SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
October 18, 1995
---------------------------------
(Date of earliest event reported)
WITCO CORPORATION
------------------------------------------------------
(Exact name or registrant as specified in its charter)
Delaware 1-4654 13-1870000
- ---------------- ------------ --------------------
(State or other (Commission (I.R.S. Employer
jurisdiction or File Number) Identification
organization) Number)
One American Way
Greenwich, Connecticut 06831
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
(203) 552-2000
----------------------------------------------------
(Registrant's telephone number, including area code)
Page 1 of 124
Exhibit Index is on page 5
<PAGE>
Items 2 and 5. ACQUISITION OR DISPOSITION OF ASSETS AND
OTHER EVENTS
On October 19, 1995, Witco Corporation (the "Company") announced
that it had completed the acquisition of OSi Specialties Holding Company
("OSi") pursuant to the Agreement and Plan of Merger dated as of September
10, 1995, as amended by the Amendment dated as of October 18, 1995, among
the Company, Witsil Corporation ("Witsil") and OSi (as so amended, the
"Merger Agreement"). Pursuant to the Merger Agreement, on October 19, 1995,
Witsil was merged with and into OSi pursuant to Section 251 of the Delaware
General Corporation Law (the "Merger"), with OSi continuing as the
surviving corporation and as a wholly owned subsidiary of the Company. At
such time, all previously outstanding shares of OSi common stock ceased to
be outstanding, and each such share (except those shares owned by the
Company or any of its subsidiaries immediately prior to the Merger)
thereafter represented a right to receive $42.0263.
The Company paid an aggregate of $486 million in cash for 100% of
the outstanding shares of OSi in connection with the Merger. The Company
purchased such shares with cash-on-hand and proceeds from the credit
facility established pursuant to the Credit Agreement dated as of October
18, 1995, among the Company, the eligible subsidiaries of the Company
referred to therein, the banks listed therein and Morgan Guaranty Trust
Company of New York, as Agent.
OSi's wholly owned subsidiary, OSi Specialties, Inc.,
manufactures silicone surfactants, amine catalysts, organofunctional
silanes and specialty fluids and operates manufacturing facilities in West
Virginia, Europe, Latin America and Asia.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
a., b. Neither audited nor unaudited financial statements are
currently available for the assets and businesses acquired by the Company
on October 19, 1995. Accordingly, it is not practicable to provide the
historical or pro forma financial statements required by Item 7 of Form 8-K
at the time this Current Report on Form 8-K is filed. The Company shall
file the required historical and pro forma financial statements as soon as
they are available, but in no event later than the time provided for under
the applicable rules.
Page 2 of 124
Exhibit Index is on page 5
<PAGE>
c. Exhibits
2 (a) Agreement and Plan of Merger dated as of
September 10, 1995.
2 (b) Stockholders Agreement dated as of
September 10, 1995.
2 (c) Amendment dated as of October 18, 1995.
20 (a) Press Release dated September 11, 1995.
20 (b) Press Release dated October 19, 1995.
99 Credit Agreement dated as of October 18,
1995.
Page 3 of 124
Exhibit Index is on page 5
<PAGE>
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.
WITCO CORPORATION,
by
/s/ Dustan E. McCoy
-----------------------------
Name: Dustan E. McCoy
Title: Vice President, General
Counsel and Secretary
Date: October 31, 1995
Page 4 of 124
Exhibit Index is on page 5
<PAGE>
EXHIBIT INDEX
Exhibit Sequentially
Number Exhibit Numbered Page
2 (a) Agreement and Plan of Merger
dated as of September 10, 1995
(incorporated herein by reference
to Exhibit 2(a) of Form 8-K of
the Company filed with the Securities
and Exchange Commission on
September 25, 1995 (the "First 8-K")).
2 (b) Stockholders Agreement
dated as of September 10, 1995
(incorporated herein by reference
to Exhibit 2(b) of the First 8-K).
2 (c) Amendment dated as of October 18, 1995. 6
20 (a) Press Release dated September 11, 1995
(incorporated herein by reference to
Exhibit 20 of the First 8-K).
20 (b) Press Release dated October 19, 1995. 25
99 Credit Agreement dated as of
October 18, 1995. 26
Page 5 of 124
Exhibit Index is on page 5
<PAGE>
Exhibit 2(c)
CONFORMED COPY
AMENDMENT dated as of October 18, 1995 (this
"Amendment") to the Agreement and Plan of Merger
dated as of September 10, 1995 (as so amended, the
"Merger Agreement"), among WITCO CORPORATION, a
Delaware corporation ("Parent"), WITSIL
CORPORATION, a Delaware corporation and a wholly
owned subsidiary of Parent ("Sub"), and OSi
SPECIALTIES HOLDING COMPANY, a Delaware
corporation (the "Company").
WHEREAS the parties hereto have entered into the Merger Agreement
as of September 10, 1995;
WHEREAS, pursuant to the Merger Agreement, all the holders of
common stock, par value $.01 per share, of each class of the Company (the
"Stockholders") approved the Merger Agreement and the transactions
contemplated thereby by written consent dated as of September 10, 1995 (the
"Stockholders Approval");
WHEREAS the parties desire to amend the Merger Agreement in
accordance with Section 7.3 thereof on the terms set forth herein;
WHEREAS the respective Boards of Directors of Parent, Sub and the
Company (or their duly authorized designees) have approved such amendment
on the terms set forth herein;
WHEREAS the parties desire to make certain representations,
warranties, covenants and agreements in connection with this Amendment; and
WHEREAS capitalized terms used but not defined herein shall have
the meanings assigned thereto in the Merger Agreement, and the rules of
interpretation set forth in the Merger Agreement shall be applicable hereto
as if set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. Effective Time of the Merger. (a) The last sentence of Section
1.3 of the Merger Agreement is hereby amended and restated in its entirety
as follows: "The Merger shall become effective upon the filing of the
Certificate of Merger with the Delaware Secretary of State,
Page 6 of 124
Exhibit Index is on page 5
<PAGE>
or at such other time as Parent and the Company shall agree should be
specified in the Certificate of Merger (the "Effective Time")."
(b) The parties further agree that the Certificate of Merger
shall provide, among other things, as follows: "The Merger shall become
effective upon the filing of this certificate with the Secretary of State
of the State of Delaware in accordance with Sections 251 and 103 of the
DGCL. However, for all accounting and other financial reporting purposes,
the effective date of the Merger shall be deemed to be the opening of
business on October 1, 1995."
2. Certificate of Incorporation of the Surviving Corporation.
Section 1.5(a) of the Merger Agreement is hereby amended and restated in
its entirety as follows:
"(a) At the Effective Time, the Certificate of Incorporation of
the Company shall be amended in its entirety so that the
Certificate of Incorporation of the Surviving Corporation shall
be in the form attached hereto as Exhibit A, until thereafter
changed or amended as provided therein or by applicable law."
3. Per Share Consideration. Section 2.1(c) is hereby amended by
deleting the number $42.50 set forth in the sixth line thereof and
inserting therefor the number $42.4845.
4. Stock Options. Section 2.2 of the Merger Agreement is hereby
amended by deleting the remainder of the first sentence thereof following
the words "subject to such Option," in the 11th line thereof, and inserting
therefor the following:
"from the Paying Agent an amount in cash equal to the sum of (a)
the excess, if any, of the Merger Consideration for such share
over the per share exercise price of such Option (such excess
being referred to as the "Spread") plus (b) interest on the
Spread at a rate per annum equal to 5.5%, compounded
semiannually, from the Effective Time until the Option Payment
Date (as defined below) plus (c) an amount sufficient on an
after-tax basis (using the effective tax rate applicable to such
holder based on the schedule set forth in Exhibit B attached
hereto) to equal the FICA HI (i.e., the Medicare portion at
1.45%) tax, if any, imposed on the Option holder attributable to
the payments described in clauses (a) and (b) above
Page 7 of 124
Exhibit Index is on page 5
<PAGE>
(such sum being collectively referred to herein as the "Option
Consideration"). The Option Consideration, less the amount of any
required withholding taxes, shall be paid to the holder of such
Option by the Paying Agent in accordance with Section 2.5 on or
as soon as practicable following the date (the "Option Payment
Date") that is the later of (i) one week following the Effective
Time and (ii) November 1, 1995."
5. Funds Provided by Parent. (a) Section 2.4(a) of the Merger
Agreement is hereby amended and restated in its entirety as follows:
"(a) Paying Agent. Parent shall deposit, or shall cause to be
deposited, with or for the account of a bank or trust company
designated by Parent, which shall be reasonably satisfactory to
the Company (the "Paying Agent"), (i) as of the Effective Time
for the benefit of the holders of shares of each class of Company
Common Stock and the holders of the Warrants, cash in an amount
sufficient (after taking into account any amounts paid by the
Company pursuant to Section 2.4(b)) to pay the aggregate Merger
Consideration and the aggregate Warrant Consideration, and (ii)
as of the Option Payment Date for the benefit of the holders of
Options, cash in an amount sufficient (after taking into account
any amounts paid by the Company pursuant to Section 2.4(b)) to
pay the aggregate Option Consideration (such amounts deposited
pursuant to clauses (i) and (ii) above being hereinafter referred
to as the "Payment Fund")."
(b) The first two sentences of Section 2.4(b) of the Merger
Agreement are hereby amended and restated in their entirety as follows:
"The aggregate amount of funds to be provided by Parent to pay
the Merger Consideration, the Option Consideration and the
Warrant Consideration (collectively, the "Consideration")
pursuant to Section 2.4(a) is $486,000,000, plus the amounts to
be paid pursuant to clauses (b) and (c) of the definition of
Option Consideration as set forth in Section 2.2, less the
Transaction Fees (as defined in Section 3.1(l)). In addition, the
Company shall pay to the Paying Agent for deposit into the
Payment Fund as of the Effective Time or as of the Option Payment
Date, as the case may be, an amount equal to the aggregate
Page 8 of 124
Exhibit Index is on page 5
<PAGE>
amount received by the Company pursuant to the exercise of
Warrants or Options, respectively, during the period from
September 10, 1995 to but not including the Effective Time."
6. Exchange Procedures. Section 2.5 of the Merger Agreement is
hereby amended and restated in its entirety as follows:
" SECTION 2.5. Exchange Procedures. (a) (i) Subject to
subparagraph (ii) below, as soon as practicable after the
Effective Time, each holder of an outstanding certificate or
certificates which immediately prior thereto represented shares
of any class of Company Common Stock shall, upon surrender to the
Paying Agent of such certificate or certificates and acceptance
thereof by the Paying Agent, be entitled to the amount of cash
which the aggregate number of shares of such class of Company
Common Stock previously represented by such certificate or
certificates surrendered shall have been converted into the right
to receive pursuant to Section 2.1(c). As soon as practicable
after the Effective Time, each holder of an outstanding Warrant
shall, upon surrender to the Paying Agent of such Warrant and
acceptance thereof by the Paying Agent, be entitled to the amount
of cash which such holder shall have the right to receive
pursuant to Section 2.3. As soon as practicable on or after the
Option Payment Date, each holder of what was immediately prior to
the Effective Time an outstanding Option shall, upon delivery to
the Paying Agent of evidence from the Company of such holder's
Option holdings and acceptance thereof by the Paying Agent, be
entitled to the amount of cash which such holder shall have the
right to receive pursuant to Section 2.2. The Paying Agent shall
accept such certificates, Warrants or evidence of Option
holdings, as the case may be, upon compliance with such
reasonable terms and conditions as the Paying Agent may impose to
effect an orderly exchange thereof in accordance with normal
exchange practices. If the consideration to be paid in the Merger
(or any portion thereof) is to be delivered to any person (as
defined in Section 8.3) other than the person in whose name the
certificate representing shares of such class of Company Common
Stock or Warrant, as the case may be, surrendered in exchange
therefor is registered, it shall be a condition to such exchange
that the certificate representing Company Common Stock or
Warrants so surrendered shall be
Page 9 of 124
Exhibit Index is on page 5
<PAGE>
properly endorsed or otherwise be in proper form for transfer and
that the person requesting such exchange shall pay to the Paying
Agent any transfer or other taxes required by reason of the
payment of such consideration to a person other than the
registered holder of the certificate representing Company Common
Stock or Warrants, as the case may be, surrendered, or shall
establish to the satisfaction of the Paying Agent that such tax
has been paid or is not applicable. After the Effective Time,
there shall be no further transfer on the records of the Company
or its transfer agent of certificates representing shares of any
class of Company Common Stock and if such certificates are
presented to the Company for transfer, they shall be cancelled
against delivery of the Merger Consideration as hereinabove
provided. Until surrendered as contemplated by this Section
2.5(a)(i), each certificate representing shares of any class of
Company Common Stock (other than certificates representing shares
to be cancelled in accordance with Section 2.1(b) or Dissenting
Common Shares) shall be deemed at any time after the Effective
Time to represent only the right to receive upon such surrender
the Merger Consideration, without any interest thereon, as
contemplated by Section 2.1. No interest will be paid or will
accrue on any cash payable as Merger Consideration, Warrant
Consideration or, except as provided in the definition thereof,
Option Consideration.
(ii) Notwithstanding Section 2.5(a)(i) above and Section
2.5(b) below, commencing at any time after the selection of the
Paying Agent in accordance with Section 2.4(a) and any time
thereafter prior to payment by the Paying Agent in accordance
with the terms of this Agreement, each holder of an outstanding
certificate or certificates which, if presented prior to the
Effective Time, represents shares of any class of Company Common
Stock or, if presented after the Effective Time, represented
shares of any class of Company Common Stock, may surrender to the
Paying Agent (at its designated office) such certificate or
certificates, which certificates, if presented prior to the
Effective Time, shall be held in escrow for such stockholders
until the Effective Time by the Paying Agent. Upon such surrender
and acceptance thereof by the Paying Agent in accordance with the
terms set forth in this Agreement, the Paying Agent shall make
payment, on or prior to the next business day (which in no event
Page 10 of 124
Exhibit Index is on page 5
<PAGE>
shall be prior to the Effective Time), via wire transfer in
immediately available funds to the account designated in writing
by such stockholder, of an amount equal to the product of (x) the
aggregate number of shares of such class of Company Common Stock
previously represented by such certificate or certificates so
surrendered and (y) the Merger Consideration.
(b) Letter of Transmittal. Promptly after the Effective Time
(but in no event more than five days thereafter), the Surviving
Corporation shall require the Paying Agent to mail to each record
holder of certificates and Warrants, other than a holder of
certificates that previously surrendered such certificates in
accordance with Section 2.5(a)(ii), that immediately prior to the
Effective Time represented shares of any class of Company Common
Stock which shall have been converted pursuant to Section 2.1, a
form of letter of transmittal and instructions for use in
receiving the consideration to which a holder of such
certificates or Warrants, as the case may be, shall be entitled
therefor pursuant to Section 2.1 or 2.3, as the case may be.
(c) No Further Ownership Rights in Company Common Stock. The
Consideration paid upon the surrender for exchange of
certificates representing shares of any class of Company Common
Stock, Options and Warrants thereon, as the case may be, in
accordance with the terms of this Article II shall be deemed to
have been delivered and paid in full satisfaction of all rights
pertaining to the shares of such class of Company Common Stock
theretofore represented by such certificates, or such Options or
Warrants, as the case may be.
(d) Termination of Payment Fund. Any portion of the Payment
Fund which remains undistributed to the holders of the
certificates representing shares of any class of Company Common
Stock or holders of Warrants for 120 days after the Effective
Time shall be delivered to the Surviving Corporation, upon
demand, and any holders of shares of any class of Company Common
Stock who theretofore have not complied with this Article II or
holders of Warrants that have not exercised their rights set
forth in Section 2.3 thereafter shall look only to the Surviving
Corporation and only as general creditors thereof for payment of
Page 11 of 124
Exhibit Index is on page 5
<PAGE>
their claim for any Merger Consideration or Warrant
Consideration, as the case may be.
(e) No Liability. None of Parent, Sub, the Surviving
Corporation or the Paying Agent shall be liable to any person in
respect of any distributions payable from the Payment Fund
delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law. If any certificates
representing shares of any class of Company Common Stock or
Warrants shall not have been surrendered prior to five years
after the Effective Time (or immediately prior to such earlier
date on which any Merger Consideration in respect of such
certificate would otherwise escheat to or become the property of
any Governmental Entity (as defined in Section 3.1(c))), any such
distributions payable in respect of such certificate representing
Company Common Stock or Warrants shall, to the extent permitted
by applicable law, become the property of the Surviving
Corporation, free and clear of all claims or interest of any
person previously entitled thereto."
7. Capital Structure Representation. Section 3.1(b)(i) of the
Merger Agreement is hereby amended by deleting the number 1,245,375 set
forth in the sixth line of Section 3.1(b) and inserting therefor the number
1,250,875.
8. Maximum D&O Premium. Section 5.3 of the Merger Agreement is
hereby amended by deleting the number "$341,250" in the last line thereof
and inserting therefor the number "$255,937".
9. Third Party Beneficiaries. Section 8.7 of the Merger Agreement
is hereby amended by inserting after the words "provisions of" and before
the words "Section 5.3" in the 11th line thereof the following: "Sections
2.2 and 2.4 (in both cases solely in respect of those holders of Options
outstanding immediately prior to the Effective Time),".
10. Exhibits. The Merger Agreement is hereby amended by adding as
Exhibits A and B thereto Exhibits A and B that are attached hereto,
respectively.
11. Continued Effectiveness of the Merger Agreement. As expressly
amended by this Amendment, the Merger Agreement is in all respects ratified
and confirmed
Page 12 of 124
Exhibit Index is on page 5
<PAGE>
and the terms thereof (as so amended) shall remain in full force and
effect.
