subsidiaries to
acquire Reinvestment Assets.
"Reinvestment Commitment Reduction Date" shall mean, with respect
to any Reinvestment Election, the earliest of (i) the date, if any, upon which
the Administrative Agent, on behalf of the Required Banks, shall have delivered
a written termination notice to the
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Borrower, provided that such notice may only be given while an Event of Default
exists, (ii) the date occurring one year after such Reinvestment Election and
(iii) the date on which the Borrower shall have determined not to, or shall have
otherwise ceased to, proceed with the purchase, construction or other
acquisition of Reinvestment Assets with the related Anticipated Reinvestment
Amount.
"Reinvestment Notice" shall mean a written notice signed by an
Authorized Officer of the Borrower stating that the Borrower, in good faith,
intends and expects to use all or a specified portion of the Net Cash Proceeds
of an Asset Sale to purchase, construct or otherwise acquire Reinvestment
Assets.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section
1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA
other than those events as to which the 30-day notice period is waived under
subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"Required Appraisal" shall have the meaning provided in Section
7.11(d).
"Required Banks" shall mean Non-Defaulting Banks whose Revolving
Loan Commitments (or, if after the termination thereof, outstanding Revolving
Loans and Adjusted RC Percentage of outstanding Swingline Loans and Letter of
Credit Outstandings) constitute greater than 50% of the Adjusted Total Revolving
Loan Commitment (or, if after the termination thereof, the sum of the then total
outstanding Revolving Loans of Non-Defaulting Banks and the aggregate Adjusted
RC Percentages of all Non-Defaulting Banks of the total outstanding Swingline
Loans and Letter of Credit Outstandings at such time).
"Restatement Effective Date" shall have the meaning provided in
Section 12.10.
"Revolving Loan" shall have the meaning provided in Section
1.01(a).
"Revolving Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name in Annex I directly below
the column entitled "Revolving Loan Commitment," (x) as the same may be reduced
from time to time pursuant to Sections 3.02, 3.03 and/or 9 or (y) adjusted from
time to time as a result of assignments to or from such Bank pursuant to Section
12.04.
"Revolving Note" shall have the meaning provided in Section
1.05(a)(i).
"Revolving Percentage" shall mean at any time for each Bank, the
percentage obtained by dividing such Bank's Revolving Loan Commitment by the
Total Revolving Loan Commitment, PROVIDED that if the Total Revolving Loan
Commitment has been terminated, the Revolving Percentage of each Bank shall be
determined by dividing such Bank's Revolving
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Loan Commitment immediately prior to such termination by the Total Revolving
Loan Commitment immediately prior to such termination.
"Rhod Six" shall mean Rhod Six, a French societe anonyme, having
its registered office at 25, quai Paul Doumer, 92408 Courbevoie, France recorded
in the Register of Companies of Nanterre under No. 423 113 349 RCS Nanterre.
"Rhodia Chimie" shall mean Rhodia Chimie, a French societe
anonyme, having its registered office at 25, quai Paul Doumer, 92408 Courbevoie,
France, recorded in the Register of Companies of Nanterre under No. 642 014 526
RCS Nanterre.
"S&P" shall have the meaning provided in the definition of Cash
Equivalents.
"SEC" shall mean the Securities and Exchange Commission and any
successor thereto.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided
in Section 4.04(b)(ii).
"Securities" shall mean all the Securities as defined in the
Pledge Agreement.
"Security Agreement" shall mean the Security Agreement, dated as
of March 25, 1997 (as amended, modified and supplemented from time to time,
including, without limitation, to the Restatement Effective Date), made by the
Borrower, in favor of BTCo, as Collateral Agent for the benefit of the Secured
Creditors (as defined in the Security Agreement).
"Security Agreement Collateral" shall mean all "Collateral" as
defined in the Security Agreement.
"Security Documents" shall mean the Pledge Agreement, the
Security Agreement, each Mortgage and each Additional Mortgage, if any.
"Security Documents Acknowledgment" shall have the meaning
provided in Section 5.12.
"Senior Subordinated Notes" shall mean the $120,000,000 in
aggregate principal amount of 10 1/8% Senior Subordinated Notes due 2008, Series
A, as in effect on the Restatement Effective Date and after giving effect to any
changes, amendments or supplements made pursuant to the terms thereto and
hereto, issued by the Borrower pursuant to the Senior Subordinated Note
Indenture. The Senior Subordinated Notes include any unsecured senior
subordinated notes into which the Senior Subordinated Notes are exchanged
pursuant to the Senior Subordinated Notes Documents.
"Senior Subordinated Notes Change of Control" shall mean a
"Change of Control" under, and as defined in, the Senior Subordinated Notes
Indenture.
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"Senior Subordinated Notes Documents" shall mean and include each
of the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and
all securities purchase agreements and other documents and agreements related
thereto, as in effect on the Restatement Effective Date and after giving effect
to any changes, amendments or supplements made pursuant to the terms thereto and
hereto.
"Senior Subordinated Notes Indenture" shall mean the indenture
pursuant to which the Senior Subordinated Notes are issued, dated as of July 31,
1998, between the Borrower and Chase Manhattan Trust Company, National
Association as Trustee, as in effect on the Restatement Effective Date and after
giving effect to any changes, amendments or supplements made pursuant to the
terms thereto and hereto.
