<PAGE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______________ to _______________
Commission File Number 1-4654
WITCO CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-1870000
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE AMERICAN LANE, GREENWICH, CONNECTICUT 06831-2559
(Address of principal executive offices) (Zip Code)
(203) 552-2000
(Registrant's telephone number,
including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
----- -----
The number of shares of common stock outstanding is as follows:
Class Outstanding at April 30, 1997
Common Stock - $5 par value 57,136,183
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WITCO CORPORATION
FORM 10-Q
For the quarterly period ended March 31, 1997
<TABLE>
<CAPTION>
CONTENTS PAGE
-------- ----
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed consolidated balance sheets at March 31, 1997 (unaudited)
and December 31, 1996 2
Condensed consolidated statements of operations (unaudited) for the three
months ended March 31, 1997 and 1996 3
Condensed consolidated statements of cash flows (unaudited) for the
three months ended March 31, 1997 and 1996 4
Notes to condensed consolidated financial statements (unaudited) 5
Independent accountants' report on review of interim
financial information 8
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 12
Item 4. Submission of Matters to a Vote of Security Holders 13
Item 6. Exhibits and Reports on Form 8-K 14
Signatures 15
Index to Exhibits 16
</TABLE>
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
WITCO CORPORATION AND SUBSIDIARY COMPANIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In Thousands Except Per Share Data)
<TABLE>
<CAPTION>
March 31 December 31,
1997 1996 (a)
------------- -------------
(Unaudited)
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 38,367 $ 59,201
Accounts and notes receivable-net 417,589 390,288
Inventories
Raw materials and supplies $ 90,837 $ 99,112
Finished goods 183,250 274,087 185,388 284,500
------------ ------------
Deferred income taxes 86,869 92,490
Prepaid and other current assets 20,369 26,947
------------- -------------
TOTAL CURRENT ASSETS 837,281 853,426
------------- -------------
PROPERTY, PLANT, AND EQUIPMENT - less
accumulated depreciation of $780,745
and $761,926 700,560 735,392
GOODWILL AND OTHER INTANGIBLE ASSETS - less
accumulated amortization of $139,676 and
$133,625 642,998 653,733
DEFERRED INCOME TAXES - 16,438
DEFERRED COSTS AND OTHER ASSETS 90,641 72,976
NET ASSETS OF DISCONTINUED OPERATIONS 46,755 59,740
============= =============
TOTAL ASSETS $2,318,235 $2,391,705
============= =============
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Notes and loans payable $ 73,504 $ 94,929
Accounts payable and other current 481,431 515,344
liabilities
------------- -------------
TOTAL CURRENT LIABILITIES 554,935 610,273
------------- -------------
LONG-TERM DEBT 693,742 700,820
DEFERRED INCOME TAXES 4,460 -
DEFERRED CREDITS AND OTHER LIABILITIES 443,510 452,747
SHAREHOLDERS' EQUITY
$2.65 Cumulative Convertible Preferred
Stock, par value $1 per share
Authorized - 14 shares
Issued and outstanding - 6 shares 6 6
Common Stock, par value $5 per share
Authorized - 100,000 shares
Issued and outstanding - 57,019 shares
and 56,763 shares 285,097 283,818
Capital in excess of par value 144,271 138,453
Equity adjustments:
Foreign currency translation (5,522) 11,989
Pensions and other (6,276) (6,423)
Retained earnings 204,012 200,022
------------- -------------
TOTAL SHAREHOLDERS' EQUITY 621,588 627,865
------------- -------------
TOTAL LIABILITIES AND SHAREHOLDERS'
EQUITY $2,318,235 $2,391,705
============= =============
</TABLE>
(a) The balance sheet at December 31, 1996 has been derived from the audited
financial statements at that date.
See accompanying notes.
2
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WITCO CORPORATION AND SUBSIDIARY COMPANIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-------------------------------
1997 1996
------------- -------------
(In thousands except per
share data)
<S> <C> <C>
Net Sales $ 568,490 $ 589,425
Cost of Goods Sold 432,165 448,345
------------- -------------
Gross Profit 136,325 141,080
Operating Expenses
Selling expense 24,518 27,119
General and administrative expenses 38,238 35,427
Research and development 17,386 17,989
Other expenses (income) - net 4,150 1,281
Restructuring charge 3,538 -
------------- -------------
Total Operating Expenses 87,830 81,816
------------- -------------
Operating Income from Continuing Operations 48,495 59,264
Other Expense (Income) - Net
Interest expense 13,924 17,669
Interest income (670) (2,468)
Other expense - net 864 973
------------- -------------
Income from Continuing Operations before
Income Taxes 34,377 43,090
Income Taxes 14,438 17,509
------------- -------------
Income from Continuing Operations 19,939 25,581
Income from Discontinued Operations -
Net of Income Taxes of $ - and $283 - 340
------------- -------------
Net Income $ 19,939 $ 25,921
============= =============
PER COMMON SHARE: PRIMARY
Income from continuing operations $ .35 $ .45
Income from discontinued
operations - net of income taxes - .01
------------- -------------
Net Income $ .35 $ .46
============= =============
PER COMMON SHARE: FULLY DILUTED
Income from continuing operations $ .35 $ .44
Income from discontinued
operations - net of income taxes - .01
------------- -------------
Net Income $ .35 $ .45
============= =============
Weighted average number of common shares
and equivalents - primary 57,064 56,895
============= =============
Dividends declared $ .28 $ .28
============= =============
</TABLE>
See accompanying notes.
3
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WITCO CORPORATION AND SUBSIDIARY COMPANIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
---------------------------
1997 1996
----------- ----------
(In Thousands)
<S> <C> <C>
NET CASH PROVIDED BY OPERATING ACTIVITIES $ 19,100 $ 20,440
-------- ---------
INVESTING ACTIVITIES
Expenditures for property, plant, and equipment (25,433) (43,334)
Proceeds from dispositions 17,761 13,650
Other investing activities -- (1,171)
-------- ---------
Net Cash Used in Investing Activities (7,672) (30,855)
-------- ---------
FINANCING ACTIVITIES
Proceeds from borrowings 40,555 303,257
Payments on borrowings (61,154) (302,953)
Dividends (15,948) (15,806)
Proceeds from exercise of stock options 7,090 3,052
Other financing activities 153 --
-------- ---------
Net Cash Used in Financing Activities (29,304) (12,450)
-------- ---------
Effects of Exchange Rate Changes on Cash and Cash Equivalents (2,958) (1,075)
-------- ---------
DECREASE IN CASH AND CASH EQUIVALENTS (20,834) (23,940)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 59,201 143,994
-------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 38,367 $ 120,054
======== =========
</TABLE>
See accompanying notes.
4
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WITCO CORPORATION AND SUBSIDIARY COMPANIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
NOTE A - Basis of Preparation
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Rule 10-01 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments considered
necessary for a fair presentation have been included. All such adjustments are
of a normal recurring nature. Operating results for the three month period ended
March 31, 1997 are not necessarily indicative of the results that may be
expected for the year ending December 31, 1997. For further information, refer
to the consolidated financial statements and footnotes thereto included in the
company's annual report on Form 10-K for the year ended December 31, 1996.
The condensed consolidated financial statements at March 31, 1997, and for the
three month periods ended March 31, 1997 and 1996, have been reviewed in
accordance with standards established by the American Institute of Certified
Public Accountants, by independent accountants Ernst & Young LLP, and their
report is included herein.
NOTE B - Discontinued Operations
On September 11, 1995, the company announced its intention to divest its
Lubricants Group. These operations are reflected as discontinued operations for
all periods presented in the company's statements of operations and as net
assets of discontinued operations in the company's balance sheets. Total
revenues for the three month periods ended March 31, 1997 and 1996 were
$31,409,000 and $87,179,000, respectively.
The components of net assets of discontinued operations at March 31, 1997 are as
follows:
<TABLE>
<CAPTION>
March 31,
In Thousands 1997
- ------------ ---------------
<S> <C>
Accounts and notes receivable - net $10,586
Inventories - net of LIFO reserve of $11,248 5,497
Property, plant, and equipment - net 30,370
Other assets and liabilities - net 302
===============
Net assets of discontinued operations $46,755
===============
</TABLE>
Additional liabilities of the Lubricants Group as of March 31, 1997 are included
in "Accounts payable and other current liabilities" ($57,401,000) and "Deferred
Credits and Other Liabilities" ($47,200,000).
On February 29, 1997, the company sold its refinery in Bradford, Pennsylvania to
American Refining Group, Inc. for approximately $17,000,000 subject to certain
post-closing adjustments. On April 29, 1997, the company signed an agreement
with Glencoe Growth Closely Held Business Fund, L.P. for the sale of its Golden
Bear division, the remaining business in the Lubricants Group. It is anticipated
that no additional losses will be incurred as a result of these transactions.
NOTE C - Other Matters
On March 31, 1997, the company entered into a new five year revolving credit
agreement totaling $500,000,000 with various banks. Borrowings on this facility
are at various rate options to be determined at the time of borrowing. The
facility contains covenants which are customary in agreements of this nature.
The company is required to pay a facility fee of .075 percent per year on the
total commitment. As of March 31, 1997, $48,000,000 was outstanding on the
company's previously existing credit facility of $375,000,000. On April 2, 1997,
this previously existing credit facility was terminated with outstanding
borrowings refinanced under the new $500,000,000 credit facility.
5
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NOTE C - Other Matters (continued)
In February 1997, the Financial Accounting Standards Board issued Statement No.
128, Earnings per Share, which is required to be adopted on December 31, 1997.
At that time, the company will be required to change the method currently used
to compute earnings per share, and to restate all prior periods. Under the new
requirements for calculating basic earnings per share, the dilutive effect of
stock options will be excluded. Statement No. 128 would not materially impact
primary or fully diluted earnings per share for the periods ended March 31, 1997
and 1996.
Certain prior year amounts have been reclassified to conform with the current
year presentation.
NOTE D - Effective Tax Rate
The effective tax rate of 42.0% for the three month period ended March 31, 1997,
as compared to the federal statutory tax rate of 35%, is primarily the result of
state income taxes, goodwill amortization related to the acquisition of OSi
Specialties, Inc. which is not deductible for income tax purposes and the effect
of a change in the mix between domestic and foreign earnings. The effective tax
rate of 40.6% for the three month period ended March 31, 1996, as compared to
the federal statutory tax rate of 35%, is primarily the result of state income
taxes and goodwill amortization related to the acquisition of OSi Specialties,
Inc.
NOTE E - Litigation and Environmental
The company is a potentially responsible party ("PRP") or a defendant in a
number of governmental (federal, state and local) and private actions associated
with the release, or suspected release, of contaminants into the environment. As
a PRP, the company may be liable for costs associated with the investigation and
remediation of environmental contamination, as well as various penalties and
damages to persons, property and natural resources. As of March 31, 1997, the
company was a PRP, or a defendant, in connection with 77 sites at which it is
likely to incur environmental response costs as a result of actions brought
against the company pursuant to the federal Comprehensive Environmental Response
Compensation and Liability Act ("CERCLA"), the federal Resource Conservation and
Recovery Act ("RCRA") or similar state or local laws. With 28 exceptions, all of
these sites involve one or more other PRPs and in most cases there are numerous
other PRPs in addition to the company. CERCLA, RCRA and the state counterparts
to these federal laws authorize governments to investigate and remediate actual
or suspected damage to the environment caused by the release, or suspected
release, of hazardous substances into the environment, or to order the
responsible parties to investigate and/or remediate such environmental damage.
The company evaluates and reviews environmental reserves for future remediation
and other costs on a quarterly basis to determine appropriate reserve amounts.
Inherent in this process are considerable uncertainties which affect the
company's ability to estimate the ultimate costs of remediation efforts. Such
uncertainties include the nature and extent of contamination at each site,
evolving governmental standards regarding remediation requirements, changes in
environmental regulations, widely varying costs of alternative cleanup methods,
the number and financial condition of other potentially responsible parties at
multi-party sites, innovations in remediation and restoration technology and the
identification of additional environmental sites.