12. Representations and Warranties of the Parties. Each of
Parent, Sub and the Company hereby represents and warrants as follows:
(a) Such person has all requisite power and authority to
execute and deliver this Amendment and to consummate the
transactions contemplated hereby. The execution and delivery of
this Amendment by such person and the consummation by such person
of the transactions contemplated hereby have been duly authorized
by the Board of Directors of such person or its duly authorized
designee and by any other necessary corporate action on the part
of such person. In addition, the Company represents and warrants
that all the Stockholders have consented to and approved this
Amendment.
(b) This Amendment has been duly executed and delivered by
such person and constitutes a valid and binding obligation of
such person enforceable in accordance with its terms.
(c) The execution and delivery of this Amendment does not,
and the consummation of the transactions contemplated hereby and
compliance with the terms hereof will not, conflict with, or
result in any violation of, or default (with or without notice or
lapse of time or both) under any provision of (i) the certificate
of incorporation or by-laws of such person or (ii) any trust
agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit,
concession, franchise, license, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to such person or
to its property or assets, other than, in the case of clause
(ii), any such conflicts, violations or defaults that
individually or in the aggregate would not (x) have a material
adverse effect on such person, (y) impair the ability of such
person to perform its obligations under this Amendment or (z)
prevent the consummation of any of the transactions contemplated
by this Amendment and by the Merger Agreement (as amended by this
Amendment).
13. Notices. All notices, requests, claims, demands and
other communications under this Amendment shall
Page 13 of 124
Exhibit Index is on page 5
<PAGE>
be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by overnight courier (providing
proof of delivery) to the parties at the respective addresses set forth in
the Merger Agreement (or at such other address for a party as shall be
specified by like notice).
14. Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed
by each of the parties and delivered to the other parties.
15. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless
of the laws that might otherwise govern under applicable principles of
conflict of laws thereof.
16. Assignment. Neither this Amendment nor any of the rights,
interests or obligations under this Amendment shall be assigned, in whole
or in part, by operation of law or otherwise by any of the parties without
the prior written consent of the other parties. Subject to the preceding
sentence, this Amendment will be binding upon, inure to the
Page 14 of 124
Exhibit Index is on page 5
<PAGE>
benefit of, and be enforceable by, the parties and their respective
successors and assigns.
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this
Amendment to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
WITCO CORPORATION,
by
/s/ Michael D. Fullwood
-------------------------------
Name: Michael D. Fullwood
Title: Executive Vice President
and Chief Financial Officer
WITSIL CORPORATION,
by
/s/ Dustan E. McCoy
-------------------------------
Name: Dustan E. McCoy
Title: President
OSi SPECIALTIES HOLDING COMPANY,
by
/s/ David I. Barton
-------------------------------
Name: David I. Barton
Title: Chairman of the Board,
President and Chief
Executive Officer
Page 15 of 124
Exhibit Index is on page 5
<PAGE>
EXHIBIT A
TO THE AMENDMENT
CERTIFICATE OF INCORPORATION
OF
OSi SPECIALTIES HOLDING COMPANY
ARTICLE I
The name of the corporation (which is hereinafter referred to as
the "Company") is OSi Specialties Holding Company.
ARTICLE II
The registered office of the Company is to be located at 1209
Orange Street, in the City of Wilmington, in the County of New Castle, in
the State of Delaware. The name of its registered agent at that address is
The Corporation Trust Company.
ARTICLE III
The purpose of the Company is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE IV
The total number of shares of stock which the Company shall have
authority to issue is One Hundred (100) Common and the par value of each of
such shares is One Dollar ($1.00).
ARTICLE V
The minimum amount of capital with which the Company will
commence business is $100.
ARTICLE VI
The Company is to have perpetual existence.
Page 16 of 124
Exhibit Index is on page 5
<PAGE>
ARTICLE VII
The private property of the stockholders shall not be subject to
the payment of corporate debts to any extent whatsoever.
ARTICLE VIII
In furtherance, and not in limitation of the powers conferred by
law, the Board of Directors are expressly authorized:
(i) To make, alter, amend or repeal the By-Laws of the
Company and stockholders of the Company shall have the power to
alter, amend or repeal By-Laws made by the Board of Directors.
(ii) To remove at any time any officer elected or appointed
by the Board of Directors by such vote of the Board of Directors
as may be provided for in the By-Laws. Any other officer of the
Company may be removed at any time by a vote of the Board of
Directors, or by any committee or superior officer upon whom such
power of removal may be conferred by the By-Laws or by the vote
of the Board of Directors.
(iii) To determine whether any, and if any, what part, of
the annual net profits of the Company or of its net assets in
excess of its capital shall be declared in dividends and paid to
the stockholders, and to direct and determine the use and
disposition of any such annual net profits or net assets in
excess of capital.
(iv) To fix from time to time the amount of the profits of
the Company to be reserved as working capital or for any other
lawful purpose.
(v) To establish bonus, profit sharing, stock option,
retirement, or other types of incentive or compensation plans for
the employees (including directors and officers) of the Company
and to fix the amount of the profits to be distributed or shared
and to determine the persons to participate in any such plans and
the amounts of their respective participations.
(vi) From time to time to determine whether and to what
extent, and at what time and places and under what conditions and
regulations the accounts and books of the
Page 17 of 124
Exhibit Index is on page 5
<PAGE>
Company (other than the stock ledger), or any of them, shall be
open to the inspection of the stockholders; and no stockholder
shall have any right to inspect any account or book or document
of the Company, except as conferred by statute or authorized by
the Board of Directors or by a resolution of the stockholders.
(vii) To authorize, and cause to be executed, mortgages and
liens upon the real and personal property of the Company.
ARTICLE IX
No contract or other transaction between the Company and any
other corporation and no other act of the Company with relation to any
other corporation shall, in the absence of fraud, in any way be invalidated
or otherwise affected by the fact that any one or more of the directors of
the Company are pecuniarily or otherwise interested in, or are directors or
officers of, such other corporation. Any director of the Company
individually, or any firm or association of which any director may be a
member, may be party to, or may be pecuniarily or otherwise interested in,
any contract or transaction of the Company, provided that the fact that he
individually or as a member of such firm or association is such a party or
so interested shall be disclosed or shall have been known to the Board of
Directors or a majority of such members thereof as shall be present at any
meeting of the Board of Directors at which action upon any such contract or
transaction shall be taken; and any director of the Company who is also a
director or officer of such other corporation or who is such a party or so
interested may be counted in determining the existence of a quorum at any
meeting of the Board of Directors which shall authorize any such contract
or transaction, and may vote thereat to authorize any such contract or
transaction, with like force and effect as if he were not such director or
officer of such other corporation or not so interested. Any director of the
Company may vote upon any contract or other transaction between the Company
and any subsidiary or affiliated corporation without regard to the fact
that he is also a director of such subsidiary or affiliated corporation.
Any contract, transaction or act of the Company or of the
directors, which shall be ratified at any annual meeting of the
stockholders of the Company, or at any special meeting called for such
purpose, shall, insofar as permitted by law or by the Certificate of
Incorporation of the Company, be as valid and as binding as though ratified
by every stockholder of the Company; provided, however, that any failure of
the stockholders to
Page 18 of 124
Exhibit Index is on page 5
<PAGE>
approve or ratify any such contract, transaction or act, when and if
submitted, shall not be deemed in any way to invalidate the same or deprive
the Company, its directors, officers or employees, of its or their right to
proceed with such contract, transaction or act.
ARTICLE X
Each officer, director, or member of any committee designated by
the Board of Directors shall, in the performance of his duties, be fully
protected in relying in good faith upon the books of account or reports
made to the Company by any of its officials or by an independent public
accountant or by an appraiser selected with reasonable care by the Board of
Directors or by any such committee or in relying in good faith upon other
records of the Company.
ARTICLE XI
(a) The Company shall indemnify and hold harmless, to the fullest
extent now or hereafter permitted by applicable law as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior
to such amendment), each director or officer (including each former
director or officer) of the Company who was or is made a party to or a
witness in or is threatened to be made a party to or a witness in, or is
otherwise involved in, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter referred to as a "Proceeding"), by reason of the fact that
such person is or was a director, officer, employee, or agent of the
Company or is or was serving at the request of the Company as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise, including service with respect to
employee benefit plans (hereinafter referred to as a "Representative"),
whether the basis of such Proceeding is alleged action or failure to take
action in an official capacity as a Representative or in any other capacity
while serving as a Representative, against any and all expenses (including
attorneys' fees and disbursements), liabilities, (including judgments,
fines, excise taxes and penalties imposed under or in connection with
obligations under the Employee Retirement Income Securities Act of 1974, as
amended), amounts paid in settlement, and amounts expended in seeking
indemnification granted to such person under applicable law, the By-Laws or
any agreement with
Page 19 of 124
Exhibit Index is on page 5
<PAGE>
the Company, actually and reasonably incurred by such persons in connection
with such Proceeding.
(b) The Company shall pay expenses (including attorneys' fees and
disbursements) incurred by a director or officer (including each former
director or officer) of the Company in connection with the investigation,
defense, settlement or appeal of any Proceeding which such person is a
party to or a witness in or is threatened to be made a party to or a
witness in, or is otherwise involved in, regarding such person's service as
a Representative in advance of the final disposition of such Proceeding.
The expenses incurred by such director or officer in his capacity as a
Representative of the Company shall be paid by the Company in advance of
the final disposition of such Proceeding only upon receipt by the Company
of an undertaking by or on behalf of such person to repay all amounts
advanced if it shall be determined ultimately that such person is not
entitled to be indemnified under this Article XI or otherwise.
(c) The rights of indemnification and advancement of expenses
provided by this Article XI shall not be deemed exclusive of any other
rights to which any person seeking indemnification or advancement of
expenses may have or hereafter be entitled under any statute, provision of
the Restated Certificate of Incorporation or By-Laws of the Company,
agreement, vote of stockholders or disinterested directors, or otherwise,
both as to action in such person's official capacity and as to action in
another capacity while holding such office or position, and shall continue
as to a person who has ceased to be a Representative of the Company and
shall inure to the benefit of the heirs, executors and administrators of
such person. The rights conferred in this Article XI shall be contract
rights.
(d) If any claim under this Article XI is not paid in full by the
Company within 30 days after a written claim has been received by the
Company, the claimant may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim and, if such suit is not
frivolous or brought in bad faith, the claimant shall be entitled to be
also paid the expense of prosecuting such claims. It shall be a defense to
any such action (other than an action brought to enforce a claim for
expenses incurred in defending any Proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to
the Company) that the claimant has not met the standards of conduct that
make it permissible under applicable law for the Company to indemnify the
claimant for the amount claimed, but the burden of providing such defense
shall be on the Company. Neither the failure of the Company (including the
Board, independent legal counsel, or its stockholders) to have
Page 20 of 124
Exhibit Index is on page 5
<PAGE>
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because the
claimant has met the applicable standard of conduct set forth in applicable
law, nor an actual determination by the Company (including the Board,
independent legal counsel, or its stockholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the action
or create a presumption that claimant has not met the applicable standard
of conduct.
(e) The Company may purchase and maintain insurance on behalf of
any Representative, employee or agent of the Company against any liability
asserted against or incurred by such person in any capacity, whether or not
the Company would have the power to indemnify such person against such
liability under the provisions of this Article XI.
(f) The Board, without approval of the stockholders, shall have
the power to borrow money on behalf of the Company, including the power to
pledge the assets of the Company, from time to time to discharge the
Company's obligations with respect to indemnification, the advancement and
reimbursement of expenses, and the purchase and maintenance of insurance
referred to in this Article XI.
(g) For purposes of this Article, references to the "Company"
shall include, in addition to the resulting corporations, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had the power and authority to indemnify its Representatives so
that any person who is or was a Representative of such constituent
corporation shall stand in the same position under this Article XI with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued.
(h) The Board is authorized to enter into a contract with any
Representative, employee or agent of the Company providing for
indemnification rights equivalent to or, if the Board so determines,
greater than, those provided for in this Article XI.
(i) Any amendment, repeal or modification of any provision of
this Article XI by the stockholders or the directors of the Company shall
not adversely affect any right of protection of a Representative of the
Company under this Article XI existing at the time of such amendment,
repeal or modification.
Page 21 of 124
Exhibit Index is on page 5
<PAGE>
(j) The Company may, to the extent authorized from time to time
by the Board of Directors, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Company to the
fullest extent of the provisions of this Article with respect to the
indemnification and advancement of expenses of directors and officers of
the Company.
(k) A director of the Company shall not be personally liable to
the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for a stock repurchase which is
illegal under Section 174 of the General Corporation Law of the State of
Delaware or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law
hereafter is amended to authorize the further elimination or limitation of
the liability of directors, then the liability of a director of the
Company, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the amended
Delaware General Corporation Law. Any repeal or modification of this
paragraph by the stockholders of the Company shall be prospective only, and
shall not adversely affect any limitation on the personal liability of a
director of the Company existing at the time of such repeal or
modification.
ARTICLE XII
Both the stockholders and the directors of the Company may hold
their meetings and the Company may have an office or offices in such place
or places outside of the State of Delaware as the By-Laws may provide and
the Company may keep its books outside of the State of Delaware except as
otherwise provided by law.
ARTICLE XIII
Any action required or permitted to be taken by the stockholders
of the Company must be effected at a duly called annual or special meeting
of stockholders of the Company and may not be effected by any consent in
writing by such stockholders. Special meetings of stockholders of the
Company may be called only by the Board of Directors pursuant to a
resolution approved by a majority of the entire Board of Directors.
Page 22 of 124
Exhibit Index is on page 5
<PAGE>
ARTICLE XIV
The Company reserves the right to amend, alter, change, or repeal
any provision contained in this Certificate of Incorporation, in the manner
now or hereafter prescribed by the laws of the State of Delaware and all
rights conferred on stockholders herein are granted subject to this
reservation.
Page 23 of 124
Exhibit Index is on page 5
<PAGE>
Exhibit B
to the Amendment
<TABLE>
Stock Optionees
Gross-up Rates
<CAPTION>
Resident
CT WV CA GA IL MA MI NC NJ NY OH Ex-Pat
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Highest 39.60% 39.60% 39.60% 39.60% 39.60% 39.60% 39.60% 39.60 39.60% 39.60% 39.60% 39.60%
Federal
Rate
Effect of 1.20% 1.20% 1.20% 1.20% 1.20% 1.20% 1.20% 1.20% 1.20% 1.20% 1.20% 1.20%
3% Phase-
out
HI Tax 1.45% 1.45% 1.45% 1.45% 1.45% 1.45% 1.45% 1.45% 1.45% 1.45% 1.45% 1.45%
State Tax 2.72% 3.93% 6.64% 3.62% 1.81% 3.59% 2.66% 4.68% 3.97% 4.58% 4.53%
(no
Federal
Benefit)
City 1.06%
Total 44.97% 46.18% 48.89% 45.87% 44.06% 45.84% 44.91% 46.93% 46.22% 46.83% 47.84% 42.25%
Effective
Tax Rate
</TABLE>
Page 24 of 124
Exhibit Index is on page 5
<PAGE>
Exhibit 20(b)
WITCO ACQUIRES OSi SPECIALTIES
GREENWICH, CT, October 19, 1995 - Witco Corporation (NYSE:WIT)
today acquired OSi Specialties Holdings Company and its wholly owned
subsidiary, OSi Specialties, Inc., in a cash transaction which values 100
percent of OSi's equity at $486 million. Witco had 1994 sales in excess of
$2.2 billion and is a leading manufacturer of polymer additives,
surfactants, oleochemicals, resins, and petroleum specialties. With the OSi
Specialties acquisition, which is expected to have 1995 sales in the range
of $450 million, Witco becomes the world's leading producer of specialty
silicones.
Witco Chairman and Chief Executive Officer William R. Toller
said, "Witco and OSi have uniquely complementary product mixes which will
facilitate growth in our core business segments of urethanes, resins, and
surfactants, as well as silicone specialties. This is reminiscent of our
expansion with the purchase of the Schering businesses in 1992 in that
seldom has such a good fit been apparent and available to Witco for
acquisition. As in the Schering acquisition, this also strengthens our
global position, specifically in Europe, the Pacific Rim, and South
America. With this acquisition, and the divestiture of our non-core
business units, Witco can concentrate on our higher margin specialty
chemicals businesses."
OSi Specialties, known for its customer-driven research and
development capabilities, manufacturers a full line of silicone
surfactants, amine catalysts, organofunctional silanes, and specialty
fluids. Its key manufacturing facilities are in Sistersville, West
Virginia; Antwerp, Belgium; Termoli, Italy; and Itatiba, Brazil. Additional
facilities are operated in Mexico and in Korea, Hong Kong, Malaysia,
Thailand, and Indonesia, providing Witco additional entree into the Pacific
Rim markets.
OSi Specialties, a wholly owned subsidiary of Witco Corporation,
will operate as one of the company's core groups with David Barton, chief
executive officer and president of OSi, leading the unit and reporting to
William E. Mahoney, Witco's vice chairman and chief operating officer.
Page 25 of 124
Exhibit Index is on page 5
<PAGE>
Exhibit 99
$675,000,000
CREDIT AGREEMENT
dated as of
October 18, 1995
among
Witco Corporation
The Eligible Subsidiaries
Referred to Herein
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Agent
Page 26 of 124
Exhibit Index is on page 5
<PAGE>
TABLE OF CONTENTS*
Page
ARTICLE I
DEFINITIONS
1.01. Definitions................................................ 1
1.02. Accounting Terms and Determinations........................ 12
1.03. Types of Borrowings........................................ 13
ARTICLE II
THE CREDITS
2.01. Commitments to Lend........................................ 13
2.02. Method of Committed Borrowing.............................. 14
2.03. Money Market Borrowings.................................... 14
2.04. Notice to Banks; Funding of Loans.......................... 18
2.05. Notes...................................................... 20
2.06. Maturity of Loans.......................................... 20
2.07. Interest Rates............................................. 20
2.08. Facility Fees.............................................. 24
2.09. Optional Termination or Reduction of Commitments........... 25
2.10. Mandatory Termination of Commitments....................... 25
2.11. Prepayments................................................ 25
2.12. General Provisions as to Payments.......................... 26
2.13. Funding Losses............................................. 26
2.14. Computation of Interest and Fees........................... 27
2.15. Taxes...................................................... 27
2.16. Judgment Currency.......................................... 29
2.17. Foreign Subsidiary Costs................................... 30
- --------
*The Table of Contents is not a part of this Agreement.