"Shareholders' Agreements" shall have the meaning provided in
Section 5.06(iii).
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Stated Amount" of each Letter of Credit shall mean the maximum
amount available to be drawn thereunder (regardless of whether any conditions
for drawing could then be met).
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person directly
or indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Subsidiary Guarantors" shall mean each Subsidiary of the
Borrower incorporated in the United States or any State thereof.
"Subsidiary Guaranty" shall mean the Subsidiary Guaranty, dated
as of May 24, 1999 (as amended, modified and supplemented from time to time,
including, without limitation, to the Restatement Effective Date), made by the
Guarantors (as defined thereunder), to BTCo, as Collateral Agent, for the
benefit of the Secured Creditors (as defined in the Subsidiary Guaranty).
"Subsidiary Guaranty Acknowledgment" shall have the meaning
provided in Section 5.11.
"Swingline Bank" shall mean BTCo and its successors and assigns.
"Swingline Expiry Date" shall mean the date which is five
Business Days prior to the Maturity Date.
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"Swingline Loan" shall have the meaning provided in Section
1.01(b).
"Swingline Note" shall have the meaning provided in Section
1.05(a)(ii).
"Tax Sharing Agreement" shall have the meaning provided in
Section 5.06(vii).
"Taxes" shall have the meaning provided in Section 4.04(a).
"Test Period" shall mean each period of four consecutive fiscal
quarters of the Borrower (or, if shorter, the period beginning on the
Restatement Effective Date and ending on the last day of a fiscal quarter of the
Borrower ended after the Restatement Effective Date), in each case taken as one
accounting period, ended after the Restatement Effective Date.
"Total Revolving Loan Commitment" shall mean the sum of the
Revolving Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at any
time, (i) the Total Revolving Loan Commitment at such time less (ii) the sum of
the aggregate principal amount of all Revolving Loans and Swingline Loans
outstanding at such time plus the Letter of Credit Outstandings at such time.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Transaction" shall mean, collectively, (i) the Refinancing, (ii)
the amendment and restatement of the Existing Credit Agreement in the form of
this Agreement, (iii) the consummation of the Acquisition, (iv) the incurrence
of Revolving Loans on the Restatement Effective Date and (v) the payment of all
fees and expenses to be paid in connection with the foregoing.
"Transaction Documents" shall mean, collectively, (i) the
Acquisition Documents and (ii) all other documents and agreements (other than
the Credit Documents) entered into in connection with the Transaction.
"Transaction Expenses" shall mean all fees and expenses incurred
in connection with, and payable prior to or in connection with the closing of,
the Transaction including all fees paid to any of the Banks and the
Administrative Agent hereunder, attorney's fees, accountants' fees, placement
agents' fees, consultant fees, discounts and commissions and brokerage, and
employee relocation expenses. Transaction Expenses shall include the
amortization of any such fees and expenses that are capitalized and not
classified as an expense on the date incurred.
"Type" shall mean any type of Revolving Loan determined with
respect to the interest option applicable thereto, I.E., a Base Rate Loan or
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code, as in effect from
time to time in the relevant jurisdiction.
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"Unfunded Current Liability" of any Plan shall mean the amount,
if any, by which the actuarial present value of the accumulated plan benefits
under the Plan as of the close of its most recent plan year, determined in
accordance with actuarial assumptions at such time consistent with Financial
Accounting Standards No. 87 exceeds the market value of the assets allocable
thereto, each determined in accordance with Statement of Financial Accounting
Standards No. 87.
"Unpaid Drawing" shall have the meaning provided in Section
2.04(a).
"Unutilized Revolving Loan Commitment" for any Bank with a
Revolving Loan Commitment at any time shall mean the excess of (i) the Revolving
Loan Commitment of such Bank over (ii) the sum of (x) the aggregate outstanding
principal amount of Revolving Loans made by such Bank plus (y) an aggregate
amount equal to such Bank's Adjusted RC Percentage of the Letter of Credit
Outstandings at such time.
"Voting Stock" shall mean any class or classes of capital stock
of the Borrower pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the Board of
Directors of the Borrower.
"Warrant Agreements" shall mean, collectively, the CSE Warrant
Agreement and the Charter Oak Warrant Agreement.
"Warrants" shall mean, collectively, the CSE Warrants and the
Charter Oak Warrants.
"Wholly-Owned Domestic Subsidiary" shall mean each Wholly-Owned
Subsidiary of the Borrower that is incorporated under the laws of the United
States or any State thereof.
"Wholly-Owned Subsidiary" of any Person shall mean any Subsidiary
of such Person to the extent all of the capital stock or other ownership
interests in such Subsidiary, other than directors' qualifying shares, is owned
directly or indirectly by such Person.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex, facsimile transmission,
telegraph or cable.
"Year 2000 Compliant" shall mean that all Information Systems and
Equipment accurately process date data (including, but not limited to,
calculating, comparing and sequencing), before, during and after the year 2000,
as well as same and multi-century dates, or between the years 1999 and 2000,
taking into account all leap years, including the fact that the year 2000 is a
leap year, and further, that when used in combination with, or interfacing with
other Information Systems and Equipment, shall accurately accept, release and
exchange date data, and shall in all material respects continue to function in
the same manner as it performs today and shall not otherwise impair the accuracy
or functionality of Information Systems and Equipment.