At March 31, 1997, the company's reserves for environmental remediation and
compliance amounted to $215,861,000, reflecting the company's estimate of the
costs to be incurred over an extended period of time in respect of those matters
which are reasonably estimable. Included in this amount was $61,982,000 of both
current and long-term environmental liabilities from the Lubricants Group and
$77,649,000 of both current and long-term environmental liabilities for plants
to be either sold or closed. At March 31, 1997, $149,215,000 of the reserves are
included in Deferred Credits and Others Liabilities on the Consolidated Balance
Sheets.
6
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<PAGE>
NOTE E - Litigation and Environmental (continued)
The company is a defendant in six similar actions arising out of the company's
involvement in the polybutylene resin manufacturing business in the 1970's. Five
of the cases are currently pending in California state courts and one is pending
in Texas state court: East Bay Municipal Utility District v. Mobil Oil
Corporation, et al., filed in November 1993, and pending in Superior Court for
the County of San Mateo, California; City of Santa Maria v. Shell Oil Company,
et al., filed in May 1994, and pending in Superior Court for the County of San
Luis Obispo, California; Nipomo Community Services District v. Shell Oil
Company, et al., filed in May 1995, and pending in Superior Court for the County
of Santa Barbara, California; Alameda County Water District v. Mobil Oil
Corporation, et al., filed in April 1996, and Marin Municipal Water District v.
Shell Oil Company, et al., filed in May 1996, both pending in Superior Court for
the County of San Mateo; and City of Austin v. Shell Oil Company, et al., filed
in June 1996, and pending in the District Court of Travis County, Texas. The
actions generally allege that the company and several other defendants
negligently misrepresented the performance of polybutylene pipe and fittings
installed in water distribution systems. Other allegations in the California and
Texas actions include breach of the California Unfair Practices Act and the
Texas Deceptive Practices Act, respectively; breach of warranty, fraud and
strict liability. It is possible that the company may be named as a defendant in
future actions arising out of its past involvement in the polybutylene resin
manufacturing business.
The company is not a party to any legal proceedings, including environmental
matters, which it believes will have a material adverse effect on its
consolidated financial position. However, the company's operating results could
be materially affected in future periods by the resolution of these
contingencies.
7
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<PAGE>
Independent Accountants' Review Report
The Board of Directors
Witco Corporation
We have reviewed the accompanying condensed consolidated balance sheet of Witco
Corporation and Subsidiary Companies as of March 31, 1997, and the related
condensed consolidated statements of operations for the three-month periods
ended March 31, 1997 and 1996, and the condensed consolidated statements of cash
flows for the three-month periods ended March 31, 1997 and 1996. These financial
statements are the responsibility of the Company's management.
We conducted our reviews in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data, and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted in
accordance with generally accepted auditing standards, which will be performed
for the full year with the objective of expressing an opinion regarding the
financial statements taken as a whole. Accordingly, we do not express such an
opinion.
Based on our reviews, we are not aware of any material modifications that should
be made to the accompanying condensed consolidated financial statements referred
to above for them to be in conformity with generally accepted accounting
principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of Witco Corporation and Subsidiary
Companies as of December 31, 1996, and the related consolidated statements of
operations, shareholders' equity, and cash flows for the year then ended (not
presented herein) and in our report dated January 31, 1997, except for Note 19,
as to which the date is March 4, 1997, we expressed an unqualified opinion on
those consolidated financial statements. In our opinion, the information set
forth in the accompanying condensed consolidated balance sheet as of December
31, 1996, is fairly stated, in all material respects, in relation to the
consolidated balance sheet from which it has been derived.
/s/ ERNST & YOUNG LLP
Stamford, Connecticut
May 12, 1997
8
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
LIQUIDITY AND FINANCIAL RESOURCES
Cash and cash equivalents decreased $20.8 million during the first three months
of 1997 primarily as a result of the company's decision to pay down debt.
During the fourth quarter of 1996, the company adopted a plan to restructure
operations. In connection with the plan and other initiatives, the company
recorded an after-tax charge of $310.6 million, of which approximately $130
million will be expended as cash. As of March 31, 1997 approximately $5.1
million has been spent against reserves relating to this restructuring plan and
other initiatives.
On March 31, 1997, the company entered into a new five year revolving credit
agreement with various banks in the amount of $500 million. The new facility
contains various covenants which are customary in agreements of this nature.
Borrowings on this facility are at various rate options to be determined at the
time of the borrowing. The company is required to pay a facility fee of .075
percent per year on the total commitment. The company plans to utilize the
facility periodically for its various operating requirements and planned capital
investment program. As of March 31, 1997, $48,000,000 was outstanding on the
company's previously existing credit facility of $375,000,000. On April 2, 1997,
this previously existing credit facility was terminated with outstanding
borrowings refinanced under the new $500,000,000 credit facility.
CAPITAL INVESTMENTS AND COMMITMENTS
Capital expenditures for the first three months of 1997 amounted to $25.4
million, as compared to $43.3 million during the same period of 1996. Capital
expenditures related to continuing operations for the three months ended March
31, l997 and 1996 were $25.2 million and $39.8 million, respectively. The
company expects capital expenditures during the remainder of the year will
accelerate in conjunction with its restructuring plan and to be in the range of
approximately $250 million for the year.
CONTINGENCIES
The company is a potentially responsible party ("PRP") or a defendant in a
number of governmental (federal, state and local) and private actions associated
with the release, or suspected release, of contaminants into the environment. As
a PRP, the company may be liable for costs associated with the investigation and
remediation of environmental contamination, as well as various penalties and
damages to persons, property and natural resources.
The company is not a party to any legal proceedings or environmental matters
which it believes will have a material adverse effect on its consolidated
financial position, cash flow or liquidity. It is possible, however, that future
results of operations for any particular quarterly or annual period, could be
materially affected by such legal proceedings or environmental matters. The
company, however, does not expect the results of such proceedings or
environmental matters to materially affect its competitive position. See Note E
of Notes to Condensed Consolidated Financial Statements for additional details.
DISCONTINUED OPERATIONS
On September 11, l995, the company announced its intention to divest its
Lubricants Group (see Note B of Notes to Condensed Consolidated Financial
Statements for additional details).
RESULTS FROM CONTINUING OPERATIONS
First quarter 1997 net sales from continuing operations of $568.5 million were
$20.9 million, or 4 percent, lower than net sales for the same period of 1996.
Approximately $20.0 million of the decline was caused by a significant increase
in the strength of the U.S. dollar compared to the first quarter of 1996. Also
impacting 1997 net sales were the absence of $12.1 million of revenue from Witco
Israel, which was disposed of at the end of the first quarter of 1996, and
approximately $8.0 million of sales lost due to a fire and resulting temporary
shut-down of the company's Petrolia, Pennsylvania plant. These items were the
primary factors causing volume to decline 7 percent. The effect of the stronger
dollar and lower volume of approximately $40 million, was partially offset by
higher selling prices in certain business segments and an improved product mix.
Income from continuing operations for the first three months of 1997 of $19.9
million was down $5.6 million compared to the corresponding period of 1996.
Current year income was adversely affected by restructuring charges of $2.2
million
9
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<PAGE>
related primarily to expenditures for equipment at sites previously identified
for closure, which otherwise would have been capitalized; $2.6 million of higher
costs related to the above mentioned shut-down of the Petrolia plant; accruals
of $2.7 million associated with the company's new performance based incentive
compensation plans; and $1.4 million from the fluctuation of foreign currency
rates. These items were partially offset by restructuring related cost
reductions, a favorable sales mix and selected higher selling prices.
SEGMENT INFORMATION
Segment net sales and operating income for the first quarter of 1997 and 1996
are set forth in the following table. The "Other" classification represents net
sales of Witco Israel, disposed of at the end of the first quarter 1996. Prior
period segment information has been restated to conform with the current periods
newly constituted segments.
<TABLE>
<CAPTION>
Three Months Ended March 31,
(Unaudited - In Millions) 1997 1996
---------------- ---------------
<S> <C> <C>
Net sales
Oleochemicals & Derivatives $106.8 $109.8
Performance Chemicals 210.3 224.6
Polymer Chemicals 128.7 130.0
OrganoSilicones 122.7 112.9
Other -- 12.1
================ ===============
Net sales $568.5 $589.4
================ ===============
Operating income from continuing operations
Oleochemicals & Derivatives $ 3.9 $ 6.7
Performance Chemicals 16.6 21.8
Polymer Chemicals 16.4 15.1
OrganoSilicones 18.1 17.7
Corporate and unallocated (6.5) (2.0)
================ ===============
Operating income from continuing operations $ 48.5 $ 59.3
================ ===============
</TABLE>
OLEOCHEMICALS & DERIVATIVES
Oleochemicals & Derivatives' first quarter net sales of $106.8 million were $3.0
million, or 3 percent, behind the same quarter of 1996. A comparatively stronger
U.S. dollar accounted for the decline, while the impact of a 2 percent increase
in volume was offset by a corresponding decline in sales prices due to
competitive pressures and a soft glycerin market.
Current year operating income for Oleochemicals & Derivatives of $3.9 million
was $2.8 million lower than the prior year. The decline was primarily due to
lower product margins attributable to a soft glycerin market, overall
competitive pressures affecting both price and volume in the commodity sector of
the segment's business, and increased incentive compensation accruals.
PERFORMANCE CHEMICALS
First quarter 1997 Performance Chemicals' net sales declined $14.3 million, or 6
percent, to $210.3 million compared to the same 1996 period. A 9 percent decline
in volume, primarily due to the aforementioned Petrolia plant fire and resulting
temporary shut-down, and the stronger U.S. dollar accounted for the lower sales.
A favorable product mix partially offset the volume shortfall and stronger U.S.
dollar.
Performance Chemicals' operating income for the first three months of 1997 of
$16.6 million was adversely affected by a $3.0 million restructuring charge.
Excluding this charge, operating income was down $2.2 million compared to 1996.
The lower operating earnings was primarily due to lost sales and higher costs of
purchasing replacement products resulting from the Petrolia plant shut-down,
partially offset by restructuring driven cost reductions, including lower
depreciation, and favorable pricing of certain major raw material feedstocks.
POLYMER CHEMICALS
Polymer Chemicals' net sales for the first quarter of 1997 declined slightly to
$128.7 million compared to the corresponding quarter of 1996. This decline was
caused by a significant increase in the strength of the U.S. dollar as compared
to the first
10
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quarter of the 1996 partially offset by a 3 percent increase in volume, an
improved sales product mix and higher prices in certain areas of the business.
Operating income for the Polymer Chemicals segment increased from $15.1 million
in 1996 to $16.4 million in 1997. The 9 percent improvement in operating income
was due to higher product margins, primarily resulting from the elimination of
low margin products and restructuring related cost reductions, partially offset
by increased performance based incentive compensation accruals.
ORGANOSILICONES
Net sales for the OrganoSilicones segment of $122.7 million for the first
quarter of 1997 were 9 percent greater than the same period of 1996. The segment
benefited from a 7 percent increase in volume and a favorable sales mix, half of
which was negated by a comparatively stronger U.S. dollar.
OrganoSilicones first quarter 1997 operating income rose 2 percent to $18.1
million compared to the first quarter of 1996. The increase was primarily driven
by significantly higher volume and an improved specialties to standards sales
mix, partially offset by increased compensation accruals.
OUTLOOK
The company is optimistic that results from continuing operations in 1997 will
exceed 1996 results. The principal reason for this optimism is the anticipated
successful implementation of the 1997 portion of the 1996 restructuring plan,
which will reduce the company's fixed and variable costs. While the full extent
of the reductions will not be realized until 2000, positive reductions in the
company's cost structure are expected in 1997. The company will continue to
aggressively pursue implementation of the 1996 restructuring plan, and,
following its completion, the company believes it will achieve its long-term
financial goals: revenues of up to $3.0 billion within five years; gross margins
to exceed 30%; operating margins in the mid-teens; earnings per share growth
sufficient to maintain return on equity greater than 20%; debt to total
capitalization of 30-45%; and, a return on capital employed greater than the
company's cost of capital so that shareholder value will increase.