Page 27 of 124
Exhibit Index is on page 5
<PAGE>
Page
ARTICLE III
CONDITIONS
3.01. Effectiveness.............................................. 30
3.02. Borrowings................................................. 32
3.03. First Borrowing by Each Eligible Subsidiary................ 32
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Corporate Existence and Power.............................. 33
4.02. Corporate and Governmental Authorization; No
Contravention............................................ 33
4.03. Binding Effect............................................. 33
4.04. Financial Information...................................... 34
4.05. Litigation................................................. 34
4.06. Compliance with ERISA...................................... 35
4.07. Environmental Matters...................................... 35
4.08. Taxes...................................................... 36
4.09. Subsidiaries............................................... 36
4.10. Not an Investment Company.................................. 36
4.11. Full Disclosure............................................ 36
ARTICLE V
COVENANTS
5.01. Information................................................ 37
5.02. Payment of Obligations..................................... 39
5.03. Maintenance of Property; Insurance......................... 39
5.04. Conduct of Business and Maintenance of Existence........... 40
5.05. Compliance with Laws....................................... 40
5.06. Inspection of Property, Books and Records.................. 40
5.07. Debt....................................................... 41
5.08. Negative Pledge............................................ 41
5.09. Consolidations, Mergers and Sales of Assets................ 42
5.10. Use of Proceeds............................................ 43
Page 28 of 124
Exhibit Index is on page 5
<PAGE>
Page
ARTICLE VI
DEFAULTS
6.01. Events of Default.......................................... 43
6.02. Notice of Default.......................................... 45
ARTICLE VII
THE AGENT
7.01. Appointment and Authorization.............................. 46
7.02. Agent and Affiliates....................................... 46
7.03. Action by Agent............................................ 46
7.04. Consultation with Experts.................................. 46
7.05. Liability of Agent......................................... 46
7.06. Indemnification............................................ 47
7.07. Credit Decision............................................ 47
7.08. Successor Agent............................................ 47
7.09. Agent's Fee................................................ 48
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
8.01. Basis for Determining Interest Rate Inadequate or
Unfair................................................... 48
8.02. Illegality................................................. 49
8.03. Increased Cost and Reduced Return.......................... 49
8.04. Base Rate Loans Substituted for Affected Fixed Rate
Loans.................................................... 51
Page 29 of 124
Exhibit Index is on page 5
<PAGE>
Page
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
9.01. Corporate Existence and Power.............................. 52
9.02. Corporate and Governmental Authorization;
No Contravention......................................... 52
9.03. Binding Effect............................................. 52
9.04. Taxes...................................................... 52
ARTICLE X
GUARANTY
10.01. The Guaranty.............................................. 53
10.02. Guaranty Unconditional.................................... 53
10.03. Discharge Only Upon Payment In Full;
Reinstatement In Certain Circumstances.................. 54
10.04. Waiver by the Company..................................... 54
10.05. Subrogation............................................... 54
10.06. Stay of Acceleration...................................... 55
ARTICLE XI
MISCELLANEOUS
11.01. Notices................................................... 55
11.02. No Waivers................................................ 55
11.03. Expenses; Indemnification................................. 56
11.04. Sharing of Set-Offs....................................... 56
11.05. Amendments and Waivers.................................... 57
11.06. Successors and Assigns.................................... 57
11.07. Collateral................................................ 59
11.08. Governing Law; Submission to Jurisdiction................. 59
11.09. Counterparts; Integration................................. 59
11.10. WAIVER OF JURY TRIAL...................................... 60
11.11. Confidentiality........................................... 60
Page 30 of 124
Exhibit Index is on page 5
<PAGE>
Exhibit A - Note
Exhibit B-1 - Opinion of Cravath, Swaine & Moore,
Special Counsel for the Company
Exhibit B-2 - Opinion of Dustan E. McCoy, Esq.,
General Counsel of the Company
Exhibit C - Opinion of Davis Polk & Wardwell,
Special Counsel for the Agent
Exhibit D - Assignment and Assumption Agreement
Exhibit E - Money Market Quote Request
Exhibit F - Invitation for Money Market Quotes
Exhibit G - Money Market Quote
Exhibit H - Form of Election to Participate
Exhibit I - Form of Election to Terminate
Exhibit J - Opinion of Counsel for the Borrower
Page 31 of 124
Exhibit Index is on page 5
<PAGE>
CREDIT AGREEMENT
AGREEMENT dated as of October 18, 1995 among WITCO CORPORATION,
the ELIGIBLE SUBSIDIARIES referred to herein, the BANKS listed on the
signature pages hereof and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein,
have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market
Quotes setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in Section 2.07(b).
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.07(c).
"Administrative Questionnaire" means, with respect to each Bank,
an administrative questionnaire in the form prepared by the Agent and
submitted to the Agent (with a copy to the Company) duly completed by such
Bank.
"Agent" means Morgan Guaranty Trust Company of New York in its
capacity as agent for the Banks hereunder, and its successors in such
capacity.
"Applicable Lending Office" means, with respect to any Bank, (i)
in the case of its Domestic Loans, its Domestic Lending Office, (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in
the case of its Money Market Loans, its Money Market Lending Office.
"Assessment Rate" has the meaning set forth in Section 2.07(b).
Page 32 of 124
Exhibit Index is on page 5
<PAGE>
"Assignee" has the meaning set forth in Section 11.06(c).
"Availability Period" means the period from and including the
Effective Date to but not including the Termination Date.
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 11.06(c), and their
respective successors.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1%
plus the Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a
Base Rate Loan pursuant to the applicable Notice of Committed Borrowing or
Article VIII.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by
any member of the ERISA Group.
"Borrower" means the Company or any Eligible Subsidiary, as the
context may require, and their respective successors, and "Borrowers" means
all of the foregoing.
"Borrowing" has the meaning set forth in Section 1.03.
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means a Committed Loan to be made by a Bank as a CD
Loan pursuant to the applicable Notice of Committed Borrowing.
"CD Reference Banks" means The Chase Manhattan Bank, N.A.,
Commerzbank Aktiengesellschaft, and Morgan Guaranty Trust Company of New
York.
"Commitment" means, with respect to each Bank, the amount set
forth opposite the name of such Bank on the signature pages hereof, as such
amount may be reduced from time to time pursuant to Section 2.09 or 2.10.
"Committed Loan" means a loan made by a Bank pursuant to Section
2.01.
"Company" means Witco Corporation, a Delaware corporation, and
its successors.
Page 33 of 124
Exhibit Index is on page 5
<PAGE>
"Company's 1994 Form 10-K" means the Company's annual report on
Form 10-K for 1994, as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934.
"Consolidated Debt" means at any date the Debt of the Company and
its Consolidated Subsidiaries, determined on a consolidated basis as of
such date.
"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries,
determined as of such date.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Company in its consolidated financial statements if such statements were
prepared as of such date.
"Consolidated Tangible Net Worth" means at any date the
consolidated stockholders' equity of the Company and its Consolidated
Subsidiaries less their consolidated Intangible Assets, all determined as
of such date. For purposes of this definition, "Intangible Assets" means
the amount (to the extent reflected in determining such consolidated
stockholders' equity) of (i) all write-ups (other than write-ups resulting
from foreign currency translations and write-ups of assets of a going
concern business made within twelve months after the acquisition of such
business) subsequent to December 31, 1994 in the book value of any asset
owned by the Company or a Consolidated Subsidiary, (ii) all Investments in
unconsolidated Subsidiaries and all equity investments in Persons which are
not Subsidiaries and (iii) all unamortized debt discount and expense,
unamortized deferred charges, goodwill, patents, trademarks, service marks,
trade names, anticipated future benefit of tax loss carry-forwards,
copyrights, organization or developmental expenses and other intangible
assets.
"Debt" of any Person means at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except (a) trade accounts payable
arising in the ordinary course of business, (b) obligations incurred in the
ordinary course of business in connection with additions to property, plant
or equipment which are deferred for no more than 120 days after the later
of the acquisition or completion of installation of such additions, (c)
other obligations arising in the ordinary course of business which are
deferred for no more
Page 34 of 124
Exhibit Index is on page 5
<PAGE>
than 120 days after the date on which they would first be reflected as
liabilities on a balance sheet of such Person and (d) obligations in
connection with the compensation for services of officers, directors or
employees of such Person, (iv) the capitalized amount of all obligations of
such Person as lessee which are capitalized in accordance with generally
accepted accounting principles, (v) all Debt of others secured by a Lien on
any asset of such Person, whether or not such Debt is assumed by such
Person, and (vi) all Debt of others Guaranteed by such Person.
"Default" means any condition or event which constitutes an Event
of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Domestic Business Day" means any day except a Saturday, Sunday
or other day on which commercial banks in New York City are authorized by
law to close.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending
Office) or such other office as such Bank may hereafter designate as its
Domestic Lending Office by notice to the Company and the Agent; provided
that any Bank may so designate separate Domestic Lending Offices for its
Base Rate Loans, on the one hand, and its CD Loans, on the other hand, in
which case all references herein to the Domestic Lending Office of such
Bank shall be deemed to refer to either or both of such offices, as the
context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in
Section 2.07(b).
"Effective Date" means the date this Agreement becomes effective
in accordance with Section 3.01.
"Election to Participate" means an Election to Participate
substantially in the form of Exhibit H hereto.
"Election to Terminate" means an Election to Terminate
substantially in the form of Exhibit I hereto.
"Eligible Subsidiary" means any Wholly-Owned Consolidated
Subsidiary as to which an Election to Participate shall have been delivered
to the Agent and as to which an Election to Terminate
Page 35 of 124
Exhibit Index is on page 5
<PAGE>
shall not have been delivered to the Agent. Each such Election to
Participate and Election to Terminate shall be duly executed on behalf of
such Wholly-Owned Consolidated Subsidiary and the Company in such number of
copies as the Agent may request. The delivery of an Election to Terminate
shall not affect any obligation of an Eligible Subsidiary theretofore
incurred. The Agent shall promptly give notice to the Banks of the receipt
of any Election to Participate or Election to Terminate.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment or to
emissions, discharges or releases of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous substances
or wastes into the environment including, without limitation, ambient air,
surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes
or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group" at any time means the Company and all members of a
controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with the Company,
are treated at such time as a single employer under Section 414 of the
Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including
dealings in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Euro-Dollar Lending Office
by notice to the Company and the Agent.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank as
a Euro-Dollar Loan pursuant to the applicable Notice of Committed
Borrowing.
Page 36 of 124
Exhibit Index is on page 5
<PAGE>
"Euro-Dollar Reference Banks" means the principal London offices
of The Chase Manhattan Bank, N.A., Commerzbank Aktiengesellschaft, and
Morgan Guaranty Trust Company of New York.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.07(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the
Domestic Business Day next succeeding such day, provided that (i) if such
day is not a Domestic Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day,
and (ii) if no such rate is so published on such next succeeding Domestic
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to Morgan Guaranty Trust Company of New York on such day on such
transactions as determined by the Agent.
"Filed SEC Documents" means (i) the Company's 1994 10-K and (ii)
the Company's quarterly report on Form 10-Q for the quarter ended June 30,
1995, as filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money
Market Loans (excluding Money Market LIBOR Loans bearing interest at the
Base Rate pursuant to Section 8.01) or any combination of the foregoing.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or
other obligation of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the
obligee of such Debt or other obligation of
Page 37 of 124
Exhibit Index is on page 5
<PAGE>
the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part), provided that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending
one, two, three or six months thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar
Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end
of such Interest Period) shall, subject to clause (c) below, end
on the last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which begins before the Termination
Date and would otherwise end after the Termination Date shall end
on the Termination Date.
(2) with respect to each CD Borrowing, the period commencing on the date of
such Borrowing and ending 30, 60, 90 or 180 days thereafter, as the
Borrower may elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise
end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which begins before the Termination
Date and would otherwise end after the Termination Date shall end
on the Termination Date.
(3) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise
Page 38 of 124
Exhibit Index is on page 5
<PAGE>
end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which begins before the Termination
Date and would otherwise end after the Termination Date shall end
on the Termination Date.
(4) with respect to each Money Market LIBOR Borrowing, the period
commencing on the date of such Borrowing and ending such whole number of
months thereafter as the Borrower may elect in accordance with Section
2.03; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar
Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end
of such Interest Period) shall, subject to clause (c) below, end
on the last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(5) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 7 days) as the Borrower may elect in
accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended, or any successor statute.
"Investment" means any investment in any Person, whether by means
of share purchase, capital contribution, loan, time deposit or otherwise.
Page 39 of 124
Exhibit Index is on page 5
<PAGE>
"LIBOR Auction" means a solicitation of Money Market Quotes
setting forth Money Market Margins based on the London Interbank Offered
Rate pursuant to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, the Company or any Subsidiary
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional
sale agreement, capital lease or other title retention agreement relating
to such asset.
"Loan" means a Domestic Loan, a Euro-Dollar Loan or a Money
Market Loan, and "Loans" means Domestic Loans, Euro-Dollar Loans or Money
Market Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Material Debt" means Debt (other than the Notes) of the Company
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal or face amount exceeding
$10,000,000.
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $10,000,000.
"Material Subsidiary" means at any time any Subsidiary, except
Subsidiaries which at such time have been designated by the Company (by
notice to the Agent, which may be amended from time to time) as nonmaterial
and which, if aggregated and considered as a single subsidiary, would not
meet the definition of a "significant subsidiary" contained as of the date
hereof in Regulation S-X of the Securities and Exchange Commission.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a
Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its
Domestic Lending Office or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Money Market Lending Office by
notice to the Company and the Agent; provided that any Bank may from time
to time by notice to the Company and the Agent designate separate Money
Market Lending Offices for its Money Market LIBOR Loans, on the one hand,
and its Money Market Absolute Rate Loans, on the other hand, in which case
all
Page 40 of 124
Exhibit Index is on page 5
<PAGE>
references herein to the Money Market Lending Office of such Bank shall be
deemed to refer to either or both of such offices, as the context may
require.
"Money Market LIBOR Loan" means a loan to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest at the
Base Rate pursuant to Section 8.01).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section
2.03(d)(ii)(C).
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which (i)
any member of the ERISA Group is then making or accruing an obligation to
make contributions or (ii) for purposes of Section 6.01(i) only, has within
the preceding five plan years made contributions, including for purposes of
this clause (ii) any Person which ceased to be a member of the ERISA Group
during such five year period.
"Notes" means promissory notes of a Borrower, substantially in
the form of Exhibit A hereto, evidencing the obligation of such Borrower to
repay the Loans made to it, and "Note" means any one of such promissory
notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined
in Section 2.03(f)).
"OSi" means OSi Specialties Holding Company, a Delaware
corporation.
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Participant" has the meaning set forth in Section 11.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
Page 41 of 124
Exhibit Index is on page 5
<PAGE>
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject
to the minimum funding standards under Section 412 of the Internal Revenue
Code and either (i) is maintained, or contributed to, by any member of the
ERISA Group for employees of any member of the ERISA Group or (ii) for
purposes of Section 6.01(i) only, has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such
time a member of the ERISA Group for employees of any Person which was at
such time a member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by
Morgan Guaranty Trust Company of New York in New York City from time to
time as its Prime Rate.
"Principal Officer" means any of the following officers of the
Company: the Chairman of the Board, any Vice-Chairman of the Board, the
President, any Executive Vice President, the chief financial officer, the
treasurer, the controller and the general counsel. If the titles of the
Company's officers are changed after the date hereof, the term "Principal
Officer" shall thereafter mean any officer performing substantially the
same functions as are presently performed by one or more of the officers
listed in the first sentence of this definition.
"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any
one of such Reference Banks.
"Refunding Borrowing" means a Committed Borrowing which, after
application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Committed Loans made by any Bank to any
Borrower.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having more than 50% of
the aggregate amount of the Commitments or, if the Commitments shall have
been terminated, holding Notes evidencing more than 50% of the aggregate
unpaid principal amount of the Loans.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by the
Company.
Page 42 of 124
Exhibit Index is on page 5
<PAGE>
"Termination Date" means October 17, 1996, or, if such day is not
a Euro-Dollar Business Day, the next preceding Euro- Dollar Business Day.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all benefit
liabilities under such Plan exceeds (ii) the fair market value of all Plan
assets allocable to such liabilities (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date
for such Plan, but only to the extent that such excess represents a
potential liability of a member of the ERISA Group to the PBGC or any other
Person under Title IV of ERISA.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests
of which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Company.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared
in accordance with generally accepted accounting principles as in effect
from time to time, applied on a basis consistent (except for changes
concurred in by the Company's independent public accountants) with the most
recent audited consolidated financial statements of the Company and its
Consolidated Subsidiaries delivered to the Banks; provided that, if the
Company notifies the Agent that the Company wishes to amend any covenant in
Article V to eliminate the effect of any change in generally accepted
accounting principles on the operation of such covenant (or if the Agent
notifies the Company that the Required Banks wish to amend Article V for
such purpose), then the Company's compliance with such covenant shall be
determined on the basis of generally accepted accounting principles in
effect immediately before the relevant change in generally accepted
accounting principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing"
denotes the aggregation of Loans of one or more Banks to be made
to a single Borrower pursuant to Article II on a single date and
for a single Interest Period. Borrowings are classified for
purposes of this Agreement either by reference to the pricing of
Loans comprising such Borrowing (e.g., a "Fixed Rate Borrowing"
is a Euro-Dollar Borrowing, a CD Borrowing or a Money Market
Page 43 of 124
Exhibit Index is on page 5
<PAGE>
Borrowing (excluding any such Borrowing consisting of Money Market LIBOR
Loans bearing interest at the Base Rate pursuant to Section 8.01), and a
"Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or
by reference to the provisions of Article II under which participation
therein is determined (i.e., a "Committed Borrowing" is a Borrowing under
Section 2.01 in which all Banks participate in proportion to their
Commitments, while a "Money Market Borrowing" is a Borrowing under Section
2.03 in which the Bank participants are determined on the basis of their
bids in accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make loans to the
Borrowers during the Availability Period, provided that the aggregate
principal amount of the Committed Loans made by such Bank at any one time
outstanding shall not exceed the amount of its Commitment. Each Borrowing
under this Section shall be in an aggregate principal amount of $5,000,000
or any larger multiple of $1,000,000 (except that any such Borrowing may be
in the aggregate amount of the unused Commitments) and shall be made from
the several Banks ratably in proportion to their respective Commitments.