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SECTION 11. THE ADMINISTRATIVE AGENT.
11.01 APPOINTMENT. The Banks hereby designate Bankers Trust
Company as Administrative Agent (for purposes of this Section 11, the term
"Administrative Agent" shall include BTCo in its capacity as Collateral Agent
pursuant to the Security Documents) to act as specified herein and in the other
Credit Documents. Each Bank hereby irrevocably authorizes, and each holder of
any Note by the acceptance of such Note shall be deemed irrevocably to
authorize, the Administrative Agent to take such action on its behalf under the
provisions of this Agreement, the other Credit Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Administrative Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The
Administrative Agent may perform any of its duties hereunder or under the other
Credit Documents by or through its respective officers, directors, agents,
employees or affiliates.
11.02 NATURE OF DUTIES. The Administrative Agent shall not have
any duties or responsibilities except those expressly set forth in this
Agreement and the Security Documents. Neither the Administrative Agent nor any
of its respective officers, directors, agents, employees or affiliates shall be
liable for any action taken or omitted by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, unless caused by
its or their gross negligence or willful misconduct (in either case, as
determined by a court of competent jurisdiction). The duties of the
Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Bank or the holder of
any Note; and nothing in this Agreement or any other Credit Document, expressed
or implied, is intended to or shall be so construed as to impose upon the
Administrative Agent any obligations in respect of this Agreement or any other
Credit Document except as expressly set forth herein or therein.
11.03 LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT. Independently
and without reliance upon the Administrative Agent, each Bank and the holder of
each Note, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and
affairs of the Borrower and its Subsidiaries in connection with the making and
the continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of the
Borrower and its Subsidiaries and, except as expressly provided in this
Agreement, the Administrative Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to provide any Bank or the holder of
any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter. The Administrative Agent shall not be responsible to any Bank
or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectability, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of the Borrower and its Subsidiaries or be required to make any
inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or the
financial
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condition of the Borrower and its Subsidiaries or the existence or possible
existence of any Default or Event of Default.
11.04 CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Banks with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Banks;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, neither any Bank nor the
holder of any Note shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Banks.
11.05 RELIANCE. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed to be
the proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Credit Document and its duties hereunder and thereunder,
upon advice of counsel selected by the Administrative Agent (which may be
counsel for the Borrower).
11.06 INDEMNIFICATION. To the extent the Administrative Agent is
not reimbursed and indemnified by the Borrower or the Subsidiary Guarantors, the
Banks will reimburse and indemnify the Administrative Agent, in proportion to
their respective "percentages" as used in determining the Required Banks, for
and against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever kind
or nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its respective duties hereunder or under any
other Credit Document, in any way relating to or arising out of this Agreement
or any other Credit Document; PROVIDED that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct (in either case,
as determined by a court of competent jurisdiction).
11.07 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. With
respect to its obligation to make Loans under this Agreement, the Administrative
Agent shall have the rights and powers specified herein for a "Bank" and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the term "Banks," "Required Banks," "holders of Notes" or
any similar terms shall, unless the context clearly otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative Agent
may accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with any Credit Party or any Affiliate of any
Credit Party as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Borrower or
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any other Credit Party for services in connection with this Agreement and
otherwise without having to account for the same to the Banks.
11.08 HOLDERS. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
11.09 RESIGNATION BY THE ADMINISTRATIVE AGENT. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by giving
30 Business Days' prior written notice to the Borrower and the Banks. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Banks shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 30 Business Day period, the Administrative Agent, with the
consent of the Borrower (which consent shall not be unreasonably withheld),
shall then appoint a successor Administrative Agent who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Required Banks appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 30th Business Day after the date such
notice of resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become effective and the Required Banks shall
thereafter perform all the duties of the Administrative Agent hereunder and/or
under any other Credit Document until such time, if any, as the Banks appoint a
successor Administrative Agent as provided above.
SECTION 12. MISCELLANEOUS.