Statements made in this "Management's Discussion and Analysis of Financial
Condition and Results of Operations" section are "forward looking statements"
that involve certain risks and uncertainties. The factors that could cause
actual results to differ materially from those presented herein include, without
limitation, the company's ability to generate appropriate cash flows, the cost
and timing of the implementation of certain capital improvements, the cost and
timing associated with the planned reduction in production facilities and
workforce, the impact of cost savings initiatives, the company's ability to
effectively divest certain assets, the cost of environmental remediation and
compliance efforts, technological or competitive changes in any of the company's
businesses, inability to reach agreement with third parties on planned business
arrangements, certain global and regional economic conditions and other factors
listed from time to time in the company's other Securities and Exchange
Commission filings.
11
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<PAGE>
PART II. OTHER INFORMATION
ITEM 1. Legal Proceedings
The company is a potentially responsible party ("PRP") or a defendant in a
number of governmental (federal, state and local) and private actions associated
with the release, or suspected release, of contaminants into the environment. As
a PRP, the company may be liable for costs associated with the investigation and
remediation of environmental contamination, as well as various penalties and
damages to persons, property and natural resources. As of March 31, 1997, the
company was a PRP, or a defendant, in connection with 77 sites at which it is
likely to incur environmental response costs as a result of actions brought
against the company pursuant to the federal Comprehensive Environmental Response
Compensation and Liability Act ("CERCLA"), the federal Resource Conservation and
Recovery Act ("RCRA") or similar state or local laws. With 28 exceptions, all of
these sites involve one or more other PRPs, and in most cases there are numerous
other PRPs in addition to the company. CERCLA, RCRA and the state counterparts
to these federal laws authorize governments to investigate and remediate actual
or suspected damage to the environment caused by the release, or suspected
release, of hazardous substances into the environment, or to order the
responsible parties to investigate and/or remediate such environmental damage.
The company evaluates and reviews environmental reserves for future remediation
and other costs on a quarterly basis to determine appropriate reserve amounts.
Inherent in this process are considerable uncertainties which affect the
company's ability to estimate the ultimate costs of remediation efforts. Such
uncertainties include the nature and extent of contamination at each site,
evolving governmental standards regarding remediation requirements, changes in
environmental regulations, widely varying costs of alternative cleanup methods,
the number and financial condition of other potentially responsible parties at
multi-party sites, innovations in remediation and restoration technology and the
identification of additional environmental sites.
The company is a defendant in six similar actions arising out of the company's
involvement in the polybutylene resin manufacturing business in the 1970's. Five
of the cases are currently pending in California state courts and one is pending
in Texas state court: East Bay Municipal Utility District v. Mobil Oil
Corporation, et al., filed in November 1993, and pending in Superior Court for
the County of San Mateo, California; City of Santa Maria v. Shell Oil Company,
et al., filed in May 1994, and pending in Superior Court for the County of San
Luis Obispo, California; Nipomo Community Services District v. Shell Oil
Company, et al., filed in May 1995, and pending in Superior Court for the County
of Santa Barbara, California; Alameda County Water District v. Mobil Oil
Corporation, et al., filed in April 1996, and Marin Municipal Water District v.
Shell Oil Company, et al., filed in May 1996, both pending in Superior Court for
the County of San Mateo; and City of Austin v. Shell Oil Company, et al., filed
in June 1996, and pending in the District Court of Travis County, Texas. The
actions generally allege that the company and several other defendants
negligently misrepresented the performance of polybutylene pipe and fittings
installed in water distribution systems. Other allegations in the California and
Texas actions include breach of the California Unfair Practices Act and the
Texas Deceptive Practices Act, respectively; breach of warranty, fraud and
strict liability. It is possible that the company may be named as a defendant in
future actions arising out of its past involvement in the polybutylene resin
manufacturing business.
The company is not a party to any legal proceedings, including environmental
matters, which it believes will have a material adverse effect on its
consolidated financial position. However, the company's operating results could
be materially affected in future periods by the resolution of these
contingencies.
12
<PAGE>
<PAGE>
ITEM 4. Submission of Matters to a Vote of Security Holders
(a) The company's Annual Meeting of Shareholders was held on April 23, 1997, at
the offices of the company, One American Lane, Greenwich, Connecticut
beginning at 10:30 a.m.
(b) At the Annual Meeting, the company's shareholders elected three directors
to serve a term expiring in 2000 as follows:
<TABLE>
<CAPTION>
Votes
--------------------------------------------
For Withheld
------------------- --------------------
<S> <C> <C>
Simeon Brinberg 47,491,712 654,870
William R. Grant 47,402,286 744,296
Richard M. Hayden 47,562,761 583,821
</TABLE>
Directors who did not stand for election and continue in office until the 1998
Annual Meeting are: William G. Burns, E. Gary Cook, and William Wishnick.
Directors who did not stand for election and continue in office until the 1999
Annual Meeting are: Harry G. Hohn, Dan J. Samuel and Bruce F. Wesson. At a
meeting of the Board of Directors held on April 23, 1997, Bruce R. Bond,
President and Chief Executive Officer of ANS, an America Online Company, was
named to the company's Board of Directors for a term expiring in 1998.
(c) In addition to the election of directors, at the Annual Meeting the
company's shareholders:
(i) Ratified the appointment of Ernst & Young LLP as the company's
independent auditors for 1997.
Votes
----------------------------------------------------------------
For Against Abstain
------------------- ------------------- -------------------
48,080,827 39,092 26,663
(ii) Approved the adoption of the Witco Corporation Shareholder Value
Incentive Plan.
Votes
----------------------------------------------------------------
For Against Abstain
------------------- ------------------- -------------------
39,254,620 6,488,514 147,801
(iii) Approved the adoption of the Witco Corporation 1997 Stock Incentive
Plan.
Votes
----------------------------------------------------------------
For Against Abstain
------------------- ------------------- -------------------
37,748,831 7,976,419 164,685
(iv) Approved the adoption of the Witco Corporation Officers' Annual
Incentive Plan.
Votes
----------------------------------------------------------------
For Against Abstain
------------------- ------------------- -------------------
39,819,326 5,879,485 192,124
13
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<PAGE>
ITEM 6. Exhibits and Reports on Form 8-K
(a)Exhibits
3(i) Certificate of Designations, Rights and Preferences of
Series B Convertible Preferred Stock of Witco
Corporation, filed with the Secretary of State of
Delaware on April 23, 1997(1)
10(i) Credit Agreement dated March 31, 1997
10(iii)(A) -1 Witco Corporation Shareholder Value Incentive Plan,
effective as of March 4, 1997(2)
-2 Witco Corporation 1997 Stock Incentive Plan, effective as
of January 1, 1997(3)
-3 Witco Corporation Officers' Annual Incentive Plan,
effective as of January 1, 1997(4)
11 Statement re computation of per share earnings
15 Letter re unaudited interim financial information
27 Financial Data Schedule
(b)Reports on Form 8-K
There were no reports on Form 8-K filed during the three
months ended March 31, 1997.
(1) This Exhibit was included as Appendix A to Exhibit A to the Company's
1997 Proxy Statement, filed with the Securities and Exchange Commission
on March 21, 1997, and such Exhibit is hereby incorporated by reference.
(2) This Exhibit was included as Exhibit A to the Company's 1997 Proxy
Statement, filed with the Securities and Exchange Commission on March
21, 1997, and such Exhibit is hereby incorporated by reference.
(3) This Exhibit was included as an Exhibit B to the Company's 1997 Proxy
Statement, filed with the Securities and Exchange Commission on March
21, 1997, and such Exhibit is hereby incorporated by reference.
(4) This Exhibit was included as Exhibit C to the Company's 1997 Proxy
Statement, filed with the Securities and Exchange Commission on March
21, 1997, and such Exhibit is hereby incorporated by reference.
14
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<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 thereunto duly authorized.
WITCO CORPORATION
(Registrant)
Date: May 13, 1997 /s/ PETER J. BIANCOTTI
_________________________________________________
Peter J. Biancotti
Controller - Chief Accounting Officer
Date: May 13, 1997 /s/ DUSTAN E. MCCOY
_________________________________________________
Dustan E. McCoy
Senior Vice President, General Counsel
and Corporate Secretary
15
<PAGE>
<PAGE>
WITCO CORPORATION
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
------------- ---------------------------------------------------------
3(i) Certificate of Designations, Rights and Preferences of
Series B Convertible Preferred Stock of Witco
Corporation, filed with the Secretary of State of
Delaware on April 23, 1997(1)
10(i) Credit Agreement dated March 31, 1997
10(iii)(A) -1 Witco Corporation Shareholder Value Incentive Plan,
effective as of March 4, 1997(2)
-2 Witco Corporation 1997 Stock Incentive Plan, effective as
of January 1, 1997(3)
-3 Witco Corporation Officers' Annual Incentive Plan,
effective as of January 1, 1997(4)
11 Statement re computation of per share earnings
15 Letter re unaudited interim financial information
27 Financial Data Schedule
(1) This Exhibit was included as Appendix A to Exhibit A to the Company's
1997 Proxy Statement, filed with the Securities and Exchange Commission
on March 21, 1997, and such Exhibit is hereby incorporated by reference.
(2) This Exhibit was included as Exhibit A to the Company's 1997 Proxy
Statement, filed with the Securities and Exchange Commission on March
21, 1997, and such Exhibit is hereby incorporated by reference.
(3) This Exhibit was included as an Exhibit B to the Company's 1997 Proxy
Statement, filed with the Securities and Exchange Commission on March
21, 1997, and such Exhibit is hereby incorporated by reference.
(4) This Exhibit was included as Exhibit C to the Company's 1997 Proxy
Statement, filed with the Securities and Exchange Commission on March
21, 1997, and such Exhibit is hereby incorporated by reference.