Within the foregoing limits, the Borrowers may borrow under this Section,
repay, or to the extent permitted by Section 2.11, prepay, Loans and
reborrow at any time during the Availability Period.
SECTION 2.02. Method of Committed Borrowing. The relevant
Borrower shall give the Agent notice (a "Notice of Committed Borrowing")
not later than 10:30 A.M. (New York City time) on (x) the date of each Base
Rate Borrowing, (y) the second Domestic Business Day before each CD
Borrowing and (z) the third Euro-Dollar Business Day before each
Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be CD
Loans, Base Rate Loans or Euro-Dollar Loans, and
Page 44 of 124
Exhibit Index is on page 5
<PAGE>
(iv) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed Loans
pursuant to Section 2.01, any Borrower may, as set forth in this Section,
request the Banks during the period beginning one month after the Effective
Date and continuing to but not including the Termination Date to make
offers to make Money Market Loans to such Borrower. The Banks may, but
shall have no obligation to, make such offers and such Borrower may, but
shall have no obligation to, accept any such offers in a manner set forth
in this Section.
(b) Money Market Quote Request. When a Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to
the Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit E hereto so as to be received not
later than 10:00 A.M. (New York City time) on (x) the fifth Euro-Dollar
Business Day prior to the date of Borrowing proposed therein, in the case
of a LIBOR Auction or (y) the Domestic Business Day next preceding the date
of Borrowing proposed therein, in the case of an Absolute Rate Auction (or,
in either case, such other time or date as the Company and the Agent shall
have mutually agreed and shall have notified to the Banks not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day
in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$5,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
A Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market
Quote Request shall be given within five Euro-Dollar Business Days (or such
other number of days as the
Page 45 of 124
Exhibit Index is on page 5
<PAGE>
Company and the Agent may agree) of any other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of
a Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially
in the form of Exhibit F hereto, which shall constitute an invitation by
the Borrower to each Bank to submit Money Market Quotes offering to make
the Money Market Loans to which such Money Market Quote Request relates in
accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each
Money Market Quote must comply with the requirements of this subsection (d)
and must be submitted to the Agent by telex or facsimile transmission at
its offices specified in or pursuant to Section 9.01 not later than (x)
2:00 P.M. (New York City time) on the fourth Euro-Dollar Business Day prior
to the proposed date of Borrowing, in the case of a LIBOR Auction or (y)
9:30 A.M. (New York City time) on the proposed date of Borrowing, in the
case of an Absolute Rate Auction (or, in either case, such other time or
date as the Company and the Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective); provided that Money Market Quotes submitted by
the Agent (or any affiliate of the Agent) in the capacity of a Bank may be
submitted, and may only be submitted, if the Agent or such affiliate
notifies the Borrower of the terms of the offer or offers contained therein
not later than (x) one hour prior to the deadline for the other Banks, in
the case of a LIBOR Auction or (y) 15 minutes prior to the deadline for the
other Banks, in the case of an Absolute Rate Auction. Subject to Articles
II and VI, any Money Market Quote so made shall be irrevocable except with
the written consent of the Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form
of Exhibit G hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount (w) may be greater
than or less than the Commitment of the quoting Bank, (x) must be
$5,000,000 or a larger multiple of $1,000,000, (y) may not exceed the
principal amount of Money Market Loans for which offers were requested
and (z) may be
Page 46 of 124
Exhibit Index is on page 5
<PAGE>
subject to an aggregate limitation as to the principal amount of
Money Market Loans for which offers being made by such quoting Bank may
be accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or
subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Money
Market Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the
quoting Bank with respect to each Interest Period specified in the related
Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit G hereto or
does not specify all of the information required by subsection (d)(ii)
above;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Agent shall promptly notify the
Borrower of the terms (x) of any Money Market Quote submitted by a Bank
that is in accordance with subsection (d) and (y) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money
Market Quote submitted by such Bank with respect to the same Money Market
Quote Request. Any such subsequent Money Market Quote shall be disregarded
by the Agent unless such subsequent Money Market Quote is submitted solely
to correct a manifest error in such former Money Market Quote. The Agent's
notice to the Borrower shall specify (A) the aggregate principal amount of
Money Market Loans for which offers have been received for each Interest
Period specified in the
Page 47 of 124
Exhibit Index is on page 5
<PAGE>
related Money Market Quote Request, (B) the respective principal amounts
and Money Market Margins or Money Market Absolute Rates, as the case may
be, so offered and (C) if applicable, limitations on the aggregate
principal amount of Money Market Loans for which offers in any single Money
Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M.
(New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the
proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Company and the Agent shall
have mutually agreed and shall have notified to the Banks not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective), the
Borrower shall notify the Agent of its acceptance or non-acceptance of the
offers so notified to it pursuant to subsection (e). In the case of
acceptance, such notice (a "Notice of Money Market Borrowing") shall
specify the aggregate principal amount of offers for each Interest Period
that are accepted. The Borrower may accept any Money Market Quote in whole
or in part; provided that:
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money
Market Quote Request;
(ii) the principal amount of each Money Market Borrowing must be
$5,000,000 or a larger multiple of $1,000,000;
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the
case may be; and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two or more Banks
with the same Money Market Margins or Money Market Absolute Rates, as the
case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period,
the principal amount of Money Market Loans in respect of which such offers
are accepted shall be allocated by the Agent among such Banks as nearly as
possible (in multiples of $1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers.
Determinations by the Agent of the amounts of Money Market Loans shall be
conclusive in the absence of manifest error.
Page 48 of 124
Exhibit Index is on page 5
<PAGE>
SECTION 2.04. Notice to Banks; Funding of Loans. (a) Upon receipt
of a Notice of Borrowing, the Agent shall promptly notify each Bank of the
contents thereof and of such Bank's share (if any) of such Borrowing and
such Notice of Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 1:00 P.M. (New York City time) on the date of
each Borrowing, each Bank participating therein shall (except as provided
in subsection (c) of this Section) make available its share of such
Borrowing, in Federal or other funds immediately available in New York
City, to the Agent at its address specified in or pursuant to Section
11.01. Unless the Agent determines that any applicable condition specified
in Article III has not been satisfied, the Agent will make the funds so
received from the Banks available to the Borrower at the Agent's aforesaid
address.
(c) If any Bank makes a new Loan hereunder to a Borrower on a day
on which such Borrower is to repay all or any part of an outstanding Loan
from such Bank, such Bank shall apply the proceeds of its new Loan to make
such repayment and only an amount equal to the difference (if any) between
the amount being borrowed by such Borrower and the amount being repaid
shall be made available by such Bank to the Agent as provided in subsection
(b) of this Section, or remitted by such Borrower to the Agent as provided
in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice from a Bank prior
to the date of any Borrowing that such Bank will not make available to the
Agent such Bank's share of such Borrowing, the Agent may assume that such
Bank has made such share available to the Agent on the date of such
Borrowing in accordance with subsections (b) and (c) of this Section and
the Agent may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent that
such Bank shall not have so made such share available to the Agent, such
Bank and the Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each
day from the date such amount is made available to the Borrower until the
date such amount is repaid to the Agent, at (i) in the case of the
Borrower, a rate per annum equal to the interest rate applicable thereto
pursuant to Section 2.07 and (ii) in the case of such Bank, the Federal
Funds Rate. If such Bank shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Loan included in
such Borrowing for purposes of this Agreement. In no event shall any
payment by the Agent, or repayment by the Borrower, of any amount pursuant
to this Section 2.02(d) relieve the Bank that failed to make available its
share of the related Borrowing of its obligations hereunder.
Page 49 of 124
Exhibit Index is on page 5
<PAGE>
SECTION 2.05. Notes. (a) The Loans of each Bank to each Borrower
shall be evidenced by a single Note of such Borrower payable to the order
of such Bank for the account of its Applicable Lending Office in an amount
equal to the aggregate unpaid principal amount of such Bank's Loans to such
Borrower.
(b) Each Bank may, by notice to a Borrower and the Agent, request
that its Loans of a particular type to such Borrower be evidenced by a
separate Note of such Borrower in an amount equal to the aggregate unpaid
principal amount of such Loans. Each such Note shall be in substantially
the form of Exhibit A hereto with appropriate modifications to reflect the
fact that it evidences solely Loans of the relevant type. Each reference in
this Agreement to the "Note" of such Bank shall be deemed to refer to and
include any or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01(b),
the Agent shall forward such Note to such Bank. Each Bank shall record the
date, amount, type and maturity of each Loan made by it to each Borrower
and the date and amount of each payment of principal made by the Borrower
with respect thereto, and may, if such Bank so elects in connection with
any transfer or enforcement of its Note of any Borrower, endorse on the
schedule forming a part thereof appropriate notations to evidence the
foregoing information with respect to each such Loan to such Borrower then
outstanding; provided that the failure of any Bank to make any such
recordation or endorsement shall not affect the obligations of any Borrower
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by
each Borrower so to endorse its Notes and to attach to and make a part of
any Note a continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such
Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per annum equal to
the Base Rate for such day. Such interest shall be payable for each
Interest Period on the last day thereof. Any overdue principal of or
interest on any Base Rate Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the sum of 2% plus the
rate otherwise applicable to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest
Page 50 of 124
Exhibit Index is on page 5
<PAGE>
Period applicable thereto, at a rate per annum equal to the sum of .305%
plus the applicable Adjusted CD Rate; provided that if any CD Loan shall,
as a result of clause (2)(b) of the definition of Interest Period, have an
Interest Period of less than 30 days, such CD Loan shall bear interest
during such Interest Period at the rate applicable to Base Rate Loans
during such period. Such interest shall be payable for each Interest Period
on the last day thereof and, if such Interest Period is longer than 90
days, at intervals of 90 days after the first day thereof. Any overdue
principal of or interest on any CD Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the higher of (i) the sum of .305% plus the Adjusted CD Rate
applicable to such Loan and (ii) the rate applicable to Base Rate Loans for
such day.
The "Adjusted CD Rate" applicable to a day during any Interest
Period means a rate per annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
----------
* The amount in brackets being rounded upward, if necessary, to
the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate
of interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per
annum bid at 10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two or more New
York certificate of deposit dealers of recognized standing for the purchase
at face value from each CD Reference Bank of its certificates of deposit in
an amount comparable to the principal amount of the CD Loan of such CD
Reference Bank to which such Interest Period applies and having a maturity
comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation
any basic,
Page 51 of 124
Exhibit Index is on page 5
<PAGE>
supplemental or emergency reserves) for a member bank of the
Federal Reserve System in New York City with deposits exceeding five
billion dollars in respect of new non-personal time deposits in dollars in
New York City having a maturity comparable to the related Interest Period
and in an amount of $100,000 or more. The Adjusted CD Rate shall be
adjusted automatically on and as of the effective date of any change in the
Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A"
(or a comparable successor assessment risk classification) within the
meaning of 12 C.F.R. Section 327.4(a) (or any successor provision) to the
Federal Deposit Insurance Corporation (or any successor) for such
Corporation's (or such successor's) insuring time deposits at offices of
such institution in the United States of America. The Adjusted CD Rate
shall be adjusted automatically on and as of the effective date of any
change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period
applicable thereto, at a rate per annum equal to the sum of .18% plus the
applicable Adjusted London Interbank Offered Rate. Such interest shall be
payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than three months, at intervals of three months
after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained
(rounded upward, if necessary, to the next higher 1/100 of 1%) by dividing
(i) the applicable London Interbank Offered Rate by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective rates per annum at which deposits in dollars
are offered to each of the Euro-Dollar Reference Banks in the London
interbank market at approximately 11:00 A.M. (London time) two Euro-Dollar
Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Euro-Dollar Loan of such
Euro-Dollar Reference Bank to which such Interest Period is to apply and
for a period of time comparable to such Interest Period.
Page 52 of 124
Exhibit Index is on page 5
<PAGE>
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member
bank of the Federal Reserve System in New York City with deposits exceeding
five billion dollars in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or
any category of extensions of credit or other assets which includes loans
by a non-United States office of any Bank to United States residents). The
Adjusted London Interbank Offered Rate shall be adjusted automatically on
and as of the effective date of any change in the Euro-Dollar Reserve
Percentage.
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day from and including the
date payment thereof was due to but excluding the date of actual payment,
at a rate per annum equal to the sum of 2% plus the higher of (i) the sum
of .18% plus the Adjusted London Interbank Offered Rate applicable to such
Loan and (ii) the sum of .18% plus the quotient obtained (rounded upward,
if necessary, to the next higher 1/100 of 1%) by dividing (x) the average
(rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which one day (or, if such amount due remains
unpaid more than three Euro-Dollar Business Days, then for such other
period of time not longer than one month as the Agent may select) deposits
in dollars in an amount approximately equal to such overdue payment due to
each of the Euro-Dollar Reference Banks are offered to such Euro-Dollar
Reference Bank in the London interbank market for the applicable period
determined as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a) or (b) of
Section 8.01 shall exist, at a rate per annum equal to the sum of 2% plus
the rate applicable to Base Rate Loans for such day).
(e) Subject to Section 8.01, each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the
London Interbank Offered Rate for such Interest Period (determined in
accordance with Section 2.07(c) as if the related Money Market LIBOR
Borrowing were a Committed Euro-Dollar Borrowing) plus (or minus) the Money
Market Margin quoted by the Bank making such Loan in accordance with
Section 2.03. Each Money Market Absolute Rate Loan shall bear interest on
the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the Money Market Absolute
Rate quoted by the Bank making such
Page 53 of 124
Exhibit Index is on page 5
<PAGE>
Loan in accordance with Section 2.03. Such interest shall be payable for
each Interest Period on the last day thereof and, if such Interest Period
is longer than three months, at intervals of three months after the first
day thereof. Any overdue principal of or interest on any Money Market Loan
shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the Base Rate for such day.
(f) The Agent shall determine each interest rate applicable to
the Loans hereunder. The Agent shall give prompt notice to the Borrower and
the participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated hereby. If any Reference Bank does
not furnish a timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations is
available on a timely basis, the provisions of Section 8.01 shall apply.
SECTION 2.08. Facility Fees. The Company shall pay to the Agent
for the account of each Bank a facility fee of .07% per annum. Such
facility fees shall accrue from and including the Effective Date to but
excluding the date of termination of the Commitments in their entirety, on
the daily aggregate amount of the Commitments (whether used or unused).
Accrued fees under this Section shall be payable quarterly in arrears on
each March 31, June 30, September 30 and December 31 and on the date of
termination of the Commitments in their entirety (and, if later, the date
the Loans shall be repaid in their entirety).
SECTION 2.09. Optional Termination or Reduction of Commitments.
During the Availability Period, the Company may, upon at least three
Domestic Business Days' notice to the Agent, terminate at any time, or
proportionately reduce from time to time by an aggregate amount of at least
$25,000,000 or any larger multiple of $1,000,000, the unused portions of
the Commitments. If the Commitments are terminated in their entirety, all
accrued facility fees shall be payable on the effective date of such
termination.
SECTION 2.10. Mandatory Termination of Commitments. The
Commitments shall terminate on the Termination Date, and any Loans then
outstanding (together with accrued interest thereon) shall be due and
payable on such date.
SECTION 2.11. Prepayments. (a) The Borrower may, upon at least
one Domestic Business Day's notice to the Agent, prepay
Page 54 of 124
Exhibit Index is on page 5
<PAGE>
any Base Rate Borrowing (or any Money Market Borrowing bearing interest at
the Base Rate pursuant to Section 8.01) in whole at any time, or from time
to time in part in amounts aggregating $5,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment.
(b) Except as provided in Section 2.11(c) or 8.02, the Borrower
may not prepay all or any portion of the principal amount of any Fixed Rate
Loan prior to the maturity thereof.
(c) If the Company becomes obligated to indemnify any Bank or the
Agent for Taxes or Other Taxes pursuant to Section 2.15(c) and actions
taken pursuant to Section 2.15(f) do not or will not eliminate such
indemnity payments, then the Company may, upon at least one Domestic
Business Day's notice to the Agent, prepay all Borrowings in whole by
paying the principal amount together with accrued interest thereon to the
date of prepayment (in which event the Company shall also terminate the
Commitments in their entirety pursuant to Section 2.09).
(d) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share of such prepayment and such notice shall
not thereafter be revocable by the Borrower. Each such optional prepayment
shall be applied to prepay ratably the Loans of the several Banks included
in such Borrowing.
SECTION 2.12. General Provisions as to Payments. (a) The
Borrowers shall make each payment of principal of, and interest on, the
Loans and of facility fees hereunder, not later than 11:00 A.M. (New York
City time) on the date when due, in Federal or other funds immediately
available in New York City, to the Agent at its address referred to in
Section 11.01. The Agent will promptly distribute to each Bank its ratable
share of each such payment received by the Agent for the account of the
Banks. Whenever any payment of principal of, or interest on, the Domestic
Loans or of facility fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to
the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date for
payment thereof shall be the next preceding Euro-Dollar Business Day.