12.01 PAYMENT OF EXPENSES, ETC. The Borrower agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the negotiation, preparation, execution and delivery of the
Credit Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto (including, without limitation,
the reasonable fees and disbursements of White & Case LLP) and of the
Administrative Agent and each of the Banks in connection with the enforcement of
the Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and disbursements of counsel
for the Administrative Agent and either one outside counsel or in-house counsel
for each of the Banks); (ii) pay and hold each of the Banks harmless from and
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against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and save each of the Banks harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Bank) to pay such taxes;
and (iii) indemnify each Bank (including in its capacity as the Administrative
Agent or a Letter of Credit Issuer), its officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all losses, liabilities, claims, damages or expenses incurred by any of them
(whether asserted by the Borrower or otherwise) as a result of, or arising out
of, or in any way related to, or by reason of, (a) any investigation, litigation
or other proceeding (whether or not any Bank is a party thereto) related to the
entering into and/or performance of any Credit Document or the use of the
proceeds of any Loans hereunder or the Acquisition or the offering and sale of
the Senior Subordinated Notes or the consummation of any other transactio
contemplated in any Credit Document, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct (in either case, as
determined by a court of competent jurisdiction) of the Person to be
indemnified) or (b) the actual or alleged presence of Hazardous Materials in the
air, surface water, groundwater, surface or subsurface of any Real Property
owned or at any time operated by the Borrower or any of its Subsidiaries, the
generation, storage, transportation or disposal of Hazardous Materials at any
location whether or not owned or operated by the Borrower or any of its
Subsidiaries, the non-compliance of any Real Property owned or at any time
operated by the Borrower or any of its Subsidiaries with federal, state and
local laws, regulations, and ordinances (including applicable permits
thereunder) applicable to any such Real Property, or any Environmental Claim
asserted against the Borrower, any of its Subsidiaries, or any such Real
Property, including, in each case, without limitation, the reasonable fees and
disbursements of counsel and other consultants incurred in connection with any
such investigation, litigation or other proceeding (but excluding any losses,
liabilities, claims, damages or expenses to the extent incurred by reason of the
gross negligence or willful misconduct (in either case, as determined by a court
of competent jurisdiction) of the Person to be indemnified). To the extent that
the undertaking to indemnify, pay or hold harmless the Administrative Agent or
any Bank set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Borrower shall make the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.
12.02 RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, if an Event of Default then exists, each Bank is hereby authorized
at any time or from time to time, without presentment, demand, protest or other
notice of any kind to any Credit Party or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and apply any and
all deposits (general or special) and any other Indebtedness at any time held or
owing by such Bank (including without limitation by branches and agencies of
such Bank wherever located) to or for the credit or the account of any Credit
Party against and on account of the Obligations and liabilities of such Credit
Party to such Bank under this Agreement or under any of the other Credit
Documents, including, without limitation, all interests in Obligations of such
Credit Party purchased by such Bank pursuant to Section 12.06(b), and all other
claims of any
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nature or description arising out of or connected with this Agreement or any
other Credit Document, irrespective of whether or not such Bank shall have made
any demand hereunder and although said Obligations, liabilities or claims, or
any of them, shall be contingent or unmatured.
12.03 NOTICES. (a) Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to a Credit Party, at
the address specified opposite its signature below or in the other relevant
Credit Documents, as the case may be; if to the Administrative Agent, at its
Notice Office; if to any Bank, at its address specified for such Bank on Annex
II; or, at such other address as shall be designated by any party in a written
notice to the other parties hereto. All such notices and communications shall be
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, and shall be effective when received.
(b) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or the Swingline Bank (in the case of a Borrowing of
Swingline Loans) or any Letter of Credit Issuer, as the case may be, may prior
to receipt of written confirmation act without liability upon the basis of such
telephonic notice, believed by the Administrative Agent or the Swingline Bank or
any Letter of Credit Issuer in good faith to be from an Authorized Officer of
the Borrower. In each such case, the Borrower hereby waives the right to dispute
the Administrative Agent's or the Swingline Bank's record of the terms of such
telephonic notice.
12.04 ASSIGNMENTS; PARTICIPATIONS; ETC. (a) This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto, PROVIDED that the Borrower may not
assign or transfer any of its rights or obligations hereunder without the prior
written consent of the Banks. Each Bank may at any time grant participations in
any of its rights hereunder or under any of the Notes to another financial
institution, PROVIDED that in the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
Credit Documents (the participant's rights against such Bank in respect of such
participation to be those set forth in the agreement executed by such Bank in
favor of the participant relating thereto) and all amounts payable by the
Borrower hereunder shall be determined as if such Bank had not sold such
participation, except that the participant shall be entitled to the benefits of
Sections 1.10, 2.06 and 4.04 to the extent that such Bank would be entitled to
such benefits if the participation had not been entered into or sold, and,
PROVIDED FURTHER, that no Bank shall transfer, grant or assign any participation
under which the participant shall have rights to approve any amendment to or
waiver of this Agreement or any other Credit Document except to the extent such
amendment or waiver would (i) extend the final scheduled maturity of any Loan or
Note or Letter of Credit (unless such Letter of Credit is not extended beyond
the Maturity Date) in which such participant is participating, or reduce the
rate or extend the time of payment of interest or Fees thereon (except in
connection with a waiver of the applicability of any post-default increase in
interest rates), or reduce the principal amount thereof (it being understood
that any amendment or modification to the financial definitions in this
Agreement shall not constitute a reduction in the rate of interest for purposes
of this clause (i)), or increase such participant's participating interest in
any Revolving Loan
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Commitment over the amount thereof then in effect (it being understood that (x)
a waiver of any Default or Event of Default or of a mandatory reduction in the
Total Revolving Loan Commitment, or a mandatory prepayment, shall not constitute
a change in the terms of any Revolving Loan Commitment and (y) an increase in
any Revolving Loan Commitment or Loan shall be permitted without the consent of
any participant so long as such participant's participation is not increased as
a result thereof), (ii) release all or substantially all of the Collateral which
support the Loans in which such participant is participating (except as
expressly permitted in any Credit Document) or (iii) consent to the assignment
or transfer by the Borrower of any of its rights and obligations under this
Agreement.