16
<PAGE>
<PAGE>
[CONFORMED COPY]
$500,000,000
CREDIT AGREEMENT
dated as of
March 31, 1997
among
Witco Corporation
The Eligible Subsidiaries
Referred to Herein
The Banks Listed Herein
The Chase Manhattan Bank,
as Administrative Agent
and
Morgan Guaranty Trust Company of New York,
as Documentation Agent
<PAGE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
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ARTICLE 1
Definitions
Section 1.01. Definitions ............................................... 1
Section 1.02. Accounting Terms and Determinations ....................... 15
Section 1.03. Types of Borrowings ....................................... 16
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend ....................................... 16
Section 2.02. Method of Committed Borrowing ............................. 17
Section 2.03. Money Market Borrowings ................................... 18
Section 2.04. Notice to Banks; Funding of Loans ......................... 23
Section 2.05. Notes ..................................................... 24
Section 2.06. Maturity of Loans ......................................... 25
Section 2.07. Interest Rates ............................................ 25
Section 2.08. Facility Fees ............................................. 29
Section 2.09. Optional Termination or Reduction of Commitments .......... 29
Section 2.10. Mandatory Termination of Commitments ...................... 29
Section 2.11. Prepayments ............................................... 29
Section 2.12. General Provisions as to Payments ......................... 30
Section 2.13. Funding Losses ............................................ 31
Section 2.14. Computation of Interest and Fees .......................... 31
Section 2.15. Taxes ..................................................... 32
Section 2.16. Judgment Currency ......................................... 34
Section 2.17. Foreign Subsidiary Costs .................................. 34
ARTICLE 3
Conditions
Section 3.01. Effectiveness ............................................. 35
Section 3.02. Borrowings ................................................ 36
Section 3.03. First Borrowing by Each Eligible Subsidiary ............... 37
</TABLE>
i
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ARTICLE 4
Representations and Warranties
Section 4.01. Corporate Existence and Power ............................. 37
Section 4.02. Corporate and Governmental Authorization; No
Contravention ............................................ 38
Section 4.03. Binding Effect ............................................ 38
Section 4.04. Financial Information ..................................... 38
Section 4.05. Litigation ................................................ 38
Section 4.06. Compliance with ERISA ..................................... 39
Section 4.07. Environmental Matters ..................................... 39
Section 4.08. Taxes ..................................................... 39
Section 4.09. Subsidiaries .............................................. 40
Section 4.10. Not an Investment Company or a Public Utility Holding
Company .................................................. 40
Section 4.11. Full Disclosure ........................................... 40
ARTICLE 5
Covenants
Section 5.01. Information ............................................... 40
Section 5.02. Payment of Obligations .................................... 42
Section 5.03. Maintenance of Property; Insurance ........................ 43
Section 5.04. Conduct of Business and Maintenance of Existence .......... 43
Section 5.05. Compliance with Laws ...................................... 43
Section 5.06. Inspection of Property, Books and Records ................. 44
Section 5.07. Debt ...................................................... 44
Section 5.08. Negative Pledge ........................................... 44
Section 5.09. Consolidations, Mergers and Sales of Assets ............... 45
Section 5.10. Use of Proceeds ........................................... 46
ARTICLE 6
Defaults
Section 6.01. Events of Default ......................................... 46
Section 6.02. Notice of Default ......................................... 48
</TABLE>
ii
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<TABLE>
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ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization ............................. 49
Section 7.02. Agents and Affiliates ..................................... 49
Section 7.03. Action by Agents .......................................... 49
Section 7.04. Consultation with Experts ................................. 49
Section 7.05. Liability of Agents ....................................... 49
Section 7.06. Indemnification ........................................... 50
Section 7.07. Credit Decision ........................................... 50
Section 7.08. Successor Agents .......................................... 50
Section 7.09. Agents' Fees .............................................. 51
ARTICLE 8
Change in Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair .. 51
Section 8.02. Illegality ................................................ 51
Section 8.03. Increased Cost and Reduced Return ......................... 52
Section 8.04. Base Rate Loans Substituted for Affected Fixed Rate
Loans .................................................... 53
ARTICLE 9
Representations and Warranties of Eligible Subsidiaries
Section 9.01. Corporate Existence and Power ............................. 54
Section 9.02. Corporate and Governmental Authorization; No
Contravention ............................................ 54
Section 9.03. Binding Effect ............................................ 55
Section 9.04. Taxes ..................................................... 55
ARTICLE 10
Guaranty
Section 10.01. The Guaranty .............................................. 55
Section 10.02. Guaranty Unconditional .................................... 55
Section 10.03. Discharge Only upon Payment in Full; Reinstatement in
Certain Circumstances .................................... 56
Section 10.04. Waiver by the Company ..................................... 56
Section 10.05. Subrogation ............................................... 57
</TABLE>
iii
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Section 10.06. Stay of Acceleration ...................................... 57
ARTICLE 11
Miscellaneous
Section 11.01. Notices ................................................... 57
Section 11.02. No Waivers ................................................ 58
Section 11.03. Expenses; Indemnification ................................. 58
Section 11.04. Sharing of Set-offs ....................................... 58
Section 11.05. Amendments and Waivers .................................... 59
Section 11.06. Successors and Assigns .................................... 59
Section 11.07. Collateral ................................................ 61
Section 11.08. Governing Law; Submission to Jurisdiction ................. 61
Section 11.09. Counterparts; Integration ................................. 62
Section 11.10. Waiver of Jury Trial ...................................... 62
Section 11.11. Confidentiality ........................................... 62
Section 11.12. Termination of Existing Credit Agreement .................. 63
</TABLE>
PRICING SCHEDULE
EXHIBIT A Note
EXHIBIT B Opinion of Dustan E. McCoy, Esq.,
General Counsel of the Company
EXHIBIT C Opinion of Davis Polk & Wardwell,
Special Counsel for the Agents
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
EXHIBIT K Calculation of MLA Cost for Euro-Currency
Loan in Pounds Sterling
iv
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<PAGE>
CREDIT AGREEMENT
AGREEMENT dated as of March 31, 1997 among WITCO CORPORATION, the
ELIGIBLE SUBSIDIARIES referred to herein, the BANKS listed on the signature
pages hereof, THE CHASE MANHATTAN BANK, as Administrative Agent, and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as Documentation Agent.
WHEREAS, the Company wishes to have a revolving credit facility under
which it or any of its Eligible Subsidiaries may from time to time borrow funds,
denominated in U.S. Dollars or any Alternative Currency, from the Banks ratably
in proportion to their respective Commitments;
WHEREAS, the Company wishes said credit facility to permit the Company
or any Eligible Subsidiary from time to time to borrow funds, denominated in
U.S. Dollars or any Alternative Currency, from one or more Banks on the basis of
their competitive bids;
WHEREAS, the Banks are willing to extend said credit facility to the
Company and its Eligible Subsidiaries on the terms and conditions set forth
herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
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 Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Banks hereunder, and its successors in such
capacity.
<PAGE>
<PAGE>
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Company and the
Documentation Agent) duly completed by such Bank.
"Agents" means the Administrative Agent and the Documentation Agent, and
"Agent" means either of the foregoing.
"Alternative Currencies" means Belgian francs, Canadian dollars,
Deutsche marks, Dutch guilders, French francs, Italian lira, Japanese yen,
Pounds sterling and Swiss francs (and, for purposes of Money Market Loans only,
Singapore dollars and Spanish pesetas); provided that any other currency (except
Dollars) shall also be an Alternative Currency if (i) the Company requests, by
notice to the Administrative Agent, that such currency be included as an
additional Alternative Currency for purposes of this Agreement, (ii) such
currency is freely transferable and is freely convertible into Dollars in the
London foreign exchange market, (iii) deposits in such currency are customarily
offered to banks in the London interbank market and (iv) every Bank, by notice
to the Administrative Agent, approves the inclusion of such currency as an
additional Alternative Currency for purposes hereof. The Banks' approval of any
such additional Alternative Currency may be limited to a specified maximum
Dollar Amount or a specified period of time or both.
"Alternative Currency Loan" means a Loan that is made in an Alternative
Currency in accordance with the applicable Notice of Borrowing.
"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-Currency Loans, its Euro-Currency 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).
"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.
2
<PAGE>
<PAGE>
"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 8.
"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, 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.
"Company's 1996 Form 10-K" means the Company's annual report on Form
10-K for 1996, 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.
3
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"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, 1996 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 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.
4
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"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.
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or other similar transaction (including any option with respect to any of the
foregoing transactions) or any combination of the foregoing transactions.
"Documentation Agent" means Morgan Guaranty Trust Company of New York,
in its capacity as documentation agent for the Banks hereunder, and its
successors in such capacity.
"Dollar Amount" means, at any time:
(i) with respect to any Dollar-Denominated Loan, the principal
amount thereof then outstanding; and
(ii) with respect to any Alternative Currency Loan, the
principal amount thereof then outstanding in the relevant
Alternative Currency, converted to Dollars at the spot rate at which
such Alternative Currency is offered for sale against Dollars as
shown on Reuters page FX, WRLD at the relevant Rate Fixing Time.
As used in this definition, "Rate Fixing Time" means (i) if a Dollar
Amount is being determined in connection with a Borrowing, prepayment or other
action requiring advance notice from a Borrower to the Administrative Agent
hereunder, a time determined by the Administrative Agent within a reasonable
time after it receives such notice and (ii) if a Dollar Amount is being
determined in any other connection, a time determined by the Administrative
Agent on the day on which the relevant action is to be taken or for which the
relevant amount is to be determined, as the case may be.
"Dollar-Denominated Loan" means a Loan that is made in Dollars in
accordance with the applicable Notice of Borrowing.
"Dollars" and the sign "$" mean lawful money of the United States.
5
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<PAGE>
"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 Administrative 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
Administrative Agent and as to which an Election to Terminate shall not have
been delivered to the Administrative 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
Administrative Agent may request. The delivery of an Election to Terminate shall
not affect any obligation of an Eligible Subsidiary theretofore incurred. The
Administrative 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
6
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<PAGE>
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-Currency Business Day" means a Euro-Dollar Business Day, unless
such term is used in connection with an Alternative Currency Borrowing or
Alternative Currency Loan for which funds are to be paid or made available in
such Alternative Currency on such day, in which case such day shall not be a
Euro-Currency Business Day unless commercial banks are open for international
business (including dealings in deposits in such Alternative Currency) in both
London and the place where such funds are to be paid or made available.
"Euro-Currency 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-Currency Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Currency Lending Office by notice
to the Administrative Agent; provided that any Bank may from time to time by
notice to the Company and the Administrative Agent designate separate
Euro-Currency Lending Offices for its Loans in different currencies and/or to
different Borrowers, in which case all references herein to the Euro-Currency
Lending Office of such Bank shall be deemed to refer to any or all of such
offices, as the context may require.
"Euro-Currency Loan" means a Committed Loan that is either a Euro-Dollar
Loan or an Alternative Currency Loan.
"Euro-Currency Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
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"Euro-Currency Rate" means a rate of interest determined pursuant to
Section 2.07(c) on the basis of a London Interbank Offered Rate.
"Euro-Currency Reference Banks" means the principal London offices of
The Chase Manhattan Bank, Commerzbank Aktiengesellschaft, and Morgan Guaranty
Trust Company of New York.
"Euro-Currency 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-Currency 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).
"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 Administrative Agent.
"Euro-Dollar Loan" means a Committed Loan that is made in Dollars and
bears interest at a Euro-Currency Rate pursuant to the applicable Notice of
Committed Borrowing.
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" means the Amended and Restated Credit
Agreement dated as of October 11, 1996, as amended, among the Company and the
banks listed on the signature pages thereof.
"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
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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 The Chase Manhattan Bank on such day on such
transactions as determined by the Administrative Agent.
"Fixed Rate Loans" means CD Loans or Euro-Currency 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.
"Guaranty" 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 the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided that the term
Guaranty 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-Currency
Borrowing, the period commencing on the date of such Borrowing and ending one,
two, three or six months thereafter, as the relevant Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period (except an Interest Period determined
pursuant to clause (c) below) which would otherwise end on a day
which is not a Euro-Currency Business Day for the relevant currency
shall be extended to the next succeeding Euro-Currency Business Day
for such currency unless such Euro-Currency Business Day falls in
another calendar month, in which case such Interest Period shall end
on the next preceding Euro-Currency Business Day for such currency;
(b) any Interest Period which begins on the last Euro-Currency
Business Day for the relevant currency in 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
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Euro-Currency Business Day for the relevant currency in 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 (or if the Termination Date is not a
Euro-Currency Business Day for the relevant currency, the next
preceding Euro-Currency Business Day for such currency).
(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 relevant 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-Currency Business Day shall be extended
to the next succeeding Euro-Currency 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 end
on a day which is not a Euro-Currency Business Day shall be extended
to the next succeeding Euro-Currency 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 relevant Borrower may elect in accordance with Section 2.03; provided that:
(a) any Interest Period (except an Interest Period determined
pursuant to clause (c) below) which would otherwise end on a day
which is not a Euro-Currency Business Day for the relevant currency
shall be extended to the next succeeding Euro-Currency Business Day
for such currency unless such
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Euro-Currency Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding
Euro-Currency Business Day for such currency;
(b) any Interest Period which begins on the last Euro-Currency
Business Day for the relevant currency in 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-Currency Business Day for
such currency in a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date (or, if the
Termination Date is not a Euro-Currency Business Day for the
relevant currency, the next preceding Euro-Currency Business Day for
such currency).
(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 relevant 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-Currency Business Day for the relevant currency
shall be extended to the next succeeding Euro-Currency Business Day
for such currency; 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.
"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.
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"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).
"London Office" means, at any time, the office of the Administrative
Agent in London specified in or pursuant to Section 11.01 at such time.
"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 $25,000,000.
"Material Financial Obligations" means a principal or face amount of
Debt and/or payment or collateralization obligations in respect of Derivatives
Obligations of the Company and/or one or more of its Subsidiaries, arising in
one or more related or unrelated transactions, in an aggregate amount exceeding
$25,000,000.
"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 Agents, which may be amended from time to time) as nonmaterial, none of
which singly would meet the definition of a "significant subsidiary" contained
as of the date hereof in Regulation S-X of the Securities and Exchange
Commission and all of which, if aggregated and considered as a single
Subsidiary, would not have total assets (determined on a consolidated basis for
such Subsidiaries and their consolidated subsidiaries) in excess of 15% of the
consolidated assets of the Company and its Consolidated Subsidiaries at such
time.
"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 Administrative Agent; provided that any Bank may from time to time by
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notice to the Company and the Administrative 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
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 any member of the
ERISA Group (i) 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.
"New York Office" means, at any time, the office of the Administrative
Agent in New York specified in or pursuant to Section 11.01 at such time.
"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)).
