FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1995
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 1-9753
GEORGIA GULF CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 58-1563799
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
400 Perimeter Center Terrace, Suite 595
Atlanta, Georgia 30346
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(404) 395-4500
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
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Outstanding as of
Class May 1, 1995
Common Stock, $0.01 par value................38,548,381 shares
<PAGE>
GEORGIA GULF CORPORATION
FORM 10-Q
QUARTERLY PERIOD ENDED MARCH 31, 1995
INDEX
Page Numbers
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets
as of March 31, 1995 and
December 31, 1994 2
Condensed Consolidated Statements of
Income for the three months ended
March 31, 1995 and 1994 3
Condensed Consolidated Statements of
Cash Flows for the three months
ended March 31, 1995 and 1994 4
Notes to Condensed Consolidated Financial
Statements as of March 31, 1995 5-6
Item 2. Management's Discussion and Analysis
of Financial Condition and Results
of Operations 7-8
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 9
SIGNATURES 10
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
<TABLE>
<CAPTION>
GEORGIA GULF CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except share data)
March 31, December 31,
1995 1994
<S> <C> <C>
ASSETS
Current assets
Cash and cash equivalents $ 2,669 $ 1,216
Receivables 160,492 157,085
Inventories 74,672 70,667
Prepaid expenses 13,213 13,882
Deferred income taxes 7,069 7,069
Total current assets 258,115 249,919
Property, plant and equipment, at cost 465,450 447,986
Less accumulated depreciation 199,272 192,378
Property, plant and equipment, net 266,178 255,608
Other assets 3,232 2,920
Total assets $527,525 $508,447
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable $ 83,743 $ 73,771
Interest payable 13,292 6,424
Accrued income taxes 38,550 21,537
Other accrued liabilities 20,213 21,519
Total current liabilities 155,798 123,251
Long-term debt 320,481 314,081
Deferred income taxes 39,977 39,977
Stockholders' equity
Common stock - $0.01 par value 395 420
Additional paid-in capital 109,221 185,984
Retained earnings (98,347) (155,266)
Total stockholders' equity 11,269 31,138
Total liabilities and
stockholders' equity $527,525 $508,447
Common shares outstanding 39,489,816 42,013,116
</TABLE>
See notes to condensed consolidated financial statements.
<PAGE>
<TABLE>
<CAPTION>
GEORGIA GULF CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except share data)
Three Months Ended
March 31,
1995 1994
<S> <C> <C>
Net sales $314,026 $192,906
Operating costs and expenses
Cost of sales 195,839 153,720
Selling and administrative 11,583 9,887
Total operating costs and expenses 207,422 163,607
Operating income 106,604 29,299
Other income (expense)
Interest, net (8,712) (9,782)
Income before income taxes 97,892 19,517
Provision for income taxes 37,735 6,787
Net income $ 60,157 $ 12,730
Net income per common share $ 1.44 $ 0.30
Weighted average common shares
and equivalents outstanding 41,856,291 42,169,692
</TABLE>
See notes to condensed consolidated financial statements.
<PAGE>
<TABLE>
<CAPTION>
GEORGIA GULF CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
Three Months Ended
March 31,
1995 1994
<S> <C> <C>
Cash flows from operating activities:
Net income $ 60,157 $ 12,730
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation and amortization 8,179 7,375
Change in assets, liabilities and other 25,124 1,225
Net cash provided by operating activities 93,460 21,330
Cash flows from financing activities:
Net change in revolving credit loan 6,400 (10,700)
Principal payments on long-term debt -- (3,512)
Proceeds from issuance of common stock 609 1,943
Purchase and retirement of common stock (78,314) --
Dividends on common stock (3,238) --
Net cash used in financing activities (74,543) (12,269)
Cash flows from investing activities:
Capital expenditures (17,464) (9,083)
Net cash used in investing activities (17,464) (9,083)
Net change in cash and cash equivalents 1,453 (22)
Cash and cash equivalents at beginning of period 1,216 3,099
Cash and cash equivalents at end of period $ 2,669 $ 3,077
</TABLE>
See notes to condensed consolidated financial statements.
<PAGE>
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1: BASIS OF PRESENTATION
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 Article 10 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 (consisting of normal recurring accruals) considered
necessary for a fair presentation have been included.
Operating results for the three-month period ended March 31, 1995,
are not necessarily indicative of the results that may be expected
for the year ending December 31, 1995. For further information,
refer to the consolidated financial statements and footnotes
thereto included in Georgia Gulf Corporation and its subsidiaries'
("the Company") annual report for the year ended December 31, 1994.
NOTE 2: INVENTORIES
The major classes of inventories were as follows (in thousands):
March 31, December 31,
1995 1994
Raw materials and supplies $ 32,580 $ 25,019
Finished goods 42,092 45,648
$ 74,672 $ 70,667
NOTE 3: LONG-TERM DEBT
The Company refinanced its senior debt on March 30, 1995, replacing
an existing revolving credit facility with an unsecured revolving
credit facility permitting borrowings of up to $350,000,000 (the
"New Credit Agreement"). The terms and conditions of the New
Credit Agreement provide for reduced interest rates, less
restrictive covenants and increased financial flexibility. The New
Credit Agreement matures in March 2000, at which time any amounts
outstanding thereunder are payable in full. The costs incurred in
connection with the refinancing, including both the unamortized
debt issuance costs associated with the terminated credit agreement
and the costs related to the New Credit Agreement, were not
material. As of March 31, 1995, the Company had availability of up
to $225,000,000 under the terms of the New Credit Agreement.
NOTE 4: STOCKHOLDERS' EQUITY
The Company purchased 2,597,200 shares of common stock for
$78,314,000 during the three months ended March 31, 1995. As of
March 31, 1995, the Company is authorized to purchase an additional
1,572,800 shares under the common stock repurchase program.
NOTE 5: SUBSEQUENT EVENT - EARLY REDEMPTION OF SUBORDINATED
NOTES
On April 15, 1995, the Company redeemed, at par, the $191,081,000
15% Senior Subordinated Notes ("Notes") which would have been due
April 2000. The redemption of the Notes was funded using
availability under the New Credit Agreement. The write-off of the
remaining unamortized debt issuance costs related to the Notes was
not material.
<PAGE>
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
RESULTS OF OPERATIONS
First Quarter of 1995 Compared with the First Quarter of 1994:
For the first quarter ended March 31, 1995, net income per common
share was $1.44 on net income of $60.2 million and net sales of
$314.0 million. This compares to net income per common share of
$0.30, net income of $12.7 million and net sales of $192.9 million
for the first quarter of 1994.
Operating income for the first quarter of 1995 was $106.6 million,
an increase of 264 percent from $29.3 million for the same period
in 1994. Unexpected production outages in the chlorine/caustic
soda and methanol units during the first quarter of 1995 resulted
in lower sales volume as compared to the first quarter of 1994.
However, the reduction in sales volume was more than offset by a 68
percent increase in the average sales price of the Company's
products. The increase in sales prices outpaced higher raw
material costs, which in turn resulted in improved gross margins
for the quarter-to-quarter comparison.
Selling and administrative expenses were $11.6 million for the
first quarter of 1995, compared to $9.9 million for the same period
in 1994. The increase resulted primarily from charges relating to
the Company's profit sharing programs.
Interest expense declined $1.1 million when comparing the first
quarter of 1995 to the same period in 1994. This decline was
attributable to $44.5 million of debt repayments over the past
twelve months and reduced interest rates in connection with a debt
refinancing early in the second quarter of 1994.
The effective income tax rate for the first quarter of 1995 was
38.5%, up from 34.8% in the first quarter of 1994. The effective
income tax rate increased in 1995 primarily as a result of higher
taxable income, which minimized the effect of permanent tax
differences.
LIQUIDITY AND CAPITAL RESOURCES
During the three months ended March 31, 1995, $93.5 million of cash
was generated by operating activities as compared to $21.3 million
for three months ended March 31, 1994. Cash flow increased due to
higher net income in 1995, along with working capital fluctuations.
The majority of the change in working capital was related to a
$17.0 million increase in accrued income taxes in 1995.
Debt increased by $6.4 million during the three months ended March
31, 1995, to a level of $320.5 million, which consisted of senior
debt of $129.4 million and $191.1 million in principal amount of
the Company's 15% Senior Subordinated Notes. The Company's $250
million revolving credit facility was replaced by a new $350
million revolving credit facility during the first quarter of 1995.
The new revolving credit facility contains more favorable terms,
including reduced interest rates, and fewer financial covenants and
restrictions. On April 15, 1995, the Company used availability
under this new revolving credit facility to redeem, at par, the
$191.1 million 15% Senior Subordinated Notes which would have been
due April 2000.
Capital expenditures for the three months ended March 31, 1995,
were $17.5 million as compared to $9.1 million for the same 1994
period. Construction of the vinyl compound expansion in Gallman,
Mississippi is scheduled for completion in early 1996. Detailed
engineering work is proceeding for the modernization and expansion
of both the Pasadena, Texas cumene and the Plaquemine, Louisiana
vinyl chloride monomer plants, which are scheduled for completion
in mid- and late 1996, respectively. Capital expenditures will
continue to increase over the next three quarters to an annual
level for 1995 of approximately $85 million.
The Company declared a dividend of $0.08 per share or $3.2 million
during the first quarter of 1995. The Company also purchased 2.6
million shares of common stock for a cost of $78.3 million under
the Company's current stock repurchase program. As of March 31,
1995, the Company is authorized to purchase an additional 1.6
million shares of common stock.
Management believes that cash provided by operations and the
availability under the Company's current debt agreements will
provide sufficient funds to support planned capital expenditures,
dividends, stock repurchases, working capital fluctuations and debt
service requirements.
OUTLOOK
The Company had record financial results for the first quarter of
1995. With the exception of methanol, the demand for the Company's
products appears to be closely tracking available supply, which is
supporting a stable pricing environment. For methanol, the sharp
price escalation brought on by a supply shortfall created by MTBE
demand has subsided, and the selling price has returned to a more
historical level. Management anticipates earnings will continue to
be strong for the second quarter, but lower than the first quarter
as a result of the decline in methanol pricing.
<PAGE>
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
a) The following exhibit is filed as part of this Form 10-Q
Quarterly Report.
EXHIBIT NO. DESCRIPTION
10 Credit Agreement dated March 30, 1995
between the Company and The Chase
Manhattan Bank (National Association) as
Administrative Agent
b) No reports on Form 8-K were filed with the Securities and
Exchange Commission during the first quarter of 1995.
<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.
GEORGIA GULF CORPORATION
(Registrant)
Date May 15, 1995 /s/ Jerry R. Satrum
Jerry R. Satrum
President and Chief
Executive Officer
(Principal Executive Officer)
Date May 15, 1995 /s/ Richard B. Marchese
Richard B. Marchese
Vice President - Finance and
Chief Financial Officer
(Principal Financial Officer)<PAGE>
<PAGE>
EXHIBIT 10
[CONFORMED COPY]
************************************************************
GEORGIA GULF CORPORATION
CREDIT AGREEMENT
Dated as of March 30, 1995
$350,000,000
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Administrative Agent
************************************************************
<PAGE>
TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1. Definitions and Accounting Matters . . . . . . . . . . . . .-1-
1.01 Certain Defined Terms. . . . . . . . . . . . . . . . . .-1-
1.02 Accounting Terms and Determinations. . . . . . . . . . -13-
1.03 Classes and Types of Loans . . . . . . . . . . . . . . -14-
Section 2. Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
2.01 Loans. . . . . . . . . . . . . . . . . . . . . . . . . -14-
2.02 Use of Proceeds. . . . . . . . . . . . . . . . . . . . -15-
2.03 Reductions of Commitments. . . . . . . . . . . . . . . -15-
2.04 Fees . . . . . . . . . . . . . . . . . . . . . . . . . -15-
2.05 Lending Offices. . . . . . . . . . . . . . . . . . . . -16-
2.06 Several Obligations. . . . . . . . . . . . . . . . . . -16-
2.07 Notes. . . . . . . . . . . . . . . . . . . . . . . . . -16-
Section 3. Borrowings, Conversions and Prepayments. . . . . . . . . . -17-
3.01 Borrowings . . . . . . . . . . . . . . . . . . . . . . -17-
3.02 Prepayments and Conversions. . . . . . . . . . . . . . -18-
3.03 Money Market Loans . . . . . . . . . . . . . . . . . . -18-
Section 4. Payments of Principal and Interest . . . . . . . . . . . . -22-
4.01 Repayment of Loans . . . . . . . . . . . . . . . . . . -22-
4.02 Interest . . . . . . . . . . . . . . . . . . . . . . . -23-
Section 5. Payments; Pro Rata Treatment; Computations;
Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-
5.01 Payments . . . . . . . . . . . . . . . . . . . . . . . -25-
5.02 Pro Rata Treatment . . . . . . . . . . . . . . . . . . -25-
5.03 Computations . . . . . . . . . . . . . . . . . . . . . -26-
5.04 Minimum and Maximum Amounts; Types . . . . . . . . . . -26-
5.05 Certain Notices. . . . . . . . . . . . . . . . . . . . -26-
5.06 Non-Receipt of Funds by the
Administrative Agent . . . . . . . . . . . . . . . . -27-
5.07 Sharing of Payments, Etc.. . . . . . . . . . . . . . . -28-
Section 6. Yield Protection and Illegality. . . . . . . . . . . . . . -29-
6.01 Additional Costs . . . . . . . . . . . . . . . . . . . -29-
6.02 Limitation on Types of Loans . . . . . . . . . . . . . -31-
6.03 Illegality . . . . . . . . . . . . . . . . . . . . . . -31-
6.04 Substitute Base Rate Loans . . . . . . . . . . . . . . -32-
6.05 Compensation . . . . . . . . . . . . . . . . . . . . . -32-
6.06 Capital Adequacy . . . . . . . . . . . . . . . . . . . -32-
6.07 Substitution of Lender . . . . . . . . . . . . . . . . -33-
Section 7. Conditions Precedent . . . . . . . . . . . . . . . . . . . -33-
7.01 Initial Loans. . . . . . . . . . . . . . . . . . . . . -33-
7.02 Initial and Subsequent Loans . . . . . . . . . . . . . -35-
Section 8. Representations and Warranties . . . . . . . . . . . . . . -35-
8.01 Corporate Existence. . . . . . . . . . . . . . . . . . -35-
8.02 Information. . . . . . . . . . . . . . . . . . . . . . -36-
8.03 Litigation . . . . . . . . . . . . . . . . . . . . . . -37-
8.04 No Breach. . . . . . . . . . . . . . . . . . . . . . . -37-
8.05 Corporate Action . . . . . . . . . . . . . . . . . . . -38-
8.06 Approvals. . . . . . . . . . . . . . . . . . . . . . . -38-
8.07 Regulations U and X. . . . . . . . . . . . . . . . . . -38-
8.08 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . -38-
8.09 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . -38-
8.10 Subsidiaries . . . . . . . . . . . . . . . . . . . . . -39-
8.11 Investment Company Act . . . . . . . . . . . . . . . . -39-
8.12 Public Utility Holding Company Act . . . . . . . . . . -39-
8.13 Ownership and Use of Properties. . . . . . . . . . . . -39-
8.14 Environmental Matters. . . . . . . . . . . . . . . . . -39-
Section 9. Covenants. . . . . . . . . . . . . . . . . . . . . . . . . -40-
9.01 Reports. . . . . . . . . . . . . . . . . . . . . . . . -40-
9.02 Taxes and Claims . . . . . . . . . . . . . . . . . . . -42-
9.03 Insurance. . . . . . . . . . . . . . . . . . . . . . . -43-
9.04 Maintenance of Existence; Conduct of
Business . . . . . . . . . . . . . . . . . . . . . . -43-
9.05 Maintenance of and Access to
Properties . . . . . . . . . . . . . . . . . . . . . -43-
9.06 Compliance with Applicable Laws. . . . . . . . . . . . -43-
9.07 Litigation . . . . . . . . . . . . . . . . . . . . . . -44-
9.08 Leverage Ratio . . . . . . . . . . . . . . . . . . . . -44-
9.09 Interest Coverage Ratio. . . . . . . . . . . . . . . . -44-
9.10 Mergers, Asset Dispositions and
Acquisitions, Etc. . . . . . . . . . . . . . . . . . -44-
9.11 Liens. . . . . . . . . . . . . . . . . . . . . . . . . -46-
9.12 Investments. . . . . . . . . . . . . . . . . . . . . . -46-
9.13 Restricted Payments. . . . . . . . . . . . . . . . . . -46-
9.14 Transactions with Affiliates . . . . . . . . . . . . . -47-
9.15 Lines of Businesses. . . . . . . . . . . . . . . . . . -47-
9.16 Environmental Matters. . . . . . . . . . . . . . . . . -48-
Section 10. Defaults. . . . . . . . . . . . . . . . . . . . . . . . . -48-
10.01 Events of Default . . . . . . . . . . . . . . . . . . -48-
Section 11. The Administrative Agent. . . . . . . . . . . . . . . . . -51-
11.01 Appointment, Powers and Immunities. . . . . . . . . . -51-
11.02 Reliance by Administrative Agent. . . . . . . . . . . -52-
11.03 Defaults. . . . . . . . . . . . . . . . . . . . . . . -52-
11.04 Rights as a Lender. . . . . . . . . . . . . . . . . . -53-
11.05 Indemnification . . . . . . . . . . . . . . . . . . . -53-
11.06 Non-Reliance on Administrative Agent
and Other Lenders. . . . . . . . . . . . . . . . . . -54-
11.07 Failure to Act. . . . . . . . . . . . . . . . . . . . -54-
11.08 Resignation or Removal of
Administrative Agent . . . . . . . . . . . . . . . . -54-
11.09 Consents under Basic Documents. . . . . . . . . . . . -55-
Section 12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . -55-
12.01 Waiver. . . . . . . . . . . . . . . . . . . . . . . . -55-
12.02 Notices . . . . . . . . . . . . . . . . . . . . . . . -56-
12.03 Expenses, Etc.. . . . . . . . . . . . . . . . . . . . -56-
12.04 Indemnification . . . . . . . . . . . . . . . . . . . -56-
12.05 Amendments, Etc.. . . . . . . . . . . . . . . . . . . -57-
12.06 Successors and Assigns. . . . . . . . . . . . . . . . -57-
12.07 Confidentiality . . . . . . . . . . . . . . . . . . . -59-
12.08 Survival. . . . . . . . . . . . . . . . . . . . . . . -59-
12.09 Captions. . . . . . . . . . . . . . . . . . . . . . . -59-
12.10 Counterparts; Integration;
Severability . . . . . . . . . . . . . . . . . . . . -60-
12.11 GOVERNING LAW; SUBMISSION TO
JURISDICTION; WAIVER OF JURY TRIAL . . . . . . . . . -60-
Schedules
SCHEDULE I - Subsidiaries
SCHEDULE II - Information Package
Exhibits
EXHIBIT A - Form of Working Capital Loan Note
EXHIBIT B - Form of Money Market Loan Note
EXHIBIT C - Form of Money Market Quote Request
EXHIBIT D - Form of Money Market Quote
EXHIBIT E - Form of Closing Date Opinion of
Counsel to Company
EXHIBIT F - Form of Closing Date Opinion of
Special New York Counsel to the
Administrative Agent
<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of March 30, 1995 among:
GEORGIA GULF CORPORATION, a corporation duly organized and
validly existing under the laws of the State of Delaware
(together with its successors, the "Company"); each of the
lenders that is a signatory hereto (individually a "Lender"
and, collectively, the "Lenders"); and THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION), as administrative agent for the
Lenders (in such capacity, together with its successors in
such capacity, the "Administrative Agent").
The parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the
following terms shall have the following meanings (all terms
defined in this Section 1.01 or in other provisions of this
Agreement in the singular to have the same meanings when
used in the plural and vice versa):
"Additional Costs" shall have the meaning assigned
to such term in Section 6.01(a).