(b) Notwithstanding the foregoing, (x) any Bank may assign all or
a portion of its Revolving Loan Commitment (and related outstanding Obligations
hereunder) to an Affiliate of such Bank or to another Bank, (y) with the consent
of the Administrative Agent (which consent shall not be unreasonably withheld),
any Bank may assign all or a portion of its Revolving Loan Commitment (and
related outstanding Obligations hereunder) to a Common Management Fund and (z)
with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld), any Bank may assign all or a portion of its outstanding
Revolving Loan Commitment (and related outstanding Obligations hereunder) to one
or more Eligible Transferees. No assignment pursuant to the immediately
preceding sentence shall to the extent such assignment represents an assignment
to an institution other than one or more Banks hereunder, be in an aggregate
amount less than $5,000,000 unless the entire Revolving Commitment (and related
outstanding Obligations hereunder) of the assigning Bank is so assigned. If any
Bank so sells or assigns all or a part of its rights hereunder or under the
Notes, any reference in this Agreement or the Notes to such assigning Bank shall
thereafter refer to such Bank and to the respective assignee to the extent of
their respective interests and the respective assignee shall have, to the extent
of such assignment (unless otherwise provided therein), the same rights and
benefits as it would if it were such assigning Bank. Each assignment pursuant to
this Section 12.04(b) shall be effected by the assigning Bank and the assignee
Bank executing an Assignment Agreement (the "Assignment Agreement")
substantially in the form of Exhibit I (appropriately completed). In the event
of (and at the time of) any such assignment, either the assigning or the
assignee Bank shall pay to the Administrative Agent a nonrefundable assignment
fee of $3,500, and at the time of any assignment pursuant to this Section
12.04(b), (i) Annex I shall be deemed to be amended to reflect the Revolving
Loan Commitment of the respective assignee (which shall result in a direct
reduction to the Revolving Loan Commitment of the assigning Bank) and of the
other Banks, and (ii) if any such assignment occurs after the Restatement
Effective Date, the Borrower will issue new Notes to the respective assignee and
to the assigning Bank in conformity with the requirements of Section 1.05. No
transfer or assignment under this Section 12.04(b) will be effective until
recorded by the Administrative Agent on the Register pursuant to Section 12.16.
To the extent of any assignment pursuant to this Section 12.04(b), the assigning
Bank shall be relieved of its obligations hereunder with respect to the assigned
portion of its Revolving Loan Commitment. At the time of each assignment
pursuant to this Section 12.04(b) to a Person which is not already a Bank
hereunder and which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective
assignee Bank shall provide to the Borrower and the Administrative Agent the
appropriate Internal Revenue Service Forms (and, if applicable, a Section
4.04(b)(ii) Certificate) described in
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Section 4.04(b). To the extent that an assignment of all or any portion of a
Bank's Revolving Loan Commitment and related outstanding Obligations pursuant to
Section 1.13 or this Section 12.04(b) would, at the time of such assignment,
result in increased costs under Section 1.10, 1.11, 2.06 or 4.04 which exceed
those being charged, if any, by the respective assigning Bank prior to such
assignment, then the Borrower shall not be obligated to pay such excess
increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes giving rise
to such increased costs after the date of the respective assignment). Each Bank
and the Borrower agree to execute such documents (including, without limitation,
amendments to this Agreement and the other Credit Documents) as shall be
necessary to effect the foregoing.
(c) Nothing in this Agreement shall prevent or prohibit any Bank
from pledging its Notes or Loans to a Federal Reserve Bank in support of
borrowings made by such Bank from such Federal Reserve Bank and, with the
consent of the Borrower and the Administrative Agent, any Bank which is a fund
may pledge all or any portion of its Notes or Loans to a trustee for the benefit
of investors and in support of its obligations to such investors.
(d) Notwithstanding any other provisions of this Section 12.04,
no transfer or assignment of the interests or obligations of any Bank hereunder
or any grant of participation therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file a registration statement
with the SEC or to qualify the Loans under the "Blue Sky" laws of any State.
(e) Each Bank initially party to this Agreement hereby
represents, and each Person that became a Bank pursuant to an assignment
permitted by this Section 12 will, upon its becoming party to this Agreement,
represent that it is an Eligible Transferee which makes loans in the ordinary
course of its business and that it will make or acquire Loans for its own
account in the ordinary course of such business, PROVIDED that subject to the
preceding clauses (a) and (b), the disposition of any promissory notes or other
evidences of or interests in Indebtedness held by such Bank shall at all times
be within its exclusive control.
12.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of the Administrative Agent or any Bank in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of dealing
between any Credit Party and the Administrative Agent or any Bank shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any Bank would otherwise have. No notice to or demand on
any Credit Party in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent or the Banks to any other or
further action in any circumstances without notice or demand.