Whenever any payment of principal of, or interest on, the Money Market
Loans shall be due on a day which is not a Euro-Dollar Business Day, the
date for
Page 55 of 124
Exhibit Index is on page 5
<PAGE>
payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such
extended time.
(b) Unless the Agent shall have received notice from a Borrower
prior to the date on which any payment is due from such Borrower to the
Banks hereunder that such Borrower will not make such payment in full, the
Agent may assume that such Borrower has made such payment in full to the
Agent on such date and the Agent may, in reliance upon such assumption,
cause to be distributed to each Bank on such due date an amount equal to
the amount then due such Bank. If and to the extent that such Borrower
shall not have so made such payment, each Bank shall repay to the Agent
forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to
such Bank until the date such Bank repays such amount to the Agent, at the
Federal Funds Rate.
SECTION 2.13. Funding Losses. If a Borrower makes any payment of
principal with respect to any Fixed Rate Loan (pursuant to Article II, VI
or VIII or otherwise) on any day other than the last day of the Interest
Period applicable thereto, or the last day of an applicable period fixed
pursuant to Section 2.07(d), or if the Borrower fails to borrow or prepay
any Fixed Rate Loans after notice has been given to any Bank in accordance
with Section 2.04(a) or 2.11, the Company shall reimburse each Bank within
15 days after demand for any resulting loss or expense incurred by it (or
by an existing or prospective Participant in the related Loan), including
(without limitation) any loss incurred in obtaining, liquidating or
employing deposits from third parties, but excluding loss of margin for the
period after any such payment or failure to borrow or prepay, provided that
such Bank shall have delivered to the Borrower a certificate as to the
amount of such loss or expense, which certificate shall be conclusive in
the absence of manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365
days (or 366 days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last day). All other
interest and fees shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed (including the first day but
excluding the last day).
SECTION 2.15. Taxes. (a) For the purposes of this Section 2.15,
the following terms have the following meanings:
Page 56 of 124
Exhibit Index is on page 5
<PAGE>
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings with respect to any
payment by any Borrower or the Company pursuant to this Agreement or under
any Note, and all liabilities with respect thereto, excluding (i) in the
case of each Bank and the Agent, taxes imposed on its income, and franchise
or similar taxes imposed on it, by a jurisdiction (or any subdivision
thereof) under the laws of which such Bank or the Agent (as the case may
be) is organized or in which its principal executive office is located or,
in the case of each Bank, in which its Applicable Lending Office is located
and (ii) in the case of each Bank, any United States withholding tax
imposed on such payments but only to the extent that such Bank is subject
to United States withholding tax at the time such Bank first becomes a
party to this Agreement or changes its Applicable Lending Office.
"Other Taxes" means any present or future stamp or documentary
taxes and any other excise or property taxes, or similar charges or levies,
which arise from any payment made pursuant to this Agreement or under any
Note or from the execution or delivery of, or otherwise with respect to,
this Agreement or any Note.
(b) Any and all payments by any Borrower or the Company to or for
the account of any Bank or the Agent hereunder or under any Note shall be
made without deduction for any Taxes or Other Taxes; provided that, if any
Borrower or the Company shall be required by law to deduct any Taxes or
Other Taxes from any such payments, (i) the sum payable shall be increased
as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) such
Bank or the Agent (as the case may be) receives an amount equal to the sum
it would have received had no such deductions been made, (ii) such Borrower
or the Company shall make such deductions, (iii) such Borrower or the
Company shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv)
such Borrower or the Company shall furnish to the Agent, at its address
referred to in Section 11.01, the original or a certified copy of a receipt
evidencing payment thereof.
(c) The Company and each other Borrower agrees to indemnify each
Bank and the Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by such Bank or
the Agent (as the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be paid within 30 days after such Bank or the Agent
(as the case may be) makes demand therefor.
Page 57 of 124
Exhibit Index is on page 5
<PAGE>
(d) Each Bank organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Bank listed on the signature pages
hereof and on or prior to the date on which it becomes a Bank in the case
of each other Bank, from time to time thereafter if requested in writing by
the Company (but only so long as such Bank remains lawfully able to do so),
and at any time it changes its Applicable Lending Office, shall provide the
Company and the Agent with Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Bank is entitled to benefits under an income
tax treaty to which the United States is a party which exempts the Bank
from United States withholding tax or reduces the rate of withholding tax
on payments of interest for the account of such Bank or certifying that the
income receivable pursuant to this Agreement is effectively connected with
the conduct of a trade or business in the United States.
(e) For any period with respect to which a Bank has failed to
provide the Company or the Agent with the appropriate form pursuant to
Section 2.15(d) (unless such failure is due to a change in treaty, law or
regulation occurring subsequent to the date on which such form originally
was required to be provided), such Bank shall not be entitled to
indemnification under Section 2.15(b) or (c) with respect to Taxes imposed
by the United States; provided that if a Bank, which is otherwise exempt
from or subject to a reduced rate of withholding tax, becomes subject to
Taxes because of its failure to deliver a form required hereunder, the
Borrowers shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If any Borrower or the Company is required to pay additional
amounts to or for the account of any Bank pursuant to this Section, then
such Bank will change the jurisdiction of its Applicable Lending Office if,
in the judgment of such Bank, such change (i) will eliminate or reduce any
such additional payment which may thereafter accrue and (ii) is not
otherwise disadvantageous to such Bank.
(g) If any Borrower is organized under a jurisdiction outside of
the United States, each Bank and the Agent will use reasonable efforts to
cooperate with such Borrower and the Company (but shall not be required to
disclose any information it considers in its sole discretion, to be
confidential) to assist such Borrower to obtain any reduction of or limit
on Taxes subject to the indemnification provisions of this Section 2.15.
SECTION 2.16. Judgment Currency. If for the purpose of obtaining
judgment in any court it is necessary to convert a sum
Page 58 of 124
Exhibit Index is on page 5
<PAGE>
due from any Borrower hereunder or under any of the Notes in United States
dollars ("dollars") into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures
the Agent could purchase dollars with such other currency at the Agent's
New York office on the Domestic Business Day preceding that on which final
judgment is given. The obligations of each Borrower in respect of any sum
due to any Bank or the Agent hereunder or under any Note shall,
notwithstanding any judgment in a currency other than dollars, be
discharged only to the extent that on the Domestic Business Day following
receipt by such Bank or the Agent (as the case may be) of any sum adjudged
to be so due in such other currency such Bank or the Agent (as the case may
be) may in accordance with normal banking procedures purchase dollars with
such other currency; if the amount of dollars so purchased is less than the
sum originally due to such Bank or the Agent, as the case may be, in
dollars, each Borrower agrees, to the fullest extent that it may
effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Bank or the Agent, as the case may be, against
such loss, and if the amount of dollars so purchased exceeds (a) the sum
originally due to any Bank or the Agent, as the case may be, and (b) any
amounts shared with other Banks as a result of allocations of such excess
as a disproportionate payment to such Bank under Section 11.04, such Bank
or the Agent, as the case may be, agrees to remit such excess to the
appropriate Borrower.
SECTION 2.17. Foreign Subsidiary Costs. (a) If the cost to any
Bank of making or maintaining any Loan to an Eligible Subsidiary is
increased, or the amount of any sum received or receivable by any Bank (or
its Applicable Lending Office) is reduced by an amount deemed by such Bank
to be material, by reason of the fact that such Eligible Subsidiary is
incorporated in, or conducts business in, a jurisdiction outside the United
States of America, the Company shall indemnify such Bank for such increased
cost or reduction within 15 days after demand by such Bank (with a copy to
the Agent). A certificate of such Bank claiming compensation under this
subsection 2.17(a) and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of manifest error.
(b) Each Bank will promptly notify the Company and the Agent of
any event of which it has knowledge that will entitle such Bank to
additional interest or payments pursuant to subsection 2.17(a) and will use
reasonable efforts to designate a different Applicable Lending Office, if,
in the judgment of such Bank, such designation will avoid the need for, or
reduce the amount of, such compensation and will not be otherwise
disadvantageous to such Bank.
Page 59 of 124
Exhibit Index is on page 5
<PAGE>
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall become
effective on the date that each of the following conditions shall have been
satisfied (or waived in accordance with Section 11.05):
(a) receipt by the Agent of counterparts hereof signed by each of
the parties hereto (or, in the case of any party as to which an
executed counterpart shall not have been received, receipt by the
Agent in form satisfactory to it of telex, facsimile transmission or
other written confirmation from such party of execution of a
counterpart hereof by such party);
(b) receipt by the Agent for the account of each Bank of a duly
executed Note of each Borrower dated on or before the Effective Date
complying with the provisions of Section 2.05;
(c) receipt by the Agent of opinions of Cravath, Swaine & Moore,
special counsel for the Company (which is hereby requested by the
Borrower to deliver such opinion), in substantially the form of
Exhibit B-1 hereto and Dustan E. McCoy, Esq., General Counsel of the
Company, substantially in the form of Exhibit B-2 hereto, and covering
such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(d) receipt by the Agent of an opinion of Davis Polk & Wardwell,
special counsel for the Agent, substantially in the form of Exhibit C
hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably
request;
(e) receipt by the Agent, for the account of the Banks, of such
fees as shall have been previously agreed upon between the Company and
the Agent to be payable on or prior to the Effective Date; and
(f) receipt by the Agent of all documents it may reasonably
request relating to the existence of the Company and other Borrowers,
the corporate authority for and the validity of this Agreement and the
Notes, and any other matters relevant hereto, all in form and
substance satisfactory to the Agent;
Page 60 of 124
Exhibit Index is on page 5
<PAGE>
provided that this Agreement shall not become effective or be binding
on any party hereto unless all of the foregoing conditions are
satisfied not later than October 31, 1995. The Agent shall promptly
notify the Company and the Banks of the Effective Date, and such
notice shall be conclusive and binding on all parties hereto.
SECTION 3.02. Borrowings. The obligation of any Bank to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the
aggregate outstanding principal amount of the Loans will not exceed
the aggregate amount of the Commitments;
(c) the fact that, immediately before and after such Borrowing,
no Default shall have occurred and be continuing; and
(d) except in the case of any Borrowing that does not increase
the principal amount of the outstanding Loans of any Bank, the fact
that the representations and warranties of the Borrowers contained in
this Agreement (except, unless the Borrowing is taking place on the
date of consummation of the acquisition of OSi, the representation and
warranty set forth in Section 4.04(c) as to any matter which has
theretofore been disclosed in writing by the Company to the Banks)
shall be true on and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the facts
specified in clauses (b), (c) and, to the extent applicable, (d) of this
Section.
SECTION 3.03. First Borrowing by Each Eligible Subsidiary. The
obligation of each Bank to make a Loan on the occasion of the first
Borrowing by each Eligible Subsidiary is subject to the satisfaction of the
following further conditions:
(a) receipt by the Agent for the account of each Bank of a duly
executed Note of such Eligible Subsidiary, dated on or before the date
of such Borrowing, complying with the provisions of Section 2.05;
(b) receipt by the Agent of an opinion of counsel for such
Eligible Subsidiary acceptable to the Agent, substantially in the form
of Exhibit J hereto and covering
Page 61 of 124
Exhibit Index is on page 5
<PAGE>
such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request; and
(c) receipt by the Agent of all documents which it may reasonably
request relating to the existence of such Eligible Subsidiary, the
corporate authority for and the validity of the Election to
Participate of such Eligible Subsidiary, this Agreement and the Notes
of such Eligible Subsidiary, and any other matters relevant thereto,
all in form and substance satisfactory to the Agent.
The opinion referred to in clause (b) above shall be dated no more than
five Euro-Dollar Business Days before the date of the first Borrowing by
such Eligible Subsidiary hereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Company of
this Agreement and the Notes are within the corporate powers of the
Company, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute a default
under, any provision of applicable law or regulation or of the certificate
of incorporation or by-laws of the Company or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or
result in the creation or imposition of any Lien on any asset of the
Company or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid
and binding agreement of each Borrower and each Note, when executed and
delivered in accordance with this Agreement, will constitute a valid and
binding obligation of the relevant Borrower.
Page 62 of 124
Exhibit Index is on page 5
<PAGE>
SECTION 4.04. Financial Information. (a) The consolidated balance
sheet of the Company and its Consolidated Subsidiaries as of December 31,
1994 and the related consolidated statements of income, cash flows and
shareholders' equity for the fiscal year then ended, reported on by Ernst &
Young LLP and set forth in the Company's 1994 Form 10-K, a copy of which
has been delivered to each of the Banks, fairly present, in conformity with
generally accepted accounting principles, the consolidated financial
position of the Company and its Consolidated Subsidiaries as of such date
and their consolidated results of operations and cash flows for such fiscal
year.
(b) The unaudited consolidated balance sheet of the Company and
its Consolidated Subsidiaries as of June 30, 1995 and the related unaudited
consolidated statements of income and cash flows for the six months then
ended, set forth in the Company's quarterly report for the fiscal quarter
ended June 30, 1995 as filed with the Securities and Exchange Commission on
Form 10-Q, a copy of which has been delivered to each of the Banks, fairly
present, in conformity with generally accepted accounting principles
applied on a basis consistent with the financial statements referred to in
subsection (a) of this Section, the consolidated financial position of the
Company and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such six month period
(subject to normal year-end adjustments).
(c) Since December 31, 1994, except as publicly announced by the
Company in the Filed SEC Documents or in a press release dated October 2,
1995, a copy of which has been delivered to each of the Banks, there has
been no material adverse change in the business, financial position or
results of operations of the Company and its Consolidated Subsidiaries,
considered as a whole.
SECTION 4.05. Litigation. Except as disclosed in the Filed SEC
Documents, there is no action, suit or proceeding pending against, or to
the knowledge of the Company threatened against or affecting, the Company
or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable
likelihood of an adverse decision which would materially adversely affect
the business (taken as a whole), consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries or which in any manner draws into question the validity or
enforceability of this Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA
Group has fulfilled its obligations under the minimum
Page 63 of 124
Exhibit Index is on page 5
<PAGE>
funding standards of ERISA and the Internal Revenue Code with respect to
each Plan and is in compliance in all respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect
to each Plan, except for such noncompliance which would not have a material
adverse effect on the business, financial position or results of operations
of the Company and its Consolidated Subsidiaries, considered as a whole. No
member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code in respect of any
Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could
result in the imposition of a Lien or the posting of a bond or other
security under ERISA or the Internal Revenue Code or (iii) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA, except in the case of clause (iii)
above for such liabilities which do not exceed $2,000,000 in the aggregate
during the term of this Agreement.
SECTION 4.07. Environmental Matters. In the ordinary course of
its business, the Company conducts an ongoing review of the effect of
Environmental Laws on the business, operations and properties of the
Company and its Subsidiaries, in the course of which it identifies and
evaluates associated liabilities and costs (including, without limitation,
any capital or operating expenditures required for clean-up or closure of
properties presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license,
permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction
in the level of or change in the nature of operations conducted thereat and
any actual or potential liabilities to third parties, including employees,
and any related costs and expenses). On the basis of this review, the
Company has reasonably concluded that, except as disclosed in the Filed SEC
Documents, Environmental Laws are unlikely to have a material adverse
effect on the business, financial position or results of operations of the
Company and its Consolidated Subsidiaries, considered as a whole. The
Company expects that the Environmental Laws to which it will become subject
as a result of the acquisition referred to in Section 5.10 will not have a
material adverse effect on the business, financial position or results of
operations of the Company and its Consolidated Subsidiaries, considered as
a whole.
SECTION 4.08. Taxes. United States Federal income tax returns of
the Company and its Subsidiaries have been examined
Page 64 of 124
Exhibit Index is on page 5
<PAGE>
and settled through the fiscal year ended December 31, 1989. The Company
and its Subsidiaries have filed all United States Federal income tax
returns and all other material tax returns which are required to be filed
by them and have paid all taxes due pursuant to such returns or pursuant to
any assessment received by the Company or any Subsidiary. The charges,
accruals and reserves on the books of the Company and its Subsidiaries in
respect of taxes or other governmental charges are, in the opinion of the
Company, adequate.
SECTION 4.09. Subsidiaries. Each of the Company's corporate
Subsidiaries is a corporation duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and has
all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted.
SECTION 4.10. Not an Investment Company. The Company is not an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
SECTION 4.11. Full Disclosure. All information heretofore
furnished by the Company to the Agent or any Bank in writing for purposes
of or in connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by the Company to
the Agent or any Bank in writing will be, taken as a whole, true and
accurate in all material respects on the date as of which such information
is stated or certified. The Company has disclosed to the Banks in writing
any and all facts which materially and adversely affect or may affect (to
the extent the Company can now reasonably foresee) the business, operations
or financial condition of the Company and its Consolidated Subsidiaries,
taken as a whole, or the ability of the Company to perform its obligations
under this Agreement.