"Affiliate" shall mean, as to any Person, any
other Person which directly or indirectly controls, or is
under common control with, or is controlled by, such Person
and, if such Person is an individual, any member of the
immediate family (including parents, siblings, spouse,
children, stepchildren, nephews, nieces and grandchildren)
of such individual and any trust whose principal beneficiary
is such individual or one or more members of such immediate
family and any Person who is controlled by any such member
or trust. As used in this definition, "control" (including,
with correlative meanings, "controlled by" and "under common
control with") shall mean possession, directly or
indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of
securities or partnership or other ownership interests, by
contract or otherwise), provided that, in any event, any
Person which owns directly or indirectly more than 10% of
the securities having ordinary voting power for the election
of directors or other governing body of a corporation or
more than 10% of the partnership or other ownership
interests of any other Person (other than as a limited
partner of such other Person) will be deemed to control such
corporation or other Person. Notwithstanding the foregoing,
no individual shall be deemed to be an Affiliate of a
corporation solely by reason of his or her being an officer
or director of such corporation, and no Subsidiary of the
Company shall be deemed to be an Affiliate of the Company or
any other Subsidiary of the Company.
"Agreement" shall mean this Credit Agreement, as
amended from time to time in accordance with the terms
hereof.
"Applicable Lending Office" shall mean, for each
Lender and for each Type of Loan, the Lending Office of such
Lender (or of an affiliate of such Lender) designated for
such Type of Loan below its name on the signature pages
hereof or such other office of such Lender (or of an
affiliate of such Lender) as such Lender may from time to
time specify to the Administrative Agent and the Company as
the office by which its Loans of such Type are to be made
and maintained.
"Applicable Margin" shall mean, with respect to
any Working Capital Loan and during any Performance Period
(or portion thereof), the percentage indicated below
opposite the Applicable Pricing Ratio for such Performance
Period (or portion thereof) (determined as a function of the
Type of such Loan):
Applicable Pricing Ratio Base Rate Loans Eurodollar Loans
Greater than 2.00:1.00 0.0% 0.375%
Greater than 0.75:1 but less
than or equal to 2.00:1.00 0.0% 0.275%
Less than or equal to
0.75:1.00 0.0% 0.250%
"Applicable Pricing Ratio" shall mean, for any
Performance Period the ratio of (x) Indebtedness of the
Company and its consolidated subsidiaries, determined on a
consolidated basis as at the end of the fiscal quarter (the
"statement quarter") to which the financial statements
received by the Administrative Agent on the first day of
such Performance Period (or in the case of the first
Performance Period, most recently received prior to the
Closing Date) relate, to (y) Cash Flow for the period of
four fiscal quarters ending at the end of the statement
quarter, as set forth in a certificate of the chief
financial officer or corporate controller of the Company
delivered to the Administrative Agent on the first day of
such Performance Period, provided that the Applicable
Pricing Ratio for any portion of any Performance Period that
occurs on or after the 45th day following the end of the
fiscal quarter of the Company during which such Performance
Period commenced shall be deemed to be greater than
2.00:1.00.
"Bankruptcy Code" shall mean the United States
Bankruptcy Code, as now or hereafter in effect, or any
successor statute.
"Base Rate" shall mean, with respect to any Base
Rate Loan for any day, the rate per annum equal to the
higher as of such day of (i) the Federal Funds Rate plus 1/2
of 1% or (ii) the Prime Rate.
"Base Rate Loans" shall mean Loans which bear
interest at a rate based upon the Base Rate.
"Basic Documents" shall mean this Agreement and
the Notes.
"Business Day" shall mean any day other than a day
on which commercial banks are authorized or required to
close in New York City and, where such term is used in the
definition of "Quarterly Date" in this Section 1.01 or if
such day relates to the giving of notices or quotes in
connection with a LIBOR Auction, a borrowing of, a payment
or prepayment of principal of or interest on, a conversion
of or into, or an Interest Period for, a Eurodollar Loan or
a LIBOR Market Loan or a notice by the Company with respect
to any such borrowing, payment, prepayment, conversion or
Interest Period, which is also a day on which dealings in
Dollar deposits are carried out in the London interbank
market.
"Capital Lease Obligations" shall mean, as to any
Person, the obligations of such Person to pay rent or other
amounts under a lease of (or other agreement conveying the
right to use) real and/or personal property which obliga-
tions are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP
(including Statement of Financial Accounting Standards No.
13 of the Financial Accounting Standards Board) and, for
purposes of this Agreement, the amount of such obligations
shall be the capitalized amount thereof, determined in
accordance with GAAP (including such Statement No. 13).
"Cash Flow" shall mean, for any period, the sum
(without duplication), determined on a consolidated basis
for the Company and its Subsidiaries, of (i) net operating
income of the Company and its Subsidiaries (calculated
before provision for income taxes, interest expense,
extraordinary items and income attributable to equity in
Affiliates) for such period plus (ii) depreciation,
amortization and other non-cash items (to the extent
deducted in determining operating income) for such period
plus (iii) accrued interest income (to the extent not
included in determining operating income) for such period.
"Chase" shall mean The Chase Manhattan Bank
(National Association) and its successors.
"Closing Date" shall mean the date of the initial
Loans made hereunder.
"Code" shall mean the Internal Revenue Code of
1986, as amended, or any successor statute.
"Controlled Group" shall mean 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 as a
single employer under Section 414 of the Code.
"Default" shall mean an Event of Default or an
event which with notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Dollars" and "$" shall mean lawful money of the
United States of America.
"Environmental Laws" shall mean any and all
federal, state, local and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees,
codes, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements or other governmental
restrictions relating to the environment or the release of
any materials into the environment.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"Eurodollar Base Rate" shall mean, with respect to
any Eurodollar Loans and LIBOR Market Loans, the rate per
annum determined on the basis of the offered rate for
deposits in Dollars offered for a period comparable to the
Interest Period for such Loans, which appears on the display
page designated as "LIBO Page" on the Reuter Monitor Money
Rates Service (or such other page as may replace LIBO Page
on that service) as of 11:00 A.M., London time, two Business
Days prior to the first day of such Interest Period,
provided that (i) if more than one such offered rate appears
on such page, the "Eurodollar Base Rate" will be the
arithmetic mean (rounded upward, if necessary, to the next
higher 1/100th of 1%) of such offered rates; and (ii) if no
such offered rates appear on such page, the "Eurodollar Base
Rate" for such Interest Period will be the arithmetic mean
(rounded upward, if necessary, to the next higher 1/100th of
1%) of rates quoted by not less than two major banks in New
York City, selected by the Administrative Agent, at
approximately 10:00 A.M., New York City time, two Business
Days prior to the first day of such Interest Period, for
deposits in Dollars offered to leading European banks for a
period comparable to such Interest Period in an amount
comparable to, in the case of Eurodollar Loans, the
principal amount of the Eurodollar Loan of Chase having such
Interest Period or, in the case of LIBOR Market Loans,
Chase's Working Capital Commitment Percentage of the LIBOR
Market Loans having such Interest Period.
"Eurodollar Loans" shall mean Working Capital
Loans the interest on which is determined on the basis of
rates referred to in the definition of "Eurodollar Base
Rate" in this Section 1.01.
"Eurodollar Rate" shall mean, for any Eurodollar
Loans and any LIBOR Market Loans, a rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) deter-
mined by the Administrative Agent to be equal to (i) the
Eurodollar Base Rate for such Loans for the Interest Period
for such Loans divided by (ii) 1 minus the Eurodollar
Reserve Requirement for such Loans for such Interest Period.
"Eurodollar Reserve Requirement" shall mean, for
any Eurodollar Loans and any LIBOR Market Loans for any
Interest Period therefor, the average maximum rate at which
reserves (including any marginal, supplemental or emergency
reserves) are required to be maintained during such Interest
Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding one
billion Dollars against "Eurocurrency liabilities" (as such
term is used in Regulation D). Without limiting the effect
of the foregoing, the Eurodollar Reserve Requirement shall
reflect any other reserves required to be maintained by such
member banks by reason of any Regulatory Change against
(i) any category of liabilities which includes deposits by
reference to which the Eurodollar Rate is to be determined
as provided in the definition of "Eurodollar Base Rate" in
this Section 1.01 or (ii) any category of extensions of
credit or other assets which include Eurodollar Loans or
LIBOR Market Loans.
"Event of Default" shall have the meaning assigned
to such term in Section 10.01 hereof.
"Existing Credit Agreement" shall mean the Credit
Agreement dated as of April 27, 1994 among the Company, the
lenders listed on the signature pages thereof and The Chase
Manhattan Bank (National Association), as administrative
agent for such lenders.
"Federal Funds Rate" shall mean, for any day, the
rate per annum (rounded upwards, 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 Business Day next succeeding such
day, provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the
average rate charged to Chase on such day on such
transactions as determined by the Administrative Agent.
"Fixed Rate Loans" shall mean Eurodollar Loans
and, for the purposes of Section 6 hereof only, LIBOR Market
Loans.
"GAAP" shall mean generally accepted accounting
principles as in effect from time to time consistently
applied.
"Gallman Indebtedness" shall mean all liabilities
and obligations of the Company in respect of $17,000,000 in
aggregate principal amount of industrial development revenue
bonds issued or to be issued by the Mississippi Business
Finance Corporation, the proceeds of which are to be used to
finance the planned expansion and improvements at the
Company's Gallman, Mississippi facility, including, without
limitation, reimbursement obligations and obligations in
respect of letters of credit issued in connection therewith,
which liabilities and obligations of the Company will be
secured only by the Company's existing and future real and
personal property located at its Gallman, Mississippi
facility.
"Guaranty" by any Person means any obligation,
contingent or otherwise, of such Person directly or
indirectly guaranteeing any Indebtedness 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 Indebtedness
(whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securi-
ties or services, to take-or-pay, or to maintain financial
statement conditions or otherwise, other than agreements to
purchase goods at an arm's length price in the ordinary
course of business) or (ii) entered into for the purpose of
assuring in any other manner the holder of such Indebtedness
of the payment thereof or to protect such holder 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.
"Hazardous Substances" shall have the meaning set
forth in 42 U.S.C. Section 9601(14).
"Incentive Equity Plan" means the Company's 1990
Incentive Equity Plan, as the same shall be modified and
supplemented and in effect from time to time.
"Indebtedness" shall mean, as to any Person
(determined without duplication): (i) indebtedness of such
Person for borrowed money (whether by loan or the issuance
and sale of debt securities) or for the deferred purchase or
acquisition price of property or services, other than
accounts payable (other than for borrowed money) incurred in
the ordinary course of business; (ii) obligations of such
Person in respect of letters of credit or similar instru-
ments issued or accepted by banks and other financial insti-
tutions for the account of such Person; (iii) Capital Lease
Obligations of such Person; (iv) obligations of such Person
to redeem or otherwise retire shares of capital stock of
such Person or, in the case of the Company, any such obliga-
tion to redeem or retire shares of capital stock of the Com-
pany prior to November 15, 2000 (other than any such obli-
gation the payment of which would constitute a Restricted
Payment permitted by Section 9.13); (v) indebtedness of
others of the type described in clause (i), (ii), (iii) or
(iv) above secured by a Lien on the property of such Person,
whether or not the respective obligation so secured has been
assumed by such Person; (vi) indebtedness of others of the
type described in clause (i), (ii), (iii) or (iv) above
Guaranteed by such Person and (vii) deferred insurance
premiums.
"Interest Expense" shall mean, for any period, the
sum (determined without duplication) of the aggregate amount
of interest accruing during such period on Indebtedness of
the Company and its Subsidiaries (on a consolidated basis),
plus the interest portion of payments under Capital Lease
Obligations and any capitalized interest, and minus
amortization of debt discount and expense.
"Interest Period" shall mean, (1) with respect to
any Eurodollar Loans, the period commencing on the date such
Loans are made or converted from other Types of Loans or the
last day of the next preceding Interest Period with respect
to such Loans and ending on the numerically corresponding
day in the first, third or sixth (or, subject to the
availability of deposits of the corresponding maturity to
each of the Lenders in the London interbank market, second
or twelfth) calendar month thereafter, as the Company may
select as provided in Section 5.05 hereof, except that each
such Interest Period which commences on the last Business
Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month;
(2) with respect to any Set Rate Loan, the period
commencing on the date such Set Rate Loan is made and ending
on any Business Day up to 360 days, but at least 7 days,
thereafter, as the Company may select as provided in Section
3.03(a) hereof; and
(3) with respect to any LIBOR Market Loan, the
period commencing on the date such LIBOR Market Loan is made
and ending on the numerically corresponding day in the
first, second, third, sixth or twelfth calendar month
thereafter, as the Company may select as provided in Section
3.03(a) hereof, except that each Interest Period which
commences on the last Business Day of a calendar month (or
any day for which there is no numerically corresponding day
in the appropriate subsequent calendar month) shall end on
the last Business Day of the appropriate subsequent calendar
month.
Notwithstanding the foregoing: (i) each Interest Period
which would otherwise end on a day which is not a Business
Day shall end on the next succeeding Business Day (or, in
the case of an Interest Period for Eurodollar Loans or LIBOR
Market Loans, if such next succeeding Business Day falls in
the next succeeding calendar month, on the next preceding
Business Day); and (ii) no Interest Period for any
Eurodollar Rate Loans or LIBOR Market Loans shall have a
duration of less than one month and, if the Interest Period
for any such Loans would otherwise be a shorter period, such
Loans shall not be available hereunder.
"Investments" shall have the meaning assigned to
such term in Section 9.12 hereof.
"Lender" and "Lenders" shall each have the meaning
assigned to such terms in the preamble hereto.
"LIBOR Auction" shall mean a solicitation of Money
Market Quotes setting forth Money Market Margins based on
the Eurodollar Rate pursuant to Section 3.03 hereof.
"LIBOR Market Loans" shall mean Money Market
Loans, the interest rates on which are determined on the
basis of Eurodollar Rates pursuant to a LIBOR Auction.
"Lien" shall mean, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or encum-
brance of any kind in respect of such asset. For the pur-
poses of this Agreement, the Company and each of its Subsi-
diaries 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.
"Liquid Investments" shall mean (i) time deposits
(including certificates of deposit) maturing within 90 days
of the acquisition thereof denominated in Dollars and issued
by (X) a Lender or (Y) a bank or trust company having
combined capital and surplus of at least $500,000,000 and
which has (or which is a Subsidiary of a bank holding
company which has) publicly traded debt securities rated AA
or higher by Standard & Poor's Corporation or Aa-2 or higher
by Moody's Investors Service, Inc.; (ii) obligations issued
or guaranteed by the United States of America, with
maturities not more than one year after the date of issue;
and (iii) commercial paper with maturities of not more than
90 days and a published rating of not less than A-2 and P-2
(or the equivalent rating).
"Loans" shall mean Money Market Loans and Working
Capital Loans.
"Majority Lenders" shall mean, at any time while
no Working Capital Loans are outstanding, Lenders having at
least 51% of the aggregate amount of the Working Capital
Commitments and, at any time while Working Capital Loans are
outstanding, Lenders holding at least 51% of the outstanding
aggregate principal amount of Working Capital Loans.
"Money Market Loan Notes" shall mean the
promissory notes of the Company evidencing the Money Market
Loans, substantially in the form of Exhibit B hereto.
"Money Market Loans" shall mean the loans provided
for by Section 3.03 hereof.
"Money Market Margin" shall have the meaning
assigned to such term in Section 3.03(b)(ii)(C) hereof.
"Money Market Quote" shall mean an offer in
accordance with Section 3.03(b) hereof by a Lender to make a
Money Market Loan with one single specified interest rate.
"Money Market Quote Request" shall have the
meaning assigned to such term in Section 3.03(a) hereof.
"Money Market Rate" shall have the meaning
assigned to such term in Section 3.03(b)(ii)(D) hereof.
"Notes" shall mean the Working Capital Loan Notes
and the Money Market Loan Notes.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.
"Performance Period" shall mean each of the
periods commencing on a day that a complete set of all
financial statements required to be delivered to the
Administrative Agent under Section 9.01(b) is received by it
and ending on a day immediately preceding the day on which
the next subsequent complete set of all the financial
statements required to be delivered to the Administrative
Agent under Section 9.01(b) is received by it; provided that
the first Performance Period shall commence on the Closing
Date and be based on the financial statements for December
31, 1994.
"Person" shall mean an individual, a corporation,
a company, a voluntary association, a partnership, a trust,
an unincorporated organization or a government or any
agency, instrumentality or political subdivision thereof.
"Plan" shall mean an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and
is either (a) maintained by the Company or any member of the
Controlled Group for employees of the Company or any member
of the Controlled Group or (b) maintained pursuant to a
collective bargaining agreement or any other arrangement
under which more than one employer makes contributions and
to which the Company or any member of the Controlled Group
is then making or accruing an obligation to make contribu-
tions or has within the preceding five plan years made contributions.
"Post-Default Rate" shall mean, in respect of any
principal of any Loan or any other amount payable by the
Company under this Agreement which is not paid when due
(whether at stated maturity, by acceleration or otherwise),
a rate per annum during the period commencing on the due
date until such amount is paid in full equal to the sum of
2% plus the Base Rate as in effect from time to time plus
the Applicable Margin for Base Rate Loans.
"Prime Rate" shall mean the rate of interest from
time to time announced by Chase at the Principal Office as
its prime commercial lending rate. Each change in the
interest rate provided for herein resulting from a change in
the Prime Rate shall take effect at the time of such change
in the Prime Rate.
"Principal Office" shall mean the principal office
of Chase, presently located at 1 Chase Manhattan Plaza, New
York, New York 10081.
"Quarterly Dates" shall mean the last Business Day
of each January, April, July and October.
"Regulation D" shall mean Regulation D of the
Board of Governors of the Federal Reserve System as the same
may be amended or supplemented from time to time.
"Regulatory Change" shall mean, with respect to
any Lender, any change on or after the date of this
Agreement in United States federal, state or foreign laws or
regulations (including Regulation D) or the adoption or
making on or after such date of any interpretations,
directives or requests applying to a class of lenders
including such Lender of or under any United States federal
or state, or any foreign, laws or regulations (whether or
not having the force of law) by any court or governmental or
monetary authority charged with the interpretation or
administration thereof.
"Release" shall have the meaning set forth in 42
U.S.C. Section 9601(22), but shall not include any
"federally permitted release" as defined in 42 U.S.C.
Section 9601(10). The term "Released" shall have a
corresponding meaning.
"Restricted Payment" shall mean dividends (in
cash, property or obligations) on, or other payments or
distributions on account of, or the setting apart of money
for a sinking or other analogous fund for the purchase,
redemption, retirement or other acquisition of, any shares
of any class of capital stock of the Company, or the
exchange or conversion of any shares of any class of capital
stock of the Company for or into any obligations of or
shares of any other class of capital stock of the Company or
any other property, but excluding dividends payable solely
in, or exchanges or conversions for or into, shares of
common stock of the Company.
"Set Rate Auction" shall mean a solicitation of
Money Market Quotes setting forth Money Market Rates
pursuant to Section 3.03 hereof.
"Set Rate Loans" shall mean Money Market Loans the
interest rates on which are determined on the basis of Money
Market Rates pursuant to a Set Rate Auction.
"Subsidiary" shall mean, with respect to any
Person, any corporation of which at least a majority of the
outstanding shares of stock having by the terms thereof
ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether or
not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time directly
or indirectly owned or controlled by such Person or one or
more of the Subsidiaries of such Person or by such Person
and one or more of the Subsidiaries of such Person; provided
that Systronics, Inc. shall not be deemed to be a Subsidiary
of the Company for purposes hereof.
"Type" shall have the meaning assigned to such
term in Section 1.03 hereof.