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 11.06(b).
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"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.
"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.
"Pricing Schedule" means the Pricing Schedule attached hereto.
"Prime Rate" means the rate of interest publicly announced by The Chase
Manhattan Bank 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 and 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
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terminated, holding Notes evidencing more than 50% of the aggregate unpaid
principal amount of the Loans.
"Spot Conversion Rate" means, with respect to any conversion of an
Alternative Currency Loan to a Dollar-Denominated Loan, the Administrative
Agent's spot buying rate for the relevant Alternative Currency against Dollars
as of approximately 11:00 A.M. (London time) on the date of such conversion.
"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.
"Termination Date" means April 2, 2002, or, if such day is not a Euro-
Currency Business Day, the next preceding Euro-Currency 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 Agents that the Company
wishes to amend any covenant in Article 5 to eliminate the effect of any change
in generally accepted accounting principles on the operation of such covenant
(or if either Agent notifies the Company that the Required Banks wish to amend
Article 5 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
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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
(a) an aggregation of Committed Loans to be made by the Banks to the
same Borrower pursuant to Section 2.01 on the same day, all of which Loans (i)
are made in the same currency (ii) in the case of Loans denominated in Dollars,
are of the same type (subject to Article 8) and (iii) have the same initial
Interest Period; and
(b) an aggregation of one or more Money Market Loans to be made by one
or more Banks to the same Borrower pursuant to Section 2.03 on the same day, all
of which Loans (i) are made in the same currency, (ii) are of the same type and
(iii) have the same Interest Period.
Borrowings may be classified for purposes of this Agreement by reference
to the currency and/or pricing of the Loans comprising such Borrowing (e.g., a
"Euro-Currency Borrowing" is a Borrowing comprised of Euro-Currency Loans) or
(ii) by reference to the provisions of Article 2 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 one
or more Banks participate on the basis of their bids).
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend.
(a) The Commitments. 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 Dollar 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 an aggregate Dollar Amount equal to
(i) the aggregate amount available in accordance with Section 3.02 or (ii) if
such Borrowing is in an Alternative Currency, an aggregate amount permitted by
clause (i) reduced to the extent required so that the aggregate amount of such
Borrowing
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in such Alternative Currency is an integral multiple of 5,000,000 units) 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.
(b) Additional Commitments. At any time during the Availability Period,
if no Default shall have occurred and be continuing at such time, the Company
may, if it so elects, increase the aggregate amount of the Commitments, either
by designating a Person not theretofore a Bank and acceptable to the Agents to
become a Bank or by agreeing with an existing Bank that such Bank's Commitment
shall be increased. Upon execution and delivery by the Company and such Bank or
other Person of an instrument of assumption in form and amount satisfactory to
the Administrative Agent, such existing Bank shall have a Commitment as therein
set forth or such other Person shall become a Bank with a Commitment as therein
set forth and all the rights and obligations of a Bank with such a Commitment
hereunder; provided that (i) the Company shall provide prompt notice of such
increase to the Administrative Agent, which shall promptly notify the other
Banks, (ii) the aggregate amount of each such increase which is effective on any
day shall be at least $20,000,000 and (iii) the aggregate amount of the
Commitments shall at no time exceed $600,000,000. Upon increase in the aggregate
amount of the Commitments pursuant to this subsection (b), within five Domestic
Business Days in the case of each Base Rate Borrowing outstanding, and at the
end of the then current Interest Period with respect thereto in the case of each
Fixed Rate Borrowing then outstanding, the Borrower shall prepay or repay such
Borrowing in its entirety, and, to the extent the Borrower elects to do so and
subject to the conditions specified in Article 3, the Borrower shall reborrow
Committed Loans from the Banks in proportion to their respective Commitments
after giving effect to such increase, until such time as all outstanding
Committed Loans are held by the Banks in such proportion.
Section 2.02. Method of Committed Borrowing. The relevant Borrower shall
give the Administrative Agent notice (a "Notice of Committed Borrowing") not
later than 10:30 A.M. (New York City time) on (w) the date of each Base Rate
Borrowing, (x) the second Domestic Business Day before each CD Borrowing, (y)
the third Euro-Dollar Business Day before each Euro-Dollar Borrowing and (z) the
fourth Euro-Currency Business Day before each Euro-Currency Borrowing in an
Alternative Currency, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Currency
Business Day for the relevant currency in the case of a Euro-Currency
Borrowing,
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(ii) the currency and aggregate amount (in such currency) of such
Borrowing,
(iii) whether the Loans comprising such Borrowing are to be CD
Loans, Base Rate Loans or Euro-Currency Loans, and
(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
Administrative Agent by telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit E hereto so as to be received by
the Administrative Agent:
(1) at its New York Office not later than 10:30 A.M. (New York
City time) on (x) the fifth Euro-Currency Business Day before the date
of Borrowing proposed therein, in the case of a LIBOR Auction in an
Alternative Currency, (y) the fourth Euro-Dollar Business Day before the
date of Borrowing proposed therein, in the case of a LIBOR Auction in
Dollars or (z) the Domestic Business Day next preceding the date of
Borrowing proposed therein, in the case of an Absolute Rate Auction in
Dollars or Canadian dollars, or
(2) at its London Office not later than 10:30 A.M. (London time)
on the Euro-Currency Business Day next preceding the date of Borrowing
proposed therein, in the case of an Absolute Rate Auction in an
Alternative Currency (other than Canadian dollars),
or, in any such case, such other time or date as the Company and the
Administrative 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
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LIBOR Auction or Absolute Rate Auction for which such change is to be effective.
Each such Money Market Quote Request shall specify:
(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 proposed currency and aggregate amount (in such
currency) of such Borrowing, which shall be an aggregate Dollar Amount
equal to $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 Company and the Administrative 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 Administrative 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 Administrative Agent by telex or facsimile:
(1) at its New York Office (x) not later than 2:00 P.M. (New
York City time) on the fifth Euro-Currency Business Day before the
proposed date of Borrowing, in the case of a LIBOR Auction in an
Alternative Currency, (y) 2:00 P.M. (New York City time) on the
fourth Euro-Dollar Business Day before the proposed date of
Borrowing, in the case of a LIBOR Auction in Dollars, or (z) 9:30
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A.M. (New York City time) on the proposed date of Borrowing, in the
case of an Absolute Rate Auction in Dollars or Canadian dollars, or
(2) at its London Office not later than 9:30 A.M. (London time)
on the proposed date of Borrowing, in the case of an Absolute Rate
Auction in an Alternative Currency (other than Canadian dollars),
or, in any such case, such other time or date as the Company and the
Administrative 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 Administrative Agent (or any
affiliate of the Administrative Agent) in the capacity of a Bank may be
submitted, and may only be submitted, if the Administrative 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 2 and
6, any Money Market Quote so made shall be irrevocable except with the written
consent of the Administrative 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 an aggregate Dollar Amount equal to $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 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,
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(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 Administrative 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 Administrative
Agent unless such subsequent Money Market Quote is submitted solely to correct a
manifest error in such former Money Market Quote. The Administrative 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 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. The Borrower shall notify the
Administrative Agent of its acceptance or non-acceptance of the offers notified
to it pursuant to subsection (e):
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(1) at its New York Office not later than 10:30 A.M. (New York
City time) on (x) the fourth Euro-Currency Business Day before the
proposed date of Borrowing, in the case of a LIBOR Auction in an
Alternative Currency, (y) the third Euro-Dollar Business Day before the
proposed date of Borrowing, in the case of a LIBOR Auction in Dollars or
(z) the proposed date of Borrowing, in the case of an Absolute Rate
Auction in Dollars or Canadian dollars, or
(2) at its London Office not later than 10:30 A.M. (London time)
on the proposed date of Borrowing, in the case of an Absolute Rate
Auction in an Alternative Currency (other than Canadian dollars),
or, in any such case, such other time or date as the Company and the
Administrative 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.
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
an aggregate Dollar Amount equal to $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 Administrative 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 Administrative Agent among such Banks as
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nearly as possible (in multiples of $1,000,000 or the equivalent thereof in the
relevant Alternative Currency, as the Administrative Agent may deem appropriate)
in proportion to the aggregate principal amounts of such offers. Determinations
by the Administrative Agent of the amounts of Money Market Loans shall be
conclusive in the absence of manifest error.
Section 2.04. Notice to Banks; Funding of Loans. (a) Upon receipt of a
Notice of Borrowing, the Administrative 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) On the date of each Borrowing, each Bank participating therein
shall:
(i) if such Borrowing is to be made in Dollars, make available
its share of such Borrowing in Dollars not later than 12:00 Noon (New
York City time), in Federal or other funds immediately available in New
York City, to the Administrative Agent at its New York Office; or
(ii) if such Borrowing is to be made in an Alternative Currency,
make available its share of such Borrowing in such Alternative Currency
(in such funds as may then be customary for the settlement of
international transactions in such Alternative Currency) to the account
of the Administrative Agent at such time and place as shall have been
notified by the Administrative Agent to the Banks by at least four
Euro-Currency Business Days' notice.
Unless the Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative Agent will
make the funds so received from the Banks available to the Borrower at the
Administrative 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 Administrative Agent as provided in subsection (b) of this
Section, or remitted by such Borrower to the Administrative Agent as provided in
Section 2.12, as the case may be.
(d) Unless the Administrative Agent shall have received notice from a
Bank prior to the date of any Borrowing that such Bank will not make available
to
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the Administrative Agent such Bank's share of such Borrowing, the Administrative
Agent may assume that such Bank has made such share available to the
Administrative Agent on the date of such Borrowing in accordance with
subsections (b) and (c) of this Section and the Administrative 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 Administrative Agent, such Bank and the Borrower
severally agree to repay to the Administrative 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 Administrative 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 Borrowing is
in Dollars) or the applicable London Interbank Offered Rate (if such Borrowing
is in an Alternative Currency). If such Bank shall repay to the Administrative
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 Administrative Agent, or repayment by the
Borrower, of any amount pursuant to this Section relieve the Bank that failed to
make available its share of the related Borrowing of its obligations hereunder.
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 Administrative 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
Administrative 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
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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 Period applicable thereto, at a rate
per annum equal to the sum of the CD Margin for such day 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 the CD Margin for such day
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:
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[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 Administrative 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.
"CD Margin" means a rate per annum determined in accordance with the
Pricing Schedule.
"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, 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)
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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-Currency 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 the Euro-Currency Margin for
such day 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-Currency 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 the relevant currency are
offered to each of the Euro-Currency Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Currency Business Days
before the first day of such Interest Period in an amount approximately equal to
the principal amount of the Euro-Currency Loan of such Euro-Currency Reference
Bank to which such Interest Period is to apply and for a period of time
comparable to such Interest Period.
(d) Any overdue principal of or interest on any Euro-Currency 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 the
Euro-Currency Margin for such day plus the Adjusted London Interbank Offered
Rate applicable to such Loan and (ii) the sum of the Euro-Currency Margin for
such day 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-Currency
Business Days, then for such other period of time not longer than one month as
the Administrative Agent may select) deposits in dollars in an amount
approximately equal to such overdue payment due to each of the Euro-Currency
Reference Banks are offered to such Euro-Currency Reference Bank in the London
interbank market for the applicable period determined as provided above by (y)
1.00 minus the Euro-Currency Reserve Percentage (or, if the circumstances
described in clause (a) or (b) of Section 8.01
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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-Currency 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 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 Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative 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 Administrative Agent as contemplated hereby. If any Reference
Bank does not furnish a timely quotation, the Administrative 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
(h) If and so long as there is any requirement for any Bank to make
special deposits with the Bank of England or to maintain reserve asset ratios in
respect of such Bank's Euro-Currency Loans in Pounds sterling, such Bank may
require each Borrower to pay, contemporaneously with each payment of interest on
each of such Bank's Euro-Currency Loans in Pounds sterling to such Borrower,
additional interest on such Euro-Currency Loan at a rate per annum equal to such
Bank's MLA Cost calculated in accordance with the formula and in the manner set
forth in Exhibit K hereto. Any Bank wishing to require payment of additional
interest pursuant to this subsection (x) shall so notify the Company and the
Administrative Agent, in which case such additional interest on the relevant
Euro-Currency Loans
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of such Bank shall be payable to such Bank at the place indicated in such notice
with respect to each applicable Interest Period commencing at least three
Euro-Currency Business Days after the giving of such notice and (y) shall notify
each Borrower, at least five Euro-Currency Business Days before each date on
which interest is payable on such Euro-Currency Loans to such Borrower, of the
additional amount then due to such Bank under this subsection.