ARTICLE V
COVENANTS
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver to each of
the Banks:
Page 65 of 124
Exhibit Index is on page 5
<PAGE>
(a) as soon as available and in any event within 120 days after
the end of each fiscal year of the Company, a consolidated balance
sheet of the Company and its Consolidated Subsidiaries as of the end
of such fiscal year and the related consolidated statements of income,
cash flows and shareholders' equity for such fiscal year, setting
forth in each case in comparative form the figures for the previous
fiscal year, all reported on in accordance with generally accepted
accounting principles by Ernst & Young LLP or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the
Company, a consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and the
related consolidated statements of income and cash flows for such
quarter and for the portion of the Company's fiscal year ended at the
end of such quarter, setting forth in each case in comparative form
the figures for the corresponding quarter and the corresponding
portion of the Company's previous fiscal year, all certified (subject
to normal year-end adjustments) as to fairness of presentation,
generally accepted accounting principles and consistency by the chief
financial officer or the controller or other chief accounting officer
of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of
the chief financial officer or the controller or other chief
accounting officer of the Company (i) setting forth in reasonable
detail the calculations required to establish whether the Company was
in compliance with the requirements of Sections 5.07 to 5.08,
inclusive, on the date of such financial statements and (ii) stating
whether any Default exists on the date of such certificate and, if any
Default then exists, setting forth the details thereof and the action
which the Company is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
whether anything has come to their attention to cause them to believe
that any Default existed on the date of such statements relating only
to Sections 5.07, 5.08(a), 5.08(c), 5.08(f), 5.08(g)(i), 5.08(g)(ii)
and 5.08(h) and (ii) confirming the calculations set forth in the
officer's certificate delivered simultaneously therewith pursuant to
clause (c) above;
Page 66 of 124
Exhibit Index is on page 5
<PAGE>
(e) within five Domestic Business Days after any Principal
Officer of the Company obtains knowledge of any Default, if such
Default is then continuing, a certificate of the chief financial
officer or the controller or other chief accounting officer of the
Company setting forth the details thereof and the action which the
Company is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and
proxy statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K,
10-Q and 8-K (or their equivalents) which the Company shall have filed
with the Securities and Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or
is required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent
to terminate any Plan under Section 4041(c) of ERISA, a copy of such
notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of
such notice; or (vii) fails to make any payment or contribution to any
Plan or Multiemployer Plan or in respect of any Benefit Arrangement or
makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of
a bond or other security, a certificate of the chief financial officer
or the controller or other chief accounting officer of the Company
setting forth details as to such occurrence and action, if any, which
the Company or
Page 67 of 124
Exhibit Index is on page 5
<PAGE>
applicable member of the ERISA Group is required or proposes to take;
and
(i) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries as
the Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Payment of Obligations. The Company will pay and
discharge, and will cause each Subsidiary to pay and discharge, at or
before maturity (or, in the case of tax liabilities, if later, before the
same become subject to penalties), all their respective obligations and
liabilities (including, without limitation, tax liabilities, except where
the same may be contested in good faith by appropriate proceedings) if the
failure to so pay and discharge would have a material adverse effect on the
business, financial position or results of operations of the Company and
its Consolidated Subsidiaries considered as a whole, and will maintain, and
will maintain for each Subsidiary or cause each Subsidiary to maintain, in
accordance with generally accepted accounting principles, appropriate
reserves for the accrual of any of the same.
SECTION 5.03. Maintenance of Property; Insurance. The Company
will keep, and will cause each Subsidiary to keep, all property useful and
necessary in its business in good working order and condition, ordinary
wear and tear excepted; will maintain, and will cause each Subsidiary to
maintain (either in the name of the Company or in such Subsidiary's own
name) with financially sound and reputable insurance companies, insurance
on all their property in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies
of established repute engaged in the same or a similar business; and will
furnish to the Banks, upon written request from the Agent, full information
as to the insurance carried.
SECTION 5.04. Conduct of Business and Maintenance of Existence.
The Company and its Subsidiaries (on a consolidated basis) will continue to
engage in business of the same general types as now conducted by the
Company and its Subsidiaries, and will preserve, renew and keep in full
force and effect, and will cause each Subsidiary to preserve, renew and
keep in full force and effect their respective corporate existence and
their respective rights, privileges and franchises necessary or desirable
in the normal conduct of business; provided that nothing in this Section
5.04 shall prohibit (i) the merger of a Subsidiary into the Company or the
merger or consolidation of a Subsidiary with or into another Person if the
corporation surviving such consolidation or merger is a Wholly-Owned
Page 68 of 124
Exhibit Index is on page 5
<PAGE>
Consolidated Subsidiary and if, in each case, after giving effect thereto,
no Default shall have occurred and be continuing, (ii) the termination of
the corporate existence of any Subsidiary (other than any Subsidiary which
is a Borrower) if the Company in good faith determines that such
termination is in the best interest of the Company and is not materially
disadvantageous to the Banks or (iii) any disposition of assets not
prohibited by Section 5.09 hereof.
SECTION 5.05. Compliance with Laws. The Company will comply, and
cause each Subsidiary to comply, in all respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA
and the rules and regulations thereunder and all applicable laws,
ordinances, rules, regulations and requirements of governmental authorities
relating to the acquisition referred to in Section 5.10) except where the
necessity of compliance therewith is contested in good faith by appropriate
proceedings or where failure to comply would not materially adversely
affect the business (taken as a whole), consolidated financial position or
consolidated results of operations of the Company and its Consolidated
Subsidiaries.
SECTION 5.06. Inspection of Property, Books and Records. The
Company will keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of
all dealings and transactions in relation to its business and activities;
and will permit, and will cause each Subsidiary to permit, representatives
of any Bank at such Bank's expense to visit and inspect any of their
respective properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective affairs,
finances and accounts with their respective officers, employees and
independent public accountants, all upon such reasonable notice, at such
reasonable times and as often as may reasonably be desired.
SECTION 5.07. Debt. Consolidated Debt will at no time exceed 110%
of Consolidated Net Worth, and total Debt of all Consolidated Subsidiaries
(excluding Debt of a Consolidated Subsidiary to the Company or to a
Wholly-Owned Consolidated Subsidiary and Debt of OSi and its consolidated
subsidiaries outstanding on the Effective Date) will at no time exceed 15%
of Consolidated Net Worth. For purposes of this Section any preferred stock
of a Consolidated Subsidiary which is held by a Person other than the
Company or a Wholly-Owned Consolidated Subsidiary and which is redeemable
other than solely at the option of the issuer or in respect of which
scheduled payments are required to be made shall be included, at the higher
of its
Page 69 of 124
Exhibit Index is on page 5
<PAGE>
voluntary or involuntary liquidation value, in "Consolidated Debt"
and in the "Debt" of such Consolidated Subsidiary.
SECTION 5.08. Negative Pledge. Neither the Company nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal
amount not exceeding $20,000,000 (exclusive of Liens permitted by
clause (h) of this Section);
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Subsidiary and not created in contemplation
of such event;
(c) any Lien on any asset securing Debt incurred or assumed for
the purpose of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset concurrently
with or within 180 days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Company or
a Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Company or a Subsidiary and not created in
contemplation of such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal
or refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Debt is not
increased and is not secured by any additional assets;
(g) Liens not otherwise permitted by the foregoing clauses of
this Section arising in the ordinary course of its business which (i)
do not secure Debt, (ii) do not secure any obligation in an amount
exceeding the greater of $20,000,000 and 10% of Consolidated Tangible
Net Worth and (iii) do not materially impair the use of the assets
subject thereto in the operation of the business of the Company and
its Subsidiaries; and
(h) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt or interest rate and currency swaps in an
aggregate principal amount, notional
Page 70 of 124
Exhibit Index is on page 5
<PAGE>
principal and final exchange amount at any time outstanding not to
exceed 10% of Consolidated Tangible Net Worth.
SECTION 5.09. Consolidations, Mergers and Sales of Assets. The
Company will not (i) consolidate or merge with or into any other Person or
(ii) sell, lease or otherwise transfer, directly or indirectly, all or any
substantial part of the assets of the Company and its Subsidiaries, taken
as a whole, to any other Person; provided that (A) the Company may merge
with another Person if (x) the Company is the corporation surviving such
merger and (y) immediately after giving effect to such merger, no Default
shall have occurred and be continuing, (B) the Company may sell, lease or
otherwise transfer any of its inventory in the ordinary course of business
and any of its assets which, in the judgment of its officers, are obsolete,
excess or unserviceable, (C) the Company may sell, lease or otherwise
transfer any of the assets acquired in the acquisition referred to in
Section 5.10 to any of its Subsidiaries and (D) the Company may dispose of
all or any part of its Lubricants Group (which the Company has previously
announced its intent to sell).
SECTION 5.10. Use of Proceeds. The proceeds of the Loans made
under this Agreement will be used by the Company to finance the acquisition
by the Company of OSi, the refinancing of certain Debt of OSi and its
subsidiaries and the payment of related expenses, and by the Borrowers for
general corporate purposes. None of such proceeds will be used, directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of
buying or carrying any "margin stock" within the meaning of Regulation U.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) any Borrower shall fail to pay when due any principal of any
Loan, or shall fail to pay within three Domestic Business Days of the
due date thereof any interest on any Loan, any fees or any other
amount payable hereunder;
(b) the Company or any other Borrower shall fail to observe or
perform any applicable covenant contained in Sections 5.07 to 5.10,
inclusive;
Page 71 of 124
Exhibit Index is on page 5
<PAGE>
(c) any Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by
clause (a) or (b) above) for 30 days after written notice thereof has
been given to the Company by the Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made
by any Borrower in this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall
prove to have been incorrect in any material respect when made (or
deemed made);
(e) the Company or any Subsidiary shall fail to make any payment
of principal, face amount, interest, premium, fees or any similar
obligation in respect of any Material Debt when due or within any
applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables the
holder of such Debt or any Person acting on such holder's behalf to
accelerate the maturity thereof;
(g) the Company, any other Borrower or any Material Subsidiary
shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief
or to the appointment of or taking possession by any such official in
an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Company, any other Borrower or any Material Subsidiary
seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Company, any
other Borrower or any Material Subsidiary under the federal bankruptcy
laws as now or hereafter in effect;
Page 72 of 124
Exhibit Index is on page 5
<PAGE>
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of intent
to terminate a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section 4219(c)(5) of ERISA,
with respect to, one or more Multiemployer Plans which could cause one
or more members of the ERISA Group to incur a current payment
obligation in excess of $10,000,000;
(j) a judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against the Company, any other Borrower
or any Material Subsidiary and such judgment or order shall continue
unsatisfied and unstayed for a period of 30 days; or
(k) any person or group of persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended) shall
have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under said Act)
of 35% or more of the outstanding shares of common stock of the
Company; or, during any period of twelve consecutive calendar months,
individuals who were directors of the Company on the first day of such
period shall cease to constitute a majority of the board of directors
of the Company;
then, and in every such event, the Agent shall (i) if requested by Banks
having more than 50% in aggregate amount of the Commitments, by notice to
the Company terminate the Commitments and they shall thereupon terminate,
and (ii) if requested by Banks holding more than 50% of the aggregate
principal amount of the Loans, by notice to the Company declare the Loans
(together with accrued interest thereon) to be, and the Loans shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
Borrower; provided that in the case of any of the Events of Default
specified in clause (g) or (h) above with respect to any Borrower,
automatically, without any notice to any Borrower or any other act by Agent
or the Banks, the Commitments shall thereupon terminate and
Page 73 of 124
Exhibit Index is on page 5
<PAGE>
automatically the Loans (together with accrued interest thereon) shall
become immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to
the Company under Section 6.01(c) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement and the
Notes as are delegated to the Agent by the terms hereof or thereof,
together with all such powers as are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan Guaranty Trust Company
of New York shall have the same rights and powers under this Agreement as
any other Bank and may exercise or refrain from exercising the same as
though it were not the Agent, and Morgan Guaranty Trust Company of New York
and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Company or any Subsidiary or
affiliate of the Company as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any
action with respect to any Default, except as expressly provided in Article
VI.
SECTION 7.04. Consultation with Experts. The Agent may consult
with legal counsel (who may be counsel for any Borrower), independent
public accountants and other experts selected by it and shall not be liable
to any Bank for any action taken or omitted to be taken by it in good faith
in accordance with the advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of
its affiliates nor any of their respective directors, officers, agents or
employees shall be liable to any Bank for any action taken or not taken by
it in connection herewith (i) with the consent or at the request of the
Required Banks or (ii) in
Page 74 of 124
Exhibit Index is on page 5
<PAGE>
the absence of its own gross negligence or
willful misconduct. Neither the Agent nor any of its affiliates nor any of
their respective directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify (i)
any statement, warranty or representation made in connection with this
Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Borrower; (iii) the satisfaction
of any condition specified in Article III, except receipt of items required
to be delivered to the Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur any liability
by acting in reliance upon any notice, consent, certificate, statement, or
other writing (which may be a bank wire, telex, facsimile transmission or
similar writing) believed by it to be genuine or to be signed by the proper
party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent, its affiliates and
their respective directors, officers, agents and employees (to the extent
not reimbursed by the Borrowers) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with
this Agreement or any action taken or omitted by such indemnitees
hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon the Agent or any other Bank,
and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement.
Each Bank also acknowledges that it will, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking any action under this
Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any time
by giving written notice thereof to the Banks and the Company. Upon any
such resignation, the Required Banks shall have the right to appoint a
successor Agent, which successor shall (unless an Event of Default shall
have occurred and be continuing) be reasonably acceptable to the Company.
If no successor Agent shall have been so appointed by the Required Banks,
and shall have accepted such appointment, within 30 days after the retiring
Agent gives notice of resignation, then the retiring Agent may, on behalf
of the Banks, appoint a successor
Page 75 of 124
Exhibit Index is on page 5
<PAGE>
Agent, which successor shall (unless an Event of Default shall have
occurred and be continuing) be reasonably acceptable to the Company, and
which shall be a commercial bank organized or licensed under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $50,000,000. Upon the acceptance of its
appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent.
SECTION 7.09. Agent's Fee. The Company shall pay to the Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Company and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any CD
Loan, Euro-Dollar Loan or Money Market LIBOR Loan:
(a) the Agent is advised by the Reference Banks that deposits in
dollars (in the applicable amounts) are not being offered to the
Reference Banks in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having 50% or
more of the aggregate amount of the Commitments advise the Agent that
the Adjusted CD Rate or the Adjusted London Interbank Offered Rate, as
the case may be, to such Borrower as determined by the Agent will not
adequately and fairly reflect the cost to such Banks of funding their
CD Loans or Euro-Dollar Loans, as the case may be, for such Interest
Period,
the Agent shall forthwith give notice thereof to the Company and the Banks,
whereupon until the Agent notifies the Company that the circumstances
giving rise to such suspension no longer exist, the obligations of the
Banks to make CD Loans or Euro-Dollar Loans, as the case may be, shall be
suspended. Unless the Borrower notifies the Agent at least two Domestic
Business Days before the date of any Fixed Rate Borrowing for which a
Notice of
Page 76 of 124
Exhibit Index is on page 5
<PAGE>
Borrowing has previously been given that it elects not to borrow
on such date, (i) if such Fixed Rate Borrowing is a Committed Borrowing,
such Borrowing shall instead be made as a Base Rate Borrowing and (ii) if
such Fixed Rate Borrowing is a Money Market LIBOR Borrowing, the Money
Market LIBOR Loans comprising such Borrowing shall bear interest for each
day from and including the first day to but excluding the last day of the
Interest Period applicable thereto at the Base Rate for such day.
SECTION 8.02. Illegality. If, on or after the date of this
Agreement, the adoption 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 with the interpretation or administration thereof, or compliance by
any Bank (or its Euro-Dollar Lending Office) with any request or directive
promulgated on or after the date hereof (whether or not having the force of
law) of any such authority, central bank or comparable agency shall make it
unlawful or impossible for any Bank (or its Euro-Dollar Lending Office) to
make, maintain or fund its Euro-Dollar Loans to any Borrower and such Bank
shall so notify the Agent, the Agent shall forthwith give notice thereof to
the other Banks and the Company, whereupon until such Bank notifies the
Company and the Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Bank to make Euro-Dollar Loans to
such Borrower shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such Bank will use reasonable efforts to
designate a different Euro-Dollar Lending Office if such designation will
avoid the need for giving such notice and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. If such Bank shall
determine that it may not lawfully continue to maintain and fund any of its
outstanding Euro-Dollar Loans to such Borrower to maturity and shall so
specify in such notice, such Borrower shall immediately prepay in full the
then outstanding principal amount of each such Euro-Dollar Loan, together
with accrued interest thereon. Concurrently with prepaying each such
Euro-Dollar Loan, such Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or
after (x) the date hereof, in the case of any Committed Loan or any
obligation to make Committed Loans or (y) the date of the related Money
Market Quote, in the case of any Money Market Loan, the adoption 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
Page 77 of 124
Exhibit Index is on page 5
<PAGE>
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable
Lending Office) with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency made
or promulgated after the date hereof shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but
excluding (A) with respect to any CD Loan any such requirement included in
an applicable Domestic Reserve Percentage and (B) with respect to any
Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment (excluding, with
respect to any CD Loan, any such requirement reflected in an applicable
Assessment Rate) or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Bank (or its Applicable
Lending Office) or shall impose on any Bank (or its Applicable Lending
Office) or on the United States market for certificates of deposit or the
London interbank market any other condition affecting its Fixed Rate Loans,
its Note or its obligation to make Fixed Rate Loans and the result of any
of the foregoing is to increase the cost to such Bank (or its Applicable
Lending Office) of making or maintaining any Fixed Rate Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material, then,
within 15 days after demand by such Bank (with a copy to the Agent), the
Company shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date
hereof, the adoption 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 with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency (including any determination by any such
authority, central bank or comparable agency that, for purposes of capital
adequacy requirements, the Commitments hereunder do not constitute
commitments with an original maturity of one year or less), has or would
have the effect of reducing the rate of return on capital of such Bank (or
its Parent) as a consequence of such Bank's obligations hereunder to a
level below that which such Bank (or its Parent) could have achieved but
for such adoption, change, request or directive (taking into consideration
its policies with respect to capital adequacy) by an amount deemed by such
Bank to be material, then from time to time,
Page 78 of 124
Exhibit Index is on page 5
<PAGE>
within 15 days after demand by such Bank (with a copy to the Agent), the
Company shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the Agent of
any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
use reasonable efforts to designate a different Applicable Lending Office
if such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed Rate
Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans to any
Borrower has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03(a) with respect to its CD Loans or
Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar
Business Days' prior notice to such Bank through the Agent, have elected
that the provisions of this Section shall apply to such Bank, then, unless
and until such Bank notifies the Company that the circumstances giving rise
to such suspension or demand for compensation no longer apply:
(a) all Loans to such Borrower which would otherwise be made by
such Bank as CD Loans or Euro-Dollar Loans, as the case may be, to
such Borrower shall be made instead as Base Rate Loans (on which
interest and principal shall be payable contemporaneously with the
related Fixed Rate Loans of the other Banks), and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case
may be, to such Borrower has been repaid, all payments of principal
which would otherwise be applied to repay such Fixed Rate Loans shall
be applied to repay its Base Rate Loans instead.