"Unfunded Liabilities" shall mean, with respect to
any Plan, at any time, the amount (if any) by which (a) the
present value of all benefits under such Plan exceeds
(b) the fair market value of all Plan assets allocable to
such benefits, 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 the Company
or any member of the Controlled Group to the PBGC or such
Plan under Title IV of ERISA.
"Wholly-Owned Subsidiary" shall mean a Subsidiary
of the Company all of whose outstanding shares of capital
stock (except directors' qualifying shares) are directly or
indirectly owned by the Company.
"Working Capital Availability Period" shall mean
the period from and including the date hereof to but not
including March 30, 2000.
"Working Capital Commitment" shall mean, as to any
Lender, the obligation of such Lender to make Working
Capital Loans in an aggregate principal amount at any one
time outstanding up to but not exceeding the amount set
forth opposite such Lender's name on the signature pages
hereto under the caption "Working Capital Commitment" (as
the same may be reduced from time to time pursuant to
Section 2.03 hereof).
"Working Capital Commitment Percentage" shall
mean, as to any Lender, the percentage equivalent of a
fraction the numerator of which is the Working Capital
Commitment of such Lender and the denominator of which is
the aggregate amount of the Working Capital Commitments of
all Lenders.
"Working Capital Loan" shall mean, as to any
Lender, any loan made by such Lender pursuant to Section
2.01(a) hereof.
"Working Capital Loan Notes" shall mean the
promissory notes of the Company evidencing the Working
Capital Loans, substantially in the form of Exhibit A
hereto.
"Working Capital Obligations" shall mean, as at
any date of determination thereof, the sum of the following
(determined without duplication): (i) the aggregate
principal amount of Working Capital Loans outstanding
hereunder plus (ii) the aggregate principal amount of Money
Market Loans outstanding hereunder.
1.02 Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein
shall be interpreted, all determinations with respect to
accounting matters hereunder shall be made, and all
financial statements and certificates and reports as to
financial matters required to be delivered hereunder shall
be prepared, in accordance with GAAP; provided that if any
change in GAAP in itself materially affects the calculation
of any financial covenant in Section 9, the Company may by
notice to the Administrative Agent, or the Administrative
Agent (at the request of the Majority Lenders) may by notice
to the Company, require that such covenant thereafter be
calculated in accordance with GAAP as in effect, and applied
by the Company, immediately before such change in GAAP
occurs. If such notice is given, the compliance
certificates delivered pursuant to Section 9.01 after such
change occurs shall be accompanied by reconciliations of the
difference between the calculation set forth therein and a
calculation made in accordance with GAAP as in effect from
time to time after such change occurs. To enable the ready
determination of compliance with the covenants set forth in
Section 9 hereof, the Company will not change from December
31 in each year the date on which its fiscal year ends, nor
from March 31, June 30 and September 30 the dates on which
the first three fiscal quarters in each fiscal year end.
1.03 Classes and Types of Loans. Loans hereunder
are classified as either Working Capital Loans or Money
Market Loans by reference to the provisions hereof under
which participation in the related borrowings are determined
(i.e., a "Working Capital Loan" is included in a borrowing
in which all Lenders participate and a "Money Market Loan"
is included in a borrowing in which the Lender participants
are determined on the basis of their bids in accordance with
Section 3.03). Working Capital Loans and Money Market Loans
are divided into "Types". The "Type" of a Working Capital
Loan refers to the determination whether such Loan is a
Eurodollar Loan or a Base Rate Loan. The "Type" of Money
Market Loan refers to the determination whether such Loan is
a Set Rate Loan or a LIBOR Market Loan. Working Capital
Loans and Money Market Loans are sometimes identified by
Type (e.g., a "Eurodollar Working Capital Loan" indicates
that such Loan is both a Eurodollar Loan and a Working
Capital Loan).
Section 2. Loans.
2.01 Loans.
(a) Working Capital Loans. Each Lender severally
agrees that, from time to time during the Working Capital
Availability Period, it shall make, subject to the terms of
this Agreement, loans to the Company in an aggregate
principal amount at any one time outstanding which, together
with an amount equal to the product of (x) its Working
Capital Commitment Percentage times (y) all Money Market
Loans shall not exceed its Working Capital Commitment, as
reduced from time to time pursuant to Section 2.03 hereof;
provided that the aggregate amount of all Working Capital
Obligations shall not at any time exceed the aggregate of
the Working Capital Commitments as reduced from time to time
pursuant to Section 2.03 hereof.
(b) Money Market Loans. In addition to Working
Capital Loans, the Company may from time to time during the
Working Capital Availability Period request the Lenders to
make offers to make Money Market Loans to the Company as set
forth in Section 3.03. The Lenders may, but shall have no
obligation to, make such offers and the Company may, but
shall have no obligation to, accept any such offers;
provided that the aggregate principal amount of all Working
Capital Obligations shall not at any time exceed the
aggregate amount of the Working Capital Commitments as
reduced from time to time pursuant to Section 2.03 hereof.
2.02 Use of Proceeds. Proceeds of the Loans
shall be used by the Company for working capital purposes
and any other corporate purposes not prohibited by this
Agreement, including the repayment of amounts outstanding
under the Existing Credit Agreement and the repayment of the
Company's 15% Senior Subordinated Notes due April 15, 2000.
None of such proceeds shall 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 or X of the Board of Governors of the
Federal Reserve System).
2.03 Reductions of Commitments.
(a) Mandatory. The Working Capital Commitments
shall terminate on the last day of the Working Capital
Availability Period.
(b) Optional. The Company shall have the right
to terminate or reduce the Working Capital Commitments at
any time or from time to time, provided that: (i) the
Company shall give notice of each such termination or
reduction to the Administrative Agent as provided in Section
5.05 hereof and (ii) each partial reduction shall be in an
aggregate amount at least equal to $5,000,000 (or in larger
multiples of $1,000,000).
(c) No Reinstatement. Commitments once
terminated or reduced may not be reinstated.
2.04 Fees.
(a) Facility Fee. The Company shall pay to the
Administrative Agent for the account of the Lenders ratably
a facility fee for each day at a per annum rate equal to the
Facility Fee Rate for such day. Such facility fee shall
accrue from and including the Closing Date to but excluding
the date on which the Working Capital Commitments are
terminated in their entirety, on the aggregate amount of the
Working Capital Commitments (whether used or unused) in
effect on each day during such period. Accrued facility
fees shall be payable on the Quarterly Dates and on the date
on which the Working Capital Commitments are terminated in
their entirety.
The "Facility Fee Rate" shall mean for any day
during any Performance Period, (i) 0.25% if the Applicable
Pricing Ratio for such Performance Period is greater than
2.00 to 1.00, (ii) 0.125% if the Applicable Pricing Ratio
for such Performance Period is greater than 0.75 to 1.00 but
less than or equal to 2.00 to 1.00 or (iii) 0.10% if the
Applicable Pricing Ratio for such Performance Period is less
than or equal to 0.75 to 1.00.
(b) Administration Fee. The Company shall pay to
the Administrative Agent on each anniversary of the Closing
Date, so long as any of the Working Capital Commitments are
in effect and until payment in full of all Loans hereunder
and payment in full of all interest thereon and all other
amounts payable hereunder, an annual administration fee in
the amount set forth in the letter agreement (the "Fee
Letter") dated as of March 21, 1995 between the Company and
the Administrative Agent or as otherwise from time to time
agreed between the Company and the Administrative Agent.
The Company shall also pay to the Administrative Agent fees
in connection with each Money Market Quote Request at the
time and in the amount set forth in the Fee Letter or as
otherwise from time to time agreed between the Company and
the Administrative Agent.
2.05 Lending Offices. The Loans of each Type
made by each Lender shall be made and maintained at such
Lender's Applicable Lending Office for Loans of such Type.
2.06 Several Obligations. The failure of any
Lender to make any Loan to be made by it on the date
specified therefor shall not relieve any other Lender of its
obligation to make its Loan on such date, but neither the
Administrative Agent nor any Lender shall be responsible for
the failure of any other Lender to make a Loan to be made by
such other Lender.
2.07 Notes.
(a) Working Capital Loans. The Working Capital
Loans made by each Lender shall be evidenced by a single
Working Capital Loan Note of the Company in substantially
the form of Exhibit A hereto, dated the date of this
Agreement, payable to the order of such Lender and otherwise
duly completed.
(b) Money Market Loans. The Money Market Loans
made by any Lender shall be evidenced by a single promissory
note of the Company in substantially the form of Exhibit B
hereto, dated the date of the delivery of such Note to the
Administrative Agent under this Agreement, payable to the
order of such Lender and otherwise duly completed.
(c) Note Schedules. Each Lender is hereby
authorized by the Company to endorse on the schedule (or a
continuation thereof) attached to each Note of such Lender,
to the extent applicable, the date, amount, interest rate,
Type of and the Interest Period (if any) for each Loan made
by such Lender to the Company hereunder and evidenced by
such Note, and the date and amount of each payment or
prepayment of principal of such Loan received by such
Lender; provided that any failure by such Lender to make any
such endorsement shall not affect the obligations of the
Company under such Note or hereunder in respect of such
Loan.
Section 3. Borrowings, Conversions and
Prepayments.
3.01 Borrowings.
(a) Working Capital Loans. The Company shall
give the Administrative Agent notice of each borrowing of
Working Capital Loans to be made hereunder as provided in
Section 5.05 hereof. Not later than 11:00 a.m. New York
time on the date specified for each such borrowing here-
under, each Lender shall make available the amount of the
Loan to be made by it on such date to the Administrative
Agent, at the Principal Office, in immediately available
funds, for the account of the Company. The amount so
received by the Administrative Agent shall, subject to the
terms and conditions of this Agreement, be made available to
the Company by depositing the same, in immediately available
funds, in an account designated by the Company maintained
with the Administrative Agent at the Principal Office.
(b) Money Market Loans. Requests by the Company
of offers to make Money Market Loans shall be made as
provided in Section 3.03.
3.02 Prepayments and Conversions.
(a) Optional Prepayments and Conversions. The
Company shall have the right to prepay Working Capital Loans
and to convert Working Capital Loans of one Type into
Working Capital Loans of a different Type, at any time or
from time to time, provided that the Company shall give the
Administrative Agent notice of each such prepayment as
provided in Section 5.05 hereof. The Company may not prepay
Money Market Loans or convert Money Market Loans from one
Type to a different Type, except that the Company may prepay
Money Market Loans to the extent required pursuant to
Section 3.02(b) hereof.
(b) Mandatory Prepayments. On the date of each
reduction of Working Capital Commitments pursuant to Section
2.03(b), the Company shall prepay Loans, together with
accrued interest on the principal amount prepaid, to the
extent (if any) required so that the aggregate principal
amount of Loans outstanding immediately after such
prepayment will not exceed the aggregate amount of the
Working Capital Commitments after giving effect to such
reduction. Any prepayment pursuant to this subsection (b)
shall be applied, first, to Working Capital Loans and
second, to Money Market Loans, pro rata.
3.03 Money Market Loans.
(a) When, pursuant to Section 2.01(b), the
Company wishes to request offers to make Money Market Loans,
it shall give the Administrative Agent (which shall promptly
notify the Lenders) notice (a "Money Market Quote Request")
no later than 11:00 a.m. New York time on (x) the fourth
Business Day prior to the date of borrowing proposed
therein, in the case of a LIBOR Auction or (y) the Business
Day next preceding the date of borrowing proposed therein,
in the case of a Set Rate Auction (or, in any such case,
such other time and date as the Company and the
Administrative Agent, with the consent of Majority Lenders,
may agree). The Company may request offers to make Money
Market Loans for up to three different Interest Periods in a
single notice (for which purpose Interest Periods in
different numbered clauses of the definition of the term
"Interest Period" shall be deemed to be different Interest
Periods even if they are coterminous); provided that the
request for each separate Interest Period shall be deemed to
be a separate Money Market Quote Request for a separate
borrowing (but for purposes of determining any
administrative agency fees payable to the Administrative
Agent in respect of same, such a request shall be deemed to
be a request for only one Money Market borrowing). Each
such notice shall be substantially in the form of Exhibit C
hereto and shall specify as to each Money Market borrowing:
(i) the proposed date of such borrowing, which
shall be a Business Day;
(ii) the aggregate amount of such borrowing, which
shall be at least $5,000,000 (or in larger multiples of
$1,000,000) but shall not cause the limits specified in
Section 2.01(b) hereof to be violated;
(iii) the duration of the Interest Period
applicable thereto;
(iv) whether the Money Market Quotes requested are
to set forth a Money Market Margin or a Money Market
Rate; and
(v) if the Money Market Quotes requested are to
set forth a Money Market Rate, the date on which the
Money Market Quotes are to be submitted if it is before
the proposed date of borrowing (the date on which such
Money Market Quotes are to be submitted is called the
"Quotation Date").
Except as otherwise provided in this Section 3.03(a), no
Money Market Quote Request shall be given within five
Business Days (or such other number of days as the Company
and the Administrative Agent, with the consent of the
Majority Lenders, may agree) of any other Money Market Quote
Request.
(b) (i) Each Lender may submit one or more Money
Market Quotes, each containing an offer to make a Money
Market Loan in response to any Money Market Quote Request;
provided that, if the Company's request under Section
3.03(a) hereof specifies more than one Interest Period, such
Lender may make a single submission containing one or more
Money Market Quotes for each such Interest Period. Each
Money Market Quote must be submitted to the Administrative
Agent not later than (x) 2:00 p.m. New York time on the
fourth Business Day prior to the proposed date of borrowing,
in the case of a LIBOR Auction or (y) 10:00 a.m. New York
time on the Quotation Date, in the case of a Set Rate
Auction (or, in any such case, such other time and date as
the Company and the Administrative Agent, with the consent
of the Majority Lenders, may agree); provided that any Money
Market Quote submitted by Chase (or its Applicable Lending
Office) may be submitted, and may only be submitted, if
Chase (or such Applicable Lending Office) notifies the
Company of the terms of the offer contained therein not
later than (x) 1:00 p.m. New York time on the fourth
Business Day prior to the proposed date of borrowing, in the
case of a LIBOR Auction or (y) 9:45 a.m. New York time on
the Quotation Date, in the case of a Set Rate Auction.
Subject to Sections 6.02(b), 6.03, 7 and 10 hereof, any
Money Market Quote so made shall be irrevocable except with
the written consent of the Administrative Agent given on the
written instructions of the Company.
(ii) Each Money Market Quote shall be
substantially in the form of Exhibit D hereto and shall
specify:
(A) the proposed date of borrowing and the
Interest Period therefor;
(B) the principal amount of the Money Market
Loan for which each such offer is being made,
which principal amount shall be at least
$5,000,000 or a larger multiple of $1,000,000;
provided that the aggregate principal amount of
all Money Market Loans for which a Lender submits
Money Market Quotes (x) may be greater or less
than the Working Capital Commitment of such Lender
but (y) may not exceed the principal amount of the
borrowing for which offers were requested;
(C) in the case of a LIBOR Auction, the
margin above or below the applicable Eurodollar
Rate (the "Money Market Margin") offered for each
such Money Market Loan, expressed as a percentage
(rounded upwards, if necessary, to the nearest
1/10,000th of 1%) to be added to or subtracted
from the applicable Eurodollar Rate;
(D) in the case of a Set Rate Auction, the
rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/10,000th of 1%)
offered for each such Money Market Loan (the
"Money Market Rate"); and
(E) the identity of the quoting Lender.
Unless otherwise agreed by the Administrative Agent and the
Company, no Money Market Quote shall contain qualifying,
conditional or similar language or propose terms other than
or in addition to those set forth in the applicable Money
Market Quote Request and, in particular, no Money Market
Quote may be conditioned upon acceptance by the Company of
all (or some specified minimum) of the principal amount of
the Money Market Loan for which such Money Market Quote is
being made.
(c) The Administrative Agent shall (x) in the
case of a Set Rate Auction, as promptly as practicable after
the Money Market Quote is submitted (but in any event not
later than 10:15 a.m. New York time) or (y) in the case of a
LIBOR Auction, by 4:00 p.m. New York time on the day a Money
Market Quote is submitted, notify the Company of the terms
(i) of any Money Market Quote submitted by a Lender that is
in accordance with Section 3.03(b) hereof and (ii) of any
Money Market Quote that amends, modifies or is otherwise
inconsistent with a previous Money Market Quote submitted by
such Lender 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 Company shall specify
(A) the aggregate principal amount and Interest Period of
each Money Market borrowing for which offers have been
received and (B) the respective principal amounts and Money
Market Margins or Money Market Rates, as the case may be, so
offered by each Lender (identifying the Lender that made
each Money Market Quote).
(d) Not later than 11:00 a.m. New York time on
(x) the third Business Day prior to the proposed date of
borrowing, in the case of a LIBOR Auction or (y) the
Quotation Date, in the case of a Set Rate Auction (or, in
any such case, such other time and date as the Company and
the Administrative Agent, with the consent of the Majority
Lenders, may agree), the Company shall notify the
Administrative Agent of its acceptance or nonacceptance of
the offers so notified to it pursuant to Section 3.03(c)
hereof (and the failure of the Company to give such notice
by such time shall constitute nonacceptance) and the
Administrative Agent shall promptly notify each affected
Lender. In the case of acceptance, such notice shall
specify the aggregate principal amount of offers for each
Interest Period that are accepted. The Company may accept
any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of Money
Market Loans borrowed may not exceed the applicable
amount set forth in the related Money Market Quote
Request;
(ii) the aggregate principal amount of each Money
Market borrowing shall be at least $5,000,000 (or in
larger multiples of $1,000,000) but shall not cause the
limits specified in Section 2.01(b) hereof to be
violated;
(iii) acceptance of offers may be made only in
ascending order of Money Market Margins or Money Market
Rates, as the case may be;
(iv) the Company may not accept any offer where
the Administrative Agent has advised the Company that
such offer fails to comply with Section 3.03(b)(ii)
hereof or otherwise fails to comply with the
requirements of this Agreement (including, without
limitation, Section 2.01(b) hereof); and
(v) any Money Market Quote accepted in part
shall be at least $5,000,000 or in larger multi-
ples of $1,000,000, except that if offers are made
by two or more Lenders with the same Money Market
Margins or Money Market Rates, as the case may be,
for a greater aggregate principal amount than the
amount in respect of which 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
Company among such Lenders as nearly as possible
(in multiples of $1,000,000) in proportion to the
aggregate principal amount of such offers.
Determinations by the Company of the amounts of Money Market
Loans shall be conclusive in the absence of manifest error.
(e) Any Lender whose offer to make any Money
Market Loan has been accepted shall, not later than 1:00
p.m. New York time on the date specified for the making of
such Loan, make the amount of such Loan available to the
Administrative Agent at the Principal Office in immediately
available funds, for account of the Company. The amount so
received by the Administrative Agent shall, subject to the
terms and conditions of this Agreement, be made available to
the Company on such date by depositing the same, in
immediately available funds, in an account of the Company
maintained with Chase at the Principal Office designated by
the Company.
Section 4. Payments of Principal and Interest.
4.01 Repayment of Loans.
(a) The Working Capital Loans shall mature on the
last day of the Working Capital Availability Period.
(b) The Money Market Loans shall mature on the
last day of the Interest Period applicable thereto.
4.02 Interest. The Company will pay to the
Administrative Agent for the account of each Lender interest
on the unpaid principal amount of each Loan made by such
Lender for the period commencing on the date of such Loan to
but excluding the date such Loan shall be paid in full, at
the following rates per annum:
(a) if such Loan is a Base Rate Loan, the Base
Rate plus the Applicable Margin;
(b) if such Loan is a Eurodollar Loan, the
Eurodollar Rate plus the Applicable Margin;
(c) if such Loan is a LIBOR Market Loan, the
Eurodollar Rate plus (or minus) the Money Market Margin
quoted by the Lender making such Loan in accordance
with Section 3.03 hereof; and
(d) if such Loan is a Set Rate Loan, the Money
Market Rate for such Loan for the Interest Period
therefor quoted by the Lender making such Loan in
accordance with Section 3.03 hereof.