Section 2.08. Facility Fees. The Company shall pay to the Administrative
Agent for the account of each Bank a facility fee calculated for each day at the
Facility Fee Rate for such day (determined in accordance with the Pricing
Schedule). 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 Administrative 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 Administrative Agent, prepay 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. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Banks included in such Borrowing.
(b) Except as provided in subsection (c), (d) or (e) below or in Section
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.
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(c) If the Company becomes obligated to indemnify any Bank or the
Administrative 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 Administrative 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) If any Bank requires that additional interest be paid to it pursuant
to Section 2.07(h), then the Company may, upon at least two Euro-Currency
Business Days' notice to the Administrative Agent, prepay all Euro-Currency
Borrowings in Pounds sterling by paying the principal amount together with
accrued interest thereon to the date of prepayment.
(e) On each March 31, June 30, September 30, and December 31, the
Company shall cause one or more Borrowers to prepay Loans to the extent (if any)
required so that on such date, after giving effect to such prepayment, the
aggregate Dollar Amount of the Loans does not exceed the aggregate amount of the
Commitments.
(f) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share (if any) of such prepayment and such notice shall
not thereafter be revocable by the Borrower.
Section 2.12. General Provisions as to Payments. (a) The Borrowers shall
make each payment of principal of, and interest on, the Dollar-Denominated 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 Administrative Agent at its New York Office. Each payment of
principal of, and interest on, the Alternative Currency Loans shall be made in
the relevant Alternative Currency in such funds as may then be customary for the
settlement of international transactions in such Alternative Currency, for the
account of the Administrative Agent at such time and at such place as shall have
been notified by the Administrative Agent to the Borrower and the Banks by at
least four Domestic Business Days' notice. The Administrative Agent will
promptly distribute to each Bank its ratable share of each such payment received
by the Administrative 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
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of principal of, or interest on, the Euro-Currency Loans shall be due on a
day which is not a Euro-Currency Business Day, the date for payment thereof
shall be extended to the next succeeding Euro-Currency Business Day unless such
Euro-Currency Business Day falls in another calendar month, in which case the
date for payment thereof shall be the next preceding Euro-Currency 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-Currency Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Currency 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 Administrative 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
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative 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
Administrative 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
Administrative Agent at (i) the Federal Funds Rate (if such amount was
distributed in Dollars) or (ii) the rate per annum at which one day deposits in
the relevant currency are offered to the Administrative Agent in the London
interbank market for such day (if such amount was distributed in an Alternative
Currency).
Section 2.13. Funding Losses. If a Borrower makes any payment of
principal with respect to any Fixed Rate Loan (pursuant to Article 2, 6 or 8 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
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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:
"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
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 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 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 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
Administrative 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 Agent for the full amount of Taxes or Other Taxes (including, without
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limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by such Bank or 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 Agent (as the case may be) makes demand therefor.
(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 Administrative
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 Administrative 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 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
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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 due from any Borrower
hereunder or under any of the Notes in the currency expressed to be payable
herein (the "specified currency") into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the specified currency with
such other currency at the Administrative Agent's New York office on the
Euro-Currency 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 Agent
hereunder or under any Note shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that on the
Euro-Currency Business Day following receipt by such Bank or Agent (as the case
may be) of any sum adjudged to be so due in such other currency such Bank or
Agent (as the case may be) may in accordance with normal banking procedures
purchase the specified currency with such other currency; if the amount of the
specified currency so purchased is less than the sum originally due to such Bank
or Agent, as the case may be, in the specified currency, 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 Agent, as the
case may be, against such loss, and if the amount of the specified currency so
purchased exceeds (a) the sum originally due to any Bank or Agent, as the case
may be, the specified currency 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 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 Administrative 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 Administrative
Agent of any event of which it has knowledge that will entitle such Bank to
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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.
ARTICLE 3
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 Documentation 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 Documentation 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 Documentation 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 Documentation Agent of an opinion of Dustan E. McCoy,
Esq., General Counsel of the Company, substantially in the form of Exhibit B
hereto, and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
(d) receipt by the Documentation Agent of an opinion of Davis Polk &
Wardwell, special counsel for the Documentation 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 Documentation Agent of evidence satisfactory to it
that (i) all fees and expenses payable for the account of the Banks and the
Agents and their affiliates on or before the Effective Date have been paid in
full in the amounts previously agreed upon on or prior to the Effective Date and
(ii) the commitments under the Existing Credit Agreement have been terminated
and the principal of and interest on all loans (other than any "Money Market
Loans" (as defined in the Existing Credit Agreement) then outstanding) and
accrued fees outstanding thereunder have been paid in full; and
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(f) receipt by the Documentation 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 Documentation Agent;
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
April 15, 1997. The Documentation Agent shall promptly notify the Company, the
Administrative Agent 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 Administrative 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 Effective Date, the
representation and warranty set forth in Section 4.04(b) 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; and
(e) in the case of an Alternative Currency Borrowing, there shall not
have occurred any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which in the
opinion of the Administrative Agent makes it impracticable for such Borrowing to
be denominated in the relevant Alternative Currency.
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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 Administrative 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 Administrative Agent of an opinion of counsel for
such Eligible Subsidiary acceptable to the Administrative Agent, substantially
in the form of Exhibit J hereto and covering such additional matters relating to
the transactions contemplated hereby as the Required Banks may reasonably
request; and
(c) receipt by the Administrative 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 Administrative 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 4
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.
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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.
Section 4.04. Financial Information. (a) The consolidated balance sheet
of the Company and its Consolidated Subsidiaries as of December 31, 1996 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 1996 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) Since December 31, 1996, except as publicly announced in the
Company's 1996 10-K, 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 Company's 1996 Form
10-K, 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.
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Section 4.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum 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
Company's 1996 Form 10-K, 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.
Section 4.08. Taxes. United States Federal income tax returns of the
Company and its Subsidiaries have been examined and settled through the fiscal
year ended December 31, 1992. 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, except for items being diligently contested in good faith and by
appropriate
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proceedings. 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 Material 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 or a Public Utility Holding
Company. The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
Section 4.11. Full Disclosure. All information heretofore furnished by
the Company to the Agents 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 Agents 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 5
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:
(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 operations, cash flows and shareholders'
equity for such fiscal year, setting forth in each case in comparative form the
figures for the
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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 operations
for such quarter and consolidated statements of operations and condensed cash
flows for the portion of the Company's fiscal year ended at the end of such
quarter, setting forth in the case of the statement of operations in comparative
form the figures for the corresponding quarter, in the case of the statements of
operations and cash flows the figures for the corresponding portion of the
Company's previous fiscal year and in the case of the balance sheet the figures
for the previous year end, 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;
(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;
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(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 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 either
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
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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 Material Subsidiary or
cause each Material 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 Material 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 Material Subsidiary to
maintain (either in the name of the Company or in such Material Subsidiary's own
name) with insurance companies which at the time such insurance is purchased or
renewed are financially sound and reputable, 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 similar size engaged in the
same or a similar business; and will furnish to the Banks, upon written request
from the Administrative Agent, full information as to the insurance carried.
Section 5.04. Conduct of Business and Maintenance of Existence. The
Company and its Material Subsidiaries (on a consolidated basis) will continue to
engage in business of the same general types as now conducted by the Company and
its Material Subsidiaries, and will preserve, renew and keep in full force and
effect, and will cause each Material 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 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
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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 Material 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. (a) Consolidated Debt will at no time during any
period set forth below exceed the percentage of the sum of Consolidated Debt and
Consolidated Net Worth set forth opposite such period.
<TABLE>
<CAPTION>
Period Percentage
------ ----------
<S> <C>
From the Effective Date through March 31, 1999 65%
From April 1, 1999 through March 31, 2000 62.5%
Thereafter 60%
</TABLE>
(b) Total Debt of all Consolidated Subsidiaries (excluding Debt of a
Consolidated Subsidiary to the Company or another Consolidated Subsidiary or
Guaranteed by the Company) will at no time exceed 20% of Consolidated Net Worth.
(c) 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 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:
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(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 $60,000,000 (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 or 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; or
(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 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 substantially all 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
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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 and (C) the Company may dispose
of all or any part of its Lubricants Group (which the Company has previously
announced its intent to sell) and its Canadian private label detergent business.
Section 5.10. Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used 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 6
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;
(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 Administrative 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 Financial Obligations when due or within any applicable
grace period;
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(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;
(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
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Material Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days;
(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; or
(l) the guaranty by the Company in Article 10 shall for any reason be
revoked or invalidated, or otherwise cease to be in full force and effect, or
the Company (or any Person on behalf of the Company) shall deny or disaffirm its
obligations under such guaranty;
then, and in every such event, the Administrative 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 Dollar 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 the Agents or the Banks, the Commitments shall thereupon terminate and
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 Administrative 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.
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ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes each Agent to take such action as its agent on its
behalf and to exercise such powers under this Agreement and the Notes as are
delegated to such Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
Section 7.02. Agents and Affiliates. Each of the Chase Manhattan Bank
and 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 an Agent, and each of The Chase
Manhattan Bank 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 an Agent hereunder.
Section 7.03. Action by Agents. The obligations of the Agents hereunder
are only those expressly set forth herein. Without limiting the generality of
the foregoing, neither Agent shall be required to take any action with respect
to any Default, except as expressly provided with respect to the Administrative
Agent in Article 6.
Section 7.04. Consultation with Experts. Each 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 Agents. Neither Agent nor any of its
affiliates or 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 the absence of its own gross negligence or willful misconduct.
Neither Agent nor any of its affiliates or 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 3, except receipt
of items required to be delivered to such Agent; or (iv) the validity,
effectiveness or genuineness of this Agreement, the Notes or any other
instrument or writing furnished in connection herewith. Neither Agent shall
incur
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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 each 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 either 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 either 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 Agents. Either 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 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 an Agent.
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Section 7.09. Agents' Fees. The Company shall pay to each Agent for its
own account fees in the amounts and at the times previously agreed upon between
the Company and such Agent.
ARTICLE 8
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-
Currency Loan or Money Market LIBOR Loan:
(a) the Administrative 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 Dollar Amount of the Commitments advise the Administrative 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 Administrative Agent will not
adequately and fairly reflect the cost to such Banks of funding their CD Loans
or Euro-Currency Loans, as the case may be, for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Company and
the Banks, whereupon until the Administrative 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-Currency Loans in the affected
currency, as the case may be, shall be suspended. Unless the Borrower notifies
the Administrative Agent at least two Domestic Business Days before the date of
any Fixed Rate Borrowing for which a Notice of 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 in
Dollars as a Base Rate Borrowing in the same aggregate Dollar Amount as the
requested Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market
LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall be
made in Dollars in the same aggregate Dollar Amount as the requested Borrowing
and 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
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authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Euro-Currency 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-Currency Lending Office) to make, maintain or fund its Euro-Currency Loans
in any currency to any Borrower and such Bank shall so notify the Administrative
Agent, the Administrative Agent shall forthwith give notice thereof to the other
Banks and the Company, whereupon until such Bank notifies the Company and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Currency Loans in the
affected currency to such Borrower shall be suspended. Before giving any notice
to the Administrative Agent pursuant to this Section, such Bank will use
reasonable efforts to designate a different Euro-Currency 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-Currency 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-Currency Loan, together with
accrued interest thereon. Concurrently with prepaying each such Euro-Currency
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-Currency 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 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
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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 Administrative 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, 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, within 15 days after demand by such Bank (with a copy to the
Administrative 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 Administrative
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-Currency Loans to any
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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-Currency Loans and the Borrower shall, by at least five Euro-Dollar
Business Days' prior notice to such Bank through the Administrative 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-Currency Loans, as the case may be, to such Borrower
shall be made instead as Base Rate Loans (in the case of Alternative Currency
Loans, in the same Dollar Amount as the Euro-Currency Loan that the Bank would
otherwise have made in the Alternative Currency) (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-Currency 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.