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12.06 PAYMENTS PRO RATA. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of any Credit Party
in respect of any Obligations of such Credit Party hereunder, it shall
distribute such payment to the Banks (other than any Bank that has expressly
waived its right to receive its PRO RATA share thereof) PRO RATA based upon
their respective shares, if any, of the Obligations with respect to which such
payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Banks is in a greater proportion than the total of such
Obligation then owed and due to such Bank bears to the total of such Obligation
then owed and due to all of the Banks immediately prior to such receipt, then
such Bank receiving such excess payment shall purchase for cash without recourse
or warranty from the other Banks an interest in the Obligations of the
respective Credit Party to such Banks in such amount as shall result in a
proportional participation by all of the Banks in such amount, PROVIDED that if
all or any portion of such excess amount is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price restored to the extent
of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 12.06(a) and (b) shall be subject to
the express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
12.07 CALCULATIONS; COMPUTATIONS. (a) The financial statements to
be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Banks), PROVIDED that (x) except as otherwise
specifically provided herein, all computations determining compliance with
Section 8, including definitions used therein shall utilize accounting
principles and policies in effect at the time of the preparation of, and in
conformity with those used to prepare, the December 31, 1998 historical
financial statements of the Borrower delivered to the Banks as described in
Section 6.10(b) and (y) that if at any time the computations determining
compliance with Section 8, including definitions used therein, utilize
accounting principles different from those utilized in the financial statements
furnished to the Banks, such financial statements shall be accompanied by
reconciliation work-sheets.
(b) All computations of interest, Commitment Commission and Fees
hereunder shall be made on the basis of a year of 360 days for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest, Commitment Commission or Fees are payable.
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12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) This Agreement and the other Credit Documents and the rights and
obligations of the parties hereunder and thereunder shall be construed in
accordance with and be governed by the law of the state of New York. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Agreement, each Credit Party hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each Credit Party to this Agreement hereby further irrevocably
waives any claim that any such courts lack jurisdiction over such Credit Party,
and agrees not to plead or claim, in any legal action or proceeding with respect
to this Agreement or any other Credit Document brought in any of the aforesaid
courts, that any such court lacks jurisdiction over such Credit Party. The
Borrower hereby irrevocably designates, appoints and empowers CT Corporation
System, with offices on the date hereof at 1633 Broadway, New York, New York
10019 as its designee, appointee and agent to receive, accept and acknowledge
for and on its behalf, and in respect of its property, service of any and all
legal process, summons, notices and documents which may be served in any such
action or proceeding. If for any reason such designee, appointee and agent shall
cease to be available to act as such, each credit party agrees to designate a
new designee, appointee and agent in New York City on the terms and for the
purposes of this provision satisfactory to the Administrative Agent under this
Agreement. The Borrower further irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
any credit party at its address set forth opposite its signature below, such
service to become effective 30 days after such mailing. Nothing herein shall
affect the right of the Administrative Agent or any Bank to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against any Credit Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement or any other Credit Document brought in the courts referred to in
clause (a) above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
(c) Each of the parties to this Agreement hereby irrevocably
waives all right to a trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement, the other Credit Documents or the
transactions contemplated hereby or thereby.
12.09 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
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12.10 EFFECTIVENESS. This Agreement shall become effective on the
date (the "Restatement Effective Date") on which (i) the Borrower, the
Administrative Agent and each of the Banks shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered the
same to the Administrative Agent at the Notice Office of the Administrative
Agent or, in the case of the Banks, shall have given to the Administrative Agent
telephonic (confirmed in writing), written telex or facsimile transmission
notice (actually received) at such office that the same has been signed and
mailed to it and (ii) the conditions set forth in Section 5 are met to the
satisfaction of, or waived in writing by, the Administrative Agent and the
Required Banks. Unless the Administrative Agent has received actual notice from
any Bank that the conditions contained in Section 5 have not been met to its
satisfaction or waived by it in writing, upon the satisfaction of the condition
described in clause (i) of the immediately preceding sentence and upon the
Administrative Agent's good faith determination that the conditions described in
clause (ii) of the immediately preceding sentence have been met or waived in
writing, then the Restatement Effective Date shall be deemed to have occurred on
the date determined by clause (i), regardless of any subsequent determination
that one or more of the conditions thereto had not been met (although the
occurrence of the Restatement Effective Date shall not release the Borrower from
any liability for failure to satisfy one or more of the applicable conditions
contained in Section 5).
12.11 HEADINGS DESCRIPTIVE. The headings of the several sections
and subsections of this Agreement are inserted for convenience only and shall
not in any way affect the meaning or construction of any provision of this
Agreement.
12.12 AMENDMENT OR WAIVER. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Borrower and the Required Banks, PROVIDED that no such
change, waiver, discharge or termination shall, without the consent of each Bank
(other than a Defaulting Bank) (with Obligations being directly affected thereby
in the case of the following clause (i)), (i) extend the final scheduled
maturity date of any Loan or Note or extend the stated maturity of any Letter of
Credit beyond the Maturity Date, or reduce the rate or extend the time of
payment of interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) or Fees thereon, or reduce the
principal amount thereof (it being understood that any amendment or modification
to the financial definitions in this Agreement shall not constitute a reduction
in the rate of interest for purposes of this clause (i)), (ii) release all or
substantially all of the Collateral (in each case except as expressly provided
in the Credit Documents), (iii) amend, modify or waive any provision of this
Section 12.12(a), (iv) reduce the percentage specified in the definition of
Required Banks (it being understood that, with the consent of the Required
Banks, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Banks on substantially the same
basis as Revolving Loan Commitments are included on the Restatement Effective
Date) or (v) consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement; PROVIDED FURTHER, that no such
change, waiver, discharge or termination shall (v) increase the Revolving Loan
Commitment of any Bank over the amount thereof then in effect without the
consent of such Bank (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of
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a mandatory reduction in the Total Revolving Loan Commitment shall not
constitute an increase of the Revolving Loan Commitment of any Bank, and that an
increase in the available portion of any Revolving Loan Commitment of any Bank
shall not constitute an increase in the Revolving Loan Commitment of such Bank),
(w) without the consent of each Letter of Credit Issuer, amend, modify or waive
any provision of Section 2 or alter its rights or obligations with respect to
Letters of Credit, (x) without the consent of the Administrative Agent, amend,
modify or waive any provision of Section 11 as same applies to the
Administrative Agent or any other provision as same relates to the rights or
obligations of the Administrative Agent, (y) without the consent of the
Collateral Agent, amend, modify or waive any provision relating to the rights or
obligations of the Collateral Agent or (z) without the consent of the Swingline
Bank, alter its rights or obligations with respect to Swingline Loans.