Notwithstanding any of the foregoing, the Company will pay
to the Administrative Agent for the account of each Lender
interest at the applicable Post-Default Rate on any
principal of any Loan made by such Lender and on any other
amount payable by the Company hereunder to or for the
account of such Lender (but, if such amount is interest,
only to the extent legally enforceable), which shall not be
paid in full when due (whether at stated maturity, by
acceleration or otherwise), for the period commencing on the
due date thereof until the same is paid in full.
Accrued interest on each Loan shall be payable (i)
if such Loan is a Base Rate Loan, on each Quarterly Date,
(ii) if such Loan is a Eurodollar Loan or Money Market Loan,
on the last day of the Interest Period for such Loan (and,
if such Interest Period exceeds 90 days (in the case of a
Set Rate Loan) or three months' duration (in the case of a
Eurodollar or LIBOR Market Loan), quarterly, commencing on
the first quarterly anniversary of the first day of such
Interest Period), and (iii) in any event, upon the payment,
prepayment or conversion thereof, but only on the principal
so paid or prepaid or converted; provided that interest
payable at the Post-Default Rate shall be payable from time
to time on demand of the Administrative Agent or the
Majority Lenders. Promptly after the determination of any
interest rate provided for herein or any change therein, the
Administrative Agent shall notify the Lenders and the
Company thereof.
Notwithstanding the foregoing provisions of this
Section 4.02, if at any time the rate of interest set forth
above on any Loan of any Lender (the "Stated Rate" for such
Loan) exceeds the maximum non-usurious interest rate
permissible for such Lender to charge commercial borrowers
under applicable law (the "Maximum Rate" for such Lender),
the rate of interest charged on such Loan of such Lender
hereunder shall be limited to the Maximum Rate for such
Lender.
In the event the Stated Rate for any Loan of a
Lender that has theretofore been subject to the preceding
paragraph at any time is less than the Maximum Rate for such
Lender, the principal amount of such Loan shall bear
interest at the Maximum Rate for such Lender until the total
amount of interest paid to such Lender or accrued on its
Loans hereunder equals the amount of interest which would
have been paid to such Lender or accrued on such Lender's
Loans hereunder if the Stated Rate had at all times been in
effect.
In the event, upon payment in full of all amounts
payable hereunder, the total amount of interest paid to any
Lender or accrued on such Lender's Loans under the terms of
this Agreement is less than the total amount of interest
which would have been paid to such Lender or accrued on such
Lender's Loans if the Stated Rate had, at all times, been in
effect, then the Company shall, to the extent permitted by
applicable law, pay to the Administrative Agent for the
account of such Lender an amount equal to the difference
between (a) the lesser of (i) the amount of interest which
would have accrued on such Lender's Loans if the Maximum
Rate for such Lender had at all times been in effect or (ii)
the amount of interest which would have accrued on such
Lender's Loans if the Stated Rate had at all times been in
effect and (b) the amount of interest actually paid to such
Lender or accrued on its Loans under this Agreement.
In the event any Lender ever receives, collects or
applies as interest any sum in excess of the Maximum Rate
for such Lender, such excess amount shall be applied to the
reduction of the principal balance of its Loans or to other
amounts (other than interest) payable hereunder, and if no
such principal is then outstanding, such excess or part
thereof remaining shall be paid to the Company.
Section 5. Payments; Pro Rata Treatment;
Computations; Etc.
5.01 Payments. Except to the extent otherwise
provided herein, all payments of principal, interest and
other amounts to be made by the Company hereunder and under
the Notes shall be made in Dollars, in immediately available
funds, to the Administrative Agent at the Principal Office,
not later than 11:00 a.m. New York time on the date on which
such payment shall become due (each such payment made after
such time on such due date to be deemed to have been made on
the next succeeding Business Day). The Administrative
Agent, or any Lender for whose account any such payment is
made, may (but shall not be obligated to) debit the amount
of any such payment which is not made by such time to any
ordinary deposit account of the Company with the
Administrative Agent or such Lender, as the case may be.
The Company shall, at the time of making each payment
hereunder or under any Note, specify to the Administrative
Agent the Loans or other amounts payable by the Company
hereunder to which such payment is to be applied (and in the
event that it fails to so specify, or if an Event of Default
has occurred and is continuing, the Administrative Agent may
apply such payment as it may elect in its sole discretion,
but subject to the other terms and conditions of this
Agreement, including without limitation, Section 5.02
hereof). Each payment received by the Administrative Agent
hereunder or under any Note for the account of a Lender
shall be paid promptly to such Lender, in immediately
available funds, for the account of such Lender's Applicable
Lending Office. If the due date of any payment hereunder or
under any Note would otherwise fall on a day which is not a
Business Day such date shall be extended to the next
succeeding Business Day and interest shall be payable for
any principal so extended for the period of such extension.
5.02 Pro Rata Treatment. Except to the extent
otherwise provided herein: (a) each borrowing from the
Lenders under Section 2.01(a) hereof shall be made from the
Lenders, each payment of facility fees under Section 2.04
hereof shall be made for the account of the Lenders, and
each termination or reduction of the Working Capital
Commitments under Section 2.03 hereof shall be applied to
the Working Capital Commitments of the Lenders, pro rata
according to the Lenders' respective percentages of the
Working Capital Commitments; (b) each payment by the Company
of principal of or interest on Working Capital Loans of a
particular Type (other than payments in respect of Working
Capital Loans of individual Lenders provided for by Section
6 hereof) shall be made to the Administrative Agent for the
account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of such Working Capital
Loans held by the Lenders; and (c) each conversion of
Working Capital Loans of a particular Type (other than
conversions of Working Capital Loans of individual Lenders
pursuant to Section 6.04 hereof) shall be made pro rata
among the Lenders in accordance with the respective
principal amounts of such Working Capital Loans held by the
Lenders.
5.03 Computations. Interest on Money Market
Loans and Eurodollar Loans and fees shall be computed on the
basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day)
occurring in the period for which payable and interest on
Base Rate Loans shall be computed on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed
(including the first day but excluding the last day)
occurring in the period for which payable.
5.04 Minimum and Maximum Amounts; Types. Each
borrowing, conversion and prepayment of principal of Working
Capital Loans shall be in an aggregate principal amount
equal to $1,000,000 (or a larger multiple of $1,000,000 in
the case of Eurodollar Loans or $500,000 in the case of Base
Rate Loans, except that any borrowing of Working Capital
Loans may be in the aggregate amount of the unused portion
of the Working Capital Commitments provided that such unused
portion exceeds $1,000,000). Borrowings, conversions or
prepayments of Working Capital Loans of different Types or,
in the case of Eurodollar Loans, having different Interest
Periods, made at the same time hereunder shall be deemed
separate borrowings, conversions and prepayments for
purposes of the foregoing, one for each Type or Interest
Period. Notwithstanding anything to the contrary contained
in this Agreement there shall not be, at any one time, more
than six Interest Periods in effect with respect to
Eurodollar Loans.
5.05 Certain Notices. Except as specified in
Section 3.03 with respect to Money Market Loans, notices to
the Administrative Agent of terminations or reductions of
Working Capital Commitments, of borrowings, conversions and
prepayments of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received
by the Administrative Agent not later than 11:00 a.m. New
York time on the number of Business Days prior to the date
of the relevant termination, reduction, borrowing,
conversion and/or prepayment specified below:
Number of
Business
Notice Days Prior
Termination or
reduction of Commitments 1
Borrowing or
prepayment of Base Rate Loans same day
Borrowing or
prepayment of, conversion of or into,
or duration of Interest Period
for, Eurodollar Loans 3
Prepayments required pursuant
to Section 3.02(b) 1
Each such notice of termination or reduction shall specify
the amount of the Working Capital Commitments to be
terminated or reduced. Each such notice of borrowing,
conversion or prepayment shall specify the amount and Type
of the Loans to be borrowed, converted or prepaid (subject
to Sections 3.02(a) and 5.04 hereof), the date of borrowing,
conversion or prepayment (which shall be a Business Day)
and, in the case of Eurodollar Loans, the duration of the
Interest Period therefor (subject to the definition of
Interest Period). Each such notice of duration of an
Interest Period shall specify the Loans to which such
Interest Period is to relate. The Administrative Agent
shall promptly notify the affected Lenders of the contents
of each such notice. In the event that the Company fails to
select the duration of any Interest Period for any
Eurodollar Loans within the time period and otherwise as
provided in this Section 5.05, such Loans (if outstanding as
Eurodollar Loans) will be automatically converted into Base
Rate Loans on the last day of the then current Interest
Period for such Loans or (if outstanding as Base Rate Loans)
will remain as, or (if not then outstanding) will be made
as, Base Rate Loans.
5.06 Non-Receipt of Funds by the Administrative
Agent. Unless the Administrative Agent shall have been
notified by a Lender or the Company (the "Payor") prior to
the date on which such Lender is to make payment to the
Administrative Agent of the proceeds of a Loan to be made by
it hereunder or the Company is to make a payment to the
Administrative Agent for the account of one or more of the
Lenders, as the case may be (such payment being herein
called the "Required Payment"), which notice shall be
effective upon receipt, that the Payor does not intend to
make the Required Payment to the Administrative Agent, the
Administrative Agent may assume that the Required Payment
has been made and may, in reliance upon such assumption (but
shall not be required to), make the amount thereof available
to the intended recipient on such date and, if the Payor has
not in fact made the Required Payment to the Administrative
Agent, the recipient of such payment shall, on demand, pay
to the Administrative Agent the amount made available to it
together with interest thereon in respect of the period
commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative
Agent recovers such amount at a rate per annum equal to the
Federal Funds Rate for such period.
5.07 Sharing of Payments, Etc. The Company
agrees that, in addition to (and without limitation of) any
right of set-off, bankers' lien or counterclaim a Lender (or
any bank controlled by such Lender) may otherwise have, each
Lender (or any bank controlled by such Lender) shall be
entitled, at its option, to offset balances held by it for
the account of the Company at any of its offices, in Dollars
or in any other currency, against any principal of or
interest on any of such Lender's Loans to the Company
hereunder or other obligation of the Company hereunder,
which is not paid when due (regardless of whether such
balances are then due to the Company), in which case it
shall promptly notify the Company and the Administrative
Agent thereof, provided that such Lender's failure to give
such notice shall not affect the validity thereof. If a
Lender (or any bank controlled by such Lender) shall obtain
payment of any principal of or interest on any Working
Capital Loans made by it under this Agreement or other
obligation then due to such Lender hereunder, through the
exercise of any right of set-off, banker's lien,
counterclaim or similar right, or otherwise, such Lender
shall promptly purchase from the other Lenders
participations in the Working Capital Loans made or other
obligations held, by the other Lenders in such amounts, and
make such other adjustments from time to time as shall be
equitable to the end that all the Lenders shall share the
benefit of such payment (net of any expenses which may be
incurred by such Lender in obtaining or preserving such
benefit) pro rata in accordance with the unpaid principal
and interest on the Working Capital Loans or other
obligations then due to each of them. To such end all the
Lenders shall make appropriate adjustments among themselves
(by the resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored. The
Company agrees, to the fullest extent it may effectively do
so under applicable law, that any Person purchasing a
participation in the Working Capital Loans made or other
obligations held, by another Person, whether or not acquired
pursuant to the foregoing arrangements, may exercise all
rights of set-off, bankers' lien, counterclaim or similar
rights with respect to such participation as fully as if
such Lender were a direct holder of Loans or other
obligations in the amount of such participation. Nothing
contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to
exercise, and retain the benefits of exercising, any such
right with respect to any other indebtedness or obligation
of the Company.
Section 6. Yield Protection and Illegality.
6.01 Additional Costs.
(a) The Company shall pay to the Administrative
Agent for the account of each Lender from time to time such
amounts as such Lender may determine to be necessary to
compensate it for any costs incurred by such Lender which
such Lender determines are attributable to its making or
maintaining of any Fixed Rate Loans hereunder or its
obligation to make any of such Loans hereunder, or any
reduction in any amount receivable by such Lender hereunder
in respect of any of such Loans or such obligation (such
increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), in each case
resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts
payable to such Lender under this Agreement or its
Notes in respect of any of such Loans (other than
changes which affect taxes measured by or imposed on
the overall net income of such Lender or of its
Applicable Lending Office for any of such Loans by the
jurisdiction in which such Lender has its principal
office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special
deposit, insurance assessment or similar requirements
relating to any extensions of credit or other assets
of, or any deposits with or other liabilities of, such
Lender (including any of such Loans or any deposits
referred to in the definition of "Eurodollar Base Rate"
in Section 1.01 hereof); or
(iii) imposes any other condition affecting this
Agreement (or any of such extensions of credit or
liabilities).
Each Lender will notify the Company through the Administra-
tive Agent of any event occurring after the date of this
Agreement which will entitle such Lender to compensation
pursuant to this Section 6.01(a) as promptly as practicable
after it obtains knowledge thereof and determines to request
such compensation, and (if so requested by the Company
through the Administrative Agent) will designate a different
Applicable Lending Office for the relevant Type of Fixed
Rate Loans of such Lender if such designation will avoid the
need for, or reduce the amount of, such compensation and
will not, in the sole opinion of such Lender, be
disadvantageous to such Lender (provided that such Lender
shall have no obligation to so designate an Applicable
Lending Office located in the United States of America).
Each Lender will furnish the Company with a statement
setting forth the basis and amount of each request by such
Lender for compensation under this Section 6.01(a). If any
Lender requests compensation from the Company under this
Section 6.01(a), the Company may, by notice to such Lender
through the Administrative Agent, suspend the obligation of
such Lender to make additional Fixed Rate Loans of the
relevant Type to the Company until the Regulatory Change
giving rise to such request ceases to be in effect (in which
case the provisions of Section 6.04 hereof shall be
applicable). If the Company shall be required to pay
Additional Costs to any Lender pursuant to 6.01(a)(i) in
respect of taxes deducted from any payment to such Lender,
the Company shall furnish to such Lender the original or a
certified copy of a receipt evidencing payment of such
taxes.
(b) Without limiting the effect of the foregoing
provisions of this Section 6.01, in the event that, by
reason of any Regulatory Change, any Lender either (i)
incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of
deposits or other liabilities of such Lender which includes
deposits by reference to which the interest rate on any Type
of Fixed Rate Loans is determined as provided in this
Agreement or a category of extensions of credit or other
assets of such Lender which includes any Type of Fixed Rate
Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets which it may
hold, then, if such Lender so elects by notice to the
Company (with a copy to the Administrative Agent), the
obligation of such Lender to make Fixed Rate Loans of the
relevant Type hereunder shall be suspended until the date
such Regulatory Change ceases to be in effect (in which case
the provisions of Section 6.04 hereof shall be applicable).
(c) Determinations and allocations by any Lender
for purposes of this Section 6.01 of the effect of any
Regulatory Change on its costs of maintaining its
obligations to make Loans or of making or maintaining Loans
or on amounts receivable by it in respect of Loans, and of
the additional amounts required to compensate such Lender in
respect of any Additional Costs, shall be conclusive absent
manifest error, provided that such determinations and
allocations are made on a reasonable basis.
6.02 Limitation on Types of Loans. Anything
herein to the contrary notwithstanding, if, with respect to
any Fixed Rate Loans:
(a) the Administrative Agent determines (which
determination shall be conclusive) that quotations of
interest rates for the relevant deposits referred to in
the definition of "Eurodollar Base Rate" in Section
1.01 hereof are not being provided for the relevant
maturities for purposes of determining the rate of
interest for such Loans for Interest Periods therefor
as provided in this Agreement; or
(b) the Majority Lenders determine (which
determination shall be conclusive) and notify the
Administrative Agent that the relevant rates of
interest referred to in the definition of "Eurodollar
Base Rate" in Section 1.01 hereof upon the basis of
which the rates of interest for such Loans are to be
determined do not accurately reflect the cost to such
Lenders of making or maintaining such Loans for
Interest Periods therefor;
then the Administrative Agent shall promptly notify the
Company and each Lender thereof, and so long as such
condition remains in effect, the Lenders shall be under no
obligation to make Fixed Rate Loans of the relevant Type or
to convert Base Rate Loans into Fixed Rate Loans of the
relevant Type and the Company shall, on the last day(s) of
the then current Interest Period(s) for the outstanding
Fixed Rate Loans of the relevant Type, either prepay such
Loans or convert such Loans into Base Rate Loans in
accordance with Section 3.02 hereof.
6.03 Illegality. Notwithstanding any other
provision of this Agreement to the contrary, in the event
that it becomes unlawful for any Lender or its Applicable
Lending Office to (a) honor its obligation to make Fixed
Rate Loans of any Type hereunder, or (b) maintain Fixed Rate
Loans of any Type hereunder, then such Lender shall promptly
notify the Company thereof through the Administrative Agent
and such Lender's obligation to make Fixed Rate Loans of
such Type hereunder shall be suspended until such time as
such Lender may again make and maintain Fixed Rate Loans of
such Type (in which case the provisions of Section 6.04
hereof shall be applicable).
6.04 Substitute Base Rate Loans. If the
obligation of any Lender to make Fixed Rate Loans of any
Type shall be suspended pursuant to Section 6.01, 6.02 or
6.03 hereof, all Loans which would otherwise be made by such
Lender as Fixed Rate Loans of such Type shall be made
instead as Base Rate Loans (and, if an event referred to in
Section 6.01(b) or 6.03 hereof has occurred and such Lender
so requests by notice to the Company with a copy to the
Administrative Agent, each Fixed Rate Loan of such Lender
then outstanding shall be automatically converted into a
Base Rate Loan on the date specified by such Lender in such
notice) and, to the extent that Fixed Rate Loans of such
Type are so made as (or converted into) Base Rate Loans, all
payments of principal which would otherwise be applied to
such Fixed Rate Loans shall be applied instead to such Base
Rate Loans.
6.05 Compensation. The Company shall pay to the
Administrative Agent for the account of each Lender, upon
the request of such Lender through the Administrative Agent,
such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any
loss, cost or expense incurred by it as a result of:
(a) any payment, prepayment or conversion of a
Fixed Rate Loan or a Set Rate Loan made by such Lender
on a date other than the last day of an Interest Period
for such Loan; or
(b) any failure by the Company to borrow a Fixed
Rate Loan or a Set Rate Loan to be made by such Lender
on the date for such borrowing specified in the
relevant notice of borrowing under Section 5.05 or 3.03
hereof.
6.06 Capital Adequacy. If any Lender shall
determine that the adoption or implementation of any
applicable law, rule, regulation or treaty 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 compliance
by any Lender (or its Applicable Lending Office) with any
request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of
reducing the rate of return on capital of such Lender or any
Person controlling such Lender (a "Parent") as a consequence
of its obligations hereunder to a level below that which
such Lender (or its Parent) could have achieved but for such
adoption, change or compliance (taking into consideration
its policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to
time, within 15 days after demand by such Lender (with a
copy to the Administrative Agent), the Company shall pay to
such Lender such additional amount or amounts as will
compensate such Lender for such reduction. A statement of
any Lender claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to
it hereunder shall be conclusive absent manifest error,
provided that the determination thereof is made on a
reasonable basis. In determining such amount, such Lender
may use any reasonable averaging and attribution methods.
6.07 Substitution of Lender. If (i) the
obligation of any Lender to make Fixed Rate Loans has been
suspended pursuant to Section 6.01(b) or 6.03 or (ii) any
Lender has demanded compensation under Section 6.01(a) or
6.06, the Company shall have the right, with the assistance
of the Administrative Agent, to seek a mutually satisfactory
substitute lender or lenders (which may be one or more of
the Lenders) to purchase the Working Capital Loan Note and
assume the Working Capital Commitment of such Lender.