ARTICLE 9
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
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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.
ARTICLE 10
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;
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(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, either 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 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, either 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.
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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 Administrative Agent made at the request of
the Required Banks.
ARTICLE 11
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: (a)
in the case of any Borrower, 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), (b) in the case of the Administrative
Agent, at its address, facsimile number or telex number in New York City set
forth on the signature pages hereof (or, if expressly required to be given to it
at its London Office, at its address, facsimile number or telex number in London
set forth on the signature pages hereof), (c) in the case of any Bank, at its
address, facsimile number or telex number set forth in its Administrative
Questionnaire or (d) 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 Agents 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 2 or
Article 8 shall not be effective until received.
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Section 11.02. No Waivers. No failure or delay by either 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 Agents, including reasonable fees and
disbursements of special counsel for the Agents, 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
either 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
Default and collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
(b) The Company agrees to indemnify each Agent and 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
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<PAGE>
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 either Agent are affected thereby, by either Agent);
provided that no 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 10 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 Agents, such Bank shall remain responsible for the performance
of its obligations hereunder, and the Borrowers and the Agents 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
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<PAGE>
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 8 with respect to its participating
interest. An assignment or other 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 Agents, such consents 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 if an Event of Default has occurred and is continuing, the consent
of the Company shall not be required; and provided further that any assignment
shall not be less than $10,000,000, 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 Administrative 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
Administrative 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 Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 2.17.
60
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(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 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 Agents
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. (a) This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York.
(b) 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.
(c) Each Borrower irrevocably designates and appoints CT Corporation
System, having an office on the date hereof at 1633 Broadway, New York, New York
10102 as such Borrower's authorized agent, to accept and acknowledge on its
behalf service of any and all process which may be served in any suit, action or
proceeding referred to in subsection (b) above in any federal or New York State
court sitting in New York City. Each Borrower represents and warrants that such
agent has agreed to accept such appointment. Said designation and appointment
shall not be revocable by any Borrower until all principal, interest and other
amounts payable hereunder shall have been paid in full in accordance with the
provisions hereof or, if earlier, when such Borrower's status as a Borrower
hereunder is terminated. If such agent shall cease to act as agent for any
61
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<PAGE>
Borrower, such Borrower agrees to designate irrevocably and appoint without
delay another such agent satisfactory to the Agent.
(d) Each Borrower consents to process being served in any suit, action
or proceeding referred to in subsection (b) above in any federal or New York
State court sitting in New York City by service of process upon its agent
appointed as provided in subsection (c) above; provided that, to the extent
lawful and possible, notice of said service upon such agent shall be mailed by
registered or certified air mail, postage prepaid, return receipt requested, to
such Borrower at its address specified in or pursuant to Section 11.01. Each
Borrower irrevocably waives, to the fullest extent permitted by law, all claim
of error by reason of service in such manner and agrees that such service shall
be deemed in every respect effective service of process upon such Borrower in
any such suit, action or proceeding and shall, to the fullest extent permitted
by law, constitute valid and personal service upon and personal delivery to such
Borrower.
(e) Nothing in this Section shall affect the right of the Administrative
Agent or any Bank to serve process in any other manner permitted by law or limit
the right of the Administrative Agent or any Bank to bring proceedings against
any Borrower in the courts of any jurisdiction or jurisdictions.
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, THE BORROWERS,
THE AGENTS 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.
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
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<PAGE>
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 either 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.
Section 11.12. Termination of Existing Credit Agreement. Each of the
Company and each Bank that is also a "Bank" party to the Existing Credit
Agreement agrees that the "Commitments" as defined in the Existing Credit
Agreement shall be terminated in their entirety on the Effective Date. Each of
such Banks waives (a) any requirement of notice of such termination pursuant to
Section 2.09 of the Existing Credit Agreement and (b) any claim to any facility
fees under the Existing Credit Agreement for any day on or after the Effective
Date. The Company (i) represents and warrants that (x) after giving effect to
the preceding sentences of this Section, the commitments under the Existing
Credit Agreements will be terminated effective not later than the Effective Date
and (y) no loans (other than "Money Market Loans" (as defined in the Existing
Credit Agreement (the "Existing Money Market Loans")) are, as of the date
hereof, or will be, as of the Effective Date, outstanding under the Existing
Credit Agreement and (ii) covenants that all accrued and unpaid facility fees
and any other amounts due and payable under the Existing Credit Agreement (other
than principal of and interest on Existing Money Market Loans) shall have been
paid on or prior to the Effective Date. On the Effective Date, each Existing
Money Market Loan shall be continued as a Money Market Loan under this
Agreement, and each Bank which has made such a Loan shall provide such
information as the Administrative Agent may request with respect thereto.
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<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 /s/ James M.Rutledge
_____________________________________
Name: James M.Rutledge
Title: Vice President
One American Lane
Greenwich, Connecticut 06831-2559
Attention: Vice President and Treasurer
Facsimile number: (203) 552-2868
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<PAGE>
COMMITMENT
$60,000,000 MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ Robert L. Barrett
_____________________________________
Name: Robert L. Barrett
Title: Vice President
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<PAGE>
COMMITMENT
$60,000,000 THE CHASE MANHATTAN BANK
By /s/ Robert T. Sacks
_____________________________________
Name: Robert T. Sacks
Title: Managing Director
65
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<PAGE>
COMMITMENT
$45,000,000 ABN AMRO BANK N.V.,
NEW YORK BRANCH
By /s/ George M. Dugan
_____________________________________
Name: George M. Dugan
Title: Vice President
By /s/ David W. Stack
_____________________________________
Name: David W. Stack
Title: Vice President
66
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<PAGE>
COMMITMENT
$45,000,000 BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH
By /s/ C. Dougherty
_____________________________________
Name: C. Dougherty
Title: Vice President
By /s/ B. Carlson
_____________________________________
Name: B. Carlson
Title: Assistant Vice President
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<PAGE>
COMMITMENT
$45,000,000 BANK OF AMERICA ILLINOIS
By /s/ Wendy L. Loring
_____________________________________
Name: Wendy L. Loring
Title: Vice President
68
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<PAGE>
COMMITMENT
$45,000,000 CITIBANK, N.A.
By /s/ Mary W. Corkran
_____________________________________
Name: Mary W. Corkran
Title: Vice President
69
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<PAGE>
COMMITMENT
$45,000,000 COMMERZBANK AG, NEW YORK
AND/OR CAYMAN ISLANDS
BRANCH
By /s/ Robert J. Donohue
_____________________________________
Name: Robert J. Donohue
Title: Vice President
By /s/ Andrew R. Campbell
_____________________________________
Name: Andrew R. Campbell
Title: Assistant Treasurer
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<PAGE>
COMMITMENT
$45,000,000 FLEET NATIONAL BANK
By /s/ Robert C. Rubino
_____________________________________
Name: Robert C. Rubino
Title: Vice President
71
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<PAGE>
COMMITMENT
$45,000,000 MELLON BANK, N.A.
By /s/ George B. Davis
_____________________________________
Name: George B. Davis
Title: Vice President
72
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<PAGE>
COMMITMENT
$45,000,000 THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By /s/ John C. Kissinger
_____________________________________
Name: John C. Kissinger
Title: Joint General Manager
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<PAGE>
COMMITMENT
$20,000,000 SOCIETE GENERALE, NEW YORK
BRANCH
By /s/ Robert Peterson
_____________________________________
Name: Robert Peterson
Title: Vice President
74
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<PAGE>
==================
Total Commitments
$500,000,000
==================
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ Robert T. Sacks
_____________________________________
Name: Robert T. Sacks
Title: Managing Director
1 Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Janet Belden
Loan and Agency Services Group
Facsimile number: (212) 552-5658
with a copy to:
270 Park Avenue
New York, New York 10017
Attention: Robert Sacks
Facsimile number: (212) 270-7939
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
as Documentation Agent
By /s/ Robert L. Barrett
_____________________________________
Name: Robert L. Barrett
Title: Vice President
60 Wall Street
New York, New York 10260-0060
Attention: Credit Administrator
Facsimile number: (212) 648-5018
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<PAGE>
PRICING SCHEDULE
Each of "Facility Fee Rate", "Euro-Currency Margin" and "CD Margin"
means, for any day, the rate set forth below in the row opposite such term and
in the column corresponding to the Pricing Level that applies on such day:
<TABLE>
<CAPTION>
Pricing Level Level I Level II Level III Level IV Level V
------------- ------- -------- --------- -------- -------
<S> <C> <C> <C> <C> <C>
Facility Fee Rate .07% .075% .09% .11% .15%
Euro-Currency .13% .15% .185% .24% .30%
Margin
CD Margin .255% .275% .31% .365% .425%
</TABLE>
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Pricing" applies on any day on which the Borrower's long-term
debt is rated A or higher by S&P or A2 or higher by Moody's.
"Level II Pricing" applies on any day on which (i) the Borrower's
long-term debt is rated A- by S&P or A3 by Moody's and (ii) Level I Pricing does
not apply.
"Level III Pricing" applies on any day on which (i) the Borrower's
long-term debt is rated BBB+ by S&P or Baa1 by Moody's and (ii) neither Level I
Pricing nor Level II Pricing applies.
"Level IV Pricing" applies on any day on which (i) the Borrower's
long-term debt is rated BBB by S&P or Baa2 by Moody's and (ii) none of Level I
Pricing, Level II Pricing and Level III Pricing applies.
"Level V Pricing" applies on any day if no other Pricing Level applies
on such day.
"Moody's" means Moody's Investors Service, Inc.
"Pricing Level" refers to the determination of which of Level I, Level
II, Level III, Level IV or Level V Pricing applies on any day.
<PAGE>
<PAGE>
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Borrower
without third-party credit enhancement, and any rating assigned to any other
debt security of the Borrower shall be disregarded. The ratings in effect for
any day are those in effect at the close of business on such day. In the case of
split ratings from S&P and Moody's, the rating to be used to determine the
applicable Pricing Level is the higher of the two (e.g., A/A3 results in Level I
Pricing); provided that if the split is more than one full rating category, the
intermediate (or higher of the two intermediate ratings) will be used (e.g.,
BBB+/Baa3 results in Level IV Pricing and A-/Baa3 results in Level III Pricing).
2
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<PAGE>
EXHIBIT A
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 [name of Bank] (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 (i) if in Dollars, in lawful money of the United States
in Federal or other immediately available funds at the office of The Chase
Manhattan Bank, 1 Chase Manhattan Plaza, New York, New York 10081 or (ii) if in
an Alternative Currency, in such funds as may then be customary for the
settlement of international transactions in such Alternative Currency at the
place specified for payment thereof pursuant to the Credit Agreement.
All Loans made by the Bank, the respective types and maturities thereof
and, in the case of Alternative Currency Loans, the currency 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; providedthat 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 March 31, 1997 among Witco Corporation, the Eligible Subsidiaries referred
to therein, the banks listed on the signature pages thereof, The Chase Manhattan
Bank, as Administrative Agent, and Morgan Guaranty Trust Company of New York, as
Documentation Agent (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
<PAGE>
<PAGE>
[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:
2
<PAGE>
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
________________________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
________________________________________________________________________________
<S> <C> <C> <C> <C> <C>
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
</TABLE>
3
<PAGE>
<PAGE>
EXHIBIT B
OPINION OF DUSTAN E. McCOY, ESQ.,
GENERAL COUNSEL OF THE COMPANY
[Effective Date]
To the Banks and the Agents
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Documentation 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 March 31, 1997 (the "Credit Agreement") among the Company, the
Eligible Subsidiaries referred to therein, the Banks listed on the signature
pages thereof, The Chase Manhattan Bank, as Administrative Agent, and Morgan
Guaranty Trust Company of New York, as Documentation 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 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 required to carry on its business as now conducted. Each of the
<PAGE>
<PAGE>
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.
2. The execution, delivery and performance by the Company of the Credit
Agreement are within the Company's corporate powers, have been duly authorized
by all necessary corporate action, and require no action by or in respect of, or
filing with, any governmental agency or official.