(b) If, in connection with any proposed change, waiver, discharge
or termination to any of the provisions of this Agreement as contemplated by
clauses (a)(i) through (v), inclusive, of the first proviso to Section 12.12(a),
the consent of the Required Banks is obtained but the consent of one or more of
the other Banks whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Banks whose individual
consent is required are treated as described in either clauses (A) or (B) below,
to either (A) replace each such non-consenting Bank or Banks with one or more
Replacement Banks pursuant to Section 1.13 so long as at the time of such
replacement, each such Replacement Bank consents to the proposed change, waiver,
discharge or termination or (B) terminate such non-consenting Bank's Revolving
Loan Commitment in accordance with Section 3.02(b), PROVIDED that, unless the
Revolving Loan Commitment is terminated pursuant to preceding clause (B) is
immediately replaced in full at such time through the addition of new Banks or
the increase of the Revolving Loan Commitments of existing Banks (who in each
case must specifically consent thereto), then in the case of any action pursuant
to preceding clause (B) the Required Banks (determined before giving effect to
the proposed action) shall specifically consent thereto, PROVIDED further, that
in any event the Borrower shall not have the right to replace a Bank or
terminate its Revolving Loan Commitment solely as a result of the exercise of
such Bank's rights (and the withholding of any required consent by such Bank)
pursuant to the second proviso to Section 12.12(a).
12.13 SURVIVAL. All indemnities set forth herein including,
without limitation, in Section 1.10, 1.11, 2.06, 4.04, 11.06 or 12.01 shall,
subject to the provisions of Section 12.17 (to the extent applicable), survive
the execution and delivery of this Agreement and the making and repayment of the
Loans.
12.14 DOMICILE OF LOANS. Each Bank may transfer and carry its
Loans at, to or for the account of any branch office, subsidiary or affiliate of
such Bank, PROVIDED that the Borrower shall not be responsible for costs arising
under Section 1.10, 2.06 or 4.04 resulting from any such transfer (other than a
transfer pursuant to Section 1.12) to the extent not otherwise applicable to
such Bank prior to such transfer.
12.15 CONFIDENTIALITY. Subject to Section 12.04, the Banks shall
hold all non-public information obtained pursuant to the requirements of this
Agreement which has been identified as such by the Borrower in accordance with
its customary procedure for handling
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confidential information of this nature and in accordance with safe and sound
banking practices and in any event may make disclosure reasonably required by
any BONA FIDE actual or potential transferee or participant in connection with
the contemplated transfer of any Loans or participation therein or an Affiliate
of such Bank (including attorneys, legal advisors and consultants of such Bank)
(so long as each of such actual or potential transferee, participant or
Affiliate agrees to be bound by the provisions of this Section 12.15) or as
required or requested by any governmental agency or representative thereof or
pursuant to legal process, PROVIDED that, unless specifically prohibited by
applicable law or court order, each Bank shall notify the Borrower of any
request by any governmental agency or representative thereof (other than any
such request in connection with an examination of the financial condition of
such Bank by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information, and provided further that
in no event shall any Bank be obligated or required to return any materials
furnished by the Borrower or any Subsidiary.
12.16 REGISTER. The Borrower hereby designates the Administrative
Agent to serve as the Borrower's agent, solely for purposes of this Section
12.16, to maintain a register (the "Register") on which it will record the
Revolving Loan Commitments from time to time of each of the Banks, the Loans
made by each of the Banks and each repayment in respect of the principal amount
of the Loans of each Bank. Failure to make any such recordation, or any error in
such recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Bank, the transfer of the Revolving Loan Commitment
of such Bank and the rights to the principal of, and interest on, any Loan made
pursuant to such Revolving Loan Commitment shall not be effective until such
transfer is recorded on the Register maintained by the Administrative Agent with
respect to ownership of such Revolving Loan Commitment and Revolving Loans and
prior to such recordation all amounts owing to the transferor with respect to
such Revolving Loan Commitments and Revolving Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Revolving Loan Commitments and Revolving Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment Agreement
pursuant to Section 12.04(b). Coincident with the delivery of such an Assignment
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Revolving Loan, or as soon thereafter
as practicable, the assigning or transferor Bank shall surrender the Revolving
Note evidencing such Revolving Loan, and thereupon one or more new Revolving
Notes in the same aggregate principal amount shall be issued to the assigning or
transferor Bank and/or the new Bank. The Borrower agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties under this Section
12.16.