Section 7. Conditions Precedent.
7.01 Initial Loans. The obligation of each
Lender to make the initial Loans to be made by it hereunder
is subject to the following conditions precedent, each of
which shall have been fulfilled to the satisfaction of the
Administrative Agent:
(a) Corporate Action. The Administrative Agent
shall have received certified copies of the certificate
of incorporation and by-laws of the Company and of all
corporate action taken by the Company authorizing the
execution, delivery and performance of this Agreement
and the Notes (including, without limitation, a
certificate of the Company setting forth the
resolutions of its Board of Directors authorizing the
transactions contemplated thereby).
(b) Incumbency. The Company shall have delivered
to the Administrative Agent a certificate in respect of
the name and signature of each of the officers or other
employees of the Company (i) who is authorized to sign
on its behalf of this Agreement and the Notes and (ii)
who will, until replaced by another officer or officers
duly authorized for that purpose, act as its
representative for the purposes of signing documents
and giving notices and other communications in
connection with this Agreement and the Notes. The
Administrative Agent and each Lender may conclusively
rely on such certificates until it receives notice in
writing from the Company to the contrary.
(c) Notes. The Administrative Agent shall have
received Working Capital Notes and Money Market Notes
for each Lender, duly completed and executed.
(d) Fees and Expenses. The Company shall have
paid to the Administrative Agent, for its account and
for the account of the Lenders, the fees required by
Section 2.04 to be paid on the Closing Date and shall
have in addition paid to the Administrative Agent all
amounts payable under Section 12.03 hereof or otherwise
on or before the Closing Date.
(e) Opinion of Counsel to the Company. The
Administrative Agent shall have received an opinion of
Jones, Day, Reavis & Pogue, special New York and
Delaware corporate counsel to the Company,
substantially in the form of Exhibit E hereto covering
such other matters relating to the transactions
contemplated hereby as the Majority Lenders may
reasonably request.
(f) Opinions of Special Counsel to the
Administrative Agent. The Administrative Agent shall
have received an opinion of Davis Polk & Wardwell,
substantially in the form of Exhibit F hereto.
(g) Officer's Certificate. The Administrative
Agent shall have received a certificate signed by the
chief financial officer of the Company to the effect
that (i) no Default shall have occurred and be
continuing and (ii) each of the representations and
warranties made by the Company or any Subsidiary in or
pursuant to the Basic Documents are true and correct in
all material respects on and as of the Closing Date.
(h) Counterparts. The Administrative Agent shall
have received counterparts of each of this Agreement
executed and delivered by or on behalf of each of the
parties thereto (or, in the case of any Lender as to
which the Administrative Agent shall not have received
such a counterpart, the Administrative Agent shall have
received evidence satisfactory to it of the execution
and delivery by such Lender of a counterpart hereof).
(i) Existing Credit Agreement. The
Administrative Agent shall have received evidence that,
after giving effect to the application of the proceeds
of the initial Loans to be made hereunder, (i) all
amounts outstanding under the Existing Credit Agreement
have been paid in full, (ii) all commitments thereunder
have been terminated and (iii) all notes and letters of
credit issued pursuant thereto have been cancelled.
(j) Other Documents. The Administrative Agent
shall have received such other documents relating to
the transactions contemplated hereby as the
Administrative Agent may reasonably request.
7.02 Initial and Subsequent Loans. The
obligation of each Lender to make any Loan to be made by it
hereunder is subject to the conditions precedent that, as of
the date of such Loan, and before and after giving effect
thereto: (a) no Default shall have occurred and be
continuing; and (b) the representations and warranties made
by the Company in this Agreement shall be true on and as of
the date of the making of such Loan, with the same force and
effect as if made on and as of such date (except that any
representation or warranty which is stated to have been made
only as of a specific date shall speak only as of such
date). Each notice of borrowing by the Company hereunder or
Money Market Quote Request shall constitute a certification
by the Company to the effect set forth in the preceding
sentence (both as of the date of such notice or request and,
unless the Company otherwise notifies the Administrative
Agent prior to the date of such borrowing, as of the date of
such borrowing).
Section 8. Representations and Warranties. The
Company represents and warrants to the Lenders and the
Administrative Agent as follows:
8.01 Corporate Existence. Each of the Company
and its Subsidiaries: (a) is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation; (b) has all requisite
corporate power, and has all governmental licenses,
authorizations, consents and approvals necessary to own its
assets and carry on its business as now being or as proposed
to be conducted, except in the case of such licenses,
authorizations, consents and approvals, where the failure to
obtain them would not have a material adverse effect on the
condition (financial or otherwise), assets, nature of
assets, liabilities (including without limitation, tax,
ERISA and environmental liabilities) or prospects of the
Company and its Subsidiaries taken as a whole; and (c) is
qualified to do business in all jurisdictions in which the
nature of the business conducted by it makes such
qualification necessary and where failure so to qualify
would have a material adverse effect on the condition,
(financial or otherwise), assets, nature of assets,
liabilities (including, without limitation, tax, ERISA and
environmental liabilities) or prospects of the Company and
its Subsidiaries taken as a whole.
8.02 Information. (a) The information furnished
by the Company to the Administrative Agent or any Lender for
purposes of or in connection with this Agreement and
identified on Schedule II did not as of the date thereof and
will not as of the Closing Date contain any untrue statement
of a material fact or omit to state a material fact
necessary in order to make the statements contained therein
not misleading; provided that although the management of the
Company believes that the projections presented therein are
reasonable, the Company makes no representation as to their
attainability.
(b) Without limiting the generality of paragraph
(a):
(i) The audited consolidated and consolidating
balance sheet of the Company and its Subsidiaries as of
December 31, 1994 and the audited consolidated
statements of income, changes in stockholders' equity
and cash flow for the fiscal year ended December 31,
1994 (collectively, the "Financial Statements"), have
been prepared in accordance with generally accepted
accounting principles consistently applied. The
Financial Statements fairly present the financial
position of the Company and its Subsidiaries as of
December 31, 1994 and the results of their operations
and their cash flows for the fiscal year ended December
31, 1994, in conformity with generally accepted
accounting principles.
(ii) The Company and its Subsidiaries did not on
the date of the balance sheet referred to in clause (i)
above, and will not on the Closing Date, have any
material contingent liabilities, material liabilities
for taxes, unusual and material forward or long-term
commitments or material unrealized or anticipated
losses from any unfavorable commitments, except as
referred to or reflected or provided for in said
balance sheet (including the footnotes thereto).
(c) The Company has disclosed to the Lenders in
writing any and all facts (other than general economic and
industry conditions) which materially and adversely affect
or may affect (to the extent it can reasonably foresee) the
condition (financial or otherwise), assets, nature of
assets, liabilities (including, without limitation, tax,
ERISA and environmental liabilities) or prospects of the
Company and its Subsidiaries, taken as a whole, or the
ability of the Company to perform its obligations under each
Basic Document.
(d) Since December 31, 1994 there has been no
material adverse change in the condition (financial or
otherwise), assets, nature of assets, liabilities
(including, without limitation, tax, ERISA and environmental
liabilities) or prospects of the Company or in the ability
of the Company to perform its obligations under each Basic
Document.
8.03 Litigation. There are no legal or arbitral
proceedings or any proceedings by or before any governmental
or regulatory authority or agency, now pending or, to the
knowledge of the Company, threatened against or affecting
the Company or any of its Subsidiaries in which there is a
reasonable possibility of an adverse decision which could
have a material adverse effect on the condition (financial
or otherwise), assets, nature of assets, liabilities
(including, without limitation, tax, ERISA and environmental
liabilities) or prospects of the Company and its
Subsidiaries, taken as a whole, or on the ability of the
Company to perform its obligations under each Basic
Document.
8.04 No Breach. None of the execution and
delivery of the Basic Documents, the consummation of the
transactions therein contemplated or compliance with the
terms and provisions thereof will conflict with or result in
a breach of, or require any consent under, the certificate
of incorporation or by-laws of the Company or any of its
Subsidiaries, or any applicable law or regulation, or any
order, writ, injunction or decree of any court or
governmental authority or agency, or any Basic Document or
other material agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which it is
bound or to which it is subject, or constitute a default
under any such agreement or instrument, or (except for the
Liens permitted by this Agreement) result in the creation or
imposition of any Lien upon any of the revenues or assets of
the Company or any of its Subsidiaries pursuant to the terms
of any such agreement or instrument.
8.05 Corporate Action. The Company has all
necessary corporate power and authority to execute, deliver
and perform its obligations under this Agreement and the
Notes; the execution, delivery and performance by the
Company of this Agreement and the Notes have been duly
authorized by all necessary corporate action; and this
Agreement has been duly and validly executed and delivered
by the Company and constitutes the legal, valid and binding
obligation of the Company and, on the Closing Date, each of
the Notes will constitute its legal, valid and binding
obligation, in each case enforceable in accordance with its
terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization or moratorium or
other similar laws relating to the enforcement of creditors'
rights generally and by general equitable principles.
8.06 Approvals. The Company has obtained all
authorizations, approvals and consents of, and has made all
filings and registrations with, any governmental or
regulatory authority or agency necessary for the execution,
delivery or performance by it of this Agreement and the
Notes, or for the validity or enforceability thereof.
8.07 Regulations U and X. Neither the Company
nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U or X of the
Board of Governors of the Federal Reserve System) and no
part of the proceeds of any Loan hereunder will be used to
purchase or carry any such margin stock.
8.08 ERISA. The Company and each member of the
Controlled Group have fulfilled their obligations under the
minimum funding standards of ERISA and the Code with respect
to each Plan and are in compliance in all material respects
with the presently applicable provisions of ERISA and the
Code, and have not incurred any liability to the PBGC or a
Plan under Title IV of ERISA (other than to make
contributions or premium payments in the ordinary course).
8.09 Taxes. Each of the Company and its
Subsidiaries has filed all United States Federal income tax
returns and all other material tax returns which are
required (after giving effect to all valid extensions in
effect) to be filed by it and has paid all taxes due
pursuant to such returns or pursuant to any assessment
received by it, except to the extent the same may be
contested as permitted by Section 9.02 hereof. The charges,
accruals and reserves on the books of the Company and its
Subsidiaries in respect of taxes and other governmental
charges are, in the opinion of the Company, adequate in all
material respects.
8.10 Subsidiaries. Schedule I hereto is a
complete and correct list, as of the Closing Date, of all
Subsidiaries of the Company. The Company owns, free and
clear of Liens, all outstanding shares of its Subsidiaries
and all such shares are validly issued, fully paid and
non-assessable and the Company (or the respective Subsidiary
of the Company) also owns, free and clear of Liens, all such
Investments.
8.11 Investment Company Act. Neither the Company
nor any of its Subsidiaries is an investment company within
the meaning of the Investment Company Act of 1940, as
amended, or, directly or indirectly, controlled by or acting
on behalf of any Person which is an investment company,
within the meaning of said Act.
8.12 Public Utility Holding Company Act. Neither
the Company nor any of its Subsidiaries is a "holding
company", or an "affiliate" of a "holding company" or a
"subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935,
as amended.
8.13 Ownership and Use of Properties. Each of
the Company and its Subsidiaries will have on the Closing
Date and at all times thereafter, legal title or ownership
of, or the right to use pursuant to enforceable and valid
agreements or arrangements, all tangible property, both real
and personal and all franchises, licenses, copyrights,
patents and know-how used as of the date hereof in the
operation of its business, except to the extent that failure
to have any such title, ownership or right would not result
in a material adverse change in the condition (financial or
otherwise), assets, nature of assets, liabilities (includ-
ing, without limitation, environmental liabilities), or
prospects of the Company and its Subsidiaries, taken as a
whole.
8.14 Environmental Matters. The Company and each
of its Subsidiaries have obtained all permits, certificates,
licenses, approvals, registrations and other authorizations
which are required under all applicable Environmental Laws,
except to the extent failure to have any such permit,
certificate, license, approval, registration or
authorization would not result in a material adverse change
in the condition (financial or otherwise), assets, nature of
assets, liabilities (including, without limitation,
environmental liabilities) or prospects of the Company and
its Subsidiaries taken as a whole. The Company and each of
its Subsidiaries are in compliance with the terms and
conditions of all such permits, certificates, licenses,
approvals, registrations and authorizations, and are also in
compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any
applicable Environmental Law or in any notice or demand
letter from any regulatory authority issued, entered,
promulgated or approved thereunder, other than any notices
or demand letters which the Company or such Subsidiary is
contesting in good faith, except to the extent failure to
comply would not result in a material adverse change in the
condition (financial or otherwise), assets, nature of
assets, liabilities (including, without limitation,
environmental liabilities) or prospects of the Company and
its Subsidiaries, taken as a whole. The Company and each of
its Subsidiaries is and has been conducting its business so
as to comply in all respects with applicable Environmental
Laws, except to the extent any such failure to so comply
would not result in a material adverse change in the
condition (financial or otherwise), assets, nature of
assets, liabilities (including, without limitation,
environmental liabilities), or prospects of the Company and
its Subsidiaries, taken as a whole.
Section 9. Covenants. The Company agrees that,
so long as any of the Working Capital Commitments are in
effect and until payment in full of all Loans hereunder all
interest thereon and all other amounts payable hereunder,
unless the Majority Lenders shall agree otherwise as
contemplated by Section 12.05 hereof:
9.01 Reports. The Company shall deliver to each
of the Lenders:
(a) as soon as available and in any event within
90 days after the end of each fiscal year of the
Company, consolidated statements of income, retained
earnings and cash flow of the Company and its
Subsidiaries for such year and the related consolidated
balance sheet as at the end of such year, setting forth
in each case in comparative form the corresponding
figures for the preceding fiscal year, and accompanied,
in the case of said consolidated financial statements,
by an opinion thereon of Arthur Andersen & Co. or other
independent certified public accountants of recognized
national standing, which opinion shall state that said
consolidated financial statements fairly present the
consolidated financial condition and results of
operations of the Company and its Subsidiaries as at
the end of, and for, such fiscal year and stating that,
in making the examination necessary for their
above-described opinion (but without any special or
additional procedures for that purpose), they obtained
no knowledge, except as specifically stated, of any
Default;
(b) as soon as available and in any event within
45 days after the end of each fiscal quarter of the
Company, consolidated statements of income and cash
flow of the Company and its Subsidiaries and other
reports, at the reasonable request of the
Administrative Agent or any Lender, in each case in a
form satisfactory to the Administrative Agent, for such
fiscal quarter and for the portion of the fiscal year
ended at the end of such fiscal quarter, and the
related consolidated balance sheet as at the end of
such fiscal quarter, accompanied, in each case, by a
certificate of the chief financial officer or corporate
controller of the Company, which certificate shall
state that said consolidated financial statements
fairly present the consolidated financial condition and
results of operations of the Company in accordance with
GAAP (except for abbreviated footnotes of the type
required by the Securities and Exchange Commission to
be included in quarterly reports on Form 10-Q),
consistently applied, as at the end of, and for, such
period (subject to normal year-end audit adjustments);
(c) promptly upon the mailing thereof to the
shareholders of the Company generally, copies of all
financial statements, reports and proxy statements so
mailed;
(d) promptly upon the filing thereof, copies of
all registration statements (other than any
registration statements on Form S-8 or its equivalent)
and any reports which the Company shall have filed with
the Securities and Exchange Commission;
(e) if and when the Company or any member of the
Controlled 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, a copy of such notice; or (iii) receives
notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer
the Plan, a copy of such notice;
(f) promptly following the delivery thereof to
the Company or to the Board of Directors or management
of the Company, a copy of any management letter or
written report by independent public accountants with
respect to the financial condition, operations,
business or prospects of the Company;
(g) promptly after management of the Company
knows that any Default has occurred and is continuing,
a notice of such Default, describing the same in
reasonable detail; and
(h) from time to time such other information
regarding the financial condition, operations,
prospects or business of the Company as the
Administrative Agent or any Lender through the
Administrative Agent may reasonably request.
The Company will furnish to each Lender, at the time it
furnishes each set of financial statements pursuant to
paragraph (a) or (b) above, a certificate of its chief
executive officer, chief financial officer or corporate
controller (i) to the effect that, to the best of his
knowledge after due inquiry, no Default has occurred and is
continuing (or, if any Default has occurred and is
continuing, describing the same in reasonable detail) and
(ii) setting forth in reasonable detail the computations
necessary to determine whether it was in compliance with
Sections 9.08 to 9.10, inclusive, and 9.13 hereof as of the
end of the respective fiscal quarter or fiscal year.
9.02 Taxes and Claims. The Company will pay and
discharge, and will cause each of its Subsidiaries to pay
and discharge, all material taxes, assessments and
governmental charges or levies imposed upon it or upon its
income or profits, or upon any property belonging to it,
prior to the date on which penalties attach thereto, and all
lawful claims which, if unpaid, might become a Lien upon the
property of the Company or such Subsidiary, provided that
neither the Company nor such Subsidiary shall be required to
pay any such tax, assessment, charge, levy or claim the
payment of which is being contested in good faith and by
proper proceedings if it maintains reserves with respect
thereto in accordance with GAAP.
9.03 Insurance. The Company will maintain, and
will cause each of its Subsidiaries to maintain such
insurance in such amounts and against such risks as is
usually carried by companies of established repute engaged
in the same or similar business, owning similar properties,
and located in the same general areas as the Company and its
Subsidiaries. All such insurance shall be written by
financially responsible companies of established repute
selected by the Company that customarily write insurance for
the risks covered thereby in the amounts contemplated
thereby.
9.04 Maintenance of Existence; Conduct of
Business. The Company will preserve and maintain, and will
cause each of its Subsidiaries to preserve and maintain, its
corporate existence and all of its rights, privileges and
franchises necessary or desirable in the normal conduct of
its business, and will conduct its business in a regular
manner; provided that nothing herein shall prevent the
merger and dissolution of any Subsidiary of the Company into
the Company so long as the Company is the surviving
corporation or the sale of a Subsidiary not prohibited by
Section 9.10.
9.05 Maintenance of and Access to Properties.
The Company will keep, and will cause each of its
Subsidiaries to keep, all of its properties necessary in its
business in good working order and condition (having regard
to the condition of such properties at the time such
properties were acquired by the Company or such Subsidiary),
ordinary wear and tear excepted, and will permit
representatives of the Lenders to inspect such properties
and, upon reasonable notice and at reasonable times, to
examine and make extracts and copies from the books and
records of the Company and any such Subsidiary; provided
that if and for so long as no Default shall have occurred
and be continuing, the Company shall not be required to
permit more than one such examination or inspection by each
Lender during any fiscal year of the Company.
9.06 Compliance with Applicable Laws. The
Company will comply, and will cause each of its Subsidiaries
to comply, with the requirements of all applicable laws,
rules, regulations and orders of any governmental body or
regulatory authority (including, without limitation, all
Environmental Laws), a breach of which would have a material
adverse effect on the condition (financial or otherwise),
assets, nature of assets, liabilities (including, without
limitation, tax, ERISA and environmental liabilities) or
prospects of the Company and its Subsidiaries, taken as a
whole, except where contested in good faith and by proper
proceedings.
9.07 Litigation. The Company will promptly give
to the Administrative Agent (which shall promptly notify
each Lender) notice in writing of (i) all judgments against
it or any of its Subsidiaries which individually exceed
$1,000,000 or in the aggregate exceed $5,000,000 and (ii)
all litigation and of all proceedings of which it is aware
before any courts, arbitrators or governmental or regulatory
agencies affecting the Company or any of its Subsidiaries
except litigation or proceedings which, if adversely
determined, would not in the reasonable opinion of the
Company materially and adversely affect the condition
(financial or otherwise), assets, nature of assets,
liabilities (including, without limitation, tax, ERISA and
environmental liabilities) or prospects of the Company and
its Subsidiaries, taken as a whole.