3. The execution, delivery and performance by the Company of the Credit
Agreement will not contravene, or constitute a default under, any provision of
applicable law or regulation or of the articles of incorporation or bylaws of
the Company or any agreement or instrument evidencing Debt of the Company or, to
the best of my knowledge, any other agreement, judgment, injunction, 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.
4. The Credit Agreement constitutes a valid and binding agreement of the
Company.
5. Except as disclosed in the Company's annual report on Form 10-K for
1996 as filed with the Securities and Exchange Commission, 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 or consolidated financial position 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 any other person without my prior written consent.
Very truly yours,
2
<PAGE>
<PAGE>
EXHIBIT C
OPINION OF
DAVIS POLK & WARDWELL,
SPECIAL COUNSEL FOR THE AGENTS
[Effective Date]
To the Banks and the Agents
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Documentation 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 March 31, 1997 among Witco Corporation, a
Delaware corporation (the "Company"), the Eligible Subsidiaries referred to
therein, the banks listed on the signature pages thereof (the "Banks"), The
Chase Manhattan Bank, as Administrative Agent, and Morgan Guaranty Trust Company
of New York, as Documentation Agent (the "Agents"), and have acted as special
counsel for the Agents 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:
<PAGE>
<PAGE>
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.
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,
2
<PAGE>
<PAGE>
EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the "Assignor"),
[ASSIGNEE] (the "Assignee"), [WITCO CORPORATION (the "Company"), THE CHASE
MANHATTAN BANK, as Administrative Agent and MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as Documentation Agent (collectively the "Agents")].
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 March 31, 1997 among the Company,
the Eligible Subsidiaries referred to therein, the Assignor and the other Banks
party thereto, as Banks, and the Agents (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 Dollar Amount at any time outstanding
not to exceed $__________;
WHEREAS, Committed Loans made by the Assignor under the Credit Agreement
in the aggregate Dollar 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:
<PAGE>
<PAGE>
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
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 Agents] 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 Dollars (in Federal Funds) and the relevant Alternative
Currencies, the amount heretofore agreed between them.(1) 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 Agents. This Agreement is
conditioned upon the consent of the Company and the Agents pursuant to Section
11.06(c) of the Credit Agreement. The execution of this Agreement by the Company
and the Agents is evidence of this consent. Pursuant to Section 11.06(c) the
Borrower agrees to execute and deliver a Note payable to the order of the
Assignee to evidence the assignment and assumption provided for herein.]
- ----------
(1) 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.
2
<PAGE>
<PAGE>
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:
3
<PAGE>
<PAGE>
[WITCO CORPORATION
By__________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By__________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Documentation Agent
By__________________________
Name:
Title:]
4
<PAGE>
<PAGE>
EXHIBIT E
FORM OF MONEY MARKET QUOTE REQUEST
[Date]
To: The Chase Manhattan Bank (the "Administrative Agent")
From: [Name of Relevant Borrower]
Re: Credit Agreement (the "Credit Agreement") dated as of March 31, 1997 among
Witco Corporation, the Eligible Subsidiaries referred to therein, and the
Banks and Agents listed on the signature pages thereof
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(1) Interest Period(2)
- ------------------- -------------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
- ----------
(1) Amount must be a Dollar Amount equal to $5,000,000 or a larger
multiple of $1,000,000.
(2) 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>
<PAGE>
Terms used herein have the meanings assigned to them in the Credit
Agreement.
[Name of Relevant Borrower]
By________________________
Name:
Title:
2
<PAGE>
<PAGE>
EXHIBIT F
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 March 31,
1997 among Witco Corporation, the Eligible Subsidiaries referred to therein, the
Banks and Agents (including the undersigned) parties thereto, 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/London time) on [date].
THE CHASE MANHATTAN BANK,
as Administrative Agent
By______________________
Authorized Officer
<PAGE>
<PAGE>
EXHIBIT G
FORM OF MONEY MARKET QUOTE
To: The Chase Manhattan Bank, as Administrative 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 a Dollar
Amount equal to $5,000,000 or a larger multiple of $1,000,000.
(notes continued on following page)
<PAGE>
<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 March 31, 1997 among Witco Corporation, the Eligible Subsidiaries
referred to therein, and the Banks and Agents listed on the signature pages
thereof, 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%).
2
<PAGE>
<PAGE>
EXHIBIT H
FORM OF ELECTION TO PARTICIPATE
___________, 19
THE CHASE MANHATTAN BANK,
as Administrative Agent for
the Banks named in the Credit
Agreement dated as of March 31, 1997
among Witco Corporation,
the Eligible Subsidiaries referred to therein,
such Banks, such Administrative Agent and
Morgan Guaranty Trust Company of New York,
as Documentation 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 9 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>
<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.
THE CHASE MANHATTAN BANK,
as Administrative Agent
By____________________________
Name:
Title:
2
<PAGE>
<PAGE>
EXHIBIT I
FORM OF ELECTION TO TERMINATE
___________, 19
THE CHASE MANHATTAN BANK,
as Administrative Agent for
the Banks named in the Credit
Agreement dated as of _____ __, 1997
among Witco Corporation,
the Eligible Subsidiaries referred to therein,
such Banks, such Administrative Agent and
Morgan Guaranty Trust Company of
New York, as Documentation 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>
<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.
THE CHASE MANHATTAN BANK,
as Administrative Agent
By__________________________
Name:
Title:
2
<PAGE>
<PAGE>
EXHIBIT J
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 Agents
Referred to Below
c/o The Chase Manhattan Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
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
March 31, 1997 among Witco Corporation (the "Company"), the Eligible
Subsidiaries referred to therein, the Banks listed on the signature pages
thereof, The Chase Manhattan Bank, as Administrative Agent, and Morgan Guaranty
Trust Company of New York, as Documentation 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>
<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,
2
<PAGE>
<PAGE>
EXHIBIT K
CALCULATION OF MLA COST FOR EURO-CURRENCY LOANS IN POUNDS STERLING
Any additional interest to be paid to a Bank pursuant to Section 2.07(h)
shall accrue at a rate per annum equal to such Bank's MLA Cost calculated on the
basis of the following formula:
MLA Cost = BY + L(Y-X) + S(Y-Z)
--------------------
100 - (B+S)
(a) where on the day of application of the formula:
B is the percentage of the Bank's eligible liabilities which the Bank of
England requires the Bank to hold in a non-interest bearing deposit account
in accordance with its cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the Bank to leading
banks in the London interbank market at or about 11:00 A.M. (London time)
on that day for the relevant period;
L is the percentage of eligible liabilities which (as a result of the
requirements of the Bank of England) the Bank maintains as secured money
with members of the London Discount Market Association and/or in certain
marketable or callable securities approved by the Bank of England, which
percentage shall (in the absence of evidence that any other figure is
appropriate) be conclusively presumed to be 5%;
X is the rate at which Sterling deposits in the relevant amount may be placed
by the Bank with members of the London Discount Market Association and/or
in certain marketable or callable securities approved by the Bank of
England at or about 11:00 A.M. (London time) on that day for the relevant
period;
S is the percentage of the Bank's eligible liabilities which the Bank of
England requires the Bank to place as a special deposit; and
Z is the interest rate per annum allowed by the Bank of England on special
deposits.
<PAGE>
<PAGE>
(b) For the purposes of this Exhibit K:
(i) "eligible liabilities" and "special deposits" have the meanings
given to them at the time of application of the formula by the
Bank of England;
(ii) "relevant period" means:
(A) if the relevant Interest Period is 3 months or less, such
Interest Period; or
(B) if the relevant Interest Period is more than 3 months, 3
months.
(c) In the application of the formula B, Y, L, X, S and Z are included
in the formula as figures and not as percentages, e.g. if B = 0.5%
and Y = 15%, BY is calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of the relevant
Interest Period.
(ii) The rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(e) If the Bank determines that a change in circumstances has rendered,
or will render, the formula inappropriate, the Bank shall notify the
Company of the manner in which its MLA Cost will subsequently be
calculated. The manner of calculation so notified by the Bank shall,
in the absence of manifest error, be binding on all the parties.
2
<PAGE>
<PAGE>
EXHIBIT 11
WITCO CORPORATION AND SUBSIDIARY COMPANIES
COMPUTATION OF PER SHARE EARNINGS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
----------------------------
1997 1996
------------ ------------
(In Thousands Except
Per Share Data)
<S> <C> <C>
PRIMARY
Income from Continuing Operations $19,939 $25,581
Dividend requirements of preferred stock (4) (5)
------------ ------------
Total 19,935 25,576
Income from Discontinued Operations - 340
------------ ------------
Net Income $19,935 $25,916
============ ============
Weighted average shares outstanding 56,851 56,483
Assumed conversions:
Stock options 213 412
------------ ------------
Total 57,064 56,895
============ ============
Per share amounts:
Income from Continuing Operations $ .35 $ .45
Income from Discontinued Operations - .01
------------ ------------
Net Income $ .35 $ .46
============ ============
FULLY DILUTED
Income from Continuing Operations $19,939 $25,581
Income from Discontinued Operations - 340
------------ ------------
Net Income $19,939 $25,921
============ ============
Weighted average shares outstanding 56,851 56,483
Assumed conversions:
Stock options 302 540
Preferred stock 108 115
------------ ------------
Total 57,261 57,138
============ ============
Per share amounts:
Income from Continuing Operations $ .35 $ .44
Income from Discontinued Operations - .01
------------ ------------
Net Income $ .35 $ .45
============ ============
</TABLE>
<PAGE>
<PAGE>
EXHIBIT 15
LETTER RE: UNAUDITED FINANCIAL INFORMATION
ACKNOWLEDGMENT LETTER
May 12, 1997
The Board of Directors
Witco Corporation
We are aware of the incorporation by reference in the Registration Statement
(Form S-3, No. 33-45865) and the Post-effective Amendment No. 2 to the
Registration Statement (Form S-3, No. 33-58066), each pertaining to the issuance
of debentures, the Post-effective Amendment No. 1 to the Registration Statement
(Form S-3, No. 33-58120), pertaining to the issuance of common stock, the
Registration Statement (Form S-3, No. 33-65203), pertaining to the issuance of
notes and debentures, the Post-effective Amendment No. 2 to the Registration
Statement (Form S-8, No. 33-10715), Post-effective Amendment No. 1 to the
Registration Statements (Form S-8, Nos. 33-30995 and 33-45194), each pertaining
to stock option plans of Witco Corporation, the Registration Statement (Form
S-8, No. 33-48806), pertaining to an employee benefit plan of Witco Corporation,
the Registration Statement (Form S-8, No. 33-60755), pertaining to the 1995
Stock Option Plan for Employees of Witco Corporation and its Subsidiaries, and
the Post-effective Amendment No. 1 to the Registration Statement (Form S-8, No.
333-05509), pertaining to the 1995 Stock Option Plan for Employees of Witco
Corporation and its Subsidiaries, of our report dated May 12, 1997 relating to
the unaudited condensed consolidated interim financial statements of Witco
Corporation and Subsidiary Companies which is included in its Form 10-Q for the
quarter ended March 31, 1997.
Pursuant to Rule 436(c) of the Securities Act of 1933, our report is not part of
the registration statements prepared or certified by accountants within the
meaning of Sections 7 or 11 of the Securities Act of 1933.
/s/ ERNST & YOUNG LLP
Stamford, Connecticut
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 38,367
<SECURITIES> 0
<RECEIVABLES> 430,962
<ALLOWANCES> 13,373
<INVENTORY> 274,087
<CURRENT-ASSETS> 837,281
<PP&E> 1,481,305
<DEPRECIATION> 780,745
<TOTAL-ASSETS> 2,318,235
<CURRENT-LIABILITIES> 554,935
<BONDS> 693,742
0
6
<COMMON> 285,097
<OTHER-SE> 336,485
<TOTAL-LIABILITY-AND-EQUITY> 2,318,235
<SALES> 568,490
<TOTAL-REVENUES> 568,490
<CGS> 432,165
<TOTAL-COSTS> 432,165
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 871
<INTEREST-EXPENSE> 13,924
<INCOME-PRETAX> 34,377
<INCOME-TAX> 14,438
<INCOME-CONTINUING> 19,939
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 19,939
<EPS-PRIMARY> .35
<EPS-DILUTED> .35
<PAGE>