12.17 LIMITATION ON ADDITIONAL AMOUNTS, ETC. Notwithstanding
anything to the contrary contained in Sections 1.10, 1.11, 2.06 or 4.04 of this
Agreement, unless a Bank gives notice to the Borrower that it is obligated to
pay an amount under any such Section within 150 days after the later of (x) the
date the Bank incurs the respective increased costs,
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Taxes, loss, expense or liability, reduction in amounts received or receivable
or reduction in return on capital or (y) the date such Bank has actual knowledge
of its incurrence of the respective increased costs, Taxes, loss, expense or
liability, reductions in amounts received or receivable or reduction in return
on capital, then such Bank shall only be entitled to be compensated for such
amount by the Borrower pursuant to said Section 1.10, 1.11, 2.06 or 4.04, as the
case may be, to the extent (I) the costs, Taxes, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital
are incurred or suffered on or after the date which occurs 150 days prior to
such Bank giving notice to the Borrower that it is obligated to pay the
respective amounts pursuant to said Section 1.10, 1.11, 2.06 or 4.04, as the
case may be, and (II) the notice of such payment is accompanied by a written
statement by the Banks that such amount is an amount charged by such Banks to
similarly situated borrowers. This Section 12.17 shall have no applicability to
any Section of this Agreement other than said Sections 1.10, 1.11, 2.06 and
4.04.
12.18 ADDITIONS OF NEW BANKS; TERMINATION OF COMMITMENTS OF
NON-CONTINUING BANKS; SURRENDER OF NOTES. (a) On and as of the occurrence of the
Restatement Effective Date in accordance with Section 12.10 hereof, each New
Bank shall become a "Bank" under, and for all purposes of, this Agreement and
the other Credit Documents.
(b) The parties hereto acknowledge that each Existing Bank has
been offered the opportunity to participate in this Agreement, after the
occurrence of the Restatement Effective Date, as a Continuing Bank hereunder,
but that no Existing Bank is obligated to be a Continuing Bank.
(c) Notwithstanding anything to the contrary contained in the
Existing Credit Agreement, this Agreement or any other Credit Document, the
Borrower agrees and each of the Banks hereby agree that on the Restatement
Effective Date, (i) each Bank with a Revolving Loan Commitment as set forth on
Annex I (after giving effect to the Restatement Effective Date) shall make that
principal amount of Revolving Loans to the Borrower as is required by Section
1.01 and (ii) in the case of each Non-Continuing Bank, all of such
Non-Continuing Bank's Existing Loans outstanding on the Restatement Effective
Date shall be repaid in full on such date, together with interest thereon and
all accrued Fees (and any other amounts) owing to such Non-Continuing Bank, and
the Revolving Loan Commitment (under, and as defined in, the Existing Credit
Agreement) of such Non-Continuing Bank, if any, shall be terminated, effective
upon the occurrence of the Restatement Effective Date. Notwithstanding anything
to the contrary contained in the Existing Credit Agreement, this Agreement or
any other Credit Document, the parties hereto hereby agree that in the event
that any Existing Bank shall fail to execute a counterpart of this Agreement
prior to the occurrence of the Restatement Effective Date, such Existing Bank
does not consent to the amendment and restatement of the Existing Credit
Agreement provided for herein and shall be deemed to be a Non-Continuing Bank
and, concurrently with the occurrence of the Restatement Effective Date, the
Revolving Loan Commitment (under, and as defined in, the Existing Credit
Agreement) of such Existing Bank, if any, shall be terminated, all Existing
Loans of such Existing Bank outstanding on the Restatement Effective Date shall
be repaid in full, together with interest thereon and all accrued Fees (and any
other amounts) owing to such Existing Bank, and concurrently with the occurrence
of the Restatement Effective Date, such Existing Bank shall no longer constitute
a " Bank" under this Agreement and the other Credit Documents, provided that all
indemnities of the Credit Parties under the Existing Credit Agreement and the
other Credit Documents (as in effect prior to
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the Restatement Effective Date) for the benefit of such Existing Bank shall
survive in accordance with the terms thereof.
(d) On the Restatement Effective Date, each Existing Bank shall
have surrendered to the Administrative Agent for cancellation the promissory
notes issued to it pursuant to the Existing Credit Agreement in respect of its
Existing Loans and the Administrative Agent shall promptly deliver such
cancelled promissory notes to the Borrower.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
Address:
28601 Chagrin Boulevard GEO SPECIALTY CHEMICALS, INC.
Suite 210
Cleveland, Ohio 44122
Telephone: (216) 464-5564 By: /s/ William P. Eckman
Facsimile: (216) 765-1307 ----------------------------------
Attention: George P. Ahearn Title: Executive Vice President
and Chief Financial Officer
BANKERS TRUST COMPANY,
Individually and as Administrative
Agent
By: /s/ Mary Kay Coyle
----------------------------------
Title: Managing Director
BANK UNITED
By: /s/ Phillip Green
----------------------------------
Title: Director Commercial
Syndications
US BANK NATIONAL ASSOCIATION
By: /s/ Richard G. Trembley
----------------------------------
Title: Assistant Vice President
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