Page 79 of 124
Exhibit Index is on page 5
<PAGE>
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
Each Eligible Subsidiary shall be deemed by the execution and
delivery of its Election to Participate to have represented and warranted
as of the date thereof that:
SECTION 9.01. Corporate Existence and Power. It is a corporation
duly incorporated, validly existing and in good standing under the laws of
its jurisdiction of incorporation and is a Wholly-Owned Consolidated
Subsidiary.
SECTION 9.02. Corporate and Governmental Authorization; No
Contravention. The execution and delivery by it of its Election to
Participate and its Notes, and the performance by it of this Agreement and
its Notes, are within its corporate powers, have been duly authorized by
all necessary corporate action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law
or regulation or of its certificate of incorporation or by-laws or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon the Company or such Eligible Subsidiary or result in the creation or
imposition of any Lien on any asset of the Company or any of its
Subsidiaries.
SECTION 9.03. Binding Effect. This Agreement constitutes a valid
and binding agreement of such Eligible Subsidiary and its Notes, when
executed and delivered in accordance with this Agreement, will constitute
valid and binding obligations of such Eligible Subsidiary.
SECTION 9.04. Taxes. Except as disclosed in such Election to
Participate, there is no income, stamp or other tax of any country, or any
taxing authority thereof or therein, imposed by or in the nature of
withholding or otherwise, which is imposed on any payment to be made by
such Eligible Subsidiary pursuant hereto or on its Notes, or is imposed on
or by virtue of the execution, delivery or enforcement of its Election to
Participate or of its Notes.
Page 80 of 124
Exhibit Index is on page 5
<PAGE>
ARTICLE X
GUARANTY
SECTION 10.01. The Guaranty. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note
issued by any Eligible Subsidiary pursuant to this Agreement, and the full
and punctual payment of all other amounts payable by any Eligible
Subsidiary under this Agreement. Upon failure by any Eligible Subsidiary to
pay punctually any such amount, the Company shall forthwith on demand pay
the amount not so paid at the place and in the manner specified in this
Agreement.
SECTION 10.02. Guaranty Unconditional. The obligations of the
Company hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or
otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of any Eligible Subsidiary under
this Agreement or any Note, by operation of law or otherwise;
(b) any modification or amendment of or supplement to this
Agreement or any Note;
(c) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of any Eligible
Subsidiary under this Agreement or any Note;
(d) any change in the corporate existence, structure or ownership
of any Eligible Subsidiary, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any Eligible
Subsidiary or its assets or any resulting release or discharge of any
obligation of any Eligible Subsidiary contained in this Agreement or
any Note;
(e) the existence of any claim, set-off or other rights which the
Company may have at any time against any Eligible Subsidiary, the
Agent, any Bank or any other Person, whether in connection herewith or
any unrelated transactions, provided that nothing herein shall prevent
the assertion of any such claim by separate suit or compulsory
counterclaim;
(f) any invalidity or unenforceability relating to or against any
Eligible Subsidiary for any reason of this
Page 81 of 124
Exhibit Index is on page 5
<PAGE>
Agreement or any Note, or any provision of applicable law or
regulation purporting to prohibit the payment by any Eligible
Subsidiary of the principal of or interest on any Note or any other
amount payable by it under this Agreement; or
(g) any other act or omission to act or delay of any kind by any
Eligible Subsidiary, the Agent, any Bank or any other Person or any
other circumstance whatsoever which might, but for the provisions of
this paragraph, constitute a legal or equitable discharge of the
Company's obligations hereunder.
SECTION 10.03. Discharge Only Upon Payment In Full; Reinstatement
In Certain Circumstances. The Company's obligations hereunder shall remain
in full force and effect until the Commitments shall have terminated and
the principal of and interest on the Notes and all other amounts payable by
the Company and each Eligible Subsidiary under this Agreement shall have
been paid in full. If at any time any payment of the principal of or
interest on any Note or any other amount payable by any Eligible Subsidiary
under this Agreement is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of any Eligible
Subsidiary or otherwise, the Company's obligations hereunder with respect
to such payment shall be reinstated at such time as though such payment had
been due but not made at such time.
SECTION 10.04. Waiver by the Company. The Company irrevocably
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action
be taken by any Person against any Eligible Subsidiary or any other Person.
SECTION 10.05. Subrogation. Upon making any payment with respect
to any Eligible Subsidiary hereunder, the Company shall be subrogated to
the rights of the payee against such Eligible Subsidiary with respect to
such payment; provided that the Company shall not enforce any payment by
way of subrogation until all amounts of principal of and interest on the
Loans and all other amounts payable under this Agreement have been paid in
full.
SECTION 10.06. Stay of Acceleration. In the event that
acceleration of the time for payment of any amount payable by any Eligible
Subsidiary under this Agreement or its Notes is stayed upon insolvency,
bankruptcy or reorganization of such Eligible Subsidiary, all such amounts
otherwise subject to acceleration under the terms of this Agreement shall
nonetheless be payable by the Company hereunder forthwith on demand by the
Agent made at the request of the Required Banks.
Page 82 of 124
Exhibit Index is on page 5
<PAGE>
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank
wire, telex, facsimile transmission or similar writing) and shall be given
to such party: (x) in the case of any Borrower or the Agent, at its
address, facsimile number or telex number set forth on the signature pages
hereof (or, in the case of an Eligible Subsidiary, its Election to
Participate), (y) in the case of any Bank, at its address, facsimile number
or telex number set forth in its Administrative Questionnaire or (z) in the
case of any party, such other address, facsimile number or telex number as
such party may hereafter specify for the purpose by notice to the Agent and
the Company. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to the
telex number specified in this Section and the appropriate answerback is
received, (ii) if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of receipt is
received, (iii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as
aforesaid or (iv) if given by any other means, when delivered at the
address specified in this Section; provided that notices under Article II
or Article VIII shall not be effective until received.
SECTION 11.02. No Waivers. No failure or delay by the Agent or
any Bank in exercising any right, power or privilege hereunder or under any
Note shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 11.03. Expenses; Indemnification. (a) The Company shall
pay (i) all out-of-pocket expenses of the Agent, including reasonable fees
and disbursements of special counsel for the Agent, in connection with the
preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default
hereunder and (ii) if an Event of Default occurs, all out-of-pocket
expenses incurred by the Agent and each Bank, including fees and
disbursements of counsel (which counsel may be an employee of such Bank),
in connection with such Event of
Page 83 of 124
Exhibit Index is on page 5
<PAGE>
Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agent and each Bank,
their respective affiliates and the respective directors, officers, agents
and employees of the foregoing (each, an "indemnitee") and hold each
indemnitee harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel (which counsel may be an
employee of such indemnitee), which may be incurred by such indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such indemnitee shall be designated a party thereto)
brought or threatened relating to or arising out of this Agreement or any
actual or proposed use of proceeds of Loans hereunder; provided that no
indemnitee shall have the right to be indemnified hereunder for its own
gross negligence or willful misconduct or breach of its obligations under
this Agreement as determined by a court of competent jurisdiction.
SECTION 11.04. Sharing of Set-Offs. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest due with respect to any Note held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Note held by such other
Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes held by the other Banks, and such
other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the
Banks shall be shared by the Banks pro rata; provided that nothing in this
Section shall impair the right of any Bank to exercise any right of set-off
or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of a Borrower other than its
indebtedness hereunder. Each Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation
in a Note, whether or not acquired pursuant to the foregoing arrangements,
may exercise rights of set-off or counterclaim and other rights with
respect to such participation as fully as if such holder of a participation
were a direct creditor of such Borrower in the amount of such
participation.
SECTION 11.05. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Company and the
Required Banks (and, if the rights or duties of the Agent are affected
thereby, by the Agent); provided that no
Page 84 of 124
Exhibit Index is on page 5
<PAGE>
such amendment or waiver shall, unless signed by all the Banks, (i)
increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any
additional obligation, (ii) reduce the principal of or rate of interest on
any Loan or any fees hereunder, (iii) postpone the date fixed for any
payment of principal of or interest on any Loan or any fees hereunder or
for any scheduled reduction or termination of any Commitment, or (iv)
change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Banks, which shall be
required for the Banks or any of them to take any action under this Section
or any other provision of this Agreement or (v) modify any provision of
Article X in any material respect; provided further that no such amendment,
waiver or modification shall, unless signed by an Eligible Subsidiary, (w)
subject such Eligible Subsidiary to any additional obligation, (x) increase
the principal of or rate of interest on any outstanding Loan of such
Eligible Subsidiary, (y) change the stated maturity of any outstanding Loan
of such Eligible Subsidiary or (z) change this proviso.
SECTION 11.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that no Borrower
may assign or otherwise transfer any of its rights under this Agreement
without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its
Commitment or any or all of its Loans. In the event of any such grant by a
Bank of a participating interest to a Participant, whether or not upon
notice to the Borrowers and the Agent, such Bank shall remain responsible
for the performance of its obligations hereunder, and the Borrowers and the
Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a participating
interest shall provide that such Bank shall retain the sole right and
responsibility to enforce the obligations of the Borrowers hereunder
including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause
(i), (ii) or (iii) of Section 11.05 without the consent of the Participant.
The Borrowers agree that each Participant shall, to the extent provided in
its participation agreement, be entitled to the benefits of Article VIII
with respect to its participating interest. An assignment or other
Page 85 of 124
Exhibit Index is on page 5
<PAGE>
transfer which is not permitted by subsection (c) or (d) below shall be
given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of
its rights and obligations under this Agreement and the Notes, and such
Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit D
hereto executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent of the Company and the Agent, such
consent not to be unreasonably withheld; provided that if an Assignee is an
affiliate of such transferor Bank or was a Bank immediately prior to such
assignment, no such consent shall be required; and provided further that
any assignment shall not be less than $5,000,000, or if less, shall
constitute an assignment of all of such Bank's rights and obligations under
this Agreement and the Notes. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Bank of an
amount equal to the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this Agreement and
shall have all the rights and obligations of a Bank with a Commitment as
set forth in such instrument of assumption, and the transferor Bank shall
be released from its obligations hereunder to a corresponding extent, and
no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the
transferor Bank, the Agent and the Borrowers shall make appropriate
arrangements so that, if required, new Notes are issued to the Assignee. In
connection with any such assignment, the transferor Bank shall pay to the
Agent an administrative fee for processing such assignment in the amount of
$2,500. If the Assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall, prior to the first date on
which interest or fees are payable hereunder for its account, deliver to
the Company and the Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with
Section 2.17.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Notes to a Federal Reserve Bank. No
such assignment shall release the transferor Bank from its obligations
hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03
than such Bank would have been entitled to receive with respect to the
rights transferred, unless such
Page 86 of 124
Exhibit Index is on page 5
<PAGE>
transfer is made with the Company's prior written consent or by reason of
the provisions of Section 8.02 or 8.03 requiring such Bank to designate a
different Applicable Lending Office under certain circumstances or at a
time when the circumstances giving rise to such greater payment did not
exist.
SECTION 11.07. Collateral. Each of the Banks represents to the
Agent and each of the other Banks that it in good faith is not relying upon
any "margin stock" (as defined in Regulation U) as collateral in the
extension or maintenance of the credit provided for in this Agreement.
SECTION 11.08. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be governed by and construed in accordance
with the laws of the State of New York. Each Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York State court sitting in
New York City for purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. Each
Borrower irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient
forum.
SECTION 11.09. Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject
matter hereof.
SECTION 11.10. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, EACH
OTHER BORROWER, THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Page 87 of 124
Exhibit Index is on page 5
<PAGE>
SECTION 11.11. Confidentiality. Each Bank agrees to exercise all
reasonable efforts to keep any information delivered or made available by a
Borrower to it which is clearly indicated to be confidential information,
confidential from anyone other than persons employed or retained by such
Bank who are or are expected to become engaged in evaluating, approving,
structuring or administering the Loans; provided that nothing herein shall
prevent any Bank from disclosing such information (i) to any other Bank,
(ii) to its affiliates and its and their officers, directors, employees,
agents, attorneys and accountants who have a need to know such information
in accordance with customary banking practices and who receive such
information having been made aware of the restrictions set forth in this
Section, (iii) upon the order of any court or administrative agency, (iv)
upon the request or demand of any regulatory agency or authority having
jurisdiction over such Bank, (v) which has been publicly disclosed, (vi) to
the extent reasonably required in connection with any litigation to which
the Agent, any Bank, or their respective affiliates may be a party, (vii)
to the extent reasonably required in connection with the exercise of any
remedy hereunder, (viii) to such Bank's legal counsel and independent
auditors, and (ix) to any actual or proposed participant or assignee of all
or part of its rights hereunder which has agreed in writing to be bound by
the provisions of this Section 9.11.
Page 88 of 124
Exhibit Index is on page 5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day
and year first above written.
WITCO CORPORATION
By
--------------------------
Title: Vice President and
Treasurer
One American Lane
Greenwich, Connecticut 06831-2559
Attention: Corporate Treasurer
Facsimile number: (203) 552-2868
Page 89 of 124
Exhibit Index is on page 5
<PAGE>
$330,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
----------------------------
Title:
Page 90 of 124
Exhibit Index is on page 5
<PAGE>
$45,000,000 THE CHASE MANHATTAN BANK, N.A.
By
----------------------------
Title:
Page 91 of 124
Exhibit Index is on page 5
<PAGE>
$37,500,000 ABN AMRO BANK N.V., NEW YORK BRANCH
By
----------------------------
Title:
Page 92 of 124
Exhibit Index is on page 5
<PAGE>
$37,500,000 BANK OF AMERICA ILLINOIS
By
----------------------------
Title:
Page 93 of 124
Exhibit Index is on page 5
<PAGE>
$37,500,000 CITIBANK, N.A.
By
----------------------------
Title:
Page 94 of 124
Exhibit Index is on page 5
<PAGE>
$37,500,000 COMMERZBANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCH
By
----------------------------
Title:
Page 95 of 124
Exhibit Index is on page 5
<PAGE>
$37,500,000 DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCH
By
----------------------------
Title:
Page 96 of 124
Exhibit Index is on page 5
<PAGE>
$37,500,000 MELLON BANK, N.A.
By
----------------------------
Title:
Page 97 of 124
Exhibit Index is on page 5
<PAGE>
$37,500,000 SHAWMUT BANK, N.A.
By
----------------------------
Title:
Page 98 of 124
Exhibit Index is on page 5
<PAGE>
$37,500,000 THE SUMITOMO BANK, LIMITED, NEW YORK
BRANCH
By
----------------------------
Title:
Page 99 of 124
Exhibit Index is on page 5
<PAGE>
=================
Total Commitments
$675,000,000
=================
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By ----------------------------
Title:
60 Wall Street
New York, New York 10260-0060
Attention: Credit Administrator
Telex number: 177615
Facsimile number: (212) 648-5018
Page 100 of 124
Exhibit Index is on page 5
<PAGE>
EXHIBIT A
TO THE CREDIT AGREEMENT
NOTE
New York, New York
, 19
For value received, [name of relevant Borrower], a [relevant
Borrower's jurisdiction of incorporation] corporation (the "Borrower"),
promises to pay to the order of
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Bank to the Borrower pursuant to
the Credit Agreement referred to below on the last day of the Interest
Period relating to such Loan. The Borrower promises to pay interest on the
unpaid principal amount of each such Loan on the dates and at the rate or
rates provided for in the Credit Agreement. All such payments of principal
and interest shall be made in lawful money of the United States in Federal
or other immediately available funds at the office of Morgan Guaranty Trust
Company of New York, 60 Wall Street, New York, New York.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by
the Bank and, if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding may be endorsed
by the Bank on the schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof; provided that the failure of
the Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
dated as of October 18, 1995 among Witco Corporation, the Eligible
Subsidiaries referred to therein, the banks listed on the signature pages
thereof and Morgan Guaranty Trust Company of New York, as Agent (as the
same may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with
Page 101 of 124
Exhibit Index is on page 5
<PAGE>
the same meanings. Reference is made to the Credit Agreement for provisions
for the prepayment hereof and the acceleration of the maturity hereof.
[The payment in full of the principal and interest on this note
has, pursuant to the provisions of the Credit Agreement, been
unconditionally guaranteed by Witco Corporation.]
[NAME OF RELEVANT BORROWER]
By
--------------------------
Name:
Title:
Page 102 of 124
Exhibit Index is on page 5
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
- ------------------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
Page 103 of 124
Exhibit Index is on page 5
<PAGE>
EXHIBIT B-1
TO THE CREDIT AGREEMENT
OPINION OF CRAVATH, SWAINE & MOORE,
SPECIAL COUNSEL FOR THE COMPANY
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have acted as counsel for Witco Corporation (the "Company") in
connection with the Credit Agreement (the "Credit Agreement") dated as of
October 18, 1995 among the Company, the Eligible Subsidiaries referred to
therein, the banks listed on the signature pages thereof and Morgan
Guaranty Trust Company of New York, as Agent. Terms defined in the Credit
Agreement are used herein as therein defined. This opinion is being
rendered to you at the request of our client pursuant to Section 3.01(c) of
the Credit Agreement.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and officers of the Company and other
instruments and have conducted such investigations of law as we have deemed
necessary or advisable for purposes of this opinion. We have assumed, with
your permission, that the signatures on all the documents that we have
examined are genuine.