9.08 Leverage Ratio. The Company will not permit
the ratio, calculated as at the end of each fiscal quarter
for the four fiscal quarters then ended, of (i) the
principal amount of Indebtedness of the Company and its
Subsidiaries, determined on a consolidated basis at such
date, to (ii) Cash Flow for such period to exceed 3.50 to
1.00.
9.09 Interest Coverage Ratio. The Company will
not permit the ratio, calculated as at the end of each
fiscal quarter for the four fiscal quarters then ended, of
Cash Flow for such period to Interest Expense for such
period to be less than 2.50 to 1.00.
9.10 Mergers, Asset Dispositions and
Acquisitions, Etc.
(a) The Company will not, and will not permit any
of its Subsidiaries to, sell, lease, assign, transfer or
otherwise dispose of any assets, or acquire assets from any
Person, except:
(i) dispositions and acquisitions of inventory in
the ordinary course of business;
(ii) expenditures in respect of fixed or capital
assets;
(iii) acquisitions of Investments permitted under
Section 9.12 hereof;
(iv) dispositions of bonds issued in connection
with the Gallman Indebtedness;
(v) sales of accounts receivable from time to
time; provided that (x) the aggregate amount that
third-party transferees are entitled at any time to
recover from collections on such accounts receivable
shall not exceed $50,000,000 and (y) the aggregate
outstanding balance of accounts receivable sold to
third-party transferees shall not at any time exceed
115% of the aggregate amount of the proceeds received
by the Company and its Subsidiaries from the sale of
such accounts receivable;
(vi) Permitted Acquisitions; and
(vii) other dispositions of assets not permitted by
clauses (i) through (vi) above which, together with all
assets disposed of pursuant to this clause (vii) from
and after the Closing Date have, after giving effect to
any such disposition, an aggregate fair market value
not exceeding $50,000,000.
For purposes of this Section 9.10, a "Permitted
Acquisition" shall mean any acquisition of any asset or
Investment by the Company or any Subsidiary (including any
such acquisition by way of merger); provided that (x) after
giving pro forma effect to such acquisition, the Company
would have been in compliance with Sections 9.08, and 9.09
hereof on the last day of the four fiscal quarters most
recently ended prior to the date of such acquisition
(calculated on the assumption that such acquisition occurred
at the beginning of such four fiscal quarter period) and (y)
no Default or Event of Default has occurred and is
continuing or would result therefrom.
(b) The Company will not, nor will it permit any
of its Subsidiaries to, consolidate or merge with or into
any other Person; provided that (i) the Company or any
Subsidiary may merge with another Person if (x) such Person
is organized under the laws of the United States of America
or one of its states, (y) the Company or any of its
Subsidiaries (except that the Company shall be the remaining
corporation upon a merger of a Subsidiary of the Company
with the Company) is the corporation surviving such merger
and (z) immediately after giving effect to such merger, no
Default shall have occurred and be continuing and (ii) any
Subsidiary of the Company may merge with any other Person in
connection with a Permitted Acquisition or a disposition of
such Subsidiary not prohibited by Section 9.10(a).
9.11 Liens. The Company will not, and will not
permit any of its Subsidiaries to, create or suffer to exist
any Lien upon any property or assets, now owned or hereafter
acquired, securing any Indebtedness or other obligation,
except: (i) Liens securing the Gallman Indebtedness in
accordance with the definition thereof; (ii) Liens existing
on other assets at the date of acquisition thereof or which
attach to such assets concurrently with or within 90 days
after the acquisition thereof, securing Indebtedness
incurred to finance the acquisition thereof; and (iii) other
Liens arising in the ordinary course of the business of the
Company or such Subsidiary which are not incurred in
connection with the borrowing of money or the obtaining of
advances or credit and which do not materially detract from
the value of its property or assets or materially impair the
use thereof in the operation of its business. For the
avoidance of doubt, the filing of UCC financing statements
in connection with any sale by the Company or any of its
Subsidiaries of accounts receivable permitted by Section
9.10 shall not constitute a Lien prohibited by this Section
9.11.
9.12 Investments. The Company will not, and will
not permit any of its Subsidiaries to, make or permit to
remain outstanding any advances, loans or other extensions
of credit or capital contributions (other than prepaid
expenses in the ordinary course of business) to (by means of
transfers of property or assets or otherwise), or purchase
or own any stocks, bonds, notes, debentures or other
securities of, any Person (all such transactions being
herein called "Investments"), except: (i) operating deposit
accounts; (ii) Liquid Investments; (iii) subject to Section
9.14 hereof, Investments in accounts and chattel paper (as
defined in the Uniform Commercial Code), and notes
receivable acquired in the ordinary course of business as
presently conducted; (iv) Investments existing on the
Closing Date in Wholly-Owned Subsidiaries and in Systronics,
Inc. and Great River Oil & Gas Corporation, and (v)
Investments that constitute Permitted Acquisitions.
9.13 Restricted Payments. The Company will not,
and will not permit any of its Subsidiaries to, declare or
make any Restricted Payment, except that the Company may (i)
purchase shares of Restricted Stock (as defined in the
Incentive Equity Plan) from employees of the Company or its
Subsidiaries upon termination of such employees' employment,
in accordance with the Incentive Equity Plan in amounts not
to exceed $1,000,000 during any fiscal year and $5,000,000
in the aggregate during the term of this Agreement and (ii)
make Restricted Payments in addition to the Restricted
Payments permitted to be made pursuant to clause (i) above
if (a) no Default shall have occurred and be continuing and
(b) after giving effect to any such payment, the cumulative
amount of all payments made in reliance on this clause (ii)
does not exceed the sum of $50,000,000 plus 50% of
Cumulative Net Income on the date of such payment.
"Cumulative Net Income" shall mean, on any date,
the cumulative amount of the net income, if any (less the
cumulative amount of the net loss, if any) of the Company
and its Subsidiaries, determined on a consolidated basis,
for each fiscal quarter of the Company from (and including)
the fiscal quarter ending on March 31, 1994 to (and
including) the fiscal quarter of the Company most recently
ended prior to such date.
9.14 Transactions with Affiliates. Except as
expressly permitted by this Agreement, the Company will not,
and will not permit any of its Subsidiaries to, directly or
indirectly: (i) except to the extent not prohibited by
Section 9.12, make any Investment in an Affiliate of the
Company; (ii) transfer, sell, lease, assign or otherwise
dispose of any assets to an Affiliate of the Company;
(iii) merge into or consolidate with or purchase or acquire
assets from an Affiliate of the Company; or (iv) enter into
any other transaction directly or indirectly with or for the
benefit of an Affiliate of the Company (including, without
limitation, guarantees and assumptions of obligations of an
Affiliate of the Company); provided that (a) any Affiliate
of the Company who is an individual may serve as a director,
officer or employee of the Company and receive reasonable
compensation or indemnification in connection with his or
her services in such capacity; (b) the Company or a
Subsidiary of the Company may enter into any transaction
with an Affiliate of the Company providing for the leasing
of property, the rendering or receipt of services or the
purchase or sale of inventory and other assets in the
ordinary course of business if the monetary or business
consideration arising therefrom would be substantially as
advantageous to the Company or such Subsidiary as the
monetary or business consideration which would be obtained
in a comparable arm's length transaction with a Person not
an Affiliate of the Company; and (c) the Company may pay
commissions to Georgia Gulf Export Corporation on sales of
qualified "Export Property" (as defined in Section 927 of
the Code) in accordance with Section 925 of the Code and the
rules and regulations thereunder.
9.15 Lines of Businesses. Neither the Company
nor any of its Subsidiaries shall engage to any substantial
extent in any line or lines of business activity other than
present or related product lines.
9.16 Environmental Matters. The Company will
promptly give to the Lenders notice in writing of any
complaint, order, citation, notice or other written
communication from any Person with respect to, or if the
Company becomes aware after due inquiry of, (i) the
existence or alleged existence of a violation of any
applicable Environmental Law or legal liability resulting
from any air emission, water discharge, noise emission,
asbestos, Hazardous Substance or any other environmental,
health or safety matter at, upon, under or within any
property now or previously owned, leased, operated or used
by the Company or any of its Subsidiaries or any part
thereof, or due to the operations or activities of the
Company, any Subsidiary or any other Person on or in
connection with such property or any part thereof (including
receipt by the Company or any Subsidiary of any notice of
the happening of any event involving the Release or cleanup
of any Hazardous Substance), (ii) any Release on such
property or any part thereof in a quantity that is
reportable under any applicable Environmental Law, (iii) the
commencement of any cleanup pursuant to or in accordance
with any applicable Environmental Law of any Hazardous
Substances on or about such property or any part thereof and
(iv) any pending or threatened proceeding for the
termination, suspension or non-renewal of any permit
required under any applicable Environmental Law, in each of
cases (i), (ii), (iii) and (iv), which individually or in
the aggregate could have a material adverse effect on the
condition (financial or otherwise), assets, nature of
assets, liabilities (including, without limitation,
environmental liabilities) or prospects, taken as a whole,
of the Company and its Subsidiaries.
Section 10. Defaults.
10.01 Events of Default. If one or more of the
following events (herein called "Events of Default") shall
occur and be continuing:
(a) default in the payment of (i) any principal
of any Loan when due, (ii) any interest on any Loan
within one Business Day of the due date thereof or
(iii) any other amount payable hereunder within three
Business Days after the due date thereof; or
(b) the Company or any of its Subsidiaries shall
default in the payment when due of any principal of or
interest on any Indebtedness having an outstanding
principal amount of at least $5,000,000 (other than the
Loans); or any event or condition shall occur which
results in the acceleration of the maturity of any such
Indebtedness or enables the holder of any such
Indebtedness or any Person acting on such holder's
behalf to accelerate the maturity thereof; or
(c) any representation or warranty made by the
Company herein or in any certificate furnished to any
Lender or the Administrative Agent pursuant to the
provisions hereof, shall prove to have been false or
misleading in any material respect as of the time made;
or
(d) (i) the Company shall default in the
performance of any of its obligations in Sections 9.08
through 9.16 hereof; or (ii) the Company shall default
in the performance of any of its other obligations in
any Basic Document, and such default described in this
subclause (ii) shall continue unremedied for a period
of 30 days after notice thereof to the Company by the
Administrative Agent or the Majority Lenders (through
the Administrative Agent); or
(e) the Company or any of its Subsidiaries shall
admit in writing its inability to, or be generally
unable to, pay its debts as such debts become due; or
(f) the Company or any of its Subsidiaries shall
(i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee
or liquidator of itself or of all or a substantial part
of its property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary
case under the Bankruptcy Code, (iv) file a petition
seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or
composition or readjustment of debts, (v) fail to
controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it
in an involuntary case under the Bankruptcy Code, or
(vi) take any corporate or partnership action for the
purpose of effecting any of the foregoing; or
(g) a proceeding or case shall be commenced,
without the application or consent of the Company or
any of its Subsidiaries in any court of competent
jurisdiction, seeking (i) its liquidation,
reorganization, dissolution or winding-up, or the
composition or readjustment of its debts, (ii) the
appointment of a trustee, receiver, custodian,
liquidator or the like of such Person or of all or any
substantial part of its assets, or (iii) similar relief
in respect of such Person under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding
or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in
effect, for a period of 60 days; or an order for relief
against such Person shall be entered in an involuntary
case under the Bankruptcy Code; or
(h) a final judgment or judgments for the payment
of money shall be rendered by a court or courts against
the Company or any of its Subsidiaries in excess of
$4,000,000 in the aggregate, and (i) the same shall not
be discharged (or provision shall not be made for such
discharge), or a stay of execution thereof shall not be
procured, within 30 days from the date of entry
thereof, or (ii) the Company or such Subsidiary shall
not, within said period of 30 days, or such longer
period during which execution of the same shall have
been stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal, or (iii) such
judgment or judgments shall not be discharged (or
provisions shall not be made for such discharge) within
30 days after a decision has been reached with respect
to such appeal and the related stay has been lifted; or
(i) the Company or any member of the Controlled
Group shall fail to pay when due an amount or amounts
aggregating in excess of $2,000,000 which it shall have
become liable to pay to the PBGC or to a Plan under
Title IV of ERISA; or notice of intent to terminate a
Plan or Plans having aggregate Unfunded Liabilities in
excess of $2,000,000 shall be filed under Title IV of
ERISA by the Company or any member of the Controlled
Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any such Plan or
Plans or a proceeding shall be instituted by a
fiduciary of any such Plan or Plans against the Company
or any member of the Controlled Group to enforce
Section 515 or 4219(c)(5) of ERISA; or a condition
shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such
Plan or Plans must be terminated; or
(j) (i) as a result of one or more transactions
after the date of this Agreement, any "person" or
"group" of persons shall have "beneficial ownership"
(within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended, and the
applicable rules and regulations thereunder) of 30% or
more of the outstanding common stock of the Company; or
(ii) without limiting the generality of the foregoing,
during any period of 12 consecutive months, commencing
after the date of this Agreement, individuals who at
the beginning of such 12-month period were directors of
the Company shall cease for any reason to constitute a
majority of the board of directors of the Company,
provided that the relationships among the respective
shareholders of the Company on the Closing Date shall
not be deemed to constitute all or any combination of
them as a "group" for purposes of clause (j)(i);
THEREUPON: the Administrative Agent may (and, if directed
by the Majority Lenders, shall) (a) declare the Working
Capital Commitments terminated (whereupon the Working
Capital Commitments shall be terminated) and/or (b) declare
the principal amount then outstanding of and the accrued
interest on the Loans and commitment fees and all other
amounts payable hereunder and under the Notes to be
forthwith due and payable, whereupon such amounts shall be
and become immediately due and payable, without notice
(including, without limitation, notice of intent to
accelerate), presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly
waived by the Company; provided that in the case of the
occurrence of an Event of Default with respect to the
Company referred to in clause (f) or (g) of this Section
10.01, the Working Capital Commitments shall be
automatically terminated and the principal amount then
outstanding of and the accrued interest on the Loans and
commitment fees and all other amounts payable hereunder and
under the Notes shall be and become automatically and
immediately due and payable, without notice (including,
without limitation, notice of intent to accelerate),
presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by the
Company.
Section 11. The Administrative Agent.
11.01 Appointment, Powers and Immunities. Each
Lender hereby irrevocably appoints and authorizes the
Administrative Agent to act as its agent hereunder and the
other Basic Documents with such powers as are specifically
delegated to the Administrative Agent by the terms hereof
and thereof, together with such other powers as are
reasonably incidental thereto. The Administrative Agent
(which term as used in this Section 11 shall include
reference to its affiliates and its own and its respective
affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Basic
Documents, and shall not by reason of this Agreement or any
other Basic Document be a trustee for any Lender; (b) shall
not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this
Agreement or any other Basic Document, or in any certificate
or other document referred to or provided for in, or
received by any of them under, this Agreement or any other
Basic Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement
or any other Basic Document or any other document referred
to or provided for herein or therein or for any failure by
any Person to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct
any litigation or collection proceedings hereunder or under
any other Basic Document except to the extent requested by
the Majority Lenders, and (d) shall not be responsible for
any action taken or omitted to be taken by it hereunder, any
other Basic Document or any other document or instrument
referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross
negligence or willful misconduct. The Administrative Agent
may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable
care.
11.02 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely upon any
certification, notice or other communication (including any
thereof by telephone, telex, telegram or cable) believed by
it to be genuine and correct and to have been signed or sent
by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel, independent
accountants and other experts selected by the Administrative
Agent. As to any matters not expressly provided for by this
Agreement or any other Basic Document, the Administrative
Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and thereunder in
accordance with instructions signed by the Majority Lenders,
and such instructions of the Majority Lenders, and any
action taken or failure to act pursuant thereto shall be
binding on all of the Lenders.
11.03 Defaults. The Administrative Agent shall
not be deemed to have knowledge of the occurrence of a
Default (other than the non-payment of principal of or
interest on Loans) unless the Administrative Agent has
received notice from a Lender or the Company specifying such
Default and stating that such notice is a "Notice of
Default". In the event that the Administrative Agent
receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the
Lenders (and shall give each Lender prompt notice of each
such non-payment). The Administrative Agent shall (subject
to Section 11.07 hereof) take such action with respect to
such Default as shall be directed by the Majority Lenders,
provided that, unless and until the Administrative Agent
shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interests of
the Lenders.
11.04 Rights as a Lender. With respect to its
Working Capital Commitments and the Loans made by it, Chase
in its capacity as a Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may
exercise the same as though it were not acting as the
Administrative Agent and the term "Lender" or "Lenders"
shall, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. The
Administrative Agent may (without having to account therefor
to any Lender) accept deposits from, lend money to and
generally engage in any kind of banking, trust or other
business with the Company (and any of its Affiliates) as if
it were not acting as the Administrative Agent and the
Administrative Agent may accept fees and other consideration
from the Company (in addition to the fees heretofore agreed
to between the Company and the Administrative Agent) for
services in connection with this Agreement or otherwise
without having to account for the same to the Lenders.
11.05 Indemnification. The Lenders agree to
indemnify the Administrative Agent (to the extent not
reimbursed under Section 12.03 or 12.04 hereof, but without
limiting the obligations of the Company under said Sections
12.03 and 12.04), ratably in accordance with their
respective Working Capital Commitments, for any and all
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in
any way relating to or arising out of this Agreement or any
other Basic Document or any other documents contemplated by
or referred to herein or therein or the transactions
contemplated hereby or thereby (including, without
limitation, the costs and expenses which the Company is
obligated to pay under Sections 12.03 and 12.04 hereof but
excluding, unless a Default has occurred and is continuing,
normal administrative costs and expenses incident to the
performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or of any
such other documents, provided that no Lender shall be
liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the party
to be indemnified.
11.06 Non-Reliance on Administrative Agent and
Other Lenders. Each Lender agrees that it has,
independently and without reliance on the Administrative
Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own
credit analysis of the Company and decision to enter into
this Agreement and that it will, independently and without
reliance upon the Administrative Agent or any other Lender,
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis
and decisions in taking or not taking action under this
Agreement or any of the other Basic Documents. The
Administrative Agent shall not be required to keep itself
informed as to the performance or observance by the Company
of this Agreement or any of the other Basic Documents or any
other document referred to or provided for herein or therein
or to inspect the properties or books of the Company.
Except for notices, reports and other documents and
information expressly required to be furnished to the
Lenders by the Administrative Agent hereunder or the other
Basic Documents, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit
or other information concerning the affairs, financial
condition or business of the Company (or any of its
affiliates) which may come into the possession of the
Administrative Agent.
11.07 Failure to Act. Except for action
expressly required of the Administrative Agent hereunder and
under the other Basic Documents, the Administrative Agent
shall in all cases be fully justified in failing or refusing
to act hereunder and thereunder unless it shall receive
further assurances to its satisfaction by the Lenders of
their indemnification obligations under Section 11.05 hereof
against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any
such action.
11.08 Resignation or Removal of Administrative
Agent. Subject to the appointment and acceptance of a
successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Company and the
Administrative Agent may be removed at any time with or
without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the
right to appoint a successor Administrative Agent reasonably
acceptable to the Company. If no successor Administrative
Agent shall have been so appointed by the Majority Lenders
and shall have accepted such appointment within 30 days
after the retiring Administrative Agent's giving of notice
of resignation or the Majority Lenders' removal of the
retiring Administrative Agent (the "Notice Date"), then the
retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent reasonably
acceptable to the Company. Any successor Administrative
Agent shall be (i) a Lender or (ii) if no Lender has
accepted such appointment within 40 days after the Notice
Date, a bank which has an office in New York, New York with
a combined capital and surplus of at least $250,000,000.
Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. After any retiring
Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Section 11
shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was
acting as the Administrative Agent.
11.09 Consents under Basic Documents. Without
the prior written consent of the Majority Lenders, the
Administrative Agent will not consent to any modification,
supplement or waiver under any of the Basic Documents.
Section 12. Miscellaneous.
12.01 Waiver. No failure on the part of the
Administrative Agent or any Lender to exercise and no delay
in exercising, and no course of dealing with respect to, any
right, power or privilege under any Basic Document shall
operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege thereunder
preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The
remedies provided in the Basic Documents are cumulative and
not exclusive of any remedies provided by law.
12.02 Notices. All notices and other
communications provided for herein (including, without
limitation, any modifications of, or waivers or consents
under, this Agreement) shall be given or made by telex,
telegraph, telecopy, cable or other writing and telexed,
telecopied, telegraphed, cabled, mailed or delivered to the
intended recipient at the "Address for Notices" specified
below its name on the signature pages hereof; or, as to any
party, at such other address as shall be designated by such
party in a notice to the Company and the Administrative
Agent given in accordance with this Section 12.02. Except
as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when
transmitted by telex or telecopier, delivered to the
telegraph or cable office or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or
addressed as aforesaid.
12.03 Expenses, Etc. The Company agrees to pay
or reimburse each of the Lenders and the Administrative
Agent for paying: (a) the reasonable fees and expenses of
Davis Polk & Wardwell, special counsel to the Administrative
Agent in connection with (i) the preparation, execution and
delivery of this Agreement (including the Exhibits hereto)
and the making of the Loans hereunder and (ii) any
modification, supplement or waiver of any of the terms of
this Agreement or any other Basic Document; (b) if an Event
of Default occurs, all reasonable costs and expenses of the
Lenders and the Administrative Agent (including reasonable
counsels' fees) incurred as a result of such Event of
Default and collection, enforcement, bankruptcy, insolvency
and other proceedings resulting therefrom; (c) all transfer,
stamp, documentary or other similar taxes, assessments or
charges levied by any governmental or revenue authority in
respect of this Agreement or any other Basic Document or any
other document referred to herein or therein; and (d) all
costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration,
recording or perfection of any security interest
contemplated by this Agreement or any document referred to
herein or therein.
12.04 Indemnification. The Company shall
indemnify the Administrative Agent, the Lenders and each
affiliate thereof and their respective directors, officers,
employees and agents from, and hold each of them harmless
against, any and all losses, liabilities, claims or damages
to which any of them may become subject, insofar as such
losses, liabilities, claims or damages arise out of or
result from any actual or proposed use by the Company of the
proceeds of any extension of credit by any Lender hereunder
or breach by the Company of this Agreement or any other
Basic Document or from any investigation, litigation or
other proceeding (including any threatened investigation or
proceeding) relating to the foregoing, and the Company shall
reimburse the Administrative Agent and each Lender, and each
affiliate thereof and their respective directors, officers,
employees and agents, upon demand for any expenses
(including legal fees) incurred in connection with any such
investigation or proceeding; but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason
of the gross negligence or willful misconduct of the Person
to be indemnified.
12.05 Amendments, Etc. No amendment or waiver of
any provision of this Agreement or the Notes, nor any
consent to any departure by the Company therefrom, shall in
any event be effective unless the same shall be agreed or
consented to by the Majority Lenders and the Company, and
each such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which
given; provided, that (a) no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do
any of the following: (i) increase any Working Capital
Commitment of any of the Lenders or subject the Lenders to
any additional obligations; (ii) reduce the principal of, or
interest on, any Loan or fees hereunder; (iii) postpone any
date fixed for any payment of principal of, or interest on,
any Loan or fee hereunder pursuant to Sections 2.04,
4.01(a), 4.01(b) or 4.02 hereof; (iv) change the percentage
of any of the Working Capital Commitments or of the
aggregate unpaid principal amount of any of the Loans, or
the number of Lenders, which shall be required for the
Lenders or any of them to take any action under this
Agreement; or (v) change any provision contained in Sections
2.02, 6, 12.03 or 12.04 hereof or this Section 12.05 or
Section 12.08 hereof. Notwithstanding anything in this
Section 12.05 to the contrary, no amendment, waiver or
consent shall be made with respect to Section 11 without the
consent of the Administrative Agent.
12.06 Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns
except that the Company may not assign its rights or
obligations hereunder or under the Notes without the prior
written consent of all of the Lenders. Each Lender may
assign any Loan or Loans or all or any part of its Loans or
Working Capital Commitments (i) to any affiliate thereof,
(ii) to any other Lender, or (iii) with the consent of the
Company and, in the case of any assignment of Working
Capital Commitments or Working Capital Loans, the
Administrative Agent, which consents shall not be
unreasonably withheld, to any other bank or financial
institution (including a closed-end or other fund) (provided
that (a) any assignment pursuant to clause (i) or (ii) above
shall not be less than $1,000,000 and (b) any assignment or,
if substantially simultaneous, the aggregate amount of any
assignments by one or more Lenders pursuant to clause (iii)
above to any one bank or financial institution shall not be
less than $20,000,000, unless, in each case, such assignment
constitutes an assignment of all of such Lender's Working
Capital Commitments and Working Capital Loans). Upon
execution by the assignor and the assignee of an instrument
pursuant to which the assignee assumes such rights and
obligations, payment by such assignee to such assignor of an
amount equal to the purchase price agreed between such
assignor and such assignee and delivery to the
Administrative Agent and the Company of an executed copy of
such instrument together with payment by such assignee to
the Administrative Agent of a processing fee of $2,500, such
assignee shall have, to the extent of such assignment
(unless otherwise provided therein), the same rights and
benefits as it would have if it were a Lender hereunder and
the assignor shall be, to the extent of such assignment
(unless otherwise provided therein) released from its
obligations under this Agreement. Each Lender may (without
the consent of any other party to this Agreement) sell
participations in all or any part of any Loan or Loans made
by it to another bank or other entity, in which event the
participant shall not have any rights under this Agreement
(except as provided in the next succeeding sentence hereof),
or in the case of a Loan, such Lender's Note (the
participant's rights against such Lender in respect of such
participation to be those set forth in the agreement
executed by such Lender in favor of the participant relating
thereto, which agreement shall not give the participant the
right to consent to any modification, amendment or waiver
other than one described in clause (i), (ii) or (iii) of
Section 12.05 hereof). The Company agrees that each
participant shall be entitled to the benefits of Sections
5.07 and 6 with respect to its participation; provided that
no participant shall be entitled to receive any greater
amount pursuant to such Sections than the transferor Lender
would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender
to such participant had no such transfer occurred. Each
Lender may furnish any information concerning the Company
and its Subsidiaries in the possession of such Lender from
time to time to assignees and participants (including
prospective assignees and participants) which have agreed in
writing to be bound by the provisions of Section 12.07
hereof. The Administrative Agent and the Company may, for
all purposes of this Agreement, treat any Lender as the
holder of any Note drawn to its order (and owner of the
Loans evidenced thereby) until written notice of assignment,
participation or other transfer shall have been received by
them from such Lender. Any Lender may at any time assign
all or any portion of its rights under this Agreement and
its Notes to a Federal Reserve Bank without the consent of
the Company or the Administrative Agent. No such assignment
shall release the transferor Lender from its obligations
hereunder.
12.07 Confidentiality. Each Lender agrees to
exercise all reasonable efforts to keep any information
delivered or made available by the Company to it which is
clearly indicated to be confidential information,
confidential from anyone other than persons employed or
retained by such Lender who are or are expected to become
engaged in evaluating, approving, structuring or
administering the Loans; provided that nothing herein shall
prevent any Lender from disclosing such information (i) to
any other Lender, (ii) to its officers, directors,
employees, agents, attorneys and accountants who have a need
to know such information in accordance with customary
banking practices and who receive such information having
been made aware of the restrictions set forth in this
Section, (iii) upon the order of any court or administrative
agency, (iv) upon the request or demand of any regulatory
agency or authority having jurisdiction over such Lender,
(v) which has been publicly disclosed, (vi) to the extent
reasonably required in connection with any litigation to
which the Administrative Agent, any Lender 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 Lender'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 12.07.
12.08 Survival. The obligations of the Company
under Sections 6.01, 6.05, 6.06, 6.07, 12.03 and 12.04
hereof and the obligations of the Lenders under Section
11.05 shall survive the repayment of the Loans and the
termination of the Working Capital Commitments.
12.09 Captions. Captions and section headings
appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation
of any provision of this Agreement.
12.10 Counterparts; Integration; Severability.
This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute
one and the same instrument, and any of the parties hereto
may execute this Agreement by signing any such counterpart.
This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any
and all prior agreements and understandings, oral and
written, relating to the subject matter hereof (except to
the extent specific reference is made to any such agreement
in Section 2.04 hereof). In case any provision of or
obligation under this Agreement or the Notes shall be
invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way
be affected or impaired thereby.
12.11 GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL. THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK. THE COMPANY 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. THE
COMPANY 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.
EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered as of the
day and year first above written.
COMPANY GEORGIA GULF CORPORATION
By /s/ Richard B. Marchese
Title: Vice President - Finance
Address for Notices:
Georgia Gulf Corporation
400 Perimeter Center Terrace
Suite 595
Atlanta, Georgia 30346
Attention: Chief Financial Officer
Copy to:
General Counsel
Georgia Gulf Corporation
400 Perimeter Center Terrace
Suite 595
Atlanta, Georgia 30346
Telex Number: 8107510027
Telecopy Number: (404) 390-9673
<PAGE>
LENDERS
Working Capital Commitment:
$ 40,000,000 THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By /s/ Michael J. McGovern
Title: Vice President
Address for Notices:
The Chase Manhattan Bank
(National Association)
4 Chase Metrotech Center
13th Floor
Brooklyn, New York 11245
Attention: NY Agency
Lenord Selanikio
Tel. Number: (718) 242-7974
Telex Number: 6720516 CMB NYA
Telecopy Number: (718) 242-6900
Lending Office for
Base Rate Loans:
The Chase Manhattan Bank
(National Association)
4 Chase Metrotech Center
13th Floor
Brooklyn, New York 11245
Attention: NY Agency
Lenord Selanikio
Lending Office for
Eurodollar Loans:
Cayman Islands, B.W.I. Branch
c/o The Chase Manhattan Bank
(National Association)
4 Chase Metrotech Center
13th Floor
Brooklyn, New York 11245
Attention: NY Agency
Lenord Selanikio
<PAGE>
Working Capital Commitment:
$ 25,000,000 THE BANK OF TOKYO TRUST COMPANY
By /s/ Victor F. Bulzacchelli
Title: Vice President
Address for Notices:
The Bank of Tokyo Trust Company
1251 Avenue of the Americas
New York, NY 10116-3138
Attention: Deborah L. Flohr
Tel. No.: (212) 782-4326
Telecopy Number: (212) 782-6440
Lending Office for
Base Rate Loans:
The Bank of Tokyo Trust Company
1251 Avenue of the Americas
New York, NY 10116-3138
Attention: Deborah L. Flohr
Lending Office for
Eurodollar Loans:
The Bank of Tokyo Trust Company
1251 Avenue of the Americas
New York, NY 10116-3138
Attention: Deborah L. Flohr
<PAGE>
Working Capital Commitment:
$ 35,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By /s/ Junri Oda
Title: Senior Vice President
and Senior Manager
The Industrial Bank of Japan,
Limited, New York Branch
245 Park Avenue
New York, NY 10167-0037
Attention: Mr. Miki Katsumata/
Mr. Peter Kelly
Tel. No.: (212) 309-6452
Telex Number: 420802 (420802 KIGIUI)
Telecopy Number: (212) 692-2870
Lending Office for
Base Rate Loans:
The Industrial Bank of Japan,
Limited, New York Branch
245 Park Avenue
New York, NY 10167-0037
Attention: Mr. Masaaki Tahara
Lending Office for
Eurodollar Loans:
The Industrial Bank of Japan,
Limited, New York Branch
245 Park Avenue
New York, NY 10167-0037
Attention: Mr. Masaaki Tahara
<PAGE>
Working Capital Commitment:
$ 25,000,000 LTCB TRUST COMPANY
By /s/ John J. Sullivan
Title: Executive Vice President
Address for Notices:
LTCB Trust Company
165 Broadway
New York, NY 10006
Attention: Kathy Dorsch
Tel. No.: (212) 335-4578
Telex Number: 425722 LTCBUI
Telecopy Number: (212) 608-2371
Lending Office for
Base Rate Loans:
LTCB Trust Company
165 Broadway
New York, NY 10006
Attention: Winston Brown
Lending Office for
Eurodollar Loans:
LTCB Trust Company
165 Broadway
New York, NY 10006
Attention: Winston Brown
With Copies of Notices to:
LTCB Trust Company
Marquis One Tower
245 Peachtree Center Avenue, N.E.
Suite 2801
Atlanta, GA 30303
Attention: Rebecca J. Silbert
<PAGE>
Working Capital Commitment:
$ 25,000,000 THE SAKURA BANK, LTD.
By /s/ Hiroyasu Imanishi
Title: Vice President and
Senior Manager
Address for Notices:
245 Peachtree Center Avenue, N.E.
Suite 2703
Atlanta, Georgia 30303
Attention: Charles Zimmerman
Tel. No.: (404) 521-3111
Telex Number: WU 125435
Telecopy Number: (404) 521-1133
Lending Office for
Base Rate Loans:
245 Peachtree Center Avenue, N.E.
Suite 2703
Atlanta, Georgia 30303
Attention: Charles Zimmerman
Tel. No.: (404) 521-3111
Lending Office for
Eurodollar Loans:
245 Peachtree Center Avenue, N.E.
Suite 2703
Atlanta, Georgia 30303
Attention: Charles Zimmerman
Tel. No.: (404) 521-3111
<PAGE>
Working Capital Commitment:
$ 40,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Glenn F. Edwards
Title: Vice President
Address for Notices:
The Bank of America NT & SA
1230 Peachtree Street
Suite 3600
Atlanta, Georgia 30309
Attention: Bill Tucker
Tel. No.: (404) 249-6927
Telecopy Number: (404) 364-3303
Lending Office for
Base Rate Loans:
The Bank of America NT & SA
1850 Gateway Blvd.
Concord, California 94520
Attention: Account Administrator
Tel. No.: (510) 675-7335
Telecopy: (510) 675-7531
Lending Office for
Eurodollar Loans:
The Bank of America NT & SA
1850 Gateway Blvd.
Concord, California 94520
Attention: Account Administrator
Tel. No.: (510) 675-7335
Telecopy: (510) 675-7531
<PAGE>
Working Capital Commitment:
$ 35,000,000 FUJI BANK, LTD.
By /s/ T. Mitsui
Title: Vice President and Manager
Address for Notices:
245 Peachtree Center Avenue, N.E.
Suite 2100
Atlanta, Georgia 30303-1208
Attention: Scott Keller
Tel. No.: (404) 653-2113
Telex Number: 9102507122
Telecopy Number: (404) 653-2119
Lending Office for
Base Rate Loans:
245 Peachtree Center Avenue, N.E.
Suite 2100
Atlanta, Georgia 30303-1208
Attention: Scott Keller
Tel. No.: (404) 653-2113
Lending Office for
Eurodollar Loans:
245 Peachtree Center Avenue, N.E.
Suite 2100
Atlanta, Georgia 30303-1208
Attention: Scott Keller
Tel. No.: (404) 653-2113
<PAGE>
Working Capital Commitment:
$ 40,000,000 NATIONSBANK OF GEORGIA, N.A.
By /s/ Catherine S. Rhodes
Title: Assistant Vice President
Address for Notices:
600 Peachtree Street, N.E.
21st Floor
Atlanta, Georgia 30308-2213
Attention: Catherine S. Rhodes
Tel. No.: (404) 607-5531
Telecopy Number: (404) 607-6467
Lending Office for
Base Rate Loans:
100 N. Tryon
Charlotte, NC 28255
Attention: Edna Benson
Fax. No.: (704) 386-4198
Lending Office for
Eurodollar Loans:
100 N. Tryon
Charlotte, NC 28255
Attention: Edna Benson
Fax. No.: (704) 386-4198
<PAGE>
Working Capital Commitment:
$ 35,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By /s/ Michael G. Mountcastle
Title: Assistant Vice President
191 Peachtree Street, N.E.
Mail Code 3940
Atlanta, Georgia 30303-1757
Attention: Mike G. Mountcastle
Tel. No.: (404) 332-5317
Telecopy Number: (404) 332-5016
Lending Office for
Base Rate Loans:
191 Peachtree Street, N.E.
Mail Code 3940
Atlanta, Georgia 30303-1757
Attention: Mike G. Mountcastle
Lending Office for
Eurodollar Loans:
191 Peachtree Street, N.E.
Mail Code 3940
Atlanta, Georgia 30303-1757
Attention: Mike G. Mountcastle
<PAGE>
Working Capital Commitment:
$ 25,000,000 WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK AND CAYMAN ISLANDS BRANCHES
By /s/ S. Battinelli
Title: Vice President
By /s/ Cynthia M. Niesen
Title: Vice President
Address for Notices:
Westdeutsche Landesbank Girozentrale,
New York Branch
1211 Avenue of the Americas
New York, NY 10036
Attention: Nandini R. Ray
Copy to: Cynthia Niesen
Tel. No.: (212) 852-6294
Telecopy Number: (212) 302-7946
Lending Office for
Base Rate Loans:
Westdeutsche Landesbank Girozentrale,
New York Branch
1211 Avenue of the Americas
New York, NY 10036
Attention: Nandini R. Ray
Lending Office for
Eurodollar Loans:
Westdeutsche Landesbank Girozentrale,
Cayman Islands Branch
c/o New York Branch
1211 Avenue of the Americas
New York, NY 10036
Attention: Nandini R. Ray
<PAGE>
Working Capital Commitment:
$ 25,000,000 BANQUE PARIBAS
By /s/ Richard G. Burrows
Title: Vice President
By /s/ Duane P. Helkowski
Title: Assistant Vice President
787 Seventh Avenue
New York, New York 10019
Attention: Richard G. Burrows
Tel. No.: (212) 841-2299
Telex Number: FTC 82982
Telecopy Number: (212) 841-2333
Lending Office for
Base Rate Loans:
787 Seventh Avenue
New York, New York 10019
Attention: Dick O'Leary
Lending Office for
Eurodollar Loans:
787 Seventh Avenue
New York, New York 10019
Attention: Dick O'Leary
<PAGE>
ADMINISTRATIVE AGENT THE CHASE MANHATTAN BANK
(National Association),
as Administrative Agent
By /s/ Michael J. McGovern
Title: Vice President
Address for Notices:
The Chase Manhattan Bank
(National Association)
4 Metrotech Center, 13th Floor
Brooklyn, New York 11245
Attention: New York Agency
Lenord Selanikio
Telex Number: 6720516 CMB NYA UW
Telecopy Number: (718) 242-6900
Copy to:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Primary Industries
Michael McGovern
Telex Number: 125563
Telecopy Number: (212) 552-7175
<PAGE>
SCHEDULE I
Subsidiaries
Great River Oil & Gas Corporation
GG Terminal Management Corporation
Georgia Gulf Export Corporation
<PAGE>
SCHEDULE II
INFORMATION PACKAGE
1. Annual Report on Form 10-K (including audited financial
statements of the Company and its Subsidiaries as at
and for the year ended December 31, 1994).
2. Projected Financial Results, March 1995 (including
management's discussion and analysis thereof) delivered
under cover of the Company's letter dated March 6,
1995.