Upon the basis of the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware, and has all corporate
powers required to carry on its business as now conducted.
Page 104 of 124
Exhibit Index is on page 5
<PAGE>
2. The execution, delivery and performance by the Company of the
Credit Agreement and its Notes are within the corporate powers of the
Company, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any governmental
body, agency or official (other than the filing of the Credit Agreement as
an exhibit to reports filed with the Securities and Exchange Commission)
and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or
by-laws of the Company.
3. The Credit Agreement constitutes a valid and binding agreement
of each Borrower and each Note constitutes a valid and binding obligation
of the relevant Borrower.
The foregoing opinion is subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the
federal laws of the United States of America and the General Corporation
Law of the State of Delaware. In giving the foregoing opinion, we express
no opinion as to the effect (if any) of any law of any jurisdiction (except
the State of New York) in which any Bank is located which limits the rate
of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other
purpose or relied upon by or furnished to any other person without our
prior written consent.
Very truly yours,
Page 105 of 124
Exhibit Index is on page 5
<PAGE>
EXHIBIT B-2
TO THE CREDIT AGREEMENT
OPINION OF DUSTAN E. McCOY, ESQ.,
GENERAL COUNSEL OF THE COMPANY
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am General Counsel of Witco Corporation (the "Company"). This
opinion is being rendered to you pursuant to Section 3.01(c) of the Credit
Agreement dated as of October 18, 1995 (the "Credit Agreement") among the
Company, the Eligible Subsidiaries referred to therein, the Banks listed on
the signature pages thereof and Morgan Guaranty Trust Company of New York,
as Agent. Terms defined in the Credit Agreement are used herein as therein
defined.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records,
certificates of public officials and officers of the Company and its
Subsidiaries and other instruments and have conducted such other
investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion. I have assumed, with your permission, that the
signatures (other than those of officers of the Company) on all the
documents that I have examined are genuine.
Upon the basis of the foregoing, I am of the opinion that:
1. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes do not contravene, or constitute a default
under, any agreement or instrument evidencing Debt of the Company or, to
the best of my knowledge, any other agreement, judgment, injunction,
Page 106 of 124
Exhibit Index is on page 5
<PAGE>
order, decree or other instrument binding upon the Company or, to the best
of my knowledge, result in the creation or imposition of any Lien on any
asset of the Company or any of its Subsidiaries.
2. The Company is a corporation duly incorporated under the laws
of the State of Delaware. Each of the Company's Subsidiaries which is a
"significant subsidiary" within the meaning of Regulation S-X of the
Securities and Exchange Commission is a corporation validly existing and in
good standing under the laws of its jurisdiction of incorporation, and has
all corporate powers required to carry on its business as now conducted.
3. Except as disclosed in the Filed SEC Documents, there is no
action, suit or proceeding pending against, or to the best of my knowledge
threatened against or affecting, the Company or any of its Subsidiaries
before any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business, consolidated
financial position or consolidated results of operations of the Company and
its Consolidated Subsidiaries, considered as a whole, or which in any
manner draws into question the validity of the Credit Agreement or the
Notes. For the purposes hereof, I have not regarded an action, suit or
proceeding to be "threatened" against the Company or any of its
Subsidiaries unless the potential litigant has manifested to the management
of the Company in writing an intention to institute the same.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other
purpose or relied upon by or furnished to any other person without my prior
written consent.
Very truly yours,
Page 107 of 124
Exhibit Index is on page 5
<PAGE>
EXHIBIT C
TO THE CREDIT AGREEMENT
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
[Effective Date]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the Credit Agreement
(the "Credit Agreement") dated as of October 18, 1995 among Witco
Corporation, a Delaware corporation (the "Company"), the Eligible
Subsidiaries referred to therein, the banks listed on the signature pages
thereof (the "Banks") and Morgan Guaranty Trust Company of New York, as
Agent (the "Agent"), and have acted as special counsel for the Agent for
the purpose of rendering this opinion pursuant to Section 3.01(d) of the
Credit Agreement. Terms defined in the Credit Agreement are used herein as
therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted
such other investigations of fact and law as we have deemed necessary or
advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Company of the
Credit Agreement and its Notes are within the corporate powers of the
Company and have been duly authorized by all necessary corporate action.
Page 108 of 124
Exhibit Index is on page 5
<PAGE>
2. The Credit Agreement constitutes a valid and binding agreement
of the Company and its Notes constitute valid and binding obligations of
the Company.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York and the
General Corporation Law of the State of Delaware. In giving the foregoing
opinion, we express no opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Bank is located
which limits the rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other
purpose or relied upon by or furnished to any other person without our
prior written consent.
Very truly yours,
Page 109 of 124
Exhibit Index is on page 5
<PAGE>
EXHIBIT D
TO THE CREDIT AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among
[ASSIGNOR] (the "Assignor"), [ASSIGNEE] (the "Assignee"),
WITCO CORPORATION (the "Company") and MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement
(the "Agreement") relates to the Credit Agreement dated as
of October 18, 1995 among the Company, the Eligible
Subsidiaries referred to therein, the Assignor and the other
Banks party thereto, as Banks, and the Agent (as the same
may be amended or modified from time to time, the "Credit
Agreement");
WHEREAS, as provided under the Credit Agreement,
the Assignor has a Commitment to make Loans in an aggregate
principal amount at any time outstanding not to exceed
$----------;
WHEREAS, Committed Loans made by the Assignor
under the Credit Agreement in the aggregate principal amount
of $__________ are outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the
Assignee all of the rights of the Assignor under the Credit
Agreement in respect of a portion of its Commitment
thereunder in an amount equal to $__________ (the "Assigned
Amount"), together with a corresponding portion of its
outstanding Committed Loans, and the Assignee proposes to
accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing
and the mutual agreements contained herein, the parties
hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not
otherwise defined herein shall have the respective meanings
set forth in the Credit Agreement.
Page 110 of 124
Exhibit Index is on page 5
<PAGE>
SECTION 2. Assignment. The Assignor hereby assigns
and sells to the Assignee all of the rights of the Assignor
under the Credit Agreement to the extent of the Assigned
Amount, and the Assignee hereby accepts such assignment from
the Assignor and assumes all of the obligations of the
Assignor under the Credit Agreement to the extent of the
Assigned Amount, including the purchase from the Assignor of
the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date
hereof. Upon the execution and delivery hereof by the
Assignor, the Assignee, [the Company and the Agent] and the
payment of the amounts specified in Section 3 required to be
paid on the date hereof (i) the Assignee shall, as of the
date hereof, succeed to the rights and be obligated to
perform the obligations of a Bank under the Credit Agreement
with a Commitment in an amount equal to the Assigned Amount,
and (ii) the Commitment of the Assignor shall, as of the
date hereof, be reduced by a like amount and the Assignor
released from its obligations under the Credit Agreement to
the extent such obligations have been assumed by the
Assignee. The assignment provided for herein shall be
without recourse to the Assignor.
SECTION 3. Payments. As consideration for the
assignment and sale contemplated in Section 2 hereof, the
Assignee shall pay to the Assignor on the date hereof in
Federal funds the amount heretofore agreed between them.* It
is understood that facility fees accrued to the date hereof
are for the account of the Assignor and such fees accruing
from and including the date hereof are for the account of
the Assignee. Each of the Assignor and the Assignee hereby
agrees that if it receives any amount under the Credit
Agreement which is for the account of the other party
hereto, it shall receive the same for the account of such
other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
[SECTION 4. Consent of the Company and the Agent.
This Agreement is conditioned upon the consent of the
Company and the Agent pursuant to Section 11.06(c) of the
Credit Agreement. The execution of this Agreement by the
Company and the Agent is evidence of this consent. Pursuant
to Section 11.06(c) the Borrower agrees to execute and
- --------
* Amount should combine principal together with
accrued interest and breakage compensation, if any, to be
paid by the Assignee, net of any portion of any upfront fee
to be paid by the Assignor to the Assignee.
Page 111 of 124
Exhibit Index is on page 5
<PAGE>
deliver a Note payable to the order of the Assignee to
evidence the assignment and assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor
makes no representation or warranty in connection with, and
shall have no responsibility with respect to, the solvency,
financial condition, or statements of any Borrower, or the
validity and enforceability of the obligations of any
Borrower in respect of the Credit Agreement or any Note. The
Assignee acknowledges that it has, independently and without
reliance on the Assignor, and based on such documents and
information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement
and will continue to be responsible for making its own
independent appraisal of the business, affairs and financial
condition of the Borrowers.
SECTION 6. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York.
SECTION 7. Counterparts. This Agreement may be
signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By_________________________
Name:
Title:
[ASSIGNEE]
By__________________________
Name:
Title:
Page 112 of 124
Exhibit Index is on page 5
<PAGE>
[WITCO CORPORATION
By__________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By__________________________
Name:
Title:]
Page 113 of 124
Exhibit Index is on page 5
<PAGE>
EXHIBIT E
TO THE CREDIT AGREEMENT
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: [Name of Relevant Borrower]
Re: Credit Agreement (the "Credit Agreement") dated as
of October 18, 1995 among Witco Corporation, the
Eligible Subsidiaries referred to therein, the
Banks listed on the signature pages thereof and
the Agent
We hereby give notice pursuant to Section 2.03 of
the Credit Agreement that we request Money Market Quotes for
the following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount* Interest Period**
$
Such Money Market Quotes should offer a Money
Market [Margin] [Absolute Rate]. [The applicable base rate
is the London Interbank Offered Rate.]
- --------
* Amount must be $5,000,000 or a larger multiple
of $1,000,000.
** Not less than one month (LIBOR Auction) or not
less than 7 days (Absolute Rate Auction), subject to the
provisions of the definition of Interest Period.
Page 114 of 124
Exhibit Index is on page 5
<PAGE>
Terms used herein have the meanings assigned to
them in the Credit Agreement.
[Name of Relevant Borrower]
By________________________
Name:
Title:
Page 115 of 124
Exhibit Index is on page 5
<PAGE>
EXHIBIT F
TO THE CREDIT AGREEMENT
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to [Name of
Borrower] (the "Borrower")
Pursuant to Section 2.03 of the Credit Agreement
dated as of October 18, 1995 among Witco Corporation, the
Eligible Subsidiaries referred to therein, the Banks parties
thereto and the undersigned, as Agent, we are pleased on
behalf of the Borrower to invite you to submit Money Market
Quotes to the Borrower for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money
Market [Margin] [Absolute Rate]. [The applicable base rate
is the London Interbank Offered Rate.]
Please respond to this invitation by no later than
[2:00 P.M.] [9:30 A.M.] (New York City time) on [date].
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By______________________
Authorized Officer
Page 116 of 124
Exhibit Index is on page 5
<PAGE>
EXHIBIT G
TO THE CREDIT AGREEMENT
Form of Money Market Quote
To: Morgan Guaranty Trust Company of New York, as Agent
Re: Money Market Quote to [Name of Borrower] (the
"Borrower")
In response to your invitation on behalf of the
Borrower dated _____________, 19__, we hereby make the
following Money Market Quote on the following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
-----------------------------
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
$
$
[Provided, that the aggregate principal amount of Money
Market Loans for which the above offers may be accepted
shall not exceed $____________.]**
- ----------
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not
exceed principal amount requested. Specify aggregate
limitation if the sum of the individual offers exceeds the
amount the Bank is willing to lend. Bids must be made for
$5,000,000 or a larger multiple of $1,000,000.
Page 117 of 124
Exhibit Index is on page 5
<PAGE>
(notes continued on following page)
We understand and agree that the offer(s) set
forth above, subject to the satisfaction of the
applicable conditions set forth in the Credit Agreement
dated as of October 18, 1995 among Witco Corporation,
the Eligible Subsidiaries referred to therein, the
Banks listed on the signature pages thereof and
yourselves, as Agent, irrevocably obligates us to make
the Money Market Loan(s) for which any offer(s) are
accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
- ----------
*** Not less than one month or not less than 7 days, as
specified in the related Invitation. No more than five bids
are permitted for each Interest Period.
**** Margin over or under the London Interbank Offered Rate
determined for the applicable Interest Period. Specify
percentage (to the nearest 1/10,000 of 1%) and specify
whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest
1/10,000th of 1%).
Page 118 of 124
Exhibit Index is on page 5
<PAGE>
EXHIBIT H
TO THE CREDIT AGREEMENT
FORM OF ELECTION TO PARTICIPATE
___________, 19
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent for
the Banks named in the Credit
Agreement dated as of October 18, 1995
among Witco Corporation,
the Eligible Subsidiaries referred to therein,
such Banks and such Agent (the
"Credit Agreement")
Dear Sirs:
Reference is made to the Credit Agreement
described above. Terms not defined herein which are defined
in the Credit Agreement shall have for the purposes hereof
the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a
[jurisdiction of incorporation] corporation, hereby elects
to be an Eligible Subsidiary for purposes of the Credit
Agreement, effective from the date hereof until an Election
to Terminate shall have been delivered on behalf of the
undersigned in accordance with the Credit Agreement. The
undersigned confirms that the representations and warranties
set forth in Article IX of the Credit Agreement are true and
correct as to the undersigned as of the date hereof, and the
undersigned hereby agrees to perform all the obligations of
an Eligible Subsidiary under, and to be bound in all
respects by the terms of, the Credit Agreement as if the
undersigned were a signatory party thereto.
The address to which all notices to the
undersigned under the Credit Agreement should be directed
is:
Page 119 of 124
Exhibit Index is on page 5
<PAGE>
This instrument shall be construed in accordance with and
governed by the laws of the State of New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By____________________________
Title:
The undersigned hereby confirms that [name of
Eligible Subsidiary] is an Eligible Subsidiary for purposes
of the Credit Agreement described above.
Witco Corporation
By____________________________
Name:
Title:
Receipt of the above Election to Participate is
hereby acknowledged on and as of the date set forth above.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By____________________________
Name:
Title:
Page 120 of 124
Exhibit Index is on page 5
<PAGE>
EXHIBIT I
TO THE CREDIT AGREEMENT
FORM OF ELECTION TO TERMINATE
___________, 19
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent for
the Banks named in the Credit
Agreement dated as of October 18, 1995
among Witco Corporation,
the Eligible Subsidiaries referred to therein,
such Banks and such Agent (the
"Credit Agreement")
Dear Sirs:
Reference is made to the Credit Agreement
described above. Terms not defined herein which are defined
in the Credit Agreement shall have for the purposes hereof
the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a
[jurisdiction of incorporation] corporation, hereby elects
to terminate its status as an Eligible Subsidiary for
purposes of the Credit Agreement, effective as of the date
hereof. The undersigned hereby represents and warrants that
all principal and interest on all Notes of the undersigned
and all other amounts payable by the undersigned pursuant to
the Credit Agreement have been paid in full on or prior to
the date hereof. Notwithstanding the foregoing, this
Election to Terminate shall not affect any obligation of the
undersigned under the Credit Agreement or under any Note
heretofore incurred.
Page 121 of 124
Exhibit Index is on page 5
<PAGE>
This instrument shall be construed in accordance
with and governed by the laws of the State of New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By_______________________
Title:
The undersigned hereby confirms that the status of
[name of Eligible Subsidiary] as an Eligible Subsidiary for
purposes of the Credit Agreement described above is
terminated as of the date hereof.
Witco Corporation
By_________________________
Name:
Title:
Receipt of the above Election to Terminate is
hereby acknowledged on and as of the date set forth above.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By__________________________
Name:
Title:
Page 122 of 124
Exhibit Index is on page 5
<PAGE>
EXHIBIT J
TO THE CREDIT AGREEMENT
OPINION OF
COUNSEL FOR THE BORROWER
(BORROWINGS BY ELIGIBLE SUBSIDIARIES)
[Dated as provided
in Section 3.03 of
the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am counsel to [name of Eligible Subsidiary], a
jurisdiction of incorporation] corporation (the "Borrower")
and give this opinion pursuant to Section 3.03(b) of the
Credit Agreement (the "Credit Agreement") dated as of
October 18, 1995 among Witco Corporation (the "Company"),
the Eligible Subsidiaries referred to therein, the banks
listed on the signature pages thereof and Morgan Guaranty
Trust Company of New York, as Agent. Terms defined in the
Credit Agreement are used herein as therein defined.
I have examined originals or copies, certified or
otherwise identified to my satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as I have deemed necessary or
advisable for purposes of this opinion.
Upon the basis of the foregoing, I am of the
opinion that:
1. The Borrower is a corporation duly
incorporated, validly existing and in good standing under
the laws of [jurisdiction of incorporation], and is a
Wholly-Owned Consolidated Subsidiary.
Page 123 of 124
Exhibit Index is on page 5
<PAGE>
2. The execution and delivery by the Borrower of
its Election to Participate and its Notes and the
performance by the Borrower of the Credit Agreement and its
Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene,
or constitute a default under, any provision of applicable
law or regulation or of the certificate of incorporation or
by-laws of the Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding upon
the Borrower or the Company or any of its Subsidiaries or
result in the creation or imposition of any Lien on any
asset of the Company or any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and
binding agreement of the Borrower and its Notes constitute
valid and binding obligations of the Borrower.
4. Except as disclosed in the Borrower's Election
to Participate, there is no income, stamp or other tax of
[jurisdiction of incorporation and, if different, principal
place of business], or any taxing authority thereof or
therein, imposed by or in the nature of withholding or
otherwise, which is imposed on any payment to be made by the
Borrower pursuant to the Credit Agreement or its Notes, or
is imposed on or by virtue of the execution, delivery or
enforcement of its Election to Participate or of its Notes.
Very truly yours,
Page 124 of 124
Exhibit Index is on page 5