<PAGE>
EXHIBIT A
[Form of Working Capital Loan Note]
PROMISSORY NOTE
$_______________ ____________, 199_
New York, New York
FOR VALUE RECEIVED, Georgia Gulf Corporation, a
Delaware corporation (the "Company"), hereby promises to pay
to ___________________ (the "Lender"), or order, at the
principal office of The Chase Manhattan Bank (National
Association) at 1 Chase Manhattan Plaza, New York, New York
10081, the principal sum of _______________ Dollars (or such
lesser amount as shall equal the aggregate unpaid principal
amount of the Working Capital Loans made by the Lender to
the Company under the Credit Agreement referred to below),
in lawful money of the United States of America and in
immediately available funds, on the dates and in the
principal amounts provided in the Credit Agreement, and to
pay interest on the unpaid principal amount of each such
Working Capital Loan, at such office, in like money and
funds, for the period commencing on the date of such Working
Capital Loan until such Working Capital Loan shall be paid
in full, at the rates per annum and on the dates provided in
the Credit Agreement. This Note is one of the Working
Capital Loan Notes referred to in the Credit Agreement.
The Lender is hereby authorized by the Company to
endorse on the schedule (or a continuation thereof) attached
to this Note, the date, amount, Type of and Interest Period
(if any) for each Working Capital Loan made by the Lender to
the Company under the Credit Agreement, and the date and
amount of each payment or prepayment of principal of such
Working Capital Loan received by the Lender, provided that
any failure by the Lender to make any such endorsement shall
not affect the obligations of the Company under the Credit
Agreement or under this Note in respect of such Working
Capital Loans.
This Note is one of the Notes referred to in the
Credit Agreement (as modified and supplemented and in effect
from time to time, the "Credit Agreement") dated as of
March 30, 1995 among the Company, the lenders named therein
(including the Lender), and The Chase Manhattan Bank
(National Association), as Administrative Agent, and
evidences Working Capital Loans made by the Lender
thereunder. Capitalized terms used in this Note have the
respective meanings assigned to them in the Credit
Agreement.
The Credit Agreement provides for the acceleration
of the maturity of this Note upon the occurrence of certain
events and for prepayments of Working Capital Loans upon the
terms and conditions specified therein.
This Note shall be governed by and construed in
accordance with the laws of the State of New York.
GEORGIA GULF CORPORATION
By______________________
Title:
<PAGE>
SCHEDULE
This Note evidences Working Capital Loans made under the
within-described Credit Agreement to the Company, on the
dates, in the principal amounts, of the types and maturing
on the dates set forth below, subject to the payments and
prepayments of principal set forth below:
Type
Principal of
Amount of Working Date of Amount Balance
Date Working Capital Interest Payment or Paid or Out-
Made Capital Loan Loan Period Prepayment Prepaid standing
<PAGE>
EXHIBIT B
[Form of Money Market Loan Note]
PROMISSORY NOTE
____________, 199_
New York, New York
FOR VALUE RECEIVED, GEORGIA GULF CORPORATION, a
Delaware corporation (the "Company"), hereby promises to pay
to ______________________ (the "Lender"), or order, at the
principal office of The Chase Manhattan Bank (National
Association) at
1 Chase Manhattan Plaza, New York, New York 10081, the
aggregate unpaid principal amount of the Money Market Loans
made by the Lender to the Company under the Credit
Agreement, in lawful money of the United States of America
and in immediately available funds, on the dates and in the
principal amounts provided in the Credit Agreement, and to
pay interest on the unpaid principal amount of each such
Money Market Loan, at such office, in like money and funds,
for the period commencing on the date of such Money Market
Loan until such Money Market Loan shall be paid in full, at
the rates per annum and on the dates provided in the Credit
Agreement. This Note is one of the Money Market Loan Notes
referred to in the Credit Agreement.
The Lender is hereby authorized by the Company to
endorse on the schedule (or a continuation thereof) attached
to this Note, the date, amount, Type of, interest rate on
and Interest Period for the Money Market Loans (if any) made
by the Lender to the Company under the Credit Agreement, and
the date and amount of each payment or prepayment of
principal of each such Money Market Loan received by the
Lender, provided that any failure by the Lender to make any
such endorsement shall not affect the obligations of the
Company under the Credit Agreement or under this Note in
respect of any such Money Market Loan.
This Note is one of the Notes referred to in the
Credit Agreement (as modified and supplemented and in effect
from time to time, the "Credit Agreement") dated as of March
30, 1995 among the Company, the lenders named therein
(including the Lender) and The Chase Manhattan Bank
(National Association), as Administrative Agent, and
evidences Money Market Loans made by the Lender thereunder.
Capitalized terms used in this Note have the respective
meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration
of the maturity of this Note upon the occurrence of certain
events and for prepayments of Loans upon the terms and
conditions specified therein.
This Note shall be governed by, and construed in
accordance with, the law of the State of New York.
GEORGIA GULF CORPORATION
By_________________________
Title:
<PAGE>
SCHEDULE
This Note evidences Money Market Loans made under the
within-described Credit Agreement to the Company, on the
dates, in the principal amounts, of the types, bearing
interest at the rates and maturing on the dates set forth
below, subject to the payments and prepayments of principal
set forth below:
Principal
Date Amount Type Amount Unpaid
of of of Interest Interest Paid or Principal Notation
Loan Loan Loan Rate Period Prepaid Amount Made By
<PAGE>
EXHIBIT C
[Form of Money Market Quote Request]
[Date]
To: The Chase Manhattan Bank, N.A.,
as Administrative Agent
From: Georgia Gulf Corporation
Re: Money Market Quote Request
Pursuant to Section 3.03 of the Credit Agreement
(the "Credit Agreement") dated as of March 30, 1995 among
Georgia Gulf Corporation, the Lenders named therein and The
Chase Manhattan Bank, N.A., as Administrative Agent, we
hereby give notice that we request Money Market Quotes for
the following proposed Money Market Borrowing(s):
Borrowing Quotation Interest
Date Date 1/ Amount 2/ Type 3/ Period 4/
Terms used herein have the meanings assigned to
them in the Credit Agreement.
Please respond to this invitation by no later than
[2:00 P.M.] [10:00 A.M.] (New York City time) on [date].
Georgia Gulf Corporation
By______________________
Title:
_____________
* All numbered footnotes appear on the last page of this
Exhibit.
__________
1/ For use if a Money Market Rate in a Set Rate Auction is
requested to be submitted before the Borrowing Date.
2/ Each amount must be $5,000,000 or a larger multiple of
$1,000,000.
3/ Insert either "Margin" (in the case of LIBOR Market
Loans) or "Rate" (in the case of Set Rate Loans).
4/ One, two, three, six or twelve calendar months, in the
case of a LIBOR Market Loan or, in the case of a Set
Rate Loan, a period of up to 360 (but not less than 7)
days after the making of such Set Rate Loan and ending
on a Business Day. The Company may request offers to
make Money Market Loans for up to three different
Interest Periods in a single notice.
<PAGE>
EXHIBIT D
[Form of Money Market Quote]
The Chase Manhattan Bank, N.A.,
as Administrative Agent
Attention: New York Agency
Re: Money Market Quote to
Georgia Gulf Corporation (the "Company")
This Money Market Quote is given in accordance
with Section 3.03(b) of the Credit Agreement (the "Credit
Agreement") dated as of March 30, 1995, among Georgia Gulf
Corporation, the Lenders named therein and The Chase
Manhattan Bank, N.A., as Administrative Agent. Terms
defined in the Credit Agreement are used herein as defined
therein.
In response to the Company's invitation dated
__________, 19__, we hereby make the following Money Market
Quote(s) on the following terms:
1. Quoting Bank.
2. Person to contact and telephone number at
Quoting Bank.
We hereby offer to make Money Market Loan(s) in
the following principal amounts for the following Interest
Periods and at the following rates:
Borrowing Quotation Interest
Date Date 1/ Amount 2/ Type 3/ Period 4/ Rate 5/
_____________
* All numbered footnotes appear on the last page of this
Exhibit.
<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, irrevocably
obligate(s) us to make the Money Market Loan(s) for which
any offer(s) [is] [are] accepted, in whole or in part
(subject to the third sentence of Section 3.03(c) of the
Credit Agreement).
Very truly yours,
[Name of Bank]
By:_______________________
Dated: Authorized Officer
__________
1/ As specified in related Money Market Quote Request.
2/ The principal amount bid for each Interest Period may
not exceed the principal amount requested but must be
at least $5,000,000 or a larger multiple of $1,000,000.
Specify aggregate limitation if the sum of individual
offers exceeds the amount the Lender is willing to
lend.
3/ Indicate "Margin" (in the case of LIBOR Market Loans)
or "Rate" (in the case of Set Rate Loans).
4/ Up to 360 (but not less than 7) days for Set Rate
Loans; one, two, three, six or twelve calendar months
for LIBOR Market Loans. The Company may request offers
to make Money Market Loans for up to three different
Interest Periods in a single invitation.
5/ Margin above or below the applicable Eurodollar Rate in
case of LIBOR Market Loans (specify "PLUS" or "MINUS")
or rate of interest per annum (in case of Set Rate
Loans) (rounded upwards in either case, if necessary,
to nearest 1/10,000th of 1%).
<PAGE>
EXHIBIT E
FORM OF OPINION OF
COUNSEL TO THE COMPANY
[Dated the Closing Date]
To each of the Lenders
and the Administrative Agent referred to below:
Re: Georgia Gulf Corporation
Gentlemen:
We have acted as special counsel to Georgia Gulf
Corporation, a Delaware corporation (the "Company"), in
connection with the transactions contemplated by that
certain Credit Agreement dated as of March 30, 1995 (the
"Credit Agreement") among the Company, each of the Lenders
referred to therein and The Chase Manhattan Bank (National
Association), as Administrative Agent. This opinion is
delivered pursuant to Section 7.01(e) of the Credit
Agreement. Capitalized terms contained but not otherwise
defined herein shall have the meanings ascribed to them in
the Credit Agreement whether directly or by reference
therein to definitions contained in other documents.
In connection with this opinion we have examined
and relied upon originals, or copies certified or otherwise
identified to our satisfaction, of such corporate documents
and records of the Company and certificates of public
officials and other documents, and have received such
information from officers and representatives of the
Company, as we have deemed necessary to enable us to express
the opinions below. We have also relied on certificates of
officers of the Company as to certain factual matters.
In rendering our opinion we have assumed, without
independent investigation, (i) the genuineness of all
signatures, (ii) the authenticity of all documents submitted
to us as originals, (iii) the conformity to authentic
original documents of all documents submitted to us as
certified, conformed or photostatic copies, (iv) the due
authorization, execution and delivery of all documents
referred to herein by the parties thereto other than the
Company, and the binding effect of such documents on such
parties other than the Company, and (v) that each of the
Basic Documents has been duly executed and delivered by each
of the parties thereto substantially in the form thereof
submitted to us.
Based on the foregoing, and subject to the further
assumptions, qualifications and limitations hereinafter set
forth, we are of the opinion that:
1. The Company has been duly incorporated, and is
validly existing and in good standing as a corporation,
under the laws of the State of Delaware with all requisite
corporate power and authority to conduct its business as now
being conducted or as proposed to be conducted in the Basic
Documents, and to enter into the Basic Documents and perform
the Basic Documents.
2. Each of the Basic Documents has been duly
authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company
enforceable against it in accordance with its terms, except
as any enforceability thereof may be (a) limited by the
effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, and (b) subject to the effect
of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
3. No authorization, consent or approval or other
action by, and no notice to or filing with, any governmental
authority or regulatory body is required for (i) the due
execution, delivery, recordation or performance by the
Company of any Basic Document, except for (a) filings or
other actions that may be required after the date hereof to
maintain corporate good standing, (b) the exercise of rights
and remedies by the Administrative Agent or one of the
Lenders requiring notice to or filing with any court or any
prior court approval, and (c) authorizations, consents and
approvals that have already been obtained and filings and
recordations that have already been made.
4. To our knowledge, after due inquiry, neither
the Company nor any of its Subsidiaries is an "investment
company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of
1940, as amended, 15 U.S.C. Section 80a-1 et seq.
5. To our knowledge, after due inquiry, neither
the Company nor any of its Subsidiaries is a "holding
company" or an "affiliate" of a "holding company" or a
"subsidiary company" of a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935,
as amended, 15 U.S.C. Section 79 et seq.
6. The choice of New York law to govern the
Credit Agreement is a valid and effective choice of law
under the laws of the States of Georgia and Delaware, and
adherence to existing judicial precedents generally would
require a court sitting in the States of Georgia or Delaware
to abide by such choice by law, unless a fundamental policy
of the State in which such court is sitting would be
violated.
7. Neither the execution, delivery or performance
by the Company of any of the Basic Documents, nor the
consummation of the transactions therein contemplated in
compliance with the terms and provisions therein (i)
conflicts with or results in any breach of or requires any
consent or constitutes a default under, or results in the
creation or imposition of any Lien on any of the property or
assets of any of the Company or any of its Subsidiaries
under, any existing indenture, mortgage, deed or trust, loan
agreement or other agreement or instrument known to us after
due inquiry to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Subsidiaries is subject,
or (ii) contravenes the provisions of the existing
certificate of incorporation or by-laws of the Company or
any of its Subsidiaries, or any applicable law or
regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency known to us after
due inquiry to be applicable to the Company or any of its
Subsidiaries or their respective businesses or properties.
8. We are not acting as counsel for the Company
in any pending litigation in which the Company is a party,
and we have not had referred to us by the Company for legal
advice or legal representation any matter that we believe
might be deemed to be overtly threatened litigation in which
the Company may become a party, except those matters listed
on Schedule I attached hereto. The statement set forth in
the preceding sentence is limited to those matters that the
Company has referred to us for legal representation or about
which the Company has consulted us as counsel and with
respect to which we have given substantive attention. We
have identified those matters by making inquiry of lawyers
presently in our firm who, according to our records, have
been engaged in legal services on behalf of the Company
since January 1, 1994, and by examining certain current
records that we maintain for our internal operations. In
that process we have not undertaken any independent review
of documents or records concerning the Company that are in
our possession. We disclaim any undertaking to advise you
of changes brought to our attention subsequent to the date
of this letter.
9. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its
important activities, in the business or extending credit
for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U or X of the Board of
Governors of the Federal Reserve System).
The foregoing opinion is predicated upon and
qualified in its entirety by the following:
(a) The foregoing opinion is based upon and is
limited exclusively to the laws of the States of New York
and Georgia, the General Corporation Law of the State of
Delaware and the relevant law of the United States of
America, and we render no opinion with respect to the law of
any other jurisdiction.
(b) As used in this opinion, the term "to our
knowledge" or other term or phrase to such effect refers to
the actual knowledge on the date hereof solely of the
lawyers of the firm who are presently representing the
Company and its Subsidiaries and representations made to
such lawyers by the Company and its Subsidiaries in
connection with the matters expressly set forth or described
herein.
(c) In rendering the foregoing opinions, we have
relied upon certificates of officers (after the discussion
of the contents thereof with such officers) of the Company
or its Subsidiaries or certificates of others as to the
existence or nonexistence of the circumstances upon which
such opinion is predicated. We have no reason to believe,
however, that any such certificate or representation or
warranty is untrue or inaccurate in any material respect.
Whenever our opinion is based on circumstances "known to us
after due inquiry," or "to our knowledge after due inquiry"
we have relied exclusively upon such certificates and
representations and warranties.
(d) We express no opinion as to (i) any provision
of the Credit Agreement or any Note purporting to provide
for the payment of interest on overdue interest; (ii) the
second sentence of Section 12.11 of the Credit Agreement,
insofar as such sentence relates to the subject matter
jurisdiction of the United States District Court for the
Southern District of New York to adjudicate any controversy
relating to the Credit Agreement; or (iii) the effect of the
laws of any jurisdiction (other than the State of New York)
wherein any Lender may be located that limit rates of
interest that may be charged or collected by such Lender.
Further, we express no opinion as to the effect of the
compliance or noncompliance of the Administrative
Agent or any of the Lenders with any state or federal laws
or regulations applicable to the Administrative Agent or any
of the Lenders by reason of the legal or regulatory status
or the nature of the business of the Administrative Agent or
any of the Lenders.
(e) The opinions expressed herein shall be
effective only as of the date of this letter. We do not
assume responsibility for updating this opinion as of any
date subsequent to the date of this letter, and assume no
responsibility for advising you of any changes with respect
to any matters described in this letter that may occur
subsequent to the date of this letter, whether such changes
result from events occurring subsequent to the date of this
letter or from the discovery subsequent to the date of this
letter of information not previously known to us pertaining
to events occurring prior to the date of this letter.
This opinion is furnished to you by us, as special
counsel for the Company, solely for your benefit and the
benefit of your successors as Lenders or as Administrative
Agent based upon the understanding, as we have advised you,
that we are not hereby assuming any professional
responsibility to any other person whatsoever.
Very truly yours,
<PAGE>
SCHEDULE I
Litigation
<PAGE>
EXHIBIT F
FORM OF OPINION OF SPECIAL NEW YORK
COUNSEL TO THE ADMINISTRATIVE AGENT
[Dated the Closing Date]
To the Lenders
and the Administrative Agent
Referred to Below
c/o The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Dear Sirs:
We have participated in the preparation of the
Credit Agreement (the "Credit Agreement") dated as of
March 30, 1995 among Georgia Gulf Corporation, a Delaware
corporation (the "Company"), the Lenders referred to therein
(the "Lenders") and The Chase Manhattan Bank (National
Association), as Administrative Agent (the "Administrative
Agent"), and have acted as special counsel for the
Administrative Agent for the purpose of rendering this
opinion pursuant to Section 7.01(f) of the Credit Agreement.
Terms defined in the Credit Agreement are used herein as
therein defined.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as we have deemed necessary
or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the
opinion that:
1. The execution, delivery and performance by the
Company of the Credit Agreement and the Notes delivered on
the date hereof are within the Company's corporate powers
and have been duly authorized by all necessary corporate
action.
2. The Credit Agreement constitutes a valid and
binding agreement of the Company and such Notes constitute
valid and binding obligations of the Company.
In giving the foregoing opinion, we express no
opinion as to (1) the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any
Lender is located which limits the rate of interest that
such Lender may charge or collect; (2) whether provisions of
the Basic Documents which permit the Administrative Agent,
the Majority Lenders, or any Lender to take action or make
determinations or to require payments under indemnity and
similar provisions may be subject to a requirement that such
action be taken or such determinations be made on a
reasonable basis and in good faith and that any action or
omission to act in respect of which any such payment is so
required be reasonable and in good faith; or (3) whether a
holder of any Note may, under certain circumstances, be
called upon to prove the outstanding amount of the Loans
evidenced thereby.
We are members of the bar of the State of New York
and we do not herein express any opinion as to any matters
governed by any laws other than the laws of the State of New
York and the General Corporation Law of the State of
Delaware.
Very truly yours,
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Georgia Gulf
Corporation's Form 10-Q for the quarter ended March 31, 1995 and is qualified in
its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JAN-1-1995
<PERIOD-END> MAR-31-1995
<CASH> 2,669
<SECURITIES> 0
<RECEIVABLES> 163,614
<ALLOWANCES> 3,122
<INVENTORY> 74,672
<CURRENT-ASSETS> 258,115
<PP&E> 465,450
<DEPRECIATION> 199,272
<TOTAL-ASSETS> 527,525
<CURRENT-LIABILITIES> 155,798
<BONDS> 320,481
<COMMON> 395
0
0
<OTHER-SE> 10,874
<TOTAL-LIABILITY-AND-EQUITY> 527,525
<SALES> 314,026
<TOTAL-REVENUES> 314,026
<CGS> 195,839
<TOTAL-COSTS> 195,839
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 8,712
<INCOME-PRETAX> 97,892
<INCOME-TAX> 37,735
<INCOME-CONTINUING> 60,157
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 60,157
<EPS-PRIMARY> 1.44
<EPS-DILUTED> 1.44
</TABLE>
